LEXSEE 314 F.3D 735

SIERRA CLUB, CLEAN AIR AND WATER INC; COMMUNITY

IN-POWERMENT DEVELOPMENT ASSOCIATION, Petitioner, VERSUS

UNITED STATES ENVIRONMENTAL PROTECTION AGENCY; CHRISTINE

T. WHITMAN, ADMINISTRATOR, UNITED STATES ENVIRONMENTAL

PROTECTION AGENCY, Respondents.

No. 01-60537

UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

314 F.3d 735; 2002 U.S. App. LEXIS 25289; 55 ERC (BNA) 1577; 33 ELR 20126

December 11, 2002, Decided

SUBSEQUENT HISTORY: [**1] As Revised

December 31, 2002.

Rehearing denied by Sierra Club v. United States EPA,

2003 U.S. App. LEXIS 4542 (5th Cir., Feb. 12, 2003)

PRIOR HISTORY: Petition for Review of an Order of

the Environmental Protection Agency.

DISPOSITION: AFFIRMED in part, REVERSED in

part, and REMANDED.

COUNSEL: For SIERRA CLUB, CLEAN AIR AND

WATER INC, COMMUNITY IN-POWERMENT

DEVELOPMENT ASSOCIATION, Petitioners: Adam

Lawrenc Babich, Tulane Law Clinic, New Orleans, LA.

For SIERRA CLUB, CLEAN AIR AND WATER INC,

COMMUNITY IN-POWERMENT DEVELOPMENT

ASSOCIATION, Petitioners: Marc Stephen Chytilo,

Santa Barbara, CA.

For UNITED STATES ENVIRONMENTAL

PROTECTION AGENCY, CHRISTINE T WHITMAN,

Respondents: Manisa Dilip Patel, US Environmenal

Protection Agency, Dallas, TX.

For UNITED STATES ENVIRONMENTAL

PROTECTION AGENCY, CHRISTINE T WHITMAN,

Respondents: Christopher Boyd Peak, US Department of

Justice, Christine T Whitman, US Environmental

Protection Agency, Washington, DC.

for E I DUPONT DE NEMOURS & CO., ENTERGY

GULF STATES INC, EXXONMOBIL OIL CORP,

MOTIVA ENTERPRISES, Intervenors: F Walter

Conrad, Jr, Jacob Scott Janoe, Matthew Lynn Kuryla,

Baker Botts, Houston, TX.

For E I DUPONT DE NEMOURS & CO, ENTERGY

GULF STATES INC, EXXONMOBILE OIL CORP,

MOTIVA ENTERPRISES, Intervenors: David Andrew

Savage, Baker Botts, Austin, TX.

For STATES OF TEXAS, TEXAS NATURAL

RESOURCE CONSERVATION COMMISSION,

Intervenors: John Stephen Carow, Officeof the Attorney

General forthe State of Texas, Austin, TX.

STATES OF GEORGIA, Amicus Curiae: L Joseph

Loveland, Patricia T Barmeyer, Randall J Butterfield,

King & Spalding, Atlanta, GA.

STATE OF LOUISIANA, Amicus Curiae: Donald James

Trahan, Louisiana Department of Environmental Quality,

Baton Rouge, LA.

Page 1
JUDGES: Before DeMOSS, STEWART, and DENNIS,

Circuit Judges.

OPINION BY: DeMOSS

OPINION

[*737] DeMOSS, Circuit Judge:

Sierra Club, Inc., Clean Air and Water, Inc., and

Community In-Powerment Association (collectively the

"Petitioners"), are appealing the Environmental

Protection Agency's (EPA) final action at 66 Fed. Reg.

26,914 (May 15, 2001) (codified at 40 C.F.R. pt. 52),

which they contend contravenes the Clean Air Act

(CAA), 42 U.S.C. §§ 7401-7671q. The final action

approved the State Implementation Plan (SIP) submitted

by the State of Texas for the Beaumont-Port Arthur

(Beaumont) area and extended the ozone attainment

deadline for that area. Petitioners also are appealing the

EPA's determination that no additional control measures

were required in the Beaumont area to satisfy the

statutory requirement for implementation of Reasonably

Available Control Measures (RACM). The EPA's final

action is AFFIRMED in part, REVERSED in part, and

REMANDED.

