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Ober v. EPA

ELR Citation: 26 ELR 21157
Nos. 95-70352, 84 F.3d 304/42 ERC 1801/(9th Cir., 05/14/1996)

The court holds that the U.S. Environmental Protection Agency's (EPA's) interpretation of the attainment demonstration for particulate matter less than 10 microns (PM10) in Arizona's 1995 state implementation plan (SIP) revision is not based on a permissible construction of the Clean Air Act (CAA), and EPA's approval of that revision violated the Administrative Procedure Act (APA). The court first holds reasonable EPA's interpretation that unless an area can attain both a 24-hour and an annual PM10 national ambient air quality standard (NAAQS) that EPA promulgated, the area will be reclassified as serious nonattainment. The court then holds that a municipality's inability to attain the annual PM10 standard does not relieve the state's duty to independently examine and implement "reasonably available control measures" targeting the-24-hour standard, to demonstrate independently attainment of or the impracticability of attainment of the 24-hour standard, and to demonstrate independently "reasonable further progress" for the standard. The CAA specifically requires the attainment of all NAAQS as expeditiously as practicable. EPA's interpretation of the SIP's attainment demonstration requirements for the 24-hour standard was not based on a permissible construction of the CAA, and EPA's approval of an implementation plan that failed to address independently the 24-hour standard violated the CAA. The court next holds that EPA did not abuse its discretion by rejecting petitioner's argument that transportation control measures are "reasonably available" so as to require the state to reject them only by showing that they either would not advance attainment, would cause substantial widespread and long-term adverse impact, or would take too long to implement. EPA had the discretion to alter its previous policy of presuming all transportation control measures to be "reasonably available" on a national scale. The court also holds that EPA did not abuse its discretion by finding that the SIP provided the necessary assurances of state responsibility.

Turning to the petitioner's APA claims, the court holds that the petitioners should have had the opportunity to comment on data critical to EPA's approval decision that EPA requested and received after the close of the comment period. The court next holds that EPA's substitution of its own "reasonable further progress" demonstration for the state's was a failure to observe the procedure required by law and an abuse of discretion. Because EPA's evaluation altogether changed the prior information available to the public and was different from the state's submittal, the opportunity for public comment was particularly crucial. Finally, the court holds that petitioners were not denied their opportunity to comment on the inclusion of control measures from 1993 carbon monoxide and ozone SIPs. Therefore, inclusion of control measures from those plans in the 1995 SIP proposal did not violate the APA.

Counsel for Petitioners
David Baron, Ass't Director
Arizona Center for Law in the Public Interest
1840 E. River Rd., Ste. 207, Tucson AZ 85718
(520) 529-1798

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

Before Schroeder, Trott, and Reed,* JJ.