1 RECOMMENDED FOR FULL-TEXT PUBLICATION Pursuant to Six

th Circuit Rul e 206

ELECTRO NIC CIT

ATION: 2004 FED App . 0166P (6th C ir.) File Name: 04a01 66p.06



### UNITED STATES COURT OF APPEALS

FOR THE SIXT H CIR CUIT

_________________

R OBER T G REENBAUM ,

Petitione r,

S IER RA C LUB , Interve

nor,

v.

U NITED S TATES E NVIR ONMENTAL P ROTECTI ON A GENCY , and M ICHAEL O. L EAVI TT , * Administrator, United States Environmental Protection Ag en cy, Responde nts. X - - - -
> , - - - - - - - - - - - - - N No. 01-3132

* Pur suant to Fed . R. Ap p. P . 43(c ), M ichae l O. Le avitt is automatically

substit uted for Christi ne Tod d W hitman.

On Petition for Review of an Order of the En vi ro nm en ta l P ro te ct io n A ge nc y. No. 40 CFR Parts 52 & 81.
Argued: May

6, 2003 2 Greenbaum v. Environmental Protecti on Agenc y, et al. No. 01-3132

Decided and Filed: June 3, 2004
Before: BOGGS, Chief Judge; and GUY a nd DAUGHTR

EY, Circu

it Judges.

_________________ COUNSEL

ARGUED: Ke ri N. Powell, EARTHJUSTICE LEGAL DEFENSE FUND, Washington, D.C., fo r Pet itio ner/Intervenor. Christopher B. Peak, UNITE D STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Respondent. ON BRI EF: J. To dd Hutchi ns, David S. Baron, EARTH JU STICE LEG AL DEFENSE FUN

D, Washington, D. C. , for Petitioner. Christopher B. Peak, UNITED STA TES DEPAR TMENT OF JUSTICE
, Washington, D.C., for Respondent.

_________________ OPINION

_________________ BOGGS, Chief Judg e. The En vironmen tal P rotection Agency (“EPA”)

redesig nated Cuy

ahoga County , Ohio (herei n afte r “Cleveland”) from nonattainment to attainment for particul ate matte

r, speci fically

for par ticles known as PM 10 (parti cle s smaller than 10 microns in diameter), on December

11, 2000. This was don e pu rsuant to § 107(d)(3)(E ) o f the Clea n Air Act , 42 U.S.C. § 7407(d)(3)(E). Robert Greenba u m, a Cleveland resident

an d Si erra Club member, and intervenor, Sierra Club (“Petitioners”), appeal the agency ac tion. Petitioners argue that the EPA illegally wa

ived statutory require

ments when

it redesignated the Cleveland are a to attainment.No. 01-3132 Greenbaum v. Environmental Protecti on Agenc y, et al. 3

I. Statutory Framework

The Clean Air Act (“CAA”) establishes a com pre hensive program for controlling and improving the natio n’s air

quality throu gh both state and federal regulation. The a dministrator formulates National Ambient Air Quality Standar ds ( “NAAQS”) that specify the ma ximum permissibl e concentrations of certain air pollutants. The EPA i nitial ly d esignates geogra

phic areas as “attainment” o r “nonatta inment” based on whether the area s meet the po llution limits for a

particu lar pollut ant, purs uant t o th e NAAQS for that particular po llutant. PM 10 nonattainment

areas are further

classified as moderate or serious, depending

on the severity

and persistence of the problem. The CAA requires states to s

ubmit a state implementation plan (“SIP”) to the EPA, containing specific pollution control measur e s necessary for the attainment, maintenance , an d enforcement of the NAAQS. The SIPs must be drafted to meet requirement s as o utlined in C AA § 110( a)(2), 42 U.S.C. § 741 0(a )(2 ). P art D of

Tit le I o f th e CA A pr ovi des th at a SIP for PM 10 nonattai

nment ar eas (suc h as C levelan d before the redesignation) must include a New Source Review (“NSR”). NSR is a permit program for major new and modified sources of pollutant. Basically, the pr ogram requires new or modified

sources of polluta

nt to obta in a permit that re quires c ertain pollution controls and other measures to ensure that

the new

or modified source will not exacerbate the pollution problem inthe area. SIPs must also include programs for enforceme nt of the NS R pr ovisions and other measures included in the plan.

The EPA reviews an d e ither approves or disapproves the SIP submissions. If the EPA approves the SIP, e ither who lly

or partiall y, t he approved prov

isions bec ome enforceabl e by the federa l gover nment. If th e EPA disa

pproves t he SIP, then the state is subject to sanctions, as well as federally imposed clean air measures. 4 Greenbaum v. Environmental Protecti on Agenc y, et al. No. 01-3132

1 The plan must “provide for the imple men tation o f specific measures to be unde rtaken if

the ar ea fai ls t o make reasonabl e furt her progr ess, or to att ain the nati onal prima ry a mbient air qu alit y standard by the attainment date appli cable under this part. ” 42 U.S.C. § 75 02(c)(9). States may ask the EPA to rede signate geogra ph ical areas fr om nonattainment to attainment for a particular pollunt an t
once a NAAQS has been met. 42 U .S.C . § 7407(d)(3)(E). The EPA must approve or d en y su ch rede signati on within 18 months. 42 U .S. C. § 7407(d)(3)(D). The EPA may not redesig nate an area to attainment unl es s: (i) the EPA has determined

that the area ha s attaine d the appl icable N AAQS; (ii) th e E PA ha s f

ul ly approv ed the applicable SIP under § 7410(k); (iii) the EPA has determined that the improvement inair quality is due to permanent a nd enforceable reductions inemissions resulting from implementation of the SIP and other required reducti ons; (iv) t

he EPA has fully approve d a maintenance plan under CAA § 175A that has been adopted by the St ate, whi ch demons trates that the ar ea will ma

intain th e NAA QS for at least 10 ye ars after redesignation; and (v) the EPA has determined that the State containing the area seekingredesig

nation ha s met allapplica

ble SIP require

ments for that area under § 110 with respect to SI Ps generally , and under Part D with respect to SIP provisions for nonattainment areas. 42 U.S.C. § 7407(d)(3)(E).

