State of Ariz. v. Thomas, 86-7693
| Citation | 829 F.2d 834 |
| Decision Date | 02 October 1987 |
| Docket Number | No. 86-7693,86-7693 |
| Parties | , 18 Envtl. L. Rep. 20,017 STATE OF ARIZONA, Petitioner, v. Lee M. THOMAS, Administrator, U.S. Environmental Protection Agency, Respondent. |
| Court | United States Courts of Appeals. United States Court of Appeals (9th Circuit) |
Paige Murphy-Young, Phoenix, Ariz., for petitioner.
David W. Zugschwerdt, Washington, D.C., for respondent.
Howard J. Hoffman, Washington, D.C., for the EPA.
Petition for Review of Environmental Protection Agency Decision.
Before SCHROEDER and POOLE, Circuit Judges, and SMITH, * District Judge.
The State of Arizona petitions this court pursuant to 42 U.S.C. Sec. 7607(b)(1) to set aside the action taken by the Administrator of the Environmental Protection Agency (Administrator) in disapproving Arizona's Clean Air Act implementation plans and imposing mandatory sanctions on construction of new carbon monoxide pollution sources. The EPA took the action pursuant to section 7410(a)(2) of the Act which gives it authority to approve and disapprove plans, and pursuant to section 7506(a) which mandates sanctions in case of disapproval. The EPA found that Arizona had failed to produce a plan which would demonstrate timely attainment of the air quality standard for carbon monoxide.
In this litigation Arizona does not dispute the underlying EPA findings, as required by section 7506(a), that the state had not submitted an implementation plan meeting the statutory requirements and that it had failed to make reasonable efforts toward submitting such an implementation plan. Rather, Arizona argues that by virtue of certain language in EPA regulations, the EPA was required as a matter of law to treat Arizona as if it had been implementing a fully-approved plan. Arizona argues that the required administrative response in this circumstance was to require the state to submit a new plan. The record in this case reflects dealings between the State of Arizona and the EPA over a course of eight years during which both sides knew that no satisfactory plan had ever been submitted. Arizona's position therefore cannot be sustained. We uphold the decision of the Administrator.
The Clean Air Act requires each state to submit a State Implementation Plan (SIP) to the Administrator of the EPA for review and approval. 42 U.S.C. Sec. 7410(a)(1). The SIP is the state's plan for reducing the levels of certain air pollutants in the ambient air to those prescribed by the National Ambient Air Quality Standards (NAAQS). 1 42 U.S.C. Sec. 7409(a), 7410(a)(2)(B). The Administrator must approve a SIP if it meets the criteria set forth in 42 U.S.C. Sec. 7410(a)(2)(A)-(H).
Because many states failed to attain the NAAQS by the target date of 1975, Congress amended the Clean Air Act in 1977 by adding Part D to Title I of the Act. 42 U.S.C. Sec. 7501-08. Part D applies only to areas that have yet to attain the NAAQS (nonattainment areas). 2 Under Part D these nonattainment areas must adopt and submit, by January 1, 1979, SIP revisions (1979 SIPs) to the Administrator for his review and approval. The 1979 SIPs were to provide for attainment of most of the NAAQS not later than December 31, 1982, and for implementation of all reasonably available control measures as expeditiously Part D contains a separate attainment deadline applicable only to carbon monoxide (CO) and ozone nonattainment areas. 42 U.S.C. Sec. 7502(a)(2). Section 7502(a)(2) provides that a 1979 SIP fulfills the requirements of Part D "if the state demonstrates to the satisfaction of the Administrator ... that [NAAQS] attainment is not possible in an area with respect to either or both [CO and ozone] within the period prior to December 31, 1982, despite the implementation of all reasonably available measures." The provision further requires the state to submit another revised SIP (an extension SIP) to "provide for the attainment" of the NAAQS as expeditiously as practicable, but not later than December 31, 1987.
as possible. 3 42 U.S.C. Secs. 7502(a)(1) and (b)(2). Any state that did not have an approved SIP providing for primary NAAQS attainment not later than the end of 1982 was subject to a moratorium on the construction of new "major stationary sources" of pollution and on the "major modification" of existing major sources in nonattainment areas. 42 U.S.C. Sec. 7410(a)(2)(I)
Thus under Part D of the statute, states were required to submit SIPs which provided for attainment of carbon monoxide and ozone standards by 1987 and all others by 1982. In addition, Part D provides that where the EPA Administrator finds that a state has not submitted, or is not making reasonable efforts to submit, an approvable 1979 SIP or Extension SIP, the Administrator must impose cutoff of federal highway construction and Clean Air Act implementation grants. 42 U.S.C. Sec. 7506(a).
