Robert Greenbaum v. United States Environmental Protection Agency

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RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit Rule 206
ELECTRONIC CITATION: 2004 FED App. 0166P (6th Cir.)
File Name: 04a0166p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
_________________
ROBERT GREENBAUM,
Petitioner,
SIERRA CLUB,
Intervenor,
v.
UNITED STATES
ENVIRONMENTAL
PROTECTION AGENCY, and
MICHAEL O. LEAVITT,*
Administrator, United States
Environmental Protection
Agency,
Respondents.
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No. 01-3132
*Pursuant to Fed. R. Ap p. P. 43(c ), Michael O. Leavitt is
automatically substituted for Christine Tod d W hitman.
On Petition for Review of an Order of the
Environmental Protection Agency.
No. 40 CFR Parts 52 & 81.
Argued: May 6, 2003
2 Greenbaum v. Environmental
Protection Agency, et al.
No. 01-3132
Decided and Filed: June 3, 2004
Before: BOGGS, Chief Judge; and GUY and
DAUGHTREY, Circuit Judges.
_________________
COUNSEL
ARGUED: Keri N. Powell, EARTHJUSTICE LEGAL
D E F E N S E F U N D , W a s h i n g t o n , D . C . , f o r
Petitioner/Intervenor. Christopher B. Peak, UNITED
STATES DEPARTMENT OF JUSTICE, Washington, D.C.,
for Respondent. ON BRIEF: J. Todd Hutchins, David S.
Baron, EARTHJUSTICE LEGAL DEFENSE FUND,
Washington, D.C., for Petitioner. Christopher B. Peak,
UNITED STATES DEPARTMENT OF JUSTICE,
Washington, D.C., for Respondent.
_________________
OPINION
_________________
BOGGS, Chief Judge. The Environmental Protection
Agency (“EPA”) redesignated Cuyahoga County, Ohio
(hereinafter “Cleveland”) from nonattainment to attainment
for particulate matter, specifically for particles known as PM10
(particles smaller than 10 microns in diameter), on
December 11, 2000. This was done pursuant to
§ 107(d)(3)(E) of the Clean Air Act, 42 U.S.C.
§ 7407(d)(3)(E). Robert Greenbaum, a Cleveland resident
and Sierra Club member, and intervenor, Sierra Club
(“Petitioners”), appeal the agency action. Petitioners argue
that the EPA illegally waived statutory requirements when it
redesignated the Cleveland area to attainment.

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I. Statutory Framework
The Clean Air Act (“CAA”) establishes a comprehensive
program for controlling and improving the nation’s air quality
through both state and federal regulation. The administrator
formulates National Ambient Air Quality Standards
(“NAAQS”) that specify the maximum permissible
concentrations of certain air pollutants. The EPA initially
designates geographic areas as “attainment” or
“nonattainment” based on whether the areas meet the
pollution limits for a particular pollutant, pursuant to the
NAAQS for that particular pollutant. PM10 nonattainment
areas are further classified as moderate or serious, depending
on the severity and persistence of the problem. The CAA
requires states to submit a state implementation plan (“SIP”)
to the EPA, containing specific pollution control measures
necessary for the attainment, maintenance, and enforcement
of the NAAQS. The SIPs must be drafted to meet
requirements as outlined in CAA § 110(a)(2), 42 U.S.C.
§ 7410(a)(2). Part D of Title I of the CAA provides that a SIP
for PM10 nonattainment areas (such as Cleveland before the
redesignation) must include a New Source Review (“NSR”).
NSR is a permit program for major new and modified sources
of pollutant. Basically, the program requires new or modified
sources of pollutant to obtain a permit that requires certain
pollution controls and other measures to ensure that the new
or modified source will not exacerbate the pollution problem
in the area. SIPs must also include programs for enforcement
of the NSR provisions and other measures included in the
plan.
The EPA reviews and either approves or disapproves the
SIP submissions. If the EPA approves the SIP, either wholly
or partially, the approved provisions become enforceable by
the federal government. If the EPA disapproves the SIP, then
the state is subject to sanctions, as well as federally imposed
clean air measures.
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No. 01-3132
1The plan must “provide for the implementation of specific measures
to be undertaken if the area fails to make reasonable further progress, or
to attain the national primary ambient air quality standard by the
attainment date applicable under this part.” 42 U.S.C. § 75 02(c)(9).
States may ask the EPA to redesignate geographical areas
from nonattainment to attainment for a particular polluntant
once a NAAQS has been met. 42 U.S.C. § 7407(d)(3)(E).
The EPA must approve or deny such redesignation within
18 months. 42 U.S.C. § 7407(d)(3)(D). The EPA may not
redesignate an area to attainment unless: (i) the EPA has
determined that the area has attained the applicable NAAQS;
(ii) the EPA has fully approved the applicable SIP under
§ 7410(k); (iii) the EPA has determined that the improvement
in air quality is due to permanent and enforceable reductions
in emissions resulting from implementation of the SIP and
other required reductions; (iv) the EPA has fully approved a
maintenance plan under CAA § 175A that has been adopted
by the State, which demonstrates that the area will maintain
the NAAQS for at least 10 years after redesignation; and
(v) the EPA has determined that the State containing the area
seeking redesignation has met all applicable SIP requirements
for that area under § 110 with respect to SIPs generally, and
under Part D with respect to SIP provisions for nonattainment
areas. 42 U.S.C. § 7407(d)(3)(E).
