Southwestern Pennsylvania Growth Alliance v. Carol Browner

Blair S. McMillin, Harley N. Trice II (argued), Paul S. Kline, Reed Smith Shaw & McClay, Pittsburgh, PA, for Intervenor.

John R. Serpa, Asst. County Solicitor, Kerry A. Fraas, County Solicitor, Pittsburgh, PA, for Amicus Curiae County of Allegheny, Pennsylvania.

Nick Francalancia, Beaver, PA, for Amicus Curiae Beaver County Corporation for Economic Development.

Paul J. Elias, Assistant County Solicitor, Greensburg, PA, for Amicus Curiae Westmoreland County, Pennsylvania.

Glenn R. Toothman III, Toothman & Toothman, Waynesburg, PA, for Amicus Curiae Greene County, Pennsylvania.

Paul S. Kline, Pittsburgh, PA, for Amici Curiae Armstrong County, Pennsylvania, Lawrence County, Pennsylvania and Butler County, Pennsylvania.

McCune & Vreeland, Solicitor, Washington, PA, Jill A. Devine, Assistant Solicitor, Washington, PA, for Amicus Curiae Washington County, Pennsylvania.

Clifford B. Levine, Thorp, Reed & Armstrong, Pittsburgh, PA, for Amicus Curiae Port of Pittsburgh Commission.

Howard I. Fox, Sierra Club Legal Defense Fund, Washington, DC, Joseph Ortis Minott, Delaware Valley Citizens' Council for Clean Air, Philadelphia, PA, for Amicus Curiae Delaware Valley Citizens' Council for Clean Air.

Before: BECKER, SCIRICA, and ALITO, Circuit Judges.

The Southwestern Pennsylvania Growth Alliance ("SWPGA") has petitioned for review of a final rule of the Environmental Protection Agency ("EPA"), 61 Fed.Reg. 19,193 (May 1, 1996). In this rule, the EPA denied the Commonwealth of Pennsylvania's request that the EPA redesignate the Pittsburgh-Beaver Valley nonattainment area (the "Area") to attainment status for ozone, pursuant to the Clean Air Act, 42 U.S.C. § 7407(d)(3). An intervenor, Advanced Manufacturing Network, contends that the EPA's final rule is invalid because the EPA did not comply with the Regulatory Flexibility Act, 5 U.S.C. §§ 601-12. Although we are sympathetic to the view expressed by many within the Area that this rule threatens serious economic harm, we recognize that our role as a reviewing court is strictly limited. We conclude that under the applicable legal standards, we are constrained to deny the petition for review.

A. Congress enacted the Clean Air Act to "protect and enhance the quality of the Nation's air resources so as to promote the public health and welfare and the productive capacity of its population." 42 U.S.C. § 7401(b)(1). To achieve this purpose, the Act authorizes the EPA to identify air pollutants that are sufficiently dangerous to warrant federal regulation. See 42 U.S.C. § 7408(a). For each pollutant that the EPA identifies, the Act authorizes the EPA to promulgate a national ambient air quality standard (NAAQS), which is the maximum allowable concentration of the pollutant in the ambient air. See 42 U.S.C. § 7409(a).

One pollutant for which the EPA has promulgated a NAAQS is ozone, whose chemical precursors are emitted by industrial and transportation sources. See 40 C.F.R. § 50.9(a) (1996). The EPA measures ozone levels at monitoring sites located throughout the country. When a monitoring site measures that a given day's "maximum hourly average ozone concentration" has exceeded the NAAQS, an "exceedance" has occurred. See 40 C.F.R. § 50, App. H (1996). If a monitoring site registers more than an average of one exceedance per year, over a three-year period, that site is in noncompliance with the NAAQS. Id.