On February 3, 1983, the EPA issued a rulemaking proposal relating to implementation of Part D. 48 Fed.Reg. 4972-5021. The first rulemaking proposal sought to impose the construction ban on nonattainment areas that had failed to attain the NAAQS by December 31, 1982. This sanction was originally to apply even to those areas that had fulfilled their Part D planning obligations and possessed fully-approved SIPs. 4
In November 1983 the EPA revised its February 3 proposal in response to widespread objections by the states and Congress. 48 Fed.Reg. 50686-50697 (Nov. 2, 1983). Essentially, EPA retracted its proposal to impose automatic construction bans on those areas with fully-approved SIPs that failed actually to attain NAAQS. Id. at 50690-91. EPA was persuaded that section 7410(a)(2)(I) and Part D "were intended to produce revised plans that appeared to 'provide for' attainment by the 1982 or 1987 deadlines," not to guarantee actual attainment in fact. Id. at 50691. SIPs are planning documents. Thus, the result of the EPA's final revised rulemaking was to exclude from the automatic construction ban sanction any area that fulfilled its planning obligations (as evidenced by a fully-approved SIP), but failed to attain the NAAQS by the end of 1982. Id. The proper EPA response to implementation failures (i.e., failures to attain the NAAQS) is the "SIP call." Id. at 50693. A SIP call is simply a request by EPA to the nonattainment state to submit a revised SIP detailing a plan for attainment in accordance with the Clean Air Act.
The essence of Arizona's position in this case is that under the final 1983 rulemaking, the EPA should have treated Arizona as if it had fulfilled all of its existing planning obligations. The record of administrative proceedings demonstrates that this position is not sustainable.
Arizona's two urban counties are Maricopa (Phoenix) and Pima (Tucson). Both were nonattainment areas at the time of passage of the 1977 amendments, and thus both were subject to the provisions of Part D. The administrative history for both follows roughly parallel tracks. A more detailed chronology is set forth in the margin. 5 What follows here is a capsule summary of key events.
Both Maricopa and Pima counties were designated as nonattainment areas in 1978 and the state of Arizona subsequently submitted a 1979 SIP for both. In the summer and fall of 1980, the EPA proposed conditional approval of the SIPs pending cure of certain deficiencies unrelated to the carbon monoxide and ozone attainment standards. Soon after that announcement (within eight days in the case of Maricopa County) the state asked for an extension to meet the CO standards. It was apparent that the 1979 SIP would not produce the desired result by 1982.
In this petition for review of the Agency disapproval of the plans, Arizona does not ask us to address the scientific merits of the Administrator's decision. The noncompliance of its plans with required standards is assumed. Arizona's position, in a nutshell, is that by virtue of the EPA's original conditional approval of the plans and the apparent fulfillment by the state of those particular conditions, the state should be regarded as having actually submitted plans which appeared to meet all requirements of the Act. It asks us to ignore the actual history, which shows that from 1980 on, Arizona and the EPA knew that the plans were deficient in the area of CO attainment.
Arizona's argument is based upon the language of EPA's policy promulgated in November of 1983 to implement Part D of the Clean Air Act. As discussed earlier, in that policy the EPA relaxed its previously announced approach to states which had submitted plans which appeared to meet the requirements but in fact did not do so. It said that "where a fully approved Part D plan failed to bring about attainment by the end of 1982, EPA will treat the plan as 'substantially inadequate' ... and call for a SIP revision." 48 Fed.Reg. 50693. EPA announced that it would not treat the plans as having been disapproved and thereby trigger the automatic sanctions.
Arizona, of course, never had plans for Maricopa and Pima counties which appeared to meet all the requirements, much less plans which had been fully approved. Arizona nevertheless argues that it should be subject to a new SIP call as if it submitted a satisfactory plan. Because the EPA at one point announced conditional approval of Arizona's plans, Arizona looks to a small paragraph of the policy referring to areas with conditionally-approved plans. That paragraph states:
Many areas with conditionally approved plans also failed to attain by the end of 1982. Fulfilling the condition may not be enough to bring about attainment as expeditiously as practicable. These areas will need to submit further plan revisions following the guidelines above for areas that failed to attain.
Arizona correctly points out that the "guidelines"...
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