I. FACTUAL AND PROCEDURAL BACKGROUND

A. Regulatory Background.

The CAA establishes a comprehensive [**2]

program for improving air quality throughout the nation.

Under the CAA, the EPA is charged with identifying air

pollutants that endanger the public health and welfare. Id.

§ 7408. The EPA also is charged with formulating

National Ambient Air Quality Standards (NAAQS),

which specify those pollutants' maximum permissible

concentrations in the ambient air. Id. § 7409. In 1979, the

EPA promulgated a one-hour NAAQS for ozone, which

still remains at 0.12 parts per million based on a one-hour

average. See 40 C.F.R. § 50.9 .

Under the CAA, states must adopt SIPs specifying

emission limitations applicable to pollution sources in

order to maintain and enforce each NAAQS. 42 U.S.C. §

7410(a). SIPs are submitted to the EPA, which may

approve, conditionally approve, or disapprove the SIPs in

full or in part. Id. § 7410(k). Significantly, the CAA has a

provision that requires SIPs to contain provisions

regulating emissions that "contribute significantly to

nonattainment in, or interfere with maintenance by, any

other State with respect to any such national primary or

secondary ambient air quality standard. [**3] " Id. §

7410(a)(2)(D)(i)(I). In addition, as noted in the

challenged final action, the EPA has interpreted 42

U.S.C. § 7410 (a)(2)(A) as incorporating a similar

requirement that an upwind area be prohibited from

contributing significantly to nonattainment in a

downwind area within the same state. See 66 Fed. Reg.

26,917.

Under 42 U.S.C. § 7511a, ozone attainment areas are

classified according to the severity of air pollution. The

classifications are: "marginal," "moderate," "serious,"

"severe," or "extreme." 42 U.S.C. § 7511a(a)-(e). Each

classification has a specified date for attainment of the

ozone NAAQS and the programs that States must adopt

in their SIPs to attain the NAAQS by reducing emissions

of volatile organic compounds and nitrogen oxides,

which are precursors to the formation of ozone. Id. §§

7511, 7511a-7511d. Under the CAA, the following dates

were established for the NAAQS to be achieved: (1)

November 15, 1993, for marginal areas; (2) November

15, 1996, for moderate areas; (3) November 15, 1999, for

serious areas; (4) November 15, 2005, for [**4] severe

areas; (5) November 15, 2007, for severe-17 areas; 1 and

(6) November 15, 2010, for [*738] extreme areas. Id. §

7511(a)(1). Under section 7511(a)(5), the State may

apply for two one-year attainment date extensions that the

EPA can approve if it makes specific determinations

regarding air quality and state compliance with SIP

requirements.

1 Notwithstanding table 1 in 42 U.S.C. § 7511

(a)(1), severe-17 areas have a 1988 ozone design

value between 0.190 and 0.280 ppm, which

provides these areas with a different attainment

date than "severe" areas. See id. § 7511(a)(2).

In addition, all nonattainment area plans must

provide for implementation of "all reasonably available

control measures [RACM] as expeditiously as

practicable." Id. § 7502(c)(1). The EPA must review each

submitted plan. Id. § 7410(k). If the plan is approved, in

whole or in part, the approved provisions become

federally enforceable. Id. §§ 7413, 7604. If the plan is not

approved, [**5] or is determined to be incomplete, the

State may be subject to sanctions and eventually federally

imposed clean air measures. Id. §§ 7410(c), 7509.

B. The Extension Policy at Issue in this Case.

Page 2

314 F.3d 735, *; 2002 U.S. App. LEXIS 25289, **1;

55 ERC (BNA) 1577; 33 ELR 20126
On March 25, 1999, the EPA issued a notice of

interpretation of the CAA entitled "Extension of

Attainment Dates for Downwind Transport Areas." 64

Fed. Reg. 14,441 (Mar. 25, 1999). In this extension

policy, the EPA interpreted the CAA as allowing for the

extension of attainment dates for ozone nonattainment

areas classified as either "moderate" or "serious" and that

are downwind of areas that transport ozone and interfere

with their ability to attain required ozone levels. Id. at

14,441-42. According to the EPA, it was seeking to

"harmonize the attainment demonstration and attainment

date requirements for downwind areas affected by

transport both with the graduated attainment date scheme

and the schedule for achieving reductions in emissions

from upwind areas." Id. at 14,443.

