265 F.3d 426 (6th Cir. 2001), 00-4010, Wall v United States Environmental Protection Agency

Docket Nº:00-4010
Citation:265 F.3d 426
Party Name:Marilyn Wall and Mike Fremont, Petitioners, Sierra Club, Intervenor, v. United States Environmental Protection Agency and Christine Whitman, Administrator, United States Environmental Protection Agency, Respondents.
Case Date:September 11, 2001
Court:United States Courts of Appeals, Court of Appeals for the Sixth Circuit

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265 F.3d 426 (6th Cir. 2001)

Marilyn Wall and Mike Fremont, Petitioners,

Sierra Club, Intervenor,


United States Environmental Protection Agency and Christine Whitman, Administrator, United States Environmental Protection Agency, Respondents.

No. 00-4010

United States Court of Appeals, Sixth Circuit

September 11, 2001

Argued: August 3, 2001

On Petition for Review of a Final Decision of the Environmental Protection Agency. No. 40 CFR Parts 52-81.

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David S. Baron, EARTHJUSTICE LEGAL DEFENSE FUND, Washington, D.C., for Petitioners and Intervenor.

Bryan F. Zima, OFFICE OF THE ATTORNEY GENERAL, Columbus, Ohio, for Amicus Curiae.


Before: CLAY and GILMAN, Circuit Judges; WISEMAN, District Judge.[*]



This appeal involves the review of a final decision by the United States Environmental Protection Agency (EPA) redesignating the status of the Cincinnati metropolitan area from "nonattainment" to "attainment" for ground-level ozone, and approving a clean air maintenance plan for the area. Marilyn Wall and Mike Fremont, residents of Ohio, filed suit to request that this court vacate the EPA's decision. The Sierra Club, an organization with 3,500 members living in the Ohio area, intervened in support of Wall and Fremont. For the reasons set forth below, weVACATE the EPA's action in redesignating the Cincinnati metropolitan area to attainment status for ground-level ozone, and REMAND for further proceedings consistent with this opinion.


A. Factual background

Ground-level ozone is a principal component of urban smog. See H.R. Rep. No.

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101-490, at 198 (1990). As a highly reactive chemical, ozone can create severe health problems such as "chest pains, shortness of breath, coughing, nausea, throat irritation, and increased susceptibility to respiratory infections," even when inhaled by healthy adults. Id. at 199. It is also extremely corrosive, causing metals to rust and paints to crack and fade. See id.

Pollution sources do not emit ozone directly. Instead, its precursors -- nitrogen oxides (NOx) and volatile organic compounds (VOCs) -- react to form ozone in the presence of sunlight. See id. at 202. These precursors, in turn, are emitted by sources such as motor vehicles, power plants, and industrial factories. Because ozone is often formed in large, stagnant air masses that drift from one region to another, air quality models are used to forecast the ozone levels that might result from a particular combination of precursor sources. See Ohio v. EPA, 784 F.2d 224, 228-29 (6th Cir. 1986).

B. Statutory and regulatory background

1. National ambient air quality standards

The 1970 Clean Air Act (CAA), 42 U.S.C. §§ 7401-7671q, as amended in 1977 and 1990, requires the EPA to establish national ambient air quality standards (NAAQS) for certain airborne pollutants, including ozone, as necessary to protect the public health and welfare. See CAA § 109, 42 U.S.C. §7409. Under the CAA, the EPA designates the status of various geographic areas as "attainment," "nonattainment," or "unclassifiable," depending on whether the area meets the NAAQS for a particular pollutant. See CAA § 107(d), 42 U.S.C. § 7407(d). More stringent air pollution control requirements apply to nonattainment areas than to attainment areas. See CAA §§171-86, 42 U.S.C. §§ 7501-15. Nonattainment areas for ozone are further classified as "marginal," "moderate," "serious," "severe," or "extreme," depending on the severity and persistence of the ozone problem. See CAA § 181(a) & (b)(2), 42 U.S.C. § 7511(a) & (b)(2).

Responsibility for meeting the NAAQS rests with the states. Under the CAA, each state must draft a State Implementation Plan (SIP) containing specific pollution control measures for each pollutant. See CAA § 110, 42 U.S.C. § 7410. The CAA specifies different deadlines by which marginal, moderate, serious, severe, and extreme ozone nonattainment areas must attain the NAAQS, as well as the programs that each state must adopt in its SIP to achieve such attainment. See CAA §§ 172, 181, 42 U.S.C. §§ 7502, 7511. Areas with more severe classifications are given more time to reach attainment, but are required to implement more stringent control measures. See CAA §§181(a)(1), 182, 42 U.S.C. §§ 7511, 7511a.

