1

RECOMMENDED FOR FULL-TEXT PUBLICATION

Pursuant to Sixth Circuit Rule 206

ELECTRONIC CITATION: 2004 FED App. 0166P (6th Cir.)

File Name: 04a0166p.06

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

_________________

ROBERT GREENBAUM,

Petitioner,

SIERRA CLUB,

Intervenor,

v.

UNITED STATES

ENVIRONMENTAL

PROTECTION AGENCY, and

MICHAEL O. LEAVITT,

*

Administrator, United States

Environmental Protection

Agency,

Respondents.

X

-

-

-

-

>

,

-

-

-

-

-

-

-

-

-

-

-

-

-

N

No. 01-3132

*

Pursuant to Fed. R. App. P. 43(c), Michael O. Leavitt is

automatically substituted for Christine Todd Whitman.

On Petition for Review of an Order of the

Environmental Protection Agency.

No. 40 CFR Parts 52 & 81.

Argued: May 6, 2003

2 Greenbaum v. Environmental

Protection Agency, et al.

No. 01-3132

Decided and Filed: June 3, 2004 

Before: BOGGS, Chief Judge; and GUY and

DAUGHTREY, Circuit Judges.

_________________

COUNSEL

ARGUED: Keri N. Powell, EARTHJUSTICE LEGAL

DEFENSE FUND, Washington, D.C., fo r

Petitioner/Intervenor. Christopher B. Peak, UNITED

STATES DEPARTMENT OF JUSTICE, Washington, D.C.,

for Respondent. ON BRIEF: J. Todd Hutchins, David S.

Baron, EARTHJUSTICE LEGAL DEFENSE FUND,

Washington, D.C., for Petitioner. Christopher B. Peak,

UNITED STATES DEPARTMENT OF JUSTICE,

Washington, D.C., for Respondent. 

_________________

OPINION

_________________

BOGGS, Chief Judge. The Environmental Protection

Agency (“EPA”) redesignated Cuyahoga County, Ohio

(hereinafter “Cleveland”) from nonattainment to attainment

for particulate matter, specifically for particles known as PM10

(particles smaller than 10 microns in diameter), on

December 11, 2000. This was done pursuant to

§ 107(d)(3)(E) of the Clean Air Act, 42 U.S.C.

§ 7407(d)(3)(E). Robert Greenbaum, a Cleveland resident

and Sierra Club member, and intervenor, Sierra Club

(“Petitioners”), appeal the agency action. Petitioners argue

that the EPA illegally waived statutory requirements when it

redesignated the Cleveland area to attainment. 
No. 01-3132 Greenbaum v. Environmental

Protection Agency, et al.

3

I. Statutory Framework

The Clean Air Act (“CAA”) establishes a comprehensive

program for controlling and improving the nation’s air quality

through both state and federal regulation. The administrator

formulates National Ambient Air Quality Standards

(“NAAQS”) that specify the maximum permissible

concentrations of certain air pollutants. The EPA initially

designates geographic areas as “attainment” or

“nonattainment” based on whether the areas meet the

pollution limits for a particular pollutant, pursuant to the

NAAQS for that particular pollutant. PM10 nonattainment

areas are further classified as moderate or serious, depending

on the severity and persistence of the problem. The CAA

requires states to submit a state implementation plan (“SIP”)

to the EPA, containing specific pollution control measures

necessary for the attainment, maintenance, and enforcement

of the NAAQS. The SIPs must be drafted to meet

requirements as outlined in CAA § 110(a)(2), 42 U.S.C.

§ 7410(a)(2). Part D of Title I of the CAA provides that a SIP

for PM10 nonattainment areas (such as Cleveland 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 program requires new or modified

sources of pollutant to obtain a permit that requires certain

pollution controls and other measures to ensure that the new

or modified source will not exacerbate the pollution problem

in the area. SIPs must also include programs for enforcement

of the NSR provisions and other measures included in the

plan. 

The EPA reviews and either approves or disapproves the

SIP submissions. If the EPA approves the SIP, either wholly

or partially, the approved provisions become enforceable by

the federal government. If the EPA disapproves the SIP, then

the state is subject to sanctions, as well as federally imposed

clean air measures. 

4 Greenbaum v. Environmental

Protection Agency, et al.

No. 01-3132

1

The plan must “provide for the implementation of specific measures

to be undertaken if the area fails to make reasonable further progress, or

to attain the national primary ambient air quality standard by the

attainment date applicable under this part.” 42 U.S.C. § 7502(c)(9).

States may ask the EPA to redesignate geographical areas

from nonattainment to attainment for a particular polluntant

once a NAAQS has been met. 42 U.S.C. § 7407(d)(3)(E).

