      Scope of the Environmental Protection Agency’s
              Discretion to Adopt Any One of
         Three Alternative Interpretations of the
      Mitchell-Conte Amendment to the Clean Air Act
Based on Chevron US.A. Inc. v Natural Resources Defense Counsel, Inc., the Environ­
  mental Protection Agency has the discretion to adopt any one of three alternative EPA-
  suggested interpretations of the 1988 Mitchell-Conte Amendment to the Clean Air Act.
                                                                                        April 14, 1989
                   M em orandum O pin io n for th e G en eral C ounsel
                         O ffic e o f M ana gem en t and B u d g et

   This memorandum responds to your request of November 8, 19881, that
this Office resolve a dispute between the Office of Management and
Budget (“OMB”) and the Environmental Protection Agency (“EPA”) as to
whether EPA has the discretion to adopt any one of three alternative
EPA-suggested interpretations of the Mitchell-Conte Amendment. EPA
argues that it possesses such authority, while OMB argues that only the
first of the three suggested interpretations is legally permissible. For the
reasons set forth below, we conclude that EPA does possess the authori­
ty to adopt either the second or third alternative interpretation, in addi­
tion to the first interpretation.
                               I. Background2
   The Clean Air Act Amendments of 1970, Pub. L. No. 91-604, § 1, 84 Stat.
1676 (“CAA”) directed EPA to establish primary and secondary National
  1Letter for Hon. Douglas W. Kmiec, Assistant Attorney General, Office of Legal Counsel, from Alan
Charles Raul, General Counsel, Office of Managment and Budget (Nov 8, 1988) (“OMB Letter").
  2The following background discussion is derived in large part from EPA, State Implementation Plans;
Attainment Status Designations; Proposed Rulemaking and Policy, 53 Fed. Reg. 20,722, 20,734 (1988)
(codified at 40 C F.R pt 81) We do not address at length the question whether constitutional issues are
raised by the regulatory structure established pursuant to section 107 of the Clean Air Act, under which
state officials prepare lists of areas failing to meet ambient air quality standards — lists that EPA employs
as the basis for the imposition of regulatory strictures under the Clean Air Act. Cf Buckley v Valeo, 424
U.S. 1, 140-41 (1976) (only Officers of the United States, appointed in the manner provided for in the
Appointments Clause of the Constitution, Article II, Section 2, Clause 2, may constitutionally exercise
“significant authonty pursuant to the laws of the United States”)
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Ambient Air Quality Standards (“NAAQS”) to protect the public health
and the public welfare, respectively. Under these amendments, the states
were directed to develop and adopt State Implementation Plans (“SIPs”)
to attain and maintain the NAAQS. Specifically, section 110(a) of the CAA
required the states to develop and adopt SIPs that would attain the
NAAQS in most areas by 1975, with some extensions until 1977, pursuant
to section 110(e) of the CAA.
   Section 107(d) of the CAA Amendments of 1977, § 197(d), 91 Stat. 685,
687-89 (codified at 42 U.S.C. § 7407(d)) (“section 107(d)”), required that
each state identify all areas within its boundaries that had not attained
the NAAQS by August 7,1977. The EPA was required to promulgate these
lists within 60 days, with such modifications as EPA deemed necessary
and after giving the states notice and opportunity to comment. The EPA
promulgated most of these designations on March 3, 1978. Attainment
Status Designations, 43 Fed. Reg. 8962 (1978) (codified at 40 C.F.R. pt.
81). Part D of the CAA, 42 U.S.C. §§ 7501-7508 (“Part D”), required that
those areas designated as “nonattainment” in 1978 submit SIP revisions
by January .1, 1979 that demonstrated attainment of the NAAQS by
December 31, 1982. EPA could approve a state’s application for an exten­
sion of the attainment deadline until December 31, 1987, upon a proper
demonstration that attainment of the NAAQS was not possible by the
December 1982 deadline, despite the use of all “reasonably available”
measures.
