LEXSEE 99 F. 3D 1551

SIERRA CLUB; WASATCH CLEAN AIR COALITION, Petitioners, v. UNITED

STATES ENVIRONMENTAL PROTECTION AGENCY, Respondent, STATE OF

UTAH, Intervenor.

No. 95-9541

UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT

99 F.3d 1551; 1996 U.S. App. LEXIS 29487; 44 ERC (BNA) 1033; 27 ELR 20458

November 13, 1996, Filed

PRIOR HISTORY: [**1] Appeal from an Order of

The United States Environmental Protection Agency.

DISPOSITION: Environmental Protection Agency's

"Determination of Attainment of Ozone Standard for Salt

Lake and Davis Counties, Utah, and Determination

Regarding Applicability of Certain Reasonable Further

Progress and Attainment Demonstration Requirements"

upheld, Petition for Review denied.

COUNSEL: Munir R. Meghjee (Robert B. Wiygul,

Sierra Club Legal Defense Fund, Denver, Colorado, and

Robert W. Adler, Salt Lake City, Utah, with him on the

briefs), Sierra Club Legal Defense Fund, Denver,

Colorado, for Petitioners.

David A. Carson, (Lois J. Schiffer, Assistant Attorney

General, Environment & Natural Resources Division;

Kevin W. McLean and Kendra H. Sagoff, Office of

General Counsel, United States Environmental Protection

Agency, Washington, D.C.; Jonah M. Staller, Office of

Regional Counsel, United States Environmental

Protection Agency, Denver, Colorado, with him on the

brief), United States Department of Justice, Environment

& Natural Resources Division, Denver, Colorado, for

Respondent.

Fred G. Nelson (Jan Graham, Attorney General; Denise

Chancellor, Assistant Attorney General with him on the

brief), Assistant [**2] Attorney General, Salt Lake City,

Utah, for Intervenor.

JUDGES: Before BRORBY, GODBOLD * and

McWILLIAMS, Circuit Judges.

* The Honorable John C. Godbold, Senior

Circuit Judge for the Eleventh Circuit, sitting by

designation.

OPINION BY: BRORBY

OPINION

[*1553] BRORBY, Circuit Judge.

The Sierra Club and Wasatch Clean Air Coalition

("Petitioners") seek judicial review of a final agency

action in accordance with the Clean Air Act (the "Act"),

42 U.S.C. § 7607(b)(1) (1994). Specifically, Petitioners

challenge the Environmental Protection Agency's

decision to exempt Salt Lake and Davis Counties, Utah

(the "Counties") from selected Clean Air Act

"nonattainment area" requirements without first

redesignating the Counties as an "attainment area"

pursuant to 42 U.S.C. § 7407(d)(3)(E)(i)-(v) (1994).

Petitioners contend the Environmental Protection

Agency's decision is unreasonable and contrary to the

plain meaning of the Clean Air Act, and therefore must

be set aside under both the first and second steps of

Page 1
Chevron USA, Inc. v. Natural Resources Defense

Council, Inc., 467 U.S. 837, 81 L. Ed. 2d 694, 104 S. Ct.

2778 (1984).

Having thoroughly reviewed the administrative record

and considered the parties' arguments, we uphold [**3]

the Environmental Protection Agency's Clean Air Act

interpretation and deny the Petitioners' request to set

aside the Environmental Protection Agency's July 18,

1995 final decision entitled "Determination of Attainment

of Ozone Standard for Salt Lake and Davis Counties,

Utah, and Determination Regarding Applicability of

Certain Reasonable Further Progress and Attainment

Demonstration Requirements."

NATURE OF THE CASE

The Clean Air Act, 42 U.S.C. §§ 7401 - 7671q

(1994) establishes a program, jointly administered by the

federal government and the states, to "protect and

enhance the quality of the Nation's air resources so as to

promote the public health and welfare and productive

capacity of its population." 42 U.S.C. § 7401(b)(1).

Toward that end, the Act requires the Environmental

Protection Agency to establish primary and secondary

National Ambient Air Quality Standards for certain

pollutants such as ozone. 1 Pursuant to the Act, areas

failing to meet the National Ambient Air Quality

Standard for ozone are designated as "nonattainment"

areas, which must develop a State Implementation Plan

with sufficient control measures to attain and maintain

the ozone standard. [**4] 42 U.S.C. § 7410.

