ELR Citation: 41 ELR 20223
No(s). 10-1056 (D.C. Cir. Jul 1, 2011)

The D.C. Circuit vacated an EPA guidance document addressing obligations of regions still in nonattainment of the 1997 one-hour ozone NAAQS. The guidance binds EPA regional directors and thus qualifies as final agency action. As such, it amounts to a legislative rule issued in violation of the APA's notice-and-comment requirement. In addition, a portion of the guidance violates the CAA's plain language. Under the guidance, regions attaining either the one-hour or the eight-hour ozone standard can avoid CAA §185 fees through an "attainment alternative." In such regions, the existing eight-hour implementation controls would qualify as a "not less stringent" alternative to §185 fees. Consequently, a region satisfying the eight-hour standard would have no obligation to pay §185 fees even though it remained in nonattainment of the one-hour standard. This runs counter to the language set forth in CAA §172(e), which requires that any alternative be "not less stringent than applicable controls.