273 F.3d 1146 (9th Cir. 2001), 99-70853, Hall v United States EPA

Docket Nº:99-70853
Citation:273 F.3d 1146
Case Date:August 29, 2001
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit

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273 F.3d 1146 (9th Cir. 2001)

ROBERT W. HALL, Petitioner,



No. 99-70853

United States Court of Appeals, Ninth Circuit

August 29, 2001

Submission Withdrawn May 11, 2001. Submitted Jan. 8, 2001.[1]

Submission Withdrawn May 11, 2001.

Resubmitted, August 22, 2001

Amended Dec. 11, 2001.

NOTE: SEE OPINION AT 263 F.3d 926.

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Andrew M. Mergen, Stephen M. McFarlane, Steve Herm, and Kathryn E. Kovacs, Dep't of Justice, Washington, D.C., for the respondent.

Robert W. Hall, Las Vegas, Nevada, petitioner, Pro se.

Petition to Review a Final Action of the Environmental Protection Agency. EPA No. Clean Air Act 40 CFR.

Before: Goodwin, Graber, and Paez, Circuit Judges.


PAEZ, Circuit Judge.

The Petition for Panel Rehearing or Clarification is DENIED.

The opinion filed August 29, 2001, is hereby AMENDED as follows:

1. On page 11797 of the slip opinion, the phrase" Lacking 'force of law, '"is deleted, and the word" interpretations" is capitalized. After "SIP ....")." and before "Interpretations" the following text and footnote is inserted: "This statement makes it clear that the SIP's reach extends only to those it directly regulates, 5 and does not have "force of law" constituting binding precedent for future SIP revisions."

2. On page 11797 of the slip opinion, the following footnote number 5 is inserted: "5 The EPA, a State, or a citizen may seek

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enforcement of the SIP's provisions in various venues. 42 U.S.C. §§ 7413, 7604; see Friends of the Earth v. Carey, 535 F.2d 165, 173 (2nd Cir. 1976); Ohio Envtl. Council v. U.S. Dist. Ct., S. Dist. of Ohio, E. Div., 565 F.2d 393, 396 (6th Cir. 1977); Kamp v. Hernandez, 752 F.2d 1444, 1454-55 (9th Cir. 1985)."

3. On page 11798 of the slip opinion, the following footnote number 6 is added at the end of Part II(A)(1) after" advocating this interpretation": "6 The present case is distinguishable from Exxon Mobil Corp. v. EPA, 217 F.3d 1246 (9th Cir. 2000), in two significant respects. First, our decision in Exxon predated the Supreme Court's decision in Mead; to the extent that the analyses differ, Mead controls. Second, the present case is distinguishable from Exxon. In Exxon, the EPA had issued a final rule carefully explaining its interpretation of section 211(m) of the Clean Air Act. 217 F.3d at 1248-49. Here, by contrast, the EPA has never undertaken to explain its interpretation of section 110(l) of the Clean Air Act, affording us no basis to understand the EPA's reasoning or to assess its exegesis of the statutory text."


PAEZ, Circuit Judge:

In this pro se petition for review, Robert Hall raises procedural and substantive challenges to the Environmental Protection Agency's ("EPA") approval of a revision to the air quality plan adopted by Clark County, Nevada,2 which modifies existing rules for new stationary sources seeking permits to emit pollutants in Clark County. The most significant issue that Hall raises is whether the EPA adequately assessed Clark County's prospects, under its revised air quality plan, of meeting the Clean Air Act's ("CAA" or "Act") requirements concerning attainment of federally-established air quality standards. The statutory basis for this claim is the Act's requirement that the EPA determine whether air quality plan revisions will "interfere" with attainment requirements. See CAA § 110(l), 42 U.S.C. § 7410(l).

Although we reject Hall's procedural challenges, we conclude that the EPA's interpretation of its review responsibility under § 110(l) is not consistent with the Act. The EPA argues that, so long as a revision to an air quality plan does not relax existing pollution control measures, there necessarily will be no interference with attainment requirements. The EPA concluded that the revisions at issue here did not relax the preexisting rules; and so, without further inquiry, the EPA made a determination of "non-interference." This truncated analysis --which, as the EPA admits, at most assures that the rules as revised will not "exacerbate the existing situation"--does not fulfill the EPA's responsibility under § 110(l). That provision requires the EPA to evaluate whether the plan as revised will achieve the pollution reductions required under the Act, and the absence of exacerbation of the existing situation does not assure this result. We therefore remand this matter to the EPA for further consideration.



A. Clean Air Act

The Act creates a framework for the "development of cooperative Federal, State, regional, and local programs to prevent

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and control air pollution." CAA § 101(a)(4), 42 U.S.C. § 7401(a)(4). Pursuant to § 109(b)(1) of the Act, the EPA sets National Ambient Air Quality Standards ("NAAQS"), "the attainment and maintenance of which ... are requisite to protect the public health." 42 U.S.C. § 7409(b)(1). In 1971, the EPA promulgated NAAQS for six criteria pollutants, including--as relevant for our purposes--particulate matter, carbon monoxide, and ozone. 36 Fed. Reg. 8186 (1971); 40 C.F.R. pt. 50.

