ELR Citation: ELR 20413
No(s). s. 82-7410 et al (9th Cir. Oct 28, 1985)

The court upholds the Environmental Protection Agency's (EPA's) approval under the Clean Air Act of California and Nevada state implementation plans (SIPs) for the carbon monoxide nonattainment area surrounding Lake Tahoe. Faced with challenges by each state to the other's SIP, the court first holds that EPA was not arbitrary or capricious in approving a Nevada SIP that did not treat two large proposed parking garages as significant potential sources of carbon monoxide. The record contains no modelling or other data to support the argument that the garages would have a significant impact on air quality. The court holds that §307(d)(6)(B) of the Clean Air Act did not require EPA to respond to four comments in the record on the air quality impacts of the garages. The Act only requires the agency to deal with significant comments. Four brief comments on the garages scattered through a voluminous record do not rise to the level of significance.

The court holds that EPA's acceptance of both states' modelling analyses despite differences in the assumptions the states used, was not arbitrary and capricious. EPA explained that the Nevada analysis showed lower levels of carbon monoxide than California's because it used less conservative assumptions, but also concluded on the record that those assumptions were reasonable because they had been tested against worst-case meteorological conditions. EPA also properly considered whether the Nevada SIP would maintain the air quality standards, the court holds. Although EPA referred to Nevada's stated commitment to impose additional controls if necessary as one reason why the plan provided for maintenance of the air quality standards, it was not arbitrary or capricous for EPA to approve the plan without specifying the additional measures since the agency concluded that the plan would maintain standards without them.

The court next rejects Nevada's challenges to the California plan. Addressing Nevada's claim that California's modelling was inadequate, the court rules that EPA may approve a plan based on modelling assumptions that are more conservative than the minimum required by EPA. Since California's analysis is more conservative than that used by Nevada and approved by EPA, Nevada cannot claim that California's plan does not meet the statutory minimum. the court rules that the requirement in the Act that nonattainment area SIPs provide for attainment as expeditiously as practicable does not require a state to adopt all control measures included in earlier plans. The statutory language indicates that the states are to have some flexibility in devising their plans. The court rules that the Act does not require EPA to disapprove a plan that shows minor violations of the air quality standards at one site. EPA's action was reasonable given the small size of the projected exceedance and the conservative nature of the assumptions underlying the analysis. Finally, the court holds that California's commitment in its plan to implement a vehicle inspection and maintenance program satisfies the Act's requirements for a schedule for implementation of such programs and enforceable measures to ensure attainment. The court also rules that the Act does not require that SIP measures designed to attain the air quality standards by 1987 must have been in operation by the 1982 SIP approval deadline. The statutory language, legislative history, and case law all indicate that the 1982 deadline was for specification of control measures, not for their implementation.

Counsel for Petitioners
Mark Urban, Deputy Attorney General
Department of Justice
1515 K St., Suite 511, Sacramento CA 95814
(916) 324-5437

Mark A. Mihaley
Shute, Mihaley & Weinberger
396 Hayes St., San Francisco CA 94102
(415) 552-7272

Counsel for Respondents
Lawrence R. Liebesman
Land and Natural Resources Division
Department of Justice, Washington DC 20530
(202) 633-2281

Mark V. Stanga
Office of General Counsel
Environmental Protection Agency
401 M St. SW, Washington DC 20460
(202) 475-8040

Before Fletcher and Canby Jr., JJ.