ORAL ARGUMENT NOT YET SCHEDULED

No. 12-1309 (Lead) and Consolidated Cases

UNITED STATES COURT OF APPEALS

FOR THE DISTRICT OF COLUMBIA CIRCUIT

_________________

MISSISSIPPI COMMISSION ON ENVIRONMENTAL QUALITY , ET AL.,

Petitioners, v.

ENVIRONMENTAL PROTECTION AGENCY, ET AL., Respondents.

_________________

On Petitions for Review of Environmental Protection Agency Rules

CORRECTED JOINT BRIEF OF THE STATE AND COUNTY PETITIONERS

_________________

Reed D. Rubinstein DINSMORE & SHOHL LLP 801 Pennsylvania Avenue, N.W. Suite 610 Washington, DC 20004 (202) 372-9100 reed.rubinstein@dinsmore.com Counsel for Petitioner Wise County, Texas

Donna J. Hodges MISSISSIPPI COMMISSION OF

ENVIRONMENTAL QUALITY PO Box 2261 Jackson, MS 39225 Telephone (601) 961-5369 donna_hodges@deq.state.ms.us Counsel for Petitioner Mississippi Commission on Environmental Quality

Dated: September 20, 2013 Additional Counsel listed on inside cover

Gary Rikard BUTLER, SNOW, O’MARA, STEVENS AND CANADA PLLC P.O. Box 171443 Memphis, TN 38187 Telephone: (901) 680-7319 gary.rikard@butlersnow.com Counsel for Petitioner DeSoto County

Wilson S. Buntin ASSISTANT ATTORNEY GENERAL TENNESSEE ATTORNEY GENERAL'S

OFFICE, ENVIRONMENTAL DIVISION P.O. Box 20207 Nashville, Tennessee 37202 Telephone: (615) 253-5118 wilson.buntin@ag.tn.gov Counsel for Petitioner State of Tennessee

Mark L. Walters ASSISTANT ATTORNEY GENERAL ENVIRONMENTAL PROTECTION DIVISION TEXAS ATTORNEY GENERAL’S OFFICE Wm. P. Clements State Office Bldg. 300 West 15th Street Austin, Texas 78701 Telephone: (512) 475-4156 mark.walters@texasattorneygeneral.gov Counsel for Petitioners State of Texas and Texas Commission on Environmental Quality

Thomas J. Aaberg COMMISSIONER COURT ATTORNEY WISE COUNTY, TEXAS P.O. Box 899 Decatur, Texas 76234 Telephone: (940) 393-1507 thomas.aaberg@co.wise.tx.us Of Counsel for Petitioner Wise County, Texas

Sunni Harris DINSMORE & SHOHL LLP 801 Pennsylvania Avenue, N.W. Washington, DC 20004 (202) 372-9100 sunni.harris@dinsmore.com Of Counsel for Petitioner Wise County, Texas

i

CERTIFICATE AS TO PARTIES, RULINGS AND RELATED CASE S

Pursuant to Circuit Rule 28(a)(1)(A), Petitioners Mississippi Commission

on Environmental Quality, DeSoto County, Mississippi, State of Tennessee, State

of Texas and Texas Commission on Environmental Quality, and Wise County,

Texas, state as follows.

A. Parties, Intervenors and Amici.

Because these consolidated cases involve direct review of final agency

action the requirement to provide a list of parties, intervenors and amici that

appeared below is inapplicable.

These parties are before the Court.

Petitioners: The State and County Petitioners are Mississippi Commission

on Environmental Quality (No. 12-1309), Wise County, Texas (Nos. 12-1313, 13-

1046), State of Tennessee (Nos. 12-1314, 13-1061), State of Texas and Texas

Commission on Environmental Quality (Nos. 12-1316, 13-1053), and DeSoto

County, Mississippi (No. 12-1328).

The Delaware Petitioner is the Delaware Department of Natural Resources

and Environmental Control (No. 12-1310).

Industrial Petitioners are Devon Energy Corporation (Nos. 12-1322, 13-

1050); Targa Resources Corporation (Nos. 12-1323, 13-1054); Texas Pipeline

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Association (Nos. 12-1312, 13-1051); and Gas Processors Association (Nos. 12-

1318, 13-1052).

Indiana Petitioner is the State of Indiana (No. 12-1315).

Environmental Petitioners are Sierra Club (Nos. 12-1317, 13-1030); and

Wildearth Guardians, Southern Utah Wilderness Alliance, and Utah Physicians for

a Healthy Environment (Nos. 12-1326, 13-1032).

Respondents: Respondents are the United States Environmental Protection

Agency (“EPA”) and its Administrator Gina McCarthy.

Intervenors: The Environmental Defense Fund has intervened on behalf of

the Respondent in Nos. 12-1312, 12-1313, 12-1316, 12-1318, 12-1322, and 12-

1323.

The State of Connecticut has intervened on behalf of the Delaware Petitioner

in No. 12-1310 .

Amici : Currently, there are none.

B. Rulings Under Review.

The Petitioners seek review of EPA’s final rule entitled Air Quality

Designations for the 2008 Ozone National Ambient Air Quality Standards, 77 Fed.

Reg. 30088 (May 21, 2012) (“Final Rule”). Some of the Petitioners also seek

review of Air Quality Designations for the 2008 Ozone National Ambient Air

iii

Quality Standards: Notice of Actions Denying Petitions for Reconsideration and

Stay Requests, 78 Fed. Reg. 925 (Jan. 7, 2013).

C. Related Cases.

There are none.

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TABLE OF CONTENTS

CERTIFICATE AS TO PARTIES, RULINGS AND RELATED CASES ............... i

TABLE OF CONTENTS .......................................................................................... iv

TABLE OF AUTHORITIES .................................................................................... vi

GLOSSARY OF TERMS .......................................................................................... x

JURISDICTIONAL STATEMENT .......................................................................... 1

STATUTES AND REGULATIONS ......................................................................... 1

STATEMENT OF ISSUES FOR REVIEW .............................................................. 1

STATEMENT OF THE CASE .................................................................................. 3

FACTS ....................................................................................................................... 4

I. Background ........................................................................................... 4

II. The Ozone NAAQS............................................................................... 5

III. Shelby County, Tennessee/DeSoto County, Mississippi ...................... 5

IV. Wise County, Texas .............................................................................. 8

SUMMARY OF THE ARGUMENT ...................................................................... 14

STANDARD OF REVIEW ..................................................................................... 17

STANDING ............................................................................................................. 20

ARGUMENT ........................................................................................................... 20

I. Arguments By The Mississippi Petitioners ......................................... 20

A. EPA Disregarded the Controlling Standard .............................. 20

B. EPA’s Factor Analysis was Arbitrary and Capricious ............. 22

II. Arguments By The Tennessee Petitioner ............................................ 29

v

A. Region 4’s Failure to Advise Tennessee that Consideration of Current Data Was Contingent on All States in the Memphis CSA Meeting the February 29, 2012 Deadline Was Unlawful .................................................................................... 29

B. Region 4’s Refusal to Consider Current Data was Inconsistent with Region 5 and Unlawful ..................................................... 30

C. EPA Unlawfully Denied Tennessee’s Petition for Reconsideration ......................................................................... 31

III. Arguments By The Texas Petitioners ................................................. 32

A. EPA Exceeded Constitutional Limits on Federal Power .......... 32

B. The Nonattainment Designation was Unlawful ........................ 39

CONCLUSION ........................................................................................................ 52

CERTIFICATE OF COMPLIANCE

CERTIFICATE OF SERVICE

STATUTORY AND REGULATORY ADDENDUM

vi

TABLE OF AUTHORITIES

Cases

Air Transp. Ass’n of Am. v. Nat’l Mediation Bd., 663 F.3d 476 (D.C. Cir. 2011) ............................................................................................. 18,37

Allen v. Wright, 468 U.S. 737 (1986) .......................................................................20

Am. Lung Ass'n v. EPA, 134 F.3d 388 (D.C. Cir. 1998) ....................... 24, 26, 27, 48

* Amalgamated Meat Cutters v. Connally, 337 F. Supp. 737 (D.D.C. 1971) ................................................................................................ 35, 49

* American Mining Congress v. United States Department of Labor, 995 F. 2d 1106 (D.C. Cir. 1993) ...........................................................................................18

American Pet. Inst. v. EPA, 684 F.3d 1342 (D.C. Cir. 2012) ..................................19

Appalachian Power v. EPA, 208 F.3d 1015 (D.C. Cir. 2000) .................... 27, 39, 46

Ass’n of Nat’l Advertisers, Inc. v. FTC, 627 F.2d 1151 (D.C. Cir. 1979) ...............38

ATK Launch Systems v. EPA, 669 F.3d 330 (D.C. Cir. 2012) .................................23

Burlington Truck Lines, Inc. v. United States, 371 U.S. 156 (1962) .......................17

* Catawba County, N.C. v. EPA, 571 F.3d 20 (D.C. Cir. 2009) .................................................... 14, 20, 21, 31,33, 35, 44, 45, 48

Chevron USA Inc. v. Natural Resources Defense Council, 467 U.S. 837(1984) ........................................................................................................................ 18,50

Cnty. of Los Angeles v. Shalala, 192 F.3d 1005 (D.C. Cir. 1999) ...........................18

EME Homer City Generation, L.P. v. EPA, 696 F.3d 7(2012) .............................. 28

Environmental Defense Fund v. Massey, 986 F.2d 528 (D.C. Cir. 1993) ...............19

GDF Realty Invest. Ltd. v. Norton, 326 F.3d 622 (5th Cir. 2003) ............................37

Gen. Elec. Co. v. EPA, 53 F.3d 1324 (D.C. Cir. 1995). ..........................................50

General Electric Co. v. EPA, 290 F.3d 377 (D.C. Cir. 2002) .................................39

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Gersman v. Grp. Health Ass’n, 931 F.2d 1565 (D.C. Cir. 1991). ...........................38

* Gonzales v. Raich, 545 U.S. 1 (2005) ............................................................ 18, 37

Hodel v. Virginia Surface Mining & Reclamation Ass’n, Inc., 452 U.S. 264 (1981) ............................................................................................................. 32, 35

* International Union v. OSHA, 938 F.2d 1310 (D.C. Cir. 1991) .................... 35, 49

Lead Indus. Ass’n v. EPA, 647 F.2d 1130 (D.C. Cir. 1980) ....................................37

Mississippi v. EPA, 723 F.3d 246 (D.C. Cir. 2013) .................................................48

Motor Vehicle Mfr. Ass’n v. State Farm Mut. Auto Ins. Co., 463 U.S. 29 (1983) ................................................................................................. 14, 17, 19, 48

* Nat’l Fed’n of Indep. Bus.v. Sebelius, 567 U.S. __, 132 S.Ct. 2566 (2012) 16, 18, 32, 33, 34

New York v. United States, 505 U.S. 144 (1992) .................................. 18, 32, 34, 35

* Prime Time Intern. Co. v. Vilsack, 599 F.3d 678 (D.C. Cir. 2010) ........ 14, 18, 46, ……………………………………………………………………… .. ………...48

Rancho Viejo, LLC v. Norton, 334 F.3d 1158 (D.C. Cir. 2003) ....................... 36, 37

Rapanos v. United States, 547 U.S. 715 (2006) ......................................................37

Rollins Envtl. Servs. Inc. v. EPA, 937 F.2d 649 (D.C. Cir. 1991) ...........................51

Sierra Club v. EPA, 536 F.3d 673 (D.C. Cir. 2008) ................................................50

Solid Waste Agency of N. Cook Cty. v. U.S. Army Corps, 531 U.S. 159 (2001) .....37

United States v. Lopez, 514 U.S. 549 (1995) ..........................................................36

United States v. Chrysler Corp., 158 F.3d 1350 (D.C. Cir. 1998) ..........................51

* United States v. Mead, 533 U.S. 218 (2001) ........................................................18

United States v. Morrison, 529 U.S. 598 (2000) .............................................. 18, 37

Whitman v. American Trucking Ass’n, 531 U.S. 457 (2001) ..................................35

viii

Federal Regulations

40 C.F.R. § 1505.1 ...................................................................................................19

Federal Statutes

42 U.S.C. § 4321 ......................................................................................................19

42 U.S.C. § 7407 ................................................................. 4, 20, 32, 33,35,37,48,50

42 U.S.C. § 7410 ...................................................................................................4,41

42 U.S.C. § 7511 ...................................................................................... 4, 14, 20,33

42 U.S.C. § 7607 ............................................................................................. 1, 4, 17

42 U.S.C. §7509 ...................................................................................... 4, 14, 20, 33

44 U.S.C. § 3516 note ................................................................................................ 3

5 U.S.C § 706 ...........................................................................................................17

5 U.S.C. § 553 ..........................................................................................................19

Federal Register

67 Fed. Reg. 8452 ............................................................................. 3, 18, 19, 46, 47

77 Fed. Reg. 30088 .......................................................... ii, ix, 1, 3, 5, 13, 20, 25, 26

78 Fed. Reg. 925 ........................................................................................................ 1

Miscellaneous

Amy Harder, Sierra Club Hires EPA Official Felled by 'Crucify' Comments, (June 29, 2012) .............................................................................................................. 13

Cass Sunstein, Is the Clean Air Act Constitutional?, 98 MICH. L. REV. 303 (1999) ....................................................................................................................... 35, 49

ix

EPA Guidance on the Use of Models and Other Analyses for Demonstrating Attainment of Air Quality Goals for Ozone (2007) ............................................ 40

EPA Guidelines .......................................................................................... 3,19,46,47

John Burnett, Health Issues Follow Natural Gas Drilling In Texas, NPR (Nov. 3, 2009) .................................................................................................................... 13

A.C. Lin, Refining Fair Notice Doctrine: What Notice Is Required of Civil Regulations? 55 BAYLOR L. REV. 991 (2003) ..................................................... 51

Moving Ahead For Progress in the 21ST Century: Federal Transportation Reauthorization (May 2013) ................................................................................ 33

Sierra Club, Why Move Beyond Natural Gas? ....................................................... 38

Technical Support for State and Tribal Air Quality Designations and Classifications ........................................................................................................ 9

*Authorities upon which we chiefly rely are marked with asterisks.

x

GLOSSARY OF TERMS

APCA Anthropogenic Precursor Culpability Analysis

CAA Clean Air Act

CAMx Comprehensive Air Quality Model with Extensions

CSA Combined Statistical Area

CSAPR Cross-State Air Pollution Rule

DFW Dallas-Fort Worth

DV Design Value

DVB Baseline Design Value

DVF Future Design Value

EPA United States Environmental Protection Agency

EPA Guidelines EPA Guidelines for Ensuring and Maximizing the Quality, Objectivity, Utility, and Integrity of Information Disseminated by the Environmental Protection Agency available at http://www.epa.gov/quality/informationguidelines/documents/EPA_InfoQualityGuidelines.pdf (accessed September 10, 2013).

Final Rule Air Quality Designations for the 2008 Ozone National Ambient Air Quality Standards,” 77 Fed. Reg. 30088 (May 21, 2012)

HYSPLIT Hybrid Single-Particle Lagrangian Integrated Trajectory model

IQA Information Quality Act, 44 U.S.C. § 3516 note

xi

IQA Requirements Information Quality Act, 44 U.S.C. § 3516 note, Office of Management and Budget Guidelines for Ensuring and Maximizing the Quality, Objectivity, Utility, and Integrity of Information Disseminated by Federal Agencies, 67 Fed. Reg. 8452 (Feb. 22, 2002) and EPA Guidelines for Ensuring and Maximizing the Quality, Objectivity, Utility, and Integrity of Information Disseminated by the Environmental Protection Agency available at http://www.epa.gov/quality/informationguidelines/documents/EPA_InfoQualityGuidelines.pdf (accessed September 10, 2013).

JA Joint Appendix

MSA Metropolitan Statistical Area

NAAQS National Ambient Air Quality Standard

NEPA National Environmental Policy Act

NOx Nitrogen Oxide

OMB Guidelines Office of Management and Budget Guidelines for Ensuring and Maximizing the Quality, Objectivity, Utility, and Integrity of Information Disseminated by Federal Agencies, 67 Fed. Reg. 8452 (Feb. 22, 2002)

PPM Parts Per Million

RRF Relative Response Factor

SAM Source Apportionment Modeling

TCEQ Texas Commission on Environmental Quality

TSD Technical Support Document

xii

VMT Vehicle Miles Traveled

VOCs Volatile Organic Compounds

1

JURISDICTIONAL STATEMENT

Petitioners seek review of EPA’s 2008 ozone National Ambient Air Quality

Standard (“NAAQS”) nonattainment designations for DeSoto County, Mississippi,

Shelby County, Tennessee, and Wise County, Texas, 77 Fed. Reg. 30088 (May 21,

2012) (JA __) and of EPA’s refusal to reconsider or stay these designations, 78

Fed. Reg. 925 (Jan. 7, 2013) (JA __). Petitioners timely filed for review of these

final Agency actions pursuant to 42 U.S.C. § 7607(b)(1) and this Court has

jurisdiction under that section.

STATUTES AND REGULATIONS

Pertinent statutes and regulations are reproduced in the relevant addendum.

STATEMENT OF ISSUES FOR REVIEW

The Mississippi Petitioners (Mississippi Commission on Environmental Quality

and DeSoto County)

1. Whether EPA unlawfully refused to consider current certified 2009-

2011 air quality data for DeSoto County before designating it nonattainment.

2. Whether EPA unlawfully denied Petitioners’ request for

reconsideration.

3. Whether EPA unlawfully determined DeSoto County significantly

contributed to Tennessee ozone nonattainment.

2

The Tennessee Petitioner (State of Tennessee)

1. Whether EPA unlawfully refused to consider current certified 2009-

2011 air quality data for Shelby County before designating it nonattainment.

2. Whether EPA unlawfully treated Tennessee inconsistently compared

to other States where EPA considered 2009-2011 air quality data.

3. Whether EPA unlawfully denied Petitioner’s request for

reconsideration.

The Texas Petitioners (State of Texas, Texas Commission on

Environmental Quality and Wise County)

1. Whether EPA’s nonattainment designation exceeded Constitutional

limits on Federal power.

2. Whether EPA unlawfully designated Wise County nonattainment by:

(a) Overriding the Texas Commission on Environmental Quality’s

(“TCEQ”) attainment designation.

(b) Using standards contrary to those used by other Regions.

(c) Relying on a Hybrid Single-Particle Lagrangian Integrated Trajectory

(“HYSPLIT”) model providing no information about ozone formation or transport

and showing Wise County was downwind to support the nonattainment

designation.

3

(d) Failing to demonstrate Information Quality Act, 44 U.S.C. § 3516

note (“IQA”), Office of Management and Budget Guidelines for Ensuring and

Maximizing the Quality, Objectivity, Utility, and Integrity of Information

Disseminated by Federal Agencies, 67 Fed. Reg. 8452 (Feb. 22, 2002) (“OMB

Guidelines”) and Guidelines for Ensuring and Maximizing the Quality,

Objectivity, Utility, and Integrity of Information Disseminated by the

Environmental Protection Agency available at

http://www.epa.gov/quality/informationguidelines/documents/EPA_InfoQualityGu

idelines.pdf (accessed September 10, 2013) (“EPA Guidelines”) (collectively “IQA

Requirements”) compliance.

(e) Failing to promulgate regulatory definitions of the terms “necessary”

and “contribute” to limit the Agency’s discretion to override State designations.

(f) Exceeding its statutory authority by designating nonattainment

without direct evidence Wise County emissions contributed to ozone NAAQS

violations.

(g) And, failing to provide fair notice of how EPA applies its “contribute

to nonattainment” test.

STATEMENT OF THE CASE

The consolidated cases are petitions for review of the Agency’s Final Rule

making ozone nonattainment designations for DeSoto County, Mississippi, Shelby

4

County, Tennessee and Wise County, Texas, contrary to the designations of their

respective States, and its denials of Petitioners’ requests for reconsideration

thereof.

FACTS

I. Background.

The Clean Air Act (“CAA”) commands “[e]ach State shall have the primary

responsibility for assuring air quality” within its boundaries. 42 U.S.C. § 7407(a).

Section 7407(d)(1)(A) authorizes States to make attainment designations after EPA

promulgates a new or revised NAAQS. Section 7407(d)(1)(A)(i) directs States to

make nonattainment designations for “any area that does not meet (or that

contributes to ambient air quality in a nearby area that does not meet)” ozone and

other NAAQS. Section 7410 (a)(2)(D)(i)(I) requires States to regulate emissions

that “contribute significantly” to nonattainment in another State.

The CAA authorizes the Environmental Protection Agency (“EPA”) to

override the States and make nonattainment designations whenever it deems

“necessary.” See 42 U.S.C. § 7407(d)(1)(B)(ii). Consequently, the Agency may

commandeer States into implementing the CAA’s massive federal regulatory

scheme and impose drastic penalties for refusal. 42 U.S.C. §§ 7509(b), 7511 et

seq. EPA designated DeSoto, Shelby and Wise counties nonattainment, overriding

their respective States’ designations.

5

II. The Ozone NAAQS.

EPA set the 2008 ozone NAAQS at 0.075 parts per million (“ppm”) based

on a three-year average of the annual fourth-highest daily maximum 8-hour

average concentration and issued designation guidance for the States. 77 Fed. Reg.

30089/90 (JA__); Mem. from R. Meyers (12/4/08) (“Meyers Mem.”) (JA__).

EPA defined an area as nonattainment if it exceeded the NAAQS or “contributed”

to a NAAQS exceedance in a nearby area, said designations should be evaluated

on a case-by-case basis, and specified nine factors for States and EPA Regions to

use in their analysis. Meyers Mem. 3 (JA__).

EPA’s Regions implemented the guidance inconsistently. Some focused on

wind direction. See New York-Northern New Jersey Technical Support Document

(“TSD”) 13 (JA__); Wisconsin TSD 6 (JA__). Others used air modeling,

emphasizing that a “sufficient contribution” was needed for a nonattainment

designation. Pennsylvania TSD 24-28, 30 (JA__–__, __).

III. Shelby County, Tennessee/DeSoto County, Mississippi.

A. Shelby County.

The State of Tennessee (“Tennessee”) initially recommended Shelby County

for a nonattainment designation. Tennessee Ltr. (3/10/09) (JA__). However, new

certified 2009-2011 data showed Shelby County in attainment and on November 8,

2011, Tennessee notified Region 4 accordingly. Tennessee Revision Ltr. (11/8/11)

6

(JA__). On December 8, 2011, Region 4 rejected Tennessee’s attainment

designation, but invited additional information by February 29, 2012. Ltr. to Gov.

Haslam (12/8/11) (JA__).

On February 27, 2009, Tennessee showed that the current certified 2009-

2011 data proved attainment, and provided a detailed “contribution analysis” or

“nine-factor analysis” proving Shelby County was not contributing to

nonattainment at the relevant monitor in Crittenden County, Arkansas.1 Tennessee

Ltr. (2/27/12) (JA__). On April 5, 2012, Tennessee again advised Region 4 that

current 2009-2011 data from Tennessee, Mississippi and Arkansas demonstrated

attainment.2 Tennessee Ltr. (4/5/12) (JA__).

B. DeSoto County.

On March 3 and July 8, 2009, and on October 27, 2011, the Mississippi

Department of Environmental Quality (“Mississippi”) advised Region 4 that

DeSoto County was in attainment. All Mississippi monitors, including the DeSoto

County monitor, were in attainment based on the 2008-2010 data, and on February

1Alternatively, Tennessee asked Region 4 to designate only the part of Shelby County including the City of Memphis as nonattainment because 70% of County residents lived there and the majority of ozone was generated within its limits. (JA__). 2Tennessee reminded Region 4 that the “Arkansas monitoring data for 2011 demonstrating nonattainment…has been quality assured and will be certified before official designations must be made.” (JA__).

7

29, 2012, Mississippi provided Region 4 with certified new 2009-2011 data

reaffirming same. (JA__).

