FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

BILL MACCLARENCE, 

Petitioner,

v. No. 07-72756

UNITED STATES ENVIRONMENTAL 

OPINION

PROTECTION AGENCY; STEPHEN L.

JOHNSON,

Respondents. 

On Petition for Review of an Order of the

Environmental Protection Agency

Argued and Submitted

February 5, 2009—Portland, Oregon

Filed March 4, 2010

Before: Richard A. Paez and Johnnie B. Rawlinson,

Circuit Judges, and Raner C. Collins,* District Judge.

Opinion by Judge Paez

*The Honorable Raner C. Collins, United States District Judge for the

District of Arizona, sitting by designation. 

3409
COUNSEL

Robert Ukeiley, Law Office of Robert Ukeiley, Berea, Kentucky, William M. Eddie, Field Jerger, LLP, Portland, Oregon, for the petitioner.

MACCLARENCE v. USEPA 3411
Ronald J. Tenpas, Assistant Attorney General, John C. Cruden, Deputy Assistant Attorney General, Andrew J. Doyle,

Attorney, Environment & Natural Resources Division,

Department of Justice, Washington, DC, Kristi M. Smith,

Office of General Counsel, Environmental Protection Agency,

Washington, DC, Julie A. Vergeront, Office of Regional

Counsel, Region 10, Environmental Protection Agency, Seattle, Washington, for respondents United States Environmental

Protection Agency, and Stephen L. Johnson, Administrator,

United States Environmental Protection Agency.

OPINION

PAEZ, Circuit Judge:

Bill MacClarence petitions this court for review of an order

by the Environmental Protection Agency Administrator (the

“Administrator”) denying his request that the Environmental

Protection Agency (“EPA”) object to the issuance of a Clean

Air Act Title V permit for pollutant-emitting activities at

Gathering Center #1 (“GC 1”), an oil and gas processing

facility in Prudhoe Bay. The Alaska Department of Environmental Conservation’s (“ADEC”) granted the permit to

British Petroleum Exploration (Alaska), Inc.’s (“BP”), which

owns GC 1. We have jurisdiction to review MacClarence’s

petition for review pursuant to 42 U.S.C. §§ 7661d(b)(2) and

7607(b)(1). Because the Administrator’s denial of MacClarence’s request was not arbitrary or capricious, we deny the

petition.

I. Background

A. The Prudhoe Bay Unit

The Prudhoe Bay Unit (PBU) is located on the North Slope

of Alaska and extends over 300 square miles. It consists of a

3412 MACCLARENCE v. USEPA
series of oil and gas facilities, including thirty-eight drill sites

or “well pads” and six production centers, as well as support

facilities for PBU workers. GC 1 is one of the six production

facilities at the PBU. BP owns approximately 26.35% to

50.7% of the facilities at the PBU, including GC 1, and operates all of the PBU facilities pursuant to an agreement with

the other owners. Although the PBU oil field is composed of

a number of different oil leases, those leases have been unitized or pooled by the State of Alaska so that the field may be

exploited efficiently. 

The PBU facilities are engaged in a continuum of oil and

gas refining activities, from drilling to sale.1 Well pads in the

PBU pump “three-phase” crude oil from the tundra beneath

the PBU facilities. This oil is transferred to the production

centers, including GC 1, where it is separated into processed

crude oil, water, and hydrocarbon gases. The processed crude

oil is pumped from the production centers to the Trans-Alaska

Pipeline for sale, while other facilities at the PBU dispose of

or re-inject the by-products of the production process. 

B. Title V of the Clean Air Act

MacClarence petitioned the Administrator to object to a

final permit issued for GC 1 pursuant to Title V of the Clean

Air Act (the “CAA”), 42 U.S.C. §§ 7401 et seq. The CAA

was enacted in 1963 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.”

