LEXSEE 265 F3D 426

MARILYN WALL and MIKE FREMONT, Petitioners, SIERRA CLUB,

Intervenor, v. UNITED STATES ENVIRONMENTAL PROTECTION AGENCY

and CHRISTINE WHITMAN, Administrator, United States

Environmental Protection Agency, Respondents.

No. 00-4010

UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT

265 F.3d 426; 2001 U.S. App. LEXIS 20138; 2001 FED App.

0318P (6th Cir.); 52 ERC (BNA) 1017; 32 ELR 20127

August 3, 2001, Argued

September 11, 2001, Decided

September 11, 2001, Filed

PRIOR HISTORY: [**1] On Petition for

Review of a Final Decision of the

Environmental Protection Agency. No.

40 CFR Parts 52-81.

DISPOSITION: VACATED EPA's action in

redesignating Cincinnati metropolitan

area to attainment status for

ground-level ozone, and REMANDED for

further proceedings.

COUNSEL: ARGUED: David S. Baron,

EARTHJUSTICE LEGAL DEFENSE FUND,

Washington, D.C., for Petitioners and

Intervenor.

Melaine Aureilia Williams, UNITED

STATES DEPARTMENT OF JUSTICE,

ENVIRONMENTAL DEFENSE SECTION,

Washington, D.C., for Respondents.

ON BRIEF: David S. Baron, EARTHJUSTICE

LEGAL DEFENSE FUND, Washington, D.C.,

for Petitioners and Intervenor.

Melaine Aureilia Williams, UNITED

STATES DEPARTMENT OF JUSTICE,

ENVIRONMENTAL DEFENSE SECTION,

Washington, D.C., Kendra H. Sagoff,

ENVIRONMENTAL PROTECTION AGENCY,

OFFICE OF GENERAL COUNSEL, Washington,

D.C., for Respondents.

Bryan F. Zima, OFFICE OF THE ATTORNEY

GENERAL, Columbus, Ohio, for Amicus

Curiae.

JUDGES: Before: CLAY and GILMAN,

Circuit Judges; WISEMAN, District

Judge. *

* The Honorable Thomas A.

Wiseman, Jr., United States

District Judge for the Middle

District of Tennessee, sitting by

designation.

OPINION BY: RONALD LEE GILMAN

OPINION: [**2] [***2] [*427]

RONALD LEE GILMAN, Circuit Judge.

This appeal involves the review of a

final decision by the United States

Environmental Protection Agency (EPA)

redesignating the status of the

Cincinnati metropolitan area from

"nonattainment" to "attainment" for

ground-level ozone, and approving a

clean air maintenance plan for the

area. Marilyn Wall and Mike Fremont,

residents of Ohio, filed suit to

request that this court vacate the

EPA's decision. The Sierra Club, an

organization with 3,500 members living

in the Ohio area, intervened in

support of Wall and Fremont. For the

[***3] reasons set forth below, we

VACATE the EPA's action in

Page 1
redesignating the Cincinnati

metropolitan area to attainment status

for ground-level ozone, and REMAND for

further proceedings consistent with

this opinion.

I. BACKGROUND

A. Factual background

Ground-level ozone is a principal

component of urban smog. See H.R. Rep.

No. 101-490, [*428] at 198 (1990).

As a highly reactive chemical, ozone

can create severe health problems such

as "chest pains, shortness of breath,

coughing, nausea, throat irritation,

and increased susceptibility to

respiratory infections," even when

inhaled [**3] by healthy adults. Id.

at 199. It is also extremely

corrosive, causing metals to rust and

paints to crack and fade. See id.

Pollution sources do not emit ozone

directly. Instead, its precursors --

nitrogen oxides (NOx) and volatile

organic compounds (VOCs) -- react to

form ozone in the presence of

sunlight. See id. at 202. These

precursors, in turn, are emitted by

sources such as motor vehicles, power

plants, and industrial factories.

Because ozone is often formed in

large, stagnant air masses that drift

from one region to another, air

quality models are used to forecast

the ozone levels that might result

from a particular combination of

precursor sources. See Ohio v. EPA,

784 F.2d 224, 228-29 (6th Cir. 1986).

B. Statutory and regulatory background

1. National ambient air quality

standards

The 1970 Clean Air Act (CAA), 42

U.S.C. §§ 7401-7671q, as amended in

1977 and 1990, requires the EPA to

establish national ambient air quality

standards (NAAQS) for certain airborne

pollutants, including ozone, as

necessary to protect the public health

and welfare. See CAA § 109, 42 U.S.C.

§ 7409. [**4] Under the CAA, the EPA

designates the status of various

geographic areas as "attainment,"

"nonattainment," or "unclassifiable,"

depending on whether the area meets

the [***4] NAAQS for a particular

pollutant. See CAA § 107(d), 42 U.S.C.

§ 7407(d). More stringent air

pollution control requirements apply

to nonattainment areas than to

attainment areas. See CAA §§ 171-86,

42 U.S.C. §§ 7501-15. Nonattainment

areas for ozone are further classified

as "marginal," "moderate," "serious,"

"severe," or "extreme," depending on

the severity and persistence of the

ozone problem. See CAA § 181(a) &

(b)(2), 42 U.S.C. § 7511(a) & (b)(2).

Responsibility for meeting the

NAAQS rests with the states. Under the

CAA, each state must draft a State

Implementation Plan (SIP) containing

specific pollution control measures

for each pollutant. See CAA § 110, 42

U.S.C. § 7410. The CAA specifies

different deadlines by which marginal,

moderate, serious, severe, and extreme

ozone nonattainment areas must attain

the NAAQS, as well as the programs

that each state must adopt in its SIP

to achieve [**5] such attainment. See

CAA §§ 172, 181, 42 U.S.C. §§ 7502,

7511. Areas with more severe

classifications are given more time to

reach attainment, but are required to

implement more stringent control

measures. See CAA §§ 181(a)(1), 182,

42 U.S.C. §§ 7511, 7511a.

The EPA must review each submitted

SIP and either approve or disapprove

the plan within one year after the

agency has determined that the state

completed its SIP submission. See CAA

§ 110(k)(2). If the EPA approves the

SIP, either in whole or in part, then

the approved provisions become

federally enforceable. See CAA §§ 113,

304, 42 U.S.C. §§ 7413, 7604. But if

the SIP is disapproved, then the state

becomes subject to sanctions, see CAA

§ 179, 42 U.S.C. § 7509, as well as to

federally imposed clean air measures.

