# Petition for Writ of Certiorari — Ohio v. Thomas > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385018_1479%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition for Writ of Certiorari - **Published:** January 1, 1986 - **Citation:** 476 U.S. 1169 ## Text Supreme Court, U> FILED g5-1378 | FEB 12 1986 CASE NO. . _ SPANIOL, JR. anagil SLERK Inu Che Supreme Court of the United States OCTOBER TERM, 1985 STATE OF OHIO, Petitioner, v. WILLIAM D. RUCKELSHAUS, Administrator, United States Environmental Protection Agency, Respondent. ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT PETITION FOR WRIT OF CERTIORARI ANTHONY J. CELEBREZZE, JR. Attorney General of Ohio MARTHA E. HORVITZ Assistant Attorney General State Office Tower 30 East Broad Street, 17th Floor Columbus, Ohio 43266-0414 (614) 466-2766 Counsei of Record for Petitioner QUESTIONS PRESENTED FOR REVIEW ‘. Whether the Clean Air Act authorizes the United States Environmental Protection Agency to disapprove a state attainment status designation supported by adequate ambient air quality monitoring data for the reason that emissions from sources in the area to be redesignated as in attainment with national ambient air quality standards may potentially impact upon another, nonattainment area, where the administrative record contains no monitoring, modeling, or other evidence to support disapproval, and the Environmental Protection Agency admits that the area to be redesignated is in fact in attainment with the standard. 7: Whether the court of appea!s employed the proper standard of review in deferring to the Environmental Protec- tion Agency's view that nonattainment designations may be based on the location of sources of air emissions rather than on ambient air quality. QUESTIONS PRESENTED FOR REVIEW TABLE OF CONTENTS OPINIONS BELOW JURISDICTION STATUTORY PROVISIONS INVOLVED STATEMENT OF THE CASE REASONS FOR GRANTING THE PETITION TABLE OF CONTENTS THE DECISION OF THE SIXTH CIRCUIT CON- FLICTS WITH A RECENT DECISION OF THE SEVENTH CIRCUIT ON THE SAME ISSUE AND NEARLY IDENTICAL FACTS, RESULTING IN A DICHOTOMY IN PROCEDURAL SAFEGUARDS PROVIDED TO THE STATES AND OTHERS AFFECTED BY ACTIONS OF THE UNITED STATES ENVIRONMENTAL PROTECTION AGENCY WHICH SHOULD BE RESOLVED BY THIS COURT.......... A. A Reviewing Court ls Obligated To Conduct A Thorough, In-Depth Review Of Agency Action To Ensure That Such Action Was Not Arbitrary, Capricious, An Abuse Of Discretion, Or Other- wise Not In Accordance With Law............. B. Although EPA's Actions In Illinois And Ohio Were The Same, The Seventh Circuit Applying The Appropriate Standard Of Review Re- manded EPA's Action, While The Sixth Circuit Without Engaging In A Thorough Review, Af- Wrmed SPAS AGW . iss ca bens canktciesceeuns THE DECISION OF THE SIXTH CIRCUIT IS CON- TRARY TO THE INTENT OF CONGRESS EX- PRESSED IN THE CLEAN AIR ACT AND PRESENTS AN IMPORTANT QUESTION OF FEDERAL LAW S84 688A ESE 6 EOE ES RERERAERSEEEEREREEREREEAPSP ERR EAR awa Yea Se eS Se SCHOHRAA EAE EESE SD ESE CRAAAD SE E82 OEE S OS EBELEBESEESE SEER VER eee eranataere eS De Tek SS eee e466 ee OOO OB OR HOOK EOE HODES OE S.S SD $8 06.84 2% 6.4666 8.644 8-4 .4°4 8:6 6 8. 8-8 eee eee eeeenee TABLE OF CONTENTS cont'd Page WHICH SHOULD BE DECIDED BY THIS COURT, WHETHER THE STATES OR THE UNITED STATES ENVIRONMENTAL PROTECTION AGENCY ARE PRIMARILY RESPONSIBLE FOR AIR POLLUTION rere Seb 6 ew hb aback ssh ei eases 11 A. The Clean Air Act Clearly And Unambiguously Describes The Criteria For Determining Attainment/Nonattainment Areas ............. 11 B. Congress Clearly Expressed Its Intent In The Clean Air Act That The States Are Primarily Responsible For Air Pollution Control......... 13 Neen eee eye basenacebaces 16 ge 18 APPENDIX A State of Ohio v. Ruckelshaus, pe a A-1 APPENDIX B 49 Fed. Reg. 24124 (June 12, 1984) ............. A-15 APPENDIX C lilinois State Chamber of Commerce v. United States Environmental Protection Agency, 775 F.2d 1141 (7th Cir. 1985) ........... A-29 APPENDIX D ES A-64 iv TABLE OF AUTHORITIES Page Cases: Chevron, U.S.A., Inc. v. Natural Resources Defense Council, Inc., __U.S.____ , 104 ee Sk Sh We ead tie Cua dewacnennacceee 11 Citizens To Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402, 416, 91 S. Ct. 814, 28 A: en ee EE daa cca cchaceasawink dacs eehe>s 6 lliinois State Chamber of Commerce v. United States Environmental Protection Agency, re, te bi fs, Le Renan i industrial Union Department v. American Petroleum Institute, 448 U.S. 607, 100 S. Ct. 2844, 65 L. Ed. 2d 1010 (1980)............... 10 Motor Vehicle Mfrs. Ass'n v. State Farm Mutual, 463 U.S. 29, 103 S. Ct. 2856, OU Ge ke IS ob kek acu 54 600cacenaans 6, 10 State of Ohio v. Ruckelshaus, 176 F. 28 1535 Ge Civ. TORS)... wc cc ccc cece 1,12 Train v. Natural Resources Defense Council Inc., 421 U.S. 60, 86-87, 95 S. Ct. 1470, TH, Ge U, Ge Be Ft CUTE nace cccccnccsciccuc’ 13 Union Electric Co. v. EPA, 427 U.S. 246, 266,96 S. Ct. 2518, aoon, 40 L. Be. BG 474 CIBTE) oo vw ccc cceccess 13, 15 Western Oil and Gas Association v. United States Environmental Protection Agency, Fe Os ee ee EE ok RA SRA Se 8Gee ce weceésce 15 TABLE OF AUTHORITIES cont'd Page Statutes: ee SN CU ox cb cacanesicacacivcceseseiewceu ts 6 ug ee rr rs” 1 ME ULEAD. 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Reg. 36275 (August 10, 1983)................0.. 2 49 Fed. Reg. 24124 (June 12, 1984)................- 1,23 OPINIONS BELOW The opinion of the United States Court of Appeals for the Sixth Circuit in State of Ohio v. Ruckelsnaus, is reported at 776 F.2d 1333 (6th Cir. 1985), and is set out for the Court's convenience in Appendix A. The final rulemaking action by the United States Environmental Protection Agency at issue before the Sixth Circuit is published at 49 Fed. Reg. 24124 (June 12, 1984), and is included for the Court's convenience in Appendix 8. JURISDICTION The judgment of the Sixth Circuit was entered on November 15, 1985. The jurisdiction of this Court to review that judgment is invoked pursuant to 28 U.S.C. Section 1254(1). STATUTORY PROVISIONS INVOLVED This case involves the interpretation of provisions of the Clean Air Act as amended, 42 U.S.C. Section 7401 et seq., concerning the definition of attainment and nonattainment areas, 42 U.S.C. Sections 7407(d) and 7501(2), and their relationship to the authority conferred by Congress on the states as expressed in the Clean Air Act, 42 U.S.C. Sections 7401(a)(3), 7407(a), and 7410. Relevant provisions of the Clean Air Act as amended in 1977 are set out in Appendix D. STATEMENT OF THE CASE Ohio petitions this Court from the decision of the United States Court of Appeals for the Sixth Circuit denying Ohio's petition for review ofthe final action of the Administrator of the United States Environmental Protection Agency (hereinafter “EPA”) disapproving the request of Ohio to redesignate Lorain County from nonattainment to attainment for the national ambient air quality standard for ozone. Ohio submitted to EPA on November 29, 1982 a request to revise the attainment status designations with respect to the national ambient air quality standard (“NAAQS”) for ozone under Section 107(d) of the Clean Air Act, 42 U.S.C. Section 7407(d), for forty-six counties from nonattainment to attain- ment. The request, which was made pursuant to Section 107(d)(5) of the Act, 42 U.S.C. Section 7407(d)(5), was ac- companied by ozone ambient air quality monitoring data. Among the counties for which Ohio requested redesignation were Lorain, Medina, Lake and Geauga, ali of which, along with Cuyahoga County, are considered part of the Cleveland urbanized area. EPA approved the redesignation of Medina County and disapproved the redesignation of Lorain, Lake, and Geauga Counties. 49 Fed. Reg. 24124 (June 12, 1984). The ambient air quality monitoring data submitted by Ohio with its redesignation request covered the years 1980, 1981, and 1982, and showed no violations of the ozone standard in either Lorain or Medina Counties. 48 Fed. Reg. 36276 (August 10, 1983). Lorain County is west of the City of Cleveland, which is located in Cuyahoga County, and west of Medina County. Medina County is south, southwest of Cuya- hoga County. Summit County is also located south of Cuya- hoga County and to the east of Medina County. Lake County is located to the northeast of Cuyahoga County. Lorain, Cuya- hoga, and Lake Counties are all bordered on the north by Lake Erie. EPA determined that based on meteorological data, the prevailing winds in Ohio in the summer are from the south through the west. Thus, Cuyahoga County is upwind of Lake County, and Lorain, Medina, and Summit Counties are all upwind of Cuyatioga and Lake Counties. Despite the fact that the ambient air monitoring data showed no violations of the ozone standard in Lorain County and the acknowledgment of this by EPA, 48 Fed. Reg. 36276 (August 10, 1983), EPA proposed, 48 Fed. Reg. 36275 (August 10, 1983), and then took final action to disapprove the redesignation of Lorain County as attainment for ozone. 49 Fed. Reg. 24124 (June 12, 1984). The disapproval was based on EPA's assumption that volatile organic compound (VOC) emissions from sources in Lorain County would impact the downwind Cieveland urban area. 48 Fed. Reg. 36276 (August 10, 1983); 49 Fed. Reg. 24125 (June 12, 1984). EPA raised no question as to the adequacy of Ohio's monitoring data from Lorain County, and in fact conceded that based on the monitoring data Lorain County is in attainment of the ozone standard. The record reflected no air quality modeling or other studies performed by EPA to verify its assumption that VOC emissions in Lorain County are causing or contributing to ozone violations in the downwind Cleveland urban area. Rather EPA admitted that its decision on Lorain County was based on monitoring in Chicago, St. Louis, Los Angeles, and Detroit, instead of monitoring in Lorain County. 49 Fed. Reg. 24125 (June 12, 1984). The rulemaking record contained no explanation of why these monitoring data should be deemed applicable to the Cleveland area. Among the studies cited by EPA there were differences in predomin- ant wind direction during times of elevated ozone, topography, orientation of water bodies to the land-based sources and receptors, and distance and direction of maximum ozone concentrations from the hydrocarbon sources. None of the study situations parallels the Cleveland urbanized area situa- tion. EPA's final rulemaking also contained a statement in- dicating that EPA considered Lorain and Medina Counties, both of which are part of the Cleveland urbanized area, to be in like situations, justifying the deniai of the redesignation of both counties. 49 Fed. Reg. 24125 (June 12, 1984). Yet Medina County's redesignation was approved. 49 Fed. Reg. 24124 (June 12, 1984). Medina County is located generally upwind of the majority of the Cleveland area, as is Summit County. Data in the rulemaking record indicate several violations of the national ambient air quality standard for ozone in Summit County during the period 1980-1982. However, Summit County is not part of the Cleveland urbanized area, and the potential impact of VOC emissions from sources in Summit County on the downwind Cleveland urbanized area was not considered by EPA when it acted on Ohio's request to redesignate Lorain County to attainment for ozone.’ Ohio petitioned the Sixth Circuit pursuant to Section 307(b)(1) of the Ciean Air Act, 42 U.S.C. Section 7607(b)(1), for review of EPA's denial of its redesignation request for Lorain County, arguing that EPA's denial of Ohio's attainment status redesignation request for Lorain County on the grounds that emissions from Lorain County may potentially impact upon another, nonattainment area was not authorized by the Clean Air Act, and that EPA's denial of Ohio's request to redesignate Lorain County as attainment was not supported by the record, and was arbitrary, capricious, and an abuse of discretion. The Sixth Circuit concluded that EPA acted reasonably under the Clean Air Act, and did not act arbitrarily and capriciously in denying Ohio's redesignation request. It, therefore, denied Ohio's petition for review. At the same time that the Sixth Circuit was considering Ohio's petition for review, the Seventh Circuit had before it a petition filed by the State of Illinois and the Illinois State Chamber of Commerce to review a final action of EPA denying Illinois’ request to redesignate two counties near Chicago as in attainment with the national ambient air quality standard for ’ Ace wding to the data contained in EPA’s technical support documents, Cuyahoga County was meeting the ozone NAAQS during the period 1980 - 1982. Summit County, in which the City of Akron is located, had several violations of the ozone standard during this period, and Lake County had a minima! violation of the ozone standard during this period. Since the monitoring data for Lorain County, which is located directly west of Cuyahoga and Medina Counties, showed attainment with the ozone NAAQS, and monitoring in Cuyanoga and Medina Counties also showed attainment with the ozone NAAQS, obviously emissions from Lorain County were not adversely impacting Cuyahoga and Medina Counties. Since Summit County is located more directly upwind of Lake County than is Lorain County, it would have beer much more logical for EPA to assume that it was VOC emissions from Summit County, which is not in attainment with the ozone NAAQS, that are responsible for ozone problems in Lake County, rather than emissions from Lorain County. However, because Summit County is not considered to be part of the Cleveland urban area EPA ignored the possibility that sources there may be impacting the downwind Cleveland urban area. ozone. Illinois State Chamber of Commerce v. United States Environmental Protection Agency, 775 F.2d 1141 (7th Cir. 1985). (This decision is included as Appendix C.) Although EPA had previously granted a request by Illinois to redesig- nate two other counties upwind of Chicago as attainment, it denied this particular redesignation request on the same grounds that it had denied Ohio’s redesignation request.? Upon review, the Seventh Circuit concluded that EPA had not provided a sufficient reasoned analysis of its action and that its action was, therefore, arbitrary and incapable of rational review in the court. /d. at 1147. EPA’s action was remanded for reconsideration and Clarification. /d. at 1151. REASONS FOR GRANTING THE PETITION This case presents an opportunity for this Court to resolve a clear conflict between the decisions of two federal courts of appeals. The conflicting determinations reflect different standards of review employed by the two courts in reviewing virtually identical actions by EPA. Thus, it is necessary for this Court to define the appropriate standard of review and the extent to which a reviewing court should defer to EPA’s interpretation of the Clean Air Actin this type of case. Additionally, this case presents an opportunity for this Court to consider a question which has not been addressed by it, but which is of great importance to the states. That question is whether EPA has authority to deny a state's request to redesignate an area, which has been shown by adequate ambient air quality monitoring data to be in com- pliance with national ambient air quality standards, as in attainment with national ambient air quality standards, partic- ularly in light of the congressionally expressed intent in enacting the Clean Air Act of giving the states primary responsibility for preventing and controlling air pollution. 