USCA Case #18-1203 Document #1787456 Filed: 05/10/2019 Page 1 of 92 NOT YET SCHEDULED FOR ORAL ARGUMENT Nos. 18-1203, 18-1205, 18-1206, 18-1208, 18-1212, 18-1214 U.S. COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT Clean Wisconsin et al, Petitioners, v. U.S. Environmental Protection Agency and Andrew R. Wheeler, Administrator, U.S. Environmental Protection Agency, Respondents, and BCCA Appeal Group et al, Intervenors. On Petition for Review of a Final Agency Action of the U.S. Environmental Protection Agency EPA’s Proof Answering Brief Jeffrey Bossert Clark Assistant Attorney General Of counsel Seth Buchsbaum U.S. Environmental Protection Agency Office of General Counsel Washington, D.C. Sue Chen Tsuki Hoshijima U.S. Department of Justice Environment & Natural Resources Div. Environmental Defense Section P.O. Box 7611 Washington, D.C. 20044 202.305.0283 sue.chen@usdoj.gov USCA Case #18-1203 Document #1787456 Filed: 05/10/2019 Page 2 of 92 CERTIFICATE AS TO PARTIES, RULINGS, AND RELATED CASES As required by D.C. Circuit Rule 28(a)(1), EPA certifies: A. Parties and amici All parties appearing here are listed in Petitioners’ Joint Opening Brief. New York, Connecticut, Delaware, Maine, Maryland, Minnesota, New Jersey, Oregon, Rhode Island, Vermont, Washington, Massachusetts, and the District of Columbia filed a brief as amici curiae on February 1, 2019. American Petroleum Institute notified the Court on April 8 of its intent to file a brief as amicus curiae. The Colorado Oil & Gas Association, Colorado Association of Commerce and Industry (dba the Colorado Chamber of Commerce), and the Colorado Farm Bureau did the same thing on May 10. B. Rulings under review Under review is EPA’s final rule, “Additional Air Quality Designations for the 2015 Ozone National Ambient Air Quality Standards,” 83 Fed. Reg. 25,776 (June 4, 2018). C. Related cases These consolidated cases were not previously before this or any other court. /s/ Sue Chen Sue Chen Counsel for Respondents ii USCA Case #18-1203 Document #1787456 Filed: 05/10/2019 Page 3 of 92 TABLE OF CONTENTS Certificate as to Parties, Rulings, and Related Cases ............................................... ii Table of Authorities ...................................................................................................v Glossary......................................................................................................................x Introduction ................................................................................................................1 Statement of Jurisdiction............................................................................................2 Issues Presented .........................................................................................................2 Statutes and Regulations ............................................................................................3 Statement of the Case.................................................................................................4 I. The designation process under the Clean Air Act.................................4 II. Designating for the 2015 ozone standards. ...........................................6 III. A primer on how EPA draws nonattainment boundaries......................7 Standard of Review ..................................................................................................12 Summary of Argument ............................................................................................13 Argument..................................................................................................................14 I. Petitioners have not shown standing for certain designations. ...........14 II. EPA reasonably designated nonattainment the half of Lake County, Indiana that generates almost all county emissions. .............18 III. EPA reasonably designated the St. Louis nonattainment area. ...........20 A. EPA revised its initial analysis of Jefferson County, Missouri after seeing updated data that shows improved air quality. .................................................................................20 iii USCA Case #18-1203 B. Document #1787456 Filed: 05/10/2019 Page 4 of 92 1. Petitioners ignore the updated data.................................22 2. EPA treated Jefferson and Franklin Counties differently because they are different. ............................23 3. Petitioners misconstrue EPA’s holistic analysis. ...........24 EPA designated Monroe County, Illinois in light of updated data. .............................................................................26 IV. Relying on Wisconsin’s analysis, EPA properly designated part of Sheboygan County nonattainment. .................................................29 V. The location of Door County, Wisconsin’s monitor and other factors support designating part of the county nonattainment. ...........37 VI. EPA reasonably concluded that Ottawa County, Michigan was not part of a “nearby” area that had to be analyzed for contribution. ........................................................................................42 A. EPA acted well within its discretion to reject a study that used stale data and offered incomplete analysis. ......................46 B. Petitioners’ other contribution arguments are meritless. ..........47 VII. Unique topography and other factors justify excluding northern Weld County from the Denver nonattainment area. ...........................49 A. EPA applied the correct contribution analysis..........................52 B. Petitioners, not EPA, distort local topography. ........................54 C. Petitioners’ other arguments are meritless. ...............................57 VIII. The Court should remand the remaining designations without vacatur. ................................................................................................59 Conclusion ...............................................................................................................63 Certificates of Compliance and Service...................................................................64 iv USCA Case #18-1203 Document #1787456 Filed: 05/10/2019 Page 5 of 92 TABLE OF AUTHORITIES Cases Air Transport Ass’n of Am. v. Civil Aeronautics Bd., 732 F.2d 219 (D.C. Cir. 1984) .............................................................................28 Alfred L. Snapp & Sons, Inc. v. Puerto Rico ex rel Barez, 458 U.S. 592 (1982) .............................................................................................16 Allied-Signal, Inc. v. U.S. Nuclear Regulatory Comm’n, 988 F.2d 146 (D.C. Cir. 1993) .............................................................................61 Am. Petroleum Inst. v. Costle, 665 F.2d 1176 (D.C. Cir. 1981) .............................................................................6 ATK Launch Sys., Inc. v. EPA, 669 F.3d 330 (D.C. Cir. 2012) ...............................................................................8 B.J. Alan Co. v. Interstate Commerce Comm’n, 897 F.2d 561 (D.C. Cir. 1990) ............................................................................ 60 Bd. of Regents of Univ. of Wash. v. EPA, 86 F.3d 1214 (D.C. Cir. 1996) ...................................................................... 36, 45 *Catawba Cty., N.C. v. EPA, 571 F.3d 20 (D.C. Cir. 2009) ...................................... 8, 12, 13, 22, 28, 29, 53, 58 City of Boston Delegation v. FERC, 897 F.3d 241 (D.C. Cir. 2018) .............................................................................14 Ctr. for Biological Diversity v. EPA, 861 F.3d 174 (D.C. Cir. 2017) ...................................................................... 61, 62 Ctr. for Biological Diversity v. U.S. Dep’t of Interior, 563 F.3d 466 (D.C. Cir. 2009) ...................................................................... 16, 17 *Authorities chiefly relied upon are marked with an asterisk. v USCA Case #18-1203 Document #1787456 Filed: 05/10/2019 Page 6 of 92 EPA v. EME Homer City Generation, LP, 572 U.S. 489 (2014) .............................................................................................53 Ethyl Corp. v. Browner, 989 F.2d 522 (D.C. Cir. 1993) .............................................................................60 Fed. Power Comm’n v. Idaho Power Co., 344 U.S. 17 (1952) ...............................................................................................62 Georgia v. Tenn. Copper Co., 206 U.S. 230 (U.S. 1907) .....................................................................................16 In re Ozone Designation Litig., 286 F. Supp. 3d 1082 (N.D. Cal. 2018) .................................................................7 Limnia, Inc. v. U.S. Dep’t of Energy, 857 F.3d 379 (D.C. Cir. 2017) .............................................................................59 Lujan v. Defenders of Wildlife, 504 U.S. 555 (1992) .............................................................................................14 Massachusetts v. EPA, 549 U.S. 497 (2007) ............................................................................................16 *Miss. Comm’n on Envtl. Quality v. EPA, 790 F.3d 138 (D.C. Cir. 2015) ................................... 1, 5, 6, 8, 12, 20, 22, 24, 29, 37, 39, 42, 46, 53, 58, 61 Nat’l Ass’n of Clean Air Agencies v. EPA, 489 F.3d 1221 (D.C. Cir. 2007) .................................................................... 40, 57 North Carolina v. EPA, 531 F.3d 896 (D.C. Cir. 2008) .............................................................................54 Palisades Gen. Hosp. v. Leavitt, 426 F.3d 400 (D.C. Cir. 2005) .............................................................................62 Thompson v. Clark, 741 F.2d 401 (D.C. Cir. 1984) .............................................................................49 vi USCA Case #18-1203 Document #1787456 Filed: 05/10/2019 Page 7 of 92 Statutes 42 U.S.C. §§ 7401-7671q ..........................................................................................4 42 U.S.C. § 7407(d) .................................................................................. 5, 6, 49, 54 42 U.S.C. § 7407(d)(1).............................................................................................28 42 U.S.C. § 7407(d)(1)(A) .........................................................................................5 42 U.S.C. § 7407(d)(1)(A)(i) .............................................................. 4, 7, 15, 42, 45 42 U.S.C. § 7407(d)(1)(A)(ii) ....................................................................................4 42 U.S.C. § 7407(d)(1)(A)(iii) ...................................................................................4 42 U.S.C. § 7407(d)(1)(B)(i) .....................................................................................7 42 U.S.C. § 7407(d)(1)(B)(ii) ........................................................... 5, 27, 28, 36, 60 42 U.S.C. § 7407(d)(2)(B) .........................................................................................5 42 U.S.C. § 7408 ........................................................................................................4 42 U.S.C. § 7409 ........................................................................................................4 42 U.S.C. § 7409(d) ...................................................................................................4 42 U.S.C. § 7410(a) ...................................................................................................5 42 U.S.C. § 7410(a)(2)(B) .........................................................................................4 42 U.S.C. § 7410(a)(2)(D)(i) ...................................................................................53 42 U.S.C. § 7410(a)(2)(D)(i)(I) ...............................................................................53 42 U.S.C. § 7471 ........................................................................................................5 42 U.S.C. §§ 7502(c)(1) .............................................................................................5 vii USCA Case #18-1203 Document #1787456 Filed: 05/10/2019 Page 8 of 92 42 U.S.C. §§ 7502(c)(5) .............................................................................................5 42 U.S.C. §§ 7506(c) ...............................................................................................62 42 U.S.C. § 7511(a)(1) .............................................................................................62 42 U.S.C. § 7511a ....................................................................................................54 42 U.S.C. § 7511a(a)(2)(C)..................................................................................5, 62 42 U.S.C. § 7511a(a)(3) ...........................................................................................62 42 U.S.C. § 7511a(h) ...............................................................................................54 42 U.S.C. § 7511a(h)(2) ...........................................................................................54 42 U.S.C. § 7607(b)(1)...............................................................................................2 42 U.S.C. § 7607(d)(1)...............................................................................................2 42 U.S.C. § 7607(d)(7)(B) .........................................................................................2 42 U.S.C. § 7619(a)(2) ...............................................................................................4 Code of Federal Regulations 40 C.F.R. pt. 50 ..........................................................................................................9 40 C.F.R. § 50.19 .......................................................................................................4 40 C.F.R. § 51.1303 .................................................................................................62 40 C.F.R. pt. 58 ..........................................................................................................4 viii USCA Case #18-1203 Document #1787456 Filed: 05/10/2019 Page 9 of 92 Federal Registers 56 Fed. Reg. 56,694 (Nov. 6, 1991) ........................................................................45 69 Fed. Reg. 23,858 (Apr. 30. 2004) ................................................................ 44, 45 80 Fed. Reg. 65,292 (Oct. 26, 2015)....................................................................6, 10 82 Fed. Reg. 54,232 (Nov. 16, 2017).....................................................................6, 7 82 Fed. Reg. 9142 (Feb. 3, 2017) ............................................................................53 83 Fed. Reg. 25,776 (June 4, 2018) ................................................................ 6, 7, 42 83 Fed. Reg. 35,136 (July 25, 2018) ..........................................................................7 Rules D.C. Cir. R. 15(c)(2) ......................................................................................... 14, 17 D.C. Cir. R. 28(a)(7) ......................................................................................... 14, 17 ix USCA Case #18-1203 Document #1787456 Filed: 05/10/2019 Page 10 of 92 GLOSSARY Br. Petitioners’ Joint Opening Brief EPA U.S. Environmental Protection Agency Guidance Memorandum on Area Designations for the 2015 Ozone National Ambient Air Quality Standards (Feb. 25, 2016) JA Joint Appendix NOx Nitrogen oxides Response to Comments Responses to Significant Comments on the State and Tribal Designation Recommendations for the 2015 Ozone National Ambient Air Quality Standards (Apr. 2018) VOC Volatile organic compounds x USCA Case #18-1203 Document #1787456 Filed: 05/10/2019 Page 11 of 92 INTRODUCTION Perhaps no agency action commands more judicial deference than EPA’s decisions about whether to designate an area as attaining federal air-quality standards. Those decisions, made under the Clean Air Act, compel this Court’s “extreme” deference for good reason. Miss. Comm’n on Envtl. Quality v. EPA, 790 F.3d 138, 150 (D.C. Cir. 2015) (internal quotation marks omitted). They call on EPA’s technical expertise not only in the complex science of pollutant formation (here, ozone), but also in the equally complex science of pollutant transport and dispersion. And that is not all. Faced with voluminous emissions data, sophisticated modeling, and other information, EPA has to decide, for each area it designates, exactly where to draw the boundary between attainment and nonattainment. That in turn requires the agency to analyze all the evidence holistically, often making tough judgment calls about where the weight of that evidence falls. Recognizing that Congress entrusted these technical decisions to EPA, this Court has long reviewed designations with the greatest deference. To prevail, a challenger must show that the agency weighed the evidence inconsistently or so erroneously that its conclusions are arbitrary and capricious. 1 USCA Case #18-1203 Document #1787456 Filed: 05/10/2019 Page 12 of 92 Here, environmental groups and state and local governments petition for review of a smattering of EPA’s ozone designations across the Midwest and Southwest. Their collective bottom line is that EPA should have designated larger nonattainment areas. But Petitioners have not shown standing for all their challenges. Even if they have standing, because they focus on only a few aspects of EPA’s holistic analysis, Petitioners cannot show that the agency misjudged the overall weight of the evidence. The Court should deny the petitions. STATEMENT OF JURISDICTION As Argument Section I shows, no Petitioner has established standing for seven of the challenged designations. If, however, this Court concludes that Petitioners have standing, then it would have jurisdiction to review the petitions under 42 U.S.C. § 7607(b)(1).1 ISSUES PRESENTED 1. Some Petitioners base standing solely on members who spend time in areas that meet the ozone standards. Have they shown an injury that is traceable to EPA and redressable? 1 Petitioners are wrong that 42 U.S.C. § 7607(d)(7)(B) also gives the Court jurisdiction. Br. at 1. That provision addresses the scope of judicial review and administrative reconsideration of actions subject to Section 7607(d). It does not apply here because (1) designations are not among the enumerated actions subject to Section 7607(d), and (2) the Administrator did not determine that Section 7607(d) applies to designations. See 42 U.S.C. § 7607(d)(1). 2 USCA Case #18-1203 Document #1787456 Filed: 05/10/2019 Page 13 of 92 2. Only the United States can represent its citizens in federal matters. The state and local governments challenge EPA’s designations in the name of protecting their residents. Do these Petitioners have standing? 3. To determine whether an area attains ozone standards, EPA uses a holistic, weight-of-the-evidence analysis. Because that analysis calls on the agency’s technical expertise, this Court reviews EPA’s conclusions with extreme deference. The question on the merits is whether EPA reasonably weighed the evidence in designating these counties: • • • • • • • Lake County, Indiana Jefferson County, Missouri Monroe County, Illinois Sheboygan County, Wisconsin Door County, Wisconsin Ottawa County, Michigan Weld County, Colorado2 STATUTES AND REGULATIONS Pertinent statutes and regulations not included in the addendum to Petitioners’ brief are in the addendum at the end of this brief. 2 Petitioners also challenge other designations for which EPA seeks remand without vacatur. See infra Argument § VIII. 3 USCA Case #18-1203 Document #1787456 Filed: 05/10/2019 Page 14 of 92 STATEMENT OF THE CASE I. The designation process under the Clean Air Act The Clean Air Act, 42 U.S.C. §§ 7401-7671q, creates a comprehensive national program to address air pollution. To that end, the Act directs EPA to set national ambient air-quality standards for pollutants that may reasonably be anticipated to endanger the public. 42 U.S.C. §§ 7408-09. Ozone is one such pollutant. It has both a primary standard (set at a level to protect public health) and a secondary standard (set at a level to protect public welfare). Id. § 7409(b); 40 C.F.R. § 50.19. EPA periodically revises its standards to ensure that they give the necessary protection. 42 U.S.C. § 7409(d). What happens next—determining whether air quality across the country meets those standards—is what this case is all about. In making that determination, EPA generally reviews data from a national network of state and local air monitors. Id. §§ 7619(a)(2), 7410(a)(2)(B); 40 C.F.R. pt. 58. An area that does not meet the standards, or that “contributes” to a violation in a “nearby” area, is designated “nonattainment.” 42 U.S.C. § 7407(d)(1)(A)(i). An area that meets the standards is designated “attainment.” Id. § 7407(d)(1)(A)(ii). And an area “that cannot be classified on the basis of available information” is designated “unclassifiable.” Id. § 7407(d)(1)(A)(iii). 4 USCA Case #18-1203 Document #1787456 Filed: 05/10/2019 Page 15 of 92 The Act prescribes a process for EPA to make designations. Id. § 7407(d). That process, true to the Act’s cooperative-federalism ethos, is a collaborative effort between EPA and states. Miss. Comm’n, 790 F.3d at 145, 156. It begins with states recommending designations for areas within their borders. 42 U.S.C. § 7407(d)(1)(A). EPA may modify the recommendations as it “deems necessary,” but must give the state 120 days to show that a proposed modification is “inappropriate.” Id. § 7407(d)(1)(B)(ii). In addition, Section 7407(d)(2)(B) of the Act excludes the designation process from the Administrative Procedure Act’s public-comment requirement. But nothing in that provision “shall be construed as precluding such public notice and comment whenever possible.” Id. § 7407(d)(2)(B). Under the Clean Air Act, all states must adopt (with EPA’s approval) implementation plans to attain, maintain, and enforce the standards in their areas. Id. § 7410(a). For attainment and unclassifiable areas, plans must include measures to, among other things, “prevent significant deterioration of air quality.” Id. § 7471. “For nonattainment areas, however, the Act imposes more stringent requirements,” Miss. Comm’n, 790 F.3d at 146, such as deadlines to reach attainment and certain permitting requirements for the area’s new or modified major stationary sources. 42 U.S.C. §§ 7502(c)(1) & (5), 7511a(a)(2)(C). 5 USCA Case #18-1203 II. Document #1787456 Filed: 05/10/2019 Page 16 of 92 Designating for the 2015 ozone standards. Though “an essential presence in the atmosphere’s stratosphere layer,” ozone is harmful at ground level. Miss. Comm’n, 790 F.3d at 147; see 83 Fed. Reg. 25,776, 25,777/3 (June 4, 2018). There, it can cause respiratory problems in humans and damage vegetation. 83 Fed. Reg. at 25,778/1. Ground-level ozone is not typically emitted directly into the air. Am. Petroleum Inst. v. Costle, 665 F.2d 1176, 1181 (D.C. Cir. 1981). It forms when ozone precursors—nitrogen oxides (NOx) and volatile organic compounds (VOC)—react in the atmosphere with sunlight. 83 Fed. Reg. at 25,777/3. Wind can carry ozone and its precursors far away, complicating the regulation of ozone pollution. Id. In 2015 EPA made the primary and secondary ozone standards more stringent, lowering their levels to 0.070 parts per million. 80 Fed. Reg. 65,292 (Oct. 26, 2015).3 That revision triggered EPA’s duty to designate areas for those standards. 42 U.S.C. § 7407(d). After states submitted recommendations, in late 2017 EPA finalized designations for some 85 percent of the country. 82 Fed. Reg. 54,232 (Nov. 16, 2017); 83 Fed. Reg. at 25,779/1. For most of the remaining 3 A petition for review of those standards is pending in this Court. See Murray Energy Corp. v. EPA, No. 15-1385 (consolidated with Nos. 15-1392, 15-1490, 151491, and 15-1494). 6 USCA Case #18-1203 Document #1787456 Filed: 05/10/2019 Page 17 of 92 areas, including all those disputed here, EPA finalized designations in April 2018.4 83 Fed. Reg. at 25,783/3. In this process, EPA gave states 120 days to show why a proposed modification is inappropriate. Id. at 25,779/2. The agency (though not required to) also gave the public 30 days to comment. Id. All told, EPA issued over 3000 designations for the 2015 ozone standards. Id. at 25,779/1-2; 82 Fed. Reg. at 54,232; 83 Fed. Reg. 35,136 (July 25, 2018). What is more, the agency had to make these designations as expeditiously as possible to meet statutory and judicial deadlines. 42 U.S.C. § 7407(d)(1)(B)(i); In re Ozone Designation Litig., 286 F. Supp. 3d 1082, 1091 (N.D. Cal. 2018). III. A primer on how EPA draws nonattainment boundaries As explained earlier, a nonattainment area is one that either (1) violates the standard, or (2) “contributes” to a “nearby” area’s violation. 