See CAA § 110(c). [***5]

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2001 FED App. 0318P (6th Cir.), ***3; 52 ERC (BNA) 1017
2. Evaluation of whether an area

has attained the ozone NAAQS

The EPA regulations that were

promulgated in 1979 establish the

applicable NAAQS for various

pollutants and the [*429]

methodology for determining whether an

area has attained that standard. See

[**6] 40 C.F.R. pt. 50. Two types of

NAAQS are set forth in the

regulations: (1) national primary

ambient air quality standards, which

"define levels of air quality which

the Administrator judges are

necessary, with an adequate margin of

safety, to protect the public health,"

and (2) national secondary ambient air

quality standards, which "define

levels of air quality which the

Administrator judges necessary to

protect the public welfare from any

known or anticipated adverse effects

of a pollutant." 40 C.F.R. pt.

50.2(b).

Section 50.9(a) of the regulations

sets the primary standard for ozone at

a concentration of 0.12 parts per

million. Under this section, the ozone

"standard is attained when the

expected number of days per calendar

year with maximum hourly average ozone

concentrations above 0.12 parts per

million . . . is equal to or less than

1, as determined by appendix H." 40

C.F.R. pt. 50.9(a). Appendix H, in

turn, explains the methodology by

which experimental results are

converted into the expected number of

days that the ozone standard would be

exceeded. See 40 C.F.R. pt. 50, app.

H. Because the methodology involves

averaging a region's results over a

three-year period for [**7] each

monitoring site in the region, an area

will attain the NAAQS only if, over

the three-year period, each of its

monitoring sites record three or fewer

times during which the ozone

concentration has exceeded the NAAQS.

See id.

3. Requirements for ozone

nonattainment areas

Part D of Subchapter I of the CAA

provides specific pollution control

requirements that apply only to

nonattainment areas. In general, a SIP

for an ozone nonattainment area must

include measures to ensure the timely

attainment and maintenance of the

standard. See CAA §§ 110(a)(1) &

(2)(A), 172(c), 182(b)(1). [***6]

The SIP must also include provisions

for the enforcement of the measures

included in the SIP, see CAA §

110(a)(2)(C), as well as the

commitment of adequate resources and

legal authority to implement the

enforcement measures. See CAA §

110(a)(2)(E)(i).

For a moderate ozone nonattainment

area, a SIP must include the following

specific measures: (1) pollution

limits that reflect the "reasonably

available control technology" (RACT)

for existing factories that emit VOCs,

see CAA §§ 172(c)(1), 182(b)(2), and

(2) procedures to ensure that state

and local transportation [**8] plans

and projects conform to the clean air

plans. See CAA § 176(c)(4)(A), 42

U.S.C. § 7506(c)(4)(A).

4. Requirements for the

redesignation of an area from

nonattainment to attainment

A state may request the EPA to

redesignate an area from nonattainment

to attainment status if that area has

improved in air quality. See CAA §

107(d)(3)(D). After an area is so

redesignated, it no longer need comply

with the more stringent air pollution

measures that apply only to

nonattainment areas. Cf. CAA §

110(a)(2)(I) (requiring SIPs for

nonattainment areas to meet the

"applicable requirements of part D of

this subchapter"). The responsibility,

instead, is on the state to apply the

enforcement provisions contained in

its maintenance plan. See CAA §

175A(d), 42 U.S.C. § 7505a(d)

(requiring maintenance plans that are

submitted with redesignation requests

to include "such contingency

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2001 FED App. 0318P (6th Cir.), ***5; 52 ERC (BNA) 1017
provisions as the Administrator deems

necessary to assure that the State

will promptly correct any violation of

the standard which occurs after the

redesignation [*430] of the area as

an attainment area.").

Five criteria must be met for an

[**9] area to be redesignated from

nonattainment to attainment status:

[***7]

The Administrator may not

promulgate a redesignation

of a nonattainment area (or

portion thereof) to

attainment unless--

(i) the Administrator

determines that the area has

attained the national

ambient air quality

standard;

(ii) the Administrator has

fully approved the

applicable implementation

plan for the area under

section 7410(k) of this

title;

(iii) the Administrator

determines that the

improvement in air quality

is due to permanent and

enforceable reductions in

emissions resulting from

implementation of the

applicable implementation

plan and applicable Federal

air pollutant control

regulations and other

permanent and enforceable

reductions;

(iv) the Administrator has

fully approved a maintenance

plan for the area as meeting

the requirements of section

7505a of this title; and

(v) the State containing

such area has met all

requirements applicable to

the area under section 7410

of this title and part D of

this subchapter.

CAA § 107(d)(3)(E). At issue in the

present case is whether the Cincinnati

metropolitan area has met the second,

fourth, and fifth criteria. [**10]

5. CAA Section 110: general

enforceability requirements

To satisfy the second and the fifth

redesignation criteria, the EPA must

fully approve the applicable SIP in

accordance with § 110 of the CAA.

Section 110(k), which is codified at

42 U.S.C. § 7410(k) in the second

redesignation criterion, sets forth

the process by which the EPA must

review a SIP submission. According to

this section, the EPA is required to

approve or disapprove a submitted SIP

within one year after concluding that

the SIP contains "the information

necessary to enable the Administrator

to determine whether the plan

submission complies with the

provisions of this chapter." CAA §

110(k)(1)(A)&(2). A completed SIP

submission, in [***8] turn, can only

be approved if it "meets all of the

applicable requirements of this

chapter." CAA § 110(k)(3).

Subsection (a)(2) of § 110 sets

forth the general requirements for a

SIP. According to this subsection, a

SIP must include "enforceable emission

limitations and other control

measures, means, or techniques," CAA §

110(a)(2)(A), provisions for the

"establishment and operation of

appropriate devices" necessary to

collect data on ambient [**11] air

quality, CAA § 110(a)(2)(B), and

programs to enforce the limitations.

See CAA § 110(a)(2)(C).

6. CAA Section 175A: general

maintenance requirements

A "maintenance plan" is required by

CAA § 107(d)(3)(E)(iv) as a component

of a state's redesignation request.

Such a plan must "provide for the

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2001 FED App. 0318P (6th Cir.), ***6; 52 ERC (BNA) 1017
maintenance of the [NAAQS] . . . for

at least 10 years after the

redesignation." CAA § 175A(a).

Maintenance is demonstrated by showing

that future emissions will not exceed

the level established in the

attainment emissions inventory, which

for ozone is 0.12 parts per million.