2|n the illinois case, however, the rulemaking record did include a study of ozone transport performed in the Chicago area. /d. at 1143-1144. As previously noted, the rulemaking record in Ohio's case contained no such study of the Cleveland area. Because a nonattainment designation automatically results in the imposition of additional contro] measures (reasonably available control technology, Clean Air Act Section 172(b)(3), 42 U.S.C. Section 7502(b)(3)), and restrictions on the construc- tion of new and modified sources (offset requirements and compliance with lowest achievable emission rate, Section 173(1), (2), 42 U.S.C. Section 7503(1), (2)), and the threat of the imposition of sanctions if a state fails to submit a control plan for a nonattainment area that EPA finds to be adequate, the resolution of this question is of major importance to the states. I. THE DECISION OF THE SIXTH CIRCUIT CON- FLICTS WITH A RECENT DECISION OF THE SEVENTH CIRCUIT ON THE SAME ISSUE AND NEARLY IDENTICAL FACTS, RESULTING IN A DICHOTOMY IN PROCEDURAL SAFEGUARDS PROVIDED TO THE STATES AND OTHERS AFFECTED BY ACTIONS OF THE UNITED STATES ENVIRONMENTAL PROTECTION AGENCY WHICH SHOULD BE RESOLVED BY THIS COURT. A. A Reviewing Court Is Obligated To Con- duct A Thorough, In-Depth Review Of Agency Action To Ensure That Such Ac- tion Was Not Arbitrary, Capricious, An Abuse Of Discretion, Or Otherwise Not In Accordance With Law. This Court has held that agency action subject to the standard of review set outin the Administrative Procedure Act, 5 U.S.C. Section 706, requires a “searching and careful” inquiry into the facts, and a determination “whether the decision was based on a consideration of the relevant factors and whether there has been a clear error of judgment.” Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402, 416,91S. Ct. 814, 824, 28 L. Ed. 2d 136 (1972). In Motor Vehicle Mfrs. Ass'n v. State Farm Mutual, 463 U.S. 29, 103 S. Ct. 2856, 77 L. Ed. 2d 443 (1983), the Court elaborated further on this standard of review. Normally an agency rule would be arbitrary and Capricous if the agency has relied on factors which Congress has not intended it to consider, entirely failed to consider an important aspect of the pro- blem, offered an explanation for its decision that runs counter to the evidence before the agency, or is so implausible that it could not be ascribed to a difference in view or the product of agency ex- pertise. The reviewing court should not attempt itself to make up for such deficiencies: “We may not supply a reasoned basis for the agency’s action that the agency itself has not given.” SEC v. Chenery Corp., 332 U.S. 194, 196, 67 S. Ct. 1575, 1577, 91 L. Ed. 1995 (1947). 463 U.S. at 43, 103 S. Ct. at 2867. The Court stressed that “an agency must cogently explain why it has exercised its discretion in a given manner.” /d. 463 U.S. at 48, 103 S. Ct. at 2869. In two decisions involving the same issues and almost identical facts, two United States courts of appeal approached the review of a rulemaking action by the EPA differently, resulting in an entirely different outcome. The Seventh Circuit in Illinois State Chamber of Commerce v. United States Environmental Protection Agency, supra, engaged in a thorough, in-depth review of EPA’s action and the rulemaking record, and concluded that EPA had failed to clearly explain the rationale for its action and that its action, therefore, appeared to be arbitrary. The Court remanded the matter to U.S. EPA for further proceedings. The Sixth Circuit, on the other hand, did not carefully and thoroughly review EPA's action. Rather, it deferred to EPA’s interpretation of the statute, failed to carefully consider whether the facts supported EPA’s action, and affirmed. 3 Notably, the Seventh Circuit found EPA's action to be arbitrary even though the rulemaking record in Illinois’ case included a study of ozone transportin the Chicago area which was the subject of the ruiemaking action. The Sixth Circuit, however, found EPA's action not to be arbitrary, even though the rulemaking record in Ohio's case contained no study of the Cleveland area under consideration. EPA is now facing two divergent views on the adequacy of its rulemaking records. The result is that certain states, like Ohio, may be subject to less rational and informed decision- making by EPA. . B. Although EPA’s Actions In lilinois And Ohio Were The Same, The Seventh Circuit Applying The Appro- priate Standard Of Review Remanded EPA’s Ac- tion, While The Sixth Circuit Without Engaging InA Thorough Review, Affirmed EPA’s Action. A quick review of the Sixth Circuit and Seventh Circuit cases establishes that the issues and facts of the two cases are nearly identicai!. Both cases involved a refusal by EPA to approve a State request to redesignate a county or counties as in attainment with the national ambient air quality standard for ozone even though monitoring data in those counties de- monstrated that there were no violations of the NAAQS for ozone. In both cases EPA denied the state’s redesignation request after or concurrently with the approval of a redesigna- tion request for a similarly situated county or counties. In both cases EPA's denial of the redesignation request was based on the same intermixture of theories. The Seventh Circuit found these different theories to be inconsistent with each other and/or with positions previously taken by EPA. The Sixth Circuit failed to recognize that EPA was relying on multiple, inconsistent theories. Thus, the Seventh Circuit found that EPA originally listed attainment/nonattainment designations on a county-by- county basis rather than on an urbanized area basis, but that EPA stated variously in the redesignation denial !Ilinois sought to reverse that a nonattainment area must include an entire urbanized area, and that a nonattainment area must include all sources which contribute to pollution in the area. The court determined that these explanations by EPA were not con- sistent with each other. EPA’s action in denying Ohio’s redesignation request was similarly inconsistent. The attainment/nonattainment designations in Ohio were also originally made on a county- by-county basis. At the same time that EPA denied Ohio's request to redesignate Lorain County as in attainment with the NAAQS for ozone for the expressed reason that Lorain County is part of the Cleveland urbanized area, EPA approved the redesignation of Medina County which is also part of the Cleveland urbanized area. Moreover, EPA’s rulemaking ac- tion contained a paragraph explaining that Lorain and Medina Counties were in a like situation. 49 Fed. Reg. 24125 (June 12, 1984). As in the Illinois case, EPA’s rulemaking action in Ohio also contained language commenting that a nonattainment area should include all emission sources contributing to violations of the NAAQS. /d. Again, however, EPA did not apply this theory consistently since it did not include Medina or Summit Counties in the Cleveland ozone nonattainment area. Nevertheless, the Sixth Circuit failed to identify EPA’s various theories, or failed to recognize the inconsistencies among them. It is apparent that the Sixth Circuit did not perform the careful and probing inquiry into the facts called for by this Court when reviewing agency action. The concurrring opinion is particularly revealing in this respect: | write separately only to bespeak my dissatisfaction with EPA's failure to conduct measurements of the wind-factor effect in the Cleveland area of emis- sions from Lorain County. | find no reasonable explanation for that failure on the part of EPA in this case... My only reservation here is this Jack of proof that would have demonstrated clearly the basis for the EPA action. State of Ohio v. Ruckelshaus, supra at 1341. (Emphasis added). It is apparent that a reviewing court which lamerts the lack of proof to form the basis for an agency action cannot have concluded that the agency “articulated a satisfactory explana- tion for its action including a ‘rational connection between 10 the facts found and the choice made. .. .” Motor Vehicle Mfrs. Ass'n v. State Farm Mutual, supra, 463 U.S. at 43, 103 S. Ct. at 2866-2867. Clearly the Sixth Circuit did not apply the ap- propriate standard of review in reviewing EPA’s action in this case. EPA's justification for its action in this case bears a striking similarity to the grounds cited by the Occupe*ional Safety and Health Administration (“OSHA”) for promulgating regulations limiting Occupational exposure to benzene. In industrial Union Department v. American Petroleum Institute, 448 U.S. 607, 100 S. Ct. 2844, 65 L. Ed. 2d 1010 (1980), this Court struck down these regulations which were based upon an OSHA policy and a series of assumptions, id., 448 U.S. at 634-635, 100 S. Ct. at 2860, developed from OSHA's interpre- tation of the statute, which the Court rejected. /d., 448 U.S. at 651, 100 S. Ct. at 2868. Similarly, EPA’s disapproval! of Ohio's request to redesignate Lorain County is based on EPA’s policies that ai! portions of an urbanized area must be designated as nonattainment if any of the urbanized area is nonattainmeni, and/or that all emission sources must be included in anonattainment area. These policies are based on assumptions that emissions from sources in clean-air coun- ties will adversely affect downwind counties. However, this policy and these assumptions were notarrived atthrough considera- tion of factors actually existing in the Cleveland area. More- over, EPA’s policy and assumptions were developed from its interpretation of the Clean Air Act that nonattainment designa- tions may be based on the location of air emission sources rather than on ambient air quality. !n /ndustrial Union Depart- ment, this Court recognized the inconsistencies in OSHA’s position, the overly broad nature of OSHA's interpretation of the statute, and the impropriety of relying on assumptions in the absence of definitive proof. EPA’s action in denying Ohio's redesignation request for Lorain County suffers from the same fatal defects. The Sixth Circuit, however, did not sufficiently probe the record to identify these problems with EPA’s action. 11 ll. THE DECISION OF THE SIXTH CIRCUIT IS CON- TRARY TO THE INTENT OF CONGRESS EX- PRESSED IN THE CLEAN AIR ACT AND PRE- SENTS AN IMPORTANT QUESTION OF FEDERAL LAW WHICH SHOULD BE DECIDED BY THIS COURT, WHETHER THE STATES OR THE UNITED STATES ENVIRONMENTAL PROTECTION AGEN- CY ARE PRIMARILY RESPONSIBLE FOR AIR POLLUTION CONTROL. In Chevron, U.S.A., Inc. v. Natural Resources Defense Council, Inc., __U.S.___, 104 S. Ct. 2778 (1984), this Court explained the examination which must be made by a court which is reviewing an agency’s construction of a statute it administers. lf Congress has spoken directly to the question at issue, then the agency and the court are required to give effect to the congressionally expressed intent. If, on the other hand, the congressional intent is ambiguous or not expressed, then the court must determine if the agency’s construction of the statute is permissible. The Sixth Circuit incorrectly concluded that the Clean Air Act was silent or ambiguous as to the precise question at issue, whether EPA can deny a state's request to redesignate a county whose air quality meets the national ambient air quality standards. The court, therefore, deferred to EPA’s interpretation of the statute. The result is contrary to the clearly expressed intent of Congress in enacting the Clean Air Act. A. The Clean Air Act Clearly And Unambiguously Describes The Criteria For Determining Attainment/ Nonattainment Areas. Section 107(d)(1) of the Clean Air Act, 42 U.S.C. Section 7407(d)(1), requires states to identify .. . those air quality control regions, or portions thereof,... which... (A) do not meeta national primary ambient air quality standard for any air pollutant other than sulfur dioxide or particuiate matter; (E) have ambient air quality levels better than any national primary or secondary air quality stan- dard other than for sulfur dioxide or particulate matter. ... (Emphasis added). It is abundantly clear that Section 107(d), 42 U.S.C. Section 7407(d), attainment status designations are concerned only with the actua! ambient air quality in an area, not with the location of air pollution sources which may impact ambient air quality in another area. This conclusion is supported by the definition of “nonattainment area” in Section 171(2), 42 U.S.C. Section 7501(2): The term “nonattainment area” means, for any air pollutant an area which is shown by monitored data or which is calculated by air quality modeling (or other methods determined by the Administrator to be reliable) to exceed any national ambient air quality standard for such pollutant. ... This definition also contains no reference to the location of air pollution sources. Clearly, nonattainment areas are to be determined solely on the basis of the ambient air quality in the area. Redesignations are to be based on the same considera- tions. Section 107(d)(5), 42 U.S.C. Section: 7407(d)(5).4 * The Sixth Circuit incorrectly stated that redesignations are requested pursuant to Section 107(e)(1), 42 U.S.C. Section 7407(e)(1), State of Ohio v. Ruckelshaus, supra at 1336, 1339, and that no standards are provided in that section to govern EPA's approval or disapproval of redesignation requests. /d. at 1339. The court was apparently confused. Section 107(e)(1), 42 U.S.C. Section 7407(e)(1), refers to redesignations of air quality control regions. Air quality control regions are de- signated pursuant to Sections 107(b), and (c), 42 U.S.C. Sections 7407(b) and (c). Attainment and nonattainment designations pursuant to Section 107(d), 42 US.C. Section 7407(d), are not dependent upon air quality control region Nevertheless, the Sixth Circuit concluded thatthe statute was notclear. It further decided that EPA’s interpretation of the statute, which adds consideration of the location of air pollution sources which may potentially impact a nonattain- ment area, even though the area where the sources are lccated is in compliance with national ambient air quality standards, as a determinative factor in EPA’s approval or disapprovai of redesignation requests, was a permissible construction of the Clean Air Act. The result of this decision is to defeat the will of Congress. B. Congress Clearly Expressed Its Intent in The Clean Air Act That The States Are Primarily Responsible For Air Pollution Control. In Section 101(a)(3) of the Clean Air Act, 42 U.S.C. Section 7401(a)(3), Congress finds “that the prevention and control of air pollution atits source is the primary responsibility of States and local governments.” The theme that the states are primarily responsible for air quality is repeated in Section 107(a), 42 U.S.C. Section 7407(a), which states: “Each State shall nave the primary responsibility for assuring air quality within the entire geographic area comprising such State by submitting an implementation plan for such State...” This Court has observed that under the Clean Air Act, “[s]o long as the national standards are met, the State may select whatever mix of control devices it desires.” Union Electric Co. v. E.P.A., 427 U.S. 246, 266, 96 S. Ct. 2518, 2530, 49 L. Ed. 2d 474 (1976). See also, Train v. Natural Resources Defense Council, Inc., 421 U.S. 60, 86-87, 95S. Ct. 1470, 1485, 43 L. Ed. 2d 731 (1975). States are required by Section 110 of the Clean Air Act, 42 U.S.C. Section 7410, to develop State Implementation Plans (“SIPs”) which provide for achievement and maintenance of designations, and attainment status designations may be changed without any changes to or redesignations of air quality contro! regions. Section 107(d)(5), 42 U.S.C. Section 7407(d)(5), specifically provides that redesignations of attainment status are to be made on the same basis as the original attainment status designations. 