Each State must submit a State Implementation Plan ("SIP") that "specifies the manner in which [NAAQS] will be achieved and maintained within each air quality control region" in the State. CAA § 107(a), 42 U.S.C. § 7407(a). As summarized by the EPA, "the purposes of a SIP ... are to make demonstrations (of how attainment, maintenance, and progress will be achieved) and to provide a control strategy that will achieve the necessary reductions and otherwise meet the requirements of the Act." State Implementation Plans; General Preamble for the Implementation of Title I of the Clean Air Act Amendments of 1990, 57 Fed. Reg. 13,498, 13,567 (Apr. 16, 1992) (hereinafter SIP Preamble for 1990 Amendments). By virtue of the States' roles in devising a strategy and adopting an implementation plan, the Supreme Court has emphasized that "it is to the States that the Act assigns initial and primary responsibility for deciding what emissions reductions will be required from which sources." Whitman v. Am. Trucking Ass'ns, 531 U.S. 457,470-72, 121 S.Ct. 903, 911, 149 L.Ed. 2d 1 (2001).

There are exceptions to that primary responsibility of the States. At least since the 1970 Clean Air Act Amendments ("1970 Amendments"), the Act has required the States to regulate certain sources of emissions, including, for example, new stationary sources and automobiles, and has established a floor of minimum emissions control standards for such sources, below which the SIPs cannot go. See Train v. NRDC, 421 U.S. 60, 79 n.16, 43 L.Ed. 2d 731, 95 S.Ct. 1470 (1975).

State SIPs are subject to EPA review and, if inadequate, disapproval. CAA § 110(l), 42 U.S.C. § 7410(l). "The requirement that the States ... submit [SIPs] to EPA for review allows for federal oversight of the States' efforts to achieve and maintain the required level of air quality." S. Rep. No. 101-228, at 9, 1990 U.S.C.C.A.N. 3385, 3395.

B. Pre-1990 Statutory Deadlines for Nonattainment Areas

In the 1970 Amendments, Congress required the States to achieve attainment of NAAQS by 1975. See S. Rep. No. 101-228, at 10 (1989), 1990 U.S.C.C.A.N. 3385, 3396-97. In the 1977 Clean Air Act Amendments ("1977 Amendments"), those deadlines gave way to a new 1982 deadline, with the possibility of extensions until 1987 for certain pollutants. See General Preamble for Proposed Rulemaking on Approval of State Implementation Plan Revisions for Nonattainment Areas, 44 Fed. Reg. 20,372, 20,375 (Apr. 4, 1979) [hereinafter SIP Preamble for 1977 Amendments]. In 1989, based on perceived "widespread failure" to meet air quality standards, Congress again considered amendments to the Act. S. Rep. No. 101-228, at 11, 1990 U.S.C.C.A.N. at 3396-97.

C. 1990 Amendments.

The resulting Clean Air Act Amendments of 1990 ("1990 Amendments") established a new set of attainment deadlines. In general, the 1990 Amendments contemplated that less serious nonattainment areas would attain NAAQS within five years of enactment and that more serious nonattainment

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areas would have 10 years to attain NAAQS. See, e.g., CAA § 172(a)(2)(A), 42 U.S.C. § 7502(a)(2)(A) (setting default five-and 10-year attainment deadlines); CAA § 186(a)(1), 42 U.S.C. § 7512(a)(1) (setting 1995 and 2000 deadlines for attainment of carbon monoxide NAAQS); CAA § 188(c), 42 U.S.C. § 7513(c) (setting various attainment dates for areas in moderate and serious nonattainment for PM-10, with an outside deadline of December 31, 2001, for serious nonattainment areas). In addition, the 1990 Amendments modified the statutory minimum emission controls, including the minimum emission controls for new stationary sources. See, e.g., S. Rep. No. 101-228, at 24-25, 1990 U.S.C.C.A.N. at 3410-11.

The 1990 Amendments also established an elaborate time-table for States to submit various new planning documents to the EPA, revisions to the pollution control requirements of existing SIPs, and demonstrations of interim progress and, ultimately, attainment.3 As summarized by the Senate Report: "The emphasis in the bill ... is not on the deadlines but on what happens in the period before deadlines." S. Rep. No. 101-228, at 12-13, 1990 U.S.C.C.A.N. at 3398-99. "The nonattainment provisions of the bill are designed ... to require regular and monitored progress toward attainment ...." Id.

D. Clark County's New Source Review Program Revisions

At the time of enactment of the 1990 Amendments, Clark County's new source review...

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