LEXSEE 99 F3D 1551

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

UNITED STATES ENVIRONMENTAL PROTECTION AGENCY, Respondent,

STATE OF UTAH, Intervenor.

No. 95-9541

UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT

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

1033; 27 ELR 20458

November 13, 1996, Filed

PRIOR HISTORY: [**1] Appeal from an

Order of The United States

Environmental Protection Agency.

DISPOSITION: Environmental Protection

Agency's "Determination of Attainment

of Ozone Standard for Salt Lake and

Davis Counties, Utah, and

Determination Regarding Applicability

of Certain Reasonable Further Progress

and Attainment Demonstration

Requirements" upheld, Petition for

Review denied.

COUNSEL: Munir R. Meghjee (Robert B.

Wiygul, Sierra Club Legal Defense

Fund, Denver, Colorado, and Robert W.

Adler, Salt Lake City, Utah, with him

on the briefs), Sierra Club Legal

Defense Fund, Denver, Colorado, for

Petitioners.

David A. Carson, (Lois J. Schiffer,

Assistant Attorney General,

Environment & Natural Resources

Division; Kevin W. McLean and Kendra

H. Sagoff, Office of General Counsel,

United States Environmental Protection

Agency, Washington, D.C.; Jonah M.

Staller, Office of Regional Counsel,

United States Environmental Protection

Agency, Denver, Colorado, with him on

the brief), United States Department

of Justice, Environment & Natural

Resources Division, Denver, Colorado,

for Respondent.

Fred G. Nelson (Jan Graham, Attorney

General; Denise Chancellor, Assistant

Attorney General with him on the

brief), Assistant [**2] Attorney

General, Salt Lake City, Utah, for

Intervenor.

JUDGES: Before BRORBY, GODBOLD * and

McWILLIAMS, Circuit Judges.

* The Honorable John C. Godbold,

Senior Circuit Judge for the

Eleventh Circuit, sitting by

designation.

OPINION BY: BRORBY

OPINION: [*1553] BRORBY, Circuit

Judge.

The Sierra Club and Wasatch Clean

Air Coalition ("Petitioners") seek

judicial review of a final agency

action in accordance with the Clean

Air Act (the "Act"), 42 U.S.C. §

7607(b)(1) (1994). Specifically,

Petitioners challenge the

Environmental Protection Agency's

decision to exempt Salt Lake and Davis

Counties, Utah (the "Counties") from

selected Clean Air Act "nonattainment

area" requirements without first

redesignating the Counties as an

"attainment area" pursuant to 42

U.S.C. § 7407(d)(3)(E)(i)-(v) (1994).

Petitioners contend the Environmental

Protection Agency's decision is

Page 1
unreasonable and contrary to the plain

meaning of the Clean Air Act, and

therefore must be set aside under both

the first and second steps of Chevron

USA, Inc. v. Natural Resources Defense

Council, Inc., 467 U.S. 837, 81 L. Ed.

2d 694, 104 S. Ct. 2778 (1984).

Having thoroughly reviewed the

administrative record and considered

the parties' arguments, we uphold

[**3] the Environmental Protection

Agency's Clean Air Act interpretation

and deny the Petitioners' request to

set aside the Environmental Protection

Agency's July 18, 1995 final decision

entitled "Determination of Attainment

of Ozone Standard for Salt Lake and

Davis Counties, Utah, and

Determination Regarding Applicability

of Certain Reasonable Further Progress

and Attainment Demonstration

Requirements."

NATURE OF THE CASE

The Clean Air Act, 42 U.S.C. §§

7401 - 7671q (1994) establishes a

program, jointly administered by the

federal government and the states, to

"protect and enhance the quality of

the Nation's air resources so as to

promote the public health and welfare

and productive capacity of its

population." 42 U.S.C. § 7401(b)(1).

Toward that end, the Act requires the

Environmental Protection Agency to

establish primary and secondary

National Ambient Air Quality Standards

for certain pollutants such as ozone.

n1 Pursuant to the Act, areas failing

to meet the National Ambient Air

Quality Standard for ozone are

designated as "nonattainment" areas,

which must develop a State

Implementation Plan with sufficient

control measures to attain and

maintain the ozone standard. [**4]

42 U.S.C. § 7410.

n1 The National Ambient Air

Quality Standard for ozone is

0.12 ppm not to be exceeded more

than 3 times in a three year

period at any one monitoring

station. 40 C.F.R. § 50.9 & App.

