1997 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

7-28-1997

Southwestern PA v. E.Pa

Precedential or Non-Precedential:

Docket 96-3364

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Recommended Citation

"Southwestern PA v. E.Pa" (1997). 1997 Decisions. Paper 175.

http://digitalcommons.law.villanova.edu/thirdcircuit_1997/175
iled July 28, 1997 

UNITED STATES COURT OF APPEALS 

FOR THE THIRD CIRCUIT 

No. 96-3364 

SOUTHWESTERN PENNSYLVANIA GROWTH ALLIANCE, 

Petitioner 

v. 

CAROL BROWNER, Administrator of the U.S. 

Environmental Protection Agency, and THE UNITED 

STATES ENVIRONMENTAL PROTECTION AGENCY, 

Respondents 

ADVANCED MANUFACTURING NETWORK, 

Intervenor in support of petitioner 

ON PETITION FOR REVIEW OF A FINAL ORDER 

OF THE ENVIRONMENTAL PROTECTION AGENCY 

(Dated May 1, 1996) 

Argued: March 11, 1997 

Before: BECKER, SCIRICA, and ALITO, Circuit Judges. 

(Opinion Filed: July 28, 1997) 

Barry M. Hartman, Esq. (argued) 

Kenneth S. Komoroski, Esq. 

John P. Englert, Esq. 

William J. Labovitz, Esq. 

KIRKPATRICK & LOCKHART LLP 

1500 Oliver Building 

Pittsburgh, PA 15222 

Attorneys for Petitioner
Lois J. Schiffer, Esq. 

Assistant Attorney General 

Environment and Natural 

 Resources Division 

Greer S. Goldman, Esq. (argued) 

Trial Attorney 

United States Department of Justice 

Environmental Defense Section 

P.O. Box 23986 

Washington, DC 20026-3986 

Attorneys for Respondents

Blair S. McMillin, Esq. 

Harley N. Trice II, Esq. (argued) 

Paul S. Kline, Esq. 

REED SMITH SHAW & MCCLAY 

435 Sixth Avenue 

Pittsburgh, PA 15219 

Attorneys for Intervenor

John R. Serpa, Asst. County 

 Solicitor 

3333 Forbes Avenue, Room 312 

Pittsburgh, PA 15213-3120 

Kerry A. Fraas, County Solicitor 

300 Ft. Pitt Commons Bldg. 

445 Ft. Pitt Blvd. 

Pittsburgh, PA 15219 

Attorneys for Amicus Curiae County

of Allegheny, Pennsylvania

Nick Francalancia, Esq. 

1040 Third Street 

Beaver, PA 15009 

Attorney for Amicus Curiae

Beaver County Corporation for

Economic Development

 2 
Paul J. Elias 

Assistant County Solicitor 

Westmoreland County 

103 Courthouse Square 

Greensburg, PA 15601 

Attorney for Amicus Curiae

Westmoreland County, Pennsylvania

Glenn R. Toothmann III, Esq. 

TOOTHMAN & TOOTHMAN 

61 North Richhill Street 

Waynesburg, PA 15370 

Attorney for Amicus Curiae

Greene County, Pennsylvania

Paul S. Kline, Esq. 

435 Sixth Avenue 

Pittsburgh, PA 15219 

Attorney for Amici Curiae

Armstrong County, Pennsylvania, 

Lawrence County, Pennsylvania and 

Butler County, Pennsylvania

McCUNE & VREELAND, Solicitor 

119 South College Street 

Washington, PA 15301 

Jill A. Devine 

Assistant Solicitor 

702 Courthouse Square 

100 W. Beau Street 

Washington, PA 15301 

Attorney for Amicus Curiae

Washington County, Pennsylvania

 3 
Clifford B. Levine 

THORP, REED & ARMSTRONG 

One Riverfront Center 

Pittsburgh, PA 15222 

Attorney for Amicus Curiae

Port of Pittsburgh Commission

Howard I. Fox 

Sierra Club Legal Defense Fund 

1625 Mass. Ave., N.W., Suite 702 

Washington, DC 20036 

Joseph Ortis Minott 

Delaware Valley Citizens' 

 Council for Clean Air 

135 South 19th Street, Suite 300 

Philadelphia, PA 19103 

Attorney for Amicus Curiae

Delaware Valley Citizens' Council for

Clean Air

OPINION OF THE COURT 

ALITO, Circuit Judge: 

The Southwestern Pennsylvania Growth Alliance 

("SWPGA") has petitioned for review of a final rule of the 

Environmental Protection Agency ("EPA"), 61 Fed. Reg. 

19,193 (May 1, 1996). In this rule, the EPA denied the 

Commonwealth of Pennsylvania's request that the EPA

redesignate the Pittsburgh-Beaver Valley nonattainment 

area (the "Area") to attainment status for ozone, pursuant 

to the Clean Air Act, 42 U.S.C. §7407(d)(3). An intervenor, 

Advanced Manufacturing Network, contends that the EPA's 

final rule is invalid because the EPA did not comply with 

the Regulatory Flexibility Act, 5 U.S.C. §§ 601-12. Although 

we are sympathetic to the view expressed by many within 

the Area that this rule threatens serious economic harm, 

we recognize that our role as a reviewing court is strictly 

limited. We conclude that under the applicable legal 

 4 
standards, we are constrained to deny the petition for 

review. 

I. 

A. Congress enacted the Clean Air Act to "protect and 

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

promote the public health and welfare and the productive 

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

achieve this purpose, the Act authorizes the EPA to identify 

air pollutants that are sufficiently dangerous to warrant 

federal regulation. See 42 U.S.C. §7408(a). For each 

pollutant that the EPA identifies, the Act authorizes the 

EPA to promulgate a national ambient air quality standard 

(NAAQS), which is the maximum allowable concentration of 

the pollutant in the ambient air. See 42 U.S.C. §7409(a). 

One pollutant for which the EPA has promulgated a 

NAAQS is ozone, whose chemical precursors are emitted by 

industrial and transportation sources. See 40 C.F.R. 

§50.9(a) (1996). The EPA measures ozone levels at 

monitoring sites located throughout the country. When a 

monitoring site measures that a given day's "maximum 

hourly average ozone concentration" has exceeded the 

NAAQS, an "exceedance" has occurred. See 40 C.F.R. §50, 

App. H (1996). If a monitoring site registers more than an 

average of one exceedance per year, over a three-year 

period, that site is in noncompliance with the NAAQS. Id. 

The Clean Air Act's 1990 amendments provide that the 

EPA designate areas of the country as either "attainment" 

areas, "nonattainment" areas, or "unclassifiable" areas for 

particular pollutants, depending on whether an area has 

complied with the NAAQS for that pollutant. See 42 U.S.C. 

7407(d). If one monitoring site within an area is in 

noncompliance with a NAAQS, then the entire area is

designated a nonattainment area for that pollutant. See 40 

C.F.R. Pt. 50.9(a); 40 C.F.R. Pt. 50, App. H (1996). 

Nonattainment areas are further classified as "marginal," 

"moderate," "serious," "severe," or "extreme" nonattainment 

areas, according to the extent to which the area's monitor 

readings exceed the NAAQS. See 42 U.S.C.§7511a. 

 5 
The Clean Air Act assigns to the states the responsibility 

for assuring air quality within each state. See 42 U.S.C. 

§7407(a). The Act provides that within three years of the 

EPA's promulgation of a NAAQS for a pollutant, each state 

must submit to the EPA a state implementation plan ("SIP") 

specifying measures that will attain, maintain, and enforce 

the NAAQS. See 42 U.S.C. §7410(a). All SIPs must meet the 

substantive requirements enumerated at 42 U.S.C. 

§7410(a)(2). Once the EPA finds that a SIP complies with 

the Act, the EPA will approve the SIP. See 42 U.S.C. 

§7410(k). When the EPA has designated an area within a 

state as a nonattainment area for a particular pollutant, 

that state must modify its SIP to include increasingly strict 

pollution controls delineated in the Act, depending on the 

area's nonattainment classification. See 42 U.S.C. §7511a. 

The Act specifies the procedures through which the EPA 

may redesignate an area from nonattainment to attainment. 

The process begins when the governor of a state submits a 

request for redesignation. See 42 U.S.C. §7407(d)(3)(D). 