In the extension policy, the EPA explained that an

area's attainment date would be considered for extension

if it: (1) has been identified [**6] as a downwind area

"affected by transport from either an upwind area in the

same State with a later attainment date or an upwind area

in another State that significantly contributes to

downwind nonattainment"; (2) has submitted an

approvable attainment demonstration with any

"necessary, adopted local measures," which indicates it

will attain the one-hour NAAQS "no later than the date

that the reductions are expected from upwind areas under

the final [nitrogen oxides] SIP Call and/or the statutory

attainment date for upwind nonattainment areas"; (3) has

adopted "all applicable local measures required under the

area's current classification and any additional measures

necessary to demonstrate attainment," given that the

reductions occurred as required in upwind areas; and (4)

will "implement all adopted measures as expeditiously as

practicable, but no later than the date by which the

upwind reductions needed for attainment will be

achieved." Id.

If an area satisfies the above guidelines, it would not

be reclassified or "bumped-up" if it failed to attain by its

original attainment date under section 7511(b)(2). The

reasoning for this is that the EPA concluded that

Congress [**7] did not intend for downwind areas to be

"penalized by being forced to compensate for transported

pollution by adopting measures that are more costly and

onerous and/or which will become superfluous once

upwind areas reduce their contribution to the pollution

problem." Id. at 14,444. Nevertheless, downwind areas

are still responsible for implementing local controls

sufficient to bring about attainment, except for the

transported pollution. Id.

[*739] C. EPA's Application of the Extension Policy

to the Beaumont Area.

The Beaumont area is classified as a moderate ozone

nonattainment area. See 40 C.F.R. § 81.344 . Therefore,

under 42 U.S.C. § 7511 (a)(1), its original attainment date

was November 15, 1996. However, as a result of the

pollution traveling from the upwind area of

Houston/Galveston, the EPA applied its extension policy

that resulted in a new attainment date of November 15,

2007, for the Beaumont area. This date coincides with the

Houston/Galveston area's November 15, 2007, attainment

date. 66 Fed. Reg. 26,914. The EPA established the new

attainment date for the [**8] Beaumont area after

concluding that, based on extensive modeling submitted

by the State of Texas, it will not reach the required

attainment level unless the Houston/Galveston area also

attains necessary ozone standards. Id. at 26,915-23. In

other words, requiring local reductions in the Beaumont

area earlier than the Houston/Galveston area's attainment

date would not accelerate attainment in the Beaumont

area because of the Houston/Galveston area's pollution

contributions and the need for upwind emissions

reductions.

Petitioners now appeal the EPA's application of the

extension policy to the Beaumont area. Petitioners also

appeal the EPA's determination that 42 U.S.C. § 7502

(c)(1) does not compel the implementation of any

additional control measures beyond those already

contained in the Beaumont area's attainment

demonstration SIP.

II. STANDARD OF REVIEW

This Court's role in reviewing the adequacy of the

EPA's final action is governed by the Administrative

Procedure Act, 5 U.S.C. § 706. Section 706(2) provides

that a reviewing court shall "hold unlawful and set aside

agency action, findings, and conclusions [**9] found to

be--(A) arbitrary, capricious, an abuse of discretion, or

otherwise not in accordance with law." See also Texas

Office of Pub. Util. Counsel v. Federal

Communications Comm'n, 265 F.3d 313, 320 (5th Cir.

2001); Macktal v. United States Dep't of Labor, 171

F.3d 323, 326 (5th Cir. 1999).

III. DISCUSSION

Page 3

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55 ERC (BNA) 1577; 33 ELR 20126
A. Whether the EPA acted consistently with the CAA

in granting an extension of the statutory date for

meeting federal standards for ozone air pollution in

the Beaumont area and in approving a SIP for the

area based on that extension.