II. The Redes ignation of Cl eveland

Cl eveland was designated as a moderate nonattainment are a in1990. In 1991, Ohio submitted a SIP re vision, which was supplemented

twice. The EPA partially approved and partiall y disapproved

the plan. EPA approved the ma jority of the submission on May 27, 1994, but d isapprov ed parts

of it because of various deficiencies. The EPA stat e d in its May 27, 1994 no tic e that it would ad dress in s eparat

e rulem akings t h e contingency measures required by § 172(c)(9) 1 of the Act and the Part D NSR req uirem ent.No. 01-3132 Greenbaum v. Environmental Protecti on Agenc y, et al. 5

Ohio submitted a SIP revision, approved by the E PA , that addressed the contingency

measure s. Ohio submitted another revision, correcting thedeficiencies identifie d by the EPA in May 1994, which the EPA subsequently approve d. Thus, the SIP was fully

approved, except for the Part D NSR.

Inthe mean

time, air qualit y m onitoring in the Cleveland

area showed that it had achieved attainment of the part iculate matter NAAQS. On

May 22, 2000, Ohio submit ted a re quest to the EPA, asking it to redesignate Clev elan d from

n onattainment to attainment. The EPA pro pose d redesignating

Cl eve land on July 10, 2000. Approval and Promulgation

of Implementation Plans; Ohio, Designation of Areas for Air Qual ity P lanning

Purposes; Ohio, 65 Fed. Reg. 42,312 (July 10, 2000). I n response, t

he Ea rthjustice Legal Defens e Fund, representing the Ohio Chapter of the Sie rra Club, submitt ed numerous comments, some of which addressed the lack of an NSR program in Ohio’s SIP. The EPAissued a rulemaking , red esignating Cleveland and addressingthe submittedcomments, on December 11, 2000. Approv al and Promulgation of Implementation Plans and Designation

of Area s for Air

Quality Plan ning Pur

poses; Ohio , 65 Fed. Reg. 77,308 (Dec. 11, 2000).

Inresponse

to the com

ments with

respec t to the NSR program , the EPA stated that it “continues to believe that i t has f ully approved the a

pplicable SIP for Cuy

ahoga an d Jefferson Counties.” Id. at 77,311. It stated that it “believes that Cuyahoga

and Jefferson Counties may be re designated to attainment

notwithstanding the lack of a fully -approv ed NSR program meeting the requ irements of the 1990 Clean

Air Act Amendments.” Id. at 7 7 ,312. The EPA continued, stating that it “belie ves that it s decisio n not to insi st on a fully approved NSR prog

ram as a prereq uisite to r edesig nation is justifiab le as an exercise of the Agency ’s gener al author ity t o establish de minimis exceptions to statutory requirements” as “application

of the statutory require

ments would be of

trivial

or no value environmentally.” Ibid. (citi ng Ala. Power Co. v. 6 Greenbaum v. Environmental Protecti on Agenc y, et al. No. 01-3132

2 42 U .S.C. § 750 5a(d ) pro vides :

Each plan revi sion

subm it ted un der this s ection shall co ntain

s uch cont in gen cy p rovi si ons as t he Admi ni st rat or de ems necessary to assure that the State wi ll pro mpt ly correct any viol ati on of the standard which occurs aft er the redes ign ati on of th e area as an at

tain ment area. Such provis ions s hall incl ude a requirement that

the St ate will imp leme nt all mea sures w ith respe ct to the cont rol of the air poll utant concerned which were contai ned in t he State implementati on plan for the area before redesig nati on of th e area as an att ainment area. Costle
, 636 F.2d 323, 360-61 (D.C. Cir. 1979 ) ). The EPA stated that once an area is redesig nated to a ttainment, a new program called “preven

t ion of significant deterioration” (“PSD”) replaces NSR and governs compliance

. Ib id. Compare 42 U.S.C. §§ 7502(c)(5), 7503 (requiring NSR for SIPs govern ing n onattainment areas) with 42 U.S.C. § 7471 (requiring PSD in SIPs governing attainm ent areas). According

to the EPA, “PSD requires that new sources demonstr ate that their construction will not increa se ambient concentrations signific antly and will no t result in concentrations above the

air quality standard.” 65 Fed. R eg. at 77,312. It concluded that “there would be trivial if any environmental value of applying nonattainment new source require ments in Cu yahoga and Jefferson Counties rather than PSD requirements.” Ibid.

The EPA noted t

hat a nother purpose of requiring the approval of a Part

D NSR program

would be “to ensure that NSR would become a contingency provision in the maintenance plan required for these areas by sec tion 107(d)(3)(E)(iv) and 175A(d).” 2 It stated that “whether a n ap proved NSR program must be included as a conting enc y provision depends on whether it is a ‘measure’ for the control of the pertinent air pollutants.” Ibid. The EPA stated that the term“measur

e” is not d

efined i n secti on 1 75A(d) and that Congress used the term differently in different

provisions ofNo. 01-3132 Greenbaum v. Environmental Protecti on Agenc y, et al. 7

the CAA. “This indicates that the term i s suscept

ible to more thanone interpretation and that EPA has the dis cretion to interpret it in a rea sonable manner in the context of section 175A.” Ibid. Theref

ore, “EPA believ es it is reasonabl e to interpret ‘measure,’ as used

in section 175A(d), not

to include NSR.” Ibid.

Fi na ll y, the EPA concluded that Ohio’s maintenance p la n required by § 175A(d) include d sufficient contingency measures to correct any

future violation of the NAAQS.

