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USCA Case #14-1112
Document #1537419
Filed: 02/12/2015
Page 1 of 75
ORAL ARGUMENT SCHEDULED FOR APRIL 16, 2015
No. 14-1112 & No. 14-1151
______________________________________________
IN THE UNITED STATES COURT OF APPEALS
FOR THE DISTRICT OF COLUMBIA CIRCUIT
______________________________________________
IN RE: MURRAY ENERGY CORPORATION,
Petitioner.
______________________________________________
MURRAY ENERGY CORPORATION,
Petitioner,
v.
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY, ET AL.
Respondents.
______________________________________________
On Petition for Writ of Prohibition & Petition for Review
______________________________________________
BRIEF FOR RESPONDENT EPA
______________________________________________
Of Counsel:
Elliott Zenick
Scott Jordan
United States Environmental
Protection Agency
Office of General Counsel
1200 Pennsylvania Ave., N.W.
Washington, D.C. 20460
JOHN C. CRUDEN
Assistant Attorney General
s/ Amanda Shafer Berman
AMANDA SHAFER BERMAN
BRIAN H. LYNK
U.S. Department of Justice
Environmental Defense Section
P.O. Box 7611
Washington, D.C. 20044
(202) 514-1950 (phone)
Email: amanda.berman@usdoj.gov
February 12, 2015
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Certificate as to Parties, Rulings, and Related Cases
Pursuant to Circuit Rules 28(a)(1)(A) and 21(d), Respondents the United States
Environmental Protection Agency et al. states as follows:
Parties and Amici:
The parties in these consolidated cases are:
Petitioner: Murray Energy Corporation;
Intervenors for Petitioner: National Federation of Independent Business,
Utility Air Regulatory Group, Peabody Energy Corporation, State of Alabama, State
of Alaska, State of Indiana, State of Kansas, State of Kentucky, State of Louisiana,
State of Nebraska, State of Ohio, State of Oklahoma, State of South Dakota, State of
West Virginia, State of Wyoming;
Amici Curiae for Petitioner: American Coalition for Clean Coal Electricity,
National Mining Association, American Chemistry Council, American Coatings
Association, Inc., American Fuel & Petrochemical Manufacturers, American Iron and
Steel Institute, State of South Carolina, United States Chamber of Commerce, Council
for Industrial Boiler Owners, Independent Petroleum Association of America, Metals
Service Center Institute, National Association of Manufacturers;
Respondents: The United States Environmental Protection Agency, and
Regina A. McCarthy, Administrator;
Intervenors for Respondent: Environmental Defense Fund, Natural Resources
Defense Council, Sierra Club, Commonwealth of Massachusetts, District of
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Colombia, State of California, State of Connecticut, State of Delaware, State of Maine,
State of Maryland, State of New Mexico, State of New York, State of Oregon, State
of Rhode Island, State of Vermont, State of Washington, City of New York; and
Amici Curiae for Respondent: State of New Hampshire, Clean Wisconsin,
Michigan Environmental Council, Ohio Environmental Council, Calpine
Corporation, Jody Freeman, and Richard J. Lazarus.
Rulings under Review:
Petitioner challenges, and alternatively asks this Court to issue a writ
prohibiting, this proposed rule: Carbon Pollution Emission Guidelines for Existing
Stationary Sources: Electric Utility Generating Units, 79 Fed. Reg. 34,380 (June 18, 2014).
Related Cases:
These consolidated cases are related to, and have been designated by the Court
for argument on the same day as, State of West Virginia, et al., v. EPA, No. 14-1146,
which purportedly challenges a 2010 settlement agreement between EPA, certain
states, and non-governmental organizations, but asks the Court to stop the same
ongoing rulemaking that Petitioner Murray Energy Corp. challenges in this case.
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TABLE OF CONTENTS
Jurisdiction and Standing ......................................................................................................... 1
Issues Presented......................................................................................................................... 1
Statutes and Regulations ........................................................................................................... 1
Statement of the Case ............................................................................................................... 2
Background ................................................................................................................................ 3
I.
THE CLEAN AIR ACT .............................................................................................. 3
II.
THE 1990 AMENDMENTS ...................................................................................... 5
III.
THE MATS RULE ....................................................................................................... 7
IV.
THE PROPOSED RULE ........................................................................................... 8
Summary of Argument ............................................................................................................. 9
Argument .................................................................................................................................. 10
I.
II.
MURRAY LACKS ARTICLE III STANDING ................................................... 10
A.
Murray cannot show “actual or imminent” injury from a proposal ........ 10
B.
Murray cannot show that the impacts it cites are traceable to the
Proposed Rule and would be averted if the Court grants relief ............... 14
C.
The Intervenors also lack Article III standing................................................. 16
THE COURT LACKS JURISDICTION OVER MURRAY’S DIRECT
CHALLENGE TO THE PROPOSAL FOR ADDITIONAL REASONS .... 17
A.
Under the plain text of the Act, neither the Proposed Rule nor the
supporting legal memorandum is a “final action.” ..................................... 17
B.
Murray cannot satisfy either prong of the Bennett finality test ................ 23
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C.
III.
IV.
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1.
The Proposed Rule did not consummate the
rulemaking process............................................................................... 23
2.
Proposing a rule creates no binding legal consequence ................. 25
Murray’s challenges are unripe ....................................................................... 26
THE COURT LACKS JURISDICTION TO ISSUE A WRIT OF
PROHIBITION TO STOP THE ONGOING RULEMAKING .................... 27
A.
A writ may issue to aid, but not enlarge, jurisdiction ................................. 27
B.
A writ is only available where there is no other legal remedy ................... 29
C.
An extraordinary writ may issue only in certain circumstances ................ 29
D.
No authority supports the issuance of a writ here...................................... 32
THE COURT SHOULD NOT STOP THE RULEMAKING BASED
ON ONE INTERPRETATION OF AN AMBIGUOUS PROVISION ........ 34
A.
Section 7411(d) need not be read as Murray insists ................................... 35
B.
The Act’s structure, purpose, context, and legislative history do not
favor Murray’s authority-nullifying interpretation of § 7411(d) ............... 41
C.
1.
The Act’s structure and purpose conflict with Murray’s
interpretation......................................................................................... 41
2.
The legislative history conflicts with Murray’s interpretation ....... 42
3.
The statutory context is also at odds with Murray’s
interpretation......................................................................................... 45
The Senate Amendment also conflicts with Murray’s interpretation
of section 7411(d), and cannot be ignored .................................................. 46
1.
The Senate Amendment should not be ignored ............................. 46
2.
The Senate Amendment poses no non-delegation issue ............... 51
Conclusion ................................................................................................................................ 54
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TABLE OF AUTHORITES
CASES
Abbott Labs. v. Gardner,
387 U.S. 136 (1967) .............................................................................................................26
Action on Smoking & Health v. Dep't of Labor,
28 F.3d 162 (D.C. Cir. 1994) ..............................................................................................26
Ala. Power Co. v. Costle,
636 F.2d 323 (D.C. Cir. 1979) .............................................................................................. 3
*Alternative Research & Dev. Found. v. Veneman,
262 F.3d 406 (D.C. Cir. 2001) ..................................................................................... 11, 12
Am. Electric Power Co., Inc. v. Connecticut ("AEP"),
131 S. Ct. 2527 (2011) ............................................................................................ 22, 39, 40
Am. Petroleum Inst. v. EPA ("API"),
683 F.3d 382 (D.C. Cir. 2012) ............................................................................................26
Am. Petroleum Inst. v. SEC,
714 F.3d 1329 (D.C. Cir. 2013)..........................................................................................49
Appalachian Power Co. v. EPA,
208 F.3d 1015 (D.C. Cir. 2000)..........................................................................................24
Arizonans for Official English v. Arizona,
520 U.S. 43 (1997)................................................................................................................16
Ass'n of Battery Recyclers, Inc. v. EPA,
716 F.3d 667 (D.C. Cir. 2013) ............................................................................................14
Athlone Indus. v. Consumer Prod. Safety Comm'n,
707 F.2d 1485 (D.C. Cir. 1983)..........................................................................................25
*Authorities chiefly relied upon are marked with an asterisk.
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Atlantic States Legal Found. v. EPA,
325 F.3d 281 (D.C. Cir. 2003) ............................................................................................26
Ayuda, Inc. v. Thornburgh,
948 F.2d 742 (D.C. Cir. 1991) ..................................................................................... 27, 28
Bell Atlantic Telephone Cos. v. F.C.C.,
131 F.3d 1044 (D.C. Cir. 1997)............................................................................. 41, 42, 45
*Bennett v. Spear,
520 U.S. 154 (1997) ......................................................................................... 21, 23, 25, 26
Burgess v. United States,
553 U.S. 124 (2008) .............................................................................................................49
Chamber of Commerce of U.S. v. EPA,
642 F.3d 192 (D.C. Cir. 2011) ............................................................................................11
*Chevron, U.S.A., Inc. v. Natural Resources Def. Council,
467 U.S. 837 (1984) ................................................................................................ 34, 38, 52
Citizens to Save Spencer Cnty. v. EPA,
600 F.2d 844 (D.C. Cir. 1979) ............................................................................................52
City of Chicago v. Envtl. Def. Fund,
511 U.S. 328 (1994) .............................................................................................................19
Clapper v. Amnesty Int'l USA,
133 S. Ct. 1138 (2013) .................................................................................................. 10, 11
Clinton v. Goldsmith,
526 U.S. 529 (1999) .............................................................................................................27
Colonial Times, Inc. v. Gasch,
509 F.2d 517 (D.C. 1975) ...................................................................................... 30, 31, 32
Crete Carrier Corp. v. EPA,
363 F.3d 490 (D.C. Cir. 2004) ............................................................................................16
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*Defenders of Wildlife v. Perciasepe,
714 F.3d 1317 (D.C. Cir. 2013)................................................................................... 12, 17
Envtl. Def. Fund v. EPA,
82 F.3d 451 (D.C. Cir. 1996) ..............................................................................................51
Ethyl Corp. v. EPA,
306 F.3d 1144 (D.C. Cir. 2002)................................................................................... 13, 14
Ex parte Wren,
63 Miss. 512 (Miss. 1886) ...................................................................................................48
Five Flags Pipe Line Co. v. Dep't of Transp.,
854 F.2d 1438 (D.C. Cir. 1988)................................................................................... 47, 50
Gen. Elec. Co. v. Jackson,
610 F.3d 110 (D.C. Cir. 2010) ............................................................................................17
Harrison v. PPG Indus., Inc.,
446 U.S. 578 (1980) .............................................................................................................24
Holistic Candlers & Consumers Ass'n v. Food & Drug Admin.,
664 F.3d 940 (D.C. Cir. 2012) ............................................................................................26
I.C.C. v. U.S. ex rel. Campbell,
289 U.S. 385 (1933) .............................................................................................................30
In re Bluewater Network,
234 F.3d 1305 (D.C. Cir. 2000)..........................................................................................34
In re Tennant,
359 F.3d 523 (D.C. Cir. 2004) ..................................................................................... 17, 27
In re United States,
925 F.2d 490, 1991 WL 17225 (D.C. Cir. Feb. 11, 1991) ..............................................34
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Kerr v. U. S. Dist. Court for N. Dist. of Cal.,
426 U.S. 394 (1976) .............................................................................................................34
Kokkonen v. Guardian Life Ins. Co.,
511 U.S. 375 (1994) .............................................................................................................17
La. Envt'l Action Network v. Browner,
87 F.3d 1379 (D.C. Cir. 1996) ............................................................................................13
Leedom v. Kyne,
358 U.S. 184 (1958) .............................................................................................................33
Lexmark Int'l, Inc. v. Static Control Components, Inc.,
134 S. Ct. 1377 (2014) .........................................................................................................13
Lodge 1858, Am. Fed'n of Gov't Emp. v. Webb,
580 F.2d 496 (D.C. Cir. 1978) ............................................................................................48
Loving v. I.R.S.,
742 F.3d 1013 (D.C. Cir. 2014)..........................................................................................41
*Lujan v. Defenders of Wildlife,
504 U.S. 555 (1992) ................................................................................................ 11, 14, 16
McCulloch v. Sociedad Nacional,
372 U.S. 10 (1963)................................................................................................................32
Meredith v. Fed. Mine Safety & Health Review Comm'n,
177 F.3d 1042 (D.C. Cir. 1999)..........................................................................................33
Michigan v. EPA,
135 S. Ct. 702 (Nov. 25, 2014) (No. 14-46) ....................................................................... 7
Monroe Energy, LLC v. EPA,
750 F.3d 909 (D.C. Cir. 2014) ..................................................................................... 13, 14
Motor & Equip Mfrs. Ass'n v. Nichols,
142 F.3d 449 (D.C. Cir. 1998) ............................................................................................14
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Nat'l Ass'n of Home Builders v. EPA,
667 F.3d 6 (D.C. Cir. 2011) ................................................................................................12
Nat'l Automatic Laundry & Cleaning Council v. Shultz,
443 F.2d 689 (D.C. Cir. 1971) ............................................................................................21
Nat'l Envtl. Dev. Ass'n's Clean Air Project v. EPA,
752 F.3d 999 (D.C. Cir. 2014) ............................................................................................13
NLRB v. Noel Canning,
134 S.Ct. 2550 (2014) ..........................................................................................................48
Okla. Dep't of Envtl. Quality v. EPA ("ODEQ"),
740 F.3d 185 (D.C. Cir. 2014) ..................................................................................... 16, 17
Public Util. Comm'r of Or. v. Bonneville Power Admin.,
767 F.2d 622 (9th Cir. 1985) ....................................................................................... 29, 31
Roche v. Evaporated Milk Ass'n,
319 U.S. 21 (1943)................................................................................................................30
Rush Prudential HMO, Inc. v. Moran,
536 U.S. 355 (2002) .............................................................................................................37
Sackett v. EPA,
132 S. Ct. 1367 (2012) .........................................................................................................25
Schlagenhauf v. Holder,
379 U.S. 104 (1964) ...................................................................................................... 30, 31
*Scialabba v. Cuellar de Osorio,
134 S. Ct. 2191 (2014) ............................................................................................ 51, 52, 53
*Sierra Club v. Thomas,
828 F.2d 783 (D.C. Cir. 1987) ............................................................................... 30, 31, 32
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S. Coast Air Quality Mgmt. Dist. v. EPA,
472 F.3d 882 (D.C. Cir. 2006) ............................................................................................19
Steel Co. v. Citizens for a Better Env't,
523 U.S. 83 (1998)................................................................................................................17
Stephan v. United States,
319 U.S. 423 (1943) .............................................................................................................47
*Telecomms. Research & Action Ctr. v. FCC ("TRAC"),
750 F.2d 70 (D.C. Cir. 1984) ............................................................. 28, 29, 30, 31, 32, 40
United States v. Vogel Fertilizer Co.,
455 U.S. 16 (1982)................................................................................................................42
United States v. Welden,
377 U.S. 95 (1964)................................................................................................................48
UNUM Life Ins. Co. of Am. v. Ward,
526 U.S. 358 (1999) .............................................................................................................37
Util. Air Regulatory Grp. v. EPA,
320 F.3d 272 (D.C. Cir. 2003) ............................................................................................26
Util. Air Regulatory Grp. v. EPA ("UARG"),
134 S. Ct. 2427 (2014) .................................................................................................. 38, 41
Wash. Hosp. Ctr. v. Bowen,
795 F.2d 139 (D.C. Cir. 1986) ............................................................................................49
*White Stallion Energy Ctr., LLC v. EPA,
748 F.3d 1222 (D.C. Cir. 2014), cert. granted, 135 S. Ct. 702 (Nov. 25, 2014) .. 4, 5, 7
Whitman v. Am. Trucking Ass'ns,
531 U.S. 457 (2001) ................................................................................................ 20, 25, 52
Young v. Cmty. Nutrition, Inst.,
476 U.S. 974 (1986) .............................................................................................................38
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STATUTES
1 U.S.C. § 112 ............................................................................................................................. 6
1 U.S.C. § 204(a) ........................................................................................................................ 6
15 U.S.C. § 2081(b)(1).............................................................................................................48
42 U.S.C. § 1395l(a)(1)(K) ......................................................................................................48
42 U.S.C. § 7401(b) ................................................................................................................... 5
42 U.S.C. § 7401(b)(1).............................................................................................................42
42 U.S.C. §§ 7408-7410 ............................................................................................................ 3
42 U.S.C. § 7408(a)(1) ............................................................................................................... 3
42 U.S.C. § 7409(a)-(b) ............................................................................................................. 3
42 U.S.C. § 7410(c)(1)(A) .......................................................................................................20
*42 U.S.C. § 7411 ...................................................................................................................... 5
42 U.S.C. § 7411(a)(1) .............................................................................................................44
42 U.S.C. § 7411(b)(1)(A) ......................................................................................................... 5
*42 U.S.C. § 7411(d) .................................................................... 2, 35, 38, 39, 40, 45, 46, 47
*42 U.S.C. § 7411(d)(1) ............................................................................................5, 6, 36, 37
42 U.S.C. § 7411(d)(1)(A) ......................................................................................................... 6
42 U.S.C. § 7411(d)(2)............................................................................................................... 5
*42 U.S.C. § 7412 ............................................................................................................... 3, 45
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42 U.S.C. § 7412(a), (b)(1) & (2), (d)(1).................................................................................. 6
42 U.S.C. § 7412(b)(2)............................................................................................................... 4
42 U.S.C. § 7412(c)(1) & (2)..................................................................................................... 4
42 U.S.C. § 7412(d) .................................................................................................................44
42 U.S.C. § 7412(d)(7).............................................................................................................45
42 U.S.C. § 7412(n)(1)(A) .................................................................................................... 4, 7
42 U.S.C. § 7416 ......................................................................................................................44
42 U.S.C. § 7604(a) ..................................................................................................................30
42 U.S.C. § 7607(b)(1)................................................................16, 17, 18, 19, 22, 28, 29, 33
42 U.S.C. § 7607(d) .................................................................................................................28
42 U.S.C. § 7607(d)(1)(C) .......................................................................................................18
42 U.S.C. § 7607(d)(3).............................................................................................................18
42 U.S.C. § 7607(d)(3)(C) .......................................................................................................21
42 U.S.C. § 7607(d)(6)(A)(ii), (B) ..........................................................................................19
42 U.S.C. § 7607(d)(7)(B) .......................................................................................................19
42 U.S.C. § 7607(e) ..................................................................................................................17
*Pub. L. No. 101-549, § 108(g), 104 Stat. 2399, 2467 (1990) ............................................. 6
*Pub. L. No. 101-549, § 302(a), 104 Stat. at 2574 ....................................................... 6, 46
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FEDERAL REGISTERS
40 Fed. Reg. 53,340 (Nov. 17, 1975) ...................................................................................... 3
65 Fed. Reg. 79,825 (Dec. 20, 2000) ....................................................................................... 7
70 Fed. Reg. 15,994 (Mar. 29, 2005) .....................................................................................39
77 Fed. Reg. 9304 (Feb. 16, 2012) .......................................................................................... 7
77 Fed. Reg. 22,392 (Apr. 13, 2012) .....................................................................................15
79 Fed. Reg. 1352 (Jan. 8, 2014)............................................................................................24
79 Fed. Reg. 1430 (Jan. 8, 2014)....................................................................................... 8, 24
79 Fed. Reg. 34,830 (June 18, 2014) ........................................................... 2, 7, 8, 13, 15, 24
79 Fed. Reg. 34,960 (June 18, 2014) ....................................................................................... 8
LEGISLATIVE HISTORY
H.R. Rep. No. 101-490, 315 (1990), reprinted in 2 Legislative History of
the Clean Air Act Amendment's of 1998 at 3339 (Comm. Print 1998) ...................... 4
H.R. Rep. No. 101-952, at 336, 340, 345 & 347, reprinted in 1 Legis. Hist.
at 1786, 1790, 1795 & 1797 ................................................................................................. 42
S. 1631, 101st Cong., § 108 (Oct. 27, 1990), reprinted in 1 Legis. Hist. at 885 ............ 50
1 Legis. Hist. at 46 n.1 ............................................................................................................43
1 Legis. Hist. at 880 ............................................................................................................... 50
S. Rep. No. 101-228, at 133, reprinted in 5 Legis. Hist. at 8473 ......................................42
S. Rep. No. 101-228, at 14, reprinted in 5 Legis. Hist. at 8354 ........................................42
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MISCELLANEOUS
ANTONIN SCALIA & BRYAN A. GARNER, READING LAW: THE INTERPRETATION
OF LEGAL TEXTS 189
(2012) ..................................................................................................53
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GLOSSARY
Act
The Clean Air Act
CO2
Carbon dioxide
EPA
United States Environmental Protection Agency
NAAQS
National Ambient Air Quality Standards
MATS
Mercury and Air Toxics Standards
OLRC
Office of the Law Revision Counsel of the United States House of
Representatives
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Jurisdiction and Standing
As explained in Argument sections I through III, Petitioner lacks standing and
the Court lacks jurisdiction over this challenge to an ongoing EPA rulemaking.
Issues Presented
1.
Whether Petitioner has standing to seek relief from a proposed rule that – if
finalized – would not regulate Petitioner;
2.
Whether Petitioner can challenge a proposed rule despite the requirement that
agency action be final prior to judicial review;
3.
Whether this Court has jurisdiction to issue a writ of prohibition to stop an
ongoing rulemaking; and
4.
Whether, even if it has jurisdiction, the Court should take the truly
extraordinary step of prohibiting an ongoing rulemaking based on Petitioner’s
interpretation of an ambiguous statutory provision.
Statutes and Regulations
All relevant statutes and regulations are set forth in Respondent’s Addendum.
1
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Statement of the Case
Greenhouse gas emissions continue to pose a real threat to Americans by
causing “damaging and long-lasting changes in our climate that can have a range of
severe negative effects on human health and the environment.” 79 Fed. Reg. 34,830,
34,833 (June 18, 2014) (“Proposed Rule”). Fossil-fuel fired power plants are, “by far,
the largest emitters” of greenhouse gases in the United States. Id.