The EPA argues that it did not abuse its authority by

implementing its extension policy. The EPA asserts that

its interpretation of the CAA is the best way to reconcile

the Act's provisions. According to the EPA, when

considering all of the CAA's pertinent language,

Congress clearly did not intend the unduly restrictive and

punitive reading that Petitioners urge on this Court. The

EPA argues that its interpretation of the CAA was

necessary to fill a statutory gap to avoid unfairly

burdening downwind areas by forcing them to adopt

more stringent local controls for the purpose of

compensating [**10] for another area's transported

pollution.

In support of its argument, the EPA notes that

Congress has provided extensions to transport-affected

nonattainment areas such as in cases of international

border areas under section 7509a, which spares ozone

nonattainment areas that demonstrate they suffer from

pollution from "outside of the United States" from being

bumped-up to a higher ozone classification. Under

section 7511a(h), the CAA authorizes the EPA to

designate certain isolated ozone nonattainment areas as

"rural transport areas," which allows them to be subjected

to less stringent control requirements. [*740] In

addition, 42 U.S.C. § 7511a (j)(2) provides that when a

multi-state nonattainment area fails to demonstrate

attainment by the applicable deadline, a State within that

area may be relieved of statutory sanctions if "the State

would have been able to make such demonstration but for

the failure of one or more other States" within the control

area. Section 7511(a)(4) of the United States Code

authorizes the adjustment of an area's original

classification based on factors including transported

pollution. Furthermore, under 42 U.S.C. § 7410 [**11]

(a)(2)(D)(i)(I), SIPs must contain adequate provisions

prohibiting pollution that "contributes significantly to

nonattainment in . . . any other State." And, section 7426

provides States the opportunity to petition the EPA for

relief from interstate pollution.

The EPA concedes that when the 1990 amendments

to the CAA were passed, Congress did not expressly

specify similar relief for other areas, including for

downwind cities that are unable to achieve attainment as

a result of upwind cities within the same State. The EPA,

however, maintains that Congress did not fully address

all issues of ozone transport at the time the CAA was

amended in 1990 because there was a lack of

understanding concerning the issue. According to the

EPA, it was not until the mid-1990s that a sufficient

understanding of the complex ozone transport problem

began to be achieved as a result of the Ozone Transport

Assessment Group (OTAG), an organization with the

mission to assess and recommend strategies to address

ozone transport. Thus, the EPA insists that a reasonable

understanding of ozone transport was not achieved until

well after the Beaumont area's 1996 attainment deadline.

Ultimately, the EPA [**12] asserts that it was reasonable

for it to conclude that the Houston/Galveston area's

impact on the Beaumont area's ability to attain the

one-hour ozone standard indicated that the CAA's

transport and attainment provisions did not function as

Congress envisioned.

Petitioners, however, contend the EPA abused its

authority by defeating the express statutory

reclassification requirements of the CAA and extending

the ozone attainment deadlines for the Beaumont area

based on pollution transport, and by approving the SIP as

adequate based on the extension. According to

Petitioners, because the Beaumont area failed to achieve

attainment of required ozone levels, it should have been

reclassified from "moderate" (with an attainment date of

November 15, 1996) to either "serious" (with an

attainment date of November 15, 1999) or "severe" (with

an attainment date of November 15, 2005). See 42 U.S.C.

§ 7511a. Petitioners further maintain that under the CAA,

reclassification would require that an incremental

increase in the mandatory control strategies be imposed

on the Beaumont area's SIP in exchange for any extended

attainment date. See 42 U.S.C. §§ 7511a (1)-(d) [**13]

and 7511(b)(2)(A)).

This Court is guided by Chevron, U.S.A., Inc. v.

NRDC, 467 U.S. 837, 842-44, 81 L. Ed. 2d 694, 104 S.