Then, "[w]ithin 18 months of receipt of a complete State 

redesignation submittal, the [EPA] Administrator shall 

approve or deny such redesignation." Id. Under 42 U.S.C. 

§ 7407(d)(3)(E), the EPA Administrator "may not promulgate 

a redesignation of a nonattainment area . . . to attainment 

unless" the following five criteria are met: 

(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 

 6 
(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. 

Id. Thus, in order for the EPA to redesignate an area from 

nonattainment to attainment, the EPA must find that all 

five of these criteria have been satisfied. 

B. In 1990, the EPA classified the Pittsburgh-Beaver 

Valley Area (the "Area") as a moderate nonattainment area 

for ozone.1 See 56 Fed. Reg. 56,694, 56,820 (Nov. 6, 1991). 

The EPA based this designation on ozone exceedances

during the three-year period from 1987 to 1989. See id. In 

November 1993, the Pennsylvania Department of 

Environmental Resources submitted to the EPA a request 

to redesignate the Area to attainment status for ozone. The 

redesignation request pointed out that the Area had

attained the NAAQS for ozone during the three-year period 

from 1991-1993, with only two exceedances in 1991, zero 

exceedances in 1992, and one exceedance in 1993. See 61 

Fed. Reg. 19,193, 19,195 (May 1, 1996). Pennsylvania's 

request acknowledged that its SIP had not yet been fully 

approved by the EPA, but stated that the state expected to 

receive full EPA approval shortly. The request also included 

a maintenance plan, under which Pennsylvania 

demonstrated how it planned to maintain the NAAQS in the 

area until the year 2004.2 

In July 1995, the EPA published a final notice of 

determination that the Area was in attainment of the 

_________________________________________________________________ 

1. The Pittsburgh-Beaver Valley Area comprises Allegheny County, 

Armstrong County, Beaver County, Butler County, Fayette County, 

Washington County and Westmoreland County. 

2. Pennsylvania's Department of Environmental Resources subsequently 

submitted two revisions to this maintenance plan. First, in January 

1995, the Department submitted a revision acknowledging that the 

original submission was incomplete, because it relied upon measures 

that had not been fully adopted. The Department submitted the second 

revision in May 1995. This revision acknowledged that the original 

submission had relied upon an automobile inspection and maintenance 

program that Pennsylvania had suspended, as well as a contingency 

measure for the use of reformulated gasoline, which Pennsylvania had 

also suspended. 

 7 
NAAQS for ozone. See 60 Fed. Reg. 37,015 (July 19, 1995). 

Later in the summer of 1995, however, ozone monitors in 

the Area recorded 16 exceedances over a seven-day period. 

Two of these monitors recorded more than three 

exceedances each. After confirming these data, the EPA 

revoked its earlier determination that the Area had attained 

the NAAQS for ozone. See 61 Fed. Reg. 28,061 (June 4, 

1996). 

The EPA also published a notice of proposed rulemaking 

stating its intention to disapprove Pennsylvania's 

redesignation request and maintenance plan. See 61 Fed. 

Reg. 4,598 (Feb. 7, 1996). The EPA expressed various 

reasons for proposing disapproval. One of the EPA's

reasons was that the 1995 summer ozone exceedances 

indicated that the Area had not attained the NAAQS. The 

EPA also reasoned that these exceedances indicated that 

the underlying basis for Pennsylvania's maintenance plan 

was no longer valid. See id. After public comment, the EPA 

promulgated a final rule disapproving Pennsylvania's 

redesignation request and maintenance plan. See 61 Fed. 

Reg. 19,193 (May 1, 1996). 

C. The petitioner in this case is the Southwestern 

Pennsylvania Growth Alliance, which is an organization of 

major manufacturers and local governments in the 

Pittsburgh-Beaver Valley Area. SWPGA contests the EPA's 

denial of Pennsylvania's request to redesignate the Area to 

attainment status. As previously explained, 42 U.S.C. 

§7407(d)(3)(E) lists five requirements that must be satisfied 

in order for the EPA to redesignate a nonattainment area to 

attainment status. Since the EPA's final rule stated that 

none of these five criteria had been satisfied, the petitioner, 

if it is to prevail, must demonstrate that the EPA erred in 

its determinations as to all five of §7407(d)(3)(E)'s criteria. 

The petitioner thus faces an exacting burden. Under the 

Administrative Procedure Act, 5 U.S.C. §706(2)(A), this 

court must uphold the EPA's action unless it is "arbitrary, 

capricious, an abuse of discretion, or otherwise not in 

accordance with law." In applying this standard, our "only 

task is to determine whether [the EPA] considered the 

relevant factors and articulated a rational connection 

between the facts found and the choice made." Baltimore

 8 
Gas & Elec. Co. v. Natural Resources Defense Council, Inc., 

462 U.S. 87, 105 (1983). The EPA's disapproval of 

Pennsylvania's redesignation request "would be arbitrary 

and capricious if the agency has relied on factors which 

Congress has not intended it to consider". Motor Vehicle

Mfrs. Ass'n v. State Farm Mut. Auto Ins. Co., 463 U.S. 29, 

43 (1983). 

II. 

SWPGA first argues that the EPA erred when it 

determined that the Area did not attain the NAAQS for 

ozone. In so arguing, SWPGA contends that the EPA had no 

basis for concluding that the first of 42 U.S.C. 

§7407(d)(3)(E)'s five requirements was not satisfied. We 

hold, however, that it was proper for the EPA to determine 

that the Area did not attain the NAAQS for ozone. 

A. The petitioner contends that the EPA acted contrary 

to the language of the Clean Air Act when it took into 

consideration the ozone exceedances that were recorded in 

the summer of 1995. The petitioner points to language in 

the Act stating that "[w]ithin 18 months of receipt of a 

complete State redesignation submittal, the Administrator 

shall approve or deny such redesignation." 42 U.S.C. 

§7407(d)(3)(D) (emphasis added). The petitioner argues that 

the use of the word "shall" in this provision imposes upon 

the EPA a mandatory duty to act on a state's redesignation 

request within 18 months of submission. According to the 

petitioner, the EPA violated this mandatory duty when it 

took into consideration the 1995 ozone exceedance data, 

because these data did not exist during the 18-month 

period. The petitioner concludes that without these

improperly considered data, there was no valid reason for 

the EPA to deny redesignation. 

We agree with the EPA that the petitioner may not raise 

this argument on appeal because this argument was not 

raised during the rulemaking process. "Generally, federal 

appellate courts do not consider issues that have not been 

passed on by the agency . . . whose action is being

reviewed." New Jersey v. Hufstedler, 724 F.2d 34, 36 n.1 

(3d Cir. 1983), rev'd on other grounds, 470 U.S. 632 (1985). 

 9 
The petitioner points to the following passage from the 

record as evidence that Pennsylvania raised this argument 

in its comments to the EPA's proposed rule disapproving 

redesignation: 

Pennsylvania believes that the Pittsburgh ozone 

nonattainment area should have been redesignated by

EPA to attainment. The Commonwealth submitted the 

request in 1993, and EPA had ample opportunity and 

justification. 

For the six year period from 1989 through 1994 the 

national ambient air quality standard for ozone was

achieved. During this time eight ozone monitors 

operated for the full six years and one additional 

monitor operated two years at one site and the four

subsequent years at a nearby site. Six of these 

monitors had no exceedances during this period and 

the remaining monitors stayed under the standard. 

Thus for the four consecutive three-year periods from 

1989 through 1994, the Pittsburgh area attained and

maintained the ambient standard. 

Comments on Proposed Disapproval of Request to

Redesignate Pittsburgh Ozone Nonattainment Area, J.A. at 

550. Pennsylvania further commented that "the Pittsburgh 

area [had not] been redesignated in a timely manner." Id. at 

551. 

We hold that these comments are insufficient to preserve 

petitioner's intricate statutory interpretation argument. 

These comments admittedly demonstrate that 

Pennsylvania, during the rulemaking process, broached the 

question whether the EPA had acted in a timely manner. 

Yet the comments include neither a reference to a statutory 

provision imposing a specific time limit, nor an explicit 

argument that the existence of such a time limit precluded 

the EPA from considering the 1995 exceedances. The 

petitioner thus raises its statutory interpretation argument 

for the first time on appeal. 