14 NAAQS. For areas which are designated as “nonattainment” for agiven poilutant, Part D of the Act requires a SIP to include implementation of stringent control measures to assure air quality improvement. Sections 171-178, 42 U.S.C. Sections 7501-7508. These are commonly referred to as “Part D SIPs”. To ensure that states promptly prepare and implement their Part D SIPs, Congress included several onerous sanctions to punish the states. Among these are a ban on construction or modification of major stationary sources (Section 110(a)(2)(I), 42 U.S.C. Section 7410(a)(2)(I)), withholding of federal high- way, transportation and air quality grants (Section 176(a) and (b), 42 U.S.C. Section 7506(a) and (b)), and withholding of sewage treatment construction grants (Section 316(b), 42 U.S.C. Section 7616(b)). These sanctions apply to nonattain- ment areas for which the state fails to submit an adequate Part D SIP. The SIP is the mechanism by which a state determines which controls are the most efficient and effective means of improving ambient air quality. In preparing the SIP for the Cleveland urbanized area, Ohio must look at the sources in and their impacts on all five counties constituting the urban- ized area, including sources in attainment areas. Ohio must then determine the most efficient and effective means of reducing emissions and thus improving air quality throughout the urbanized area. Those controls which, by iaw, are mandatory for non- attainment areas (e.g., vehicle emission contro! inspection and maintenance programs, Section 172(b)(11), 42 U.S.C. Section 7502(b)(11), reasonably available contro! technology (RACT), Section 172(b){3), 42 U.S.C. Section 7502(b)(3), lowest achievabie emission rate, Section 173(2), 42 U.S.C. Section 7503(2)), may or may not be the most efficient and effective means of controlling emissions which contribute to the formation of ozone. For example, imposition of a vehicle inspection and maintenance program in an area where stationary, rather than mobile, sources cause the bulk of the problem would be a very expensive way to bring about very littie air quality improvement, and may exhaust limited re- sources which would be better spent ensuring that stationary sources are controlled. The SIP—not the attainment status designation—is the essence of contro! strategy planning, whereby the state has the ability under the Clean Air Act to choose the most effective remedies from an array of control alternatives. Yet by insisting that clean-air areas must con- tinue to be designated as nonattainment, and therefore subjecting such areas to the mandatory controls, EPA and the Sixth Circuit have deprived Ohio of the flexibility to develop the mix of controls it finds to be most appropriate to achieve and maintain national ambient air quality standards.5 This clearly does not comport with the congressional intent expressed in the Clean Air Act.® In Union Electric Co. v. EPA, supra, 427 U.S. at 269, 96 S. Ct. at 2531, this Court rejected an argument that ... would permit the Administrator or a federal court to rejecta State’s legislative choices in regulating air pollution, even though Congress plainly left with the States, so long as the national standards were met, the power to determine which sources would be burdened by regulation and to what extent. 5 Although Section 172(b)(3), 42 U.S.C. Section 7502(b)(3), only requires RACT for existing sources in nonattainment area, Ohio has gone a step further through the SIP by requiring stringent RACT controls on all existing major sources of volatile organic compounds in attainment areas as well. Thus, even if Lorain County were re- designated as attainment, Ohio would continue to impose all necessary controls through its SIP, but would have the flexibility intended by Congress to achieve and maintain the NAAQS in the most efficient and effective manner. ®& In support of its decision, the Sixth Circuit cites Western Oil and Gas Association v. United States Environmental Protection Agency, 767 F.2d 603 (9th Cir. 1985), a decision of the Ninth Circuit upholding EPA's designation of the San Francisco bay area as nonattainment for the ozone NAAQS. The Ninth Circuit decision is distinguishable from Ohio's case before the Sixth Circuit for several reasons. The most relevant distinction here is that in Western Oil and Gas Association, the nonattainment designations appealed and upheld were the initia/ attainment/nonattainment designations under Section 107(d)(1), 42 U.S.C. Section 7407(d)(1), submitted and supported by the State of California. 16 By refusing to approve Ohio's request to redesignate a clean- air area as in attainment with national ambient air quality standards, EPA has eliminated the State's ability to determine which sources will be burdened by reguiation and to what extent. The Sixth Circuit's affirmation of EPA’s circumvention of the will of Congress should be reviewed by this Court. CONCLUSION This case involves an issue of great importance to the states as they have been significantly deprived of the ability to develop and implement air pollution control programs to attain and maintain national ambient air quality standards which they determine to be most efficient and effective by the Sixth Circuit’s deference without adequate review to EPA's inter- pretation of the Clean Air Act. The failure of the court below to implement the instructions of this Court as to the appropriate standard of review a court should employ in reviewing actions of an administrative agency, as demonstrated by the con- flicting decision on the same question by the Seventh Circuit, requires this Court's intervention, as does the failure of the Sixth Circuit to implement the will of Congress, plainly expressed in the Clean Air Act, to place the primary responsi- bility for controlling air pollution on the states. Therefore, the State of Ohio respectfully requests this Court to grant a writ of certiorari to review the decision and judgment of the United States Court of Appeals for the Sixth Circuit. 17 Respectfully submitted, ANTHONY J. CELEBREZZE, JR. Attorney General of Onio MARTHA E. HORVITZ Assistant Attorney General State Office Tower 30 East Broad Street, /7th Floor Columbus, Ohio 43266-0474 (614) 466-2766 Counsel of Record for Petitioner 18 CERTIFICATE OF SERVICE This is to certify that three copies of this petition for writ of certiorari were mailed pursuant to Supreme Court Rules 28.3 and 28.4 by regular U.S. Mail, this __. day of February, 1986, to: Solicitor General Department of Justice Washington, D.C. 20530 Peter S. Everett, Attorney Environmental Defense Section U.S. Department of Justice Washington, D.C. 20530 Catherine Fox, Attorney Office of Regional Counsel! U.S. Environmental Protection Agency Region V 230 South Dearborn Street Chicago, IL 60604 John C. Ulfeider, Attorney Office of General Counsel! (LE-132A) U.S. Environmental Protection Agency 401 M Street S.W. Washington, D.C. 20460 MARTHA E. HORVITZ Assistant Attorney General APPENDIX A UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT STATE OF OHIO Petitioner, Vv. WILLIAM D. RUCKELSHAUS, Administrator, United States Environmental Protection Agency, Respondent. PETITION for Review of Final Action of the United States Environmentai Protection Agency. Decided and Filed November 15, 1985 Before: LIVELY, Chief Judge; WELLFORD, Circuit Judge: BERTELSMAN, District Judge.* LIVELY, Chief Judge, delivered the opinion of the Court, in which BERTELSMAN, District Judge, joined. WELLFORD, Circuit Judge, (p. 14) delivered a concurring opinion. LiVELY, Chief Judge. Ohio seeks review of final action of the United States Environmental Protection Agency (EPA) under the Clear Air Act as amended (the Act). 42 U.S.C. §§ 7401 et seq. The particular provisions of the Act in controversy are portions of Part D of Subchapter !, 42 U.S.C. §§ 7501-7508, and section 107(d) and (e), 42 U.S.C. § 7407(d) and (e), all of which were added to the Act by the Clean Air Act Amendments of 1977, Pub. L. 95-95. *The Honorable William O. Bertelsman, Judge, United States District Court for the Eastern District of Kentucky, sitting by designation. A-2 The question for decision is whether EPA may refuse a state’s request to redesignate a county from “nonattainment’ to “attainment” where actual monitoring or modeling data from the county show that air quality within the county meets the required ambient standard. EPA denied Ohio's request to redesignate Lorain County as an attainment area for ozone upon determining that, although the air within the county satisfied the National Ambient Air Quality Standards (NAAQS) for ozone, pollutants originating in Lorain County added signifi- cantly to the ozone levels in the Cleveland urban area, of which Lorain County is a part. All of the counties in the Cleveland urban area are part of the Greater Cleveland Intrastate Air quality Control Region (AQCR). Ohio argued that the boundary of the Cleveland urban nonattainment area should be changed by removing Lorain County and filed a petition for review of the EPA’s action. Though the precise question presented in the present appeal is one of first impression before this court, we have dealt with the Clear Air Act Amendments of 1977 in a number of opinions. E.g., Air Pollution Control District of Jefferson County v. U.S. E.P.A., 739 F.2d 1071 (6th Cir. 1984); National Stee! Corp. v. Gorsuch, 700 F.2d 314 (6th Cir. 1983); PPG industries, Inc. v. Costle, 630 F.2d 462 (6th Cir. 1980). In addition, the Supreme Court succinctly reviewed the history of the congressional efforts to bring air pollution under control in Chevron, U.S.A., Inc. v. Natural Resources Defense Council, inc., AIS , 104 S.Ct. 2778, 2783-87 (1984). We will not repeat this background discussion, but will go directly to the issues involved in this appeal. A-3 Acting pursuant to section 107(d)(1) of the Act, 42 U.S.C. § 7407(d)(1),' Ohio listed nonattainment areas within the State. It identified the counties comprising the Cleveland urban area, including Lorain, Medina, Lake and Geauga Counties, as nonattainment for ozone. In 1982 Ohio, acting pursuant to section 107(e)(1), of the Act, 42 U.S.C. § 7407(e)(1),? requested a revision of the ozone nonattainment designations to remove 46 counties, including Lorain, Medina, Lake and Geauga Counties. There was no request that Cuyahoga County, where the City of Cleveland is located, be redesignated. \ '42 U.S.C. §7407(d)}(1) provides: (1) For the purpose of transportation control planning, part D (relating to nonattainment), part C (relating to prevention of significant deterioration of air quality), and for other purposes, each State, within one hundred and twenty days after August 7, 1977, shall submit to the Administrator a list, together witn a summary of the available information, identifying those air quality control regions, or portions thereof, established pursuant to this section in such State which on August 7, 1977— (A} do not meet a national primary ambient air quality standard for any air pollutant other than sulfur dioxide or particulate matter; (B) do not meet, or in the judgment of the State may not in the time period required by an applicable implementation pian attain or maintain, any national primary ambient air quality standard for sulfur dioxide or particu- late matter; (C) do not meet a national secondary ambient air quality standard; (D) cannot be classified under subparagraph(B) or (C) of this paragraph on the basis of available information, for ambient air quality leveis for sulfur oxides or particulate matter; or (E) have ambient air quality levels better than any national primary or secondary air quality standard other than for sulfur dioxide or particulate matter. or for which there is not sufficient data to be classified under subparagraph (A) or (C) of this paragraph. 2 42 U.S.C. § 7407(e)(1) provides: (1) Except as otherwise provided in paragraph (2), the Governor of each State is authorized, with the approval of the Administrator, to redesignate from time to time the air quality control regions within such State for purposes of efficient and effective air quality management. Upon such redesignation, the list under subsection (d) of this section shall be modified accordingly. A-4 EPA published a notice of proposed rulemaking on August 10, 1983 in response to the request. The notice invited public comment and stated that EPA proposed to grant the request as to 36 counties and deny it as to ten, including Lorain and Medina. Following the period of comment, EPA issued its final rulemaking, approving Ohio’s redesignation of 37 counties and desapproving the redesignation of nine counties, includ- ing Lorain. 