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Southwestern Pennsylvania Growth Alliance v. Browner

July 28, 1997

SOUTHWESTERN PENNSYLVANIA GROWTH ALLIANCE, PETITIONER

v.

CAROL BROWNER, ADMINISTRATOR OF THE U.S. ENVIRONMENTAL PROTECTION AGENCY, AND THE UNITED STATES ENVIRONMENTAL PROTECTION AGENCY, RESPONDENTS ADVANCED MANUFACTURING NETWORK, INTERVENOR IN SUPPORT OF PETITIONER



Before: BECKER, SCIRICA, and ALITO, Circuit Judges.

ALITO, Circuit Judge

Filed July 28, 1997

ON PETITION FOR REVIEW OF A FINAL ORDER OF THE ENVIRONMENTAL PROTECTION AGENCY

(Dated May 1, 1996)

Argued: March 11, 1997

Opinion Filed: July 28, 1997

OPINION OF THE COURT

The Southwestern Pennsylvania Growth Alliance ("SWPGA") has petitioned for review of a final rule of the Environmental Protection Agency ("EPA"), 61 Fed. Reg. 19,193 (May 1, 1996). In this rule, the EPA denied the Commonwealth of Pennsylvania's request that the EPA redesignate the Pittsburgh-Beaver Valley nonattainment area (the "Area") to attainment status for ozone, pursuant to the Clean Air Act, 42 U.S.C. Section(s) 7407(d)(3). An intervenor, Advanced Manufacturing Network, contends that the EPA's final rule is invalid because the EPA did not comply with the Regulatory Flexibility Act, 5 U.S.C. Section(s) 601-12. Although we are sympathetic to the view expressed by many within the Area that this rule threatens serious economic harm, we recognize that our role as a reviewing court is strictly limited. We conclude that under the applicable legal standards, we are constrained to deny the petition for review.

I.

A.

Congress enacted the Clean Air Act to "protect and enhance the quality of the Nation's air resources so as to promote the public health and welfare and the productive capacity of its population." 42 U.S.C. Section(s) 7401(b)(1). To achieve this purpose, the Act authorizes the EPA to identify air pollutants that are sufficiently dangerous to warrant federal regulation. See 42 U.S.C. Section(s) 7408(a). For each pollutant that the EPA identifies, the Act authorizes the EPA to promulgate a national ambient air quality standard (NAAQS), which is the maximum allowable concentration of the pollutant in the ambient air. See 42 U.S.C. Section(s) 7409(a).

One pollutant for which the EPA has promulgated a NAAQS is ozone, whose chemical precursors are emitted by industrial and transportation sources. See 40 C.F.R. Section(s) 50.9(a) (1996). The EPA measures ozone levels at monitoring sites located throughout the country. When a monitoring site measures that a given day's "maximum hourly average ozone concentration" has exceeded the NAAQS, an "exceedance" has occurred. See 40 C.F.R. Section(s) 50, App. H (1996). If a monitoring site registers more than an average of one exceedance per year, over a three-year period, that site is in noncompliance with the NAAQS. Id.

The Clean Air Act's 1990 amendments provide that the EPA designate areas of the country as either "attainment" areas, "nonattainment" areas, or "unclassifiable" areas for particular pollutants, depending on whether an area has complied with the NAAQS for that pollutant. See 42 U.S.C. 7407(d). If one monitoring site within an area is in noncompliance with a NAAQS, then the entire area is designated a nonattainment area for that pollutant. See 40 C.F.R. Pt. 50.9(a); 40 C.F.R. Pt. 50, App. H (1996). Nonattainment areas are further classified as "marginal," "moderate," "serious," "severe," or "extreme" nonattainment areas, according to the extent to which the area's monitor readings exceed the NAAQS. See 42 U.S.C.Section(s) 7511a.

The Clean Air Act assigns to the states the responsibility for assuring air quality within each state. See 42 U.S.C. Section(s) 7407(a). The Act provides that within three years of the EPA's promulgation of a NAAQS for a pollutant, each state must submit to the EPA a state implementation plan ("SIP") specifying measures that will attain, maintain, and enforce the NAAQS. See 42 U.S.C. Section(s) 7410(a). All SIPs must meet the substantive requirements enumerated at 42 U.S.C. Section(s) 7410(a)(2). Once the EPA finds that a SIP complies with the Act, the EPA will approve the SIP. See 42 U.S.C. Section(s) 7410(k). When the EPA has designated an area within a state as a nonattainment area for a particular pollutant, that state must modify its SIP to include increasingly strict pollution controls delineated in the Act, depending on the area's nonattainment classification. See 42 U.S.C. Section(s) 7511a.

The Act specifies the procedures through which the EPA may redesignate an area from nonattainment to attainment. The process begins when the governor of a state submits a request for redesignation. See 42 U.S.C. Section(s) 7407(d)(3)(D). Then, "[w]ithin 18 months of receipt of a complete State redesignation submittal, the [EPA] Administrator shall approve or deny such redesignation." Id. Under 42 U.S.C. Section(s) 7407(d)(3)(E), the EPA Administrator "may not promulgate a redesignation of a nonattainment area . . . to attainment unless" the following five criteria are met:

(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 7410(k) of this title;

(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 7505a of this title; and

(v) the State containing such area has met all requirements applicable to the area under section 7410 of this title and part D of this subchapter.

Id. Thus, in order for the EPA to redesignate an area from nonattainment to attainment, the EPA must find that all five of these criteria have been satisfied.

B.