At the President’s direction, EPA has proposed regulatory measures to address
U.S. greenhouse gas emissions. One key measure is its proposal that states submit
plans for reducing existing power plants’ carbon dioxide (“CO2”) emissions under
42 U.S.C. § 7411(d). 79 Fed. Reg. at 34,830-33. Murray Energy Corp. (“Murray”), a
coal producer, objects to this proposal, and petitions the Court to “halt” the ongoing
rulemaking, either by issuing a writ of prohibition or “set[ting] aside EPA’s legal
conclusion.” Pet.Br. 1. It so requests even though Murray is not an entity that would
be regulated under the Proposed Rule; the rule is not final; and the issue Murray raises
concerns the interpretation of a patently-ambiguous statutory provision.
Murray argues that this is an “extraordinary case.” Pet.Br. 1. Murray is right,
but not for the reasons it believes. Rather, it is what Murray asks this Court to do –
halt an ongoing rulemaking before EPA takes final action – that is extraordinary.
There is no legal basis for such relief, and EPA should not be prevented from
completing a rulemaking intended to address the serious threat of climate change.
2
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Background
I.
THE CLEAN AIR ACT
The Clean Air Act (“Act”) was enacted in 1970 to “[r]espond[] to the growing
perception of air pollution as a serious national problem.” Ala. Power Co. v. Costle,
636 F.2d 323, 346 (D.C. Cir. 1979). It set out a comprehensive scheme for air
pollution control, “address[ing] three general categories of pollutants emitted from
stationary sources”: (1) criteria pollutants; (2) hazardous pollutants; and (3)
“pollutants that are (or may be) harmful to public health or welfare but are not”
hazardous or criteria pollutants “or cannot be controlled under” those programs.
40 Fed. Reg. 53,340 (Nov. 17, 1975).
Six relatively ubiquitous “criteria” pollutants are regulated under 42 U.S.C.
§§ 7408-7410. These are pollutants that “cause or contribute to air pollution which
may reasonably be anticipated to endanger public health or welfare”; “the presence of
which in the ambient air results from numerous and diverse mobile or stationary
sources”; and for which the Administrator has issued, or plans to issue, “air quality
criteria.” 42 U.S.C. § 7408(a)(1). Once EPA issues air quality criteria for such
pollutants, the Administrator must propose primary National Ambient Air Quality
Standards (NAAQS) for them at levels “requisite to protect the public health” with an
“adequate margin of safety.” 42 U.S.C. § 7409(a)-(b).
“Hazardous air pollutants” are regulated under 42 U.S.C. § 7412, and include
pollutants so designated by Congress in 1990 and other pollutants that EPA finds:
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may present, through inhalation or other routes of exposure, a threat of adverse
human health effects (including, but not limited to, substances which are
known to be, or may reasonably be anticipated to be, carcinogenic, mutagenic,
teratogenic, neurotoxic, which cause reproductive dysfunction, or which are
acutely or chronically toxic) or adverse environmental effects whether through
ambient concentrations, bioaccumulation, deposition, or otherwise . . . .
42 U.S.C. § 7412(b)(2). Hazardous air pollutants tend to be less widespread than
criteria pollutants but are considered more potent and are associated with more
serious health impacts, such as cancer, neurological disorders, reproductive
dysfunctions, and death, even in small quantities. H.R. Rep. 101-490, 315 (1990),
reprinted in 2 Legislative History of the Clean Air Act Amendments of 1998, at 3339
(Comm. Print 1998). EPA must publish and revise a list of “major” and “area”
source categories of hazardous pollutants, and then has a nondiscretionary obligation
to establish achievable emission standards for all listed hazardous air pollutants
emitted by sources within a listed category. 42 U.S.C. § 7412(c)(1) & (2).
Congress prescribed a unique listing requirement for power plants. EPA must
first study the hazards posed by power plant emissions after imposition of the other
requirements of the Act, and then determine if regulation is “appropriate and
necessary” after considering the results of the study. See 42 U.S.C. § 7412(n)(1)(A).
If EPA so determines, regulation of hazardous emissions from power plants proceeds
under section 7412(d) just as with any other type of listed source category. See White
Stallion Energy Ctr. LLC v. EPA, 748 F.3d 1222, 1243-44 (D.C. Cir. 2014), cert.
granted, 135 S. Ct. 702 (Nov. 25, 2014).
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The final major category of pollutants covered by the Act – harmful pollutants
not regulated under the NAAQS or hazardous pollutant programs – are subject to
regulation under 42 U.S.C. § 7411. Section 7411 has two main components. First,
section 7411(b) requires EPA to promulgate federal “standards of performance”
addressing new stationary sources that cause or contribute significantly to “air
pollution which may reasonably be anticipated to endanger public health or welfare.”
42 U.S.C. § 7411(b)(1)(A). Once EPA has set new source standards addressing
emissions of a particular pollutant, section 7411(d) authorizes EPA to promulgate
regulations requiring states to establish standards of performance for existing stationary
sources of the same pollutant. 42 U.S.C. § 7411(d)(1). If a state fails to submit a
satisfactory plan, EPA is authorized to prescribe a plan for the state, and also to
enforce plans where states fail to do so. Id. § 7411(d)(2).
Together, the NAAQS, hazardous pollutant, and performance standard
programs constitute a comprehensive scheme designed to achieve Congress’ goal of
“protect[ing] and enhance[ing] the quality of the Nation’s air resources so as to
promote the public health and welfare.” 42 U.S.C. § 7401(b).
II.
THE 1990 AMENDMENTS
The Act was amended extensively in 1990. Among other things, Congress
sought to accelerate EPA’s regulation of hazardous pollutants. White Stallion, 748
F.3d at 1230. To that end, Congress established a lengthy list of hazardous air
pollutants; set criteria for listing “source categories” of such pollutants; and required
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EPA to establish standards for each source category hazardous pollutant emissions.
42 U.S.C. § 7412(a), (b)(1) & (2), & (d)(1).
In the course of overhauling the regulation of hazardous pollutants under
section 7412, Congress also edited section 7411(d), which cross-referenced a
provision of old section 7412 that was to be eliminated. Specifically, the pre-1990
version of section 7411(d) obligated EPA to require standards of performance:
for any existing source for any air pollutant (i) for which air quality criteria have
not been issued or which is not included on a list published under section
[7408(a)] or [7412(b)(1)(A)] . . . .
42 U.S.C. § 7411(d)(1)(A) (1988). To address the obsolete cross-reference to section
7412(b)(1)(A), Congress passed two amendments – one from the House and one
from the Senate – that were never reconciled. The House amendment replaced the
cross-reference with the phrase “emitted from a source category which is regulated
under section [7412].” Pub. L. No. 101-549, § 108(g), 104 Stat. 2399, 2467 (1990).
The Senate amendment replaced the same text with a cross-reference to section 7412.
Pub. L. No. 101-549, § 302(a), 104 Stat. at 2574. Both amendments were enacted into
law in the Statutes at Large, which supersedes the U.S. Code if there is a conflict.1
1
See 1 U.S.C. §§ 112 & 204(a).
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THE MATS RULE
In 2000, EPA determined under 42 U.S.C. § 7412(n)(1)(A) “that regulation of
[hazardous pollutant] emissions from coal- and oil-fired [power plants] under section
112 of the [Act] is appropriate and necessary,” and added those power plants to the
section 7412(c) list of source categories to be regulated. 65 Fed. Reg. 79,825, 79,82630 (Dec. 20, 2000). EPA determined that it was not “appropriate and necessary” to
regulate natural-gas fired power plants. Id. at 79,831. In 2012, EPA promulgated a
final rule establishing hazardous pollutant emission standards for coal- and oil-fired
plants. 77 Fed. Reg. 9304 (Feb. 16, 2012) (the “MATS Rule”). The MATS Rule does
not regulate CO2, which is not a listed hazardous air pollutant, and does not regulate
natural gas-fired plants, which are not a listed source category. Unlike the MATS
Rule, the Proposed Rule addresses CO2, and covers natural gas-fired plants as well as
coal- and oil-fired plants. Compare 77 Fed. Reg. 9304 with 79 Fed. Reg. at 34,855.
This Court upheld the MATS Rule. White Stallion, 748 F.3d at 1222. The
Supreme Court granted certiorari. Michigan v. EPA, 135 S. Ct. 702 (Nov. 25, 2014).
Murray has filed an amicus brief urging the Court to vacate the MATS Rule, arguing
that hazardous pollution from power plants instead should be regulated under section
7411 because: “Section [74]11 offers the flexibility necessary for regulating a widely
diverse source category like power plants without imposing unjustified costs” and
“the ability to address all of the same public health and environmental concerns.”
Am. Curiae Br. of Murray Energy Corp. (No. 14-46) at 22, 27.
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THE PROPOSED RULE
In 2013, the President announced his “Climate Action Plan,” and directed EPA
to work expeditiously to promulgate CO2 emission standards for fossil fuel-fired
power plants. EPA has since proposed (1) performance standards for new power
plants under section 7411(b), 79 Fed. Reg. 1430 (Jan. 8, 2014); (2) standards for
modified and reconstructed power plants under section 7411(b), 79 Fed. Reg. 34,960,
(June 18, 2014); and (3) and regulations under which states would submit plans to
address CO2 emissions from existing power plants under section 7411(d), 79 Fed.
Reg. at 34,830-34 (“Proposed Rule”). Petitioner challenges the last of these proposals.
The Proposed Rule has two main elements: (1) state-specific emission ratebased CO2 goals, to be achieved collectively by all of a state’s regulated coal- and
natural gas-fired sources; and (2) guidelines for the development, submission, and
implementation of state plans. 79 Fed. Reg. at 34,833. While the proposal lays out
individualized CO2 goals for each state, it does not prescribe how a state should meet
its goal. Id. Rather, each state would have the flexibility to design a program that
reflects its circumstances and energy and environmental policy objectives. Id.
EPA solicited comments on all aspects of the Proposed Rule. 79 Fed. Reg. at
34,830. Over two million comments were submitted before the comment period
closed on December 1, 2014. EPA is reviewing those comments, and plans to take
final action this summer.
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Summary of Argument
Neither Murray nor Intervenors in support of Petitioner can establish that they
have Article III standing to seek review of the Proposed Rule. Speculation regarding
the consequences of one possible future outcome of an ongoing notice-and-comment
rulemaking proceeding is not enough to demonstrate the concrete, particularized, and
actual or imminent injury required for Article III standing. The Court has dismissed
such challenges on standing grounds in previous cases and should do likewise here.
The Court also lacks jurisdiction because the Proposed Rule is obviously not a
“final” action. The Act prescribes the process by which EPA may establish standards
or requirements under section 7411(d), and EPA indisputably has not completed that
process. EPA has only published a proposal for notice and comment; it has not yet
considered and responded to those comments as the Act requires, nor “promulgated”
a regulation. Thus, it has taken no action that has binding legal effect or determines
any entity’s rights or obligations. Moreover, because EPA is in the midst of a noticeand-comment rulemaking process in which it will evaluate and respond to comments
on the very legal question Murray would have this Court prematurely decide, this
petition is not “fit” for a judicial decision and must be dismissed as unripe.
If this Court were to reach the merits despite the non-final nature of the
challenged rulemaking, it should decline to issue a writ of prohibition or otherwise
“halt” the rulemaking as Murray asks. Murray argues that section 7411(d) of the Act
bars EPA from addressing power plants’ emissions of carbon dioxide – or any other
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pollutant – under that provision because power plants’ emissions of certain hazardous
pollutants, like mercury, have been regulated under section 7412. But section 7411(d)
is far from unambiguous on this point. Given the convoluted, ungrammatical and
ambiguous nature of the text as set forth in the U.S. Code, it could reasonably be
interpreted as authorizing EPA to address non-hazardous emissions from power plants.
Moreover, in interpreting section 7411(d), EPA could also appropriately consider the
existence of two separate amendments to the relevant portion of that text in the
Statutes at Large, one of which would plainly authorize the regulation of nonhazardous pollutants under that provision. Thus, there are a number of reasons why
EPA might reasonably conclude it may address power plants’ carbon dioxide
emissions under section 7411(d), and the Court should not intervene in the
rulemaking before EPA has the opportunity to reach a final conclusion and articulate
its reasoning, based on its own ongoing analysis as well as the comments received.
Argument
I.
MURRAY LACKS ARTICLE III STANDING.
A.
Murray cannot show “actual or imminent” injury from a proposal.
“To establish Article III standing, an injury must be concrete, particularized,
and actual or imminent; fairly traceable to the challenged action; and redressable by a
favorable ruling.” Clapper v. Amnesty Int’l USA, 133 S. Ct. 1138, 1147 (2013)
(internal quotation and citations omitted). A petitioner that asserts standing based on
the expectation of future injury “confronts a significantly more rigorous burden to
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establish standing.” Chamber of Commerce of U.S. v. EPA, 642 F.3d 192, 200 (D.C.
Cir. 2011) (internal quotation omitted); accord Clapper, 133 S. Ct. at 1147
(“allegations of possible future injury are not sufficient”) (internal quotation omitted).
Additionally, “when the [petitioner] is not himself the object of the government
action or inaction he challenges, standing is not precluded, but it is ordinarily
substantially more difficult to establish.” Lujan v. Defenders of Wildlife, 504 U.S.
555, 562 (1992) (internal quotation omitted). In such a case, standing “depends on
the unfettered choices [of] independent actors . . . whose exercise of broad and
legitimate discretion the courts cannot presume either to control or to predict,” and it
thus becomes the petitioner’s burden “to adduce facts showing that those choices
have been or will be made in such manner as to produce causation and redressability
of injury.” Id. (internal quotations omitted); Chamber of Commerce, 642 F.3d at 201.
Murray cannot possibly meet this burden here, because the action it challenges
is only a “proposed” rule. This Court long has held that an administrative agency’s
“initiation of a rulemaking” through a notice and comment process does not impair the
rights of interested parties so as to give rise to Article III standing, even if such parties
would be directly regulated by a final rule. Alternative Research & Dev. Found. v.
Veneman, 262 F.3d. 406, 411 (D.C. Cir. 2001) (emphasis added). In Alternative
Research, the Court held that an association of biomedical researchers lacked standing
to challenge a settlement establishing a schedule for rulemaking to consider whether
to regulate the treatment of birds, mice and rats used in such research. Id. As the
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Court observed, parties potentially affected by such a rulemaking have the
opportunity, first, to participate in the rulemaking – by making known any objections
they may have and, if desired, attempting to persuade the agency not to finalize the
proposal – and then to seek judicial review if the proposed rule is finalized in a
manner that genuinely harms their interests. See id.
The Court recently reaffirmed this conclusion in Defenders of Wildlife v.
Perciasepe, 714 F.3d 1317 (D.C. Cir. 2013), where it held that an association of energy
companies lacked standing to intervene for the purpose of challenging a consent
decree that set a rulemaking schedule to revise regulations governing wastewater
discharges from power plants. See id. at 1323-26. There, as in Alternative Research,
the claimants faced the potential of direct regulation by the rulemaking at issue, unlike
Murray; yet the Court again made clear that merely commencing a notice-andcomment rulemaking that may result in a “new, stricter rule” does not create standing,
because Article III “requires more than the possibility of potentially adverse
regulation.” Perciasepe, 714 F.3d at 1325 (emphasis added); see also Nat’l Ass’n of
Home Builders v. EPA, 667 F.3d 6, 13 (D.C. Cir. 2011) (no standing to challenge
Clean Water Act jurisdictional determination).
Because Murray’s claim is based on predicting the substantive content of one
possible final outcome of the rulemaking, it is too speculative to support standing.
Murray relies on the predictive modeling EPA developed in connection with the
Proposed Rule, which projects that if the proposal is promulgated as a final rule,
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domestic power plants will use 25 to 27 percent less coal to generate electricity by
2020 (as compared with a hypothetical base case in which no final rule is ever
promulgated), and 30 to 32 percent less coal by 2030. 79 Fed. Reg. at 34,934; Pet.Br.
13-14; Declaration of Robert E. Murray (“Murray Decl.”) ¶¶ 15-16 (attached to
Pet.Br.). This model necessarily assumes, however, not only that EPA will
promulgate a final rule, but that the content of that final rule will not significantly
change from the proposal. At this stage, when EPA is still evaluating and has not yet
responded to the millions of comments it received, any predictions about what statespecific guidelines EPA might adopt in a final rule – let alone what requirements each
state, in turn, independently may impose on power plants pursuant to such guidelines
– are pure conjecture. See La. Envtl. Action Network v. Browner, 87 F.3d 1379, 1383
(D.C. Cir. 1996) (no standing based on “multi-tiered speculation” that states with
delegated authority would adopt certain programs and that EPA would approve).
The Article III standing cases Murray relies on (Pet.Br. 12-14) involved
challenges to final rules promulgated after notice and comment – not proposed rules
published for the purpose of soliciting public comments2 – or to agency directives that
were not subject to notice-and-comment, e.g., National Envt’l Dev. Ass’n’s Clean Air
Project (“NEDA-CAP”) v. EPA, 752 F.3d 999, 1005-06 (D.C. Cir. 2014) (EPA
See, e.g., Ethyl Corp. v. EPA, 306 F.3d 1144, 1147-48 (D.C. Cir. 2002); Monroe
Energy, LLC v. EPA, 750 F.3d 909, 914-15 (D.C. Cir. 2014).
2
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directive established an immediately-effective new policy for permitting decisions).3
Murray cites no authority holding that speculation about one possible outcome of an
ongoing notice-and-comment rulemaking process can give rise to Article III standing.
B.
Murray cannot show that the impacts it cites are traceable to the
Proposed Rule and would be averted if the Court grants relief.
Even if EPA had promulgated a final section 7411(d) rule for power plants in
January 2014, Murray’s affidavit would still fail to establish Article III standing. As a
coal producer, Murray would not be subject to any requirements if such a rule were
promulgated. It therefore bears a heightened burden to establish that the downstream
economic effects it complains of are genuinely traceable to EPA’s action rather than
to third parties’ independent choices, and are redressable here. Lujan, 504 U.S. at 562.
Specifically, Murray must demonstrate a “substantial probability” that these economic
effects would not have occurred but for EPA’s January 2014 publication, and that, “if
the court affords the relief requested, the [alleged] injury will be removed.” Ass’n of
Battery Recyclers, Inc. v. EPA, 716 F.3d 667, 671 (D.C. Cir. 2013) (internal quotation
omitted).4 This Murray has not done.
Other cases are inapposite because they address “prudential standing” or the “zone
of interests” test, not Article III standing. E.g., Lexmark Int’l, Inc. v. Static Control
Components, Inc., 134 S. Ct. 1377, 1386 (2014); Pet.Br. 14 n.3.
3
The claimants in most of the Article III cases Murray cites either were directly
regulated by the rules in question or asserted injuries that Murray does not. See, e.g.,
Monroe, 750 F.3d at 915; Ethyl Corp., 306 F.3d at 1147-48 (asserting “informational”
injuries). And in Motor & Equip Mfrs. Ass’n v. Nichols, 142 F.3d 449, 457 (D.C. Cir.
1998), EPA did not contest that the rule caused the third-party conduct at issue.
4
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For example, Murray’s standing affidavit states that several of its power plant
customers anticipate converting coal-fired units to other fuel sources in the
foreseeable future. These plans often are not characterized as a response specifically
to the Proposed Rule, however, but rather to the cumulative regulatory burden under
other, final regulations that EPA previously promulgated, such as the MATS Rule. See
Murray Decl. ¶¶ 20, 25. Elsewhere, Murray simply states in conclusory fashion that
certain customers’ power plants have shut down or are slated for closure, without
providing any reasons for these customers’ decisions. Id. ¶ 24. Another power plant
reportedly faces “uncertainty” about whether it will continue operating beyond 2020,
but Murray does not identify that plant as a customer. Id. ¶ 22.
Murray also relies on reports identifying regional and national trends towards
reduced coal production, and the industry-wide conversion of many coal-fired power
plants to natural gas or other fuel sources. But these patterns of industry behavior
emerged years before EPA published the Proposed Rule. See Murray Decl. ¶¶ 17-195;
see also 77 Fed. Reg. 22,392, 22,399 (April 13, 2012) (preamble to April 2012 proposal
under section 7411(b)); 79 Fed. Reg. at 34,863. As discussed in EPA’s preamble
statements, there are numerous economic factors independent of EPA’s air
regulations that may explain these long-term trends towards increased use of natural
Murray also cites one report predicting that the Proposed Rule will result in reduced
coal generation capacity in Texas. Id. ¶ 21. Murray has no coal production
operations in Texas, nor supplies any power plant customers there. Id. ¶¶ 9, 13.
5
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gas and decreased use of coal in power generation, and Murray’s standing affidavit
makes no attempt to address such factors. Nor has Murray shown a “substantial
likelihood” that power plants will reverse these trends if the Court sets aside the
Proposed Rule. See Crete Carrier Corp. v. EPA, 363 F.3d 490, 494 (D.C. Cir. 2004)
(trucking companies lacked standing to challenge rule regulating engine manufacturers
because “‘it is entirely conjectural whether the nonagency activity’ (that is, the engine
manufacturers’ production decisions) affecting the prices of tractors . . . ‘will be
altered or affected’ should the EPA rescind [it]”) (quoting Lujan, 504 U.S. at 571). In
short, Murray’s affidavit would fail even if EPA had completed its rulemaking process.
C.
The Intervenors also lack Article III standing.
If the Court finds that Murray lacks standing, then the Intervenors in support
of Murray also are subject to Article III standing requirements. See Arizonans for
Official English v. Arizona, 520 U.S. 43, 65 (1997). None of the Intervenors can
stand in Murray’s shoes, however, because they did not file within sixty days after
Federal Register publication of the Proposed Rule. 42 U.S.C. § 7607(b)(1); Okla.
Dep’t of Envtl. Quality (“ODEQ”) v. EPA, 740 F.3d 185, 191 (D.C. Cir. 2014) (time
limit is jurisdictional); see Doc Nos. 1520421 & 1523376 (motions to intervene in
Case No. 14-1112 filed by National Federation of Independent Businesses and Utility
Air Regulatory Group, respectively, on Nov. 3 & Nov. 19, 2014); 1523876 (joint
notice of intention to intervene filed by State Intervenors on Nov. 21, 2014); 1529468
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(motion to intervene filed by Peabody Energy Corp. on Dec. 29, 2014).6 Even if not
untimely, the Intervenors’ standing assertions would fail for the reasons discussed
above or in EPA’s brief in the related petition brought by states. See Brief for EPA in
Case No. 14-1146 at 11-22 (Doc No. 1533964).