Ct. 2778 (1984), in evaluating the EPA's interpretation of

the CAA. The first step under Chevron is to inquire

whether Congress "has directly spoken to the precise

question at issue." Id. at 842-43. If Congress has spoken

to the issue, this Court "must give effect to the

unambiguously expressed intent of Congress" and "that is

the end of the matter." Id. However, if the statute is

"silent or ambiguous with respect to the specific issue,"

Page 4

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55 ERC (BNA) 1577; 33 ELR 20126
this Court must move to Chevron's second step. Id. at

843. Under the second step, this Court must defer to the

EPA's interpretation if it is "based on a permissible

construction of the statute." Id. Furthermore, as this Court

has stated, [*741] the EPA's decision will be reversed

"only if it was arbitrary, capricious or manifestly contrary

to the statute." Texas Office of Pub. Util. Counsel, 265

F.3d at 320 (citing Chevron, 467 U.S. at 844). See also 5

U.S.C. § 706(2). [**14]

Petitioners correctly point out that the Supreme

Court has stated: "It is generally presumed that Congress

acts intentionally and purposely when it includes

particular language in one section of a statute but omits it

in another." City of Chicago v. Environmental Defense

Fund, 511 U.S. 328, 338, 128 L. Ed. 2d 302, 114 S. Ct.

1588 (1994) (internal quotations omitted). Petitioners

contend that the CAA's numerous provisions addressing

the issue of pollution transport and extensions of

attainment dates clearly indicates that Congress fully

understood the issue at hand and intended not to

authorize the EPA to extend attainment dates as it did in

this case. Petitioners conclude, therefore, that under step

one of Chevron, the question of whether an attainment

date extension is permissible based on air pollution

transport has been resolved by the statute and "that is the

end of the matter." Chevron,467 U.S. at 842-43.

We agree with the Petitioners. The plain terms of the

CAA preclude an extension of the sort the EPA granted

in the present case. As the Petitioners correctly point out,

the CAA specifies when the EPA may extend [**15]

attainment deadlines to account for upwind emissions

that jeopardize an area's ability to achieve attainment

without requiring reclassification of the area. For

example, the CAA provides:

any State that establishes to the

satisfaction of the Administrator that . . .

such State would have attained the

national ambient air quality standard for

ozone by the applicable attainment date,

but for emissions emanating from outside

of the United States, shall not be subject to

the provisions of section 7511(a)(2) or (5)

of this title or section 7511d of this title.

42 U.S.C. § 7509a (b) (emphasis added). Furthermore,

the CAA provides for certain nonattainment areas to be

exempted from the attainment deadlines by authorizing

the EPA to designate those areas as "rural transport

areas," which allow those areas to be treated as

"marginal" areas. Id. § 7511a(h). This designation,

however, is limited to a transport-affected area that "does

not include, and is not adjacent to, any part of a

Metropolitan Statistical Area or, where one exists, a

Consolidated Metropolitan Statistical Area," id. §

7511a(h)(1), and whose Oxides of Nitrogen emissions

"do not [**16] make a significant contribution to the

ozone concentrations measured in the area or in other

areas." Id. § 7511a(h)(2). As the D.C. Circuit aptly stated

in a recent case similar to this one: "We cannot but infer

from the presence of these specific exemptions that the

absence of any other exemption for the transport of ozone

was deliberate, and the Agency's attempt to grant such a

dispensation is contrary to the intent of Congress." Sierra

Club v. EPA, 294 F.3d 155, 160 (D.C. Cir. 2002). See

also, Sierra Club v. EPA, 2002 U.S. App. LEXIS 24068,

2002 WL 31641639, at *6 (7th Cir., Nov. 25, 2002).

We note that NRDC, upon which the EPA heavily

relies, is inapposite to the present case. In NRDC, the

D.C. Circuit affirmed the EPA's grant of two deadline

extensions. The first deadline extension concerned the

submission of enhanced Inspection and Maintenance

(I/M) SIPs. NRDC v. EPA, 22 F.3d 1125, 1135, 306

U.S. App. D.C. 43. Under the CAA, Congress provided

that States be given a one-year period after guidance

promulgation to bring their SIPs into compliance with the

enhanced I/M performance standard. Id. However, the

EPA failed to meet its November 15, 1991, deadline

[**17] for providing guidance, which "made it

impossible [*742] for states both to have the benefit of

this lead time and to meet their November 15, 1993,

enhanced I/M submission deadline." Id. The court noted

that "while the CAA is very specific about the

consequences of a state's failure to meet the submittal

deadline, the Act is silent on what should occur if the

agency misses its guidance deadline." Id. Because

Congress' statutory scheme provided that the States

"comply in all respects" with the EPA guidance, the court

concluded that a deadline extension was necessary for the

States to have a full year to do so. Id.

