**Intel Position Paper on Implementation of**

**Ozone NAAQS**

####### Executive Summary

This paper discusses Intel Corporation's (Intel) position on
implementation of the ozone National Ambient Air Quality Standard
(NAAQS) and supplements a presentation made to the U.S. Environmental
Protection Agency (EPA) on June 6, 2001. In particular, this paper
provides an analysis of the impact of the U.S. Supreme Court ozone NAAQS
decision on EPA's implementation policy for the revised 8-hour ozone
NAAQS ("8-hour standard" or "revised ozone standard"). Appendix A of
this paper also addresses continued implementation of the current 1-hour
ozone NAAQS ("1-hour standard" or "current ozone standard").

###### Overview of The Supreme Court's NAAQS Decision

In finding EPA's implementation policy unlawful, the Court held that the
agency's policy of simultaneous implementation of both the 1-hour and
8-hour standards was at odds with the structure and manifest purpose of
Subpart 2 of the Clean Air Act. The Court was troubled that, under EPA's
interpretation, some areas of the country would be required to meet the
new, more stringent ozone standard in *at most* the same time that
Subpart 2 had allowed them to meet the old standard. Thus, simultaneous
implementation undermines the Subpart 2 attainment schedule. The Court
also determined that the Clean Air Act was ambiguous with regard to how
Subpart 1 and Subpart 2 interact on implementation of revised ozone
standards, and as a result, EPA had discretion in achieving a reasonable
resolution of that ambiguity:

-   The Court held that Subpart 2 could not be the exclusive means of
    implementing the revised standard because at least some of its
    provisions are ill suited for the 8-hour standard.

-   The Court could not defer to EPA's view that it could implement the
    revised 8-hour ozone standard under Subpart 1 completely independent
    of any of the restrictions in Subpart 2.

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-   Accordingly, the ambiguity noted by the U.S. Supreme Court is not
    with the applicability of Subpart 1 to the implementation of the
    revised ozone standard, but with the additional applicability of
    Subpart 2 to the implementation of a revised ozone standard. In
    other words, EPA must address what parts of Subpart 2 are "textually
    applicable" provisions that override the discretion provided in
    Subpart 1, and what provisions are exclusively related to
    implementation of the 1-hour standard and would not apply to a
    revised ozone standard. Aside from specifying that EPA cannot
    require attainment of a more stringent standard in the same time
    period as Congress dictated for a less stringent standard, the
    Supreme Court did not identify what other "textually applicable"
    provisions of Subpart 2, if any, also should apply to the revised
    standard.

###### Boundary Conditions for Developing a "Reasonable" Implementation Policy

In Intel's opinion, EPA cannot implement the revised standard
exclusively or even primarily under Subpart 2:

-   Most of the attainment deadlines in Subpart 2 already have passed.
    The classification scheme in Table 1 of Section 181(a) is tied to
    design values that do not work for a revised standard. Thus, it is
    not possible to use the design values, classification scheme and
    deadlines of Subpart 2 to implement the 8-hour standard without
    significantly modifying them. EPA, however, has no authority or
    discretion to rewrite Subpart 2.

-   Many of the control measures in Subpart 2 already have been
    implemented. In essence this means that if Subpart 2 is used for the
    revised standard, those areas with the worst air quality will have
    the fewest applicable measures while those with the best air quality
    (*e.g.,* areas that have remained in attainment with the 1-hour
    ozone standard since 1990, but will not meet the 8-hour ozone
    standard), will have the most applicable measures. This result makes
    no sense and certainly would not be considered a reasonable
    interpretation of the Clean Air Act.

-   Subpart 1 will have to be used by the states to help identify
    additional measures that are effective in reaching attainment with
    the revised standard. EPA's discretion in specifying measures under
    the Clean Air Act is limited. *See Virginia v. EPA*, 108 F.3d 1397
    (D.C. Cir. 1997). That said, EPA could promulgate an implementation
    policy under Subpart 1 that encourages states to adopt control
    measures similar to those found in Subpart 2, to the extent such
    measures have not been implemented already and are shown to be
    effective in attaining the 8-hour standard. In addition to
    respecting the attainment deadlines in Table 1 of Subpart 2, such a
    policy would be another means of complying with the Supreme Court's
    mandate to not utterly nullify the provisions of Subpart 2.

In dealing with those areas that currently are not in attainment with
the 1-hour standard, EPA has two possible approaches:

-   The most legally defensible approach would be to implement the
    8-hour standard in such areas only after they have attained the
    1-hour standard or all measures in Subpart 2 have been implemented.
    This sequential implementation approach in essence allows Subpart 2
    to "run its course," thus avoiding the argument that EPA's
    implementation policy undermines Congressional intent underlying
    Subpart 2. One complicating factor of this approach is that it may
    impact the planning and attainment deadlines for areas subject to
    the 8-hour standard that border areas still subject to the 1-hour
    standard.

-   An alternative approach would be to revoke the 1-hour standard and
    implement the 8-hour standard everywhere. Obviously, this is an
    attractive option because of its simplicity and the fact that it
    would avoid wasting state and EPA resources on meeting the 1-hour
    standard that may not assist in compliance with the more protective
    8-hour standard. However, for this approach to be deemed reasonable,
    at a minimum EPA would have to ensure that (i) nonattainment areas
    for the 1-hour standard retain Subpart 2 measures that already have
    been implemented; and (ii) the attainment deadlines for compliance
    with the 8-hour standard extend beyond the Subpart 2 deadlines
    applicable to areas in nonattainment with the 1-hour standard.

**Intel Position Paper on Implementation of**

####### Ozone NAAQS

# I. Background

On July 18, 1997, EPA adopted a revised NAAQS for ozone that relies on
8-hour averaging of ozone concentrations. 62 Fed. Reg. 38855 (1997). At
the time it published the final 8-hour standard, a presidential
memorandum entitled "Memorandum for the Administrator of the
Environmental Protection Agency" also was published in the Federal
Register setting forth, among other things, EPA's policy on
implementation of the 8-hour standard. 62 Fed. Reg. 38421 (1997).