Petitioners argue that § 107(d)(3)(E) of the CAA is explicit instating the requirements that must be met before the EPA may redesignate a nonattainment area to attainment. O ne requirement

is that the EPA fully approve “ the app lic able implementation plan for the ar ea under section [7410(k)]

. . . .” 42 U. S.C. §§ 7407 (d)(3) (E), 750 5a. At th e time of redesignation, Ohio’s SIP did not contain a fully approved or approva ble NSR program as required by § 7410(a)(2)(C) and Part D, and as required as part of Cleveland ’s maintenance planby § 7505a. Petitioners argue that the EPA violated the express and unamb iguous r equirem ents of 42U.S.C. §§ 7404(d)(3)(E)(ii), (iv), (v), and 7505a. The y argue that the EPAhas misstated the scope of its aut hor ity t o carve out de minimis exceptions, and has failed to c arry its burde

n of showing that such an exception applies in this case. Moreover, they arg

ue, enforcing the CAA’s NSR requirement will not lead t

o absurd r

esult s , noting that more stringent require ments are imposed on an area under an N SR program thanare imposed by a

PSD progra

m. Pe titioners

also maintain that the EPA’s position that the term“measure” does notinclude t

he NSR pro gram is

untenabl e and itsexplanation of its method i

n reach ing this c onclu sion is contorted. Fi na ll y, petitioners argue t hat the EPA illegally a

pproved a maintenance plan t hat lacks contingen cy measure s adequa

te to correct promptly

any NAAQ S viol ation that might occur after redesignation. 8 Greenbaum v. Environmental Protecti on Agenc y, et al. No. 01-3132

III. Standard of Review

This court reviews the EPA’s action with d e ference, and should affirm unless the action was “arbitrary, capricious, an abuseof discr

etion, or otherwis e not in accordance with law.” 5 U.S.C. § 706 (2)(A); Southwestern Penn. Growth Alliance v. Browner , 144 F.3d

984, 988 ( 6th

Ci r. 1 998 ). In Chevron, U.S.A., Inc. v. Natural

Res. Def . Council
, Inc. , 467 U.S. 837 (1984), the Supreme Court established a two-step process for reviewing an age ncy ’s in terpretation of a statute it administers. If “ Congre ss has dir ectly spoken to the precise que stion at i ssue . . . the court . . . must give effect to the unambig uously expressed intent

of Congress.” Id. at 842-43 (e mp hasis added). If Cong ress has been either silent or ambiguous about the

“preci se questi on at iss ue,” then a reviewing court mus tdefer to the agency ’s interpretation if it is reasonable. Ibid. “To uphold EPA's interp ret ation of a statute, the Court ‘need

not find thatit is the onl

y pe rmissible constructionthat EPA might have adopted but only that EPA' s understa

nding of this very

'comple x statute'is a sufficie ntly rational one to preclude a court from substituting its judgment for that of EPA.’” Southwestern Penn. Growth Alliance
, 144 F.3d at 988 ( quot ing Chem. Mfrs. Ass'n v. Natural Res. Def. Council, Inc. , 470 U.S. 116, 125 (1985)).

IV. Analysis

A. De minimis authority

“Unless C ongre ss has bee n extraor dinarily rigid, t here is like ly a basis for an implication of de minimis authority to provide exemption when the burdens of regulation y iel d a gain of trivial or no value.” Ala. Power Co. v. Costl

e , 636 F.2d 323, 360-61 (D.C. Cir. 1979). “Determination of when

m atters ar e t ru ly de minimi s naturally will turn on t h e assessment

of partic ular cir cumstanc es, and the age ncy will bear the burden

of making the required showing.” Id. at 360.No. 01-3132 Greenbaum v. Environmental Protecti on Agenc y, et al. 9

The EPA arg

ues that the Part D N SR progr am is inapplic able to attainment areas, so that the requirement disa pp ears upon red

esigna tion. Afte

r redes ignation, Part D NSR is replaced by

a PSD, a nother permitting program designed to ensure maintenance of the NAAQS in attainment

areas. Compare 42 U.S.C. §§ 7502(c)(5), 7503 (requiring NSR for SIPs governing

nonattainment areas) with 42 U.S.C. § 7471 (requi ring PSD in SIPs governing attainment are as). Therefore, requi r ing NSR approval prior to redesignation would provide de minimi s environmental benefit.

The petitioners argue that that the NSR requirement is ri g id, and the EPA’s action was a departure from the statute. They argue that the court in Alabama Power made it clear

that the focus of de minimi

s authority is whether a

statute’s “l it eral terms lead to absurd or futile results.” Id. at 360 n.89 (internal quotation marks and citations omitted). They ar gue that the clear Congression al man date in this case does not lead to an absurd r esult and that the EPA did not have authority to depart. They

urge that requiring an NSR prog ram inCleveland furthers the Act’s purpose b ecause it provides much great

er assur ance tha n does a PSD

program that the area will maintain its NAAQS.

It is not necessary

in this case t o reach the question of whether the EPA exc eeded o r misstate d its de minim is authority to depar t from the

statute

. The EPA approved Ohio’s Part D NSR program in a final rule issued January 10, 2003. Approval and Promulgation of Implementation Plans; Ohio , 68 Fed. Reg. 1366 (J an 10 , 2003). The deadline for challenges to the rule expired March 11, 2003, and none were filed. If we were

to remand the redesignation to the E PA, it woul d resul t in a duplicative rulemaking to redesignate the Cleveland

area once again. The

NSR prog

ram would

not be implemented

as ap pr ov ed , a s N SR pr og ra ms ar e o nl y r equ ired inno nattain

ment areas. Under the doctrine of prude ntial mootness, we decline to reach the specific issue of wh eth er Ohio’s NSR program should have been ful ly approved prior 10 Greenbaum v. Environmental Protecti on Agenc y, et al. No. 01-3132