C. Region 4 Action.

On April 30, 2012, Region 4 issued a final TSD for the Memphis Combined

Statistical Area (“CSA”) using old 2008-2010 data because it was “most recent

years with fully certified air quality data for all three states.” It said Mississippi,

Tennessee, and Arkansas knew that if they wished to provide additional

information on EPA’s intended designation or to use early certified 2009-2011

monitoring data for designation, they should provide comments or early certify by

February 29, 2012. (JA__). Region 4 said Tennessee and Mississippi met the

deadline, but Arkansas did not. Therefore, it refused to consider current data. See

Memphis, TN-MS-AR TSD 1/5, Ltr. to Trudy Fisher (12/14/12) (JA__, __). Based

on old 2008-2010 data, Region 4 designated all of Shelby County nonattainment.

Id. 1/6. It also designated the northern portion of DeSoto County nonattainment

because of percentage increases in population and traffic through the County. Id.

8/16.

Tennessee and Mississippi requested reconsideration of these nonattainment

designations, but EPA denied them. (JA__,___). Responding to Mississippi’s

request, EPA said “it was not appropriate…[to evaluate] mismatched data for the

three states to determine that the entire area was in attainment, or to have

8

alternatively evaluated data from 2009-2011 for all three states in a contribution

analysis.” See Ltr. to Trudy Fisher enclosure 2 (JA__). However, Region 4’s

refusal to use the newest and best data conflicted with Region 5’s practice, among

others.3

IV. Wise County, Texas.

Wise County covers approximately 923 square miles. Its population is

59,127 compared to the Dallas-Fort Worth (“DFW”) nonattainment area’s4

population of nearly 6.7 million and its 2008 vehicle miles traveled (“VMT”) was

969 million miles compared with an area-wide VMT of 68,050 million miles. 5

DFW TSD Table 6 10/12 (JA__). The County is part of the Barnett Shale

geologic formation, one of America’s most important oil and natural gas fields,

and so oil and gas wells are located there.

3Region 5 used “the most recent three-years of state-certified air quality data available as of February 29, 2012” which was 2008-2010 for Indiana and Wisconsin and 2009-2011 for Illinois. Chicago-Naperville Illinois-Indiana-Wisconsin TSD 2 (JA__). 4The 1997 8-hour ozone NAAQS DFW nonattainment counties are Collin, Dallas, Denton, Ellis, Johnson, Kaufman, Parker, Rockwall and Tarrant. This area is larger than Connecticut and Rhode Island combined. Wise County is north and west of Tarrant, north of Parker, and west of Denton counties. DFW TSD 1/3 (JA__). 5EPA considers population density and total VMT important indicators of ozone formation. DFW TSD 9 (JA__).

9

The wind “seldom passes over…Wise County…before reaching ozone

monitors on high ozone days.” TCEQ TSD 7/9 (JA__). Wise County point source

NOx emissions dropped 25% between 2002 and 2010, id. 3, and County volatile

organic compounds (“VOCs”) emissions contributed insignificantly to ozone

formation. Ltr. to Devon enclosure § IV (JA__). TCEQ’s analysis, based on EPA

modeling guidance, demonstrated that Wise County was expected to contribute

less than 0.75 ppb to every relevant nonattainment monitor. TCEQ TSD 9/14

(JA__); TCEQ Pet. for Reconsideration 6 (JA__). Thus, TCEQ designated Wise

County attainment. Id. 2 (JA __).

EPA Region 6 overruled TCEQ and designated Wise County nonattainment

using a methodology typically disfavored by the Agency,6 ignoring pollutant

concentrations, transport or dispersal,7 and disregarding prevailing winds.8 EPA

claimed to rely on several factors to designate nonattainment, including population

6EPA used the HYSPLIT model that it says “has significant limitations…it does not take into consideration atmospheric chemical processes, the injection of emissions, or the deposition of material along the trajectory path.” See Technical Support for State and Tribal Air Quality Designations and Classifications, April 2004, Chapter 3 at 3-202 available at http://www.epa.gov/ozonedesignations/1997standards/tech.htm (accessed September 16, 2013) (JA__) 7TCEQ Pet. for Reconsideration 7 (JA__). 8TCEQ TSD 7/9 (JA__).

10

growth, 9 but in actuality it relied on only one – increased Barnett Shale production.

Ltr. to Devon enclosure § IV (JA__).

EPA’s nonattainment designation incited many critical comments. Some

focused on the absurdity of the “population growth” justification.10 Others

9EPA said “The close proximity of these comparatively high emissions to violating monitors indicates that this county should be included in the nonattainment area. The high growth in these emissions is due in large part to growth in emissions from Barnett Shale gas production development, but also due to growth in population.” DFW TSD 23 (JA__). EPA also cited “back trajectories” showed Wise County emissions “at times… contribute to observed violations” and modeling by TCEQ “indicates” emissions from Wise County “can contribute” to observed violations. Id.; but see infra at Argument §§ III (B)(1), (3), (4) - (6). Actually, EPA overestimated Wise County emissions, especially for VOCs. Total Wise County VOC emissions should have been 10,331 tons rather than 17,609 tpy, as EPA claimed. See Ltr. from Devon 3/4 (10/30/12). This total places Wise County well below the large emitters in the study area and is not “comparatively high,” as EPA stated in the DFW TSD. Id. 10Wise County Judge McElhaney commented:

[I]t is incredible to conclude that Wise County’s 59,127 residents and 60 persons per square mile…in being compared to the entire DFW area’s…population - - which includes Dallas County’s 2.4 million/2,600 persons per square mile (ppsm); Tarrant’s 1.8 million/2001 ppsm; and Denton-Collins counties each with 500,000/500 ppsm - - could possibly be a major contribution factor… It would also be extraordinary to conclude Wise County’s Vehicle Miles Traveled (VMT) as a…nonattainment contributor…Wise County only [accounts for 1.5%] of the 19-counties total VMT….and a significant amount of that traffic is traveling through and northward.

Ltr. from McElhaney (2/3/12) (JA __ ).

11

questioned Region 6’s procedural deviations and application of more stringent and

less scientifically sound standards to Wise County than other Regions used.11

EPA dismissed comments about Wise County’s small population and VMT

by saying “other factors, such as the total emissions from the area, meteorology,

and proximity to violating monitors supported our determination that Wise County

contributes” to DFW ozone. Ltr. to McElhaney (12/14/12) enclosure § I (JA __.)

But EPA did not rely on the best scientific evidence – photochemical modeling of

ozone formation and transport – to determine the County contributed to DFW

ozone. TCEQ Pet. for Reconsideration 7 (JA__). Instead, EPA said “Wise County

emissions are large enough that they can contribute to ozone exceedances on

certain days.” Ltr. to McElhaney (12/14/12) enclosure § I (JA__). Furthermore,

EPA said wind direction, data and deviations from its own standards were of no

moment for “there is no bright line test for any of the…factors EPA evaluates in

making designation decisions.” April 2012 Responses to Comments 60 (JA__). It

said focusing on such factors “reflect a fundamental lack of understanding of

nonattainment area designations …and [fail] to take into account that the

nonattainment designations are based on a weight-of-the evidence analysis…” Id.

11TCEQ Pet. for Reconsideration 9/14, Ltr. from Devon 11-23 (7/20/12), Ltr. from TPA (7/20/12) (JA __,__,__).

12

Eventually, EPA admitted “[i]t is primarily [Barnett Shale production] NOx

emissions that supported our determination that Wise County emissions contribute

to ozone formation in the DFW area.” Ltr. to Devon (12/14/12) enclosure §4 (JA

__).12 EPA made this claim without scientifically sound evidence that NOx

emissions from Wise County oil and gas production (which totaled about one

percent of all DFW NOx emissions)13 actually contributed to DFW ozone

formation or NAAQS violations.14

EPA’s nonattainment designation seemed preordained. Very shortly before

his government service, the Region 6 Administrator, Al Armendariz, had worked

for the Environmental Defense Fund (an intervenor for the Respondent in the

consolidated cases) to attack Barnett Shale production,15 publicly calling such

12EPA cited “population growth” and VMT as bases for nonattainment, DFW TSD 23 (JA__), but then backed away from these claims. Ltr. to McElhaney (12/14/2012) enclosure § I (EPA “acknowledged that Wise’s population and VMT” are small but other factors “such as total emissions” supported a nonattainment designation). 13

DFW TSD Tables 3/4 (JA__). 14“EPA ignored TCEQ SAM relative response-based predictions and instead cherry-picked direct predictions....Because EPA erred in failing to follow its own guidance, additional errors…resulted.” TCEQ Pet. for Reconsideration 6 (JA __). 15Al Armendariz, Emissions from Natural Gas Production in the Barnett Shale Area and Opportunities for Cost-Effective Improvements, EDF (Jan. 26, 2009)

(Footnote Continued on Next Page)

13

production “a major contributor to both local and global air pollution problems.”

See John Burnett, Health Issues Follow Natural Gas Drilling In Texas, NPR (Nov.

3, 2009) http://www.npr.org/templates/story/story.php?storyId=120043996

(accessed September 15, 2013). Armendariz likened his enforcement approach

toward Barnett Shale companies to Roman crucifixion.16 Yet he did not recuse

himself from the Wise County designation or take steps to protect the transparency

and objectivity of EPA’s review.17

available at http://www.edf.org/sites/default/files/9235_Barnett_Shale_Report.pdf (accessed September 15, 2013). 16After comments on EPA’s nonattainment designation closed, video was released of Armendariz speaking about his enforcement approach. Armendariz said he would enforce “like how the Romans used to conquer little villages in the Mediterranean.” He said they would “go into a little Turkish town somewhere, they’d find the first five guys they saw and they would crucify them. And then you know that town was really easy to manage for the next few years.” He said EPA would “hit” companies “as hard as [it] can and…make examples out of them.” Ltr. from Devon 8 (7/20/12) (JA __). 17Armendariz resigned on April 30, 2012. Within days, EPA promulgated Wise County’s nonattainment designation. 77 Fed. Reg. 30088 (May 21, 2012). Within weeks, he had a high level job with Sierra Club, an implacable Barnett Shale opponent. Amy Harder, Sierra Club Hires EPA Official Felled by 'Crucify' Comments, (June 29, 2012) available at http://www.nationaljournal.com/domesticpolicy/sierra-club-hires-epa-official-felled-by-crucify-comments-20120629 (accessed September 15, 2013).

14

SUMMARY OF THE ARGUMENT

Petitioners challenge EPA’s authority to override State regulators and

declare DeSoto County, Mississippi, Shelby County, Tennessee and Wise County,

Texas nonattainment. These overrides unlawfully commandeer Petitioners into

implementing and enforcing the CAA’s massive federal regulatory scheme. See 42

U.S.C. §§ 7509(b), 7511 et seq.

Also, the Agency’s inconsistent and unfavorable treatment of Petitioners

exceeds the limits of its constitutional authority and “is the hallmark of arbitrary

agency action.” Catawba County, N.C. v. EPA, 571 F.3d 20, 51 (D.C. Cir. 2009).

And, EPA has unlawfully violated its reasoned decisionmaking and IQA

compliance obligations. Motor Vehicle Mfr. Ass’n v. State Farm Mut. Auto Ins.

Co., 463 U.S. 29, 43 (1983); Prime Time Intern. Co. v. Vilsack, 599 F.3d 678 (D.C.

Cir. 2010)(pet. for rehearing denied per curiam).

The Mississippi Petitioners

The Mississippi Commission on Environmental Quality and DeSoto County

(the “Mississippi Petitioners”) challenge EPA’s override and designation of

DeSoto County as nonattainment. Region 4 designated the County’s northern

portion nonattainment based on population and traffic growth notwithstanding the

data demonstrating emissions from the County have decreased since 2000. Region

4 refused to consider new, certified air quality data and instead based its

15

nonattainment designation on old data, contrary to the practice in other Regions.

The Agency arbitrarily consolidated its own nine factor guidance into five factors

and then unlawfully analyzed same. Specifically, EPA failed to find that DeSoto

County “sufficiently contributed” to ozone at the offending monitor. EPA also

ignored the most current data and refused to acknowledge the clear evidence of its

flawed assumptions.

The Tennessee Petitioner

Tennessee challenges EPA’s override and designation of Shelby County as

nonattainment. Region 4 told Tennessee it would consider timely certified air

quality data for 2009-2011 for Shelby County, but then unlawfully refused to

consider such information because, notwithstanding Tennessee’s and Mississippi’s

timely submissions, Arkansas was “late”. Region 4 never told Tennessee or

anyone else that for any State’s data to be considered, all States had to submit

before its deadline.

Region 4’s refusal to consider Tennessee’s 2009-2011 certified air quality

data because Arkansas was “late” was arbitrary and capricious in the first instance,

for other Regions considered “mixed” data sets. Furthermore, by the time

Tennessee petitioned for reconsideration, EPA had a complete new certified data

set from all three States. Based on the new data, Shelby County was attainment.

But Region 4 used only the old data to override Tennessee’s designation. The

16

burden on EPA to consider new data was minimal compared to the great

significance nonattainment holds for Tennessee. With so much on the line for

Tennessee, it was error for EPA not to consider the new 2009-2011 data.

The Texas Petitioners

The State of Texas, Texas Commission on Environmental Quality and Wise

County (the “Texas Petitioners”) challenge EPA’s override and designation of

Wise County as nonattainment. To begin with, the Agency’s claim of authority to

override State designations and commandeer Petitioners to enforce a massive

federal regulatory scheme on pain of the loss of billions in federal funds offends

the Tenth Amendment. Nat’l Fed’n of Indep. Bus.v. Sebelius, 567 U.S. ___, ___,

132 S.Ct. 2566, 2602-04 (2012) (“NFIB”). EPA’s attempt to regulate incidental

intrastate emissions is unauthorized by the Commerce Clause. Furthermore, the

record suggests EPA’s nonattainment designation was preordained. Region 6

displayed an “unalterably closed mind,” and was “unwilling or unable to rationally

consider arguments” against nonattainment and thus violated the Due Process

Clause.

Also, EPA unlawfully treated Wise County differently than other counties

that EPA found in attainment. The Agency departed from its own scientific

standards and arbitrarily applied a different and discarded metric for determining

whether meteorological conditions show Wise County contributed to nearby areas’

17

nonattainment. Had it simply followed its own guidance and models, much less

the approach it took in other counties, Wise County would not have been

designated nonattainment.

Finally, EPA’s failure to demonstrate IQA compliance, to promulgate rules

defining the statutory terms “necessary” and “contribute” in a way that would

meaningfully limit its discretion to override the States, to prove Wise County

emissions contribute to NAAQS violations in another county, and to provide

Petitioners with fair notice of how EPA would actually apply its five or nine factor

test for nonattainment in a given case are all unlawful.

For these reasons, EPA’s nonattainment designations should be vacated and

struck down.

STANDARD OF REVIEW

The Court sets aside EPA action that is arbitrary, capricious, an abuse of

discretion or otherwise not in accordance with law. 5 U.S.C § 706(2)(A); 42

U.S.C. § 7607(d)(9)(A). Agency action is arbitrary and capricious if the agency

relies on factors Congress did not intend it to consider, fails to consider an

important aspect of an issue, or offers an explanation counter to the evidence.

Burlington Truck Lines, Inc. v. United States, 371 U.S. 156, 167-168 (1962). EPA

must always show a rational connection between the facts found and the choices

made. State Farm, 463 U.S. at 43.

18

Also, agency action is arbitrary and capricious if “the agency offers

insufficient reasons for treating similar situations differently.” Cnty. of Los Angeles

v. Shalala, 192 F.3d 1005, 1022 (D.C. Cir. 1999). The possibility a county would

be designated attainment in one Region, but nonattainment in another, reflects

“inconsistent treatment [that] is the hallmark of arbitrary agency action.”

Catawba, 571 F.3d at 51.

EPA’s nonattainment overrides must not offend the CAA’s plain language,

see Chevron USA Inc. v. Natural Resources Defense Council, 467 U.S. 837, 842

(1984), or Tenth Amendment, Commerce Clause and Due Process Clause

constraints. NFIB, 132 S.Ct. at 2602-04; Gonzales v. Raich, 545 U.S. 1, 25

(2005); Air Transp. Ass’n of Am. v. Nat’l Mediation Bd., 663 F.3d 476, 487 (D.C.

Cir. 2011); see also United States v. Morrison, 529 U.S. 598 (2000); New York v.

United States, 505 U.S. 144 (1992).

EPA must comply with IQA Requirements. Prime Time, 599 F.3d at 672

(granting judicial review and suggesting OMB Guidelines are legislative rules);18

18Chevron deference is limited to legislative rules. United States v. Mead, 533 U.S. 218, 226-230 (2001). It made sense for the Prime Time court to give the OMB Guidelines Chevron deference, because these were promulgated to implement the IQA for they “shall apply to the sharing by Federal agencies of, and access to, information disseminated by Federal agencies…” , 44 U.S.C. § 3516 note (a), and they fill the “legislative gap” needed to make the statue operative. See American Mining Congress v. United States Department of Labor, 995 F. 2d 1106, 1112

(Footnote Continued on Next Page)

19

American Pet. Inst. v. EPA, 684 F.3d 1342 (D.C. Cir. 2012)(examining whether

EPA acted reasonably under non-binding IQA guidelines). Therefore, the

overrides had to be transparent, objective and based on “the best available science

and supporting studies conducted in accordance with sound and objective scientific

practices.”19 EPA had to demonstrate IQA compliance, particularly use of the

“best science” in each case. State Farm, 463 U.S. at 43 (the agency must examine

the relevant data and articulate a satisfactory explanation for its action including a

rational connection between the facts found and the choice made).

(D.C. Cir. 1993). Also, the OMB Guidelines were published in the Federal Register for notice and comment. 5 U.S.C. § 553(b)(3)(A) provides notice and comment procedures are applicable to legislative rules but not to “interpretative rules, general statements of policy, or rules of agency organization, procedure, or practice.” 19EPA Guidelines at 20 (Guidelines and a “rigorous standard of quality” apply to Agency rules), 22 (“objectivity” requires the substance of EPA information be accurate, reliable and unbiased and EPA must use “the best available science”); OMB Guidelines, 67 Fed. Reg. 8459/60. Like the National Environmental Policy Act (“NEPA”), 42 U.S.C. § 4321 et seq., IQA mandates a process not an outcome and compliance is mandatory not permissive. Compare 44 U.S.C. § 3516 note ; 67 Fed. Reg. 8452; 40 C.F.R. § 1505.1(b)(federal agencies assure NEPA compliance); Environmental Defense Fund v. Massey, 986 F.2d 528, 532 (D.C. Cir. 1993) (NEPA “does not dictate agency policy or determine the fate of contemplated action” but failure to comply is grounds for remand).

20

STANDING

EPA’s nonattainment designations have severe consequences. See 42 U.S.C.

§§ 7509, 7511et seq. Therefore, each Petitioner has suffered an actual injury that

is fairly traceable to final agency action that will be redressed by a favorable

decision from this Court. Consequently, Petitioners each have Article III standing.

Allen v. Wright, 468 U.S. 737, 751 (1986).

ARGUMENT

I. ARGUMENTS BY THE MISSISSIPPI PETITIONERS. 20

When EPA designated the northern portion of DeSoto County

nonattainment, it arbitrarily consolidated its own nine factor guidance into five

factors. 77 Fed. Reg. 30088 fn1 (JA__). Further, EPA’s analysis of those factors

was arbitrary, capricious and unlawful. Specifically, EPA failed to find that

DeSoto County “sufficiently contributed” to ozone at the offending monitor in

Frayser, Tennessee. EPA also refused the best and newest data and refused to

acknowledge evidence of its flawed assumptions.

A. EPA Disregarded The Controlling Standard.

42 U.S.C. § 7407(d) requires a “nearby area” that sufficiently contributes to

an ozone violation be designated nonattainment. Catawba, 571 F.3d at 39; Region 20The Texas Petitioners join the Mississippi Petitioners’ argument at § I(A) .

21

4 Response to Comments (JA __.)21 EPA’s final designation made no such

finding and did not discuss “sufficiency,” rather EPA apparently applied an “any

contribution” standard. Because EPA did not and could not find that DeSoto

County “sufficiently contributed” to ozone violations at the Frayser, Tennessee,

monitor or anywhere else, EPA’s nonattainment designation was arbitrary,

capricious and unlawful.

21As EPA admits:

In Catawba Co. v. EPA, the Court held that “contribute” under §107(a)(1)(A) of the CAA does not necessarily mean “any contribution” to nonattainment but rather a degree of contribution sufficient to deem an area nonattainment, that is sufficient enough to warrant designation as attainment. “Section 107(d) is ambiguous as to how EPA should measure contribution and what degree of contribution is sufficient to deem an area nonattainment…” Catawba County v. EPA, 571 F.3d 20, 39 (D.C. Cir. 2009) (Internal citation omitted but with emphasis added). “Thus, reasonably exercising the discretion that Congress delegated to it, EPA interpreted “contribute” to mean “sufficiently contribute,” then applied the C/MSA presumption and nine-factor test precisely to identify those areas that meet that definition.” Id.

See Res. to Comments 9 (JA__).

22

B. EPA’s Factor Analysis Was Arbitrary And Capricious.

1. EPA refused to consider current air data.

EPA’s first factor is air quality. Meyers Mem. (JA__). It must use the best

data and the best science. Yet in designating DeSoto County nonattainment, EPA

rejected current data for old data because another State made a “late” submission.

First and foremost, Mississippi is and always has been in attainment with the

ozone NAAQS, and EPA acknowledged DeSoto County’s attainment in its TSD.

See Memphis, TN-MS-AR TSD 16 (JA__). DeSoto As County population has

grown, County ozone readings have declined. See Res. to 120 Day Ltr., Chart

7/18; Pet. for Reconsideration Chart 7/7 (JA__,__).

All of EPA’s actions regarding DeSoto County were based on the old 2008-

2010 data for the Frayser, Tennessee monitor. Critically, the new 2009-2011 data

shows the Frayser monitor was in attainment.22 But even if EPA had the right to

ignore the new, better data, its designation still fails because it has no evidence that

DeSoto County was contributing substantially to a violation of the NAAQS there.

22EPA said preliminary data (which was not certified or filed before the deadline) indicated that the Crittenden County, Arkansas monitor was out of attainment, Res. To Comments 96 (JA __), however, there was no technical analysis whatsoever as to this monitor. All analysis focused on the Frayser County, Tennessee monitor and EPA had the most recent three years of certified data from Tennessee and Mississippi.

23

EPA’s failure or refusal to consider all of the relevant and most recent scientific

data in evaluating this first factor resulted in an arbitrary and capricious decision.

2. The EPA failed to consider all emissions data.

Second, EPA purportedly combined all emissions and emissions-related data

in its analysis. It wrongly failed or refused to consider the diesel and commercial

traffic (road and non-road) in the area. EPA has recognized that raw numbers and

percentages of VMTs “[do] not adequately take into account … [a] large volume

of diesel truck traffic on the major highways running through th[e] area.” ATK

Launch Systems v. EPA, 669 F.3d 330 (D.C. Cir. 2012). Because EPA expressly

stated that VMTs were a significant factor on which EPA relied in making its

boundary determinations, see EPA TSD 16/17 (JA__), it was incumbent upon EPA

to recognize and properly assess the impact of this traffic.

Petitioners have repeatedly requested EPA account for this traffic in its

review of DeSoto County. Yet EPA will not do so with the reasoned

decisionmaking required by law.23 See Res. to Comments 97 (JA__).24 To

23 See AK-MS-TN TSD 7 (JA__) (“Mississippi provided supplemental emissions-related data specifically for on-road (i.e., heavy-duty diesel truck traffic along area interstate roadways) and non-road (i.e., rail, barge and freight) emissions sources including a technical study on forecasting on-road mobile-source emissions for DeSoto County.”) However, the TSD contains no analysis or statement explaining EPA’s reasoning on this issue.