See 40 C.F.R. pt. 50.9(a). An EPA

memorandum states that any final

determination regarding the adequacy

of a maintenance plan will be made "in

light of the particular circumstances

facing the area proposed for

redesignation and based on all

relevant information available at the

time." Memorandum from John Calcagni,

Director, Air Quality Management

Division, EPA, Procedures for [*431]

Processing Requests to Redesignate

Areas to Attainment (Sept. 4, 1992)

(Calcagni Memorandum).

The maintenance plan must also

include enforcement provisions "as the

Administrator deems necessary to

assure that the State [**12] will

promptly correct any violation of the

standard which occurs after the

redesignation of the area as an

attainment area." CAA § 175A(d). In

particular, these contingency

provisions must require the state to

implement all of the ozone control

measures that were already in the SIP

prior to the time that the

nonattainment area is redesignated to

attainment. See id. [***9]

7. Part D: requirements

specifically pertaining to

nonattainment areas

Part D of Subchapter I of the CAA

provides specific requirements that a

nonattainment area must meet in order

to fulfill the fifth criterion for

redesignation. There are two subparts

at issue in Part D: Subpart 1, which

sets forth the basic requirements

applicable to all nonattainment areas,

see CAA § 171-79A, and Subpart 2,

which establishes additional specific

requirements for areas classified as

marginal, moderate, serious, severe,

and extreme nonattainment areas. See

CAA § 181-85B. As to the relationship

between the two subparts, "in some

cases, the pollutant-specific

requirements contained in subparts 2-5

of part D override subpart 1's general

provisions." State Implementation

Plans; General Preamble for the [**13]

Implementation of Title I of the Clean

Air Act Amendments of 1990, 57 Fed.

Reg. 13,498, 13,501 (Apr. 16, 1992).

a. Subpart 1:

transportation-conformity requirements

To address air pollution stemming

from transportation sources, Congress

enacted conformity requirements

applicable to transportation plans and

projects. These requirements, which

are part of the 1990 CAA Amendments,

provide that no federal agency shall

"engage in, support in any way or

provide financial assistance for,

license or permit, or approve, any

activity which does not conform to [a

SIP] after it has been approved or

promulgated under section 7410 of this

title." § 176(c)(1). "The

determination of conformity shall be

based on the most recent estimates of

emissions . . . ." CAA § 176(c)(1)(B).

Subpart 1 of Part D sets forth the

actual transportation-conformity

requirements for federal activities.

An activity conforms to a SIP if the

anticipated emissions from the

activity will not frustrate a SIP's

purpose of eliminating or reducing the

severity and number of violations of

the [NAAQS] and achieving expeditious

attainment of such standards, cause or

contribute to any new violation,

exacerbate [**14] an existing

violation, or delay the timely

[***10] attainment of the NAAQS or

any other such milestones. See CAA §

176(c)(1)(A)&(B).

b. Subpart 2: reasonably available

control technology (RACT) requirements

Subpart 2 of Part D requires a SIP

for a nonattainment area to contain

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2001 FED App. 0318P (6th Cir.), ***8; 52 ERC (BNA) 1017
various RACT rules, depending upon the

severity of the area's nonattainment.

The RACT rules govern all forms of air

pollution from sources other than

transportation. For a marginal

nonattainment area, a SIP is required

to adopt a number of general RACT

rules for existing VOC sources. See

CAA § 182(a)(2)(A). A SIP for a

moderate nonattainment area must not

only comply with the requirements for

marginal nonattainment areas, see id.,

but must also adopt additional RACT

rules for specific categories of VOC

emissions. See CAA § 182(b)(2).

Specifically, CAA § 182(b)(2)(A)

provides as follows:

[*432]

The State shall submit a

revision to the applicable

implementation plan to

include provisions to

require the implementation

of reasonably available

control technology under

section 7502(c)(1) of this

title with respect to . . .

each category of VOC sources

in the area covered by

[**15] a [Control Technique

Guideline] document issued

by the Administrator between

November 15, 1990, and the

date of attainment.

The EPA has also set forth guidance

on how it intends to interpret various

provisions of the 1990 CAA Amendments

in the general preamble to the

amendments, 57 Fed. Reg. 13,498,

13,501 (Apr. 16, 1992), supplemented

at 57 Fed. Reg. 18,070 (Apr. 28,

1992), and in various memoranda from

its regional offices. In this general

preamble, the EPA has directly

addressed the requirements for

redesignation. See 57 Fed. Reg. at

13,561-64. [***11]

C. The Cincinnati metropolitan area's

status as a nonattainment area

In 1978, the Cincinnati

metropolitan area was designated as an

ozone nonattainment area pursuant to

the 1977 Amendments to the CAA. See

Approval and Promulgation of

Implementation Plans and Designation

of Areas for Air Quality Planning

Purposes; Ohio, 43 Fed. Reg. 8962

(Mar. 3, 1978). The Cincinnati

metropolitan area covers counties in

both Kentucky and Ohio, and is

accordingly referred to as a

"multi-State ozone nonattainment

area." § 182(j)(1). In the year after

the 1990 [**16] CAA Amendments were

passed, the EPA reaffirmed its

designation of the area for moderate

ozone nonattainment, with an

attainment deadline of November 15,

1996. See Designation of Areas for Air

Quality Planning Purposes, 56 Fed.

Reg. 56,694 (Nov. 6, 1991).

Because of the area's status,

Kentucky and Ohio were required to

submit revisions to their respective

SIPs by no later than November 15,

1993, taking into account the measures

applicable to moderate ozone areas and

providing for the attainment of the

ozone standard by the November 15,

1996 attainment deadline. See CAA §

182(b)(1)(A). Both states submitted

timely revisions, but the EPA was

unable to fully approve the submitted

SIPs due to various deficiencies. See

Approval and Promulgation of

Implementation Plans and Designation

of Areas for Air Quality Planning

Purposes; Ohio and Kentucky, 65 Fed.

Reg. 3630, 3633 (proposed Jan. 24,

2000).

The EPA never published a notice of

disapproval pursuant to CAA §

110(k)(2) because, in November of

1994, Kentucky and Ohio submitted

requests to redesignate the Cincinnati

metropolitan area to ozone attainment

status. The states based their

requests [**17] on the fact that the

area had not violated the ozone NAAQS

over the previous three-year period.

These redesignation requests, however,

were eventually denied because the

Cincinnati metropolitan area had

experienced a violation of the ozone

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2001 FED App. 0318P (6th Cir.), ***10; 52 ERC (BNA) 1017
NAAQS in the summer of 1995. See

Disapproval of the Request to

Redesignate the Kentucky [***12]

portion of the Cincinnati-Northern

Kentucky Moderate Ozone Nonattainment

Area to Attainment and the Associated

Maintenance Plan, 61 Fed. Reg. 50,718

(Sept. 27, 1996). Although Kentucky

petitioned for a review of the

Agency's determination, the agency's

disapproval was upheld by this court

in Kentucky v. EPA, 1998 U.S. App.

