NRDC v. EPA

No. 08-1250 Consolidated with 09-1102, 11-1430

UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA

CIRCUIT

706 F.3d 428; 403 U.S. App. D.C. 378; 2013 U.S. App. LEXIS

214; 43 ELR 20001; 75 ERC (BNA) 1961

October 17, 2012, Argued

January 4, 2013, Decided

[*429] KAREN LECRAFT HENDERSON, Circuit

Judge: The four petitioners1 seek

review of two final rules, promulgated

pursuant to the Clean Air Act (CAA,

Act), which govern implementation of

the national ambient air quality

standard (NAAQS) for "fine"

particulate matter--that is,

particulate matter (PM)2 having a

diameter equal to or less than 2.5

micrometers (PM2.5). See Final Clean

Air Fine Particle Implementation Rule,

72 Fed. Reg. 20,586 (Apr. 25, 2007)

(PM2.5 Implementation Rule);

Implementation of the New Source

Review (NSR) Program for Particulate

Matter Less Than 2.5 Micrometers

(PM2.5), 73 Fed. Reg. 28,321 (May 16,

2008) (PM2.5 NSR Implementation Rule)

(collectively, Final PM2.5

Implementation Rules).3 In particular,

the petitioners challenge the decision

of the Environmental Protection Agency

(EPA) to promulgate the Final PM2.5

Implementation Rules pursuant to the

general implementation provisions of

Subpart 1 of Part D of Title I of the

Act, 42 U.S.C. §§ 7501-7509a (Subpart

1), rather than the

particulate-matter-specific provisions

of Subpart 4 of Part D of Title I, id.

§§ 7513-7513b (Subpart 4). We agree

with the petitioners that EPA erred in

applying the provisions of Subpart 1

rather than Subpart 4.

1They include the Natural

Resources Defense Council, Sierra

Club, American Lung Association

and Medical Advocates for Healthy

Air.

2"Particulate matter is the

generic term for a broad class of

chemically and physically diverse

substances that exist as discrete

particles (liquid droplets or

solids) over a wide range of

sizes." The particles "originate

from a variety of anthropogenic

stationary and mobile sources as

well as from natural sources" and

"may be emitted directly or

formed in the atmosphere by

transformations of gaseous

emissions such as sulfur oxides

(SOx), nitrogen oxides (NOx), and

volatile organic compounds

(VOC)." National Ambient Air

Quality Standards for Particulate

Matter, 62 Fed. Reg. 38,652,

38,653 (July 18, 1997).

3Under the Act's NSR provisions,

new or modified pollutant sources

must meet "strict standards,"

while existing sources are

"'grandfathered.'" New York v.

U.S. EPA, 413 F.3d 3, 13, 367

U.S. App. D.C. 3 (D.C. Cir.

2005).

I.

Section 109 of the Act mandates

that EPA establish a primary NAAQS for

each air pollutant for which EPA has

issued "air quality criteria" under

CAA section 108. 42 U.S.C. §

7409(a)(1).4 The Act defines [*430]

each such NAAQS as that standard "the

attainment and maintenance of which in

Page 1
the judgment of the Administrator,

based on such criteria and allowing an

adequate margin of safety, are

requisite to protect the public

health." Id. § 7409(b)(1). EPA is

required to "complete a thorough

review" of each pollutant's standard

and air quality criteria "at five-year

intervals" and "make such revisions in

such criteria and standards and

promulgate such new standards as may

be appropriate." Id. § 7409(d)(1).

Once a NAAQS has been established,

each state must adopt and submit to

EPA for approval a State

Implementation Plan (SIP) that

"provides for implementation,

maintenance, and enforcement of [the

NAAQS] in each air quality control

region (or portion thereof) within

such State." Id. § 7410(a)(1). Each

SIP must "include enforceable emission

limitations and other control

measures, means, or techniques . . . ,

as well as schedules and timetables

for compliance, as may be necessary or

appropriate to meet the [CAA's]

applicable requirements." Id. §

7410(a)(2)(A).

4The Act also requires EPA to

promulgate a secondary standard,

"the attainment and maintenance

of which . . . is requisite to

protect the public welfare from

any known or anticipated adverse

effects associated with" the

pollutant. 42 U.S.C. §

7409(b)(2). In this case, EPA

promulgated a single NAAQS as

both the primary and the

secondary standard.