1 The National Ambient Air Quality Standard

for ozone is 0.12 ppm not to be exceeded more

than 3 times in a three year period at any one

monitoring station. 40 C.F.R. § 50.9 & App. H

(1995).

In 1977, Salt Lake and Davis Counties, Utah, failed

to meet the National Ambient Air Quality Standards for

ozone. Accordingly, the Counties were designated as a

nonattainment area and submitted a State Implementation

Plan to the Environmental Protection Agency.

Amendments to the Clean Air Act in 1990, which further

classified ozone nonattainment areas according to the

severity of air pollution (e.g., marginal, moderate,

serious, severe, and extreme), 42 U.S.C. § 7511, resulted

in the Counties being reclassified as a "moderate

nonattainment area." 40 C.F.R. § 81.345 (1995).

Moderate nonattainment areas are subject to the

requirement of 42 U.S.C. §§ 7511a(b)(1)(A)(i) and

7502(c)(9). Section 7511a(b)(1)(A)(i),

2 referred to as the

"fifteen [*1554] percent reasonable further progress

plan" and the "attainment [**5] demonstration"

provision, requires moderate nonattainment areas to

continue "reasonable further progress" toward attaining

National Ambient Air Quality Standards. This goal is

achieved by requiring the area to submit a plan providing

for a fifteen percent reduction in volatile organic

compounds. Additionally, § 7511a(b)(1)(A)(i) requires

the submitted plan provide for such specific annual

emission reductions sufficient to demonstrate the area

will attain the National Ambient Air Quality Standards

by the statutory deadline. Section 7502(c)(9) provides

further future compliance assurance by requiring

moderate and other nonattainment areas to submit a plan

with specific "contingency measures" to be implemented

if the area fails to attain, or fails to make reasonable

further progress toward attaining, the National Ambient

Air Quality standards by the statutory deadline.

2 Section 7511a(b)(1)(A)(i) states in relevant

part:

§ 7511a. Plan submissions and

requirements

(b) Moderate Areas

(1) Plan provisions for

reasonable further progress

(A) General rule

(i) By no later than 3 years

after November 15, 1990, the State

shall submit a revision to the

applicable implementation plan to

provide for volatile organic

compound emission reductions,

within 6 years after November 15,

1990, of at least 15 percent from

the baseline emissions, accounting

for any growth in emissions after

1990. Such plan shall provide for

such specific annual reductions in

emissions of volatile organic

compounds and oxides of nitrogen

as necessary to attain the national

primary ambient air quality

Page 2

99 F.3d 1551, *1553; 1996 U.S. App. LEXIS 29487, **2;

44 ERC (BNA) 1033; 27 ELR 20458
standard for ozone by the

attainment date ....

[**6] By the end of summer 1992 the Counties had

collected the requisite three years of ambient monitoring

data to demonstrate attainment of the ozone standard. In

fact, the data demonstrates the Counties have attained the

ozone standard since 1991. 3 Accordingly, in 1993, the

State of Utah submitted an application to the

Environmental Protection Agency requesting that Salt

Lake and Davis Counties be redesignated as an

"attainment" area pursuant to 42 U.S.C. § 7407(d)(3). The

Environmental Protection Agency and the State of Utah

continue to work toward the completion of the

redesignation process.

3 This improvement largely is attributed to the

implementation of state air quality plans in the

1980's that reduced motor vehicle emissions and

applied reasonably available control technology to

the point sources of ozone precursor pollutants.

Ozone is formed through the interaction of

volatile organic compounds, nitrogen oxides,

carbon monoxide and sunlight. The sources of

these ozone precursor pollutants include facilities

that handle petroleum products, combustion

sources, petroleum fuel powered engines and

biogenic sources.

[**7] Pending completion of the redesignation

process, and based on air quality data collected from

1992 to 1994, the Environmental Protection Agency

issued a direct final rule and a final rule, 4 which is the

basis of Petitioners' challenge. 60 Fed. Reg. 30,217

(1995) (proposed rule); 60 Fed. Reg. 30,189 (direct final

rule).

4 A direct final rule becomes effective without

further administrative action, unless adverse

comments are received within the time limit

specified in the proposed rule. If adverse

comments are received, the Environmental

Protection Agency withdraws its direct final rule

and issues a final rule that addresses those

comments. In this case, the Environmental

Protection Agency received comments from the

Sierra Club and one other commenter. The

Environmental Protection Agency therefore

withdrew its direct final rule and, after

considering the comments, issued its final rule.

