When Is An Area That Is In Attainment Not An Attainment Area?

Phillip D. Reed

Editors' Summary: The 1977 Clean Air Act Amendments single out for harsh air pollution control measures those parts of the country whose air quality does not measure up to federal standards. Virtually every major city in the country was a nonattainment area for ozone, the regulatory surrogate for smog. The final deadline for cleaning up these areas expires next year and many cities still have too much smog. They are trying to implement difficult control measures such as automobile emission control inspection and maintenance programs, and face potentially severe sanctions when time runs out if Congress does not first amend the Act. Several states have tried to cut down the scope of this predicament by shrinking the boundaries of urban nonattainment areas, excluding counties that no longer violate the air quality standards. The Act provides mechanisms for making such changes and can be read to give the states absolute power to make such counties attainment areas. EPA has resisted the proposed changes for counties with significant emissions of ozone precursors that are transported into the nonattainment areas on the prevailing winds, at least where parts of the counties are within the urbanized areas. Two recent courts of appeals decisions have held that the Clean Air Act authorizes EPA to insist that such counties remain in the nonattainment areas to whose problems they contribute. The result is a modest, but significant victory for EPA in its efforts to maintain the vitality of the ozone nonattainment program.

In November of 1985, the Environmental Protection Agency (EPA) won important legal victories in the Sixth and Seventh Circuits in its fight to preserve the geographic foundation for programs to cut back big-city smog. In Ohio v. Ruckelshaus¹ and Illinois State Chamber of Commerce v. United States Environmental Protection Agency,² the courts ruled that the Clean Air Act³ authorizes EPA to insist that states include in areas singled out for special pollution control attention because their air is dirtier than health standards allow, certain upwind counties whose own air is free of smog. In essence the courts held that, if it contributes significantly to pollution in a "nonattainment area," an area that has attained the air quality standards is not an "attainment area." Language in the Act suggests that once a state learns that a county formerly listed as nonattainment no longer has violations of the air quality standards within its borders, the state may change the county's designation to "attainment," thereby relaxing the grip of Clean Air Act programs in the county. Smog is not a local problem, however, and such counties may contribute to air quality problems downwind; relaxation of Clean Air Act requirements for them may impede progress for clearing the air in neighboring counties. While there still are serious problems in designing and implementing effective air pollution control programs for the dozens of big cities in which smog persists, Illinois Chamber of Commerce and Ohio v. Ruckelshaus at least ensure that the clean air agencies will not have to pull their punches in areas significantly contributing to those problems.

Ozone Pollution and the Clean Air Act

Smog, regulated under the Clean Air Act in terms of one of its major constituents, ozone, is one of the most pervasive and severe of the major air pollution problems addressed by the Act.⁴ In 1977, of the 105 cities with populations over 200,000, 103 had enough smog in their air to threaten public health.⁵ Scientific data indicate that ozone causes pulmonary and respiratory problems in people and damage to vegetation and forest ecosystems.⁶ Millions of people are exposed to excessive ozone pollution, because the problem centers on big cities.

Ozone is perhaps the most difficult criteria pollutant to regulate. It is not emitted; it is cooked up in the atmosphere where "precursor" pollutants, volatile organic compounds and oxides of nitrogen, react in the glare of sunlight to produce a complex photochemical soup. The heaviest ozone concentrations may occur miles downwind from the heaviest concentrations of sources.⁷ Ozone precursors are emitted, not by a small number of large, stationary sources that can relatively easily be identified and controlled,⁸ but, to a substantial degree, by thousands of small facilities like gas stations, dry cleaners, and print shops, and millions of even smaller and more elusive mobile sources — Toyotas, Buicks, BMWs, and the like. As a result, ozone control strategies must take a regional perspective and are politically and administratively difficult to implement.

The Clean Air Act's program for ozone control has not made great progress. The 1970 Clean Air Act Amendments⁹ directed EPA to promulgate national ambient air quality standards (NAAQS)¹⁰ for the criteria pollutants. The states had to develop state implementation plans (SIPs) to attain the NAAQS by no later than 1977,¹¹ with help from tough, federally-promulgated standards for new stationary¹² and mobile sources.¹³ As the 1977 deadline for attaining the NAAQS drew close, Congress realized that the program was still far from success and directed the states and EPA to draw up lists of "nonattainment areas" for each of the criteria pollutants. For ozone, that list included virtually every major urban area in the country.¹⁴ The 1977 Clean Air Act Amendments¹⁵ included a new Part D¹⁶ prescribing tough new control programs for nonattainment areas and a new 1982 attainment deadline.¹⁷ For areas with severe ozone or carbon monoxide pollution problems, the amendments allowed extension of the deadline to 1987 in exchange for adoption of automobile emission control inspection and maintenance programs and additional stationary source controls. Even with the new programs in place, progress in cleaning up smog has been costly and slow. Seventy-two metropolitan areas still are nonattainment for ozone and EPA staff project that 32 may not attain by 1987.¹⁸

The struggle to cut ozone pollution has been intense and controversial, with must of the legal wrangling focusing on the SIP revision process, politically unpopular inspection and maintenance programs, and deadlines.¹⁹ Less controversial, but also important has been a series of disputes over how the states and EPA draw and revise the boundaries of nonattainment areas, particularly for ozone.

The nonattainment program established by the 1977 amendments begins with the designation of nonattainment areas, which the Act defines as areas with monitored or modelled violations of the NAAQS.²⁰ The question at issue in several recent cases was whether EPA could include in ozone nonattainment areas, or states could delete from such areas, counties on the upwind side of major urban areas that were not themselves in violation of the NAAQS, but included significant sources of ozone precursor emissions. The cases raised issues about the language and purpose of the nonattainment area listing provisions and the respective roles of EPA and the states in defining the geographic scope of these Clean Air Act programs.