42 U.S.C. § 7407(d)(1)(A)(i). Because ozone and its precursors are pervasive and easily blown from place to place, deciding where nonattainment boundaries lie is a difficult task—both in the technical demands of the analysis and in the judgment calls about exactly where to draw the boundary. Guidance at 5, JA___. 4 About three months later, EPA finalized designations for the rest of the remaining areas (eight counties in the San Antonio area). 83 Fed. Reg. 35,136 (July 25, 2018). Petitioner Sierra Club and Intervenor Texas Commission on Environmental Quality are currently challenging those designations in the Fifth Circuit. See State of Texas v. EPA, No. 18-60606 (5th Cir.); Sierra Club v. EPA, No. 18-1262 (D.C. Cir.) (transferring case to Fifth Circuit). 7 USCA Case #18-1203 Document #1787456 Filed: 05/10/2019 Page 18 of 92 To delineate nonattainment areas, EPA has long used a holistic, weight-ofthe-evidence analysis. Id., Att. 3 at 3-11, JA___-___; see Miss. Comm’n, 790 F.3d at 149-50 (ozone) (approving this analysis); see also Catawba Cty., N.C. v. EPA, 571 F.3d 20, 39 (D.C. Cir. 2009) (particulate matter); ATK Launch Sys., Inc. v. EPA, 669 F.3d 330, 336 (D.C. Cir. 2012) (same). For each violation, EPA determines its area of analysis and applies the holistic analysis to that area. The area of analysis generally consists of a federally delineated statistical area that spans one or more counties. Guidance at 3-4, JA___-___. In regulatory parlance, the statistical area is known as the Combined Statistical Area or the Core Based Statistical Area, as the case may be. Id. at 5, JA___. They are delineated by the Office of Management and Budget based on size, and economic and social integration. Id. at 5-6, JA___-___; Miss. Comm’n, 790 F.3d at 147 & n.3. A case-specific analysis may support designating as nonattainment anything from part of a county to the entire area of analysis. Guidance, Att. 3 at 7, JA___. The key is to include areas that violate the standard and nearby areas that contribute to the violation. EPA’s holistic analysis considers five factors when examining state recommendations:5 5 EPA can also “identify and evaluate other relevant information or circumstances specific to a particular area . . . .” Guidance at 6, JA___. 8 USCA Case #18-1203 Document #1787456 Filed: 05/10/2019 Page 19 of 92 1. Air-quality data. Whether an area violates a standard depends on data from air monitors—or, more precisely, on a statistic calculated from that data, called the design value. Monitors record hourly ozone concentrations over the course of the day. For the ozone standards, to get a monitor’s design value, you take each year’s fourth-highest daily maximum 8-hour concentration, and average them over three consecutive years. See 40 C.F.R. pt. 50, App. U (detailing this process, including how to calculate the daily maximum concentration). Violation of a standard occurs if the design value is higher than the standard. If the daily maximum concentration itself is higher than the standard, that is called an exceedance. In designating for the 2015 standards, the agency reviewed the most recent three years of quality-assured, certified monitoring data. Guidance, Att. 3 at 5, JA___. This typically meant 2014-2016 data, though sometimes states certified their 2017 monitoring data in time for the agency to designate using 2015-2017 data. See id.; St. Louis, MO-IL Nonattainment Area: Final Area Designations for the 2015 Ozone National Ambient Air Quality Standards Technical Support Document (St. Louis Final Designations) at 7, JA___. 2. Emissions and related metrics. NOx and VOC emissions are “important factors” in assessing an area’s potential contribution to nearby violations. Guidance, Att. 3 at 5, JA___. EPA thus considers an area’s total emissions and 9 USCA Case #18-1203 Document #1787456 Filed: 05/10/2019 Page 20 of 92 locations of stationary point sources such as power plants. Id. Because mobile sources like cars also emit NOx and VOC, an area’s traffic volume and commuting patterns are likewise part of the analysis. Id. at 6-7, JA___-___. So is data on population and urbanization, which can give context to the area’s emissions data. Id. at 6, JA___. 6 3. Meteorology. Because wind and other weather conditions can transport emissions elsewhere, meteorology can help identify potential contributors. Id. at 7, JA___. The main analytical tool EPA used here is a sophisticated model 7 that maps the 24-hour trajectories of air parcels at various altitudes before they reach a violating monitor on days when it records an exceedance. Id. at 7-10, JA___-___. In other words, for each exceedance day at a violating monitor, the model shows where wind was coming from. Importantly, the model does not show whether the wind encountered and transported any emissions to the monitor. See id. at 8, JA___ (cautioning that trajectories “alone do not conclusively indicate 6 For simplicity, the rest of this brief uses “emissions” to mean the precursors NOx and VOC, as well as any ozone formed from them. Note too that emissions here are described as a percentage of anthropogenic emissions in the relevant areas. But many areas also have significant non-anthropogenic emissions. See 80 Fed. Reg. at 65,300 (“[ozone] concentrations in some locations in the U.S. on some days can be substantially influenced by sources”—including “natural sources”—“that cannot be addressed by domestic control measures.”). 7 Or, to give its full name, the HYbrid Single-Particle Lagrangian Integrated Trajectory modeling system, known as HYSPLIT. Guidance, Att. 3 at 7, JA___. 10 USCA Case #18-1203 Document #1787456 Filed: 05/10/2019 Page 21 of 92 contribution”). That is why EPA has to consider modeled trajectories together with other factors when analyzing an area for contribution. 4. Geography and topography. The lay of the land—mountains, lakes, valleys, and the like—may affect wind patterns and emissions transport. Id. at 10, JA___. An area’s physical features can thus inform EPA’s contribution analysis. 5. Jurisdictional boundaries. Existing jurisdictional boundaries, like county lines and past nonattainment areas, can help EPA draw nonattainment areas in a way that allows states to enforce their implementation plans. Id. If existing boundaries are inadequate, EPA can use other markers such as geographic coordinates. Id. * * * This being a holistic analysis, each designation is intensely fact-driven. No one factor is dispositive and, depending on the particulars of each case, some factors may be more salient than others. Ultimately, the holistic approach requires EPA to consider a wide range of information and then decide where the weight of the evidence falls. 8 8 EPA has made a number of statements about its general approach to designations. See, e.g., Response to Comments at 6, JA___ (“The phenomenon of ozone transport must be balanced against the need to have smaller areas that can focus on local control measures.”); id. at 72, JA___ (“the boundaries for a nonattainment area of the 2015 ozone [standards] need not be identical to the boundaries for the 2008 ozone [standards] and [in some cases] EPA has agreed with state Cont. 11 USCA Case #18-1203 Document #1787456 Filed: 05/10/2019 Page 22 of 92 STANDARD OF REVIEW This Court reviews EPA’s designations “under the same standard we use in reviewing a challenge brought under the Administrative Procedure Act[.]” Miss. Comm’n, 790 F.3d at 150. That is, the Court can set aside designations only if they are arbitrary or capricious. Id. It gives “an extreme degree of deference” to EPA’s evaluation of scientific data within its area of expertise, especially when, as here, the agency is administering complicated provisions of the Clean Air Act. Id. (internal quotation marks omitted). So the question for the Court is not whether it or anyone else “[l]ooking at the same data . . . would simply reach a different conclusion.” Id. at 162. It is whether EPA “considered all relevant factors and articulated a rational connection between the facts found and the choice made.” Id. at 150 (internal quotation marks omitted). The Court will “uphold a decision of less than ideal clarity if the agency’s path may reasonably be discerned.” Catawba, 571 F.3d at 50 (internal quotation marks omitted). In addition, this Court has long upheld EPA’s “holistic, multi-factor, weightof-the-evidence test for determining whether a given area contributes to a . . . violation.” Miss. Comm’n, 790 F.3d at 150. EPA acts arbitrarily if it applies the holistic analysis “inconsistently, resulting in similar counties being treated recommendations to designate a different, typically smaller, area as nonattainment for the 2015 ozone [standards].”). 12 USCA Case #18-1203 Document #1787456 Filed: 05/10/2019 Page 23 of 92 dissimilarly,” or “so erroneously in a particular case that it could not have reasonably” reached the conclusion it did. Catawba, 571 F.3d at 40. SUMMARY OF ARGUMENT This Court must have jurisdiction to review each challenged designation. Because no Petitioner has shown standing for some of those designations, the Court is powerless to review them. On the merits, EPA properly made the seven designations briefed here. In each holistic analysis, EPA considered the relevant factors, weighed all the evidence, and reasonably delineated the nonattainment area. Petitioners have not shown, as they must, that EPA applied its holistic analysis either inconsistently or erroneously. That is because when not simply misreading the record, Petitioners focus on just a few pieces of evidence to the exclusion of the rest. It is a recipe for failure when the question before the Court is whether EPA reasonably weighed all the evidence. At best, Petitioners have shown only that they disagree with EPA’s conclusions. But that is no reason for this Court to second-guess EPA’s judgments on the technical matters Congress left to the agency. The Court should deny the petitions for the seven designations. It should remand the remaining disputed designations to EPA without vacatur. 13 USCA Case #18-1203 Document #1787456 Filed: 05/10/2019 Page 24 of 92 ARGUMENT I. Petitioners have not shown standing for certain designations. Article III of the Constitution “limits the jurisdiction of federal courts to ‘Cases’ and “Controversies’ . . . .” Lujan v. Defenders of Wildlife, 504 U.S. 555, 559 (1992). For that reason, Petitioners must establish standing for each designation they challenge. See City of Boston Delegation v. FERC, 897 F.3d 241, 250 (D.C. Cir. 2018) (requiring standing for each claim). To do so, Petitioners must show an injury in fact that is both fairly traceable to EPA’s designation and redressable. See Lujan, 504 U.S. at 560-61. For those who are not the object of the challenged designations, “standing is not precluded, but it is ordinarily substantially more difficult to establish.” Id. at 562 (internal quotation marks omitted). Because their standing is not obvious from the record, Petitioners must show standing in their docketing statements and opening brief. D.C. Cir. R. 15(c)(2), 28(a)(7). No Petitioner has done so for El Paso County, Texas; Door County, Wisconsin; Kenosha County, Wisconsin; Lake County, Indiana; McHenry County, Illinois; Monroe County, Illinois; and Porter County, Indiana. Petitioners’ failure is twofold. First, the environmental groups cannot establish standing by relying on members in areas that comply with the ozone standards. See Br. at 44 (discussing 14 USCA Case #18-1203 Document #1787456 Filed: 05/10/2019 Page 25 of 92 members in areas that “EPA failed to designate nonattainment”). Under the Clean Air Act, a nonattainment area need not itself violate the standards; it can also be designated as such if it contributes to a nearby violation. 42 U.S.C. § 7407(d)(1)(A)(i). Many allegedly contributing areas here have monitors that meet the ozone standards. See, e.g., Chicago, IL-IN-WI Nonattainment Area: Final Area Designations for the 2015 Ozone National Ambient Air Quality Standards Technical Support Document (Chicago Final Designations) at 9, JA___ (Lake, McHenry, and Porter). Yet Petitioners do not explain how spending time in those complying areas could expose their members to the “high levels of ozone” that they say harm them. Br. at 45.9 In these instances, then, Petitioners have not shown an injury, much less one that is traceable to EPA’s action and redressable. Second, the state and local governments have no parens patriae standing. They claim standing on account of harm not to their own interests, but to their residents’. See id. at 46 (“Illinois and Chicago residents will be adversely impacted by ozone and ozone precursors emitted in areas that EPA improperly designated attainment.”); id. at 47 (“The City of Sunland Park . . . will suffer 9 The environmental groups also mention members who are injured from spending time in “parts of the country neighboring” areas that EPA did not designate nonattainment. Br. at 44. It is not at all clear whether the quoted language means (1) allegedly contributing areas, or (2) places that abut areas that should have been designated nonattainment (whether as violators or contributors). Either way, Petitioners have not shown how being in these “neighboring” areas could expose their members to “high levels of ozone.” Id. at 45. 15 USCA Case #18-1203 Document #1787456 Filed: 05/10/2019 Page 26 of 92 concrete injuries as a result of EPA’s failure to adequately protect the City’s residents against ozone pollution.”). That theory runs smack into the “prohibit[ion]” against “a sovereign . . . bringing an action to protect its citizens from the operation of federal statutes.” Ctr. for Biological Diversity v. U.S. Dep’t of Interior, 563 F.3d 466, 477 (D.C. Cir. 2009) (citing Massachusetts v. EPA, 549 U.S. 497, 520 n.17 (2007) (majority op.), id. at 539 (Roberts, C.J., dissenting)); see Alfred L. Snapp & Sons, Inc. v. Puerto Rico ex rel Barez, 458 U.S. 592, 610 n.16 (1982) (“A State does not have standing as parens patriae to bring an action against the Federal Government.”). “As the Court has long recognized, only the United States . . . may represent its citizens and ensure their protection under federal law in federal matters.” Ctr. for Biological Diversity, 563 F.3d at 477. EPA’s designations under the Clean Air Act are federal matters under federal law. So state and local governments have no standing to challenge designations in the name of protecting their residents. The two cases Petitioners cite do not save them. See Br. at 46. In Georgia v. Tennessee Copper Company, the state was not challenging a federal action. See 206 U.S. 230, 237 (1907). And in Massachusetts v. EPA, “it was critical that Massachusetts sought to assert its own rights as a state under the Clean Air Act, and was not seeking to protect the rights of its citizens under the Clean Air Act.” 16 USCA Case #18-1203 Document #1787456 Filed: 05/10/2019 Page 27 of 92 Ctr. for Biological Diversity, 563 F.3d at 476 (citing 549 U.S. at 520 n.17) (emphasis added). Petitioners, in short, have not shown standing when basing it solely on (1) a member’s presence in an allegedly contributing area, or (2) parens patriae. Here are the seven designations for which no Petitioner has standing and over which this Court has no jurisdiction: 10 Designation El Paso County, Texas Petitioners bringing challenge City of Sunland Park Familias Unidas del Chamizal Petitioners’ basis for standing Parens patriae Member presence in allegedly contributing area (Azutlan, Quevedo, and Villegas Decls.) No declaration Member presence in allegedly contributing area (Leline Decl.) Parens patriae Member presence in allegedly contributing area (Antaramin Decl.) No declaration Sierra Club Door County, Clean Wisconsin Wisconsin Kenosha Illinois and Chicago County, Clean Wisconsin Wisconsin Lake County, Indiana Environmental Law and Policy Center Respiratory Health Association Illinois and Chicago Environmental Law and Policy Center No declaration Parens patriae No declaration 10 Because Petitioners’ brief does not say who is challenging each designation, we rely on the docketing statements and non-binding statements of issues. As the chart shows, some Petitioners made no effort whatsoever to establish standing for a particular designation. The Court should not bless their disregard for its rules by allowing them to submit declarations on reply. See D.C. Cir. R. 15(c)(2), 28(a)(7). 17 USCA Case #18-1203 McHenry County, Illinois Monroe County, Illinois Porter County, Indiana II. Document #1787456 Respiratory Health Association Illinois and Chicago Environmental Law and Policy Center Respiratory Health Association Filed: 05/10/2019 Page 28 of 92 No declaration Parens patriae No declaration Member presence in allegedly contributing area (Schindler Decl.) Parens patriae No declaration Illinois and Chicago Environmental Law and Policy Center Respiratory Health Association Illinois and Chicago Environmental Law and Policy Center Respiratory Health Association No declaration Parens patriae Member presence in allegedly contributing area (Read Decl.) No declaration EPA reasonably designated nonattainment the half of Lake County, Indiana that generates almost all county emissions. Lake County, Indiana11 is part of EPA’s area of analysis for the Chicago region, home of six violating monitors. See Chicago Final Designations at 6-9, JA___-___. Though none of those monitors are in Lake, EPA initially included the entire county in the nonattainment area for contributing to the violations. Id.; Chicago, IL-IN-WI Nonattainment Area: Intended Area Designations for the 2015 Ozone National Ambient Air Quality Standards Technical Support Document at 2, JA___. But in its final designations EPA, partially accommodating Indiana (which 11 Not to be confused with Lake County, Illinois, also in the same area of analysis. See Chicago Final Designations at 6, JA___. 18 USCA Case #18-1203 Document #1787456 Filed: 05/10/2019 Page 29 of 92 recommended attainment), designated five Lake townships—or roughly half the county’s geographic area—nonattainment (again for contributing): Chicago Final Designations at 12, JA___ (showing violating monitors in red, and large and small sources in orange and yellow; and outlining nonattainment area in black dash marks); 12 see id. at 2, 25, JA___, ___. Lake’s nonattainment area, EPA explained, covers almost all the county’s emissions from point sources: 98 percent of NOx and 99 percent of VOC, along with 88 percent of Lake’s population. Id. at 25, JA___. Petitioners exaggerate that “only a small portion of Lake County” was designated nonattainment. Br. at 13; see id. at 54 (describing “most of Lake 12 The violating monitors have design values ranging from 0.071 to 0.077 parts per million. Chicago Final Designations at 8-9, JA___-___. 19 USCA Case #18-1203 Document #1787456 Filed: 05/10/2019 Page 30 of 92 County” as outside the nonattainment area). They then attack EPA’s “unexplained change” between the initial nonattainment area (which included all of Lake) and the final nonattainment area (which does not). Br. at 55; see id. at 52-59. That accusation has no basis in the record. EPA specifically explained that the final nonattainment area covers almost all Lake’s emissions. See Chicago Final Designations at 25, JA___. For that reason, there was no material change between the initial and final nonattainment areas. Nor did the final designation omit areas in Lake that contribute to air quality at the violating monitors. See Br. at 53-56. Petitioners next argue that EPA treated genuinely similar counties differently. Id. at 57-58; see Miss. Comm’n, 790 F.3d at 169 (explaining that unjustified disparate treatment is arbitrary and capricious). But the comparison they offer, Illinois’s Kane County, shows no disparate treatment. Whereas point sources are scattered across Kane, they are clustered in the northern part of Lake. See Chicago Final Designations at 12, JA___. So it was reasonable for EPA to include all of Kane but only the northern half of Lake in the nonattainment area. The Court should uphold Lake’s designation. III. EPA reasonably designated the St. Louis nonattainment area. A. EPA revised its initial analysis of Jefferson County, Missouri after seeing updated data that shows improved air quality. Missouri’s Jefferson County is in the area of analysis for the St. Louis region. EPA designated a nonattainment area that covers four entire counties, the 20 USCA Case #18-1203 Document #1787456 Filed: 05/10/2019 Page 31 of 92 City of St. Louis, and part of Franklin County, Missouri. St. Louis Final Designations at 2, JA___. The final nonattainment area excludes Jefferson (as recommended by Missouri). Id. The record shows how EPA delineated that area. In its initial analysis, EPA used 2014-2016 data, the most recent available at the time. See St. Louis, MO-IL Nonattainment Area: Intended Area Designations for the 2015 Ozone National Ambient Air Quality Standards Technical Support Document (St. Louis Intended Designations) at 6, JA___. This data showed five violating monitors in the area of analysis (though none were in Jefferson). See id. at 7, JA___. Reviewing that information and other factors in its holistic analysis, EPA included Jefferson in the initial nonattainment area. Id. at 2, JA___. Both Missouri and Illinois then timely submitted certified 2017 data, thus allowing EPA to use 2015-2017 data to make final designations. St. Louis Final Designations at 7, JA___. By then, much had changed. The 2015-2017 data showed only one violating monitor, in St. Charles County, Missouri. Id. at 8, JA___. This meant that EPA had to model trajectories for just one monitor instead of five, which resulted in fewer total trajectories crossing Jefferson. Compare id. at 18, JA___, with St. Louis Intended Designations at 16-20, JA___-___. Crucially, among the monitors no longer in violation was the one closest to Jefferson. Compare St. Louis Intended Designations at 5, JA___ (showing 21 USCA Case #18-1203 Document #1787456 Filed: 05/10/2019 Page 32 of 92 violating monitor in St. Louis County), with St. Louis Final Designations at 6, JA___ (showing same monitor as complying). That is, Jefferson was now farther away from any violating monitors than it had been before. In making final designations, then, EPA had updated data showing improved air quality. And given that the number of violating monitors had plunged by 80 percent, the geographic area that contributes to the violation also became a lot smaller. That in turn shifted the weight of evidence in EPA’s contribution analysis for Jefferson. Cf. Catawba, 571 F.3d at 47 (explaining that new data can lead EPA to interpret existing information differently). Under these circumstances, EPA reasonably excluded Jefferson—now farther away from the sole violating monitor—from the nonattainment area. See St. Louis Final Designations at 27, JA___ (“the most significant point sources in Jefferson County are in the southern half of the county, further away from the violating monitor”); id. at 11, JA___ (describing Jefferson as “more distant”). That is a “rational” basis for EPA’s designation, and the Court should uphold it. Miss. Comm’n, 790 F.3d at 150. Petitioners offer three reasons why EPA acted arbitrarily. But the record debunks every argument. 1. Petitioners ignore the updated data. Petitioners accuse EPA of making a “180-degree change” on Jefferson “with no change in the underlying data.” Br. at 104, 106. In particular, they latch onto 22 USCA Case #18-1203 Document #1787456 Filed: 05/10/2019 Page 33 of 92 EPA’s observation in the final designation about Jefferson being “distant” from the violating monitor. Id. at 105; see St. Louis Final Designations at 11-12, JA______. Because EPA did not initially describe Jefferson as “distant,” Petitioners say, it had no good reason to do so in the final designation. See Br. at 105-06. In fact, there was a very good reason. As detailed above, updated data showed far fewer violating monitors. So not only was EPA factually correct about Jefferson’s greater distance from the now-closest violating monitor, but when weighing the evidence, EPA also properly relied on all certified data available at the time of the designation. And based on the evidence, EPA reasonably determined that Jefferson is not contributing to air quality at the region’s only violating monitor. This Court should not repeat Petitioners’ error of ignoring updated data timely submitted by the states. 2. EPA treated Jefferson and Franklin Counties differently because they are different. Thinking that they have found an example of disparate treatment, Petitioners point to Franklin County, which abuts St. Charles County (home of the region’s sole violating monitor). See Br. at 97-103. Compared with Franklin, they say, Jefferson “was a greater contributor to ozone pollution in the area . . . .” Id. at 102. This comparison glosses over differences. The only part of Franklin designated nonattainment is a township that is home to a large point source that produces most of Franklin’s NOx emissions. St. Louis Final Designations at 11, 23 USCA Case #18-1203 Document #1787456 Filed: 05/10/2019 Page 34 of 92 27, JA___, ___. That source is just 39 miles away from the violating monitor— closer than Jefferson’s two largest point sources, which are 48 and 51 miles away. See Br. at 101. Though Petitioners are happy to wave away that difference as immaterial, EPA chose not to. See id.; St. Louis Final Designations at 11, 27, JA___, ___. That is a reasonable judgment call, one that the Court should “not . . . second-guess[.]” Miss. Comm’n, 790 F.3d at 162. 