3 “Such pro visions sh all includ e a req uirem ent t hat the State will implement all measures with resp ect to the control of the air pollut ant concerned which were con taine d in the St ate i mplementation pl

an for the

area befor e rede signat ion of the area as an at tainment area .” 42 U.S. C. § 75 05a (d) (e mph asis ad ded ). to redesignation as the circumstances ha ve changed, an d w e can no longer afford

petitioners any mea

ningful relief on

this point. See S. Ut

ah Wil d erness Al liance v

. Smith , 110 F.3d 724, 727 (10th C ir. 1997) ; Chamber of Commerce of United States of America v. United States Dep’t of Energy , 627 F.2d 289, 291 (D.C. Cir. 1980) (“In some circ umstances, a
co nt ro ve rs y, not actually moot, is so attenuated that considerations of

pr ud en ce an d c om it y f or co ordinate branches of government counsel the court to stay its hand, and to withhold relief it has the power to grant.”).
However, the app rov al of Ohio’s NSR program does not mootthe rest

of the issues on appeal. Petitioners argue that because of the be lated ap

proval, the EPA may now claim that the NSR prog

ram was n

ot contai ned in the

imp lementa

tion planbefore redesignation, and is there fore not a re quired maintenance contingency measure within the meaning of § 175A. 3 Our dec ision in this case de clin ing to address the propriety of redesignation absent

an approved NSR

program is in no way an invitation for the EPA to cir cum vent th e mandates of the CAA. The NSR should have been approved before redesignation, and fo r the purposes of addressing petitione rs’ claims regarding § 175A, we w i ll tr eat it as i f it had been.

B. Interpretation of the word “measure”

Section 175A requires that when a state sub mits a req

uest for redesig nation of an area to attainment, it must su bmit a SIP revision to provide for the maintenance of the NAAQS for at least ten yea

r s after r

edesig nation. 42U.S.C. § 7505a(a

). These provision s must requir e the sta te toNo. 01-3132 Greenbaum v. Environmental Protecti on Agenc y, et al. 11

“implement

all measures with respect to the control o f the air pollut ant concer

ned which were c ontained in the State implementation plan for

the area before redesig

nation of the area as an attainment area.” 42 U.S.C. § 7505a(d).

The petitione

rs mainta in that the NSR program is a required pollution control measure, and therefore should be among the contingency

measures required by

the CAA. The EPA stated that it “belie ves it is reasonable to interpret ‘measure,’ a s used insection 175A(d) , not to include NSR.” 65 Fed. Reg. at 77,312. As t

h e NSR program is not a pollution control “measure,” it is not among the contingency measures required by the CAA.

The substance of the EPA’s argument relies upon statutory constructionand its interpretation of the meaning of the word “measure” as used in

§ 175A. Un

der the d efere ntial Chevron standard of review, we must first determine if the sta tute is ambiguous with resp ect to the precise issue in question. If so,

we must defer

to the agency ’s interpretation if it is reasonable. Chevron
, 467 U.S. at 842-43. Howev er, “if the apparent statutory ambiguity ca

n be resolved

using ‘traditional tools of st atutory construction,’” a

n agency ’s interpretation is no t entitled to Chevron deference. Mid-America Care Found. v. Nat’l Labor Relations Bd. , 148 F.3d 638, 642 (6th Cir. 1998) (quoting INS v. Cardoza-Fonseca , 480 U.S. 421, 446 (1987)); see also Chevron , 467 U.S. at 843 n.9.

Indetermin

ing whe ther Cong

ress has specific ally addressed the question at

issue, a r eviewing court sho uld

no tconfine

itself to e

xamining a

particu lar statu tor y provision inisolation. The mean ing – or a mbiguity – of certain words or phrases may only

become evident when placed in context. It is a fundamental canon of statutory constructiontha t the word s of a sta tute must be

read in their cont ext and with a

view to the ir place

inthe over

all statutory scheme. A cour

t must therefore interpret the 12 Greenbaum v. Environmental Protecti on Agenc y, et al. No. 01-3132

statute as a symmetrical

and coherent regulatory

scheme, and fit, if possible, all parts into an harmonious whole.

FDA v. Brown & Williamson Tobacco Corp. , 529 U.S. 120, 132-33 (2000) (internal quotation marks and citations omitted).

The EPAargues that Congress did not speak directly to the definiti on of t he word “measure” in § 175A. Although the statute requires implementation of “all measures with respect to the control of the air pollutant concerned” that were in the nonattainment

SIP, th e EPA

no tes that it is apparent that Congre ss meant fo r someaspects of the nonattainme

nt SIP to be measures to be included as contingency measures in the maintenance plan, and some not. It argue s that§ 175A does notindicate

which provisions are to be included, and so it had to turn t o other pa

rts of the statute. I t states that it turne d to § 110, which lists the required SIP provisions. Section 110 requires “contro l measure s” as com ponents of

a SIP. 4 2 U.S. C. § 7410(a)(2)(A). The EPA arg ues that subparagra

ph A require s a SIP to include “enfor ceable emission limitations and other control measures, means, or techniques . . . as may

be nece ssary

or appro priate to meet the require ments of [the Act].” Ibid. Subp aragraph C requires the SIP also to include “a progr am to provi de for

the enforcement

of the measures described in subparag raph (A), and regula tion of the

modifica tion and c onstruct

i on of any stationary source . . . , including a permit program asrequired in parts C and

D of this subchapter.” Id. at § 7410(a)(2)(C). The EPA argues that if the Part D NSR perm

it program were amo ng the control measures mentioned in subparagra ph A, the separate reference

to it in subparagraph C would be

un ne ce ss ar y. The EPA c oncluded that the “

measure s with respect to the control of

the a ir polluta

nt conce rned” in section175A(d) and the “control measures” in sect ion 110(a)(2)(A) are the

same, an d do not inc lude the Pa

rt D NSR permit program.No. 01-3132 Greenbaum v. Environmental Protecti on Agenc y, et al. 13