LEXIS 21686, No. 96-4274, 1998 WL

661138 (6th Cir. Sept. 2, 1998)

(unpublished table opinion). The EPA,

rather than publish a notice of

disapproval, instead granted the area

two one-year extensions. See Approval

and Promulgation of Implementation

Plans and Designation of Areas for Air

Quality Planning Purposes; Ohio and

Kentucky, 65 Fed. Reg. 37,879, 37,880

[*433] (June 19, 2000). These

extensions are not challenged in the

present case.

In 1999, Kentucky and Ohio again

submitted requests to have the

Cincinnati [**18] metropolitan area

redesignated to attainment status.

Their requests were based on three

years of quality-assured ambient air

quality monitoring data showing that

the area was not in violation of the

ozone NAAQS for the period from 1996

to 1998. The EPA also considered

ozone-monitoring data showing that the

Cincinnati metropolitan area continued

to attain the ozone NAAQS in 1999. See

65 Fed. Reg. at 37,887-89. A notice

proposing the approval of Kentucky's

and Ohio's SIP submissions and

redesignation requests was published

on January 24, 2000. See 65 Fed. Reg.

at 3630.

In publishing the notice, the EPA

acknowledged that Kentucky did not

have fully approved

transportation-conformity requirements

in its SIP for the Cincinnati

metropolitan area. It determined,

however, that the Part D

transportation-conformity requirements

were not applicable for the purposes

of evaluating the redesignation

requests "because areas are subject to

the conformity requirements regardless

of whether they are redesignated to

attainment and must implement

conformity under Federal rules if

state rules are not yet approved." 65

Fed. Reg. at 3635.

The EPA also [**19] acknowledged

that Ohio had not yet fully adopted

the RACT rules concerning the

categories of VOC [***13] sources

covered by the Control Technique

Guideline (CTG) document issued by the

EPA between November 15, 1990 and the

attainment date. These VOC source

categories included the aerospace,

synthetic organic compound

manufacturing, reactor and

distillations processes, shipbuilding,

and wood furniture industries. See 65

Fed. Reg. at 3636. Despite its

standard redesignation policy that

"would require full adoption,

submission and approval of [certain

RACT rules] rules prior to approval of

the redesignation request," id., the

EPA proposed to depart from this

policy by approving Kentucky's and

Ohio's redesignation request based on

the following explanation found in the

Federal Register:

Since the due date for the

CTG RACT rules at issue

preceded the submission of

the redesignation request,

EPA believes, however, that

in the context of the

particular circumstances of

this redesignation, that it

is permissible to depart

from that policy and instead

accept a commitment to

implement these RACT rules

as contingency measures in

the maintenance plan rather

[**20] than require full

adoption and approval of the

rules prior to approval of

the redesignation. See Grand

Rapids, Michigan,

redesignation (61 FR 31831,

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2001 FED App. 0318P (6th Cir.), ***11; 52 ERC (BNA) 1017
June 21, 1996). . . . First,

the RACT rules at issue in

this redesignation were not

needed to bring about

attainment of the standard

in Cincinnati. Second, Ohio

has demonstrated continued

maintenance of the ozone

standard through 2010

without the implementation

of these measures. Third,

Ohio has placed other

contingency measures in the

maintenance plan that would

bring about far greater

emission reductions than the

RACT rules and would

therefore be substantially

more effective in terms of

correcting violations

attributable to local

emissions from the

Cincinnati area that may

occur after redesignation.

Id.

In their comments to the EPA's

notice of proposed approval, Wall,

Fremont, and the Sierra Club

challenged the [***14] EPA's

justifications. See Letter from Marti

Sinclair, Acting Chair of the Ohio

Chapter of the Sierra Club, to J.

Elmer Bortzer, Chief of the Regulation

Development Section of the [*434]

EPA (Feb. 18, 2000). They argued that

Kentucky's and Ohio's maintenance

plans, required under CAA § 175A,

[**21] were deficient. To support

their argument, the petitioners

contended that the CAA requires that

air quality models be used to

determine a state's ability to achieve

maintenance, which the EPA had not

done. They also challenged the

reliability of the EPA's assumptions

regarding future emission levels,

arguing that "the history of this

nonattainment area shows that EPA

cannot rationally assume that emission

levels correlate with ozone levels in

some sort of linear or consistent

fashion."

Moreover, the petitioners pointed

out that the EPA had made

contradictory findings in a separate

rulemaking proceeding dealing with the

adoption of more stringent national

emission limits for new cars and

trucks. See Control of Air Pollution

from New Motor Vehicles: Tier 2 Motor

Vehicle Emissions Standards and

Gasoline Sulfur Control Requirements,

65 Fed. Reg. 6698 (Feb. 10, 2000). In

this separate rulemaking proceeding,

the EPA included the Cincinnati

metropolitan area on a list of areas

"certain or highly likely to require

additional emission reductions in

order to attain and maintain the

1-hour ozone NAAQS." 65 Fed. Reg. at

6709-10. This finding was based on

computer [**22] models that showed

that the Cincinnati metropolitan area

would exceed the ozone NAAQS by 2007

if no additional emission reductions

were made beyond those already

expected. See 65 Fed. Reg. at 6707-11.

The petitioners also argued that

the maintenance plans failed to comply

with CAA § 110(c)(2)(E)(i) because the

plans lacked "explicit commitments of

legal authority and resources to

implement" all of the plans' measures.

In particular, the petitioners claimed

that the maintenance plans lacked

enforcement programs, as well as

concrete assurances that Kentucky and

Ohio would have the necessary

personnel and funding to carry out the

plans. [***15]

Their alternative argument was that

the EPA had no authority to determine

that the transportation-conformity

requirements of Part D, Subpart 1, did

not apply to the redesignation

requests. According to the

petitioners, "the fact that the state

is still obligated to submit [state

transportation conformity] procedures

and that federal conformity procedures

still apply hardly excuses the state's

failure to adopt such procedures as

required by statute."