II. The Redesignation of Cleveland
Cleveland was designated as a moderate nonattainment area
in 1990. In 1991, Ohio submitted a SIP revision, which was
supplemented twice. The EPA partially approved and
partially disapproved the plan. EPA approved the majority of
the submission on May 27, 1994, but disapproved parts of it
because of various deficiencies. The EPA stated in its
May 27, 1994 notice that it would address in separate
rulemakings the contingency measures required by
§ 172(c)(9)1 of the Act and the Part D NSR requirement.

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Ohio submitted a SIP revision, approved by the EPA, that
addressed the contingency measures. Ohio submitted another
revision, correcting the deficiencies identified by the EPA in
May 1994, which the EPA subsequently approved. Thus, the
SIP was fully approved, except for the Part D NSR.
In the meantime, air quality monitoring in the Cleveland
area showed that it had achieved attainment of the particulate
matter NAAQS. On May 22, 2000, Ohio submitted a request
to the EPA, asking it to redesignate Cleveland from
nonattainment to attainment. The EPA proposed
redesignating Cleveland on July 10, 2000. Approval and
Promulgation of Implementation Plans; Ohio, Designation of
Areas for Air Quality Planning Purposes; Ohio, 65 Fed. Reg.
42,312 (July 10, 2000). In response, the Earthjustice Legal
Defense Fund, representing the Ohio Chapter of the Sierra
Club, submitted numerous comments, some of which
addressed the lack of an NSR program in Ohio’s SIP. The
EPA issued a rulemaking, redesignating Cleveland and
addressing the submitted comments, on December 11, 2000.
Approval and Promulgation of Implementation Plans and
Designation of Areas for Air Quality Planning Purposes;
Ohio, 65 Fed. Reg. 77,308 (Dec. 11, 2000).
In response to the comments with respect to the NSR
program, the EPA stated that it “continues to believe that it
has fully approved the applicable SIP for Cuyahoga and
Jefferson Counties.” Id. at 77,311. It stated that it “believes
that Cuyahoga and Jefferson Counties may be redesignated to
attainment notwithstanding the lack of a fully-approved NSR
program meeting the requirements of the 1990 Clean Air Act
Amendments.” Id. at 77,312. The EPA continued, stating
that it “believes that its decision not to insist on a fully
approved NSR program as a prerequisite to redesignation is
justifiable as an exercise of the Agency’s general authority to
establish de minimis exceptions to statutory requirements” as
“application of the statutory requirements would be of trivial
or no value environmentally.” Ibid. (citing Ala. Power Co. v.
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242 U .S.C. § 750 5a(d ) provides:
Each plan revision subm itted under this section shall contain
such contingency provisions as the Administrator deems
necessary to assure that the State will promptly correct any
violation of the standard which occurs after the redesignation of
the area as an attainment area. Such provisions shall include a
requirement that the State will imp lement all mea sures with
respe ct to the control of the air pollutant concerned which were
contained in the State implementation plan for the area before
redesignation of the area as an attainment area.
Costle, 636 F.2d 323, 360-61 (D.C. Cir. 1979)). The EPA
stated that once an area is redesignated to attainment, a new
program called “prevention of significant deterioration”
(“PSD”) replaces NSR and governs compliance. Ibid.
Compare 42 U.S.C. §§ 7502(c)(5), 7503 (requiring NSR for
SIPs governing nonattainment areas) with 42 U.S.C. § 7471
(requiring PSD in SIPs governing attainment areas).
According to the EPA, “PSD requires that new sources
demonstrate that their construction will not increase ambient
concentrations significantly and will not result in
concentrations above the air quality standard.” 65 Fed. Reg.
at 77,312. It concluded that “there would be trivial if any
environmental value of applying nonattainment new source
requirements in Cuyahoga and Jefferson Counties rather than
PSD requirements.” Ibid.
The EPA noted that another purpose of requiring the
approval of a Part D NSR program would be “to ensure that
NSR would become a contingency provision in the
maintenance plan required for these areas by section
107(d)(3)(E)(iv) and 175A(d).”2 It stated that “whether an
approved NSR program must be included as a contingency
provision depends on whether it is a ‘measure’ for the control
of the pertinent air pollutants.” Ibid. The EPA stated that the
term “measure” is not defined in section 175A(d) and that
Congress used the term differently in different provisions of

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the CAA. “This indicates that the term is susceptible to more
than one interpretation and that EPA has the discretion to
interpret it in a reasonable manner in the context of section
175A.” Ibid. Therefore, “EPA believes it is reasonable to
interpret ‘measure,’ as used in section 175A(d), not to include
NSR.” Ibid.
Finally, the EPA concluded that Ohio’s maintenance plan
required by § 175A(d) included sufficient contingency
measures to correct any future violation of the NAAQS.
