Sierra Club v. EPA ( 2002 )

  •                     Revised December 31, 2002
                          For the Fifth Circuit
                               No. 01-60537
                        DEVELOPMENT ASSOCIATION,
                 Petition for Review of an Order of the
                     Environmental Protection Agency
                             December 11, 2002
    Before DeMOSS, STEWART, and DENNIS, Circuit Judges.
    DeMOSS, Circuit Judge:
         Sierra Club, Inc., Clean Air and Water, Inc., and Community
    In-Powerment Association (collectively the "Petitioners"), are
    appealing the Environmental Protection Agency's (EPA) final action
    at 66 Fed. Reg. 26,914 (May 15, 2001) (codified at 40 C.F.R. pt.
    52), which they contend contravenes the Clean Air Act (CAA), 42
    U.S.C.   §§    7401-7671q.      The   final   action    approved   the   State
    Implementation Plan (SIP) submitted by the State of Texas for the
    Beaumont-Port     Arthur     (Beaumont)    area   and   extended   the   ozone
    attainment deadline for that area.         Petitioners also are appealing
    the EPA's determination that no additional control measures were
    required in the Beaumont area to satisfy the statutory requirement
    for implementation of Reasonably Available Control Measures (RACM).
    The EPA's final action is AFFIRMED in part, REVERSED in part, and
    A.   Regulatory Background.
         The CAA establishes a comprehensive program for improving air
    quality throughout the nation.         Under the CAA, the EPA is charged
    with identifying air pollutants that endanger the public health and
    welfare.      Id. § 7408.     The EPA also is charged with formulating
    National Ambient Air Quality Standards (NAAQS), which specify those
    pollutants' maximum permissible concentrations in the ambient air.
    Id. § 7409.      In 1979, the EPA promulgated a one-hour NAAQS for
    ozone, which still remains at 0.12 parts per million based on a
    one-hour average.      See 40 C.F.R. § 50.9.
         Under the CAA, states must adopt SIPs specifying emission
    limitations applicable to pollution sources in order to maintain
    and enforce each NAAQS.        42 U.S.C. § 7410(a).      SIPs are submitted
    to the EPA, which may approve, conditionally approve, or disapprove
    the SIPs in full or in part.         Id. § 7410(k).       Significantly, the
    CAA has a provision that requires SIPs to contain provisions
    regulating      emissions     that     "contribute        significantly      to
    nonattainment in, or interfere with maintenance by, any other State
    with respect to any such national primary or secondary ambient air
    quality standard."       Id. § 7410(a)(2)(D)(i)(I).         In addition, as
    noted in the challenged final action, the EPA has interpreted 42
    U.S.C. § 7410(a)(2)(A) as incorporating a similar requirement that
    an upwind area be prohibited from contributing significantly to
    nonattainment in a downwind area within the same state.                See 66
    Fed. Reg. 26,917.
           Under 42 U.S.C. § 7511a, ozone attainment areas are classified
    according to the severity of air pollution.              The classifications
    are:    "marginal," "moderate," "serious," "severe," or "extreme."
    42 U.S.C. § 7511a(a)-(e). Each classification has a specified date
    for attainment of the ozone NAAQS and the programs that States must
    adopt in their SIPs to attain the NAAQS by reducing emissions of
    volatile     organic    compounds    and   nitrogen      oxides,   which    are
    precursors to the formation of ozone.          Id. §§ 7511, 7511a-7511d.
    Under the CAA, the following dates were established for the NAAQS
    to be achieved:        (1) November 15, 1993, for marginal areas; (2)
    November 15, 1996, for moderate areas; (3) November 15, 1999, for
    serious areas;     (4)    November   15,   2005,   for   severe    areas;   (5)
    November 15, 2007, for severe-17 areas;1 and (6) November 15, 2010,
    for extreme areas.      Id. § 7511(a)(1).           Under section 7511(a)(5),
    the State may apply for two one-year attainment date extensions
    that the EPA can approve if it makes specific determinations
    regarding air quality and state compliance with SIP requirements.