The revised 8-hour ozone standard was challenged and reversed by the
U.S. Court of Appeals for the District of Colombia in *American Trucking
Associations v. U.S. Environmental Protection Agency,* 175 F.3d 1027
(D.C. Cir. 1999) on the basis of the non-delegation doctrine**.** In
response to an EPA petition for rehearing, the Court of Appeals later
determined that "EPA can enforce a revised primary ozone NAAQS *only* in
conformity with Subpart 2." *American Trucking Ass'ns. v. EPA*, 195 F.3d
4, 10 (D. C. Cir. 1999) (Emphasis added). On appeal, the U.S. Supreme
Court upheld EPA's authority to revise the ozone standard and reversed
and remanded the 8-hour standard to the U.S. Court of Appeals for
further action consistent with their decision. *Whitman v. American
Trucking Ass'ns.*, 531 U.S. 457; 149 L.Ed.2d 1, 22; 121 S.Ct. 903, 916
(2001).[^1] In doing so, the Court also unanimously rejected as
"unlawful" the published implementation policy on the revised ozone
standard. *Id*.; 121 S.Ct. at 916. That policy provided for simultaneous
implementation of the 8-hour standard and the current 1-hour standard.
The Court further rejected the Court of Appeals holding that the revised
ozone standard could only be implemented under Subpart 2.

# II. U.S. Supreme Court Decision

In ruling that the implementation policy was unlawful, the Court noted
that the Clean Air Act was ambiguous regarding the implementation of a
revised ozone standard. Accordingly, the Court stated that it would
follow the approach set forth in *Chevron U.S.A. v. Natural Resources
Defense Council, Inc.*, 467 U.S. 837; 81 L.Ed.2d 694; 104 S.Ct. 2778
(1984), and "defer to a 'reasonable interpretation made by the
administrator of an agency.'" *Whitman,* 149 L.Ed.2d at 22; 121 S.Ct. at
916 (Citations omitted). However, the Court found the published
implementation policy to be unlawful under this deferential approach.
This paper evaluates the Supreme Court's opinion to (1) better
understand the shortcomings the Court found with EPA's manner of
implementing the 8-hour standard; and (2) recommend an implementation
policy that likely would be considered "reasonable."

> **A. Simultaneous Implementation of the Revised and Current Ozone
> Standards Undermines the Congressional Intent Underlying Subpart 2**
>
> In adopting the 8-hour standard, EPA stated in response to comments
> that it would implement the 8-hour standard under Subpart 1
> simultaneously with the continued implementation of the current 1-hour
> standard under Subpart 2.[^2] 62 Fed. Reg. 38856, 38885 (1997) ("The
> fact that the provisions of subpart 2 of Part D are focused on the
> implementation of the current standard does not mean that, if a new or
> revised O3 standard is promulgated pursuant to section 109, the new
> standard could not simultaneously be implemented under the provisions
> of section 110 and subpart 1 of part D"). Likewise, in its
> implementation policy, EPA "concluded that Subpart 2 should continue
> to apply as a matter of law for the purpose of the 1-hour standard."
> *Id.* at 38424. EPA also concluded that the revised 8-hour ozone
> standard should be implemented immediately in accordance with the
> requirements set forth in Subpart 1. *Id.* at 38424-27.

In ruling that the implementation policy was unlawful, the Supreme Court
found that EPA's interpretation of the Clean Air Act as authorizing
simultaneous implementation constituted "an interpretation of Subpart 2
so at odds with its structure and manifest purpose \[that it\] cannot be
sustained." *Whitman,* 149 L.Ed.2d at 25; 121 S.Ct. at 919. The Court
determined that EPA's view that it could implement the revised 8-hour
ozone standard under Subpart 1, completely independent of any of the
restrictions of Subpart 2, was not entitled to deference.

> To use a few apparent gaps in Subpart 2 to render its textually
> explicit applicability to nonattainment areas under the new standard
> [utterly]{.underline} inoperative is to go over the edge of reasonable
> interpretation. The EPA may not construe the statute in a way that
> completely nullifies textually applicable provisions meant to limit
> its discretion.

*Id.* at 24; 121 S.Ct. at 918-19 (emphasis added). It is important to
note that the Court's primary concern was not with EPA's contention that
the revised 8-hour standard could be implemented under Subpart 1.
Instead, the Court was concerned about the *way* that EPA proposed to
implement the revised standard under Subpart 1. The Court strongly felt
that Subpart 2 limited EPA's discretion when it came to implementation
of *any* ozone standard. Simultaneous implementation, by its nature,
necessarily would have undermined the implementation schedule set forth
in Subpart 2. *See id.* at 25; 121 S.Ct. at 919 (Citations omitted) ("if
the EPA's interpretation were correct, some areas of the country could
be required to meet the new, more stringent ozone standard in *at most*
the same time that Subpart 2 had allowed them to meet the old
standard.").

Accordingly, though the Court found the Clean Air Act ambiguous on
implementation of a revised ozone standard, the Court held that EPA's
proposed simultaneous implementation approach "goes beyond the limits of
what is ambiguous and contradicts what in our view is quite clear."
*Id*. at 22; 121 S.Ct. at 916. The Court added that any "reasonable"
implementation policy must not nullify the "textually applicable
provisions" of Subpart 2 that were meant to limit discretion. As noted
earlier, one such provision was the timelines for attainment that
Congress set forth in Subpart 2. The Court did not identify or even
specify whether there were any other "textually applicable" provisions
in Subpart 2 applicable to the implementation of the 8-hour standard.

B. The Supreme Court Held That Implementation of a Revised Ozone
Standard Cannot be Done Exclusively under Subpart 2, but Neither Can an
Implementation Policy Completely Ignore Subpart 2's Applicable
Provisions

In determining what the Court meant by the need for EPA to develop an
implementation policy that does not nullify Subpart 2's "textually
applicable provisions," it is instructive to look at the implementation
approach suggested by the U.S. Court of Appeals in *American Trucking
Association v. EPA,* 175 F.3d 1027, 1048-1050 (D.C. Cir. 1999). In that
decision, the Court of Appeals determined that only Subpart 2 governed
implementation of the revised ozone standard. In evaluating the Court of
Appeals decision, the U.S. Supreme Court noted that "\[w\]e cannot agree
with the Court of Appeals that Subpart 2 clearly controls the
implementation of revised ozone NAAQS, . . . because we find the statute
to some extent ambiguous." *Whitman,* 149 L.Ed.2d at 22; 121 S.Ct. at
916 (Citations omitted).