   EPA initially took the position that it could modify an area’s promul­
gated designation at any time when warranted by evidence of nonattain­
ment of the NAAQS, not only upon review of the affected state’s original
recommendations. However, in Bethlehem Steel Corp. v. EPA, 723 F.2d
1303 (7th Cir. 1983), the U.S. Court of Appeals for the Seventh Circuit
held that EPA could not unilaterally modify an air quality area designa­
tion under section 107(d) after having promulgated statutorily-required
designation lists, unless the concerned state had requested such a modi­
fication. EPA subsequently, as a matter of practice, acquiesced in the rea­
soning of Bethlehem Steel in all states, not just those in the Seventh
Circuit. 53 Fed. Reg. at 20,724. Consistent with such acquiescence, absent
a request from the affected state, EPA did not redesignate as nonattain­
ment an area which had originally been designated as attainment or
unclassifiable, regardless of the evidence of violation of the NAAQS. Id.
   In November 1987, EPA announced it would develop a program to
address the likelihood that many areas of the country would not attain the
NAAQS for ozone and carbon monoxide by the statutorily-required CAA
deadline of December 31, 1987. State Implementation Plans; Approval of
Post-1987 Ozone and Carbon Monoxide Plan Revisions for Areas Not
Attaining the National Ambient Air Quality Standards; Notice, 52 Fed. Reg.
45,044 (1987). Among the matters EPA proposed for comment was the
issuance of calls to the states for revised SIPs in any geographical location
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where recent monitoring data showed violations, irrespective of the area’s
past designation as attainment or nonattainment. EPA also proposed
 adjusting the boundaries of nonattainment areas to add all counties in a
metropolitan statistical area (“MSA”) or a consolidated MSA (“CMSA”),
whether the areas being annexed to the preexisting nonattainment area
showed violations or not. Id. at 45,044, 45,054-55.
   In January 1988, Congress enacted the Mitchell-Conte Amendment
(“MCA”) to the Fiscal 1988 Continuing Resolution, Pub. L. No. 100-202,
 101 Stat. 1329, 1329-199 (1987). The bulk of the MCA temporarily pro­
hibits (during the period prior to August 31, 1988) the EPA from impos­
ing CAA “restriction[s] or prohibition[s] on construction, permitting, or
funding” of industrial facilities in geographic areas that have not attained
specified clean air standards by December 31, 1987. The last sentence of
the MCA reads:
        Prior to August 31, 1988 the Administrator of the Environ­
        mental Protection Agency shall evaluate air quality data
        and make determinations with respect to which areas
        throughout the nation have attained, or failed to attain,
        either or both of the national primary ambient air quality
        standards referred to in subsection (a) and shall take
        appropriate steps to designate those areas failing to
        attain either or both of such standards as nonattainment
        areas within the meaning of part D of title I of the Clean
        Air Act.
Id. (emphasis added).
   On June 6, 1988, the EPA issued a notice of proposed rulemaking set­
ting forth three alternative interpretations (“alternative interpretations”)
of the MCA’s last sentence: (1) EPA could identify those areas that failed
to obtain the ozone or carbon monoxide NAAQS (the subsection (a)
NAAQS) by December 31, 1987, but not attach any regulatory conse­
quences to such factual determinations, 53 Fed. Reg. at 20,725; (2) EPA
could unilaterally (without a request by the affected state) redesignate as
nonattainment those areas that failed to attain either one of the two
NAAQS, regardless of their current designations, with the redesignations
imposing regulatory obligations under Part D, id. at 20,725-26; and (3)
EPA could unilaterally redesignate as nonattainment only those areas
that are currently designated as attainment but that in fact failed to attain
the NAAQS, with the redesignations imposing regulatory Part D obliga­
tions, id. at 20,726.3The third interpretation differs from the second only
  3 EPA stated that under the second alternative interpretation, the MCA would be construed as overrid­
ing Bethlehem Steel. Id at 20,725-26 That is not precisely correct since the Seventh Circuit was not inter-
                                               Continued
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“insofar as EPA would not attach ... (regulatory Part D) consequences to
confirmation of the nonattainment status of areas already designated as
nonattainment.” Id. at 20,726-27.
   OMB subsequently took the position that only the first of the three
alternatives set forth above constitutes a permissible construction of the
MCA’s last sentence within the meaning of Chevron U.S.A. Inc. v. Natural
Resources Defense Council, Inc., 467 U.S. 837 (1984) (where a statute is
silent or ambiguous as to a particular issue, and congressional intent can­
not be ascertained, a reviewing court may not disturb an agency’s “rea­
sonable” interpretation of the statutory provision in question). The EPA
General Counsel’s Office disagreed, contending that all three interpreta­
tions satisfied Chevron’s “reasonableness” criterion. OMB requested that
the Office of Legal Counsel resolve this dispute. See OMB Letter at 2.