             In addition, all nonattainment area plans must provide for
    implementation of "all reasonably available control measures [RACM]
    as expeditiously as practicable."             Id. § 7502(c)(1).    The EPA must
    review each submitted plan.              Id. § 7410(k).        If the plan is
    approved, in whole or in part, the approved provisions become
    federally enforceable.          Id. §§ 7413, 7604.         If the plan is not
    approved, or is determined to be incomplete, the State may be
    subject to sanctions and eventually federally imposed clean air
    measures.      Id. §§ 7410(c), 7509.
    B.       The Extension Policy at Issue in this Case.
             On March 25, 1999, the EPA issued a notice of interpretation
    of the CAA entitled "Extension of Attainment Dates for Downwind
    Transport Areas."      64 Fed. Reg. 14,441 (Mar. 25, 1999).            In this
    extension policy, the EPA interpreted the CAA as allowing for the
    extension     of   attainment    dates       for   ozone   nonattainment   areas
    classified as either "moderate" or "serious" and that are downwind
       Notwithstanding table 1 in 42 U.S.C. § 7511(a)(1), severe-17
    areas have a 1988 ozone design value between 0.190 and 0.280 ppm,
    which provides these areas with a different attainment date than
    "severe" areas. See id. § 7511(a)(2).
    of areas that transport ozone and interfere with their ability to
    attain required ozone levels.           Id. at 14,441-42.    According to the
    EPA, it was seeking to "harmonize the attainment demonstration and
    attainment       date    requirements    for   downwind    areas    affected   by
    transport both with the graduated attainment date scheme and the
    schedule for achieving reductions in emissions from upwind areas."
    Id. at 14,443.
           In the extension policy, the EPA explained that an area's
    attainment date would be considered for extension if it:                 (1) has
    been identified as a downwind area "affected by transport from
    either an upwind area in the same State with a later attainment
    date   or   an    upwind    area   in   another   State    that    significantly
    contributes      to     downwind   nonattainment";   (2)    has    submitted   an
    approvable attainment demonstration with any "necessary, adopted
    local measures," which indicates it will attain the one-hour
    NAAQS "no later than the date that the reductions are expected from
    upwind areas under the final [nitrogen oxides] SIP Call and/or the
    statutory attainment date for upwind nonattainment areas"; (3) has
    adopted "all applicable local measures required under the area's
    current classification and any additional measures necessary to
    demonstrate attainment," given that the reductions occurred as
    required in upwind areas; and (4) will "implement all adopted
    measures as expeditiously as practicable, but no later than the
    date by which the upwind reductions needed for attainment will be
    achieved."      Id.
          If an area satisfies the above guidelines, it would not be
    reclassified or "bumped-up" if it failed to attain by its original
    attainment date under section 7511(b)(2).                The reasoning for this
    is that the EPA concluded that Congress did not intend for downwind
    areas    to    be     "penalized     by   being   forced      to   compensate       for
    transported pollution by adopting measures that are more costly and
    onerous and/or which will become superfluous once upwind areas
    reduce their contribution to the pollution problem."                          Id. at
    14,444.       Nevertheless, downwind areas are still responsible for
    implementing local controls sufficient to bring about attainment,
    except for the transported pollution.              Id.