Part D of CAA Title I governs "Plan

Requirements for Nonattainment Areas"

(that is, areas that have not attained

compliance with the applicable NAAQS)

and Subpart 1 thereof, added to the

Act in 1977, addresses "Nonattainment

Areas in General." Subpart 1 provides

generally that, once EPA designates an

area as "nonattainment," it "may

classify the area" so as to establish

an attainment deadline and it must

establish a schedule for the state

encompassing the nonattainment area to

submit a SIP. Id. § 7502(a)(1)(A). The

SIP, in turn, is required, inter alia,

to (1) provide for implementation of

control measures, (2) inventory

existing emissions, (3) identify and

quantify pollutant emissions

permissible under the SIP from the

construction and operation of all

major new stationary emission sources,

(4) require NSR permits for such

construction and operation and (5)

establish compliance schedules and

timetables. Id. § 7502(c). Pursuant to

this regime, in 1971, EPA established

a particulate matter NAAQS applicable

to "Total Suspended Particles," i.e.,

particulate matter up to 25-45

micrometers in diameter.

In 1987, EPA revised the NAAQS to

apply only to particles equal to or

smaller than 10 micrometers (PM10)--a

"size-specific indicator" it

determined "represent[ed] those

particles small enough to penetrate to

the thoracic region" because "[t]he

risks of adverse health effects

associated with deposition of typical

ambient fine and coarse particles in

the thorax (tracheobronchial and

alveolar regions of the respiratory

tract) are markedly greater than those

associated with deposition in the

extrathoracic (head) region."

Revisions to the National Ambient Air

Quality Standards for Particulate

Matter, 52 Fed. Reg. 24,634, 24,639

(July 1, 1987) (footnote omitted)

(1987 PM NAAQS Revisions).

In 1990, the Congress amended CAA

Part D by adding to it Subparts 2

through 5, each of which contains

additional provisions governing

nonattainment plan requirements for a

particular pollutant or group of

pollutants. At issue here, Subpart 4

applies to "Particulate Matter

Nonattainment Areas" and covers such

matters as setting attainment dates

for PM nonattainment areas,

classifying the nonattainment areas

(as "moderate" or "serious"),

reclassifying them (e.g., upon failure

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706 F.3d 428, *430; 403 U.S. App. D.C. 378;

2013 U.S. App. LEXIS 214; 43 ELR 20001
to attain) and extending attainment

dates. 42 U.S.C. §§ 7513-7513b; see

also id. §§ 7511-7511f (ozone-specific

requirements); [*431] id. §§

7512-7512a (carbon monoxide-specific

requirements).

In 1997, EPA again revised the

particulate matter NAAQS, this time

setting separate PM2.5 standards for

fine particles (having a diameter of

2.5 micrometers or less), while

retaining the existing PM10 standards.

National Ambient Air Quality Standards

for Particulate Matter, 62 Fed. Reg.

38,652, 38,654 nn.5-6 (July 18, 1997)

(Final PM NAAQS Rule). We upheld the

new particulate matter standards in

2002 after remand from the United

States Supreme Court. See Am. Trucking

Ass'ns v. EPA, 283 F.3d 355, 350 U.S.

App. D.C. 254 (D.C. Cir. 2002)

(applying Whitman v. Am. Trucking

Ass'ns, 531 U.S. 457, 121 S. Ct. 903,

149 L. Ed. 2d 1 (2001)).

In 2005, EPA published its Proposed

Rule To Implement the Fine Particle

National Ambient Air Quality

Standards, 70 Fed. Reg. 65,984 (Nov.