Petitioners argue that

the EPA’s position is untenable, and its statutory interpreta

tion tortured. They a

rgue that the term “measure” is unambig

uous i n me aning a

nd unques tionably includes NSR programs, citing Webster’s Col legiat e Dictionary (“ a step planned or taken as a means to an end”). They list sever

al of the NSR prog

ram’s po ll uti on contro ls, and assert that, therefore, the NSR program is “a step planned

or taken as a means” to the end of controlling and redu cing ai r pollution, and is th erefore a measure. They argue that the EPAa pplied an aid to statutory construction to a different sectionof the sta

tute to create an ambiguity in § 175A where none otherwise exists.
First, w e note that there may be no ambiguity, but for a different reason t han the one offer

ed by the Petitioners. According

to 42 U.S.C. §§ 7502(c)(5), 7503, SIPs governing nonattainment areas m

ust i nclu de NSR programs. Under 42 U.S.C. § 7471, by contrast, SI Ps governing

attainment
areas must include PSD programs. Thus, although NSR was (or should have been) inthe pre-existing SIP, it would make little sensefor it to be included in the post-attainment SIP, as the Clean Air Act statutes e xplicitly states that attainment

area SIPs must include a PSD program. Yet, even if the clear directive of § 7471 d

oes not es tablish tha

t “measur e” unambig uously excludes N SR, the potential statutory conflict is enough to create an

a mbiguity as to the prope r scope of “measure” in § 175A.

Before reachi

ng that c onclu sio n, howeve r, we must determine whether “trad itional tools of statutory const ruction” provide resolution to the ambiguity. Chevron , 467 U. S. at 843 n.9. “The normal rule of statutory construction assumes that ‘identic al words u sed in

different parts of

the same act are intended to have the same meaning.’” Sorenson v. Sec’y of Treasury , 475 U. S. 85 1, 860 (1986 ) (quo ting H e lvering v. Stock holms Enskilda Bank , 293 U.S. 84, 87 (1934)). However, as the Court has also noted, “[l] ike all such maxims, . . . , this is me re ly a general assumption, and is not 14 Greenbaum v. Environmental Protecti on Agenc y, et al. No. 01-3132

al wa ys valid or applicable.” Sullivan v. Stroop , 496 U.S. 478, 489 (1990) (Blackmun, J., dissenting). If the two provisions

are meant to serve the same purpose, the rule might ap pl y, but if not, the a

pplicabi lity

of the rule might be limited. Id. at 489-90 (citi ng Helvering , 293 U.S. at 87 (“[S]ince most words admit of di ffere

nt shades of me an ing, susceptible of being expanded

or abridged to conform to the sense in which they are used, the pres umpt ion readily y ields [when] the words, though in the same act, are found in . . . diss imilar connections.”)). As the apparent statutory ambiguity

cannot readily be resolved using traditional tools of statutory construction, we ap pl y Chevron deference to the age ncy’s interpretation.

The EPA’s interpretation of the word “measure” in § 175A is reasonable, and

we will not substitute our judgment for that

o f the federal agency . The “words of a statute must be read intheir context and wi

th a view t

o their pla

ce in the overall st atutor y scheme.” Davis v. Mich. De p’t of Trea

sury , 489 U.S. 803, 8 09 (1989). Section 175A(d) requires implementation of “all measures with respect to the control of the air pollutant co n cerned” contained in the nonattainment SIP. It wa s entirel

y pe rmi ssible , and indeed logical, for the EPAto look to § 1 10 to dete rmine the meaning of th e word “measure” in § 175A as § 110 lists the provisions require d to be included in a nonat

tainment SI

P. Petitione

rs arg ue this

was done merely to c

reate a n a mbiguity where

one did not otherwis e exist. However, “[t]he meaning – oram bi gu it y – of ce rtai n words or phrases may only become e

vident when placed in context.” Brown & W

illiamson Tobacco Corp. , 529 U.S. at 12 1 (citi ng Brown v. G ardner, 513 U.S. 115, 118 (1994) ( “Ambig

uity is a crea

ture not of definitional possibilities but of statutory context.”)).
Likewise, the EPA’s argument that the reference to the Part D NSR prog

ram in subpara graph C of § 110 would be surplusage if it wereamong the control measures mentioned insubparagraph A of § 110 is re aso nable. 42U.S.C.No. 01-3132 Greenbaum v. Environmental Protecti on Agenc y, et al. 15

§ 7410(a)(2)( A) & ( C). Subpar agrap h C requir

es a nonattainment

SIP to contain “a progra m to pr ovide for the enforcement

of the me asures d

escribe d in

subparagraph

(A), and regulation of t he modification and construction of any stationary source within the areas cove red b y the plan . . . .” 42 U.S.C. § 7410(a)(2)(C) (emphasis added). The latter clause of the sentence refers to the Part D NSR perm i t progra m, while the

former r efers to the meas ures des cribed i

n sub paragraph

A. It was not unreasonable for the EPA t o conclude that given this structure of § 1 10, that Cong ress intended that the term “measure” not includethe Part D NSR permit program.

We also find persuasive the EPA’s argument that the very nature of the NSR

permit pr ogram s upports its interpretation that it is not intended to be a contingency measure pursuant

to § 175A(d). The contingenc y meas ures required by § 175A require immediate emission re ductions on existing sources

. The begi nnin g of the paragraph rea ds: “Each plan revision sub mittedunder this section shall contain such contingenc y provisions as the Ad

ministrator deems necessa ry to assure that the State will prompt ly correct any violation of the standard which occurs after the redesig nation of the area as an attainment area.” 42 U.S.C. § 7505a(d). The NSR program would have no im

mediate e ffect o n emiss ions . It is a permitting program under which tho se who wa

nt to construct
a new major pollut ant so urce, or modify an existing major pollutantsource, must acqu ire a pe rmit. 42 U .S.C. § 7503. The program has no effect on existing sources , which wo uld be t he cause of any

violation of the standard. We the refor e defer to the EPA’ s reasonable def initio n of t he word “measure” in § 175A.