    C.    EPA's Application of the Extension Policy to the Beaumont
          The     Beaumont      area     is   classified     as    a   moderate       ozone
    nonattainment area.          See 40 C.F.R. § 81.344.          Therefore, under 42
    U.S.C. § 7511(a)(1), its original attainment date was November 15,
    1996.     However, as a result of the pollution traveling from the
    upwind area of Houston/Galveston, the EPA applied its extension
    policy that resulted in a new attainment date of November 15, 2007,
    for     the    Beaumont      area.        This    date     coincides       with     the
    Houston/Galveston area's November 15, 2007, attainment date.                         66
    Fed. Reg. 26,914.          The EPA established the new attainment date for
    the   Beaumont      area    after    concluding    that,      based   on   extensive
    modeling submitted by the State of Texas, it will not reach the
    required attainment level unless the Houston/Galveston area also
    attains necessary ozone standards.        Id. at 26,915-23.     In other
    words, requiring local reductions in the Beaumont area earlier than
    the Houston/Galveston area's attainment date would not accelerate
    attainment in the Beaumont area because of the Houston/Galveston
    area's pollution contributions and the need for upwind emissions
           Petitioners now appeal the EPA's application of the extension
    policy to the Beaumont area.        Petitioners also appeal the EPA's
    determination that 42 U.S.C. § 7502(c)(1) does not compel the
    implementation of any additional control measures beyond those
    already contained in the Beaumont area's attainment demonstration
                           II.    STANDARD OF REVIEW
           This Court's role in reviewing the adequacy of the EPA's final
    action is governed by the Administrative Procedure Act, 5 U.S.C. §
    706.    Section 706(2) provides that a reviewing court shall "hold
    unlawful and set aside agency action, findings, and conclusions
    found to be--(A) arbitrary, capricious, an abuse of discretion, or
    otherwise not in accordance with law."           See also Texas Office of
    Pub. Util. Counsel v. Federal Communications Comm'n, 
    265 F.3d 313
    320 (5th Cir. 2001); Macktal v. United States Dep't of Labor, 
    171 F.3d 323
    , 326 (5th Cir. 1999).
                                 III.   DISCUSSION
    A.   Whether the EPA acted consistently with the CAA in granting an
         extension of the statutory date for meeting federal standards
         for ozone air pollution in the Beaumont area and in approving
         a SIP for the area based on that extension.
         The    EPA    argues    that    it   did   not   abuse   its    authority    by
    implementing its extension policy.                The EPA asserts that its
    interpretation of the CAA is the best way to reconcile the Act's
    provisions.       According to the EPA, when considering all of the
    CAA's pertinent language, Congress clearly did not intend the
    unduly restrictive and punitive reading that Petitioners urge on
    this Court.       The EPA argues that its interpretation of the CAA was
    necessary to fill a statutory gap to avoid unfairly burdening
    downwind areas by forcing them to adopt more stringent local
    controls    for    the     purpose   of   compensating    for   another      area's
    transported pollution.
         In support of its argument, the EPA notes that Congress has
    provided extensions to transport-affected nonattainment areas such
    as in cases of international border areas under section 7509a,
    which spares ozone nonattainment areas that demonstrate they suffer
    from pollution from “outside of the United States” from being
    bumped-up    to     a    higher   ozone   classification.           Under   section
    7511a(h), the CAA authorizes the EPA to designate certain isolated
    ozone nonattainment areas as “rural transport areas,” which allows
    them to be subjected to less stringent control requirements.                      In
    addition, 42 U.S.C. § 7511a(j)(2) provides that when a multi-state
    nonattainment       area     fails   to    demonstrate    attainment        by   the
    applicable deadline, a State within that area may be relieved of
    statutory sanctions if “the State would have been able to make such
    demonstration but for the failure of one or more other States”
    within the control area.   Section 7511(a)(4) of the United States
    Code authorizes the adjustment of an area's original classification
    based on factors including transported pollution.     Furthermore,
    under 42 U.S.C. § 7410(a)(2)(D)(i)(I), SIPs must contain adequate
    provisions prohibiting pollution that “contribute[s] significantly
    to nonattainment in . . . any other State.”     And, section 7426
    provides States the opportunity to petition the EPA for relief from
    interstate pollution.
         The EPA concedes that when the 1990 amendments to the CAA were
    passed, Congress did not expressly specify similar relief for other
    areas, including for downwind cities that are unable to achieve
    attainment as a result of upwind cities within the same State.   The
    EPA, however, maintains that Congress did not fully address all
    issues of ozone transport at the time the CAA was amended in 1990
    because there was a lack of understanding concerning the issue.