1, 2005). EPA subsequently issued the

final fine particle implementation

rule in two stages. In 2007, it

published the PM2.5 Implementation

Rule, setting out the general SIP

requirements for PM2.5. EPA followed

up in 2008 with the PM2.5 NSR

Implementation Rule to govern the NSR

permitting process. In each of the two

Final PM2.5 Implementation Rules, EPA

expressly followed the general

implementation provisions in Subpart 1

of Part D rather than Subpart 4's

particulate-material-specific

provisions. See PM2.5 Implementation

Rule, 72 Fed. Reg. at 20,589 ("EPA is

issuing this rule to implement the

1997 PM2.5 NAAQS in accordance with

the statutory requirements of the CAA

set forth in Subpart 1 of Part D of

Title 1, i.e., sections 171-179B of

the Act. . . . EPA has concluded that

Congress did not intend the Agency to

implement particulate matter NAAQS

other than those using PM10 as the

indicator in accordance with Subpart 4

of Part D of Title 1 . . . ."); PM2.5

NSR Implementation Rule, 73 Fed. Reg.

at 28,332 ("We do not agree that

subpart 4 of part D applies to PM2.5

nonattainment areas. Subpart 4 was

added to the Act by Congress

specifically to address the PM10

NAAQS. We believe that the PM2.5

standard should be implemented under

subpart 1 of part D, which is the

general provision of the Act related

to NAAQS implementation."). The

petitioners filed timely petitions for

review of both the PM2.5

Implementation Rule and the PM2.5 NSR

Implementation Rule.

II.

We review EPA's interpretation of

the CAA under Chevron U.S.A. Inc. v.

Natural Res. Def. Council, Inc., 467

U.S. 837, 104 S. Ct. 2778, 81 L. Ed.

2d 694 (1984). See Natural Res. Def.

Council v. EPA, 489 F.3d 1250, 1257,

376 U.S. App. D.C. 414 (D.C. Cir.

2007). Under Chevron:

We first ask "whether

Congress has directly spoken

to the precise question at

issue," in which case we

"must give effect to the

unambiguously expressed

intent of Congress." If the

"statute is silent or

ambiguous with respect to

the specific issue,"

however, we move to the

second step and defer to the

agency's interpretation as

long as it is "based on a

permissible construction of

the statute."

Id. (quoting Chevron, 467 U.S. at

842-43) (other quotation marks

omitted). Before addressing whether

EPA correctly applied Subpart 1 under

the Chevron framework, we first

consider the timeliness of the

petitioners' instant challenge.

A.

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706 F.3d 428, *430; 403 U.S. App. D.C. 378;

2013 U.S. App. LEXIS 214; 43 ELR 20001
EPA contends the petitioners'

challenge is untimely because it

should have been raised in 1997 when

EPA issued the Final PM NAAQS Rule,

which, EPA maintains, set out its

final decision on Subpart 1's [*432]

applicability. Because we conclude EPA

did not take final reviewable action

in 1997, the petitioners' challenge is

timely.5

5EPA acknowledges the instant

petitions for review of the PM2.5

Implementation Rule and the PM2.5

NSR Implementation Rule were

timely filed within sixty days

after each rule's publication as

required under 42 U.S.C. §

7607(b)(1). See Br. of Resp't 1.

In urging that it finalized its

decision in 1997, EPA relies on two

excerpts from the preamble to the 1997

Final PM NAAQS Rule. First, EPA cites

its response to comments challenging

its authority to promulgate a separate

PM2.5 standard given that the 1990

amendments referred only to a PM10

standard. At the conclusion of its

response, EPA offered the following

defense of its authority to promulgate

the new PM2.5 standards, rooted in

Subpart 1, couched in plainly

tentative language:

EPA's analysis of its

ability to implement a PM2.5

standard under the

provisions of subpart 1 of

Part D of Title I does not

support the view that

Congress prohibited EPA from

promulgating such a

standard. Congress clearly

specified an approach to the

implementation of the PM10

standard in the provisions

of subpart 4 of Part D of

Title I of the Act. The EPA

believes that the clear and

express linkage of that

approach to the PM10

standard indicates that a

different PM standard should

be implemented under the

general principles of

subpart 1 of Part D of Title

I of the Act. That Congress

directed specifically how

EPA and the States should

implement the PM10 standard

does not carry with it the

implication that Congress

intended to prohibit EPA

from exercising its

otherwise clear and express

authority to adopt a PM

standard based on a

different metric . . . .

Final PM NAAQS Rule, 62 Fed. Reg. at

38,695 (emphases added). Some pages

later, in a footnote, EPA more

affirmatively, albeit summarily,

stated its position that

implementation of the new standard

need not and would not be governed by

Subpart 4: "The SIP requirements of

subpart 4 of Part D of Title I of the

Act apply to SIPs for areas designated

as not attaining NAAQS for PM10 .

