108P1Z

Time of Request: Tuesday, January 17, 2012 17:29:20 EST

Client ID/Project Name:

Number of Lines: 611

Job Number: 2829:328222649

Research Information

Service: LEXSEE(R) Feature

Print Request: Current Document: 1

Source: Get by LEXSEE(R)

Search Terms: 265 f3d 426

Send to: WILCOX, GEOFFREY

US ENVIRONMENTAL PROTECTION AGENCY

1200 PENNSYLVANIA AVE NW

WASHINGTON, DC 20460-0001
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,

Page 1
intervened in support of Wall and Fremont. For the

[***3] reasons set forth below, we VACATE the EPA's

action in 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] 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

Page 2

265 F.3d 426, *427; 2001 U.S. App. LEXIS 20138, **2;

2001 FED App. 0318P (6th Cir.), ***2; 52 ERC (BNA) 1017
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

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

Page 3

265 F.3d 426, *429; 2001 U.S. App. LEXIS 20138, **6;

2001 FED App. 0318P (6th Cir.), ***5; 52 ERC (BNA) 1017
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 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

Page 4

265 F.3d 426, *430; 2001 U.S. App. LEXIS 20138, **10;

2001 FED App. 0318P (6th Cir.), ***7; 52 ERC (BNA) 1017
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 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 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

Page 5

265 F.3d 426, *431; 2001 U.S. App. LEXIS 20138, **14;

2001 FED App. 0318P (6th Cir.), ***9; 52 ERC (BNA) 1017
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,

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

Page 6

265 F.3d 426, *432; 2001 U.S. App. LEXIS 20138, **17;

2001 FED App. 0318P (6th Cir.), ***12; 52 ERC (BNA) 1017
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 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).

Page 7

265 F.3d 426, *434; 2001 U.S. App. LEXIS 20138, **21;

2001 FED App. 0318P (6th Cir.), ***14; 52 ERC (BNA) 1017
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 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 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

Page 8

265 F.3d 426, *435; 2001 U.S. App. LEXIS 20138, **25;

2001 FED App. 0318P (6th Cir.), ***16; 52 ERC (BNA) 1017
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 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

Page 9

265 F.3d 426, *436; 2001 U.S. App. LEXIS 20138, **29;

2001 FED App. 0318P (6th Cir.), ***18; 52 ERC (BNA) 1017
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.

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

Page 10

265 F.3d 426, *438; 2001 U.S. App. LEXIS 20138, **33;

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

Page 11

265 F.3d 426, *439; 2001 U.S. App. LEXIS 20138, **37;

2001 FED App. 0318P (6th Cir.), ***23; 52 ERC (BNA) 1017
(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.

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.

Page 12

265 F.3d 426, *440; 2001 U.S. App. LEXIS 20138, **42;

2001 FED App. 0318P (6th Cir.), ***25; 52 ERC (BNA) 1017
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 13

265 F.3d 426, *442; 2001 U.S. App. LEXIS 20138, **46;

2001 FED App. 0318P (6th Cir.), ***28; 52 ERC (BNA) 1017
108P1Z

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

Time of Request: Tuesday, January 17, 2012 17:29:20 EST

Print Number: 2829:328222649

Number of Lines: 611

Number of Pages: 13

Send To: WILCOX, GEOFFREY

US ENVIRONMENTAL PROTECTION AGENCY

1200 PENNSYLVANIA AVE NW

WASHINGTON, DC 20460-0001