    According to the EPA, it was not until the mid-1990s that a
    sufficient understanding of the complex ozone transport problem
    began to be achieved as a result of the Ozone Transport Assessment
    Group (OTAG), an organization with the mission to assess and
    recommend strategies to address ozone transport.     Thus, the EPA
    insists that a reasonable understanding of ozone transport was not
    achieved until well after the Beaumont area's 1996 attainment
    deadline.   Ultimately, the EPA asserts that it was reasonable for
    it to conclude that the Houston/Galveston area's impact on the
    Beaumont area's ability to attain the one-hour ozone standard
    indicated that the CAA's transport and attainment provisions did
    not function as Congress envisioned.
         Petitioners, however, contend the EPA abused its authority by
    defeating the express statutory reclassification requirements of
    the CAA and extending the ozone attainment deadlines for the
    Beaumont area based on pollution transport, and by approving the
    SIP as adequate based on the extension.   According to Petitioners,
    because the Beaumont area failed to achieve attainment of required
    ozone levels, it should have been reclassified from “moderate”
    (with an attainment date of November 15, 1996) to either “serious”
    (with an attainment date of November 15, 1999) or “severe” (with an
    attainment date of November 15, 2005).     See 42 U.S.C. § 7511a.
    Petitioners further maintain that under the CAA, reclassification
    would require that an incremental increase in the mandatory control
    strategies be imposed on the Beaumont area's SIP in exchange for
    any extended attainment date.   See 42 U.S.C. §§ 7511a(1)-(d) and
         This Court is guided by Chevron, U.S.A., Inc. v. NRDC, 
    467 U.S. 837
    , 842-44 (1984), in evaluating the EPA's interpretation of
    the CAA.    The first step under Chevron is to inquire whether
    Congress “has directly spoken to the precise question at issue.”
    Id. at 842-43.         If Congress has spoken to the issue, this Court
    “must   give    effect     to    the   unambiguously        expressed      intent   of
    Congress” and "that is the end of the matter."                     Id.    However, if
    the statute is “silent or ambiguous with respect to the specific
    issue,” this Court must move to Chevron's second step.                    Id. at 843.
    Under   the    second    step,     this     Court    must   defer    to    the   EPA's
    interpretation if it is “based on a permissible construction of the
    statute.”      Id.     Furthermore, as this Court has stated, the EPA's
    decision will be reversed “only if it was arbitrary, capricious or
    manifestly contrary to the statute.”                 Texas Office of Pub. Util.
    Counsel, 265 F.3d at 320 (citing Chevron, 467 U.S. at 844).                         See
    also 5 U.S.C. § 706(2).
         Petitioners correctly point out that the Supreme Court has
    stated:        “[I]t     is     generally      presumed     that    Congress     acts
    intentionally and purposely when it includes particular language in
    one section of a statute but omits it in another.”                  City of Chicago
    v. Environmental Defense Fund, 
    511 U.S. 328
    , 338 (1994) (internal
    quotations omitted).          Petitioners contend that the CAA's numerous
    provisions     addressing        the   issue    of    pollution      transport      and
    extensions of attainment dates clearly indicates that Congress
    fully understood the issue at hand and intended not to authorize
    the EPA to extend attainment dates as                     it did in this case.
    Petitioners conclude, therefore, that under step one of Chevron,
    the question of whether an attainment date extension is permissible
    based on air pollution transport has been resolved by the statute
    and “that is the end of the matter.”   Chevron, 467 U.S. at 842-43.
         We agree with the Petitioners.    The plain terms of the CAA
    preclude an extension of the sort the EPA granted in the present
    case.   As the Petitioners correctly point out, the CAA specifies
    when the EPA may extend attainment deadlines to account for upwind
    emissions that jeopardize an area's ability to achieve attainment
    without requiring reclassification of the area.    For example, the
    CAA provides:
         any State that establishes to the satisfaction of the
         Administrator that . . . such State would have attained
         the national ambient air quality standard for ozone by
         the applicable attainment date, but for emissions
         emanating from outside of the United States, shall not be
         subject to the provisions of section 7511(a)(2) or (5) of
         this title or section 7511d of this title.
