Kentucky Resources Council, Inc. v. E.P.A.

• Decision Date: 20 October 2006
• Docket Number: No. 05-4349.,05-4349.
• Citation: 467 F.3d 986
• Parties: KENTUCKY RESOURCES COUNCIL, INC., Petitioner, v. ENVIRONMENTAL PROTECTION AGENCY, Respondent.
• Court: U.S. Court of Appeals — Sixth Circuit

467 F.3d 986

KENTUCKY RESOURCES COUNCIL, INC., Petitioner, v. ENVIRONMENTAL PROTECTION AGENCY, Respondent.

No. 05-4349.

United States Court of Appeals, Sixth Circuit.

Argued: September 12, 2006.

Decided and Filed: October 20, 2006.

ARGUED:

Thomas J. FitzGerald, Kentucky Resources Council, Frankfort, Kentucky, for Petitioner. David A. Carson, United States Department of Justice, Denver, Colorado, for Respondent.

ON BRIEF:

Thomas J. FitzGerald, Kentucky Resources Council, Frankfort, Kentucky, for Petitioner. David A. Carson, United States Department of Justice, Denver, Colorado, for Respondent.

Before COOK and McKEAGUE, Circuit Judges; WILHOIT, District Judge.^*

OPINION

WILHOIT, District Judge.

Petitioner, Kentucky Resources Council, seeks review of the EPA Administrator's final rulemaking action approving revisions to the Kentucky State Implementation Plan ("SIP"). Under the revisions, Kentucky was allowed to move its vehicle inspection and maintenance ("I/M") program for three Northern Kentucky counties from the active or "regulatory" portion of its SIP under the Clean Air Act to the contingency measures portion of the Kentucky SIP. Because we find the EPA's action is entitled to deference, we affirm.

I.

A. Statutory and Regulatory Background

Enacted in 1970 and substantially amended in 1977 and 1990, the Clean Air Act ("CAA") establishes a comprehensive program for controlling and improving the nation's air quality through a combination of state and federal regulation. CAA § 101(a)(4), 42 U.S.C. § 7401(a)(4)(2006). Title I of the CAA charges the EPA with the responsibility of identifying air pollutants that endanger the public health and welfare, and with formulating the National Ambient Air Quality Standards ("NAAQS") that establish maximum permissible concentrations of those pollutants in the outside or "ambient" air. 42 U.S.C. §§ 7408-7409. The EPA has established NAAQS for six pollutants, including ozone. See 40 C.F.R. § 50 (2006). With regard to ozone, the EPA promulgated a 1-hour ozone standard in 1979, at a concentration of 0.12 parts per million, measured over a 1-hour period. See 40 C.F.R. § 50.9. The ozone standard was revised in 1997 to a standard of 0.08 parts per million measured over an 8-hour period. See 40 C.F.R. § 50.10. The 8-hour standard applies throughout the nation, including the Northern Kentucky area. Id.

Pursuant to the Act, as amended in 1990, the EPA designated areas of the country as "attainment" or "nonattainment," depending upon whether or not they met the NAAQS for a particular pollutant, or "unclassifiable" if there was insufficient information available to classify an area. See 42 U.S.C. § 7407(d). Under the 1990 Amendments, ozone nonattainment areas are further classified as "marginal," "moderate," "serious," "severe," or "extreme" depending on the severity of the ozone problem. 42 U.S.C. § 7511(a)(1). Air quality planning requirements increase cumulatively as the severity of the classification increases. 42 U.S.C. §§ 7511-7511f. Included among those requirements is the obligation to adopt and implement either a "basic" or an "enhanced" I/M program, depending upon the population of the area and its specific nonattainment designation.

Under 42 U.S.C. § 7407(a), each state has primary responsibility for ensuring that the ambient air meets the NAAQS for the identified pollutants. This responsibility includes the requirement that the states submit legally enforceable State Implementation Plans ("SIPs"). The SIPs and any revisions thereto must be adopted by the State after reasonable notice and public hearing. 42 U.S.C. § 7410(a)(1). Each SIP must comply with the various substantive requirements set forth in 42 U.S.C. § 7410(a)(2).¹ The EPA reviews each proposed SIP, and a SIP becomes federally enforceable once it is approved by the EPA. The Kentucky SIP is codified at 40 C.F.R. §§ 52.920-52.939.

For all nonattainment areas, a state must submit an attainment demonstration to show that the area will achieve the NAAQS by no later than the area's statutory attainment deadline. See 42 U.S.C. §§ 7511-7511f (attainment demonstrations); 42 U.S.C. § 7502(c)(1) (attainment dates). The attainment demonstration must include an emission control strategy, which includes "enforceable emission limitations, and other such control measures, means or techniques ... as well as schedules and timetables for compliance, as may be necessary or appropriate to provide for attainment of such standard in such area by the applicable attainment date." 42 U.S.C. § 7502(c)(6). When a previously designated nonattainment area can demonstrate to the agency that it has met the NAAQS and certain other criteria, it may be redesignated to "attainment." 42 U.S.C. § 7407(d)(3)(E). As part of the requirements for redesignation to attainment, the Act requires the state to submit and implement a "maintenance plan" that includes those regulatory programs that will be placed or remain in effect in the area to maintain continuing attainment. 42 U.S.C. § 7505a.