In its final rule, without redesignating the area as an

attainment area, the Environmental Protection Agency

determined [**8] that because the Counties had attained

the National Ambient Air Quality Standards the "fifteen

percent reasonable further progress plan" and the

"attainment demonstration" requirements of §

7511a(b)(1)(A)(i) and the "contingency measures"

requirement of § 7502(c)(9) were inapplicable. 60 Fed.

Reg. at 36, 723. In addition, the State of Utah would not

be subject to Clean Air Act sanctions for failure to submit

plan revisions addressing these requirements. 5

Petitioners challenge this final [*1555] rule, asserting

that the fifteen percent reasonable further progress plan,

attainment demonstration, and contingency measures

requirements are mandatory absent formal redesignation

to attainment area status.

5 Any state failing to satisfy Clean Air Act

requirements is subject to federal sanctions in the

form of stricter requirements for siting new or

modified pollution sources, or a prohibition on the

approval of federal highway funds. 42 U.S.C. §

7509. The Environmental Protection Agency is

authorized to impose sanctions eighteen months

after finding a state has failed to submit required

State Implementation Plan elements. This

eighteen-month "sanctions clock" is turned off if

and when the deficiency is corrected, or when an

area is redesignated to attainment. See 42 U.S.C.

§§ 7509(a), 7505a(c).

[**9] ANALYSIS

The issue for our determination is whether the

Environmental Protection Agency correctly determined

that 42 U.S.C. §§ 7502(c)(9) and 7511a(b)(1)(A)(i), do

not apply to areas which are attaining the ozone standard,

but which have not yet been redesignated as attainment

areas. This Court will set aside the Environmental

Protection Agency's determination only if it is arbitrary,

capricious, or otherwise not in accordance with law. 5

U.S.C. § 706(2)(A) (1994). Where, as here, the issue turns

on the Environmental Protection Agency's interpretation

of a statute it administers, our analysis is dictated by

Chevron USA, Inc. v. Natural Resources Defense

Council, Inc., 467 U.S. 837, 81 L. Ed. 2d 694, 104 S. Ct.

2778 (1984). Applying Chevron, we first determine

whether the statute is unambiguous -- i.e., whether

Congress directly has spoken to the precise question at

issue. Chevron, 467 U.S. at 842-43; Marshall v. Chater,

Page 3

99 F.3d 1551, *1554; 1996 U.S. App. LEXIS 29487, **5;

44 ERC (BNA) 1033; 27 ELR 20458
75 F.3d 1421, 1428 (10th Cir. 1996). If congressional

intent is clear, we must give effect to that intent. If,

however, the statute is ambiguous or silent on the issue in

question, we must proceed to the second step of the

Chevron analysis and determine whether [**10] the

agency's determination is based on a permissible

construction of the statute. If the agency's construction is

reasonable, we will defer to the agency's interpretation.

Chevron, 467 U.S. at 842-44; Marshall, 75 F.3d at 1428.

A. Plain Language

Petitioners first contend the Environmental

Protection Agency's final rule exempting the Counties

from the fifteen percent volatile organic compound

reduction, attainment demonstration and contingency

measures requirements is contrary to the plain meaning of

the Clean Air Act and must be set aside under the first

step of the Chevron analysis. We disagree.

Petitioners' plain language argument is circuitous and

difficult to summarize. However, Petitioners appear to

build from the premise that each of the provisions at issue

must be read individually and literally to give full effect

to any mandatory language included in those provisions.

It is true a literal reading of the first sentence of 42 U.S.C.

§ 7511a(b)(1)(A)(i), in isolation, does mandate that a

state with a moderate nonattainment area "shall submit a

revision to the applicable implementation plan to provide

for volatile organic compound emission reductions ... of

[**11] at least 15 percent from baseline emissions." That

provision goes on, however, to state that "such plan shall

provide for such specific annual reductions in emissions

of volatile organic compounds and oxides of nitrogen as

necessary to attain the national primary ambient air

quality standard for ozone." Id. (emphasis added).

