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Hall v. EPA

Citation: 32 ELR 20083
No. No. 99-70853, 263 F.3d 926/(9th Cir., 08/29/2001)

The court vacates the Environmental Protection Agency's (EPA's) approval of a county's Clean Air Act (CAA) new source review (NSR) program because EPA did not adequately assess whether the revised program would meet current attainment requirements. Before EPA approved the county's revised NSR program in 1999, the program consisted of rules last approved by EPA in 1981, and parts of the county had been in nonattainment for particulate matter and carbon monoxide since that time. EPA approved the county's revised program on the theory that if there was no relaxation of air quality regulations, the state implementation plan (SIP) revision incorporating the revised NSR program would not exacerbate the existing situation by allowing increased emissions, and, consequently, would not interfere with reasonable further progress or attainment. The court first holds, however, that EPA's "no relaxation" rule, as applied in this case, was not a persuasive interpretation of CAA § 110(1). Under § 110(1), for EPA to determine that the SIP as revised can meet attainment requirements, EPA must be able to conclude that the particular plan revision is consistent with the development of an overall plan capable of meeting the CAA's attainment requirements. Here, however, EPA employed a false baseline when it concluded that the 1981 rules were the measuring stick for determining non-interference with the CAA's current attainment requirements. The 1990 CAA Amendments set new deadlines for attainment, established other new requirements for incremental progress toward attainment, and are the baseline from which non-interference should be measured. Given the past failure of the county to achieve attainment under the 1981 rules, there is no necessary correlation between maintaining the stringency of the 1981 rules and meeting the CAA post-1990 attainment requirements. Additionally, the individual challenging the EPA's approval of the county's program had adequate opportunity to comment on the program.

Counsel for Petitioner
Robert W. Hall
Law Offices of Robert W. Hall
5200 Dancer Way, Las Vegas NV 89107
(702) 870-4822

Counsel for Respondent
Steve Herm
Environment and Natural Resources Division
U.S. Department of Justice, Washington DC 20530
(202) 514-2000

Paez, J. Before Goodwin and Graber, JJ.