Those requirements will not apply to

SIPs to implement the PM2.5 NAAQS."

Id. at 38,704 n.96. We conclude these

two unembellished snippets, buried in

the preamble to the 1997 Final PM

NAAQS Rule, did not constitute final

agency action so as to be reviewable

in 1997.

"A final agency action is one that

marks the consummation of the agency's

decisionmaking process and that

establishes rights and obligations or

creates binding legal consequences."

Natural Res. Def. Council v. EPA, 559

F.3d 561, 564, 385 U.S. App. D.C. 132

(D.C. Cir. 2009) (citing Bennett v.

Spear, 520 U.S. 154, 177-78, 117 S.

Ct. 1154, 137 L. Ed. 2d 281 (1997)).

We have observed that "[w]hile

preamble statements," such as those

just quoted, "may in some unique cases

constitute binding, final agency

action susceptible to judicial review,

this is not the norm." Id. at 564-65

(citations omitted). As this case is

not a "unique" one, we adhere to the

norm.

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2013 U.S. App. LEXIS 214; 43 ELR 20001
The above quoted excerpts appear in

a document expressly intended to

"describe[] EPA's decision to revise

the national ambient air quality

standards (NAAQS) for particulate

matter (PM)," Final PM NAAQS Rule, 62

Fed. Reg. at 38,652 (emphasis

added)--it did not purport to detail

how the revised standards should be

implemented. Indeed, EPA had earlier

addressed the issue of implementation

in a separate Interim Implementation

Policy on New or Revised Ozone and

Particulate Matter (PM) National

Ambient Air Quality Standards (NAAQS),

61 Fed. Reg. 65,752 (Dec. 13, 1996)

(Interim Implementation [*433]

Policy). Although the Interim

Implementation Policy likewise

expressed an intent to apply Subpart 1

to implement the PM2.5 standard, 61

Fed. Reg. at 65,753, it made clear

that, as its name suggests, it was

only a temporary policy, which "would

represent EPA's preliminary views" and

"while it m[ight] include various

statements that States must take

certain actions, these statements

[we]re made pursuant to EPA's

preliminary interpretations, and thus

d[id] not bind the States and public

as a matter of law." Id. at 65,752

(emphases added). Accordingly, "[o]nly

after EPA ha[d] made its

interpretations final through

rulemaking"--"follow[ing] the

requirements of the Administrative

Procedure Act, 5 U.S.C. section 553(b)

and (c)"--"will they be binding on the

States and public as a matter of law."

Id. Given EPA's expressed intent to

issue a final, binding

notice-and-comment rule on the

issue--to supplant its "preliminary"

policies--we do not see how the quoted

lines from the preamble to the 1997

rule revising the standard itself

"mark the consummation of the agency's

decisionmaking process" on how to

implement the standard so as to

constitute final agency action.

Bennett v. Spear, 520 U.S. at 177-78

(internal quotation marks omitted).

Instead, we conclude EPA consummated

the decisionmaking process to

implement the PM2.5 standard only when

it published its final views in the

two Final PM2.5 Implementation Rules

now under review. Notwithstanding its

express and indefinite deferral of a

final implementation policy in 1997,

EPA argues the Supreme Court's

decision in Whitman v. American

Trucking Associations, 531 U.S. 457,

121 S. Ct. 903, 149 L. Ed. 2d 1

(2001), requires us to hold otherwise.

We are not so persuaded.

In Whitman, the Supreme Court

reviewed EPA's decision to implement

its "8-hour" 0.08 ppm NAAQS for

ozone--which replaced the previous

1-hour ozone standard of 0.12

ppm--under Subpart 1's general

nonattainment area provisions rather

than under Subpart 2's ozone-specific

provisions added in 1990. See National

Ambient Air Quality Standards for

Ozone, 62 Fed. Reg. 38,856, 38,873

(July 18, 1997) (Final Ozone NAAQS

Rule) ("[T]he provisions of subpart 1

of part D of Title I of the Act would

apply to the implementation of the new

8-hour O3 standards."). The Court

concluded that, in the main, the new

ozone NAAQS should be implemented

pursuant to Subpart 2 notwithstanding

Subpart 2 was enacted to address the

former 1-hour standard and some

provisions might therefore be "ill

fitted to implementation of the

revised standard" and thus leave

"gaps" for EPA to fill under Chevron

step 2. Whitman, 531 U.S. at 483-84.