24

Petitioners’ request for reconsideration, Req. for Reconsideration 5 (JA__), EPA

said:

EPA did consider the emission source information outlined in the MDEQ TSD in making its decision regarding the appropriate boundaries for the Memphis area. As stated on p. 97 of the Response to Comments ‘EPA appreciates the updated technical information that Mississippi provided and has updated our technical support document accordingly. However, EPA disagrees with Mississippi’s conclusion, and believes the technical evaluation of DeSoto County shows contribution to the air quality in the Memphis area.

Id.

This Court holds that deference to EPA rests on the fundamental premise of

reasoned decisionmaking. With its delicate balance of thorough record scrutiny

and deference to agency expertise, judicial review can occur only when agencies

explain their decisions with precision, for “[i]t will not do for a court to be

compelled to guess at the theory underlying the agency's action....” Am. Lung Ass'n

v. EPA, 134 F.3d 388, 392 (D.C. Cir. 1998)(citations omitted). EPA’s complete

lack of analysis here renders its decision incapable of judicial review, and is

therefore arbitrary and capricious.

24 “EPA appreciates the updated technical information that Mississippi provided and has updated our technical support document accordingly. However, EPA disagrees with Mississippi’s conclusion, and believes the technical evaluation of DeSoto County shows contribution to the air quality in the Memphis area. Please see our TSD for further details on our analysis.” (JA__).

25

DeSoto County has only four point source facilities for emission of NOx and

VOCs, all of which are well controlled. See Response to 120 Day Ltr. 22 (JA__).

EPA, however, says mobile emissions were a key factor in its decision to designate

the northern portion of DeSoto County as nonattainment. Therefore, it was

incumbent upon the Agency to explain its decision with precision, and its

explanation should have necessarily included an analysis of the commercial

traffic.25 EPA’s failure to do so renders the nonattainment designation arbitrary

and capricious.

3. The EPA excluded relevant data disproving the assumption that population and VMT growth contribute to nonattainment.

EPA considered population density and degree of urbanization as factors for

nonattainment. EPA arbitrarily and capriciously consolidated factors in the

Meyers Mem. (JA__), considering population density (factor three), traffic and

commuting patterns (factor four), and growth rates and patterns (factor five) all

together. Without any support, EPA said:

Rapid population or vehicle miles traveled (VMT) growth in a county on the urban perimeter signifies increasing integration with the core

25A thorough discussion of the commercial traffic, both road and non-road traffic, is found in Mississippi’s TSD 8/11 (JA__). The charts demonstrates how important it is to consider the commercial traffic in the area, almost all of which flows through Crittenden County, Arkansas, and Shelby County, Tennessee, immediately adjacent to the air monitors in those counties, to evaluate DeSoto County’s contribution.

26

urban area and indicates that it may be appropriate to include the county/area associated with the area source and mobile source emissions as contributing to the area violation, even if the monitor in that county is attaining ozone NAAQS.

See Final Rule 9 (JA__). This conclusion violates Am. Lung Ass'n’s standard, for

the data plainly refutes EPA’s claim.

Petitioners showed EPA through data on population growth and ozone

emission trends since 2000 that ozone has decreased as population has grown. See

Response to the 120 Day Ltr. 18 Chart 7 (JA__); Pet. for Reconsideration 10 Chart

7 (JA__). If EPA’s reasoning that population and VMT growth contributes to

increased ozone was sound, then DeSoto County monitor readings should have

increased. They have not increased and continue to trend downward.

Without any scientific support, EPA dodged this inconvenient fact by stating

that ozone does not necessarily form close to the source of emissions. See

Response to Comments 6 (JA__). To begin with, EPA’s claim is refuted by the

new data in its hands, showing both the Shelby County and Frayser, Tennessee

monitors were in attainment for 2009-2011. (JA__). Furthermore, EPA relies on

percentage increases rather than raw population numbers to conclude DeSoto

County contributes to ozone exceedances in Tennessee.

27

The raw numbers demonstrate DeSoto County is a very, very distant second

to Shelby County in all respects. See Final Rule 9 Table 5 (JA__); Res. to 120

Day Ltr. 10 -11 Charts 10/4 (JA__). 26 EPA’s claim that the population and VMTs

contribute to nonattainment is dispelled by the actual numbers, monitor readings

and the current data. EPA’s failure to explain the disparity between its assumption

and the objective facts offends American Lung Ass’n, and is arbitrary and

capricious.

4. The EPA failed to analyze level or control of emissions sources.

Finally, EPA completely failed to discuss its own factor nine. In theory,

EPA addressed all emissions data, but in truth it failed to discuss level or control of

emissions sources. Petitioners provided a detailed analysis in its Response to the

120 Day Ltr., 8/10 and 22/23 (JA__). But EPA did not address any major sources,

or the level of control of those sources, in the detail required. See Appalachian

Power v. EPA, 208 F.3d 1015, 1022 (D.C. Cir. 2000)(agency may not ignore its

own guidance).

Consequently, Petitioners are at a disadvantage because they do not know

whether: (1) EPA even reviewed Mississippi’s detailed analysis, or (2) much less

26EPA says DeSoto County has the “second highest VMT”, but raw numbers reveal again the huge gap. See Final Rule 10 Table 6 (JA__); Res. to 120 Day Ltr. 14 Chart 5 (JA__).

28

EPA’s reasons for rejecting the analysis. They cannot address EPA’s concerns and

this Court cannot review EPA’s findings for error. Such an analysis is critical

given this Court’s decision in EME Homer City Generation, L.P. v. EPA, 696 F.3d

7(2012)(cert. granted in part, 133 S.Ct. 2857, June 24, 2013).

In EME Homer City, the Court ruled EPA’s application of the CAA’s “good

neighbor rule” invalid in part because EPA forced a State to control more than its

own share of air pollution. Although EME Homer City dealt with EPA’s Transport

Rule, the effect of the nonattainment designation is the same here because DeSoto

County already controls its own emissions. The EME Homer City court stated that

“[t]he statute is not a blank check for EPA to address interstate pollution on a

regional basis without regard to an individual upwind State's actual contribution to

downwind air quality.” Id. at 20

Because the nonattainment designation will require additional and onerous

burdens on new development in DeSoto County, the Court should adopt EME

Homer City’s rule that:

[T]he portion of an upwind State's contribution to a downwind State that “contribute[s] significantly” to that downwind State's “nonattainment” necessarily depends on the relative contributions of that upwind State, of other upwind State contributors, and of the downwind State itself. Each upwind State may be required to eliminate only its own “amounts which will ... contribute significantly” to a downwind State's “nonattainment.”

Id.

29

II. ARGUMENTS BY THE TENNESSEE PETITIONER. 27

A. Region 4’s Failure To Advise Tennessee That Consideration Of Current Data Was Contingent On All States In The Memphis CSA Meeting The February 29, 2012 Deadline Was Unlawful.

EPA acted arbitrarily by advising the State of Tennessee that it would

consider certified air quality data for 2009-2011 for Shelby County in making its

attainment designation if it was timely submitted but then refusing to consider such

information for reasons not previously disclosed to Tennessee.

EPA notified Tennessee that it intended to include Shelby County in the

Memphis nonattainment area and advised Tennessee that any additional

information it wanted EPA to consider concerning this designation, i.e., 2009-2011

certified data, would need to be submitted by February 29, 2012. EPA Ltr.

(12/8/11) (JA__). Tennessee met the deadline with 2009-2011 data showing

attainment. Tennessee Ltr. (2/27/12) (JA__). Nevertheless, Region 4 designated

all of Shelby County nonattainment based on old 2008-2010 data because this was

the most recent “full set” it had from Tennessee, Mississippi, and Arkansas.

27The Mississippi Petitioners join Tennessee’s arguments in toto. Because that portion of DeSoto County designated nonattainment was included in EPA’s analysis of the Memphis C/MSA, and because the Mississippi Petitioners likewise provided certified data for 2009 – 2011 showing attainment, DeSoto County’s designation was erroneous for the reasons set forth herein. The Texas Petitioners join Tennessee’s argument in § II(B) that it was unlawful for EPA Regions to operate inconsistently with respect to nonattainment designation criteria.

30

Memphis TSD (4/30/12) (JA__). While Mississippi and Tennessee met the

February 29, 2012 deadline for submitting 2009-2011 certified data, Arkansas did

not, according to EPA. Id.

EPA’s final determination of nonattainment for Shelby County on April 30,

2012, was the first time that EPA had ever mentioned that all states in the

Memphis CSA had to meet the February 29, 2012 deadline for EPA to consider

any of the 2009-2011 data. EPA should have told Tennessee, Mississippi and

Arkansas this at the outset. Only after the fact was this supposed “requirement”

used to justify reliance on old data. Quite simply, it was arbitrary and capricious

for EPA to tell Tennessee that it would consider the 2009-2011 data and then, after

such information was timely submitted, to not consider it for reasons never

disclosed until after the final designation had already been made.

B. Region 4’s Refusal To Consider Current Data Was Inconsistent With Region 5 And Unlawful.

Region 4 unlawfully refused to consider Tennessee’s 2009-2011 certified air

quality data. Region 5 considered certified 2009-2011 data submitted by Illinois in

the designation of certain areas in the Chicago MSA even though Wisconsin and

Indiana had not submitted their certified 2009-2011 data. See Chicago-Naperville,

Illinois-Indiana-Wisconsin Area Designation 1 (JA__). Region 5 used the mixed

data because it was “the most recent three-years of state-certified air quality data

available as of February 29, 2012.” Id.

31

Region 4 should have done likewise and considered Mississippi’s and

Tennessee’s 2009-2011 data along with Arkansas’s 2008-2010 data. The States in

Region 4 were entitled to the same treatment as the States in Region 5. Instead,

EPA acted inconsistently and without a rational basis in treating Tennessee

differently from the States in Region 5. Such inconsistent treatment is a hallmark

of arbitrary agency action. Catawba, 571 F.3d at 51.

C. EPA Unlawfully Denied Tennessee’s Petition For Reconsideration.

EPA acted arbitrarily and capriciously by denying Tennessee’s petition to

reconsider its nonattainment designation of all of Shelby County when, at the time

Tennessee filed its petition on July 20, 2012, EPA had a “full set” of data from

2009-2011 for all three states in the Memphis CSA.

Tennessee requested EPA reconsider its nonattainment designation.

Tennessee Pet. for Reconsideration (7/20/12) (JA__). One of Tennessee’s

arguments was EPA now had certified air quality data from all three states in the

Memphis CSA, including Arkansas. Id. Tennessee urged EPA to consider and use

the current data and find at the most that Shelby County should be designated as

partial nonattainment for ozone.

The burden on EPA to consider such data would have been minimal

compared to the great significance nonattainment holds for Tennessee. The new

2009-2011 data shows Shelby County is ozone attainment, while the 2008-2010

32

data showed a single violation. Furthermore, if EPA had accepted the 2009-2011

data from Tennessee, it would have considered Tennessee’s contribution analysis

on the monitor in Crittenden County, Arkansas. This, in turn, likely would have

led EPA to find that Shelby County was only partially contributing to the

nonattainment of Crittenden County, Arkansas. With so much on the line for

Tennessee, it was error for EPA not to consider the new 2009-2011 data for all of

the States in the Memphis CSA after Tennessee petitioned for reconsideration.

III. ARGUMENTS BY THE TEXAS PETITIONERS. 28

A. EPA Exceeded Constitutional Limits On Federal Power.

1. The Tenth Amendment.

The Tenth Amendment prohibits EPA from commandeering State regulators

to enforce a federal regulatory program. See NFIB, 132 S.Ct. at 2602-04; New

York, 505 U.S. at 149, 162 (1992) (citing Hodel v. Virginia Surface Mining &

Reclamation Ass’n, Inc., 452 U.S. 264, 288 (1981) (“Congress cannot

‘commandeer…the States by directly compelling them to enact and enforce a

federal regulatory program”)). However, the CAA’s authorization of EPA to

override State designations and declare nonattainment whenever it deems

necessary does exactly this. See 42 U.S.C. §§ 7407(d)(1)(B)(iii),

28The Mississippi Petitioners join the Texas Petitioners’ arguments at §§ III(A)(1) and (B)(2), (4)-(7).

33

7407(d)(4)(A)(iii)(v); Catawba, 571 F.3d at 40 (States are owed only procedural,

not substantive, deference by EPA with respect to attainment designations). Put

another way, Congress wrote EPA a blank check but left it to the States and

counties to make that check good.

Nonattainment designations have huge regulatory and economic

consequences for States and counties. When EPA overrides a State, it compels

State regulators to enforce a myriad of federal requirements involving emissions

controls, clean fuel programs, transportation and land use limitations in the

designated area. See 42 U.S.C. §§ 7511 et seq. A noncompliant State pays a steep

price including the loss of all Federal highway and transit funding. 42 U.S.C. §

7509.29

In NFIB, the States challenged Congress for threatening to withhold all

Medicaid grants unless the State accepted expanded funding and complied with the

conditions that come with it because the “Federal Government may not compel the

States to enact or administer a federal regulatory program.” NFIB, 132 Sup. Ct. at

29Texas receives more than $3 billion in federal highway and transit funds annually. See Moving Ahead For Progress in the 21ST Century: Federal Transportation Reauthorization (May 2013) available at http://www.lbb.state.tx.us/Federal_Funds/Federal_Funds_Watch/838_Map_21.pdf (accessed September 16, 2013). Federal funds play a critical role in maintaining and developing Texas’s bridges, roads and public transportation assets. Id. Losing this money would have a devastating impact on Texas’s economic growth, metropolitan accessibility, energy security, environmental protection and safety.

34

2062 citing New York, 505 U. S. at 188. Chief Justice Roberts, writing for the

majority, ruled for the States. He said “the Constitution has never been understood

to confer upon Congress the ability to require the States to govern according to

Congress’ instructions.” Id. at 2063. Otherwise the two-government system

established by the Framers would give way to a system that vests power in one

central government, and individual liberty would suffer. Id.

Consequently, the Court strikes down federal legislation commandeering a

State’s administrative apparatus for federal purposes.

Permitting the Federal Government to force the States to implement a federal program would threaten the political accountability key to our federal system. “[W]here the Federal Government directs the States to regulate, it may be state officials who will bear the brunt of public disapproval, while the federal officials who devised the regulatory program may remain insulated from the electoral ramifications of their decision”….when the State has no choice, the Federal Government can achieve its objectives without accountability, just as in New York and Printz.

NFIB, 132 Sup. Ct. at 2602-03.

NFIB controls this case. Here, EPA has the authority to override a State,

declare nonattainment and then walk away from the mess of enforcement,

compliance and program implementation that follows. The Agency is

unaccountable and, due to the critical role Federal highway funds play in State

budgets, State officials have no choice in the matter. Clearly, Congress has

“crossed the line distinguishing encouragement from coercion.” Id. (citation

35

omitted). Therefore, § 7407(d)(1)(B), to the extent it authorized EPA to override

TCEQ and declare Wise County nonattainment, violates the Tenth Amendment.

Id. at 2604; New York, 505 U. S. at 188; Hodel, 452 U.S. at 288.30

30Congress provided no explicit statutory standards or intelligible principles against which EPA’s claims of “necessity” to override State designations may be judged. See Catawba, 571 F.3d at 44-46. The Agency, for its part, recognizes no meaningful limits on its discretion to overrule State regulators and believes it may always do just as it wants.

The lack of meaningful limits on EPA’s discretion ought to raise nondelegation doctrine concerns. See generally Whitman v. American Trucking Ass’n, 531 U.S. 457 (2001). Although the doctrine’s vitality is uncertain, at best, the danger created by Congress’s broad delegation to EPA is present and clear. The Agency enjoys unique Judicial deference. See Catawba, 570 F.3d at 49. It routinely compels State governments to do its bidding and it affects the life of an average American far more directly and concretely than any member of Congress. Yet EPA is directly accountable to no one.

EPA should be required to promulgate rules limiting its discretion to override the States and to adhere to them. As Cass Sunstein has argued:

[A] central problem for the regulatory state is excessive discretion – a system of “discretionary justice.” The remedy would be to require [agencies] to limit their own room to maneuver…[and] rule-of-law values would operate at the agency level. This would promote predictability and minimize the arbitrary exercise of power.

Cass Sunstein, Is the Clean Air Act Constitutional?, 98 MICH. L. REV. 303, 341 (1999) (citations omitted); see also International Union v. OSHA, 938 F.2d 1310, 1317 (D.C. Cir. 1991)(court remanded and ordered OSHA to adopt rules limiting its discretion); Amalgamated Meat Cutters v. Connally, 337 F. Supp. 737 (D.D.C. 1971)(mandating that the Executive Branch develop “subsidary” administrative law to blunt the “blank check” from Congress so that “Congress, the courts and the public” may “assess the Executive’s adherence to…the legislative standard”).

36

2. The Commerce Clause.

EPA admits incidental NOx emissions from Barnett Shale production are the

reason for its nonattainment designation. Ltr. to Devon (12/14/12) (JA __ ). These

wholly intrastate emissions are not channels, instrumentalities or persons or things

in commerce under the Commerce Clause. See United States v. Lopez, 514 U.S.

549, 558 (1995)(superseded on other grounds). Nor has EPA demonstrated these

emissions “substantially affect” interstate commerce. Id. at 559. Therefore, EPA’s

nonattainment designation is constitutionally infirm. Compare Hodel, 452 U.S. at

281-82(“coal is a commodity that moves in interstate commerce” and “we agree

the power conferred by the Commerce Clause [is] broad enough to permit

congressional regulation of air…pollution…that may have effects in more than one

State”)(emphasis added).

Even if incidental emissions do “substantially affect” interstate commerce,31

they are not a “quintessentially economic” activity. Accord Rancho Viejo, LLC v.

Norton, 334 F.3d 1158, 1159 – 60 (D.C. Cir. 2003)(Roberts, J., dissenting, noting

that the panel’s approach “seems inconsistent” with the Supreme Court’s rulings

31The Supreme Court has said that where a general regulatory statute bears a substantial relation to commerce, the de minimis character of individual instances arising thereunder are of no constitutional consequence. See Lopez at 558 (citations omitted).

37

and “conflicts with the opinion of a sister circuit”); GDF Realty Invest. Ltd. v.

Norton, 326 F.3d 622, 635 (5th Cir. 2003).32 Therefore, EPA’s nonattainment

designation stands only if striking down that designation “leaves a gaping hole” in

the CAA, something that would not happen here. Raich, 545 U.S. at 25-27.

3. The Due Process Clause.

Petitioners had a Fifth Amendment Due Process right to a fair and level

review from EPA. Air Transp. Ass’n, 663 F.3d at 487 (“Decisionmakers violate

the Due Process Clause and must be disqualified when they act with an

‘unalterably closed mind’ and are ‘unwilling or unable’ to rationally consider

arguments.”); Lead Indus. Ass’n v. EPA, 647 F.2d 1130, 1179 (D.C. Cir. 1980).

Former Region 6 Administrator Armendariz’s statements and conduct create a

presumption that the Agency’s mind was closed and it was unwilling or unable to

rationally consider arguments against nonattainment. Armendariz’s failure to

recuse himself from the designation process or to take any public measures to

32Incidental NOx emissions are not production, distribution or consumption of a commodity, the basis for upholding a federal law banning marijuana possession. Raich, 545 U.S. at 25. And, as then Judge and now Chief Justice Roberts recognized, the controlling authorities foreclose claims that anything derivative or in furtherance of a traditional “economic activity,” such as incidental well emissions, is as an economic activity in its own right. Rancho Viejo, 334 F.3d at 1160; see also Morrison, 529 U.S. at 598, 617,627; Solid Waste Agency of N. Cook Cty. v. U.S. Army Corps, 531 U.S. 159 (2001); Rapanos v. United States, 547 U.S. 715, 738 (2006).

38

protect EPA’s transparency and integrity in this regard only strengthen this

presumption.33

Normally, the prevailing wind direction and EPA-standard modeling would

have led EPA to accept TCEQ’s designation. But this was not a normal case.

Armendariz knew designating Wise County nonattainment would harm Barnett

Shale production. Ltr. from Devon 26 (7/20/12) (a one year compliance cost of

$18 million and potential revenue impact of $4.3 billion to only one company due

to a nonattainment designation) (JA__). Therefore, his hostility cannot be

dismissed as a mere discussion of policy, see Ass’n of Nat’l Advertisers, Inc. v.

FTC, 627 F.2d 1151, 1171 (D.C. Cir. 1979), nor can it be considered advocacy on

an open legal question. Gersman v. Grp. Health Ass’n, 931 F.2d 1565 (D.C. Cir.

1991). Rather, his “single-minded commitment” against Barnett Shale production

tainted the rulemaking.

33It begs credulity to suggest Armendariz “checked” his anti-Barnett Shale views “at the door” when he became Administrator, or to claim, especially in light of EPA’s deviations from its normal methodology and procedures, that those views could not have colored EPA’s regulatory decisions. Ltr. to Devon (12/14/12) (JA__) And, the presumption of a “closed mind” is reinforced by Armendariz’s subsequent high-level job at Sierra Club, an ardent foe of domestic natural gas use and Barnett Shale development in particular. See Sierra Club, Why Move Beyond Natural Gas?, available at http://content.sierraclub.org/naturalgas/why-move-beyond-natural-gas (accessed September 15, 2013).

39

B. The Nonattainment Designation was Unlawful.

1. EPA unlawfully overrode TCEQ’s attainment designation.

TCEQ’s attainment designation was based on models and analyses drawn

from EPA’s own guidance and policies. TCEQ TSD 14/18 (JA__). However,

EPA rejected TCEQ’s analysis, and thereby its own analysis. EPA has not and

cannot rationally explain its decision to jettison its own policy of using

photochemical modeling in a relative, rather than absolute, sense for an ad hoc

hodgepodge of distortions, mischaracterizations and semantic voodoo. See

General Electric Co. v. EPA, 290 F.3d 377 (D.C. Cir. 2002). Incredibly, EPA

justified rejecting its own model by saying “EPA has never issued specific

guidance on how source apportionment modeling (“SAM”) analysis should be

performed…[and] we further note that to the extent EPA has guidance on

modeling, guidance documents are not binding …and thus cannot ‘require’ any

specific action by the EPA…” Ltr. to TCEQ enclosure §I (12/14/12)(JA__).

However, the law is otherwise. Appalachian Power, 208 F.3d at 1022 (agency

may not ignore its own guidance).

Using EPA’s “cause or contribute” designation benchmark, TCEQ employed

a “one percent” threshold to determine contribution and make designation

decisions. TCEQ TSD 10/14, TCEQ Pet. For Reconsideration 6 (JA __, __). Its

data was obtained using methodology fully consistent with EPA’s past practice and

40

guidance in all respects, and showed Wise County’s predicted contribution to

DFW ozone for 2012 was well below the threshold. Id.

Specifically, TCEQ used SAM to predict the future contribution of Wise

County emissions to DFW-area ozone monitors. It prepared a 2006 “base” case

and a 2012 “future” case (i.e., a prediction for 2012) using the Anthropogenic

Precursor Culpability Analysis tool (“APCA”)34 to predict Wise County’s

contribution in both cases and then performed some additional steps35 to apply the

model in a “relative” sense, e.g., linked to actual observed values.

