Ober v. U.S. E.P.A., 95-70352
| Decision Date | 14 May 1996 |
| Docket Number | No. 95-70352,95-70352 |
| Parties | , 26 Envtl. L. Rep. 21,157, 96 Cal. Daily Op. Serv. 3388, 96 Daily Journal D.A.R. 5531 Edward M. OBER; Robin D. Silver, Petitioners, v. UNITED STATES ENVIRONMENTAL PROTECTION AGENCY, Respondent. |
| Court | U.S. Court of Appeals — Ninth Circuit |
David Baron, Arizona Center for Law in the Public Interest, Tucson, Arizona, for petitioners.
Karen L. Egbert, Environmental Defense Section, United States Department of Justice, Washington, D.C., for respondents.
Alan Waltner, Law Offices of Alan Waltner, Oakland, California, for Amici Curiae.
Petition for Review of Final Action of the Environmental Protection Agency.
Before: SCHROEDER and TROTT, Circuit Judges, and REED, District Judge. *
OVERVIEW
This is a petition to review a final decision rendered by the Environmental Protection Agency (EPA) under the Clean Air Act. The EPA approved Arizona's State Implementation Plan (Implementation Plan or SIP) for the control of airborne particulate matter in Phoenix, determining that it complied with the requirements of the Clean Air Act and the guidelines promulgated thereunder. Petitioners, Phoenix residents adversely affected by excessive levels of airborne particulates, believe that the EPA's approval of Arizona's Implementation Plan violated the Clean Air Act and the Administrative Procedure Act. The American Lung Association and the American Lung Association of Arizona filed an amicus curiae brief in support of this petition. We grant the petition, vacate EPA's approval of the PM-10 Implementation Plan for Phoenix, and remand to EPA.
Pursuant to the Clean Air Act, the EPA identified particulate matter under ten microns in size (PM-10) as a criteria pollutant to be regulated under state and federal programs. The EPA promulgated the National Ambient Air Quality Standards (NAAQS) to specify the maximum permissible concentrations of the criteria pollutants in the ambient air. For PM-10, the EPA adopted two NAAQS, an annual standard and a 24-hour standard. See 40 C.F.R. § 50.6 (1994). 1 To ensure compliance with the NAAQS, each state must submit to the EPA an implementation plan that meets certain substantive requirements. See 42 U.S.C. § 7410. The EPA reviews each submitted implementation plan and approves or disapproves it. If approved in whole or in part, the approved provisions become federally enforceable. 42 U.S.C. § 7413. If disapproved, the state is subject to sanctions and the control measures of the Federal Implementation Plan. 42 U.S.C. §§ 7410(c), 7509.
When an area fails to meet the NAAQS, it is designated a "nonattainment area," and the Clean Air Act imposes additional requirements on implementation plans in those areas. For PM-10, the Clean Air Act classifies nonattainment areas as "moderate" or "serious." Under the 1990 Amendments, each PM-10 nonattainment area was initially classified as "moderate," with an attainment date no later than December 31, 1994. 42 U.S.C. § 7513(a), (c)(1).
In April 1992, EPA issued a General Preamble describing EPA's interpretation of the 1990 Amendments and review of implementation plans. 57 Fed.Reg. 13498 (April 16, 1992). States with moderate PM-10 nonattainment areas must submit implementation provisions including: 1) provisions to assure that the state will implement "reasonably available control measures" no later than December 10, 1993; 2) a demonstration that the plan will provide for attainment as expeditiously as practicable, but no later than December 31, 1994, OR a demonstration that attainment by that date is impracticable; and 3) qualitative milestones which are to be achieved every three years and which demonstrate "reasonable further progress" toward attainment by December 31, 1994. Id. at 13538-40; 42 U.S.C. §§ 7502(c), 7513a(a) & (c). The implementation plan must also provide "necessary assurances" of resources and of state responsibility for implementing the plan. 42 U.S.C. § 7410(2)(E).
If an area cannot practicably attain the NAAQS by the December 31, 1994 deadline, the EPA Administrator may reclassify it as a "serious" nonattainment area. 42 U.S.C. § 7513(b)(2). A "serious" nonattainment designation requires the state to submit additional plan provisions demonstrating the use of the "best available control measures" to reduce PM-10 emissions. 42 U.S.C. § 7513a(b)(1). The state must submit a revised implementation plan demonstrating attainment of the NAAQS in the "serious" nonattainment area as expeditiously as possible, but no later than December 31, 2001. 42 U.S.C. § 7513(c)(2).