We recognize that ("our practice has been to hear issues 

not raised in earlier proceedings when special 

circumstances warrant an exception to the general rule.)" 

Hufstedler, 724 F.2d at 36 n.1 (considering the retroactivity

 10 
of amendments to a federal education act, even though the 

retroactivity argument was not raised in the lower court, 

because it was "an issue of national importance" that was 

"singularly within the competence of appellate courts" and 

"not predicated on complex factual determinations"); see

also Selected Risks Ins. Co. v. Bruno, 718 F.2d 67, 69 (3d 

Cir. 1983). Although a variety of circumstances have 

prompted appellate courts to apply this exception,"[t]he 

matter of what questions may be taken up and resolved for 

the first time on appeal is one left primarily to the 

discretion of the courts of appeals, to be exercised on the 

facts of individual cases." Singleton v. Wulff, 428 U.S. 106, 

121 (1976). In this case, we find it inappropriate to consider 

this new issue. Although appellate courts are certainly 

capable of addressing questions of statutory interpretation 

that were not raised during an agency's rulemaking 

process, it is far more efficient for courts to face such 

questions only after they have been considered by the 

agency that Congress has charged with the primary 

responsibility for enforcing the complex statute in question. 

In the instant case, both the EPA and Pennsylvania's 

Department of Environmental Resources possess special 

expertise regarding the workings of the Clean Air Act. 

Pennsylvania was thus fully capable of explicitly raising the 

argument that 142 U.S.C. §7407(d)(3)(D) requires the EPA 

to act on a redesignation request within 18 months. Had 

Pennsylvania made such an explicit argument, the EPA 

would have then applied its singular expertise on the Act's 

mechanics and made a ruling that would inform the 

deliberations of this court on appeal. If this court were to 

consider the petitioner's argument without the benefit of 

the EPA's expert input, we would undermine a fundamental 

principle of our system of judicial review of administrative 

decisions. 

The harm that would come to the petitioner as a result of 

this outcome is not so great as to warrant disregarding 

these concerns. See, e.g., North Alamo Water Supply Corp.

v. City of San Juan, 90 F.3d 910, 916 (5th Cir.), cert. 

denied, 117 S.Ct. 586 (1996) (an appellate court should 

invoke its discretion to review a purely legal issue not 

raised below when "a miscarriage of justice would result 

 11 
from [the court's] failure to consider it)." For these reasons, 

we hold that the petitioner may not raise for the first time 

in this proceeding its argument that 42 U.S.C. 

§7407(d)(3)(D) required the EPA to act on Pennsylvania's 

redesignation request within 18 months. 

Moreover, even if we were to reach the merits of the 

petitioner's argument, we would hold that 42 U.S.C.

§7407(d)(3)(D) did not preclude the EPA from considering 

the summer 1995 exceedance data. The language of the 

provision that enumerates the redesignation criteria tends 

to support this result. Under 42 U.S.C. §7407(d)(3)(E)(i), the 

EPA Administrator "may not" promulgate a redesignation of 

a nonattainment area unless, among other things, "the 

Administrator determines that the area has attained the 

national ambient air quality standard." The use of the term 

"has attained" instead of "attained" may be interpreted as 

suggesting that the attainment must continue until the 

date of the redesignation. 

In any event, even if we assume for present purposes that 

the language of 42 U.S.C. §7407(d)(3)(E) is ambiguous as to 

whether the EPA may disregard data arising after the 

expiration of the 18-month period, we must defer to the 

EPA's interpretation of this provision under the rule of 

Chevron, U.S.A., Inc. v. Natural Resources Defense Council,

Inc., 467 U.S. 837 (1984). Chevron instructs reviewing 

courts that if Congress has not "directly spoken to the 

precise question at issue . . . the question for the court is 

whether the agency's answer is based on a permissible 

construction of the statute." Id. at 842-43. The EPA has 

published numerous legislative rules that have interpreted 

42 U.S.C. §7407(d)(3)(E) as obliging the EPA to deny a 

redesignation request if the EPA knows that the area is not 

in present attainment of the NAAQS,3 because the EPA's 

_________________________________________________________________ 

3. See, e.g., 61 Fed. Reg. 19,193, 19,197 (1996) (the final rule denying 

Pennsylvania's request to redesignate the Area, in which the EPA "note[d] 

that it has not and may not (in light of section 107(d)(1)(A)(i) and 

107(d)(3)(E)) approve a redesignation request for an area that is violating 

the ozone standard"); 61 Fed. Reg. 4,958, 4,599 (1996) (the proposed 

rule denying Pennsylvania's request to redesignate the Area, in which 

the EPA concluded that "the Pittsburgh area no longer meets 

 12 
interpretation is a reasonable construction of the statute. 

See Chevron, 467 U.S. at 844 (when Congress has implicitly 

delegated to an agency the authority to "elucidate a specific 

provision of the statute by regulation," a reviewing court 

"may not substitute its own construction of a statutory 

provision for a reasonable interpretation made by the 

administrator of an agency"). 

The petitioners contend that §7407(d)(3)(D) prohibits the 

EPA from considering any data acquired more than 18

months after the submission of Pennsylvania's 

redesignation request. They assert -- correctly, in our view 

-- that the use of the word "shall" in §7407(d)(3)(D) imposes 

upon the EPA a mandatory duty to act on a state's 

redesignation request within 18 months. The petitioner's 

argument fails, however, because §7407(d)(3)(D)'s use of the 

word "shall" does not conclusively indicate that Congress 

intended to prohibit the EPA from taking action after the 

expiration of the statutorily specified time period. 

The Supreme Court faced a similar question of statutory 

interpretation in Brock v. Pierce County, 476 U.S. 253 

(1986). At issue in Brock was a provision of the 

Comprehensive Employment and Training Act ("CETA") 

stating that the Secretary of Labor "shall" issue a final 

determination as to the misuse of CETA funds by a grant 

recipient within 120 days after receiving a complaint 

alleging such misuse. See id. at 254-55. The Department of 

Labor disallowed almost $500,000 of CETA expenditures by 

a county, after an investigation revealed that those funds 

had not been used in accordance with the CETA program. 

_________________________________________________________________ 

[§7407(d)(3)(E)'s] first criteria for redesignation" in light of the summer 

1995 exceedances); 59 Fed. Reg. 37,190, 37,195 (1994) (a proposed rule 

redesignating the Detroit-Ann Arbor area to attainment status, in which 

the EPA warns that if "data shows violations of the ozone NAAQS before 

the final USEPA action on this redesignation, the USEPA proposes that 

it disapprove the redesignation request"); 59 Fed. Reg. 22,757 (1994) (a 

final rule in which the EPA denied redesignation of the Richmond, 

Virginia area because that area did "not meet the statutory criteria for 

redesignation to attainment found in section 107(d)(3)(E) of the CAA," 

even though the area's only ozone exceedance was registered after the 

EPA published a rule proposing approval of the redesignation request). 

 13 

The county argued that the Secretary of Labor could not 

recover the misused funds because the Secretary did not 

issue his final determination of misuse until more than 120 

days after the Department received the initial complaint. 

The Supreme Court thus faced the question whether the 

use of the word "shall" in the CETA statute prohibited the 

Secretary from recovering misused funds after the 
expiration of the 120-day period. A unanimous Court

concluded that "the mere use of the word `shall' " was not 

enough to demonstrate that Congress intended to prohibit 

the Secretary from acting after 120 days. Id. at 262. In so 

deciding, the Court stated that it "would be most reluctant 

to conclude that every failure of an agency to observe a 

procedural requirement voids subsequent agency action." 

Id. at 260. The Court instead concluded that "the normal 

indicia of congressional intent" should determine whether 

an agency may act after the expiration of a statutory 

deadline. See id. at 262 n.9. 

Here, the petitioner has not brought to our attention 

anything in the Clean Air Act itself (other than the use of 

the word "shall" in 42 U.S.C. §7407(d)(3)(D)), or anything in 

the Act's legislative history that shows that Congress 

intended for the EPA to lose its power to consider data 

brought to its attention after the expiration of the 18-month 

deadline. To the contrary, two important aspects of the 

Clean Air Act strongly suggest that Congress did not intend 

for the EPA to lose its power to act after 18 months. The 

first is the Act's failure to specify a consequence for 

noncompliance with the 18-month deadline. As the 

Supreme Court has observed, "if a statute does not specify 

a consequence for noncompliance with statutory timing 

provisions, the federal courts will not in the ordinary course 

impose their own coercive sanction." United States v. James

Daniel Good Real Property, 510 U.S. 43, 63 (1983). 