The Shifting Geographic Basis for Air Pollution Control Planning

A brief history is helpful in understanding the recent dispute over nonattainment area boundaries. The precursors of the nonattainment area program are found in the 1967 and 1970 amendments to the Clean Air Act. In requiring states to identify nonattainment areas, Congress was merely retuning a concept introduced a decade earlier. Since 1967, air pollution control planning under the Clean Air Act has begun with an exercise in geography: defining the areas within which pollution made the air unhealthy to breathe or otherwise harmful to the public welfare.

The "air quality control region" (AQCR) was the original geographic building block of the Clean Air Act's regulatory program. The 1967 amendments to the Act first directed the federal government to "designate air quality control regions based on jurisdictional boundaries, urban-industrial concentrations, and other factors including atmospheric areas necessary to provide adequate implementation of air quality standards."²¹ Congress anticipated that the regions would generally be congruent with the major metropolitan areas of the country.²² The Act expressly provided for revision of AQCR designations where "necessary to protect the public health and welfare and after consultation with appropriate State and local authorities."²³ the 1967 AQCRs were similar to the 1977 nonattainment areas in two respects: functionally, they were regions with heavily polluted air that were to be the priority target of pollution control efforts; geographically, for the most part they centered on the nation's major cities.

The 1967 program for action in these target regions bore no resemblance to its 1977 counterpart, however. In 1967 federal air quality criteria were not binding on the states and there was no federal guidance on how much to cut emissions at individual sources. Many states could only force abatement if they could prove that a specific source was in effect causing a public nuisance. This highly decentralized version of a national air pollution control scheme proved ineffectual. States were reluctant to get too tough for fear of losing industry to their neighbors. Air quality standards were virtually impossible to enforce directly, because so many sources contributed to urban air pollution and it was so difficult to estimate the magnitude of each source's relative contribution.²⁴ In 1970 Congress established a new federal framework for air pollution control that was designed to overcome these weaknesses.

Air quality control regions were not new in 1970, but the pollution control mechanisms to be applied in them [16 ELR 10043] were. Congress put real teeth into the requirement that states clean up their AQCRs.²⁵ The Act directed the states to develop state implementation plans (SIPs) to attain within three years, and thereafter to maintain, the new national ambient air quality standards in each AQCR. Translating air quality goals into emission controls was transformed from an enforcement job to a regulatory job. The SIPs were to prescribe emission limits for categories of sources and to demonstrate that the net effect of all the limits for all the criteria pollutants would bring about universal compliance with the primary NAAQS by no later than 1977.

One aspect of the 1967 program not changed much by the 1970 Clean Air Act Amendments was the AQCR scheme. The amendments made three changes. First, they required that the rural areas not included in 1967 AQCRs be designated as regions as well.²⁶ The new Clean Air Act machinery was to be in place in all regions of the country. Second, the amendments eliminated the provision for modifying AQCR boundaries. Third, they directed EPA to designate such interstate and major intrastate AQCRs as it deemed necessary or appropriate for attainment and maintenance of ambient air quality standards, thus giving the federal government its first authority directly to define AQCRs.²⁷ The air quality control region, with fixed boundaries set in some instances by the federal government, was to be a key jurisdictional unit for planning and implementation of an aggressive new federal/state clean air program.

The 1970 Clean Air Act failed to reach its lofty goals. When it became clear that many AQCRs would fail to comply with the NAAQS for one or more pollutants, EPA had to confront the possiblity that the Act would be interpreted to bar construction of major new sources in such areas after the attainment deadline, thus feeding the economic stagnation that had settled over urban America. EPA developed an offset policy that allowed new construction within an AQCR that would not meet the attainment deadline, so long as the emissions were tightly controlled and were offset by greater emission reductions at existing sources in the area.²⁸ In 1977 Congress enacted the nonattainment area program, codifying and building on the offset policy.

The New § 107 and the Stigma of Nonattainment

The first leg of a journey may attract the least attention, but often is the most important, because it helps determine the route taken and whether the destination will be reached on time. Designation of nonattainment areas was the first leg of the journey to clean air that Congress mapped out in the 1977 amendments. The legislators gave little attention to this first step, simply directing the states to submit lists of "air quality control regions, or portions thereof" that would not timely come into compliance with primary and secondary air quality standards²⁹ and requiring EPA quickly to approve the lists with appropriate modifications.³⁰ The Act also provided two means of changing the initial listing, a new § 107(d)(5)³¹ authorizing changes in the status of listed areas, and § 107(e),³² allowing redesignation of the boundaries of air quality control regions. In the 1970 amendments, Congress had tried inflexible AQCR boundaries; in 1977 it took a different approach with the borders of AQCRs and nonattainment areas.

Listing

Section 107(d)(1) gives the state the choice of using the existing AQCR or a smaller area as the nonattainment area, but does not explain how the choice is to be made. The legislative history is not illuminating. The only relevant language is in the Senate committee report on the bill that used the language that became the listing requirement in § 107(d)(1).³³ It indicates that where "adequate information is available, the States may divide regions into different categories. Generally this subdivision of regions should not be on the basis of jurisdictions smaller than counties."³⁴ The House bill would have required listing of nonattainment areas as part of the nonattainment area SIP revision process, but the committee report did not elaborate on the listing requirement.³⁵ Nowhere in the legislative history is there any indication of when an area smaller than an AQCR should be a nonattainment area or an explanation of the relationship between the nonattainment area and the AQCR.

The definition of "nonattainment area" in the new Part D shed some light on how the areas were to be identified. It stated that the term means:

for any air pollutant, an area which is shown by monitored data or which is calculated by air quality modelling (or other methods determined by the Administrator to be reliable) to exceed any national ambient air quality standard for such pollutant. Such area includes any area identified under subparagraphs (A) through (C) of section 107(d)(1).³⁶

This language seems to indicate that a nonattainment area must have violations of the NAAQS within its borders.³⁷ Beyond that, the definition simply refers back to § 107(d).