This approach followed longstanding EPA guidance and past practice. See

EPA Guidance on the Use of Models and Other Analyses for Demonstrating

Attainment of Air Quality Goals for Ozone 17 (2007) (JA__).36 Responding to

34APCA is an optional feature of the Comprehensive Air Quality Model with extensions (“CAMx”), the photochemical model used by TCEQ. 35The workings of the model are not disputed. In brief, the baseline modeled concentrations near each monitor are averaged across a subset of the days modeled, and the same days are used to calculate a future case average. The latter average is divided by the former to calculate a relative response factor (“RRF”), which represents the model’s predicted change from the baseline to the future case at that monitor. The baseline design value (“DVB”) is multiplied by the RRF to calculate the future design value (“DVF”) for that monitor, thus using the model in a relative (not absolute) sense. See TCEQ TSD 9/14 (JA ). 36EPA Guidance on the Use of Models and Other Analyses for Demonstrating Attainment of Air Quality Goals for Ozone (2007) available at http://www.epa.gov/ttn/scram/guidance/guide/final-03-pm-rh-guidance.pdf

(Footnote Continued on Next Page)

41

problems with prior modeling practice, which used “direct” or “absolute” model

predictions disconnected from actual measurements, EPA’s guidance for the 1997

ozone standard specified the use of models in a relative sense, in which a base year

anchored to actually monitored observations predict concentrations. (JA__). The

future concentration divided by base concentration is called the RRF and

represents the predicted response to emission changes from the base year to the

future year. (JA __). The RRF is then multiplied by the actually observed “design

value” (“DV”) at the monitor to predict the DV for the future year.37 EPA used

and continues to rely on “relative” modeling in defending its Cross-State Air

Pollution Rule (“CSAPR”).38

(accessed September 16, 2013). EPA recommends a relative rather than an absolute model to scale the observed ozone “design values” (DVs) to obtain a projected ozone DV. EPA says the relative model is more reliable than the absolute model since it anchors the future ozone projections to the observations (reality) and reduces uncertainty. Id. at 17. 37The DV for a monitor is the three-year average of the annual fourth highest observed eight-hour ozone concentration. Per EPA guidance, the RRF is actually multiplied by the average of three consecutive years’ design values. 38One stated purpose of CSAPR is to ensure compliance with 42 U.S.C. § 7410(a)(2)(D)(i)(I) prohibiting emissions in one State that “contribute significantly” to nonattainment in another State. These principles should necessarily apply to determining whether Wise County emissions “contribute” to DFW ozone violations.

(Footnote Continued on Next Page)

42

SAM allows TCEQ to predict baseline and future ozone contributions

attributed to the modeled emission sources (here Wise County). TCEQ estimated

Wise County’s contribution to the predicted 2012 DFW area design value to be

below one percent of the 75 parts/billion 2008 ozone NAAQS or 0.75 parts/billion.

TCEQ TSD 10/14, TCEQ Pet. for Reconsideration 6 (JA __, __). Therefore, an

attainment designation was appropriate.39

EPA, however, distorted or ignored TCEQ’s data including the predicted

contribution of Wise County to the DV for DFW in 2012. Instead, EPA changed

the game by substituting “absolute” predictions (e.g., predictions divorced from

real world observations) to conclude that Wise County’s expected contribution was

much higher than predicted. DFW TSD 16/20 (JA __).

Texas and other States have challenged CSAPR and that litigation is

ongoing. But the point here is that TCEQ materially followed EPA’s CSAPR methodology to make its Wise County designation and EPA disregarded it without sufficient explanation. 39In CSAPR, EPA estimated projected 2012 ozone DVs due to all sources and then with a State’s ozone contribution removed. The difference was the State’s ozone contributions to the 8-hour ozone DV with the contribution determined to be significant if it was greater than or equal to 1 percent of the 1997 ozone standard (0.85 ppb or higher). However, for Wise County, EPA irrationally rejected its own modeling guidance and procedures for an analysis that focused on daily contributions to ozone exceedances and not violations of the ozone NAAQS.

43

EPA provided reasons for reverting to its pre-1997 use of absolute, instead

of relative, modeling, but no rational explanation connecting those reasons to the

conclusion that Wise County emissions would contribute to nonattainment. For

example, EPA stated that TCEQ’s SAM did not include days from August or

September. But while this period sometimes shows higher ozone concentrations

than June, this was not true in 2006, the time TCEQ used for modeling. To the

contrary, June had the most high ozone days of any month that year and was

specifically chosen because it represented an exceptionally rich set of air quality

and meteorological measurements, a key EPA criterion for choosing modeling

periods. Consequently, the failure of TCEQ’s model to include August or

September 2006 cannot be used to support the conclusion that Wise County

emissions contribute to DFW nonattainment.40 See TCEQ Pet. for Reconsideration

7/9 (JA__).

40(JA__). There is no rational connection between the choice of days modeled and use of the model in an absolute or a relative sense. Whether one day or 100 days were used, the logic of the RRF approach would be equally solid and would not justify an abandonment of EPA’s past practice and guidance. Furthermore, since EPA should have used the model in a relative sense, EPA’s concern about TCEQ having used the average of the predicted ozone levels in the grid cells around the monitor, rather than the maximum, should make very little difference. The relative difference between the maximum levels should not be significantly different than the difference between the average levels.

44

As explained in TCEQ’s Motion for Reconsideration, the other justifications

offered by EPA for overriding the attainment designation are equally deficient.41

EPA irrationally rejected its own model. Thus the record and EPA’s repeated

deviations from its own policies and procedures without sound scientific

explanations for doing so suggest EPA first decided nonattainment and then

skewed the evidence accordingly.

2. EPA unlawfully used inconsistent standards to designate Wise County nonattainment.

EPA must use consistent standards for nonattainment designations in all

Regions. Catawba, 571 F.3d at 51-52. Region 6, however, singled Wise County

out for disparate treatment, applying new standards seemingly created out of whole

cloth for the sole purpose of justifying a preordained nonattainment designation.42

41EPA attempted to justify its use of absolute modeling on the ground that TCEQ’s modeling under-predicted the peak 8-hour ozone contribution for 2008. But the RRF modeling approach TCEQ used was specifically developed by EPA to correct for such errors. EPA had no rational basis to reject its own model. TCEQ Pet. for Reconsideration 7/9 (JA__). 42Chicago-Naperville, Illinois-Indiana-Wisconsin Area Designation 18 (JA__)(“In keeping with EPA’s ozone contribution levels used to select states that should be covered in regional emission control programs, 2 ppb to 4 ppb ozone concentration contributions are considered to be significant ozone contributions.”). Region 5’s levels triggering nonattainment are 267% to 533% higher than the level Region 6 applied to Wise County.

45

Using TCEQ’s projected 2012 8-hour ozone DVs of 78.06 and 76.05 ppb for

the relevant ozone monitors (which EPA does not contest), the evidence is Wise

County contributes 0.41 and 0.008 ppb ozone, respectively. Ltr. from Devon 17

(JA __). The 0.41 ppb is far below any threshold that EPA has previously used for

a nonattainment designation.43 EPA has never provided a rational explanation,

based on sound science or otherwise, for this disparate treatment.44

3. EPA unlawfully relied on HYSPLIT to support nonattainment.

EPA’s ozone nonattainment designation was substantially and erroneously

based on HYSPLIT modeling. HYSPLIT cannot measure ozone formation or

transport.45 Furthermore, the model showed that Wise County was almost always

43This is well below the 0.75 ppb threshold referenced by EPA in its Final DFW TSD. (JA __). It is similarly below the same 0.85 ppb threshold used in CSAPR and far, far below the 2-4 ppb threshold used by EPA Region 5. It is even below the 0.5 ppb level that EPA Region 5 said does “not meaningfully contribute” to high ozone concentrations. Ltr. from Devon 3/14 (7/20/12) (JA__). 44At a minimum, EPA was required to offer a reasoned justification for the variance between the nonattainment threshold in Chicago and the nonattainment threshold in the DFW. See Catawba, 571 F.3d at 51. It never did so. 45To begin with, HYSPLIT modeling provides no information regarding the actual formation or transport of ozone. EPA mapped the path of a particle or parcel of air starting above an ozone monitor backwards in time over 24 hours but without accounting for dispersion or chemical transformation. Without photochemical modeling EPA could not determine whether given emissions contributed to ozone formation. TCEQ Pet. for Reconsideration 7 (JA__).

46

downwind from the relevant DFW monitors. TCEQ TSD 7/9 , TCEQ Pet. for

Reconsideration 10/12 (JA__, __). Therefore, EPA’s reliance on this model was

arbitrary and capricious.

4. EPA failed to demonstrate IQA Requirements compliance.

EPA’s override had to comply with IQA Requirements. Prime Time Intern.

Co., 599 F.3d at 685-86; but see American Pet. Inst., 684 F.3d at 1349 (accepting

EPA’s characterization of its Guidelines as voluntary).46 At a minimum, EPA’s

designation had to be based on “the best available science and supporting studies

conducted in accordance with sound and objective scientific practices.”47 See

Prime Time Intern. Co., 599 F.3d at 685-86. Yet EPA failed IQA Requirements by

(1) rejecting its own guidance for modeling in a relative sense in favor of a long-

ago discarded absolute approach, (2) failing to disclose all error sources and

methods and analyses needed to ensure reproducibility of its determination Wise

County contributes to DFW area ozone, (3) determining Wise County emissions

46The better view is that the OMB Guidelines are binding legislative rules and mandatory. See supra note 18. But EPA must justify its deviation from “non-binding” guidelines in any event. Appalachian Power, 208 F.3d at 1022. 47See EPA Guidelines 20 (Guidelines apply to “Information disseminated in support of top Agency actions (i.e. rules…)”), 22 (“objectivity” requires the substance of the information used to justify nonattainment be accurate, reliable and unbiased and this requires EPA to use “the best available science”); accord 67 Fed. Reg. 8459/60.

47

contribute to ozone formation based on the HYSPLIT model and without rigorous

and peer-reviewed technical data regarding pollution transport and formation, (4)

failing to consistently evaluate population and VMT effects, (5) adopting multiple

numeric standards for determining statutory ozone contribution in the various

Regions without articulating any sound scientific basis for doing so, and (6) using

the best, most accurate emissions estimates to determine comparative impact. See

EPA Guidelines 20, 22; 67 Fed. Reg. 8459/60 (JA__,__).48

Also, EPA justified nonattainment by a “five factor test” of air quality,

emissions, meteorology, geography and boundaries. DFW Final Designations (JA

__). But it never explained how it weighted the factors. This violated IQA’s

requirement of a “high degree of transparency” about “analyses that combine

information from multiple sources.” 67 Fed. Reg. at 8460 (JA__).49

EPA had to demonstrate its override was made using the “best available

science,” provide a reasoned explanation referencing applicable IQA Requirements

justifying its methodological choices, and meet IQA transparency and objectivity

48Had EPA done any of these things, it would have seconded TCEQ’s attainment conclusion. TCEQ Pet. for Reconsideration 6/7, 9/12 (JA __). 49EPA invokes the “five factor test” as a catechism terminating criticism of its choices. EPA Res. to Comments 60 (4/12)(JA __). IQA’s transparency and reproducibility mandates cure this sort of “black box” decisionmaking.

48

mandates. State Farm, 463 U.S. at 43 (the agency must examine the relevant data

and articulate a satisfactory explanation for its action including a rational

connection between the facts found and the choice made); Am. Lung Ass'n, 134

F.3d at 392. Whether IQA compliance would lead to a different substantive result

(as it would here) is beside the point.50 EPA’s failure to demonstrate IQA

compliance is unlawful and grounds for remand.

5. EPA unlawfully failed failure to promulgate regulatory definitions of the terms “necessity” and “contribute” to limit its discretion to override State designations.

The undefined terms “contribute” in 42 U.S.C. § 7407(d)(1)(A)(i) and

“necessary” in § 7407(d)(1)(B)(ii) lead EPA to claim boundless override

discretion, creating significant interpretative and practical problems for the States

and counties commandeered to enforce its massive regulatory scheme.51 See

Catawba, 571 F.3d at 41 (“we give an ‘extreme degree of deference to [EPA]…’

50 In Mississippi v. EPA, 723 F.3d 246, __, 2013 U.S. App. LEXIS 14885, at *28 (D.C. Cir. 2013) this Court rejected an IQA challenge because “Mississippi fails to show the IQA is an independent measure of EPA’s NAAQS decision” and “points to nothing indicating that any part of this scheme committed EPA to having done things differently.” Id. Tellingly, the Court did not deny judicial review. Accord Prime Time, 599 F.3d 678.

51And hence the Tenth Amendment infirmity. See supra § III (A)(1).

49

[and] Such deference is especially appropriate in our review of EPA’s

administration of” the CAA).

In International Union, OSHA claimed broad discretion, as EPA does here,

to make regulatory determinations pursuant to a general delegation.52 Noting that

“OSHA’s reasoning on many issues is extremely obscure, partly because of its

failure to identify any intelligible principle that could control its discretion,” and

mindful of the dangers associated with such discretion, including inconsistent

results, the court directed the agency to promulgate a regulatory definition for the

statute’s operative terms to limit its discretion. International Union, 938 F.2d at

1317; see also Connally, 337 F. Supp. at 74 (requiring the Executive Branch to

develop “subsidiary” administrative law to blunt the “blank check” from Congress

and provide standards for judging adherence to the legislative standard); Sunstein,

98 MICH. LAW. REV. at 341.

The need for regulatory definitions to limit agency discretion here are at

least as compelling as they were in International Union. Therefore, this court

52The court recognized that the Congressional delegation raised nondelegation doctrine concerns saying that “[a]s was true of the standard upset in Schechter, the scope of the regulatory program is immense, encompassing all American enterprise. ‘When the scope increases to immense proportions (as in Schechter) the standards [for limiting agency discretion] must be correspondingly more precise.’” International Union, 938 F.2d at 1320 (citations omitted).

50

should remand the nonattainment designation and direct EPA to undertake a

rulemaking defining “necessity” and “contribute,” to limit the Agency’s override

discretion.

6. EPA exceeded its statutory authority.

42 U.S.C. § 7407(d)(1) authorizes nonattainment designations of any area

“that does not meet (or that contributes to ambient air in a nearby area that does not

meet) the national primary or secondary ambient air quality standard” for ozone.

Even EPA is bound by this language and obtains no deference for deviations.

Chevron, 467 U.S. at 843; Sierra Club v. EPA, 536 F.3d 673, 677 (D.C. Cir. 2008)

(striking down EPA rule conflicting with express statutory language). EPA

designated nonattainment because “Wise County emissions are large enough that

they can contribute to ozone exceedances on certain days.” Ltr. to McElheny

(12/14/12) (JA__). However, absent direct evidence that Wise County does

“contribute” to ozone NAAQS violations in another area, EPA exceeded its

statutory authority.

7. EPA violated the “fair notice” doctrine.

Petitioners are entitled to fair notice of EPA’s requirements so that they may

determine its expectations. Gen. Elec. Co. v. EPA, 53 F.3d 1324, 1332 (D.C. Cir.

51

1995).53 A key test is whether the agency interprets its rules inconsistently. Id.

(finding that different divisions of the agency disagreed about the meaning of the

applicable regulations); United States v. Chrysler Corp., 158 F.3d 1350, 1356

(D.C. Cir. 1998) (concluding a prior schematic illustrating testing procedures

conflicted with the EPA’s current interpretation of the testing standard and stating,

“an agency is hard pressed to show fair notice when the agency itself has taken

action in the past that conflicts with its current interpretation of a regulation”);

54Rollins Envtl. Servs. Inc. v. EPA, 937 F.2d 649, 653-54 (D.C. Cir. 1991) (finding

that agency officials in different regions interpreted the regulation differently and

gave conflicting advice to regulated entities).

EPA’s conduct with respect to the nonattainment designation, especially its

rejection of the TCEQ’s relative SAM findings developed using the Agency’s own

methodological guidance and normal practice and its inconsistent comments and

default reliance on an imprecise “black box” five or nine factor test to dismiss

53See A.C. Lin, Refining Fair Notice Doctrine: What Notice Is Required of Civil Regulations? 55 BAYLOR L. REV. 991, 1001 (2003). 54Interestingly, EPA agreed DeSoto County was attainment in the 1997 ozone NAAQS designations. Since that time, DeSoto County emissions have decreased and the data shows a continuing downward trend. Hence, not only are DeSoto County’s numbers as good as they were for the 1997 ozone NAAQS designation, they are better. Req. for Reconsideration 2 (JA__).

52

contrary information, demonstrates that Petitioners could never have determined

with EPA’s expectations with ascertainable certainty. Ltr. to TCEQ enclosure §I

(12/14/12)( “EPA has never issued specific guidance on how SAM analysis should

be performed…[and] we further note that to the extent EPA has guidance on

modeling, guidance documents are not binding …and thus cannot ‘require’ any

specific action by the EPA…” )(JA__).Therefore, they were denied fair notice and

the designation should be struck down.

CONCLUSION

For the foregoing reasons, the Court should vacate the EPA nonattainment

designations in DeSoto County, Mississippi, Shelby County, Tennessee and Wise

County, Texas.

Respectfully submitted,

/s/ Reed D. Rubinstein Reed D. Rubinstein DINSMORE & SHOHL LLP 801 Pennsylvania Avenue, N.W. Washington, DC 20004 (202) 372-9100 reed.rubinstein@dinsmore.com Counsel for Petitioner Wise County, Texas

/s/ Donna J. Hodges Donna J. Hodges MISSISSIPPI COMMISSION OF

ENVIRONMENTAL QUALITY PO Box 2261 Jackson, MS 39225 Telephone (601) 961-5369 donna_hodges@deq.state.ms.us Counsel for Petitioner Mississippi Commission on Environmental Quality

53

/s/ Gary Rikard BUTLER, SNOW, O’MARA, STEVENS AND CANADA PLLC P.O. Box 171443 Memphis, TN 38187 Telephone: (901) 680-7319 gary.rikard@butlersnow.com Counsel for Petitioner DeSoto County

/s/ Wilson Buntin ASSISTANT ATTORNEY GENERAL TENNESSEE ATTORNEY GENERAL'S

OFFICE, ENVIRONMENTAL DIVISION P.O. Box 20207 Nashville, Tennessee 37202 Telephone: (615) 253-5118 wilson.buntin@ag.tn.gov Counsel for Petitioner State of Tennessee

/s/ Mark L. Walters ASSISTANT ATTORNEY GENERAL ENVIRONMENTAL PROTECTION DIVISION TEXAS ATTORNEY GENERAL’S OFFICE Wm. P. Clements State Office Bldg. 300 West 15th Street Austin, Texas 78701 Telephone: (512) 475-4156 mark.walters@texasattorneygeneral.gov Counsel for Petitioners State of Texas and Texas Commission on Environmental Quality

Thomas J. Aaberg COMMISSIONER COURT ATTORNEY WISE COUNTY, TEXAS P.O. Box 899 Decatur, Texas 76234 Telephone: (940) 393-1507 thomas.aaberg@co.wise.tx.us Of Counsel for Petitioner Wise County, Texas

Sunni Harris DINSMORE & SHOHL LLP 801 Pennsylvania Avenue, N.W. Washington, DC 20004 (202) 372-9100 sunni.harris@dinsmore.com Of Counsel for Petitioner Wise County, Texas

CERTIFICATE OF COMPLIANCE

Pursuant to Rule 32(a)(7)(C) of the Federal Rules of Appellate Procedure

and Circuit Rules 32(a)(1) and 32(a)(2)(C), I hereby certify that the foregoing

Corrected Joint Brief of State and County Petitioners contains 11,566 words, as

counted by a word processing system that includes headings, footnotes, quotations,

and citations in the count, and therefore is within the word limit set by the Court.

/s/ Reed D. Rubinstein

Dated: September 20, 2013

CERTIFICATE OF SERVICE

Pursuant to Rule 25 of the Federal Rules of Appellate Procedure and Circuit

Rule 25(c), I hereby certify that I have this 20th day of September, 2013, served a

copy of the foregoing Corrected Joint Brief of the State and County Petitioners

electronically through the Court’s CM/ECF system.

I further certify that the undersigned will cause five copies of the foregoing

Brief to be delivered within two business days to the Clerk of the United States of

Appeals for the District of Columbia.

/s/ Reed D. Rubinstein

Statutory and Regulatory Addendum

TABLE OF CONTENTS

1. 5 U.S.C. § 553 ...................................................................................................... 1

2. 5 U.S.C. § 706 ...................................................................................................... 3

3. 42 U.S.C. § 7407 .................................................................................................. 4

4. 42 U.S.C. § 7410 .................................................................................................. 13

5. 42 U.S.C. § 7509 .................................................................................................. 29

6. 42 U.S.C. § 7511 .................................................................................................. 33

7. 42 U.S.C. § 7512 .................................................................................................. 38

8. 42 U.S.C. § 7512a ................................................................................................ 40

9. 42 U.S.C. § 7513 .................................................................................................. 47

10. 42 U.S.C. § 7514 .................................................................................................. 50

11. 42 U.S.C. § 7514a ................................................................................................ 51

12. 42 U.S.C. § 7515 .................................................................................................. 52

13. 42 U.S.C. § 7607 .................................................................................................. 53

14. 44 U.S.C. § 3516 note .......................................................................................... 62

15. 40 C.F.R. § 1505.1(b) .......................................................................................... 63

Addendum - 1

1. 5 U.S.C. § 553

1. §553. Rule making (a) This section applies, according to the provisions thereof, except to the extent that there is involved—

(1) a military or foreign affairs function of the United States; or (2) a matter relating to a agency management or personnel or to public

property, loans, grants, benefits, or contacts. (b) General notice of proposed rule making shall be published in the Federal Register, unless persons subject thereto are named and either personally served or otherwise have actual notice thereof in accordance with law. The notice shall include— (1) a statement of the time, place, and nature of public rule making

proceedings; (2) reference to the legal authority under which the rule is proposed; and

(3) either the terms or substance of the proposed rule or a description of the subjects and issues involved.

Except when notice or hearing is required by statute, this subsection does not

apply—

(A) to interpretive rules, general statements of policy, or rules of agency organization, procedure, or practice; or

(B) when the agency for good cause finds (and incorporates the finding and a brief statement of reasons therefor in the rules issued) that notice and public procedure thereon are impracticable, unnecessary, or contrary to the public interest.

(c) After notice required by this section, the agency shall give interested persons an opportunity to participate in the rule making through submission of written data, views, or arguments with or without opportunity for oral presentation.

Addendum - 2

After consideration of the relevant matter presented, the agency shall incorporate in the rules adopted a concise general statement of their basis and purpose. When rules are required by statute to be made on the record after opportunity for an agency hearing, sections 556 and 557 of this title [5 USCS §§ 556 and 557] apply instead of this subsection. (d) The required publication or service of a substantive rule shall be made not less than 30 days before its effective date, except— (1) a substantive rule which grants or recognizes an exemption or relieves a

restriction; (2) interpretive rules and statements of policy; or (3) as otherwise provided by the agency for good cause found and published

with the rule. (e) Each agency shall give an interested person the right to petition for the

issuance, amendment, or repeal of a rule.

Addendum - 3

2. 5 U.S.C. § 706 2. §706. Scope of review

To the extent necessary to decision and when presented, the reviewing court shall decide all relevant questions of law, interpret constitutional and statutory provisions, and determine the meaning or applicability of the terms of an agency action. The reviewing court shall— (1) compel agency action unlawfully withheld or unreasonably delayed; and (2) hold unlawful and set aside agency action, findings, and conclusions found

to be— (A) arbitrary, capricious, an abuse of discretion, or otherwise not in

accordance with law; (B) contrary to constitutional right, power, privilege, or immunity; (C) in excess of statutory jurisdiction, authority, or limitations, or short

of statutory right; (D) without observance of procedure required by law; (E) unsupported by substantial evidence in a case subject to sections 556

and 557 of this title [5 USCS §§ 556 and 557] or otherwise reviewed on the record of an agency hearing provided by statute; or

(F) unwarranted by the facts to the extent that the facts are subject to trial de novo by the reviewing court.

In making the foregoing determinations, the court shall review the whole

record or those parts of it cited by a party, and due account shall be taken of the rule of prejudicial error.

3. 42 U.S.C. § 7407 3. §7407. Air quality control region (a) Responsibility of each State for air quality; submission of implementation plan.