The Whitman Court first addressed the

threshold question whether Subpart 1

constituted final agency action

subject to review and concluded that

it did. See id. at 477-78.

Addressing the Interim

Implementation Policy, which covered

both the ozone and the particulate

matter standards, the Whitman Court

acknowledged: "If the EPA had done no

more, we perhaps could accept its

current claim that its action was not

final." Id. at 477. The Court

explained, however, that, vis-à-vis

the ozone standard, EPA had done

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2013 U.S. App. LEXIS 214; 43 ELR 20001
"more." After the White House issued a

"'Memorandum for the Administrator of

the Environmental Protection Agency'

that prescribed implementation

procedures for the EPA to follow," EPA

"supplemented this memorandum with an

explanation of the implementation

procedures." Id.; see Implementation

of Revised Air Quality Standards for

Ozone and Particulate Matter, 62 Fed.

Reg. 38,421, 38,422 (July 18, 1997)

(Memorandum of July 16, 1997);

Implementation Plan for Revised Air

Quality Standards, 62 Fed. Reg. 38,423

(Implementation Memorandum

Supplement). [*434] In a section of

the Implementation Memorandum

Supplement titled "Implementation of

Ozone Standard," EPA explained that,

after receiving comments on the

proposed Interim Implementation

Policy, it had "reconsidered" its

interpretation in part and determined

that "Subpart 2 should continue to

apply as a matter of law for the

purpose of achieving attainment of the

current 1-hour standard." Id. at

38,424. But EPA made clear it adhered

to its previously expressed view that

"[o]nce an area attains the 1-hour

standard, those provisions will no

longer apply and the area's

implementation of the new 8-hour

standard would be governed only by the

provisions of Subpart 1 of Part D of

Title I." Id. EPA subsequently

"published [this interpretation] in

the explanatory preamble to its final

ozone NAAQS under the heading, 'Final

decision on the primary standard.'"

Whitman, 531 U.S. at 477-78 (citing

Final Ozone NAAQS Rule, 62 Fed. Reg.

at 38,873). Based on this chronology,

the Supreme Court found EPA's ozone

implementation policy was final and

reviewable, explaining:

The EPA's "decisionmaking

process," which began with

the 1996 proposal and

continued with the reception

of public comments,

concluded when the agency,

"in light of [these

comments]," and in

conjunction with a

corresponding directive from

the White House, adopted the

interpretation of Part D at

issue here. Since that

interpretation issued, the

EPA has refused in

subsequent rulemakings to

reconsider it, explaining to

disappointed commenters that

its earlier decision was

conclusive.

Whitman, 531 U.S. at 478-79 (citing 63

Fed. Reg. 31,014, 31,018-19 (1998)).

The history of the PM2.5 standard

reveals no comparable decisionmaking

process regarding implementation. The

Implementation Memorandum Supplement

did not even mention Subpart 1 or

Subpart 4 in its discussion of the

PM2.5 implementation--much less

distinguish between them or discuss

their applicability vel non to

implementation of the PM2.5 standard.

See 62 Fed. Reg. at 38,427-29 (section

titled "Implementation of New PM2.5

NAAQS"). Nor did EPA thereafter

overtly treat its "interim" PM2.5

implementation policy as final when it

promulgated the 2007 and 2008 Final

PM2.5 Implementation Rules challenged

here. Accordingly, we conclude the

petitioners' challenge is timely and

proceed to EPA's substantive decision

to implement the NAAQS under Subpart

1.

B.

EPA contends that because Subpart 4

repeatedly refers to PM10--rather than

to PM2.5 or "particulate matter"

generally--the statutory language

limits Subpart 4's applicability to

implementation of the current PM10

standard. Thus, by default, EPA

contends, PM2.5 must be implemented

pursuant to the general (and less

stringent6 implementation procedure in

[*435] Subpart 1. This argument

ignores [*436] the plain meaning of

the statute and the lesson of Whitman.