The narrowest reading of §§ 107(d) and 171(2) would be to designate nonattainment areas simply by plotting the boundaries of monitored or modelled NAAQS violations onto a map: tracing the edges of the cloud of excessive pollution with a bright red marker. The emphasis in the statute, to the extent there is any, is on encompassing the areas [16 ELR 10044] of dirty air, not the areas with sources of pollution. The statute does not require this narrow approach, however. Section 107(d) seems to leave it to the states to decide whether to so narrowly map the areas. Since listing as a nonattainment area brings onerous emission control burdens down on the region and its residents, states had an incentive not to be overly inclusive.

But it is unlikely that Congress intended to give the states a free hand. It did require EPA approval of revisions in the list, for one thing. Since nonattainment areas were to be the focus of intensive control efforts, it would not make sense to ignore the location of the sources of the offending pollution in drawing the new boundaries.³⁸ Indeed, the nonattainment area is in effect the new AQCR for most purposes. Although the statute does not make this connection, it makes sense to incorporate in the concept of the nonattainment area the notions of control program effectiveness incorporated into the AQCR. The statute, however, does not explicitly fetter the states' discretion in this fashion.

Revising the List

Congress did not intend the nonattainment area mapping to be carved in stone. The 1977 amendments provide for two kinds of changes. States may, with EPA approval, revise the § 107(d)(1) list from time to time under § 107(d)(5). Second, the states may change the status of areas by redesignating the boundaries of AQCRs under § 107(e) and revising the nonattainment area list accordingly. Neither provision offers much implementation guidance.

Section 107(d)(5) provides that a state "may from time to time review, and as appropriate revise and resubmit, the list required under this subsection. The Administrator shall consider and promulgate such revised list in accordance with this subsection."³⁹ Thus the initial listing and subsequent modifications were to follow the same rules, but what those rules were to be was open to some question. The statute does not indicate whether this includes both upgrading from nonattainment to attainment and down-grading from attainment or unclassified to nonattainment, although it would seem logical to include both. It is not clear from the statute whether states may redraw the boundaries of listed areas or simply reclassify them. If the state may change boundaries under § 107(d)(5), what is the purpose of § 107(e)?

Section 107(e)(1) authorizes a state, with EPA approval, to "redesignate from time to time the air quality control regions within such State for purposes of efficient and effective air quality management. Upon such redesignation, the list under subsection (d) of this section shall be modified accordingly."⁴⁰ Remapping the boundaries of AQCRs that EPA has found contribute significantly to pollution in other states requires approval of the other states.⁴¹ Since the statute consistently uses the term "designation" to refer to the process of drawing the boundaries of AQCRs and "listing" to the process of identifying nonattainment areas, this section concerns the boundaries, not the status of AQCRs. However, the section itself indicates that changing the AQCR boundaries can have the same effect as changing the status. Congress contemplated that changes in AQCR boundaries could require changes in nonattainment area boundaries, but did not indicate whether this section was to be a vehicle or the only vehicle for changing the boundaries of nonattainment areas.

The legislative history suggests that Congress did not consider these questions. Section 107(e) was drafted by the House Energy and Commerce Committee to reinsert limited flexibility into the process by which the boundaries of AQCRs are set.⁴² The 1977 revision was adopted at the request of state officials and industry, but was to be limited to cases where "there is a persuasive showing of good cause by the State and the Administrator concurs."⁴³ Apparently concerned about potential abuse of the redesignation process, Congress directed EPA to approve only those revisions designed to improve administration of the program.⁴⁴ Congress gave the states the primary role in mapping the boundaries, relegating EPA to a watchful, but secondary oversight role: "the basic authority to redesignate air quality control region boundaries is vested in the Governor of the State."⁴⁵ Further elaboration followed: while "the Administrator would be authorized to disapprove an AQCR boundary redesignation, this authority should be used only when the appropriate procedures are not observed, when the proposed revisions represent gerrymandering or other improper action, or when the Governor fails to make the requisite showing of good cause for the revision."⁴⁶ Section 107(e) may have been written with reference to an AQCR problem predating concern about nonattainment and the cross-reference to § 107(d) simply may have been added to maintain consistency.

In sum, the 1977 amendments required the states to prepare lists of nonattainment areas, AQCRs or smaller areas [16 ELR 10045] down to county size, in which air quality standards were violated. EPA had to approve the lists, but Congress gave it no criteria against which to judge them. Implicit in the scheme is the notion that the nonattainment areas, like 1970-vintage AQCRs, were to be the geographic basis for effective emission control programs. With EPA approval, states could change the list as the attainment status of areas changed or redraw the boundaries of AQCRs (and the nonattainment areas within them) to improve the effectiveness or efficiency of their SIP administration. Between these lines from statute and legislative history lie many unanswered questions.

Implementation of § 107

The nonattainment area listing process was fraught with controversy from the first. EPA promulgated guidance to the states on drawing up their lists. The guidance was relatively specific for sulfur dioxide and particulates, but not for ozone. The process provoked three rounds of court action. The first was over the procedures EPA used in promulgating the lists of nonattainment areas. Later, litigation erupted over the relative roles of EPA and the states in the relisting process under § 107(d)(5). More recently, the agency was taken to court over its insistence that urban counties upwind of ozone nonattainment areas be included in the areas even if there were no violations of the NAAQS within the counties' boundaries.