In 1990, the EPA classified the Pittsburgh-Beaver Valley Area (the "Area") as a moderate nonattainment area for ozone. *fn1 See 56 Fed. Reg. 56,694, 56,820 (Nov. 6, 1991). The EPA based this designation on ozone exceedances during the three-year period from 1987 to 1989. See id. In November 1993, the Pennsylvania Department of Environmental Resources submitted to the EPA a request to redesignate the Area to attainment status for ozone. The redesignation request pointed out that the Area had attained the NAAQS for ozone during the three-year period from 1991-1993, with only two exceedances in 1991, zero exceedances in 1992, and one exceedance in 1993. See 61 Fed. Reg. 19,193, 19,195 (May 1, 1996). Pennsylvania's request acknowledged that its SIP had not yet been fully approved by the EPA, but stated that the state expected to receive full EPA approval shortly. The request also included a maintenance plan, under which Pennsylvania demonstrated how it planned to maintain the NAAQS in the area until the year 2004. *fn2

In July 1995, the EPA published a final notice of determination that the Area was in attainment of the NAAQS for ozone. See 60 Fed. Reg. 37,015 (July 19, 1995). Later in the summer of 1995, however, ozone monitors in the Area recorded 16 exceedances over a seven-day period. Two of these monitors recorded more than three exceedances each. After confirming these data, the EPA revoked its earlier determination that the Area had attained the NAAQS for ozone. See 61 Fed. Reg. 28,061 (June 4, 1996).

The EPA also published a notice of proposed rulemaking stating its intention to disapprove Pennsylvania's redesignation request and maintenance plan. See 61 Fed. Reg. 4,598 (Feb. 7, 1996). The EPA expressed various reasons for proposing disapproval. One of the EPA's reasons was that the 1995 summer ozone exceedances indicated that the Area had not attained the NAAQS. The EPA also reasoned that these exceedances indicated that the underlying basis for Pennsylvania's maintenance plan was no longer valid. See id. After public comment, the EPA promulgated a final rule disapproving Pennsylvania's redesignation request and maintenance plan. See 61 Fed. Reg. 19,193 (May 1, 1996).

C.

The petitioner in this case is the Southwestern Pennsylvania Growth Alliance, which is an organization of major manufacturers and local governments in the Pittsburgh-Beaver Valley Area. SWPGA contests the EPA's denial of Pennsylvania's request to redesignate the Area to attainment status. As previously explained, 42 U.S.C. Section(s) 7407(d)(3)(E) lists five requirements that must be satisfied in order for the EPA to redesignate a nonattainment area to attainment status. Since the EPA's final rule stated that none of these five criteria had been satisfied, the petitioner, if it is to prevail, must demonstrate that the EPA erred in its determinations as to all five of Section(s) 7407(d)(3)(E)'s criteria.

The petitioner thus faces an exacting burden. Under the Administrative Procedure Act, 5 U.S.C. Section(s) 706(2)(A), this court must uphold the EPA's action unless it is "arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law." In applying this standard, our "only task is to determine whether [the EPA] considered the relevant factors and articulated a rational connection between the facts found and the choice made." Baltimore

Gas & Elec. Co. v. Natural Resources Defense Council, Inc., 462 U.S. 87, 105 (1983). The EPA's disapproval of Pennsylvania's redesignation request "would be arbitrary and capricious if the agency has relied on factors which Congress has not intended it to consider". Motor Vehicle Mfrs. Ass'n v. State Farm Mut. Auto Ins. Co., 463 U.S. 29, 43 (1983).

II.

SWPGA first argues that the EPA erred when it determined that the Area did not attain the NAAQS for ozone. In so arguing, SWPGA contends that the EPA had no basis for concluding that the first of 42 U.S.C. Section(s) 7407(d)(3)(E)'s five requirements was not satisfied. We hold, however, that it was proper for the EPA to determine that the Area did not attain the NAAQS for ozone.

A.

The petitioner contends that the EPA acted contrary to the language of the Clean Air Act when it took into consideration the ozone exceedances that were recorded in the summer of 1995. The petitioner points to language in the Act stating that "[w]ithin 18 months of receipt of a complete State redesignation submittal, the Administrator shall approve or deny such redesignation." 42 U.S.C. Section(s) 7407(d)(3)(D) (emphasis added). The petitioner argues that the use of the word "shall" in this provision imposes upon the EPA a mandatory duty to act on a state's redesignation request within 18 months of submission. According to the petitioner, the EPA violated this mandatory duty when it took into consideration the 1995 ozone exceedance data, because these data did not exist during the 18-month period. The petitioner concludes that without these improperly considered data, there was no valid reason for the EPA to deny redesignation.

We agree with the EPA that the petitioner may not raise this argument on appeal because this argument was not raised during the rulemaking process. "Generally, federal appellate courts do not consider issues that have not been passed on by the agency . . . whose action is being reviewed." New Jersey v. Hufstedler, 724 F.2d 34, 36 n.1 (3d Cir. 1983), rev'd on other grounds, 470 U.S. 632 (1985).

The petitioner points to the following passage from the record as evidence that Pennsylvania raised this argument in its comments to the EPA's proposed rule disapproving redesignation:

Pennsylvania believes that the Pittsburgh ozone nonattainment area should have been redesignated by EPA to attainment. The Commonwealth submitted the request in 1993, and EPA had ample opportunity and justification.

For the six year period from 1989 through 1994 the national ambient air quality standard for ozone was achieved. During this time eight ozone monitors operated for the full six years and one additional monitor operated two years at one site and the four subsequent years at a nearby site. Six of these monitors had no exceedances during this period and the remaining monitors stayed under the standard. Thus for the four consecutive three-year periods from 1989 through 1994, the Pittsburgh area attained and maintained the ambient standard.

Comments on Proposed Disapproval of Request to Redesignate Pittsburgh Ozone Nonattainment Area, J.A. at 550. Pennsylvania further commented that "the Pittsburgh area [had not] ...


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