H (1995).

In 1977, Salt Lake and Davis

Counties, Utah, failed to meet the

National Ambient Air Quality Standards

for ozone. Accordingly, the Counties

were designated as a nonattainment

area and submitted a State

Implementation Plan to the

Environmental Protection Agency.

Amendments to the Clean Air Act in

1990, which further classified ozone

nonattainment areas according to the

severity of air pollution (e.g.,

marginal, moderate, serious, severe,

and extreme), 42 U.S.C. § 7511,

resulted in the Counties being

reclassified as a "moderate

nonattainment area." 40 C.F.R. §

81.345 (1995). Moderate nonattainment

areas are subject to the requirement

of 42 U.S.C. §§ 7511a(b)(1)(A)(i) and

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

n2 referred to as the "fifteen

[*1554] percent reasonable further

progress plan" and the "attainment

[**5] demonstration" provision,

requires moderate nonattainment areas

to continue "reasonable further

progress" toward attaining National

Ambient Air Quality Standards. This

goal is achieved by requiring the area

to submit a plan providing for a

fifteen percent reduction in volatile

organic compounds. Additionally, §

7511a(b)(1)(A)(i) requires the

submitted plan provide for such

specific annual emission reductions

sufficient to demonstrate the area

will attain the National Ambient Air

Quality Standards by the statutory

deadline. Section 7502(c)(9) provides

further future compliance assurance by

requiring moderate and other

nonattainment areas to submit a plan

with specific "contingency measures"

to be implemented if the area fails to

attain, or fails to make reasonable

further progress toward attaining, the

National Ambient Air Quality standards

by the statutory deadline.

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44 ERC (BNA) 1033; 27 ELR 20458
n2 Section 7511a(b)(1)(A)(i)

states in relevant part:

§ 7511a. Plan

submissions and

requirements

(b) Moderate Areas

(1) Plan provisions for

reasonable further

progress

(A) General rule

(i) By no later than 3

years after November

15, 1990, the State

shall submit a revision

to the applicable

implementation plan to

provide for volatile

organic compound

emission reductions,

within 6 years after

November 15, 1990, of

at least 15 percent

from the baseline

emissions, accounting

for any growth in

emissions after 1990.

Such plan shall provide

for such specific

annual reductions in

emissions of volatile

organic compounds and

oxides of nitrogen as

necessary to attain the

national primary

ambient air quality

standard for ozone by

the attainment date ...

[**6]

By the end of summer 1992 the

Counties had collected the requisite

three years of ambient monitoring data

to demonstrate attainment of the ozone

standard. In fact, the data

demonstrates the Counties have

attained the ozone standard since

1991. n3 Accordingly, in 1993, the

State of Utah submitted an application

to the Environmental Protection Agency

requesting that Salt Lake and Davis

Counties be redesignated as an

"attainment" area pursuant to 42

U.S.C. § 7407(d)(3). The Environmental

Protection Agency and the State of

Utah continue to work toward the

completion of the redesignation

process.

n3 This improvement largely is

attributed to the implementation

of state air quality plans in the

1980's that reduced motor vehicle

emissions and applied reasonably

available control technology to

the point sources of ozone

precursor pollutants. Ozone is

formed through the interaction of

volatile organic compounds,

nitrogen oxides, carbon monoxide

and sunlight. The sources of

these ozone precursor pollutants

include facilities that handle

petroleum products, combustion

sources, petroleum fuel powered

engines and biogenic sources.

[**7]

Pending completion of the

redesignation process, and based on

air quality data collected from 1992

to 1994, the Environmental Protection

Agency issued a direct final rule and

a final rule, n4 which is the basis of

Petitioners' challenge. 60 Fed. Reg.

30,217 (1995) (proposed rule); 60 Fed.

Reg. 30,189 (direct final rule).

n4 A direct final rule becomes

effective without further

administrative action, unless

adverse comments are received

within the time limit specified

in the proposed rule. If adverse

comments are received, the

Environmental Protection Agency

withdraws its direct final rule

and issues a final rule that

addresses those comments. In this

case, the Environmental

Protection Agency received

comments from the Sierra Club and

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44 ERC (BNA) 1033; 27 ELR 20458
one other commenter. The

Environmental Protection Agency

therefore withdrew its direct

final rule and, after considering

the comments, issued its final

rule.