The final argument of the

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2001 FED App. 0318P (6th Cir.), ***13; 52 ERC (BNA) 1017
petitioners was that the EPA had no

authority [**23] to redesignate the

Cincinnati metropolitan area before

the states had fully adopted all of

the RACT rules of Part D, Subpart 2,

that were specifically mandated under

CAA § 182(b)(2). They claimed that the

CAA did not allow the states to defer

the adoption of RACT rules by

incorporating them only as optional

contingency measures. Furthermore,

they reasoned that because of this

deficiency in the adoption of the RACT

rules, the EPA never fully approved

the SIPs in accordance with CAA §

110(k).

Five months after the EPA published

its notice of proposed approval, and

after receiving public comments from

the petitioners and other parties, the

EPA made a final determination that

the Cincinnati metropolitan area had

attained the one-hour NAAQS for

ground-level ozone and had met the

other requirements for redesignation.

The EPA accordingly issued a final

ruling on June 19, 2000, to be

effective July 5, 2000, granting

Kentucky's and Ohio's redesignation

requests. See Approval and

Promulgation of Implementation Plans

and Designation of Areas for Air

Quality Planning Purposes; Ohio and

Kentucky, 65 Fed. Reg. 37,879 (June

19, 2000). This timely petition for

review followed. [**24] [*435]

II. ANALYSIS

A. Standard of review

A final action of the EPA will not

be overturned unless the decision is

"arbitrary, capricious, an abuse of

discretion, or otherwise not in

accordance with law." 5 U.S.C. §

706(2)(A); [***16] see also

Southwestern Pa. Growth Alliance v.

Browner, 144 F.3d 984, 988 (6th Cir.

1998). The Supreme Court has

established a two-step process for

reviewing an agency's interpretation

of a statute that it administers. See

Chevron U.S.A., Inc. v. Natural Res.

Def. Council, Inc., 467 U.S. 837, 81

L. Ed. 2d 694, 104 S. Ct. 2778 (1984).

If "Congress has directly spoken to

the precise question at issue," id. at

842, then this court "must give effect

to the unambiguously expressed intent

of Congress." Id. at 843. But "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." Id.

In evaluating whether the EPA's

construction of a statute is

permissible, a court "need not find

that it is the only permissible

construction [**25] that EPA might

have adopted but only that EPA's

understanding of this very complex

statute is a sufficiently rational one

to preclude a court from substituting

its judgment for that of EPA." Chem.

Mfrs. Ass'n v. Natural Res. Def.

Council, Inc., 470 U.S. 116, 125, 84

L. Ed. 2d 90, 105 S. Ct. 1102 (1985)

(internal quotation marks omitted).

This court, however, must also "reject

administrative constructions . . .

that are inconsistent with the

statutory mandate," 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), and conduct a

"searching review" of the EPA's use of

air quality projections under the CAA,

Ohio v. EPA, 798 F.2d 880, 882 (6th

Cir. 1986).

B. Approval of Kentucky's and Ohio's

clean air maintenance plans

Wall, Fremont, and the Sierra Club

raise three challenges to the EPA's

evaluation of the clean air

maintenance plans for the Cincinnati

metropolitan area. They argue that (1)

the methods used by the EPA to

demonstrate maintenance do not meet

the requirements of the CAA, (2) the

EPA's own models, applied in a

different [**26] rulemaking

proceeding, demonstrate that the

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Cincinnati metropolitan area will not

maintain compliance with the ozone

NAAQS over the next ten years, and (3)

the maintenance plans lack the

required [***17] resource and

authority commitments for enforcement.

Because of the similarity of the first

two arguments, they will be addressed

together, while the third argument

will be addressed separately.

1. Demonstration of maintenance

In evaluating Kentucky's and Ohio's

maintenance plans, the EPA used an

attainment-emissions inventory

approach to determine that the states'

plans would "provide for maintenance

of the [NAAQS] for at least 10 years

after redesignation," as required

under CAA § 175A. This approach

involves making two sets of

determinations: (1) that the area is

currently in compliance and (2) that

future emissions in the area are

projected to remain below the current

level for the next ten years. The

reasoning behind this approach is that

an area is expected to remain in

compliance so long as the predicted

emissions within the area remain below

the level that allowed the area to

achieve compliance with the NAAQS in

the first place.

In the present case, the EPA [**27]

determined that the Cincinnati

metropolitan area was in attainment

for both the 1996 to [*436] 1998 and

the 1997 to 1999 time periods. See 65

Fed. Reg. at 3630, 3638. The EPA also

determined that future emissions in

the area were projected to decrease

from the 1996 levels. See id. Applying

the attainment-emissions inventory

approach, the agency concluded that

the combination of these findings

"shows that the current level of

emissions is adequate to keep the area

in attainment" for the next ten years.

65 Fed. Reg. at 37,888.

The petitioners, however, argue

that the attainment-emissions

inventory approach does not meet the

requirements of the CAA. They

challenge the EPA's authority to rely

on methods other than air quality

modeling to demonstrate maintenance

when the demonstration of attainment

is not also required. The petitioners

point out that under 40 C.F.R. §

51.112(a)(1) (1999), the "adequacy of

a control strategy shall be

demonstrated by means of applicable

air quality models, data bases, and

other requirements specified in

[***18] appendix W of this part

(Guideline on Air Quality Models)."

This language, they contend, [**28]

requires the EPA to use modeling to

show that the Cincinnati metropolitan

area will maintain the NAAQS.

According to their interpretation of

this language, the EPA's reliance on

the emissions-inventory approach

(which does not involve modeling),

does not meet the requirements of the

CAA.

The EPA's response is that the

section of the Code of Federal

Regulations relied upon by the

petitioners applies only to

"attainment demonstrations, and not to

stand-alone maintenance plans

submitted under CAA section 175A." In

its brief, the agency quotes 40

C.F.R. § 51.112(a), which provides

that "each plan must demonstrate that

the measures, rules and regulations

contained in it are adequate to

provide for the timely attainment and

maintenance of the national standard

that it implements." The EPA also

points out that the subsection

contains no reference to CAA § 175A,

the section of the CAA that

specifically addresses maintenance

plans. Indeed, the EPA's own

interpretive memorandum, published

prior to the evaluation of the

redesignation request in question,

provides that a "State may generally

demonstrate maintenance of the NAAQS

by either showing that future

emissions [**29] of a pollutant or

its precursors will not exceed the

level of the attainment inventory, or

by modeling to show that the future

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2001 FED App. 0318P (6th Cir.), ***16; 52 ERC (BNA) 1017
mix of sources and emission rates will

not cause a violation of the NAAQS."

Calcagni Memorandum, at 9 (emphasis

added).

