UNITED STATES COURT OF APPEALS FOR THE D.C. CIRCUIT


AMER PETRO INST

v.

EPA


98-1561a

D.C. Cir. 2000


*	*	*


Williams, Circuit Judge: Automobile engines emit volatile organic
compounds ("VOCs"), which together with nitrogen oxides ("NOX") form
ozone. Reformulated gasoline ("RFG") can reduce VOCs emissions
compared to levels associated with ordinary gasoline; but it costs
more, and there is some concern about the nation's current RFG
production capacity. See 42 U.S.C. s 7545(k)(6)(B) (1994) (creating
special provi- sions that operate in the event of insufficient
capacity). In guiding the efforts of the Environmental Protection
Agency to limit ozone concentrations, Congress in the Clean Air Act
(the "Act") authorized limited reliance on RFG. It directed that RFG
should initially be mandatory in the nine worst ozone areas with
populations over 250,000, with any area later classified as "Severe"
to be added as well. See 42 U.S.C. s 7545(k)(1), (5), (10)(D). And it
also provided for "opt-in," i.e., for election by a state to demand an
EPA ban on the sale of non-RFG in specified areas. But Congress


Upon the application of the Governor of a State, the Administrator
shall apply the prohibition [on the sale of non-reformulated gasoline]
in any area in the State clas- sified ... as a Marginal, Moderate,
Serious, or Severe Area.... 


Act s 211(k)(6)(A), 42 U.S.C. s 7545(k)(6)(A) (emphasis add- ed). There
is a fifth category, "Extreme," to which only Los Angeles belongs;
there was no need to include that category 


because it was automatically covered by Congress's direct mandate. 


Apart from Los Angeles, most areas of the United States that are not in
"attainment" for EPA's ozone standards belong to one of the four
specified categories. But for several reasons--mainly the interaction
between Congress's (1) rules limiting the ability of a nonattainment
area to break into the broad sunlit uplands of attainment, and (2)
provisions govern- ing the treatment of missing data--an area may be
in "nonat- tainment" but not in any of the four specified classes. In
interpreting the opt-in provision EPA decided that Congress meant to
include not only "Marginal, Moderate, Serious, or Severe" areas, but
also any other areas that either were currently out of attainment or
had ever been. The American Petroleum Institute ("API") has petitioned
for review of the rule, arguing that the agency exceeded its statutory
authori- ty; we agree. 


* * * 


The Act requires EPA to establish and periodically revise a primary
national ambient air quality standard ("NAAQS") for each air pollutant
that the agency identifies as meeting certain criteria. See 42 U.S.C.
ss 7408-7409. The primary NAAQS for each pollutant is the maximum
concentration "requisite to protect the public health" with "an
adequate margin of safety." 42 U.S.C. s 7409(b)(1). In 1979 the EPA
administrator set a primary NAAQS for ozone at 0.120 parts per million
("ppm"), averaged over intervals of one hour. See 44 Fed. Reg. 8202.
That level was upheld by this court in American Petroleum Inst. v.
Costle, 665 F.2d 1176 (D.C. Cir. 1981), and remains in effect today.1




__________

n    1  In 1997 the EPA adopted a revised ozone NAAQS of 0.08 ppm
averaged over an eight-hour period. See 62 Fed. Reg. 38,856 (1997).
But in American Trucking Ass'ns v. EPA, 175 F.3d 1027, 1038 (D.C. Cir
1999) ("ATA"), modified on reh'g, 195 F.3d 4 (D.C. Cir. 1999), we
granted a petition for review of that order and remanded to the EPA
with instructions to provide an intelligible principle guiding its
interpretation of the relevant sections of the 


In approaching this case the most critical distinction is between
"nonattainment" and "design value" as measures of compliance. A
maximum concentration, without more, leaves open the question of how
often an area's hourly reading can exceed 0.120 ppm without causing
the area to be out of compliance. Congress adopted EPA's answer to
this ques- tion. It decreed, "by operation of law," that each area's
attainment status would be based on the regulatory standards "in
effect immediately before November 15, 1990." 42 U.S.C. s
7407(d)(1)(C). Under those standards (also still in effect), an area
is allowed no more than one day a year in which its maximum hourly
ozone concentration is greater than 0.120 ppm. But the exact formula
is more complicated because it recognizes that many areas will not
have data for every hour of the year; it therefore uses estimates to
fill this gap. See 40 CFR pt. 50, App. H. The formula generates an
"expected number of days per calendar year with maximum hourly average
concentrations above 0.12 parts per million," id. s 50.9(a), and if
the expected number of exceedances for a three-year period is greater