The Clean Air Act's 1990 amendments provide that the EPA designate areas of the country as either "attainment" areas, "nonattainment" areas, or "unclassifiable" areas for particular pollutants, depending on whether an area has complied with the NAAQS for that pollutant. See 42 U.S.C. 7407(d). If one monitoring site within an area is in noncompliance with a NAAQS, then the entire area is designated a nonattainment area for that pollutant. See 40 C.F.R. Pt. 50.9(a); 40 C.F.R. Pt. 50, App. H (1996). Nonattainment areas are further classified as "marginal," "moderate," "serious," "severe," or "extreme" nonattainment areas, according to the extent to which the area's monitor readings exceed the NAAQS. See 42 U.S.C. § 7511(a). The Clean Air Act assigns to the states the responsibility for assuring air quality within each state. See 42 U.S.C. § 7407(a). The Act provides that within three years of the EPA's promulgation of a NAAQS for a pollutant, each state must submit to the EPA a state implementation plan ("SIP") specifying measures that will attain, maintain, and enforce the NAAQS. See 42 U.S.C. § 7410(a). All SIPs must meet the substantive requirements enumerated at 42 U.S.C. § 7410(a)(2). Once the EPA finds that a SIP complies with the Act, the EPA will approve the SIP. See 42 U.S.C. § 7410(k). When the EPA has designated an area within a state as a nonattainment area for a particular pollutant, that state must modify its SIP to include increasingly strict pollution controls delineated in the Act, depending on the area's nonattainment classification. See 42 U.S.C. § 7511(a).

The Act specifies the procedures through which the EPA may redesignate an area from nonattainment to attainment. The process begins when the governor of a state submits a request for redesignation. See 42 U.S.C. § 7407(d)(3)(D). Then, "[w]ithin 18 months of receipt of a complete State redesignation submittal, the [EPA] Administrator shall approve or deny such redesignation." Id. Under 42 U.S.C. § 7407(d)(3)(E), the EPA Administrator "may not promulgate a redesignation of a nonattainment area ... to attainment unless" the following five criteria are met:

(i) the Administrator determines that the area has attained the national ambient air quality standard;

(ii) the Administrator has fully approved the applicable implementation plan for the area under section 7410(k) of this title;

(iii) the Administrator determines that the improvement in air quality is due to permanent and enforceable reductions in emissions resulting from implementation of the applicable implementation plan and applicable Federal air pollutant control regulations and other permanent and enforceable reductions;

(iv) the Administrator has fully approved a maintenance plan for the area as meeting the requirements of section 7505a of this title; and

(v) the State containing such area has met all requirements applicable to the area under section 7410 of this title and part D of this subchapter.

Id. Thus, in order for the EPA to redesignate an area from nonattainment to attainment, the EPA must find that all five of these criteria have been satisfied.

B. In 1990, the EPA classified the Pittsburgh-Beaver Valley Area (the "Area") as a moderate nonattainment area for ozone.1 See 56 Fed.Reg. 56,694, 56,820 (Nov. 6, 1991). The EPA based this designation on ozone exceedances during the three-year period from 1987 to 1989. See id. In November 1993, the Pennsylvania Department of Environmental Resources submitted to the EPA a request to redesignate the Area to attainment status for ozone. The redesignation request pointed out that the Area had attained the NAAQS for ozone during the three-year period from 1991-1993, with only two exceedances in 1991, zero exceedances in 1992, and one exceedance in 1993. See 61 Fed.Reg. 19,193, 19,195 (May 1, 1996). Pennsylvania's request acknowledged that its SIP had not yet been fully approved by the EPA, but stated that the state expected to receive full EPA approval shortly. The request also included a maintenance plan, under which Pennsylvania demonstrated how it planned to maintain the NAAQS in the area until the year 2004.2

In July 1995, the EPA published a final notice of determination that the Area was in attainment of the NAAQS for ozone. See 60 Fed.Reg. 37,015 (July 19, 1995). Later in the summer of 1995, however, ozone monitors in the Area recorded 16 exceedances over a seven-day period. Two of these monitors recorded more than three exceedances each. After confirming these data, the EPA revoked its earlier determination that the Area had attained the NAAQS for ozone. See 61 Fed.Reg. 28,061 (June 4, 1996).

