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Southwestern Pa. Growth Alliance v. Browner

ELR Citation: 27 ELR 21540
Nos. 96-3364, 121 F.3d 106/(3d Cir., 07/28/1997)

The Third Circuit denies an organization of manufacturers' and local governments' petition for review of the U.S. Environmental Protection Agency's (EPA's) denial of Pennsylvania's request to redesignate the Pittsburgh-Beaver Valley area from nonattainment to attainment status for ozone under the Clean Air Act (CAA). The court first holds that although EPA failed to act within 18 months of the state's redesignation submittal, the organization cannot raise this issue on appeal because it failed to raise the argument during the rulemaking process. Pennsylvania, during the rulemaking process, broached the question whether EPA had acted in a timely manner; however, the comments included neither a reference to a statutory provision, nor an argument that the existence of a time limit precluded EPA from considering 1995 exceedances. If the court were to reach petitioner's argument, it would hold that EPA is not barred from considering exceedance data after the 18-month period. The use of the term "has attained" in CAA §107(d)(3)(E) instead of "attained" may be interpreted as suggesting that the attainment must continue until the date of redesignation. In addition, since the language is ambiguous, the court defers to EPA's interpretation. The court next rejects the organization's argument that because EPA failed to consider data demonstrating that much of the offending ozone originated outside the area, EPA's conclusion that the area did not attain the national ambient air quality standard was incorrect. Applying the Chevron standard EPA's interpretation of the CAA as precluding allowances for transported ozone is reasonable. The court finally holds that an intervenor cannot raise a Regulatory Flexibility Act (RFA) argument, because it was not adequately presented to EPA during the rulemaking process. And even if it had been properly raised, the argument lacks merit because EPA's final rule was sufficient to satisfy the RFA.

Counsel for Petitioner
Barry M. Hartman
Kirkpatrick & Lockhart
1500 Oliver Bldg., Pittsburgh PA 15222
(412) 355-6500

Counsel for Respondent
Harley N. Trice II
Reed, Smith, Shaw & McClay
435 6th Ave., Pittsburgh PA 15219
(412) 288-3131