§ 7401(b)(1). Built on a scheme of “cooperative federalism,”

1The various functions and the interconnectedness of the PBU facilities

are too complex to describe fully here. The brief description of the facilities and activities of the PBU is intended only to provide background and

context for our opinion. For a more extensive discussion of the PBU oil

and gas production and processing facilities, see generally Alaska Department of Environmental Conservation Air Quality Operating/Construction

Permit, Permit No. 182TVP01 (Feb. 17, 2004) (“Revision 1”),

http://www.dec.state.ak.us/air/ap/docs/182tvp01r1.pdf. 

MACCLARENCE v. USEPA 3413
the CAA places the onus of enforcement on state and local

governments, but “provides for ‘Federal financial assistance

and leadership . . . for the development of cooperative, Federal, State, regional, and local programs to prevent and control

air pollution.’ ” N.Y. Pub. Interest Research Group v. Whitman (NYPIRG I), 321 F.3d 316, 320 (2d Cir. 2003) (quoting

42 U.S.C. § 7401(a)(3), (4); Connecticut v. EPA, 696 F.2d

147, 151 (2d Cir. 1982)). 

The Clean Air Act Amendments of 1990, Pub. L. No. 101-

549, §§ 501-07, 104 Stat. 2399, 2635-48 (1990), enacted Title

V of the CAA, which requires facilities that are “major

sources” of pollutants to obtain operating permits from staterun permitting programs that have been approved by EPA.

See 42 U.S.C. § 7661a. ADEC is Alaska’s EPA-approved

Title V permitting authority. 66 Fed. Reg. 63,184, 63,184

(Dec. 5, 2001). Each permit must “include enforceable emission limitations and standards, a schedule of compliance, a

requirement that the permittee submit to the permitting

authority . . . the results of any required monitoring, and such

other conditions as are necessary to assure compliance with

applicable requirements of [the CAA].” 42 U.S.C. § 7661c(a).

Title V, however, does not itself impose additional substantive clean air standards. 40 C.F.R. § 70.1(b). 

Title V further provides for both EPA and public review of

permits. 42 U.S.C. § 7661d; 40 C.F.R. § 70.8(d). After a permitting authority receives an application for a Title V permit,

it is required to submit a copy of the permit application and

the “permit proposed to be issued and issued as a final permit” to EPA, 42 U.S.C. § 7661d(a)(1)(B), and to provide the

public with notice and opportunity to comment on the draft

permit, 40 C.F.R. § 70.7(h). If the permit “contains provisions

that are determined by the Administrator as not in compliance

with the applicable requirements of [the CAA],” the Administrator, within forty-five days of receiving the proposed permit,

“shall . . . object to its issuance.” 42 U.S.C. § 7661d(b)(1). 

3414 MACCLARENCE v. USEPA
If the EPA does not object to the permit within this time

frame, however, “any person” may petition the Administrator

to make an objection within sixty days after the expiration of

EPA’s period of review. Id. § 7661d(b)(2). The petition must

be based on objections that were made “with reasonable specificity during the public comment period” on the draft permit.

Id. “[I]f the petitioner demonstrates to the Administrator that

the permit is not in compliance with the requirements of [the

CAA],” Title V provides that the Administrator “shall issue

an objection . . . .” Id. If EPA does object to a permit, “the

permitting authority may not issue the permit unless it is

revised” to meet the objection. Id. §§ 7661d(b)(3), (c).

C. Aggregation 

Here, MacClarence petitioned for an objection pursuant to

§ 7661d(b)(2), arguing that the permit did not comply with

the CAA because ADEC, in the final draft permit for GC 1,

had not properly “aggregated” stationary sources of air pollution in the PBU. Title V and other CAA provisions, such as

the “prevention of significant deterioration” (PSD) requirements, 42 U.S.C. §§ 7470-79, apply to certain “stationary

sources” of air pollution. In some cases, several discrete stationary sources may be required to be aggregated into one single stationary source for purposes of compliance with these

provisions.2 For example, as noted above, Title V requires

every “major source” of air pollution to obtain a permit. 42

U.S.C. § 7661a(a). The Title V regulations, in turn, define

“major source” as a “stationary source (or any group of stationary sources that are located on one or more contiguous or

adjacent properties, and are under common control of the

same person (or persons under common control)) belonging

to a single major industrial grouping . . . .” 40 C.F.R. § 70.2

(emphasis added). 