The EPA also published a notice of proposed rulemaking stating its intention to disapprove Pennsylvania's redesignation request and maintenance plan. See 61 Fed.Reg. 4,598 (Feb. 7, 1996). The EPA expressed various reasons for proposing disapproval. One of the EPA's reasons was that the 1995 summer ozone exceedances indicated that the Area had not attained the NAAQS. The EPA also reasoned that these exceedances indicated that the underlying basis for Pennsylvania's maintenance plan was no longer valid. See id. After public comment, the EPA promulgated a final rule disapproving Pennsylvania's redesignation request and maintenance plan. See 61 Fed.Reg. 19,193 (May 1, 1996).

C. The petitioner in this case is the Southwestern Pennsylvania Growth Alliance, which is an organization of major manufacturers and local governments in the Pittsburgh-Beaver Valley Area. SWPGA contests the EPA's denial of Pennsylvania's request to redesignate the Area to attainment status. As previously explained, 42 U.S.C. § 7407(d)(3)(E) lists five requirements that must be satisfied in order for the EPA to redesignate a nonattainment area to attainment status. Since the EPA's final rule stated that none of these five criteria had been satisfied, the petitioner, if it is to prevail, must demonstrate that the EPA erred in its determinations as to all five of § 7407(d)(3)(E)'s criteria.

The petitioner thus faces an exacting burden. Under the Administrative Procedure Act, 5 U.S.C. § 706(2)(A), this court must uphold the EPA's action unless it is "arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law." In applying this standard, our "only task is to determine whether [the EPA] considered the relevant factors and articulated a rational connection between the facts found and the choice made." Baltimore Gas & Elec. Co. v. Natural Resources Defense Council, Inc., 462 U.S. 87, 105, 103 S.Ct. 2246, 2256, 76 L.Ed.2d 437 (1983). The EPA's disapproval of Pennsylvania's redesignation request "would be arbitrary and capricious if the agency has relied on factors which Congress has not intended it to consider". Motor Vehicle Mfrs. Ass'n v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43, 103 S.Ct. 2856, 2866-67, 77 L.Ed.2d 443 (1983).

SWPGA first argues that the EPA erred when it determined that the Area did not attain the NAAQS for ozone. In so arguing, SWPGA contends that the EPA had no basis for concluding that the first of 42 U.S.C. § 7407(d)(3)(E)'s five requirements was not satisfied. We hold, however, that it was proper for the EPA to determine that the Area did not attain the NAAQS for ozone.

A. The petitioner contends that the EPA acted contrary to the language of the Clean Air Act when it took into consideration the ozone exceedances that were recorded in the summer of 1995. The petitioner points to language in the Act stating that "[w]ithin 18 months of receipt of a complete State redesignation submittal, the Administrator shall approve or deny such redesignation." 42 U.S.C. § 7407(d)(3)(D) (emphasis added). The petitioner argues that the use of the word "shall" in this provision imposes upon the EPA a mandatory duty to act on a state's redesignation request within 18 months of submission. According to the petitioner, the EPA violated this mandatory duty when it took into consideration the 1995 ozone exceedance data, because these data did not exist during the 18-month period. The petitioner concludes that without these improperly considered data, there was no valid reason for the EPA to deny redesignation.

We agree with the EPA that the petitioner may not raise this argument on appeal because this argument was not raised during the rulemaking process. "Generally, federal appellate courts do not consider issues that have not been passed on by the agency ... whose action is being reviewed." New Jersey v. Hufstedler, 724 F.2d 34, 36 n. 1 (3d Cir.1983), rev'd on other grounds, 470 U.S. 632, 105 S.Ct. 1555, 84 L.Ed.2d 572 (1985).

The petitioner points to the following passage from the record as evidence that Pennsylvania raised this argument in its comments to the EPA's proposed rule disapproving redesignation:

Pennsylvania believes that the Pittsburgh ozone nonattainment area should have been redesignated by EPA to attainment. The Commonwealth submitted the request in 1993, and EPA had ample opportunity and justification.