    42 U.S.C. § 7509a(b) (emphasis added).       Furthermore, the CAA
    provides for certain nonattainment areas to be exempted from the
    attainment deadlines by authorizing the EPA to designate those
    areas as "rural transport areas," which allow those areas to be
    treated as "marginal" areas.   Id. § 7511a(h).    This designation,
    however, is limited to a transport-affected area that "does not
    include, and is not adjacent to, any part of a Metropolitan
    Statistical Area or, where one exists, a Consolidated Metropolitan
    Statistical Area," id. § 7511a(h)(1), and whose Oxides of Nitrogen
    emissions "do not make a significant contribution to the ozone
    concentrations measured in the area or in other areas."      Id. §
    7511a(h)(2).    As the D.C. Circuit aptly stated in a recent case
    similar to this one:         "We cannot but infer from the presence of
    these specific exemptions that the absence of any other exemption
    for the transport of ozone was deliberate, and the Agency's attempt
    to   grant   such   a   dispensation    is    contrary   to   the    intent   of
    Congress."    Sierra Club v. EPA, 
    294 F.3d 155
    , 160 (D.C. Cir. 2002).
    See also, Sierra Club v. EPA, 
    2002 WL 31641639
    , at *6 (7th Cir.,
    Nov. 25, 2002).
          We note that NRDC, upon which the EPA heavily relies, is
    inapposite to the present case.              In   NRDC, the D.C. Circuit
    affirmed the EPA’s grant of two deadline extensions.                 The first
    deadline extension concerned the submission of enhanced Inspection
    and Maintenance (I/M) SIPs.        NRDC, 22 F.3d at 1135.     Under the CAA,
    Congress provided that States be given a one-year period after
    guidance promulgation to bring their SIPs into compliance with the
    enhanced I/M performance standard. Id. However, the EPA failed to
    meet its November 15, 1991, deadline for providing guidance, which
    "made it impossible for states both to have the benefit of this
    lead time and to meet their November 15, 1993, enhanced I/M
    submission deadline."        Id.   The court noted that "[w]hile the CAA
    is very specific about the consequences of a state's failure to
    meet the submittal deadline, the Act is silent on what should occur
    if   the   agency   misses   its   guidance    deadline."      Id.     Because
    Congress' statutory scheme provided that the States "comply in all
    respects"   with   the   EPA    guidance,     the     court   concluded   that a
    deadline extension was necessary for the States to have a full year
    to do so.   Id.
          The second deadline extension in NRDC concerned the CAA's
    requirement that States encompassing nonattainment areas submit
    SIPs or SIP revisions addressing the application of Reasonably
    Available Control Technology (RACT) to stationary emission sources
    of nitrogen oxides by November 15, 1992.                Id.    However, the EPA
    concluded that photochemical grid modeling was "the only reliable
    tool to justify an area wide exemption from the [nitrogen oxides]
    requirements."     Id. at 1136.        Moreover, the EPA found that the
    modeling "ha[d] not been utilized previously or, if utilized, ha[d]
    not   adequately   considered        the    effects     of    [nitrogen   oxides]
    emissions reductions."         Id.   As a result, the EPA determined that
    "the time needed to establish and implement a modeling protocol and
    to interpret the model results will, in a variety of cases, extend
    beyond the November 15, 1992 deadline for submission of [nitrogen
    oxides] rules."    Id.   Therefore, the EPA created a narrow one-year
    extension   for    nitrogen      oxides     RACT    submissions     limited    to
    situations in which a State is able to document that "(1) credible
    photochemical grid modeling is not available or did not consider
    the effects of [nitrogen oxides] reductions and (2) the state
    submits progress reports on the modeling showing the program is on
    schedule while the committal SIP is being reviewed by EPA."                   Id.