The EPA must approve or deny such redesignation within

18 months. 42 U.S.C. § 7407(d)(3)(D). The EPA may not

redesignate an area to attainment unless: (i) the EPA has

determined that the area has attained the applicable NAAQS;

(ii) the EPA has fully approved the applicable SIP under

§ 7410(k); (iii) the EPA has determined that the improvement

in air quality is due to permanent and enforceable reductions

in emissions resulting from implementation of the SIP and

other required reductions; (iv) the EPA has fully approved a

maintenance plan under CAA § 175A that has been adopted

by the State, which demonstrates that the area will maintain

the NAAQS for at least 10 years after redesignation; and

(v) the EPA has determined that the State containing the area

seeking redesignation has met all applicable SIP requirements

for that area under § 110 with respect to SIPs generally, and

under Part D with respect to SIP provisions for nonattainment

areas. 42 U.S.C. § 7407(d)(3)(E). 

II. The Redesignation of Cleveland

Cleveland was designated as a moderate nonattainment area

in 1990. In 1991, Ohio submitted a SIP revision, which was

supplemented twice. The EPA partially approved and

partially disapproved the plan. EPA approved the majority of

the submission on May 27, 1994, but disapproved parts of it

because of various deficiencies. The EPA stated in its

May 27, 1994 notice that it would address in separate

rulemakings the contingency measures required by

§ 172(c)(9)1 of the Act and the Part D NSR requirement.
No. 01-3132 Greenbaum v. Environmental

Protection Agency, et al.

5

Ohio submitted a SIP revision, approved by the EPA, that

addressed the contingency measures. Ohio submitted another

revision, correcting the deficiencies identified by the EPA in

May 1994, which the EPA subsequently approved. Thus, the

SIP was fully approved, except for the Part D NSR. 

In the meantime, air quality monitoring in the Cleveland

area showed that it had achieved attainment of the particulate

matter NAAQS. On May 22, 2000, Ohio submitted a request

to the EPA, asking it to redesignate Cleveland from

nonattainment to attainment. The EPA proposed

redesignating Cleveland on July 10, 2000. Approval and

Promulgation of Implementation Plans; Ohio, Designation of

Areas for Air Quality Planning Purposes; Ohio, 65 Fed. Reg.

42,312 (July 10, 2000). In response, the Earthjustice Legal

Defense Fund, representing the Ohio Chapter of the Sierra

Club, submitted numerous comments, some of which

addressed the lack of an NSR program in Ohio’s SIP. The

EPA issued a rulemaking, redesignating Cleveland and

addressing the submitted comments, on December 11, 2000.

Approval and Promulgation of Implementation Plans and

Designation of Areas for Air Quality Planning Purposes;

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

In response to the comments with respect to the NSR

program, the EPA stated that it “continues to believe that it

has fully approved the applicable SIP for Cuyahoga and

Jefferson Counties.” Id. at 77,311. It stated that it “believes

that Cuyahoga and Jefferson Counties may be redesignated to

attainment notwithstanding the lack of a fully-approved NSR

program meeting the requirements of the 1990 Clean Air Act

Amendments.” Id. at 77,312. The EPA continued, stating

that it “believes that its decision not to insist on a fully

approved NSR program as a prerequisite to redesignation is

justifiable as an exercise of the Agency’s general authority to

establish de minimis exceptions to statutory requirements” as

“application of the statutory requirements would be of trivial

or no value environmentally.” Ibid. (citing Ala. Power Co. v.

6 Greenbaum v. Environmental

Protection Agency, et al.

No. 01-3132

2

42 U.S.C. § 7505a(d) provides: 

Each plan revision submitted under this section shall contain

such contingency provisions as the Administrator deems

necessary to assure that the State will promptly correct any

violation of the standard which occurs after the redesignation of

the area as an attainment area. Such provisions shall include a

requirement that the State will implement all measures with

respect to the control of the air pollutant concerned which were

contained in the State implementation plan for the area before

redesignation of the area as an attainment area.

Costle, 636 F.2d 323, 360-61 (D.C. Cir. 1979)). The EPA

stated that once an area is redesignated to attainment, a new

program called “prevention of significant deterioration”

(“PSD”) replaces NSR and governs compliance. Ibid.

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

SIPs governing nonattainment areas) with 42 U.S.C. § 7471

(requiring PSD in SIPs governing attainment areas).

According to the EPA, “PSD requires that new sources

demonstrate that their construction will not increase ambient

concentrations significantly and will not result in

concentrations above the air quality standard.” 65 Fed. Reg.

at 77,312. It concluded that “there would be trivial if any

environmental value of applying nonattainment new source

requirements in Cuyahoga and Jefferson Counties rather than

PSD requirements.” Ibid. 