For the six year period from 1989 through 1994 the national ambient air quality standard for ozone was achieved. During this time eight ozone monitors operated for the full six years and one additional monitor operated two years at one site and the four subsequent years at a nearby site. Six of these monitors had no exceedances during this period and the remaining monitors stayed under the standard. Thus for the four consecutive three-year periods from 1989 through 1994, the Pittsburgh area attained and maintained the ambient standard.

Comments on Proposed Disapproval of Request to Redesignate Pittsburgh Ozone Nonattainment Area, J.A. at 550. Pennsylvania further commented that "the Pittsburgh area [had not] been redesignated in a timely manner." Id. at 551.

We hold that these comments are insufficient to preserve petitioner's intricate statutory interpretation argument. These comments admittedly demonstrate that Pennsylvania, during the rulemaking process, broached the question whether the EPA had acted in a timely manner. Yet the comments include neither a reference to a statutory provision imposing a specific time limit, nor an explicit argument that the existence of such a time limit precluded the EPA from considering the 1995 exceedances. The petitioner thus raises its statutory interpretation argument for the first time on appeal.

We recognize that "our practice has been to hear issues not raised in earlier proceedings when special circumstances warrant an exception to the general rule." Hufstedler, 724 F.2d at 36 n. 1 (considering the retroactivity of amendments to a federal education act, even though the retroactivity argument was not raised in the lower court, because it was "an issue of national importance" that was "singularly within the competence of appellate courts" and "not predicated on complex factual determinations"); see also Selected Risks Ins. Co. v. Bruno, 718 F.2d 67, 69 (3d Cir.1983). Although a variety of circumstances have prompted appellate courts to apply this exception,"[t]he matter of what questions may be taken up and resolved for the first time on appeal is one left primarily to the discretion of the courts of appeals, to be exercised on the facts of individual cases." Singleton v. Wulff, 428 U.S. 106, 121, 96 S.Ct. 2868, 2877, 49 L.Ed.2d 826 (1976). In this case, we find it inappropriate to consider this new issue. Although appellate courts are certainly capable of addressing questions of statutory interpretation that were not raised during an agency's rulemaking process, it is far more efficient for courts to face such questions only after they have been considered by the agency that Congress has charged with the primary responsibility for enforcing the complex statute in question.

In the instant case, both the EPA and Pennsylvania's Department of Environmental Resources possess special expertise regarding the workings of the Clean Air Act. Pennsylvania was thus fully capable of explicitly raising the argument that 42 U.S.C. § 7407(d)(3)(D) requires the EPA to act on a redesignation request within 18 months. Had Pennsylvania made such an explicit argument, the EPA would have then applied its singular expertise on the Act's mechanics and made a ruling that would inform the deliberations of this court on appeal. If this court were to consider the petitioner's argument without the benefit of the EPA's expert input, we would undermine a fundamental principle of our system of judicial review of administrative decisions.

The harm that would come to the petitioner as a result of this outcome is not so great as to warrant disregarding these concerns. See, e.g., North Alamo Water Supply Corp. v. City of San Juan, 90 F.3d 910, 916 (5th Cir.), cert. denied, --- U.S. ----, 117 S.Ct. 586, 136 L.Ed.2d 515 (1996) (an appellate court should invoke its discretion to review a purely legal issue not raised below when "a miscarriage of justice would result from [the court's] failure to consider it)." For these reasons, we hold that the petitioner may not raise for the first time in this proceeding its argument that 42 U.S.C. § 7407(d)(3)(D) required the EPA to act on Pennsylvania's redesignation request within 18 months.

Moreover, even if we were to reach the merits of the petitioner's argument, we would hold that 42 U.S.C. § 7407(d)(3)(D) did not preclude the EPA from considering the summer 1995 exceedance data. The language of the provision that enumerates the redesignation criteria tends to support this result. Under 42 U.S.C. § 7407(d)(3)(E)(i), the EPA Administrator "may not" promulgate a redesignation of a nonattainment area unless, among other things, "the Administrator determines that the area has attained the national ambient air quality standard." The use of the term "has attained" instead of "attained" may be interpreted as suggesting that the attainment must continue until the date of the redesignation.