SIPs for areas that have been redesignated to attainment also must contain EPA-approved contingency measures to assure prompt correction of any violation of the standard that may occur following redesignation. 42 U.S.C. § 7505a(d). The SIP's contingency provisions must include a requirement that the State will implement all control measures for the NAAQS of concern that were contained in the SIP prior to redesignation to attainment status. This means that such contingency measures would only take effect if the area has a violation of the standard after being redesignated to attainment. Id.

The EPA is charged with the responsibility of reviewing and adopting SIPs. See 42 U.S.C. § 7410(k). Within 12 months after the state submission is found to be complete, either by EPA or by operation of law due to the passage of time, the EPA is required to act on the submission. If the EPA determines that the SIP is complete, "the Administrator shall approve" the SIP within 12 months of such determination "if it meets all of the applicable requirements" of the Act. 42 U.S.C § 7410(k)(2), (3). If the EPA determines that the submitted SIP does not meet the statutory requirements, it can issue a conditional approval, a partial approval and disapproval, or a full disapproval. 42 U.S.C. § 7410(k)(3), (4). Finally, the CAA contains an "anti-backsliding" provision, which prohibits the EPA from approving any revision to a SIP "if the revision would interfere with any applicable requirement concerning attainment and reasonable further progress .... or any other applicable requirement of this chapter." 42 U.S.C. § 7410(l).

As discussed above, the EPA revised the 1-hour standard for ozone in 1997 to a new value of 0.08 parts per million to be measured over an 8-hour period. See 40 C.F.R. § 50.10. On April 30, 2004, the EPA published a final rule containing air quality designations and classifications for every area in the United States under the new 8-hour ozone NAAQS. See 40 C.F.R. Part 80. The rule went into effect on June 15, 2004. 69 Fed.Reg. 23,858 (April 30, 2004). Additionally, the EPA adopted provisions for implementation of the 8-hour standard which specifically guide the transition of areas from the 1-hour NAAQS to the 8-hour NAAQS. See 40 C.F.R. § 51.905.

40 C.F.R. § 51.905 sets forth specific requirements for the transition to the new 8-hour standard for areas based upon their designations under both the old and new standards. For areas, like Northern Kentucky, designated as "nonattainment" for the 8-hour NAAQS and "maintenance" for the 1-hour NAAQS, the regulation requires the following:

An area designated nonattainment for the 8-hour NAAQS that is a maintenance area for the 1-hour NAAQS at the time of designation for the 8-hour NAAQS for that area remains subject to the obligation to implement the applicable requirements as defined in § 51.900(f) to the extent such obligations are required by the approved SIP except as provided in paragraph (b) of this section. Applicable measures in the SIP must continue to be implemented; however, if these measures were shifted to contingency measures prior to designation for the 8-hour NAAQS for the area, they may remain as contingency measures, unless the measures are required to be implemented by the CAA by virtue of the area's requirements under the 8-hour NAAQS. The State may not remove such measures from the SIP.

40 C.F.R. § 51.905(a)(2).

The exception mentioned in the above provision refers to subsection b, which provides:

A State remains subject to the obligations under paragraphs (a)(1)(i) and (a)(2) of this section until the area attains the 8-hour NAAQS. After the area attains the 8-hour NAAQS, the State may request such obligations be shifted to contingency measures, consistent with sections 110(l) and 193 of the CAA; however, the State cannot remove the obligations from the SIP.

40 C.F.R. § 51.905(b).

B. The Northern Kentucky Situation

The Northern Kentucky Area is presently designated as nonattainment for the 8-hour NAAQS and is a maintenance area for the 1-hour NAAQS as of the time of promulgation of the 8-hour NAAQS. Prior to the revisions presently at issue, Kentucky's SIP contained a basic I/M program for the Northern Kentucky Area. 70 Fed. Reg. 17,029, 17,030 (April 4, 2005). This was a basic I/M program that resulted in emissions reductions 9f nitrogen oxides ("NOx"), volatile organic compounds ("VOCs") and carbon monoxide ("CO").² Id. The I/M program was originally required under the 1990 CAA amendments because the Northern Kentucky Area had been designated as a moderate nonattainment area for the 1-hour ozone standard. See 42 U.S.C. § 7511 a(b)(2). However, effective August 30, 2002, the area was redesignated to attainment for the 1-hour NAAQS. See 67 Fed.Reg. 49,600 (July 31, 2002).

Kentucky has an approved maintenance plan under 42 U.S.C. § 7505a for the Northern Kentucky Area, and the area is...