                              II. Discussion
A. Reasonable Construction of the MCA’s Last Sentence
   In order to assess this question, we first briefly examine section 107(d).
Section 107(d) deals with the designation of nonattainment areas in the
following fashion. For the purposes of imposing CAA regulatory obliga­
tions “under part D,” section 107(d)(1) requires each state to submit to
the EPA Administrator a list of nonattainment areas, viz., a list “identify­
ing those air quality regions, or portions thereof, ... in such State which
on [August 7, 1977] ” do not meet certain specified air quality standards.4
“Not later than sixty days after submittal of the list under paragraph (1)
of this subsection the Administrator shall promulgate each such list with
such modifications as he deems necessary. Whenever the Administrator
proposes to modify a list submitted by a State, he shall notify the State
and request all available data relating to such region or portion, and pro­
vide such State with an opportunity to demonstrate why any proposed
modification is inappropriate.” § 107(d)(2). Moreover, “[a] State may from
time to time review, and as appropriate revise and resubmit, the list
required under this subsection. The Administrator shall consider and pro­
mulgate such revised list in accordance with this subsection.”
§ 107(d)(5). Finally, for management reasons, the states may from time to

  3 (.. continued)
preting the MCA. In other words the time limits and state participation features Judge Posner found
applicable under the Clean Air Act still obtain in all cases brought under section 107(d), except that, as
we discuss infra, with respect to the two NAAQS that are also the subject of the MCA, the EPA has addi­
tional unilateral authonty not subject to the time and State-mitiation requirements of section 107(d) Cf
David P Cum e, A ir Pollution Federal Laio and Analysis § 6.04 at 6-12 (1981) Adoption of the third
alternative interpretation should be similarly understood.
  4 Those standards, enumerated in 42 U.S C § 7407(d)(l)(A)-(E), are identified as benchmarks for
nonattainm ent status in 42 U.S.C. § 7501(2)
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time redesignate air quality control regions (the regions within which
attainment is evaluated) within their borders, subject to the approval of
the Administrator. § 107(e).
   In Bethlehem Steel, the Seventh Circuit construed section 107(d)(2) as
not authorizing EPA unilaterally to modify a list of state-submitted nonat­
tainment designations after the initial sixty day period following submit­
tal had run. The court found that the term “fwjhenever the Administrator
proposes to modify a list submitted by a State” merely referred to EPA’s
authority to modify a state’s list “in every instance” EPA might choose
within the initial sixty day notification period — not as suggesting that
EPA should be able to modify a list at any future point in time. 723 F.2d
at 1305 (emphasis added). Nevertheless, as we discuss below, we do not
believe Bethlehem Steel is dispositive of the issue whether EPA has addi­
tional unilateral authority under the MCA.
   In evaluating the MCA, we start as always with the language of the
statutory text. The MCA’s last sentence requires that EPA’s Administrator
“make determinations with respect to which areas throughout the nation
have attained, or failed to attain, either or both of’ two specified NAAQS
(for ozone and carbon monoxide). In light of those determinations, the
Administrator “shall evaluate air quality data and make determinations
with respect to which areas throughout the nation have attained, or failed
to attain, [specified NAAQS] ... and shall take appropriate steps to des­
ignate those areas failing to attain either or both of such [NAAQS] as
nonattainment areas within the meaning of part D of title I of the Clean
Air Act.” 101 Stat. at 1329-199 (emphasis added).
   Neither the MCA nor its legislative history5 expressly addresses what is
   5Two isolated congressional statements regarding the MCA’s last sentence are, under traditional norms
of statutory construction, not dispositive of the statute’s meaning.