2

In making “stationary source” determinations, ADEC looks to the definitions of “stationary source” outlined in the federal PSD and Title V regulations. See Alaska Stat. § 46.14.990(26) (citing 40 C.F.R. 51.116(b)

(PSD requirements) and 40 C.F.R. § 70.2 (Title V requirements)). 

MACCLARENCE v. USEPA 3415
Similarly, the PSD requirements, which “ensure that the air

quality in attainment areas or areas that are already ‘clean’

will not degrade,” Alaska Dep’t of Envtl. Conservation v.

EPA, 540 U.S. 461, 470 (2004) (quoting R. Belden, Clean Air

Act 43 (2001)), may require the aggregation of stationary

sources. Under the PSD requirements, “major stationary

sources” may not be constructed or modified in a significant

way “unless a permit prescribing emission limitations has

been issued for the facility.” Id. at 472 (citing 42 U.S.C.

§§ 7475(a)(1), 7479(2)(C)). A “major stationary source,” for

PSD purposes, is a “stationary source” that emits or has the

potential to emit a certain quantity of pollutants. 42 U.S.C.

§§ 7479(1), 7602(j). In turn, a “stationary source” is “any

building, structure, facility, or installation which emits or may

emit a regulated . . . pollutant.” 40 C.F.R. § 51.166(b)(5). The

regulations define “[b]uilding, structure, facility, or installation” as “all of the pollutant-emitting activities which belong

to the same industrial grouping, are located on one or more

contiguous or adjacent properties, and are under the control of

the same person . . . .” Id. § 51.166(b)(6).

As the record for this case reveals, the aggregation of

pollutant-emitting activities for the purposes of designating a

“major source” or “major stationary source” is not a clear-cut

task. Under the governing regulations, however, determinations regarding “major sources” for purposes of issuing Title

V permits and “major stationary sources” for purposes of

meeting PSD requirements involve the same analysis; the

aggregated sources must belong to the same industrial grouping, be located on continuous or adjacent properties, and be

under common control. See 40 C.F.R. §§ 51.166(b)(6), 70.2.

Over the years, EPA has provided some guidance on the

aggregation of pollutant-emitting activities and the designation of “major sources” and “major stationary sources.” When

EPA promulgated regulations for the PSD program in 1980,

it noted that a “stationary source” should reflect “a common

sense notion of ‘plant.’ ” 45 Fed. Reg. 52,676, 52,694-95

(Aug. 7, 1980). EPA has also issued memoranda in order to

3416 MACCLARENCE v. USEPA
provide regional EPA administrators and state permitting

authorities with guidance in applying aggregation principles

to designate stationary sources. See, e.g., Memorandum from

Acting Assistant Administrator, EPA, to Regional EPA

Administrators, Source Determinations for Oil and Gas Industries (Jan. 12, 2007), EPA docket EPA-HQ-OAR-2007-0629-

0001.pdf, http://www.regulations.gov/search/Regs/content

Streamer?objectId=0900006480269a33&disposition=

attachment&contentType=pdf (withdrawn by Gina McCarthy,

Assistant Administrator, EPA, to Regional EPA Administrators, Withdrawal of Source Determinations for Oil and Gas

Industries (September 22, 2009), EPA docket EPA-HQ-OAR2007-0629-0003.pdf, http://www.regulations.gov/search/

Regs/contentStreamer?objectId=0900006480a3309c&

disposition=attachment&contentType=pdf); Letter from

Director, Air Program, EPA, to Utah Division of Air Quality,

Response to Request for Guidance in Defining Adjacent with

Respect to Source Aggregation (May 21, 1998), http://

www.epa.gov/region07/programs/artd/air/title5/t5memos/utiltrl.pdf. 