Although the petitioners'

interpretation of the relevant

language is at least as reasonable as

that of the EPA, the EPA's

construction is neither impermissible

nor in conflict with a statutory

mandate. The phrase "timely attainment

and maintenance" could be interpreted

as limiting the application of the

section exclusively to situations in

which the state must demonstrate both

attainment and maintenance, rather

than encompassing situations in which

the state must demonstrate only

continued maintenance. Moreover, the

EPA's actions are completely

consistent with its own interpretive

memorandum, which allows for NAAQS

maintenance to be [***19]

demonstrated by showing that the

future emissions of a pollutant's

precursors will not exceed the level

that allowed the area to achieve

attainment in the first place.

The petitioners also point to

findings made by the EPA in a separate

rulemaking proceeding published on

February 10, 2000 -- [**30] the Tier

2 Motor Vehicle Emissions Standards

and Gasoline Sulfur Control

Requirements -- that they allege

contradict the findings made by the

EPA in the present case. In the Tier 2

rulemaking [*437] proceeding, the

EPA included the Cincinnati

metropolitan area among those that are

"certain or highly likely to require

additional emission reductions." 65

Fed. Reg. at 6709-10.

But the findings in the Tier 2

rulemaking proceeding, as the EPA

explains, are not applicable here. The

focus of the Tier 2 proceeding was not

specifically to evaluate the

attainment or nonattainment of the

Cincinnati metropolitan area, but

rather to develop a "major program

designed to significantly reduce the

emissions from new passenger cars and

light trucks, including pickup trucks,

vans, minivans, and sport-utility

vehicles," vehicles whose emissions

contribute heavily to the generation

of ground-level ozone. 65 Fed. Reg. at

6698.

Furthermore, the EPA relied upon

more recent data in the present

proceeding than in the Tier 2

proceeding. The EPA points out that

the air quality data used in the Tier

2 rulemaking proceeding came from

before 1999, and did not contain the

1999 data that was included [**31] in

the Cincinnati metropolitan area

redesignation request. Indeed, the EPA

acknowledged the availability of the

more recent air quality data for the

Cincinnati metropolitan area in a

separate Tier 2 rulemaking proposal

that it published after promulgating

the February 10, 2000 Tier 2 rule. See

Control of Air Pollution From New

Motor Vehicles: Proposed Heavy-Duty

Engine and Vehicle Standards and

Highway Diesel Fuel Sulfur Control

Requirements, 65 Fed. Reg. 35,430,

35,441 (June 2, 2000).

Given the differences between the

data used to generate the findings in

the Cincinnati metropolitan area

redesignation [***20] proceeding and

that used in the Tier 2 proceeding,

the EPA's decision to treat the Tier 2

findings as inapplicable to the

present case "is a sufficiently

rational one to preclude a court from

substituting its judgment for that of

EPA." Chem. Mfrs. Ass'n v. Natural

Res. Def. Council, Inc., 470 U.S. 116,

125, 84 L. Ed. 2d 90, 105 S. Ct. 1102

(1985). We therefore uphold the EPA's

approval of the two states' clean air

maintenance plans for the Cincinnati

metropolitan area.

2. Commitment of enforcement

resources and authority

The [**32] petitioners also

contend that the EPA erred in

approving the Cincinnati metropolitan

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2001 FED App. 0318P (6th Cir.), ***18; 52 ERC (BNA) 1017
area maintenance plans because the

submitted plans lacked the required

resource and authority commitments for

enforcement. According to their

argument, CAA § 110(a)(2)(C) requires

that "each implementation plan . . .

include a program to provide for the

enforcement of the measures" described

in the plan. They assert that the

statute requires specific enforcement

measures to be included in the

maintenance plans that are submitted

in requests for redesignation.

The petitioners further claim that

the EPA erred in relying upon the

resource and authority commitments

contained in the original SIPs for

Kentucky and Ohio. See Approval and

Promulgation of Implementation Plans;

Kentucky: Approval of 1979 Sulfur

Dioxide Revisions, 45 Fed. Reg. 72,153

(Oct. 31, 1980) (promulgating the

EPA's approval of Kentucky's SIP), and

Approval and Promulgation of

Implementation Plans; Ohio, 45 Fed.

Reg. 72,122 (Oct. 31, 1980)

(promulgating the EPA's approval of

portions of Ohio's SIP, including the

portions pertaining to the Cincinnati

metropolitan area). As support for

their argument, they [**33] cite the

following federal regulation: "Each

plan must include a description of the

resources available to the State and

local agencies at the date of

submission of the plan and of any

additional resources needed to carry

out the plan during the 5-year period

following [*438] its submission." 40

C.F.R. § 51.280 (emphasis added in the

petitioners' brief). This language,

they argue, emphasizes the use of

separate, up-to-date [***21]

commitments, rather than "assuming

that the plan contains adequate

enforcement and resource commitments

based on inferences about plans from

decades ago."

We agree that a more contemporary

commitment of resources and authority

would allow the states to tailor their

commitments specifically to the plans

for which EPA approval is sought. But

there is no language in the CAA or in

the EPA's regulations that

specifically requires that a separate

commitment be made within the

maintenance plans themselves. Thus,

the EPA permissibly determined that

Kentucky and Ohio fulfilled the

requirement of submitting "a program

to provide for the enforcement of the

[maintenance] measures" when such

measures were already approved in

their [**34] earlier SIPs. Moreover,

this decision is in accord with the

interpretation given to the CAA under

the Calcagni Memorandum, advising that

"an EPA action on a redesignation

request does not mean that earlier

issues with regard to the SIP will be

reopened," id. at 3, an interpretation

that has been upheld by this court.

See Southwestern Pa. Growth Alliance

v. Browner, 144 F.3d 984, 989-90 (6th

Cir. 1998) (upholding the decision of

the EPA to redesignate the

Cleveland-Akron-Lorain area as an

attainment area for ozone even though

the interstate transport provisions

were contained in a prior Ohio SIP).

Accordingly, we uphold the EPA's

approval of the clean air maintenance

plans for the Cincinnati metropolitan

area.

C. Applicability of the

transportation-conformity requirements

The EPA acknowledges that Kentucky

has failed to submit a revision of its

SIP containing procedures that meet

all of the transportation-conformity

requirements of Part D, Subpart 1, of

the CAA. What effect, if any, this

failure has on the redesignation

requests is the question before us.

The petitioners contend that until

Kentucky submits a revision that meets

these transportation-conformity [**35]

requirements, the EPA has no authority

to redesignate the Cincinnati

metropolitan area to attainment

status. But the EPA argues that the

[***22] transportation-conformity

requirements are inapplicable to

requests for redesignation.