  First, the isolated statem ent by Representative Dingell (the only floor statement bearing directly on the
MCA’s last sentence) that the MCA “make[s] a significant change in the Clean Air Act,” 133 Cong. Rec
34,026 (1987), is “entitled to little, if any, weight” in discerning legislative intent, because Representative
Dingell was arguing against the MCA. Selective Serv Sys. v Minnesota Pub. Interest Research Group,
468 U.S. 841, 855-56 n.14 (1984); see National Woodwork Mfgs Ass’n v. NLRB, 386 U.S 612, 639-40
(1967), NLRB v Fruit & Vegetable Packers & Warehousemen, Local 760, 377 U S. 58, 66 (1964);
Schwegmann Bros. v. Calvert Distillers Corp , 341 U S. 384, 394-95 (1951). See also Comp. Gen Op B-
208593 6 at 5 (1988), (such comments “do not constitute an authoritative expression of congressional
intent,” since his remarks were made against the MCA and “were not part of a colloquy with the amend­
ment’s sponsor”)
  Second, as EPA points out, Senator Mitchell’s post-enactment letter of August 5, 1988 to the EPA
Administrator, “stat[ing] that the Mitchell-Conte Amendment was intended to override Bethlehem Steel
and EPA’s policy permanently discharging Part D obligations upon EPA’s approval of a Part D SIP,” has
“little value as legislative history ’’ Letter for Douglas W Knuec, Assistant Attorney General, Office of
Legal Counsel, from Lawrence J. Jensen, General Counsel, EPA, at 4 (Jan 13,1989) (“EPA Letter”) Post­
enactment statements made by individual legislators or congressional committees lack legal force,
because at best they are evidence only of what individual legislators’ intentions may have been See, e g ,
Regional Rad Reorganization Cases, 419 U S. 102, 132 (1974) (post-enactment statements “‘represent
only the personal views of ... legislators,’” and “however explicit, [they] cannot serve to change the leg­
islative intent of Congress expressed before the Act’s passage"); 71^4 v. Hill, 437 U S. 153, 193 (1978); 2A
Sutherland, Statutory Construction 48 16 (Sands ed. 1973).
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meant by the term “tak[ing] appropriate steps to designate,”6 and this
term is not self-explanatory. Nevertheless, since no mention is expressly
made of a state role in the MCA’s last sentence, since Part D — which is
not premised on a state role — is expressly referenced in the MCA rather
than Part A which contains the state role construed in Bethlehem Steel,
and since even absent the MCA there was a reasonable argument that the
EPA had unilateral authority,7 we believe it would not be unreasonable
for EPA to interpret the MCA language to authorize the EPA unilaterally
to “take appropriate steps” — to make nonattainment designations with
respect to the two specified NAAQS without a request from the states.
That the existence of unilateral EPA authority to make these specific
nonattainment designations could reasonably be deemed consistent with
the MCA’s last sentence is also supported by the initial part of that sen­
tence, which plainly directs EPA, on its own, to evaluate air quality data
and make determinations of attainment or nonattainment. The making of
unilateral nonattainment designations could reasonably be viewed as an
action logically following on the heels of EPA’s evaluation of data and
making of air quality determinations for the two NAAQS.
   Finally, we also note that an interpretation of the MCA which authorizes
EPA to make nonattainment designations unilaterally without first having to
rely on action by the states avoids a constitutionally problematic result. Cf
Buckley v. Valeo, 424 U.S. 1, 126, 14041 (1976) (only Officers of the United
States, appointed in the manner provided for in the Appointments Clause of
the Constitution, may constitutionally exercise “significant authority pur­
suant to the laws of the United States”). Accordingly, the second and third
interpretations are in harmony with the principle of statutory construction
that a statute should be read in a manner that avoids constitutional prob­
  6101 Stat at 1329-199 The term “nonattainment area” is, in contrast, precisely defined in the first sec­
tion of Part D of title I of the CAA, 42 U.S C § 7501(2) Accordingly, the MCA’s reference to “nonattain­
ment areas within the meaning of part D of title I” should be read as specifying that provision
   7 Pnor to Bethlehem Steel, EPA took the position that it could modify a designation at any time when
warranted by evidence of nonattainment of NAAQS EPA relied upon section 171(2) of the CAA (“section
171”), 42 U S.C § 7501(2), which states that “[t]he term ‘nonattainment area’ includes any area identi­
fied under” section 107(d) According to EPA, “the verb ‘include’ suggests that EPA’s redesignation
authonty covers not only areas for which the state has requested a nonattainment designation pursuant
to CAA section 107(d), but also areas for which the state has not requested such a designation " 53 Fed
Reg 20,724 (1988) EPA’s position was supported by a prominent environmental law scholar, Professor
David C am e David P. Currie, Air Pollution: Federal Law and Analysis § 6.04, at 6-12 (1981) (citing a
subsequently superseded EPA regulation, 40 C.FR § 81.300, as providing that EPA can unilaterally initi­
ate changes in designations, and stating that “it is up to the EPA to designate any (nonattainment areas)
the states have not listed”). While the Seventh Circuit in Bethlehem Steel stated that “there is no indica­
tion that Congress intended section 171, a definitional provision, to nullify the time limits in section
107(d)," 723 F.2d at 1307, Professor Currie has ably pointed out that “[t]he difficulty with this argument
is its assumption that the time limit in question was meant to restrict the EPA’s obligation to apply the
nonattainment provision to all nonattainment areas, which merely ‘include’ those listed pursuant to state
proposals under Sec. 107(d).” Cume, supra , 1988 Cumulative Supplement Sec 6.04, at 78. We need not,
and do not, answer this dispute over the proper interpretation of section 107(d). It is enough to note that
the MCA can reasonably be interpreted to give EPA unilateral designation authonty with respect to two
specific NAAQS.