Second, the Clean Air Act affords a less drastic remedy 

than that urged by the petitioner. In Brock, the Supreme 

Court stated that when "there are less drastic remedies 

available for failure to meet a statutory deadline, courts 

should not assume that Congress intended the agency to 

lose its power to act." Brock, 476 U.S. at 260. The Brock

court's conclusion that there existed a less drastic remedy 

 14 
in that case provides guidance for our present inquiry. 

Noting that "nothing in CETA appears to bar an action to 

enforce the 120-day deadline," the Brock court concluded 

that anyone within the statute's zone of interests could 

have brought an action to force the Secretary of Labor to 

act within the statutory deadline. Id. at 260 n.7. Thus, 120 

days after the original complaint, the defendant in Brock

could have brought an action to force the Department of 

Labor to drop its investigation, provided that the defendant 

could achieve standing by successfully arguing that

Congress enacted the 120-day limit in order "to protect 

grant recipients from lengthy delays in audits." Id. 

Similarly, in the present case, either the petitioner or the 

Commonwealth of Pennsylvania could have brought an 

action to enforce the 18-month deadline in 42 U.S.C. 

§7407(d)(3)(D).4 The petitioner has not called to our 

attention any provision of the Clean Air Act that would have 

precluded such an action. Had the petitioner brought such 

an action, the result would have been far less drastic than 

that which the petitioner now urges, which is the 

redesignation of an area that is not in attainment of the 

NAAQS. 

After oral argument, the parties have called to our

attention certain new facts that must be considered. First, 

in 1995 the EPA issued a direct final notice redesignating 

LaFourche Parish, Louisiana, as an attainment area. After 

the publication of this notice, but prior to its effective date, 

a monitor recorded a violation of the NAAQS for ozone in 

the LaFourche Parish area. Although the EPA was aware of 

this exceedance, the EPA did not withdraw the notice, and 

the LaFourche Parish area was redesignated as an 

attainment area for ozone on the notice's effective date. The 

petitioner argues that this redesignation demonstrates that 

the EPA is not precluded from redesignating an area that 

_________________________________________________________________ 

4. Such an enforcement action would have been available pursuant to 

the Administrative Procedure Act, 5 U.S.C. #8E8E # 701-706, which entitles 

any person "adversely affected or aggrieved by agency action" to judicial 

review, §702, unless the relevant statute precludes judicial review or 

"agency action is committed to agency discretion by law," §701(a). In 

such an enforcement action, a court would have authority to "compel 

agency action unlawfully withheld or unreasonably delayed." §706(1). 

 15 
experiences an exceedance while a redesignation request is 

pending. 

The EPA's redesignation of the LaFourche Parish area in 

no way undermines the analysis set forth in this opinion. 

As discussed above, we accept the view that the EPA may 

not redesignate an area if the EPA knows that the area is 

not meeting the NAAQS. The EPA's redesignation of the 

LaFourche Parish redesignation was thus not proper.

However, the fact that the EPA apparently acted contrary to 

law in a prior case did not permit, much less require, the 

EPA to disregard the law in the instant case. See Kokechik

Fishermen's Assoc. v. Secretary of Commerce, 839 F.2d 795, 

802-03 (D.C. Cir. 1988) ("[p]ast administrative practice that 

is inconsistent with the purpose of an act of Congress 

cannot provide an exception"). 

The same analysis applies to the second incident that the 

parties have brought to our attention. In at least one case, 

the EPA has excluded exceedance data from its evaluation 

of a redesignation request because the data came from 

monitors that were not part of the State or Local Air 

Monitoring Stations network ("SLAMS") required by 40 

C.F.R. §58 (1996). The petitioner contends that such 

incidents undermine the proposition that EPA is required to 

deny a redesignation request when it possesses knowledge 

that the NAAQS is not being attained. Assuming arguendo

that the EPA's exclusion of non-SLAMS exceedance data 

violates the EPA's duty not to redesignate an area that fails 

to attain the NAAQS, the EPA's prior disregard of this duty 

did not relieve the EPA of its obligation to act correctly in 

other cases. 

B. The petitioner further attacks the EPA's conclusion 

that the Area did not attain the NAAQS by arguing that the 

EPA failed to take into account data demonstrating that 

much of the offending ozone originated outside the Area. 

The petitioner contends that ozone readings from border 

monitors demonstrate that much of the ozone contributing 

to the exceedances during the summer of 1995 originated 

in neighboring states and was transported into the Area by 

wind. In its final rule denying redesignation, the EPA 

included the following analysis of the interstate ozone 

transport question: 

 16 
 Pennsylvania has made no demonstration that the 

ozone problem in the Pittsburgh area is caused by 

transport from upwind sources. An adequate technical 

demonstration, including emissions data and a 

modeling analysis, must be provided to support any 

claim of transport-dominated nonattainment. 

 Although ozone levels recorded at monitors near the 

West Virginia/Ohio/Pennsylvania border seem to 

correlate with the levels recorded further east in the 

nonattainment area, this data is not sufficient to 

demonstrate that the Pittsburgh area's ozone problem 

is due to transport. During the summer of 1995, on the 

days when monitors in the Pittsburgh area 

("downwind" monitors in Allegheny and Westmoreland 

Counties) recorded exceedances of the ozone standard, 

ozone levels at the monitors on the western border of 

the Pittsburgh area (the "upwind" monitors in Beaver 

and Washington Counties, Pennsylvania) recorded 

increased levels of ozone. However, these "upwind" 

monitors did not record any exceedances of the ozone 

standard. In other words, "downwind" monitors in the 

Pittsburgh area always recorded higher ozone levels

than the monitors at the western border. This 

demonstrates the Pittsburgh area is causing its own

exceedances by generating ozone in the area. . . . 

. . . [E]ven if the violations in Pittsburgh could be 

attributed to transport, EPA would not have the 

authority to redesignate Pittsburgh to attainment.[42 

U.S.C. §7407(d)(1)(A)(ii)] defines an attainment area as 

an area "that meets" the national ambient air quality 

standard and [§7407(d)(3)(E)] prohibits EPA from 

redesignating an area to attainment unless EPA 

determines that the area is attaining the standard. As 

an area that is experiencing violations of the ozone 

standard is not attaining the standard, EPA is not 

authorized by the Clean Air Act to redesignate such an 

area to attainment. 

61 Fed. Reg. 19,193, 19,194 (May 1, 1996). 

The petitioner contends that the EPA "failed to 

adequately analyze and consider the role transported ozone 

 17 
and ozone precursors played in the Area's 1995 

exceedances." Pet'r. Br. at 28. Although the petitioner does 

not seem to argue that these exceedances were caused 

solely by transported ozone, the petitioner maintains that 

such ozone plainly contributed to the 1995 exceedances. 

See id. The petitioner states that "[t]here is nothing in the 

record upon which the EPA bases its assumption that

exceedances are attributable solely to sources within the 

border when high ozone levels are being transported into 

the Area." Id. at 29. 

In response, the EPA argues that the Clean Air Act and 

its implementing regulations "require that EPA determine 

whether or not an area has met the NAAQS and satisfied 

the first criterion for redesignation without regard to why 

the NAAQS and the criterion many not have been met." 

Resp't. Br. at 30. In essence, then, the EPA maintains that 

the origin of the ozone that caused the 1995 exceedances 

was legally irrelevant. See 61 Fed. Reg. at 19,193 19,194 

(the EPA's final rule denying Pennsylvania's request to 

redesignate the Area). The EPA goes on, however, to defend 

its scientific analysis of the role of transported ozone in the 

Area. 

In evaluating the EPA's interpretation of the Clean Air 

Act, we must apply the familiar Chevron analysis to which 

we previously referred. Under this analysis, if "Congress 

has directly spoken to the precise question at issue. . . the 

court . . . must give effect to the unambiguously expressed 

intent of Congress." Chevron, 467 U.S. at 842-43. If, 

however, the "precise question at issue" is one about which 

Congress has been either "silent or ambiguous," then a 

reviewing court must defer to the agency's statutory 

interpretation if it is "based on a permissible construction 

of the statute" Id. at 843. 