The second deadline extension in NRDC concerned

the CAA's requirement that States encompassing

nonattainment areas submit SIPs or SIP revisions

addressing the application of Reasonably Available

Control Technology (RACT) to stationary emission

sources of nitrogen oxides by November 15, 1992. Id.

Page 5

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55 ERC (BNA) 1577; 33 ELR 20126
However, the EPA concluded that photochemical grid

modeling was "the only reliable tool to justify an area

wide exemption from the [nitrogen oxides]

requirements." Id. at 1136. Moreover, the EPA found that

the modeling [**18] "had not been utilized previously

or, if utilized, had not adequately considered the effects

of [nitrogen oxides] emissions reductions." Id. As a

result, the EPA determined that "the time needed to

establish and implement a modeling protocol and to

interpret the model results will, in a variety of cases,

extend beyond the November 15, 1992 deadline for

submission of [nitrogen oxides] rules." Id. Therefore, the

EPA created a narrow one-year extension for nitrogen

oxides RACT submissions limited to situations in which

a State is able to document that "(1) credible

photochemical grid modeling is not available or did not

consider the effects of [nitrogen oxides] reductions and

(2) the state submits progress reports on the modeling

showing the program is on schedule while the committal

SIP is being reviewed by EPA." Id.

When evaluating the validity of the extension, the

D.C. Circuit noted that the CAA expressly gave the EPA

14 to 18 months after the submittal deadline to approve or

disapprove these SIPs and to determine whether a State

qualified for certain exemptions. Id. at 1136. The court

further noted that only a single nitrogen [**19] oxides

RACT submission was required under the CAA and,

therefore, Congress intended all data supporting

exemptions to be included with that submittal. Id.

According to the court, after receiving a submittal, the

EPA should then have had the full 14 to 18 months to

review it before making an exemption determination. Id.

The court, however, noted that in many instances the

EPA would not be able to utilize the full statutory review

time to make an exemption determination before the

statutory deadline. Therefore, the court concluded that

"had Congress foreseen the exemption timing problem, a

matter outside the EPA's control, it would have elected to

accord the EPA the full statutory review time." Id.

As discussed above, the first extension upheld by the

D.C. Circuit in NRDC was necessary to correct a timing

problem created by the EPA because it did not meet its

own guidance deadline. The second extension was upheld

because the EPA would not otherwise have the full

review time in which to make adequate exemption

determinations. Ultimately, this second extension was

made necessary by the EPA's own finding that

photochemical grid modeling was necessary to [**20]

justify area wide exemptions. Therefore, in both

instances, the extensions upheld by the D.C. Circuit were

made necessary by the EPA's own action or inaction,

which could not have been foreseen by Congress when it

enacted the 1990 revision of the CAA. Neither extension,

however, had anything to do with a situation in which a

nonattainment area submitted a SIP, had it approved

[*743] by the EPA, implemented the SIP, and then failed

to meet its attainment deadline as did the Beaumont area

in this case.

B. Whether the EPA reasonably interpreted the CAA

as not requiring any additional RACMs in the

Beaumont area's SIP.

Section 7502(c)(1) of the CAA requires that plans for

nonattainment areas "shall provide for the

implementation of all reasonably available control

measures as expeditiously as practicable . . . and shall

provide for attainment of the national primary ambient air

quality standards." 42 U.S.C. § 7502(c)(1). Petitioners

contend that the EPA arbitrarily and capriciously rejected

a number of control measures that are demonstrably

reasonably available for use in the Beaumont area. As a

result, Petitioners argue that the EPA's final action

conflicts [**21] with the plain language of section

7502(c)(1).

Specifically, Petitioners assert that the EPA

improperly limited the menu of RACMs to those that

would advance the date of attainment. Petitioners insist

the result of the EPA's action relegates the CAA's RACM

mandate to mere surplusage because additional control

measures that could reduce the frequency and severity of

violations need not be considered. Included in the

RACMs that Petitioners claim have been excluded from

consideration are a number of transport control measures

(TCM) listed in section 7408(f) of the CAA. In addition,

Petitioners contend that the EPA's determination that

potential measures requiring intensive and costly

implementation efforts are not RACMs. Petitioners assert

that such a determination is based on vague and

unintelligible standards and, therefore, is unreasonable.