Round One: EPA Promulgation of Lists

The agency promulgated its nonattainment area designations as final rules without opportunity for notice and comment, fearing that adherence to those procedures would so delay the designation process that the demanding SIP revision schedule would have to be abandoned before the revisions could even begin.⁴⁷ Two courts of appeals accepted EPA's argument that the tight statutory deadlines and health concerns underlying the nonattainment program were "good cause" for ignoring the Administrative Procedure Act notice and comment requirements.⁴⁸ Five courts overturned EPA's expedited designations, even when the agency allowed post-promulgation comments.⁴⁹

For the most part, the boundaries of the nonattainment areas were not at issue in the decisions. In United States Steel Corp. v. Environmental Protection Agency⁵⁰ the court upheld EPA's discretionary refusal to delete from a nonattainment area in Indiana localities with sources not linked directly to the air quality standard violations monitored in the area. On remand in another case, Western Oil and Gas Association v. Environmental Protection Agency,⁵¹ EPA promulgated criteria for identifying nonattainment areas, including: "(5) A nonattainment area should be as small as possible while encompassing all areas of expected violation and all sources of significant impact on those violations."⁵² Criterion No. 5 did not apply to ozone nonattainment areas.⁵³ With these minor exceptions, it was only later, when the new deadlines for attainment approached, that the nonattainment area boundary issues began to surface.

Round Two: State or Federal Control of Redesignation

Not long after the smoke raised by EPA's expedited designation procedures had cleared, another question arose: could EPA unilaterally change the listing of an area from unclassifiable to nonattainment? EPA claimed the authority to reclassify areas after promulgating the original list.⁵⁴ However, when the agency reclassified an nonattainment an Indiana area first listed as unclassifiable, Bethlehem Steel, the owner of the largest source in the area, sued and won. The Seventh Circuit held that EPA's one opportunity to second-guess the state's proposed designations was the sixty days specified in § 107(d)(2).⁵⁵ Allowing EPA to later revise the list unilaterally would put the states squarely behind the eight ball of the unbending attainment schedule set by the 1977 amendments and nothing in the statute or legislative history evinced a congressional intent to so burden the states. The court refused to defer to EPA's interpretation of the statute, deeming the issue political instead of technical.⁵⁶ It then rejected EPA's argument that the decision would open a loophole in the nonattainment program: EPA's power in § 107(d)(2) to require states to submit information on questionable unclassified areas protected against fraudulent nonclassification and § 110(a)(2)(H)(ii) enabled EPA to order a state to upgrade the SIP for any area later found to be nonattainment (albeit without the added muscle of Part D requirements).

In Bethlehem Steel the Seventh Circuit cast EPA as a passive participant in the nonattainment area list-revision process. Although ruling only on the special case of a [16 ELR 10046] change from unclassifiable to nonattainment, the court's rationale would also apply to a situation in which EPA believed an area had slipped from attainment to nonattainment, but the state did not. Once its initial review of the proposed list was complete, the federal agency could not unilaterally revise the list; it could only act on a state proposal. The decision seems to deprive EPA of important authority, but as a practical matter probably makes sense in light of the unbending attainment deadlines and sanctions awaiting the nonattainment areas.⁵⁷

Round Three: Nonattainment Area Boundaries

The boundaries of nonattainment areas are significant. The controls applicable in such areas are much more potent than those that can be brought to bear outside the areas. If sources contributing significant amounts of pollution to a nonattainment area are not included in the area, it will be more difficult to bring the area into compliance with the NAAQS. On the other hand, being included in a nonattainment area can subject a community to politically unpopular requirements, for instance the automobile inspection and maintenance program, and weighty sanctions, for example the loss of millions of dollars in federal highway funds.⁵⁸

The problems of nonattainment area boundaries are particularly difficult for ozone nonattainment areas. Ozone is a regional problem likely to be caused in significant part by numerous, diffuse sources like automobiles, and likely to be at its worst miles downwind from source concentrations. Most of the major metropolitan areas of the country have been nonattainment for ozone, in large part because of automobile emissions. In some areas major sources of ozone precursors located upwind of the metropolitan area make a significant contribution to downtown ozone concentrations. In other cases, rural areas on the downwind side of town violate the ozone NAAQS despite the absence of major sources. While other pollutants may be transported into and out of metropolitan areas, the problem appears to be more severe with ozone and its precursors.

The issue that has surfaced in several recent cases is whether counties in attainment with the NAAQS can be included in or forced to remain in nonattainment areas because they house significant sources of the nonattainment pollutants but are situated upwind from the area where violations have been monitored or modelled. The question has arisen in one case in which the pollutants of concern apparently were not ozone, but most prominently in two ozone nonattainment area cases.

* Administrative Action. EPA was slow to provide a precise definition of the appropriate boundaries for nonattainment areas. The initial ozone nonattainment area lists generally included all the counties in major urbanized areas. In several of the rulemakings EPA explained that the nature of ozone formation required inclusion of the entirety of counties any part of which was within an urbanized area with ozone violations.⁵⁹ When EPA promulgated criteria for nonattainment area designations on remand from one of its early court of appeals defeats, it said nothing about the boundaries of ozone nonattainment areas.⁶⁰ It did issue formal guidance on ozone nonattainment area boundaries for redesignation purposes in 1983, which it later summarized as follows: "the guidance indicates that urban ozone nonattainment areas should include all of the urbanized area and all of the significant Volatile Organic Compound (VOC) sources responsible for the downwind ozone problem."⁶¹ The EPA policy merges the concept of the urbanized ozone nonattainment area with the notion of Criterion No. 5 for non-ozone pollution that the nonattainment area should include significant upwind sources of nonattainment pollutants. Although the agency made no specific reference to this fact, its policy applied the notions of administrative workability incorporated in the concept of the AQCR, which for all practical purposes the nonattainment area replaces. EPA's policy on attainment counties in nonattainment areas was challenged in three cases and EPA won, at least on the law, in all three.