D. The Permitting Process for GC 1

With this statutory and regulatory framework in mind, we

turn to the permitting process for GC 1. In 1997, ARCO, then

the owner of GC 1, applied to ADEC for a Title V permit.

ADEC prepared a draft permit and submitted it for public

comment on February 22, 2002. This initial draft permit did

not aggregate GC 1 with any other potential pollutantemitting sources in the PBU. The following month, MacClarence submitted comments on the draft permit, arguing that

“[a]ll BP units within the Prudhoe Bay Facility” should be

aggregated in such a way that the Title V permit applied to the

PBU as a whole, rather than just GC 1. In April 2002, the

Pacific Northwest Regional Office of the EPA (EPA Region

10) also submitted “preliminary comments” to ADEC regarding the GC 1 draft permit. Echoing MacClarence’s concerns,

EPA stated,

MACCLARENCE v. USEPA 3417
[A]bsent a contrary rationale, it is EPA’s position

that the BP GC 1 facility is part of the larger source

consisting of all BP units within the Prudhoe Bay

. . . . [T]he BP facilities are interdependent, located

on adjacent properties, and are owned or operated by

the same person under common control.

ADEC revised the draft permit and submitted a new draft

permit for public comment in March 2003. ADEC again proposed to extend coverage of the operations permitted under

Title V only to GC 1. Significantly, however, ADEC also proposed a condition that would require BP to aggregate all of

the pollutant-emitting sources within the PBU “for the purpose of determining applicability with the modification

requirements of [Alaska’s approved PSD program].” The

revised permit’s Statement of Basis explained in detail why

the PBU in its entirety should be considered a “major stationary source,” referencing CAA provisions and EPA guidance

on aggregation, and used diagrams to depict the interconnectedness of the various pollutant-emitting sources within the

PBU. ADEC concluded by stating that “[t]he individual facilities at the Prudhoe Bay Unit act as a single integrated production facility for the purpose of delivering crude oil to the

Trans Alaska Pipeline System . . . .”

In response to the March 2003 draft permit, BP submitted

comments requesting that aggregation conditions be completely eliminated from the permit. Shortly thereafter, in July

2003, ADEC reversed course and issued a proposed permit

that, like the initial draft permit, did not aggregate GC 1 with

any other PBU facilities. In August 2003, EPA responded to

this proposed permit by requesting that ADEC 

postpone issuing draft, proposed and final Title V

permits for those North Slope operations which raise

aggregation issues until the agencies have come to a

mutual understanding on an over-arching approach

to the issue or until either agency has advised the

3418 MACCLARENCE v. USEPA
other that it has decided to forego further attempts to

reach a mutual understanding.

BP was included in ADEC’s and EPA’s ensuing conversations regarding aggregation of pollutant-emitting sources in

the North Slope.

In October 2003, after these discussions concluded, ADEC

issued a new draft permit that employed a “hub-and-spoke”

aggregation model. Under this model, ADEC aggregated GC

1 with the well pads that supply it with three-phase crude oil

for purposes of Title V and for the PSD requirements. The

draft permit, however, did not aggregate GC 1 with the rest

of the PBU facilities as had been requested by MacClarence

in his March 2002 comments. In a Statement of Basis for “Revision 1,” discussed infra, ADEC explained that it rejected

aggregation of the entire PBU facilities because, among other

things (1) the PBU covers roughly 300 square miles and

therefore aggregation “stretches the concept of proximity”

that underlies aggregation determinations; (2) “[t]he complexity of administering . . . and operating . . . a stationary source

as large as the PBU without clear corresponding environmental benefit argues against” aggregation of the entire PBU; and

(3) “there [was] no precedent for defining such a large stationary source . . . .”