The EPA acknowledges that additional control

measures are available to the Beaumont area. The EPA,

however, contends that the Beaumont area's attainment

demonstration contained all RACMs required under the

CAA. Significantly, the EPA has interpreted section

7502(c)(1) as imposing a duty to implement only those

control measures that contribute to attainment [**22] as

Page 6

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55 ERC (BNA) 1577; 33 ELR 20126
expeditiously as practicable. See; 57 Fed. Reg. 13,498 ,

13,560 (Apr. 16, 1992) (citing 44 Fed. Reg. at 20,375).

Furthermore, the EPA notes that it revised its

guidelines concerning TCMs in its General Preamble for

Implementation for the Clean Air Act Amendments of

1990 (Apr. 16, 1992) in which it concluded that "based

on experience with implementing TCMs over the years,

EPA now believes that local circumstances vary to such a

degree from city-to-city that it is inappropriate to

presume that all [section 7408(f)] measures are

reasonably available in all areas." 57 Fed. Reg. at 13,560

. The EPA then concluded that only those TCMs that are

determined to be "reasonably available for

implementation in the area in light of local

circumstances" should be reviewed by the planning

agency. Id.

As noted above, the EPA determined that only those

control measures that contribute to attainment as

expeditiously as practicable are required. This

interpretation of the CAA was applied in a number of

final actions before the statute was amended in 1990. See

53 Fed. Reg. 30,220, 30,222 (Aug. 10, 1988); [**23] 53

Fed. Reg. 30,224, 30,234 (Aug. 10, 1988); 55 Fed. Reg.

40,658, 40,659 (Oct. 4, 1990). When Congress amended

the CAA, it moved the RACM requirement from section

7502(b)(2) to section 7502(c)(1). At the same time,

Congress created a new section to the Act that preserved

all existing EPA guidance issued prior to the

amendments. See 42 U.S.C. § 7515. Therefore, we

conclude that Congress intended to preserve the EPA's

interpretation of the CAA regarding the RACM

requirement.

[*744] Furthermore, there is persuasive authority

from the Ninth Circuit to support the EPA's interpretation

of the RACM requirement. In Ober v. Whitman, the

Ninth Circuit upheld the EPA's interpretation of the

corresponding RACM requirements for particulate matter

(PM-10) governed by section 7513a(a). 243 F.3d 1190

(9th Cir. 2001). There, the plaintiffs challenged the

exemption from control of a variety of sources of

particulate pollution in a Federal Implementation Plan for

the Phoenix area.

The Ninth Circuit concluded that the CAA allowed

the EPA to make what it called "de minimis" exemptions

and that the agency acted [**24] permissibly in

designating some pollution sources as de minimis. Id. at

1198. Notably, the court accepted the EPA's reasoning in

the General Preamble for the Implementation of Title I of

the Clean Air Act Amendments of 1990 that control

measures not aiding in achieving attainment may be

excluded from further consideration because they would

not represent RACM for that area. Id. at 1194-95, 1198.

The same reasoning used by the EPA in Ober also was

used here. The EPA concluded that section 7502(c)(1)

does not require the implementation of RACMs that do

not aid in achieving attainment of national clean air

standards as expeditiously as practicable. Implementing

such RACMs would be a pointless expenditure of effort,

which courts are reluctant to require. See, e.g., Alabama

Power Co. v. Costle, 204 U.S. App. D.C. 51, 636 F.2d

323, 360 (D.C. Cir. 1980).

Similarly, the EPA need not require an analysis of all

transport control measures (TCM) specifically listed in

42 U.S.C. § 7408 (f). TCMs are measures taken to reduce

emissions of ozone precursors emitted by transportation

sources. We [**25] conclude that it would not be

possible to assess all available measures and consider the

effects of such measures in every possible combination,

as Petitioners argue is required by the statute.

Furthermore, the EPA has recognized that only some

TCMs "will be reasonably available for implementation

in many nonattainment areas." 57 Fed. Reg. at 13,560.

Nevertheless, the EPA did conclude that it would be

reasonable to use a midpoint level of program

effectiveness to analyze potential reductions from TCMs,

a level that would be economically feasible and provide

effective implementation. See 66 Fed. Reg. at 26,932.