Petitioners argue that § 107(d)(3)(E) of the CAA is explicit
in stating the requirements that must be met before the EPA
may redesignate a nonattainment area to attainment. One
requirement is that the EPA fully approve “the applicable
implementation plan for the area under section [7410(k)]
. . . .” 42 U.S.C. §§ 7407(d)(3)(E), 7505a. At the time of
redesignation, Ohio’s SIP did not contain a fully approved or
approvable NSR program as required by § 7410(a)(2)(C) and
Part D, and as required as part of Cleveland’s maintenance
plan by § 7505a. Petitioners argue that the EPA violated the
express and unambiguous requirements of 42 U.S.C.
§§ 7404(d)(3)(E)(ii), (iv), (v), and 7505a. They argue that the
EPA has misstated the scope of its authority to carve out de
minimis exceptions, and has failed to carry its burden of
showing that such an exception applies in this case.
Moreover, they argue, enforcing the CAA’s NSR requirement
will not lead to absurd results, noting that more stringent
requirements are imposed on an area under an NSR program
than are imposed by a PSD program. Petitioners also
maintain that the EPA’s position that the term “measure” does
not include the NSR program is untenable and its explanation
of its method in reaching this conclusion is contorted.
Finally, petitioners argue that the EPA illegally approved a
maintenance plan that lacks contingency measures adequate
to correct promptly any NAAQS violation that might occur
after redesignation.
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III. Standard of Review
This court reviews the EPA’s action with deference, and
should affirm unless the action was “arbitrary, capricious, an
abuse of discretion, or otherwise not in accordance with law.”
5 U.S.C. § 706 (2)(A); Southwestern Penn. Growth Alliance
v. Browner, 144 F.3d 984, 988 (6th Cir. 1998). In Chevron,
U.S.A., Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837
(1984), the Supreme Court established a two-step process for
reviewing an agency’s interpretation of a statute it
administers. If “Congress has directly spoken to the precise
question at issue . . . the court . . . must give effect to the
unambiguously expressed intent of Congress.” Id. at 842-43
(emphasis added). If Congress has been either silent or
ambiguous about the “precise question at issue,” then a
reviewing court must defer to the agency’s interpretation if it
is reasonable. Ibid. “To uphold EPA's interpretation of a
statute, the Court ‘need not find that it is the only permissible
construction that EPA might have adopted but only that
EPA's understanding of this very 'complex statute' is a
sufficiently rational one to preclude a court from substituting
its judgment for that of EPA.’” Southwestern Penn. Growth
Alliance, 144 F.3d at 988 (quoting Chem. Mfrs. Ass'n v.
Natural Res. Def. Council, Inc., 470 U.S. 116, 125 (1985)).
IV. Analysis
A. De minimis authority
“Unless Congress has been extraordinarily rigid, there is
likely a basis for an implication of de minimis authority to
provide exemption when the burdens of regulation yield a
gain of trivial or no value.” Ala. Power Co. v. Costle, 636
F.2d 323, 360-61 (D.C. Cir. 1979). “Determination of when
matters are truly de minimis naturally will turn on the
assessment of particular circumstances, and the agency will
bear the burden of making the required showing.” Id. at 360.

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The EPA argues that the Part D NSR program is
inapplicable to attainment areas, so that the requirement
disappears upon redesignation. After redesignation, Part D
NSR is replaced by a PSD, another permitting program
designed to ensure maintenance of the NAAQS in attainment
areas. Compare 42 U.S.C. §§ 7502(c)(5), 7503 (requiring
NSR for SIPs governing nonattainment areas) with 42 U.S.C.
§ 7471 (requiring PSD in SIPs governing attainment areas).
Therefore, requiring NSR approval prior to redesignation
would provide de minimis environmental benefit.
The petitioners argue that that the NSR requirement is rigid,
and the EPA’s action was a departure from the statute. They
argue that the court in Alabama Power made it clear that the
focus of de minimis authority is whether a statute’s “literal
terms lead to absurd or futile results.” Id. at 360 n.89
(internal quotation marks and citations omitted). They argue
that the clear Congressional mandate in this case does not
lead to an absurd result and that the EPA did not have
authority to depart. They urge that requiring an NSR program
in Cleveland furthers the Act’s purpose because it provides
much greater assurance than does a PSD program that the area
will maintain its NAAQS.
It is not necessary in this case to reach the question of
whether the EPA exceeded or misstated its de minimis
authority to depart from the statute. The EPA approved
Ohio’s Part D NSR program in a final rule issued January 10,
2003. Approval and Promulgation of Implementation Plans;
Ohio, 68 Fed. Reg. 1366 (Jan 10, 2003). The deadline for
challenges to the rule expired March 11, 2003, and none were
filed. If we were to remand the redesignation to the EPA, it
would result in a duplicative rulemaking to redesignate the
Cleveland area once again. The NSR program would not be
implemented as approved, as NSR programs are only required
in nonattainment areas. Under the doctrine of prudential
mootness, we decline to reach the specific issue of whether
Ohio’s NSR program should have been fully approved prior
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3“Such provisions shall include a req uirement that the State will
implement all measures with respect to the control of the air pollutant
concerned which were contained in the State implementation plan for the
area before redesignation of the area as an attainment area.” 42 U.S.C.