49 Fed. Reg. 24124 (June 12, 1984). The county approved for redesignation as “attainment” in the final action that had been refused redesignation in the first EPA, proposal was Medina. Following the final action of EPA, the Cleveland urban nonattainment area consisted of Cuyahoga, Lorain, Geauga and Lake Counties. It is undisputed that monitoring data showed that the air within Lorain County met the NAAQS for ozone. EPA recog- nized this fact, but refused to redesignate Lorain County on the ground that a significant portion of the ozone pollution in the Cleveland urban nonattainment area derives from emissions in Lorain County, which lies upwind from the other three counties in the nonattainment area. The geographical relation- ship of the four counties in the designated nonattainment area, plus Medina County, is shown in the portion of the Ohio map of counties reproduced here: In its comments on proposed rulemaking Ohio conceded that “[e]missions from Lorain County contribute to the ozone concentrations in the Cleveland area and should be included in the design of any control program.” (Letter from Ohio EPA to U.S. EPA, August 12, 1983). However, Ohio took the position that Lorain County was not in air quality violation for ozone and should not be listed as nonattainment. A-5 Though Ohio makes a number of subsidiary arguments, its basic position is that the Act does not authorize EPA to disapprove a reascnable state designation of an area as “attainment” on the ground that emissions from the area may potentially add to the pollution of a nonattainment area. Underlying this argument is the contention that the state may treat a county as an “area” for purposes of § 7407(d)(1) and require EPA to so treat it, despite the fact that EPA has designated the county as part of a larger area. Ohio relies on the definition of “nonattainment area” in section 171(2) of the Act, 42 U.S.C. § 7501(2) (1982), “an area which is shown by monitored data or which is calculated by air quality modeling (or other methods determined by the Administrator to be reliable) to exceed any national ambient air quality standard for such pollutant.” Since Lorain County has shown by monitored data that its air does not contain ozone in excess of the NAAQS, it cannot be brought within this definition and, thus, may not be designated “nonattainment.” Ohio recognizes that Lorain County is in the Cleveiand urban area but insists that it may subdivide that area by counties on the basis of air quality information. Ohio argues that the states have the primary role in making such decisions, and EPA should accord deference to state determinations regarding the size of areas designated. Given the measured air quality data on which the request for redesignation of Lorain County was based, cPA acted arbitrarily and capri- ciously in continuing to designate Lorain County “nonattain- ment,” according to Ohio. A-6 Ohio also argues that EPA had an alternative and preferable means at its disposal for dealing with the Cleveland ozone problem. EPA should have approved the redesignation of Lorain County to attainment, but required Ohio to amend its State Implementation Pian (SIP) to insure that pollutants from Lorain County, though an attainment area, did not add significantly to the ozone problems of the downwind Cleve- land area. Ohio contends that SIPs are at the heart of the entire scheme for improving the quality of the Nation’s air, and that EPA should be required to follow this path to achieve NAAQS within Ohio, including the Cleveland area. Ohio's preference for this alternative means of enforcing compliance with the NAAQS arises from the fact that Part D of the Act, which applies only to nonattainment areas, contains significant enforcement tools not available to EPA under other provi- sions. For example, EPA can impose a ban on new construc- tion, require a new source review program that may require greater emissions reduction than other sections of the Act would require, require a motor vehicle inspection and mainten- ance program with a cuttoff of federal funds for noncom- pliance and require ozone sources to meet emissions limita- tions at least reflective of reasonably available control tech- nology. The possibility of a ban on new construction and the loss of federal funds for failure to implement a vehicle inspection and maintenance program are matters of serious concern to a local government unit. Finally, Ohio contends that the record does not support EPA's disapproval of the request for redesignation of Lorain County. Instead of relying on modeling or monitoring in the Cleveland area, EPA based its conclusions about Lorain County’s contributions to Cleveland’s ozone levels on findings made with respect to other majcr urban centers such as Chicago, St. Louis, Los Angeles and Detroit. In addition, Ohio charges that EPA was totally inconsistent in approving redesignation of Medina County, which also has a direct association with the Cleveland area, while disapproving the request for Lorain County. EPA maintains that it acted reasonably and within its clear authority under § 7407 in disapproving Ohio's request with respect to Lorain County. It is not required to designate nonattainment areas by reference to county boundaries. Thus, the fact that a county within a nonattainment area is not in violation of NAAQS for a pollutant is irrelevant. As EPA interprets § 7407(d), itis permitted to designate nonattainment areas by boundaries which include important sources of pollution that contribute to the pollution leveis of the area, without making a separate determination for each politicai subdivision within the area. EPA asserts that its interpretation of the statute is reasonable since it serves the underlying goal of the Act by requiring steps to be taken that will move an area toward attainment. EPA finds nothing in the language or legislative history of the Act or the 1977 Amendments that would require it to make Lorain County a “section 107(d) area” separate from the general Cleveland urban area of which itis a part EPA argues that keeping Lorain County within the nonattain- ment area serves the purpose behind the enactment of Part D. That purpose was to bring about incremental air quality improvement and timely attainment of national standards in those areas that failed to attain the NAAQS by the deadlines Originally set out in the Act. The fact that EPA might have proceeded by the alternate route of requiring Ohio to revise its SIP does not deprive it of authority to proceed under § 7407(d) and Part D, which were designed specifically to deal with the nonattainment problem to which the 1977 Amendments were directed. EPA responds to Ohio's charge that its denial of redesigna- tion was not supported by the record with several contentions. In the first place, it points to Ohio’s admission that pollutants from Lorain County contribute to Cleveland’s ozone problem. A-8 it also argues that the record contains meterological data which indicate that the prevailing winds during the peak ozone season do fiow from Lorain County to Cuyahoga and Lake Counties. Further, monitoring results in the Cleveland urban area showed ozone violations. These are included in the record. In addition, the record contains documentation that significant quantities of ozone precursors are emitted from sources in Lorain County. Lorain County’s emissions constitute 18.7% of the total organic pollutant emissions Originating in the four county Cleveland urban nonattainment area. With respect to the use of data from other urban areas, EPA makes two responses. In the first place, it notes that Ohio did not object to the use of these data during the administrative proceedings, and argues that it may not object at this stage. in addition, EPA maintains that the causes of ozone buildups in the area of other large cities provides valid data for deter- mining the effect of Lorain County’s emissions on Cleveland. IV. A. In considering an agency’s construction of a statute which it administers a court applies a narrow standard of review. If Congress has spoken directly to the precise question in issue, and its intent is clear, that ends the inquiry because both the agency and the court “must give effect to the unambiguously expressed intent of Congress.”’ Chevron, U.S.A., Inc. v. National Resources Defense Council, Inc., _U.S._, 104 S.Ct. 2778, 2781-82 (1984) (footnote omitted). If the court deter- mines that Congress has not addressed the precise question directly, the duty of the court is to determine whether the agency has based its answer to the question “on a permissible construction of the statute.” /d., at 2782. The Supreme Court has long recognized the principle of deference which requires courts to accord ‘considerable weight’ to the construction by an executive department of a statute that it administers. /d. A-9 The principle of deference does not permit the court to become a rubber stamp, automatically approving every agency interpretation of a statute. Rather, it requires “a searching and careful” inquiry into the facts of each case to determine that the agency has acted within the scope of its statutory authority. Citizens to Preserve Overton Park v. Volpe, 401 U.S. 402, 416 (1971). After this determination has been made, in order to approve agency action the reviewing court must find that the agaency’s choice satisfies the standard of the Administrative Procedure Act (APA), that is, that it is not “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.” 5 U.S.C. § 706(2)(A). This court has recently held that the APA standard presumes that agency actions are valid and that we are required to uphoid EPA decisions supported by a “rationa! basis.” Air Pollution Controi District of Jefferson County v. United States Environ- mental Protection Agency, 739 F.2d 1071, 1083 (6th Cir. 1984). As we noted in National Steel Corp. v. Gorsuch, 700 F.2d 314, 321 (6th Cir. 1983), it is not necessary that the agency’s construction of the statute be the only permissible one. Rather, its construction “must be upheld unless that view is plainly unreasonable.” (Emphasis in original). With these firmly established principles in mind, we turn to the issues in this case. The statutory provision in question, § 7407(d)(1), does not speak directly to the precise question of whether EPA may include in a nonattainment area a county whose air quality meets national standards. The statute requires each state to identify “those air quality regions, or portions thereof” which do not meet the NAAQS for any air pollutant. Counties are not mentioned, but both Lorain and Medina Counties had previously been included in the Greater Cleveland AQCR. Part D of the Act defines “nonattainment area’ as ‘an area which is shown by monitored data or which A-10 is calculated by air quality modeling (or other methods determined by the Administrator to be reliable) to exceed any national ambient air quality standard” for a particular pol- lutant. § 7501(1). Again, Congress has not directly dealt with the question posed by this appeal. This definition addressed “nonattainment” v'ithout prescribing any criteria for deter- mining the proper components of an “area.” In addition, § 7407{e)(1) provides no standard which is to be followed by the administrator of EPA in approving or disapproving a request for redesignation. Thus under the Chevron formulation we seek to determine whether EPA’s answer to the question is “based on a permissible onstruction of the statute.” 104 S.Ct. at 2782. We conclude that EPA acted reasonably in determining that Lorain County should be included in the Cleveland urban nonattainment area even though actual monitoring disclosed an acceptable level of ozone within the county. The purpose of the Clean Air Act Amendments of 1977 was to ensure additional efforts to bring those areas of the country which had not met the time requirements of the Act into compliance. Congress adopted the scheme of divding states into attain- ment, nonattainment and unclassified areas. For nonattain- ment areas it provided new stringent sanctions which could be applied by EPA to encourage compliance. United States Stee/ Corp. v. United States Environmental Protection Agency, 605 F.2d 283, 284-85 (7th Cir. 1979), cert. denied, 444 U.S. 1035 (1980). Once a state has designated an area “nonattain- ment,” that area may be redesignated only with the approval of EPA. It appears a permissible exercise of this authority for EPA. to deny redesignation with respect to a component of a nonattainment area which produced a substantial portion of the area’s pollution even though the air within that component tests at an acceptable level. If it were otherwise, the fortuitous circumstance that pollutants and precursors emitted within a county are moved by prevailing winds to a neighboring county would deprive EPA of the tools Congress provided for A-11 attacking pollution in the area of which the county is logically a part. The Cleveland urban area fits the definition of a nonattain- ment area because the ozone leveis in and around Cleveland exceed the NAAQS. In response to 1980 directions from the United States Court of Appeals for the Ninth Circuit, EPA promulgated criteria for defining nonattainment status. 46 Fed. Reg. 55722-25 (1981); see Western Oil and Gas Association v. United States Envrion- mental Protection Agency, 633 F.2d 803, 813 (9th Cir. 1980) (WOGA 1). Criterion No. 5 stated A nonattainment area should be as small as ~possible while encompassing all areas of expected violation and all sources of significant impact on those violations. 