In characterizing this ambiguity, the Court made a number of
observations about Subpart 2. According to the Court, EPA misconstrued
the Clean Air Act when it attempted to implement the revised 8-hour
standard exclusively under Subpart 1 in a manner that completely
disregarded the clear intent of Subpart 2. In its opinion, the Court
found that Subpart 2 "unquestionably" provides for classifying
nonattainment ozone areas under the revised standard. *Id.* at 22; 121
S.Ct. at 917. In making this finding, the Court relied heavily on 42
U.S.C. §7511(b)(1), which authorizes EPA to take an "area that is
designated attainment or unclassifiable for ozone under section
7407(d)(4) of this title" and add it to the set of areas that were
classified as nonattainment at the time of the 1990 Amendments to the
Clean Air Act. Section 7511(b)(1) specifically authorizes EPA to
classify any such redesignated areas under Table 1 at 42 U.S.C.
§7511(a)(1) and automatically adjust "any absolute, fixed date
applicable in connection with any such requirement . . . by operation of
law by a period equal to the length of time between November 15, 1990
and the date the area is classified under this paragraph." *Id.* at §
7511(a)(2). Based on section 7511(b)(1), the Court concluded that
Subpart 2 was intended to apply not only to those ozone nonattainment
areas then existing, but all ozone nonattainment areas that might come
into existence in the future. By its structure, then, EPA could
conceivably extend the time period for areas to come into attainment
beyond the 20 years set forth in Table 1.

Although one can certainly dispute the Supreme Court's logic in relying
on Section 7511(b)(1) to rule that Subpart 2 must be given at least some
weight in implementing the revised standard (see section III.B below),
it is noteworthy to understand the Court's main concern when it made the
statement that Subpart 2 provides for classifying nonattainment ozone
areas under the revised standard. Preceding this statement, the Court
discussed EPA's assertion, relying on the Subpart 1 "switching
provisions," that the classification scheme set forth in Subpart 2 had
*no* applicability to a revised ozone standard.[^3] *Whitman,* 149
L.Ed.2d at 22; 121 S.Ct. at 917. EPA relied on these switching
provisions to justify its approach to implement the revised ozone
standard exclusively under Subpart 1, while disregarding Subpart 2
completely. This is what the Court found unlawful.

Accordingly, in finding that Subpart 2 "unquestionably" provides for
classifying nonattainment areas under the revised standard, the Court
did not intend to require EPA to implement the revised ozone standard
exclusively under Subpart 2. In fact, the Court expressly rejected this
position put forth by the Court of Appeals. As noted in more detail
below, this would produce nonsensical results. Instead, the Court found
that the "switching provisions" of Subpart 1 did not mean EPA had no
mandate to address any applicable limitations of Subpart 2 in
implementing the revised ozone standard.

That said, the Court also acknowledged, as argued by EPA, "that some
provisions of Subpart 2 are ill fitted to implementation of the revised
standard." *Id.* at 23; 121 S.Ct. at 918. Indeed, the Court concluded:

> These gaps in Subpart 2's scheme prevent us from concluding that
> Congress clearly intended Subpart 2 to be the exclusive, permanent
> means of enforcing a revised ozone standard in nonattainment areas.
> The statute is in our opinion ambiguous concerning the manner in which
> Subpart 1 and Subpart 2 interact with regard to revised ozone
> standards, and we would defer to the EPA's reasonable resolution of
> that ambiguity. We cannot defer, however, to the interpretation that
> EPA has given.

*Id.* at 23-24; 121 S.Ct. at 918. In brief, the Supreme Court disagreed
with the Court of Appeals that Subpart 2 controls implementation of the
8-hour standard. At the same time, the Court noted that Subpart 2 cannot
be completely ignored. Once again it is important to note that the
Court's primary concern was with EPA's implementation policy, which
would have "rendered Subpart 2's carefully designed restrictions on EPA
discretion utterly nugatory once a new standard has been promulgated."
*Id.* at 24; 121 S.Ct. at 918. The Court was concerned specifically with
EPA's assertion that a revised ozone standard did not have to take into
account the timelines provided in Subpart 2 for certain areas to come
into attainment with *any* ozone standard. Consequently, at least one of
the "textually applicable provisions" of Subpart 2 that was meant to
limit EPA's discretion and that the Court held could not be contravened
by an implementation policy, was the period of time (as opposed to the
specific dates) provided under Table 1 for existing nonattainment areas
to meet *any* ozone standard.

**III. Boundary Conditions for Developing a Reasonable Implementation
Policy for the Revised Ozone Standard**

The question that EPA now faces in deciding how best to implement the
8-hour standard is the same question that EPA itself posed in its reply
brief to the U.S. Supreme Court in *Whitman.*

> Intel recognizes that EPA must implement the revised NAAQS under
> Subpart 1, and the only question, therefore, is *how* EPA should
> reconcile its responsibility to implement the revised ozone NAAQS
> under Subpart 1 with the statutory provisions of Subpart 2.

Reply Br. at 17. The U.S. Supreme Court's answer to this question is
fairly simple, yet it is void of detailed guidance. As noted above, the
Court held that simultaneous implementation of the current 1-hour
standard and the revised 8-hour standard contravened the intent of
Subpart 2 and exceeded EPA's discretion. The Court also determined that
Subpart 2 in and of itself is a poor vehicle for implementation of the
revised 8-hour standard.

That said, the Court did not explicitly address the manner in which
Subpart 1 and Subpart 2 interact with regard to revised ozone standards.
Instead, the Court noted that the Clean Air Act is ambiguous on that
issue and that it would defer to the EPA's reasonable resolution of that
ambiguity." *Whitman,* 149 L.Ed.2d at 23-24; 121 S.Ct. at 918. As set
forth below, Intel believes that the only way to "reasonably" reconcile
the conflict in these two Subparts is to implement the revised 8-hour
standard under Subpart 1, but implement it in a manner that accounts for
(i) the time provided areas in Table 1 and (ii) any other "textually
applicable provisions" of Subpart 2.

**A. Revised Ozone Standards Must Be Implemented Through Subpart 1**

The U.S. Supreme Court's rejection of the U.S. Court of Appeals
interpretation that the revised ozone NAAQS must be implemented through
Subpart 2 is evidence that the Court accepted the position, forwarded by
both Intel and EPA, that Subpart 1 is the primary vehicle for
implementation of 8-hour standard.[^4] Moreover, as noted above, in
discussing the applicability of Subpart 2 to implementation of revised
ozone standard, the Court never indicated that Subpart 1 should not be
the primary vehicle for implementation of the revised ozone standard.
Instead, the Court noted that Subpart 2 unquestionably limits the
discretion provided to EPA in Subpart 1 to implement a revised ozone
standard. Accordingly, the ambiguity noted by the U.S. Supreme Court is
not with the applicability of Subpart 1 to the implementation of the
revised ozone standard, but with the additional applicability of Subpart
2 to implementation of a revised ozone standard. We set forth our
opinion on that key issue in the remainder of this paper.