Each State shall have the primary responsibility for assuring air quality within the entire geographic area comprising such State by submitting an implementation plan

Addendum - 4

for such State which will specify the manner in which national primary and secondary ambient air quality standards will be achieved and maintained within each air quality control region in such State. (b) Designated regions.

For purposes of developing and carrying out implementation plans under section 110 [42 USCS § 7410]—

(1) an air quality control region designated under this section before the date of

enactment of the Clean Air Amendments of 1970 [enacted Dec. 31, 1970], or a region designated after such date under subsection (c), shall be an air quality control region; and

(2) the portion of such State which is not part of any such designated region

shall be n air quality control region, but such portion may be subdivided by the State into two or more air quality control regions with the approval of the Administrator. (c) Authority of Administrator to designate regions; notification of Governors of affected States.

The Administrator shall, within 90 days after the date of enactment of the Clean Air Amendments of 1970 [enacted Dec. 31, 1970], after consultation with appropriate State and local authorities, designate as an air quality control region any interstate area or major intrastate area which he deems necessary or appropriate for the attainment and maintenance of ambient air quality standards. The Administrator shall immediately notify the Governors of the affected States of any designation made under this subsection.

Addendum - 5

(d) Designations. (1) Designations generally. (A) Submission by Governors of initial designations following

promulgation of new or revised standards. By such date as the Administrator may reasonably require, but not later than 1 year after promulgation of a new or revised national ambient air quality standard for any pollutant under section 109 [42 USCS § 7409], the Governor of each State shall (and at any other time the Governor of a State deems appropriate the Governor may) submit to the Administrator a list of all areas (or portions thereof) in the State, designating as--

(i) nonattainment, any area that does not meet (or that contributes to ambient air quality in a nearby area that does not meet) the national primary or secondary ambient air quality standard for the pollutant,

(ii) attainment, any area (other than an area identified in clause (i)) that meets the national primary or secondary ambient air quality standard for the pollutant, or

(iii) unclassifiable, any area that cannot be classified on the basis of available information as meeting or not meeting the national primary or secondary ambient air quality standard for the pollutant.

The Administrator may not require the Governor to submit the required list sooner

than 120 days after promulgating a new or revised national ambient air quality standard.

(B) Promulgation by EPA of designations. (i) Upon promulgation or revision of a national ambient air quality

standard, the Administrator shall promulgate the designations of all areas (or portions thereof) submitted under subparagraph (A) as expeditiously as practicable, but in no case later than 2 years from the date of promulgation of the new or revised national ambient air quality standard. Such period may be extended for up to one year in the event the Administrator has insufficient information to promulgate the designations.

(ii) In making the promulgations required under clause (i), the Administrator may make such modifications as the Administrator

Addendum - 6

deems necessary to the designations of the areas (or portions thereof) submitted under subparagraph (A) (including to the boundaries of such areas or portions thereof). Whenever the Administrator shall notify the State and provide such State with an opportunity to demonstrate why any proposed modification is inappropriate. The Administrator shall give such notification no later than 120 days before the date the Administrator promulgates the designation, including any modification thereto. If the Governor fails to submit the list in whole or in part, as required under subparagraph (A), the Administrator shall promulgate the designation that the Administrator deems appropriate for any area (or portion thereof) not designated by the State.

(iii) If the Governor of any State, on the Governor's own motion, under subparagraph (A), submits a list of areas (or portions thereof) in the State designated as nonattainment, attainment, or unclassifiable, the Administrator shall act on such designations in accordance with the procedures under paragraph (3) (relating to redesignation).

(iv) A designation for an area (or portion thereof) made pursuant to this subsection shall remain in effect until the area (or portion thereof) is redesignated pursuant to paragraph (3) or (4).

(C) Designations by operation of law. (i) Any area designated with respect to any air pollutant under the

provisions of paragraph (1) (A), (B), or (C) of this subsection (as in effect immediately before the date of the enactment of the Clean Air Act Amendments of 1990 [enacted Nov. 15, 1990]) is designated, by operation of law, as a nonattainment area for such pollutant within the meaning of subparagraph (A)(i).

(ii) Any area designated with respect to any air pollutant under the provisions of paragraph (1)(E) (as in effect immediately before the date of the enactment of the Clean Air Act Amendments of 1990 [enacted Nov. 15, 1990]) is designated by operation of law, as an attainment area for such pollutant within the meaning of subparagraph (A)(ii).

(iii) Any area designated with respect to any air pollutant under the provisions of paragraph (1)(D) (as in effect immediately before the date of the enactment of the Clean Air Act Amendments of 1990 [enacted Nov. 15, 1990]) is designated, by operation of law, as an

Addendum - 7

unclassifiable area for such pollutant within the meaning of subparagraph (A)(iii).

(2) Publication of designations and redesignations.

(A) The Administrator shall publish a notice in the Federal Register promulgating any designation under paragraph (1) or (5), or announcing any designation under paragraph (4), or promulgating any redesignation under paragraph (3).

(B) Promulgation or announcement of a designation under paragraph (1), (4) or (5) shall not be subject to the provisions of sections 553 through 557 of title 5 of the United States Code (relating to notice and comment), except nothing herein shall be construed as precluding such public notice and comment whenever possible.

(3) Redesignation. (A) Subject to the requirements of subparagraph (E), and on the basis of

air quality data, planning and control considerations, or any other air quality-related considerations the Administrator deems appropriate, the Administrator may at any time notify the Governor of any State that available information indicates that the designation of any area or portion of an area within the State or interstate area should be revised. In issuing such notification, which shall be public, to the Governor, the Administrator shall provide such information as the Administrator may have available explaining the basis for the notice.

(B) No later than 120 days after receiving a notification under subparagraph (A), the Governor shall submit to the Administrator such redesignation, if any, of the appropriate area (or areas) or portion thereof within the State or interstate area, as the Governor considers appropriate.

(C) No later than 120 days after the date described in subparagraph (B) (or paragraph (1)(B)(iii)), the Administrator shall promulgate the redesignation, if any, of the area or portion thereof, submitted by the Governor in accordance with subparagraph (B), making such modifications as the Administrator may deem necessary, in the same manner and under the same procedure as is applicable under clause (ii) of paragraph (1)(B), except that the phrase "60 days" shall be substituted for the phrase "120 days" in that clause. If the Governor does not submit, in accordance with subparagraph (B), a redesignation for an area (or portion

Addendum - 8

thereof) identified by the Administrator under subparagraph (A), the Administrator shall promulgate such redesignation, if any, that the Administrator deems appropriate.

(D) The Governor of any State may, on the Governor's own motion, submit to the Administrator a revised designation of any area or portion thereof within the State. Within 18 months of receipt of a complete State redesignation submittal, the Administrator shall approve or deny such redesignation. The submission of a redesignation by a Governor shall not affect the effectiveness or enforceability of the applicable implementation plan for the State.

(E) The Administrator may not promulgate a redesignation of a nonattainment area (or portion thereof) to attainment unless--

(i) the Administrator determines that the area has attained the national ambient air quality standard;

(ii) the Administrator has fully approved the applicable implementation plan for the area under section 110(k) [42 USCS § 7410(k)];

(iii) the Administrator determines that the improvement in air quality is due to permanent and enforceable reductions in emissions resulting from implementation of the applicable implementation plan and applicable Federal air pollutant control regulations and other permanent and enforceable reductions;

(iv) the Administrator has fully approved a maintenance plan for the area as meeting the requirements of section 175A [42 USCS § 7505a]; and

(v) the State containing such area has met all requirements applicable to the area under section 110 and part D [42 USCS § 7410 and §§ 7501 et seq.].

(F) The Administrator shall not promulgate any redesignation of any area (or portion thereof) from nonattainment to unclassifiable.

(4) Nonattainment designations for ozone, carbon monoxide and particulate

matter (PM-10).

(A) Ozone and carbon monoxide. (i) Within 120 days after the date of the enactment of the Clean

Air Act Amendments of 1990 [enacted Nov. 15, 1990], each Governor of each State shall submit to the Administrator a list that designates, affirms or reaffirms the designation of, or redesignates

Addendum - 9

(as the case may be), all areas (or portions thereof) of the Governor's State as attainment, nonattainment, or unclassifiable with respect to the national ambient air quality standards for ozone and carbon monoxide.

(ii) No later than 120 days after the date the Governor is required to submit the list of areas (or portions thereof) required under clause (i) of this subparagraph, the Administrator shall promulgate such designations, making such modifications as the Administrator may deem necessary, in the same manner, and under the same procedure, as is applicable under clause (ii) of paragraph (1)(B), except that the phrase "60 days" shall be substituted for the phrase "120 days" in that clause. If the Governor does not submit, in accordance with clause (i) of this subparagraph, a designation for an area (or portion thereof), the Administrator shall promulgate the designation that the Administrator deems appropriate.

(iii) No nonattainment area may be redesignated as an attainment area under this subparagraph.

(iv) Notwithstanding paragraph (1)(C)(ii) of this subsection, if an ozone or carbon monoxide nonattainment area located within a metropolitan statistical area or consolidated metropolitan statistical area (as established by the Bureau of the Census) is classified under part D of this title [42 USCS §§ 7501 et seq.] as a Serious, Severe, or Extreme Area, the boundaries of such area are hereby revised (on the date 45 days after such classification) by operation of law to include the entire metropolitan statistical area or consolidated metropolitan statistical area, as the case may be, unless within such 45-day period the Governor (in consultation with State and local air pollution control agencies) notifies the Administrator that additional time is necessary to evaluate the application of clause (v). Whenever a Governor has submitted such a notice to the Administrator, such boundary revision shall occur on the later of the date 8 months after such classification or 14 months after the date of the enactment of the Clean Air Act Amendments of 1990 [enacted Nov. 15, 1990] unless the Governor makes the finding referred to in clause (v), and the Administrator concurs in such finding, within such period. Except as otherwise provided in this paragraph, a boundary revision under this clause or clause (v) shall apply for purposes of any State implementation plan revision required to be

Addendum - 10

submitted after the date of the enactment of the Clean Air Act Amendments of 1990 [enacted Nov. 15, 1990].

(v) Whenever the Governor of a State has submitted a notice under clause (iv), the Governor, in consultation with State and local air pollution control agencies, shall undertake a study to evaluate whether the entire metropolitan statistical area or consolidated metropolitan statistical area should be included within the nonattainment area. Whenever a Governor finds and demonstrates to the satisfaction of the Administrator, and the Administrator concurs in such finding, that with respect to a portion of a metropolitan statistical area or consolidated metropolitan statistical area, sources in the portion do not contribute significantly to violation of the national ambient air quality standard, the Administrator shall approve the Governor's request to exclude such portion from the nonattainment area. In making such finding, the Governor and the Administrator shall consider factors such as population density, traffic congestion, commercial development, industrial development, meteorological conditions, and pollution transport.

(B) PM-10 designations. By operation of law, until redesignation by the Administrator pursuant to paragraph (3)--

(i) each area identified in 52 Federal Register 29383 (Aug. 7, 1987) as a Group I area (except to the extent that such identification was modified by the Administrator before the date of the enactment of the Clean Air Act Amendments of 1990 [enacted Nov. 15, 1990]) is designated nonattainment for PM-10;

(ii) any area containing a site for which air quality monitoring data show a violation of the national ambient air quality standard for PM-10 before January 1, 1989 (as determined under part 50, appendix K of title 40 of the Code of Federal Regulations) is hereby designated nonattainment for PM-10; and

(iii) each area not described in clause (i) or (ii) is hereby designated unclassifiable for PM-10.

Any designation for particulate matter (measured in terms of total suspended

particulates) that the Administrator promulgated pursuant to this subsection (as in effect immediately before the date of the enactment of the Clean Air Act Amendments of 1990 [enacted Nov. 15, 1990]) shall remain in effect for purposes of implementing the maximum allowable increases in concentrations of particulate

Addendum - 11

matter (measured in terms of total suspended particulates) pursuant to section 163(b) [42 USCS § 7473(b)], until the Administrator determines that such designation is no longer necessary for that purpose.

(5) Designations for lead.

The Administrator may, in the Administrator's discretion at any time the Administrator deems appropriate, require a State to designate areas (or portions thereof) with respect to the national ambient air quality standard for lead in effect as of the date of the enactment of the Clean Air Act Amendments of 1990 [enacted Nov. 15, 1990], in accordance with the procedures under subparagraphs (A) and (B) of paragraph (1), except that in applying subparagraph (B)(i) of paragraph (1) the phrase "2 years from the date of promulgation of the new or revised national ambient air quality standard" shall be replaced by the phrase "1 year from the date the Administrator notifies the State of the requirement to designate areas with respect to the standard for lead".

(6) Designations.

(A) Submission. Notwithstanding any other provision of law, not later than February 15, 2004, the Governor of each State shall submit designations referred to in paragraph (1) for the July 1997 PM[2.5] national ambient air quality standards for each area within the State, based on air quality monitoring data collected in accordance with any applicable Federal reference methods for the relevant areas.

(B) Promulgation. Notwithstanding any other provision of law, not later than December 31, 2004, the Administrator shall, consistent with paragraph (1), promulgate the designations referred to in subparagraph (A) for each area of each State for the July 1997 PM[2.5] national ambient air quality standards.

(7) Implementation plan for regional haze. (A) In general. Notwithstanding any other provision of law, not later

than 3 years after the date on which the Administrator promulgates the designations referred to in paragraph (6)(B) for a State, the State shall submit, for the entire State, the State implementation plan revisions to meet the requirements promulgated by the Administrator under section

Addendum - 12

169B(e)(1) [42 USCS § 7492(e)(1)] (referred to in this paragraph as "regional haze requirements").

(B) No preclusion of other provisions. Nothing in this paragraph precludes the implementation of the agreements and recommendations stemming from the Grand Canyon Visibility Transport Commission Report dated June 1996, including the submission of State implementation plan revisions by the States of Arizona, California, Colorado, Idaho, Nevada, New Mexico, Oregon, Utah, or Wyoming by December 31, 2003, for implementation of regional haze requirements applicable to those States.".

(e) Redesignation of air quality control regions. (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) shall be modified accordingly.

(2) In the case of an air quality control region in a State, or part of such region,

which the Administrator finds may significantly affect air pollution concentrations in another State, the Governor of the State in which such region, or part of a region, is located may redesignate from time to time the boundaries of so much of such air quality control region as is located within such State only with the approval of the Administrator and with the consent of all Governors of all States which the Administrator determines may be significantly affected.

(3) No compliance date extension granted under section 113(d)(5) (relating to

coal conversion) shall cease to be effective by reason of the regional limitation provided in section 113(d)(5) if the violation of such limitation is due solely to a redesignation of a region under this subsection.

Addendum - 13

4. 42 U.S.C. § 7410 4. §7410. State implementation plans for national primary and secondary

ambient air quality standards (a) Adoption of plan by State; submission to Administrator; content of plan; revision; new sources; indirect source review program; supplemental or intermittent control systems.

(1) Each State shall, after reasonable notice and public hearings, adopt and

submit to the Administrator, within 3 years (or such shorter period as the Administrator may prescribe) after the promulgation of a national primary ambient air quality standard (or any revision thereof) under section 109 [42 USCS § 7409] for any air pollutant, a plan which provides for implementation, maintenance, and enforcement of such primary standard in each air quality control region (or portion thereof) within such State. In addition, such State shall adopt and submit to the Administrator (either as a part of a plan submitted under the preceding sentence or separately) within 3 years (or such shorter period as the Administrator may prescribe) after the promulgation of a national ambient air quality secondary standard (or revision thereof), a plan which provides for implementation, maintenance, and enforcement of such secondary standard in each air quality control region (or portion thereof) within such State. Unless a separate public hearing is provided, each State shall consider its plan implementing such secondary standard at the hearing required by the first sentence of this paragraph.

(2) Each implementation plan submitted by a State under this Act shall be

adopted by the State after reasonable notice and public hearing. Each such plan shall—

(A) include enforceable emission limitations and other control measures,

means, or techniques (including economic incentives such as fees, marketable permits, and auctions of emissions rights), as well as schedules and timetables for compliance, as may be necessary or appropriate to meet the applicable requirements of this Act;

(B) provide for establishment and operation of appropriate devices, methods, systems, and procedures necessary to--

(i) monitor, compile, and analyze data on ambient air quality, and (ii) upon request, make such data available to the Administrator;

Addendum - 14

(C) include a program to provide for the enforcement of the measures described in subparagraph (A), and regulation of the modification and construction of any stationary source within the areas covered by the plan as necessary to assure that national ambient air quality standards are achieved, including a permit program as required in parts C and D [42 USCS §§ 7470 et seq., 7501 et seq.];

(D) contain adequate provisions-- (i) prohibiting, consistent with the provisions of this title, any

source or other type of emissions activity within the State from emitting any air pollutant in amounts which will--

(I) contribute significantly to nonattainment in, or interfere with maintenance by, any other State with respect to any such national primary or secondary ambient air quality standard, or

(II) interfere with measures required to be included in the applicable implementation plan for any other State under part C [42 USCS §§ 7470 et seq.] to prevent significant deterioration of air quality or to protect visibility,

(ii) insuring compliance with the applicable requirements of sections 126 and 115 [42 USCS §§ 7426, 7415] (relating to interstate and international pollution abatement);

(E) provide (i) necessary assurances that the State (or, except where the Administrator deems inappropriate, the general purpose local government or governments, or a regional agency designated by the State or general purpose local governments for such purpose) will have adequate personnel, funding, and authority under State (and, as appropriate, local) law to carry out such implementation plan (and is not prohibited by any provision of Federal or State law from carrying out such implementation plan or portion thereof), (ii) requirements that the State comply with the requirements respecting State boards under section 128 [42 USCS § 7428], and (iii) necessary assurances that, where the State has relied on a local or regional government, agency, or instrumentality for the implementation of any plan provision, the State has responsibility for ensuring adequate implementation of such plan provision;

(F) require, as may be prescribed by the Administrator-- (i) the installation, maintenance, and replacement of equipment,

and the implementation of other necessary steps, by owners or operators of stationary sources to monitor emissions from such sources,

Addendum - 15

(ii) periodic reports on the nature and amounts of emissions and emissions-related data from such sources, and

(iii) correlation of such reports by the State agency with any emission limitations or standards established pursuant to this Act, which reports shall be available at reasonable times for public inspection;

(G) provide for authority comparable to that in section 303 [42 USCS § 7603] and adequate contingency plans to implement such authority;

(H) provide for revision of such plan-- (i) from time to time as may be necessary to take account of

revisions of such national primary or secondary ambient air quality standard or the availability of improved or more expeditious methods of attaining such standard, and

(ii) except as provided in paragraph (3)(C), whenever the Administrator finds on the basis of information available to the Administrator that the plan is substantially inadequate to attain the national ambient air quality standard which it implements or to otherwise comply with any additional requirements established under this Act;

(I) in the case of a plan or plan revision for an area designated as a nonattainment area, meet the applicable requirements of part D [42 USCS §§ 7501 et seq.] (relating to nonattainment areas);

(J) meet the applicable requirements of section 121 [42 USCS § 7421] (relating to consultation), section 127 [42 USCS § 7427] (relating to public notification), and part C [42 USCS §§ 7470 et seq.] (relating to prevention of significant deterioration of air quality and visibility protection);

(K) provide for-- (i) the performance of such air quality modeling as the

Administrator may prescribe for the purpose of predicting the effect on ambient air quality of any emissions of any air pollutant for which the Administrator has established a national ambient air quality standard, and

(ii) the submission, upon request, of data related to such air quality modeling to the Administrator;

(L) require the owner or operator of each major stationary source to pay to the permitting authority, as a condition of any permit required under this Act, a fee sufficient to cover--

(i) the reasonable costs of reviewing and acting upon any application for such a permit, and

Addendum - 16

(ii) if the owner or operator receives a permit for such source, the reasonable costs of implementing and enforcing the terms and conditions of any such permit (not including any court costs or other costs associated with any enforcement action), until such fee requirement is superseded with respect to such sources by the Administrator's approval of a fee program under title V [42 USCS §§ 7661 et seq.]; and

(M) provide for consultation and participation by local political subdivisions affected by the plan.

(3)

(A) [Repealed] (B) As soon as practicable, the Administrator shall, consistent with the

purposes of this Act and the Energy Supply and Environmental Coordination Act of 1974, review each State's applicable implementation plans and report to the State on whether such plans can be revised in relation to fuel burning stationary sources (or persons supplying fuel to such sources) without interfering with the attainment and maintenance of any national ambient air quality standard within the period permitted in this section. If the Administrator determines that any such plan can be revised, he shall notify the State that a plan revision may be submitted by the State. Any plan revision which is submitted by the State shall, after public notice and opportunity for public hearing, be approved by the Administrator if the revision relates only to fuel burning stationary sources (or persons supplying fuel to such sources), and the plan as revised complies with paragraph (2) of this subsection. The Administrator shall approve or disapprove any revision no later than three months after its submission.

(C) Neither the State, in the case of a plan (or portion thereof) approved under this subsection, nor the Administrator, in the case of a plan (or portion thereof) promulgated under subsection (c), shall be required to revise an applicable implementation plan because one or more exemptions under section 118 [42 USCS § 7418] (relating to Federal facilities), enforcement orders under section 113(d), suspensions under section 110(f) or (g) [subsecs. (f) or (g) of this section] (relating to temporary energy or economic authority), orders under section 119 [42 USCS § 7419] (relating to primary nonferrous smelters), or extensions of compliance in decrees entered under section 113(e) (relating to iron- and steel-producing

Addendum - 17

operations) have been granted, if such plan would have met the requirements of this section if no such exemptions, orders, or extensions had been granted.

(4) [Repealed]

(5)

(A) (i) Any State may include in a State implementation plan, but the

Administrator may not require as a condition of approval of such plan under this section, any indirect source review program. The Administrator may approve and enforce, as part of an applicable implementation plan, an indirect source review program which the State chooses to adopt and submit as part of its plan.

(ii) Except as provided in subparagraph (B), no plan promulgated by the Administrator shall include any indirect source review program for any air quality control region, or portion thereof.

(iii) Any State may revise an applicable implementation plan approved under section 110(a) [42 USCS § 7410(a)] to suspend or revoke any such program included in such plan, provided that such plan meets the requirements of this section.

(B) The Administrator shall have the authority to promulgate, implement and enforce regulations under section 110(c) [42 USCS § 7410(c)] respecting indirect source review programs which apply only to federally assisted highways, airports, and other major federally assisted indirect sources and federally owned or operated indirect sources.

(C) For purposes of this paragraph, the term "indirect source" means a facility, building, structure, installation, real property, road, or highway which attracts, or may attract, mobile sources of pollution. Such term includes parking lots, parking garages, and other facilities subject to any measure for management of parking supply (within the meaning of section 110(c)(2)(D)(ii) [42 USCS § 7410(c)(2)(D)(ii)]), including regulation of existing off-street parking but such term does not include new or existing on-street parking. Direct emissions sources or facilities at, within, or associated with, any indirect source shall not be deemed indirect sources for the purpose of this paragraph.

(D) For purposes of this paragraph the term "indirect source review program" means the facility-by-facility review of indirect sources of air

Addendum - 18

pollution, including such measures as are necessary to assure, or assist in assuring, that a new or modified indirect source will not attract mobile sources of air pollution, the emissions from which would cause or contribute to air pollution concentrations--

(i) exceeding any national primary ambient air quality standard for a mobile source-related air pollutant after the primary standard attainment date, or

(ii) preventing maintenance of any such standard after such date. (E) For purposes of this paragraph and paragraph (2)(B), the term

"transportation control measure" does not include any measure which is an "indirect source review program".

(6) No State plan shall be treated as meeting the requirements of this section

unless such plan provides that in the case of any source which uses a supplemental, or intermittent control system for purposes of meeting the requirements of an order under section 113(d) or section 119 (relating to primary nonferrous smelter orders) [42 USCS § 7419], the owner or operator of such source may not temporarily reduce the pay of any employee by reason of the use of such supplemental or intermittent or other dispersion dependent control system.