                                                  110
lems. See, e.g., Ashwander v. TVA, 297 U.S. 288, 346-48 (1936) (Brandeis, J.,
concurring); New York v. Ferber, 458 U.S. 747, 769 n.24 (1982).
B. EPA’s Three Alternative Interpretations
   We now examine EPA’s three alternative interpretations in light of the
preceding discussion of the MCA’s last sentence. The first interpretation
would merely require EPA to identify those areas that failed to obtain the
NAAQS, without unilaterally attaching any regulatory consequences. This
interpretation, which would allow EPA to notify the states of its findings
that the area is one of nonattainment, comports with the understanding
of section 107(d) expressed in Bethlehem Steel, under which the imposi­
tion of Part D obligations would occur only after the states had submit­
ted lists to EPA and EPA had promulgated such lists.
   Under the second and third interpretations, EPA would designate areas
as nonattainment — designations that would impose Part D regulatory
requirements8— without first receiving lists from the states. These inter­
pretations are in harmony with the suggested interpretation of the MCA’s
last sentence discussed above. Accordingly, we are of the opinion that the
second and third interpretations are defensible under the Supreme
Court’s Chevron standard, which calls for deference to an agency’s “rea­
sonable” interpretations of the statute it administers.9
                             III. Conclusion
  All three of EPA’s alternative interpretations of the MCA’s last sentence
are “reasonable,” within the meaning of the Supreme Court’s holding in
   8 Under the second interpretation, Part D consequences would attach to all areas designated as nonat­
tainment; under the third interpretation, Part D consequences would only attach to those areas that had
not previously been designated as nonattainment. See text following note 2, supra
   9 OMB argues that EPA’s second and third interpretations should be rejected, since they “would effec­
tively repeal the Clean Air Act (CAA) provisions that reserve to the States the primary role for designating
‘nonattainment areas/" and therefore would violate the rule of statutory construction that repeals by impli­
cation are disfavored OMB Letter at 1 We reject OMB’s premise, however, that the second and third inter­
pretations necessarily would work an implied repeal of section 107(d). As previously discussed, the provi­
sions of Part D of the CAA, section 171, at least as referenced by the MCA, may reasonably be read as giving
EPA authonty to designate areas that is independent of and additional to the section 107(d) process The
second and third interpretations in no way preclude EPA from promulgating designations in response to
lists submitted by the states; they merely suggest an alternative procedure for making designations with
respect to two particular NAAQS, in addition to that procedure enumerated in section 107(d) We also find
wanting OMB’s argument that the second and third interpretations nrn afoul “of the repeated statements in
the legislative history that the [Mitchell-Conte] Amendment simply ‘freezes the status quo* until Congress
can undertake a more comprehensive review of the Clean Air Act.” OMB Letter at 2 As EPA correctly
points out, however, all of the statements that refer to “freez[ingj the status quo ... concern a provision [set
forth in the first part of the MCA] temporarily suspending EPA’s authonty to impose Clean Air Act sanctions
in connection with nonattainment of the ozone or carbon monoxide NAAQS; none addresses [the last sen­
tence of the MCA, which sets forth] the Mitchell-Conte Amendment’s redesignation provision ” EPA Letter,
suptu note 3, at 4. We fully agree with EPA’s point that the references to “freezjing] the status quo,” which
were not directed at the MCA’s last sentence, do not bear on the interpretation of that sentence.
                                                     in
Chevron. Accordingly, since EPA is the agency which administers the
CAA as amended by the MCA, we defer to EPA’s judgment on which of its
alternative interpretations to adopt.
                                         DOUGLAS W. KMIEC
                                      Assistant Attorney General
                                        Office of Legal Counsel




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