> **B. Subpart 2 Cannot Be Completely Ignored in Implementing the
> Revised Ozone Standard**

According to the Court, Subpart 2 provided "carefully designed
restrictions on EPA discretion." *Whitman,* 149 L.Ed.2d at 24; 121 S.Ct.
at 918. The Court, however, gave limited guidance on the manner in which
Subpart 1 and Subpart 2 should interact with regard to revised ozone
standard.

As noted above, the Court clearly indicated that the 8-hour standard,
being more stringent than the 1-hour standard, cannot be implemented in
the same time frame. In the *amicus* brief submitted by Intel, the
Electronics Industry Alliance, and the Arizona Association of Industries
("Intel *amicus* brief"), we emphasized that failing to give areas in
nonattainment with the 1-hour standard additional time to meet a more
stringent ozone standard would frustrate the purposes of Subpart 2 and
undermine congressional intent. Intel *amicus* Brief at 23. For this
reason, Intel took the position that Subpart 2 must be able to run its
course in 1-hour nonattainment areas *before* any revised ozone standard
can be implemented under subpart 1. Intel *amicus* Brief at 16. In other
words, Intel agreed with EPA that the revised standard had to be
implemented through Subpart 1, but we noted that deference be given to
Subpart 2's time frame and control measures by advocating sequential,
rather than simultaneous, implementation. This approach would allow
subpart 2 to run its course where still applicable, and thus comport
with the Supreme Court's mandate to not utterly nullify the provisions
of Subpart 2. (Appendix A includes more discussion on the benefits and
disadvantages of retaining the 1-hour standard.)

In addition to holding that Subpart 2 limited EPA's discretion on how
quickly it could implement a revised standard, the Court also found that
Table 1 in Subpart 2, rather than being restricted to just the 1-hour
standard, also applied to implementation of a revised ozone standard.
*Whitman,* 149 L.Ed.2d at 22-23; 121 S.Ct. at 917. The Court relied on
section 7511(b)(1) for this finding. *Id.* at 23; 121 S.Ct. at 917. Read
literally, however, section 7511(b)(1) does not work well as a mechanism
for implementing a revised ozone standard. As the text of section
7047(d)(4) indicates, section 7511(b)(1) only was intended to apply to
areas in attainment or unclassifiable for the 1-hour ozone standard [at
the time of the 1990 Amendments]{.underline}. Section 7407(d)(4) sets
forth the procedures for the Governor of each State to list the
designations of "all areas (or portions thereof) of the Governor's State
as attainment, nonattainment, or unclassifiable with respect to the
\[NAAQS\] for ozone . . . ." While this theoretically could apply to
either the 1-hour or the 8-hour ozone standard, the timing for such a
designation is critical. Under Section 7407(d)(4), this nonattainment
designation was to be made "\[w\]ithin 120 days after November 15,
1990." Since the only ozone standard in existence at that time was the
1-hour ozone standard, this designation could only apply to the 1-hour
standard. Accordingly, Section 7511(b)(1) only can be read literally as
applying to those areas designated as attainment or unclassifiable
shortly after the 1990 Amendments to the Clean Air Act and not
attainment areas later redesignated under a revised ozone standard.

In any event, in Intel's opinion, the thrust of the Court's holding
pertains to requiring EPA to determine what parts of Subpart 2 are
"textually applicable provisions" that override the discretion provided
by Subpart 1 and what provisions are exclusively related to
implementation of the 1-hour standard and would not apply to a revised
ozone standard. One example of a provision in Subpart 2 that might be
considered a "textually applicable" provision is Section 184 entitled
"Control of Interstate Ozone Air Pollution." 42 U.S.C. § 7511c. Section
184 designates the northeast ozone transport region and authorizes
states within an ozone transport region to petition for imposition of
control requirements on attainment as well as nonattainment areas in an
ozone transport region. 42 U.S.C. § 7511c(c). Unlike most of the
requirements of Subpart 2, which are directly tied to the 1-hour
standard through the classifications set forth in Table 1 of Section
181(a), the Section 184 requirements are not classification based, nor
are they clearly addressed in Subpart 1. *Compare* 42 U.S.C. §
7511(a)(1) *with* 42 U.S.C. § 7511c. Accordingly, the Section 184
requirements could be applied to a revised ozone standard without
requiring a revision to the classification scheme designed for the
1-hour standard.

In making the distinction between Subpart 2 provisions that are tied to
the 1-hour standard and those that are not, it is important to note that
the Court did not find that adoption of a revised standard gave EPA any
unique authority or discretion in interpreting the Clean Air Act. *See
American Petroleum Institute v. United States EPA*, 52 F.3d 1113, 1119
(D.C. Cir. 1995) (quoting *Bowen v. Georgetown Univ. Hosp.*, 488 U.S.
204, 208; 102 L.Ed.2d 493; 109 S.Ct. 468 (1988) ("it is axiomatic that
an administrative agency's power to promulgate legislative regulations
is limited to the authority delegated by Congress"). The Court simply
charged EPA, under the current structure of the Clean Air Act, to
"develop a reasonable interpretation of the nonattainment implementation
provisions insofar as they apply to the revised ozone NAAQS." *Whitman,*
149 L.Ed.2d at 25; 121 S.Ct. at 919; *Chevron*, 467 U.S. 837, 843; 81
L.Ed.2d 694, 104 S.Ct. 2778 (1984) ("if the statute is silent or
ambiguous with respect to the specific issue, the question for the court
is whether the agency's answer is based on a permissible construction of
the statute.").

C.  **Most of Subpart 2 Cannot be Literally Applied to a Revised Ozone
    Standard Without Rewriting a Number of its Provisions**

Although some parts of Subpart 2 may be applicable under a revised
standard, it is clear that most of Subpart 2 is ill suited to
implementation of a revised ozone standard. Even section 7511(b)(1), the
provision relied upon by the Court as evidence that Subpart 2 has some
role in implementing a revised standard, can only apply literally to the
1-hour standard. (see Supra Section III.B).

Intel's *amicus* brief noted the many difficulties that would arise if
EPA were to try to implement the revised standard under Subpart 2 as it
is currently written.