When the EPA, in February 2004, did not object to this permit under 42 U.S.C. § 7661d(b), MacClarence petitioned the

EPA Administrator to object to the permit. This petition, like

MacClarence’s March 2002 comments, argued that the permit

violated the CAA because it did not aggregate all of the

pollutant-emitting sources in the PBU into one stationary

source. MacClarence attached to the petition his 2002 comments, ADEC’s March 2003 Statement of Basis, and EPA’s

August 2003 letter to ADEC requesting a postponement of

ADEC’s issuance of any permits involving aggregation issues

in the North Slope. 

MACCLARENCE v. USEPA 3419
After MacClarence submitted his petition, EPA notified

him that ADEC had issued a revision to the final permit, “Revision 1.” Revision 1, among other things, “added to the permit itself the definition of the title V source, which was

previously only in the statement of basis” and “made minor

changes to the aggregation discussion in the statement of

basis.” Pursuant to EPA’s request, MacClarence refiled his

petition for an objection to the permit on April 14, 2004.3 He

resubmitted his original petition with a cover letter stating that

his petition remained unchanged as Revision 1 did not address

his concerns and did not explain ADEC’s decision to reverse

course from its March 2003 draft permit that required aggregation. 

The Administrator denied MacClarence’s request for an

objection on April 20, 2007.4 MacClarence timely petitioned

this court for review of EPA’s denial of his request for an

objection.

II. Discussion

In considering MacClarence’s petition for review, we do

not decide whether MacClarence’s substantive argument—

that the CAA requires all pollutant-emitting sources in the

PBU to be aggregated for purposes of Title V and other substantive CAA provisions—is correct. Rather, we consider

3Revision 1 was the version of the final permit to which MacClarence

responded in his petition to the EPA Administrator. Alaska Department of

Environmental Conservation Air Quality Operating/Construction Permit,

Permit No. 182TVP01 (Feb. 17, 2004) (“Revision 1”), http://

www.dec.state.ak.us/air/ap/docs/182tvp01r1.pdf. ADEC, however, revised

the permit yet again in August 2005, “Revision 2”. Because MacClarence

petitioned for an objection prior to Revision 2, any future references to

“the final permit,” or its Statement of Basis, are to the final permit as modified by Revision 1. 

4MacClarence does not challenge EPA’s unexplained failure to respond

to his petition within the sixty-day period required by statute. See 42

U.S.C. § 7661d(b)(2). 

3420 MACCLARENCE v. USEPA
only whether the EPA Administrator erred in determining that

MacClarence failed to demonstrate, pursuant to 42 U.S.C.

§ 7661d(b)(2), that the final Title V permit for GC 1 did not

comply with the CAA.

In denying MacClarence’s request, the Administrator reasoned that MacClarence (1) “failed to provide adequate information to support his claim that the entire PBU should be

aggregated,” and (2) “failed to demonstrate that the failure to

aggregate all facilities within the PBU has led to a deficiency

in the content of the permit.” Because we conclude that we

may properly uphold the Administrator’s denial of MacClarence’s petition on the basis of the first ground, we need not

reach the second.

A. Standard of Review

Our review of the “the reasonableness of [the Administrator’s] decision-making processes” in denying MacClarence’s

petition is governed by the Administrative Procedure Act

(APA). CHW W. Bay v. Thompson, 246 F.3d 1218, 1226 (9th

Cir. 2001) (citing Transitional Learning Comm. at Galveston,

Inc. v. U.S. Office of Pers. Mgmt., 220 F.3d 427, 430 n.2 (5th

Cir. 2000)); see Sierra Club v. EPA, 346 F.3d 955, 961 (9th

Cir. 2003). Under the APA, we may only set aside an agency

action if it is “arbitrary, capricious, an abuse of discretion, or

otherwise not in accordance with law.” 5 U.S.C. § 706(2)(A).

We review the Administrator’s interpretation of 42 U.S.C.

§ 7661d(b)(2), as expressed in its order denying MacClarence’s petition, under the principles set forth in Chevron USA

Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837 (1984).