§ 75 05a (d) (emph asis added ).
to redesignation as the circumstances have changed, and we
can no longer afford petitioners any meaningful relief on this
point. See S. Utah Wilderness Alliance v. Smith, 110 F.3d
724, 727 (10th Cir. 1997); Chamber of Commerce of United
States of America v. United States Dep’t of Energy, 627 F.2d
289, 291 (D.C. Cir. 1980) (“In some circumstances, a
controversy, not actually moot, is so attenuated that
considerations of prudence and comity for coordinate
branches of government counsel the court to stay its hand, and
to withhold relief it has the power to grant.”).
However, the approval of Ohio’s NSR program does not
moot the rest of the issues on appeal. Petitioners argue that
because of the belated approval, the EPA may now claim that
the NSR program was not contained in the implementation
plan before redesignation, and is therefore not a required
maintenance contingency measure within the meaning of
§ 175A.3 Our decision in this case declining to address the
propriety of redesignation absent an approved NSR program
is in no way an invitation for the EPA to circumvent the
mandates of the CAA. The NSR should have been approved
before redesignation, and for the purposes of addressing
petitioners’ claims regarding § 175A, we will treat it as if it
had been.
B. Interpretation of the word “measure”
Section 175A requires that when a state submits a request
for redesignation of an area to attainment, it must submit a
SIP revision to provide for the maintenance of the NAAQS
for at least ten years after redesignation. 42 U.S.C.
§ 7505a(a). These provisions must require the state to

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“implement all measures with respect to the control of the air
pollutant concerned which were contained in the State
implementation plan for the area before redesignation of the
area as an attainment area.” 42 U.S.C. § 7505a(d).
The petitioners maintain that the NSR program is a required
pollution control measure, and therefore should be among the
contingency measures required by the CAA. The EPA stated
that it “believes it is reasonable to interpret ‘measure,’ as used
in section 175A(d), not to include NSR.” 65 Fed. Reg. at
77,312. As the NSR program is not a pollution control
“measure,” it is not among the contingency measures required
by the CAA.
The substance of the EPA’s argument relies upon statutory
construction and its interpretation of the meaning of the word
“measure” as used in § 175A. Under the deferential Chevron
standard of review, we must first determine if the statute is
ambiguous with respect to the precise issue in question. If so,
we must defer to the agency’s interpretation if it is reasonable.
Chevron, 467 U.S. at 842-43. However, “if the apparent
statutory ambiguity can be resolved using ‘traditional tools of
statutory construction,’” an agency’s interpretation is not
entitled to Chevron deference. Mid-America Care Found. v.
Nat’l Labor Relations Bd., 148 F.3d 638, 642 (6th Cir. 1998)
(quoting INS v. Cardoza-Fonseca, 480 U.S. 421, 446 (1987));
see also Chevron, 467 U.S. at 843 n.9.
In determining whether Congress has specifically
addressed the question at issue, a reviewing court should
not confine itself to examining a particular statutory
provision in isolation. The meaning – or ambiguity – of
certain words or phrases may only become evident when
placed in context. It is a fundamental canon of statutory
construction that the words of a statute must be read in
their context and with a view to their place in the overall
statutory scheme. A court must therefore interpret the
12 Greenbaum v. Environmental
Protection Agency, et al.
No. 01-3132
statute as a symmetrical and coherent regulatory scheme,
and fit, if possible, all parts into an harmonious whole.
FDA v. Brown & Williamson Tobacco Corp., 529 U.S. 120,
132-33 (2000) (internal quotation marks and citations
omitted).
The EPA argues that Congress did not speak directly to the
definition of the word “measure” in § 175A. Although the
statute requires implementation of “all measures with respect
to the control of the air pollutant concerned” that were in the
nonattainment SIP, the EPA notes that it is apparent that
Congress meant for some aspects of the nonattainment SIP to
be measures to be included as contingency measures in the
maintenance plan, and some not. It argues that § 175A does
not indicate which provisions are to be included, and so it had
to turn to other parts of the statute. It states that it turned to
§ 110, which lists the required SIP provisions. Section 110
requires “control measures” as components of a SIP.
42 U.S.C. § 7410(a)(2)(A). The EPA argues that
subparagraph A requires a SIP to include “enforceable
emission limitations and other control measures, means, or
techniques . . . as may be necessary or appropriate to meet the
requirements of [the Act].” Ibid. Subparagraph C requires
the SIP also to include “a program to provide for the
enforcement of the measures described in subparagraph (A),
and regulation of the modification and construction of any
stationary source . . . , including a permit program as required
in parts C and D of this subchapter.” Id. at § 7410(a)(2)(C).
The EPA argues that if the Part D NSR permit program were
among the control measures mentioned in subparagraph A,
the separate reference to it in subparagraph C would be
unnecessary. The EPA concluded that the “measures with
respect to the control of the air pollutant concerned” in
section 175A(d) and the “control measures” in section
110(a)(2)(A) are the same, and do not include the Part D NSR
permit program.