In any event, even if we assume for present purposes that the language of 42 U.S.C. § 7407(d)(3)(E) is ambiguous as to whether the EPA may disregard data arising after the expiration of the 18-month period, we must defer to the EPA's interpretation of this provision under the rule of Chevron, U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984). Chevron instructs reviewing courts that if Congress has not "directly spoken to the precise question at issue ... the question for the court is whether the agency's answer is based on a permissible construction of the statute." Id. at 842-43, 104 S.Ct. at 2782. The EPA has published numerous legislative rules that have interpreted 42 U.S.C. § 7407(d)(3)(E) as obliging the EPA to deny a redesignation request if the EPA knows that the area is not in present attainment of the NAAQS.3 Because the EPA's interpretation is a reasonable construction of the statute, we defer to the EPA's interpretation. See Chevron, 467 U.S. at 844, 104 S.Ct. at 2782-83 (when Congress has implicitly delegated to an agency the authority to "elucidate a specific provision of the statute by regulation," a reviewing court "may not substitute its own construction of a statutory provision for a reasonable interpretation made by the administrator of an agency").

The petitioners contend that § 7407(d)(3)(D) prohibits the EPA from considering any data acquired more than 18 months after the submission of Pennsylvania's redesignation request. They assert--correctly, in our view--that the use of the word "shall" in § 7407(d)(3)(D) imposes upon the EPA a mandatory duty to act on a state's redesignation request within 18 months. The petitioner's argument fails, however, because § 7407(d)(3)(D)'s use of the word "shall" does not conclusively indicate that Congress, as embodied in these formal rules, intended to prohibit the EPA from taking action after the expiration of the statutorily specified time period.

The Supreme Court faced a similar question of statutory interpretation in Brock v. Pierce County, 476 U.S. 253, 106 S.Ct. 1834, 90 L.Ed.2d 248 (1986). At issue in Brock was a provision of the Comprehensive Employment and Training Act ("CETA") stating that the Secretary of Labor "shall" issue a final determination as to the misuse of CETA funds by a grant recipient within 120 days after receiving a complaint alleging such misuse. See id. at 254-55, 106 S.Ct. at 1836-37. The Department of Labor disallowed almost $500,000 of CETA expenditures by a county, after an investigation revealed that those funds had not been used in accordance with the CETA program. The county argued that the Secretary of Labor could not recover the misused funds because the Secretary did not issue his final determination of misuse until more than 120 days after the Department received the initial complaint.

The Supreme Court thus faced the question whether the use of the word "shall" in the CETA statute prohibited the Secretary from recovering misused funds after the expiration of the 120-day period. A unanimous Court concluded that "the mere use of the word 'shall' " was not enough to demonstrate that Congress intended to prohibit the Secretary from acting after 120 days. Id. at 262, 106 S.Ct. at 1840. In so deciding, the Court stated that it "would be most reluctant to conclude that every failure of an agency to observe a procedural requirement voids subsequent agency action." Id. at 260, 106 S.Ct. at 1839. The Court instead concluded that "the normal indicia of congressional intent" should determine whether an agency may act after the expiration of a statutory deadline. See id. at 262 n. 9, 106 S.Ct. at 1840 n. 9.

Here, the petitioner has not brought to our attention anything in the Clean Air Act itself (other than the use of the word "shall" in 42 U.S.C. § 7407(d)(3)(D)), or anything in the Act's legislative history that shows that Congress intended for the EPA to lose its power to consider data brought to its attention after the expiration of the 18-month deadline. To the contrary, two important aspects of the Clean Air Act strongly suggest that Congress did not intend for the EPA to lose its power to act after 18 months. The first is the Act's failure to specify a consequence for noncompliance with the 18-month deadline. As the Supreme Court has observed, "if a statute does not specify a consequence for noncompliance with statutory timing provisions, the federal courts will not in the ordinary course impose their own coercive sanction." United States v. James Daniel Good Real Property, 510 U.S. 43, 63, 114 S.Ct. 492, 506, 126 L.Ed.2d 490 (1993).