De Jesus Ramirez-Zavala v. Ashcroft, 336 F.3d 872, 875 (9th

Cir. 2003). 

B. MacClarence’s Petition

[1] This petition for review requires us, for the first time,

to consider a petitioner’s burden under 42 U.S.C.

MACCLARENCE v. USEPA 3421
§ 7661d(b)(2) to “demonstrate[ ] to the Administrator that [a

Title V] permit is not in compliance with the requirements of

[the CAA].” § 7661d(b)(2). Specifically, we must determine

whether the Administrator’s interpretation of the word “demonstrate,” as expressed in his order denying MacClarence’s

petition, was a permissible construction of § 7661d(b)(2), and

whether the Administrator’s application of § 7661d(b)(2) to

the petition was arbitrary and capricious.

Chevron provides the guiding principles for according deference to an agency’s interpretation of a statute it administers.

See 467 U.S. at 842. Here, it is undisputed that EPA is tasked

with the administration of the CAA. Therefore, we first

decide “whether Congress has directly spoken to the precise

question at issue. If the intent of Congress is clear . . . the

court, as well as the agency, must give effect to the unambiguously expressed intent of Congress.” Id. at 842-43. If,

however, the statute is ambiguous, “Chevron deference

applies, ‘when it appears that Congress delegated authority to

the agency generally to make rules carrying the force of law,

and that the agency interpretation claiming deference was promulgated in the exercise of that authority.’ ” Nw. Ecosystem

Alliance v. United States Fish & Wildlife Serv., 475 F.3d

1136, 1141 (9th Cir. 2007) (quoting United States v. Mead

Corp., 533 U.S. 218, 226-27 (2001)). Under Chevron deference, the agency’s interpretation is valid so long as it “is

based on a permissible construction of the statute.” Chevron,

467 U.S. at 843. When Chevron deference does not apply, we

are guided by the principles of Skidmore v. Swift, 323 U.S.

134 (1944); “[t]he ‘fair measure of deference’ may then range

from ‘great respect’ to ‘near indifference,’ depending on ‘the

degree of the agency’s care, its consistency, formality, and

relative expertness, and . . . the persuasiveness of the agency’s

position.’ ” Nw. Ecosystems Alliance, 475 F.3d at 1141 (quoting Mead, 533 U.S. at 228). 

[2] Several of our sister circuits have concluded that the

word “demonstrate” in § 7661d(b)(2) is an ambiguous term.

3422 MACCLARENCE v. USEPA
See Sierra Club v. EPA, 557 F.3d 401, 406 (6th Cir. 2009);

Sierra Club v. Johnson (Sierra Club II), 541 F.3d 1257, 1266

(11th Cir. 2008); Citizens Against Ruining the Environment v.

EPA, 535 F.3d 670, 677-78 (7th Cir. 2008); N.Y. Pub. Interest

Research Group v. Johnson (“NYPIRG II”), 427 F.3d 172,

179 (2d Cir. 2005). We agree. The word “demonstrate” may

mean variously, to “point out;” “to manifest clearly, certainly,

or unmistakably;” or “to make evident or reveal as true by

reasoning processes, concrete facts and evidence, experimentation, operation, or repeated examples.” Webster’s Third New

International Dictionary 600 (1993). As the Eleventh Circuit

pointed out in Sierra Club II, the plain meaning of the term

“demonstrate” in § 7661d(b)(2) “does not resolve important

questions that are part and parcel of the Administrator’s duty

to evaluate the sufficiency of a petition, for example, the type

of evidence a petitioner may present and the burden of proof

guiding the Administrator’s evaluation of when a sufficient

demonstration has occurred.” 541 F.3d at 1266. The ambiguity of this provision in the statute suggests that Congress has

left the meaning of “demonstrate” open for EPA to supply a

reasonable interpretation under Chevron. See NYPIRG I, 321

F.3d at 333 n.11 (“There clearly is some room for the exercise

of agency expertise in [§ 7661d(b)(2)] . . . .”).