3. Petitioners misconstrue EPA’s holistic analysis. Petitioners also blame EPA for “accept[ing] Missouri’s cherry-picked use of back trajectories on only three of seventeen [exceedance] days . . . .” Br. at 97-98. In essence, they imply that EPA ignored trajectories on the other days. See id. at 95, 97-104. The record shows that EPA did no such thing. After EPA notified Missouri of the initial nonattainment area, the state submitted more meteorological analysis. St. Louis Final Designations at 22, JA___. The analysis focused on three days with the highest exceedances at the violating monitor. Id. Missouri concluded from its analysis that ozone concentrations there “are mostly . . . a result of stagnant air in the area,” indicating that ozone is mostly attributable to sources in the immediate vicinity, with other counties, including Jefferson, “hav[ing] little effect.” Missouri Dep’t of Natural Resources, Revision to Area Boundary Designation Recommendation for the 2015 Ozone Standard (Feb. 16, 2018), at 22-23, JA___-___. 24 USCA Case #18-1203 Document #1787456 Filed: 05/10/2019 Page 35 of 92 Missouri’s analysis was unquestionably one piece of evidence that EPA weighed. See St. Louis Final Designations at 22, 27, JA___, ___. But it was not, as Petitioners urge, the only meteorological evidence that EPA weighed. After discussing Missouri’s analysis, EPA—in the very next sentence—said that “the other 14 days in 2015-2017 with ozone above the level of the [standards] should also be assessed and given appropriate weight.” Id. at 23, JA___. 13 And EPA did so, as evidenced by a map showing modeled trajectories—for all 17 exceedance days and at three different altitudes—in the final designation. Id. at 18, JA___. The agency did not cherry-pick data. Nor are Petitioners right that EPA’s trajectory modeling “clearly demonstrate[s]” that Jefferson is a contributor. Br. at 95. Theirs is a common mistake in interpretation. The trajectories simply model where wind at the violating monitor came from on exceedance days. See supra Statement of the Case § III. They do not show whether wind picked up any emissions along the way, much less where those emissions came from. In other words, trajectories model wind, not pollution. Indeed, this limitation is why trajectory modeling is only one 13 Petitioners dispute whether the St. Louis region had “ever-improving ozone air quality.” Br. at 95; see id. at 96. The record shows an overall decrease in design values at the violating monitor over the last decade. See St. Louis Final Designations at 9, JA___. 25 USCA Case #18-1203 Document #1787456 Filed: 05/10/2019 Page 36 of 92 factor that is weighed with others—and not the sole determinative factor—in the holistic analysis. See Guidance, Att. 3 at 8, JA___. Petitioners thus have not shown that EPA arbitrarily excluded Jefferson County from the St. Louis nonattainment area. B. EPA designated Monroe County, Illinois in light of updated data. Petitioners’ objection to Monroe County’s designation is equally flawed. See Br. at 93-94. Like Jefferson, Monroe (which has no violating monitor) was in the initial St. Louis nonattainment area. See St. Louis Intended Designations 2, 7, JA___, ___. Like Jefferson, updated data showed that the violating monitor that had been closest to Monroe is now complying. Compare id. at 5, JA___ (showing violating monitor in St. Louis County), with St. Louis Final Designations at 6, JA___ (showing same monitor as complying). And like Jefferson, the updated data shifted the weight of the evidence, leading EPA to exclude Monroe from the final nonattainment area. See St. Louis Final Designations at 26, JA___ (examining Monroe’s emissions and modeled trajectories but noting that those trajectories later pass through “much higher-emitting areas” that are “less distant” from the violating monitor). EPA thus acted reasonably on this record. And Petitioners are wrong that Monroe’s final designation is “based principally on the Messina Letter” sent to EPA during the designation process. Br. at 93. 26 USCA Case #18-1203 Document #1787456 Filed: 05/10/2019 Page 37 of 92 Also wrong is the related contention that EPA denied Petitioner Illinois statutorily required notice.14 See id. at 93, 50-52. Recall that the Act directs EPA to notify states and give them a chance to show why a proposed modification of their recommendations is “inappropriate.” 42 U.S.C. § 7407(d)(1)(B)(ii). In 2016 Illinois, through its environmental director Alec Messina, recommended nonattainment for Monroe. Letter from Alec Messina, Director, Illinois Envtl. Protection Agency, to Robert A. Kaplan, Acting Regional Administrator, EPA (Sept. 30, 2016), JA___-___. Then in 2018, shortly before EPA finalized its designations, Mr. Messina sent the agency another letter—the so-called Messina Letter—noting a recent discussion he had had with EPA about “impending air quality designations for ozone . . . .” Letter from Alec Messina, Director, Illinois Envtl. Protection Agency, to Scott Pruitt, Administrator, EPA (Apr. 26, 2018), JA___. Mr. Messina went on to say that “it would seem appropriate to consider a designation of attainment” for two Illinois counties, including Monroe. Id. 15 14 If the Court concludes that Illinois lacks standing, see Argument § I, then it has no jurisdiction over this claim at all, for the other Petitioners can have no standing to vindicate Illinois’s claim. 15 The letter also stated that “Illinois EPA would be comfortable in an approach to such designations that ensures national and regional consistency by considering the 2014 emissions data that evidences the county-by-county contributions of nitrogen oxides and volatile organic material.” Messina Letter, JA___. 27 USCA Case #18-1203 Document #1787456 Filed: 05/10/2019 Page 38 of 92 The Messina Letter thus revised the state’s recommendation for Monroe from nonattainment to attainment. After all, the state’s role in the designation process is to make recommendations for its own areas. See 42 U.S.C. § 7407(d)(1). So when Illinois wrote to EPA during the designation process about Monroe’s designation, the agency reasonably concluded that the state was revising its earlier recommendation. See St. Louis Final Designations at 2 n.3, JA___. And because EPA’s final designation for Monroe (attainment) did not modify Illinois’s revised recommendation (also attainment), no notice was required under the Act. Even if the Messina Letter were not a revised recommendation, deprivation of notice could not have possibly harmed Illinois. The point of notice is to give Illinois a chance to show that an attainment designation for Monroe is “inappropriate.” 42 U.S.C. § 7407(d)(1)(B)(ii). Yet having said the exact opposite—that attainment is “appropriate”—in the Messina Letter, surely Illinois had no need of that chance. Cf. Air Transport Ass’n of Am. v. Civil Aeronautics Bd., 732 F.2d 219, 224 n.11 (D.C. Cir. 1984) (requiring plaintiffs alleging procedural violations to show prejudice). Finally, Petitioners object to EPA’s conclusion that Monroe was “less likely” than other areas to contribute. Br. at 93. They demand certainty, and imply that Catawba champions their approach. See id. (citing 571 F.3d at 39). 28 USCA Case #18-1203 Document #1787456 Filed: 05/10/2019 Page 39 of 92 Petitioners are mistaken. Weight-of-the-evidence analysis, by definition, admits of no certainty. Faced with evidence that can potentially support different conclusions, EPA must decide where the weight of that evidence falls, not do the impossible by erasing all doubt. And Catawba does not endorse Petitioners’ theory. The Court there held that EPA’s reading of the statutory term “contribute” was reasonable, not that contribution requires certainty. See 571 F.3d at 39. Petitioners, in short, not only ignore updated data in EPA’s analysis; they voice nothing more than disagreement with EPA’s conclusion. That cannot justify second-guessing the agency’s judgment. See Miss. Comm’n, 790 F.3d at 162. IV. Relying on Wisconsin’s analysis, EPA properly designated part of Sheboygan County nonattainment. Sheboygan County lies on the western shores of Lake Michigan, north of Chicago and Milwaukee. It has two monitors, one by the shore (dubbed the lakeshore monitor), and the other 3.2 miles inland (dubbed the inland monitor). See Wisconsin Final Area Designations for the 2015 Ozone National Ambient Air Quality Standards Technical Support Document (Wisconsin Final Designations) at 8, JA___. Monitoring data showed a violation at the lakeshore monitor. See id. at 31, JA___. EPA designated nonattainment a stretch of the county about 2.3 miles 29 USCA Case #18-1203 Document #1787456 Filed: 05/10/2019 Page 40 of 92 wide along its lakefront, an area that covers the violating monitor and that aligns with Wisconsin’s suggested designation. 16 See id. at 41, JA___. In making this designation, EPA applied its holistic analysis and considered Wisconsin’s recommendation. See id. at 6-12, 28-42, JA___-___, ___-___; see generally Wisconsin Dep’t of Natural Resources, 2015 Ozone National Ambient Air Quality Standards Technical Support Document (Apr. 2017) (Wisconsin Rec.), JA___-____. The recommendation included a three-part analysis showing that (1) wind transports emissions over Lake Michigan from upwind sources to Sheboygan; (2) Sheboygan’s own emissions have only a negligible effect on the violating lakeshore monitor’s design value; and (3) for Wisconsin monitors near Lake Michigan, the farther inland they are, the lower their design values. We detail each part of the analysis below. 17 1. The lake-breeze effect. By shaping local wind patterns, Lake Michigan plays a key role in emissions transport in the counties on its shores. Sheboygan County is no exception. First, some basic meteorology is in order. During the day, land heats up faster than water. Air over land, in turn, becomes warmer (and less 16 Though Wisconsin recommended Sheboygan for attainment, it also suggested a nonattainment area for the county in case EPA disagreed with the recommendation. Wisconsin Final Designations at 35, JA___. 17 For simplicity we refer to this analysis, performed by the Lake Michigan Air Directors Consortium, as Wisconsin’s analysis. Wisconsin Rec. at 15, JA___. 30 USCA Case #18-1203 Document #1787456 Filed: 05/10/2019 Page 41 of 92 dense) than air over water. As the warmer land air rises, colder, denser lake air moves in to fill the gap, creating a breeze blowing in from the lake. This is the lake breeze.18 See generally Wisconsin Final Designations at 6, JA___. It blows air that is over Lake Michigan—including emissions in that air from distant upwind sources—toward downwind monitors along the lake. See id. Using meteorology data, satellite imaging, and data from Sheboygan’s two monitors, Wisconsin analyzed the penetration of lake breezes into Sheboygan County. See id. at 6-12, JA___. The analysis showed that on days without lake breezes, both monitors had lower average ozone values. See id. at 10-11, JA______. On days with “shallow” lake breezes (when wind reached the lakeshore monitor but not the inland one), the lakeshore monitor had relatively high average ozone values compared with the inland monitor. See id. And on days with “deep” lake breezes (when wind reached both monitors), average ozone values at the inland monitor reached their peak, though still at levels lower than the lakeshore monitor. See id. Wisconsin reasoned that deep lake breezes carried ozone landward and, along the way, mixed with less ozone-rich land air, leaving the inland monitor with more diluted ozone concentrations than the lakeshore monitor. 18 At night, the opposite happens, as land cools faster than water: Air over land is colder than air over the lake, so land air moves in to fill the gap left by warmer lake air as it rises. The resulting breeze, called the land breeze, blows from land to lake. See Wisconsin Final Designations at 6, JA___. 31 USCA Case #18-1203 Document #1787456 Filed: 05/10/2019 Page 42 of 92 See id. at 10, JA___. This observation, EPA noted, is consistent with an earlier conceptual model of Lake Michigan’s ozone formation and transportation. See id. In effect, the first part of Wisconsin’s analysis showed that wind carries emissions from Lake Michigan to Sheboygan’s monitors, especially the violating lakeshore monitor. See id. at 11-12, JA___-___. 2. Zero-out comparison. Relying on complex photochemical modeling, the second part of Wisconsin’s analysis looked at Sheboygan’s own emissions. As background, photochemical models break an area down into three-dimensional grid boxes. For each grid box, the model calculates the hour-by-hour impact that emissions, meteorology, and chemistry have on air-pollution levels. The result is a set of predictions about how much air pollution is in the area. Using existing data, Wisconsin’s analysis modeled a base scenario that simulated air pollution at Sheboygan’s lakeshore monitor. See Wisconsin Rec. at 40, JA___. The analysis also modeled a hypothetical scenario using inputs that “zero out” Sheboygan’s anthropogenic emissions—that is, this zero-out scenario simulated a world in which Sheboygan County produces no man-made emissions. See id. at 39, 41, JA___, ___. The results showed that design values at the lakeshore monitor were nearly identical in the two scenarios. See id. at 40, JA___ (comparing results for Kohler Andrae monitor); Wisconsin Final Designations at 8, JA___ (labeling Kohler 32 USCA Case #18-1203 Document #1787456 Filed: 05/10/2019 Page 43 of 92 Andrae as the lakeshore monitor). Wisconsin thus concluded that Sheboygan’s own emissions have little, if any, impact on the lakeshore monitor’s violation. See Wisconsin Rec. at 41, JA___. 3. Distance from shoreline. The final part of Wisconsin’s analysis examined the relationship between design values at various monitors in Wisconsin near Lake Michigan and their distances from shore. See id. at 44-49, JA___-___. The analysis concluded that the farther inland a monitor is, the lower its design value. See id. at 47, JA___. From this relationship Wisconsin calculated that the design value meets the ozone standards at 2.3 miles inland. See id. at 46-47, JA___-___. The state thus concluded that any nonattainment area should not extend past this point. See id. at 44, JA___. * * * Reviewing this three-part analysis, EPA noted the “overwhelming transport from upwind areas along the lakeshore” and the zero-out comparison showing that “reducing Sheboygan area emissions would not affect ozone concentrations at the [lakeshore] monitor . . . .” Wisconsin Final Designations at 41, JA___; see id. at 40, JA___ (comparing emissions in Chicago region with those in Sheboygan). For these reasons, EPA said, it “does not believe there is sufficient evidence that these other portions of Sheboygan County contribute to air quality at the violating 33 USCA Case #18-1203 Document #1787456 Filed: 05/10/2019 Page 44 of 92 monitor.” Id. at 41, JA___. Instead, EPA concluded, only part of the county should be designated nonattainment. See id. As for which part, the agency’s initial nonattainment area was a roughly 3.2mile wide swath of the lakefront. See Wisconsin Intended Area Designations for the 2015 Ozone National Ambient Air Quality Standards Technical Support Document (Wisconsin Intended Designations) at 42-43, JA___-___. That boundary was based on the inland monitor’s distance from shore (3.2 miles). To EPA, the monitor’s compliance, together with Wisconsin’s lake-breeze analysis, “indicate that the spatial extent of the violating area is not likely to extend beyond the location of the [inland] monitor . . . .” Id. at 42, JA___. Wisconsin objected. It argued that 3.2 miles is overinclusive because the inland monitor is complying, so the boundary should be closer to shore. See Wisconsin’s Response to EPA’s Intended Nonattainment Area Designations for the 2015 Ozone NAAQS Technical Support Document (Feb. 2018) (Wisconsin Response) at 29, JA___. In response, EPA re-examined the state’s technical analysis and decided to rely on the 2.3 miles that Wisconsin had calculated using the distance-from-shoreline method. See Wisconsin Final Designations at 41, JA___. Sheboygan’s final nonattainment area is thus a roughly 2.3-mile wide stretch of the lakefront. See id. Petitioners challenge this designation on four narrow grounds. See Br. at 5960, 74-76. None survives scrutiny. 34 USCA Case #18-1203 Document #1787456 Filed: 05/10/2019 Page 45 of 92 First, they contend that the designation “conflicts” with EPA’s own fivefactor holistic analysis. Id. at 70. It does not. EPA’s analysis relies on countylevel data; Wisconsin’s analysis offers additional information, including data about areas within Sheboygan County. That is, the state offered a more granular and nuanced view of ozone transport in the county. In particular, though Petitioners emphasize Sheboygan’s own emissions, id. at 74-76, Wisconsin’s zero-out comparison showed that those emissions have, at most, negligible effect on the violating lakeshore monitor. See Wisconsin Rec. at 39-41, JA___-___. So EPA did not, as Petitioners insist, ignore Sheboygan’s emissions. Rather, it reasonably concluded that those emissions’ impact was minimal. See Wisconsin Final Designations at 41, JA___. Second, Petitioners chastise EPA for relying on source-apportionment modeling that Wisconsin had submitted in addition to its three-part analysis. 19 See Br. at 60, 74. They misread the record. EPA did not rely on that modeling in its designation—in fact, it said it lacked enough information to evaluate the modeling. See Wisconsin Final Designations at 40, JA___. And as the record shows, even as 19 Source-apportionment modeling is a type of photochemical modeling that can trace emissions to their sources. See Guidance, Att. 3 at 11-12, JA___-___. To be clear, Wisconsin’s three-part analysis did not use source-apportionment modeling. Compare Wisconsin Rec. at 34-39, JA___-___ (source-apportionment modeling), with id. at 9-24, JA___-___ (lake breezes), 39-42, JA___-___ (zero-out comparison), 44-49, JA___-___ (distance from shoreline). 35 USCA Case #18-1203 Document #1787456 Filed: 05/10/2019 Page 46 of 92 its conclusion discussed Wisconsin’s three-part analysis, EPA made no mention of source apportionment. See id. at 41-42, JA___-___. Third, Petitioners mention in passing that the agency’s rationale changed between its initial analysis and final designation. See Br. at 60. This argument refers to EPA’s initial nonattainment boundary, roughly 3.2 miles from shore. After reviewing Wisconsin’s objection that 3.2 miles is overinclusive, EPA reevaluated and relied on the state’s distance-from-shoreline analysis, which supported a boundary at 2.3 miles. See Wisconsin Final Designations at 41, JA___; Wisconsin Response at 29, JA___. What happened here is precisely what the Act envisions: If EPA proposes to modify a state’s recommendation, the state can try to persuade the agency to analyze the area differently—by, for example, giving more weight to existing data. See 42 U.S.C. § 7407(d)(1)(B)(ii). Finally, Petitioners criticize Wisconsin’s distance-from-shoreline method for being “novel.” Br. at 66; see id. at 70. But novelty by itself is no reason to secondguess EPA’s conclusions. And having failed to spell out exactly what they think is wrong with that method, Petitioners cannot show that EPA arbitrarily weighed Wisconsin’s analysis. Nor can they rescue their case by raising other arguments on reply. See Bd. of Regents of Univ. of Wash. v. EPA (Univ. of Wash.), 86 F.3d 1214, 1221 (D.C. Cir. 1996) (holding as waived specific arguments not raised in opening brief, to prevent “sandbagging” respondents). Because all that Petitioners have 36 USCA Case #18-1203 Document #1787456 Filed: 05/10/2019 Page 47 of 92 done is disagree with EPA’s conclusion, this Court has no basis to deem that conclusion arbitrary. See Miss. Comm’n, 790 F.3d at 162. V. The location of Door County, Wisconsin’s monitor and other factors support designating part of the county nonattainment. Sparsely populated Door County in rural Wisconsin occupies a narrow peninsula in northern Lake Michigan. Wisconsin Final Designations at 57, 64, JA___, ___. Shown as the red dot on the map on the next page, the county’s sole violating monitor is located near the tip of the peninsula. Id. at 62, JA___. Adopting Wisconsin’s suggestion, EPA designated nonattainment the immediate area around the monitor. Id. at 70, JA___. 20 20 Though Wisconsin recommended Door for attainment, it also suggested a nonattainment area for the county in case EPA disagreed with the recommendation. Wisconsin Final Designations at 60, JA___. 37 USCA Case #18-1203 Document #1787456 Filed: 05/10/2019 Page 48 of 92 Id. at 62, JA___. In its holistic analysis, EPA considered the Door monitor’s unusual location. On a spit of land jutting out into the lake, the monitor is susceptible to lake breezes that can bring emissions over Lake Michigan from distant upwind sources. See id. at 6-12, 57, 66-67, JA___-___, ___, ___-___; supra Argument § IV (explaining lake breezes). EPA’s modeling confirms that a large number of trajectories come from over the lake. See Wisconsin Final Designations at 67, JA___. Meanwhile, Door County itself has low emissions. See id. at 62, 66, JA___, ___. That is not surprising given that Door has no large point sources, only a handful of small point sources, and few people. See id. at 62-65, JA___-___. In light of Door’s low 38 USCA Case #18-1203 Document #1787456 Filed: 05/10/2019 Page 49 of 92 emissions, the lake-breeze effect, and the monitor’s location, EPA attributed the violation to upwind emissions from distant sources over the lake rather to than any local sources. See id. at 57, 70, JA___, ___. So the agency limited Door’s nonattainment area to the state park where the monitor is sited. See id. at 70, JA___. Petitioners agree that only part of Door County should be designated nonattainment. See Br. at 82. They just think that EPA should have stuck with its initial nonattainment area, which covered a larger chunk of Door. See id. But on arbitrary-and-capricious review—especially when EPA has considerable discretion to weigh evidence—it is not enough to disagree with the agency’s conclusion. See Miss. Comm’n, 790 F.3d at 162. Petitioners must also show why that conclusion is arbitrary. They have not done so. To begin, Petitioners contend that EPA adopted Wisconsin’s suggested nonattainment area without confirming that nonattainment is limited to that area. Br. at 81-82. The record shows the opposite. As the agency explained in its holistic analysis, Door itself generates little emissions, plus its monitor stands directly in the path of lake breezes. That unusual set of circumstances allowed EPA to reasonably conclude that Door’s nonattainment area was limited to the monitor’s immediate vicinity. Wisconsin Final Designations at 57, 70, JA___, ___. 39 USCA Case #18-1203 Document #1787456 Filed: 05/10/2019 Page 50 of 92 Relatedly, Petitioners contend that EPA ignored evidence of “significant emissions” in the north part of Door County. Br. at 82. They misunderstand the basis of Door’s nonattainment designation. EPA never thought that emissions from Door’s own sources meaningfully contributed to the monitor’s violation— and it said so. See Wisconsin Intended Designations at 79, JA___ (“emission and emissions-related data are relatively low.”); Wisconsin Final Designations at 70, JA___ (“EPA does not believe there is sufficient evidence that these other portions of Door County contribute to air quality at the violating monitor.”). Both the initial and final nonattainment areas were thus meant to capture only the “spatial extent of the violating”— not the contributing—“area in Door County . . . .” Wisconsin Intended Designations at 79, JA___; see Wisconsin Final Designations at 70, JA___ (noting that the final nonattainment area is the geographic area “expected to have air quality that does not meet the [ozone standards]”). In their comments, Petitioners did not object to EPA’s focus on the violating area as the basis for Door’s nonattainment designation. Although the Clean Air Act does not require designations to undergo notice and comment, here EPA invited the public to comment. And having withheld comments about alleged contributions from Door’s own sources, Petitioners should not be allowed to complain about that now. Cf. Nat’l Ass’n of Clean Air Agencies v. EPA, 489 F.3d 1221, 1231 (D.C. Cir. 2007) (“it is a hard and fast rule of administrative law, rooted in simple fairness, 40 USCA Case #18-1203 Document #1787456 Filed: 05/10/2019 Page 51 of 92 that issues not raised before an agency are waived and will not be considered by a court on review.” (internal brackets omitted)). At any rate, the record shows that EPA did recognize that what emissions Door produced were concentrated in the north. See Wisconsin Final Designations at 66, JA___. But in EPA’s judgment, that evidence did not outweigh evidence of Door’s low overall emissions and the monitor’s susceptibility to lake breezes. See id. at 57, JA___. Petitioners have not shown why that judgment is unreasonable. Lastly, Petitioners appear to contend that EPA made inconsistent statements about whether it relied on 100-meter high trajectories. See Br. at 81-82. They first point to the part of EPA’s holistic analysis noting Wisconsin’s argument that 100meter trajectories came almost exclusively from over Lake Michigan. See id. at 81 (citing Wisconsin Final Designations at 67, JA___). Then they spotlight EPA’s statement that “‘higher-level . . . trajectories (500m and 1000m) traversing land areas in Wisconsin have some value in detecting the potential impacts from longrange’” sources in certain regulatory determinations. Id. (quoting Wisconsin Final Designations at 72, JA___). Yet all that EPA said here is that depending on context, some trajectory levels may be more informative than others, but all three levels have value. And in its holistic analysis EPA considered all three levels, as memorialized by a map in the final designations showing trajectories at all three levels. Wisconsin Final Designations at 67, JA___. 