II.
THE COURT LACKS JURISDICTION OVER MURRAY’S DIRECT
CHALLENGE TO THE PROPOSAL FOR ADDITIONAL REASONS.
Murray bears the burden of demonstrating that the Court has subject-matter
jurisdiction. Kokkonen v. Guardian Life Ins. Co., 511 U.S. 375, 377 (1994). Its
invocation of the All Writs Act does not change that requirement. See In re Tennant,
359 F.3d 523, 527 (D.C. Cir. 2004) (quoting Steel Co. v. Citizens for a Better Env’t,
523 U.S. 83, 94-95 (1998)); infra Argument III. Murray cannot meet that burden here,
because a “proposed” rule is neither “final action” nor ripe for judicial review.
A.
Under the plain text of the Act, neither the Proposed Rule nor the
supporting legal memorandum is a “final action.”
Section 307(b)(1) of the Act, 42 U.S.C. § 7607(b)(1), governs judicial
review of EPA’s nationally applicable air regulations and is an exclusive remedy. Id.
§ 7607(e); ODEQ, 740 F.3d at 191. It lists specific, nationally applicable actions that
are subject to judicial review – including action “promulgating . . . any standard of
Moreover, “investor perceptions of the short-term impacts of the Proposed Rule on
Peabody’s business” are not a cognizable injury under Article III. Peabody Br. at 8
(Doc. No. 1529726); see Perciasepe, 714 F.3d at 1323 (consent agreement did not
cause injury despite claimant’s belief that EPA “likely” would “promulgate a rule
economically harmful to” energy companies); cf. Gen. Elec. Co. v. Jackson, 610 F.3d
110, 121-22 (D.C. Cir. 2010).
6
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performance or requirement under [42 U.S.C. § 7411]” – along with “any other
nationally applicable regulations promulgated, or final action taken, by the Administrator
under this chapter.” 42 U.S.C. § 7607(b)(1) (emphasis added).
Murray relies on a truncated reading of this last phrase to suggest that although
Congress expressly made only “promulgated” standards or requirements under
section 7411 reviewable, it also intended to make proposed requirements under this
section subject to judicial review when it referred to review of “any other . . . final
action.” Pet.Br. 38. Murray further contends that because the Proposed Rule was
signed by the Administrator, both the proposal and its supporting legal memorandum
are “presumptively final.” Pet.Br. 48. Murray errs on both counts.
With respect to Murray’s first argument, the plain text of the Act’s general
rulemaking provision, 42 U.S.C. § 7607(d), unambiguously mandates the procedures
by which EPA first “proposes” and then “promulgates” all notice-and-comment rules
subject to that provision, which include all such rules under section 7411. See id.
§ 7607(d)(1)(C). Section 7607(d) makes clear that only a promulgated rule consummates
the rulemaking process. Specifically, the Act states that “proposed rules” are to be
made available for public comment in the Federal Register and must include a notice
specifying the period available for public comment. Id. § 7607(d)(3). “Promulgated
rules,” in contrast, are only issued after the public comment period and must be
accompanied, inter alia, by “an explanation of the reasons for any major changes in
the promulgated rule from the proposed rule,” and “a response to each of the
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significant comments, criticisms, and new data submitted in written or oral
presentations during the comment period.” Id. § 7607(d)(6)(A)(ii), (B).
Because the Act is so precise in referring to “proposed” and to “promulgated”
rules, giving each term a distinct meaning, the fact that the judicial review provision in
42 U.S.C. § 7607(b)(1) only refers to “promulgated,” not proposed, rules when
describing actions that are subject to this Court’s review is dispositive. “It 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.” So. Coast Air Quality
Mgmt. Dist. v. EPA, 472 F.3d 882, 894 (D.C. Cir. 2006) (internal quotation omitted);
see, e.g., City of Chicago v. Envtl. Def. Fund, 511 U.S. 328, 337-38 (1994). Had
Congress intended that proposed rules be subject to immediate judicial review, it
could readily have made that clear by including “action proposing or promulgating
[requirements under section 7411 and other listed items]” on the list of specific
actions subject to review. Congress chose, instead, specifically to authorize review
only of final action “promulgating” such requirements.
The fact that 42 U.S.C. § 7607(d)(7)(B) limits judicial review to “[o]nly” those
objections “raised with reasonable specificity during the period for public comment
(including any public hearing)” further supports the conclusion that only
“promulgated,” not “proposed” rules governed by section 7607(d)’s procedures are
subject to judicial review. If a claimant could petition for review of a proposed rule
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without first submitting comments and awaiting EPA’s final action in response to
those comments, this limitation would make no sense.
Moreover, when the phrase “other . . . final action taken” is read in conjunction
with the earlier list of specific “promulgated” actions – rather than reading the latter
phrase in isolation as Murray does – it becomes clear that “other . . . final action”
logically refers not to any of the specific “promulgated” regulations already listed as
reviewable (such as requirements under section 7411), but to other types of final
actions EPA may take that do not involve notice and comment.7 Reading this phrase
to also encompass judicial review of “proposed requirements under section 7411”
would effectively nullify the Act’s provisions mandating the procedures by which such
requirements may be made final through “promulgation.” See Whitman v. Am.
Trucking Ass’ns, 531 U.S. 457, 485 (2001) (Act may not be construed in a manner
that “nullifies textually applicable provisions”). Congress’ choice not to subject
proposed rules to judicial review until they are “promulgated” must be given effect.
That the Act provides for judicial review of promulgated regulations even if
they are the subject of administrative petitions for reconsideration (Pet.Br. 50) does
not contradict this plain reading of the statutory text. Whether or not a petition for
One example of a non-notice-and-comment “final” action of which this phrase
authorizes judicial review is an action under 42 U.S.C. § 7410(c)(1)(A) (“find[ing] that
a State has failed to make a [state implementation plan] submission . . .”).
7
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reconsideration has been filed, the relevant question for purposes of the judicial
review provision is whether the regulation has been “promulgated” in the manner the
Act requires. The Proposed Rule here has not.
Murray’s second contention – that EPA’s Proposed Rule and supporting legal
memorandum may be “presumed” final because of the Administrator’s signature on
the preamble, Pet.Br. 48-49 – is not supported by the case Murray cites. In National
Automatic Laundry and Cleaning Council v. Shultz, 443 F.2d 689 (D.C. Cir. 1971),
the Court reviewed a Department of Labor advisory letter issued pursuant to the Fair
Labor Standards Act. Id. at 689. Thus, not only was Schultz decided under a
different statute than the CAA and prior to the Supreme Court’s clarification of the
test for determining “finality” in Bennett v. Spear, 520 U.S. 154 (1997), but the Court
there did not suggest that a “presumption of finality” could apply to a “proposed rule”
published as part of a notice-and-comment process, as no such proposal was at issue.
Instead, the Court specifically limited the scope of its holding to “interpretative
rulings.” Shultz, 443 F.2d at 702.
However valid a presumption of finality may have been in the narrow set of
circumstances addressed by Shultz, it makes no sense in the context of the CAA’s
notice-and-comment rulemaking process. The CAA mandates that every “proposed
rule” subject to the rulemaking procedures in section 7607(d) be accompanied by a
“statement of basis and purpose” that includes, inter alia, “the major legal
interpretations . . . underlying the proposed rule.” 42 U.S.C. § 7607(d)(3)(C). Thus,
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by setting forth relevant legal interpretations in the preamble to the Proposed Rule
and supporting legal memorandum (see Pet.Br. 45-47), EPA was merely taking a step
that the Act requires for any proposed rule governed by section 7607(d).
Moreover, the Administrator routinely signs proposed rules that are nationwide
in scope, such as this one, because the Administrator is the only agency official
authorized to take such administrative action. Thus, were the Court to adopt
Murray’s “presumption,” every proposed nationwide air rule could potentially be
considered “final” and immediately reviewable in this Court without waiting for the
conclusion of the rulemaking process. Were such a precedent established, claimants
that disagree with EPA’s legal interpretations in any future proposed rule under the
CAA likely would be forced to sue within sixty days of publication of the proposal in
order to avoid the risk that their challenge might otherwise be deemed untimely.8
In short, Murray’s suggested approach for determining “finality” is wholly at
odds with the text of the Act’s rulemaking and judicial review provisions and would
destroy the orderly scheme that Congress established. Dismissing Murray’s petition,
in contrast, would uphold the “prescribed order of decisionmaking” in which “the
first decider under the Act is the expert administrative agency, the second, federal
judges.” Am. Elec. Power Co., Inc. v. Connecticut, 131 S. Ct. 2527, 2539 (2011).
8
See 42 U.S.C. § 7607(b)(1).
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Murray cannot satisfy either prong of the Bennett finality test.
1.
The Proposed Rule did not consummate the rulemaking process.
Although it is clear that the Proposed Rule and supporting legal
memorandum are not final actions for the reasons explained above, the familiar
finality test articulated in Bennett reinforces this conclusion, as this Court
held when dismissing premature challenges to EPA’s 2012 proposed rule under
section 7411(b). Las Brisas Energy Ctr., LLC v. EPA, No. 12-1248 & consolidated
cases (Order dated Dec. 13, 2012) (Attach. A).
To be final, an action (1) “must mark the consummation of the agency’s
decisionmaking process” and “must not be [] merely tentative or interlocutory”; and
(2) it “must be one by which rights or obligations have been determined, or from
which legal consequences will flow.” Bennett, 520 U.S. at 177-78. Murray cannot
demonstrate that the first criterion is met here, because the Proposed Rule clearly
does not represent “the consummation of [EPA’s] decision-making process.” The
process by which the Administrator promulgates “standards of performance” and
other “requirements” under section 7411 is prescribed by 42 U.S.C. § 7607(d) as
shown above, and EPA indisputably has not completed that process. Therefore, the
Proposed Rule is an “interlocutory” action. Bennett, 520 U.S. at 178.
The Proposed Rule is also “tentative,” id., in that EPA has sought comments
on all aspects of the proposal – including on the legal questions at the heart of
Murray’s challenge – and EPA may modify its final action in any number of ways in
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response to those comments. See 79 Fed. Reg. at 34,853/2 (EPA “solicits comment
on all aspects of its legal interpretations, including the discussion in the Legal Memorandum”)
(emphasis added); id. at 34,835/2 (EPA seeks “public comment on all aspects of this
proposal”). Hypothetically, it would be well within EPA’s administrative discretion to
issue a supplemental proposal, issue a modification to the Proposed Rule, or even
withdraw it entirely if the Administrator determined, after consideration of the
comments, that such action was appropriate. See 79 Fed. Reg. 1352 and 79 Fed. Reg.
1430 (Jan. 8, 2014) (notices withdrawing April 2012 proposal and substituting a new,
substantially different proposal under section 7411(b)).
Murray insists that the legal interpretations in the preamble and supporting
legal memorandum are phrased in an “unequivocal” or conclusive manner, and argues
that because EPA employed such phrasing, the Court may review the Proposed Rule
despite the acknowledged possibility that EPA may not promulgate a rule or may
modify the proposal. See generally Pet.Br. 45-55. But the absence of hedge-words
does not render a “proposed” notice-and-comment rule definitive. While courts
sometimes ascertain finality based on the agency’s choice of language or other
contextual clues in cases involving agency letters,9 guidance statements,10 or other
9
E.g,. Harrison v. PPG Indus., Inc., 446 U.S. 578 (1980).
E.g., Appalachian Power Co. v. EPA, 208 F.3d 1015, 1028 (D.C. Cir. 2000).
Murray’s reliance on Appalachian Power is especially ironic, since the Court held that
it was error to adopt a guidance statement without going through notice and
comment. 208 F.3d at 1028. Here, Murray seeks to thwart the notice-and-comment
10
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actions not subject to statutory notice-and-comment rulemaking requirements,11 here
the decision-making process EPA must follow is spelled out in the Act itself.
Murray’s reliance on Whitman v. American Trucking Associations, 531 U.S.
457 (2001), is also misplaced (Pet.Br. 49, 51, 57). There, the Supreme Court held that
an interim policy for implementing NAAQS was reviewable, in part, because EPA
had published the policy in conjunction with the proposed rule and then adopted the
policy in the preamble to the final rule “in light of” the comments it received. Id. at
477-79. Here, in contrast, EPA’s challenged preamble and supporting legal
memorandum have only been published with the Proposed Rule for the purpose of
seeking comments on EPA’s legal interpretations, and EPA has not yet considered and
responded to those comments as the Act requires.
2.
Proposing a rule creates no binding legal consequence.
Murray asserts that the second prong of Bennett’s test is satisfied (Pet.Br. 5557), but never explains how EPA’s mere publication of a rulemaking proposal could
impose legal consequences or determine rights or obligations. Bennett, 520 U.S. at
177-78. No state or potentially regulated entity – let alone Murray – is “required” to
process by asking the Court to review the merits before EPA has the opportunity to
consider and respond to the comments it received.
E.g., Sackett v. EPA, 132 S. Ct. 1367, 1369 (2012) (administrative compliance order).
Other cases are irrelevant because they did not address finality. E.g., Athlone Indus.
v. Consumer Prod. Safety Comm’n, 707 F.2d 1485 (D.C. Cir. 1983).
11
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do anything based on the Proposed Rule. Only a final regulation promulgated in
conjunction with EPA’s responses to comments would have such effect.
C.
Murray’s challenges are unripe.
In assessing ripeness, this Court “focus[es] on . . . the ‘fitness of the issues for
judicial decision’ and the extent to which withholding a decision will cause ‘hardship
to the parties.’” Am. Petroleum Inst. (“API”) v. EPA, 683 F.3d 382, 387 (D.C. Cir.
2012) (quoting Abbott Labs. v. Gardner, 387 U.S. 136, 149 (1967)). “[A] dispute is
not ripe if it is not fit . . . and . . . it is not fit if it does not involve final agency action.”
Holistic Candlers & Consumers Ass’n v. Food & Drug Admin., 664 F.3d 940, 943 n.4
(D.C. Cir. 2012) (internal citations omitted).
Because fitness is so plainly lacking when a claimant seeks judicial review of a
legal dispute that may be mooted by the outcome of a pending notice and comment
rulemaking process, this Court historically has dismissed such claims as unripe. See,
e.g., API, 683 F.3d at 386; Atlantic States Legal Found. v. EPA, 325 F.3d 281, 284
(D.C. Cir. 2003); Utility Air Regulatory Group v. EPA, 320 F.3d 272, 278-79 (D.C.
Cir. 2003); Action on Smoking & Health v. Dep’t of Labor, 28 F.3d 162, 165 (D.C.
Cir. 1994); accord Las Brisas (Order dated Dec. 13, 2012) (Attach. A); see also Brief
for EPA in Case No. 14-1146 at 28-31. This Court should likewise dismiss Murray’s
premature petition.
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THE COURT LACKS JURISDICTION TO ISSUE A WRIT OF
PROHIBITION TO STOP THE ONGOING RULEMAKING.
Murray cannot overcome the non-final nature of the action it challenges by
invoking the All Writs Act. Murray attempts to convince the Court otherwise by
mixing together disparate bits of All Writs Acts jurisprudence, with a dash of the
collateral order doctrine and other inapposite case law thrown in for good measure.
See Pet.Br. at 39-41. But Murray’s writ request remains half-baked. The All Writs
Act does not confer jurisdiction where it is otherwise lacking; a writ is unavailable
where there is another legal remedy; and writ issuance is a rare occurrence that has
been confined to limited categories of circumstances, none of which apply here.
A.
A writ may issue to aid, but not enlarge, jurisdiction.
Murray ignores key constraints on the Court’s authority under the All Writs
Act. That act “is not itself a grant of jurisdiction.” In re Tennant, 359 F.3d 523, 527
(D.C. Cir. 2004). Rather, it “confines the [court’s] authority to the issuance of process
‘in aid of’ the issuing court’s jurisdiction” and “does not enlarge that jurisdiction.”
Clinton v. Goldsmith, 526 U.S. 529, 534-35 (1999). It “can never provide jurisdiction
to a court that does not and would not otherwise have jurisdiction.” Ayuda, Inc. v.
Thornburgh, 948 F.2d 742, 755 (D.C. Cir. 1991) (vacated on other grounds).
Here, entertaining a challenge to the ongoing section 7411(d) rulemaking would
impermissibly enlarge the Court’s jurisdiction. As discussed above, it is wellestablished that courts only have jurisdiction to review final agency action. Allowing
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Murray to challenge the Proposed Rule would allow parties to bypass the limitations
imposed by Congress in 42 U.S.C. § 7607(b)(1), thus enlarging the Court’s
jurisdiction. Ayuda, 948 F.2d at 755 (“Surely” a “court may not use the All Writs Act
to exercise jurisdiction over an agency . . . before a case is ripe or the agency's action is
final. Otherwise . . . courts could easily circumvent those jurisdictional bars.”).
Moreover, premature review of the rulemaking would impede, not aid, the
Court’s exercise of its jurisdiction, as it places the Court in the position of having to
review an agency position that is not fully developed. As this Court explained in
Telecomms. Research & Action Ctr. v. FCC (“TRAC”), 750 F.2d 70, 79 (D.C. Cir.
1984) (quotation omitted), “[p]ostponing review until relevant agency proceedings
have been concluded permits an administrative agency to develop a factual record,
[and] to apply its expertise to that record.” Murray suggests that those steps are
unnecessary here because its challenge “focuses exclusively on the legal basis” for the
rulemaking and “will never be clearer.” Pet.Br. 43. But that ignores the value of
comments received from Murray and others on the issue raised. Such comments – of
which EPA has received many – may alter EPA’s or the Court’s analysis. Indeed, if
an issue is not raised in comment with reasonable specificity, it cannot be raised on
judicial review. See 42 U.S.C. § 7607(d). This further underscores that Murray’s
challenge is inconsistent with the review process Congress prescribed in the Act.
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A writ is only available where there is no other legal remedy.
A writ is “an extraordinary remedy that is not available when review by other
means is possible.” TRAC, 750 F.2d at 78. Here, the Clean Air Act already provides
a specific remedy for an allegedly “ultra vires” rule: review under its judicial review
provision, 42 U.S.C. § 7607(b)(1), once the rule is final. Thus, “review by other
means” is not only possible, but certain here.
Murray suggests, with much hyperbole, that review of the final rule is not an
adequate remedy because states and industry will have to expend resources before the
rule is finalized. Pet.Br. 42-43 (complaining that the “specter of the mandate” may
force coal plants to shut down, and “States must immediately devote tremendous time
and resources”). As discussed in Section I, that claim is factually unsubstantiated. But
in any event, such concerns do not justify issuing a writ where the challenged action
will be reviewable in the normal course. See Public Util. Comm’r of Or. v. Bonneville
Power Admin., 767 F.2d 622, 630 (9th Cir. 1985) (rejecting argument that writ should
issue because delay would cause irreparable harm).
C.
An extraordinary writ may issue only in certain circumstances.
Because an extraordinary writ may only issue “in aid of” a court’s jurisdiction,
courts have entertained petitions for a writ only in certain narrow categories of
circumstances, otherwise concluding that jurisdiction is lacking.
First, “[t]he traditional use of the writ in aid of appellate jurisdiction . . . has
been to confine an inferior court to a lawful exercise of its prescribed jurisdiction or
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to compel it to exercise its authority when it is its duty to do so.” Roche v.
Evaporated Milk Ass’n, 319 U.S. 21, 26 (1943); see also I.C.C. v. U.S. ex rel.
Campbell, 289 U.S. 385, 394 (1933) (“Mandamus is an appropriate remedy to compel
a judicial officer to act. It may not be used as a substitute for an appeal . . . ”).
Second, appellate courts have issued writs to address non-jurisdictional lower
court action where “resolution of an important, undecided issue will forestall future
error in trial courts, eliminate uncertainty and add importantly to the efficient
administration of justice.” Colonial Times, Inc. v. Gasch, 509 F.2d 517, 524 (D.C.
Cir. 1975). Such cases have generally addressed discovery orders, see, e.g.,
Schlagenhauf v. Holder, 379 U.S. 104 (1964), which “are often collateral to the
litigation and thus lost to appellate review . . . .” Gasch, 509 F.2d at 526.
Third, courts “have the authority, under the All Writs Act, 28 U.S.C. § 1651, to
issue a writ of mandamus” in regard to agency action where an agency has
“unreasonably delayed” taking action required of it by law. Sierra Club v. Thomas,
828 F.2d 783, 795-96 (D.C. Cir. 1987); TRAC, 750 F.2d at 76 (court had jurisdiction
over petition for a writ of mandamus alleging unduly lengthy delay by the FCC in
responding to complaint).12 The delayed action must lie within the Court’s future
jurisdiction, see Tennant, 359 F.3d at 529, and issuance of the writ must be necessary
After Thomas and TRAC, Congress amended the Clean Air Act so that
unreasonable delay claims are now heard in district court. See 42 U.S.C. § 7604(a).
12
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“to protect [that] future jurisdiction.” TRAC, 750 F.2d at 76. In other words, the
court may only assume jurisdiction if “the agency might forever evade our review and
thus escape its duties [while] we awaited final action.” Thomas, 828 F.2d at 793.
Murray’s petition fits into none of these three categories. It does not address a
lower court’s exercise of jurisdiction it lacks or refusal to exercise jurisdiction, but
rather the substance of administrative action. It also does not fit into the
Gasch/Schlagenhauf category, not only because it does not address lower court
action, but also because the goals of preventing similar errors and furthering the
“efficient administration of justice” by addressing an issue that might otherwise evade
review are not in play here. To the contrary, “[r]efusing intervention in current
agency proceedings ensures against premature, possibly unnecessary, and piecemeal
judicial review.” Bonneville Power, 767 F.2d at 629. The issue Murray raises can be
addressed when a final rule is before this Court. While that issue may be important
and undecided, “[n]ot every issue of first impression or every ‘basic, undecided’
problem should be the basis for mandamus relief.” Gasch, 509 F.2d at 525.