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Petitioners argue that the EPA’s position is untenable, and
its statutory interpretation tortured. They argue that the term
“measure” is unambiguous in meaning and unquestionably
includes NSR programs, citing Webster’s Collegiate
Dictionary (“a step planned or taken as a means to an end”).
They list several of the NSR program’s pollution controls,
and assert that, therefore, the NSR program is “a step planned
or taken as a means” to the end of controlling and reducing air
pollution, and is therefore a measure. They argue that the
EPA applied an aid to statutory construction to a different
section of the statute to create an ambiguity in § 175A where
none otherwise exists.
First, we note that there may be no ambiguity, but for a
different reason than the one offered by the Petitioners.
According to 42 U.S.C. §§ 7502(c)(5), 7503, SIPs governing
nonattainment areas must include NSR programs. Under
42 U.S.C. § 7471, by contrast, SIPs governing attainment
areas must include PSD programs. Thus, although NSR was
(or should have been) in the pre-existing SIP, it would make
little sense for it to be included in the post-attainment SIP, as
the Clean Air Act statutes explicitly states that attainment
area SIPs must include a PSD program. Yet, even if the clear
directive of § 7471 does not establish that “measure”
unambiguously excludes NSR, the potential statutory conflict
is enough to create an ambiguity as to the proper scope of
“measure” in § 175A.
Before reaching that conclusion, however, we must
determine whether “traditional tools of statutory construction”
provide resolution to the ambiguity. Chevron, 467 U.S. at
843 n.9. “The normal rule of statutory construction assumes
that ‘identical words used in different parts of the same act are
intended to have the same meaning.’” Sorenson v. Sec’y of
Treasury, 475 U.S. 851, 860 (1986) (quoting Helvering v.
Stockholms Enskilda Bank, 293 U.S. 84, 87 (1934)).
However, as the Court has also noted, “[l]ike all such
maxims, . . . , this is merely a general assumption, and is not
14 Greenbaum v. Environmental
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No. 01-3132
always valid or applicable.” Sullivan v. Stroop, 496 U.S. 478,
489 (1990) (Blackmun, J., dissenting). If the two provisions
are meant to serve the same purpose, the rule might apply, but
if not, the applicability of the rule might be limited. Id. at
489-90 (citing Helvering, 293 U.S. at 87 (“[S]ince most
words admit of different shades of meaning, susceptible of
being expanded or abridged to conform to the sense in which
they are used, the presumption readily yields [when] the
words, though in the same act, are found in . . . dissimilar
connections.”)). As the apparent statutory ambiguity cannot
readily be resolved using traditional tools of statutory
construction, we apply Chevron deference to the agency’s
interpretation.
The EPA’s interpretation of the word “measure” in § 175A
is reasonable, and we will not substitute our judgment for that
of the federal agency. The “words of a statute must be read
in their context and with a view to their place in the overall
statutory scheme.” Davis v. Mich. Dep’t of Treasury, 489
U.S. 803, 809 (1989). Section 175A(d) requires
implementation of “all measures with respect to the control of
the air pollutant concerned” contained in the nonattainment
SIP. It was entirely permissible, and indeed logical, for the
EPA to look to § 110 to determine the meaning of the word
“measure” in § 175A as § 110 lists the provisions required to
be included in a nonattainment SIP. Petitioners argue this
was done merely to create an ambiguity where one did not
otherwise exist. However, “[t]he meaning – or ambiguity –
of certain words or phrases may only become evident when
placed in context.” Brown & Williamson Tobacco Corp., 529
U.S. at 121 (citing Brown v. Gardner, 513 U.S. 115, 118
(1994) (“Ambiguity is a creature not of definitional
possibilities but of statutory context.”)).
Likewise, the EPA’s argument that the reference to the Part
D NSR program in subparagraph C of § 110 would be
surplusage if it were among the control measures mentioned
in subparagraph A of § 110 is reasonable. 42 U.S.C.

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§ 7410(a)(2)(A) & (C). Subparagraph C requires a
nonattainment SIP to contain “a program to provide for the
enforcement of the measures described in subparagraph (A),
and regulation of the modification and construction of any
stationary source within the areas covered by the plan . . . .”
42 U.S.C. § 7410(a)(2)(C) (emphasis added). The latter
clause of the sentence refers to the Part D NSR permit
program, while the former refers to the measures described in
subparagraph A. It was not unreasonable for the EPA to
conclude that given this structure of § 110, that Congress
intended that the term “measure” not include the Part D NSR
permit program.
We also find persuasive the EPA’s argument that the very
nature of the NSR permit program supports its interpretation
that it is not intended to be a contingency measure pursuant to
§ 175A(d). The contingency measures required by § 175A
require immediate emission reductions on existing sources.