Moreover, the provision is captioned "Plan provisions for

reasonable further progress." The phrase "reasonable

further progress" is defined as "such annual incremental

reductions in emissions of the relevant air pollutant as are

required by this part or may reasonably be required by the

Administrator for the purpose of ensuring attainment of

the applicable national ambient air quality standard." 6

42 U.S.C. § 7501(1) (emphasis added). The plain

language of 42 U.S.C. § 7502(c)(9) similarly refers to

contingency measures to be taken if an area "fails to

make reasonable further progress, or to attain the national

primary ambient air quality standard." When read as a

whole to properly understand the statutory context, see

Urban v. King, 43 F.3d 523, 526 (10th Cir. 1994), these

two provisions fail to clearly require areas that have

attained the [**12] ozone standard but have not yet been

redesignated to attainment status to make further

emission reductions. The language instead suggests

Congress intended the fifteen percent volatile organic

compound reduction requirement and [*1556] the

contingency measures requirement to apply only when

necessary to attain the relevant ozone standard.

6 This definition applies for "the purposes of ...

part" D of Title I of the Clean Air Act, which

includes 42 U.S.C. § 7511a(b)(1)(A)(i). Id.

At best, Petitioners' complex plain language

argument establishes that some ambiguity may exist as to

Congress' intent . We therefore move on to consider

whether the Environmental Protection Agency's

construction of the two provisions at issue is a

permissible one.

B. The Environmental Protection Agency's Interpretation

Petitioners contend that even if the Environmental

Protection Agency's statutory interpretation does not

violate the plain statutory language, the agency's

interpretation is unreasonable as it creates internal

inconsistencies [**13] in the Environmental Protection

Agency's application of the Act and circumvents the

Clean Air Act 's preventive approach. The Environmental

Protection Agency's rationale for its determination is set

forth fully in the final rule being challenged, 60 Fed. Reg.

36,723 (1995), and in the May 10, 1995 memorandum

from John Seitz, Director, Office of Air Quality Planning

and Standards to the various regional air quality directors.

In essence, the Environmental Protection Agency reasons

that the purpose of the fifteen percent volatile organic

compound reduction requirement, the attainment

demonstration requirement and the contingency measures

requirement is to ensure reasonable further progress

toward and timely attainment of the National Ambient

Air Quality Standard for ozone. If an area can

demonstrate via three years of monitoring data that it has

in fact attained the ozone standard, the purpose of those

requirements has been fulfilled and plan provisions

outlining additional measures to achieve attainment

would have little meaning. Moreover, air quality controls

designed to surpass the applicable ozone standard would

be both costly and unnecessary.

1. Programmatic Consistency.

Page 4

99 F.3d 1551, *1555; 1996 U.S. App. LEXIS 29487, **9;

44 ERC (BNA) 1033; 27 ELR 20458
[**14] Petitioners argue it is inconsistent for the

Environmental Protection Agency to apply some ozone

nonattainment area requirements (e.g., the application of

reasonable available control technology to stationary

sources and the implementation of a motor vehicle

inspection and maintenance plan), but not others (e.g., the

fifteen percent volatile organic compound reduction and

contingency measures). Instead, they would have the

Environmental Protection Agency rigidly apply all ozone

nonattainment area requirements unless and until an area

is formally redesignated to attainment status. Petitioners

contend there is no basis for distinguishing the provisions

since each requirement "has the same substantive effect --

to reduce emissions of pollutants so that the [National

Ambient Air Quality Standard] is attained both now and

in the future."

The Environmental Protection Agency consistently

has rejected this all or nothing approach. Shortly after the

Clean Air Act Amendments of 1990, the Environmental

Protection Agency published a General Preamble for the

Implementation of Title I of the Clean Air Act

Amendments of 1990. 57 Fed. Reg. 13,498 (1992). In

that preamble, the Environmental [**15] Protection

Agency determined certain general nonattainment plan

requirements do not apply in evaluating a request for

redesignation to attainment under circumstances where

(1) an area has in fact monitored attainment of the

standard, and (2) those requirements are expressly linked

by statutory language with the notion of reasonable

further progress. See 57 Fed. Reg. at 13,564. The

Environmental Protection Agency reasoned that when an

area requests redesignation to attainment status,

at a minimum, the air quality data for the

area must show that the area has already

attained [the National Ambient Air

Quality Standards]. Showing that the State

will make [reasonable further progress]

towards attainment will, therefore, have no

meaning at that point.