Under this program, the EPA's analysis adequately

assessed all necessary TCMs for effectiveness. The result

confirmed that the TCMs would not produce emission

reductions sufficient to advance attainment in the

Beaumont area. Therefore, it appears that the EPA

properly concluded that no additional TCMs were

required because they would not contribute to expeditious

attainment.

Moreover, the EPA properly concluded that potential

measures requiring intensive and costly implementation

were not RACMs because they could [**26] not be

readily implemented due to excessive administrative

burden or local conditions such as high costs. Id. at

26,929. Such determinations based on a cost/benefit

analysis are within the EPA's discretion unless the

statutory scheme precludes such a determination. See,

e.g., Michigan v. EPA, 341 U.S. App. D.C. 306, 213

Page 7

314 F.3d 735, *743; 2002 U.S. App. LEXIS 25289, **22;

55 ERC (BNA) 1577; 33 ELR 20126
F.3d 663, 678-79 (D.C. Cir. 2000); Cf. 42 U.S.C.A. §

7409 (b)(1) (prohibiting a cost/benefit analysis by

preventing the EPA from considering any factor other

than health effects relating to pollutants in the air in

establishing NAAQS for ozone and particulate matter).

We find no such limitation in the CAA.

Lastly, we note that the D.C. Circuit's decision in

Sierra Club v. EPA also supports our rejection of the

Petitioners' argument that treating as potential RACMs

only those measures that would advance [*745] the date

at which an area reaches attainment conflicts with the

CAA's text and purpose and lacks any rational basis. See

294 F.3d at 162. As the D.C. Circuit concluded:

The Act, on its face, neither elaborates

upon which control measures shall be

deemed "reasonably available," nor

compels [**27] a state to consider

whether any measure is "reasonably

available" without regard to whether it

would expedite attainment in the relevant

area. Further, the EPA reasonably

concluded that because the Act "uses the

same terminology in conjunction with the

RACM requirement" as it does in

requiring timely attainment, compare 42

U.S.C. § 7502 (c)(1) (requiring

implementation of RACM "as

expeditiously as practicable but no later

than" the applicable attainment deadline),

with id. § 7511(a)(1) (requiring attainment

under same constraints), the RACM

requirement is to be understood as a

means of meeting the deadline for

attainment, Approval, 66 Fed. Reg. at 610

/2. Because the statutory provision is

ambiguous and the EPA's construction of

the term "RACM" is reasonable, we defer

to the Agency. See Chevron, 467 U.S. at

843, 104 S. Ct. at 2781-82.

Id. However, though our opinion defers to the EPA in

exempting certain proposed RACMs from the

requirements of the CAA, we must impress upon the EPA

that it has a duty to: (1) demonstrate that it has examined

relevant data, and (2) provide a satisfactory explanation

for [**28] its rejection of those proposed RACMs and

why they, individually and in combination, would not

advance the Beaumont area's attainment date. See Ober,

243 F.3d 1190 at 1195 (quoting American Lung Ass'n v.

EPA, 328 U.S. App. D.C. 232, 134 F.3d 388, 392-93

(D.C. Cir. 1998) ("Unless [EPA] describes the standard

under which [it] has arrived at this conclusion, supported

by a plausible explanation, we have no basis for

exercising our responsibility to determine whether

[EPA's] decision is arbitrary, capricious, an abuse of

discretion or otherwise not in accordance with law. . .

.")).

CONCLUSION

Accordingly, we REVERSE the portion of the

EPA's final action at 66 Fed. Reg 26,914 (May 15, 2001)

granting the Beaumont area an extension of its attainment

date. However, we AFFIRM the portion of the EPA's

final action that treats as potential RACMs only those

measures that would advance the attainment date and

considers implementation costs when rejecting certain

control measures. We REMAND this case to the EPA for

proceedings consistent with this opinion. On REMAND,

the EPA must describe the standard under which it [**29]

has rejected certain proposed RACMs supported by a

plausible explanation.

AFFIRMED in part, REVERSED in part, and

REMANDED.

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55 ERC (BNA) 1577; 33 ELR 20126