* Boundary Issues in Listing. The first case arose in the San Francisco Bay area. Relying on Criterion No. 5, the state proposed and EPA promulgated on ozone nonattainment area designation for the entire Bay area, including industrialized areas whose air quality did not violate the NAAQS, but were upwind of areas that did. The Western Oil & Gas Association challenged Criterion No. 5 and its application. EPA won in the Ninth Circuit in Western Oil & Gas Association v. United States Environmental Protection Agency.⁶² The court ruled that § 107(c) and (d)(2) demonstrate congressional intent to give EPA broad discretion to make nonattainment areas as large as needed to achieve the environmental purposes of the nonattainment program. It found this result consistent with the legislative history and summarily rejected appellants' reference to a case requiring EPA to more narrowly define the boundaries of areas in which the prevention of significant deterioration operates.⁶³ The court also held that EPA had not acted arbitrarily and capriciously in adopting Criterion No. 5, because it had adequately explained its rationale, which was consistent with the implementing state agency's analysis.

[16 ELR 10047]

Although the opinion does not mention the pollutants at issue, the fact that EPA's guidance stated that the general criteria, of which No. 5 was one, did not apply to ozone areas indicates that other pollutants must have been at issue.

* Boundary Issues in List Revision and AQCR Redesignation. Two cases decided near the end of 1985 raised the issue of attainment counties in nonattainment areas in a different light. They arose in the context of state-proposed changes in attainment status, not the original EPA/state listing and they involved ozone pollution. In both cases, states sought to relabel counties upwind of major cities (Chicago and Cleveland) as attainment areas due to the absence of monitored ozone standard violations within the counties. One case involved a list revision action under § 107(d)(5), the other an AQCR redesignation under § 107(e), but there was no appreciable difference in the analysis as a result of this distinction. In both cases EPA rejected the proposals, because there were significant sources of ozone precursors in the counties. The two courts of appeals diverged in their analysis and in their conclusions, largely because of key factual differences, but both held that EPA has authority under the Clean Air Act to extend the boundaries of ozone nonattainment areas to upwind attainment counties.

In the Ohio case, EPA had acted on a state request to whittle away at the Cleveland ozone nonattainment area. The state had originally designated a five-county ozone nonattainment area surrounding Cleveland on three sides. It proposed a § 107(e) redesignation of the boundaries of the area to exclude Lorain and Medina Counties, located to the west of the city, because they no longer had ozone violations. EPA approved the proposal for "largely rural" Medina County, but disapproved it for "heavily industrial" Lorain County, because of the substantial volume of volatile organic compounds emissions in the county.

In Ohio v. Ruckelshaus⁶⁴ the Sixth Circuit panel upheld EPA. A key fact in the case was that the state conceded that Lorain County contributes significantly to ozone in Cleveland. The court looked in § 107(d) for standards governing the inclusion of counties without NAAQS violations in nonattainment areas and found none. Applying the Supreme Court's Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc.⁶⁵ deferential standard of review, the court held that EPA's exercise of discretion was both within the law's bounds and reasonable. The court reasoned that EPA's interpretation served the purposes of Part D by keeping the nonattainment program's targets, major sources of ozone-precursor pollution, within the range of the main weapon provided EPA. It cited Criterion No. 5 and Western Oil & Gas Association for this proposition as well. The court next held that EPA's decision was reasonable, even though EPA did not model the effects of Lorain County emissions on Cleveland air quality, because of Ohio's admission about the air quality impacts and because EPA cited data from modelling in other cities showing that emissions from upwind counties have a significant impact on big city ozone pollution.⁶⁶

The decision in Ohio v. Ruckelshaus has several curious aspects. The court relied, not on the urbanized area rationale articulated from time to time by EPA for its ozone nonattainment area boundary decisions, but on Criterion No. 5. The court did not mention that EPA had expressly excluded ozone nonattainment areas from the coverage of the provision.⁶⁷ The court deferred to EPA, never mentioningthe legislative history indicating that EPA should only deny § 107(e) redesignation requests if it concluded that the change would not serve effective program administration.⁶⁸ The logic behind Criterion No. 5 suggests that the proposed change would indeed interfere with effective administration of the ozone abatement program in the Cleveland area, but the court did not address the issue in these terms.

In Illinois State Chamber of Commerce v. United States Environmental Protection Agency,⁶⁹ Seventh Circuit took a less charitable view of a similar EPA decision. EPA rejected Illinois's proposal under § 107(d)(5) to change the status of Kane and DuPage counties on the western fringe of Chicago from nonattainment to attainment. Although acknowledging that the counties had no ozone NAAQS violations within their borders, EPA noted that both were partially within the Chicago urbanized area and have significant ozone precursor emissions. EPA earlier had approved the state's request to change the status of two other counties, one of which had significant volatile organic compound emissions, but had argued that those emissions were primarily from stationary sources that could be controlled effectively without the Part D program.

The Seventh Circuit's analysis took the same path as that of the Sixth Circuit, but ended with a different result. The Illinois Chamber of Commerce court concluded that § 107(d)(5) is silent on whether EPA had to approve the proposed revisions. It, too, ruled that the statute would allow EPA to include upwind attainment counties with significant emission sources in nonattainment areas and noted that EPA's ability to carry out the mandate of the 1977 amendments turns in part on its ability to apply the potent Part D program to all significant sources of nonattainment pollutants.