C. The maintenance plan

When a state submits to th e EPA a request for redesignat ion, § 175 A re qui res th at t he s tat e su bm it a SIP 16 Greenbaum v. Environmental Protecti on Agenc y, et al. No. 01-3132

revisionto provide for the maintenance of the NAAQS for at least ten years after the redesignation. 42 U.S.C. § 7505a(a).

Section 17 5A(d) pr

ovides:

Each [main tena nce p lan] submi tted under this section shallco nt ai n s uc h c on ti ng en cy prov isions as the Administrator

deems necessary to assure that the Sta

te will promptly

correct any

violation of

the standard which

occurs after

the redesignation of the area a s an attainment

area.
42 U.S.C. § 7505a (d) (em phasi s adde d). Th e langu age clearly indicates that Congress expressly de legated authority to the EPAto determine what contingency measures ar e n ec es sa ry. We give such determinations by regulation “controlling weight unless the

y a re arbi trary, capric ious, or ma

nifestly contrary to the statute.” Ch evr on , 467 U.S. at 844. Petitioners argue that the EPA’s determination in this cas e is all three. We disagree.

Inre sponse to comments regarding the maintenanc e plan, th e EPA state d that “Oh io’s enf orceme nt progr am, commitmentof resour ce s, and leg al author ity a re adeq uate anda ssure that measures in the SIP (including maintenance planmeasure s) will be implemented.” 65 Fed. Reg. 77,315. It noted that the Ohio SIP contained c ontin gency measures that ha d b ee n a pp ro ve d b y th e E PA on Ma y 6 , 1996. Ibid

. (citing Approval and Promulgation of Imple mentation Plans; Ohio, 61 Fed. Reg. 20,139 (May 6, 1996))

. When the EPA approved thes e contingency

measures, the EPA stated that Ohio’s contingency

measures provided “for a r easonab le le vel of continued progress toward the attainment g oal during an interim period be tween a ny prospect

ive dete rmination that th e SIP has failed to . . . provide for timely attai nment of th e NAAQS and the add iti onal formal air quality pla nning following the determination.” 61 Fed. Reg. a t 20,141.No. 01-3132 Greenbaum v. Environmental Protecti on Agenc y, et al. 17

4 Sec tion 17 2(c) (9) re ads:

Such plan sh all pro vid e for the im plem entatio n of sp ecific

measures to be unde rtaken if the area fails to ma ke rea sona ble furt her pro gress, o r to attain th e natio nal prim ary am bient a ir qua lity stan dard by the a ttainme nt date app licable unde r this part. Such measures shall be incl ud ed in t he plan r evisi on as contin gency measures to take eff ect in any s uch case without further act ion by the State or t he Administrator. 42 U.S.C. § 75 02(c)(9). Inits rulemaking redesignating Clevela nd as an attainment area, the EPA stated that “[s]ection 175A(d) does not dicta te that the maintenance plan contingency measures be sufficient by themselves to correct any violation of the standard. Instead, these measures need only be sufficient in EPA’s judgment to help assure that the State wi ll p romptly correc t any future violation.” 65 Fed. Reg. at 77,315. I t reasoned that PM 10 is emitted from a va ri et y of sources, and therefore it could not “reasonably

expect maintenance plan c ontingency

measures by themsel

ves to address all possible future violations.” Ibid. The EPA also reasoned that it must make

a judgmen t call as to whichtyp es of fut

ure viola tions are most likely and consider “other factors which help a ss ure that the State will correct any

future violation s.” Ibid. The EPA identified as additional factors “provisions in Oh io ’s regulations that allow the Stat e to impose additional source controls if viol ations oc cur and p rovisions in the Clea

n Air Act Section 110(h) (provisions for SIP calls).” Ibid.

It c o ncluded that these contingency measures, approved May 6, 1996 and adopted pursuant to § 172(c)(9), 4 w er e adequa te to satisfy § 17 5A(d), and that these “contingency

measures . . . in

combination with other factors, assure that Ohi o will promp tly c orrect any future violations i

n these areas.” Ibid. 18 Greenbaum v. Environmental Protecti on Agenc y, et al. No. 01-3132

Petitioners claim that

Ohio’s ma

intenanc e plan iswoefully inadequa te and they ra

ise a number of o bjec tions as to why the plan does

not come

clo se to fulfilling the statutory require ments. First, the y

argue that the statute requires that the contingency

measures themselves should be sufficie nt to
assur e correction of a violation, a nd not just “

help” as s ure a corr ection. They

add t hat the sta

tute d oes not au

thori ze th e EPAto use othe

r measur es outside the main tenance plan to

assure these corrections. Second, Petitioners contend that the EPAhas not identified a schedule for impl ementing the contingency

me a sures, nor has it ide

ntified tr igge rs or spe cific indicators that would be used to determine when contingency

measures need to be

implement

ed. I n support o f this argume nt, the y c ite a Sept

ember 4, 1992 memor

andum to various EPA air pollution directors from the Direc tor o f the Air Qua lity

Manag ement Div

ision of the

EPA, John Cal cagni, entitled Procedu res for Pro cessing R equests t o R edesigna te Areas to Attainment

(the “Ca lcagni Mem orandum”). They add that the EPA ’s assert ion that a violation of the NAAQS is the trigger for

implementation of the contingency measures is not sufficient. Third, they a rgue that the wo rd “p ro mp tl y” in§ 175A(d) reflects Congressional intent that the corrective

measures be “immediately ava ilable in the event the area once again exceeds the standard.” H.R. Rep. No. 490, 101st Cong., 2d. Sess., pt. 1 at 226-27 (1990). According to Pet itioners, however, the contingency measures in question would not be implemented

until eithe

r the stat

e or the EPA made a determination

that the area has violated the NAAQS. Fourth, Petitioners allege that the EPAoffered no explanation of the factual bases upon which it ma de it s determination that Ohio’s maintenance plan was adequate and simply “ deemed” the requirements of § 175A(d) to have been met.