46 Fed. Reg. 55724 (1981). Western Oil and Gas Association (WOGA) criticized the criterion to the extent it prescribed the inclusion of all sources of significant impact on violations. When EPA included Criterion No. 5 in a final rulemaking, WOGA petitioned for review, seeking an “attainment” designation for portions of the San Francisco Bay Area which contained heavy industrial concentrations, but would have been attainment areas if treated separately. As in the present case, the disputed areas were upwind from portions of the Bay Area which were clearly nonattainment. The Court of Appeals upheld EPA’s designa- tion of the downwind portions of the area as nonattainment even though the air within those portions satisfied the NAAQS. Western Oil and Gas Association v. United States Environ- mental Protection Agency, 767 F.2d 603 (9th Cir. 1985) (WOGA /). The court determined that Criterion No. 5 was entirely consistent with the language of the Act, as amended, and with the legislative history. ————— A-12 We agree with the Ninth Circuit's conclusions in WOGA il. As did WOGA in that case, Ohio relies in the present case on Alabama Power Co. v. Costle, 636 F.2d 323 (D.C. Cir. 1979). The Ninth Circuit dismissed WOGA's arguments by stating that Alabama Power concerned Part C of the Act, which was notin issue. We agree that Alabama Power is not controlling. Part C deals with the prevention of significant deterioration of air quality in areas that have attained national staiidards for ambient air quality. The court in Alabama Power concluded that for purposes of the requirements of Part C, Congress intended that tne location of a proposed source of pollution should be the key determinant in deciding whether a PSD (prevention of significant deterioration) permit should be required for construction in “any area to which this part [Part C] of the Act applies.” /d. at 365-66. The court vacated EPA’s denial of a PSD permit because the proposed source was not in an area to which the PSD requirements applied. From this holding Ohio argues that the location of pollution emitting sources in Lorain County, where the NAAQS have been met, provides no justification for including the county in a nonaitain- ment area. The D.C. Circuit found in Alabama Powerthat Congress had clearly stated its intention that !ocation control in dealing with PSD permits under Part C. No such clear intent can be discerned with respect to the designation of nonattainment areas for purposes of Part D. In the absence of such a clear statement, EPA is authorized to require the boundaries of a nonattainment area to include those places whose emissions contribute significantly to measured “exceedences.” This is not an unreasonable construction of the Act, given its over- riding purpose. A-13 Cc. Having concluded that EPA acted within the scope of its authority, we must now consider whether it acted arbitrarily and capriciously in this case, as claimed by Ohio. Ohio admitted on the record that emissions from Lorain county contribute to the ozone concentrations in the Cleveland area. Given this concession, it is difficult to conceive how EPA could be found to have acted arbitrarily or capriciously by including Lorain County in the Cleveland urban nonattain- ment area. The technical materials in the record support the conclusion that the contribution of Lorain\County’s emissions to the Cleveland ozone problem is significant. We do not believe the fact that EPA did not conduct measurements of the wind-factor effect in the Cleveland area is important. The tests in other major urban areas demonstrated satisfactorily that ozone precursors are carried long distances in the atmos- phere and combine with other substances to form ozone in such areas. The results of tests in a number of urban areas were Sufficiently similar to form a reliable basis for concluding that the same condition would occur in Cleveland. Even if these data were not sufficient to support EPA's conclusion, Ohio cannot escape its own concession of the effect of Lorain County's emissions on the ozone concentrations in the Cleveland area. Ohio also argues that EPA acted arbitrarily in redesignating Medina County while refusing to remove the “nonattainment’ designation from Lorain County. Both counties lie upwind from both Cleveland and Lake County which have ozone levels in excess of the NAAQS. However, compared with the emissions from Lorain County, those from Medina County are insignificant. Lorain County is heavily industrialized while Medina is iargely rural with only scattered sources of pollu- tion. EPA acted in the exercise of its discretion in removing Medina County from the nonattainment area while refusing to redesignate Lorain County. We find no abuse of discretion. | A-14 The petition for review is denied. WELLFORD, Circuit Judge, concurring. | concur with the able analysis of the issues in this case by Chief Judge Lively. | write separately only to bespeak my dissatisfaction with EPA's failure to conduct measurements of the wind-factor effect in the Cleveland area of emissions from Lorain County. | find no reasonable explanation for that failure on the part of EPA in this case, and the conducting of such tests would certainly have made this case less difficult in disposition. My only reservation here is this lack of proof that would have demon- strated clearly the basis for the EPA action. APPENDIX B ENVIRONMENTAL PROTECTION AGENCY 40 CFR Part 81 [A-5-FRL-2602-8] Designation of Areas for Air Quality Planning Purposes; Attainment Status Designations: Ohio AGENCY: U.S. Environmental Protection Agency (EPA). ACTION: Final rulemaking. SUMMARY: EPA is approving a request from the State of Ohio to revise the attainment status designations, at 40 CFR 81.336, of 37 counties in Ohio from nonattainment to attainment relative to the ozone National Ambient Air Quality Standard. These counties are: Allen, Ashland, Belmont, Brown, Carroil, Champaign, Darke, Erie, Fairfield, Fayette, Fulton, Hancock, Harrison, Henry, Highland, Hocking, Holmes, Huron, Knox, Lawrence, Logan, Madison, Marion, Medina, Morrow, Ottawa, Perry, Pickaway, Richland, Ross, Sandusky, Seneca, Shelby, Tuscarawas, Union, Wayne, and Wood. Additionally. EPA is denying the State's request to re- designate Columbiana, Delaware, Geauga, Greene, Lake, Licking, Lorain, Miami, and Trumbull Counties from nonattain- ment to attainment. The intent of this notice is to discuss the result of EPA's review of the State’s redesignation request and the public comments received regarding EPA's proposed action, and to approve and deny the State’s request as noted above. Under the Clean Air act, designations can be changed if sufficient data are available to warrant such change. A-16 EFFECTIVE DATE: July 12, 1984. ADDRESSES: Copies of the redesignation request, technical support documents and the supporting air quality data are available at the following addresses: Environmental Protection Agency, Region V, Air Programs Branch, 230 S. Dearborn Street, Chicago, Illinois 60604 Ohio Environmental Protection Agency, Office of Air Pollution Control, 361 East Broad Street, Columbus, Ohio 43216. FOR FURTHER iNFORMATION CONTACT: Debra Marcantonio, Air and Radiation Branch (5AR-26), Environ- mental Protection Agency, Region V, Chicago, Illinois 60604, (312) 886-6088. SUPPLEMENTARY INFORMATION: Under section 107(d) of the Clean Air Act (CAA) the Administrator of EPA has promul- gated the National Ambient Air Quality Standards (NAAQS) attainment status for all areas within each State. See 43 FR 8962 (March 3, 1978) and 43 FR 45993 (October 5, 1978). These area designations are subject to revision whenever sufficient data become available to warrant a redesignation. In the State of Ohio, 63 counties are currently designated as not attaining the NAAQS for ozone. On November 29, 1982, the Ohic EPA (OEPA) submitted: (1) Arequestto EPA to revise the section 107 attainment status designations for the 46 counties listed in the Summary portion of this notice; and, (2) Recent ozone ambient air quality monitoring data collected in the State. in reviewing OEPA’s redesignation request EPA analyzed the monitoring data submitted by the State, along with supplemental monitoring data from areas adjoining the counties for which the State requested redesignation. EPA also analyzed population data, volatile organic compound (VOC) emissions data, and the locations of the counties under consideration in culated from observed number of exceedances by making the assumption that the relation to the proximity of other non-attainment areas. A-17 Redesignation Criteria for Ozone The NAAQS for ozone is defined to be violated when the annual average expected number of daily exceedances ofthe standard (0.12 parts per million (ppm), 1-hour average) is greater than one (1.0). A daily exceedance occurs when the maximum hourly ozone concentration monitored during a given day exceeds 0.124 ppm (“Guideline for the Inter- pretation of Ozone Air Quality Standard”, EPA-450/4-79- 003). The expected number of daily exceedances is cal- nonmonitored days (invalid or incomplete) have the same fraction of daily exceedances as observed on monitored days (EPA-450/4-79-003). Specific criteria for ozone redesignation reviews are given inan EPA April 21, 1983, memorandum entitled “Section 107 Designation Policy Summary” from Sheldon Meyers, Director of the Office of Air Quality Planning and Standards, and a December 23, 1983, memorandum entitled “Section 107 Questions and Answers” from G. T. Helms, Chief Control Programs Operations Branch. These documents are in the record for this rulemaking action and are available for public review at the Region V office. These documents indicate that the three most recent years of ozone data at each site should be considered in the review of redesignation requests. The April 21, 1983, guidance indicates that less than three years of ozone data may be considered as adequate support for redesignations to attainment if no exceedances of the ozone standard have occurred in the most recent year or two years and if enforceable emission reductions can be demonstrated to be the cause of the recent air quality improvements. Consideration of only the most recent year also requires the use of a state-of-the-art modeling analysis (such as city- specific EKMA) to demonstrate the adequacy of recent emission reductions. Finally, and of significant importance for today’s rulemaking, the guidance indicates that urban ozone nonattainment areas should include ali of the urbanized area, and fringe areas of development, and all of the significant Volatile Organic Compound (VOC) sources assumed to be responsible for the downwind ozone problem. A-18 The current EPA redesignation policy as defined in the April 21, 1983 policy memorandum, specifically states that redesignations from nonattainment to unclassifiable are un- acceptabie. The current policy is based on the assumption that states have had ample time since 1978 to thoroughly study each nonattainment area to determine the correct nature of the area. However, contrary to the assumptions reflected in this policy, some nonattainment areas have not been monitored. A number of areas were designated as non- attainment based purely on the assumption that, due to their locations, these areas would experience violations of the 0.08 ppm standard (the standard prior to February 8, 1979). Many of these areas have never been monitored. In these areas, it is necessary to base the designations upon the nature of ozone formation/transport observed in other monitored areas. Based on EPA’s review of the State’s request and the supporting monitored ozone concentrations during the 1980 thru September 1982 period, on August 10, 1983 (48 FR 36275) EPA proposed to revise the designation status relative to the ozone NAAQS to attainment for Allen, Ashland, Belmont, Brown, Carroll, Champaign, Darke, Erie, Fairfield, Fayette, Fulton, Hancock, Harrison, Henry, Highland, Hocking, Holmes, Huron, Knox, Lawrence, Logan, Madison, Medina, Morrow, Ottawa, Perry, Pickaway, Richland, Ross, Sandusky, Seneca, Shelby, Tuscarawas, Union, Wayne, and Wood Counties. Additionally, EPA proposed to deny the State’s request to redesignate Columbiana, Delaware, Geauga, Greene, Lake, Licking, Lorain, Marion, Miami, and Trumbull Counties from nonattainment to attainment/unclassifiable. Today EPA is taking final action to approve and deny the portions of the States request as noted above with one exception. As aresult of EPA’s review of the public comments, EPA now agrees that Marion County should also be designated to attainment. Therefore, EPA is redesignating the 36 counties it proposed to redesignate on August 10, 1983 and Marion County to attainment of the ozone NAAQS. Further discussion on EPA's action on designating Martion County is contained in the public comment section of this notice. A-19 Response to Comments on EPA’s Proposed Rulemaking During the public comment period three sets of comments were received. Each issue is discussed below. Comment The State commented that EPA’s proposed disapproval of the State’s request to redesignate Lorain County to attain- ment is contrary to the definition of a nonattainment area contained in section 171(a)(2) of the CAA. Section 171(a)(2) defines a nonattainment area as “* * * an area which is shown by monitored data or which is calculated by air quality modeling (or other methods determined by the Administrator to be reliable) to exceed any national ambient air quality standard * * *.” The State contends that, since available ozone monitoring data show no violations of the ozone standard in Lorain County during the most recent three years and no modeling data exist to prove otherwise, EPA should approve the redesignation of Lorain County. This redesigna- tion should be approved regardless of the VOC emission characteristics of Lorain County. EPA Response - EPA disagrees with the State’s narrow interpretation of nonattainment. Part D of the CAA requires states to develop SIPs for nonattainment areas which provide for the attainment of the NAAQS. Since Part D plans are required only for the nonattainment areas, it is important that the nonattainment areas are of sufficient size to include all emission sources (YOC sources in the case of ozone nonattainment areas) which contribute significantly to the violations of the NAAQS. lf, as the State comments, the nonattainment area is interpreted to be a smaller area (including only those counties with monitored ozone violations), it could be further argued that the planning agencies should only inventory and control those sources within the nonattainment area even when sources upwind are significant contributors to NAAQS viola- tions. A-20 Under this scenario, the probable under-control of sources outside of the nonattainment area could resu!t in a technically unsound control strategy and continued NAAQS violations. Based on the regional nature of ozone formation and on the above arguments, EPA’s current designation policy (Apr. 21, 1983 memorandum) requires an urban ozone nonattain- ment area to include al! of the urbanized area and adjoining areas of significant VOC emissions. Since it was previously determined that Lorain County contains part of the Cleveland urbanized area as wel! as the contiguous Lorain-Elyria urbanized area and is a significant VOC emission area with potentially significant downwind ozone impacts, EPA disa- grees with the State’s comment and continues to consider Lorain County as part of the Cleveland ozone nonattainment area. EPA cannot, therefore, approve the State’s request to redesignate Lorain county to attainment. Comment The State comments that EPA has previously evaluated ozone designations on a county-by-county basis. The State considers EPA’s proposed rulemaking for those counties for which EPA proposed to deny Onio’s redesignation request to be contrary to past actions. EPA Response EPA Region V has not previously redesignated to attain- ment any counties containing significant portion of an urban- ized area which has