57 Fed. Reg. at 13,564. In other words, once the

standards are obtained, requirements related to the

demonstration of reasonable further progress toward

attainment serve no purpose. Any additional or future air

quality protection is left to the operation of other Clean

Air Act provisions.

The determination to exempt Salt Lake and Davis

Counties from analogous [*1557] ozone-specific

nonattainment plan requirements is a logical [**16]

extension of the Environmental Protection Agency's

original, general interpretation of the 1990 Clean Air Act

Amendments. We afford deference to the Agency's

interpretation under these circumstances. New Mexico

Envtl. Improvement Div. v. Thomas, 789 F.2d 825,

831-32 (10th Cir. 1986) (the court will defer to an

agency's statutory interpretation when such an

interpretation is contemporaneous with the legislation's

enactment and has been consistently adhered to by the

agency over time).

Consistent with its interpretation of the general

reasonable further progress provisions, the Environmental

Protection Agency exempted the Counties from the §§

7511a(b)(1)(A)(i) and 7502(c)(9) requirements because

the statutory language imposing those requirements is

directly linked to the notion of reasonable further

progress toward attainment. Here again, the stated

purpose of "reasonable further progress" is to ensure

attainment by the applicable attainment date. If a

moderate ozone nonattainment area has in fact already

attained the ozone standard, it would make little sense to

require a state to demonstrate the area will make

reasonable progress toward attainment.

Not all ozone nonattainment [**17] area provisions

are semantically connected to reasonable further progress

requirements. For obvious reasons, the application of

those provisions (i.e., the application of reasonable

available control technology to stationary sources and the

implementation of a motor vehicle inspection and

maintenance plan, 42 U.S.C. §§ 7511a(b)(2),

7511a(b)(4)) continues to fulfill important Clean Air Act

objectives whether or not an area has attained the ozone

standard. Accordingly, the Environmental Protection

Agency affords no relief from those requirements based

on actual attainment.

We do not find the Environmental Protection

Agency's interpretation to create programmatic

inconsistency. Nor do we find anything in the structure or

language of the nonattainment area provisions at issue

that contradicts the Environmental Protection Agency's

longstanding interpretation. In sum, the Petitioners'

uncompromising reading of the ozone nonattainment area

requirements lacks the textual support necessary to

overcome the Environmental Protection Agency's

pragmatic construction.

Page 5

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44 ERC (BNA) 1033; 27 ELR 20458
2. The Redesignation Process.

Petitioners assert that the redesignation process

outlined at 42 U.S.C. § 7407d(3)(E) represents [**18]

the exclusive means by which an area may be

redesignated from nonattainment to attainment status.

Thus, Petitioners argue, the Environmental Protection

Agency is not authorized to make any factual

determination of attainment outside the formal

redesignation process.

The Environmental Protection Agency may

redesignate an area from nonattainment to attainment in

accordance with the provisions of 42 U.S.C. §

7407(d)(3)(E). Notably, this process involves more than a

simple determination the area has attained the relevant

National Ambient Air Quality Standards. In addition to

that factual determination, the Environmental Protection

Agency must (1) fully approve the State Implementation

Plan; (2) determine that the improvement in air quality is

due to permanent and enforceable reductions in emissions

resulting from implementation of the State

Implementation Plan and other required reductions; (3)

fully approve a maintenance plan under 42 U.S.C. §

7505a; and (4) determine that the State has met all

applicable requirements under 42 U.S.C. § 7410 with

respect to State Implementation Plans generally, and

under part D with respect to State Implementation Plan

provisions for nonattainment [**19] areas. 42 U.S.C. §

7407(d)(3)(E). Before an area may be redesignated to

attainment, the State also must adopt and submit

maintenance plans that (1) provide for maintenance of the

National Ambient Air Quality Standards for at least ten

years after redesignation, and (2) include additional

measures as necessary to ensure the area remains in

attainment. 42 U.S.C. § 7505a. The State further is

required to revise its maintenance plan eight years after

redesignation to cover a second ten-year period after the

first ten-year maintenance [*1558] plan expires. 7 42

U.S.C. § 7505a(b).

7 Accordingly, the Environmental Protection

Agency intends that the maintenance plans will

ensure that population growth and other changes

in a redesignated area over a twenty-year period

do not lead to a violation of the relevant National

Ambient Air Quality Standards.