6For example, (1) Subpart 4

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2013 U.S. App. LEXIS 214; 43 ELR 20001
requires a nonattainment area to

be classified as "moderate" and

upon failure to attain to be

reclassified as "serious," 42

U.S.C. § 7513(a)-(c), while under

Subpart 1, EPA "may" but is not

required to classify a

nonattainment area, id. §

7502(a)(1)(A); (2) under Subpart

4, a "serious" attainment date

may be extended only once (for a

maximum of 5 years) and only if

the SIP includes the "most

stringent measures" included in

any state's SIP or achieved in

any State and feasible for the

area, id. § 7513(e), while

Subpart 1 allows attainment date

extensions of up to 10 years with

no "stringent measures"

requirement therefor, id. §

7502(a)(2)(A); (3) Subpart 4

subjects a "serious"

nonattainment area that fails to

timely attain to a mandatory

annual 5% pollutant reduction,

id. § 7513a(d), while Subpart 1

includes no such requirement; (4)

Subpart 4 requires that

"reasonable available control

measures" must be implemented

within 4 years after designation,

id. § 7513a(a)(1)(C), while

Subpart 1 requires such measures

be implemented "as expeditiously

as practicable," id. §

7502(c)(1); and (5) Subpart 4

requires that best available

control measures be implemented

no later than 4 years after an

area is classified or

reclassified as "serious," id. §

7513a(b)(1)(B), while Subpart 1

has no best available control

measures requirement.

Before the Congress enacted Subpart

4, EPA had promulgated a single

particulate matter standard--the PM10

standard--which encompassed all

particulate matter with a diameter of

10 micrometers or less--including both

coarse and fine particulate matter,

that is, particulate matter now

governed by both the PM10 and PM2.5

standards--and the 1990 CAA amendments

adopted this broad meaning in defining

"PM10." 1987 PM NAAQS Revisions, 52

Fed. Reg. at 24,639 ("The

Administrator . . . has decided to

replace [Total Suspended Particles] as

the particle indicator for the primary

standards with a new indicator that

includes only those particles less

than a nominal 10 [micrometers] in

diameter. . . . In defining the

standards for particulate matter, this

new indicator is termed PM10."); 42

U.S.C. § 7602(t) ("The term 'PM-10'

means particulate matter with an

aerodynamic diameter less than or

equal to a nominal ten micrometers . .

. ."). Thus, by its express terms,

Subpart 4, when enacted, governed all

PM10 particles, including those now

denominated PM2.5. The scope of the

statutory definition--and consequently

of Subpart 4's application--did not

change when EPA subdivided PM10 by

regulation. As the Whitman Court made

clear, the intent of the 1990

amendments was to limit the broad

implementation discretion Subpart 1

had previously granted EPA. Cf.

Whitman, 531 U.S. at 484 ("The

principal distinction between Subpart

1 and Subpart 2 is that the latter

eliminates regulatory discretion that

the former allowed."). It makes no

sense then that the Congress would

have wanted EPA to relax Subpart 4's

more stringent, nondiscretionary

requirements for implementing the

PM2.5 standard at the same time EPA

decided to strengthen the PM2.5

standard itself based on "evidence

from numerous health studies

demonstrating that serious health

effects are associated with exposures

to elevated levels of PM2.5." PM2.5

Implementation Rule, 72 Fed. Reg. at

20,586; see also id. at 20,586-87

("Epidemiological studies have shown

statistically significant correlations

between elevated PM2.5 levels and

premature mortality. Other important

effects associated with PM2.5 exposure

include aggravation of respiratory and

cardiovascular disease (as indicated

by increased hospital admissions,

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emergency room visits, absences from

school or work, and restricted

activity days), changes in lung

function and increased respiratory

symptoms, as well as new evidence for

more subtle indicators of

cardiovascular health. Individuals

particularly sensitive to PM2.5

exposure include older adults, people

with heart and lung disease, and

children.").7 Notwithstanding the

plain meaning of the statutory

language and the force of Whitman,8

EPA offers several unconvincing

arguments to support implementing the

new PM2.5 standard pursuant to Subpart

1 rather than Subpart 4.

7The regulations' treatment of

precursors provides a useful

example of how the Agency has

used Subpart 1 to establish a

less stringent implementation

regime than envisioned by Subpart

4. Ammonia is a precursor to fine

particulate matter, making it a

precursor to both PM2.5 and PM10.