In 1990 Congress also introduced, for ozone, a refinement based on how
far each nonattainment area was from attain- ment status, establishing
different dates for compliance ac- cording to the severity of the
existing violations. See 42 U.S.C. s 7511(a)(1). To group areas
according to the various deadlines, Congress used a concept already in
use by EPA, known as "design value," and once again adopted EPA's
method for calculating this number. See id. ("The design value shall
be calculated according to the interpretation meth- odology issued by
the Administrator most recently before November 15, 1990."). Much like
the calculation of attain- ment, EPA's method for determining design
values also ex- cuses one exceedance per year (e.g., the first three
excee- dances in a three-year period have no effect on the design
value). But it has no mechanism for generating data to fill 




__________

n Act. See ATA, 175 F.3d at 1038-40. Thus, the 0.12 ppm, 1-hour
standard remains in place. 


gaps in monitoring: Here, the design value is simply the fourth-highest
daily maximum ozone concentration in an area over three consecutive
years for which there are sufficient data. See American Trucking
Ass'ns v. EPA, 175 F.3d 1027, 1046 n.6 (D.C. Cir. 1999) ("ATA"),
modified on reh'g, 195 F.3d 4 (D.C. Cir. 1999); EPA, The Clean Air Act
Ozone Design Value Study: Final Report 1-3 to 1-5 (1994). 


In s 181(a)(1) of the Act Congress used design value to create five
categories of nonattainment, with varying compli- ance deadlines for
each category: 


Marginal 0.121 to 0.138 ppm Moderate 0.138 to 0.160 ppm Serious 0.160
to 0.180 ppm Severe 0.180 to 0.280 ppm Extreme 0.280 ppm and above 


See 42 U.S.C. s 7511(a)(1) tbl.1. But because Congress treated missing
data differently for purposes of design value and attainment status,
while every area with a known design value above 0.120 ppm is in
nonattainment, an area may be in nonattainment even though its design
value is 0.120 ppm or below. EPA called such areas "submarginal." See
56 Fed. Reg. at 56,697/2 (1991). 


Similarly, s 107(d)(1)(C)(i) of the Act, 42 U.S.C. s 7407(d)(1)(C)(i),
requires areas designated nonattainment under portions of the previous
standards, see 42 U.S.C. s 7407(d)(1)(C) (adopting provisions of the
Clean Air Act Amendments of 1977, s 103, Pub. L. No. 95-95, 91 Stat.
685, 687-88), to remain so classified because of inadequate data. EPA
called such areas "incomplete data areas." 56 Fed. Reg. at 56,697/3;
cf. 42 U.S.C. s 7511e (allowing areas that can demonstrate compliance
with the ozone NAAQS for the years 1987-89 to have a special,
"transitional," status). 


The key issue here is the application of the RFG program to these two
types of areas, "submarginal" and "incomplete data." 


* * * 


In the disputed rule, EPA stated that any "area currently or previously
designated as a nonattainment area for ozone under 40 CFR 50.9 ... or
any time later, may be included on petition of the governor." 40 CFR s
80.70(k); 63 Fed. Reg. at 52,104. Largely because of the divergence
between the concepts of nonattainment and design value, this rule
swept into "opt-in" a variety of areas not belonging to the four
categories specified by Congress--Marginal, Moderate, Seri- ous or
Severe. We assess the validity of the rule under the familiar two-step
process in Chevron U.S.A. Inc. v. NRDC, 467 U.S. 837, 842-43 & nn.9 &
11 (1984). 


Chevron requires us to determine whether Congress spoke "to the precise
question at issue." Id. at 842. It is hard to imagine how Congress
could have done so more clearly. Acting within a universe where
nonattainment and the four categories overlap but are distinct,
Congress chose the four categories. If it meant to express
"nonattainment," its word- ing was not merely a long-winded but a
positively obtuse way of doing so. As we said in Michigan Citizens for
an Inde- pendent Press v. Thornburgh, 868 F.2d 1285 (D.C. Cir.), aff'd
by an equally divided court, 493 U.S. 38, 39 (1989), if Con- gress
makes an explicit provision for apples, oranges and bananas, it is
most unlikely to have meant grapefruit. Id. at 1293. 