(b) Extension of period for submission of plans.

The Administrator may, wherever he determines necessary, extend the period for submission of any plan or portion thereof which implements a national secondary ambient air quality standard for a period not to exceed 18 months from the date otherwise required for submission of such plan. (c) Preparation and publication by Administrator of proposed regulations setting forth implementation plan; transportation regulations study and report; parking surcharge; suspension authority; plan implementation.

(1) The Administrator shall promulgate a Federal implementation plan at any time within 2 years after the Administrator—

(A) finds that a State has failed to make a required submission or finds

that the plan or plan revision submitted by the State does not satisfy the minimum criteria established under section 110(k)(1)(A) [42 USCS § 7410(k)(1)(A)], or

Addendum - 19

(B) disapproves a State implementation plan submission in whole or in part, unless the State corrects the deficiency, and the Administrator approves the plan or plan revision, before the Administrator promulgates such Federal implementation plan.

(2)

(A) [Repealed] (B) No parking surcharge regulation may be required by the

Administrator under paragraph (1) of this subsection as a part of an applicable implementation plan. All parking surcharge regulations previously required by the Administrator shall be void upon the date of enactment of this subparagraph. This subparagraph shall not prevent the Administrator from approving parking surcharges if they are adopted and submitted by a State as part of an applicable implementation plan. The Administrator may not condition approval of any implementation plan submitted by a State on such plan's including a parking surcharge regulation.

(C) [Repealed] (D) For purposes of this paragraph-- (i) The term "parking surcharge regulation" means a regulation

imposing or requiring the imposition of any tax, surcharge, fee, or other charge on parking spaces, or any other area used for the temporary storage of motor vehicles.

(ii) The term "management of parking supply" shall include any requirement providing that any new facility containing a given number of parking spaces shall receive a permit or other prior approval, issuance of which is to be conditioned on air quality considerations.

(iii) The term "preferential bus/carpool lane" shall include any requirement for the setting aside of one or more lanes of a street or highway on a permanent or temporary basis for the exclusive use of buses or carpools, or both.

(E) No standard, plan, or requirement, relating to management of parking supply or preferential bus/carpool lanes shall be promulgated after the date of enactment of this paragraph [enacted June 22, 1974] by the Administrator pursuant to this section, unless such promulgation has been subjected to at least one public hearing which has been held in the area affected and for which reasonable notice has been given in such area. If

Addendum - 20

substantial changes are made following public hearings, one or more additional hearings shall be held in such area after such notice.

(3) Upon application of the chief executive officer of any general purpose unit

of local government, if the Administrator determines that such unit has adequate authority under State or local law, the Administrator may delegate to such unit the authority to implement and enforce within the jurisdiction of such unit any part of a plan promulgated under this subsection. Nothing in this paragraph shall prevent the Administrator from implementing or enforcing any applicable provision of a plan promulgated under this subsection.

(4) [Repealed]

(5)

(A) Any measure in an applicable implementation plan which requires a toll or other charge for the use of a bridge located entirely within one city shall be eliminated from such plan by the Administrator upon application by the Governor of the State, which application shall include a certification by the Governor that he will revise such plan in accordance with subparagraph (B).

(B) In the case of any applicable implementation plan with respect to which a measure has been eliminated under subparagraph (A), such plan shall, not later than one year after the date of the enactment of this subparagraph [enacted Aug. 7, 1977], be revised to include comprehensive measures to:

(i) establish, expand, or improve public transportation measures to meet basic transportation needs, as expeditiously as is practicable; and

(ii) implement transportation control measures necessary to attain and maintain national ambient air quality standards, and such revised plan shall, for the purpose of implementing such comprehensive public transportation measures, include requirements to use (insofar as is necessary) Federal grants, State or local funds, or any combination of such grants and funds as may be consistent with the terms of the legislation providing such grants and funds. Such measures shall, as a substitute for the tolls or charges eliminated under subparagraph (A), provide for emissions reductions equivalent to the reductions which may reasonably be

Addendum - 21

expected to be achieved through the use of the tolls or charges eliminated.

(C) Any revision of an implementation plan for purposes of meeting the requirements of subparagraph (B) shall be submitted in coordination with any plan revision required under part D [42 USCS §§ 7501 et seq.].

(d), (e) [Repealed] (f) National or regional energy emergencies; determination by President.

(1) Upon application by the owner or operator of a fuel burning stationary source, and after notice and opportunity for public hearing, the Governor of the State in which such source is located may petition the President to determine that a national or regional energy emergency exists of such severity that—

(A) a temporary suspension of any part of the applicable implementation

plan or of any requirement under section 411 (concerning excess emissions penalties or offsets) of title IV of the Act [42 USCS § 7651j] may be necessary, and

(B) other means of responding to the energy emergency may be inadequate.

Such determination shall not be delegable by the President to any other person. If the President determines that a national or regional energy emergency of such severity exists, a temporary emergency suspension of any part of an applicable implementation plan or of any requirement under section 411 (concerning excess emissions penalties or offsets) of title IV of the Act [42 USCS § 7651j] adopted by the State may be issued by the Governor of any State covered by the President's determination under the condition specified in paragraph (2) and may take effect immediately.

(2) A temporary emergency suspension under this subsection shall be issued to a source only if the Governor of such State finds that—

(A) there exists in the vicinity of such source a temporary energy

emergency involving high levels of unemployment or loss of necessary energy supplies for residential dwellings; and

(B) such unemployment or loss can be totally or partially alleviated by such emergency suspension.

Addendum - 22

Not more than one such suspension may be issued for any source on the basis of the same set of circumstances or on the basis of the same emergency.

(3) A temporary emergency suspension issued by a Governor under this subsection shall remain in effect for a maximum of four months or such lesser period as may be specified in a disapproval order of the Administrator, if any. The Administrator may disapprove such suspension if he determines that it does not meet the requirements of paragraph (2).

(4) This subsection shall not apply in the case of a plan provision or

requirement promulgated by the Administrator under subsection (c) of this section, but in any such case the President may grant a temporary emergency suspension for a four month period of any such provision or requirement if he makes the determinations and findings specified in paragraphs (1) and (2).

(5) The Governor may include in any temporary emergency suspension issued

under this subsection a provision delaying for a period identical to the period of such suspension any compliance schedule (or increment of progress) to which such source is subject under section 119, as in effect before the date of the enactment of this paragraph [enacted Aug. 7, 1977] or section 113(d) of this Act, upon a finding that such source is unable to comply with such schedule (or increment) solely because of the conditions on the basis of which a suspension was issued under this subsection.

(g) Governor's authority to issue temporary emergency suspensions.

(1) In the case of any State which has adopted and submitted to the Administrator a proposed plan revision which the State determines—

(A) meets the requirements of this section, and (B) is necessary (i) to prevent the closing for one year or more of any

source of air pollution, and (ii) to prevent substantial increases in unemployment which would result from such closing, and which the Administrator has not approved or disapproved under this section within 12 months of submission of the proposed plan revision, the Governor may issue a temporary emergency suspension of the part of the applicable implementation plan for such State which is proposed to be revised with respect to such source. The determination under subparagraph (B) may not

Addendum - 23

be made with respect to a source which would close without regard to whether or not the proposed plan revision is approved.

(2) A temporary emergency suspension issued by a Governor under this

subsection shall remain in effect for a maximum of four months or such lesser period as may be specified in a disapproval order of the Administrator. The Administrator may disapprove such suspension if he determines that it does not meet the requirements of this subsection.

(3) The Governor may include in any temporary emergency suspension issued

under this subsection a provision delaying for a period identical to the period of such suspension any compliance schedule (or increment of progress) to which such source is subject under section 119 as in effect before the date of the enactment of this paragraph [enacted Aug. 7, 1977], or under section 113(d) upon a finding that such source is unable to comply with such schedule (or increment) solely because of the conditions on the basis of which a suspension was issued under this subsection.

(h) Publication of comprehensive document for each State setting forth requirements of applicable implementation plan.

(1) Not later than 5 years after the date of the enactment of the Clean Air Act Amendments of 1990 [enacted Nov. 15, 1990], and every 3 years thereafter, the Administrator shall assemble and publish a comprehensive document for each State setting forth all requirements of the applicable implementation plan for such State and shall publish notice in the Federal Register of the availability of such documents.

(2) The Administrator may promulgate such regulations as may be reasonably

necessary to carry out the purpose of this subsection. (i) Modification of requirements prohibited.

Except for a primary nonferrous smelter order under section 119 [42 USCS § 7419], a suspension under section 110(f) or (g) [subsec. (f) or (g) of this section] (relating to emergency suspensions), an exemption under section 118 [42 USCS § 7418] (relating to certain Federal facilities), an order under section 113(d) (relating to compliance orders), a plan promulgation under section 110(c) [subsec. (c) of this section], or a plan revision under section 110(a)(3) [subsec. (a)(3) of this section], no

Addendum - 24

order, suspension, plan revision, or other action modifying any requirement of an applicable implementation plan may be taken with respect to any stationary source by the State or by the Administrator. (j) Technological systems of continuous emission reduction on new or modified stationary sources; compliance with performance standards.

As a condition for issuance of any permit required under this title, the owner or operator of each new or modified stationary source which is required to obtain such a permit must show to the satisfaction of the permitting authority that the technological system of continuous emission reduction which is to be used will enable such source to comply with the standards of performance which are to apply to such source and that the construction or modification and operation of such source will be in compliance with all other requirements of this Act. (k) Environmental Protection Agency action on plan submissions.

(1) Completeness of plan submissions.

(A) Completeness criteria. Within 9 months after the date of the enactment of the Clean Air Act Amendments of 1990 [enacted Nov. 15, 1990], the Administrator shall promulgate minimum criteria that any plan submission must meet before the Administrator is required to act on such submission under this subsection. The criteria shall be limited to the information necessary to enable the Administrator to determine whether the plan submission complies with the provisions of this Act.

(B) Completeness finding. Within 60 days of the Administrator's receipt of a plan or plan revision, but no later than 6 months after the date, if any, by which a State is required to submit the plan or revision, the Administrator shall determine whether the minimum criteria established pursuant to subparagraph (A) have been met. Any plan or plan revision that a State submits to the Administrator, and that has not been determined by the Administrator (by the date 6 months after receipt of the submission) to have failed to meet the minimum criteria established pursuant to subparagraph (A), shall on that date be deemed by operation of law to meet such minimum criteria.

(C) Effect of finding of incompleteness. Where the Administrator determines that a plan submission (or part thereof) does not meet the minimum criteria established pursuant to subparagraph (A), the State shall

Addendum - 25

be treated as not having made the submission (or, in the Administrator's discretion, part thereof).

(2) Deadline for action. Within 12 months of a determination by the

Administrator (or a determination deemed by operation of law) under paragraph (1) that a State has submitted a plan or plan revision (or, in the Administrator's discretion, part thereof) that meets the minimum criteria established pursuant to paragraph (1), if applicable (or, if those criteria are not applicable, within 12 months of submission of the plan or revision), the Administrator shall act on the submission in accordance with paragraph (3).

(3) Full and partial approval and disapproval. In the case of any submittal on

which the Administrator is required to act under paragraph (2), the Administrator shall approve such submittal as a whole if it meets all of the applicable requirements of this Act. If a portion of the plan revision meets all the applicable requirements of this Act, the Administrator may approve the plan revision in part and disapprove the plan revision in part. The plan revision shall not be treated as meeting the requirements of this Act until the Administrator approves the entire plan revision as complying with the applicable requirements of this Act.

(4) Conditional approval. The Administrator may approve a plan revision

based on a commitment of the State to adopt specific enforceable measures by a date certain, but not later than 1 year after the date of approval of the plan revision. Any such conditional approval shall be treated as a disapproval if the State fails to comply with such commitment.

(5) Calls for plan revisions. Whenever the Administrator finds that the

applicable implementation plan for any area is substantially inadequate to attain or maintain the relevant national ambient air quality standard, to mitigate adequately the interstate pollutant transport described in section 176A or section 184 [42 USCS § 7506a or § 7511c], or to otherwise comply with any requirement of this Act, the Administrator shall require the State to revise the plan as necessary to correct such inadequacies. The Administrator shall notify the State of the inadequacies, and may establish reasonable deadlines (not to exceed 18 months after the date of such notice) for the submission of such plan revisions. Such findings and notice shall be public. Any finding under this paragraph shall, to the extent the Administrator deems appropriate, subject the State to the requirements of this Act to which the State was subject when it developed and submitted the plan for which such finding was made, except that

Addendum - 26

the Administrator may adjust any dates applicable under such requirements as appropriate (except that the Administrator may not adjust any attainment date prescribed under part D [42 USCS §§ 7501 et seq.], unless such date has elapsed).

(6) Corrections. Whenever the Administrator determines that the

Administrator's action approving, disapproving, or promulgating any plan or plan revision (or part thereof), area designation, redesignation, classification, or reclassification was in error, the Administrator may in the same manner as the approval, disapproval, or promulgation revise such action as appropriate without requiring any further submission from the State. Such determination and the basis thereof shall be provided to the State and public.

(l) Plan revisions.

Each revision to an implementation plan submitted by a State under this Act shall be adopted by such State after reasonable notice and public hearing. The Administrator shall not approve a revision of a plan if the revision would interfere with any applicable requirement concerning attainment and reasonable further progress (as defined in section 171 [42 USCS § 7501]), or any other applicable requirement of this Act. (m) Sanctions.

The Administrator may apply any of the sanctions listed in section 179(b) [42 USCS § 7509(b)] at any time (or at any time after) the Administrator makes a finding, disapproval, or determination under paragraphs (1) through (4), respectively, of section 179(a) [42 USCS § 7509(a)] in relation to any plan or plan item (as that term is defined by the Administrator) required under this Act, with respect to any portion of the State the Administrator determines reasonable and appropriate, for the purpose of ensuring that the requirements of this Act relating to such plan or plan item are met. The Administrator shall, by rule, establish criteria for exercising his authority under the previous sentence with respect to any deficiency referred to in section 179(a) [42 USCS § 7509(a)] to ensure that, during the 24-month period following the finding, disapproval, or determination referred to in section 179(a) [42 USCS § 7509(a)], such sanctions are not applied on a statewide basis where one or more political subdivisions covered by the applicable implementation plan are principally responsible for such deficiency.

Addendum - 27

(n) Savings clauses.

(1) Existing plan provisions. Any provision of any applicable implementation plan that was approved or promulgated by the Administrator pursuant to this section as in effect before the date of the enactment of the Clean Air Act Amendments of 1990 [enacted Nov. 15, 1990] shall remain in effect as part of such applicable implementation plan, except to the extent that a revision to such provision is approved or promulgated by the Administrator pursuant to this Act.

(2) Attainment dates. For any area not designated nonattainment, any plan or plan revision submitted or required to be submitted by a State—

(A) in response to the promulgation or revision of a national primary

ambient air quality standard in effect on the date of the enactment of the Clean Air Act Amendments of 1990 [enacted Nov. 15, 1990], or

(B) in response to a finding of substantial inadequacy under subsection (a)(2) (as in effect immediately before the date of the enactment of the Clean Air Act Amendments of 1990) [enacted Nov. 15, 1990], shall provide for attainment of the national primary ambient air quality standards within 3 years of the date of the enactment of the Clean Air Act Amendments of 1990 [enacted Nov. 15, 1990] or within 5 years of issuance of such finding of substantial inadequacy, whichever is later.

(3) Retention of construction moratorium in certain areas. In the case of an area

to which, immediately before the date of the enactment of the Clean Air Act Amendments of 1990 [enacted Nov. 15, 1990], the prohibition on construction or modification of major stationary sources prescribed in subsection (a)(2)(I) (as in effect immediately before the date of the enactment of the Clean Air Act Amendments of 1990 [enacted Nov. 15, 1990]) applied by virtue of a finding of the Administrator that the State containing such area had not submitted an implementation plan meeting the requirements of section 172(b)(6) [42 USCS § 7502(b)(6)] (relating to establishment of a permit program) (as in effect immediately before the date of enactment of the Clean Air Act Amendments of 1990 [enacted Nov. 15, 1990]) or 172(a)(1) [42 USCS § 7502(a)(1)] (to the extent such requirements relate to provision for attainment of the primary national ambient air quality standard for sulfur oxides by December 31, 1982) as in effect immediately before the date of the enactment of the Clean Air Act Amendments of 1990 [enacted Nov. 15, 1990], no major stationary source of the relevant air pollutant or pollutants shall be constructed or modified in such area

Addendum - 28

until the Administrator finds that the plan for such area meets the applicable requirements of section 172(c)(5) [42 USCS § 7502(c)(5)] (relating to permit programs) or subpart 5 of part D [42 USCS §§ 7514 et seq.] (relating to attainment of the primary national ambient air quality standard for sulfur dioxide), respectively.

(o) Indian tribes.

If an Indian tribe submits an implementation plan to the Administrator pursuant to section 301(d) [42 USCS § 7601(d)], the plan shall be reviewed in accordance with the provisions for review set forth in this section for State plans, except as otherwise provided by regulation promulgated pursuant to section 301(d)(2) [42 USCS § 7601(d)(2)]. When such plan becomes effective in accordance with the regulations promulgated under section 301(d) [42 USCS § 7601(d)], the plan shall become applicable to all areas (except as expressly provided otherwise in the plan) located within the exterior boundaries of the reservation, notwithstanding the issuance of any patent and including rights-of-way running through the reservation. (p) Reports.

Any State shall submit, according to such schedule as the Administrator may prescribe, such reports as the Administrator may require relating to emission reductions, vehicle miles traveled, congestion levels, and any other information the Administrator may deem necessary to assess the development effectiveness, need for revision, or implementation of any plan or plan revision required under this Act.

Addendum - 29

5. 42 U.S.C. § 7509 5. §7509. Sanctions and consequences of failure to attain (a) State failure.

For any implementation plan or plan revision required under this part [42 USCS §§ 7501 et seq.] (or required in response to a finding of substantial inadequacy as described in section 110(k)(5) [42 USCS § 7410(k)(5)]), if the Administrator—

(1) finds that a State has failed, for an area designated nonattainment under

section 107(d) [42 USCS § 7407(d)], to submit a plan, or to submit 1 or more of the elements (as determined by the Administrator) required by the provisions of this Act applicable to such an area, or has failed to make a submission for such an area that satisfies the minimum criteria established in relation to any such element under section 110(k) [42 USCS § 7410(k)],

(2) disapproves a submission under section 110(k) [42 USCS § 7410(k)], for an

area designated nonattainment under section 107 [42 USCS § 7407], based on the submission's failure to meet one or more of the elements required by the provisions of this Act applicable to such an area,

(3)

(A) determines that a State has failed to make any submission as may be required under this Act, other than one described under paragraph (1) or (2), including an adequate maintenance plan, or has failed to make any submission, as may be required under this Act, other than one described under paragraph (1) or (2), that satisfies the minimum criteria established in relation to such submission under section 110(k)(1)(A) [42 USCS § 7410(k)(1)(A)], or (B) disapproves in whole or in part a submission described under subparagraph (A), or

(4) finds that any requirement of an approved plan (or approved part of a plan)

is not being implemented, unless such deficiency has been corrected within 18 months after the finding, disapproval, or determination referred to in paragraphs (1), (2), (3), and (4), one of the sanctions referred to in subsection (b) shall apply, as selected by the Administrator, until the Administrator determines that the State has come into compliance, except that if the Administrator finds a lack

Addendum - 30

of good faith, sanctions under both paragraph (1) and paragraph (2) of subsection (b) shall apply until the Administrator determines that the State has come into compliance. If the Administrator has selected one of such sanctions and the deficiency has not been corrected within 6 months thereafter, sanctions under both paragraph (1) and paragraph (2) of subsection (b) shall apply until the Administrator determines that the State has come into compliance. In addition to any other sanction applicable as provided in this section, the Administrator may withhold all or part of the grants for support of air pollution planning and control programs that the Administrator may award under section 105 [42 USCS § 7405].

(b) Sanctions.

The sanctions available to the Administrator as provided in subsection (a) are as follows:

(1) Highway sanctions.

(A) The Administrator may impose a prohibition, applicable to a nonattainment area, on the approval by the Secretary of Transportation of any projects or the awarding by the Secretary of any grants, under title 23, United States Code, other than projects or grants for safety where the Secretary determines, based on accident or other appropriate data submitted by the State, that the principal purpose of the project is an improvement in safety to resolve a demonstrated safety problem and likely will result in a significant reduction in, or avoidance of, accidents. Such prohibition shall become effective upon the selection by the Administrator of this sanction.

(B) In addition to safety, projects or grants that may be approved by the Secretary, notwithstanding the prohibition in subparagraph (A), are the following--

(i) capital programs for public transit; (ii) construction or restriction of certain roads or lanes solely for

the use of passenger buses or high occupancy vehicles; (iii) planning for requirements for employers to reduce employee

work-trip-related vehicle emissions; (iv) highway ramp metering, traffic signalization, and related

programs that improve traffic flow and achieve a net emission reduction;

Addendum - 31

(v) fringe and transportation corridor parking facilities serving multiple occupancy vehicle programs or transit operations;

(vi) programs to limit or restrict vehicle use in downtown areas or other areas of emission concentration particularly during periods of peak use, through road use charges, tolls, parking surcharges, or other pricing mechanisms, vehicle restricted zones or periods, or vehicle registration programs;

(vii) programs for breakdown and accident scene management, nonrecurring congestion, and vehicle information systems, to reduce congestion and emissions; and

(viii) such other transportation-related programs as the Administrator, in consultation with the Secretary of Transportation, finds would improve air quality and would not encourage single occupancy vehicle capacity.

In considering such measures, the State should seek to ensure adequate access to downtown, other commercial, and residential areas, and avoid increasing or relocating emissions and congestion rather than reducing them.

(2) Offsets. In applying the emissions offset requirements of section 173 [42 USCS § 7503] to new or modified sources or emissions units for which a permit is required under part D [42 USCS §§ 7501 et seq.], the ratio of emission reductions to increased emissions shall be at least 2 to 1. (c) Notice of failure to attain.

(1) As expeditiously as practicable after the applicable attainment date for any

nonattainment area, but not later than 6 months after such date, the Administrator shall determine, based on the area's air quality as of the attainment date, whether the area attained the standard by that date.

(2) Upon making the determination under paragraph (1), the Administrator

shall publish a notice in the Federal Register containing such determination and identifying each area that the Administrator has determined to have failed to attain. The Administrator may revise or supplement such determination at any time based on more complete information or analysis concerning the area's air quality as of the attainment date.

(d) Consequences for failure to attain.

Addendum - 32

(1) Within 1 year after the Administrator publishes the notice under subsection

(c)(2) (relating to notice of failure to attain), each State containing a nonattainment area shall submit a revision to the applicable implementation plan meeting the requirements of paragraph (2) of this subsection.

(2) The revision required under paragraph (1) shall meet the requirements of

section 110 and section 172 [42 USCS §§ 7410, 7502]. In addition, the revision shall include such additional measures as the Administrator may reasonably prescribe, including all measures that can be feasibly implemented in the area in light of technological achievability, costs, and any nonair quality and other air quality-related health and environmental impacts.

(3) The attainment date applicable to the revision required under paragraph (1)

shall be the same as provided in the provisions of section 172(a)(2) [42 USCS § 7502(a)(2)], except that in applying such provisions the phrase "from the date of the notice under section 179(c)(2) [subsec. (c)(2) of this section]" shall be substituted for the phrase "from the date such area was designated nonattainment under section 107(d) [42 USCS § 7407(d)]" and for the phrase "from the date of designation as nonattainment".

Addendum - 33

6. 42 U.S.C. § 7511 6. § 7511. Classifications and attainment dates (a) Classification and attainment dates for 1989 nonattainment areas.

