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Wall v. EPA

Citation: 32 ELR 20127
No. No. 00-4010, 265 F.3d 426/(6th Cir., 09/11/2001)

The court vacates the U.S. Environmental Protection Agency's (EPA's) redesignation of the Cincinnati metropolitan area in Kentucky and Ohio to attainment status for ground-level ozone under the Clean Air Act (CAA). After EPA redesignated the metropolitan area in 2000, two individuals and an environmental group challenged the redesignation as well as the Agency's approval of clean air maintenance plans for the area. The court first holds that EPA's use of attainment-emissions inventory to demonstrate maintenance meets the CAA's requirements. Although 40 C.F.R. § 51.112(a) states that air quality models shall be used to demonstrate the adequacy of control strategies, EPA interprets this regulation to apply only to attainment demonstrations and not, as here, to CAA § 175A stand-alone maintenance plans. EPA memorandum indicate that states may demonstrate maintenance using modeling or through other indication showing that future emissions will not exceed attainment levels. Thus, EPA's construction of 40 C.F.R. § 51.112(a) is neither impermissible nor in conflict with the CAA. The court also holds that the maintenance plans did not need to include an enforcement program because EPA permissibly determined that the states fulfilled the requirement of submitting a program to provide for the enforcement of maintenance measures when the Agency previously approved the states' state implementation plans (SIPs). The court then holds that Kentucky's failure to revise its SIP to meet transportation conformity requirements does not render the redesignation improper. However, the court holds that EPA abused its discretion when it determined that it could redesignate the metropolitan area as achieving attainment before Ohio had fully adopted all of the CAA's reasonably available control technology (RACT) rules. Ohio's SIP had failed to adopt all of the RACT rules for volatile organic compounds covered by EPA's control technique guidelines. EPA's own policy requires full adoption of the RACT rules, and CAA § 182(b)(2) requires a SIP to include RACT provisions. EPA claimed that the CAA allows the RACT rules to be incorporated in the Ohio SIP's contingency provisions, but contingency provisions are not immediately effective and do not require the adoption of the RACT rules. Similarly, CAA §§ 175A(d) and 182(b)(2) do not allow EPA to replace the RACT rules with contingency measures.

Counsel for Petitioners
David S. Baron
Earthjustice Legal Defense Fund
1625 Massachusetts Ave. NW, Ste. 702, Washington DC 20036
(202) 667-4500

Counsel for Respondents
Melaine A. Williams
Environment and Natural Resources Division
U.S. Department of Justice, Washington DC 20530
(202) 514-2000

Gilman, J. Before Clay and Wiseman, * JJ.

* The Honorable Thomas A. Wiseman, Jr., United States District Judge for the Middle District of Tennessee, sitting by designation.