Second, the Clean Air Act affords a less drastic remedy than that urged by the petitioner. In Brock, the Supreme Court stated that when "there are less drastic remedies available for failure to meet a statutory deadline, courts should not assume that Congress intended the agency to lose its power to act." Brock, 476 U.S. at 260, 106 S.Ct. at 1839. The Brock court's conclusion that there existed a less drastic remedy in that case provides guidance for our present inquiry. Noting that "nothing in CETA appears to bar an action to enforce the 120-day deadline," the Brock court concluded that anyone within the statute's zone of interests could have brought an action to force the Secretary of Labor to act within the statutory deadline. Id. at 260 n. 7, 106 S.Ct. at 1839 n. 7. Thus, 120 days after the original complaint, the defendant in Brock could have brought an action to force the Department of Labor to drop its investigation, provided that the defendant could achieve standing by successfully arguing that Congress enacted the 120-day limit in order "to protect grant recipients from lengthy delays in audits." Id.

Similarly, in the present case, either the petitioner or the Commonwealth of Pennsylvania could have brought an action to enforce the 18-month deadline in 42 U.S.C. § 7407(d)(3)(D).4 The petitioner has not called to our attention any provision of the Clean Air Act that would have precluded such an action. Had the petitioner brought such an action, the result would have been far less drastic than that which the petitioner now urges, which is the redesignation of an area that is not in attainment of the NAAQS.

After oral argument, the parties have called to our attention certain new facts that must be considered. First, in 1995 the EPA issued a direct final notice redesignating LaFourche Parish, Louisiana, as an attainment area. After the publication of this notice, but prior to its effective date, a monitor recorded a violation of the NAAQS for ozone in the LaFourche Parish area. Although the EPA was aware of this exceedance, the EPA did not withdraw the notice, and the LaFourche Parish area was redesignated as an attainment area for ozone on the notice's effective date. The petitioner argues that this redesignation demonstrates that the EPA is not precluded from redesignating an area that experiences an exceedance while a redesignation request is pending.

The EPA's redesignation of the LaFourche Parish area in no way undermines the analysis set forth in this opinion. As discussed above, we accept the view that the EPA may not redesignate an area if the EPA knows that the area is not meeting the NAAQS. The EPA's redesignation of the LaFourche Parish redesignation was thus not proper. However, the fact that the EPA apparently acted contrary to law in a prior case did not permit, much less require, the EPA to disregard the law in the instant case. See Kokechik Fishermen's Assoc. v. Secretary of Commerce, 839 F.2d 795, 802-03 (D.C.Cir.1988) ("[p]ast administrative practice that is inconsistent with the purpose of an act of Congress cannot provide an exception").

The same analysis applies to the second incident that the parties have brought to our attention. In at least one case, the EPA has excluded exceedance data from its evaluation of a redesignation request because the data came from monitors that were not part of the State or Local Air Monitoring Stations network ("SLAMS") required by 40 C.F.R. § 58 (1996). The petitioner contends that such incidents undermine the proposition that EPA is required to deny a redesignation request when it possesses knowledge that the NAAQS is not being attained. Assuming arguendo that the EPA's exclusion of non-SLAMS exceedance data violates the EPA's duty not to redesignate an area that fails to attain the NAAQS, the EPA's prior disregard of this duty did not relieve the EPA of its obligation to act correctly in other cases.

B. The petitioner further attacks the EPA's conclusion that the Area did not attain the NAAQS by arguing that the EPA failed to take into account data demonstrating that much of the offending ozone originated outside the Area. The petitioner contends that ozone readings from border monitors demonstrate that much of the ozone contributing to the exceedances during the summer of 1995 originated in neighboring states and was transported into the Area by wind. In its final rule denying redesignation, the EPA included the following analysis of the interstate ozone transport question:

Pennsylvania has made no demonstration that the ozone problem in the Pittsburgh area is caused by transport from upwind sources. An adequate technical demonstration, including emissions data and a modeling analysis, must be provided to support any claim of transport-dominated nonattainment.