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2001 FED App. 0318P (6th Cir.), ***20; 52 ERC (BNA) 1017
In CAA § 107(d)(3)(E), Congress set

forth the five criteria that must be

met for an area to be redesignated

from nonattainment to attainment

status. Specifically, §

107(d)(3)(E)(v) states that the EPA

must determine that "the State

containing such area has met all

requirements applicable to the area

under section 7410 of this title and

part D of this subchapter." (Emphasis

added.) The statute, however, does not

describe how the EPA is to decide

which Part D requirements are

"applicable" in evaluating a

redesignation request.

In this and other rulemaking

proceedings, the EPA has interpreted

the transportation-conformity

requirements of Part D as inapplicable

for the purposes of redesignation. Its

general rationale is that requiring

the submission of

transportation-conformity rules at the

redesignation request stage is

unnecessary to ensure that the area

will abide by the

transportation-conformity provisions

of Part D, because other requirements

[**36] apart from CAA §

107(d)(3)(E)(v) are already in place

to ensure that the area does so. The

agency distinguishes the

transportation-conformity requirements

from the other requirements in CAA §

110 and Part D on the basis that the

other requirements, unlike the

transportation-conformity

requirements, are linked to the

nonattainment status of an area and

thus need no longer [*439] be

complied with upon redesignation to

attainment status. Specifically, the

EPA points out that: (1) Kentucky will

still remain obligated to adopt the

transportation-conformity rules even

after redesignation, see CAA §

176(c)(1)(A) (applying

transportation-conformity rules to all

areas, without regard to attainment or

nonattainment status), and would risk

sanctions if it fails to do so, and

(2) the federal

transportation-conformity rules will

still require Kentucky to perform

transportation conformity analyses

even in the absence of federally

approved state rules. See § 176(c)(3)

(providing that transportation

conformity must be demonstrated "until

such time as the implementation plan

revision . . . is approved"). [***23]

The EPA's interpretation, in lieu

of other guidance on this matter, is

not [**37] unreasonable. Although

"applicable" could be interpreted as

limiting only the geographical area to

which the statutory requirements must

apply, it can also be interpreted as

limiting the number of actual

requirements within CAA § 110 and Part

D that apply to a given area. The

petitioners, however, contend that the

interpretation put forth by the EPA in

this rulemaking proceeding conflicts

with the agency's own General Preamble

for the Implementation of Title I of

the CAA Amendments of 1990. In this

general preamble, the EPA stated that,

as a prerequisite to designation, "the

State must show that the section 176

requirements of conformity have been

met," and that the "SIP conformity

provisions must be consistent with EPA

guidance." 57 Fed. Reg. 13,498, 13,564

(Apr. 16, 1992).

The petitioners also cite the EPA's

Calcagni Memorandum, which provides:

"If the State submits the

redesignation request subsequent to

EPA's issuance of the conformity

regulations, and the conformity

requirement became applicable to the

area prior to submission, the State

must adopt the applicable conformity

requirements before EPA can

redesignate the area." Id. at 6-7.

This language, they [**38] argue,

indicates that the agency itself has

interpreted the

transportation-conformity regulations

as applying to redesignation requests.

But during a later rulemaking

proceeding that complied with all

notice and comment requirements, the

EPA informed the public that it was

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2001 FED App. 0318P (6th Cir.), ***22; 52 ERC (BNA) 1017
reversing its earlier interpretation

regarding the applicability of

transportation-conformity requirements

to redesignation requests, such that

they would no longer be deemed

applicable. See Approval and

Promulgation of Implementation Plans

and Designation of Areas for Air

Quality Planning Purposes; State of

Florida Change in National Policy

Regarding Applicability of Conformity

Requirements to Redesignation

Requests, 60 Fed. Reg. 62,748, 62,750

(Dec. 7, 1995). In doing so, the EPA

set forth the same two rationales that

it gives in the case before us.

Furthermore, after its 1995 rulemaking

proceeding, the [***24] EPA has

consistently applied the same

interpretation regarding the

applicability of

transportation-conformity requirements

in evaluating redesignation requests.

See, e.g., Approval and Promulgation

of Implementation Plans and

Designation of Areas for Air Quality

Planning Purposes; [**39] Ohio, 61

Fed. Reg. 20,548 (May 7, 1996);

Approval and Promulgation of

Implementation Plans and Designation

of Areas for Air Quality Planning

Purposes; State of Wisconsin, 61 Fed.

Reg. 43,668, 43,670 (Aug. 26, 1996).

As the Supreme Court observed in

Rust v. Sullivan, 500 U.S. 173,

186-87, 114 L. Ed. 2d 233, 111 S. Ct.

1759 (1991), "a revised interpretation

deserves deference because an initial

agency interpretation is not instantly

carved in stone and the agency, to

engage in informed rulemaking, must

consider varying interpretations and

the wisdom [*440] of its policy on a

continuing basis." (Brackets and

quotation marks omitted.) Moreover,

the interpretation put forth in the

1995 Florida rulemaking does not

conflict with the statute and,

instead, "is a sufficiently rational

one to preclude a court from

substituting its judgment for that of

EPA." Chem. Mfrs. Ass'n v. Natural

Res. Def. Council, Inc., 470 U.S. 116,

125, 84 L. Ed. 2d 90, 105 S. Ct. 1102

(1985). We accordingly defer to the

EPA's determination that Kentucky's

failure to submit a revision to its

SIP that meets the Part D

transportation-conformity requirements

is not [**40] a basis to deny the

designation of the Cincinnati

metropolitan area to attainment

status.

D. Adoption of the reasonably

available technology (RACT) rules

The petitioner's final challenge is

to the EPA's authority to grant

Kentucky's and Ohio's requests for

redesignation when Ohio had not

adopted all of the RACT rules provided

in Part D, Subpart 2. Specifically,

they point out that Ohio has not

adopted all of the RACT rules for the

VOC source categories covered by the

CTG documents issued since 1990. They

argue that under CAA § 182(b), Ohio is

required to adopt the RACT rules in

its SIP, and that the incorporation of

the rules [***25] as an optional

measure in a contingency plan is no

substitute for actual adoption. We

agree.

The applicability of the

transportation-conformity

requirements, discussed in Part II. C.

above, is in dispute, and the statute

is ambiguous on their applicability to

redesignation requests. In contrast,

the applicability of the RACT rules to

redesignation requests is not in

dispute. Indeed, in the agency's

initial redesignation evaluation, the

EPA agreed that its own policy "would

require full adoption, submission and

approval of [certain [**41] RACT

rules] prior to approval of the

redesignation request." 65 Fed. Reg.

at 3636. It further stated that "the

requirement for these RACT rules

remains an applicable requirement for

purposes of evaluating the

redesignation request since it

predated the submission of the

request." Id. (emphasis added).

