Southwestern Pennsylvania Growth Alliance v. Browner

• Decision Date: 26 May 1998
• Docket Number: No. 96-3761,96-3761
• Citation: 144 F.3d 984
• Parties: , 28 Envtl. L. Rep. 21,251 SOUTHWESTERN PENNSYLVANIA GROWTH ALLIANCE, Petitioner, v. Carol M. BROWNER, Administrator, U.S. Environmental Protection Agency; United States Environmental Protection Agency, Respondents.
• Court: U.S. Court of Appeals — Sixth Circuit

Page 984

144 F.3d 984

46 ERC 1609, 28 Envtl. L. Rep. 21,251

SOUTHWESTERN PENNSYLVANIA GROWTH ALLIANCE, Petitioner, v. Carol M. BROWNER, Administrator, U.S. Environmental Protection Agency; United States Environmental Protection Agency, Respondents.

No. 96-3761.

United States Court of Appeals Sixth Circuit.

Argued Dec. 4, 1997.

Decided May 26, 1998.

Christopher C. French (argued), William J. Labovitz, Kenneth S. Komoroski (briefed), John P. Englert, Lauren S. McAndrews, Kirkpatrick & Lockhart, Pittsburgh, PA, Virgil E. Alexander, Babst, Calland, Clements & Zomnir, Pittsburgh, PA, Barry M. Hartman (briefed), Kirkpatrick & Lockhart, Washington, DC, for Petitioner.

Catherine M. Flanagan (argued and briefed), Greer S. Goldman, U.S. Department of Justice, Civil Division, Appellate Staff, Environmental Defense Section, Washington, DC, Valdas V. Adamkus, U.S. Environmental Protection Agency, Office of Regional Counsel, Region V, Chicago, IL, Carol Browner, Administrator, Office of U.S. Environmental Protection Agency, Washington, DC, for Respondents.

Susan E. Ashbrook (briefed), Office of the Attorney General of Ohio, Environmental Enforcement Section, Columbus, OH, for Amicus Curiae State of Ohio.

Before: MERRITT and BATCHELDER, Circuit Judges; DOWD, ^* District Judge.

OPINION

MERRITT, Circuit Judge.

This case arises under the Clean Air Act, 42 U.S.C. §§ 7401-7671q, as amended. The petitioner, the Southwestern Pennsylvania Growth Alliance, appeals the decision of the Administrator of the United States Environmental Protection Agency directly to this Court under 42 U.S.C. § 7607(b)(1). The petitioner argues that the EPA's decision to redesignate the Cleveland-Akron-Lorain, Ohio, area as an "attainment" area for ozone was arbitrary and capricious because the EPA failed to take into account the "regional" effect of ozone pollution--specifically the effect of the airborne transport of ozone and its precursors across from Ohio into Pennsylvania. The EPA counters that the petitioner does not have standing to bring this case and that the petitioner's claims fail on the merits because the EPA acted reasonably in making the redesignation. It argues that it is handling the regional transport problem separately in a comprehensive study and set of proposals. We find that the actions of the EPA were reasonable and within its administrative authority, and therefore we affirm the decision of the EPA.

I.

Under the Clean Air Act, Congress directed the Administrator to set nationally uniform air quality standards known as "National Ambient Air Quality Standards." 42 U.S.C. § 7409. The Clean Air Act requires the EPA to promulgate these standards for six criteria pollutants, including ground-level ozone. Ozone is formed in the atmosphere when oxides of nitrogen and volatile organic compounds are emitted into the air in the presence of sunlight. S.Rep. No. 101-228, at 6 (1990), reprinted in 1990 U.S.S.C.A.N. 3385, 3392.

Under the Act, the Administrator designates areas as "nonattainment," "attainment," or "unclassifiable," based upon whether the area meets the standards for a particular pollutant. 42 U.S.C. § 7407(d). Each area designated as "nonattainment" is further classified as marginal, moderate, serious, severe or extreme, depending on the degree to which the area exceeds the standards. 42 U.S.C. § 7511(a). The Act permits the governor of a state to request the Administrator to revise the designation for any area within the state. 42 U.S.C. § 7407(d)(3)(D).

The states are responsible for meeting the national standards. Each state must draft a State Implementation Plan for each pollutant. These State Implementation Plans provide for enforcement of national standards. See 42 U.S.C. § 7410. Among other things, these plans must include provisions prohibiting air emissions within the state from contributing significantly to nonattainment in other states or interfering with maintenance of the standards by other states. 42 U.S.C. § 7410(a)(2)(D). If the Administrator finds that a State's Implementation Plan is "substantially inadequate" to attain or maintain the standards or to mitigate adequately interstate pollutant transport, then the Administrator is authorized to "require the state to revise the plan as necessary to correct such inadequacies" within 18 months. 42 U.S.C. § 7410(k)(5). This procedure is called a "SIP [State Implementation Plan] call."