Withrespect

to Petitioners’ claim that these measures are insuffic ient, we agr

ee with the EPA’s conclusion that Ohio’s maintenance plan is in f act suff icient to f

ulfill t h e requi rements

of § 175A. We find pe

rsuasive its reasonin g that it ca nnot expect Ohio to provide contingency measuresNo. 01-3132 Greenbaum v. Environmental Protecti on Agenc y, et al. 19

that are ca pableof addressing any

imaginable violation from the mildest to the most severe. The EPA argues that Cong ress clearly contempl ated a si

tuation in wh ic h t he fe de ra ll ycontrol led c ontinge ncy measure s contain ed in th e maintenance plan might not be sufficient to correct a violation of the NAAQS. Pursuant

to 42 U.S.C. § 7410(k) (5), the EPA is authorized to require a st ate to rev is e an app rov ed S IP if it finds that it has become s ubstantia lly i nadequa te to maintain th e NAAQS. Moreove

r, § 175A a

llows the EPA, in its discretion, to require the state to submit a re

vised SI P should the are a fail to maintain the NAAQS.

“ [A]ny final determination regarding the adequacy

of a maintenance planwill be made ‘in light of the particular circumstances facing the area proposed for redesignation and based on all relevant information available at the time.’” Wall

v. EPA
, 265 F.3d 426, 431 (6th Cir. 2001) (quoting Calcagni Memoran dum, at 8). Ohio’s SIP co ntain s contingency

measures ap pr ov ed Ma y 6 , 19 96. The EP A deeme d these

meas ure s as sufficient to assure that Ohio would reach attainme nt, which it did, and

sufficie nt to assur

e that it w ould promptly corre ct any

violation of the standard after redesig n ation. The EPA sta

ted that o ther fa

ctors wil l help

assure prompt correction. Petitioners argue t hat the contingency

measure s themselv es are n ot suffic ient to do s o and argue that unde r the EPA’ s logic, a state c ould submit a planwi th no contingency provisions and merely a ssert that other measure s will correct

the viola tion. Howe

ver, the EPA did not do so in the present

case. The contingency

measures submittedclearly

contempl ate futu

re viola tions, alo ng with the p ossibil ity that Ohio could ag ain be subject to strict regula tions.

The EPA is cor

rect whe n it states that no maintenance plan could, or should be expected to, cov er ever y po ssible

co nt in ge nc y. Any m ain ten anc e pl an i ncl ude d i n a S IP could

never “assure that the State will pro mptly correct any violation of

the standard.” Violations could be of any degree 20 Greenbaum v. Environmental Protecti on Agenc y, et al. No. 01-3132

of severity, and c aused by any number of sourc es o f particu late matter. The EPA a

rgues t hat it had to judge which type s of violati ons were most likely

, and judg ed Ohio ’ s maintenance plan in that

context. The Administrator has been granted broad dis cretion

by C ongre ss in dete

rmining what is “neces sary

to assure” prompt correction. The EPA has approved Ohio’s maintenance plan, concluding tha t its contingency

measures pr ovide a means t o deal wit

h likely violations

. We do not believ e t hat this de terminat ion is

“ arbitr ar y, capricious, or manifestly contrary to the statute.” Chevron , 467 U.S. at 844.

As the EPA notes, the other factors (suchas Ohio’s general environmental regula

ti on s) it included in its December 11, 2000 ru le making are available should the continge ncy measures by themselves fail to cor rect the vi o lation. Petitioners respond that if C ongress had thought that the state’s general regula

tory au thor ities woul d be ade quate to
assure the prompt correction of a viola tion, it would not have required a maintenance plan to contain specific conting ency measures that

a state is obligated to implement in the event of

a violation. Howe ver, t he EPA stated that the contingency

measures themselves are sufficient to “help assure that the State will promptly correct a ny future violation,” and that the other factor s in addition to th e c ontinge ncy measure s will “assure that Ohio w

ill promptly correc

t any future violations inthese areas.” 65 Fed. Reg. at 77,315. Theref ore, the EPA stated that the cont i ngency

measures themselves were sufficient to “helpassur e” prompt correction, and that the additional factor s also were available to “help assure” prompt correction. Again, without knowledge o f the s everity or

s ourc e of a NAAQS violation, any c ombination of contingency

measures cannot assureprompt correction to an absolute certainty, a

nd can only be

promised to “help assure” prompt correction.

The quarrel between whether the state ’s measu res will “assure” or only “help assur e” co rrec tions of vio lations isNo. 01-3132 Greenbaum v. Environmental Protecti on Agenc y, et al. 21

large ly a semantic one. Th e approv ed mainte nance p lan is based, in part, on measur es that Ohio ha s committe d to implementin ca se of

ne ed , a nd th at , u lt im at el y, the EPA can compel. On that state of facts, whether the EPA’s own

meas ures are said to “assure” or only “help assure,” the essential fact

is that the

remedia l measure s will occ

ur in case of n eed, a nd that the EPA has deemed those measures (collectively)

as adequate to remedy

any future

violation.

Petitioner s’ second a

rgumen t w as that the mai ntenance plan lacked both s che dules for implementing the contingency

measures and

trigg ers or ot

her spec ific indic ators tha t would be used to determine if the contingency mea sures needed

to be implemented. The EPA disagrees. The EPA explains that Ohio added conti ngency meas ures t o regu l ate industrial

sources inCleveland because such sources were the principal

cause of particulate matter nonattainment. 61 Fed . Re g. at 20,140; Approva

l and Promu

lgation of Implemen

tation Plan s; Ohio, 58 Fed. Reg. 41,218 (Aug. 3, 1993). It has stated that, inthe event of a violation of the NAAQS, five indus tria l

source facilitie s in

the Cleveland area are

required to reduce particu late emissions by either

15% or 25%, depending on the severity of the violation. 61 Fed. Reg. at 20140; OAC 3745- 17-14(C); OAC 3745-17-02. The EPA st ates that, once a violation of the NAAQS has occurred, the principa l contributors of particulate mat ter a re required to reduce emissions, and that this is sufficient.