Despite the text, EPA argues that the scope of s 211(k)(6) is
ambiguous, thus opening the door to "reasonable" interpre- tations by
EPA. It notes that s 181(a)(1) of the Act states that "[e]ach area
designated nonattainment for ozone ... shall be classified at the time
of such designation ... as a Marginal Area, a Moderate Area, a Serious
Area, a Severe Area, or an Extreme Area based on the design value for
the area." 42 U.S.C. s 7511(a)(1). From this it infers that, despite
the different methods for calculating design value and attainment
status, Congress thought that no nonattainment area would be
classified as other than Marginal, Moderate, Serious, Severe, or
Extreme, and thus the reference to the first four categories in s


making the RFG program available to all nonattainment areas. Because s
211(k)(6) does not prohibit the inclusion of nonattainment areas with
design values below 0.121 or areas whose design values are unknown,
EPA argues, it is at least ambiguous as to whether they may join. 


EPA seems to think that the possibility that Congress was unaware of
the nonattainment-design value divergence sug- gests that, had it been
aware, it might have wanted EPA to allow nonattainment areas with
incomplete data or design values below 0.121 ppm to require RFG. There
are two problems here: the assumption of congressional ignorance is
farfetched, and even if correct would not get EPA where it wants to


In the normal case Congress is assumed to be conscious of what it has
done, especially when it chooses between two available terms that
might have been included in the provi- sion in question. See BFP v.
Resolution Trust Corp., 511 U.S. 531, 537 (1994) ("[I]t is generally
presumed that Con- gress acts intentionally and purposely when it
includes partic- ular language in one section of a statute but omits
it in another."). Sometimes (e.g., where the pieces of legislation are
not closely linked in either codification or time of enact- ment) this
assumption may be a stretch, justifiable in part because its effect is
to push toward coherent interpretations of law. See West Virginia
Univ. Hosps., Inc. v. Casey, 499 U.S. 83, 100 (1991). But here the
assumption that Congress was aware of the law is sound: the divergence
between nonattainment and design value is the direct product of
distinctive definitions explicitly adopted by Congress. To suppose
that Congress was ignorant of the divergence is to impute sleepwalking


We have already explained how Congress expressly adopted differing
formulae. These formulae generate the two problematic categories at
issue here. First, as we recognized in ATA, the stringent criteria for
changing an area's designa- tion from nonattainment to attainment
ensures that there can and will be nonattainment areas with design
values below 


0.121 ppm (submarginal areas). ATA, 175 F.3d at 1047; 42 U.S.C. s
7407(d)(3)(E) (noting that an area cannot be redesig- nated to
attainment status until it shows compliance with the relevant NAAQS
and that the improvement in air quality is due to permanent and
enforceable reductions in emissions). Second, "incomplete data areas"
have no hope of leaving nonattainment until they generate enough data
to prove that they comply with the ozone NAAQS. See id. Thus, they
must remain in nonattainment, but can secure the RFG option if they
generate data placing them in the four congres- sionally specified
categories. Quite sensibly, the literal read- ing of s 211(k)(6)(A)
provides RFG as an option when the need is clear, and only then. 


But even the ignorance assumption, were it true, would not support
EPA's inference. Having used words of art to describe areas eligible
for opt-in, a hypothetically ignorant Congress would likely have
assumed that if some areas turned up partly resembling the areas it
specified--areas out of attainment but less clearly so--they would not
be subject to RFG in the absence of new congressional action. More
specifically, even if Congress had thought that, as of 1990, all
nonattainment areas under the 0.120 ozone NAAQS would have a recorded
design value of at least 0.121 ppm, it knew that the formula for
nonattainment status (unlike the fixed values for design value) was
likely to change over time. EPA has a continuing obligation to review
and revise the NAAQS every five years, see 42 U.S.C. s 7409(d)(1);
ATA, 175 F.3d at 1049, and to redesignate attainment status
accordingly, see 42 U.S.C. s 7407(d)(1)(B). In ATA, we noted that
Congress had locked the categories of s 181(a)(1) into place, presum-
ably to avoid having its ozone enforcement scheme adminis- tratively
overridden by EPA as a result of such revision. 175 F.3d at 1049-50.
The same is true here. By basing the opt- in provisions in s 211(k)(6)
on the statutorily imposed catego- ries in s 181(a)(1), Congress could
limit the scope of the RFG program to areas that clearly fall within




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n    2  In the rulemaking the EPA expressed its belief that areas in
nonattainment for the new, more stringent ozone NAAQS, would be 