(1) Each area designated nonattainment for ozone pursuant to section 107(d) [42 USCS § 7407(d)] shall be classified at the time of such designation, under table 1, by operation of law, as a Marginal Area, a Moderate Area, a Serious Area, a Severe Area, or an Extreme Area based on the design value for the area. The design value shall be calculated according to the interpretation methodology issued by the Administrator most recently before the date of the enactment of the Clean Air Act Amendments of 1990. For each area classified under this subsection, the primary standard attainment date for ozone shall be as expeditiously as practicable but not later than the date provided in table 1.

TABLE 1

--------------------------------------------------------------- Area class Design value* Primary standard

attainment date**

--------------------------------------------------------------- Marginal.........0.121 up to 0.138.....3 years after

enactment Moderate.........0.138 up to 0.160.....6 years after

enactment Serious..........0.160 up to 0.180.....9 years after

enactment Severe..........0.180 up to 0.280.....15 years after

enactment Extreme..........0.280 and above......20 years after

enactment ---------------------------------------------------------------

*The design value is measured in parts per million (ppm). **The primary standard attainment date is measured from the date of

the enactment of the Clean Air Amendments of 1990.

(2) Notwithstanding table 1, in the case of a severe area with a 1988 ozone design value between 0.190 and 0.280 ppm, the attainment date shall be 17 years (in lieu of 15 years) after the date of the enactment of the Clean Air Amendments of 1990.

Addendum - 34

(3) At the time of publication of the notice under section 107(d)(4) [42 USCS §

7407(d)(4)] (relating to area designations) for each ozone nonattainment area, the Administrator shall publish a notice announcing the classification of such ozone nonattainment area. The provisions of section 172(a)(1)(B) [42 USCS § 7502(a)(1)(B)] (relating to lack of notice and comment and judicial review) shall apply to such classification.

(4) If an area classified under paragraph (1) (Table 1) would have been

classified in another category if the design value in the area were 5 percent greater or 5 percent less than the level on which such classification was based, the Administrator may, in the Administrator's discretion, within 90 days after the initial classification, by the procedure required under paragraph (3), adjust the classification to place the area in such other category. In making such adjustment, the Administrator may consider the number of exceedances of the national primary ambient air quality standard for ozone in the area, the level of pollution transport between the area and other affected areas, including both intrastate and interstate transport, and the mix of sources and air pollutants in the area.

(5) Upon application by any State, the Administrator may extend for 1

additional year (hereinafter referred to as the "Extension Year") the date specified in table 1 of paragraph (1) of this subsection if—

(A) the State has complied with all requirements and commitments

pertaining to the area in the applicable implementation plan, and (B) no more than 1 exceedance of the national ambient air quality

standard level for ozone has occurred in the area in the year preceding the Extension Year.

No more than 2 one-year extensions may be issued under this paragraph for a single nonattainment area. (b) New designations and reclassifications.

(1) New designations to nonattainment. Any area that is designated attainment or unclassifiable for ozone under section 107(d)(4) [42 USCS § 7407(d)(4)], and that is subsequently redesignated to nonattainment for ozone under section 107(d)(3) [42 USCS § 7407(d)(3)], shall, at the time of the redesignation, be

Addendum - 35

classified by operation of law in accordance with table 1 under subsection (a). Upon its classification, the area shall be subject to the same requirements under section 110, subpart 1 of this part, and this subpart [42 USCS §§ 7410, 7501 et seq., 7511 et seq.] that would have applied had the area been so classified at the time of the notice under subsection (a)(3), except that any absolute, fixed date applicable in connection with any such requirement is extended by operation of law by a period equal to the length of time between the date of the enactment of the Clean Air Act Amendments of 1990 and the date the area is classified under this paragraph.

(2) Reclassification upon failure to attain.

(A) Within 6 months following the applicable attainment date (including any extension thereof) for an ozone nonattainment area, the Administrator shall determine, based on the area's design value (as of the attainment date), whether the area attained the standard by that date. Except for any Severe or Extreme area, any area that the Administrator finds has not attained the standard by that date shall be reclassified by operation of law in accordance with table 1 of subsection (a) to the higher of—

(i) the next higher classification for the area, or (ii) the classification applicable to the area's design value as

determined at the time of the notice required under subparagraph (B).

No area shall be reclassified as Extreme under clause (ii).

(B) The Administrator shall publish a notice in the Federal Register, no later than 6 months following the attainment date, identifying each area that the Administrator has determined under subparagraph (A) as having failed to attain and identifying the reclassification, if any, described under subparagraph (A). (3) Voluntary reclassification. The Administrator shall grant the request of any

State to reclassify a nonattainment area in that State in accordance with table 1 of subsection (a) to a higher classification. The Administrator shall publish a notice in the Federal Register of any such request and of action by the Administrator granting the request.

(4) Failure of severe areas to attain standard.

Addendum - 36

(A) If any Severe Area fails to achieve the national primary ambient air quality standard for ozone by the applicable attainment date (including any extension thereof), the fee provisions under section 185 [42 USCS § 7511c] shall apply within the area, the percent reduction requirements of section 182(c)(2)(B) and (C) [42 USCS § 7511a(c)(2)(B), (C)] (relating to reasonable further progress demonstration and NO[X] control) shall continue to apply to the area, and the State shall demonstrate that such percent reduction has been achieved in each 3-year interval after such failure until the standard is attained. Any failure to make such a demonstration shall be subject to the sanctions provided under this part [42 USCS §§ 7501 et seq.].

(B) In addition to the requirements of subparagraph (A), if the ozone design value for a Severe Area referred to in subparagraph (A) is above 0.140 ppm for the year of the applicable attainment date, or if the area has failed to achieve its most recent milestone under section 182(g) [42 USCS § 7511a(g)], the new source review requirements applicable under this subpart [42 USCS §§ 7511 et seq.] in Extreme Areas shall apply in the area and the term [terms] "major source" and "major stationary source" shall have the same meaning as in Extreme Areas.

(C) In addition to the requirements of subparagraph (A) for those areas referred to in subparagraph (A) and not covered by subparagraph (B), the provisions referred to in subparagraph (B) shall apply after 3 years from the applicable attainment date unless the area has attained the standard by the end of such 3-year period.

(D) If, after the date of the enactment of the Clean Air Act Amendments of 1990, the Administrator modifies the method of determining compliance with the national primary ambient air quality standard, a design value or other indicator comparable to 0.140 in terms of its relationship to the standard shall be used in lieu of 0.140 for purposes of applying the provisions of subparagraphs (B) and (C).

(c) References to terms.

(1) Any reference in this subpart [42 USCS §§ 7511 et seq.] to a "Marginal Area", a "Moderate Area", a "Serious Area", a "Severe Area", or an "Extreme Area" shall be considered a reference to a Marginal Area, a Moderate Area, a Serious Area, a Severe Area, or an Extreme Area as respectively classified under this section.

Addendum - 37

(2) Any reference in this subpart [42 USCS §§ 7511 et seq.] to "next higher classification" or comparable terms shall be considered a reference to the classification related to the next higher set of design values in table 1.

Addendum - 38

7. 42 U.S.C. § 7512

7. § 7512. Classification and attainment dates (a) Classification by operation of law and attainment dates for nonattainment areas.

(1) Each area designated nonattainment for carbon monoxide pursuant to section 107(d) [42 USCS § 7407(d)] shall be classified at the time of such designation under table 1, by operation of law, as a Moderate Area or a Serious Area based on the design value for the area. The design value shall be calculated according to the interpretation methodology issued by the Administrator most recently before the date of the enactment of the Clean Air Act Amendments of 1990. For each area classified under this subsection, the primary standard attainment date for carbon monoxide shall be as expeditiously as practicable but not later than the date provided in table 1:

TABLE 3[1]

-------------------------------------------------------------- Area classification Design value Primary standard

attainment date -------------------------------------------------------------- Moderate...........9.1-16.4ppm......December 31, 1995 Serious...........16.5 and above.....December 31, 2000 --------------------------------------------------------------

(2) At the time of publication of the notice required under section 107 [42

USCS § 7407] (designating carbon monoxide nonattainment areas), the Administrator shall publish a notice announcing the classification of each such carbon monoxide nonattainment area. The provisions of section 172(a)(1)(B) [42 USCS § 7502(a)(1)(B)] (relating to lack of notice-and-comment and judicial review) shall apply with respect to such classification.

(3) If an area classified under paragraph (1), table 1, would have been

classified in another category if the design value in the area were 5 percent greater or 5 percent less than the level on which such classification was based, the Administrator may, in the Administrator's discretion, within 90 days after the date of the enactment of the Clean Air Act Amendments of 1990 by the procedure required under paragraph (2), adjust the classification of the area. In making such adjustment, the Administrator may consider the number of

Addendum - 39

exceedances of the national primary ambient air quality standard for carbon monoxide in the area, the level of pollution transport between the area and the other affected areas, and the mix of sources and air pollutants in the area. The Administrator may make the same adjustment for purposes of paragraphs (2), (3), (6), and (7) of section 187(a) [42 USCS § 7513(a)(2), (3), (6), (7)].

(4) Upon application by any State, the Administrator may extend for 1

additional year (hereinafter in this subpart [42 USCS §§ 7512 et seq.] referred to as the "Extension Year") the date specified in table 1 of subsection (a) if—

(A) the State has complied with all requirements and commitments

pertaining to the area in the applicable implementation plan, and (B) no more than one exceedance of the national ambient air quality

standard level for carbon monoxide has occurred in the area in the year preceding the Extension Year.

No more than 2 one-year extensions may be issued under this paragraph for a single nonattainment area. (b) New designations and reclassifications.

(1) New designations to nonattainment. Any area that is designated attainment or unclassifiable for carbon monoxide under section 107(d)(4) [42 USCS § 7407(d)(4)], and that is subsequently redesignated to nonattainment for carbon monoxide under section 107(d)(3) [42 USCS § 7407(d)(3)], shall, at the time of the redesignation, be classified by operation of law in accordance with table 1 under subsections (a)(1) and (a)(4). Upon its classification, the area shall be subject to the same requirements under section 110, subpart 1 of this part, and this subpart [42 USCS §§ 7410, 7501 et seq., and 7512 et seq.] that would have applied had the area been so classified at the time of the notice under subsection (a)(2), except that any absolute, fixed date applicable in connection with any such requirement is extended by operation of law by a period equal to the length of time between the date of the enactment of the Clean Air Act Amendments of 1990 and the date the area is classified.

(2) Reclassification of moderate areas upon failure to attain.

(A) General rule. Within 6 months following the applicable attainment date for a carbon monoxide nonattainment area, the Administrator shall

Addendum - 40

determine, based on the area's design value as of the attainment date, whether the area has attained the standard by that date. Any Moderate Area that the Administrator finds has not attained the standard by that date shall be reclassified by operation of law in accordance with table 1 of subsection (a)(1) as a Serious Area.

(B) Publication of notice. The Administrator shall publish a notice in the Federal Register, no later than 6 months following the attainment date, identifying each area that the Administrator has determined, under subparagraph (A), as having failed to attain and identifying the reclassification, if any, described under subparagraph (A).

(c) References to terms.

Any reference in this subpart [42 USCS §§ 7512 et seq.] to a "Moderate Area" or a "Serious Area" shall be considered a reference to a Moderate Area or a Serious Area, respectively, as classified under this section.

8. §7512a. Plan submissions and requirements (a) Moderate Areas.

Each State in which all or part of a Moderate Area is located shall, with respect to the Moderate Area (or portion thereof, to the extent specified in guidance of the Administrator issued before the date of the enactment of the Clean Air Act Amendments of 1990), submit to the Administrator the State implementation plan revisions (including the plan items) described under this subsection, within such periods as are prescribed under this subsection, except to the extent the State has made such submissions as of such date of enactment:

(1) Inventory. No later than 2 years from the date of the enactment of the Clean Air Act Amendments of 1990, the State shall submit a comprehensive, accurate, current inventory of actual emissions from all sources, as described in section 172(c)(3) [42 USCS § 7502(c)(3)], in accordance with guidance provided by the Administrator.

(2)

(A) Vehicle miles traveled. No later than 2 years after the date of the enactment of the Clean Air Act Amendments of 1990, for areas with a

Addendum - 41

design value above 12.7 ppm at the time of classification, the plan revision shall contain a forecast of vehicle miles traveled in the nonattainment area concerned for each year before the year in which the plan projects the national ambient air quality standard for carbon monoxide to be attained in the area. The forecast shall be based on guidance which shall be published by the Administrator, in consultation with the Secretary of Transportation, within 6 months after the date of the enactment of the Clean Air Act Amendments of 1990. The plan revision shall provide for annual updates of the forecasts to be submitted to the Administrator together with annual reports regarding the extent to which such forecasts proved to be accurate. Such annual reports shall contain estimates of actual vehicle miles traveled in each year for which a forecast was required.

(B) Special rule for Denver. Within 2 years after the date of the enactment of the Clean Air Act Amendments of 1990, in the case of Denver, the State shall submit a revision that includes the transportation control measures as required in section 182(d)(1)(A) [42 USCS § 7511a(d)(1)(A)] except that such revision shall be for the purpose of reducing CO emissions rather than volatile organic compound emissions. If the State fails to include any such measure, the implementation plan shall contain an explanation of why such measure was not adopted and what emissions reduction measure was adopted to provide a comparable reduction in emissions, or reasons why such reduction is not necessary to attain the national primary ambient air quality standard for carbon monoxide.

(3) Contingency provisions. No later than 2 years after the date of the

enactment of the Clean Air Act Amendments of 1990, for areas with a design value above 12.7 ppm at the time of classification, the plan revision shall provide for the implementation of specific measures to be undertaken if any estimate of vehicle miles traveled in the area which is submitted in an annual report under paragraph (2) exceeds the number predicted in the most recent prior forecast or if the area fails to attain the national primary ambient air quality standard for carbon monoxide by the primary standard attainment date. Such measures shall be included in the plan revision as contingency measures to take effect without further action by the State or the Administrator if the prior forecast has been exceeded by an updated forecast or if the national standard is not attained by such deadline.

Addendum - 42

(4) Savings clause for vehicle inspection and maintenance provisions of the State implementation plan. Immediately after the date of the enactment of the Clean Air Act Amendments of 1990, for any Moderate Area (or, within the Administrator's discretion, portion thereof), the plan for which is of the type described in section 182(a)(2)(B) [42 USCS § 7511a(a)(2)(B)] any provisions necessary to ensure that the applicable implementation plan includes the vehicle inspection and maintenance program described in section 182(a)(2)(B) [42 USCS § 7511a(a)(2)(B)].

(5) Periodic inventory. No later than September 30, 1995, and no later than the

end of each 3 year period thereafter, until the area is redesignated to attainment, a revised inventory meeting the requirements of subsection (a)(1).

(6) Enhanced vehicle inspection and maintenance. No later than 2 years after

the date of the enactment of the Clean Air Act Amendments of 1990 in the case of Moderate Areas with a design value greater than 12.7 ppm at the time of classification, a revision that includes provisions for an enhanced vehicle inspection and maintenance program as required in section 182(c)(3) [42 USCS § 7511a(c)(3)] (concerning serious ozone nonattainment areas), except that such program shall be for the purpose of reducing carbon monoxide rather than hydrocarbon emissions.

(7) Attainment demonstration and specific annual emission reductions. In the

case of Moderate Areas with a design value greater than 12.7 ppm at the time of classification, no later than 2 years after the date of the enactment of the Clean Air Act Amendments of 1990, a revision to provide, for attainment of carbon monoxide NAAQS by the applicable attainment date and provisions for such specific annual emission reductions as are necessary to attain the standard by that date.

The Administrator may, in the Administrator's discretion, require States to submit

a schedule for submitting any of the revisions or other items required under this subsection. In the case of Moderate Areas with a design value of 12.7 ppm or lower at the time of classification, the requirements of this subsection shall apply in lieu of any requirement that the State submit a demonstration that the applicable implementation plan provides for attainment of the carbon monoxide standard by the applicable attainment date. (b) Serious areas.

Addendum - 43

(1) In general. Each State in which all or part of a Serious Area is located shall,

with respect to the Serious Area, make the submissions (other than those required under subsection (a)(1)(B)) applicable under subsection (a) to Moderate Areas with a design value of 12.7 ppm or greater at the time of classification, and shall also submit the revision and other items described under this subsection.

(2) Vehicle miles traveled. Within 2 years after the date of the enactment of the

Clean Air Act Amendments of 1990 the State shall submit a revision that includes the transportation control measures as required in section 182(d)(1) [42 USCS § 7511a(d)(1)] except that such revision shall be for the purpose of reducing CO emissions rather than volatile organic compound emissions. In the case of any such area (other than an area in New York State) which is a covered area (as defined in section 246(a)(2)(B) [42 USCS § 7586(a)(2)(B)]) for purposes of the Clean Fuel Fleet program under part C of title II [42 USCS §§ 7581 et seq.], if the State fails to include any such measure, the implementation plan shall contain an explanation of why such measure was not adopted and what emissions reduction measure was adopted to provide a comparable reduction in emissions, or reasons why such reduction is not necessary to attain the national primary ambient air quality standard for carbon monoxide.

(3) Oxygenated gasoline.

(A) Within 2 years after the date of the enactment of the Clean Air Act Amendments of 1990, the State shall submit a revision to require that gasoline sold, supplied, offered for sale or supply, dispensed, transported or introduced into commerce in the larger of—

(i) the Consolidated Metropolitan Statistical Area (as defined by the United States Office of Management and Budget) (CMSA) in which the area is located, or

(ii) if the area is not located in a CMSA, the Metropolitan Statistical Area (as defined by the United States Office of Management and Budget) in which the area is located, be blended, during the portion of the year in which the area is prone to high ambient concentrations of carbon monoxide (as determined by the Administrator), with fuels containing such level of oxygen as is necessary, in combination with other measures, to provide for attainment of the carbon monoxide national ambient air quality

Addendum - 44

standard by the applicable attainment date and maintenance of the national ambient air quality standard thereafter in the area. The revision shall provide that such requirement shall take effect no later than October 1, 1993, and shall include a program for implementation and enforcement of the requirement consistent with guidance to be issued by the Administrator.

(B) Notwithstanding subparagraph (A), the revision described in this paragraph shall not be required for an area if the State demonstrates to the satisfaction of the Administrator that the revision is not necessary to provide for attainment of the carbon monoxide national ambient air quality standard by the applicable attainment date and maintenance of the national ambient air quality standard thereafter in the area.

(c) Areas with significant stationary source emissions of CO.

(1) Serious areas. In the case of Serious Areas in which stationary sources contribute significantly to carbon monoxide levels (as determined under rules issued by the Administrator), the State shall submit a plan revision within 2 years after the date of the enactment of the Clean Air Act Amendments of 1990, which provides that the term "major stationary source" includes (in addition to the sources described in section 302 [42 USCS § 7602]) any stationary source which emits, or has the potential to emit, 50 tons per year or more of carbon monoxide.

(2) Waivers for certain areas. The Administrator may, on a case-by-case basis,

waive any requirements that pertain to transportation controls, inspection and maintenance, or oxygenated fuels where the Administrator determines by rule that mobile sources of carbon monoxide do not contribute significantly to carbon monoxide levels in the area.

(3) Guidelines. Within 6 months after the date of the enactment of the Clean

Air Act Amendments of 1990, the Administrator shall issue guidelines for and rules determining whether stationary sources contribute significantly to carbon monoxide levels in an area.

(d) CO milestone.

(1) Milestone demonstration. By March 31, 1996, each State in which all or part of a Serious Area is located shall submit to the Administrator a

Addendum - 45

demonstration that the area has achieved a reduction in emissions of CO equivalent to the total of the specific annual emission reductions required by December 31, 1995. Such reductions shall be referred to in this subsection as the milestone.

(2) Adequacy of demonstration. A demonstration under this paragraph shall be

submitted in such form and manner, and shall contain such information and analysis, as the Administrator shall require. The Administrator shall determine whether or not a State's demonstration is adequate within 90 days after the Administrator's receipt of a demonstration which contains the information and analysis required by the Administrator.

(3) Failure to meet emission reduction milestone. If a State fails to submit a

demonstration under paragraph (1) within the required period, or if the Administrator notifies the State that the State has not met the milestone, the State shall, within 9 months after such a failure or notification, submit a plan revision to implement an economic incentive and transportation control program as described in section 182(g)(4) [42 USCS § 7511a(g)(4)]. Such revision shall be sufficient to achieve the specific annual reductions in carbon monoxide emissions set forth in the plan by the attainment date.

(e) Multi-State CO nonattainment areas.

(1) Coordination among states. Each State in which there is located a portion of a single nonattainment area for carbon monoxide which covers more than one State ("multi-State nonattainment area") shall take all reasonable steps to coordinate, substantively and procedurally, the revisions and implementation of State implementation plans applicable to the nonattainment area concerned. The Administrator may not approve any revision of a State implementation plan submitted under this part for a State in which part of a multi-State nonattainment area is located if the plan revision for that State fails to comply with the requirements of this subsection.

(2) Failure to demonstrate attainment. If any State in which there is located a

portion of a multi-State nonattainment area fails to provide a demonstration of attainment of the national ambient air quality standard for carbon monoxide in that portion within the period required under this part [42 USCS §§ 7512 et seq.] the State may petition the Administrator to make a finding that the State would have been able to make such demonstration but for the failure of one or more other States in which

Addendum - 46

other portions of the area are located to commit to the implementation of all measures required under section 187 [this section] (relating to plan submissions for carbon monoxide nonattainment areas). If the Administrator makes such finding, in the portion of the nonattainment area within the State submitting such petition, no sanction shall be imposed under section 179 [42 USCS § 7509] or under any other provision of this Act, by reason of the failure to make such demonstration. (f) Reclassified areas.

Each State containing a carbon monoxide nonattainment area reclassified under section 186(b)(2) [42 USCS § 7512(b)(2)] shall meet the requirements of subsection (b) of this section, as may be applicable to the area as reclassified, according to the schedules prescribed in connection with such requirements, except that the Administrator may adjust any applicable deadlines (other than the attainment date) where such deadlines are shown to be infeasible. (g) Failure of serious area to attain standard.

If the Administrator determines under section 186(b)(2) [42 USCS § 7512(b)(2)] that the national primary ambient air quality standard for carbon monoxide has not been attained in a Serious Area by the applicable attainment date, the State shall submit a plan revision for the area within 9 months after the date of such determination. The plan revision shall provide that a program of incentives and requirements as described in section 182(g)(4) [42 USCS § 7512(g)(4)] shall be applicable in the area, and such program, in combination with other elements of the revised plan, shall be adequate to reduce the total tonnage of emissions of carbon monoxide in the area by at least 5 percent per year in each year after approval of the plan revision and before attainment of the national primary ambient air quality standard for carbon monoxide.

Addendum - 47

9. 42 U.S.C. §7513 9. §7513. Classifications and attainment dates (a) Initial classifications.

Every area designated nonattainment for PM-10 pursuant to section 107(d) [42 USCS § 7407(d)] shall be classified at the time of such designation, by operation of law, as a moderate PM-10 nonattainment area (also referred to in this subpart [42 USCS §§ 7513 et seq.] as a "Moderate Area") at the time of such designation. At the time of publication of the notice under section 107(d)(4) [42 USCS § 7407(d)(4)] (relating to area designations) for each PM-10 nonattainment area, the Administrator shall publish a notice announcing the classification of such area. The provisions of section 172(a)(1)(B) [42 USCS § 7502(a)(1)(B)] (relating to lack of notice-and-comment and judicial review) shall apply with respect to such classification. (b) Reclassification as serious.

(1) Reclassification before attainment date. The Administrator may reclassify as a Serious PM-10 nonattainment area (identified in this subpart [42 USCS §§ 7513 et seq.] also as a "Serious Area") any area that the Administrator determines cannot practicably attain the national ambient air quality standard for PM-10 by the attainment date (as prescribed in subsection (c)) for Moderate Areas. The Administrator shall reclassify appropriate areas as Serious by the following dates:

(A) For areas designated nonattainment for PM-10 under section

107(d)(4) [42 USCS § 7407(d)(4)], the Administrator shall propose to reclassify appropriate areas by June 30, 1991, and take final action by December 31, 1991.