The third category – the only one addressing agency action as opposed to lower
court action – is also inapposite because, unlike in TRAC and the other cases in this
vein, Murray does not challenge agency delay that might frustrate the Court’s review of
final action. Rather, it is Murray that would deprive the Court of the opportunity to
review a final rule by demanding that the agency take no action.
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Murray attempts to overcome the traditional limitations on the availability of an
extraordinary writ by cobbling together isolated aspects of some of the above cases,
while ignoring the corresponding limitations. Murray relies heavily on Gasch and
Schlagenhauf as authorizing review of “new and important problems” (Pet.Br. 39) – a
label that could apply to any number of cases – but conveniently ignores that those
cases were limited to addressing district court discovery orders that might have
otherwise been “lost to appellate review.” Gasch, 509 F.2d at 526. Petitioner points
to Thomas and TRAC as holding that the Court can review non-final agency action
(Pet. at 24), but glosses over the limitation of those holdings to undue delay claims
where the court’s opportunity to review the agency’s action might be frustrated by a
failure to take action. Thomas, 828 F.2d at 793; TRAC, 750 F.2d at 76. Petitioner
also fails to mention that the Court declined to issue the writ in both cases. Id.
D.
No authority supports the issuance of a writ here.
Apparently recognizing that the All Writs Act is insufficient to achieve its ends,
Murray turns to several other inapposite doctrines and cases. Pet.Br. 40-41. Not one
of them supports its arguments.
Murray cites McCulloch v. Sociedad Nacional, 372 U.S. 10 (1963), as holding
that a court can enjoin non-final action that involves “public questions particularly
high in the scale of our national interest.” Pet.Br. at 40. But no party challenged
jurisdiction in that case, regarding whether the NLRB could hold an election on a
Honduran ship. Addressing jurisdiction on its own initiative, the Court noted that the
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NLRB’s action “aroused vigorous protests from foreign governments,” creating “a
uniquely compelling justification for prompt judicial resolution of the controversy.”
372 U.S. at 16-17. While the Proposed Rule has certainly drawn “vigorous protests”
from Murray and others, such protests – which occur often in agency rulemakings –
do not present the same type of “compelling justification” for bypassing normal
jurisdictional rules as the international incident at issue in McCulloch.
Murray also relies on Leedom v. Kyne, 358 U.S. 184, 187-91 (1958). But there,
the National Labor Relations Board conceded that the district court had jurisdiction
under a general review provision, unless the National Labor Relations Act specifically
deprived it of such jurisdiction. Id. Here, there is no such general grant of
jurisdiction that allows review of non-final EPA action, and the All Writs Act cannot
fill that void. As discussed above, it does not “enlarge” the Court’s jurisdiction.
Finally, Murray relies on Meredith v. Federal Mine Safety and Health Review
Commission, 177 F.3d 1042 (D.C. Cir. 1999), for the proposition that the Court may
review non-final action under the collateral-order doctrine. Pet.Br. at 41. But Murray
offers no support for its bare assertion that the prerequisites for application of that
doctrine – conclusiveness and unreviewability – have been met, even though the
challenged rulemaking has not concluded and the Court will have the opportunity to
review the resulting final rule under 42 U.S.C. § 7607(b)(1) once it does.
Murray’s argument for issuance of an extraordinary writ is, in essence, that the
challenged rulemaking is really important. But even if true, that is not enough. There
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is simply no authority for the remarkable proposition Murray advances: that the
Court can halt an ongoing rulemaking under the auspices of the All Writs Act. As in
other cases where a party has attempted to use that limited tool to achieve a novel
end, the Court should reject this argument. See In re Bluewater Network, 234 F.3d
1305, 1312 (D.C. Cir. 2000) (“petitioners cannot use the present mandamus action to
challenge the substance of” temporary regulations).
IV.
THE COURT SHOULD NOT STOP THE RULEMAKING BASED
ON ONE INTERPRETATION OF AN AMBIGUOUS PROVISION.
If it reaches the merits, the Court should decline to take the extreme step of
ordering EPA to stop an ongoing rulemaking based on Murray’s preferred
interpretation of a patently ambiguous provision.
To prevail on the merits at this preliminary stage, Murray must show that its
interpretation of section 7411(d) of the Act – under which EPA is barred from
addressing non-hazardous pollutants emitted by a source category because it has
regulated hazardous pollutants from that source category – is clearly and indisputably
the only possible way to interpret that provision. See Chevron, U.S.A., Inc. v.
Natural Resources Def. Council, 467 U.S. 837 (1984) (a court must accept an
agency’s reasonable construction of an ambiguous provision); In re United States,
925 F.2d 490, 1991 WL 17225, at *2 (D.C. Cir. Feb. 11, 1991) (a writ may issue only
where the “right to issuance . . . is ‘clear and indisputable’”) (quoting Kerr v. U.S.
Dist. Court for N. Dist. of Cal., 426 U.S. 394, 403 (1976)).
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Murray cannot make that showing. The text of section 7411(d), even as
amended by the House alone, does not require Murray’s interpretation; the legislative
history and statutory context do not favor it; and Murray improperly discounts the
Senate’s amendment to section 7411(d), which would plainly allow EPA to regulate
power plants’ emissions of carbon dioxide. Moreover, even under Murray’s
interpretation of section 7411(d), EPA would still have the authority to regulate
natural gas plants; thus, in seeking to halt the rulemaking (which addresses both coaland natural gas-fired plants) in its entirety, Murray is seeking relief that would
preclude EPA from exercising authority that even Murray does not dispute EPA has.
EPA must have the opportunity to proffer its own interpretation of section
7411(d), addressing all of the above, after completing its analysis and considering the
comments it has received from Murray, Intervenors, and thousands of others. Then,
this Court can properly consider whether that interpretation is reasonable in light of
the statute’s text, context, and legislative history, as well as common sense.
A.
Section 7411(d) need not be read as Murray insists.
Murray contends that there is only one way to read section 7411(d): as barring
regulation thereunder of all emissions from a source category once that source
category’s hazardous emissions have been regulated under section 7412. Not so. As
EPA has previously explained,13 that provision – even as amended by the House only
Because EPA discussed these alternative interpretations at length in both its
Response to [Writ] Petition in this case (p.28-30) and in its brief in the companion
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– is rife with ambiguity and subject to several other possible interpretations. All
except Murray’s proposed reading would authorize regulation of non-hazardous
pollutants, such as carbon dioxide, emitted by power plants.
First, the literal text of the House-amended version of section 7411(d) (set
forth in the U.S. Code) can be read as authorizing EPA to address power plant
emissions under that provision so long as the pollutant in question (here, carbon
dioxide) is not a criteria pollutant. This interpretation is apparent once one focuses
on the way the three qualifying clauses in the text are joined:
The Administrator shall prescribe regulations . . . under which each State
shall submit to the Administrator a plan which (A) establishes standards of
performance for any existing source for any air pollutant [1] for which air
quality criteria have not been issued or [2] which is not included on a list
published under section 7408(a) of this title or [3] emitted from a source
category which is regulated under section 7412 of this title . . . .
42 U.S.C. § 7411(d)(1) (emphasis and internal numbering added). Because Congress
used the conjunction “or” rather than “and” between the three clauses, they would be
more naturally read as alternatives, rather than requirements to be imposed
simultaneously.14 In other words, the literal language of section 7411(d) provides that
the Administrator may require states to establish standards for an air pollutant so long
case West Virginia v. EPA, No. 14-146 (Brief for Respondent pp.35-40), it will
provide a more condensed treatment here.
Merriam Webster defines “or” as “a function word [used] to indicate an alternative
.” At http://www.merriamwebster.com/dictionary/or.
14
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as either air quality criteria have not been established for that pollutant, or one of the
remaining criteria is met. Air quality criteria have not been issued for CO2; thus,
whether power plants have been regulated under section 7412 is arguably irrelevant.
Section 7411(d) could also be literally read as requiring regulation of power
plant carbon dioxide emissions because of the lack of a negative before the third
clause. Petitioner presumes that the negative from the second clause was intended to
carry over, implicitly inserting another “which is not” before “emitted from a source
category.” But the text (as amended by the House) says that EPA “shall” require
standards for “any air pollutant . . . emitted from a source category which is regulated
under section 7412.” 42 U.S.C. § 7411(d)(1). Thus, section 7411(d) can also be
literally read as requiring EPA to regulate emissions of a pollutant from a source
category if that category is regulated under section 7412.
Next, the House chose to use the term “regulated,” which is inherently
ambiguous. As the Supreme Court has explained, when interpreting that term, an
agency must consider what is being regulated. See Rush Prudential HMO, Inc. v.
Moran, 536 U.S. 355, 366 (2002) (It is necessary to “pars[e] . . . the ‘what’” of the term
“regulates.”); UNUM Life Ins. Co. of Am. v. Ward, 526 U.S. 358, 363 (1999) (the
term “‘regulates insurance’ . . . require[s] interpretation, for [its] meaning is not
‘plain.’”) Here, the “what” being “regulated under section 7412” is a source category’s
emission of specific hazardous pollutants. Thus, EPA could reasonably conclude that
it is only precluded from regulating sources in regard to a particular pollutant under
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section 7411(d) if those sources are already “regulated under section 7412” with respect
to that same pollutant. This is precisely the sort of “reasonable, context-appropriate
meaning” that the Supreme Court has directed EPA to give such ambiguous terms.
Utility Air Regulatory Group v. EPA (UARG), 134 S. Ct. 2427, 2440 (2014).
Moreover, the phrase “which is regulated under section 7412” is ambiguous in
regard to the object(s) it modifies. Petitioner assumes it modifies “source category,”
but it may also or instead modify “air pollutant.” “As enemies of the dangling
participle well know, the English language does not always force a writer to specify [to
what] . . . a modifying phrase relates.” Young v. Cmty. Nutrition Inst., 476 U.S. 974,
980-81 (1986) (FDA’s interpretation therefore gets Chevron deference). If Congress
intended the phrase “which is regulated . . .” to modify “air pollutant,” then regulation
would be barred only if a source category was already regulated under section 7412 for
the same pollutant EPA sought to regulate under section 7411(d).
Finally, the clause “emitted from a source category which is regulated under
section 7412” is ambiguous as a whole because it modifies the ambiguous phrase “any
air pollutant.” 42 U.S.C. § 7411(d). As the Supreme Court recently noted, “any air
pollutant” is routinely given a “context-appropriate meaning.” UARG, 134 S. Ct. at
2439. Here, context suggests that “any air pollutant” “emitted from a source category
which is regulated under section 7412” should be understood as referring only to any
hazardous air pollutants, since hazardous pollutants are what section 7412 addresses.
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Murray addresses none of these textual ambiguities. Rather, it blithely asserts
that “[t]he Supreme Court has . . . already confirmed . . . that the text of Section
[74]11(d) as reflected in the United States Code prohibits EPA from mandating stateby-state standards . . . .” Pet.Br. 17.15 The Supreme Court has done no such thing.
In a footnote in American Electric Power v. Connecticut, the Court said:
“EPA may not employ § 7411(d) if existing stationary sources of the pollutant
in question are regulated under the national ambient air quality standard
program §§ 7408-7410, or the ‘hazardous air pollutants’ program, § 7412.”
131 S. Ct. 2527, 2537 n.7 (2011) (“AEP”). First, the issue presented here – whether
section 7411(d) bars regulation of all emissions from a source category once hazardous
emissions from that category have been regulated under section 7412 – was not raised
or addressed in AEP. To the contrary, industry petitioners asserted in briefing that
“EPA may . . . require States to submit plans to control” power plants’ greenhouse
Murray also claims that EPA has “acknowledged that the text of Section
[74]11(d) . . . unambiguously prohibits doubly regulating existing source categories.”
Not true. As discussed in EPA’s brief in West Virginia (pp.51-53), while, in the
preamble to a 2005 rule that was overturned, EPA stated that the interpretation of 42
U.S.C. § 7411(d) advanced by Murray here was “a literal reading” of that text
(emphasis added), it nevertheless concluded that the text was ambiguous, not only
because of the Senate amendment, but also because of context and legislative history.
See 70 Fed. Reg. 15,994, 16,031-32 (Mar. 29, 2005) (“Such a reading would be
inconsistent with the general thrust of the 1990 amendments . . . . We do not believe
that Congress sought to eliminate regulation for a large category of sources . . .”). No
party disagreed. Rather, the question raised then was whether section 7411(d)
authorized regulation thereunder of a hazardous pollutant where that pollutant was
listed, but not actually regulated, under section 7412. In any event, EPA is not tied to
statements in the preamble of a vacated rule, and it should not be criticized for failing
to explore all possible meanings of the House amendment in that context, particularly
given that the argument Murray now asserts was not raised in that rulemaking.
15
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gas emissions under 42 U.S.C. § 7411(d), 16 and reiterated at argument – which took
place after EPA proposed the MATS Rule – that EPA has “the authority to consider
[greenhouse gas] standards under section [74]11.”17
Furthermore, the phrase “of the pollutant in question” arguably indicates that
the Supreme Court understood the prohibition to be pollutant-specific. The structure
of the Court’s statement also so suggests, as the Court’s references to the NAAQS
program and hazardous pollutant program are parallel, and it is indisputable that the
NAAQS exclusion is criteria-pollutant specific.18 Thus, if the Supreme Court’s dicta
in AEP means what Murray believes, then it is at least half wrong.
Finally, the holding of AEP – that section 7411 “speaks directly to emissions of
[CO2] from the defendants’ [power] plants,” 131 S. Ct. at 2537 – undercuts Murray’s
position, particularly since it post-dates the issuance of the final MATS Rule.
The Supreme Court has not yet grappled with the myriad ambiguities of section
7411(d), and its passing reference to the language of that provision in AEP does not
inform the analysis here. What is evident, at this point, is that this is no “case of ‘clear
right’” concerning a “clear statutory provision,” TRAC, 750 F.2d at 79, and so the
Court should neither issue a writ of prohibition nor set aside the Proposed Rule.
16
Brief for Pet’s, No. 10-174, 2011 WL 334707, at *6-7.
17
Transcript, 2011 WL 1480855, at *16-17.
See 42 U.S.C. § 7411(d)(“The Administrator shall prescribe regulations . . . [requiring
states to] establish[] standards of performance for any existing source for any air
pollutant (i) for which air quality criteria have not been issued . . . ).
18
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The Act’s structure, purpose, context, and legislative history do
not favor Murray’s authority-nullifying interpretation of § 7411(d).
Statutory interpretation begins with the text, but does not end there. As this
Court has explained, “[t]he literal language of a provision taken out of context cannot
provide conclusive proof of congressional intent.” Bell Atlantic Telephone Cos. v.
F.C.C., 131 F.3d 1044, 1047 (D.C. Cir. 1997). Rather, the Court “must employ all the
tools of statutory interpretation, including . . . structure, purpose, and legislative
history.” Loving v. I.R.S., 742 F.3d 1013, 1016 (D.C. Cir. 2014) (internal quotation
omitted). Fully employed here, those tools favor a reading of section 7411(d) that
does not bar regulation thereunder of all emissions from a source simply because its
hazardous emissions are already regulated under section 7412.
1.
The Act’s structure and purpose conflict with Murray’s interpretation.
In assessing any interpretation of section 7411(d), the Court should consider
how the three main programs set forth in the Act work together. See UARG, 134 S.
Ct. at 2442 (a “reasonable statutory interpretation must account for . . . the broader
context of the statute as a whole”) (quotation omitted).
Congress designed section 7411(d) to work in tandem with the NAAQS and
section 7412 programs such that, together, the three programs cover the full range of
dangerous emissions from stationary sources. See supra pp. 3-5. Under Murray’s
reading, there would be a gaping hole in that coverage, leaving sources’ emissions of
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certain pollutants outside the Act’s scope. Such a result is starkly at odds with the
Act’s purpose of protecting “public health and welfare.” 42 U.S.C. § 7401(b)(1).
This Court should not rush to adopt an interpretation of section 7411 that is at
odds with the Act’s purpose and creates gaps in the otherwise-comprehensive scheme
designed by Congress in 1970. Rather, it should give EPA an opportunity to interpret
that provision so as to “make sense of the whole.” Bell Atl., 131 F.3d at 1047.
2.
The legislative history conflicts with Murray’s interpretation.
The legislative history of the 1990 Amendments also “makes it plain” that
Murray’s theory of section 7411(d) “is not a reasonable statutory interpretation.”
United States v. Vogel Fertilizer Co., 455 U.S. 16, 26 (1982). That history is replete
with language indicating that Congress sought to expand EPA’s regulatory authority
across the board, compelling the Agency to regulate more pollutants, under more
programs, more quickly.19 Conversely, no party has identified a single statement in
the legislative history indicating that Congress simultaneously sought to restrict EPA’s
See S. Rep. No. 101-228 at 133 (“the program to regulate hazardous air pollutants
. . . should be restructured to provide EPA with authority to regulate industrial and
area source categories of air pollution . . . in the near term”), reprinted in 5 Legis. Hist.
at 8473; S. Rep. No. 101-228 at 14 (“The bill gives significant authority to the
Administrator in order to overcome the deficiencies in [the NAAQS program]”),
reprinted in 5 Legis. Hist. at 8354; H.R. Rep. No. 101-952 at 336, 340, 345 & 347
(discussing enhancements to Act’s motor vehicle provisions, EPA’s new authority to
promulgate chemical accident prevention regulations, the enactment of the Title V
permit program, and enhancements to EPA’s enforcement authority), reprinted in 1
Legis. Hist. at 1786, 1790, 1795, & 1797.
19
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authority under the existing source performance standards program or to create gaps
in the comprehensive structure of the statute. This strongly suggests that both houses
simply intended to edit section 7411(d) to reflect the structural changes made to
section 7412; i.e., EPA’s new mandate to regulate the nearly 200 hazardous pollutants
Congress identified on a source category-by source category basis, rather than
regulating hazardous pollutants one-by-one. Indeed, that was the conclusion drawn by
the Congressional Research Service shortly after enactment of the 1990 Amendments.
1 Legis. Hist. at 46 n.1 (characterizing House and Senate amendments as “duplicative”
edits that “change the reference to section 112” using “different language”).
Lacking any contemporaneous historical evidence supporting its interpretation
of section 7411(d), Murray presents a theory as to why Congress might have wanted
to exempt all source categories regulated under section 7412 from any regulation
under section 7411(d): a supposed desire to prohibit “double regulation.” Pet.Br. 20.
Murray posits that “ban[ning] EPA from doubly regulating source categories under
both Sections [74]11(d) and [74]12” was “sensibl[e]” because those provisions might
impose “conflicting or unaffordable requirements.” Pet.Br. 19-20. Beyond the lack
of historical evidence supporting it, there are several things wrong with this theory.
First, sections 7412 and 7411 regulate different types of air pollutants –
hazardous and non-hazardous respectively – although a lay reader of Murray’s brief
would have no idea this was the case. If the section 7411 and section 7412 programs
addressed the same sets of pollutants, then Murray’s theory might make some sense,
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but there is obviously no “double regulation” when the two programs at issue address
different pollutants. Moreover, Murray provides no factual support for its suggestion
that the controls required under section 7412 to address hazardous emissions might
“conflict,” technologically, with the controls required under section 7411(d) to
address the emissions of other pollutants.
Second, instead of legislating to avoid any regulatory overlap between state and
federal programs as Murray theorizes (Pet.Br. 19), Congress in fact made it clear that
sources may be simultaneously subject to multiple regulatory programs. See 42 U.S.C.
§ 7416 (authorizing states to require sources already regulated under section 7412 or
other national standards to impose additional, more stringent state controls). Indeed, the
Title V program, enacted in 1990 and providing for the collection of all regulatory
requirements applicable to a source into one permit, would be largely unnecessary if a
source can only be subject to one program at a time.
Finally, Murray’s suggestion that Congress sought to bar all regulation under
section 7411(d) once a source category has been regulated under section 7412 in order
to avoid imposing “unaffordable requirements” is undercut by something Murray
itself points out: the fact that the standards set under those programs both
incorporate cost considerations. Pet.Br. 19; 42 U.S.C. §§ 7411(a)(1), 7412(d). Thus,
Congress addressed the issue of affordability by incorporating cost considerations into
the standard-setting process under both the section 7411(d) and 7412 programs, not
by exempting a source category from one of those programs.
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The statutory context is also at odds with Murray’s interpretation.
“Context serves an especially important role in textual analysis of a statute
when Congress has not expressed itself as unequivocally as might be wished.” Bell,
131 F.3d at 1047. Where the Court is “charged with understanding the relationship
between two different provisions within the same statute” – e.g., §§ 7411(d) and 7412
– it “must analyze the language of each to make sense of the whole.” Id.
Here, the text of section 7412 states that regulation of hazardous pollutants
under that section is not to “diminish or replace the requirements of” EPA’s
regulation of non-hazardous pollutants under section 7411. 42 U.S.C. § 7412(d)(7).
Under Murray’s reading, section 7412 standards for hazardous pollutants would
entirely eliminate regulation of non-hazardous emissions from a source category.
Given that current sections 7412(d)(7) and 7411(d) were both the result of the 1990
Amendments, one would have to ascribe contradictory intentions to the same
Congress to interpret the latter as Murray suggests.
Ultimately, EPA may or may not conclude that section 7411(d) should be
interpreted as Murray argues, and the reasoning supporting its conclusion may or may
not be along the lines of the arguments addressed above. But EPA must be afforded
the opportunity to complete the rulemaking process, and reach its own final
conclusion regarding the issues raised here, before the arguments for and against any
particular interpretation of the statute can properly be considered by this Court.
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The Senate Amendment also conflicts with Murray’s interpretation
of section 7411(d), and cannot be ignored.
Murray’s preferred interpretation of section 7411(d) is also at odds with
Congress’ enactment of a second amendment to that provision, drawn from the
Senate’s bill, which plainly authorizes EPA to regulate unless the same pollutant is
already regulated under section 7412. This clear preservation of EPA’s regulatory
authority over the full range of dangerous pollutants emitted by a source, hazardous
and non-hazardous, is properly considered when interpreting section 7411(d).