However, although it upheld EPA on the law, a majority of the three-judge panel held EPA's decision on the Illinois proposal to revise the status of Kane and DuPage counties to be arbitrary and capricious. It considered four rationales for EPA's decision and concluded that all were consistent with the Act. Nonetheless, the court rejected all the possible explanations as unreasonable in this instance. The court found the Criterion No. 5 argument unpersuasive, since the agency had agreed to revise the status of an upwind county with significant emissions and had not included downwind counties in Wisconsin whose NAAQS violations were attributable to Chicago area emissions.⁷⁰ It suggested that EPA might be arguing that it can base a nonattainment area listing for ozone on downwind air quality or on emissions of ozone precursors, but concluded that the agency would have to develop guidelines explaining how it would implement such policies for the action to be rational. Finally, it rejected EPA's argument that the [16 ELR 10048] entire urban area should be a single nonattainment area, because the agency apparently approved designation of individual counties as separate nonattainment areas in the first place and had failed to explain why it was reasonable to so limit the area given the existence of significant upwind sources and downwind nonattainment areas. The court remanded the matter to EPA to develop a consistent rationale for its actions. The dissent argued that a rational basis for EPA's decision could be found in the record.⁷¹

The Seventh Circuit's decision has its curious aspects as well. The court went to great lengths to focus on the inconsistencies in EPA's decision. For example, the court initially placed great weight on the fact that EPA apparently approved designation of individual counties as nonattainment areas, but then admitted that EPA may not really have intended to deviate from the pattern it followed in other major cities of naming one nonattainment area comprised of all the urbanized counties. The court never mentions that EPA's Criterion No. 5 had been upheld in the Ninth Circuit in another context. There is no denying the existence of the inconsistencies in EPA's handling of ozone nonattainment area listing in the Chicago area, but as the dissent points out, a reasonable rationale can be found in EPA's actions. The majority certainly did not defer to EPA's statutory interpretation although it fervently endorsed the legal validity and functional importance of the power to ensure that nonattainment areas include both the areas with dirty air and the areas with the sources of the pollution.

The decisions in Ohio v. Ruckelshaus and Illinois Chamber of Commerce were handed down within a few days of each other and neither court had the benefit of the other's reasoning. It is quite possible that the decisions would have been the same if the courts had traded cases, because of factual differences. The two circuits have tended to see nonattainment program issues in a similar light in other contexts.⁷² As a legal matter, both cases were victories for EPA, although Illinois Chamber of Commerce may give the agency a major administrative headache.

For all its recognition of the breadth of EPA's authority under § 107(d), the Seventh Circuit seems to have given the agency a difficult task. The court essentially told EPA it could not justify Criterion No. 5 unless it incorporated downwind rural areas with NAAQS violations in urban ozone nonattainment areas. How can EPA rework its policy to both validate its refusal to allow redesignation of Kane and DuPage counties, while continuing to support decisions like that at issue in Ohio v. Ruckelshaus? The alternatives of designating nonattainment areas on the basis of downwind NAAQS violations or local emissions of ozone precursors are not helpful. Both would require new guidance; new guidance would require notice and comment and might trigger further litigation; and the statutory support for the policies cited by the court seems weak.⁷³ Although seemingly receptive to the urbanized-area rationale, which was at the heart of EPA's decision, the court asked the agency to provide theoretical support for the policy in the face of its own observations of the irrationality of EPA's actual logic. The explanations of this approach that persuaded the dissenting judge presumably would not satisfy the majority, but it is not clear what more EPA could argue. One possible rationale not discussed in the opinion is that the urbanized area approach, although leaving out the downwind rural nonattainment areas, does bring the sources of the pollution afflicting those areas within the reach of the nonattainment program controls. Whether or not the technical questions posed by the court are that easily resolved is a question beyond the scope of this comment. The fact that the court bothered to send EPA back to the drawing board, and its unwillingness to give EPA the benefit of the doubt, as recommended by the dissent, suggest that EPA may have its hands full.

Implications

Despite the possibility of administrative discomfort, Ohio v. Ruckelshaus and Illinois Chamber of Commerce cemented the EPA legal victory begun with Western Oil & Gas Association. The Ninth Circuit decision established the principle that states could extend nonattainment areas upwind to include clean air counties with large emissions. The two recent decisions established that EPA could prevent states from cutting such counties out of existing nonattainment areas where they contribute significantly to pollution in the nonattainment area. As a result of these decisions, the powerful pollution abatement tools of Part D will have a broader impact. As a bonus for EPA, the decisions include strong language about the importance of an effective nonattainment program.⁷⁴ While this result seems correct in light of the purposes of Part D, the statute's ambiguity left open the possibility of a different result.

1. 16 ELR 20013 (6th Cir. Nov. 15, 1985).

2. 16 ELR 20016 (7th Cir. Nov. 4, 1985).

3. 42 U.S.C. §§ 7401-7642, ELR STAT. 42201.

4. Many of the Clean Air Act's programs focus on six pollutants that are "emitted by numerous, widespread, and diverse sources and whose presence in the atmosphere could constitute a threat to public health and welfare." Comment, Marking Time: A Status Report on the Clean Air Act Between Deadlines, 15 ELR 10022, 10023 (1985) [hereinafter cited as Clean Air Act Comment]. Because the Air Quality Act of 1967, Pub. L. No. 90-148, 81 Stat. 485, reprinted in 1967 U.S. CODE CONG. AND ADMIN. NEWS 515, directed EPA to list and promulgate air quality criteria for such pollutants, they are commonly referred to as the "criteria pollutants." The list now includes total suspended particulates, sulfur dioxide, ozone, nitrogen oxides, carbon monoxide, and lead.

5. Environmental Quality, 1978 CEQ ANN. REP. 63.

6. The most informative recent collection of data on the health and environmental impacts of ozone pollution is ENVTL. CRITERIA AND ASSESSMENT OFFICE, ENVTL. PROTECTION AGENCY, AIR QUALITY CRITERIA FOR OZONE AND OTHER PHOTOCHEMICAL OXIDANTS (1984) (Review Draft). The five-volume criteria document is a preliminary draft subject to review and revision, but it does compile much of the available scientific data on ozone pollution.

7. See Illinois Chamber of Commerce, 16 ELR at 20017-18, for a discussion of ozone formation. The exact relationship between a given volume of emissions of ozone precursors and the amount of smog that will form is a matter of considerable scientific uncertainty, so ozone control strategies must incorporate a sizeable margin for error.