(B) For areas subsequently designated nonattainment, the Administrator shall reclassify appropriate areas within 18 months after the required date for the State's submission of a SIP for the Moderate Area.

(2) Reclassification upon failure to attain. Within 6 months following the

applicable attainment date for a PM-10 nonattainment area, the Administrator shall determine whether the area attained the standard by that date. If the Administrator finds that any Moderate Area is not in attainment after the applicable attainment date—

Addendum - 48

(A) the area shall be reclassified by operation of law as a Serious Area;

and (B) the Administrator shall publish a notice in the Federal Register no later than 6 months following the attainment date, identifying the area as having failed to attain and identifying the reclassification described under subparagraph (A).

(c) Attainment dates.

Except as provided under subsection (d), the attainment dates for PM-10 nonattainment areas shall be as follows:

(1) Moderate areas. For a Moderate Area, the attainment date shall be as

expeditiously as practicable but no later than the end of the sixth calendar year after the area's designation as nonattainment, except that, for areas designated nonattainment for PM-10 under section 107(d)(4) [42 USCS § 7407(d)(4)], the attainment date shall not extend beyond December 31, 1994.

(2) Serious areas. For a Serious Area, the attainment date shall be as

expeditiously as practicable but no later than the end of the tenth calendar year beginning after the area's designation as nonattainment, except that, for areas designated nonattainment for PM-10 under section 107(d)(4) [42 USCS § 7407(d)(4)], the date shall not extend beyond December 31, 2001.

(d) Extension of attainment date for moderate areas.

Upon application by any State, the Administrator may extend for 1 additional year (hereinafter referred to as the "Extension Year") the date specified in paragraph (c)(1) if—

(1) The State has complied with all requirements and commitments pertaining to the area in the applicable implementation plan; and

(2) no more than one exceedance of the 24-hour national ambient air quality

standard level for PM-10 has occurred in the area in the year preceding the Extension Year, and the annual mean concentration of PM-10 in the area for such year is less than or equal to the standard level.

Addendum - 49

No more than 2 one-year extensions may be issued under the subsection for a single nonattainment area. (e) Extension of attainment date for serious areas.

Upon application by any State, the Administrator may extend the attainment date for a Serious Area beyond the date specified under subsection (c), if attainment by the date established under subsection (c) would be impracticable, the State has complied with all requirements and commitments pertaining to that area in the implementation plan, and the State demonstrates to the satisfaction of the Administrator that the plan for that area includes the most stringent measures that are included in the implementation plan of any State or are achieved in practice in any State, and can feasibly be implemented in the area. At the time of such application, the State must submit a revision to the implementation plan that includes a demonstration of attainment by the most expeditious alternative date practicable. In determining whether to grant an extension, and the appropriate length of time for any such extension, the Administrator may consider the nature and extent of nonattainment, the types and numbers of sources or other emitting activities in the area (including the influence of uncontrollable natural sources and transboundary emissions from foreign countries), the population exposed to concentrations in excess of the standard, the presence and concentration of potentially toxic substances in the mix of particulate emissions in the area, and the technological and economic feasibility of various control measures. The Administrator may not approve an extension until the State submits an attainment demonstration for the area. The Administrator may grant at most one such extension for an area, of no more than 5 years. (f) Waivers for certain areas.

The Administrator may, on a case-by-case basis, waive any requirement applicable to any Serious Area under this subpart [42 USCS §§ 7513 et seq.] where the Administrator determines that anthropogenic sources of PM-10 do not contribute significantly to the violation of the PM-10 standard in the area. The Administrator may also waive a specific date for attainment of the standard where the Administrator determines that nonanthropogenic sources of PM-10 contribute significantly to the violation of the PM-10 standard in the area.

Addendum - 50

10. 42 U.S.C. § 7514 10. §7514. Plan submission deadlines (a) Submission.

Any State containing an area designated or redesignated under section 107(d) [42 USCS § 7407(d)] as nonattainment with respect to the national primary ambient air quality standards for sulfur oxides, nitrogen dioxide, or lead subsequent to the date of the enactment of the Clean Air Act Amendments of 1990 shall submit to the Administrator, within 18 months of the designation, an applicable implementation plan meeting the requirements of this part [42 USCS §§ 7501 et seq.]. (b) States lacking fully approved State implementation plans.

Any State containing an area designated nonattainment with respect to national primary ambient air quality standards for sulfur oxides or nitrogen dioxide under section 107(d)(1)(C)(i) [42 USCS § 7407(d)(1)(C)(i)], but lacking a fully approved implementation plan complying with the requirements of this Act (including part D [42 USCS §§ 7501 et seq.]) as in effect immediately before the date of the enactment of the Clean Air Act Amendments of 1990, shall submit to the Administrator, within 18 months of the date of the enactment of the Clean Air Act Amendments of 1990, an implementation plan meeting the requirements of subpart 1 [42 USCS §§ 7501 et seq.] (except as otherwise prescribed by section 192 [42 USCS § 7514a]).

Addendum - 51

11. 42 U.S.C. § 7514a 11. §7514a. Attainment dates (a) Plans under section 191(a).

Implementation plans required under section 191(a) [42 USCS § 7514(a)] shall provide for attainment of the relevant primary standard as expeditiously as practicable but no later than 5 years from the date of the nonattainment designation. (b) Plans under section 191(b).

Implementation plans required under section 191(b) [42 USCS § 7514(b)] shall provide for attainment of the relevant primary national ambient air quality standard within 5 years after the date of the enactment of the Clean Air Act Amendments of 1990. (c) Inadequate plans.

Implementation plans for nonattainment areas for sulfur oxides or nitrogen dioxide with plans that were approved by the Administrator before the date of the enactment of the Clean Air Act Amendments of 1990 but, subsequent to such approval, were found by the Administrator to be substantially inadequate, shall provide for attainment of the relevant primary standard within 5 years from the date of such finding.

Addendum - 52

12. 42 U.S.C. § 7515 12. §7515. General savings clause

Each regulation, standard, rule, notice, order and guidance promulgated or issued by the Administrator under this Act, as in effect before the date of the enactment of the Clean Air Act Amendments of 1990 shall remain in effect according to its terms, except to the extent otherwise provided under this Act, inconsistent with any provision of this Act, or revised by the Administrator. No control requirement in effect, or required to be adopted by an order, settlement agreement, or plan in effect before the date of the enactment of the Clean Air Act Amendments of 1990 in any area which is a nonattainment area for any air pollutant may be modified after such enactment in any manner unless the modification insures equivalent or greater emission reductions of such air pollutant.

Addendum - 53

13. 42 U.S.C. § 7607 13. §7607. Administrative proceedings and judicial review (a) Administrative subpenas; confidentiality; witnesses.

In connection with any determination under section 110(f) [42 USCS § 7410(f)], or for purposes of obtaining information under section 202(b)(4) or 211(c)(3) [42 USCS § 7521(b)(4) or 7545(c)(3)], any investigation, monitoring, reporting requirement, entry, compliance inspection, or administrative enforcement proceeding under the [this] Act (including but not limited to section 113, section 114, section 120, section 129, section 167, section 205, section 206, section 208, section 303, or section 306 [42 USCS § 7413, 7414, 7420, 7429, 7477, 7524, 7525, 7542, 7603, or 7606][,], the Administrator may issue subpenas for the attendance and testimony of witnesses and the production of relevant papers, books, and documents, and he may administer oaths. Except for emission data, upon a showing satisfactory to the Administrator by such owner or operator that such papers, books, documents, or information or particular part thereof, if made public, would divulge trade secrets or secret processes of such owner or operator, the Administrator shall consider such record, report, or information or particular portion thereof confidential in accordance with the purposes of section 1905 of title 18 of the United States Code, except that such paper, book, document, or information may be disclosed to other officers, employees, or authorized representatives of the United States concerned with carrying out this Act, to persons carrying out the National Academy of Sciences' study and investigation provided for in section 202(c) [42 USCS § 7521(c)], or when relevant in any proceeding under this Act. Witnesses summoned shall be paid the same fees and mileage that are paid witnesses in the courts of the United States. In case of contumacy or refusal to obey a subpena served upon any person under this subparagraph, the district court of the United States for any district in which such person is found or resides or transacts business, upon application by the United States and after notice to such person, shall have jurisdiction to issue an order requiring such person to appear and give testimony before the Administrator to appear and produce papers, books, and documents before the Administrator, or both, and any failure to obey such order of the court may be punished by such court as a contempt thereof. (b) Judicial review.

(1) A petition for review of action of the Administrator in promulgating any national primary or secondary ambient air quality standard, any emission

Addendum - 54

standard or requirement under section 112 [42 USCS § 7412], any standard of performance or requirement under section 111 [42 USCS § 7411][,], any standard under section 202 [42 USCS § 7521] (other than a standard required to be prescribed under section 202(b)(1) [42 USCS § 7521(b)(1)]), any determination under section 202(b)(5) [42 USCS § 7521(b)(5)], any control or prohibition under section 211 [42 USCS § 7545], any standard under section 231 [42 USCS § 7571] any rule issued under section 113, 119, or under section 120 [42 USCS § 7413, 7419, or 7420], or any other nationally applicable regulations promulgated, or final action taken, by the Administrator under this Act may be filed only in the United States Court of Appeals for the District of Columbia. A petition for review of the Administrator's action in approving or promulgating any implementation plan under section 110 or section 111(d) [42 USCS § 7410 or 7411(d)], any order under section 111(j) [42 USCS § 7411(j)], under section 112 [42 USCS § 7412],[,] under section 119 [42 USCS § 7419], or under section 120 [42 USCS § 7420], or his action under section 119(c)(2)(A), (B), or (C) (as in effect before the date of enactment of the Clean Air Act Amendments of 1977) or under regulations thereunder, or revising regulations for enhanced monitoring and compliance certification programs under section 114(a)(3) of this Act, or any other final action of the Administrator under this Act (including any denial or disapproval by the Administrator under title I [42 USCS §§ 7401 et seq.]) which is locally or regionally applicable may be filed only in the United States Court of Appeals for the appropriate circuit. Notwithstanding the preceding sentence a petition for review of any action referred to in such sentence may be filed only in the United States Court of Appeals for the District of Columbia if such action is based on a determination of nationwide scope or effect and if in taking such action the Administrator finds and publishes that such action is based on such a determination. Any petition for review under this subsection shall be filed within sixty days from the date notice of such promulgation, approval, or action appears in the Federal Register, except that if such petition is based solely on grounds arising after such sixtieth day, then any petition for review under this subsection shall be filed within sixty days after such grounds arise. The filing of a petition for reconsideration by the Administrator of any otherwise final rule or action shall not affect the finality of such rule or action for purposes of judicial review nor extend the time within which a petition for judicial review of such rule or action under this section may be filed, and shall not postpone the effectiveness of such rule or action.

(2) Action of the Administrator with respect to which review could have been

obtained under paragraph (1) shall not be subject to judicial review in civil or

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criminal proceedings for enforcement. Where a final decision by the Administrator defers performance of any nondiscretionary statutory action to a later time, any person may challenge the deferral pursuant to paragraph (1).

(c) Additional evidence.

In any judicial proceeding in which review is sought of a determination under this Act required to be made on the record after notice and opportunity for hearing, if any party applies to the court for leave to adduce additional evidence, and shows to the satisfaction of the court that such additional evidence is material and that there were reasonable grounds for the failure to adduce such evidence in the proceeding before the Administrator, the court may order such additional evidence (and evidence in rebuttal thereof) to be taken before the Administrator, in such manner and upon such terms and conditions as [to] the court may deem proper. The Administrator may modify his findings as to the facts, or make new findings, by reason of the additional evidence so taken and he shall file such modified or new findings, and his recommendation, if any, for the modification or setting aside of his original determination, with the return of such additional evidence. (d) Rulemaking.

(1) This subsection applies to—

(A) the promulgation or revision of any national ambient air quality standard under section 109 [42 USCS § 7409],

(B) the promulgation or revision of an implementation plan by the Administrator under section 110(c) [42 USCS § 7410(c)],

(C) the promulgation or revision of any standard of performance under section 111 [42 USCS § 7411], or emission standard or limitation under section 112(d) [42 USCS § 7412(d)], any standard under section 112(f) [42 USCS § 7412(f)], or any regulation under section 112(g)(1)(D) and (F) [42 USCS § 7412(g)(1)(D),(F)], or any regulation under section 112(m) or (n) [42 USCS § 7412(m) or (n)],

(D) the promulgation of any requirement for solid waste combustion under section 129 [42 USCS § 7429],

(E) the promulgation or revision of any regulation pertaining to any fuel or fuel additive under section 211 [42 USCS § 7545],

(F) the promulgation or revision of any aircraft emission standard under section 231 [42 USCS § 7571],

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(G) the promulgation or revision of any regulation under title IV (relating to control of acid deposition),

(H) promulgation or revision of regulations pertaining to primary nonferrous smelter orders under section 119 [42 USCS § 7419] (but not including the granting or denying of any such order),

(I) promulgation or revision of regulations under title VI [42 USCS §§ 7671 et seq.] (relating to stratosphere and ozone protection),

(J) promulgation or revision of regulations under subtitle C of title I [42 USCS §§ 7470 et seq.] (relating to prevention of significant deterioration of air quality and protection of visibility),

(K) promulgation or revision of regulations under section 202 [42 USCS § 7521] and test procedures for new motor vehicles or engines under section 206 [42 USCS § 7525], and the revision of a standard under section 202(a)(3) [42 USCS § 7521(a)(3)],

(L) promulgation or revision of regulations for noncompliance penalties under section 120 [42 USCS § 7420],

(M) promulgation or revision of any regulations promulgated under section 207 [42 USCS § 7541] (relating to warranties and compliance by vehicles in actual use),

(N) action of the Administrator under section 126 [42 USCS § 7426] (relating to interstate pollution abatement),

(O) the promulgation or revision of any regulation pertaining to consumer and commercial products under section 183(e) [42 USCS § 7511b(e)],

(P) the promulgation or revision of any regulation pertaining to field citations under section 113(d)(3) [42 USCS § 7413(d)(3)],

(Q) the promulgation or revision of any regulation pertaining to urban buses or the clean-fuel vehicle, clean-fuel fleet, and clean fuel programs under part C of title II [42 USCS §§ 7581 et seq.],

(R) the promulgation or revision of any regulation pertaining to nonroad engines or nonroad vehicles under section 213 [42 USCS § 7547],

(S) the promulgation or revision of any regulation relating to motor vehicle compliance program fees under section 217 [42 USCS § 7552],

(T) the promulgation or revision of any regulation under title IV [42 USCS §§ 7641 et seq.] (relating to acid deposition),

(U) the promulgation or revision of any regulation under section 183(f) [42 USCS § 7511b(f)] pertaining to marine vessels, and

(V) such other actions as the Administrator may determine.

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The provisions of section 553 through 557 and section 706 of title 5 of the United States Code shall not, except as expressly provided in this subsection, apply to actions to which this subsection applies. This subsection shall not apply in the case of any rule or circumstance referred to in subparagraphs (A) or (B) of subsection 553(b) of title 5 of the United States Code.

(2) Not later than the date of proposal of any action to which this subsection applies, the Administrator shall establish a rulemaking docket for such action (hereinafter in this subsection referred to as a "rule"). Whenever a rule applies only within a particular State, a second (identical) docket shall be simultaneously established in the appropriate regional office of the Environmental Protection Agency.

(3) In the case of any rule to which this subsection applies, notice of proposed

rulemaking shall be published in the Federal Register, as provided under section 553(b) of title 5, United States Code, shall be accompanied by a statement of its basis and purpose and shall specify the period available for public comment (hereinafter referred to as the "comment period"). The notice of proposed rulemaking shall also state the docket number, the location or locations of the docket, and the times it will be open to public inspection. The statement of basis and purpose shall include a summary of—

(A) the factual data on which the proposed rule is based;

(B) the methodology used in obtaining the data and in analyzing the data; and

(C) the major legal interpretations and policy considerations underlying the proposed rule.

The statement shall also set forth or summarize and provide a reference to any pertinent findings, recommendations, and comments by the Scientific Review Committee established under section 109(d) [42 USCS § 7409(d)] and the National Academy of Sciences, and, if the proposal differs in any important respect from any of these recommendations, an explanation of the reasons for such differences. All data, information, and documents referred to in this paragraph on which the proposed rule relies shall be included in the docket on the date of publication of the proposed rule.

(4)

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(A) The rulemaking docket required under paragraph (2) shall be open for inspection by the public at reasonable times specified in the notice of proposed rulemaking. Any person may copy documents contained in the docket. The Administrator shall provide copying facilities which may be used at the expense of the person seeking copies, but the Administrator may waive or reduce such expenses in such instances as the public interest requires. Any person may request copies by mail if the person pays the expenses, including personnel costs to do the copying.

(B) (i) Promptly upon receipt by the agency, all written comments and

documentary information on the proposed rule received from any person for inclusion in the docket during the comment period shall be placed in the docket. The transcript of public hearings, if any, on the proposed rule shall also be included in the docket promptly upon receipt from the person who transcribed such hearings. All documents which become available after the proposed rule has been published and which the Administrator determines are of central relevance to the rulemaking shall be placed in the docket as soon as possible after their availability.

(ii) The drafts of proposed rules submitted by the Administrator to the Office of Management and Budget for any interagency review process prior to proposal of any such rule, all documents accompanying such drafts, and all written comments thereon by other agencies and all written responses to such written comments by the Administrator shall be placed in the docket no later than the date of proposal of the rule. The drafts of the final rule submitted for such review process prior to promulgation and all such written comments thereon, all documents accompanying such drafts, and written responses thereto shall be placed in the docket no later than the date of promulgation.

(5) In promulgating a rule to which this subsection applies (i) the Administrator

shall allow any person to submit written comments, data, or documentary information; (ii) the Administrator shall give interested persons an opportunity for the oral presentation of data, views, or arguments, in addition to an opportunity to make written submissions; (iii) a transcript shall be kept of any oral presentation; and (iv) the Administrator shall keep the record of such proceeding open for thirty days after completion of the proceeding to provide an opportunity for submission of rebuttal and supplementary information.

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(6)

(A) The promulgated rule shall be accompanied by (i) a statement of

basis and purpose like that referred to in paragraph (3) with respect to a proposed rule and (ii) an explanation of the reasons for any major changes in the promulgated rule from the proposed rule.

(B) The promulgated rule shall also be accompanied by a response to each of the significant comments, criticisms, and new data submitted in written or oral presentations during the comment period.

(C) The promulgated rule may not be based (in part or whole) on any information or data which has not been placed in the docket as of the date of such promulgation.

(7)

(A) The record for judicial review shall consist exclusively of the material referred to in paragraph (3), clause (i) of paragraph (4)(B), and subparagraphs (A) and (B) of paragraph (6).

(B) Only an objection to a rule or procedure which was raised with reasonable specificity during the period for public comment (including any public hearing) may be raised during judicial review. If the person raising an objection can demonstrate to the Administrator that it was impracticable to raise such objection within such time or if the grounds for such objection arose after the period for public comment (but within the time specified for judicial review) and if such objection is of central relevance to the outcome of the rule, the Administrator shall convene a proceeding for reconsideration of the rule and provide the same procedural rights as would have been afforded had the information been available at the time the rule was proposed. If the Administrator refuses to convene such a proceeding, such person may seek review of such refusal in the United States court of appeals for the appropriate circuit (as provided in subsection (b)). Such reconsideration shall not postpone the effectiveness of the rule. The effectiveness of the rule may be stayed during such reconsideration, however, by the Administrator or the court for a period not to exceed three months.

(8) The sole forum for challenging procedural determinations made by the

Administrator under this subsection shall be in the United States court of appeals

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for the appropriate circuit (as provided in subsection (b)) at the time of the substantive review of the rule. No interlocutory appeals shall be permitted with respect to such procedural determinations. In reviewing alleged procedural errors, the court may invalidate the rule only if the errors were so serious and related to matters of such central relevance to the rule that there is a substantial likelihood that the rule would have been significantly changed if such errors had not been made.

(9) In the case of review of any action of the Administrator to which this

subsection applies, the court may reverse any such action found to be-- (A) arbitrary, capricious, an abuse of discretion, or otherwise not in

accordance with law; (B) contrary to constitutional right, power, privilege, or immunity; (C) in excess of statutory jurisdiction, authority, or limitations, or short

of statutory right; or (D) without observance of procedure required by law, if (i) such failure

to observe such procedure is arbitrary or capricious, (ii) the requirement of paragraph (7)(B) has been met, and (iii) the condition of the last sentence of paragraph (8) is met.

(10) Each statutory deadline for promulgation of rules to which this subsection

applies which requires promulgation less than six months after date of proposal may be extended to not more than six months after date of proposal by the Administrator upon a determination that such extension is necessary to afford the public, and the agency, adequate opportunity to carry out the purposes of this subsection.

(11) The requirements of this subsection shall take effect with respect to any

rule the proposal of which occurs after ninety days after the date of enactment of the Clean Air Act Amendments of 1977 [enacted Aug. 7, 1977].

(e) Other methods of judicial review not authorized.

Nothing in this Act shall be construed to authorize judicial review of regulations or orders of the Administrator under this Act, except as provided in this section. (f) Costs.

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In any judicial proceeding under this section, the court may award costs of litigation (including reasonable attorney and expert witness fees) whenever it determines that such award is appropriate. (g) Stay, injunction, or similar relief in proceedings relating to noncompliance penalties.

In any action respecting the promulgation of regulations under section 120 [42 USCS § 7420] or the administration or enforcement of section 120 [42 USCS § 7420] no court shall grant any stay, injunctive, or similar relief before final judgment by such court in such action. (h) Public Participation.

It is the intent of Congress that, consistent with the policy of the Administrative Procedures Act [5 USCS §§ 551 et seq.], the Administrator in promulgating any regulation under this Act, including a regulation subject to a deadline, shall ensure a reasonable period for public participation of at least 30 days, except as otherwise expressly provided in section [sections] 107(d), 172(a), 181(a) and (b), and 186(a) and (b) [42 USCS § 7407(d), 7502(a), 7511(a) and (b), 7512(a) and (b)].

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14. 44 U.S.C. § 3516 note 14. §3516 note. (a) In General.

The Director of the Office of Management and Budget shall, by not later than September 30, 2001, and with public and Federal agency involvement, issue guidelines under sections 3504 (d)(1) and 3516 of title 44, United States Code, that provide policy and procedural guidance to Federal agencies for ensuring and maximizing the quality, objectivity, utility, and integrity of information (including statistical information) disseminated by Federal agencies in fulfillment of the purposes and provisions of chapter 35 of title 44, United States Code, commonly referred to as the Paperwork Reduction Act. (b) Content of Guidelines.

The guidelines under subsection (a) shall—

(1) apply to the sharing by Federal agencies of, and access to, information disseminated by Federal agencies; and

(2) require that each Federal agency to which the guidelines apply—

(A) issue guidelines ensuring and maximizing the quality, objectivity,

utility, and integrity of information (including statistical information) disseminated by the agency, by not later than 1 year after the date of issuance of the guidelines under subsection (a);

(B) establish administrative mechanisms allowing affected persons to seek and obtain correction of information maintained and disseminated by the agency that does not comply with the guidelines issued under subsection (a); and

(C) report periodically to the Director— (i) the number and nature of complaints received by the agency

regarding the accuracy of information disseminated by the agency; and

(ii) how such complaints were handled by the agency.”

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15. 40 C.F.R. § 1505.1(b) Sec. 1505.1 Agency decisionmaking procedures. * * * (b) Designating the major decision points for the agency's principal programs likely to have a significant effect on the human environment and assuring that the NEPA process corresponds with them.