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Ober v. EPA


Phoenix residents adversely affected by excessive levels of airborne particulates petitioned for review of a final decision of the Environmental Protection Agency (EPA) under the Clean Air Act (CAA). EPA had approved Arizona’s State Implementation Plan (SIP) for the control of airborne particulate matter in Phoenix. The petitioners alleged that EPA approval violated the CAA and the Administrative Procedure Act (APA), because the SIP failed to address a number of substantive and procedural requirements. The Ninth Circuit agreed with a number of the issues raised by the petitioners, and remanded to the EPA to address deficiencies in the SIP.

When EPA promulgated the National Ambient Air Quality Standards (NAAQS), it identified particulate matter under ten microns in size (PM-10) as a criteria pollutant to be regulated under the CAA. For PM-10, EPA adopted an annual NAAQS and a 24-hour NAAQS. EPA initially designated Phoenix a moderate nonattainment area for PM-10. If a SIP demonstrates the impracticality of attainment of a criteria pollutant by the statutory deadline, the area will be reclassified as a serious nonattainment area. The CAA is silent as to whether a SIP must independently address the two NAAQS for PM-10 to demonstrate impracticality of attaining one of the NAAQS. EPA interpreted the CAA to require an area to attain both the annual and 24-hour NAAQS, by the statutory deadline, to prevent being reclassified as a serious nonattainment area.

The Ninth Circuit accepted EPA’s interpretation as a permissible construction of the CAA. However, the court disagreed with EPA’s argument that Arizona’s SIP did not need to separately address the 24-hour NAAQS because Phoenix would be reclassified as a serious nonattainment area for PM-10 unless the SIP provided for attainment of both NAAQS. The court held that Phoenix’s inability to attain the annual PM-10 standard did not relieve Arizona of the duty to independently examine the 24-hour standard in the SIP.

The Ninth Circuit emphasized that EPA had different purposes when it promulgated each NAAQS for PM-10. The 24-hour standard protects against acute short-term exposures to high PM-10 levels, while the annual standard protects against chronic long-term degradation of lung function. Violations of the 24-hour standard are generally caused by local sources, while violations of the annual standard can be caused by diverse, dispersed sources. Also, control measures differ in effectiveness for the two standards. On remand to EPA, the Ninth Circuit directed EPA to require the state to independently demonstrate in the SIP the implementation of “reasonably available control measures” targeted at the 24-hour standard, attainment of or impracticality of attainment of the 24-hour standard, and “reasonable further progress” towards attainment of the 24-hour standard.

The petitioners also argued that transportation control measures were presumptively “reasonable available control measures” pursuant to Delaney v. EPA1 (decision based upon then current EPA policy). The Ninth Circuit noted that Delaney was decided before the 1990 Amendments to the CAA, after which EPA had discretion to alter its policy on transportation control measures. The court held that EPA’s current policy, allowing states to consider local circumstances when determining if transportation control measures are reasonably available, was a reasonable interpretation of the CAA. The Ninth Circuit also deferred to EPA’s determination that the SIP provided adequate assurances by the state for implementation of the plan.

The petitioners alleged a number of violations of the notice and comment provisions of the APA. After the close of the public comment period for EPA’s proposed approval of the SIP, Arizona sent approximately 300 pages of documents to EPA justifying the state’s rejection of specific control measures. EPA requested these documents and clearly relied on them in approving the SIP. While an agency may use supplementary data unavailable during the notice and comment period if there is no showing of prejudice, the court determined that in this case the petitioners were prejudiced because of the nature and extent of the additional information.

The Ninth Circuit also held that EPA failed to follow procedure when it substituted its own finding of “reasonable further progress” for that determined by the state in the SIP. EPA’s inclusion of control measures for PM-10 taken from the approved carbon monoxide and ozone SIPs did not violate the APA because adequate notice was given that these control measures would also reduce PM-10 emissions. On remand, the court directed EPA to provide for an opportunity for public comment on the post-comment period justification for rejecting control measures, and on the demonstration of “reasonable further progress.”

1898 F.2d 687 (9th Cir. 1990), cert. denied, 498 U.S. 998 (1990).

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