Sierra Club v. U.S. E.P.A., 95-9541

• Decision Date: 13 November 1996
• Docket Number: No. 95-9541,95-9541
• Citation: 99 F.3d 1551
• Parties: , 65 USLW 2384, 27 Envtl. L. Rep. 20,458 SIERRA CLUB; Wasatch Clean Air Coalition, Petitioners, v. UNITED STATES ENVIRONMENTAL PROTECTION AGENCY, Respondent, State of Utah, Intervenor.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 1551

99 F.3d 1551

44 ERC 1033, 65 USLW 2384, 27 Envtl.

L. Rep. 20,458

SIERRA CLUB; Wasatch Clean Air Coalition, Petitioners, v. UNITED STATES ENVIRONMENTAL PROTECTION AGENCY, Respondent, State of Utah, Intervenor.

No. 95-9541.

United States Court of Appeals, Tenth Circuit.

Nov. 13, 1996.

Munir R. Meghjee (Robert B. Wiygul, Sierra Club Legal Defense Fund, Denver, CO, and Robert W. Adler, Salt Lake City, UT, with him on the briefs), Sierra Club Legal Defense Fund, Denver, CO, for Petitioners.

David A. Carson, (Lois J. Schiffer, Assistant Attorney General, Environment & Natural

Resources Division; Kevin W. McLean and Kendra H. Sagoff, Office of General Counsel, United States Environmental Protection Agency, Washington, DC; Jonah M. Staller, Office of Regional Counsel, United States Environmental Protection Agency, Denver, CO, with him on the brief), United States Department of Justice, Environment & Natural Resources Division, Denver, CO, for Respondent.

Fred G. Nelson (Jan Graham, Attorney General; Denise Chancellor, Assistant Attorney General, with him on the brief), Assistant Attorney General, Salt Lake City, UT, for Intervenor.

Before BRORBY, GODBOLD ^* and McWILLIAMS, Circuit Judges.

BRORBY, Circuit Judge.

The Sierra Club and Wasatch Clean Air Coalition ("Petitioners") seek judicial review of a final agency action in accordance with the Clean Air Act (the "Act"), 42 U.S.C. § 7607(b)(1) (1994). Specifically, Petitioners challenge the Environmental Protection Agency's decision to exempt Salt Lake and Davis Counties, Utah (the "Counties") from selected Clean Air Act "nonattainment area" requirements without first redesignating the Counties as an "attainment area" pursuant to 42 U.S.C. § 7407(d)(3)(E)(i)-(v) (1994). Petitioners contend the Environmental Protection Agency's decision is unreasonable and contrary to the plain meaning of the Clean Air Act, and therefore must be set aside under both the first and second steps of Chevron USA, Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984).

Having thoroughly reviewed the administrative record and considered the parties' arguments, we uphold the Environmental Protection Agency's Clean Air Act interpretation and deny the Petitioners' request to set aside the Environmental Protection Agency's July 18, 1995 final decision entitled "Determination of Attainment of Ozone Standard for Salt Lake and Davis Counties, Utah, and Determination Regarding Applicability of Certain Reasonable Further Progress and Attainment Demonstration Requirements."

NATURE OF THE CASE

The Clean Air Act, 42 U.S.C. §§ 7401--7671q (1994) establishes a program, jointly administered by the federal government and the states, to "protect and enhance the quality of the Nation's air resources so as to promote the public health and welfare and productive capacity of its population." 42 U.S.C. § 7401(b)(1). Toward that end, the Act requires the Environmental Protection Agency to establish primary and secondary National Ambient Air Quality Standards for certain pollutants such as ozone. ¹ Pursuant to the Act, areas failing to meet the National Ambient Air Quality Standard for ozone are designated as "nonattainment" areas, which must develop a State Implementation Plan with sufficient control measures to attain and maintain the ozone standard. 42 U.S.C. § 7410.

In 1977, Salt Lake and Davis Counties, Utah, failed to meet the National Ambient Air Quality Standards for ozone. Accordingly, the Counties were designated as a nonattainment area and submitted a State Implementation Plan to the Environmental Protection Agency. Amendments to the Clean Air Act in 1990, which further classified ozone nonattainment areas according to the severity of air pollution (e.g., marginal, moderate, serious, severe, and extreme), 42 U.S.C. § 7511, resulted in the Counties being reclassified as a "moderate nonattainment area." 40 C.F.R. § 81.345 (1995). Moderate nonattainment areas are subject to the requirement of 42 U.S.C. §§ 7511a(b)(1)(A)(i) and 7502(c)(9). Section 7511a(b)(1)(A)(i), ² referred to as the "fifteen By the end of summer 1992 the Counties had collected the requisite three years of ambient monitoring data to demonstrate attainment of the ozone standard. In fact, the data demonstrates the Counties have attained the ozone standard since 1991. ³ Accordingly, in 1993, the State of Utah submitted an application to the Environmental Protection Agency requesting that Salt Lake and Davis Counties be redesignated as an "attainment" area pursuant to 42 U.S.C. § 7407(d)(3). The Environmental Protection Agency and the State of Utah continue to work toward the completion of the redesignation process.