[3] Whether we defer to the Administrator’s interpretation

of “demonstrate” under Chevron’s reasonableness standard or

Skidmore’s persuasiveness standard, nothing in the Administrator’s order denying MacClarence’s petition qualifies as an

impermissible interpretation of his burden under

§ 7661d(b)(2). The Administrator denied MacClarence’s petition, in part, because MacClarence “failed to provide adequate

information to support his claim that the entire PBU should

be aggregated . . . .” Specifically, he noted that MacClarence

“ma[d]e only generalized statements that all facilities in the

PBU must be aggregated and d[id] not provide adequate references, legal analysis, or evidence in support of these general

assertions.” 

MACCLARENCE v. USEPA 3423
[4] This construction of MacClarence’s burden under

§ 7661d(b)(2) is both reasonable and persuasive, and is consistent with our common understanding of the word “demonstrate.” The Administrator’s expectation that MacClarence

provide “references, legal analysis, or evidence” comports

with Webster’s definition of “demonstrate”—“to make evident or reveal as true by reasoning processes, concrete facts

and evidence, experimentation, operation, or repeated examples.” New International Dictionary, supra, at 600. Further,

the Administrator’s interpretation is consistent with

§ 7661d(b)(2) as a whole, which mandates that the Administrator “shall issue an objection” to the permit with which the

permitting authority must comply, should a petitioner satisfy

his burden under the statute. See Sierra Club v. Johnson

(Sierra Club I), 436 F.3d 1269, 1280 (11th Cir. 2006) (quoting 42 U.S.C. § 7661d(b)(2)) (holding that the Administrator’s duty to object to a permit once a petitioner demonstrates

that it does not comply with the CAA is mandatory, not discretionary); NYPIRG I, 321 F.3d at 333 (same). Because a

petition that properly demonstrates that a permit is not in

compliance with the CAA requires the Administrator and

state permitting authority to take certain action, the Administrator’s requirement that MacClarence support his allegations

with legal reasoning, evidence, and references is reasonable

and persuasive.

[5] Thus, the Administrator’s conclusion that MacClarence

“failed to provide adequate information to support his claim

that the entire PBU should be aggregated” was not arbitrary

or capricious. The success of MacClarence’s petition turned

on his argument that aggregation of the entire PBU pollutantemitting sources was necessary for the permit to comply with

the CAA and that the final aggregation decision — the huband-spoke model — did not comply with the CAA. Rather

than offering a reasoned analysis of why the entire PBU

should be aggregated or of the deficiencies in the hub-andspoke model, MacClarence merely stated in his petition:

3424 MACCLARENCE v. USEPA
As reinforced by ADEC’s original analysis, shown at

Attachment 2, the March 7, 2003 version of this permit complies with all federal requirements for source

aggregation. ADEC’s rationale for requiring aggregation is based on EPA directives. By contrast, the

permit decisions referenced in the final permit are at

variance with your agency’s own guidance. 

Although MacClarence’s March 2002 comments and

ADEC’s March 2003 Statement of Basis, which were

attached to the petition, provided an explanation of why

aggregation of the entire PBU pollutant-emitting sources was

necessary to comply with the CAA, he merely alleged that the

final aggregation decision, the hub-and-spoke model, was “at

variance with [EPA’s] own guidance.”

5

 Neither MacClarence’s petition nor the documents attached to the petition

address EPA guidance memoranda or directives with which

the hub-and-spoke model conflicted or explained how the

hub-and-spoke model contravened such guidance or the CAA.6

At the end of his petition, MacClarence did challenge

ADEC’s reliance on permit decisions by other states to support its final aggregation decision. His brief discussion of

these references, however, noted only that the facilities at

issue in those other permit decisions were dissimilar to the

PBU, and at best, showed that those permit decisions did not

support ADEC’s decision to adopt a hub-and-spoke aggregation model. MacClarence made no attempt to show that the

5MacClarence argues that the Administrator did not consider the documents he attached to his petition in evaluating his arguments and thus prohibited him from “incorporating by reference” arguments and other

information. In light of the Administrator’s statement that he considered

“available information, including . . . information provided by the Petitioner in his petition,” we are not persuaded by this argument. 