41 USCA Case #18-1203 Document #1787456 Filed: 05/10/2019 Page 52 of 92 Because Petitioners have not shown anything amiss in EPA’s holistic analysis of Door, the Court should uphold this designation. VI. EPA reasonably concluded that Ottawa County, Michigan was not part of a “nearby” area that had to be analyzed for contribution. Michigan recommended attainment for Ottawa County, and EPA designated it as such. Michigan Final Area Designations for the 2015 Ozone National Ambient Air Quality Standards Technical Support Document (Michigan Designations) at 2, JA___; 83 Fed. Reg. at 25,815. Ottawa, on the shores of Lake Michigan in western Michigan, has no violating monitors. Michigan Designations at 23-24, 32, JA___-___, ___. So it is not in nonattainment for violating the standards itself. See 42 U.S.C. § 7407(d)(1)(A)(i). The question, then, is whether Ottawa contributes to a “nearby” violation. See id.; Miss. Comm’n, 790 F.3d at 151 (approving EPA’s argument that the Act does not require nonattainment designations for all contributors, only “nearby” ones). The statutory term “nearby,” as this Court has long recognized, is ambiguous. See Miss. Comm’n, 790 F.3d at 151 (collecting cases). So before Ottawa had to be analyzed for potential contribution, EPA had to determine whether it was “nearby” to an area with a violating monitor. In other words, should Ottawa be included in an area of analysis for contribution? See id. (noting that EPA’s area of analysis is the agency’s interpretation of the statutory term “nearby”); Guidance at 5-6, JA___-___ (similar). 42 USCA Case #18-1203 Document #1787456 Filed: 05/10/2019 Page 53 of 92 The answer rested on EPA’s analysis of violating monitors in neighboring Allegan and Muskegon Counties. (Ottawa is directly north of Allegan and directly south of Muskegon.) Allegan and Muskegon each has a violating monitor. See Michigan Designations at 23-24, 32-33, JA___-___, ___-___. EPA generally uses either the Combined Statistical Area or, “where appropriate,” the smaller Core Based Statistical Area as the area of analysis around violating monitors. Guidance at 5, JA___. For the violating monitors in Allegan and Muskegon, EPA used Core Based Statistical Areas (and to preview the ending, Ottawa was in neither area of analysis). See Michigan Designations at 22, 31, JA___, ___. In defining the areas of analysis for Allegan and Muskegon, EPA considered regional meteorology. Like other areas around Lake Michigan, western Michigan sees lake breezes that can carry upwind emissions to downwind shoreline monitors, including, EPA observed, those in Allegan and Muskegon. See id. at 2022, JA___-___. This observation is supported by modeling showing that on days when Allegan and Muskegon’s monitors recorded exceedances, dozens of trajectories come from Chicago and Milwaukee, two major metropolises across the lake. See id. at 29, 39, JA___, ___; id. at 20, JA___ (noting that “meteorological data strongly indicates that” violating monitors in Allegan and Muskegon are “predominantly affected by the transport of emissions over Lake Michigan.”). That volume stands in sharp contrast to the few trajectories passing through 43 USCA Case #18-1203 Document #1787456 Filed: 05/10/2019 Page 54 of 92 Ottawa. See id. at 29, 39, JA___, ___. Meanwhile, data showed emissions from Chicago and Milwaukee dwarfing emissions from rural western Michigan counties.21 See id. at 31, 41, JA___, ____. The meteorology data, in short, showed that violations at the Allegan and Muskegon monitors were tied to distant sources over Lake Michigan rather than to western Michigan. EPA, in turn, decided that the areas of analysis for those two monitors (in western Michigan) could be single-county areas. It thus defined the area of analysis for Allegan’s violation as the (single-county) Holland Core Based Statistical Area22 (that is, Allegan County); and the area of analysis for Muskegon’s violation, the (single-county) Muskegon Core Based Statistical Area (that is, Muskegon County). Id. at 22, 31, JA___, ___. These definitions are also in keeping with the agency’s past treatment of Allegan and Muskegon. See 69 Fed. Reg. 23,858, 23,911 (Apr. 30. 2004) (designations for 1997 ozone standard) (showing that Allegan and Muskegon were analyzed as single-county areas while 21 Petitioners fault EPA for an “apples-to-oranges” comparison of individual western Michigan counties with aggregated upwind counties. Br. at 85 n.11. But EPA’s comparison here is only meant to show ozone transport around the lake. It is unclear why Petitioners think it a problem for this purpose. What makes their criticism all the more baffling is that Petitioners go on to contrast EPA’s treatment of individual western Michigan counties with treatment of the urbanized Detroit nonattainment area, a group of seven counties. See id. at 85; Michigan Designations at 2, JA___. Their comparison, aimed at showing disparate treatment, is the real (and thus improper) “apples-to-oranges” comparison. 22 Holland is one of Allegan’s bigger cities. 44 USCA Case #18-1203 Document #1787456 Filed: 05/10/2019 Page 55 of 92 Ottawa was analyzed as part of the Grand Rapids area); 56 Fed. Reg. 56,694, 56,778 (Nov. 6, 1991) (designations for 1979 ozone standard) (same); cf. Michigan Designations at 22, 31, JA___, ___. Because Ottawa lies outside both areas of analysis, EPA did not evaluate it as a “nearby” contributor under the statute. 23 See 42 U.S.C. § 7407(d)(1)(A)(i). Petitioners spill little ink on EPA’s definitions of the two areas of analysis— so little, in fact, that it is unclear whether they challenge those determinations. See Br. at 2-3, 83. They have thus waived the issue. See Univ. of Wash., 86 F.3d at 1221 (holding that petitioners waived issue in opening brief by “merely stating [it], in conclusory fashion and without visible support”). Even if Petitioners raised the issue, they say only that Ottawa is in the same (larger, multi-county) Combined Statistical Area as Allegan and Muskegon, so obviously Ottawa is “nearby.” Br. at 83 & n.10. But that bare-bones assertion says nothing about why EPA’s choice of (single-county) Core Based Statistical Areas as its areas of analysis is unreasonable or inappropriate. See id. at 83-92; Guidance at 5, JA___. And it certainly says nothing about why, in making that choice, EPA acted arbitrarily to rely on regional meteorology. At most, Petitioners 23 Another example of an adjacent county that falls outside the areas of analysis for Allegan and Muskegon is Van Buren County, directly south of Allegan. See Michigan Designations at 39, JA___. 45 USCA Case #18-1203 Document #1787456 Filed: 05/10/2019 Page 56 of 92 have shown only their preference for different areas of analysis. That is not nearly enough to overturn EPA’s conclusions. See Miss. Comm’n, 790 F.3d at 162. A. EPA acted well within its discretion to reject a study that used stale data and offered incomplete analysis. In any event, Petitioners have not shown why Ottawa is a contributor. They rely chiefly on a study, submitted with their comments, that analyzes emissions from the JH Campbell plant in Ottawa County. See Br. at 85, 87, 89-91; Comments of Sierra Club on EPA’s Intended Ozone Nonattainment Areas for Michigan (Feb. 5, 2018), JA___-___. But as EPA pointed out, the study used modeling from 2011 and ignored controls that Campbell later installed. Response to Comments at 20, JA___; see Miss. Comm’n, 790 F.3d at 158 (emphasizing the “significant deference” owed to EPA on “data quality or sufficiency”). Petitioners admit as much. See Br. at 89 (“the plant’s emissions profile has changed since the date of the emissions data used in the modeling due to upgrades at two of three boilers”). Undeterred, they assert that the study shows that even after Campbell installed controls, the plant “was, by itself, at times still emitting at the same daily levels that the modeling showed contributed to significantly increased ozone concentrations at the violating monitors.” Id. But it is not enough that emissions exist. They have to be linked to exceedances at the violating monitors. That is why EPA’s holistic analysis considers emissions alongside other factors like 46 USCA Case #18-1203 Document #1787456 Filed: 05/10/2019 Page 57 of 92 modeled trajectories on exceedance days. See Guidance, Att. 3 at 3, JA___. Petitioners’ study, however, fails to link emissions to exceedance. Or, as EPA put it in rejecting the study, it says nothing about the dates of Campbell’s emissions, whether they match exceedance dates at the violating monitors, or wind trajectories that might transport Campbell’s emissions to those monitors. See Response to Comments at 20, JA___. Though Petitioners grumble that “[n]ever before has EPA held air dispersion modeling to that high a standard,” Br. at 90, the agency was simply assessing Petitioners’ study using the same factors as those in its holistic analysis. See Guidance, Att. 3 at 3-10, JA___-___. There was nothing arbitrary in EPA’s rejection of the study. 24 B. Petitioners’ other contribution arguments are meritless. Nor can Petitioners otherwise establish Ottawa as a contributor. First, they spotlight various emissions from Ottawa County. See Br. at 85-87. But again, emissions alone cannot prove contribution. And again Petitioners do not link emissions to exceedance. If anything, the record indicates that such a link does not exist, as trajectory modeling shows nearly no wind coming from Ottawa at the Allegan and Muskegon monitors on exceedance days. See Michigan Designations at 29, 39, JA___, ___. The modeling, which covers 24-hour periods, also lends no 24 Different modeling used in the Wisconsin designations cannot, as Petitioners urge, rehabilitate the Campbell study. See Br. at 91. 47 USCA Case #18-1203 Document #1787456 Filed: 05/10/2019 Page 58 of 92 support to Petitioners’ theory that wind blows Ottawa’s emissions to the lake and then to the violating monitors. See Br. at 88 (accusing EPA of ignoring land breezes); supra Argument § IV (explaining lake and land breezes). Second, Petitioners quibble with EPA’s description of Muskegon’s monitor as a “shoreline” location. Br. at 88; see Michigan Designations at 5, JA___. They say that the monitor is not on the shore because it is three miles inland. See Br. at 88. That misses the point. EPA was simply using “shoreline” as a shorthand to refer to locations, like the Muskegon monitor, that are close enough to the lake to experience the lake-breeze effect. See Michigan Designations at 5, 29-30, JA___, ___-___. Finally, Petitioners note that Allegan’s violating monitor is on the border with Ottawa, so “it is quite likely there are areas within [Ottawa] that are also violating” the ozone standards. Br. at 84. The Court should not credit that contention. For one thing, the monitor itself is in Allegan County. EPA already accounted for that violation when it designated part of Allegan nonattainment, a decision not challenged here. See Michigan Designations at 41, JA___. More to the point, Petitioners offer no record evidence to support their speculation that Ottawa itself has a violation. What the record instead shows is that Ottawa’s monitor is complying with the standards. Id. at 23, JA___. 48 USCA Case #18-1203 Document #1787456 Filed: 05/10/2019 Page 59 of 92 To recap, EPA determined that Ottawa is not in the area of analysis for either the Allegan or Muskegon violations, a determination that Petitioners do not seriously challenge. Because only contributors in the area of analysis (that is, “nearby” contributors) are designated nonattainment, Petitioners’ arguments—all about whether Ottawa is a contributor—win them nothing. Those arguments are, in any case, flawed and the Court should reject them. 25 VII. Unique topography and other factors justify excluding northern Weld County from the Denver nonattainment area. Colorado’s Weld County lies north of Denver and extends all the way to the Wyoming border. See Denver Metro/North Front Range Nonattainment Area: Final Area Designations for the 2015 Ozone National Ambient Air Quality Standards Technical Support Document (Denver Designations) at 34, JA___. The county is part of EPA’s area of analysis for the Denver region, home of five violating monitors. See id. at 8, JA___. Though Weld’s own monitor was complying, EPA concluded that southern Weld County contributes to the nearby violations. See id. at 8, 35, JA___, ___. So the agency followed Colorado’s 25 Petitioners complain that EPA did not respond to comments about Ottawa’s contribution. Br. at 92. Not only is public comment not required in the designation process, but the record shows that EPA addressed Petitioners’ comments. See 42 U.S.C. § 7407(d); supra Argument § VI; cf. Thompson v. Clark, 741 F. 2d 401, 409 (D.C. Cir. 1984) (finding no violation of Administrative Procedure Act when the agency considered all relevant factors). 49 USCA Case #18-1203 Document #1787456 Filed: 05/10/2019 Page 60 of 92 recommendation and included that part of the county in the Denver nonattainment area. See id. at 6, 36, JA___, ___. Several factors in the holistic analysis led EPA to this conclusion. Start with the area’s unique topography: Id. at 34, JA___ (outlining nonattainment area in black dash marks). Elevated terrain—the Palmer Divide, the Rocky Mountains, and the Cheyenne Ridge—form a three-sided basin around the Denver region. See id. at 33, JA___. That terrain 50 USCA Case #18-1203 Document #1787456 Filed: 05/10/2019 Page 61 of 92 also shapes the basin’s wind patterns. See id. at 27-28, JA___-___. Together, terrain and wind “effectively close off the basin[.]” Id. at 33, JA___. What this means in practical terms is that the basin “trap[s]” its own emissions within, making it hard for ozone to disperse. Id. at 28, JA___; see id. at 33, 36, JA___, ___. More importantly for the contribution analysis, the basin keeps out most emissions originating from its upper reaches, like northern Weld County. See id. at 33, JA___ (explaining that the basin “enhance[s] contributions from sources in the basin . . . [and] restrict[s] contributions from sources on the upper reaches of and beyond the [topographic] features, including the northern parts of Weld”); id. at 36, JA__ (“unique meteorological conditions and topographic features . . . indicate that emissions in Northern Weld . . . Count[y is] not likely to contribute to violating monitors.”). The basin effect thus supports EPA’s conclusion that northern Weld County does not contribute to air quality at the violating monitors, all located inside the basin. Other evidence reinforces that conclusion. The great majority of Weld’s point sources and oil and gas wells are in the south, with the north generating only 25 percent of the county’s NOx emissions and 18 percent of VOC emissions. See id. at 14-15, JA__-___. The north, home to just 1 percent of the county’s population, also has very little traffic compared with the south. See id. at 22, 36, JA___, ___. Not that there are many avenues for the north’s emissions to travel 51 USCA Case #18-1203 Document #1787456 Filed: 05/10/2019 Page 62 of 92 south, given that just a handful of modeled trajectories pass through northern Weld County. See id. at 23-27, JA___-___; id. at 31-32, JA___-___ (noting that Colorado’s independent analysis also showed few trajectories). In light of all these factors, EPA concluded that only the southern part of Weld County should be included in the nonattainment area. See id. at 36, JA___. To draw the nonattainment boundary, EPA used the same dividing line as it had in two earlier rounds of ozone designations. 26 See id. at 35, JA___; Guidance, Att. 3 at 10, JA___ (contemplating use of past nonattainment boundaries). Petitioners disagree with EPA’s designation. But their arguments, when not mangling the law, mangle the facts. A. EPA applied the correct contribution analysis. Petitioners claim that instead of asking whether Weld “contributes” to nearby violations, EPA applied a “significantly contributes” test. See Br. at 10812. They are wrong. As a factual matter, nothing in the record suggests that EPA ever used “significant contribution” as the standard to designate Weld. That may be why Petitioners offer no spot-on record citations to support their theory. What the record does show is that in analyzing Weld for contribution, EPA used the same 26 Petitioners admit this fact. Br. at 24. That admission refutes their insinuation that EPA drew the boundary randomly. See id. at 112, 116. 52 USCA Case #18-1203 Document #1787456 Filed: 05/10/2019 Page 63 of 92 multi-factor, holistic approach that this Court has repeatedly upheld. See Denver Designations at 7-37, JA___-___; Miss. Comm’n, 790 F.3d at 149-50; Catawba, 571 F.3d at 39. That fact alone defeats Petitioners’ argument. But there is more. As a legal matter, Petitioners’ argument conflates different statutory requirements. Citing an EPA action on a Wyoming implementation plan, Petitioners stress that EPA had determined that Wyoming “significantly contributes” to nonattainment in the Denver region. See Br. at 111 (citing 82 Fed. Reg. 9142 (Feb. 3, 2017)). The Wyoming action, however, was taken under a provision of the Clean Air Act that deals with interstate transport of pollution from distant sources. See 82 Fed. Reg. at 9142 (citing Section 110(a)(2)(D)(i), 42 U.S.C. § 7410(a)(2)(D)(i)). That provision requires implementation plans—a different regulatory action than designations—to prohibit one state from “contribut[ing] significantly” to nonattainment in another state. 42 U.S.C. § 7410(a)(2)(D)(i)(I). Whether significant contribution exists in this context entails an inquiry that looks at things like the costs and benefits of various emission controls. See EPA v. EME Homer City Generation, LP, 572 U.S. 489, 501-02 (2014). That is totally different from the holistic contribution analysis used in designations. Petitioners’ interstate-transport example thus in no way undercuts the reasonableness of EPA’s contribution analysis of Weld. 53 USCA Case #18-1203 Document #1787456 Filed: 05/10/2019 Page 64 of 92 Nor can Petitioners count on the “significant contribution” test for rural transport areas to save the day. See Br. at 111 (citing 42 U.S.C. § 7511a(h)(2)). These areas enjoy relief from certain requirements that implementation plans place on nonattainment areas. See 42 U.S.C. § 7511a(h). To qualify, an area (among other things) cannot have emission sources that make a “significant contribution” to ozone concentration in that or any other area. Id § 7511a(h)(2). But again, this inquiry involves a different statutory provision—and a different phase of the regulatory process—than Section 7407(d), the designation provision. See id. § 7511a (setting forth requirements for state implementation plans). Petitioners’ invocation of rural transport areas is all the more futile given that EPA did not deem Weld as such. Rural transport areas, in short, are irrelevant to the Court’s review of Weld’s designation. See Denver Designations at 1-37, JA___-___.27 B. Petitioners, not EPA, distort local topography. Petitioners attack the placement of Weld’s nonattainment boundary as arbitrary and capricious. As they see it, in drawing that boundary EPA played fast and loose with the location of the Cheyenne Ridge. See Br. at 112-16. In truth it is Petitioners who are playing fast and loose with the facts. 27 Petitioners cite this Court’s opinion in North Carolina v. EPA to argue that differences in plain language are relevant to statutory interpretation. See Br. at 111 (citing 531 F.3d 896, 909-11 (D.C. Cir. 2008)). But we have already shown that EPA did not ignore plain statutory language. 54 USCA Case #18-1203 Document #1787456 Filed: 05/10/2019 Page 65 of 92 The Cheyenne Ridge runs along Colorado’s border with Wyoming. See Denver Designations at 27, JA___. True to its name, the Cheyenne Ridge is a ridge, not a sheer cliff that pops up out of the earth. It slopes up in northern Weld County, gradually gaining elevation as it nears Wyoming. See id. at 36-37, JA______. Id. at 37, JA___. In this topographic map of the Denver basin (note that the righthand side is north), the Denver nonattainment area is outlined in gray. We added red lines to mark the rough locations of Weld’s east and west boundaries. Compare with id. at 34, JA___ (showing county boundaries). As the map shows 55 USCA Case #18-1203 Document #1787456 Filed: 05/10/2019 Page 66 of 92 (and as EPA explained in its final designation), northern Weld County has “elevated terrain” (in yellow) that forms the “southern aspect [of] Cheyenne Ridge . . . .” Id. at 36, JA___. Petitioners complain that EPA “switched back and forth” between claiming that the Cheyenne Ridge is in northern Weld County and claiming that it is on the Wyoming border. Br. at 113 (citing Denver Designations at 27, 36, JA___, ___); see id. at 114-15. There was no “switch.” The Cheyenne Ridge extends from northern Weld County to the Wyoming border. So EPA accurately described the ridge’s location. See Denver Designations at 27, 36, JA___, ___. It did not, as Petitioners claim, “move mountains.” Br. at 113. 28 Petitioners also insist that “much of northern Weld” is on the same flat terrain (in dark green) as Greeley, Fort Collins, and Loveland. Id. at 114. That topography is pure fiction. The actual map above shows much of northern Weld County in the yellow that represents elevated terrain. 28 For that reason, maps in both EPA’s initial analysis and final designation correctly place the label for the Cheyenne Ridge between northern Weld County and the Wyoming border. See Denver Metro/North Range Nonattainment Area: Intended Area Designations for the 2015 Ozone National Ambient Air Quality Standards Technical Support Document at 32, JA___; Denver Designations at 34, JA___; Br. at 34, 113. 56 USCA Case #18-1203 C. Document #1787456 Filed: 05/10/2019 Page 67 of 92 Petitioners’ other arguments are meritless. Three more arguments complete Petitioners’ challenge to Weld’s designation. None undercuts EPA’s action. First, Petitioners want EPA to set Weld’s nonattainment boundary based on elevation, as it did for Uinta Basin in Utah. Id. at 115-16. They cannot raise this issue for the first time in litigation. Cf. Nat’l Ass’n of Clean Air Agencies, 489 F.3d at 1231 (holding that issues not raised before agency are waived). Nor is Petitioners’ argument meritorious. EPA delineated Weld’s nonattainment area using the same boundary as it had in earlier ozone designations. See Denver Designations at 35, JA___. By contrast, EPA’s designation of the Uinta Basin (a decision not challenged here) is based on facts specific to that area. See Utah Final Area Designations for the 2015 Ozone National Ambient Air Quality Standards Technical Support Document at 29-50, JA___-___. Petitioners’ preference for a different boundary in Weld thus cannot prove that EPA’s choice is arbitrary. Second, Petitioners fault EPA for ignoring data from a monitor in Boulder. Br. at 116. No 2016 data was available for the Boulder monitor, so it had no valid 2014-2016 design value. See Denver Designations at 8, JA___. Petitioners want EPA to have used the monitor’s 2013-2015 data, which would have shown a violation. Br. at 116. That course, however, would have meant using 2013-2015 data for the Boulder monitor, while using 2014-2016 data for all other monitors in 57 USCA Case #18-1203 Document #1787456 Filed: 05/10/2019 Page 68 of 92 the Denver area of analysis. See Denver Designations at 7, JA___. EPA reasonably refused to “rely on this mismatched dataset.” Miss. Comm’n, 790 F.3d at 160 (upholding “EPA’s conclusion that comparing data from the same time period would be more appropriate than analyzing data from different time periods in the same evaluation process.”); see id. at 158 (giving “significant deference” to EPA “in matters concerning data quality or sufficiency”). At any rate, Petitioners do not explain how the 2013-2015 Boulder data would have affected EPA’s holistic analysis of northern Weld County. See Response to Comments at 44, JA___ (noting that any impact on the Boulder monitor would have come from southern Weld County). Third, Petitioners say that EPA should have considered northern Weld County’s emissions in relation to emissions from nonattainment counties. Br. at 117-18. But Weld’s designation is the product of a holistic analysis in which no single factor is necessarily dispositive. See Catawba, 571 F.3d at 46. In their narrow focus on one aspect of emissions data, Petitioners do not explain how their preferred approach could alter the weight of evidence for Weld. That is far from enough to justify overturning EPA’s action. See Miss. Comm’n, 790 F.3d at 162. 