1.
The Senate Amendment should not be ignored.
Unlike the ambiguous amendment to section 7411(d) drawn from the House
bill, the amendment drawn from the Senate bill is straightforward. It simply
substitutes “section 112(b)” for the prior cross-reference to “section 112(b)(1)(A).”
Pub. L. No. 101-549, § 302(a), 104 Stat. at 2574. So amended, section 7411(d) would
mandate that EPA require states to submit plans establishing standards “for any
existing source for any air pollutant . . . which is not included on a list published under
section 7408(a) or section 7412(b).”
Murray and Intervenors offer various arguments as to why this clear mandate,
which all concede is at odds with the interpretation of section 7411(d) advanced by
Murray (see Pet.Br. n8), should be ignored. All are unavailing. First, Murray asserts
that the Court should “defer” to the Office of Law Revision Counsel’s (“OLRC’s”)
“decision” regarding “what the text of the Clean Air Act” is; i.e., that OLRC’s non46
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execution of the Senate Amendment in the U.S. Code is the authoritative word on the
interpretation of section 7411(d). Pet.Br. 34. Murray goes so far as to claim that,
because OLRC did not execute the Senate Amendment, “there is no ambiguity.” Id.
But Murray misunderstands the role of OLRC. OLRC is not a “legislative
agency” as Murray asserts (id.); it does not make law. Rather, its job is simply to
“prepare[] and publish[] the United States Code.” 20 OLRC may also recommend “such
amendments and corrections as will remove ambiguities, contradictions, and other
imperfections” in a law and submit a revised version of that title to the Committee of
the Judiciary of the House of Representatives,21 but until Congress enacts that version
of the title into positive law, the text in the Statutes at Large controls. See Stephan v.
United States, 319 U.S. 423, 426 (1943) (“the Code cannot prevail over the Statutes at
Large when the two are inconsistent”); Five Flags Pipe Line Co. v. Dep’t of Transp.,
854 F.2d 1438, 1440 (D.C. Cir. 1988) (“[W]here the language of the Statutes at Large
conflicts with the language in the United States Code that has not been enacted into
positive law, the language of the Statutes at Large controls.”). This Court accordingly
concluded in Five Flags that it had to give effect to the version of a provision set
forth in the Statutes at Large, as opposed to the version in the U.S. Code, where there
was a substantive difference between the two. Id. In contrast, OLRC’s mechanical
20
At http://uscode.house.gov/about/info.shtml.
21
Id.
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non-execution of an amendment (for whatever reason22) is entitled to “no weight.”
United States v. Welden, 377 U.S. 95, 98 n.4 (1964).23
None of the cases cited by Murray (Pet.Br. 35-36) remotely support its
argument to the contrary. NLRB v. Noel Canning, 134 S. Ct. 2550, 2577 (2014),
concerned the President’s authority under the Recess Appointment Clause of the
Constitution. While the Court found “some linguistic ambiguity” in that Clause,
which it interpreted in light of “the basic purpose of the Clause, and the historical
practice,” id. at 2573, there were obviously no issues of conflicting statutory language,
or deference to the OLRC. The “undue judicial interference” language repeatedly
quoted by Murray relates to the question of whether the Court should take the
Senate’s representations of its own actions at face value or instead inquire into the
facts behind them. Thus, Noel Canning is irrelevant to the issues presented here. Ex
parte Wren, 63 Miss. 512 (Miss. 1886), is also off point. That case addressed whether
Murray states that the House Amendment had “execution priority” because it
appears before the Senate Amendment in the bill. But “if there exists a conflict in the
provisions of the same act, the last provision in point of arrangement must control.”
Lodge 1858, Am. Fed’n of Gov’t Emps. v. Webb, 580 F.2d 496, 510 (D.C. Cir. 1978).
22
EPA does not dispute that there are other instances in which statutory amendments
have not been executed. See Pet.Br. n.9. Murray misses the point: in the rare
instances where unexecuted text is found to matter, it must be considered and given
effect, just as this Court did in Five Flags. This will not “embroil” courts in “the
intricacies of the legislative process” as Murray hyperbolically suggests. Indeed, most
of the unexecuted amendments cited by Murray are trivial and/or duplicative (e.g.,
1990 Amendments to 42 U.S.C. § 1395l(a)(1)(K) (both amendments struck same
word, “and”), or obviously in error (e.g., 2008 Amendments to 15 U.S.C. § 2081(b)(1)
(section amended had been repealed)).
23
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an amendment that did not make its way into the final bill signed by the governor,
despite the legislature’s intent to include it, has effect. If anything, the Mississippi
Supreme Court’s conclusion – that the text of the bill as signed into law governs –
supports EPA’s position here, not Murray’s.
Murray also suggests that the Senate amendment should be discounted because
it is “not substantive,” but only “conforming.” Pet.Br. 33. Murray is again wrong.
First, the “conforming” label is irrelevant. A “conforming” amendment may be
substantive or non-substantive. Burgess v. United States, 553 U.S. 124, 135 (2008).
And while the House Amendment contains more words, it also qualifies as
“conforming” under the definition in the Senate Legislative Drafting Manual, Section
126(b)(2) (“necessitated by the substantive amendments of provisions of the bill”).
Here, both the House and Senate amendments were “necessitated by” Congress’
revisions to section 7412, which included the deletion of old section 7412(b)(1)(A).
Thus, the House’s amendment is no less “conforming” than the Senate’s, and the
heading under which it was enacted – “Miscellaneous Guidance” – no more indicates
substantive import. In any event, this Court gives full effect to conforming
amendments, see Washington Hospital Center v. Bowen, 795 F.2d 139, 149 (D.C. Cir.
1986), and so the Senate amendment cannot be ignored.24
Murray cites Am. Petroleum Inst. v. SEC as suggesting otherwise. Pet.Br. 33. It
does not. There, the Court did not ignore a conforming amendment; rather, it
24
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Intervenors NFIB and UARG seize on a line from the legislative history stating
that the Senate “recedes to the House,” arguing that this language indicates the Senate
“defer[red] . . . to the . . . House amendment” and thereby “reconcile[ed] the alternate
versions of the 1990 amendments.” NFIB/UARG Br. 17 (citing S. 1631, 101st Cong.,
§ 108 (Oct. 27, 1990), reprinted in 1 Leg. Hist. at 885) (JA XX)). Intervenors misuse
this rather mundane legislative history snippet.
To begin with, the language quoted is not from the conference report as
Intervenors state, but from a “Statement of Senate Managers” read into the record on
the floor. See 1 Leg. Hist., at 880 (JA XX). As the reader noted, it was “not reviewed
or approved by all of the conferees,” id., and thus has limited value. Furthermore,
“recedes” is a boilerplate term that signals that one chamber is withdrawing its prior
objection to a provision of a bill, either because it has been amended, replaced, or
otherwise. See Riddick’s Senate Procedure S. Doc. 101-28 at pp. 1481-82 (JA XXXX). It does not mean one house is deferring to another. Moreover, the statement at
issue here is specific to section 108 of the bill, and thus says nothing about the
Senate’s intentions regarding section 302, containing the Senate amendment. Indeed,
the Senate Managers expressly stated that they were not addressing Title III of the bill,
which contained that amendment. 1 Leg. Hist., at 880 (JA XX). In any event, the key
refused to act based on a non-existent conforming amendment that a party theorized
Congress might have forgotten to enact. 714 F.3d 1329, 1336-37 (D.C. Cir. 2013).
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point remains that both amendments to section 7411(d) were enacted into law, and
must therefore be given effect. See Envtl. Def. Fund v. EPA, 82 F.3d 451, 460 n.10
(D.C. Cir. 1996) (Statement of Senate Managers “cannot undermine the statute’s
language”). Thus, both Murray and Intervenors fail to show that the Senate
Amendment must be disregarded.
2.
The Senate Amendment poses no non-delegation issue.
In a last-ditch attempt to excise the Senate Amendment from the Act,
Intervenors point to the non-delegation doctrine. They argue that agencies may not
“pick and choose between . . . conflicting legislative enactments” (NFIB Br. 22), and
that EPA is unlawfully “attempt[ing] to exercise lawmaking power” (Peabody Br. 11).
Intervenors’ attempt to scare up a constitutional bogeyman fails.
First, it is not apparent that there is a “conflict” between the two amendments
to section 7411(d), given that the House-amended text can be interpreted as not
barring regulation of a source category under section 7411(d) unless that source
category’s emissions of the pollutant in question are already regulated under section 7412.
Supra pp. 35-40. EPA should be permitted to at least consider that possibility.25
Second, if there is tension between the two amendments, EPA should have the
opportunity to try to harmonize them, in light its expertise on this statutory scheme.
See Scialabba v. Cuellar de Osorio, 134 S. Ct. 2191, 2228 (2014) (Sotomayor, J.,
dissenting) (“before concluding that Congress has legislated in conflicting and
unintelligible terms,” “traditional tools of statutory construction” should be used to
“allow [the statute] to function as a coherent whole.”).
25
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Where “internal tension” in a statute “makes possible alternative reasonable
constructions,” “Chevron dictates that a court defer to the agency’s . . . expert
judgment about which interpretation fits best with, and makes the most sense of, the
statutory scheme.” Scialabba, 134 S. Ct. at 2203 (Kagan, J., plurality op.). This Court
has similarly opined that where Congress “drew upon two bills originating in different
Houses and containing provisions that, when combined, were inconsistent in respects
never reconciled in conference . . . it was the greater wisdom for [EPA] to devise a
middle course.” Citizens to Save Spencer Cnty. v. EPA, 600 F.2d 844, 872 (D.C. Cir.
1979). Thus, if there is a conflict between the House and Senate amendments, EPA
should be given the chance to find a reasonable “middle course.” Id.26
Intervenors cite to Chief Justice Roberts’ statement that “Chevron is not a
license for an agency to repair a statute that doesn’t make sense.” NFIB Br. 25 (citing
Scialabba, 134 S. Ct. at 2214 (concurring opinion)). But (in addition to being at odds
with the plurality opinion), that statement doesn’t apply here. The Act makes sense;
Intervenors cite Whitman, 531 U.S. at 457, as suggesting that EPA may not choose
“between competing versions of a statute.” NFIB/UARG Br. 22. But that case
concerned whether Congress’ command that EPA set air quality standards “requisite
to protect public health” and “allowing an adequate margin of safety” was too broad.
It was in that different context that the Court suggested that, if a grant of authority
was too broadly drawn, EPA could not cure it by declining to exercise some of that
authority. Id. at 472. And the Court noted that “[i]n the history of the Court we have
found the requisite ‘intelligible principle’ lacking in only two statutes,” whereas it has
routinely upheld agencies’ authority to execute vaguely-drafted Congressional
commands. 531 U.S. at 474.
26
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Congress’ intent in 1970 to establish a comprehensive regulatory scheme, covering the
full range of dangerous pollutants, was clear and sensible, and its intent to strengthen
that scheme in 1990 was equally clear and sensible. If EPA determines that there is a
discrepancy between the two amendments at issue here, those “intelligible principles”
can guide its application of the traditional tools of statutory interpretation to
harmonize the two amendments. Indeed, the Chief Justice made clear that he favored
reading a statute “as a symmetrical and coherent regulatory scheme,” and “fit[ing], if
possible, all parts into a harmonious whole.” Id. at 2214.
Finally, even if the Court concluded that there was a “direct conflict” between
the House and Senate amendments, which it did not think the agency could properly
address through interpretation, 134 S. Ct. at 2203, the result would not be what
Murray or Intervenors wish. Rather, the amended portion of section 7411(d) would
revert to its pre-1990 text – which would either render it entirely null (because it
cross-references section 4712(b)(1)(A), which no longer exists), or instead might be
found to preserve the pre-1990 scope of the exclusion (if only the now-inapplicable
subsection references (“(b)(1)(A)”) are considered null).27
See ANTONIN SCALIA & BRYAN A. GARNER, READING LAW: THE INTERPRETATION
OF LEGAL TEXTS 189 (2012) (“[I]f a text contains truly irreconcilable provisions . . .
and they have been simultaneously adopted, neither provision should be given
effect.”).
27
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EPA has not yet determined what weight to give the Senate amendment;
whether or how to reconcile it with the House amendment; or if reconciliation is even
necessary. Intervenors suggest that, instead of having the opportunity to proffer its
conclusions on these issues, EPA must throw its hands in the air and look to either
Congress to clarify its intentions or the Court to divine them. But separation of
powers principles instead require that the agency to which Congress has delegated the
implementation of a statute, and which has extensive expertise in interpreting and
applying that statute, gets the first crack at answering such questions.
Conclusion
The Court should dismiss or deny Murray’s Petition for Review and its Petition
for an Extraordinary Writ.
Respectfully submitted,
JOHN C. CRUDEN
Assistant Attorney General
s/ Amanda Shafer Berman
AMANDA SHAFER BERMAN
BRIAN H. LYNK
U.S. Department of Justice
Environmental Defense Section
P.O. Box 7611
Washington, D.C. 20044
(202) 514-1950 (phone)
E mail: amanda.berman@usdoj.gov
February 12, 2015
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Certificate of Compliance
Pursuant to Fed. R. App. P. 32(a)(7), I hereby certify that:
1.
This brief complies with the type-volume limitations of Fed. R. App. P.
32(a)(7)(B) because, as counted by the word count feature of Microsoft Office Word,
it contains 13,958 words, excluding the parts of the brief exempted by Fed. R. App. P.
32(a)(7)(B)(iii) and Circuit Rule 32(a)(1); and
2.
This brief complies with the typeface and type style requirements of Fed. R.
App. P. 32(a)(5) because it was prepared using Microsoft Office Word 2013 in a
proportionally spaced typeface, Garamond, in 14 pt. font.
/s/ Amanda Shafer Berman
Amanda Shafer Berman
Counsel for Respondent EPA
Dated: February 12, 2015
55
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Certificate of Service
I certify that the Brief of Respondent EPA was electronically filed today with
the Clerk of the Court for the United States Court of Appeals for the District of
Columbia Circuit through the Court’s CM/ECF system, and that, pursuant to Circuit
Rule 31(b), five paper copies of the brief were delivered to the Court by hand.
I further certify that a copy of the foregoing Brief of Respondent EPA was
today served electronically through the court’s CM/ECF system on all registered
counsel for Petitioners, Intervenors and Amici.
/s/ Amanda Shafer Berman
Counsel for Respondent
Dated: February 12, 2015
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Attachment A
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USCACase
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#12-1248
Document
Document#1537419
#1409856
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12/13/2012
Page
Page74
1 of 2
75
United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
____________
No. 12-1248
September Term, 2012
EPA-77FR22392
Filed On: December 13, 2012
Las Brisas Energy Center, LLC,
Petitioner
v.
Environmental Protection Agency and Lisa
Perez Jackson,
Respondents
-----------------------------Conservation Law Foundation, et al.,
Intervenors
-----------------------------Consolidated with 12-1251, 12-1252, 12-1253,
12-1254, 12-1257
BEFORE:
Rogers, Garland, and Brown, Circuit Judges
ORDER
Upon consideration of the motions to dismiss, the oppositions thereto, and the
replies; and the motion for declaratory relief, the oppositions thereto, and the replies, it
is
ORDERED that the motions to dismiss be granted. The challenged proposed
rule is not final agency action subject to judicial review. See 42 U.S.C. § 7607(b)(1);
Bennett v. Spear, 520 U.S. 154, 177-78 (1997) (holding that final agency action “must
mark the consummation of the agency’s decisionmaking process” and “must be one by
which rights or obligations have been determined, or from which legal consequences
will flow”) (internal quotations omitted). It is
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USCACase
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#12-1248
Document
Document#1537419
#1409856
Filed:
Filed:02/12/2015
12/13/2012
Page
Page75
2 of 2
75
United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
____________
No. 12-1248
September Term, 2012
FURTHER ORDERED that the motion for declaratory relief be dismissed as
moot.
Pursuant to D.C. Circuit Rule 36, this disposition will not be published. The Clerk
is directed to withhold issuance of the mandate herein until seven days after resolution
of any timely petition for rehearing or petition for rehearing en banc. See Fed. R. App.
P. 41(b); D.C. Cir. Rule 41.
Per Curiam
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ORAL ARGUMENT SCHEDULED FOR APRIL 16, 2015
No. 14-1112 & No. 14-1151
______________________________________________
IN THE UNITED STATES COURT OF APPEALS
FOR THE DISTRICT OF COLUMBIA CIRCUIT
______________________________________________
IN RE: MURRAY ENERGY CORPORATION,
Petitioner.
______________________________________________
MURRAY ENERGY CORPORATION,
Petitioner,
v.
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY, ET AL.
Respondents.
______________________________________________
On Petition for Writ of Prohibition & Petition for Review
______________________________________________
RESPONDENTS’ STATUTORY ADDENDUM
______________________________________________
Of Counsel:
Elliott Zenick
Scott Jordan
United States Environmental
Protection Agency
Office of General Counsel
1200 Pennsylvania Ave., N.W.
Washington, D.C. 20460
February 12, 2015
JOHN C. CRUDEN
Assistant Attorney General
s/ Amanda Shafer Berman
AMANDA SHAFER BERMAN
BRIAN H. LYNK
U.S. Department of Justice
Environmental Defense Section
P.O. Box 7611
Washington, D.C. 20044
(202) 514-1950 (phone)
E mail: amanda.berman@usdoj.gov
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TABLE OF CONTENTS
Pub. L. No. 101-549, §§ 108(g) & 302(a), 104 Stat. 2399, 2467 & 2574 (1990) ... ADD1
1 U.S.C. § 112 ................................................................................................................ ADD5
1 U.S.C. § 204(a) .......................................................................................................... ADD6
28 U.S.C. § 1651(a) ....................................................................................................... ADD7
42 U.S.C. § 7401(b)....................................................................................................... ADD8
42 U.S.C. § 7408(a) ....................................................................................................... ADD9
42 U.S.C. § 7409(a)-(b) ............................................................................................... ADD10
42 U.S.C. § 7411(a)-(b) & (d) .................................................................................... ADD11
42 U.S.C. § 7411(d)(1988).......................................................................................... ADD15
42 U.S.C. § 7412(a)-(d) & (n) .................................................................................... ADD16
42 U.S.C. § 7416 ......................................................................................................... ADD38
42 U.S.C. § 7604(a) ..................................................................................................... ADD39
42 U.S.C. § 7607(b), (d) & (e).................................................................................... ADD40
H.R. Rep. No. 101-490, 101st Cong., 2d Sess., 315 (1990) .................................... ADD48
H.R. Rep. No. 101-952, 101st Cong., 2d Sess., at 335-36, 340, 345 & 347 (1990) .. ADD50
S. Rep. No. 101-228, 101st Cong., 1st Sess., at 14 & 133 (1989)............................ ADD56
Chafee-Baucus Statement of Senate Managers, S. 1630, The Clean Air Act
Amendments of 1990, reprinted in 1 Leg. History at 880 & 885......................... ADD59
Riddick’s Senate Procedure, S. Doc 101-28 at p. 1481-82 .................................... ADD62
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PUBLIC LAW 101-549—NOV_ 13, 1990
Page 3 of 66
104 STAT. 2399
Public Law 101-549
101st Congress
An Act
To amend the Clean Air Act to provide for attainment and maintenances ~~f health
protective national ambient air quplity standards, and Por other RuTP~~~
Nov. 1~, 1990
[S. 1630]
Be it enacted by the Senate and House o/' Representatives of the
United States aFAmerica in Congress assembled,
Air pollution
control.
TITLE I-PROVISIONS FOR ATTAINMENT
AND MAINTENANCE OF NATIONAL AMBIENT AIR QUALITY STANDARDS
Scti.
Sec.
Ser.
Sec.
See.
Sec.
ldl.
102.
1D:i.
1U4.
1Q5.
lOfi.
Sec.
Sec.
Sec.
Sec.
Sec.
10i.
IdB.
id9.
11(l.
ttt.
General planning requirements.
C;enea~i proviuiona for nonattainment areas.
Additional provisions fog rrtone non~ttainment areas.
9dditiona! provisions for carbon monoxide nonattHinment areas.
Additional pr~vibiona for purticutate matter ePM-14~ nnnattuinment areas.
Additional prnvibions Car areas designated nonattainment for sulfur
oxides. nitrogen dioxide, and lead.
Provisions related to Indian tribes.
l~Iisc~e(laneous provisions.
Interstate pollution,
C.onfanrcing amendments.
Transportation system impactb nn clean air.
SEC. t04. GF.?YEBAL PLAN!r'ING REQUIREMENTS
(S) E~REA DESIGNATIOI~LS_—.~Ct1UI1 IO7iC~1 Of LI7e CI28ri t~l[' ACt (~Z
U.S.C. 7~0?(d)! is amended to read ~s follows:
`'`6d) DEsr~Nw~reaNs.—
latergovernmental
rnlatione.
"~I1 DESIGNA'IZONS GENERALLY.—
~~4A) SUAMI35IdN BY GdYERNOR9 OF INITIAL llFStGIYATIONS
FQLL4WING PROML6LGATIG,Y OF NERi' OR REVISED STANDARbS.—
By such date as the Administrator may reasonably require,
but not later than ~ year after promulgation of a new or
revised national ambient air quality standard for any
pollutant under section 1U9, the Governor of each State
shall land at any other time the Governor of a State deems
appropriate the Governor may submit to the Administrator alist of all areas tar portions thereof} in the State,
designating as—
"4i1 nonattainment, any area that does not. meet (or
that contributes to ambient air quality in a nearby area
that does not meets the national primary or se~andary
ambient air quality standard for the pollutant,
"~iir attainment, any area tother than an area identified in clause ti~~ that meets the national primary or
secondary ambient air quality standard for the pollutant, or
"6iii) unclassifiahle, any area that cannot. be classified
on the basis of available information as meeting or not
as-i:s~ o - yo - t ~.5ty~
AUTHE NTIGATED
U.S. GOVERNMENT
INFORMATION
GPO
ADD1
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PUBLIC LAW 101-549—NOV. 15, 1990
Page 4 of 66
104 STAT. 2465
exterior boundaries of the reservation or other areas within the
tribe's jurisdiction; and
"(C) the Indian tribe is reasonably expected to be capable, in
the judgment of the Administrator, of carrying out the functions to be exercised in a manner consistent with the terms and
purposes of this Act and all applicable regulations.