Moreover, the statutory language

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regarding the implementation of RACT

rules is not ambiguous. The relevant

language provides as follows: "The

State shall submit a revision to the

applicable implementation plan to

include provisions to require the

implementation of reasonably available

control technology." CAA § 182(b)(2).

By this language, it is clear that

Congress intended for SIPs submitted

in redesignation requests to include

"provisions to require the

implementation of" RACT measures.

The EPA, however, claims that the

statute does not speak to what

constitutes an acceptable "provision."

Accordingly, the agency contends that

we must defer to its interpretation of

the statute as allowing RACT rules to

be incorporated within a state's

contingency provisions rather than

requiring them to be actually adopted

and implemented.

A contingency provision, however,

[**42] is not immediately effective.

See Black's Law Dictionary 315 (7th

ed. 1999) (defining a contingency as,

among other things, "an event that may

or may not occur; a possibility" and

"the condition of being dependent on

chance; uncertainty"). Indeed, the

RACT rules as utilized in Ohio are one

additional step removed from even

being required as contingency

measures, [***26] given that Ohio's

contingency plan includes the RACT

measures among eleven other

"contingency measures to be considered

for implementation for the Ohio

portion of the Cincinnati-Hamilton

area." 65 Fed. Reg. at 3639 (emphasis

added). So even if the [*441]

contingency measures become triggered,

there appears to be no requirement

that the RACT measures be among those

actually adopted. See id. The

availability of RACT rules in Ohio's

contingency provisions, therefore,

does not satisfy the plain language of

CAA § 182(b)(2).

Additional statutory and agency

guidance language also contradicts the

EPA's assertion that it can substitute

contingency provisions for actual

adoption of the RACT rules. CAA §

182(b)(2), for instance, requires that

plan provisions "shall be submitted

within the period set [**43] forth by

the Administrator in issuing the

relevant CTG document." In turn, each

CTG document sets express timelines by

which states must implement various

RACT rules. See, e.g., Control

Techniques Guidelines Document;

Addendum to Control Techniques

Guidelines Document: Reactor Processes

and Distillation Operations Processes,

59 Fed. Reg. 13,717 (Mar. 23, 1994)

("Any State which has not adopted an

approvable RACT rule for the sources

covered by this CTG must submit a RACT

rule for these sources before March

23, 1995."). Moreover, a 1993 EPA

guidance memorandum states that "full

adoption of all of the

statutorily-required programs, as well

as a schedule and an enforcement

commitment for an implementation date,

are necessary for redesignation to

attainment from nonattainment for

ozone or CO if the redesignation

request is submitted after the

statutory due date of the program."

Memorandum from Michael H. Shapiro,

Acting Assistant Administrator for Air

and Radiation, EPA, to eight directors

of the EPA, at 6 (Sept. 17, 1993)

(emphasis added).

The EPA, however, argues that it

later modified its guidance memorandum

when it approved the redesignation

request for the [**44] Grand Rapids,

Michigan area. It also claims support

for the departure from policy in the

present case by [***27] pointing out

that: (1) emissions reductions from

RACT measures are not presently needed

for attainment and maintenance in

Cincinnati, (2) upon redesignation,

Ohio could halt the implementation of

even fully approved RACT measures and

move them into the contingency plans,

and (3) the result of its action here

is not much different than had it

required the state to comply with the

RACT requirement before redesignation.

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These arguments are in addition to

those formally promulgated by the EPA

in the Federal Register to justify its

departure from the standard policy

requirements regarding the

certification of attainment (see page

13 above, citing 65 Fed. Reg. at

3636). Although all of these

justifications could well support its

position if the statute on

implementation of the RACT measures

were ambiguous, they do not allow the

EPA to take a position that conflicts

with the clear intention of Congress

to require actual provisions rather

than optional contingency measures.

See Chevron U.S.A., Inc. v. Natural

Res. Def. Council, Inc., 467 U.S. 837,

843 n.9, 81 L. Ed. 2d 694, 104 S. Ct.

2778 (1984) [**45] ("If a court,

employing traditional tools of

statutory construction, ascertains

that Congress had an intention on the

precise question at issue, that

intention is the law and must be given

effect.").

Finally, the EPA argues that CAA §

175A(d) provides it with the authority

to place the RACT measures on a list

of contingency measures instead of

requiring their adoption in a

submitted SIP. This section requires

that maintenance plans submitted for

redesignation purposes must "contain

such contingency provisions as the

Administrator deems necessary to

assure that the State will promptly

correct any violation of the standard

[ozone NAAQS] which occurs after the

redesignation [*442] of the area as

an attainment area." Id.

But CAA § 175A does not provide the

authority for a state to avoid the

adoption of RACT control measures

simply because it incorporates them as

optional contingency provisions in its

maintenance plan. CAA § 175A(d), in

fact, further states that these

measures must "include a requirement

[***28] the State will implement all

measures with respect to the control

of the air pollutant concerned which

were contained in the State

implementation plan for the area

[**46] before redesignation of the

area as an attainment area." Id.

(emphasis added). This language

suggests that Congress contemplated

that RACT control measures would

already be part of the SIP in the

first place.

We therefore conclude that the EPA

abused its discretion when it

determined that it could redesignate

the Cincinnati metropolitan area as

achieving attainment before Ohio had

fully adopted all of the RACT rules of

Part D, Subpart 2, of the CAA. This

result is compelled by the fact that

the statutory language is unambiguous

and because Congress clearly intended

that actual provisions to require the

implementation of RACT measures must

be contained in SIPs submitted with

respect to redesignation requests.

III. CONCLUSION

For all the reasons set forth

above, we VACATE the EPA's action in

redesignating Cincinnati metropolitan

area to attainment status for

ground-level ozone, and REMAND for

further proceedings consistent with

this opinion.

Page 16

265 F.3d 426, *441; 2001 U.S. App. LEXIS 20138, **44;

2001 FED App. 0318P (6th Cir.), ***27; 52 ERC (BNA) 1017
109KW3

********** Print Completed **********

Time of Request: Wednesday, February 14, 2007 12:18:59 EST

Print Number: 1861:12329015

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Number of Pages: 16

Send To: WEHLING, JEFF

EPA ORC REGION IX SAN FRANCISCO

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SAN FRANCISCO, CA 94105-3922