8. In contrast, most of the sulfur dioxide pollution in the atmosphere comes from a relatively small number of large industrial sources such as fossil-fuel-burning power plants, smelters, and industrial boilers.

9. Pub. L. No. 91-604, 84 Stat. 1713 (1970), reprinted in 1970 U.S. CODE CONG. & AD. NEWS 1954.

10. Clean Air Act § 109, 42 U.S.C. § 7409, ELR STAT. 42209.

11. Clean Air Act § 110, 42 U.S.C. § 7410, ELR STAT. 42210.

12. Clean Air Act § 111, 42 U.S.C. § 7411, ELR STAT. 42213.

13. Clean Air Act § 202, 42 U.S.C. § 7521, ELR STAT. 42240.

14. See supra note 5 and accompanying text.

15. Pub. L. No. 95-95, 91 Stat. 686 (1977), reprinted in 1977 U.S. CODE CONG. & AD. NEWS 685.

16. Sections 171-178, 42 U.S.C. §§ 7501-7508, ELR STAT. 42238.

17. For a more detailed description of the nonattainment program, see Clean Air Act Comment, supra note 4, at 10024-10027.

18. Briefing for the Administrator, Ozone Control Strategy (Oct. 1, 1985).

19. See, e.g., Clean Air Act Comment, supra note 4, at 10026-10029.

20. Clean Air Act § 171(2), 42 U.S.C. § 7501(2), ELR STAT. 42238.

21. Section 107(a)(2), reprinted in 1967 U.S. CODE CONG. AND ADMIN. NEWS 522.

22. See O'Fallon, Deficiencies in the Air Quality Act of 1967, 33 LAW & CONTEMP. PROBS. 275, 284 (1968).

23. § 107(a)(2), reprinted at 1967 U.S. CODE CONG. AND ADMIN. NEWS AT 522.

24. See, e.g., Jorling, The Federal Law of Air Pollution Control in FEDERAL ENVIRONMENTAL LAW 1058, 1061-62 (1974); O'Fallon, supra note 22.

25. For a discussion of the basic structure of the new program, see Clean Air Act Comment, supra note 4, at 10026.

26. Clean Air Act § 107(b), 42 U.S.C. § 7407(b), ELR STAT. 42208. States were allowed to continue the existing regions, but all other areas were to be divided into regions as well.

27. Section 107(c), 42 U.S.C. § 7407(c), ELR STAT. 42208.

28. 41 Fed. Reg. 55524 (1976).

29. Section 107(d)(1), 42 U.S.C. § 7407(d)(1), ELR STAT. 42208.

30. Section 107(d)(2), 42 U.S.C. § 7407(d)(2), ELR STAT. 42208.

31. 42 U.S.C. § 7407(d)(5), ELR STAT. 42208.

32. 42 U.S.C. § 7407(e), ELR STAT. 42208.

33. See S. REP. NO. 127, 95th Cong., 1st Sess. 21-22 (1977), reprinted in 3 CONG. RESEARCH SERVICE, 95TH CONG., 2D SESS., A LEGISLATIVE HISTORY OF THE CLEAN AIR ACT AMENDMENTS OF 1977 at 1395-1396 (1978) [hereinafter cited as 1977 LEGISLATIVE HISTORY].

34. Id.

35. See H.R. REP. NO. 294, 95th Cong., 1st Sess. 207 (1977) [hereinafter cited as 1977 HOUSE REPORT], reprinted in 4 1977 LEGISLATIVE HISTORY, supra note 33, at 2674.

36. Section 171(2), 42 U.S.C. § 7501(2), ELR STAT. 42238.

37. In Illinois Chamber of Commerce the Seventh Circuit stated in dicta that this language does not require that there be NAAQS violations within the nonattainment area, 16 ELR at 20020.

38. Inclusion of sources would seem essential for effective administration of the nonattainment area SIP requirement. Since the new § 107(e) authorized states to rewrite AQCR boundaries for that purpose, it would be anomalous if § 107(d) required states to define nonattainment areas so narrowly as to exclude sources located upwind of the areas with air quality problems.

39. 42 U.S.C. § 7407(d)(5), ELR STAT. 42208.

40. 42 U.S.C. § 7407(e)(1), ELR STAT. 42208.

41. Clean Air Act § 107(e)(2), 42 U.S.C. § 7407(e)(2), ELR STAT. 42208.

42. The House committee report noted that the 1970 amendments had eliminated a provision in the 1967 Clean Air Act allowing revision of regional boundaries due to "the delays and pointless haggling over administrative boundaries that characterized the period prior to enactment of the 1970 act." 1977 HOUSE REPORT, supra note 35, at 312, reprinted in 4 1977 LEGISLATIVE HISTORY, supra note 33, at 2779.

43. Id. The state was to hold public hearings on the redesignation and demonstrate "with reasonable specificity the anticipated effects on attainment and maintenancy [sic] of national ambient air quality standards and on strategies for prevention of significant deterioration that would result if such redesignation were approved." 1977 HOUSE REPORT, supra note 35 at 313, reprinted in 4 1977 LEGISLATIVE HISTORY, supra note 33 at 2780.

44. Revisions of boundaries for purposes other than improving the capacity of air pollution control agencies to perform authorized functions would be inconsistent with this provision and should not be approved by the Administrator. Where subdivisions of regions allow for effective air quality management, the Administrator should approve State redesignations which reduce the size of existing regions.

H.R. REP. NO. 564, 95th Cong., 1st Sess. (1977), reprinted in 3 1977 LEGISLATIVE HISTORY, supra note 33, at 503.

45. 1977 HOUSE REPORT, supra note 35, at 312, reprinted in 4 1977 LEGISLATIVE HISTORY, supra note 33, at 2779.