58 USCA Case #18-1203 Document #1787456 Filed: 05/10/2019 Page 69 of 92 VIII. The Court should remand the remaining designations without vacatur. Petitioners challenge four more sets of designations: parts of the Milwaukee Combined Statistical Area; 29 Manitowoc County, Wisconsin; parts of the Chicago IL-IN-WI Combined Statistical Area; 30 and El Paso County, Texas (together, the remaining designations). Br. at 2-3. To the extent the Court finds that Petitioners have standing to challenge the remaining designations, EPA requests remand of those designations without vacatur to review them. But see supra Argument I (showing that Petitioners lack standing to challenge the El Paso, Kenosha, McHenry, and Porter designations). In making this request, EPA does not confess error or impropriety. See Limnia, Inc. v. U.S. Dep’t of Energy, 857 F.3d 379, 387 (D.C. Cir. 2017) (stating that remand requests do not require such confessions). Rather, having completed the remaining designations alongside those for the rest of the country, and in hindsight (including after considering Petitioners’ brief), EPA believes that the 29 The disputed designations are for the Wisconsin counties Milwaukee, Ozaukee, Racine, Waukesha, and Washington. Br. at 2-3, 60-69. 30 The disputed designations are for Kenosha County, Wisconsin; McHenry County, Illinois; and Porter County, Indiana. Br. at 2-3, 70-74, 48-59. 59 USCA Case #18-1203 Document #1787456 Filed: 05/10/2019 Page 70 of 92 Court could benefit from additional explanations of the remaining designations.31 The agency should be allowed to review its decisions for these designations. That review could potentially entail a range of actions, such as supplementing the record, additional communications with states, and undertaking the 120-day notice process. See 42 U.S.C. § 7407(d)(1)(B)(ii). This Court “commonly grant[s]” remand requests. Ethyl Corp. v. Browner, 989 F.2d 522, 524 (D.C. Cir. 1993). Doing so here would avoid “wasting the courts’ and the parties’ resources . . . .” Id.; see B.J. Alan Co. v. Interstate Commerce Comm’n, 897 F.2d 561, 563 n.1 (D.C. Cir. 1990) (“administrative reconsideration is a more expeditious and efficient means of achieving adjustment of agency policy than is resort to the federal courts.” (internal brackets and quotation marks omitted)). For one thing, remand would save the parties from having to spend any more time litigating over the current record. On remand EPA could supplement the record or modify the remaining designations in ways that could moot Petitioners’ challenges or at least narrow issues for judicial review. 31 The remaining designations are, after all, a tiny fraction of the thousands of designations that EPA issued, under statutory and judicial deadlines, for the 2015 ozone standards. See supra Statement of the Case § II. 60 USCA Case #18-1203 Document #1787456 Filed: 05/10/2019 Page 71 of 92 And if litigation does continue after remand, a supplemented record would make it easier for the Court to assess the agency’s rationale. 32 Separately, in ordering remand, this Court should not vacate the remaining designations. Whether to vacate turns on (1) the “seriousness of the [action’s] deficiencies” and (2) “the disruptive consequences of an interim change that may itself be changed.” Allied-Signal, Inc. v. U.S. Nuclear Regulatory Comm’n, 988 F.2d 146, 150-51 (D.C. Cir. 1993) (internal quotation marks omitted). Both factors weigh against vacatur here. First, EPA confesses no error in either the record or the remaining designations. Whether the agency ends up supplementing the record or revising the designations on remand, neither action makes the current designations legally deficient, let alone seriously so. See Miss. Comm’n, 790 F.3d at 150 (giving EPA broad discretion to make technical decisions). Second, because on remand the agency could let the remaining designations stand, it would be unnecessarily disruptive to vacate them now, only to have EPA issue the same designations later. More importantly, vacatur of nonattainment designations (in Wisconsin) would lift environmental protections now in place, an outcome this Court seeks to avoid. See, e.g., Ctr. for Biological Diversity v. EPA, 32 Because each challenged designation is the product of EPA’s independent holistic analysis and has its own record, remand would not affect the Court’s review of the other designations. 61 USCA Case #18-1203 Document #1787456 Filed: 05/10/2019 Page 72 of 92 861 F.3d 174, 188 (D.C. Cir. 2017). Those protections include, for example, emission offsets and installation of certain emission controls at new or modified stationary sources in nonattainment areas. See 42 U.S.C. § 7511a(a)(2)(C). Vacatur of an area’s nonattainment designation would also delay deadlines for that area to come into attainment—along with the accompanying public-health benefits. See id. § 7511(a)(1); 40 C.F.R. § 51.1303 Table 1. And the list goes on. See 42 U.S.C. § 7511a(a)(3) (requiring states to submit emissions information for nonattainment areas); id. § 7506(c) (requiring federally funded activities in nonattainment areas to, among other things, conform with implementation plans and avoid causing or contributing to new violations). Tellingly, Petitioners do not seek vacatur of the nonattainment designations as a remedy. See Br. at 124. Granted, they do seek vacatur of the attainment designations. Id. But that relief would not produce the nonattainment designations Petitioners want. See id. That is because EPA would still need to decide what designations to issue.33 Put another way, leaving the attainment designations in place on remand would not 33 Despite what Petitioners think, this Court has no power to direct EPA to designate an area nonattainment. See Br. at 124; e.g., Fed. Power Comm’n v. Idaho Power Co., 344 U.S. 17, 20 (1952) (holding that courts impermissibly usurp administrative functions when dictating to agency how to exercise its discretion on remand); Palisades Gen. Hosp. v. Leavitt, 426 F.3d 400, 403 (D.C. Cir. 2005) (similar). 62 USCA Case #18-1203 Document #1787456 Filed: 05/10/2019 Page 73 of 92 prejudice Petitioners because either way, they are not getting automatic nonattainment designations. CONCLUSION In over 120 pages of briefing, Petitioners have made clear their disagreement with EPA’s designations. What they have not made clear is their standing to challenge some of those designations. Nor have they shown that EPA overstepped its broad discretion in weighing the evidence. If the Court finds that it has jurisdiction over these challenges, it should defer to EPA’s judgment and deny the petitions for Lake, Jefferson, Monroe, Sheboygan, Door, Ottawa, and Weld. It should remand the remaining designations to EPA without vacatur. Submitted on May 10, 2019 Of counsel Seth Buchsbaum U.S. Environmental Protection Agency Office of General Counsel Washington, D.C. Jeffrey Bossert Clark Assistant Attorney General /s/ Sue Chen Sue Chen Tsuki Hoshijima U.S. Department of Justice Environment & Natural Resources Div. Environmental Defense Section P.O. Box 7611 Washington, D.C. 20044 202.305.0283 sue.chen@usdoj.gov 63 USCA Case #18-1203 Document #1787456 Filed: 05/10/2019 Page 74 of 92 CERTIFICATES OF COMPLIANCE AND SERVICE I certify that this brief complies with Fed. R. App. P. 32(a)(5) and (6) because it uses 14-point Times New Roman, a proportionally spaced font. I also certify that this brief complies with the Court’s December 14, 2018, order (modifying Fed. R. App. P. 32(a)(7)(B)) because according to Microsoft Word’s count, it has 13,760 words, excluding the parts of the brief exempted under Rule 32(f). Finally, I certify that on May 10, 2019, I electronically filed this brief with the Court’s CM/ECF system, which will serve each party. /s/ Sue Chen Sue Chen 64 USCA Case #18-1203 Document #1787456 Filed: 05/10/2019 Page 75 of 92 Statutory and Regulatory Addendum Table of Contents Statutes 42 U.S.C. § 7408 ....................................................................................................................A2 42 U.S.C. § 7506 .................................................................................................................... A6 Code of Federal Regulations 40 C.F.R. pt. 50, App. U .......................................................................................................A11 40 C.F.R. § 50.19 .................................................................................................................A15 40 C.F.R. § 51.1303...............................................................................................................A16 40 C.F.R. pt. 58 (excerpt)......................................................................................................A17 A1 USCA Case #18-1203 Page 6357 Document #1787456 Filed: 05/10/2019 TITLE 4~THE PUBLIC HEALTH AND WELFARE Page 76 of 92 § 7408 and maintenance of a PMZ.s monitoring network nec" (A) the Committee on Energy and Commerce of essary to implement the national ambient air quality the House of Representatives; and standards for PM2,5 under section 109 of the Clean Air " (B) the Committee on Environment and Public Act [42 U.S.C. 7409]. This implementation shall not reWorks of the Senate. sult in a diversion or reprogramming of funds from other Federal, State or local Clean Air Act activities. "BEC.6103. OZONE DESIGNATION REQUIREMENTS. " (a) The Governors shall be required to submit the Any funds previously diverted or reprogrammed fY~om designations referred to in section 107(d)(1) of the Clean section 105 Clean Air Act [42 U.B.C. 7405] grants for Air Act [42 U.S.C. 7407(d)(1)] within 2 years following PMZ.s monitors must be restored to State or local air the promulgation of the July 1997 ozone national ambiprograms in fiscal year 1999. ent air quality standards. " (b) EPA and the States, consistent with their re" (b) The Administrator shall promulgate final desapective authorities under the Clean Air Act [42 U.S.C. 7401 et seq.], shall ensure that the national network ignations no later than 1 year after the designations required under subsection (a) are required to be submit(designated in subsection (a)) which consists of the PMz.s monitors necessary to implement the national ted. ambient air quality standards is established by Decem- "SEC. 6104. ADDITIONAL PROVISIONS. ber 31, 1999. "Nothing in sections 6101 through 6103 shall be con" (c)(1) The Governors shall be required to submit desatrued by the Administrator of Environmental Protecignations referred to in section 107(d)(1) of the Clean tion Agency or any court, State, or person to affect any Air Act [42 U.S.C. 7407(d)(1)] for each area following pending litigation or to be a ratification of the ozone or promulgation of the July 1997 PM2.s national ambient air quality standard within 1 year after receipt of 3 PMZ.s standards." years of air quality monitoring data performed in acPENDING} ACTIONS AND PROCEEDINC}6 cordance with any applicable Federal reference methSuits, actions, and other proceedings lawfully comoda for the relevant areas. Only data from the monitormenced by or against the Administrator or any other ing network designated in subsection(a)and other Fedofficer or employee of the United States in his offYcial eral reference method PMZ,S monitors shall be considered for such designations. Nothing in the previous sen- capacity or in relation to the discharge of his offYcial duties under act July 14, 1955, the Clean Air Act, as in tence shall be construed as affecting the Governor's aueffect immediately prior to the enactment of Pub. L. thority to designate an area initially as nonattainment, and the Administrator's authority to promulgate 9(r9b [Aug. 7, 1977], not to abate by reason of the taking the designation of an area as nonattainment, under aec- effect of Pub. L. 9 95, see section 406(a) of Pub. L. tion 1M(d)(1) of the Clean Air Act, based on its con- 9 95, set out as an Effective Date of 1977 Amendment note under section 7401 of this title. tribution to ambient air quality in a nearby nonattainment area. MODIFICATION OR RESCIB$ION OF RULER, REGULATIONS, " (2) For any area designated as nonattainment for ORDERS, DETERMINATIONS, CONTRACTS, CERTIFIthe July 1997 PM2.5 national ambient air quality standCATIONB, AUTHORIZATIONS, DELEGATIONS, AND OTHER ard in accordance with the schedule set forth in this ACTIONS section, notwithstanding the time limit prescribed in paragraph (2) of section 169B(e) of the Clean Air Act [42 All rules, regulations, orders, determinations, conU.S.C. 7492(e)(2)], the Administrator shall require State tracts, certifications, authorizations, delegations, or implementation plan revisions referred to in such paraother actions duly issued, made, or taken by or pursugraph (2) to be submitted at the same time ae State imant to act July 14, 1955, the Clean Air Act, ae in effect plementation plan revisions referred to in section 172 of immediately prior to the date of enactment of Pub. L. the Clean Air Act [42 U.B.C. 7502] implementing the re- 9rr 95 [Aug. 7, 1977] to continue in full force and effect vised national ambient air quality standard for fine until modified or rescinded in accordance with act July particulate matter are required to be submitted. For 14, 1955, as amended by Pub. L. 95-9b [this chapter], see any area designated as attainment or unclassifiable for section 406(b) of Pub. L. 9x95, set out as an Effective such standard, the Administrator shall require the Date of 1977 Amendment note under section 7401 of this State implementation plan revisions referred to in such title. paragraph (2) to be submitted 1 year after the area has been so designated. The preceding provisions of this § 7408. Air quality criteria and control techparagraph shall not preclude the implementation of the niquea agreements and recommendations set forth in the Grand Canyon Visibility Transport Commission Report (a) Air pollutant list; publication and revision by dated June 1996. Administrator; issuance of air quality cri" (d)The Administrator shall promulgate the designateria for air pollutants tiona referred to in section 107(d)(1) of the Clean Air (1) For the purpose of establishing national Act (42 U.S.C. 7407(d)(1)] for each area following proprimary and secondary ambient air quality mulgation of the July 1997 PMz.s national ambient air quality atandasd by the earlier of 1 year after the ini- standards, the Administrator shall within 30 tial designations required under subsection (c)(1) are days after December 31, 1970, publish, and shall required to be submitted or December 31, 2005. from time to time thereafter revise, a list which " (e) FIELD STUDY.—Not later than 2 years after the date of enactment of the SAFETEA-LU [Aug. 10, 2005], includes each air pollutant-(A) emissions of which, in his judgment, the Administrator shall— "(1) conduct a fYeld study of the ability of the PM2.5 cause or contribute to air pollution which may Federal Reference Method to differentiate those parreasonably be anticipated to endanger public ticles that are larger than 2.5 micrometers in diamehealth or welfare; ter; (B) the presence of which in the ambient air " (2) develop a Federal reference method to measure results from numerous or diverse mobile or directly particles that are larger than 2.5 micromstationary sources; and eters in diameter without reliance on subtracting (C) for which air quality criteria had not from coarse particle measurements those particles been issued before December 31, 1970 but for that are equal to or smaller than 2.5 micrometers in diameter; which he plans to issue air quality criteria " (3) develop a method of measuring the compoaiunder this section. tion of coaxes particles; and " (4) submit a report on the study and responsibil(2) The Administrator shall issue air quality itiea of the Administrator under paragraphs (1) criteria for an air pollutant within 12 months through (3)t~ after he has included such pollutant in a list A2 USCA Case #18-1203 § 7408 Document #1787456 Filed: 05/10/2019 TITLE 42—THE PUBLIC HEALTH AND WELFARE Page 77 of 92 Page 6358 under paragraph (1). Air quality criteria for an be announced in the Federal Register and copies air pollutant shall accurately reflect the latest shall be made available to the general public. scientific knowledge useful in indicating the ( e)1Y~ansportation planning and guidelines kind and extent of all identifiable effects on The Administrator shall, after consultation public health or welfare which may be expected from the presence of such pollutant in the ambi- with the Secretary of Transportation, and after ent air, in varying quantities. The criteria for providing public notice and opportunity for an air pollutant, to the extent practicable, shall comment, and with State and local officials, within nine months after November 15, 1990,1 and include information on— (A) those variable factors (including atmos- periodically thereafter as necessary to maintain pheric conditions) which of themselves or in a continuous transportation-air quality plancombination with other factors may alter the ning process, update the June 1978 Transporeffects on public health or welfare of such air tation-Air Quality Planning Guidelines and publiah guidance on the development and implepollutant; (B) the types of air pollutants which, when mentation of transportation and other measures present in the atmosphere, may interact with necessary to demonstrate and maintain attainsuch pollutant to produce an adverse effect on ment of national ambient air quality standards. Such guidelines shall include information on— public health or welfare; and (1) methods to identify and evaluate alter(C) any known or anticipated adverse effects native planning and control activities; on welfare. (2) methods of reviewing plans on a regular (b) Issuance by Administrator of information on basis as conditions change or new information air pollution control techniques; standing is presented; consulting committees for air pollutants; es(3) identification of funds and other retabliahment; membership sources necessary to implement the plan, in(1) Simultaneously with the issuance of cricluding interagency agreements on providing teria under subsection (a), the Administrator such funds and resources; shall, after consultation with appropriate advi(4) methods to assure participation by the sory committees and Federal departments and public in all phases of the planning process; agencies, issue to the States and appropriate air and pollution control agencies information on air (5) such other methods as the Administrator pollution control techniques, which information determines necessary to carry out a continushall include data relating to the cost of instalous planning process. lation and operation, energy requirements, (~ Information regarding processes, procedures, emission reduction benefits, and environmental and methods to reduce or control pollutants impact of the emission control technology. Such in transportation; reduction of mobile source information shall include such data as are availrelated pollutants; reduction of impact on able on available technology and alternative public health methods of prevention and control of air pollu( 1) The Administrator shall publish and make tion. Such information shall also include data on alternative fuels, processes, and operating available to appropriate Federal, State, and methods which will result in elimination or sig- local environmental and transportation agencies not later than one year after November 15, 1990, nificant reduction of emissions. (2) In order to assist in the development of in- and from time to time thereafter— (A) information prepared, as appropriate, in formation on pollution control techniques, the consultation with the Secretary of TransporAdministrator may establish a standing consulttation, and after providing public notice and ing committee for each air pollutant included in opportunity for comment, regarding the fora list published pursuant to subsection (a)(1), mulation and emission reduction potential of which shall be comprised of technically qualitransportation control measures related to fied individuals representative of State and criteria pollutants and their precursors, inlocal governments, industry, and the academic cluding, but not limited to— community. Each such committee shall submit, (1) programs for improved public transit; as appropriate, to the Administrator informa(ii) restriction of certain roads or lanes to, tion related to that required by paragraph (1). or construction of such roads or lanes for use (c) Review, modification, and reieauance of criby, passenger buses or high occupancy vehiteria or information cles; (iii) employer-based transportation manThe Administrator shall from time to time reagement plans, including incentives; view, and, as appropriate, modify, and reissue (iv) trip-reduction ordinances; any criteria or information on control tech(v) traffic flow improvement programs niques issued pursuant to this section. Not later that achieve emission reductions; than six months after August 7, 1977, the Admin(vi) fringe and transportation corridor istrator shall revise and reissue criteria relating parking facilities serving multiple occuto concentrations of NOz over such period (not pancy vehicle programs or transit service; more than three hours) as he deems appropriate. (vii) programs to limit or restrict vehicle Such criteria shall include a discussion of nitric use in downtown are~,a or other areas of and nitrous acids, nitrites, nitrates, nitrosemission concentration particularly during aminea, and other carcinogenic and potentially periods of peak use; carcinogenic derivatives of oxides of nitrogen. (viii) programs for the provision of all (d) Publication in Federal Register; availability forms of high-occupancy, shared-ride servof copies for general public ices; The issuance of air quality criteria and information on air pollution control techniques shall 1 See Codification note below. A3 USCA Case #18-1203 Page 6359 Document #1787456 Filed: 05/10/2019 TITLE 4~THE PUBLIC HEALTH AND WELFARE Page 78 of 92 $7408 (ix) programs to limit portions of road sur- ants (as identified by the Administrator in the faces or certain sections of the metropolitan Administrator's sole discretion). area to the use of non-motorized vehicles or (h)RACTBACT/LAER clearinghouse pedestrian use, both as to time and place; The Administrator shall make information re(x) programs for secure bicycle storage facilities and other facilities, including bicy- garding emission control technology available cle lanes, for the convenience and protection to the States and to the general public through of bicyclists, in both public and private a central database. Such information shall include all control technology information reareas; (xi) programs to control extended idling of ceived pursuant to State plan provisions requiring permits for sources, including operating pervehicles; (xii) programs to reduce motor vehicle mits for existing sources. emissions, consistent with subchapter II, (July 14, 1955, ch. 360, title I, §108, as added Pub. which are caused by extreme cold start con- L. 91 04, §4(a), Dec. 31, 1970, 84 Stat. 1678; ditions; amended Pub. L. 9 95, title I, §§ 104, 105, title IV, (xiii) employer-sponsored programs to per- §401(a), Aug. 7, 1977, 91 Stat. 689, 790; Pub. L. mit flexible work schedules; 101-549, title I, §§108(a~(c), (o), 111, Nov. 15, 1990, (xiv) programs and ordinances to facilitate 104 Stat. 2465, 2466, 2469, 2470; Pub. L. 10 362, non-automobile travel, provision and utiliza- title XV, §1501(b), Nov. 10, 1998, 112 Stat. 3294.) tion of mass transit, and to generally reduce CODIFICATION the need for single-occupant vehicle travel, as part of transportation planning and develNovember lb, 1990, referred to in subset. (e), was in opment efforts of a locality, including pro- the original "enactment of the Clean Air Act Amendgrams and ordinances applicable to new ments of 1989", and was translated as meaning the date shopping centers, special events, and other of the enactment of Pub. L. 101-549, popularly known as the Clean Air Act Amendments of 1990, to reflect the centers of vehicle activity; (xv) programs for new construction and probable intent of Congress. Section major reconstructions of paths, tracks or this title. was formerly classifYed to section 1857c-3 of areas solely for the use by pedestrian or PEuoR PRovzsioxs other non-motorized means of transportation when economically feasible and in the A prior section 108 of act July 14, 1955, was renumpublic interest. For purposes of this clause, bered section 115 by Pub. L. 91 04 and is classified to the Administrator shall also consult with section 7415 of this title. the Secretary of the Interior; and AMENDMENTS (xvi) program to encourage the voluntary 199~Subsec. (f~(3), (4). Pub. L. 105-362 struck out par. removal from use and the marketplace of 3), which required reports by the Secretary of Transpre-1980 model year light duty vehicles and ( portation and the Administrator to be submitted to pre-1980 model light duty trucks.2 Congress by Jan. 1, 1993, and every 3 years thereafter, (B) information on additional methods or reviewing and analyzing existing State and local air strategies that will contribute to the reduc- quality related transportation programs, evaluating tion of mobile source related pollutants during achievement of goals, and recommending changes to existing programs, and par. (4), which required that in periods in which any primary ambient air each report after the first report the Secretary of quality standard will be exceeded and during Transportation include a description of the actions episodes for which an air pollution alert, taken to unplement the changes recommended in the warning, or emergency has been declared; preceding report. (C) information on other measures which 199~Subaec. (e). Pub. L. 101-549, ¢108(a), inserted may be employed to reduce the impact on pub- first sentence and struck out former first sentence lic health or protect the health of sensitive or which read as follows: "The Administrator shall, after consultation with the Secretary of Transportation and susceptible individuals or groups; and (D) information on the extent to which any the Secretary of Housing and Urban Development and State and local officials and within 180 days after Auprocess, procedure, or method to reduce or gust 7, 1977, and from time to time thereafter, publish control such air pollutant may cause an in- guidelines on the basic program elements for the plancrease in the emissions or formation of any ning process assisted under section 7505 of this title." other pollutant. Subaec. (f~(1). Pub. L. 101-549, §108(b), in introductory (2) In publishing such information the Admin- provisions, substituted present provisions for provisions relating to Federal agencies, States, and air polistrator shall also include an assessment oflution control agencies within either 6 months or one (A) the relative effectiveness of such proc- yeas after Aug. 7, 1977. esses, procedures, and methods; Subset. (f)(1)(A). Pub. L. 101 49, §108(b), substituted (B) the potential effect of such processes, present provisions for provisions relating to informaprocedures, and methods on transportation tion prepared in cooperation with Secretary of Transsystems and the provision of transportation portation, regarding processes, procedures, and methoda to reduce certain pollutants. services; and Bubaec. (f~(3), (4). Pub. L. 101-549, §111, added pars.