The EPA noted that another 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 section

107(d)(3)(E)(iv) and 175A(d).”2 It stated that “whether an

approved NSR program must be included as a contingency

provision depends on whether it is a ‘measure’ for the control

of the pertinent air pollutants.” Ibid. The EPA stated that the

term “measure” is not defined in section 175A(d) and that

Congress used the term differently in different provisions of
No. 01-3132 Greenbaum v. Environmental

Protection Agency, et al.

7

the CAA. “This indicates that the term is susceptible to more

than one interpretation and that EPA has the discretion to

interpret it in a reasonable manner in the context of section

175A.” Ibid. Therefore, “EPA believes it is reasonable to

interpret ‘measure,’ as used in section 175A(d), not to include

NSR.” Ibid. 

Finally, the EPA concluded that Ohio’s maintenance plan

required by § 175A(d) included sufficient contingency

measures to correct any future violation of the NAAQS. 

Petitioners argue that § 107(d)(3)(E) of the CAA is explicit

in stating the requirements that must be met before the EPA

may redesignate a nonattainment area to attainment. One

requirement is that the EPA fully approve “the applicable

implementation plan for the area under section [7410(k)]

. . . .” 42 U.S.C. §§ 7407(d)(3)(E), 7505a. At the time of

redesignation, Ohio’s SIP did not contain a fully approved or

approvable NSR program as required by § 7410(a)(2)(C) and

Part D, and as required as part of Cleveland’s maintenance

plan by § 7505a. Petitioners argue that the EPA violated the

express and unambiguous requirements of 42 U.S.C.

§§ 7404(d)(3)(E)(ii), (iv), (v), and 7505a. They argue that the

EPA has misstated the scope of its authority to carve out de

minimis exceptions, and has failed to carry its burden of

showing that such an exception applies in this case.

Moreover, they argue, enforcing the CAA’s NSR requirement

will not lead to absurd results, noting that more stringent

requirements are imposed on an area under an NSR program

than are imposed by a PSD program. Petitioners also

maintain that the EPA’s position that the term “measure” does

not include the NSR program is untenable and its explanation

of its method in reaching this conclusion is contorted.

Finally, petitioners argue that the EPA illegally approved a

maintenance plan that lacks contingency measures adequate

to correct promptly any NAAQS violation that might occur

after redesignation. 

8 Greenbaum v. Environmental

Protection Agency, et al.

No. 01-3132

III. Standard of Review

This court reviews the EPA’s action with deference, and

should affirm unless the action was “arbitrary, capricious, an

abuse of discretion, or otherwise not in accordance with law.”

5 U.S.C. § 706 (2)(A); Southwestern Penn. Growth Alliance

v. Browner, 144 F.3d 984, 988 (6th Cir. 1998). 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 agency’s interpretation of a statute it

administers. If “Congress has directly spoken to the precise

question at issue . . . the court . . . must give effect to the

unambiguously expressed intent of Congress.” Id. at 842-43

(emphasis added). If Congress has been either silent or

ambiguous about the “precise question at issue,” then a

reviewing court must defer to the agency’s interpretation if it

is reasonable. Ibid. “To uphold EPA's interpretation of a

statute, the Court ‘need not find that it is the only permissible

construction that EPA might have adopted but only that

EPA's understanding of this very 'complex statute' is a

sufficiently rational one to preclude a court from substituting

its judgment for that of EPA.’” Southwestern Penn. Growth

Alliance, 144 F.3d at 988 (quoting Chem. Mfrs. Ass'n v.

Natural Res. Def. Council, Inc., 470 U.S. 116, 125 (1985)).

IV. Analysis

A. De minimis authority

 “Unless Congress has been extraordinarily rigid, there is

likely a basis for an implication of de minimis authority to

provide exemption when the burdens of regulation yield a

gain of trivial or no value.” Ala. Power Co. v. Costle, 636

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

matters are truly de minimis naturally will turn on the

assessment of particular circumstances, and the agency will

bear the burden of making the required showing.” Id. at 360.
No. 01-3132 Greenbaum v. Environmental

Protection Agency, et al.

9

The EPA argues that the Part D NSR program is

inapplicable to attainment areas, so that the requirement

disappears upon redesignation. After redesignation, Part D

NSR is replaced by a PSD, another 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 (requiring PSD in SIPs governing attainment areas).

Therefore, requiring NSR approval prior to redesignation

would provide de minimis environmental benefit. 

The petitioners argue that that the NSR requirement is rigid,

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 minimis authority is whether a statute’s “literal

terms lead to absurd or futile results.” Id. at 360 n.89

(internal quotation marks and citations omitted). They argue

that the clear Congressional mandate in this case does not

lead to an absurd result and that the EPA did not have

authority to depart. They urge that requiring an NSR program

in Cleveland furthers the Act’s purpose because it provides

much greater assurance than does a PSD program that the area

will maintain its NAAQS. 