Here, the EPA contends that the Clean Air Act itself 

prohibited allowances for ozone transported from outside 

the Area. The EPA relies in part on 42 U.S.C. 

§7407(d)(1)(A)(ii), which provides that an attainment area is 

one that "meets" the NAAQS, and 42 U.S.C. 

§7407(d)(3)(E)(i), which prohibits the EPA from 

redesignating an area to attainment unless the EPA 

determines that the area "has attained" the NAAQS. These 

 18 
provisions are certainly consistent with and lend some 

support to the EPA's interpretation. 

Somewhat stronger support for the EPA's argument is

furnished by other provisions of the Act. The first of these 

is 42 U.S.C. §7511a(h), which establishes "rural transport 

areas." These are areas that do not attain the NAAQS for 

ozone, despite not producing any significant amount of 

ozone themselves. Congress addressed the problem that 

ozone transport causes rural transport areas by exempting 

such areas from certain pollution control requirements, 

provided that the areas make certain submissions to the 

EPA. Although such areas can enjoy relaxed control 

requirements, they must remain in nonattainment status, 

because they have not attained the NAAQS for ozone.

Congress also addressed the problem of ozone transport 

in 42 U.S.C. §7511(a)(4), which describes certain 

circumstances under which the EPA may adjust a 

nonattainment area's classification (e.g., from "severe" to 

"serious"). Under this provision, if a nonattainment area 

meets criteria making it eligible for adjustment of its 

classification, there are several factors that the EPA may 

consider when making the adjustment. One of these factors 

is "the level of pollution transport between the area and 

other affected areas, including both intrastate and

interstate transport." Id. Thus, under this provision, the 

EPA may consider pollutant transport when adjusting a 

nonattainment area's classification, but pollution transport 

does not affect the area's designation as a nonattainment 

area. 

Although these provisions provide significant support for 

the EPA's interpretation, we need not, and do not, go so far 

as to hold that the Clean Air Act dictates that 

interpretation. For present purposes, it is enough to hold 

that even if the Act would permit a different interpretation, 

the EPA's interpretation is plainly a reasonable one to 

which, under Chevron, we must defer. Accordingly, we 

accept the EPA's position that the origin of the ozone that 

caused the exceedances at issue is legally irrelevant. 

After oral argument, the EPA brought to our attention 

certain administrative actions that must be addressed in 

 19 
connection with this analysis. First, the EPA pointed out 

that it has issued a "Guideline on the Identification and 

Use of Air Quality Data Affected by Exceptional Events." 

See Letter from Lois J. Schiffer, Assistant Attorney General, 

Environment and Natural Resources Division, to the Court 

at 3 (May 8, 1997), referring to U.S. Environmental

Protection Agency, Office of Air and Radiation, Office of Air 

Quality Planning and Standards, Monitoring and Data

Analysis Division, Guideline on the Identification and Use of

Air Quality Data Affected by Exceptional Events, EPA450/4-86-007 (July 1986). This Guideline permits the 

exclusion from consideration, for various regulatory 

purposes, of data affected by certain exceptional events. 

The only exceptional event that applies to ozone data is a 

"stratospheric ozone intrusion." This is a phenomenon that 

occurs when a parcel of air from the stratosphere suddenly 

falls to ground level, as occasionally happens during severe 

thunderstorms. See id., referring to the Guideline at 4.1.2. 

Second, the EPA has noted that in considering certain other 

redesignation requests, it has excluded ozone data as 

having been influenced by forest fires. See id. 

The petitioner contends that it is inconsistent for the EPA 

to exclude ozone data that is influenced by stratospheric 

ozone intrusions or forest fires, but not to exclude ozone 

data that is influenced by interstate ozone transport. This 

inconsistency, the petitioner contends, undermines the 

argument that the Clean Air Act prohibits the EPA from 

redesignating an area that is not in attainment, even in 

cases when the nonattainment is attributable to ozone that 

has been transported from outside the area. 

The petitioner's argument, however, does not disturb our 

conclusion that the EPA's interpretation of the Act as 

precluding allowances for transported ozone, even if not 

statutorily compelled, is nevertheless reasonable. The EPA's 

view that allowances are permissible in cases of 

stratospheric ozone intrusions and forest fires is not at 

issue here, and does not prove that the EPA's position 

concerning transported ozone is unreasonable. 

C. In light of our deference to the EPA's interpretation of 

the Act as precluding allowances for transported ozone, the 

petitioner's attack on the EPA's scientific evaluation of the 

 20 
role of transported ozone is beside the point. Yet even if it 

were not, we would see no ground for disturbing that 

analysis. A reviewing court "must generally be at its most 

deferential" when reviewing factual determinations within 

an agency's area of special expertise. New York v. E.P.A., 

852 F.2d 574, 580 (D.C. Cir. 1988), cert. denied, 489 U.S. 

1065 (1989). It is not the role of a reviewing court to 

"second-guess the scientific judgments of the EPA."

American Mining Congress v. E.P.A., 907 F.2d 1179, 1187 

(D.C. Cir. 1990). Rather, we must "review the record to 

ascertain that the agency has made a reasoned decision 

based on reasonable extrapolations from some reliable 

evidence, to ensure that the agency has examined the 

relevant data and articulated a satisfactory explanation for 

its action including a rational connection between the facts 

found and the choice made." Id. (internal quotations and 

citations omitted). 

If we were to review the EPA's final rule under this 

standard, we would conclude that the EPA considered the 

relevant data and articulated a satisfactory explanation for 

its findings. In its response to comments concerning the 

interstate transport of ozone, the EPA considered the 

correlation between border ozone readings and the ozone 

levels in the Area, but concluded that the data from the 

border was insufficient to demonstrate that ozone transport 

"caused" the exceedances in the Area. See 61 Fed. Reg. at 

19,194. The EPA supported its conclusion by noting that 

the ozone levels were higher within the Area (where the 

exceedances were registered) than at the border (where no 

exceedances were detected), demonstrating that the Area 

was "causing its own exceedances by generating ozone in 

the [A]rea." Id. Contrary to the petitioner's suggestion, we 

do not interpret the EPA's explanation to mean that it 

found that transported ozone did not contribute to the 1995 

exceedances. Rather, the EPA found only that the 

exceedances were not "caused by" or "due to" transported 

ozone. 61 Fed. Reg. at 19,194. Since the EPA considered 

the relevant data and articulated a rational connection 

between these data and its conclusion, we cannot disturb 

the EPA's factual determinations. 

D. We thus conclude that the EPA did not act arbitrarily 

 21 
or capriciously, did not abuse its discretion, and did not act 

contrary to law when it determined that the PittsburghBeaver Valley area was not attaining the national ambient 

air quality standard for ozone. Since 42 U.S.C. 

§7407(d)(E)(i) prohibits the EPA from redesignating an area 

that is not in attainment of the NAAQS, the EPA correctly 

denied Pennsylvania's request for redesignation. We thus 

do not need to consider the petitioner's arguments that the 

EPA erred in determining that §7407(d)(E)'s four other 

criteria were also not met, since §7407(d)(E) provides that 

nonfulfillment of any one of its five criteria will prohibit the 

EPA from redesignating a nonattainment area to attainment 

status.5 

III. 

We next consider the contention of the intervenor, 

Advanced Manufacturing Network ("AMN"), that the EPA's 

final rule denying Pennsylvania's redesignation request was 

invalid because the EPA did not comply with the Regulatory 

Flexibility Act, 5 U.S.C. §§ 601-12. We conclude that the 

intervenor may not raise its RFA argument in this 

proceeding because this argument was not adequately

presented to the EPA during the rulemaking process. In the 

alternative, we hold that the intervenor's RFA argument 

lacks merit, because the EPA's final rule is sufficient to 

satisfy the requirements of the RFA. 