percent reasonable further progress plan" and the "attainment demonstration" provision, requires moderate nonattainment areas to continue "reasonable further progress" toward attaining National Ambient Air Quality Standards. This goal is achieved by requiring the area to submit a plan providing for a fifteen percent reduction in volatile organic compounds. Additionally, § 7511a(b)(1)(A)(i) requires the submitted plan provide for such specific annual emission reductions sufficient to demonstrate the area will attain the National Ambient Air Quality Standards by the statutory deadline. Section 7502(c)(9) provides further future compliance assurance by requiring moderate and other nonattainment areas to submit a plan with specific "contingency measures" to be implemented if the area fails to attain, or fails to make reasonable further progress toward attaining, the National Ambient Air Quality standards by the statutory deadline.

Pending completion of the redesignation process, and based on air quality data collected from 1992 to 1994, the Environmental Protection Agency issued a direct final rule and a final rule, ⁴ which is the basis of Petitioners' challenge. 60 Fed.Reg. 30,217 (1995) (proposed rule); 60 Fed.Reg. 30,189 (direct final rule).

In its final rule, without redesignating the area as an attainment area, the Environmental Protection Agency determined that because the Counties had attained the National Ambient Air Quality Standards the "fifteen percent reasonable further progress plan" and the "attainment demonstration" requirements of § 7511a(b)(1)(A)(i) and the "contingency measures" requirement of § 7502(c)(9) were inapplicable. 60 Fed.Reg. at 36,723. In addition, the State of Utah would not be subject to Clean Air Act sanctions for failure to submit plan revisions addressing these requirements. ⁵ Petitioners challenge this final

rule, asserting that the fifteen percent reasonable further progress plan, attainment demonstration, and contingency measures requirements are mandatory absent formal redesignation to attainment area status.

ANALYSIS

The issue for our determination is whether the Environmental Protection Agency correctly determined that 42 U.S.C. §§ 7502(c)(9) and 7511a(b)(1)(A)(i), do not apply to areas which are attaining the ozone standard, but which have not yet been redesignated as attainment areas. This Court will set aside the Environmental Protection Agency's determination only if it is arbitrary, capricious, or otherwise not in accordance with law. 5 U.S.C. § 706(2)(A) (1994). Where, as here, the issue turns on the Environmental Protection Agency's interpretation of a statute it administers, our analysis is dictated by Chevron USA, Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984). Applying Chevron, we first determine whether the statute is unambiguous--i.e., whether Congress directly has spoken to the precise question at issue. Chevron, 467 U.S. at 842-43, 104 S.Ct. at 2781-82; Marshall v. Chater, 75 F.3d 1421, 1428 (10th Cir.1996). If congressional intent is clear, we must give effect to that intent. If, however, the statute is ambiguous or silent on the issue in question, we must proceed to the second step of the Chevron analysis and determine whether the agency's determination is based on a permissible construction of the statute. If the agency's construction is reasonable, we will defer to the agency's interpretation. Chevron, 467 U.S. at 842-44, 104 S.Ct. at 2781-83; Marshall, 75 F.3d at 1428.

A. Plain Language

Petitioners first contend the Environmental Protection Agency's final rule exempting the Counties from the fifteen percent volatile organic compound reduction, attainment demonstration and contingency measures requirements is contrary to the plain meaning of the Clean Air Act and must be set aside under the first step of the Chevron analysis. We disagree.

Petitioners' plain language argument is circuitous and difficult to summarize. However, Petitioners appear to build from the premise that each of the provisions at issue must be read individually and literally to give full effect to any mandatory language included in those provisions. It is true a literal reading of the first sentence of 42 U.S.C. § 7511a(b)(1)(A)(i), in isolation, does mandate that a state with a moderate nonattainment area "shall submit a revision to the applicable implementation plan to provide for volatile organic compound emission reductions ... of at least 15 percent from baseline emissions." That provision goes on, however, to state that "[s]uch plan shall provide for such specific annual reductions in emissions of volatile organic compounds and oxides of nitrogen as necessary to attain the national primary ambient air quality standard for ozone." Id. (emphasis added). Moreover, the provision is captioned "Plan provisions for reasonable further progress." The phrase "reasonable further progress" is defined as "such annual incremental reductions in emissions of the relevant air pollutant as are required by this part or may reasonably be required by the Administrator for the purpose of ensuring attainment of the applicable national ambient air quality standard." ⁶ 42 U.S.C. § 7501(1) (...