experienced current ozone standard violations at other locations within the urban nonattainment area. Therefore, EPA has not not previously redesignated to attainment areas on a strict county-by-county basis. EPA has in the past redesignated non-monitored/non- urban (rural) counties to “unciassifiable”. Such a redesigna- tion, however, is no longer acceptable, as discussed above. x A-21 - EPA believes that, lacking other supporting data, proximity to major VOC emission areas (primarily major urbanized areas) and consideration of prevailing wind directions forms an appropriate and reasonable basis for assessing requested redesignations from nonattainment to attainment. EPA bases its decision in this case on ozone concentrations monitored in and downwind of major urbanized areas, such as Chicago, St. Louis, Los Angeles, and Detroit. Based on these observations and on the direct association of Lorain and Medina Counties with the Cleveland urban area, EPA continues to believe that the deniai of the redesignation of the ten counties, as listed above, is appropriate. Comment The State contends that no basis in law exists to support EPA’s implication of nonattainment based on proximity to nonattainment counties. !n addition, an Ohio property owner protested “the depriving of any county of the United States from having a Classification of attainment due to its proximity to any other county”, and alleged that the Agency was engaged in unconstitutional activity as a result. More specific- ally, the citizen complained that the Agency was unlawiully seizing property rights of people in rural areas, in violation of the 4th and 5th Amendments of the Constitution. EPA Response Section 107 of the CAA gives EPA the authority to review and rulemake on area air quality designations. Since it is EPA's current policy (April 21, 1983 memorandum) to redesig- nate areas as only attainment or nonattainment, it is necessary for EPA to establish some criteria for the redesignation of non-monitored areas. For anon-monitored area, itis logical to assume a designation based on its proximity to major pre- Cursor source areas (generally major urban nonattainment areas) taking into consideration prevailing wind directions. Data from areawide ozone/ precursor studies in the vicinity of major urban areas, such as St. Louis and Philadelphia, as well A-22 as data from rural sites in Region V indicate that ozone transport at significant concentration levels can occur over considerable distances downwind from urban areas. Based on this observation, EPA believes that non-monitored counties immediately downwind of major urban nonattain- ment areas should be assumed to be nonattainment until such time as in-county ozone data become available proving other- wise or until the urban area is redesignated to attainment. EPA does notagree that this policy leads to any unconsti- tutional activity on the part of the Agency through the unlawful seizure of property rights of rural land owners. Property rights do not exist independent of certain responsibilities to the public interest. Courts have consistently applied a type of balancing test to the concept of private property such that the public interest in preserving or preventing further deterior- ation to land may outweigh the conflicting interest of a private owner in fully exploiting the economic profitability of his land. Any restrictions which may be imposed on ozone nonaittain- meni areas in the form of growth restrictions do not prohibit the landowner from making a limited but reasonable use of his land, and cannot be viewed as a permanent taking of property rights. Comment The St-*> comments that, since prevailing winds, as discussed by .ne EPA in the proposed rulemaking, are from the south-west in Ohio, Columbiana County, Delaware County, and Trumbull County are not “downwind” of their associated, adjacent urban nonattainment areas, as claimed by EPA. EPA Response The State has misinterpreted EPA’s discussion in the proposed rulemaking to imply that a single prevailing wind direction may be considered. When EPA refers to an area as being downwind of a major VOC emission source area, EPA is A-23 referring to the area into which ozone or its precursors is transported from the VOC emission area. Wind directions fluctuate considerably on any given day and from day-to-day. During an ozone season, a wide range of trajectories exist over which ozone or its precursors is transported from a source area. Inspection for windroses for Ohio during pre- vious Ozone seasons indicates wind directions from the quadrant of south thru west predominate. These analyses focused on the days with high ozone formation potential by only considering data for days with peak temperatures in excess of 75 degrees Fahrenheit. Based on the results of these analyses, it is assumed that areas lying in the general direction of north through east of major urban areas may be considered to be predominately downwind of these urban areas during the ozone season. The downwind areas are relatively large in extent. Recognizing that ozone concentrations in excess of the standard have been monitored in excess of fifty kilometers downwind of major urban areas, such as Chicago, St. Louis, Los Angeles, New York, Detroit, etc., it is appropriate to assume that some of the non-monitored/nonattainment areas in Ohio would currently experience ozone standard violations. These areas include Columbiana (downwind of Canton), Delaware (downwind of Columbus), and Trumbull (downwind of Youngstown) counties. Therefore, the EPA disagrees with the State’s comments on this issue. Comment The State comments that Geauca County lies close to Lake Erie and may be subject to lake breeze effects, which the State believes EPA did not take into account in its analysis. EPA Response It is unclear to EPA what the State intended to imply in this comment. If the State implies that lake breezes would be responsible for ozone standard violations in Geauga County A-24 and should not be considered, EPA must point out that lake breezes are common occurrences along the areas adjoining Lake Erie and other large bodies of water. EPA does not consider these to be abnormal, infrequent phenomena and, therefore, does not exiude from consideration ozone exceed- ances caused by such phenomena. lf the State implies that lake breezes lead to significant ozone transport between Cleveland, and Geauga County, EPA agrees that such a pollutant effect could exist. This may explain a means by which ozone standard exceedances could occur in Geauga County as a result of ozone precursor emissions in Cleveland. It does not argue against the possible existence of such exceedances. EPA continues to believe that Geauga County is a nonattainment area tor ozone. Comment The State comments that it does not consider Jefferson County to be a significant VOC source area affecting ozone levels in Columbiana County. As evidence for this, the State indicates that only one ozone standard exceedance occurred in Jefferson County during the 1981 through 1982 period and that no exceedances have been recorded thus far in 1983. The State is opposed to EPA’s denial of the redesignation of Columbiana County. EPA Response Considering the fact that Steubenville (the largest city in Jeffson County) is not a major urbanized area (defined to have a population equal to or in excess of 200,000), EPA agrees with the State that a solid conclusion can not be drawn concerning the potential impact of Jefferson County VOC emissions on Columbiana County ozone levels. Nevertheless, Columbiana County is immediately east of Stark County, which contains the major urban area of Canton. Under the assumptions applied by EPA in the review of Ohio's redesig- nation request, Columbiana County is still considered to be an A-25 ozone nonattainment area due to its proximity to the Canton urban nonattainment area. Comment The State comments that the areas of West Virginia immediately adjacent to Columbiana County have always been designated as attainment for ozone. The State considers this to be an inconsistency in designation based on regula- tions contained in 40 CFR Part 56. The implication of this comment is that the West Virginia area adjoining Columbiana County should be redesignated to nonattainment or that Columbiana County should be redesignated to attainment. EPA Response Conceding that Jefferson County, Ohio may not be a significant VOC source area causing downwind ozone stan- dard exceedances, one must conclude that the West Virginia counties do not adjoin an upwind major VOC source area. Therefore, the West Virginia counties in question would pass the tests for attainment as applied to the non-monitored, rural Ohio counties. Columbiana County should remain as nonattainment based on its proximity to the Canton urbanized nonattainment area. Comment The State comments that EPA may not use the implication of nonattainment based on association with major urban nonattainment areas or monitored rural nonattainment areas to deny the redesignation of Columbiana, Delaware, Geauga, Greene, Licking, Miami, and Trumbull Counties. EPA Response Current EPA designation policy (Apri! 21, 1983 memor- andum), as noted above, requires that potentia! redesignation A-26 areas be determined to be either in attainment or nonattain- ment of the NAAQS. Under this policy, designation of unclassi- fiabie is no longer appropriate. Prior observations of ozone formation and transport in the vicinity of major urban areas support the policy applied in the August 10, 1983 notice of proposed rulemaking. In other words, EPA continues to consider Columbiana, Delaware, Geauga, Greene, Licking, Miami, and Trumbull Counties to be nonattainment for ozone based on their proximity to major urban nonattainment areas, and the regional nature of ozone formation. Comment The State and an industrial commenter have commented that Marion County should be considered to be in attainment of the ozone NAAQS based on in-county data and ozone data from monitors in other surrounding counties. This data had certain deficiencies in that certain monitoring data which should have been collected at the Marion County site was missing for anumber of days. Despite the deficiency, the State indicates that peak ozone data from six monitors in Clark, Lucas, and Franklin Counties on days where data was missing at the Marion County site would imply that the Marion County site would not have experienced an exceedance of the ozone standard during the missing days. The support data supplied by the State are included in the technical support document for this rulemaking action. The industrial commenter has established correlations between Marion County peak ozone data and peak ozone data from Franklin and Sandusky counties during 1980. These correlations have been used to estimate the probable peak ozone concentrations at the Marion County site on the missing days. It is the opinion of both of these commenters that the expected ozone exceedances for Marion County should be calculated assuming that the missing days did not have ozone standard exceedances. A-27 EPA Response Although the approaches put forward by the State and the industria! commenter are not standard data review proce- dures applied by EPA, the data presented do support an assumption that exceedances did not occur on any of the days with missing data. The State-supplied data, in particular, support this assumption. These data were collected in the urban nonattainment areas most likely to impact the Marion County area. Marion County contains no major urban area. Any ozone standard exceedances experienced in Marion County may be reason- ably expected to result from ozone transport from the nearby major urban areas covered by the State’s data. These data imply that the days in question probably were not conducive to formation of high ozone concentrations in excess of the standard. Therefore, EPA agrees that the expected number of ozone standard exceedances should be 1.0 for the year monitored, and that Marion County should be redesignated to attainment for ozone. Conclusion Based on EPA's review of the State’s redesignation request and the construction of the public comments EPA is approving and disapproving the State’s redesignation request to redesignate counties relative to the ozone NAAQS as follows: 1. Redesignating to attainment (approval of requent): Allen, Ashland, Belmont, Brown, Carroll, Champaign, Drake, Erie, Fairfield, Fayette, Fulton, Hancock, Harrison, Henry, Highland, Hocking, Holmes, Huron, Knox, Lawrence, Logan, Madison, Marion, Medina, Morrow, Ottawa, Perry, Pickaway, Richland, Ross, Sandusky, Seneca, Shelby, Tuscarawas, Union, Wayne, and Wood Counties. A-28 2. No charge (denial of request): Coiumbiana, Delaware, Geauga, Greene, Lake, Licking, Lorain, Miami, and Trumbull Counties. The Office of Management and Budget has exempted this rule from the requirements of Section 3 of Executive Order 12291. Under section 307(b)(1) of the Act, petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by August 13, 1984. This action may not be chalienged later in proceedings to enforce its requirements. (See 307(b)(2).) List of Subjects in 40 CFR Part 81 Air pollution control, National parks, Wilderness areas. This notice is issued under authority of Sections 107(d) and 301 of the Act, as amended (42 U.S.C. 7407(d) and 7601). Dated: May 31, 1984. William D. Ruckelshaus, Administrator. APPENDIX C ILLINOIS STATE CHAMBER OF COMMERCE, Petitioner, v. UNITED STATES ENVIRONMENTAL PROTECTION AGENCY, Respondent. and ILLINOIS ENVIRONMENTAL PROTECTION AGENCY, Petitioner, v. UNITED STATES ENVIRONMENTAL PROTECTION AGENCY, Respondent. Nos. 84-2364, 84-2365. United States Court of Appeals, Seventh Circuit. Argued June 6, 1985. Decided Nov. 4, 1985. Before CUDAHY and COFFEY, Circuit Judges, and PELL, Senior Circuit Judge. CUDAHY, Circuit Judge. In 1970, Congress passed the provisions that form the basis of what we know today as the Clean Air Act. Pub. Law No. 91-604, 84 Stat.1676 et seq. (1970) (codified at 42 U.S.C. § 7401 et seq.). At the same time the Environmental Protection Agency (“EPA”) was created by Executive Order. 