In its final rule, without

redesignating the area as an

attainment area, the Environmental

Protection Agency determined [**8]

that because the Counties had attained

the National Ambient Air Quality

Standards the "fifteen percent

reasonable further progress plan" and

the "attainment demonstration"

requirements of § 7511a(b)(1)(A)(i)

and the "contingency measures"

requirement of § 7502(c)(9) were

inapplicable. 60 Fed. Reg. at 36,

723. In addition, the State of Utah

would not be subject to Clean Air Act

sanctions for failure to submit plan

revisions addressing these

requirements. n5 Petitioners challenge

this final [*1555] rule, asserting

that the fifteen percent reasonable

further progress plan, attainment

demonstration, and contingency

measures requirements are mandatory

absent formal redesignation to

attainment area status.

n5 Any state failing to

satisfy Clean Air Act

requirements is subject to

federal sanctions in the form of

stricter requirements for siting

new or modified pollution

sources, or a prohibition on the

approval of federal highway

funds. 42 U.S.C. § 7509. The

Environmental Protection Agency

is authorized to impose sanctions

eighteen months after finding a

state has failed to submit

required State Implementation

Plan elements. This

eighteen-month "sanctions clock"

is turned off if and when the

deficiency is corrected, or when

an area is redesignated to

attainment. See 42 U.S.C. §§

7509(a), 7505a(c).

[**9]

ANALYSIS

The issue for our determination is

whether the Environmental Protection

Agency correctly determined that 42

U.S.C. §§ 7502(c)(9) and

7511a(b)(1)(A)(i), do not apply to

areas which are attaining the ozone

standard, but which have not yet been

redesignated as attainment areas. This

Court will set aside the Environmental

Protection Agency's determination only

if it is arbitrary, capricious, or

otherwise not in accordance with law.

5 U.S.C. § 706(2)(A) (1994). Where, as

here, the issue turns on the

Environmental Protection Agency's

interpretation of a statute it

administers, our analysis is dictated

by Chevron USA, Inc. v. Natural

Resources Defense Council, Inc., 467

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

2778 (1984). Applying Chevron, we

first determine whether the statute is

unambiguous -- i.e., whether Congress

directly has spoken to the precise

question at issue. Chevron, 467 U.S.

at 842-43; Marshall v. Chater, 75 F.3d

1421, 1428 (10th Cir. 1996). If

congressional intent is clear, we must

give effect to that intent. If,

however, the statute is ambiguous or

silent on the issue in question, we

must proceed to the second step of the

Chevron analysis and determine whether

[**10] the agency's determination is

based on a permissible construction of

the statute. If the agency's

construction is reasonable, we will

defer to the agency's interpretation.

Chevron, 467 U.S. at 842-44; Marshall,

75 F.3d at 1428.

A. Plain Language

Petitioners first contend the

Environmental Protection Agency's

final rule exempting the Counties from

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44 ERC (BNA) 1033; 27 ELR 20458
the fifteen percent volatile organic

compound reduction, attainment

demonstration and contingency measures

requirements is contrary to the plain

meaning of the Clean Air Act and must

be set aside under the first step of

the Chevron analysis. We disagree.

Petitioners' plain language

argument is circuitous and difficult

to summarize. However, Petitioners

appear to build from the premise that

each of the provisions at issue must

be read individually and literally to

give full effect to any mandatory

language included in those provisions.

It is true a literal reading of the

first sentence of 42 U.S.C. §

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

mandate that a state with a moderate

nonattainment area "shall submit a

revision to the applicable

implementation plan to provide for

volatile organic compound emission

reductions ... of [**11] at least 15

percent from baseline emissions." That

provision goes on, however, to state

that "such plan shall provide for such

specific annual reductions in

emissions of volatile organic

compounds and oxides of nitrogen as

necessary to attain the national

primary ambient air quality standard

for ozone." Id. (emphasis added).