A. The Regulatory Flexibility Act requires administrative 

agencies to give public consideration to the impact that a 

proposed regulation will have on small entities, including 

small businesses, small not-for-profit enterprises, and 

small local governments. See 5 U.S.C. §601(3)-(6). Under 

_________________________________________________________________ 

5. We find no merit to the petitioner's contention that it was inconsistent 

for the EPA to create de minimis exceptions to §7407(d)(E)'s criteria in 

some other cases but not in the instant case. An area's failure to attain 

a NAAQS is the most fundamental criterion in its designation as a 

nonattainment area. This is demonstrated by §7407(d)(1)(A)(i), which 

defines a "nonattainment" area as "any area that does not meet [the 

NAAQS] for the pollutant". The Area's failure to meet the NAAQS for 

ozone is thus a far cry from the types of trivialities that warrant the 

creation of a de minimis exception. 

 22 
the RFA, at two points during the rulemaking process, an 

agency must prepare a regulatory flexibility analysis, which 

is an assessment of the proposed rule's effects on small 

entities. First, whenever an agency is required by law to 

publish a proposed rule, the agency must prepare an initial 

regulatory flexibility analysis. See 5 U.S.C. 603(a). Second, 

whenever an agency promulgates a final rule after having 

been required to publish a proposed rule, the agency must 

prepare a final regulatory flexibility analysis. See 5 U.S.C. 

604(a). The RFA exempts an agency from the requirement 

to publish the two regulatory flexibility analyses if the 

agency "certifies that the rule will not, if promulgated, have 

a significant economic impact on a substantial number of 

small entities." 5 U.S.C. 605(b). 

In its final rule disapproving Pennsylvania's request for 

redesignation, the EPA made the following certification 

statement, which summarized a similar statement in the 

proposed rule: 

As described in the [notice of proposed rulemaking], 

EPA has determined that the disapproval of the 

redesignation request will not affect a substantial

number of small entities. EPA's denial of the 

Commonwealth's redesignation request under [42 

U.S.C. §7407(d)(3)(E)] does not affect any existing

requirements applicable to small entities nor does it 

impose new requirements. The area retains its current 

designation status and will continue to be subject to 

the same statutory requirements. To the extent that

the area must adopt regulations, based on its 

nonattainment status, EPA will review the effect of

those actions on small entities at the time the 

Commonwealth submits those regulations. 

61 Fed. Reg. 19,193, 19,197. 

The intervenor argues that this statement is not sufficient 

to satisfy the requirements of the RFA. Specifically, the 

intervenor contends that this statement is conclusory 

because it mentions neither the number of small entities 

that the EPA believes the rule will affect, nor the number of 

small entities that the EPA believes to be "substantial." The 

intervenor argues that the EPA erred in concluding that the 

 23 
rule would not affect a substantial number of small entities. 

In the intervenor's view, the rule will affect small entities 

because the retention of the Area's nonattainment status 

will soon require the EPA to reclassify the Area from 

moderate nonattainment status to serious nonattainment 

status, thereby subjecting small entities within the Area to 

heightened pollution control requirements. 

B. We must consider whether we have jurisdiction to

hear the intervenor's RFA argument. The intervenor asserts 

that we have jurisdiction over the RFA claim pursuant to 

the Small Business Regulatory Enforcement Fairness Act of 

1996 ("SBREFA"), which amended the RFA to provide, inter

alia, for judicial review of agency action under the RFA. See

Pub. L. No. 104-121, §242, 110 Stat. 857, 865-66 (1996) 

(codified as amended at 5 U.S.C. §611) ("For any rule 

subject to this chapter, a small entity that is adversely 

affected or aggrieved by final agency action is entitled to 

judicial review of agency compliance with the requirements 

of [the RFA]"). The EPA retorts that the SBREFA 

amendments do not provide jurisdiction over the 

intervenor's RFA claim, because the EPA published its final 

rule before the effective date of the SBREFA amendments. 

Thus, in order to determine whether we have jurisdiction 

over the intervenor's RFA claim, we must determine 

whether the SBREFA amendment allowing judicial review of 

RFA claims applies to legislative rules that were 

promulgated before the effective date of the SBREFA

amendments. 

The Supreme Court analyzed the question of the 

temporal reach of new statutes in Landgraf v. USI Film

Prods., 511 U.S. 244 (1994), and Lindh v. Murphy, No. 96- 

6298, 1997 WL 338568 (U.S. June 23, 1997). In Landgraf, 

the Court provided the following guidance to lower courts 

considering the temporal reach of new federal statutes: 

When a case implicates a federal statute enacted after 

the events in suit, the court's first task is to determine 

whether Congress has expressly prescribed the 

statute's proper reach. If Congress has done so, of

course, there is no need to resort to judicial default 

rules. When, however, the statute contains no such 

express command, the court must determine whether 

 24 
the new statute would have retroactive effect, i.e., 

whether it would impair rights a party possessed when 

he acted, increase a party's liability for past conduct, 

or impose new duties with respect to transactions 

already completed. If the statute would operate 

retroactively, our traditional presumption [against

retroactive applicability] teaches that it does not govern 

absent clear congressional intent favoring such a 

result. 

Landgraf, 511 U.S. at 280. 

In Lindh, the Supreme Court explained that this language 

from Landgraf does not mean that there exist only two 

possible means of determining questions of temporal reach, 

namely, an "express command" or the Landgraf default 

rule. See Lindh at *3-4. Instead, this language reaffirms the 

traditional rule that courts will not apply statutes having 

retroactive effect unless Congress expressly indicated that it 

intended for such application. This clear statement rule has 

no bearing on other inquiries related to questions of 

temporal reach, including "determining whether a statute's 

terms would produce a retroactive effect" and "determining 

a statute's temporal reach generally." Id. To such inquiries 

"our normal rules of construction apply." Id. 

Following Landgraf and Lindh, we consider whether the 

SBREFA amendments indicate the temporal reach of the 

amendment concerning judicial review. The only portion of 

the SBREFA amendments that mentions applicability to 

past EPA action is the following: 

This subtitle shall become effective on the expiration of 

90 days after the date of enactment of this subtitle, 

except that such amendments shall not apply to 

interpretative rules for which a notice of proposed

rulemaking was published prior to the date of 

enactment. 

Pub. L. No. 104-121, §245, 110 Stat. 857, 868 (1996). 

The intervenor argues that since this provision expressly 

provides that the amendments do not apply to interpretive

rules that were promulgated before the effective date, the 

amendments must apply to legislative rules that were 

 25 
promulgated before the effective date, such as the 

legislative rule denying redesignation of the Area. This 

negative inference, drawn from application of the statutory 

interpretation canon expressio unis est exclusio alterius, is 

very convincing. See Lindh, 1997 WL 338568 at *4-*5. 

This conclusion is bolstered by the fact that the SBREFA 

amendment concerning judicial review does not 

retroactively alter substantive rights, duties or liabilities. In 

its discussion of retroactive applicability, Landgraf

distinguishes between two categories of intervening

statutes. The first category consists of statutes that 

"attach[ ] new legal consequences to events completed 

before [the statutes'] enactment." Landgraf, 511 U.S. 269- 

70. Such statutes "would impair rights a party possessed 

when he acted, increase a party's liability for past conduct, 

or impose new duties with respect to transactions always 

completed." Id. at 280. To such statutes, the courts apply 

a "deeply rooted" "presumption against statutory 

retroactivity," because "considerations of fairness dictate 

that individuals should have an opportunity to know what 

the law is and conform their conduct accordingly." Id. at 

265, 273, 265. 

The second category of intervening statutes consists of 

statutes that "authorize[ ] or affect[ ] the propriety of 

prospective relief." Id. at 273. Application of such a statute 

to events that took place before the statute's enactment "is 

unquestionably proper" because no substantive rights are 

retroactively affected. Id. Courts have thus "regularly 

applied intervening statutes conferring or ousting 

jurisdiction, whether or not jurisdiction lay when the 

underlying conduct occurred." Id. at 274. 

We hold that the amendment entitling small entities to 

judicial review of agency compliance with the RFA falls 

within Landgraf's second category. This is because the 

amendment does not retroactively alter any substantive 

rights or duties, since the SBREFA amendment allowing 

judicial review did not change the substantive RFA 

requirements that applied to the EPA's promulgation of the 

final rule denying redesignation. SBREFA's judicial review 

amendment instead prospectively changed the jurisdiction 

of the federal courts to allow judicial review of an agency's 

 26 
compliance with the RFA. We must apply such a statute to 

a rule promulgated before the statute's enactment. As 

indicated above, we hold that the text of the SBREFA 

amendments support this conclusion. 