Withthis background in mind, we turn t o th e Petitione rs’ specific allegations about how a nd whe n these measures would take effect in the event of a violation. With resp ect to trigge rs, th e EPA correctly argues that monitored violations of the NAAQ S can be possible triggers. Calcag ni Memo at 12. Th e co ntingency

measures may

be triggered upon notificationby t

he Ohio EPA

or the Un

ited State s E PA of a determination

by either agency that a violation has occurred. Withrespect

to schedu les, the EPA correctly

explains that the contingency

me as ur es we re in it ia ll y d evelope d pursuan t to 22 Greenbaum v. Environmental Protecti on Agenc y, et al. No. 01-3132

§ 172(c)(9), which requi res that the measures take effec t withoutfurther action by

the State or the EPA, which the EPA interpre ts to mean “that no further ru lemaking activities by the State or EPA would be needed to imp lem ent the contingency

measures.” S tate I

mplementation Plans; General Preamble for the I mplementa

tion of Titl e I o f the Clea n Air Act Amendments of 1990, 57 Fed. Reg. 13, 498, 13,512 (April 16, 1992). The Calcagni Memorandum also states that “[f]or the purpo ses of se ction 175A , a State i s not required to have fully adopted contingency

measures that will take effect withoutfurther action by the Stat e in order for the maintenance plan to be app roved.” Calcagni Memorandum at 12. Thus, no pre-determined schedule for adoption of the measures is necessary

in each specific case.

We also reject

Petitioners’ third argument and find that the E PA’s interpretation of what “promptly ” means is reasonable. It is unclear how petitioners expec t the EPA to recognize a violation unless it is able to make a determination based on the data collected from the air quality monitoring sites and its subsequent

evaluation. Petitioners assert that there is no requirement

that the EPA m a ke this determination

ex pe di ti ou sl y. Howeve

r, there is no indic ation in

the record that the EPA or

the Ohio EPA will not m ak e such a determination w hen justified by its data collection and evaluation.

Fi na ll y, P etitio ners argue that the EPA did not meet minimal administrative law requ irements by f ailing to base its determination

upon facts in the administrative record. They argue that the EPA did not provide any explanat ion for i ts action. However, in the December 11, 2000 rulemaking, the EPAreferen ced th e May 6, 19 96 rul emaki ng, whichapproved the contin ge ncy measur

es contained in Ohio’s SIP. The May 6 rulemaking stated that the implementation of the

co ntingency

measures contained within “would result in a n emissions reducti on of 34 po unds of PM p er hour i n Cu yaho ga

County.” 61 Fed. Reg . at 20,139. In theNo. 01-3132 Greenbaum v. Environmental Protecti on Agenc y, et al. 23

rulemakingapproving redesignation, the EPA stated that “[a] variety of sourc es emit PM 10 , so nonattainment can occur for a variety of

reasons.” 65 Fed. Reg. at 77,315.

W e must “‘consider whether the decision was base d on a

c onsi deration

of the relevant factors and whether there has been a clear error of judgme

nt . .

. . Althoug

h this inquir

y in to the facts isto be searching and careful, the ultimate standard of review is a narrow on e. The cour t is not empowered to substitute i ts judgment for that of the agency .’” Bowman Transp., Inc. v. Arkansas-Best Freight Sys., Inc. , 419 U.S. 281, 285 (1974 ) (quo ting Citizens to Preser ve Ove rton Park

v. Volpe , 401 U.S. 402, 416 (1971)). The agen cy mus t articula te a “rational connection

betwee n the facts found and the choice made.” Burlington Truck Lines, Inc. v. United States
, 371 U.S. 156, 168 ( 1962). “ While we may not supply

a reasoned basis for th e agency's action th at the ag ency itself has not given, we will uphold a d ecis ion of less than ideal clarity if the agency

's path may

reasonably

be discerned. Bowm an Transp., Inc. , 419 U.S. a t 286 (inte

rnal cita tio n omitted).

Alth ough the EPA’s ra

tionale is less than complete ly

clear inits December 11, 2000 rulemaking, i ts “pa th may

reasona bly be discerned.” Ibid. The May 6, 1996 rulem aking, adopting the contingency measure s contained in Ohio’s SIP, and

clearly r eferenced in the Decembe r 11, 2000 rulem aking, extensivel y dis cusses the Ohio EPA’s interaction with the “principal facilities in the PM nonattainment areas,” 61 Fed. R eg. at 20,140, and Ohio’s success in attaining sufficient reducti ons from s everal of those s ources i

n the event that the area f

aile d to “timel

y a ttain the a

pplicabl e NAAQS.” Ibid. While it is tr ue that th e earli e r rulemaking

was somewhat limited in scope in that it focused primarily on particular industrie s, the EPA

had prev iously determined that theseindust

rial sources were primarily responsible for the excessive particu

late emis sions in Cl evela

nd. In addition, and

as noted above, the contingency

measure s require

these major 24 Greenbaum v. Environmental Protecti on Agenc y, et al. No. 01-3132

sources to reduc e particulate emissions should a future violation occur. Therefo re, we d o not belie

ve that th e EPA ha s c ommitted a “clear error of judgment” and do not substitute our judgment for that of the agency

. V. Conclusion

For all of the reasons set forth above, w e uphold

the EPA’s redesignation

of Cuyahog a County, Ohio from nonattainment to attainment for particulate matter.