It is not necessary in this case to reach the question of

whether the EPA exceeded or misstated its de minimis

authority to depart 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 (Jan 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 EPA, it

would result in a duplicative rulemaking to redesignate the

Cleveland area once again. The NSR program would not be

implemented as approved, as NSR programs are only required

in nonattainment areas. Under the doctrine of prudential

mootness, we decline to reach the specific issue of whether

Ohio’s NSR program should have been fully approved prior

10 Greenbaum v. Environmental

Protection Agency, et al.

No. 01-3132

3

“Such provisions shall include a requirement that the State will

implement all measures with respect to the control of the air pollutant

concerned which were contained in the State implementation plan for the

area before redesignation of the area as an attainment area.” 42 U.S.C.

§ 7505a(d) (emphasis added). 

to redesignation as the circumstances have changed, and we

can no longer afford petitioners any meaningful relief on this

point. See S. Utah Wilderness Alliance v. Smith, 110 F.3d

724, 727 (10th Cir. 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 circumstances, a

controversy, not actually moot, is so attenuated that

considerations of prudence and comity for coordinate

branches of government counsel the court to stay its hand, and

to withhold relief it has the power to grant.”). 

However, the approval of Ohio’s NSR program does not

moot the rest of the issues on appeal. Petitioners argue that

because of the belated approval, the EPA may now claim that

the NSR program was not contained in the implementation

plan before redesignation, and is therefore not a required

maintenance contingency measure within the meaning of

§ 175A.3 Our decision in this case declining to address the

propriety of redesignation absent an approved NSR program

is in no way an invitation for the EPA to circumvent the

mandates of the CAA. The NSR should have been approved

before redesignation, and for the purposes of addressing

petitioners’ claims regarding § 175A, we will treat it as if it

had been. 

B. Interpretation of the word “measure”

Section 175A requires that when a state submits a request

for redesignation of an area to attainment, it must submit a

SIP revision to provide for the maintenance of the NAAQS

for at least ten years after redesignation. 42 U.S.C.

§ 7505a(a). These provisions must require the state to
No. 01-3132 Greenbaum v. Environmental

Protection Agency, et al.

11

“implement all measures with respect to the control of the air

pollutant concerned which were contained in the State

implementation plan for the area before redesignation of the

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

The petitioners maintain 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 “believes it is reasonable to interpret ‘measure,’ as used

in section 175A(d), not to include NSR.” 65 Fed. Reg. at

77,312. As the 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

construction and its interpretation of the meaning of the word

“measure” as used in § 175A. Under the deferential Chevron

standard of review, we must first determine if the statute is

ambiguous with respect 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. However, “if the apparent

statutory ambiguity can be resolved using ‘traditional tools of

statutory construction,’” an agency’s interpretation is not

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. 

In determining whether Congress has specifically

addressed the question at issue, a reviewing court should

not confine itself to examining a particular statutory

provision in isolation. The meaning – or ambiguity – of

certain words or phrases may only become evident when

placed in context. It is a fundamental canon of statutory

construction that the words of a statute must be read in

their context and with a view to their place in the overall

statutory scheme. A court must therefore interpret the

12 Greenbaum v. Environmental

Protection Agency, 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 EPA argues that Congress did not speak directly to the

definition of the 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, the EPA notes that it is apparent that

Congress meant for some aspects of the nonattainment SIP to

be measures to be included as contingency measures in the

maintenance plan, and some not. It argues that § 175A does

not indicate which provisions are to be included, and so it had

to turn to other parts of the statute. It states that it turned to

§ 110, which lists the required SIP provisions. Section 110

requires “control measures” as components of a SIP.

42 U.S.C. § 7410(a)(2)(A). The EPA argues that

subparagraph A requires a SIP to include “enforceable

emission limitations and other control measures, means, or

techniques . . . as may be necessary or appropriate to meet the

requirements of [the Act].” Ibid. Subparagraph C requires

the SIP also to include “a program to provide for the

enforcement of the measures described in subparagraph (A),

and regulation of the modification and construction of any

stationary source . . . , including a permit program as required

in parts C and D of this subchapter.” Id. at § 7410(a)(2)(C).

The EPA argues that if the Part D NSR permit program were

among the control measures mentioned in subparagraph A,

the separate reference to it in subparagraph C would be

unnecessary. The EPA concluded that the “measures with

respect to the control of the air pollutant concerned” in

section 175A(d) and the “control measures” in section

110(a)(2)(A) are the same, and do not include the Part D NSR

permit program. 
No. 01-3132 Greenbaum v. Environmental

Protection Agency, et al.