The beginning of the paragraph reads: “Each plan revision
submitted under this section shall contain such contingency
provisions as the Administrator deems necessary to assure
that the State will promptly correct any violation of the
standard which occurs after the redesignation of the area as an
attainment area.” 42 U.S.C. § 7505a(d). The NSR program
would have no immediate effect on emissions. It is a
permitting program under which those who want to construct
a new major pollutant source, or modify an existing major
pollutant source, must acquire a permit. 42 U.S.C. § 7503.
The program has no effect on existing sources, which would
be the cause of any violation of the standard. We therefore
defer to the EPA’s reasonable definition of the word
“measure” in § 175A.
C. The maintenance plan
When a state submits to the EPA a request for
redesignation, § 175A requires that the state submit a SIP
16 Greenbaum v. Environmental
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No. 01-3132
revision to provide for the maintenance of the NAAQS for at
least ten years after the redesignation. 42 U.S.C. § 7505a(a).
Section 175A(d) provides:
Each [maintenance plan] submitted under this section
shall contain such contingency provisions as the
Administrator deems necessary to assure that the State
will promptly correct any violation of the standard which
occurs after the redesignation of the area as an attainment
area.
42 U.S.C. § 7505a(d) (emphasis added). The language clearly
indicates that Congress expressly delegated authority to the
EPA to determine what contingency measures are necessary.
We give such determinations by regulation “controlling
weight unless they are arbitrary, capricious, or manifestly
contrary to the statute.” Chevron, 467 U.S. at 844.
Petitioners argue that the EPA’s determination in this case is
all three. We disagree.
In response to comments regarding the maintenance plan,
the EPA stated that “Ohio’s enforcement program,
commitment of resources, and legal authority are adequate
and assure that measures in the SIP (including maintenance
plan measures) will be implemented.” 65 Fed. Reg. 77,315.
It noted that the Ohio SIP contained contingency measures
that had been approved by the EPA on May 6, 1996. Ibid.
(citing Approval and Promulgation of Implementation Plans;
Ohio, 61 Fed. Reg. 20,139 (May 6, 1996)). When the EPA
approved these contingency measures, the EPA stated that
Ohio’s contingency measures provided “for a reasonable level
of continued progress toward the attainment goal during an
interim period between any prospective determination that the
SIP has failed to . . . provide for timely attainment of the
NAAQS and the additional formal air quality planning
following the determination.” 61 Fed. Reg. at 20,141.

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4Section 17 2(c)(9) reads:
Such plan shall provide for the im plementation of specific
measures to be undertaken if the area fails to make reasonable
further progress, or to attain the national prim ary ambient air
quality standard by the attainment date applicable under this
part. Such measures shall be included in the plan revision as
contingency measures to take effect in any such case without
further action by the State or the Administrator.
42 U.S.C. § 75 02(c)(9).
In its rulemaking redesignating Cleveland as an attainment
area, the EPA stated that “[s]ection 175A(d) does not dictate
that the maintenance plan contingency measures be sufficient
by themselves to correct any violation of the standard.
Instead, these measures need only be sufficient in EPA’s
judgment to help assure that the State will promptly correct
any future violation.” 65 Fed. Reg. at 77,315. It reasoned
that PM10 is emitted from a variety of sources, and therefore
it could not “reasonably expect maintenance plan contingency
measures by themselves to address all possible future
violations.” Ibid. The EPA also reasoned that it must make
a judgment call as to which types of future violations are most
likely and consider “other factors which help assure that the
State will correct any future violations.” Ibid. The EPA
identified as additional factors “provisions in Ohio’s
regulations that allow the State to impose additional source
controls if violations occur and provisions in the Clean Air
Act Section 110(h) (provisions for SIP calls).” Ibid.
It concluded that these contingency measures, approved
May 6, 1996 and adopted pursuant to § 172(c)(9),4 were
adequate to satisfy § 175A(d), and that these “contingency
measures . . . in combination with other factors, assure that
Ohio will promptly correct any future violations in these
areas.” Ibid.
18 Greenbaum v. Environmental
Protection Agency, et al.
No. 01-3132
Petitioners claim that Ohio’s maintenance plan is woefully
inadequate and they raise a number of objections as to why
the plan does not come close to fulfilling the statutory
requirements. First, they argue that the statute requires that
the contingency measures themselves should be sufficient to
assure correction of a violation, and not just “help” assure a
correction. They add that the statute does not authorize the
EPA to use other measures outside the maintenance plan to
assure these corrections. Second, Petitioners contend that the
EPA has not identified a schedule for implementing the
contingency measures, nor has it identified triggers or specific
indicators that would be used to determine when contingency
measures need to be implemented. In support of this
argument, they cite a September 4, 1992 memorandum to
various EPA air pollution directors from the Director of the
Air Quality Management Division of the EPA, John Calcagni,
entitled Procedures for Processing Requests to Redesignate
Areas to Attainment (the “Calcagni Memorandum”). They
add that the EPA’s assertion that a violation of the NAAQS
is the trigger for implementation of the contingency measures
is not sufficient. Third, they argue that the word “promptly”
in § 175A(d) reflects Congressional intent that the corrective
measures be “immediately available in the event the area once
again exceeds the standard.” H.R. Rep. No. 490, 101st Cong.,
2d. Sess., pt. 1 at 226-27 (1990). According to Petitioners,
however, the contingency measures in question would not be
implemented until either the state or the EPA made a
determination that the area has violated the NAAQS. Fourth,
Petitioners allege that the EPA offered no explanation of the
factual bases upon which it made its determination that
Ohio’s maintenance plan was adequate and simply “deemed”
the requirements of § 175A(d) to have been met.