"(3) The Administrator may promulgate regulations which estate
lish the elements of tribal implementation plans and procedures for
approval or disapproval of tribal implementation plans and portions
thereof.
"(4) In any case in which the Administrator determines that the
treatment of Indian tribes as identical to States is inappropriate or
administratively infeasible, the Administrator may provide, by regulation, other means by which the Administrator will directly administer such provisions eo as to achieve the appropriate purpose.
"(5) Until such time as the Administrator promulgates regulations
pursuant to this subsection, the Administrator may continue to
provide financial assistance to eligible Indian tribes under section
105.".
SEC. 10A. MISCELLANEOUS CUIDANCF..
{a) TRANSPORTATION PLANNING GUIDANCE.—SBCt10D 10$(e1 of the
Clean Air Act is amended by deleting the first sentence and insert- 4z USC 7ao8.
ing in lieu thereof the following: "The Administrator shall, after
consultation with the Secretary of Transportation, and after providing public notice and opportunity for comment, and with State and
local officials, within nine months after enactment of the Clean Air
Act Amendments of 1989 and periodically thereafter as necessary to
maintain a continuous transportation-air quality planning process,
update the June 1978 Transportation-Air Quality Planning Guidelines and publish guidance on the development and implementation
of transportation and other measures necessary to demonstrate and
maintain attainment of national ambient air quality standards.".
(b) TRANSPORTATION CONTROL MEASUR&4.—S@CL10D 108(fl(1) of the
Clean Air Act us amended by deleting all after "(fl" through the end
of subparagraph (A) and inserting in lieu thereof the following:
"(1)The Administrator shall publish and make available to appro- Public
priate Federal, State, and local environmental and transportation information.
agencies not later than one year after enactment of the Clean Air
Act Amendments of 1990, and from time to tune thereafter—
"(A? information prepared, as appropriate, in consultation
with the Secretary of Transportation, and after providing public
notice and opportunity for comment, regarding the formulation
and emission reduction potential of transportation control
measures related to criteria pollutants and their precursors,
including, but not limited to—
"(i) programs for improved public transit;
"(ii) restriction of certain roads or lanes to, or construction of such roads or lanes for use by, passenger buses or
high occupancy vehicles;
"fiu) employer-based transportation management plans,
including incentives;
"(iv} trip-reduction ordinances;
"(v) traffic flow improvement programs that achieve
emission reductions;
ADD2
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PUBLIC LAW 101-549—NOV. 15, 1990
Page 5 of 66
104 STAT. 2467
need for revision, or implementation of any plan or plan revision
required under this Act.".
(e) NEw SovacE STANDARDS of PERFORMANCE.—(1) Section
111(bx1xB) of the Clean Air Act (42 U.S.C. ?411(Ux1xB)) is amended
a~ follows:
(A)Strike "120 days"' and insert "one year".
(B)Strike "90 days" and insert "one year".
(C)Strike "four years" and insert "8 years".
(D} Immediately before the sentence beginning "Standards of
performance or revisions thereof' insert "Notwithstanding the
requirements of the previous sentence, the Administrator need
not review any such standard if the Administrator determines
that such review is not appropriate in light of readily available
information on the efficacy of such standard.".
f_E) Add the following at the end: "When implementation and
enforcement of any requirement of this Act indicate that emission limitations and percent reductions beyond those required
by the standards promulgated under this section are achieved in
practice, the Administrator shall, when revising standards
promulgated under this section, consider the emission limitations and percent reductions achieved in practice.".
(2l Section lll('fl(1) of the Clean Air Act (42 U.S.C. 7411(fl(1?) is
amended to read as follows:
"(1) For those categories of major stationary sources that the mutations.
Administrator listed under subsection (bxll(A) before the date of the
enactment of the Clean Air Act Amendments of 1990 and for which
regulations had not been proposed by the Administrator by such
date, the Administrator ahall—
"fA) propose regulations establishing standards of performance for at least 25 percent of such categories of sources within
L years after the date of the enactment of the Clean Air Act
Amendments of 1990;
"(B) propose regulations establishing standards of performance for at least 50 percent of such categories of sources within
4 years after the date of the enactment of the Clean Air Act
Amendments of 199Q; and
'°(C) propose regulations far the remaining categories of
sources within 6 years after the date of the enactment of the
Clean Air Act Amendments of 1990.".
(fl SAVINGS CLAUSE.—S@CtlOil 111(ax3) of the Clean Air Act (42
U.S.C. 7411(fl(1)) is amended by adding at the end: "Nothing in title
II of this Act relating to nonroad engines shall be construed to appty
to stationary internal combustion engines.".
fig) REGULATION OF EXISTING SOURCES,—~CtlOtl 111(dx1xA1(il OT
the Clean Air Act f42 U.S,C. 7411(dxlxA~i)) is amended by striking
'br 112(bXil(A}" and inserting "or emitted from a source category
which is regulated under section 112".
(~1} ('pNSULTATI0IV.—T}le penultimate sentence of
section 121 of
the Clean Air Act 142 U.S.C. 7421) is amended to read as follows:
"The Administrator sha11 update as necessary the original regale- ~~lations.
tions required and promulgated under this section (as in effect
immediately before the date of the enactment of the Clean Air Act
Amendments of 199U)to ensure adequate consultation.".
(1) DELEGATION.—TIIE second sentence of section 301(axl) of the
Clean Air Act(42 U.S.C. 7601(al(1)) is amended by inserting "subject
to section 307(dl" immediately following "regulations".
ADD3
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PUBLIC LAW 101-X49-NOV. 15, 1990
and sources subject to the provisions of this section and shall include
aggregate information from the database in each annual report. The
report shall include, but not be limited to—
"(1) astatus report orgy standard-setting under subsections (d
and (fl;
"(2) information with respect to compliance with such standards including the costs of compliance experienced by sources in
various categories and subcategories;
"(3) development and implementntiun ofthe national urban
air toxics program; and
"(4) recommendations of the Chemical Safety and Hazard
Investigation Board with respect to the prevention and miti~~tion of accidental releases.".
3EC. 30'L. CONFORMING AMENnMF.NTS.
a2 USc 74x1.
az usc~ ^r~i•~.
a2 USC ~41~.
a2 CfSC ~so2.
42 USC 76u4.
42 USC i6o7,
4'L USC1 7412
note.
(a} Section 111(dx2) of the Ctean Air Act is amended by striking
"112tbN1xA)" and inserting in lieu thereof "112th)".
lbl Section 111 of the Clean Air Act is amended by striking
paragraphs (gN5) and (g)(61 and redesignating the succeeding paragraphs accordingly. Such section is further amended by striking "or
section lI2" in paragraph (gX5) as redesignated in the preceding
sentence.
(.c) Section 214(a1 of the Clean Air Act is amended by striking "or"
after "section 111," and by inserting ", or any regulation of solid
waste combustion under section 1'l9," after "section 112".
(d) Section 11$(b) of the Clean Air Act is amended by striking
"I12(c?" and inserting in Ilea thereof "112fi}f4)".
(e)Section 302(k)of the Clean Air Act is amended by adding before
the period at the end thereof ", and any design, equipment, work
practice or operational standArc! promulgated under this Act.".
(~ $action 304(b} of the Clean Air Act is amended by striking
"112(cX1xB)" and inserting in lieu thereof "112(ix3xA) or (fX4)".
ig} Section 307(bXl) is amended by striking "112(c)" and inserting
in lieu thereof "112".
(h} Section 307fdx1} is amended by inserting—
"(Dl the promulgation of any requirement for solid waste
combustion under section 129,"
after subparagraph fG) and redesignating the succeeding subparagraphs accordingly.
3EC.303. RISK ASSF.SSMF.'YT AND MANACE:MENT COMMI9SI(1N.
(g) ~` TABLI9HMENT.—T~1@re is hereby established a Risk
Assessment and Management Commission (hereafter referred to in this
section as the "Commission"), which shall commence proceedings
not later than 18 months after the date of enactment of the Clean
Air Act Amendments of 1990 and which shall make a full investigation of the policy implications and appropriate uses of risk assessment and risk management in regulatory programs under various
Federal laws to prevent cancer and other chronic human health
effects which may result. from exposure to hazardous substances.
tb) GxnscE.—The Commission shall consider—
(11 the report. of the National Academy of Sciences authorized
by section 112fo? of the Clean Air Act, the vse and limitations of
risk assessment in establishing emission or effluent standards,
ambient standards, exposure standards, acceptable concentration levels, tolerances or other environmental criteria for
hazardous substances that present a risk of carcinogenic effects
ADD4
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Statutes at Large; contents; admissibility in evidence
The Archivist of the United States shall cause to be compiled, edited, indexed, and
published, the United States Statutes at Large, which shall contain all the laws and
concurrent resolutions enacted during each regular session of Congress; all
proclamations by the President in the numbered series issued since the date of the
adjournment of the regular session of Congress next preceding; and also any
amendments to the Constitution of the United States proposed or ratified pursuant to
arricle V thereof since that date, together with the cerrificate of the Archivist of the
United States issued in compliance with the provision contained in section 106b of
this title. In the event of an extra session of Congress, the Archivist of the United
States shall cause all the laws and concurrent resolutions enacted during said extra
session to be consolidated with, and published as part of, the contents of the volume
for the next regular session. The United States Statutes at Large shall be legal evidence
of laws, concurrent resolutions, treaties, international agreements other than treaties,
proclamations by the President, and proposed or ratified amendments to the
Constitution of the United States therein contained,in all the courts of the United
States, the several States, and the Territories and insular possessions of the United
States.
*~*
ADD5
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1 U.S.C. ~ 204.
Codes and Supplements as evidence of the Laws of United
States and District of Columbia; citation Codes and Supplements
(a) United States Code.--The matter set forth in the edition of the Code of Laws of
the United States current at any time shall, together with the then current supplement,
if any, establish prima facie the laws of the United States, general and permanent in
their nature,in force on the day preceding the commencement of the session
following the last session the legislation of which is included: Provided, however, That
whenever titles of such Code shall have been enacted into positive law the text
thereof shall be legal evidence of the laws therein contained,in all the courts of the
United States, the several States, and the Territories and insular possessions of the
United States.
*~~
ADD6
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28 U.S.C. ~ 1651. Writs
(a) The Supreme Court and all courts established by Act of Congress may issue all
writs necessary or appropriate in aid of their respective jurisdictions nad agreeable
to the usages and principles of law.
~**
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42 U.S.C. ~ 7401. Congressional findings and declaration of purpose
~**
(b) Declaration. The purposes of this subchapter are—
(1) to protect and enhance the quality of the Nation's air resources so as to promote
the public health and welfare and the producrive capacity of its popularion;
(2) to initiate and accelerate a national research and development program to achieve
the prevention and control of air pollution;
(3) to provide technical and financial assistance to State and local governments in
connection with the development and execution of their air pollution prevention and
control programs; and
(4) to encourage and assist the development and operation of regional air pollution
prevention and control programs.
***
ADD8
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42 U.S.C. ~ 7408. Air quality criteria and control techniques
(a) Air pollutant list; publication and revision by Administrator; issuance of air quality
criteria for air pollutants.
(1) For the purpose of establishing national primary and secondary ambient air
quality standards, the Administrator shall within 30 days after the date of enactment
of the Clean Air Amendments of 1970 [enacted Dec. 31, 1970] publish, and shall
from time to time thereafter revise, a list which includes each air pollutant-(A) emissions of which,in his judgment, cause or contribute to air pollution which
may reasonably be anticipated to endanger public health or welfare;
(B) the presence of which in the ambient air results from numerous or diverse mobile
or stationary sources; and
(C) for which air quality criteria had not been issued before the date of enactment of
the Clean Air Amendments of 1970 [enacted Dec. 31, 1970], but for which he plans
to issue air quality criteria under this section.
(2) The Administrator shall issue air quality criteria for an air pollutant within 12
months after he has included such pollutant in a list under paragraph (1). Air quality
criteria for an air pollutant shall accurately reflect the latest scientific knowledge useful
in indicating the kind and extent of all identifiable effects on public health or welfare
which may be expected from the presence of such pollutant in the ambient air, in
varying quantities. The criteria for an air pollutant, to the extent practicable, shall
include information on-(A) those variable factors (including atmospheric conditions) which of themselves or
in combination with other factors may alter the effects on public health or welfare of
such air pollutant:
(B) the types of air pollutants which, when present in the atmosphere, may interact
with such pollutant to produce an adverse effect on public health or welfare; and
(C) any known or anticipated adverse effects on welfare.
**~
ADD9
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42 U.S.C. ~ 7409. National primary and secondary ambient air quality
standards
(a) Promulgation.
(1) The Administrator-(A) within 30 days after the date of enactment of the Clean Air Amendments of 1970
[enacted Dec. 31, 1970], shall publish proposed regulations prescribing a national
primary ambient air quality standard and a national secondary ambient air quality
standard for each air pollutant for which air quality criteria have been issued prior to
such date of enactment; and
(B) after a reasonable time for interested persons to submit written comments
thereon (but no later than 90 days after the initial publication of such proposed
standards) shall be regulation promulgate such proposed national primary and
secondary ambient air quality standards with such modifications as he deems
appropriate.
(2) With respect to any air pollutant for which air quality criteria are issued after the
date of enactment of the Clean Air Amendments of 1970 [enacted Dec. 31, 1970], the
Administrator shall publish, simultaneously with the issuance of such criteria and
information, proposed national primary and secondary ambient air quality standards
for any such pollutant. The procedure provided for in paragraph (1)(B) of this
subsection shall apply to the promulgation of such standards.
(b) Protection of public health and welfare.
(1) National primary ambient air quality standards, prescribed under subsection (a)
shall be ambient air quality standards the attainment and maintenance of which in the
judgment of the Administrator, based on such criteria and allowing an adequate
margin of safety, are requisite to protect the public health. Such primary standards
may be revised in the same manner as promulgated.
(2) Any national secondary ambient air quality standard prescribed under subsection
(a) shall specify a level of air quality the attainment and maintenance of which in the
judgment of the Administrator, based on such criteria, is requisite to protect the
public welfare from any known or anticipated adverse effects associated with the
presence of such air pollutant in the ambient air. Such secondary standards may be
revised in the same manner as promulgated.
*~~
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42 U.S.C. ~ 7411. Standards of performance for new stationary sources
(a) Definitions. For purposes of this section:
(1) The term "standard of performance" means a standard for emissions of air
pollutants which reflects the degree of emission limitation achievable through the
application of the best system of emission reduction which (taking into account the
cost of achieving such reducrion and any nonair quality health and environmental
impact and energy requirements) the Administrator determines has been adequately
demonstrated.
(2) The term "new source" means any stationary source, the construction or
modification of which is commenced after the publication of regulations (or, if earlier,
proposed regulations) prescribing a standard of performance under this section which
will be applicable to such source.
(3) The term "stationary source" means any building, structure, facility, or installation
which emits or may emit any air pollutant. Nothing in tide II of this Act[42 USCS ~~
7621 et seq.] relating to nonroad engines shall be construed to apply to stationary
internal combustion engines.
(4) The term "modification" means any physical change in, or change in the method
of operation of, a stationary source which increases the amount of any air pollutant
emitted by such source or which results in the emission of any air pollutant not
previously emitted.
(5) The term "owner or operator" means any person who owns,leases, operates,
controls, or supervises a stationary source.
(6) The term "e~sting source" means any stationary source other than a new source.
(7) The term "technological system of continuous emission reduction" means-(A) a technological process for production or operation by any source which is
inherently low-polluting or nonpolluting, or
(B) a technological system for continuous reduction of the pollution generated by a
source before such pollution is emitted into the ambient air, including precombustion
cleaning or treatment of fuels.
(8) A conversion to coal(A) by reason of an order under section 2(a) of the Energy
Supply and Environmental Coordination Act of 1974 [15 USCS ~ 792(a)] or any
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amendment thereto, or any subsequent enactment which supersedes such Act, or (B)
which qualifies under section 113(d)(5)(A)(u) of this Act shall not be deemed to be
a
modificarion for purposes of paragraphs (2) and (4) of this subsecrion.
(b) List of categories of stationary sources; standards of performance; information on
pollution control techniques; sources owned or operated by United States; particular
systems; revised standards
(1)(A)The Administrator shall, within 90 days after December 31, 1970, publish (and
from time to time thereafter shall revise) a list of categories of stationary sources. He
shall include a category of sources in such list if in his judgment it causes, or
contributes significantly to, air pollution which may reasonably be anticipated to
endanger public health or welfare.
(B) Within one year after the inclusion of a category of stationary sources in a list
under subparagraph (A), the Administrator shall publish proposed regulations,
establishing Federal standards of performance for new sources within such category.
The Administrator shall afford interested persons an opportunity for written
comment on such proposed regulations. After considering such comments, he shall
promulgate, within one year after such publication, such standards with such
modifications as he deems appropriate. The Administrator shall, at least every 8 years,
review and,if appropriate, revise such standards following the procedure required by
this subsection for promulgation of such standards. Notwithstanding the
requirements of the previous sentence, the Administrator need not review any such
standard if the Administrator determines that such review is not appropriate in light
of reaclily available information on the efficacy of such standard. Standards of
performance or revisions thereof shall become effective upon promulgation. When
implementation and enforcement of any requirement of this chapter indicate that
emission limitations and percent reductions beyond those required by the standards
promulgated under this section are achieved in practice, the Administrator shall, when
revising standards promulgated under this section, consider the emission limitations
and percent reductions achieved in practice.
(2) The Administrator may distinguish among classes, types, and sizes within
categories of new sources for the purpose of establishing such standards.
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(3) The Administrator shall, from time to time,issue information on pollution control
techniques for categories of new sources and air pollutants subject to the provisions
of this section.
(4) The provisions of this section shall apply to any new source owned or operated by
the United States.
(5) Except as otherwise authorized under subsection (h) of this section, nothing in
this section shall be construed to require, or to authorize the Administrator to require,
any new or modified source to install and operate any particular technological system
of continuous emission reduction to comply with any new source standard of
performance.
(6) The revised standards of performance required by enactment of subsection
(a)(1)(A)(i) and (u) of this section shall be promulgated not later than one year after
August 7, 1977. Any new or modified fossil fuel fired stationary source which
commences construction prior to the date of publication of the proposed revised
standards shall not be required to comply with such revised standards.
~*~
(d) Standards of performance for e~sting sources; remaining useful life of source
(1) The Administrator shall prescribe regulations which shall establish a procedure
similar to that provided by section 7410 of this title under which each State shall
submit to the Administrator a plan which (A) establishes standards of performance
for any existing source for any air pollutant (i) for which air quality criteria have not
been issued or which is not included on a list published under section 7408(a) of this
tide or emitted from a source category which is regulated under section 7412 of this
tide but (u) to which a standard of performance under this section would apply if such
e~sting source were a new source, and (B) provides for the implementation and
enforcement of such standards of performance. Regulations of the Administrator
under this paragraph shall permit the State in applying a standard of performance to
any particular source under a plan submitted under this paragraph to take into
consideration, among other factors, the remaining useful life of the existing source to
which such standard applies.
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(2) The Administrator shall have the same authority-(A) to prescribe a plan for a State in cases where the State fails to submit a satisfa
ctory
plan as he would have under section 7410(c) of this title in the case of failure to
submit an implementation plan, and
(B) to enforce the provisions of such plan in cases where the State fails to enforc
e
them as he would have under sections 7413 and 7414 of this title with respect to an
implementation plan.
In promulgating a standard of performance under a plan prescribed under this
paragraph, the Administrator shall take into consideration, among other factors,
remaining useful lives of the sources in the category of sources to which such
standard applies.
~**
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42 U.S.C. ~ 7411(1988). Statutes at Large; contents; admissibility in evidence
~~~
(d) Standards of performance for e~sting sources; remaining useful life of source.
(1) The Administrator shall prescribe regulations which shall establish a procedure
similar to that provided by section 7410 of this tide under which each State shall
submit to the Administrator a plan which (A) establishes standards of performance
for any existing source for any air pollutant (i) for which air quality criteria have not
been issued or which is not included on a list published under section 7408(a) or
7412(b)(1)(A) of this tide but (u) to which a standard of performance under this
section would apply if such emoting source were a new source, and (B) provides for the
implementation and enforcement of such standards of performance. Regulations of
the Administrator under this paragraph shall permit the State in applying a standard of
performance to any particular source under a plan submitted under this paragraph to
take into consideration, among other factors, the remaining useful life of the existing
source to which such standard applies.
*~~
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42 U.S.C. ~ 7412. Hazardous air pollutants
(a) Definitions
For purposes of this section, except subsection (r) of this section-(1) Major source
The term "major source" means any stationary source or group of stationary sources
located within a contiguous area and under common control that emits or has the
potential to emit considering controls, in the aggregate, 10 tons per year or more of
any hazardous air pollutant or 25 tons per year or more of any combination of
hazardous air pollutants. The Administrator may establish a lesser quantity, or in the
case of radionuclides different criteria, for a major source than that specified in the
previous sentence, on the basis of the potency of the air pollutant, persistence,
potential for bioaccumulation, other characteristics of the air pollutant, or other
relevant factors.
(2) Area source
The term "area source" means any stationary source of hazardous air pollutants that is
not a major source. For purposes of this section, the term "area source" shall not
include motor vehicles or nonroad vehicles subject to regulation under subchapter II
of this chapter.
(3) Stationary source
The term "stationary source" shall have the same meaning as such term has under
section 7411(a) of this tide.
(4) New source
The term "new source" means a stationary source the construction or reconstruction
of which is commenced after the Administrator first proposes regulations under this
section establishing an emission standard applicable to such source.
(5) Modification
The term "modification" means any physical change in, or change in the method of
operation of, a major source which increases the actual emissions of any hazardous air
pollutant emitted by such source by more than a de minimis amount or which results
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in the emission of any hazardous air pollutant not previously emitted by more than a
de minirnis amount.