         When evaluating the validity of the extension, the D.C.
    Circuit noted that the CAA expressly gave the EPA 14 to 18 months
    after the submittal deadline to approve or disapprove these SIPs
    and to determine whether a State qualified for certain exemptions.
    Id. at 1136.   The court further noted that only a single nitrogen
    oxides RACT submission was required under the CAA and, therefore,
    Congress intended all data supporting exemptions to be included
    with that submittal.   Id.   According to the court, after receiving
    a submittal, the EPA should then have had the full 14 to 18 months
    to review it before making an exemption determination.         Id.    The
    court, however, noted that in many instances the EPA would not be
    able to utilize the full statutory review time to make an exemption
    determination before the statutory deadline.       Therefore, the court
    concluded that "had Congress foreseen the exemption timing problem,
    a matter outside the EPA's control, it would have elected to accord
    the EPA the full statutory review time."     Id.
         As discussed above, the first extension upheld by the D.C.
    Circuit in NRDC was necessary to correct a timing problem created
    by the EPA because it did not meet its own guidance deadline.         The
    second extension was upheld because the EPA would not otherwise
    have the full review time in which to make adequate exemption
    determinations.    Ultimately,    this   second    extension   was   made
    necessary by the EPA's own finding that photochemical grid modeling
    was necessary to justify area wide exemptions.      Therefore, in both
    instances, the extensions upheld by the D.C. Circuit were made
    necessary by the EPA's own action or inaction, which could not have
    been foreseen by Congress when it enacted the 1990 revision of the
    CAA.     Neither extension, however, had anything to do with a
    situation in which a nonattainment area submitted a SIP, had it
    approved by the EPA, implemented the SIP, and then failed to meet
    its attainment deadline as did the Beaumont area in this case.
    B.     Whether the EPA reasonably interpreted the CAA as not
           requiring any additional RACMs in the Beaumont area’s SIP.
           Section     7502(c)(1)    of    the     CAA    requires      that   plans   for
    nonattainment areas “shall provide for the implementation of all
    reasonably       available     control       measures    as      expeditiously      as
    practicable . . . and shall provide for attainment of the national
    primary ambient air quality standards.”                 42 U.S.C. § 7502(c)(1).
    Petitioners contend that the EPA arbitrarily and capriciously
    rejected    a    number   of    control      measures    that    are   demonstrably
    reasonably available for use in the Beaumont area.                     As a result,
    Petitioners argue that the EPA's final action conflicts with the
    plain language of section 7502(c)(1).
           Specifically,      Petitioners     assert      that    the    EPA   improperly
    limited the menu of RACMs to those that would advance the date of
    attainment.       Petitioners insist the result of the EPA's action
    relegates    the    CAA's    RACM     mandate    to    mere   surplusage     because
    additional control measures that could reduce the frequency and
    severity of violations need not be considered.                      Included in the
    RACMs that Petitioners claim have been excluded from consideration
    are a number of transport control measures (TCM) listed in section
    7408(f) of the CAA.    In addition, Petitioners contend that the
    EPA's determination that potential measures requiring intensive and
    costly implementation efforts are not RACMs.       Petitioners assert
    that such a determination is based on vague and unintelligible
    standards and, therefore, is unreasonable.
         The EPA acknowledges that additional control measures are
    available to the Beaumont area.        The EPA, however, contends that
    the Beaumont area's attainment demonstration contained all RACMs
    required under the CAA.    Significantly, the EPA has interpreted
    section 7502(c)(1) as imposing a duty to implement only those
    control measures that contribute to attainment as expeditiously as
    practicable.   See; 57 Fed. Reg. 13,498, 13,560 (Apr. 16, 1992)
    (citing 44 Fed. Reg. at 20,375).