With respect to Petitioners’ claim that these measures are
insufficient, we agree with the EPA’s conclusion that Ohio’s
maintenance plan is in fact sufficient to fulfill the
requirements of § 175A. We find persuasive its reasoning
that it cannot expect Ohio to provide contingency measures

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19
that are capable of addressing any imaginable violation from
the mildest to the most severe. The EPA argues that Congress
clearly contemplated a situation in which the federally-
controlled contingency measures contained in the
maintenance plan might not be sufficient to correct a violation
of the NAAQS. Pursuant to 42 U.S.C. § 7410(k)(5), the EPA
is authorized to require a state to revise an approved SIP if it
finds that it has become substantially inadequate to maintain
the NAAQS. Moreover, § 175A allows the EPA, in its
discretion, to require the state to submit a revised SIP should
the area fail to maintain the NAAQS.
“[A]ny final determination regarding the adequacy of a
maintenance plan will be made ‘in light of the particular
circumstances facing the area proposed for redesignation and
based on all relevant information available at the time.’” Wall
v. EPA, 265 F.3d 426, 431 (6th Cir. 2001) (quoting Calcagni
Memorandum, at 8). Ohio’s SIP contains contingency
measures approved May 6, 1996. The EPA deemed these
measures as sufficient to assure that Ohio would reach
attainment, which it did, and sufficient to assure that it would
promptly correct any violation of the standard after
redesignation. The EPA stated that other factors will help
assure prompt correction. Petitioners argue that the
contingency measures themselves are not sufficient to do so
and argue that under the EPA’s logic, a state could submit a
plan with no contingency provisions and merely assert that
other measures will correct the violation. However, the EPA
did not do so in the present case. The contingency measures
submitted clearly contemplate future violations, along with
the possibility that Ohio could again be subject to strict
regulations.
The EPA is correct when it states that no maintenance plan
could, or should be expected to, cover every possible
contingency. Any maintenance plan included in a SIP could
never “assure that the State will promptly correct any
violation of the standard.” Violations could be of any degree
20 Greenbaum v. Environmental
Protection Agency, et al.
No. 01-3132
of severity, and caused by any number of sources of
particulate matter. The EPA argues that it had to judge which
types of violations were most likely, and judged Ohio’s
maintenance plan in that context. The Administrator has been
granted broad discretion by Congress in determining what is
“necessary to assure” prompt correction. The EPA has
approved Ohio’s maintenance plan, concluding that its
contingency measures provide a means to deal with likely
violations. We do not believe that this determination is
“arbitrary, capricious, or manifestly contrary to the statute.”
Chevron, 467 U.S. at 844.
As the EPA notes, the other factors (such as Ohio’s general
environmental regulations) it included in its December 11,
2000 rulemaking are available should the contingency
measures by themselves fail to correct the violation.
Petitioners respond that if Congress had thought that the
state’s general regulatory authorities would be adequate to
assure the prompt correction of a violation, it would not have
required a maintenance plan to contain specific contingency
measures that a state is obligated to implement in the event of
a violation. However, the EPA stated that the contingency
measures themselves are sufficient to “help assure that the
State will promptly correct any future violation,” and that the
other factors in addition to the contingency measures will
“assure that Ohio will promptly correct any future violations
in these areas.” 65 Fed. Reg. at 77,315. Therefore, the EPA
stated that the contingency measures themselves were
sufficient to “help assure” prompt correction, and that the
additional factors also were available to “help assure” prompt
correction. Again, without knowledge of the severity or
source of a NAAQS violation, any combination of
contingency measures cannot assure prompt correction to an
absolute certainty, and can only be promised to “help assure”
prompt correction.
The quarrel between whether the state’s measures will
“assure” or only “help assure” corrections of violations is

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largely a semantic one. The approved maintenance plan is
based, in part, on measures that Ohio has committed to
implement in case of need, and that, ultimately, the EPA can
compel. On that state of facts, whether the EPA’s own
measures are said to “assure” or only “help assure,” the
essential fact is that the remedial measures will occur in case
of need, and that the EPA has deemed those measures
(collectively) as adequate to remedy any future violation.
Petitioners’ second argument was that the maintenance plan
lacked both schedules for implementing the contingency
measures and triggers or other specific indicators that would
be used to determine if the contingency measures needed to
be implemented. The EPA disagrees. The EPA explains that
Ohio added contingency measures to regulate industrial
sources in Cleveland because such sources were the principal
cause of particulate matter nonattainment. 61 Fed. Reg. at
20,140; Approval and Promulgation of Implementation Plans;
Ohio, 58 Fed. Reg. 41,218 (Aug. 3, 1993). It has stated that,
in the event of a violation of the NAAQS, five industrial
source facilities in the Cleveland area are required to reduce
particulate emissions by either 15% or 25%, depending on the
severity of the violation. 61 Fed. Reg. at 20140; OAC 3745-
17-14(C); OAC 3745-17-02. The EPA states that, once a
violation of the NAAQS has occurred, the principal
contributors of particulate matter are required to reduce
emissions, and that this is sufficient.