We note that the United States District Court for the 

District of Maine reached the opposite conclusion in 

Associated Fisheries v. Daley, 954 F.Supp. 383 (D. Maine 

1997). The court in that case held that the SBREFA 

amendment concerning judicial review did not apply to a 

rule promulgated before the SBREFA amendments. In so 

ruling, the Associated Fisheries court observed that, in 

addition to the provision concerning judicial review, the 

SBREFA amendments also contained provisions imposing 

new substantive requirements upon an agency that 

undertakes a regulatory flexibility analysis under the RFA. 

Since such substantive requirements cannot be applied to 

rules promulgated before the amendments, the court 

concluded that it "would be anomalous to apply the judicial 

review portion of the [SBREFA] amendments to past agency 

actions but at the same time not apply the substance of 

those amendments, unless Congress expressly stated that 

was its intent." Id. at 387. 

We disagree with the Associated Fisheries court's 

conclusion that the SBREFA's judicial review provision and 

substantive provisions must be treated uniformly for 

purposes of applicability to past agency actions. The 

Supreme Court in Landgraf addressed this precise question 

when it held that §102 of the Civil Rights Act of 1991 

should govern cases arising before its enactment, even 

though other provisions of that Act imposed new 

substantive requirements. The Landgraf Court reasoned as 

follows: 

[T]here is no special reason to think that all the diverse 

provisions of the Act must be treated uniformly for

[purposes of applicability to past conduct]. To the

contrary, we understand [the statute's] instruction that 

the provisions are to "take effect upon enactment" to 

mean that courts should evaluate each provision of the 

Act in light of ordinary judicial principles concerning 

the application of new rules to pending cases and preenactment conduct. 

 27 
Landgraf, 511 U.S. at 280. 

We conclude that it is proper to apply the SBREFA's

judicial review amendment to past agency action, even 

assuming that it would be inappropriate to apply the 

SBREFA's substantive amendments to past agency action. 

For these reasons, we conclude that we have jurisdiction 

over the intervenor's RFA claim, pursuant to the SBREFA's 

judicial review amendment. 

C. EPA contends that the intervenor may not raise its 

RFA argument because the petitioner, SWPGA, did not raise 

this argument in its own brief. It is a general rule that an 

intervenor may argue only the issues raised by the 

principal parties and may not enlarge those issues. See

Vinson v. Washington Gas Light Co., 321 U.S. 489, 498 

(1944); Synovus Fin. Corp. v. Board of Governors, 952 F.2d 

426, 433 (D.C. Cir. 1991). The intervenor contends that the 

petitioner sufficiently raised the RFA issue in its brief 

through the following incorporation by reference: 

Petitioner incorporates by reference the statement of 

issues raised by Intervenor with regard to whether EPA 

erred in certifying under the Regulatory Flexibility Act 

that its disapproval of the Commonwealth of 

Pennsylvania's request for redesignation would have no 

effect on small entities. 

Petitioner's Br. at 2 n.3. 

The EPA argues that such an incorporation by reference 

is insufficient to satisfy the rule that a principal party must 

raise an issue in its brief before an intervenor may argue it. 

In support of this argument, the EPA points to Time Warner

v. FCC, 56 F.3d 151, 202 (D.C. Cir. 1995), cert. denied, 116 

S.Ct. 911 (1996). The court in Time Warner was presented 

with an intervenor's claim that certain FCC orders did not 

comply with the RFA and the Small Business Act ("SBA"). 

The only mention of the RFA and SBA arguments in the 

brief of the Time Warner petitioners was "a short twosentence footnote." Id. This footnote "neither explain[ed] nor 

develop[ed] the statutory challenges, noting only that the 

intervenors' brief [would] discuss this issue." Id. (internal 

quotation omitted). The Time Warner court concluded that 

such a "terse reference in a complex regulatory case is 

 28 
insufficient to raise an issue unrelated to petitioners' other 

challenges and not discussed elsewhere in their briefs or 

even mentioned in their petition for review." Id. 

We agree with the EPA that under Time Warner

intervenor AMN could not raise its RFA argument because 

petitioner SWPGA's incorporation by reference did not 

sufficiently broach the issue. However, we decline to follow 

Time Warner on this point. In its analysis of this issue, the 

Time Warner court relied on Carducci v. Regan, 714 F.2d 

171, 177 (D.C. Cir. 1983) (Scalia, J.), and Railway Labor

Executives' Ass'n v. United States R.R. Retirement Board, 

749 F.2d 856, 859 (D.C. Cir. 1984). See id. We believe that 

the Time Warner court misapplied these precedents when it 

concluded that an intervenor may not raise an argument 

that a principal party mentions only in an incorporation by 

reference. 

The court in Carducci reviewed a federal employee's 

claims that he was unlawfully reassigned to a position of 

lower rank. In his complaint, the disgruntled employee 

asserted, inter alia, that his employing agency violated his 

Fifth Amendment right to due process when it reassigned 

him. The district court's opinion, which dismissed the 

employee's complaint, did not discuss his due process 

claim. In his appellate brief, the employee expressed his 

due process argument only through a single assertion that 

an official who reviewed the reassignment "rel[ied] on 

information not contained in the grievance file or record 

when he issued his final decision on the grievance." 

Carducci, 714 F.2d at 176. 

On appeal, the District of Columbia Circuit did not

address the employee's due process claims because the 

employee had "made no attempt to address the issue." Id. 

at 177. The court stated that it would not resolve the 

complex legal issues that the employee's claim presented 

"on the basis of briefing and argument by counsel which 

literally consisted of no more than the assertion of violation 

of due process rights, with no discussion of case law 

supporting that proposition or of the statutory text and 

legislative history relevant" to the legal questions involved. 

Id. The court so ruled because consideration of complicated 

legal questions without proper briefing by the parties would 

 29 
ultimately deprive the courts of the assistance of counsel 

that our adversarial system assumes. Id. 

We endorse the Carducci court's conclusion that 

appellate courts generally should not address legal issues 

that the parties have not developed through proper briefing. 

However, the situation in Carducci differs dramatically from 

that in both Time Warner and the instant case, in which a 

party has adopted by reference an argument that is 

thoroughly developed in an intervenor's brief. As thenJudge Scalia explained in the Court of Appeals' decision in 

Carducci, deciding legal issues without proper briefing can

result in bad decisions. No similar danger is presented, 

however, when a petitioner incorporates by reference an 

argument that is fully developed in an intervenor's brief. We 

thus disagree with Time Warner on this point, and we hold 

that when a principal party adopts by reference an 

argument that an intervenor fully briefs, the intervenor may 

argue the question just as if the principal party had fully 

briefed the issue itself. 

We find further support for our conclusion in the fact 

that this practice does not differ substantively from the 

practice of an appellant's (or appellee's) adopting by 

reference part of the brief of a coappellant (or coappellee), 

which is expressly permitted under Fed. R. App. P. 28(i). 

Applying this analysis to the instant case, we conclude that 

intervenor AMN is not precluded from raising its RFA 

argument by the fact that petitioner SWPGA adopted the 

intervenor's RFA argument by reference, rather than fully 

developing the argument in its own brief. 

D. Although we have jurisdiction over the intervenor's 

RFA claim, and although the parties have properly briefed 

the question, we hold that the intervenor may not raise this 

issue in this proceeding because it was never presented to 

the EPA during the rulemaking process. "Generally, federal 

appellate courts do not consider issues that have not been 

passed on by the agency . . . whose action is being

reviewed." Hufstedler, 724 F.2d at 36 n.1. 

The intervenor has not identified any section of the 

record in which the EPA was presented with an argument 

that mentions the applicability of the RFA to the EPA's 

 30 
rulemaking. The only section of the record that the

intervenor has identified as relevant to its RFA argument is 

a discussion of the circumstances that will result in a 

"bump up" of an area's nonattainment classification. See

Intervenor's Reply Br. at 8, citing J.A. at 298. The 

intervenor argues that this discussion is relevant to its 

argument that retention of the Area's nonattainment status 

will affect small entities by subjecting them to enhanced 

pollution control requirements when the EPA subsequently 

"bumps up" the Area's nonattainment classification. This 

argument is flawed, however, because the section of the 

record to which the intervenor points discusses the

nonattainment classification of the Reading area, not the 

Pittsburgh-Beaver Valley area. See id. Since the intervenor 

has brought to our attention no other portion of the record 

relevant to its RFA argument, we conclude that the 

intervenor may not raise this argument before this Court 

because this argument was never presented to the EPA 

during the rulemaking process. 