Moreover, the provision is captioned

"Plan provisions for reasonable

further progress." The phrase

"reasonable further progress" is

defined as "such annual incremental

reductions in emissions of the

relevant air pollutant as are required

by this part or may reasonably be

required by the Administrator for the

purpose of ensuring attainment of the

applicable national ambient air

quality standard." n6 42 U.S.C. §

7501(1) (emphasis added). The plain

language of 42 U.S.C. § 7502(c)(9)

similarly refers to contingency

measures to be taken if an area "fails

to make reasonable further progress,

or to attain the national primary

ambient air quality standard." When

read as a whole to properly understand

the statutory context, see Urban v.

King, 43 F.3d 523, 526 (10th Cir.

1994), these two provisions fail to

clearly require areas that have

attained the [**12] ozone standard

but have not yet been redesignated to

attainment status to make further

emission reductions. The language

instead suggests Congress intended the

fifteen percent volatile organic

compound reduction requirement and

[*1556] the contingency measures

requirement to apply only when

necessary to attain the relevant ozone

standard.

n6 This definition applies for

"the purposes of ... part" D of

Title I of the Clean Air Act,

which includes 42 U.S.C. §

7511a(b)(1)(A)(i). Id.

At best, Petitioners' complex plain

language argument establishes that

some ambiguity may exist as to

Congress' intent . We therefore move

on to consider whether the

Environmental Protection Agency's

construction of the two provisions at

issue is a permissible one.

B. The Environmental Protection

Agency's Interpretation

Petitioners contend that even if the

Environmental Protection Agency's

statutory interpretation does not

violate the plain statutory language,

the agency's interpretation is

unreasonable as it creates internal

inconsistencies [**13] in the

Environmental Protection Agency's

application of the Act and circumvents

the Clean Air Act 's preventive

approach. The Environmental Protection

Agency's rationale for its

determination is set forth fully in

the final rule being challenged, 60

Fed. Reg. 36,723 (1995), and in the

May 10, 1995 memorandum from John

Seitz, Director, Office of Air Quality

Planning and Standards to the various

regional air quality directors. In

essence, the Environmental Protection

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44 ERC (BNA) 1033; 27 ELR 20458
Agency reasons that the purpose of the

fifteen percent volatile organic

compound reduction requirement, the

attainment demonstration requirement

and the contingency measures

requirement is to ensure reasonable

further progress toward and timely

attainment of the National Ambient Air

Quality Standard for ozone. If an area

can demonstrate via three years of

monitoring data that it has in fact

attained the ozone standard, the

purpose of those requirements has been

fulfilled and plan provisions

outlining additional measures to

achieve attainment would have little

meaning. Moreover, air quality

controls designed to surpass the

applicable ozone standard would be

both costly and unnecessary.

1. Programmatic Consistency. [**14]

Petitioners argue it is

inconsistent for the Environmental

Protection Agency to apply some ozone

nonattainment area requirements (e.g.,

the application of reasonable

available control technology to

stationary sources and the

implementation of a motor vehicle

inspection and maintenance plan), but

not others (e.g., the fifteen percent

volatile organic compound reduction

and contingency measures). Instead,

they would have the Environmental

Protection Agency rigidly apply all

ozone nonattainment area requirements

unless and until an area is formally

redesignated to attainment status.

Petitioners contend there is no basis

for distinguishing the provisions

since each requirement "has the same

substantive effect -- to reduce

emissions of pollutants so that the

[National Ambient Air Quality

Standard] is attained both now and in

the future."

The Environmental Protection Agency

consistently has rejected this all or

nothing approach. Shortly after the

Clean Air Act Amendments of 1990, the

Environmental Protection Agency

published a General Preamble for the

Implementation of Title I of the Clean

Air Act Amendments of 1990. 57 Fed.

Reg. 13,498 (1992). In that preamble,

the Environmental [**15] Protection

Agency determined certain general

nonattainment plan requirements do not

apply in evaluating a request for

redesignation to attainment under

circumstances where (1) an area has in

fact monitored attainment of the

standard, and (2) those requirements

are expressly linked by statutory

language with the notion of reasonable

further progress. See 57 Fed. Reg. at

13,564. The Environmental Protection

Agency reasoned that when an area

requests redesignation to attainment

status,

at a minimum, the air

quality data for the area

must show that the area has

already attained [the

National Ambient Air Quality

Standards]. Showing that the

State will make [reasonable

further progress] towards

attainment will, therefore,

have no meaning at that

point.

57 Fed. Reg. at 13,564. In other

words, once the standards are

obtained, requirements related to the

demonstration of reasonable further

progress toward attainment serve no

purpose. Any additional or future air

quality protection is left to the

operation of other Clean Air Act

provisions.