(6) Hazardous air pollutant
The term "hazardous air pollutant" means any air pollutant listed pursuant to
subsection (b) of this section.
(7) Adverse environmental effect
The term "adverse environmental effect" means any significant and widespread
adverse effect, which may reasonably be anticipated, to wildlife, aquatic life, or other
natural resources, including adverse impacts on populations of endangered or
threatened species or significant degradation of environmental quality over broad
areas.
(8) Electric utility steam generating unit
The term "electric utility steam generating unit" means any fossil fuel fired
combustion unit of more than 25 megawatts that serves a generator that produces
electricity for sale. A unit that cogenerates steam and electricity and supplies more
than one-third of its potential electric output capacity and more than 25 megawatts
electrical output to any utility power distribution system for sale shall be considered
an electric utility steam generating unit.
(9) Owner or operator
The term "owner or operator" means any person who owns,leases, operates,
controls, or supervises a stationary source.
(10) E~sting source
The term "existing source" means any stationary source other than a new source.
(11) Carcinogenic effect
Unless revised, the term "carcinogenic effect" shall have the meaning provided by the
Administrator under Guidelines for Carcinogenic Risk Assessment as of the date of
enactment. Any revisions in the e~sting Guidelines shall be subject to nonce and
opportunity for comment.
(b) List of pollutants
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(1) Initial list
The Congress establishes for purposes of this section a list of hazardous air pollutants
as follows:
CAS
Chemical name
number
75070
Acetaldehyde
60355
Acetamide
75058
98862
Acetonitrile
53963
107028
79061
Acetophenone
2-Acetylaminofluorene
Acrolein
Acrylamide
79107
107131
Acrylonitrile
107051
Allyl chloride
92671
4-Aminobiphenyl
62533
Aniline
90040
o-Anisidine
Asbestos
1332214
Acrylic acid
71432
Benzene (including benzene from gasoline)
92875
Benzidine
98077
100447
Benzotrichloride
Benzyl chloride
92524
Biphenyl
117817
Bis(2-ethylhexyl)phthalate(DEHP)
542881
Bis(chloromethyl)ether
Bromoform
75252
106990
156627
1,3-Butadiene
Calcium cyanamide
105602
Caprolactam
133062
Captan
63252
Carbaryl
75150
Carbon disulfide
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Carbonyl sulfide
120809
Catechol
133904
Chloramben
57749
Chlordane
79118
532274
108907
510156
Chlorine
Chloroacetic acid
2-Chloroacetophenone
Chlorobenzene
Chlorobenzilate
Chloroform
67663
107302
Chloromethyl methyl ether
126998
Chloroprene
1319773
Cresols/Cresylic acid (isomers and mixture)
95487
108394
o-Cresol
m-Cresol
106445
p-Cresol
98828
Cumene
94757
2,4-D, salts and esters
3547044
DDE
334883
132649
Diazomethane
96128
84742
Dibenzofurans
1,2-Dibromo-3-chloropropane
Dibutylphthalate
111444
1,4-Dichlorobenzene(p)
3,3-Dichlorobenzidene
Dichloroethyl ether (Bis(2-chloroethyl)ether)
542756
1,3-Dichloropropene
62737
Dichlorvos
111422
Diethanolamine
121697
N,N-Diethyl aniline (N,N-Dimethylaniline)
64675
Diethyl sulfate
119904
3,3-Dimethoxybenzidine
60117
Dimethyl aminoazobenzene
106467
91941
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Carbon tetrachloride
56235
463581
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119937
79447
3,3'-Dimethyl benzidine
Dimethyl carbamoyl chloride
68122
Dimethyl formamide
57147
131113
1,1-Dimethyl hydrazine
Dimethyl phthalate
77781
Dimethyl sulfate
534521
4,6-Dinitro-o-cresol, and salts
51285
2,4-Dinitroplienol
121142
2,4-Dinitrotoluene
123911
1,4-Dioxane (1,4-Diethyleneo~de)
122667
1,2-Diphenylhydrazine
106898
106887
140885
100414
51796
75003
106934
107062
107211
Epichlorohydrin (1-Chloro-2,3-epoxypropane)
1,2-Epoxybutane
Ethyl acrylate
Ethyl benzene
Ethyl carbamate (Urethane)
Ethyl chloride (Chloroethane)
Ethylene dibromide (Dibromoethane)
Ethylene dichloride (1,2-Dichloroethane)
Ethylene glycol
151564
Ethylene canine (Aziridine)
75218
Ethylene oxide
96457
Ethylene thiourea
75343
50000
76448
Ethylidene dichloride (1,1-Dichloroethane)
Formaldehyde
Heptachlor
118741
Hexachlorobenzene
87683
Hexachlorobutadiene
77474
Hexachlorocyclopentadiene
67721
Hexachloroethane
822060
Hexamethylene-l,6-diisocyanate
680319
Hexamethylphosphoramide
110543
302012
Hexane
Hydrazine
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Hydrochloric acid
Hydrogen fluoride (Hydrofluoric acid)
123319
Hydroquinone
78591
Isophorone
58899
Lindane (all isomers)
108316
Malefic anhydride
67561
Methanol
72435
74839
Methoxychlor
Methyl bromide (Bromomethane)
74873
Methyl chloride (Chloromethane)
71556
78933
60344
74884
Methyl chloroform (1,1,1-Trichloroethane)
Methyl ethyl ketone (2-Butanone)
Methyl hydrazine
Methyl iodide (Iodomethane)
108101
Methyl isobutyl ketone (Hexone)
624839
Methyl isocyanate
80626
1634044
101144
75092
Methyl methacrylate
Methyl tert butyl ether
4,4-Methylene bis(2-chloroaniline)
Methylene chloride (Dichloromethane)
101688
Methylene diphenyl diisocyanate (MIDI)
101779
91203
98953
92933
100027
4,4'-Methylenedianiline
Naphthalene
Nitrobenzene
4-Nitrobiphenyl
4-Nitrophenol
79469
2-Nitropropane
684935
N-Nitroso-N-methylurea
62759
N-Nitrosodimethylamine
59892
N-Nitrosomorpholine
56382
Parathion
82688
Pentachloronitrobenzene (Quintobenzene)
87865
Pentachlorophenol
108952
Phenol
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106503
p-Phenylenediamine
75445
Phosgene
7803512
Phosphene
7723140
Phosphorus
85449
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Phthalic anhydride
1336363
Polychlorinated biphenyls (Aroclors)
1120714
57578
1,3-Propane sultone
beta-Propiolactone
123386
114261
Propionaldehyde
Propoxur (Baygon)
78875
Propylene dichloride (1,2-Dichloropropane)
75569
Propylene ode
75558
1,2-Propylenimine (2-Methyl aziridine)
91225
Quinoline
106514
Quinone
100425
Styrene
96093
1746016
Styrene ode
2,3,7,8-Tetrachlorodibenzo-p-dio~n
79345
1,1,2,2-Tetrachloroethane
127184
Tetrachloroethylene (I'erchloroethylene)
7550450
Titanium tetrachloride
108883
Toluene
95807
2,4-Toluene diamine
584849
2,4-Toluene diisocyanate
95534
o-Toluidine
8001352
120821
Toxaphene (chlorinated camphene)
1,2,4-Trichlorobenzene
79005
1,1,2-Trichloroethane
79016
Trichloroethylene
2,4,5-Trichlorophenol
95954
88062
121448
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2,4,6-Trichlorophenol
1582098
Triethylamine
Trifluralin
540841
2,2,4-Trimethylpentane
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108054
593602
75014
75354
1330207
95476
108383
106423
0
0
0
0
0
0
0
0
0
0
0
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Vinyl acetate
Vinyl bromide
Vinyl chloride
Vinylidene chloride (1,1-Dichloroethylene)
Xylenes (isomers and rriixture)
o-Xylenes
m-Xylenes
p-Xylenes
Antimony Compounds
Arsenic Compounds (inorganic including arsine)
Beryllium Compounds
Cadmium Compounds
Chromium Compounds
Cobalt Compounds
Coke Oven Emissions
Cyanide Compounds)
Glycol ethers2
Lead Compounds
Manganese Compounds
0
Mercury Compounds
0
Fine mineral fibers3
0
Nickel Compounds
0
Polycylic Organic Matter4
0
Radionuclides (including radon)5
0
Selenium Compounds
NOTE: For all listings above which contain the word "compounds" and for glycol
ethers, the following applies: Unless otherwise specified, these listings are defined as
including any unique chemical substance that contains the named chemical (i.e.,
antimony, arsenic, etc.) as part of that chemical's infrastructure.
1 X'CN where X = H'or any other group where a formal dissociation may occur. For
example KCN or Ca(CN)z
Z Includes mono- and di- ethers of ethylene glycol, diethylene glycol, and triethylene
glycol R-(OCHzCHz) n-OR' where
n= 1,2,or3
R =alkyl or aryl groups
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R'= R, H,or groups which, when removed, yield glycol ethers with the structure: R(OCH2CH) nOH.Polymers are excluded from the glycol category.
3 Includes mineral fiber emissions from facilities manufacturing or processing glass,
rock, or slag fibers (or other mineral derived fibers) of average diameter 1
micrometer or less.
4 Includes organic compounds with more than one benzene ring, and which have a
boiling point greater than or equal to 100°C.
5 A type of atom which spontaneously undergoes radioactive decay.
(2) Revision of the list
The Administrator shall periodically review the list established by this subsection and
publish the results thereof and, where appropriate, revise such list by rule, adding
pollutants which present, or may present, through inhalation or other routes of
exposure, a threat of adverse human health effects (including, but not limited to,
substances which are known to be, or may reasonably be anticipated to be,
carcinogenic, mutagenic, teratogenic, neurotoxic, which cause reproductive
dysfunction, or which are acutely or chronically to~c) or adverse environmental
effects whether through ambient concentrarions, bioaccumulation, deposirion, or
otherwise, but not including releases subject to regulation under subsection (r) of this
section as a result of emissions to the air. No air pollutant which is listed under
section 7408(a) of this title may be added to the list under this section, except that the
prohibition of this sentence shall not apply to any pollutant which independently
meets the listing criteria of this paragraph and is a precursor to a pollutant which is
listed under section 7408(a) of this tide or to any pollutant which is in a class of
pollutants listed under such section. No substance, practice, process or activity
regulated under subchapter VI of this chapter shall be subject to regulation under this
section solely due to its adverse effects on the environment.
(3) Petitions to modify the list
(A) Beginning at any time after 6 months after November 15, 1990, any person may
petition the Administrator to modify the list of hazardous air pollutants under this
subsection by adding or deleting a substance or,in case of listed pollutants without
CAS numbers (other than coke oven emissions, mineral fibers, or polycyclic organic
matter) removing certain unique substances. Within 18 months after receipt of a
petition, the Administrator shall either grant or deny the petition by publishing a
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written explanation of the reasons for the Administrator's decision. Any such petition
shall include a showing by the petitioner that there is adequate data on the health or
environmental defects1 of the pollutant or other evidence adequate to support the
petition. The Administrator may not deny a petition solely on the basis of inadequate
resources or time for review.
(B) The Administrator shall add a substance to the list upon a showing by the
petitioner or on the Administrator's own determinarion that the substance is an air
pollutant and that emissions, ambient concentrations, bioaccumulation or deposition
of the substance are known to cause or may reasonably be anticipated to cause
adverse effects to human health or adverse environmental effects.
(C) The Administrator shall delete a substance from the list upon a showing by the
petitioner or on the Administrator's own determination that there is adequate data on
the health and environmental effects of the substance to determine that emissions,
ambient concentrations, bioaccumulation or deposition of the substance may not
reasonably be anticipated to cause any adverse effects to the human health or adverse
environmental effects.
(D)The Administrator shall delete one or more unique chemical substances that
contain a listed hazardous air pollutant not having a CAS number (other than coke
oven emissions, mineral fibers, or polycyclic organic matter) upon a showing by the
petitioner or on the Administrator's own determination that such unique chemical
substances that contain the named chemical of such listed hazardous air pollutant
meet the deletion requirements of subparagraph (C). The Administrator must grant or
deny a deletion petition prior to promulgating any emission standards pursuant to
subsection (d) of this section applicable to any source category or subcategory of a
listed hazardous air pollutant without a CAS number listed under subsection (b) of
this section for which a delerion petirion has been filed within 12 months of
November 15, 1990.
(4) Further information
If the Administrator determines that information on the health or environmental
effects of a substance is not sufficient to make a determination required by this
subsection, the Administrator may use any authority available to the Administrator to
acquire such information.
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(5) Test methods
The Administrator may establish, by rule, test measures and other analytic procedures
for monitoring and measuring emissions, ambient concentrations, deposition, and
bioaccumulation of hazardous air pollutants.
(6) Prevention of significant deterioration
The provisions of part C of this subchapter (prevention of significant deterioration)
shall not apply to pollutants listed under this section.
(7) Lead
The Administrator may not list elemental lead as a hazardous air pollutant under this
subsecrion.
(c) List of source categories
(1) In general
Not later than 12 months after November 15, 1990, the Administrator shall publish,
and shall from time to time, but no less often than every 8 years, revise, if appropriate,
in response to public comment or new information, a list of all categories and
subcategories of major sources and area sources (listed under paragraph (3)) of the air
pollutants listed pursuant to subsection (b) of this section. To the extent practicable,
the categories and subcategories listed under this subsection shall be consistent with
the list of source categories established pursuant to section 7411 of this tide and part
C of this subchapter. Nothing in the preceding sentence limits the Administrator's
authority to establish subcategories under this section, as appropriate.
(2) Requirement for emissions standards
For the categories and subcategories the Administrator lists, the Administrator shall
establish emissions standards under subsection (d) of this section, according to the
schedule in this subsection and subsection (e) of this section.
(3) Area sources
The Administrator shall list under this subsection each category or subcategory of area
sources which the Administrator finds presents a threat of adverse effects to human
health or the environment(by such sources individually or in the aggregate)
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warranting regulation under this section. The Admitustrator shall, not later than 5
years after November 15, 1990, and pursuant to subsection (k)(3)(B) of this section,
list, based on actual or estimated aggregate emissions of a listed pollutant or
pollutants, sufficient categories or subcategories of area sources to ensure that area
sources representing 90 percent of the area source emissions of the 30 hazardous air
pollutants that present the greatest threat to public health in the largest number of
urban areas are subject to regulation under this section. Such regulations shall be
promulgated not later than 10 years after November 15, 1990.
(4) Previously regulated categories
The Administrator may,in the Administrator's discretion, list any category or
subcategory of sources previously regulated under this section as in effect before
November 15, 1990.
(5) Additional categories
In addition to those categories and subcategories of sources listed for regulation
pursuant to paragraphs (1) and (3), the Administrator may at any time list additional
categories and subcategories of sources of hazardous air pollutants according to the
same criteria for listing applicable under such paragraphs. In the case of source
categories and subcategories listed after publication of the initial list required under
paragraph (1) or (3), emission standards under subsection (d) of this section for the
category or subcategory shall be promulgated within 10 years after November 15,
1990, or within 2 years after the date on which such category or subcategory is listed,
whichever is later.
(6) Specific pollutants
With respect to alkylated lead compounds, polycyclic organic matter,
hexachlorobenzene, mercury, polychlorinated biphenyls, 2,3,7,8tetrachlorodibenzofurans and 2,3,7,8-tetrachlorodibenzo-p-dio~n, the Administrator
shall, not later than 5 years after November 15, 1990, list categories and subcategories
of sources assuring that sources accounting for not less than 90 per centum of the
aggregate emissions of each such pollutant are subject to standards under subsection
(d)(2) or (d)(4) of this section. Such standards shall be promulgated not later than 10
years after November 15, 1990. This paragraph shall not be construed to require the
Administrator to promulgate standards for such pollutants emitted by electric utility
steam generating units.
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(7) Research facilities
The Administrator shall establish a separate category covering research or laboratory
facilities, as necessary to assure the equitable treatment of such facilities. For purposes
of this section, "research or laboratory facility" means any stationary source whose
primary purpose is to conduct research and development into new processes and
products, where such source is operated under the close supervision of technically
trained personnel and is not engaged in the manufacture of products for commercial
sale in commerce, except in a de miniinis manner.
(8) Boat manufacturing
When establishing emissions standards for styrene, the Administrator shall list boat
manufacturing as a separate subcategory unless the Administrator finds that such
listing would be inconsistent with the goals and requirements of this chapter.
(9) Deletions from the list
(A) Where the sole reason for the inclusion of a source category on the list required
under this subsection is the emission of a unique chemical substance, the
Administrator shall delete the source category from the list if it is appropriate because
of action taken under either subparagraphs (C) or(D) of subsection (b)(3) of this
section.
(B) The Administrator may delete any source category from the list under this
subsection, on petition of any person or on the Administrator's own motion,
whenever the Administrator makes the following determination or determinations, as
applicable:
(i) In the case of hazardous air pollutants emitted by sources in the category that may
result in cancer in humans, a determination that no source in the category (or group
of sources in the case of area sources) emits such hazardous air pollutants in
quantities which may cause a lifetime risk of cancer greater than one in one million to
the individual in the population who is most exposed to emissions of such pollutants
from the source (or group of sources in the case of area sources).
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(u) In the case of hazardous air pollutants that may result in adverse health effects in
humans other than cancer or adverse environmental effects, a determination that
emissions from no source in the category or subcategory concerned (or group of
sources in the case of area sources) exceed a level which is adequate to protect public
health with an ample margin of safety and no adverse environmental effect will result
from emissions from any source (or from a group of sources in the case of area
sources).
The Administrator shall grant or deny a petition under this paragraph within 1 year
after the petition is filed.
(d) Emission standards
(1) In general
The Administrator shall promulgate regulations establishing emission standards for
each category or subcategory of major sources and area sources of hazardous air
pollutants listed for regulation pursuant to subsection (c) of this section in accordance
with the schedules provided in subsections (c) and (e) of this section. The
Administrator may distinguish among classes, types, and sizes of sources within a
category or subcategory in establishing such standards except that, there shall be no
delay in the compliance date for any standard applicable to any source under
subsection (i) of this section as the result of the authority provided by this sentence.
(2) Standards and methods
Emissions standards promulgated under this subsection and applicable to new or
existing sources of hazardous air pollutants shall require the maxirrium degree of
reduction in emissions of the hazardous air pollutants subject to this section
(including a prohibition on such emissions, where achievable) that the Admiiustrator,
taking into consideration the cost of achieving such emission reduction, and any nonair quality health and environmental impacts and energy requirements, determines is
achievable for new or existing sources in the category or subcategory to which such
emission standard applies, through application of measures, processes, methods,
systems or techniques including, but not limited to, measures which-(A) reduce the volume of, or eliminate emissions of, such pollutants through process
changes, substitution of materials or other modifications,
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(B) enclose systems or processes to eliminate emissions,
(C) collect, capture or treat such pollutants when released from a process, stack,
storage or fugitive emissions point,
(D) are design, equipment, work practice, or operational standards (including
requirements for operator training or certification) as provided in subsection (h) of
this secrion, or
(E) are a combination of the above.
None of the measures described in subparagraphs (A) through (D) shall, consistent
with the provisions of secrion 7414(c) of this rifle, in any way compromise any United
States patent or United States trademark right, or any confidential business
information, or any trade secret or any other intellectual property right.
(3) New and existing sources
The maximum degree of reduction in emissions that is deemed achievable for new
sources in a category or subcategory shall not be less stringent than the emission
control that is achieved in practice by the best controlled similar source, as determined
by the Administrator. Emission standards promulgated under this subsection for
e~sting sources in a category or subcategory may be less stringent than standards for
new sources in the same category or subcategory but shall not be less stringent, and
may be more stringent than-(A) the average emission limitation achieved by the best performing 12 percent of the
e~sting sources (for which the Administrator has emissions information), excluding
those sources that have, within 18 months before the emission standard is proposed
or within 30 months before such standard is promulgated, whichever is later, first
achieved a level of emission rate or emission reduction which complies, or would
comply if the source is not subject to such standard, with the lowest achievable
emission rate (as defined by section 7501 of this title) applicable to the source
category and prevailing at the time,in the category or subcategory for categories and
subcategories with 30 or more sources, or
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(B) the average emission limitarion achieved by the best performing 5 sources (for
which the Adrrunistrator has or could reasonably obtain emissions information) in the
category or subcategory for categories or subcategories with fewer than 30 sources.
(4) Health threshold
With respect to pollutants for which a health threshold has been established, the
Administrator may consider such threshold level, with an ample margin of safety,
when establishing emission standards under this subsection.
(5) Alternative standard for area sources
With respect only to categories and subcategories of area sources listed pursuant to
subsection (c) of this section, the Administrator may,in lieu of the authorities
provided in paragraph (2) and subsection (~ of this section, elect to promulgate
standards or requirements applicable to sources in such categories or subcategories
which provide for the use of generally available control technologies or management
practices by such sources to reduce emissions of hazardous air pollutants.
(6) Review and revision
The Administrator shall review, and revise as necessary (taking into account
developments in practices, processes, and control technologies), emission standards
promulgated under this section no less often than every 8 years.
(7) Other requirements preserved
No emission standard or other requirement promulgated under this section shall be
interpreted, construed or applied to diminish or replace the requirements of a more
stringent emission limitation or other applicable requirement established pursuant to
section 7411 of this title, part C or D of this subchapter, or other authority of this
chapter or a standard issued under State authority.
(8) Coke ovens
(A) Not later than December 31, 1992, the Administrator shall promulgate regulations
establishing emission standards under paragraphs (2) and (3) of this subsection for
coke oven batteries. In establishing such standards, the Administrator shall evaluate--
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(i) the use of sodium silicate (or equivalent) luting compounds to prevent door leaks,
and other operating practices and technologies for their effectiveness in reducing coke
oven emissions, and their suitability for use on new and e~sting coke oven batteries,
taking into account costs and reasonable commercial door warranties; and
(u) as a basis for emission standards under this subsection for new coke oven batteries
that begin construction after the date of proposal of such standards, the Jewell design
Thompson non-recovery coke oven batteries and other non-recovery coke oven
technologies, and other appropriate emission control and coke production
technologies, as to their effectiveness in reducing coke oven emissions and their
capability for production of steel quality coke.
