FROM THE UNITED STATES ENVIRONMENTAL PROTECTION
ADMINISTRATION (AGENCY NO. EPA-R08-OAR-2015-0042)
Vincent P. Calvano, Vincent P. Calvano, LLC, Boulder,
Colorado, for Petitioner.
D. Greenberg, Attorney, Environment & Natural Resources
Division (Jeffrey H. Wood, Acting Assistant Attorney General,
United States Department of Justice, Denver, Colorado, and
Randall Cherry, Office of Regional Counsel, Region 8, and
Jonathan Skinner-Thompson, Office of General Counsel, United
States Environmental Protection Agency, with him on the
brief) United States Attorney's Office, Denver, Colorado,
TYMKOVICH, Chief Judge, SEYMOUR, and McHUGH, Circuit Judges.
TYMKOVICH, CHIEF JUDGE
petition for review challenges the Environmental Protection
Agency's 2016 decision to certify Colorado's
compliance with air quality standards despite a number of
days in which Colorado failed to meet those standards.
Ukeiley is a local property owner who suffers from a lung
condition worsened by airborne particulates. He spends
substantial time at a residence near Lamar, Colorado, a town
on Colorado's eastern plains. Like the rest of the high
plains region, Lamar experiences many windy days, and the
resulting dust storms generate airborne particulate pollution
that affects its residents. Due to this pollution, between
the early 1990s and 2005 the Environmental Protection Agency
designated Lamar as a nonattainment area under the Clean Air
achieve attainment, Lamar needed to comply with National
Ambient Air Quality Standards (Standards) promulgated by the
EPA. The Standards impose a variety of regulatory
requirements designed to reduce the exposure of the public to
dangerous levels of airborne pollutants. To achieve
compliance with the Standards, Colorado developed a state
implementation plan in 1994. In 2002, Colorado requested the
EPA to redesignate the Lamar area as an attainment area and
submitted a ten-year maintenance plan to demonstrate expected
compliance through 2015. The EPA approved the plan in 2005
and redesignated Lamar as an attainment area.
2013, as part of its requirement for achieving attainment,
Colorado submitted its second proposed ten-year maintenance
plan for the Lamar area. Along with its submission, Colorado
asked the EPA to exclude a number of days in which
Lamar's airborne pollutants exceeded the Standards. The
EPA concurred on the request for some of the days and
approved the plan in 2016.
challenges that 2016 approval in his petition for review. He
contends the EPA abused its discretion by granting
Colorado's request to exclude certain instances in which
airborne dust exceeded the Standards. As we explain, the EPA
did not err in approving Colorado's maintenance plan. The
EPA's interpretation of the Clean Air Act and its
application of that interpretation are correct. And the
EPA's regulations, related guidance, and the extensive
administrative record all support the EPA's decision. We
therefore deny Ukeiley's petition for review.
start with an overview of the statutory and regulatory
scheme. We then discuss the specifics of Colorado's
request to exclude some instances in which it failed to
comply with the Standards and the EPA's rationale in
granting the request.
Clean Air Act
Clean Air Act requires the EPA to establish National Ambient
Air Quality Standards aimed at reducing airborne dust and
soot particles in the air.
to that statutory mandate, the EPA adopted Standards that set
pollution limits for various air contaminants, including the
pollutant at issue here-fugitive dust or soot particles known
as "PM-10." PM-10's are "particulate
matter with an aerodynamic diameter less than or equal to a
nominal ten micrometers." 42 U.S.C. § 7602(t). The
Standards applicable here are based on the daily particulate
amounts for a geographic area averaged over a longer period
of time. See 71 Fed. Reg. 61, 144 (Oct. 17, 2006). A
geographic area meets the Standards if it averages one or
fewer 24-hour periods of concentration above the limit per
calendar year, averaged over a three-year period.
See 40 C.F.R. 50.6 and 40 C.F.R. part 50, appendix
Clean Air Act requires the EPA to designate any geographic
location that does not meet this standard as a
"nonattainment area." 42 U.S.C. § 7513(a). If
the EPA designates a nonattainment area within a state, the
state is required to submit a corrective plan that will
ensure compliance with the air quality standards. 42 U.S.C.
§ 7513a(a)(2)(A). Once a state achieves compliance, it
can request the EPA to redesignate the nonattainment
geographic area. 42 U.S.C. § 7407(d)(3). To be eligible
for redesignation, the state must submit a plan that
describes how the state will maintain air quality compliance
for ten or more years after the redesignation. 42 U.S.C.
§ 7505a(a). And at the eight year mark after
redesignation, the state must further revise its plan to
demonstrate how it will maintain its air quality for an
additional ten years following expiration of the initial
ten-year maintenance period. 42 U.S.C. § 7505a(b).
Exceptional Events Rule
quality standards are subject to certain exceptions under the
Clean Air Act.
7619 directs the EPA to promulgate "regulations
governing the review and handling of air quality monitoring
data influenced by exceptional events." 42
U.S.C. § 7619(b)(2) (emphasis added). Under §
7619(b)(1), an event is exceptional if it meets four
statutory conditions: (1) it "affects air quality";
(2) it is not "reasonably controllable or
preventable"; (3) it is "an event caused by human
activity that is unlikely to recur at a particular location
or a natural event"; and (4) the EPA has certified the
exceptional event criteria have been met. 42 U.S.C. §
7619(b)(1)(A). If all of these conditions are met, the EPA
may exclude certain air-quality monitoring data when
determining whether or not a state complied with its
with its statutory mandate, the EPA has promulgated rules for
administration of its exceptional events regime and specific
guidelines as to what constitutes an exceptional event. Under
the EPA's Exceptional Events Rule (Rule), "[a] State
. . . may request the Administrator to exclude data showing
exceedances or violations of any national ambient air ...