> Everyone who has examined and taken a position on how Subpart 2 might
> apply to the revised ozone standard agrees that Subpart 2
> implementation would be unworkable. The design values, classification
> scheme, and deadlines set forth in Section 181 of Subpart 2 establish
> a NAAQS implementation framework specifically tailored to the existing
> one-hour, 0.12 ppm NAAQS. This framework simply has no applicability
> to any revised ozone NAAQS. Indeed, any attempt by EPA to apply this
> framework to the revised eight-hour, 0.08 ppm ozone NAAQS would
> produce nonsensical results.

Intel a*micus* Brief at 6-7. Even the Court, in its limited statutory
review, noted a number of "gaps in Subpart 2." *Whitman,* 149 L.Ed.2d at
23-24; 121 S.Ct. at 918. For example, as noted in the Intel *amicus*
Brief, Subpart 2 as written cannot easily be used to classify areas
under the revised standard.

> Section 181(a)(1) requires that an area's design value (*i.e.,* the
> quantitative measurement of its air quality) -- which determines the
> area's attainment/nonattainment status -- "be calculated according to
> the interpretation methodology issued by the Administrator most
> recently before November 15, 1990." 42 U.S.C. § 7511(a)(1). In other
> words, Subpart 2 requires use of the *particular air quality measure*
> that was specifically developed for the ozone standard existing in
> 1990. Compliance with the revised standard is based on an entirely
> different averaging period and statistical form than the existing
> standard. Because the form of the ozone standard is a crucial part of
> the standard itself, it is not possible to classify areas for the
> eight-hour standard using the methodology developed for the one-hour
> standard.

Intel *amicus* Brief at 7. (Footnotes omitted).

If EPA were to try to use the mechanism in Section 7511(b)(1) to
reclassify areas under a revised ozone standard, the agency would need
to make a number of adjustments to Table 1 to accommodate the revised
ozone standard that are not authorized by Section 7511(b)(1). In
addition to revising the design values in Table 1,the attainment
deadlines set forth in Table 1 would have to be recalibrated to when the
revised ozone standard would become effective. Simply put, it is not
possible to use the design values, classification scheme and deadlines
of Subpart 2 to implement the 8-hour standard without significantly
modifying them. EPA, however, has no authority or discretion to rewrite
Subpart 2. *See* 42 U.S.C. § 7607(d)(9)(C) (Court may reverse EPA for an
interpretation of the CAA that is "in excess of statutory jurisdiction,
authority, or limitations."); *API v. EPA*, 52 F.3d at 1119; *Wall v.
EPA,* 2001 U.S. App. LEXIS, 20138, 25 (6^th^ Cir. 2001) (quoting *Sec.
Indus. Ass'n. v. Bd. of Governors of the Fed. Reserve Sys.*, 468 U.S.
137, 143; 82 L.Ed.2d 107; 104 S.Ct. 2979 (1984) (citations omitted)
("This court . . . must also 'reject administrative constructions . . .
that are inconsistent with the statutory mandate.'").

Finally, it is clear that sole reliance on Subpart 2 for control
measures to help areas achieve attainment with the 8-hour standard will
never work. A number of the areas that will be designated as
nonattainment under the 8-hour standard will be areas that are, or were,
also in nonattainment with the 1-hour standard. As a result, many of
these areas have already implemented the control measures in Sections
182 and 183 of Subpart 2 (*e.g.,* reasonably available control
technology, Phase I and II gasoline vapor recovery, enhanced monitoring,
I/M 240, vehicle miles traveled, and contingency measures). 42 U.S.C. §§
7511a, 7511b. Essentially, relying on these Subpart 2 control measures
alone which are all tied to specific classifications, would mean that
those areas with the worst air quality would have the fewest new
applicable measures and those with the best air quality (*e.g.,* areas
that have remained in attainment with the 1-hour ozone standard since
1990, but will not meet the 8-hour ozone standard) would be subject to
the most new control measures because they have not had to implement
them to the same degree. That clearly is not what Congress intended when
it created Subpart 2. As originally, structured, Subpart 2 gave more
time, but placed the most new measures, on areas with the worst air
quality, not the other way around.[^5] Intel *amicus* Brief at 10.
Accordingly, to make Subpart 2 effective, EPA would need to either
revise its control measures to make them more stringent and/or effective
for the 8-hour standard, or implement only those measures that would
make sense. EPA, however, has no authority to rewrite the control
measures in Subpart 2, and that statute does not vest the agency with
discretion to pick and choose which control measures apply to specific
areas. *See* 42 U.S.C. § 7607(d)(9)(C); *API v. EPA*, 52 F.3d at 1119;
*Wall v. EPA,* 2001 U.S. App. LEXIS, 20138 at 25. Thus, the only other
option is for EPA to use whatever generic authority the agency has under
Subpart 1 to incorporate into the implementation of the 8-hour standard
those "textually applicable" provisions in Subpart 2 that limit
discretion, including those provisions that are not tied to the 1-hour
standard (*e.g.*, ozone transport requirements of Section 184).

> **D. EPA Cannot "Reasonably" Rely on Subpart 1 to Require Use of,
> Expand or Alter the Control Measures Provided under Subpart 2, but it
> Could Encourage States Via its Implementation Policy to Adopt Similar
> Measures**

Under *Chevron,* EPA is authorized to use its discretion when the
statute in question is ambiguous. Although the Court clearly noted that
the Clean Air Act is ambiguous with regard to *how* a revised ozone
standard is to be implemented under the Act, the Court never indicated
that the control measures specified in Subpart 2 are ambiguous. In
addition, nowhere in Subpart 1 or 2 is there any indication that
Congress intended to give EPA the authority to expand upon or alter the
measures specified therein, nor does the Court's opinion suggest that
ambiguity in the Clean Air Act authorizes such discretion. *Chemical
Manufacturers Association v. Natural Res. Def. Council, In*c., 470 U.S.
116, 125; 84 L.Ed.2d 90; 105 S.Ct. 1102 (1985) (Court must find "that
EPA's understanding of this very complex statute \[CAA\] is a
sufficiently rational one to preclude a court from substituting its
judgment for that of EPA."). EPA must resolve the ambiguity in how a
revised standard is to be implemented using the existing measures and
authority in Subparts 1 and 2.