For a PM10 nonattainment area

governed by Subpart 4, a

precursor is presumptively

regulated. See 42 U.S.C. §

7513a(e). But under the PM2.5

rules challenged here, the EPA

established a rebuttable

presumption against regulating

ammonia unless a State or the EPA

"provides an appropriate

technical demonstration" that

shows emissions from ammonia

"significantly contribute to

PM2.5 concentration in the

nonattainment area." 40 C.F.R. §

51.1002(c)(4)(i). When Congress

enacted Subpart 4, it sought to

end this administrative

gamesmanship.

8EPA offers several grounds to

distinguish Whitman--none of them

persuasive. First EPA notes that

the text of Subpart 2 refers

generically to "ozone" while

Subpart 4's text refers

specifically to PM10, EPA Br.

36--but Subpart 4's title refers

generically to "Particulate

Matter" and, as we have noted,

when the 1990 amendments to the

CAA were enacted, PM10 included

PM2.5 under both the new

statutory definition and the

existing EPA definition. Second,

EPA argues that Subpart 4's

provisions do not

"comprehensively prescribe[]

classifications and attainment

dates for all particulate matter

nonattainment areas." Br. of

Resp't 37 (emphasis in original).

Subpart 4 may not be as

comprehensive as Subpart 2 but

its requirements are specific,

more stringent and far less

discretionary than Subpart 1. See

supra note 6. Third, EPA contends

that in contrast to Whitman,

EPA's application of Subpart 1 to

PM2.5 does not render Subpart 4

"utterly nugatory" because

Subpart 4 still applies to the

remaining PM10 standard. Br. of

Resp't 37 (quoting Whitman, 531

U.S. at 484). But if EPA's

interpretation stands, Subpart 4

will be "utterly nugatory" with

respect to implementation of the

PM2.5 standard--notwithstanding

the Congress expressly directed

the standard applicable to all

PM10 particles, including PM25,

be regulated under Subpart 4.

First, EPA claims Subpart 4

"contains requirements that are

expressly based upon the form of the

PM10 NAAQS." Br. of Resp't 31. This

may be true but Subpart 4 also

expressly governs implementation of

the "PM-10" standard, see 42 U.S.C. §§

7513-7513b, and the Act defines

"PM-10" as "particulate matter with an

aerodynamic diameter less than or

equal to a nominal ten micrometers,"

42 U.S.C. § 7602(t). Thus, under

Chevron step 1, EPA must implement all

standards applicable to

PM10--including its PM2.5

standards--pursuant to Subpart 4.

Second, EPA urges that because in

the 1987 PM NAAQS Revisions, it "had

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2013 U.S. App. LEXIS 214; 43 ELR 20001
considered whether to establish a

separate NAAQS for fine particles,

using PM2.5 as the indicator," the

Congress should have foreseen that it

might do so later. Br. of Resp't 32.

It is not at all clear that the

Congress should have so foreseen--EPA

cites a single, vague footnote to

support its claim the Congress was on

notice such a change was likely. Id.

at 32 (citing 52 Fed. Reg. at 24,639

n.2 ("Particles in ambient air usually

occur in two somewhat overlapping size

distributions, fine (diameter less

than 2.5 [micrometers]) and coarse

(diameter larger than 2.5

[micrometers]. The two size fractions

tend to have different origins and

composition." (staff document citation

omitted)). But even were such notice

clear, it does not follow that the

Congress therefore intended that a

separate PM2.5 standard (if

promulgated) be exempt from Subpart

4's requirements. As in Whitman, the

possibility of such a change suggests

only that gaps resulting therefrom

might "prevent us from concluding that

Congress clearly intended [the

specific pollutant subpart] to be the

exclusive, permanent means of

enforcing a revised ozone standard in

nonattainment areas." Whitman, 531

U.S. at 484 (emphasis added). It does

not render "utterly nugatory" the

restrictions that the 1990 amendments

imposed on EPA's discretion in

implementing the particulate matter

standards for all particles 10

micrometers or less in diameter. See

id. As the Supreme Court observed

regarding Subpart 2, "[a] plan

reaching so far into the future was

not enacted to be abandoned the next

time the EPA reviewed the

[pollutant's] standard--which Congress

[*437] knew could happen at any

time." Id. at 485.