13

Petitioners argue that the EPA’s position is untenable, and

its statutory interpretation tortured. They argue that the term

“measure” is unambiguous in meaning and unquestionably

includes NSR programs, citing Webster’s Collegiate

Dictionary (“a step planned or taken as a means to an end”).

They list several of the NSR program’s pollution controls,

and assert that, therefore, the NSR program is “a step planned

or taken as a means” to the end of controlling and reducing air

pollution, and is therefore a measure. They argue that the

EPA applied an aid to statutory construction to a different

section of the statute to create an ambiguity in § 175A where

none otherwise exists. 

First, we note that there may be no ambiguity, but for a

different reason than the one offered by the Petitioners.

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

nonattainment areas must include NSR programs. Under

42 U.S.C. § 7471, by contrast, SIPs governing attainment

areas must include PSD programs. Thus, although NSR was

(or should have been) in the pre-existing SIP, it would make

little sense for it to be included in the post-attainment SIP, as

the Clean Air Act statutes explicitly states that attainment

area SIPs must include a PSD program. Yet, even if the clear

directive of § 7471 does not establish that “measure”

unambiguously excludes NSR, the potential statutory conflict

is enough to create an ambiguity as to the proper scope of

“measure” in § 175A. 

Before reaching that conclusion, however, we must

determine whether “traditional tools ofstatutoryconstruction”

provide resolution to the ambiguity. Chevron, 467 U.S. at

843 n.9. “The normal rule of statutory construction assumes

that ‘identical words used in different parts of the same act are

intended to have the same meaning.’” Sorenson v. Sec’y of

Treasury, 475 U.S. 851, 860 (1986) (quoting Helvering v.

Stockholms Enskilda Bank, 293 U.S. 84, 87 (1934)).

However, as the Court has also noted, “[l]ike all such

maxims, . . . , this is merely a general assumption, and is not

14 Greenbaum v. Environmental

Protection Agency, et al.

No. 01-3132

always 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 apply, but

if not, the applicability of the rule might be limited. Id. at

489-90 (citing Helvering, 293 U.S. at 87 (“[S]ince most

words admit of different shades of meaning, susceptible of

being expanded or abridged to conform to the sense in which

they are used, the presumption readily yields [when] the

words, though in the same act, are found in . . . dissimilar

connections.”)). As the apparent statutory ambiguity cannot

readily be resolved using traditional tools of statutory

construction, we apply Chevron deference to the agency’s

interpretation. 

The EPA’s interpretation of the word “measure” in § 175A

is reasonable, and we will not substitute our judgment for that

of the federal agency. The “words of a statute must be read

in their context and with a view to their place in the overall

statutory scheme.” Davis v. Mich. Dep’t of Treasury, 489

U.S. 803, 809 (1989). Section 175A(d) requires

implementation of “all measures with respect to the control of

the air pollutant concerned” contained in the nonattainment

SIP. It was entirely permissible, and indeed logical, for the

EPA to look to § 110 to determine the meaning of the word

“measure” in § 175A as § 110 lists the provisions required to

be included in a nonattainment SIP. Petitioners argue this

was done merely to create an ambiguity where one did not

otherwise exist. However, “[t]he meaning – or ambiguity –

of certain words or phrases may only become evident when

placed in context.” Brown & Williamson Tobacco Corp., 529

U.S. at 121 (citing Brown v. Gardner, 513 U.S. 115, 118

(1994) (“Ambiguity is a creature not of definitional

possibilities but of statutory context.”)). 

Likewise, the EPA’s argument that the reference to the Part

D NSR program in subparagraph C of § 110 would be

surplusage if it were among the control measures mentioned

in subparagraph A of § 110 is reasonable. 42 U.S.C.
No. 01-3132 Greenbaum v. Environmental

Protection Agency, et al.

15

§ 7410(a)(2)(A) & (C). Subparagraph C requires a

nonattainment SIP to contain “a program to provide for the

enforcement of the measures described in subparagraph (A),

and regulation of the modification and construction of any

stationary source within the areas covered by the plan . . . .”

42 U.S.C. § 7410(a)(2)(C) (emphasis added). The latter

clause of the sentence refers to the Part D NSR permit

program, while the former refers to the measures described in

subparagraph A. It was not unreasonable for the EPA to

conclude that given this structure of § 110, that Congress

intended that the term “measure” not include the Part D NSR

permit program. 

We also find persuasive the EPA’s argument that the very

nature of the NSR permit program supports its interpretation

that it is not intended to be a contingency measure pursuant to

§ 175A(d). The contingency measures required by § 175A

require immediate emission reductions on existing sources.