(3) (C)the environmental, energy, and economic impact of such proce~se~, procedures, and and (4). Subaec. (g). Pub. L. 101-b49, §108(0), added subset. (g). methods. Subaec. (h). Pub. L. 101-549, §108(c), added subset. (h). (g) Assessment of risks to ecosystems 1977-Subset. (a)(1)(A). Pub. L. 9fr9b, §401(a), subThe Administrator may assess the risks to stituted "emissions of which, in his judgment, cause or ecosystems from exposure to criteria air pollut- contribute to air pollution which may reasonably be anticipated 2So in original. The Beriod probably should be a semicolon. to endanger public health or welfare" for "which in his judgment has an adverse effect on public health or welfare". A4 USCA Case #18-1203 $ 7408 Document #1787456 Filed: 05/10/2019 TITLE 42—THE PUBLIC HEALTH AND WELFARE Subaec. (b)(1). Pub. L. 995,§104(a), substituted "cost of installation and- operation, energy requirements, emission reduction benefits, and environmental impact of the emission control technology" for "technology and costs of emission control". Subsec. (c). Pub. L. 9 95, §104(b), inserted provision directing the Administrator, not later than six months after Aug. 7, 1977, to revise and reissue criteria relating to concentrations of NOa over such period (not more than three hours) as he deems appropriate, with the criteria to include a discussion of nitric and nitrous acids, nitrites, nitrates, nitrosamines, and other carcinogenic and potentially carcinogenic derivatives of oxides of nitrogen. Bubsecs. (e), (f~. Pub. L. 9 95, §105, added subsets. (e) and (f~. EFFECTIVE DATE OF 1J'7'7 AMENDMENT Amendment by Pub. L. 9 95 effective Aug. 7, 1977, except as otherwise expressly provided, see section 406(d) of Pub. L. 9x95, set out as a note under section 7401 of this title. MODIFICATION OR RESCISSION OF RULES, REGULATIONS, ORDERS, DETERMINATIONS, CONTRACTS, CERTIFICATIONS, AUTHORIZATIONS, DELEGATIONS, AND OTHER Acrioxs All rules, regulations, orders, determinations, contracts, certifications, authorizations, delegations, or other actions duly issued, made, or taken by or purauant to act July 14, 1955, the Clean Air Act, as in effect immediately prior to the date of enactment of Pub. L. 95-9b [Aug. 7, 1977] to continue in full force and effect until modified or rescinded in accordance with act July 14, 1955, as amended by Pub. L. 995 [this chapter], see section 406(b) of Pub. L. 995, set out as an Effective Date of 1977 Amendment note under section 7401 of this title. ~ 7409. National primary and aecoadary ambient air quality standards (a) Promulgation (1) The Administrator— (A) within 30 days after December 31, 1970, shall publish proposed regulations prescribing a national primary ambient air quality standard and a national secondary ambient air quality standard for each air pollutant for which air quality criteria have been issued prior to such date; and (B) after a reasonable time for interested persons to submit written comments thereon (but no later than 90 days after the initial publication of such proposed standards) shall by regulation promulgate such proposed national primary and secondary ambient air quality standards with such modifications as he deems appropriate. (2) With respect to any air pollutant for which air quality criteria are issued after December 31, 1970, the Administrator shall publish, simultaneously with the issuance of such criteria and information, proposed national primary and secondary ambient air quality standards for any such pollutant. The procedure provided for in paragraph (1)(B) of this subsection shall apply to the promulgation of such standards. (b) Protection of public health and welfare (1) National primary ambient air quality standards, prescribed under subsection (a) shall be ambient air quality standards the attainment and maintenance of which in the judgment of the Administrator, based on such criteria and Page 79 of 92 Page 6360 allowing an adequate margin of safety, are requisite to protect the public health. Such primaxy standards may be revised in the same manner as promulgated. (2) Any national secondary ambient air quality standard prescribed under subsection (a) shall specify a level of air quality the attainment and maintenance of which in the judgment of the Administrator, based on such criteria, is requisite to protect the public welfare from any known or anticipated adverse effects associated with the presence of such air pollutant in the ambient air. Such secondary standards may be revised in the same manner as promulgated. (c) National primary ambient air quality etandard for nitrogen dioxide The Administrator shall, not later than one year after August 7, 1977, promulgate a national primary ambient air quality standard for NOZ concentrations over a period of not more than 3 hours unless, based on the criteria issued under section 7408(c) of this title, he finds that there is no significant evidence that such a standard for such a period is requisite to protect public health. (d) Review and revision of criteria and atandarde; independent scientific review committee; appointment; advisory functions (1) Not later than December 31, 1980, and at five-year intervals thereafter, the Administrator shall complete a thorough review of the criteria published under section 7408 of this title and the national ambient air quality standards promulgated under this section and shall make such revisions in such criteria and standards and promulgate such new standards as may be appropriate in accordance with section 7408 of this title and subsection (b) of this section. The Administrator may review and revise criteria or promulgate new standards earlier or more frequently than required under this paragraph. (2)(A) The Administrator shall appoint an independent scientific review committee composed of seven members including at least one member of the National Academy of Sciences, one physician, and one person representing State air pollution control agencies. (B) Not later than January 1, 1980, and at fiveyear intervals thereafter, the committee referred to in subparagraph (A) shall complete a review of the criteria published under section 7408 of this title and the national primary and secondary ambient air quality standards promulgated under this section and shall recommend to the Administrator any new national ambient air quality standards and revisions of existing criteria and standards as may be appropriate under section 7408 of this title and subsection (b) of this section. (C) Such committee shall also (i) advise the Administrator of areas in which additional knowledge is required to appraise the adequacy and basis of existing, new, or revised national ambient air quality standards, (ii) describe the research efforts necessary to provide the required information, (iii) advise the Administrator on the relative contribution to air pollution concentrations of natural as well as anthropogenic activity, and (iv) advise the Administrator of any adverse public health, welfare, so- A5 USCA Case #18-1203 Page 6447 Document #1787456 Filed: 05/10/2019 TITLE 42—THE PUBLIC HEALTH AND WELFARE of the area as an attainment area. The failure of any area redesignated as an attainment area to maintain the national ambient air quality standard concerned shall not result in a requirement that the State revise ite State implementation plan unless the Administrator, in the Administrator's discretion, requires the State to submit a revised State implementation plan. (July 14, 1955, ch. 360, title I, §175A, as added Pub. L. 101-549, title I, §102(e), Nov. 15, 1990, 104 Stat. 2418.) ~ 7806. Limitations on certain Federal assistance (a),(b) Repealed. Pub. L. 101,549, title I, § 110(4), Nov. 16, 1990, 104 Stat. 2470 (c) Activities not conforming to approved or promulgated plans (1) No department, agency, or instrumentality of the Federal Government shall engage in, support in any way or provide financial assistance for, license or permit, or approve, any activity which does not conform to an implementation plan after it has been approved or promulgated under section 7410 of this title. No metropolitan planning organization designated under section 134 of title 23, shall give its approval to any project, program, or plan which does not conform to an implementation plan approved or promulgated under section 7410 of this title. The assurance of conformity to such an implementation plan shall be an affirmative responsibility of the head of such department, agency, or instrumentality. Conformity to an implementation plan means— (A) conformity to an implementation plan's purpose of eliminating or reducing the severity and number of violations of the national ambient air quality standards and achieving expeditious attainment of such standards; and (B)that such activities will nom (i) cause or contribute to any new violation of any standard in any area; (ii) increase the frequency or severity of any existing violation of any standard in any area; or (iii) delay timely attainment of any standand or any required interim emission reductions or other milestones in any area. The determination of conformity shall be based on the most recent estimates of emissions, and such estimates shall be determined from the most recent population, employment, travel and congestion estimates as determined by the metropolitan planning organization or other agency authorized to make such estimates. (2) Any transportation plan or program developed pursuant to title 23 or chapter 53 of title 49 shall implement the transportation provisions of any applicable implementation plan approved under this chapter applicable to all or part of the area covered by such transportation plan or program. No Federal agency may approve, aocept or fund any transportation plan, program or project unless such plan, program or project has been found to conform to any applicable implementation plan in effect under this chapter. In particular— (A) no transportation plan or transportation improvement program may be adopted by a A6 Page 80 of 92 § 7506 metropolitan planning organization designated under title 23 or chapter 53 of title 49, or be found to be in conformity by a metropolitan planning organization until a final determination has been made that emissions expected from implementation of such plans and programs are consistent with estimates of emissions from motor vehicles and necessary emissions reductions contained in the applicable implementation plan, and that the plan or program will conform to the requirements of paragraph (1)(B); (B) no metropolitan planning organization or other recipient of funds under title 23 or chapter 53 of title 49 shall adopt or approve a transportation improvement program of projects until it determines that such program provides for timely implementation of transportation control measures consistent with schedules included in the applicable implementation plan; (C) a transportation project may be adopted or approved by a metropolitan planning organization or any recipient of funds designated under title 23 or chapter 53 of title 49, or found in conformity by a metropolitan planning organization or approved, accepted, or funded by the Department of Transportation only if it meets either the requirements of subparagraph (D)or the following requirements— (i) such a project comes from a conforming plan and program; (ii) the design concept and scope of such project have not changed significantly since the conformity finding regarding the plan and program from which the project derived; and (iii) the design concept and scope of such project at the time of the conformity determination for the program was adequate to determine emissions. (D) Any project not referred to in subparagraph (C)shall be treated as conforming to the applicable implementation plan only if it is demonstrated that the projected emissions from such project, when considered together with emissions projected for the conforming transportation plans and programs within the nonattainment area, do not cause such plans and programs to exceed the emission reduction projections and schedules assigned to such plans and programs in the applicable implementation plan. (E) The appropriate metropolitan planning organization shall redetermine conformity of existing transportation plans and programs not later than 2 years after the date on which the Administrator— (i) finds a motor vehicle emissions budget to be adequate in accordance with section 93.118(e)(4) of title 40, Code of Federal Regulations (as in effect on October 1, 2004); (ii) approves an implementation plan that establishes a motor vehicle emissions budget if that budget has not yet been determined to be adequate in accordance with clause (i); or (iii) promulgates an implementation plan that establishes or revises a motor vehicle emissions budget. USCA Case #18-1203 ~ 7506 Document #1787456 Filed: 05/10/2019 TITLE 4~THE PUBLIC HEALTH AND WELFARE (3) Until such time as the implementation plan revision referred to in paragraph (4)(C)I is approved, conformity of such plans, programs, and projects will be demonstrated if— (A) the transportation plans and programs— (i) are consistent with the most recent estimates of mobile source emissions; (ii) provide for the expeditious implementation of transportation control measures in the applicable implementation plan; and (iii) with respect to ozone and carbon monoxide nonattainment areas, contribute to annual emissions reductions consistent with sections 7511a(b)(1) and 7512a(a)(7) of this title; and (B)the transportation project (i) come from a conforming transportation plan and program as defined in subparagraph (A) or for 12 months after November 15, 1990, from a transportation program found to conform within 3 years prior to November 15, 1990; and (ii) in carbon monoxide nonattainment areas, eliminate or reduce the severity and number of violations of the carbon monoxide standards in the area substantially affected by the project. With regard to subparagraph (B)(ii), such determination may be made as part of either the conformity determination for the transportation program or for the individual project taken as a whole during the environmental review phase of project development. (4) CRITERIA AND PROCEDURES FOR DETERMINING CONFORMITY.— (A) IN C}ENERAL.-Th2 Administrator shall promulgate, and periodically update, criteria and procedures for determining conformity (except in the case of transportation plans, programs, and projects) of, and for keeping the Administrator informed about, the activities referred to in paragraph (1). (B) TRANSPORTATION PLANS, PROGRAMS, AND PROJECTS.—The Administrator, with the concurrence of the Secretary of Transportation, shall promulgate, and periodically update, criteria and procedures for demonstrating and assuring conformity in the case of transportation plans, programs, and projects. (C) CIVIL ACTION TO COMPEL PROMULGATION.— A civil action may be brought against the Administrator and the Secretary of Transportation under section 7604 of this title to compel promulgation of such criteria and procedures and the Federal district court shall have jurisdiction to order such promulgation. (D) The procedures and criteria shall, at a minimum— (i) address the consultation procedures to be undertaken by metropolitan planning organizations and the Secretary of Transportation with State and local air quality agencies and State departments of transportation before such organizations and the Secretary make conformity determinations; (ii) address the appropriate frequency for making conformity determinations, but the frequency for making conformity determina- Page 81 of 92 Page 6448 tions on updated transportation plans and programs shall be every 4 years, except in a case in which— (I) the metropolitan planning organization elects to update a transportation plan or program more frequently; or (II) the metropolitan planning organization is required to determine conformity in accordance with paragraph (2)(E); and (iii) address how conformity determinaLions will be made with respect to maintenance plans. (E) INCLUSION OF CRITERIA AND PROCEDURES IN siP.—Not later than 2 years after August 10, 2005, the procedures under subparagraph (A) shall include a requirement that each State include in the State implementation plan criteria and procedures for consultation required by subparagraph (D)(i), and enforcement and enforceability (pursuant to sections 93.125(c) and 93.122(a)(4)(ii) of title 40, Code of Federal Regulations) in accordance with the Administrator's criteria and procedures for consultation, enforcement and enforceability. (F) Compliance with the rules of the Administrator for determining the conformity of transportation plans, programs, and projects funded or approved under title 23 or chapter 53 of title 49 to State or Federal implementation plans shall not be required for traffic signal synchronization projects prior to the funding, approval or implementation of such projects. The supporting regional emissions analysis for any conformity determination made with respect to a transportation plan, program, or project shall consider the effect on emissions of any such project funded, approved, or implemented prior to the conformity determination. (5) APPLICABILITY.-Th13 Sub88CtlOri shall apply only with respect to— (A)a nonattainment area and each pollutant for which the area is designated as a nonattainment area; and (B) an area that was designated as a nonattainment area but that was later redesignated by the Administrator as an attainment area and that is required to develop a maintenance plan under section 7505a of this title with respect to the specific pollutant for which the area was designated nonattainment. (6) Notwithstanding paragraph 5,2 this subsection shall not apply with respect to an area designated nonattainment under section 7407(d)(1) of this title until 1 year after that area is first designated nonattainment for a specific national ambient air quality standard. This paragraph only applies with respect to the national ambient air quality standard for which an area is newly designated nonattainment and does not affect the area's requirements with respect to all other national ambient air quality standards for which the area is designated nonattainment or has been redesignated from nonattainment to attainment with a maintenance plan pursuant to section 7505a 1 of this title (including any pre-existing national ambient air 1 See References in Text note below. a 6o in original. Probably should be "paragraph (5),". A7 USCA Case #18-1203 Page 6449 Document #1787456 Filed: 05/10/2019 Page 82 of 92 TITLE 42—THE PUBLIC HEALTH AND WELFARE quality standard for a pollutant for which a new or revised standard has been issued). (7) CONFORMITY HORIZON FOR TRANSPORTATION PLANS.— (A) Irr GENERAL.-E2Ch conformity deter- mination required under this section for a transportation plan under section 134(1) of title 23 or section 5303(1) of title 49 shall require ademonstration of conformity for the period ending on either the final year of the transportation plan, or at the election of the metropolitan planning organization, after consultation with the air pollution control agency and solicitation of public comments and consideration of such comments, the longest of the following periods: (i) The first 10-year period of any such transportation plan. (ii) The latest year in the implementation plan applicable to the area that contains a motor vehicle emission budget. (iii) The year after the completion date of a regionally significant project if the project is included in the transportation improvement program or the project requires approval before the subsequent conformity determination. (B) REGIONAL EMI88ION8 ANALYSIS.—The COn- formity determination shall be accompanied by a regional emissions analysis for the last year of the transportation plan and for any year shown to exceed emission budgets by a prior analysis, if such year extends beyond the applicable period as determined under subparagraph (A). (C)ExCEpTrox.—In any case in which an area has a revision to an implementation plan under section 7505a(b) of this title and the Administrator has found the motor vehicles emissions budgets from that revision to be adequate in accordance with section 93.118(e)(4) of title 40, Code of Federal Regulations (as in effect on October 1, 2004), or has approved the revision, the demonstration of conformity at the election of the metropolitan planning organization, after consultation with the air pollution control agency and solicitation of public comments and consideration of such comments, shall be required to extend only through the last year of the implementation plan required under section 7505a(b) of this title. (D) EFFECT OF ELECTION.—Any eleCtiOn by & metropolitan planning organization under this paragraph shall continue in effect until the metropolitan planning organization elects otherwise. (E) AIR POLLUTION CONTROL AGENCY DEFINED.—In this paragraph, the term "air pollu- tion control agency" means an air pollution control agency (as defined in section 7602(b) of this title) that is responsible for developing plans or controlling air pollution within the area covered by a transportation plan. (8) SUBSTITUTION OF TRANSPORTATION CONTROL MEABURES.— (A) IN GENERAL.