Before the EPA redesignates an area for ozone attainment, the EPA follows a two-step system. First, the EPA determines whether an area has met the applicable technical, chemical standards for "attainment" of the correct level of ozone in the area. Second, the EPA determines whether the area has met the additional requirements for redesignation to attainment.

In the first step, the EPA determines whether the area has met the "attainment" standard for ozone, called the "national primary standard." The EPA regulations define the standard for ozone as .12 parts per million. The "standard is attained when the expected number of days per calendar year with maximum hourly average concentrations above .12 parts per million ... is equal to or less than 1, as determined by appendix H." 40 C.F.R. Pt. 50. An area will have attained the standard if three or fewer instances over the standard are recorded over a three year period at any of the monitoring sites within the area.

In the second step, after an area has met the applicable standard for attainment, the EPA determines whether the area has met the additional four criteria for redesignation from nonattainment to attainment: (1) EPA must fully approve the applicable State Implementation Plan; (2) EPA must determine that improvement in air quality is due to permanent reductions in emissions; (3) EPA must fully approve a maintenance plan adopted by the State which demonstrates that the area will maintain the standard for at least 10 years after redesignation; and (4) the State has met all the requirements applicable to the area under section 7410 (requirements of State Implementation Plans) and part D. 42 U.S.C. § 7407(d)(3)(E).

In 1991, the Cleveland-Akron-Lorain, Ohio, area was designated as a moderate ozone nonattainment area. On November 15, 1994, the Governor of the State of Ohio submitted a request to the EPA to redesignate the area to attainment.

On June 15, 1995, the EPA published a Notice of Proposed Rulemaking, proposing to approve Ohio's redesignation request for the area contingent on final approval by the EPA of several elements of Ohio's State Implementation Plan. 60 Fed.Reg. 31,433 (1995). As part of this proposal, the EPA included the following section:

Transport of Ozone Precursors to Downwind Areas

Preliminary modeling results utilizing USEPA's [United States Environmental Protection Agency] regional oxidant model (ROM) indicate that ozone precursor emissions from various States West of the ozone transport region (OTR) in the northeastern United Sates contribute to increases in ozone concentrations in the OTR. The State of Ohio has provided documentation that VOC and NO subX emissions in the CAL [Cleveland-Akron-Lorain] nonattainment area are predicted to remain below attainment levels for the next ten years. Should emissions exceed attainment levels, the contingency plan will be triggered. In addition, eight years after redesignation to attainment, Ohio is required to submit a revision to the maintenance plan which demonstrates that the NAAQS [National Ambient Air Quality Standards] will be maintained until the year 2105. The USEPA is currently developing policy which will address long range impacts of ozone transport. The USEPA is working with the States and other organizations to design and complete studies which consider upwind sources and quantify their impacts. The USEPA intends to address the transport issue through Section 110 based on a domain-wide modeling analysis.

60 Fed.Reg. at 31,439. The proposed rule stated that the comment period on redesignation closed on July 17, 1995. The petitioner did not submit comments on redesignation by the close of the comment period.

On June 29, 1995, the EPA published a direct Final Rule on attainment. In the rule, the EPA determined that the Cleveland, Toledo, Dayton and Cincinnati-Hamilton areas had achieved attainment. 60 Fed.Reg. 33,742 (1995). The action was based on Ohio's demonstration that the areas achieved the standards for ozone during the three year period from 1992 through 1994. The rule stated that the action would become effective on August 14, 1995, unless the EPA received adverse comments by July 31, 1995. On July 28, 1995, the petitioner submitted comments directed at the determination of attainment in a letter captioned "Adverse Comments on Determination of Attainment of Ozone Standard by Cleveland, Toledo, Dayton, and the Cincinnati-Hamilton Interstate Ozone Attainment Areas, as published in the June 29, 1995 Federal Register." J.A. at 861. In the letter, the petitioner claimed that there was "strong evidence" that the ozone problem in southwestern Pennsylvania is caused by emissions of ozone precursors from states to its west, particularly Ohio and West Virginia. J.A. at 862. The EPA also received a comment on the attainment rule from the New York State Department of Environmental Conservation. After receiving adverse comments on the direct final notice of attainment determination, the EPA issued a notice on August 25, 1995, withdrawing the direct final notice and announcing that the EPA would summarize and respond to the comments in a subsequent final rule. 60 Fed.Reg. 44,277 (1995).

On May 7, 1996, the EPA took action on both the attainment and the redesignation, responding to comments on both actions. 61 Fed.Reg. 20,458 (1996). The interstate transport issue was raised as a comment to the attainment determination. The EPA responded that interstate transport is not relevant to the narrow issue of attainment of air quality standards but...