The beginning of the paragraph reads: “Each plan revision

submitted under this section shall contain such contingency

provisions as the Administrator deems necessary to assure

that the State will promptly correct any violation of the

standard which occurs after the redesignation of the area as an

attainment area.” 42 U.S.C. § 7505a(d). The NSR program

would have no immediate effect on emissions. It is a

permitting program under which those who want to construct

a new major pollutant source, or modify an existing major

pollutant source, must acquire a permit. 42 U.S.C. § 7503.

The program has no effect on existing sources, which would

be the cause of any violation of the standard. We therefore

defer to the EPA’s reasonable definition of the word

“measure” in § 175A. 

C. The maintenance plan

When a state submits to the EPA a request for

redesignation, § 175A requires that the state submit a SIP

16 Greenbaum v. Environmental

Protection Agency, et al.

No. 01-3132

revision to provide for the maintenance of the NAAQS for at

least ten years after the redesignation. 42 U.S.C. § 7505a(a).

Section 175A(d) provides: 

Each [maintenance plan] submitted under this section

shall contain such contingency provisions as the

Administrator deems necessary to assure that the State

will promptly correct any violation of the standard which

occurs after the redesignation of the area as an attainment

area.

42 U.S.C. § 7505a(d) (emphasis added). The language clearly

indicates that Congress expressly delegated authority to the

EPA to determine what contingency measures are necessary.

We give such determinations by regulation “controlling

weight unless they are arbitrary, capricious, or manifestly

contrary to the statute.” Chevron, 467 U.S. at 844.

Petitioners argue that the EPA’s determination in this case is

all three. We disagree. 

In response to comments regarding the maintenance plan,

the EPA stated that “Ohio’s enforcement program,

commitment of resources, and legal authority are adequate

and assure that measures in the SIP (including maintenance

plan measures) will be implemented.” 65 Fed. Reg. 77,315.

It noted that the Ohio SIP contained contingency measures

that had been approved by the EPA on May 6, 1996. Ibid.

(citing Approval and Promulgation of Implementation Plans;

Ohio, 61 Fed. Reg. 20,139 (May 6, 1996)). When the EPA

approved these contingency measures, the EPA stated that

Ohio’s contingency measures provided “for a reasonable level

of continued progress toward the attainment goal during an

interim period between any prospective determination that the

SIP has failed to . . . provide for timely attainment of the

NAAQS and the additional formal air quality planning

following the determination.” 61 Fed. Reg. at 20,141. 
No. 01-3132 Greenbaum v. Environmental

Protection Agency, et al.

17

4

Section 172(c)(9) reads: 

Such plan shall provide for the implementation of specific

measures to be undertaken if the area fails to make reasonable

further progress, or to attain the national primary ambient air

quality standard by the attainment date applicable under this

part. Such measures shall be included in the plan revision as

contingency measures to take effect in any such case without

further action by the State or the Administrator.

42 U.S.C. § 7502(c)(9).

In its rulemaking redesignating Cleveland as an attainment

area, the EPA stated that “[s]ection 175A(d) does not dictate

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 will promptly correct

any future violation.” 65 Fed. Reg. at 77,315. It reasoned

that PM10 is emitted from a variety of sources, and therefore

it could not “reasonably expect maintenance plan contingency

measures by themselves to address all possible future

violations.” Ibid. The EPA also reasoned that it must make

a judgment call as to which types of future violations are most

likely and consider “other factors which help assure that the

State will correct any future violations.” Ibid. The EPA

identified as additional factors “provisions in Ohio’s

regulations that allow the State to impose additional source

controls if violations occur and provisions in the Clean Air

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

It concluded that these contingency measures, approved

May 6, 1996 and adopted pursuant to § 172(c)(9),4 were

adequate to satisfy § 175A(d), and that these “contingency

measures . . . in combination with other factors, assure that

Ohio will promptly correct any future violations in these

areas.” Ibid. 

18 Greenbaum v. Environmental

Protection Agency, et al.

No. 01-3132

Petitioners claim that Ohio’s maintenance plan is woefully

inadequate and they raise a number of objections as to why

the plan does not come close to fulfilling the statutory

requirements. First, they argue that the statute requires that

the contingency measures themselves should be sufficient to

assure correction of a violation, and not just “help” assure a

correction. They add that the statute does not authorize the

EPA to use other measures outside the maintenance plan to

assure these corrections. Second, Petitioners contend that the

EPA has not identified a schedule for implementing the

contingency measures, nor has it identified triggers or specific

indicators that would be used to determine when contingency

measures need to be implemented. In support of this

argument, they cite a September 4, 1992 memorandum to

various EPA air pollution directors from the Director of the

AirQuality Management Division of the EPA, John Calcagni,

entitled Procedures for Processing Requests to Redesignate

Areas to Attainment (the “Calcagni Memorandum”). They

add that the EPA’s assertion that a violation of the NAAQS

is the trigger for implementation of the contingency measures

is not sufficient. Third, they argue that the word “promptly”

in § 175A(d) reflects Congressional intent that the corrective

measures be “immediately available 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 Petitioners,

however, the contingency measures in question would not be

implemented until either the state or the EPA made a

determination that the area has violated the NAAQS. Fourth,

Petitioners allege that the EPA offered no explanation of the

factual bases upon which it made its determination that

Ohio’s maintenance plan was adequate and simply “deemed”

the requirements of § 175A(d) to have been met. 