Although ozone levels recorded at monitors near the West Virginia/Ohio/Pennsylvania border seem to correlate with the levels recorded further east in the nonattainment area, this data is not sufficient to demonstrate that the Pittsburgh area's ozone problem is due to transport. During the summer of 1995, on the days when monitors in the Pittsburgh area ("downwind" monitors in Allegheny and Westmoreland Counties) recorded exceedances of the ozone standard, ozone levels at the monitors on the western border of the Pittsburgh area (the "upwind" monitors in Beaver and Washington Counties, Pennsylvania) recorded increased levels of ozone. However, these "upwind" monitors did not record any exceedances of the ozone standard. In other words, "downwind" monitors in the Pittsburgh area always recorded higher ozone levels than the monitors at the western border. This demonstrates the Pittsburgh area is causing its own exceedances by generating ozone in the area....

... [E]ven if the violations in Pittsburgh could be attributed to transport, EPA would not have the authority to redesignate Pittsburgh to attainment. [42 U.S.C. § 7407(d)(1)(A)(ii) ] defines an attainment area as an area "that meets" the national ambient air quality standard and [§ 7407(d)(3)(E) ] prohibits EPA from redesignating an area to attainment unless EPA determines that the area is attaining the standard. As an area that is experiencing violations of the ozone standard is not attaining the standard, EPA is not authorized by the Clean Air Act to redesignate such an area to attainment.

61 Fed.Reg. 19,193, 19,194 (May 1, 1996).

The petitioner contends that the EPA "failed to adequately analyze and consider the role transported ozone and ozone precursors played in the Area's 1995 exceedances." Pet'r. Br. at 28. Although the petitioner does not seem to argue that these exceedances were caused solely by transported ozone, the petitioner maintains that such ozone plainly contributed to the 1995 exceedances. See id. The petitioner states that "[t]here is nothing in the record upon which the EPA bases its assumption that exceedances are attributable solely to sources within the border when high ozone levels are being transported into the Area." Id. at 29.

In response, the EPA argues that the Clean Air Act and its implementing regulations "require that EPA determine whether or not an area has met the NAAQS and satisfied the first criterion for redesignation without regard to why the NAAQS and the criterion many not have been met." Resp't. Br. at 30. In essence, then, the EPA maintains that the origin of the ozone that caused the 1995 exceedances was legally irrelevant. See 61 Fed.Reg. at 19,193 19,194 (the EPA's final rule denying Pennsylvania's request to redesignate the Area). The EPA goes on, however, to defend its scientific analysis of the role of transported ozone in the Area.

In evaluating the EPA's interpretation of the Clean Air Act, we must apply the familiar Chevron analysis to which we previously referred. Under this analysis, if "Congress has directly spoken to the precise question at issue ... the court ... must give effect to the unambiguously expressed intent of Congress." Chevron, 467 U.S. at 842-43, 104 S.Ct. at 2781. If, however, the "precise question at issue" is one about which Congress has been either "silent or ambiguous," then a reviewing court must defer to the agency's statutory interpretation if it is "based on a permissible construction of the statute" Id. at 843, 104 S.Ct. at 2782.

Here, the EPA contends that the Clean Air Act itself prohibited allowances for ozone transported from outside the Area. The EPA relies in part on 42 U.S.C. § 7407(d)(1)(A)(ii), which provides that an attainment area is one that "meets" the NAAQS, and 42 U.S.C. § 7407(d)(3)(E)(i), which prohibits the EPA from redesignating an area to attainment unless the EPA determines that the area "has attained" the NAAQS. These provisions are certainly consistent with and lend some support to the EPA's interpretation.

Somewhat stronger support for the EPA's argument is furnished by other provisions of the Act. The first of these is 42 U.S.C. § 7511a(h), wh