         Furthermore, the EPA notes that it revised its guidelines
    concerning TCMs in its General Preamble for Implementation for the
    Clean Air Act Amendments of 1990 (Apr. 16, 1992) in which it
    concluded that "based on experience with implementing TCMs over the
    years, EPA now believes that local circumstances vary to such a
    degree from city-to-city that it is inappropriate to presume that
    all [section 7408(f)] measures are reasonably available in all
    areas."   57 Fed. Reg. at 13,560.   The EPA then concluded that only
    those TCMs that are determined to be "reasonably available for
    implementation in the area in light of local circumstances" should
    be reviewed by the planning agency.                  Id.
         As noted above, the EPA determined that only those control
    measures    that       contribute    to   attainment       as   expeditiously     as
    practicable are required.             This interpretation of the CAA was
    applied in a number of final actions before the statute was amended
    in 1990.    See 53 Fed. Reg. 30,220, 30,222 (Aug. 10, 1988); 53 Fed.
    Reg. 30,224, 30,234 (Aug. 10, 1988); 55 Fed. Reg. 40,658, 40,659
    (Oct. 4, 1990).        When Congress amended the CAA, it moved the RACM
    requirement from section 7502(b)(2) to section 7502(c)(1).                     At the
    same time, Congress created a new section to the Act that preserved
    all existing EPA guidance issued prior to the amendments.                      See 42
    U.S.C. § 7515.         Therefore, we conclude that Congress intended to
    preserve the EPA's interpretation of the CAA regarding the RACM
         Furthermore, there is persuasive authority from the Ninth
    Circuit    to     support    the     EPA's      interpretation      of   the    RACM
    requirement.       In Ober v. Whitman, the Ninth Circuit upheld the
    EPA’s interpretation of the corresponding RACM requirements for
    particulate matter (PM-10) governed by section 7513a(a).                  
    243 F.3d 1190
     (9th       Cir.    2001).      There,     the    plaintiffs   challenged    the
    exemption from control of a variety of sources of particulate
    pollution in a Federal Implementation Plan for the Phoenix area.
         The Ninth Circuit concluded that the CAA allowed the EPA to
    make what it called "de minimis" exemptions and that the agency
    acted permissibly in designating some pollution sources as de
    minimis.      Id. at 1198.          Notably, the court accepted the EPA's
    reasoning in the General Preamble for the Implementation of Title
    I of the Clean Air Act Amendments of 1990 that control measures not
    aiding   in   achieving      attainment         may    be   excluded        from   further
    consideration because they would not represent RACM for that area.
    Id. at 1194-95, 1198.         The same reasoning used by the EPA in Ober
    also was used here. The EPA concluded that section 7502(c)(1) does
    not   require    the    implementation          of    RACMs    that    do    not   aid    in
    achieving     attainment       of     national         clean    air     standards        as
    expeditiously as practicable.              Implementing such RACMs would be a
    pointless expenditure of effort, which courts are reluctant to
    require. See, e.g., Alabama Power Co. v. Costle, 
    636 F.2d 323
    , 360
    (D.C. Cir. 1980).
          Similarly,       the   EPA    need   not       require   an     analysis     of    all
    transport control measures (TCM) specifically listed in 42 U.S.C.
    § 7408(f).      TCMs are measures taken to reduce emissions of ozone
    precursors emitted by transportation sources.                    We conclude that it
    would not be possible to assess all available measures and consider
    the effects of such measures in every possible combination, as
    Petitioners argue is required by the statute. Furthermore, the EPA
    has recognized that only some TCMs "will be reasonably available
    for implementation in many nonattainment areas."                       57 Fed. Reg. at
           Nevertheless, the EPA did conclude that it would be reasonable
    to    use   a   midpoint       level    of    program     effectiveness       to   analyze
    potential reductions from TCMs, a level that would be economically
    feasible and provide effective implementation. See 66 Fed. Reg. at
    26,932. Under this program, the EPA’s analysis adequately assessed
    all necessary TCMs for effectiveness.                    The result confirmed that
    the TCMs would not produce emission reductions sufficient to
    advance attainment in the Beaumont area.                       Therefore, it appears
    that the EPA properly concluded that no additional TCMs were
    required        because       they    would     not     contribute     to     expeditious
           Moreover, the EPA properly concluded that potential measures
    requiring       intensive       and    costly      implementation      were    not    RACMs
    because they could not be readily implemented due to excessive
    administrative burden or local conditions such as high costs.                           Id.