35 Fed.Reg. 15623 (1970). A-30 In 1977 Congress amended the Act, adding, among other things, a Part D: “Plan Requirements for Nonattainment Areas.” §§ 171-178, 42 U.S.C. §§7501-08. The notion of a nonattainment area was a new one introduced with the 1977 amendments; the idea was to allow the construction of new facilities even in areas not in attainment with national standards for pollution, provided that certain conditions were met. It also required the imposition of certain controls—for example, inspection and maintenance programs for vehicles- in areas that continued to fall short of the standards after certain deadlines. The standards were to be set by the EPA, and ways of determining attainment and nonattainment were also up to EPA. The states, on the other hand, were responsible for determining the geographic boundaries of the attainment and nonattainment areas, subject to EPA’s approval; and they were also responsible for submitting to EPA, in 1978, a list of all such areas, with an indication, for each area, whether it was in attainment with respect to the standards. Since the stan- dards were different for different pollutants, and since the appropriate size of the areas might differ for different pollutants, the states really submitted a number of lists, one for each pollutant. The EPA undertook to provide guidance as to the appropriate size of the areas for different pollutants, and was in a position to enforce those guidelines, since final approval of the lists rested with it. A-31 When anonattainment area reached attainment (accord- ing to EPA criteria), the state was entitled to revise and resubmit its list. If EPA agreed with the redesignation to attainment, it approved the revision. If it did not, it wes required to turn down the request within a certain time period, to aive reasons for the refusal and to invite comments before taking final action. (§ 107(5), 42 U.S.C. § 7407(5); § 107(2), 42 U.S.C. § 7407(2).) In 1978 Illinois submitted its lists and they were approved. The list for ozone—or rather, at that time, for photochemical oxidants'—divided the Chicago urban area into counties, all of which were listed as nonattainment. In 1983, Illinois revised the list to show that Will and McHenry Counties, two counties near Chicago, were in attainment, and EPA approved the change. A short time later Illinois proposed to upgrade Kane and Du Page Countties, two counties closer to the geographical center of Chicago. This time EPA denied the proposal. By way of explanation EPA did not claim that the counties had failed to meet the ozone standard; instead, EPA pointed to the ozone problem in the larger Chicago urban area. Appeals were taken (directly to this court under § 307(b)(1) of the Clean Air act, 42 U.S.C. § 7607(b)(1)) both by the Illinois Environmental Protection Agency, the agency entrusted with carrying out the state’s part in the regulation process, and by the Illinois Chamber of Commerce.? ‘From 1971 to 1979 EPA set down standards for photochemical oxidants. !n 1979 the standards were restated in terms of ozone, a major component of photochemical oxidants. 44 Fed. Reg. 8202 (1979). 2The Chamber brings this appeal on Dehalf of its members. EPA has argued that the Chamber has no standing. Clearly the possibility of losing hignway funds and the likelihood of increased controls threaten an increase in the cost of doing business in Kane and Du Page Counties, and threaten directly to affect the Chamber's members. It appears to us, therefore, that the Chamber does have standing. Besides, we have already asked the Chamber and the Illinois agency to divide the issues between ther rather than duplicating each other's briefs, and we would be obliged to consider the Chamber's arguments in any case, if only as amicus curiae. A-32 Ozone is a significant component of the health-endanger- ing smog that is one product of modern industry and transpor- tation. Ozone can cause serious respiratory problems; when it reaches levels of moderate concentration in the air around us, normal men and women may begin to cough and may feel their chests tighten; they may begin to experience eye irritation; the very sensitive may have asthma attacks. At higher concentrations hospitalization becomes a possibility. Ozone is one of the substances that make up what we call air pollution, and Congress has given the Environmental Protec- tion Agency the task of bringing it under control. Ozone, unlike many other pollutants, is not discharged directly into the atmosphere by the offending source. Ozone production depends on the emission of volatile organic compounds?’ which, under the appropriate meteorological conditions, react to form ozone. Since this reaction requires a certain amount of time, ozone concentrations are typically not found overhead of the sources that produce them, but rather downwind. This process of ozone formation is now rather well documented. Scientists were at first surprised to find ozone concentrations over remote rural areas; there was some speculation that nature itself might be responsible for these formations. But at least by the 1970s it was clear that ozone in rural areas was largely due to the airborne “transport” of ozone precursor chemicals—vo!‘ile organic compounds— together with meterological conditions that eventually would *The substances of which ozone is formed, known as ozone precursors, are oxides of nitrogen and organic pollutants. Oxides of nitrogen are formed as a resuit of fuel combustion from mobile and stationary sources. Organic pollutants are emitted primarily from mobile sources and manufacturing facilities. These precursors undergo photochemical oxidation in the presence of sunlight, and form ozone. A-33 support the production of ozone. In general, ozone appeared to reach peak concentrations downwind of the sources. Thus, studies carried on in 1973 showed that sources in Houston were responsible for ozone concentrations about 15-25 miles downwind, and showed similar, though not so pronounced, results in the Phoenix area. Martinez & Meyer, Urban-Nonurban Ozone Gradients and Their Significance, Symposium Paper, March 12, 1976 (reprinted in Appellee’s Appendix at A-76). In 1974, peak values of ozone were found to arise 5 to 15 miles downwind of Columbus, Ohio. id.A 1975 study of sites in the Pennsylvania and New Jersey areas tended to show that ozone concentrations would occur 27 to 49 kilometers downwind of the source areas. “This accounts for some of the ozone previously observed in the non- industrial, low-traffic density area of Ancora, N.J., where concentrations of primary pollutants are low, but where ozone daily maxima frequently exceed the federal standard. Thus, photochemical air pollution [ozone] in this area is a regional rather than a local phenomenon, and ozone resulting from emissions from the urban complex is widespread and not confined to the complex itself.” Kieiner, Transport of Photo- chemical Air Pollution, 9 Environmental Science and Tech- nology 886 (1975). See aiso EPA 600/3-77-017, Proceedings of a Symposium on 1975 Northeast Oxident Transport Study, Research Triangle Park, N.C. (1976); EPA, Mt. Storm, W.Va.- Gorman, Md.-Keyser, W.Va. Air Pollution Abatement Activity, No. APTD—0656 (April 19771). Given these studies, it is natural to suppose that the Chicago-northwest Indiana area contributes much of the ozone pollution that occurs along the western shore of Lake Michigan; and indeed one study concludes that that is precisely the case: long Lake Michigan, through Milwaukee and beyond, “Chicago-northwest Indiana acts as a giant A-34 volume source resulting in a significant fraction of the ozone monitored on alert-level days.” Lyons & Cole, Photochemical Oxidant Transport, 15 J. Applied Meteorology 733 (1976). In 1976 hourly average values as high as .30 ppm (parts per million) (the national standard is now set at .12 ppm), with excursions above .40 ppm, recorded in southeastern Wiscon- sin were attributed by the study to sources in the Chicago area. Nevertheless, we will not, in this opinion, make any factual assumptions about the direction in which ozone is transported away from the Chicago area; our only assumption, one which is not denied by either party, is that ozone tends to show up at varying distances downwind from the source. il A. Prior to the passing of the 1977 Amendments to the Clean Air Act, the EPA had developed an “offset” policy to moderate some of the harsh consequences ofa state’s failure to attain a standard set under the 1970 Act. 41 Fed.Reg. 55528-29 (1976); D. Currie, Air Pollution 6-2 (1981). Instead of prohibiting the construction of all new facilities in areas that had not attained federal standards, the EPA was prepared to permit such construction provided that the pollution produced by the new source was at least offset by reductions in emissions from existing sources. Because of the regional nature of the ozone problem, EPA advocated allowing ozone created by new sources to be offset by reductions anywhere within a large, urban, ozone-producing area. EPA, Effectiveness of Organic Emission Control Programs as a Function of Geographic Location (April 1977 memorandum) (reprinted in Appellee’s Appendix at A-249). EPA saw little benefit from focusing VOC (volatile organic compounds) programs on urban areas with A-35 fewer than 200,000 inhabitants; instead, ozone control was aimed at the larger areas. In the memorandum just cited, amap indicated the urban-ozone problem areas with shaded circles; Chicago and northwest Indiana were together in one large shaded area. Of the offset policy, the memorandum says that a major new VOC source locating within one of the shaded areas should be required to obtain emission offsets from existing sources within that same area. id. at 32 (emphasis in original). The assumption that the offset policy would apply in all urban areas—that is, the assumption that urban areas failed to meet the ozone standard (at the time, .08 ppm)—was not based on any monitoring of the air in those areas, but on general knowledge of the process of ozone production. One important reason for the 1977 Amendments to the Clean Air Act was to provide a statutory basis for the offset policy. See D. Currie, supra, at 6-2. This Congress did by introducing the notion of a “nonattainment area.” § 171, 42 U.S.C. § 7501. Each state was, with EPA approval, to providea list dividing the state into areas—perhaps a different division for different pollutants—showing for each area whether it was in attainment ofthe standard for a certain pollutant; nonattain- ment ofthe standard; or as of yet unclassifiable. § 107(d)(1), 42 U.S.C. § 7407(d)(1). Within the nonattainment areas provisions of the statute based on the offset policy were to apply. See, e.g., § 173, 42 U.S.C. § 7503. It was up to the states to determine the appropriate geographic size of these areas; but EPA had to approve and promulgate the list, and it was up to EPA to offer guidance as to what sizes would be acceptable, and what sizes would not. A-36 H.R. REP. No. 294, 95th Cong., 1st Sess, 1977 U.S. CODE CONG. & AD.NEWS 1077, 1292; § 107(d), 42 U.S.C. § 7407(d). For some poilutants, EPA discharged this duty with a fair amount of precision. Thus, for sulfur dioxide: Generally where EPA promulgated.a designation for SO, the minimum area was to be the county in which the violating monitoring site was located. And for carbon monoxide: A designation of nonattainment for the entire urban core area... was desirable, but smaller area designations were acceptable since CO violations are most pervasive in downtown areas. ... 43 Fed.Reg. 8962-63 (1978). But in the matter of ozone, perhaps because of the essentially different way ozone is produced, EPA gave no clear guidance. There was talk that suggested that an entire urbanized area should be considered one nonattainment area for ozone, because all of the sources in a city were assumed to contribute to the ozone problem in the area. 44 Fed.Reg. 20376 (1979); 43 Fed.Reg. 45997 (1978); 43 Fed.Reg. 8962 (1978). See also Raffle, Env.Rep. (BNA) Monograph #27 (1979) (most major urban areas in the U.S. designated as nonattain- ment areas); 9 Env.Rep.—Current Developments (BNA) 1812 (1979) (most cities nonattainment in spite of lowered stan- dard). On that theory, the larger Chicago urban area should have been one nonattainment area; and yet vhen Illinois submitted its first list, the Chicago urban area was divided into counties, each county listed as—apparently—a separate nonattainment area. 43 Fed.Reg. 8962, 8988-89 (1978). EPA also advanced a slightly different theory, that a nonattainment A-37 area for ozone must be large enough to include both the polluted area and all major sources of the ozone pollution in that area, a theory obviously rooted in the offset theory out of which the notion of a nonattainment area had come. See Memorandum from David Hawkins to Regional Administrators of USEPA, January 3, 1978 (reprinted in Appellee’s Appendix at A-39) (for ozone, regional offices should require “that the designated area be of sufficient size to include most of the hydrocarbon sources’); 46 Fed.Reg. 55724 (1981) (“A non- attainment area should be as small as possible while encompass- ing all areas of expected violations and al! sources of significant impact on those violations.”); 48 Fed.Reg. 46084 (1983) (“[T]he designated nonattainment area shouid be of sufficient size to include most of the significant hydrocarbon... . sources.”) But it is clear that EPA never took that theory seriously. It never proposed that southeastern Wisconsin and Chicago be part of the same nonattainment area, for example, as it should have under the theory, if Chicago sources cause Wisconsin ozone. This theory is also inconsistent with the “urbanized area” theory, since on the urbanized area theory the peak ozone concentration area, miles downwind, would not be included in the nonattainment area for a city; but under the “polluted area plus sources” theory, it must be. Again, under this theory EPA should not have approved the division of the area into counties, since pollution in one county may be caused by sources in another. And finally, to top off the confusion, in 1983 EPA granted a change in status from nonattainment to attainment for Will and McHenry counties, 48 Fed.Reg. 21947 (1983); yet later EPA conceded that Will County, at least, contained significant sources of VOC emis- sions contributing to ozone pollution in the Chicago area. 49 Fed.Reg. 24130 (1984). If sources are to be in the same nonattainment area as the pollution they produce, Will County ought to be in the Chicago nonattainment area. A-38 We might have supposed that EPA was not serious about either theory, having aliowed Illinois to treat the separate counties in the Chicago metropolitan area as separate non- attainment areas, if it were not for the EPA action that gives rise to the present litigation. For EPA has refused to upgrade two counties in the Chicago area, in spite of the fact that no violations have been monitored in those counties. Section 107(d)(5) of the Clean Air Act, as amended in 1977, permits states to propose a revision in the status of nonattainment areas to the EPA: A State may from time to time review, and as appropriate revise and resubmit, the list required under this subsection. The Administrator shall con- sider and promulgate such revised list in accor- dance with this subsection. 