The EPA must review each submitted SIP and either approve or disapprove the plan within one year after the agency has determined that the state completed its SIP submission. See CAA §110(k)(2). If the EPA approves the SIP, either in whole or in part, then the approved provisions become federally enforceable. See CAA §§ 113, 304, 42 U.S.C. §§ 7413, 7604. But if the SIP is disapproved, then the state becomes subject to sanctions, see CAA § 179, 42 U.S.C. §7509, as well as to federally imposed clean air measures. See CAA §110(c).

2. Evaluation of whether an area has attained the ozone NAAQS

The EPA regulations that were promulgated in 1979 establish the applicable NAAQS for various pollutants and the

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methodology for determining whether an area has attained that standard. See 40 C.F.R. pt.50. Two types of NAAQS are set forth in the regulations: (1) national primary ambient air quality standards, which "define levels of air quality which the Administrator judges are necessary, with an adequate margin of safety, to protect the public health," and (2)national secondary ambient air quality standards, which "define levels of air quality which the Administrator judges necessary to protect the public welfare from any known or anticipated adverse effects of a pollutant." 40 C.F.R. pt. 50.2(b).

Section 50.9(a) of the regulations sets the primary standard for ozone at a concentration of 0.12 parts per million. Under this section, the ozone "standard is attained when the expected number of days per calendar year with maximum hourly average ozone concentrations above 0.12 parts per million . . . is equal to or less than 1, as determined by appendix H." 40 C.F.R. pt. 50.9(a). Appendix H, in turn, explains the methodology by which experimental results are converted into the expected number of days that the ozone standard would be exceeded. See 40 C.F.R. pt. 50, app. H. Because the methodology involves averaging a region's results over a three-year period for each monitoring site in the region, an area will attain the NAAQS only if, over the three-year period, each of its monitoring sites record three or fewer times during which the ozone concentration has exceeded the NAAQS. See id.

3. Requirements for ozone nonattainment areas

Part D of Subchapter I of the CAA provides specific pollution control requirements that apply only to nonattainment areas. In general, a SIP for an ozone nonattainment area must include measures to ensure the timely attainment and maintenance of the standard. See CAA §§110(a)(1) & (2)(A), 172(c), 182(b)(1). The SIP must also include provisions for the enforcement of the measures included in the SIP, see CAA § 110(a)(2)(C), as well as the commitment of adequate resources and legal authority to implement the enforcement measures. See CAA §110(a)(2)(E)(i).

For a moderate ozone nonattainment area, a SIP must include the following specific measures: (1) pollution limits that reflect the "reasonably available control technology" (RACT) for existing factories that emit VOCs, see CAA §§172(c)(1), 182(b)(2), and (2) procedures to ensure that state and local transportation plans and projects conform to the clean air plans. See CAA § 176(c)(4)(A), 42 U.S.C. §7506(c)(4)(A).

4. Requirements for the redesignation of an area from nonattainment to attainment

A state may request the EPA to redesignate an area from nonattainment to attainment status if that area has improved in air quality. See CAA § 107(d)(3)(D). After an area is so redesignated, it no longer need comply with the more stringent air pollution measures that apply only to nonattainment areas. Cf. CAA § 110(a)(2)(I) (requiring SIPs for nonattainment areas to meet the "applicable requirements of part D of this subchapter"). The responsibility, instead, is on the state to apply the enforcement provisions contained in its maintenance plan. See CAA § 175A(d), 42 U.S.C. §7505a(d) (requiring maintenance plans that are submitted with redesignation requests to include "such contingency provisions as the Administrator deems necessary to assure that the State will promptly correct any violation of the standard which occurs after the redesignation

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of the area as an attainment area.").

Five criteria must be met for an area to be redesignated from nonattainment to attainment status:

The Administrator may not promulgate a redesignation of a nonattainment area (or portion thereof) to attainment unless --

(i) the Administrator determines that the area has attained the national ambient air quality standard;

(ii) the Administrator has fully approved the applicable implementation plan for the area under section 7410(k) of this title;

(iii) the Administrator determines that the improvement in air quality is due to permanent and enforceable reductions in emissions resulting from implementation of the applicable implementation plan and applicable Federal air pollutant control regulations and other permanent and enforceable reductions;

(iv) the Administrator has fully approved a maintenance plan for the area as meeting the requirements of section 7505a of this title; and

(v) the State...

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