The Environmental Protection Agency has made it

abundantly clear its determination to exempt the Counties

from certain reasonable further progress and attainment

demonstration [**20] requirements is not a de facto

redesignation to attainment status. 60 Fed. Reg. at

36,723. As discussed above, the redesignation process

involves more than a factual determination that

monitoring data establishes attainment with the

applicable standard. All redesignation criteria at 42

U.S.C. § 7407(d)(3)(E) remain in full force and effect and

must be satisfied before the Environmental Protection

Agency will approve the Counties' pending redesignation

request. Moreover, if the Counties violate the ozone

National Ambient Air Quality Standards prior to their

redesignation to attainment status, the exemption from

certain attainment demonstration and reasonable further

progress requirements will no longer apply, and the

Counties will have to submit plan revisions pursuant to

42 U.S.C. §§ 7502(c)(9) and 7511a(b)(1)(A)(i). In

addition, if the Counties violate the ozone standards prior

to redesignation, they would be "bumped-up" from

moderate nonattainment status to serious nonattainment

status pursuant to 42 U.S.C. § 7511(b)(2), and would then

have to satisfy the more stringent requirements imposed

on serious ozone nonattainment areas. See 42 U.S.C. §

7511a(c)(2)(b). Under these circumstances, [**21] the

Petitioners' argument that the Environmental Protection

Agency is somehow circumventing the formal

redesignation process is unavailing. The Environmental

Protection Agency has convincingly demonstrated it is

not circumventing the redesignation process and the State

of Utah is not without incentive to complete this process.

3. Statutory Purpose.

Finally, Petitioners argue the Environmental

Protection Agency's Clean Air Act interpretation is

unreasonable as it fails to satisfy the Clean Air Act's

purpose to protect public health. In this context, the

Petitioners emphasize their concern that the

Environmental Protection Agency is failing to ensure the

Counties will continue to attain the applicable ozone

standards in the future by creating a "limbo" between

attainment and nonattainment status "that deprives

citizens of the contingent protections against future

declines in air quality."

We remain unpersuaded by this argument. As

discussed above, the provisions at issue are directly

linked to reasonable further progress toward attainment

of the ozone National Ambient Air Quality Standards, not

beyond. To date, the Utah State Implementation Plan's

existing air quality control [**22] measures and other

Page 6

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44 ERC (BNA) 1033; 27 ELR 20458
applicable federal requirements (e.g., the motor vehicle

control program) have resulted in enforceable emission

reductions within the Counties -- reductions which in turn

have resulted in attainment of the ozone standard for over

five years. Should those existing control measures and

requirements prove inadequate to prevent future

violations, the Environmental Protection Agency will

require the Counties to implement additional control

measures within a reasonable time. Recall that the

Environmental Protection Agency's determination to

exempt the Counties from limited ozone nonattainment

area requirements is really no more than a suspension of

those requirements for so long as the area continues to

attain the standard or until the area is formally

redesignated to attainment status.

The Environmental Protection Agency summarized

the flaw in Petitioners' argument best:

The [Counties have] attained the primary

ozone standard, a standard designed to

protect public health with an adequate

margin of safety (see section 109(b)(1)).

[The Environmental Protection Agency 's]

action does not relax any of the

requirements that have led to the

attainment of the [**23] standard. Rather,

its action has the effect of suspending

requirements, for additional pollution

reductions, above and beyond [*1559]

those that have resulted in the attainment

of the health- based standard.

60 Fed. Reg. at 36,727. Under these circumstances,

Petitioners' presumption that the Counties will violate

ozone standards in the future and that "Utahns will be

required to breathe for a protracted period unhealthy air

while Utah develops controls that should have been in

place earlier" seems disingenuous.

CONCLUSION

We conclude the Environmental Protection Agency

has reasonably interpreted and applied the Clean Air Act

to preserve the Act's objective of achieving the

health-based ozone standard while at the same time

avoiding the imposition of costly emission control

requirements that are unnecessary to meet that objective.

Accordingly, we uphold the Environmental Protection

Agency's "Determination of Attainment of Ozone

Standard for Salt Lake and Davis Counties, Utah, and

Determination Regarding Applicability of Certain

Reasonable Further Progress and Attainment

Demonstration Requirements" and deny the Petition for

Review.

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