EPA's discretion in specifying measures under the Clean Air Act is
limited. In *Virginia v. EPA*, the D.C. Circuit found that Section 7410
of the Clean Air Act prohibits EPA from specifying particular measures
that a state must implement to meet a NAAQS. 108 F.3d 1397, 1408 (D.C.
Cir.), *modified on other grounds*, 116 F.3d 499 (D.C. Cir. 1997)
("section 110 \[does\] not permit the agency to require the state to
pass legislation or issue regulations containing control measures of
EPA's choosing"); *see also, Train v. Natural Res. Def. Council, Inc.,*
421 U.S. 60, 79; 43 L.Ed.2d 731; 95 S.Ct. 1470 (1975) (EPA has only "a
secondary role in the process of determining and enforcing the specific,
source-by-source emission limitations"). Accordingly, unless other
provisions in Subpart 1 or 2 specifically give EPA the authority to
prescribe measures that a state must implement to meet the NAAQS, the
intent of Section 7410 is to vest this authority with the state. If
Subpart 2 gave EPA discretion to alter the measures specified, the D.C.
Circuit would not have made the finding it did in *Virginia* because EPA
would have had the authority to require the Northeastern states to adopt
California's vehicle emission program. *See Virginia*, 108 F.3d at 1408.
Similarly, the U.S. Supreme Court found that Subpart 2, rather than
expanding EPA's authority with regard to implementation of the ozone
standard, actually restricted the flexibility provided by Subpart 1.
*Whitman*, 149 L.Ed.2d at 24; 121 S.Ct. at 918. ("The principal
distinction between Subpart 1 and Subpart 2 is that the latter
eliminates regulatory discretion that the former allowed"). Accordingly,
it would be an amazing feat of statutory interpretation for EPA to turn
around and use the general authority in Subpart 1 to expand the measures
in Subpart 2 when Subpart 2 was intended to limit EPA's authority under
Subpart 1. In short, if EPA is to implement the revised 8-hour ozone
standard under Subpart 2, it must use Subpart 2 in its present form or
seek revision of Subpart 2 by Congress. It cannot revise the measures in
Subpart 2 by rulemaking. *See API v. EPA*, 52 F.3d at 1119; *Wall v.
EPA,* 2001 U.S. App. LEXIS, 20138 at 25.

One of the main reasons the revised standard must be implemented
primarily through Subpart 1 is the fact that those nonattainment areas
that are the farthest from reaching the revised standard, are the same
areas that already have implemented most of the measures of Subpart 2.
Essentially, what this means is that unless Subpart 1 is used by the
states to identify additional measures that are effective, those areas
with the worst air quality will have the fewest applicable measures and
those with the best air quality (*e.g.,* areas that have remained in
attainment with the 1-hour ozone standard since 1990, but will not meet
the 8-hour ozone standard, will have the most applicable measures. This,
of course, would not be a "reasonable" implementation policy.

Although *Virginia* prevents EPA from specifying particular measures
that a state must implement to meet a NAAQS (see supra), EPA could
promulgate an implementation policy under Subpart 1 that strongly
encourages states to adopt the same or similar control measures as are
found in Subpart 2, to the extent such measures (1) have not already
been implemented and (2) are deemed effective in attaining the 8-hour
standard. In addition to respecting the attainment deadlines in Table 1
of Subpart 2, such a policy would be another reasonable means of
complying with the Supreme Court's mandate to not utterly nullify the
provisions of Subpart 2.

# APPENDIX A

# Continued Implementation of 1-hour Ozone Standard 

# Versus Revocation of the Standard in All Areas

The decision of the U.S. Supreme Court ruled out simultaneous
implementation of both the 1-hour and 8-hour ozone standard. In so
doing, the Court did not address the question of whether EPA *should*
continue to apply the 1-hour standard once it had fully implemented the
revised 8-hour standard. Nonetheless, by clearly finding simultaneous
implementation to be unlawful, the Court strongly pointed towards
sequential implementation as the only "reasonable" interpretation if the
1-hour standard is retained for any length of time.

Based on the Court's language, Intel believes EPA has two possible
approaches: (1) sequential implementation of the 1-hour ozone standard
and the revised 8-hour ozone standard in areas not attaining the 1-hour
standard or (2) repeal of the 1-hour ozone standard in all areas and
immediate implementation of the 8-hour ozone standard.. The second
alternative is likely to be considered a "reasonable" interpretation
using the *Chevron* test if, for areas still struggling to meet the
1-hour standard, the attainment schedule for the 8-hour standard extends
beyond applicable attainment deadlines in Subpart 2.

A.  **Sequential Implementation of 1-hour Standard and 8-hour Standard**

The alternative directly addressed in Intel's *amicus* brief is that of
sequential implementation of the 1-hour and 8-hour standards. If EPA
believes that the Clean Air Act, as written, prevents EPA from revoking
the 1-hour standard in areas still struggling to attain it, EPA could
retain the 1-hour standard for a period of time until the area either
(1) attains the 1-hour standard (*i.e.,* can provide 3 years of "clean"
monitoring data), or (2) all of the measures under Subpart 2 have been
implemented such that retention of the 1-hour standard no longer
provides any benefit.[^6] However, as made clear by the U.S. Supreme
Court decision, if the 1-hour standard is retained, EPA cannot implement
the 8-hour standard simultaneously. Accordingly, EPA must delay
implementation of the 8-hour standard in those areas that still are
working on compliance with the 1-hour standard.

1.  **Advantages of Sequential Implementation**

Although not expressly addressed by the Court, sequential implementation
is the most legally defensible interpretation of the Clean Air Act. This
approach is consistent with the Court's decision to determine the
additional applicability of Subpart 2, and rebuts any argument that EPA
is "utterly" nullifying the "textually applicable" provisions of Subpart
2. Sequential implementation also preserves the congressional intent of
Subpart 2, and does not suffer from the implementation problems of
simultaneous implementation. In short, it best reconciles the ambiguity
in "interpretation of the nonattainment implementation provisions
insofar as they apply to the revised ozone NAAQS." *Whitman*, 149
L.Ed.2d at 25; 121 S.Ct. at 919.

2.  **Potential Problems with Sequential Implementation**

Sequential implementation raises several issues that need to be
addressed. First, because an area cannot be subject to both the 1-hour
standard and the 8-hour standard at the same time, designation of areas
as 8-hour nonattainment areas would have to take place in stages. The
nonattainment designation is the act, which starts the clock for the
area's attainment date, SIP submittal deadline, etc. Areas that
currently meet the 1-hour standard would be designated first. Areas that
later came into attainment with the 1-hour standard would be designated
as 8-hour nonattainment areas upon a determination of "attainment" of
the 1-hour standard. Of course, this implementation approach could
viewed as creating a perverse incentive for existing nonattainment areas
to delay "attainment" of the 1-hour standard to extend the deadline for
attainment of the more stringent 8-hour standard. The lack of discretion
in Subpart 2, however, gives little room for areas to engage in
significant delay tactics.