6MacClarence’s attempt to challenge the merits of the hub-and-spoke

aggregation model before this court are unavailing. Our review is limited

to the record before the Administrator. Asarco, Inc. v. EPA, 616 F.2d

1153, 1158-60 (9th Cir. 1980). 

MACCLARENCE v. USEPA 3425
hub-and-spoke model was at “variance” with the CAA or any

other EPA guidance. 

MacClarence also argues that the Administrator improperly

faulted him for failing to challenge the reasonableness of

ADEC’s Statement of Basis for the final permit. In denying

MacClarence’s petition, the Administrator stated that MacClarence “does not provide any argument as to why ADEC’s

decision not to aggregate [the entire PBU], which is described

in great detail in the Statement of Basis for the final Revision

1 permit, is unreasonable.” MacClarence argues that this

statement reflects an improper interpretation of his burden

under § 7661d(b)(2) by requiring him to show the “unreasonableness” of ADEC’s rationale for employing the hub-andspoke model in the final permit, rather than the final permit’s

noncompliance with the CAA. 

[6] We reject this argument. The Administrator’s order

denying MacClarence’s petition properly sets forth MacClarence’s burden under § 7661d(b)(2), stating that “[t]o justify

exercise of an objection by EPA to a title V permit pursuant

to [§ 7661d(b)(2)], a petitioner must demonstrate that the permit is not in compliance with the requirements of the CAA”

and later concluding that “the general allegations of the Petitioner in the April 2004 Petition . . . fail to demonstrate a basis

for Petitioner’s claim that Revision 1 to the GC 1 Permit violates the CAA . . . .” In light of the Administrator’s proper

recitation of MacClarence’s burden, we view the Administrator’s statement that MacClarence should have shown that

ADEC’s explanation for its aggregation decision was unreasonable, as requiring MacClarence to challenge the basis or

reasons for ADEC’s final decision and to demonstrate that the

permit did not comply with the CAA. We see nothing wrong

with the Administrator’s expectation that MacClarence

needed to challenge this reasoning. MacClarence’s petition

relied on ADEC’s March 2003 Statement of Basis. ADEC,

however, rejected the aggregation decisions reflected in that

Statement of Basis and explained why it did so in the new

3426 MACCLARENCE v. USEPA
Statement of Basis for the final permit. The Administrator

reasonably expected MacClarence to challenge that explanation.

[7] Further, the Administrator’s conclusion that MacClarence did not challenge ADEC’s reasoning for the final permit

was not arbitrary or capricious. ADEC’s final Statement of

Basis explained how the hub-and-spoke aggregation model

complied with the CAA, why complete aggregation of the

facilities in the PBU was impractical and unprecedented, and

why the hub-and-spoke model was a better alternative than

complete aggregation. Although MacClarence asserted in his

petition that the out-of-state permit decisions cited by ADEC

did not support its final aggregation decision, his petition

failed to demonstrate that the hub-and-spoke aggregation

model did not comply with the CAA. More importantly, MacClarence failed to challenge ADEC’s reasoning that “[t]he

complexity of administering . . . and operating . . . a stationary

source as large as the PBU without clear corresponding environmental benefit argues against [the aggregation of the entire

PBU].”

Therefore, we conclude that the Administrator’s determination that MacClarence did not demonstrate that the entire

PBU should be aggregated did not constitute an impermissible

interpretation of MacClarence’s burden under 42 U.S.C.

§ 7661d(b)(2), to “demonstrate” that ADEC’s final Title V

permit for BP’s GC 1 did not comply with the CAA, nor was

it arbitrary or capricious.

PETITION DENIED.

MACCLARENCE v. USEPA 3427