E. We hold in the alternative that the EPA's certification 

statement satisfies the requirements of the RFA. The EPA's 

statement complies fully with 5 U.S.C. §605(b), which sets 

out certain circumstances under which the requirement of 

a regulatory flexibility analysis does not apply. Under 

§605(b), an agency may avoid preparing a regulatory

flexibility analysis if the agency publishes in the Federal 

Register a certification that "the rule will not, if 

promulgated, have a significant economic impact on a 

substantial number of small entities." 5 U.S.C. §605(b). 

Along with this certification, the agency must also publish 

a "statement providing the factual basis for such 

certification." Id. The intervenor contends that the EPA 

violated this provision because the EPA's statement did not 

sufficiently explain the agency's reasons for the 

certification. According to the intervenor, the statement is 

deficient because it mentions neither the number of small 

entities that the EPA believes the rule will affect, nor the 

number of small entities that the EPA believes to be 

"substantial." 

We hold that the EPA's statement is sufficient to satisfy 

the requirements of §605(b). Directly applicable to this 

 31 
inquiry is Colorado State Banking Bd. v. Resolution Trust

Corp., 926 F.2d 931 (10th Cir. 1991). In that case, the 

Resolution Trust Corporation ("RTC") adopted a rule that 

would allow banks to operate acquired insolvent thrifts as 

bank branches, notwithstanding Colorado and New Mexico 

laws that prohibited such operation. These two states 

contended that the RTC's adoption of the rule did not 

satisfy the §605(b) criteria for exemption from the obligation 

to undertake a regulatory flexibility analysis. In 

promulgating the rule, the RTC published the following 

certification statement: 

The basis for the RTC's certification is its 

determination that the rule will not impose compliance 

requirements on depository institutions of any size. It 

imposed no performance standards, no fees, no 

reporting or recordkeeping criteria, nor any other type 

of restriction or requirement with which depository

institutions must comply. Thus, it does not have the 

type of economic impact addressed by the EPA. 

Id. at 948. 

The Tenth Circuit held that the RTC's brief statement 

"present[ed] a valid basis for certification" because it 

addressed the RFA's concern for "the high cost to small 

entities of compliance with uniform regulations." Id., 

quoting Mid-Tex Elec. Coop., Inc. v. FERC, 773 F.2d 327, 

342 (D.C. Cir. 1985). Similarly, the EPA's statement in the 

instant case, which closely resembles the RTC's statement 

in Colorado State Banking Board, adequately addressed this 

concern by noting that the denial of redesignation"does not 

affect any existing requirements applicable to small entities 

nor does it impose new requirements." 61 Fed. Reg. 19,193, 

19,197. 

We also find no merit in the intervenor's contention that 

the EPA erred when it concluded that the final rule would 

not affect the requirements applicable to small entities. The 

intervenor argues that the EPA's disapproval of 

Pennsylvania's redesignation request will soon result in a 

"bump up" of the Area's nonattainment classification from 

"moderate" to "severe." This will happen, the intervenor 

posits, because 42 U.S.C. §7511(b)(2)(A) provides that an 

 32 
area that fails to attain the NAAQS by the applicable 

attainment date "shall be reclassified by operation of law" to 

the next higher classification. Since reclassification to 

"severe" status will impose stricter pollution control 

requirements upon small entities in the Area, the 

intervenor contends that the EPA erred when it certified 

that the denial of redesignation would not alter the 

requirements applicable to small entities in the Area. 

Although the intervenor accurately describes the 

operation of §7511(b)(2)(A), its argument isflawed because 

the more stringent pollution controls will result from the 

rulemaking process that will accompany the reclassification 

under §7511(b)(2)(A), not the rulemaking process through 

which the EPA denied the redesignation request. When the 

time comes for §7511(b)(2)(A) to reclassify the Area by 

operation of law, the EPA will provide notice and an 

opportunity for the public to comment, which will include 

the opportunity to comment on the requirements of the 

RFA. The EPA made this observation in its certification 

statement, when it said that "to the extent that the area 

must adopt regulations, based on its nonattainment status, 

EPA will review the effect of those actions on small entities 

at the time the Commonwealth submits those regulations." 

For this reason, we conclude that the EPA correctly

determined that small entities would not be affected by the 

particular rulemaking at issue in this case, namely, the 

EPA's denial of Pennsylvania's request to redesignate the 

Area. 

IV. 

For the reasons discussed above, we deny the petition for 

review of the EPA's final rule denying Pennsylvania's 

request to redesignate the Pittsburgh-Beaver Valley area 

from nonattainment to attainment status. 

 33 
BECKER, Circuit Judge, concurring. 

I join in Judge Alito's fine opinion. This brief concurrence 

is merely to record my view that there is something amiss, 

or at least unfair, in the EPA's treatment of regions such as 

the Pittsburgh-Beaver Valley nonattainment area which, 

because of the geographical configuration of the jet stream, 

receives a constant infusion of transported ozone from 

highly industrialized upwind sources. Although I lack the 

technical expertise of the agency, my immersion in the 

record in this case has left the distinct and indelible 

impression that, while laudably attempting to fulfill its 

statutory mission of assuring cleaner air, the EPA has paid 

insufficient attention to: (1) the difficulty that downwind 

areas such as Southwestern Pennsylvania have in meeting 

the ozone NAAQS, and (2) more importantly, the imperative 

of infusing its regulations with equity. The economic 

consequences to the area as the result of continued

nonattainment status are enormous, as this record 

demonstrates, and surely assuring equity vis-a-vis other 

areas of the nation is within the agency's charter. I suspect 

there are several avenues through which the EPA could 

afford relief to the Pittsburgh-Beaver Valley region and 

other similarly situated areas without violating its statutory 

mandate. 

Modest escape valves already exist within the current 

regulatory structure. For example, an EPA guideline

permits the "flagging" of data affected by certain exceptional 

events in carrying out various regulatory tasks. As Judge 

Alito explains, this guideline authorizes the EPA to 

disregard ozone data influenced by the phenomenon of 

stratospheric ozone intrusion. See U.S. Environmental 

Protection Agency, Office of Air and Radiation, Office of Air 

Quality Planning and Standards, Monitoring and Data

Analysis Division, Guideline on the Identification and Use of

Air Quality Data Affected by Exceptional Events, EPA450/4-86-007 (July 1986). Additionally, the EPA has

acknowledged that it has, in the past, excluded ozone data 

affected by forest fires in evaluating other redesignation 

requests. 

The presence of these exceptions highlights the problem 

faced by communities such as the Pittsburgh-Beaver Valley 

 34 
area, whose herculean and largely successful efforts to 

combat air pollution may be derailed due to circumstances 

(upwind ozone) beyond its control. The tremendous 

remedial efforts undertaken by those regions seem to have 

been inadequately considered when contrasted with the 

aforementioned regulatory mollifications. 

I would urge Congress to address the burdens faced by 

the Pittsburgh-Beaver Valley nonattainment region and 

other areas in the same predicament. Congress has taken 

into account the problem of transported ozone in the past, 

excusing certain so-called "rural transport areas" from 

certain pollution control requirements. See 42 U.S.C. 

§ 7511a(h). I see no reason to treat metropolitan areas 

differently, especially where, as here, a region has achieved 

such significant emissions improvements. I acknowledge 

the potentially ameliorative effects of the Regulatory 

Flexibility Act, 5 U.S.C. § 601 et seq., but it does not 

directly address the problems facing Southwestern 

Pennsylvania. 

I would also urge the EPA to address these problems in 

the regulatory context. If the EPA and Congress 

satisfactorily address the referenced issues, we may be able 

to avoid a succession of expensive and burdensome 

litigations like this one. Judge Scirica joins in this 

concurrence. 

A True Copy: 

Teste: 

Clerk of the United States Court of Appeals

for the Third Circuit

 35