Second, this approach raises questions about what constitutes
"attainment" for purposes of satisfying the requirements of Subpart 2.
As proposed by EPA in the final implementation policy, "\[o\]nce an area
*attains* the 1-hour standard, those provisions \[of Subpart 2\] will no
longer apply and the area's implementation of the new 8-hour standard
would be governed only by the provisions of Subpart 1 of Part D of Title
1." 62 Fed. Reg. at 38424. EPA later clarifies that "attainment" as used
in the implementation policy does not require that the area "meet the
requirements for redesignation and formally redesignate an area from
nonattainment to attainment under section 107(d)(3)." 65 Fed. Reg. at
45188; 42 U.S.C. § 7407(d)(3). Intel strongly supports this approach and
believes it is a reasonable statutory interpretation of how to switch
from an old to a new standard with minimal expenditure of administrative
resources. To minimize the delay in implementation of the 8-hour
standard, Intel believes that EPA should only continue to apply the
1-hour standard until either: (1) the area "attains" the 1-hour standard
or (2) all measures under Subpart 2 have been implemented. If an area
*never* is able to achieve "attainment" of the 1-hour standard, Intel
does not believe that EPA should perpetually delay implementation of the
8-hour standard. Instead, once all of the measures and appropriate
sanctions provided for under Subpart 2 are implemented, and all the
timelines under Table 1 of Subpart 2 are exhausted, Intel believes that
EPA should then make a determination that the requirements of Subpart 2
have been satisfied, the 1-hour standard should be revoked, and the
8-hour standard should be implemented. *See* Fn. 6.

Finally, by forcing existing nonattainment areas to continue to comply
with the 1-hour standard, it can be argued that sequential
implementation may end up wasting state and EPA resources on compliance
with a less protective 1-hour standard. Moreover, because of
difficulties in planning for areas subject to multiple standards, it may
also impact the planning and attainment deadlines for areas subject to
the 8-hour standard bordering on the area still subject to the 1-hour
standard.[^7] These are probably the most significant issues with
sequential implementation, and result from Congress' enactment of two
different sets of implementation provisions. However, these are not
legal impediments to sequential implementation, but rather, policy
arguments that may be raised in opposing use of this approach.

B.  Repeal 1-hour Standard and Implement 8-hour Standard Everywhere
    Immediately

Another alternative not addressed in the Intel *amicus* brief, but
originally proposed by EPA in its implementation policy is the repeal
the 1-hour standard and the immediate implementation of the 8-hour
standard. In the final implementation policy, however, EPA stated that,
"based on EPA's legal review, the Agency has concluded that Subpart 2
should continue to apply as a matter of law for the purpose of achieving
the current 1-hour standard." 62 Fed. Reg. 38424 (1997). No other
explanation is provided for this change in policy. Presumably, it rested
on a recognition that EPA could not construe the Clean Air Act in a
manner that rendered Subpart 2 "utterly nugatory." EPA attempted to
remedy this legal dilemma by restricting the application of Subpart 2 to
implementation of the 1-hour standard and Subpart 1 to implementation of
the 8-hour standard. As set forth in Section III.B, this failed because
the simultaneous implementation of the 1-hour and 8-hour standards still
undercuts the congressional intent of Subpart 2. As the Supreme Court
emphasized, EPA cannot implement the revised standard under Subpart 1
while giving no effect in any way to the provisions of Subpart 2.

Thus, the question remains whether EPA could revoke the 1-hour standard
everywhere and implement the 8-hour standard in a manner that does not
"utterly" nullify the provisions of Subpart 2. At a minimum, EPA would
have to extend the attainment deadlines for the revised standard beyond
the dates that would apply to the 1-hour standard under Table 1 in
Subpart 2. 42 U.S.C. § 7511(a)(1). In addition, implementation would
have to be done in a manner that the gains provided by implementation of
the 1-hour standard through Subpart 2 are not lost. To do this, EPA
would have to require areas that have not met the 1-hour standard at the
time of repeal to continue to implement the measures from Subpart 2
that: (1) were relied on in prior attainment demonstrations, and (2)
will continue to assist the area in meeting the revised 8-hour standard.
The determination of what measures would need to retained would be
addressed by the states, in consultation with EPA, during the attainment
demonstration process.

1.  Advantages of Implementing 8-Hour Standard Immediately

There are some policy advantages from implementing the 8-hour standard
immediately. First and foremost, it simplifies the implementation
process. There are several difficult implementation issues that need to
be resolved if the 1-hour standard is retained and the 8-hour standard
is implemented sequentially (e.g., timing of the designation of
nonattainment for 8-hour nonattainment areas that incorporate a 1-hour
nonattainment area). These issues do not materialize if the 1-hour
standard is not retained.

Second, the immediate implementation of the 8-hour standard avoids
wasting state and EPA resources on meeting the 1-hour standard that may,
or may not, assist in compliance with the revised standard. The
requirements in Subpart 2 were specifically adopted for areas that were
not in attainment of the 1-hour standard. While the Court correctly
noted that implementation of a revised ozone standard requires review of
these requirements to determine whether they have limited EPA's
discretion in implementing the revised ozone standard under Subpart 1,
neither the Court nor Congress determined whether these measures are
appropriate for meeting an ozone standard that varies in form from the
prior standard and that did not exist at the time the requirements were
devised. Moreover, it makes no sense to require nonattainment areas to
continue to prepare SIP revisions and complete other planning
requirements that are focused on a 1-hour standard that EPA has
determined is not necessary, and which standard arguably will cease to
apply once it is achieved.

2.  Problems with Implementing 8-Hour Standard Immediately

Unfortunately, there are some potentially significant legal issues with
the immediate repeal of 1-hour standard in all areas. As noted by EPA,
there is some legal uncertainty about its authority to repeal the 1-hour
standard.

> EPA believes that subpart 2 continues to apply as a matter of law to
> all areas that have not yet attained the 1-hour standard. Therefore,
> EPA does not believe it has the authority to determine the 1-hour
> standard inapplicable in any area that has not yet attained that
> standard, even after the 8-hour standard has become fully enforceable.

