99 F.3d 1551 (10th Cir. 1996), 95-9541, Sierra Club v. United States E.P.A.

Docket Nº:95-9541.
Citation:99 F.3d 1551
Party Name:SIERRA CLUB; Wasatch Clean Air Coalition, Petitioners, v. UNITED STATES ENVIRONMENTAL PROTECTION AGENCY, Respondent, State of Utah, Intervenor.
Case Date:November 13, 1996
Court:United States Courts of Appeals, Court of Appeals for the Tenth Circuit
 
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99 F.3d 1551 (10th Cir. 1996)

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

November 13, 1996

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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

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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

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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.

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.

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

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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.

ANA...

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