The determination to exempt Salt

Lake and Davis Counties from analogous

[*1557] ozone-specific nonattainment

plan requirements is a logical [**16]

extension of the Environmental

Protection Agency's original, general

interpretation of the 1990 Clean Air

Act Amendments. We afford deference to

the Agency's interpretation under

these circumstances. New Mexico

Envtl. Improvement Div. v. Thomas, 789

F.2d 825, 831-32 (10th Cir. 1986) (the

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44 ERC (BNA) 1033; 27 ELR 20458
court will defer to an agency's

statutory interpretation when such an

interpretation is contemporaneous with

the legislation's enactment and has

been consistently adhered to by the

agency over time).

Consistent with its interpretation of

the general reasonable further

progress provisions, the Environmental

Protection Agency exempted the

Counties from the §§ 7511a(b)(1)(A)(i)

and 7502(c)(9) requirements because

the statutory language imposing those

requirements is directly linked to the

notion of reasonable further progress

toward attainment. Here again, the

stated purpose of "reasonable further

progress" is to ensure attainment by

the applicable attainment date. If a

moderate ozone nonattainment area has

in fact already attained the ozone

standard, it would make little sense

to require a state to demonstrate the

area will make reasonable progress

toward attainment.

Not all ozone nonattainment [**17]

area provisions are semantically

connected to reasonable further

progress requirements. For obvious

reasons, the application of those

provisions (i.e., the application of

reasonable available control

technology to stationary sources and

the implementation of a motor vehicle

inspection and maintenance plan, 42

U.S.C. §§ 7511a(b)(2), 7511a(b)(4))

continues to fulfill important Clean

Air Act objectives whether or not an

area has attained the ozone standard.

Accordingly, the Environmental

Protection Agency affords no relief

from those requirements based on

actual attainment.

We do not find the Environmental

Protection Agency's interpretation to

create programmatic inconsistency. Nor

do we find anything in the structure

or language of the nonattainment area

provisions at issue that contradicts

the Environmental Protection Agency's

longstanding interpretation. In sum,

the Petitioners' uncompromising

reading of the ozone nonattainment

area requirements lacks the textual

support necessary to overcome the

Environmental Protection Agency's

pragmatic construction.

2. The Redesignation Process.

Petitioners assert that the

redesignation process outlined at 42

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

the exclusive means by which an area

may be redesignated from nonattainment

to attainment status. Thus,

Petitioners argue, the Environmental

Protection Agency is not authorized to

make any factual determination of

attainment outside the formal

redesignation process.

The Environmental Protection Agency

may redesignate an area from

nonattainment to attainment in

accordance with the provisions of 42

U.S.C. § 7407(d)(3)(E). Notably, this

process involves more than a simple

determination the area has attained

the relevant National Ambient Air

Quality Standards. In addition to that

factual determination, the

Environmental Protection Agency must

(1) fully approve the State

Implementation Plan; (2) determine

that the improvement in air quality is

due to permanent and enforceable

reductions in emissions resulting from

implementation of the State

Implementation Plan and other required

reductions; (3) fully approve a

maintenance plan under 42 U.S.C. §

7505a; and (4) determine that the

State has met all applicable

requirements under 42 U.S.C. § 7410

with respect to State Implementation

Plans generally, and under part D with

respect to State Implementation Plan

provisions for nonattainment [**19]

areas. 42 U.S.C. § 7407(d)(3)(E).

Before an area may be redesignated to

attainment, the State also must adopt

and submit maintenance plans that (1)

provide for maintenance of the

National Ambient Air Quality Standards

for at least ten years after

redesignation, and (2) include

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44 ERC (BNA) 1033; 27 ELR 20458
additional measures as necessary to

ensure the area remains in attainment.

42 U.S.C. § 7505a. The State further

is required to revise its maintenance

plan eight years after redesignation

to cover a second ten-year period

after the first ten-year maintenance

[*1558] plan expires. n7 42 U.S.C. §

7505a(b).

n7 Accordingly, the

Environmental Protection Agency

intends that the maintenance

plans will ensure that population

growth and other changes in a

redesignated area over a

twenty-year period do not lead to

a violation of the relevant

National Ambient Air Quality

Standards.

