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Reno-Sparks Indian Colony v. EPA

ELR Citation: 33 ELR 20240
Nos. No. 02-71503, (9th Cir., 07/16/2003)

The court held that a 2002 U.S. Environmental Protection Agency (EPA) rule specifying that Nevada was divided into more than 250 baseline areas for the Clean Air Act (CAA) prevention of significant deterioration (PSD) program was not arbitrary or capricious. Based on an ambiguous 1991 EPA regulation that could be construed to classify the state as one baseline area for PSD purposes, a Native American reservation requested that EPA apply the CAA PSD requirements to two mines near the reservation. EPA replied that the state had been divided into 254 discrete baseline areas for PSD purposes in 1978 and that the mines were not subject to PSD requirements because the minor source baseline date for the relevant area had not been triggered. EPA then promulgated the rule at issue, clarifying that the terms “rest of state” and “entire state” in the 1991 regulation referred to the 254 distinct baseline areas. The reservation challenged the rule as arbitrary and capricious. The administrative record, however, supports EPA’s interpretation. Nevada originally proposed the 254 baseline areas in 1977. EPA adopted the designations in 1978 and has never changed them. EPA merely used the terms “rest of state” and “entire state” as proxies for the more than 250 unlisted baseline areas because there was insufficient space in the Agency’s designation tables to list each area separately. Thus, in the 2002 rule, EPA properly interpreted the terms “rest of state” and “entire state” as a shorthand reference to the 254 separate baseline areas. In addition, EPA did not violate the Administrative Procedure Act by not allowing notice-and-comment procedures for the 2002 rule because the rule was an interpretative rule exempt from notice-and-comment requirements.

Counsel for Petitioners
Roger Flynn
Western Mining Action Project
2260 Baseline Rd., Ste. 101-A, Boulder CO 80302
(303) 473-9618

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