On this record we are reluctant even to mention the legislative
history. "[W]e do not resort to legislative history to cloud a
statutory text that is clear." Ratzlaf v. United States, 510 U.S. 135,
147-48 (1994); see also Sutton v. United Air Lines, Inc., 119 S. Ct.
2139, 2146 (1999); United States v. Bost, 87 F.3d 1333, 1336 (D.C.
Cir. 1996). But it scarcely helps EPA. The conference report observed,
"States could elect to have the [RFG] requirements apply in other
cities with ozone pollution problems." H.R. Conf. Rep. No. 101-952, at
336, reprinted in 1 A Legislative History of the Clean Air Act
Amendments of 1990, at 1449, 1786 (1993) [hereinafter Leg. Hist.]. But
this is said simply to distinguish the statute's mandate of RFG for
specified regions, and certainly does not claim that every other city
with any ozone pollution would qualify for opt-in. The floor debates
add little clarity. True, there are statements of the authors of the
provision in question, and sponsors of the amendments gener- ally, to
the effect that "any" or "all" non-mandated ozone nonattainment areas
could join the RFG program; but none shows enough attention to the
problem presented here to overcome the plain language of the text. See
Senate Debate on the Clean Air Act Amendments of 1990 Conference Re-
port, reprinted in 1 Leg. Hist. at 731, 1024; House Debate on the
Clean Air Act Amendments of 1990 Conference Report, reprinted in 1
Leg. Hist. at 1177, 1266; House Debate on H.R. 3030, reprinted in 2
Leg. Hist. at 2667, 2690. Interest- ingly, all the statements contain
inaccuracies on another issue, asserting that the area makes the
election, not the state or governor, a position with no support in the
statute. The colloquial language of debate is at best a rough guide to
the intricacies of technical statutory wording. 


Similarly, the Senate and House committee reports that list the likely
classification of nonattainment areas under s 181(a)(1) do not show
that Congress meant to base RFG 




__________

n allowed to opt into the RFG program. See 63 Fed. Reg. 52,094, 52,101
(1998). The issue is temporarily moot in the light of ATA, but on its
face such a claim seems even less well-founded than EPA's core
position. 


participation on attainment status. Both lists classify the areas
according to their design values. The Senate list does not even
mention attainment status, and is thus no evidence at all of
congressional determination that it should control. See S. Rep. No.
101-228, at 35-37 (1989), reprinted in 5 Leg. Hist. at 8375-77. Nor
does the House Report speak of nonattainment. It uses the looser term
"areas violating the ozone NAAQS" and then lists areas by design
value. H. Rep. No. 101-490, at 230-32, reprinted in 2 Leg. Hist. at
3254-56. EPA would have us believe that the list demonstrates accep-
tance of its view that Congress really meant nonattainment because the
table includes two areas, Jacksonville, FL and Waldo Co., ME, as
likely to be classified as marginal areas despite their design values
of only 0.120 ppm. But the likely explanation is that the compiler
mistakenly thought that because 0.120 was the cut-off point for
"Marginal," an area with exactly that reading should be so classified.
Moreover, these lists can shed no light on the proper classification
of areas that lack sufficient data to calculate a design value or even


EPA next argues that even if the text is clear, this case presents one
of the rare instances "in which the literal application of a statute
will produce a result demonstrably at odds with the intentions of its
drafters." R.G. Johnson Co. v. Apfel, 172 F.3d 890, 895 (D.C. Cir.
1999) (internal quotations omitted). The agency appears to find
absurdity because under the direct reading of the statute it denies
opt-in to some areas with "continuing ozone problems." But the argu-
ment assumes away all trade-offs. Given the acknowledged cost and
supply drawbacks associated with RFG, it seems entirely sensible to
confine opt-in to areas experiencing non- attainment with the
comparative clarity implied by belonging to one of the four specified
categories. We see no absurdity. 


EPA offers a special argument under which it could reach back into
history to allow opt-in for an area that once was-- but is no
longer--classified as Marginal, Moderate, Serious, or Severe. The
statute allows opt-in for "any area in the State classified ... as a
Marginal, Moderate, Serious, or 


Severe Area." As a matter of sheer linguistic possibility, either of
two explicit phrases could be understood to precede the word
"classified": it could read (1) "any area in the state [that is
presently] classified ... as a Marginal, Moderate, Serious, or Severe
Area," or (2) "any area in the state [that has ever been] classified
as a Marginal, Moderate, Serious, or Severe Area." EPA favors the
second reading, but it seems utterly implausible. If an area is in
attainment, its historical design value has no relationship to its
need for RFG. If it is in nonattainment, but lacks sufficient data to
be classified under s 181(a)(1), then RFG will be an option if, in the
process of generating sufficient data to prove itself in attain- ment,
it is shown to have a design value of 0.121 ppm or above. See 42


In s 211(k)(6) Congress provided for opt-in only for areas classified
as Marginal, Moderate, Serious or Severe. It meant what it said.
Accordingly, API's petition for review is 


Granted.