With respect to Petitioners’ claim that these measures are

insufficient, we agree with the EPA’s conclusion that Ohio’s

maintenance plan is in fact sufficient to fulfill the

requirements of § 175A. We find persuasive its reasoning

that it cannot expect Ohio to provide contingency measures
No. 01-3132 Greenbaum v. Environmental

Protection Agency, et al.

19

that are capable of addressing any imaginable violation from

the mildest to the most severe. The EPA argues that Congress

clearly contemplated a situation in which the federallycontrolled contingency measures contained in the

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 state to revise an approved SIP if it

finds that it has become substantially inadequate to maintain

the NAAQS. Moreover, § 175A allows the EPA, in its

discretion, to require the state to submit a revised SIP should

the area fail to maintain the NAAQS.

“[A]ny final determination regarding the adequacy of a

maintenance plan will 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

Memorandum, at 8). Ohio’s SIP contains contingency

measures approved May 6, 1996. The EPA deemed these

measures as sufficient to assure that Ohio would reach

attainment, which it did, and sufficient to assure that it would

promptly correct any violation of the standard after

redesignation. The EPA stated that other factors will help

assure prompt correction. Petitioners argue that the

contingency measures themselves are not sufficient to do so

and argue that under the EPA’s logic, a state could submit a

plan with no contingency provisions and merely assert that

other measures will correct the violation. However, the EPA

did not do so in the present case. The contingency measures

submitted clearly contemplate future violations, along with

the possibility that Ohio could again be subject to strict

regulations.

The EPA is correct when it states that no maintenance plan

could, or should be expected to, cover every possible

contingency. Any maintenance plan included in a SIP could

never “assure that the State will promptly correct any

violation of the standard.” Violations could be of any degree

20 Greenbaum v. Environmental

Protection Agency, et al.

No. 01-3132

of severity, and caused by any number of sources of

particulate matter. The EPA argues that it had to judge which

types of violations were most likely, and judged Ohio’s

maintenance plan in that context. The Administrator has been

granted broad discretion by Congress in determining what is

“necessary to assure” prompt correction. The EPA has

approved Ohio’s maintenance plan, concluding that its

contingency measures provide a means to deal with likely

violations. We do not believe that this determination is

“arbitrary, capricious, or manifestly contrary to the statute.”

Chevron, 467 U.S. at 844. 

As the EPA notes, the other factors (such as Ohio’s general

environmental regulations) it included in its December 11,

2000 rulemaking are available should the contingency

measures by themselves fail to correct the violation.

Petitioners respond that if Congress had thought that the

state’s general regulatory authorities would be adequate to

assure the prompt correction of a violation, it would not have

required a maintenance plan to contain specific contingency

measures that a state is obligated to implement in the event of

a violation. However, the EPA stated that the contingency

measures themselves are sufficient to “help assure that the

State will promptly correct any future violation,” and that the

other factors in addition to the contingency measures will

“assure that Ohio will promptly correct any future violations

in these areas.” 65 Fed. Reg. at 77,315. Therefore, the EPA

stated that the contingency measures themselves were

sufficient to “help assure” prompt correction, and that the

additional factors also were available to “help assure” prompt

correction. Again, without knowledge of the severity or

source of a NAAQS violation, any combination of

contingency measures cannot assure prompt correction to an

absolute certainty, and can only be promised to “help assure”

prompt correction. 

The quarrel between whether the state’s measures will

“assure” or only “help assure” corrections of violations is
No. 01-3132 Greenbaum v. Environmental

Protection Agency, et al.

21

largely a semantic one. The approved maintenance plan is

based, in part, on measures that Ohio has committed to

implement in case of need, and that, ultimately, the EPA can

compel. On that state of facts, whether the EPA’s own

measures are said to “assure” or only “help assure,” the

essential fact is that the remedial measures will occur in case

of need, and that the EPA has deemed those measures

(collectively) as adequate to remedy any future violation.