EPA also argues that the Congress

"could have easily used the general

term 'particulate matter,' rather than

the specific term 'PM-10.'" Br. of

Resp't 33. That the Congress could

have done so does not negate the

reality that the "PM10" standard to

which the Congress referred in fact

included fine PM2.5 (both under the

1987 Rule and the 1990 statutory

definition).

In a final Chevron step 1 effort,

EPA asserts that the legislative

history makes the Congress's intent

clear. Assuming legislative history

could override the plain, unambiguous

directive of Subpart 4, the history

cited here is unconvincing. EPA relies

on a single congressman's statement:

"'The Title I PM-10 provisions of H.R.

3030 somewhat reschedule the

attainment dates that would otherwise

apply under the PM-10 standards as

promulgated by EPA.'" Br. of Resp't 39

(quoting A Legislative History of the

Clean Air Act Amendments of 1990, at

2996 (Comm. Print 1993) (statement of

Rep. John Murtha)). This statement

avails EPA nought. "[P]utting to one

side the fact that this was the

statement of a single [member of

Congress], . . . it is not necessarily

inconsistent with" the petitioners'

view that Subpart 4 continues to apply

to PM2.5 standards. See Grand Canyon

Air Tour Coal. v. FAA, 154 F.3d 455,

474, 332 U.S. App. D.C. 133 (D.C. Cir.

1998). At the time the statement was

uttered, "the PM-10 standards as

promulgated by EPA" applied to all

particulate matter having a diameter

equal to or less than 10

micrometers--including what is now

denominated PM2.5.9 See 1987 PM NAAQS

Revisions, 52 Fed. Reg. at 24,639.

9Moreover, "judges must exercise

extreme caution before concluding

that a statement made in floor

debate, or at a hearing, or

printed in a committee document

may be taken as statutory gospel,

in light of the endemic

interplay, in Congress, of

political and legislative

considerations likely unrelated

to the interpretive tasks of a

court." Tex. Mun. Power Agency v.

EPA, 89 F.3d 858, 875, 319 U.S.

App. D.C. 217 (D.C. Cir. 1996)

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2013 U.S. App. LEXIS 214; 43 ELR 20001
(per curiam) (quotation marks and

alterations omitted). Here, it is

hard to ignore "the irony that

[EPA] points to the same floor

statement that the [petitioners]

contend[] supports [their]

opposite view." Grand Canyon Air

Tour Coal., 154 F.3d at 474

(emphasis in original).

EPA additionally argues that its

"reading of the act is, at minimum, a

'permissible' interpretation entitled

to deference under Chevron step two."

Br. of Resp't 41 (upper case lowered).

This argument is foreclosed, however,

under Chevron step 1 because the

statute is plain on its face.

For the foregoing reasons, we grant

the petitions for review of the Final

Clean Air Fine Particle Implementation

Rule, 72 Fed. Reg. 20,586 (Apr. 25,

2007), and the Implementation of the

New Source Review (NSR) Program for

Particulate Matter Less Than 2.5

Micrometers (PM2.5), 73 Fed. Reg.

28,321 (May 16, 2008). We remand to

EPA to re-promulgate these rules

pursuant to Subpart 4 consistent with

this opinion.10

10In light of our disposition, we

need not address the petitioners'

challenge to the presumptions in

40 C.F.R. § 51.1002(c)(3)-(4)

that volatile organic compounds

and ammonia are not PM2.5

precursors as Subpart 4 expressly

governs precursor presumptions.

See 42 U.S.C. § 7513a(e).

Moreover, we decline the

petitioners' invitation to set a

deadline for EPA upon remand or

to retain jurisdiction pending

such action. See Natural Res.

Def. Council v. EPA, 489 F.3d

1364, 1375, 376 U.S. App. D.C.

528 (D.C. Cir. 2007) ("We decline

to set a two year limit on EPA's

proceedings on remand as the NRDC

requests; mandamus affords a

remedy for undue delay."); North

Carolina v. EPA, 550 F.3d 1176,

1178, 384 U.S. App. D.C. 70 (D.C.

Cir. 2008) (per curiam)

(declining invitation to "impose

a definitive deadline by which

EPA must correct [clean air

rule's] flaws" and reminding

petitioners of availability of

mandamus).

So ordered.

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2013 U.S. App. LEXIS 214; 43 ELR 20001