46. Id. at 313, reprinted in 4 1977 LEGISLATIVE HISTORY, supra note 33, at 2780.

47. For a general discussion of the issues raised by this procedure and the first decisions it spawned, see Comment, Circuit Split Over APA Notice and Comment Requirements Derails EPA's Clean Air Act Non-Attainment Designations, 9 ELR 10173 (1979).

48. 5 U.S.C. § 553, ELR STAT. 41002. The decisions were Cincinnati Gas & Electric Co. v. Costle, 632 F.2d 14, 10 ELR 20897 (6th Cir. 1980); General Motors Corp. v. Costle, 631 F.2d 466, 10 ELR 20922 (6th Cir. 1980); Columbus & Southern Ohio Electric Co. v. Costle, 638 F.2d 910, 10 ELR 20895 (6th Cir. 1980); Republic Steel Corp. v. Costle, 621 F.2d 797, 10 ELR 20287 (6th Cir. 1980); United States Steel Corp. v. Environmental Protection Agency, 605 F.2d 283, 9 ELR 20560 (7th Cir. 1979), cert. denied, 444 U.S. 1035, 10 ELR 20081 (1980) (dissent by Rehnquist, White, Powell would grant certiorari to resolve split in circuits).

49. United States Steel Corp. v. Environmental Protection Agency, 649 F.2d 572, 11 ELR 20621 (8th Cir. 1981); Western Oil & Gas Association v. Environmental Protection Agency, 633 F.2d 803, 10 ELR 20985 (9th Cir. 1980); New Jersey Department of Environmental Protection v. Environmental Protection Agency, 626 F.2d 1038, 10 ELR 20963 (D.C. Cir. 1980); City of Waco v. Environmental Protection Agency, 620 F.2d 20545, 10 ELR 20545 (5th Cir. 1980); United States Steel Corp. v. Environmental Protection Agency, 595 F.2d 207, 9 ELR 20311 (5th Cir. 1979); Sharon Steel Corp. v. Environmental Protection Agency, 597 F.2d 377, 9 ELR 20316 (3d Cir. 1979).

50. 605 F.2d 283, 9 ELR 20560 (7th Cir. 1979), cert. denied, 444 U.S. 1035, 10 ELR 20081 (1980) (dissent by Rehnquist, White, Powell would grant certiorari to resolve split in circuits).

51. 633 F.2d 803, 10 ELR 20985 (9th Cir. 1980).

52. 46 Fed. Reg. 55724 (1981).

53. Id.

54. 40 C.F.R. § 81.300 (1978).

55. Bethlehem Steel Corp. v. United States Environmental Protection Agency, 723 F.2d 1303, 14 ELR 20090 (7th Cir. 1983).

56. It seems unlikely that the court would have come to this conclusion on deference had the decision not been reached before the Supreme Court decided Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc., 104 S. Ct. 2778, 14 ELR 20507 (1984) (absent clear direction in statutory language or legislative history, courts must defer to EPA interpretation of Clean Air Act).

57. The decision also suggests that for the federal government, the nonattainment program of Part D is a one-shot weapon, applicable only to those areas not in attainment as of the promulgation of the original lists. If a state chose not to reclassify an area demonstrated by monitoring to be nonattainment from unclassifiable to nonattainment, EPA could not change the area's classification and Part D would not apply. Although limited on its facts to changing the status of unclassifiable areas, the court's interpretation of § 107(d)(5) would seem to apply equally to attainment areas that slipped over the air quality line. Arguably, since the trigger of the nonattainment program would not be pulled, the only recourse would be to the tamer tools of § 110(a)(2)(H)(ii). If the state failed to submit an attainment SIP revision, the construction ban of § 110(a)(2)(I) would kick in. At first blush, this appears to be a significant loophole, but it probably makes sense. The PSD program is available to insure against backsliding. Since classification as a nonattainment area imposed such onerous planning burdens and such severe potential sanctions on states, EPA should not be allowed to thrust a state into that jeopardy long after the attainment deadline clock had begun to tick.

58. For a case highlighting both the unpopularity of inspection and maintenance and the magnitude of potential sanctions, see Delaware Valley Citizens' Council for Clean Air v. Pennsylvania, 533 F. Supp. 869, 12 ELR 20191 (E.D. Pa. 1982), aff'd, 678 F.2d 470, 12 ELR 20631 (3d Cir. 1982).

59. See, e.g., 43 Fed. Reg. 45997 (1978).

60. 43 Fed. Reg. 8962 (1978).

61. 49 Fed. Reg. 24130 (1984).

62. 767 F.2d 603, 15 ELR 20760 (9th Cir. 1985).

63. Id. at 604, 15 ELR at 20761.

64. 16 ELR 20013 (6th Cir. Nov. 15, 1985).

65. 104 S. Ct. 2778, 14 ELR 20507 (1984).

66. One judge wrote a concurring opinion childing EPA for not modelling the impact of the Lorain County emissions so as to provide a more solid factual base for the court. 16 ELR at 20016.

67. Supra note 60.

68. See supra notes 42-46 and accompanying text.

69. 16 ELR 20016 (7th Cir. Nov. 4, 1985).

70. The Seventh Circuit did not mention Western Oil & Gas Association.

71. 16 ELR at 20021.

72. The Sixth and Seventh Circuits were the only courts of appeals to uphold EPA's expedited procedure for promulgating the original lists of nonattainment areas, supra note 48.

73. See supra note 37 and accompanying text.

74. See, e.g., Illinois Chamber of Commerce, 16 ELR at 20021.

Clearly the outcome of the appeal does make a difference; for one thing, certain controls apply to nonattainment areas by operation of the statute. It is essential to the success of the Clean Air Act that these controls apply in the appropriate areas, and we refuse to construe the law in such a way that the controls will apply to areas that suffer from but do not produce ozone pollution but not to areas that produce but do not suffer from such pollution.