With this background in mind, we turn to the Petitioners’
specific allegations about how and when these measures
would take effect in the event of a violation. With respect to
triggers, the EPA correctly argues that monitored violations
of the NAAQS can be possible triggers. Calcagni Memo at
12. The contingency measures may be triggered upon
notification by the Ohio EPA or the United States EPA of a
determination by either agency that a violation has occurred.
With respect to schedules, the EPA correctly explains that the
contingency measures were initially developed pursuant to
22 Greenbaum v. Environmental
Protection Agency, et al.
No. 01-3132
§ 172(c)(9), which requires that the measures take effect
without further action by the State or the EPA, which the EPA
interprets to mean “that no further rulemaking activities by
the State or EPA would be needed to implement the
contingency measures.” State Implementation Plans; General
Preamble for the Implementation of Title I of the Clean Air
Act Amendments of 1990, 57 Fed. Reg. 13,498, 13,512
(April 16, 1992). The Calcagni Memorandum also states that
“[f]or the purposes of section 175A, a State is not required to
have fully adopted contingency measures that will take effect
without further action by the State in order for the
maintenance plan to be approved.” Calcagni Memorandum
at 12. Thus, no pre-determined schedule for adoption of the
measures is necessary in each specific case.
We also reject Petitioners’ third argument and find that the
EPA’s interpretation of what “promptly” means is reasonable.
It is unclear how petitioners expect the EPA to recognize a
violation unless it is able to make a determination based on
the data collected from the air quality monitoring sites and its
subsequent evaluation. Petitioners assert that there is no
requirement that the EPA make this determination
expeditiously. However, there is no indication in the record
that the EPA or the Ohio EPA will not make such a
determination when justified by its data collection and
evaluation.
Finally, Petitioners argue that the EPA did not meet
minimal administrative law requirements by failing to base its
determination upon facts in the administrative record. They
argue that the EPA did not provide any explanation for its
action. However, in the December 11, 2000 rulemaking, the
EPA referenced the May 6, 1996 rulemaking, which approved
the contingency measures contained in Ohio’s SIP. The
May 6 rulemaking stated that the implementation of the
contingency measures contained within “would result in an
emissions reduction of 34 pounds of PM per hour in
Cuyahoga County.” 61 Fed. Reg. at 20,139. In the

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No. 01-3132 Greenbaum v. Environmental
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rulemaking approving redesignation, the EPA stated that “[a]
variety of sources emit PM10, so nonattainment can occur for
a variety of reasons.” 65 Fed. Reg. at 77,315.
We must “‘consider whether the decision was based on a
consideration of the relevant factors and whether there has
been a clear error of judgment . . . . Although this inquiry into
the facts is to be searching and careful, the ultimate standard
of review is a narrow one. The court is not empowered to
substitute its judgment for that of the agency.’” Bowman
Transp., Inc. v. Arkansas-Best Freight Sys., Inc., 419 U.S.
281, 285 (1974) (quoting Citizens to Preserve Overton Park
v. Volpe, 401 U.S. 402, 416 (1971)). The agency must
articulate a “rational connection between the facts found and
the choice made.” Burlington Truck Lines, Inc. v. United
States, 371 U.S. 156, 168 (1962). “While we may not supply
a reasoned basis for the agency's action that the agency itself
has not given, we will uphold a decision of less than ideal
clarity if the agency's path may reasonably be discerned.
Bowman Transp., Inc., 419 U.S. at 286 (internal citation
omitted).
Although the EPA’s rationale is less than completely clear
in its December 11, 2000 rulemaking, its “path may
reasonably be discerned.” Ibid. The May 6, 1996
rulemaking, adopting the contingency measures contained in
Ohio’s SIP, and clearly referenced in the December 11, 2000
rulemaking, extensively discusses the Ohio EPA’s interaction
with the “principal facilities in the PM nonattainment areas,”
61 Fed. Reg. at 20,140, and Ohio’s success in attaining
sufficient reductions from several of those sources in the
event that the area failed to “timely attain the applicable
NAAQS.” Ibid. While it is true that the earlier rulemaking
was somewhat limited in scope in that it focused primarily on
particular industries, the EPA had previously determined that
these industrial sources were primarily responsible for the
excessive particulate emissions in Cleveland. In addition, and
as noted above, the contingency measures require these major
24 Greenbaum v. Environmental
Protection Agency, et al.
No. 01-3132
sources to reduce particulate emissions should a future
violation occur. Therefore, we do not believe that the EPA
has committed a “clear error of judgment” and do not
substitute our judgment for that of the agency.
V. Conclusion
For all of the reasons set forth above, we uphold the EPA’s
redesignation of Cuyahoga County, Ohio from nonattainment
to attainment for particulate matter.

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