Petitioners’ second argument wasthat themaintenance plan

lacked both schedules for implementing the contingency

measures and triggers or other specific indicators that would

be used to determine if the contingency measures needed to

be implemented. The EPA disagrees. The EPA explains that

Ohio added contingency measures to regulate industrial

sources in Cleveland because such sources were the principal

cause of particulate matter nonattainment. 61 Fed. Reg. at

20,140; Approval and Promulgation ofImplementation Plans;

Ohio, 58 Fed. Reg. 41,218 (Aug. 3, 1993). It has stated that,

in the event of a violation of the NAAQS, five industrial

source facilities in the Cleveland area are required to reduce

particulate 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 states that, once a

violation of the NAAQS has occurred, the principal

contributors of particulate matter are required to reduce

emissions, and that this is sufficient. 

With this background in mind, we turn to the Petitioners’

specific allegations about how and when these measures

would take effect in the event of a violation. With respect to

triggers, the EPA correctly argues that monitored violations

of the NAAQS can be possible triggers. Calcagni Memo at

12. The contingency measures may be triggered upon

notification by the Ohio EPA or the United States EPA of a

determination by either agency that a violation has occurred.

With respect to schedules, the EPA correctly explains that the

contingency measures were initially developed pursuant to

22 Greenbaum v. Environmental

Protection Agency, et al.

No. 01-3132

§ 172(c)(9), which requires that the measures take effect

without further action by the State or the EPA, which the EPA

interprets to mean “that no further rulemaking activities by

the State or EPA would be needed to implement the

contingency measures.” State Implementation Plans; General

Preamble for the Implementation of Title I of the Clean Air

Act Amendments of 1990, 57 Fed. Reg. 13,498, 13,512

(April 16, 1992). The Calcagni Memorandum also states that

“[f]or the purposes of section 175A, a State is not required to

have fully adopted contingency measures that will take effect

without further action by the State in order for the

maintenance plan to be approved.” 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

EPA’sinterpretation of what “promptly” means is reasonable.

It is unclear how petitioners expect 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 make this determination

expeditiously. However, there is no indication in the record

that the EPA or the Ohio EPA will not make such a

determination when justified by its data collection and

evaluation. 

Finally, Petitioners argue that the EPA did not meet

minimal administrative law requirements by failing to base its

determination upon facts in the administrative record. They

argue that the EPA did not provide any explanation for its

action. However, in the December 11, 2000 rulemaking, the

EPA referenced the May 6, 1996 rulemaking, which approved

the contingency measures contained in Ohio’s SIP. The

May 6 rulemaking stated that the implementation of the

contingency measures contained within “would result in an

emissions reduction of 34 pounds of PM per hour in

Cuyahoga County.” 61 Fed. Reg. at 20,139. In the
No. 01-3132 Greenbaum v. Environmental

Protection Agency, et al.

23

rulemaking approving redesignation, the EPA stated that “[a]

variety of sources emit PM10, so nonattainment can occur for

a variety of reasons.” 65 Fed. Reg. at 77,315.

We must “‘consider whether the decision was based on a

consideration of the relevant factors and whether there has

been a clear error of judgment . . . . Although this inquiry into

the facts is to be searching and careful, the ultimate standard

of review is a narrow one. The court is not empowered to

substitute its judgment for that of the agency.’” Bowman

Transp., Inc. v. Arkansas-Best Freight Sys., Inc., 419 U.S.

281, 285 (1974) (quoting Citizens to Preserve Overton Park

v. Volpe, 401 U.S. 402, 416 (1971)). The agency must

articulate a “rational connection between 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 the agency's action that the agency itself

has not given, we will uphold a decision of less than ideal

clarity if the agency's path may reasonably be discerned.

Bowman Transp., Inc., 419 U.S. at 286 (internal citation

omitted). 

Although the EPA’s rationale is less than completely clear

in its December 11, 2000 rulemaking, its “path may

reasonably be discerned.” Ibid. The May 6, 1996

rulemaking, adopting the contingency measures contained in

Ohio’s SIP, and clearly referenced in the December 11, 2000

rulemaking, extensivelydiscusses the Ohio EPA’s interaction

with the “principal facilities in the PM nonattainment areas,”

61 Fed. Reg. at 20,140, and Ohio’s success in attaining

sufficient reductions from several of those sources in the

event that the area failed to “timely attain the applicable

NAAQS.” Ibid. While it is true that the earlier rulemaking

was somewhat limited in scope in that it focused primarily on

particular industries, the EPA had previously determined that

these industrial sources were primarily responsible for the

excessive particulate emissions in Cleveland. In addition, and

as noted above, the contingency measures require these major

24 Greenbaum v. Environmental

Protection Agency, et al.

No. 01-3132

sources to reduce particulate emissions should a future

violation occur. Therefore, we do not believe that the EPA

has committed 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, we uphold the EPA’s

redesignation of Cuyahoga County, Ohio from nonattainment

to attainment for particulate matter.