The Environmental Protection Agency

has made it abundantly clear its

determination to exempt the Counties

from certain reasonable further

progress and attainment demonstration

[**20] requirements is not a de facto

redesignation to attainment status.

60 Fed. Reg. at 36,723. As discussed

above, the redesignation process

involves more than a factual

determination that monitoring data

establishes attainment with the

applicable standard. All redesignation

criteria at 42 U.S.C. § 7407(d)(3)(E)

remain in full force and effect and

must be satisfied before the

Environmental Protection Agency will

approve the Counties' pending

redesignation request. Moreover, if

the Counties violate the ozone

National Ambient Air Quality Standards

prior to their redesignation to

attainment status, the exemption from

certain attainment demonstration and

reasonable further progress

requirements will no longer apply, and

the Counties will have to submit plan

revisions pursuant to 42 U.S.C. §§

7502(c)(9) and 7511a(b)(1)(A)(i). In

addition, if the Counties violate the

ozone standards prior to

redesignation, they would be

"bumped-up" from moderate

nonattainment status to serious

nonattainment status pursuant to 42

U.S.C. § 7511(b)(2), and would then

have to satisfy the more stringent

requirements imposed on serious ozone

nonattainment areas. See 42 U.S.C. §

7511a(c)(2)(b). Under these

circumstances, [**21] the

Petitioners' argument that the

Environmental Protection Agency is

somehow circumventing the formal

redesignation process is unavailing.

The Environmental Protection Agency

has convincingly demonstrated it is

not circumventing the redesignation

process and the State of Utah is not

without incentive to complete this

process.

3. Statutory Purpose.

Finally, Petitioners argue the

Environmental Protection Agency's

Clean Air Act interpretation is

unreasonable as it fails to satisfy

the Clean Air Act's purpose to protect

public health. In this context, the

Petitioners emphasize their concern

that the Environmental Protection

Agency is failing to ensure the

Counties will continue to attain the

applicable ozone standards in the

future by creating a "limbo" between

attainment and nonattainment status

"that deprives citizens of the

contingent protections against future

declines in air quality."

We remain unpersuaded by this

argument. As discussed above, the

provisions at issue are directly

linked to reasonable further progress

toward attainment of the ozone

National Ambient Air Quality

Standards, not beyond. To date, the

Utah State Implementation Plan's

existing air quality control [**22]

measures and other applicable federal

requirements (e.g., the motor vehicle

control program) have resulted in

enforceable emission reductions within

the Counties -- reductions which in

turn have resulted in attainment of

the ozone standard for over five

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44 ERC (BNA) 1033; 27 ELR 20458
years. Should those existing control

measures and requirements prove

inadequate to prevent future

violations, the Environmental

Protection Agency will require the

Counties to implement additional

control measures within a reasonable

time. Recall that the Environmental

Protection Agency's determination to

exempt the Counties from limited ozone

nonattainment area requirements is

really no more than a suspension of

those requirements for so long as the

area continues to attain the standard

or until the area is formally

redesignated to attainment status.

The Environmental Protection Agency

summarized the flaw in Petitioners'

argument best:

The [Counties have]

attained the primary ozone

standard, a standard

designed to protect public

health with an adequate

margin of safety (see

section 109(b)(1)). [The

Environmental Protection

Agency 's] action does not

relax any of the

requirements that have led

to the attainment of the

[**23] standard. Rather,

its action has the effect of

suspending requirements, for

additional pollution

reductions, above and beyond

[*1559] those that have

resulted in the attainment

of the health- based

standard.

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

circumstances, Petitioners'

presumption that the Counties will

violate ozone standards in the future

and that "Utahns will be required to

breathe for a protracted period

unhealthy air while Utah develops

controls that should have been in

place earlier" seems disingenuous.

CONCLUSION

We conclude the Environmental

Protection Agency has reasonably

interpreted and applied the Clean Air

Act to preserve the Act's objective of

achieving the health-based ozone

standard while at the same time

avoiding the imposition of costly

emission control requirements that are

unnecessary to meet that objective.

Accordingly, we uphold the

Environmental Protection Agency's

"Determination of Attainment of Ozone

Standard for Salt Lake and Davis

Counties, Utah, and Determination

Regarding Applicability of Certain

Reasonable Further Progress and

Attainment Demonstration Requirements"

and deny the Petition for Review.

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