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Treasure State Resource Industry Ass'n v. Environmental Protection Agency

ELR Citation: 45 ELR 20206
Nos. 13-1263, (D.C. Cir., 11/03/2015)

The D.C. Circuit upheld EPA's designation of Yellowstone County, Montana, and Wayne County, Michigan, as "nonattainment" under the sulfur dioxide (SO2) NAAQS. Two petitioners—an industry association and a steel company—challenged the designations, albeit for different reasons. The industry association, which challenged the Yellowstone County designation, argued that EPA based its determination on outdated data, rendering its actions arbitrary and capricious. But there was nothing unreasonable in EPA's determination that the data was "robust enough to be reliable" for the SO2 NAAQS. The association also argued that EPA applied the CAA retroactively in violation of the statute. When evaluating a rule for impermissible retroactivity, courts must consider fair notice, reasonable reliance, and settled expectations. Here, the record discloses no evidence of Yellowstone County source owners taking any steps in reliance on the old standards. Moreover, the rules governing nonattainment designation are well established, and EPA had long given notice of the prospect of more stringent SO2 regulations. Accordingly, any investment decisions taken in the expectation of stasis would not have qualified as having been made in reasonable reliance on preexisting law. The steel company, meanwhile, challenged the Wayne County, Michigan, designation. It did not dispute that portion as nonattainment. Rather, it argued it was not reasonable for EPA to designate part of Wayne County as nonattainment without simultaneously making the same determination for at least that portion of neighboring Monroe County that includes the Monroe Coal-Fired Power Plant. But nothing in the CAA or its associated regulations prevents EPA from presumptively following county boundaries. The Act defines a nonattainment area as "any area that does not meet (or that contributes to ambient air quality in a nearby area that does not meet) the national primary or secondary ambient air quality standard for the pollutant." Assuming that the portion of Monroe County containing the Monroe plant may ultimately be found to contribute to nonattainment in Wayne County, nothing in the definition requires a simultaneous decision on both counties. The court, therefore, denied both petitions.