The Clean Air Act provides for review by the court of appeals of the Administrator's action approving an implementation plan. 42 U.S.C. § 7607(b). The court may award the costs of litigation "whenever it determines that such an award is appropriate." 42 U.S.C. § 7607(f).
According to the American Lung Association, which filed an amicus curiae brief, the PM-10 pollution in the Phoenix area presents a serious health risk to asthmatic children and adults and to people with chronic lung disease. Pursuant to the 1990 Amendments to the Clean Air Act, the Phoenix area was originally designated a moderate nonattainment area for PM-10, with an attainment date of December 31, 1994. See 40 C.F.R. § 81.303 (1994). On July 28, 1994, the EPA proposed to approve Arizona's PM-10 Implementation Plan revision for Phoenix based on the EPA's preliminary finding that the State's submittal met the requirements of the Clean Air Act.
During the public comment period, EPA received comments from several groups, including Petitioners, protesting approval of the Implementation Plan. On April 10, 1995, EPA issued its final approval of the moderate PM-10 Final State Implementation Plan Revision for Phoenix. As a result of EPA's approval of Arizona's demonstration of the impracticability of attainment of the PM-10 annual standard, EPA proposed to reclassify Phoenix from a "moderate" to a "serious" nonattainment area for PM-10. 60 Fed.Reg. 30046 (June 7, 1995).
On May 1, 1995, Petitioners filed this timely petition for review asking this court to vacate EPA's approval and remand to EPA to disapprove the plan. Petitioners further request that they be awarded the costs of litigation, including reasonable attorney and expert witness fees.
The standard of review is whether EPA's actions were either (a) arbitrary, capricious, an abuse of discretion or contrary to law; or (b) in excess of statutory jurisdiction, authority, or limitations, or short of statutory right. Abramowitz v. United States Envtl. Protection Agency, 832 F.2d 1071, 1074-75 (9th Cir.1987). When the court reviews an agency's construction of a statute that is silent or ambiguous with respect to an issue, "the question for the court is whether the agency's answer is based on a permissible construction of the statute." Chevron U.S.A. v. Natural Resources Defense Council, 467 U.S. 837, 843, 104 S.Ct. 2778, 2782, 81 L.Ed.2d 694 (1984).
Petitioners argue that the EPA's approval of the Phoenix PM-10 Implementation Plan violated the Clean Air Act because the Implementation Plan: 1) failed to address the 24-hour standard; 2) failed to consider transportation control measures as presumptively "reasonably available control measures"; and 3) failed to provide adequate state assurances for implementation of the plan.
Arizona's Implementation Plan demonstrated the impracticability of attainment of the PM-10 annual standard by December 31, 1994, but did not separately address: 1) "reasonably available control measures" targeting the 24-hour standard; 2) attainment of or the impracticability of attainment of the 24-hour standard; or 3) "reasonable further progress" for the 24-hour standard. As a result, Petitioners contend that the Phoenix PM-10 Implementation Plan failed to comply with the mandates of the Clean Air Act, and that the EPA abused its discretion by approving a deficient implementation plan. The EPA, on the other hand, argues that Arizona's Implementation Plan did not need to separately address the 24-hour standard because the Phoenix area would be redesignated a "serious" nonattainment area for PM-10 unless the plan provided for attainment of both the annual and the 24-hour NAAQS.
To resolve the issue of whether the Clean Air Act requires a separate demonstration of attainment or the impracticability of attainment for the annual standard and the 24-hour standard, we must examine in detail the various statutory provisions concerning implementation plans. In the most general sense, the Clean Air Act requires that implementation plans provide for the attainment of the NAAQS. 42 U.S.C. § 7410(a)(1), (2)(C). All implementation plans must also "provide for the establishment and operation of appropriate devices, methods, systems and procedures necessary to ... monitor, compile, and analyze data on ambient air quality." 42 U.S.C. § 7410(a)(2)(B)(i). The attainment date for an area designated "nonattainment" for an air quality standard "shall be the date by which attainment can be achieved as expeditiously as practicable." 42 U.S.C. § 7502(a)(2)(A). Nonattainment area implementation plans must contain provisions that: 1) "provide for the implementation of all reasonably available control measures as expeditiously as practicable ... and ... provide for attainment of the national ambient air quality standards"; 2) "require reasonable further progress"; and 3) include "other control measures, means or techniques ... as well as schedules and timetables for compliance, as may be necessary and appropriate to provide for attainment of such standard in such area by the applicable attainment date specified in this part." 42 U.S.C. § 7502(c)(1), (2), (6).
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