-Transportation control measures that are specified in an implementation plan may be replaced or added to the implementation plan with alternate or additional transportation control measures— ~ 7606 (i) if the substitute measures achieve equivalent or greater emissions reductions than the control measure to be replaced, as demonstrated with an emissions impact analysis that is consistent with the current methodology used for evaluating the replaced control measure in the implementation plan; (ii) if the substitute control measures are implemented— (I) in accordance with a schedule that is consistent with the schedule provided for control measures in the implementation plan; or (II) if the implementation plan date for implementation of the control measure to be replaced has passed, as soon as practicable after the implementation plan date but not later than the date on which emission reductions are necessary to achieve the purpose of the implementation plan; (iii) if the substitute and additional control measures are accompanied with evidence of adequate personnel and funding and authority under State or local law to implement, monitor, and enforce the control measures; (iv) if the substitute and additional control measures were developed through acollaborative process that included— (I) participation by representatives of all affected jurisdictions (including local air pollution control agencies, the State air pollution control agency, and State and local transportation agencies); (II) consultation with the Administrator; and (III) reasonable public notice and opportunity for comment; and (v) if the metropolitan planning organization, State air pollution control agency, and the Administrator concur with the equivalency of the substitute or additional control measures. (B) AvoPmiorr.—(i) Concurrence by the metropolitan planning organization, State air pollution control agency and the Administrator as required by subparagraph (A)(v) shall conatitute adoption of the substitute or additional control measures so long as the requirements of subparagraphs (A)(i), (A)(ii), (A)(iii) and (A)(iv) are met. (ii) Once adopted, the substitute or additional control measures become, by operation of law, part of the State implementation plan and become federally enforceable. (iii) Within 90 days of its concurrence under subparagraph (A)(v), the State air pollution control agency shall submit the substitute or additional control measure to the Administrator for incorporation in the codification of the applicable implementation plan. Nothwithstanding3 any other provision of this chapter, no additional State process shall be necessary to support such revision to the applicable plan. (C) NO REQUIREMENT FOR EXPRESS PERMIS- siorr.—The substitution or addition of a trans36o in original. Probably should ba "Notwithstanding". A8 USCA Case #18-1203 §7606 Document #1787456 Filed: 05/10/2019 TITLE 4~THE PUBLIC HEALTH AND WELFARE Page 83 of 92 Page 6450 portation control measure in accordance with REFERENCES IN TEXT this paragraph and the funding or approval of Paragraph (4) of subset. (c), referred to in subeec. such a control measure shall not be contingent (c)(3), was amended by Pub. L. 10 59, title VI, §6011(Y~, on the existence of any provision in the appli- Aug. 10, 2005, 119 Btat. 1881, to redesignate subpar. (C) cable implementation plan that expressly per- as (E), strike it out, and add new subpara.(C) and (E). See 2005 Amendment notes below. mits such a substitution or addition. (D) NO REQUIREMENT FOR NEW CONFORMITY DETERMINATION.-Th@ $ubStltUtlOri OT add1t10II of a transportation control measure in accordance with this paragraph shall not require-(i) anew conformity determination for the transportation plan; or (ii) a revision of the implementation plan. (E) CONTINUATION OF CONTROL MEASURE BEING REPLACED.-A control measure that is being replaced by a substitute control measure under this paragraph shall remain in effect until the substitute control measure is adopted by the State pursuant to subparagraph (B). (F) EFFECT OF ADOPTION.-AdOptiOn Of a sUbstitute control measure shall constitute rescission of the previously applicable control measure. Section 7505a of this title, referred to in subset. (c)(6), was in the original "section 175(A)" and was translated as reading "section 175A", meaning section 175A of act July 14, 1955, which is classified to section 7b05a of this title, to reflect the probable intent of Congress. The Housing and Urban Development Act, referred to in subset.(d), may be the name for a series of acts shasing the same name but enacted in different years by Pub. L. 8 117, Aug. 10, 1965, 79 Btat. 451; Pub. L. 90-448, Aug. 1, 1968, 82 Stat. 476; Pub. L. 91-152, Dec. 24, 1969, 83 Stat. 379; and Pub. L. 91-609, Dec. 31, 1970, 84 Stat. 1770, respectively. For complete classification of these Acts to the Code, see Short Title notes set out under section 1701 of Title 12, Banks and Banking, and Tables. CODIFICATION In subsets. (c)(2) and (d), "chapter 53 of title 49" substituted for "the Urban Mass Transportation Act [49 App. U.S.C. 1601 et seq.]" and in subset. (c)(4)(F) substituted for "Federal Transit Act" on authority of Pub. L. 10 272, §6(b), July 5, 1994, 108 Stat. 1378 (the first section of which enacted subtitles II, III, and V to X of Title 49, Transportation), and of Pub. L. 10240, title III, §3003(b), Dec. 18, 1991, lOb Stat. 2088, which provided that references in laws to the Urban Mass Transportation Act of 1964 be deemed to be references to the Federal Transit Act. (9) LAPSE OF CONFORMITY.-If 2 COnfOTmlty d2termination required under this subsection for a transportation plan under section 134(1) of title 23 or section 5303(1) of title 49 or a transportation improvement program under section 134(j) of such title 23 or under section 5303(j) of such title 49 is not made by the applicable deadAMENDMENTS line and such failure is not corrected by addi2005--8ubsec. (c)(2)(E). Pub. L. 109-59, §6011(a), added tionai measures to either reduce motor vehicle (E). emissions sufficient to demonstrate compliance subpar. Subset. (c)(4). Pub. L. 109-59, §6011(f~(1~(3), inserted with the requirements of this subsection within par. (4) and subpar.(A) headings, in first sentence sub12 months after such deadline or other measures stituted "The Administrator shall promulgate, and pesufficient to correct such failures, the transpor- riodically update," for "No later than one year after November 15, 1990, the Administrator shall promultation plan shall lapse. (10) LnPSE.-In this subsection, the term gate", designated second sentence as subpar. (B), inserted heading, substituted "The Administrator, with "lapse" means that the conformity determination for a transportation plan or transportation the concurrence of the Secretary of Transportation, promulgate, and periodically update," for "No improvement program has expired, and thus shall later than one year after November 1990, the Adminthere is no currently conforming transportation istrator, with the concurrence of15, the Secretary of plan or transportation improvement program. Transportation, shall promulgate", designated third (d) Priority of achieving and maintaining na- sentence as subpar. (C), inserted heading, substituted tional primary ambient air quality standards "A civil action" for "A suit", and redesignated former subpars.(B)to(D)as(D)to (F), respectively. Each department, agency, or instrumentality Subset. (c)(4)(B)(ii). Pub. L. 109-59, §6011(b), amended of the Federal Government having authority to cl. (ii) generally. Prior to amendment, cl. (ii) read as conduct or support any program with air-quality follows: "address the appropriate frequency for making related transportation consequences shall give conformity determinations, but in no case shall such priority in the exercise of such authority, con- determinations for transportation plans and programs sistent with statutory requirements for alloca- be less frequent than every three years; and". Subaec. (c)(4)(E). L. 10 59, §6011(f~(4), added subtion among States or other jurisdictions, to the par. (E) and struckPub. out former subpar. (E) which read implementation of those portions of plans pre- as follows: "Such procedures shall also include a repared under this section to achieve and main- quirement that each State shall submit to the Admintain the national primary ambient air-quality istrator and the Secretary of Transportation within 24 standard. This paragraph extends to, but is not months of November 15, 1990, a revision to its implelimited to, authority exercised under chapter 53 mentation plan that includes criteria and procedures of title 49, title 23, and the Housing and Urban for assessing the conformity of any plan, program, or project subject to the conformity requirements of this Development Act. subsection." Subset.(c)(7) to (10). Pub. L. 109-59, §6011(c~(e), added (July 14, 1955, ch. 360, title I, § 176, as added Pub. L. 9x-95, title I, §129(b), Aug. 7, 1977, 91 Stat. 749; pars.(7) to (10). 200~8ubsec.(c)(6). Pub. L. lOCr377 added par. (6). amended Pub. L. 9 190, § 14(a)(59), Nov. 16, 1977, 199C~Bubsec. (c)(4)(D). Pub. L. 104 260 added subpar. 91 Stat. 1403; Pub. L. 101-549, title I, §§ 101(f), (D), 110(4), Nov. 15, 1990, 104 Stat. 2409, 2470; Pub. L. 199~8ubaec.(c)(b). Pub. L. 104-59 added par. (5). 1990-Subaecs. (a), (b). Pub. L. 101-549, §110(4), struck 10 59, title III, §305(b), Nov. 28, 1995, 109 Stat. 580; Pub. L. 10 260, §1, Oct. 9, 1996, 110 Stat. 3175; out subset.(a) which related to approval of projects or Pub. L. 106-377, §1(a)(1) [title III], Oct. 27, 2000, award of grants, and subset.(b) which related to impleof approved or promulgated plane. 114 Stat. 1441, 1441A-44; Pub. L. 109-59, title VI, mentation Bubsec. (c). Pub. L. 101-549, §101(f~, designated exist§6011(a~(f), Aug. 10, 2005, 119 Stat. 1878-1881.) ing provisions as par. (1), struck out "(1)", "(2)", "(3)", A9 USCA Case #18-1203 Page 6451 Document #1787456 Filed: 05/10/2019 TITLE 4~THE PUBLIC HEALTH AND WELFARE and "(4)" before "engage in", "support in", "license or", and "approve, any", respectively, substituted "conform to an implementation plan after it" for "conform to a plan after it", "conform to an implementation plan approved" for "conform to a plan approved", and "conformity to such an implementation plan shall" for "conformity to such a plan shall", inserted "Conformity to an implementation plan means—" followed immediately by subpara.(A) and (B) and closing provisions relating to determination of conformity being based on recent estimates of emissions and the determination of such estimates, and added pars. (2) to (4). 1977-8ubsec. (a)(1). Pub. L. 95-190 inserted "national" before "primary". RE(#ULATIONB Pub. L. 109-59, title VI, §6011(8), Aug. 10, 2005, 119 Stat. 1882, provided that: "Not later than 2 years after the date of enactment of this Act [Aug. 10, 200b], the Administrator of the Environmental Protection Agency shall promulgate revised regulations to implement the changes made by this section [amending this aection]." ~ 7506a Interstate transport commissions (a) Authority to establish interstate transport regione Whenever, on the Administrator's own motion or by petition from the Governor of any State, the Administrator has reason to believe that the interstate transport of air pollutants from one or more States contributes significantly to a violation of a national ambient air quality standard in one or more other States, the Administrator may establish, by rule, a transport region for such pollutant that includes such States. The Administrator, on the Administrator's own motion or upon petition from the Governor of any State, or upon the recommendation of a transport commission established under subsection (b), may— (1) add any State or portion of a State to any region established under this subsection whenever the Administrator has reason to believe that the interstate transport of air pollutants from such State significantly contributes to a violation of the standard in the transport region, or (2) remove any State or portion of a State from the region whenever the Administrator has reason to believe that the control of emissions in that State or portion of the State pursuant to this section will not significantly contribute to the attainment of the standard in any area in the region. The Administrator shall approve or disapprove any such petition or recommendation within 18 months of its receipt. The Administrator shall establish appropriate proceedings for public participation regarding such petitions and motions, including notice and comment. (b)1Y~anaport commissions (1) Establishment Whenever the Administrator establishes a transport region under subsection (a), the Administrator shall establish a transport commission comprised of (at a minimum) each of the following members: (A) The Governor of each State in the region or the designee of each such Governor. Page 84 of 92 §7607 (B) The Administrator or the Administrator's designee. (C) The Regional Administrator (or the Administrator's designee) for each Regional Office for each Environmental Protection Agency Region affected by the transport region concerned. (D) An air pollution control official representing each State in the region, appointed by the Governor. Decisions of, and recommendations and requests to, the Administrator by each transport commission may be made only by a majority vote of all members other than the Administrator and the Regional Administrators (or designees thereof). (2)Recommendations The transport commission shall assess the degree ofinteratate transport of the pollutant or precursors to the pollutant throughout the transport region, assess strategies for mitigating the interstate pollution, and recommend to the Administrator such measures as the Commission determines to be necessary to ensure that the plans for the relevant States meet the requirements of section 7410(a)(2)(D) of this title. Such commission shall not be subject to the provisions of the Federal Advisory Committee Act(5 U.S.C. App.). (c) Commission requests A transport commission established under subsection (b) may request the Administrator to issue a finding under section 7410(k)(5) of this title that the implementation plan for one or more of the States in the transport region is substantially inadequate to meet the requirements of section 7410(a)(2)(D) of this title. The Administrator shall approve, disapprove, or partially approve and partially disapprove such a request within 18 months of its receipt and, to the extent the Administrator approves such request, issue the finding under section 7410(k)(5) of this title at the time of such approval. In acting on such request, the Administrator shall provide an opportunity for public participation and shall address each specific recommendation made by the commission. Approval or disapproval of such a request shall constitute final agency action within the meaning of section 7607(b) of this title. (July 14, 1955, ch. 360, title I, §176A, as added Pub. L. 101-549, title I, § 102(f)(1), Nov. 15, 1990, 104 Stat. 2419.) REFERENCES IN TEXT The Federal Advisory Committee Act, referred to in subsec. (b)(2), is Pub. L. 92-463, Oct. 6, 1972, 86 Stat. 770, as amended, which is set out in the Appendix to Title 5, Government Organization and Employees. ~ 7607. New motor vehicle emission standards in nonattainment areas Notwithstanfling section 7543(a) of this title, any State which has plan provisions approved under this part may adopt and enforce for any model year standards relating to control of emissions from new motor vehicles or new motor vehicl8 engines and take such other actions as are referred to in section 7543(a) of this title respecting such vehicles if— A10 USCA Case #18-1203 Document #1787456 PF. 50, App. U Filed: 05/10/2019 Page 85 of 92 40 CFR Ch. I (7-1-18 Edition) 4. ROUNDING CONVENTIONS FOR THE 1-HOUR PRIMARY SOZ NAAQS (a) Hourly BOz measurement data shall be reported to AQS in unite of parts per billion (ppb), to at most one place after the decimal, with additional digits to the right being truncated with no further rounding. (b) Daily maximum 1-hour values and therefore the annual 99th percentile of those daily values are not rounded. (c) The 1-hour primary standard design value is calculated pursuant to section 5 and then rounded to the nearest whole number or 1 ppb (decimals 0.5 and greater are rounded up to the nearest whole number, and any decimal lower than O.b is rounded down to the nearest whole number). (A) For the year, determine the number of days with at least one hourly value reported including State-flagged data affected by exceptional events which have been approved for exclusion by the Administrator. (B) For the yeas, from all the days with at least one hourly value reported, select from each day the maximum hourly value excluding State-flagged data affected by exceptional events which have been approved for exclusion by the Administrator. (C) Sort all these daily maximum values from a particular site and yeax by deacending value. (For example: (x[1], x[2], x[37, * * *, g[n]). In this case, a[1] is the largest number and x[n] is the smallest value.) The 99th percentile is determined from this sorted aeries of daily values which is ordered from the highest to the lowest number. Using the left column of Table 1, determine the appropriate range (i.e., row) for the annual number of days with valid data for year y (cnY). The corresponding "n" value in the right column identifies the rank of the annual 99th percentile value in the descending sorted list of daily site values for year y. Thus, Po.99,Y =the nth largest value. (b) The 1-hour primary standard design value for an ambient air quality monitoring site is mean of the three annual 99th percentile values, rounded according to the conventions in section 4. 5. CALCULATION PROCEDURES FOR THE 1-HOUR PRIMARY SO2 NAAQB (a) Procedure for identiJ'ying annual 99th yercenttle values. When the data for a particular ambient air quality monitoring site and year meet the data completeness requirements in section 3(b), or if one of the conditions of section 3(c) is met, or if the Administrator exercises the discretionary authority in section 3(d), identification of annual 99th percentile value is accomplished as follows. (i) The annual 99th percentile value for a year is the higher of the two values resulting from the following two procedures. (1)Procedure 1. For the year, determine the TABLE 1 number of days with at least 75 percent of the hourly values reported. Po.vs.Y is the nth (A) For the year, determine the number of Annual number of days with valid maximum value of the data for year "y" (cry) days with at least 75 percent of the hourly year, where n is the listed number values reported including State-flagged data affected by exceptional events which have 1-100 ................................................. 1 been approved for exclusion by the Adminislot-200 ............................................. 2 trator. 201-300 ............................................. 3 301-366 ............................................. (B) For the year, from only the days with 4 at least 75 percent of the hourly values reported, select from each day the maximum [75 FR 35595, June 23, 2010] hourly value excluding State-flagged data affected by exceptional events which have been APPENDIX U TO PART S~INTERPRETAapproved for exclusion by the Administrator. TION OF THE PRIbIARY AND SEC(C) Sort all these daily maximum hourly ONDARY NATIONAL AMBIENT AIR values fY~om a particular site and year by deQUALITY STANDARDS FOR OZONE acending value.(For example:(x[1], x[2], x[37; * * *, g[n]). In this case, g[1] is the largest 1. GENERAL number and g[n] is the smallest value.) The 99th percentile is determined from this sort(a) This appendix explains the data haned aeries of daily values which is ordered dling conventions and computations necfrom the highest to the lowest number. essary for determining whether the primary Using the left column of Table 1, determine and secondary national ambient air quality the appropriate range (i.e., row) for the an- standards(NAAQS)for ozone(03)specified in nual number of days with valid data for year § b0.19 are met at an ambient O, air quality y (cnY). The corresponding "n" value in the monitoring site. Data reporting, data hanright column identifies the rank of the andling, and computation procedures to be used nual 99th percentile value in the descending in making comparisons between reported O, sorted list of daily site values for year y. concentrations and the levels of the O, Thus, Pa.99, Y =the nth largest value. NAAQS are specified in the following sec(2) Procedure 2. For the year, determine the tiona. number of days with at least one hourly (b) Whether to exclude or retain the data value reported. affected by exceptional events is determined iss A11 USCA Case #18-1203 Document #1787456 Environmental Protection Agency Filed: 05/10/2019 Page 86 of 92 Pt. 50, App. U by the requirements under §§ 50.1, 50.14 and 51.930. (c) The terms used in this appendix are defined as follows: 8-hour average refers to the moving average of eight consecutive hourly O, concentrationa measured at a site, as e$plained in section 3 of this appendia. Annual fourth-highest d¢tly maximum refers to the fourth hig~heat value measured at a site during a year. Collocated monitors refers to the instance of two or more 03 monitors operating at the same physical location. Daily maximum 8-hour average O, concentration refers to the maaimuxn calculated 8-hour average value measured at a site on a particular day, as explained in section 3 of this appendix. Design v¢lue'refera to the metric (i.e., atatistic) that is used to compare ambient 03 concentration data measured at a site to the NAAQS in order to determine compliance, as explained in section 4 of this appendix. Minimum data completeness requirements refer to the amount of data that a site is required to collect in order to make a valid determination that the site is meeting the NAAQS. Monitor refers to a physical instrument used to measure ambient O, concentrations. 03 monitoring season refers to the span of time within a year when individual states are required to measure ambient O, concentrations, as listed in Appendix D to part 58 of this chapter. Stite refers to an ambient 03 air quality monitoring site. Sfte data record refers to the set of hourly 03 concentration data collected at a site for use in comparisons with the NAAQB. Year refers to calendar year. 2. SELECTION OF DATA FOR USE IN COMPARI$ON& WITH THE PRIMARY AND SECONDARY OZONE NAAQS (a) All valid hourly O, concentration data collected using a federal reference method specified in Appendix D to this part, or an equivalent method designated in accordance with part 53 of this chapter, meeting all applicable requirements in part 58 of this chapter, and submitted to EPA's Air Quality System (AQS)database or otherwise available to EPA, shall be used in design value calculations. (b) All design value calculations shall be implemented on a site-level basis. If data are reported to EPA from collocated monitors, those data shall be combined into a single site data record as follows: (i) The monitoring agency shall designate one monitor as the primary monitor for the site. (ii) Hourly 03 concentration data from a secondary monitor shall be substituted into the site data record whenever a valid hourly Os concentration is not obtained from the primary monitor. In the event that hourly 03 concentration data are available for more than one secondary monitor, the hourly concentration values from the secondary monitora shall be averaged and substituted into the site data record. (c) In certain circumstances, including but not limited to site closures or relocations, data from two nearby sites may be combined into a single site data record for the purpose of calculating a valid design value. The appropriate Regional Administrator may approve such combinations after taking into consideration factors such as distance between sites, spatial and temporal patterns in air quality, local emissions and meteorology, jurisdictional boundaries, and terrain features. $. DATA REPORTINf# AND DATA HANDLING CONVENTIONS (a) Hourly average 03 concentrations shall be reported in parts per million (ppm) to the third decimal place, with additional digits to the right of the third decimal place truncated. Each hour shall be identified using local standard time (LST). (b) Moving 8-hour averages shall be computed fY~om the hourly O, concentration data for each hour of the year and shall be stored in the first, or start, hour of the 8-hour period. An 8-hour average shall be considered valid if at least 6 of the hourly concentrationa for the 8-hour period are available. In the event that only 6 or 7 hourly concentrations are available, the 8-hour average shall be computed on the basis of the hours available, using 6 or 7, respectively, as the divisor. In addition, in the event that 5 or fewer hourly concentrations are available, the 8hour average shall be considered valid if, after substituting zero for the missing hourly concentrations, the resulting 8-hour average ie greater than the level of the NAAQS, or equivalently, if the sum of the available hourly concentrations is greater than 0.567 ppm. The 8-hour averages shall be reported to three decimal places, with additional digits to the right of the third decimal place truncated. Hourly 03 concentrations that have been approved under §50.14 as having been affected by exceptional events shall be counted as missing or unavailable in the calculation of8-hour averages. (c) The daily maximum 8-hour average O, r ..onoentration for a given day is the highest of the 17 consecutive 8-hour averages beginning with the 8-hour period from 7:00 a.m. to 3:00 p.m. and ending with the 8-hour period from 11:00 p.m. to 7:00 a.m. the following day (i.e., the 8-hour averages for 7:00 a.m. to 11:00 p.m.). Daily maximum 8-hour average 03 concentrations shall be determined for each day with ambient 03 monitoring data, including days outside the O, monitoring season if those data are available. Ise A12 USCA Case #18-1203 Document #1787456 Pt. 50, App. U Filed: 05/10/2019 Page 87 of 92 40 CFR Ch. I (7-1-18 Edition) (d) A daily maximum 8-hour average Os concentration shall be considered valid if valid 8-hour averages are available for at least 13 of the 17 consecutive 8-hour periods starting 4om 7:00 a.m. to 11:00 p.m. In addition, in the event that fewer than 13 valid 8hour averages are available, a daily maximuxn 8-hour average O3 concentration shall also be considered valid if it is greater than the level of the NAAQS. Hourly O, concentrationa that have been approved under §50.14 as having been affected by exceptional events shall be included when determining whether these criteria have been met. (e) The primary and secondary Os design value statistic is the annual fourth-highest daily maximum 8-hour 03 concentration, averaged over three years, expressed in ppm. The fourth-highest daily maximum 8-hour O, concentration for each year shall be determined based only on days meeting the validity criteria in 3(d). The 3-year average shall be computed using the three most recent, consecutive years of ambient 03 monitoring data. Design values shall be reported in ppm to three decimal places, with additional digita to the right of the third decimal place truncated. 