65 Fed. Reg. at 45,188.

If EPA repeals the 1-hour standard, it is susceptible to a claim that
repeal of the 1-hour standard amounts to "gutting" Subpart 2. To address
concerns about whether immediate repeal violates the intent of Subpart
2, at a minimum EPA would need to retain measures from Subpart 2 that:
(1) were relied on in prior nonattainment area demonstrations and that
(2) will continue to assist the area in meeting the 8-hour standard.
More specifically, to the extent a measure has been adopted by a state
in attempting to meet the 1-hour standard and included in a State
Implementation Plan (SIP) that has been approved by EPA (or adopted by
EPA and included in a federal implementation plan (FIP)), that measure
should continue to apply as a matter of law as long is it has a
recognizable impact on the area's ability to meet the 8-hour standard.
On the other hand, states should be given the flexibility under the
8-hour standard to review any measures adopted under the prior standard
to ensure that the measures continue to assist the area in meeting the
8-hour standard. For example, a nonattainment area that uses the lower
New Source Review thresholds in Subpart 2, but can demonstrate that
these lower thresholds do not have any impact on its ability to meet the
8-hour standard, should be allowed to raise these thresholds to the
major source threshold applicable under Subpart 1 and Section 302(j).
*See* 42 U.S.C. § 7602(j). Of course, EPA's use of discretion in
retaining selective measures from Subpart 2, also could be legally
questioned.

## C. Conclusion

In evaluating which approach to take with regard to the 1-hour standard,
EPA should focus on the approach that maximizes "common sense,
flexibility, and cost effectiveness." 62 Fed. Reg. at 38421. The longer
the ongoing *American Trucking Assns.* litigation delays implementation
of the 8-hour standard, the less resolution of this issue matters.
Ultimately, both approaches contemplate implementation of a single
national ozone standard. As noted above in the paper, the real question
is how to implement the 8-hour standard under Subpart 1 without
subverting the intent of Subpart 2. Both approaches should accomplish
this result. Sequential implementation fulfills the letter of Subpart 2.
Repeal of the 1-hour standard and immediate implementation of the 8-hour
standard arguably fulfills the intent of Subpart 2 if the conditions
specified above concerning the retention of certain measures are met.
Whatever reasonable approach EPA takes on this issue of how long to
retain the 1-hour standard, implementation or repeal of the 1-hour
standard should be focused on preserving the gains achieved over the
past decade with a maximum amount of flexibility and "a minimum amount
of paperwork." *Id.*

[^1]: Jump cites to 531 U.S. 457 are not available at the time of
    preparation of this paper. Accordingly, only jump cites to L.Ed.2d
    and S.Ct are included for reference.

[^2]: "Subpart 1" refers to Subpart 1 of Part D of Title I of the Clean
    Air Act, entitled "Nonattainment Areas in General" (*see* CAA §§
    171-179B, 42 U.S.C. §§ 7501-09a) and "Subpart 2" refers to Subpart 2
    of Part D of Title I, entitled "Additional Provisions for Ozone
    Nonattainment Areas" (*see* CAA §§ 181-185B, 42 U.S.C. §§
    7511-7511f). In its reply brief to the U.S. Supreme Court, EPA also
    stated that, "\[i\]n EPA's view, those areas that remain subject to
    Subpart 2 because they have not attained the pre-existing 1-hour
    NAAQS must continue to work toward achieving that goal, but they
    must also work toward attaining the stricter 8-hour NAAQS in
    accordance with the statutory timetable and substantive programs for
    the revised NAAQS."

[^3]: The "switching provisions" in Subpart 1 are 42 U.S.C. §
    7502(a)(1)(C) and 42 U.S.C. § 7502(a)(1)(D).

[^4]: For example, in its Reply Brief, EPA stated "\[d\]espite the court
    of appeals' confusion on the matter (e.g., Pet. App. 79a-81a), EPA
    has consistently explained its preliminary view that the revised
    ozone NAAQS should be implemented in accordance with Subpart 1."
    Reply Br. at 17, n. 21

[^5]: "Areas with more serious pollution problems are given more time to
    attain the standards, but required to put in place a more aggressive
    program of control measures." H.R. Rep. No. 101-490, pt. 1, at 234,
    *reprinted in* Senate Comm. on Env't & Pub. Works, 2 *A Legislative
    History of the Clean Air Act Amendments of 1990,* S. Print 103-38m
    at 3258 (1993), OJA at 3603.

[^6]: If EPA decides to use sequential implementation, one question EPA
    may have to address is whether an area that has not met the 1-hour
    standard can put off application of the 8-hour standard indefinitely
    or if there is a time when all measures have been implemented such
    that continued implementation of the 1-hour standard no longer
    provides any benefit. For example, under Section 185, major
    stationary sources located in severe and extreme nonattainment areas
    that fail to meet the 1-hour standard by the date specified in
    Subpart 2, Table 1, (*see* CAA § 181(a)(1); 42 U.S.C. § 7511(a)(1)),
    are required to pay a penalty fee "until the area is redesignated as
    an attainment area for ozone." 42 U.S.C. § 7511d(a). Similarly, EPA
    is authorized by Section 179 to prohibit federal funding for highway
    projects and impose 2:1 offsets. *Id*. at § 7509. Moreover, Section
    181(b)(1) allows EPA to designate existing 1990 attainment areas as
    nonattainment under Table 1. *Id.* at § 7511(b)(1). This could
    result in an attainment deadline beyond the time contemplated for
    existing 1990 nonattainment areas. Subpart 2 clearly contemplates
    these nonattainment deadlines, penalties, and sanctions continuing
    after the dates specified in Subpart 2, Table 1. However, once the
    penalties and sanctions have had some time to work, or the extended
    nonattainment deadlines have past, EPA may need to decide if the
    need for implementation of the more protective 8-hour standard
    overrides continued implementation of the 1-hour standard.

[^7]: EPA ran into similar problems in implementing the 1-hour standard
    in nonattainment areas that were downwind from higher classified
    ozone nonattainment areas. *See* Memorandum, "Extension of
    Attainment Dates for Downwind Transport Areas," by R. Wilson, dated
    July 16, 1998. EPA could use a similar policy to address the
    uncertainties in simultaneous implementation. EPA should allow areas
    to reasonably plan for and meet the 8-hour standard. If their
    ability to meet the 8-hour standard is directly impacted by an
    adjacent 1-hour standard nonattainment area that has longer to meet
    the standard, EPA should provide additional time for compliance with
    the 8-hour standard.