42 U.S.C. § 7407(d)(5). A change in status is called for when an area is in attainment with the national standard set by EPA. For ozone the following standard applies: The level of the national primary and secondary ambient air quality standards for ozone... is 0.12 part per million. ... The staridard is attained when the expected number of days per calendar year with maximum hourly average concentrations above 0.12 parts per million is equal to or less than one.... 40 C.F.R. § 50.9 (1979). As proof of attainment EPA requires data showing no violations over the previous year, or on the average less than one full day in violation per year, over three A-39 years. Violations are measured at monitoring sites. Guidelines for the Interpretation of Ozone Air Quality Standards (EPA 450/4-79-003). In January, 1983, Illinois submitted a revised list in which Kane and Du Page Counties each would have been upgraded to attainment status for ozone, along with data showing that no violations had been monitored in those counties. EPA refused to approve the change. In the proposed rulemaking that denied Illinois’ request, EPA said: Because the prevailing winds during the ozone season are from south through west, ozone pre- cursor emissions from DuPage and Kane Counties can contribute significantly to ozone NAAQS [na- tional ambient air quality standards} exceedances which continue to be observed in the Chicago area.... These counties must continue to be con- sidered as part of the Chicago urbanized ozone nonattainment area for the purpose of the 1982 [state implementation plan]. 48 Fed.Reg. 46084. Later, in the fina! rulemaking, answering objections raised by the state, EPA continued to rely on two separate theories, first, thata nonattainment area must include all the sources that contribute to pollution in that area; and second, that an urban ozone nonattainment area must include the entire urbanized area: [I]t is important that the nonattainment areas be of sufficient size to include all emissions sources... which contribute significantly to the violation of NAAQS. 49 Fed.Reg. 24130. A-40 EPA’s determination is based upon the fact that these counties are part of major urbanized areas.... 49 Fed.Reg. 24130. As we have pointed out already, these theories are not only apparently inconsistent with one another (the first would require Chicago sources to be part of the southeastern Wisconsin nonattainment area, if EPA meteor- ologicai information is right, whereas the second evidently would not), they are both inconsistent with the action EPA took in originally approving the Illinois ozone list for the Chicago area by counties. Illinois, having gotten its list by counties approved in 1978, and having gathered data to show that two of the original nonattainment areas, Kane and Du Page Counties, are now in attainment, brings this appea! to protest the EPA action. (Although separate actions were brought by the Illinois Environmental Protection Agency and the Illinois Chamber of Commerce, for simplicity we will treat their arguments to- gether as arguments of the Illinois litigants.) Illinois argues that, since no vioiations have been monitored in Kane or Du Page Counties, and since those counties have been approved as separate attainment-nonatiainment areas, EPA is either basing a nonattainment status for those areas on air quality monitored in other areas; or else it is now trying to change the borders of the nonaitainment areas to make all of the Chicago area—including Kane and Du Page Counties—one non- attainment area. If itis doing the first, the state argues, then itis doing something not authorized by the statute, which author- izes the EPA to use only local air quality to determine the status of an area; and in addition, according to Illinois, EPA has not shown that emissions in Kane and Du Page actually contribute to the ozone problem in the core Chicago area and downwind. if, on the other hand, it is trying to change the borders, then under Bethlehem Steel v. EPA, 723 F.2d 1303 (7th Cir. 1983) (as Illinois reads it), it is doing something it may A-41 not do. As the state sees it, EPA’s authority over the boundaries of nonattainment areas is limited to modifying changes in those boundaries proposed by the states, and does not extend to changing the boundaries when the state has proposed a change in attainment status. C. Since the statute does not require a hearing before EPA promulgates a rule denying a state’s redesignation request, the proper standard of review, under § 706(2)(A) of the Administrative Procedure Act, 5 U.S.C. § 706(2)(A), is the “arbi- trary and capricious” standard. In this case EPA announced a proposed rulemaking that was apparently in conflict with earlier decisions. EPA is entitled to change its policy, but it must do so on the basis ofa reasoned analysis. Motor Vehicle Manufacturers Assoc. v. State Farm Mutual Automobile Ins., 463 U.S. 29, 57, 103 S.Ct. 2856, 2874, 77 L.Ed.2d 443 (1983). If EPA changed its policy, it did not say so; and neither did it explain how its justification of its most recent action could be made consistent with its earlier actions, if no change in policy was involved. It must do one or the other. If it has changed its policy, it must explain how and why; if it has not, it must articulate an explanation that will account for both the earlier and the most recent actions it has taken. Until it has done one or the other, its actions will appear to be arbitrary, and rational review in this court will be impossible.‘ 4 The Chamber of Commerce argues that EPA did not follow proper procedures, and that redesignation proceedings must include a formal hearing. It argues that such proceedings are adjudications rather than rulemaking, and thus are subject to the requirements of 5 U.S.C. § 554(c), which requires an agency to provide opportunity for a hearing. Section 554 in which a hearing is required by statute. The Clean Air Act —————EEeEeEeEEEeEr A-42 We are aware of atleast four different ways in which EPA might justify the action it has taken. Each is more or less cansistent with the available evidence concerning ozone; but each is also inconsistent with something EPA has said or done in the past. It is not our duty, in reviewing EPA's action, to pick and choose among the various justifications that might be given. State Farm, 463 U.S. at 43, 103 S.Ct. at 2866. We feel obliged, however, to say enough about the various theories to show how they fall short of making a recognizable pattern out of the pieces in this puzzle, and to suggest how those shortcomings might be remedied. does in the case not require a hearing for redesignation proceedings. It is true that an “opportunity for the oral presentation of data” must be given to interested parties in the case of proceedings that fall under § 307 of the Clean Air Act, 42 U.S.C. § 7607(d)(5) but a § 107 redesignation proceeding is not one that fails under § 307 by the terms of that section. Thus redesignation proceedings would not require hearings (“oral” hearings) even if they were adjudications. Moreover, there is no good reason to think that these proceedings must be considered adjudications. The Administrative Procedure Act defines “rule” to mean any statement “of general or particular applicability and future effect designed to implement, interpret or prescribe law or policy.” 5 U.S.C. § 551(4). That description seems to fit not only “statements” that issue from designation proceedings, see D. Currie, Air Pollution 6-8 n. 9 (1981), but those that issue from redesignation proceedings as well. It is true, as the Chamber points out, that we said in U.S. Stee! v. EPA, 605 F.2d 283, 285-86 n. 3 (7th Cir. 1979), that the question whether designation proceedings were rulemaking was “not without difficulty;” our concern there, however, was whether designations might be merely preliminary proceedings, governing the future formulation of actual regulations concerning the designated areas, and thus not subject even to the notice and comment requirement. Thus, we cited Citizens to Preserve Overton Park v. Voipe, 401 U.S. 402, 91 S.Ct. 814, 28 L.Ed.2d 136 (1971), as involving an analogous proceeding that the Supreme Court held did not rise to the ieve! of rulemaking. The problem in U.S. Stee/ was thus not whether to require more procedure than notice and comment, but whether even that much was required. In the end we did not decide the issue because the EPA, in calling the proceeding a rulemaking, had brought itself under the requirement to provide notice and the opportunity to comment. To suppose that U.S. Stee/ decided that these proceedings should be considered adjudications, or that we even considered the question in that opinion, is to misread the opinion and to suggest how those shortcomings might be remedied. A-43 Although the choice of a theory rests ultimately with EPA, we have already seen that one of these theories does not have much to recommend it: the theory which would make a polluted area, together with all areas containing sources contributing to pollution in that area, one nonattainment area. For one thing that theory does not explain the original division into counties, or the separate upgrading of Will and McHenry Counties, acknowledged sources of pollution in the Chicago area. For another thing, in the case of ozone the areas would have to be large; and since ozone pollution occurs downwind of the sources, in some cases the polluted area itself might contribute nothing to the pollution. It should be within EPA’s discretion to allow the upgrading of such areas (something it could not do if both the polluted area and the source made up one nonattainment area). Moreover, our beliefs about the movement of ozone and ozone precursors are subject to revision, as the environment and our knowledge of the environment changes; but the limits of a nonattainment area ought not to be subject to constant revision. And finally a look at the boundaries originally approved by EPA in the eight largest metropolitan areas shows that, with the exception of the Chicago area, the boundaries were large enough in each case to include the entire urbanized area, but that no attempt was made to draw up the boundaries in such a way as to track the movement of ozone away from the sources, as this theory would require. 40 C.F.R. §§ 81.333 (New York), 81.305 (Los Angeles), 81.314 (Chicago), 81.339 (Philadelphia), 81.323 (Detroit), 81.305 (San Francisco), 81.322 (Boston), 81.309 (Washington, D.C.). Hence the theory fails to explain not only what EPA did in the Chicago area, but what it did in those other areas as well. The remaining three theories are more plausible. On the assumption that EPA did approve the counties as separate nonattainment areas in 1978, EPA may now be arguing that — A-44 ozone attainment must be determined at monitors downwind and outside the area itself; or EPA may be arguing that attainment of the ozone standard is to be determined on the basis of ozone precursors monitored within the area itself. Both these theories are consistent with EPA’s desire to make the source area a nonattainment area, without involving the apparently unworkable notion that a polluted area together with all its sources must make up one nonattainment area. Under either of these theories, the present county boundaries remain the boundaries of the nonattainment areas in Chicago, but the attainment status of those areas will depend on ozone pollution elsewhere. On the other hand, EPA may be arguing that it never approved the division of the area into counties, and that Kane and Du Page are part ofa unitary Chicago nonattainment area. This theory requires an explanation of the original listing, and for the fact that Will and McHenry Counties, arguably part of the larger Chicago area, were upgraded individually. The first of the theories—that attainment of the standard in one area may be determined by the presence of ozone in another area—is not inconsistent with the statute. The relevant provision is a definition: The term “nonattainment area” means, for any air pollutant, an area which is shown by monitored data or which is calculated by air quality modeling (or other methods determined by the Administrator to be reliable) to exceed any national ambient air quality standard for such pollutant. § 171(2), 42 U.S.C. 7501(2). Nothing in the statute says that monitoring must be done within the area itself; indeed, the facts suggest that the best, and perhaps only, way to monitor A-45 for ozone would be to monitor downwind. (The word “ambi- ent’ is defined in the statute to mean roughly the same as “outdoor,” it does not carry the connotation of “local.”) Since the statute gives the Administrator a certain amount of discretion (“other methods determined by the Administrator to be reliable’), and since other provisions of the Act do not limit that discretion, it would seem to be within the authority of the agency to monitor ozone production at sites downwind.5 EPA has not set down standards for this sort of off- location measuring, however; existing guidelines suggest a determination of status by means of monitoring within the area. See Guideline for the Interpretation of Ozone Air Quality Standards (EPA 450/4-79-003). If EPA has something differ- ent in mind, it should make clear how ozone pollution is to be measured downwind, and that is something it so far has not done.® Something similar is true of the second theory, which would base attainment status on the measurement of ozone precursors within the area itself: as the monitoring guideline is currently written, it is written in terms of ozone, and not ozone precursors. Nevertheless, the guidelines are within the power of EPA to change. The current state of scientific knowledge suggests that it would be worse than foolish to start with geographically small areas, for ozone, and then base the attainment status of * Among the virtures of this theory is the fact that it would reserve the decision about the boundaries primarily to the state, and the decision about monitoring methods primarily to the EPA. ® In its Brief, EPA claims to have relied on monitoring sites in areas downwind of Kane and Du Page Counties (Deerfield, lll.; Libertyville, Ili; Evanston, Ill; Skokie, ill; Kenosha, Wis.; and Racine, Wis.), all of which recorded violations of the ozone standard between 1980—82. No general criteria for selecting sites downwind have ever been suggested, however a A-46 each area on the monitoring of ozone within that area. Attainment and nonattainment are meant to reflect the con- tribution of an area to the pollution problem; and perhaps [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385018_1479%3A1. Public record. Not legal advice.