    at 26,929.        Such determinations based on a cost/benefit analysis
    are    within     the     EPA’s      discretion       unless   the   statutory       scheme
    precludes such a determination.                 See, e.g., Michigan v. EPA, 
    213 F.3d 663
    , 678-79 (D.C. Cir. 2000); Cf. 42 U.S.C.A. § 7409(b)(1)
    (prohibiting a cost/benefit analysis by preventing the EPA from
    considering any factor other than health effects relating to
    pollutants       in     the    air    in   establishing        NAAQS   for     ozone   and
    particulate matter).            We find no such limitation in the CAA.
          Lastly, we note that the D.C. Circuit's decision in Sierra
    Club v.    EPA     also   supports    our    rejection     of   the   Petitioners'
    argument that treating as potential RACMs only those measures that
    would    advance    the   date   at   which    an   area    reaches    attainment
    conflicts with the CAA's text and purpose and lacks any rational
    basis.    See 294 F.3d at 162.        As the D.C. Circuit concluded:
          The Act, on its face, neither elaborates upon which
          control measures shall be deemed "reasonably available,"
          nor compels a state to consider whether any measure is
          "reasonably available" without regard to whether it would
          expedite attainment in the relevant area. Further, the
          EPA reasonably concluded that because the Act "use[s] the
          same   terminology   in   conjunction   with   the   RACM
          requirement" as it does in requiring timely attainment,
          compare 42 U.S.C. § 7502(c)(1) (requiring implementation
          of RACM "as expeditiously as practicable but no later
          than" the applicable attainment deadline), with id. §
          7511(a)(1) (requiring attainment under same constraints),
          the RACM requirement is to be understood as a means of
          meeting the deadline for attainment, Approval, 66 Fed.
          Reg. at 610/2.     Because the statutory provision is
          ambiguous and the EPA's construction of the term "RACM"
          is reasonable, we defer to the Agency. See Chevron, 467
          U.S. at 843, 104 S. Ct. at 2781-82.
    Id.     However, though our opinion defers to the EPA in exempting
    certain proposed RACMs from the requirements of the CAA, we must
    impress upon the EPA that it has a duty to:                (1) demonstrate that
    it has examined relevant data, and (2) provide a satisfactory
    explanation for its rejection of those proposed RACMs and why they,
    individually and in combination, would not advance the Beaumont
    area's attainment date.          See Ober, 243 F.3d at 1195 (quoting
    American Lung Ass'n v. EPA, 
    134 F.3d 388
    , 392-93 (D.C. Cir. 1998)
    ("[U]nless [EPA] describes the standard under which [it] has
    arrived at this conclusion, supported by a plausible explanation,
    we have no basis for exercising our responsibility to determine
    whether [EPA's] decision is arbitrary, capricious, an abuse of
    discretion or otherwise not in accordance with law. . . .")).
         Accordingly, we REVERSE the portion of the EPA's final action
    at 66 Fed. Reg 26,914 (May 15, 2001) granting the Beaumont area an
    extension of its attainment date.      However, we AFFIRM the portion
    of the EPA's final action that treats as potential RACMs only those
    measures that would advance the attainment date and considers
    implementation costs when rejecting certain control measures.          We
    REMAND this case to the EPA for proceedings consistent with this
    opinion.   On    REMAND, the EPA must describe the standard under
    which it   has   rejected   certain   proposed   RACMs   supported   by a
    plausible explanation.
         AFFIRMED in part, REVERSED in part, and REMANDED.