ELR Citation: ELR 20243
No(s). 04-1211 (D.C. Cir. Nov 29, 2005)

The court holds that the boundaries the U.S. Environmental Protection Agency (EPA) established for ozone nonattainment areas under the Clean Air Act are neither arbitrary nor capricious. This case concerns Ocean County, New Jersey, and Cecil County, Maryland. Ocean County is in the New York-Northern New Jersey-Long Island one-hour nonattainment area, and Cecil County is in the Philadelphia-Wilmington-Atlantic City one-hour nonattainment area. Because Ocean County is downwind of the Philadelphia area, New Jersey requested that its designation be transferred to the Philadelphia nonattainment area. And although Cecil County is downwind of the Baltimore-Washington-Northern Virginia nonattainment area, Maryland opposed its transfer. In its final rule, EPA placed both counties in the Philadelphia nonattainment area. Delaware and Pennsylvania filed suit, arguing that this designation was contradictory. EPA's Designation Guidance, however, says quite clearly it will exercise its discretion to modify home state recommendations only when it receives evidence on 11 relevant factors that demonstrate that the presumptive boundary—the one-hour nonattainment area in this case—is inappropriate. Here, no one provided an 11-factor analysis to overcome the Cecil County's presumptive placement, and Maryland did not recommend its transfer. And as for Ocean County, not only did New Jersey recommend placing the county in the Philadelphia nonattainment area, it provided a supporting 11-factor analysis as well.