4. COMPARI80N8 WPl'H TFIE PRIMARY AND SECONDARY OZONE NAAQS (a) The primary and secondary national ambient air quality standards for 03 are met at an ambient air quality monitoring site when the 3-year average of the annual fourth-highest daily maximum S-hour average O, concentration (i.e., the design value) is leas than or equal to 0.070 ppm. (b) A design value greater than the level of the NAAQS is always considered to be valid. A design value leas than or equal to the level of the NAAQS must meet minimum data completeness requirements in order to be considered valid. These requirements are met fora 3-year period at a site if valid daily maxunum 8-hour average 03 concentrations are available for at least 90% of the days within the 03 monitoring season, on average, for the 3-year period, with a minimum of at least 75% of the days within the 03 monitoring season in any one year. (c) When computing whether the minimum data completeness requirements have been met, meteorological or ambient data may be sufficient to demonstrate that meteorological conditions on missing days were not conducive to concentrations above the level of the NAAQS. Missing days assumed leas than the level of the NAAQS are counted for the purpose of meeting the minimum data completeness requirements, subject to the approval of the appropriate Regional Administrator. (d) Comparisons with the primary and secondary O3 NAAQS are demonstrated by examples 1 and 2 as follows: EXAMPLE 1-SITE MEETING THE PRIMARY AND SECONDARY O3 NAAQS Yeer 2014 .............................. 2015 .............................. 2016 .............................. Average ......................... Percent valid days within O, monitoring season (Data completeness) ~ $t highest daily max g_hour 03 ~PPm) 2nd highest daily mau 8-hour 03 (ppm) 3rd highest daily max 8-hour 03 (ppm) 100 0.082 0.080 0.075 96 0.074 0.073 0.065 98 0.070 0.069 0.087 98 ........................ ........................ ........................ As shown in Example 1, this site meets the primary and secondary O, NAAQB because the 3-year average of the annual fourth-highest daily maximum 8-hour average 03 concentrations (i.e., 0.065666 ppm, truncated to 0.065 ppm) is less than or equal to 0.070 ppm. The minimum data completeness require- 4th highest daily max 8-hour 03 (ppm) 5th highest daily mex 8-hour O, (ppm) 0.069 0.062 0.066 0.065 0.068 0.060 0.060 manta are also met (i.e., design value is considered valid) because the average percent of days within the 03 monitoring season with valid ambient monitoring data is greater than 90°/a, and no single year has leas than 75% data completeness. EXAMPLE 2-SITE FAILING TO MEET THE PRIMARY AND SECONDARY O3 O3 NAAQS Year 2014 .............................. 2015 .............................. 2076 .............................. Average ......................... Percent valid days within O, monitoring season (Data completeness) ~ gt highest daily max 8-hour 03 (P~~ 2nd highest daily max 8-hour 03 (ppm) 3b highest daily meu 8-hour 03 (ppm) 96 0.085 0.080 0.079 74 0.084 0.083 0.072 98 0.083 0.081 0.081 89 ........................ ........................ ........................ 168 A13 4th highest daily max 8-hour O, (ppm) 0.074 0.071 0.075 0.073 5th highest daily max 8-hour Os (ppm) 0.072 0.068 0.074 USCA Case #18-1203 Document #1787456 Filed: 05/10/2019 Environmental Protection Agency Page 88 of 92 Pt. 51 As shown in Example 2, this site fails to meet the primary and secondary O, NAAQS because the 3-year average of the annual fourth-highest daily maximum S-hour average O, concentrations (i.e., 0.073333 ppm, truncated to 0.073 ppm) is greater than 0.070 ppm, even though the annual data completeness is less than 75% in one year and the 3year average data completeness is less than 90% (i.e., design value would not otherwise be considered valid). [80 FR 65458, Oct. 26, 2015] PART 51-REAUIREMENTS FOR PREPARATION, ADOPTION, AND SUBMITTAL OF IMPLEMENTATION PLANS Subpart A-Air Emissions Reporting Requirements GENERAL INFORMATION FOR INVENTORY PREPARERS Sec. bl.l Who is responsible for actions described in this subpart? 51.b What tools are available to help prepare and report emissions data? 51.10 [Reserved] SPECIFIC REPORTING REQUIREbIENTB 51.15 What data does my state need to report to EPA? 51.20 What ase the emission thresholds that separate point and nonpoint sources? 51.25 What geographic area must my state's inventory cover? 51.30 When does my state report which emissions data to EPA? 51.35 How can my state equalize the emission inventory effort from year to year? 51.40 In what form and format should my state report the data to EPA? 51.45 Where should my state report the data? 51.b0 What definitions apply to this subpart? APPENDIX A TO SUBPART A OF PART 51-TABLEB APPENDIX B TO SUBPART A OF PART 51 [REBERVED] Subparts B-F [RpsPrvpd] Subpart F-Procedural Requirements 51.100 Definitions. 51.101 Stipulations. 51.102 Public hearing's. 51.103 Submission of plans, preliminary review of plans. 51.104 Revisions. 51.105 Approval of plans. Subpart G-Control Strategy 51.110 Attainment and maintenance of national standards. 51.111 Description of control measures. 51.112 Demonstration of adequacy. 51.113 [Reserved] 51.114 Emissions data and projections. bl.11b Air quality data and projections. 51.116 Data availability. 51.117 Additional provisions for lead. 51.118 Stack height provisions. 51.119 Intermittent control systems. 51.120 Requirements for State Implementation Plan revisions relating to new motor vehicles. 51.121 Findings and requirements for aubmisaion of State implementation plan revisions relating to emissions of oxides of nitrogen. 51.122 Emissions reporting requirements for SIP revisions relating to budgets for NOX emissions. 51.123 Findings and requirements for submission of State implementation plan reviaiona relating to emissions of oxides of nitrogen pursuant to the Clean Air Interstate Rule. 51.124 Findings and requirements for submission of State implementation plan revisions relating to emissions of sulfhr dioaide pursuant to the Clean Air Interstate Rule. 51.125 [Reserved] 51.126 Determination of widespread use of ORVR and waiver of CAA section 182(b)(3) Btage II gasoline vapor recovery requirements. Subpart H-Prevention o} Alr Pollution Emergency Episodes 51.1b0 Classification of regions for episode plans. 51.151 Significant harm levels. 51.152 Contingency plans. 51.153 Reevaluation of episode plans. Subpart I-Review of New Sources and Modifications 51.160 Legally enforceable procedures. 51.161 Public availability of information. 51.162 Identification of responsible agency. 51.1&4 Adminiatr~.tivP prnr.PAnre~. 51.164 Btack height procedures. 51.16b Permit requirements. 51.166 Prevention of significant deterioration of air quality. Subpart J-Ambient Air 6luality $UN@~~~d11C@ 51.190 Ambient air quality monitoring requirements. Is9 A14 USCA Case #18-1203 Document #1787456 §50.18 Filed: 05/10/2019 Page 89 of 92 40 CFR Ch. I (7-1-18 Ediflon) (c) The level of the standard shall be measured by a reference method based on appendix A or A-1 of this part, or by a Federal Equivalent Method (FEM) designated in accordance with part 53 of this chapter. [75 FR 35592, June 22, 2010] accordance with appendix U to this part. (c) The level of the national secondary ambient air quality standard for 03 is 0.070 ppm, daily maximum 8hour average, measured by a reference method based on appendix D to this part and designated in accordance with part 53 of this chapter or an equivalent method designated in accordance with part 53 of this chapter. (d) The 8-hour secondary 03 ambient air quality standard is met at an ambient air quality monitoring site when the 3-year average of the annual fourth-highest daily maximum 8-hour average 03 concentration is less than or equal to 0.070 ppm, as determined in accordance with appendix U to this part. §60.18 National primary ambient air quality standards for PMZ.S. (a) The national primary ambient air quality standards for PMz.s are 12.0 micrograms per cubic meter (µg/m3)annual arithmetic mean concentration and 35 µg/m3 24-hour average concentration measured in the ambient air as PMZ,S (particles with an aerodynamic diameter less than or equal to a nominal 2.5 micrometers) by either: (1) A reference method based on appendix L to this part and designated in [80 FR 65452, Oct. 26, 2015] accordance with part 53 of this chapter; or APPENDIX A-1 TO PART 5~REFERENCE (2) An equivalent method designated MEASUREMENT PRINCIPLE AND CALIin accordance with part 53 of this chapBRATION PROCEDURE FOR THE MEABter. UREMENT OF SULFUR DIO%IDE IN THE (b) The primary annual PM2.5 atandATMOSPHERE (ULTRAVIOLET FLUOard is met when the annual arithmetic REBCENCE METHOD) mean concentration, as determined in 1.0 APPLICABILITY accordance with appendix N of this part, is less than or equal to 12.0 µg/m3. 1.1 This ultraviolet fluorescence (UVF) (c) The primary 24-hour PMz.s stand- method provides a measurement of the conard is met when the 98th percentile 24- centration of sulfur dioxide (BOZ)in ambient hour concentration, as determined in air for determining compliance with the naaccordance with appendix N of this tional primary and secondary ambient air part, is less than or equal to 35 µg/m3. quality standards for sulfur oxides (sulfur di[78 FR 3277, Jan. 15, 2013] ~ 80.19 National primary and secondary ambient air quality etandarda for ozone. (a) The level of the national 8-hour primary ambient air quality standard for ozone (03)is 0.070 parts per million (ppm), daily maximum S-hour average, measured by a reference method based on appendix D to this part and designated in accordance with part 53 of this chapter or an equivalent method designated in accordance with part 53 of this chapter. (b) The 8-hour primary 03 ambient air quality standard is met at an ambient air quality monitoring site when the 3-year average of the annual fourth-highest daily maximum 8-hour average 03 concentration is leas than or equal to 0.070 ppm, as determined in oxide) as specified in § 50.4, ~ 50.5, and § b0.17 of thie chapter. The method is applicable to the measurement of ambient SOZ concentrations using continuous (real-time) sampling. Additional quality assurance procedures and guidance are provided in part 58, appendix A, of this chapter and in Reference 3. 2.0 PRINCIPLE 2.1 This reference method is based on automated measurement of the intensity of the characteristic fluorescence released by SOz in an ambient air sample contained in a measurement cell of an analyzer when the ail. 8&111~1e 1& irr~.Qin.~ea Ly u1Lra,vlule~(W) light passed through the cell. The fluoreacent light released by the SOz is also in the ultraviolet region, but at longer wavelengths than the excitation light. Typically, optiinum inatruxnental measurement of SOx conceatrations is obtained with an excitation wavelength in a band between approximately 190 to 230 nm, and measurement of the SOz fluorescence in a broad band around 320 nm, but these wavelengths ass not necessarily 20 A15 USCA Case #18-1203 Document #1787456 §51.1303 Filed: 05/10/2019 Page 90 of 92 40 CFR Ch. I (7-1-18 Edition) §61.1808 Application of classification and attainment date provisions in CAA section 181 to areas subject to $81.1302. (a) In accordance with CAA section 181(a)(1), each area designated nonattainment for the 2015 ozone NAAQS shall be classified by operation of law at the time of designation. The clasaification shall be based on the 8-hour design value for the area at the time of designation, in accordance with Table 1 of this paragraph (a). A state may request ahigher or lower classification as provided in paragraphs (b) and (c) of this section. For each area classified under this section, the attainment date for the 2015 NAAQS shall be as expeditious as practicable, but not later than the date provided in Table 1 as follows: TABLE 1 TO PARAGRAPH (3~-CLASSIFICATIONS AND ATTAINMENT DATES FOR 2015 8-HOUR OZONE NAAQS (0.070 ppm) FOR AaEns SUs.iECT to §51.1302 8-hour ozone design value (ppm) Area class Marginal ................................................ from up to' ........................................... Moderate .............................................. from up to' ........................................... Serious ................................................. from up to' ........................................... Severe-15 ............................................. from up to' ........................................... Severe-17 ............................................. from up to' ........................................... Extreme ................................................ equal to or above ................................. ' But not including. (b) A state may request, and the Administrator must approve, a higher classification for an area for any reason in accordance with CAA section 181(b)(3). (c) A state may request, and the Administrator may in the Adminiatrator's discretion approve, a higher or lower classification for an area in accordance with CAA section 181(a)(4). APPENDIXES A-K TO PART 51 [RESERVED] APPENDIX L TO PART 51—EXAMPLE REGULATIONB FOR PREVENTION OF AIR POLLUTION EMERGENCY EPISODES The example regulations presented herein reflect generally recognized ways of preventinK air Aollution from reaching 1PVPla that would cause imminent and substantial endangerment to the health of persona. States are required under subpart H to have emergency episodes plans but they are not required to adopt the regulations presented herein. 1.0 Air pollution emergency. This regulation is designed to prevent the excessive buildup of air pollutants during air pollution episodes, thereby preventing the occurrence of 0.071 0.081 0.081 0.093 0.093 0.105 0.105 0.111 0.111 0.163 0.163 Primary standard attainment date (years after the effective date of designation for 2015 primary NAAQS) 3 6 9 15 17 20 an emergency due to the effects of these pollutants on the health of persons. 1.1 Episode criteria. Conditions justifying the proclamation of an air pollution alert, air pollution warning, or air pollution emergency shall be deemed to exist whenever the Director determines that the accumulation of air pollutants in any place is attaining or has attained levels which could, if such levela are sustained or exceeded, lead to a aubatantial threat to the health of persons. In making this determination, the Director will be guided by the following criteria: (a) Air Pollution Forecast: An internal watch by the Department of Air Pollution Control shall be actuated by a National Weather Service advisory that Atmospheric Stagnation Advisory is in effect or the equivalent local forecast of stagnant atmospheric condition. (b) Aiert: The Alert level is that concentration of pollutants at which first stage control actions is to begin. An Alert will be decIared when any one of the following levels is reached at any monitoring site: SOz-800 µg/m3(0.3 p.p.m.), 24-hour average. PM,o--350 µg/m8, 24-hour average. CO-17 mg/m9(15 p.p.m.), 8-hour average. Ozone (OZ) = 400 µg/m~ (0.2 ppm)-hour average. NOz-1130 µg/ms (0.6 p.p.m.), 1-hour average, 282 µg/mg (0.15 p.p.m.), 24-hour average. 438 A16 USCA Case #18-1203 Document #1787456 Filed: 05/10/2019 Environmental Protection Agency Page 91 of 92 Pt. 58 SCHEDULE D.7—HORIZON VALUE OF CASH FLOWS [Smelter identification] Final forecast YeB~ 1989 1990 Line A. Depreciation-free horizon value: 1. Net cash flow projections ... 2. Depreciation tax savings: a. Depreciation and amortization .......... b. Marginal tax rate .. c. Tax savings .......... 3. Depreciation-free net cash flows: a. Nominal dollar values ........................ b. 1990 dollar values c. Average ................ 4. Horizon factor ..............._.... 5. Depreciation-free horizon value .................................... B. Depreciation tax savings over the horizon period: t. Depreciation and amortization ...................................... 2. Marginal tax fate ................ 3. Tax savings ........................ 4. Discount factors .................. 5. Present value of tax savings ...................................... 6. Total present value of tax savings ................................ C. Horizon Value ................................... Horizon years Total ~~~ ~~2 1993 1994 1995 ............ ............ XXXX XXXX XXXX XXXX XXXX XXXX 02 ............ ............ 03 ............ ............ 04 ............ ............ XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX 05 ............ ............ OB ............ ............ 07 XXXX XXXX XXXX OB XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX ............ XXXX ............ XXXX X70IX XXXX XXXX XXXX ............ 01 09 XXXX XXXX 70 11 12 13 XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX ............ ............ ............ ............ ............ ............ ............ ............ ............ ............ ............ ............ ............ ............ ............ ............ ............ ............ ............ ............ XXXX XXXX XXXX XXXX 14 XXXX XXXX ............ ............ ............ ............ ............ XXXX 15 18 XXXX XXXX XXXX XXXX XXXX XXXX PART 58—AMBIENT AIR 61UALITY SURVEILLANCE XXXX XXXX XXXX XXXX XXXX XXXX XXXX ............ XXXX ............ Subpart E [Reserved] Subpart F—Air 9uality Index Reporting Subpart A—General Provisions 58.50 Index reporting. say. Subpart G—Federal Monitoring 58.1 Definitions. 58.2 Purpose. 58.3 Applicability. 58.60 58.61 Subpart B—Monitoring Network Federal monitoring. Monitoring other pollutants. Subpart D—Comparability of Ambient Data to the NAAAS APPENDIX A TO PART 58—QUALPPY A$BURANCE REQUIREMENT& FOR MONITORS USED IN EVALUATIONS OF NATIONAL AMBIENT AIR QUALITY BTANDARD5 APPENDIX B TO PART 58—QUALPPY A38URANCE REQUIREMENTS FOR PREVENTION OF SICiNIFICANT DETERIORATION (PSD) AIIt MONITORIN6 APPENDIX C TO PART 5~AMBIENT AIEt QUALITY MONITORING METHODOLOC}Y APPENDIX D TO PART 5~-NETWORK DESIGN Cx17'~it1A A'Ult AMBIENT AIR QUALITYMONPPORING APPENDIX E TO PART 58—PROBE AND MONITORING PATH BITING CRITERIA FOR AMBIENT AIR QUALITY MONITORING APPENDIX F TO PART b8[RESERVED] APPENDIX G TO PART b8—UNIFORM AIR QUALITY INDEX (AQI) AND DAILY REPORTING 58.30 Special considerations for data comparisona to the NAAQS. Au~raoxrrY: 42 U.B.C. 7403, 7405, 7410, 7414, 7601, 7611, 7614, and 7619. 58.10 Annual monitoring network plan and periodic network assessment. b8.11 Network technical requirements. b8.12 Operating schedules. b8.13 Monitoring network completion. 58.14 System modification. 56.15 Annual air monitoring data certification. 58.16 Data submittal and archiving requirements. Subpart C—Special Purpose Monitors 58.20 Special purpose monitors(SPM). 249 A17 USCA Case #18-1203 Document #1787456 §58.1 Filed: 05/10/2019 Page 92 of 92 40 CFR Ch. I (7-1-18 Edition) SOURCE: 44 FR 27571, May 10, 1979; 59 FR 41628, Aug. 12, 1994, unless otherwise noted. and Budget as a geographical area consisting of two or more adjacent Core Based Statistical Areas (CBSA) with Subpart A—General Provisions employment interchange of at least 15 percent. Combination is automatic if 80URCE: 71 FR 61296, Oct. 17, 2006, unless the employment interchange is 25 perotherwise noted. cent and determined by local opinion if more than 15 but less than 25 percent. §68.1 Definitions. Core-based statistical area (CBSA) is As used in this part, all terms not de- defined by the U.S. Office of Managefined herein have the meaning given ment and Budget, as a statistical geothem in the Clean Air Act. graphic entity consisting of the county AADT means the annual average or counties associated with at least one daily traffic. urbanized area/urban cluster of at least Act means the Clean Air Act as 10,000 population, plus adjacent counamended (42 U.S.C. 7401, et seq.) ties having a high degree of social and Additive and multiplicative bias means economic integration. Metropolitan the linear regression intercept and Statistical Areas (MSAs) and slope of a linear plot fitted to cor- micropolitan statistical areas are the responding candidate and reference two categories of CBSA (metropolitan method mean measurement data pairs. areas have populations greater than Administrator means the Adminis- 50,000; and micropolitan areas have trator of the Environmental Protection populations between 10,000 and 50,000). Agency (EPA) or his or her authorized In the case of very large cities where representative. two or more CBSAs are combined, Air quality system (AQS) means the these larger areas axe referred to as EPA's computerized system for storing combined statistical areas(CSAs) and reporting of information relating Corrected concentration pertains to to ambient air quality data. the result of an accuracy or precision Approved regional method (ARM) assessment test of an open path anameans a continuous PM2.5 method that lyzer in which a high-concentration has been approved specifically within a teat or audit standard gas contained in state or local air monitoring network a short teat cell is inserted into the opfor purposes of comparison to the tical measurement beam of the instruNAAQS and to meet other monitoring ment. When the pollutant concentraobjectives. tion measured by the analyzer in such AQCR means air quality control re- a test includes both the pollutant congion. centration in the test cell and the conArea-wade means all monitors sited at centration in the atmosphere, the atneighborhood, urban, and regional mospheric pollutant concentration scales, ae well as those monitors sited must be subtracted from the test measat either micro- or middle-scale that urement to obtain the corrected conare representative of many such loca- centration test result. The corrected tiona in the same CBSA. concentration is equal to the measured Certifying agency means a state, local, concentration minus the average of the or tribal agency responsible for meet- atmospheric pollutant concentrations ing the data certification requirements measured (without the test cell) immein accordance with §58.15 for a unique diately before and immediately after set of monitors. the test. Chemical S~veCtation Netv~nrk, (C:CN) innrs~pn. ~~a.l~~.e means the calculated cludes Speciation Trends Network sta- concentration according to the applications (STN) as specified in paragraph ble appendix of part 50 of this chapter 4.7.4 of appendix D of this part and sup- for the highest site in an attainment or plemental speciation stations that pro- nonattainment area. vide chemical species data of fine parEDO means environmental data operticulate. ations. CO means carbon monoxide. Effective concentration pertains to Combined statistical area (CSA) is de- testing an open path analyzer with a fined by the U.S. Office of Management high-concentration calibration or audit 250 A18