Such regulations shall require at a minimum that coke oven batteries will not exceed 8
per centum leaking doors, 1 per centum leaking lids, 5 per centum leaking offtakes,
and 16 seconds visible emissions per charge, with no exclusion for emissions during
the period after the closing of self-sealing oven doors. Notwithstanding subsection (i)
of this section, the compliance date for such emission standards for e~sting coke
oven batteries shall be December 31, 1995.
(B) The Administrator shall promulgate work practice regulations under this
subsection for coke oven batteries requiring, as appropriate-(i) the use of sodium silicate (or equivalent) luting compounds,if the Administrator
determines that use of sodium silicate is an effective means of emissions control and
is achievable, taking into account costs and reasonable commercial warranties for
doors and related equipment; and
(u) door and jam cleaning practices.
Notwithstanding subsection (i) of this section, the compliance date for such work
practice regulations for coke oven batteries shall be not later than the date 3 years
after November 15, 1990.
(C) For coke oven batteries electitng to qualify for an extension of the compliance date
for standards promulgated under subsection (~ of this section in accordance with
subsection (i)(8) of this section,the emission standards under this subsection for coke
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oven batteries shall require that coke oven batteries not exceed 8 per centum leaking
doors, 1 per centum leaking lids, 5 per centum leaking offtakes, and 16 seconds visible
emissions per charge, with no exclusion for emissions during the period after the
closing of self-sealing doors. Notwithstanding subsection (i) of this section, the
compliance date for such emission standards for e~sting coke oven batteries seeking
an extension shall be not later than the date 3 years after November 15, 1990.
(9) Sources licensed by the Nuclear Regulatory Commission
No standard for radionuclide emissions from any category or subcategory of facilities
licensed by the Nuclear Regulatory Commission (or an Agreement State) is required
to be promulgated under this section if the Administrator determines, by rule, and
after consultation with the Nuclear Regulatory Coininission, that the regulatory
program established by the Nuclear Regulatory Commission pursuant to the Atomic
Energy Act [42 U.S.C.A. ~ 2011 et seq.] for such category or subcategory provides an
ample margin of safety to protect the public health. Nothing in this subsection shall
preclude or deny the right of any State or political subdivision thereof to adopt or
enforce any standard or limitarion respecting emissions of radionuclides which is
more stringent than the standard or limitation in effect under section 7411 of this tide
or this section.
(10) Effective date
Emission standards or other regulations promulgated under this subsection shall be
effective upon promulgation.
***
(n) Other provisions
(1) Electric utility steam generating units
(A) The Administrator shall perform a study of the hazards to public health
reasonably anticipated to occur as a result of emissions by electric utility steam
generating units of pollutants listed under subsection (b) of this section after
imposirion of the requirements of this chapter. The Administrator shall report the
results of this study to the Congress within 3 years after November 15, 1990. The
Administrator shall develop and describe in the Administrator's report to Congress
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alternative control strategies for emissions which may warrant regulation under this
secrion. The Administrator shall regulate electric utility steam generaring units under
this section, if the Administrator finds such regulation is appropriate and necessary
after considering the results of the study required by this subparagraph.
(B) The Administrator shall conduct, and transmit to the Congress not later than 4
years after November 15, 1990, a study of mercury emissions from electric utility
steam generating units, municipal waste combustion units, and other sources,
including area sources. Such study shall consider the rate and mass of such emissions,
the health and environmental effects of such emissions, technologies which are
available to control such emissions, and the costs of such technologies.
(C) The National Institute of Environmental Health Sciences shall conduct, and
transmit to the Congress not later than 3 years after November 15, 1990, a study to
determine the threshold level of mercury exposure below which adverse human health
effects are not expected to occur. Such study shall include a threshold for mercury
concentrations in the tissue of fish which may be consumed (including consumption
by sensitive populations) without adverse effects to public health.
(2) Coke oven production technology study
(A) The Secretary of the Department of Energy and the Administrator shall jointly
undertake a 6-year study to assess coke oven production emission control
technologies and to assist in the development and commercialization of technically
practicable and economically viable control technologies which have the potential to
significantly reduce emissions of hazardous air pollutants from coke oven production
facilities. In identifying control technologies, the Secretary and the Administrator shall
consider the range of e~sring coke oven operarions and battery design and the
availability of sources of materials for such coke ovens as well as alternatives to
e~sting coke oven production design.
(B) The Secretary and the Administrator are authorized to enter into agreements with
persons who propose to develop, install and operate coke production emission
control technologies which have the potential for significant emissions reductions of
hazardous air pollutants provided that Federal funds shall not exceed 50 per centum
of the cost of any project assisted pursuant to this paragraph.
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(C) On completion of the study, the Secretary shall submit to Congress a report on
the results of the study and shall make recommendations to the Administrator
identifying practicable and economically viable control technologies for coke oven
production facilities to reduce residual risks remaiiung after implementation of the
standard under subsection (d) of this section.
(D)There are authorized to be appropriated $5,000,000 for each of the fiscal years
1992 through 1997 to carry out the program authorized by this paragraph.
(3) Publicly owned treatment works
The Administrator may conduct,in cooperation with the owners and operators of
publicly owned treatment works, studies to characterize emissions of hazardous air
pollutants emitted by such facilities, to identify industrial, commercial and residential
discharges that contribute to such emissions and to demonstrate control measures for
such emissions. When promulgating any standard under this section applicable to
publicly owned treatment works, the Administrator may provide for control measures
that include pretreatment of discharges causing emissions of hazardous air pollutants
and process or product substitutions or limitations that may be effective in reducing
such emissions. The Administrator may prescribe uniform sampling, modeling and
risk assessment methods for use in implementing this subsection.
(4) Oil and gas wells; pipeline facilities
(A) Notwithstanding the provisions of subsection (a) of this section, emissions from
any oil or gas exploration or production well (with its associated equipment) and
emissions from any pipeline compressor or pump station shall not be aggregated with
emissions from other similar units, whether or not such units are in a contiguous area
or under common control, to determine whether such units or stations are major
sources, and in the case of any oil or gas exploration or production well (with its
associated equipment), such emissions shall not be aggregated for any purpose under
this section.
(B) The Administrator shall not list oil and gas production wells (with its associated
equipment) as an area source category under subsection (c) of this section, except that
the Administrator may establish an area source category for oil and gas production
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wells located in any metropolitan statistical area or consolidated metropolitan
statistical area with a population in excess of 1 million, if the Administrator
determines that emissions of hazardous air pollutants from such wells present more
than a negligible risk of adverse effects to public health.
(5) Hydrogen sulfide
The Administrator is directed to assess the hazards to public health and the
environment resulting from the emission of hydrogen sulfide associated with the
extraction of oil and natural gas resources. To the extent practicable, the assessment
shall build upon and not duplicate work conducted for an assessment pursuant to
secrion 8002(m) of the Solid Waste Disposal Act[42 U.S.C.A. ~ 6982(m)]and shall
reflect consultation with the States. The assessment shall include a review of e~sting
State and industry control standards, techniques and enforcement. The Administrator
shall report to the Congress within 24 months after November 15, 1990, with the
findings of such assessment, together with any recommendations, and shall, as
appropriate, develop and implement a control strategy for emissions of hydrogen
sulfide to protect human health and the environment, based on the findings of such
assessment, using authorities under this chapter including sections3 7411 of this title
and this section.
(6) Hydrofluoric acid
Not later than 2 years after November 15, 1990, the Administrator shall, for those
regions of the country which do not have comprehensive health and safety regulations
with respect to hydrofluoric acid, complete a study of the potential hazards of
hydrofluoric acid and the uses of hydrofluoric acid in industrial and commercial
applications to public health and the environment considering a range of events
including worst-case accidental releases and shall make recommendations to the
Congress for the reduction of such hazards, if appropriate.
(7) RCRA faciliries
In the case of any category or subcategory of sources the air emissions of which are
regulated under subtitle C of the Solid Waste Disposal Act[42 U.S.C.A. ~ 6921 et
seq.], the Administrator shall take into account any regulations of such emissions
which are promulgated under such subtitle and shall, to the maxirrium extent
practicable and consistent with the provisions of this section, ensure that the
requirements of such subtitle and this section are consistent.
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*~*
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42 U.S.C. ~ 7416. Retention of State authority
Except as otherwise provided in sections 1857c-10(c),(e), and (f~ (as in effect before
August 7, 1977), 7543, 7545(c)(4), and 7573 of this tide (preempting certain State
regulation of moving sources) nothing in this chapter shall preclude or deny the right
of any State or political subdivision thereof to adopt or enforce (1) any standard or
limitation respecting emissions of air pollutants or (2) any requirement respecting
control or abatement of air pollution; except that.if an emission standard or limitation
is in effect under an applicable implementation plan or under section 7411 or section
7412 of this title, such State or political subdivision may not adopt or enforce any
emission standard or limitation which is less stringent than the standard or limitation
under such plan or section.
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42 U.S.C. ~ 7604. Citizen suits
(a) Authority to bring civil action; jurisdiction. Except as provided in subsection (b),
any person may commence a civil action on his own behalf-(1) against any person (including (i) the United States, and (ii) any other governmental
instrumentality or agency to the extent pernlitted by the Eleventh Amendment to the
Constitution) who is alleged to have violated (if there is evidence that the alleged
violation has been repeated) or to be in violation of(A) an emission standard or
limitation under this Act or (B) an order issued by the Administrator or a State with
respect to such a standard or limitation,
(2) against the Administrator where there is alleged a failure of the Administrator to
perform any act or duty under this Act which is not discrerionary with the
Administrator, or
(3) against any person who proposes to construct or constructs any new or modified
major emitting facility without a permit required under part C of rifle I [42 USCS ~~
7470 et seq.] (relating to significant deterioration of air quality) or part D of tide I [42
USCS ~~ 7501 et seq.] (relating to nonattainment) or who is alleged to have violated (if
there is evidence that the alleged violation has been repeated) or to be in violatton of
any condition of such permit.
The district courts shall have jurisdiction, without regard to the amount in
controversy or the citizenship of the parties, to enforce such an emission standard or
limitation, or such an order, or to order the Administrator to perform such act or
duty, as the case may be, and to apply any appropriate civil penalties (except for
actions under paragraph (2)). The district courts of the United States shall have
jurisdiction to compel (consistent with paragraph (2) of this subsection) agency action
unreasonably delayed, except that an action to compel agency action referred to in
section 307(b)[42 USCS ~ 7607(b)] which is unreasonably delayed may only be filed
in a United States District Court within the circuit in which such action would be
reviewable under section 307(b)[42 USCS ~ 7607(b)]. In any such action for
unreasonable delay, notice to the entities referred to in subsection (b)(1)(A) shall be
provided 180 days before commencing such action.
*=~~
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42 U.S.C. ~ 7607. Administrative proceedings and judicial review
~**
(b) Judicial review
(1) A petition for review of action of the Administrator in promulgating any national
primary or secondary ambient air quality standard, any emission standard or
requirement under section 7412 of this title, any standard of performance or
requirement under section 7411 of this title„2 any standard under section 7521 of this
title (other than a standard required to be prescribed under section 7521(b)(1) of this
title), any determination under section 7521(b)(5) of this title, any control or
prohibition under section 7545 of this title, any standard under section 7571 of this
title, any rule issued under section 7413, 7419, or under section 7420 of this title, or
any other nationally applicable regulations promulgated, or final action taken, by the
Administrator under this chapter may be filed only in the United States Court of
Appeals for the District of Columbia. A petition for review of the Administrator's
action in approving or promulgating any implementation plan under section 7410 of
this tide or section 7411(d) of this title, any order under section 7411(j) of this title,
under section 7412 of this tide, under section 7419 of this title, or under section 7420
of this tide, or his action under section 1857c-10(c)(2)(A),(B), or (C) of this title (as in
effect before August 7, 1977) or under regulations thereunder, or revising regulations
for enhanced monitoring and compliance certification programs under section
7414(a)(3) of this tide, or any other final action of the Administrator under this
chapter (including any denial or disapproval by the Admiiustrator under subchapter I
of this chapter) which is locally or regionally applicable may be filed only in the
United States Court of Appeals for the appropriate circuit. Notwithstanding the
preceding sentence a petition for review of any action referred to in such sentence
may be filed only in the United States Court of Appeals for the District of Columbia
if such action is based on a determination of nationwide scope or effect and if in
taking such action the Administrator finds and publishes that such action is based on
such a determination. Any petition for review under this subsection shall be filed
within sixty days from the date notice of such promulgation, approval, or action
appears in the Federal Register, except that if such petition is based solely on grounds
arising after such sixtieth day, then any petition for review under this subsection shall
be filed within sixty days after such grounds arise. The filing of a petirion for
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reconsideration by the Administrator of any otherwise final rule or action shall not
affect the finality of such rule or action for purposes of judicial review nor extend the
time within which a petirion for judicial review of such rule or acrion under this
section may be filed, and shall not postpone the effectiveness of such rule or action.
(2) Action of the Administrator with respect to which review could have been
obtained under paragraph (1) shall not be subject to judicial review in civil or criminal
proceedings for enforcement. Where a final decision by the Administrator defers
performance of any nondiscretionary statutory action to a later time, any person may
challenge the deferral pursuant to paragraph (1).
*~~
(d) Rulemaking
(1) This subsection applies to-(A) the promulgation or revision of any national ambient air quality standard under
section 7409 of this title,
(B) the promulgation or revision of an implementation plan by the Administrator
under section 7410(c) of this title,
(C) the promulgation or revision of any standard of performance under section 7411
of this title, or emission standard or limitation under section 7412(d) of this tide, any
standard under section 74120 of this tide, or any regulation under section
7412(g)(1)(D) and(~ of this tide, or any regulation under section 7412(m) or (n) of
this tide,
(D) the promulgation of any requirement for solid waste combustion under section
7429 of this title,
(E) the promulgation or revision of any regulation pertaining to any fuel or fuel
additive under section 7545 of this tide,
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(F~ the promulgation or revision of any aircraft emission standard under section 7571
of this title,
(G) the promulgation or revision of any regulation under subchapter IV-A of this
chapter (relating to control of acid deposition),
(I-~ promulgation or revision of regulations pertaining to primary nonferrous smelter
orders under section 7419 of this tide (but not including the granting or denying of
any such order),
(~ promulgarion or revision of regularions under subchapter VI of this chapter
(relating to stratosphere and ozone protection),
Q) promulgation or revision of regulations under part C of subchapter I of this
chapter (relating to prevention of significant deterioration of air quality and protection
of visibility),
(I~ promulgation or revision of regulations under section 7521 of this tide and test
procedures for new motor vehicles or engines under section 7525 of this tide, and the
revision of a standard under section 7521(a)(3) of this title,
(L) promulgation or revision of regulations for noncompliance penalties under section
7420 of this title,
(N~ promulgation or revision of any regulations promulgated under section 7541 of
this title (relating to warranties and compliance by vehicles in actual use),
(N) action of the Administrator under section 7426 of this title (relating to interstate
pollution abatement),
(0) the promulgation or revision of any regulation pertaining to consumer and
commercial products under section 7511b(e) of this title,
(I') the promulgation or revision of any regulation pertaining to field citations under
section 7413(d)(3) of this tide,
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(~ the promulgation or revision of any regulation pertaining to urban buses or the
clean-fuel vehicle, clean-fuel fleet, and clean fuel programs under part C of subchapter
II of this chapter,
(R) the promulgation or revision of any regulation pertaining to nonroad engines or
nonroad vehicles under section 7547 of this title,
(S) the promulgation or revision of any regulation relating to motor vehicle
compliance program fees under section 7552 of this title,
(T, the promulgation or revision of any regulation under subchapter IV-A of this
chapter (relating to acid deposition),
(U) the promulgation or revision of any regulation under section 7511b(~ of this tide
pertaining to marine vessels, and
(~ such other actions as the Administrator may determine.
The provisions of section 553 through 557 and section 706 of Title 5 shall not, except
as expressly provided in this subsection, apply to actions to which this subsection
applies. This subsection shall not apply in the case of any rule or circumstance
referred to in subparagraphs (A) or (B) of subsection 553(b) of Title 5.
(2) Not later than the date of proposal of any action to which this subsection applies,
the Administrator shall establish a rulemaking docket for such action (hereinafter in
this subsection referred to as a "rule"). Whenevex a rule applies only within a
particular State, a second (identical) docket shall be simultaneously established in the
appropriate regional office of the Environmental Protection Agency.
(3) In the case of any rule to which this subsection applies, notice of proposed
rulemaking shall be published in the Federal Register, as provided under section
553(b) of Tide 5, shall be accompanied by a statement of its basis and purpose and
shall specify the period available for public comment (hereinafter referred to as the
"comment period"). The notice of proposed rulemaking shall also state the docket
number, the location or locations of the docket, and the times it will be open to public
inspection. The statement of basis and purpose shall include a summary of--
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(A) the factual data on which the proposed rule is based;
(B) the methodology used in obtaining the data and in analyzing the data; and
(C) the major legal interpretations and policy considerations underlying the proposed
rule.
The statement shall also set forth or summarize and provide a reference to any
pertinent findings, recommendations, and comments by the Scientific Review
Committee established under section 7409(d) of this tide and the National Academy
of Sciences, and,if the proposal differs in any important respect from any of these
recommendations, an explanation of the reasons for such differences. All data,
information, and documents referred to in this paragraph on which the proposed rule
relies shall be included in the docket on the date of publication of the proposed rule.
(4)(A) The rulemaking docket required under paragraph (2) shall be open for
inspection by the public at reasonable times specified in the notice of proposed
rulemaking. Any person may copy documents contained in the docket. The
Administrator shall provide copying facilities which may be used at the expense of the
person seeking copies, but the Administrator may waive or reduce such expenses in
such instances as the public interest requires. Any person may request copies by mail
if the person pays the expenses,including personnel costs to do the copying.
(B)(i) Promptly upon receipt by the agency, all written comments and documentary
information on the proposed rule received from any person for inclusion in the
docket during the comment period shall be placed in the docket. The transcript of
public hearings, if any, on the proposed rule shall also be included in the docket
promptly upon receipt from the person who transcribed such hearings. All documents
which become available after the proposed rule has been published and which the
Administrator deternunes are of central relevance to the rulemaking shall be placed in
the docket as soon as possible after their availability.
(ii) The drafts of proposed rules submitted by the Administrator to the Office of
Management and Budget for any interagency review process prior to proposal of any
such rule, all documents accompanying such drafts, and all written comments thereon
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by other agencies and all written responses to such written comments by the
Administrator shall be placed in the docket no later than the date of proposal of the
rule. The drafts of the final rule submitted for such review process prior to
promulgation and all such written comments thereon, all documents accompanying
such drafts, and written responses thereto shall be placed in the docket no later than
the date of promulgation.
(5) In promulgating a rule to which this subsecrion applies (i) the Administrator shall
allow any person to submit written comments, data, or documentary information;(u)
the Administrator shall give interested persons an opportunity for the oral
presentation of data,. views, or arguments,in addition to an opportunity to make
written submissions;(ui) a transcript shall be kept of any oral presentation; and (iv)
the Administrator shall keep the record of such proceeding open for thirty days after
completion of the proceeding to provide an opportunity for submission of rebuttal
and supplementary information.
(6)(A)The promulgated rule shall be accompanied by (i) a statement of basis and
purpose like that referred to in paragraph (3) with respect to a proposed rule and (ii)
an explanation of the reasons for any major changes in the promulgated rule from the
proposed rule.
(B) The promulgated rule shall also be accompanied by a response to each of the
significant comments, criticisms, and new data submitted in written or oral
presentations during the comment period.
(C) The promulgated rule may not be based (in part or whole) on any information or
data which has not been placed in the docket as of the date of such promulgation.
(7)(A) The record for judicial review shall consist exclusively of the material referred
to in paragraph (3), clause (i) of paragraph (4)(B), and subparagraphs (A) and (B) of
paragraph (6).
(B) Only an objection to a rule or procedure which was raised with reasonable
specificity during the period for public comment (including any public hearing) may
be raised during judicial review. If the person raising an objection can demonstrate to
the Administrator that it was impracticable to raise such objection within such time or
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if the grounds for such objection arose after the period for public comment(but
within the time specified for judicial review) and if such objection is of central
relevance to the outcome of the rule, the Administrator shall convene a proceeding
for reconsideration of the rule and provide the same procedural rights as would have
been afforded had the information been available at the time the rule was proposed. If
the Administrator refuses to convene such a proceeding, such person may seek review
of such refusal in the United States court of appeals for the appropriate circuit (as
provided in subsection (b) of this section). Such reconsideration shall not postpone
the effectiveness of the rule. The effectiveness of the rule may be stayed during such
reconsideration, however, by the Administrator or the court for a period not to
exceed three months.
(8) The sole forum for challenging procedural determinations made by the
Administrator under this subsection shall be in the United States court of appeals for
the appropriate circuit (as provided in subsection (b) of this section) at the time of the
substantive review of the rule. No interlocutory appeals shall be permitted with
respect to such procedural determinations. In reviewing alleged procedural errors, the
court may invalidate the rule only if the errors were so serious and related to matters
of such central relevance to the rule that there is a substantial likelihood that the rule
would have been significantly changed if such errors had not been made.
(9) In the case of review of any action of the Administrator to which this subsection
applies, the court may reverse any such action found to be-(A) arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with
law;
(B) contrary to constitutional right, power, privilege, or iininunity;
(C)in excess of statutory jurisdiction, authority, or limitations, or short of statutory
right; or
(D) without observance of procedure required by law,if (i) such failure to observe
such procedure is arbitrary or capricious,(u) the requirement of paragraph (7)(B) has
been met, and (iu) the condition of the last sentence of paragraph (8) is met.
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(10) Each statutory deadline for promulgation of rules to which this subsection
applies which requires promulgation less than siY months after date of proposal may
be extended to not more than six months after date of proposal by the Administrator
upon a determination that such extension is necessary to afford the public, and the
agency, adequate opportunity to carry out the purposes of this subsection.
(11) The requirements of this subsection shall take effect with respect to any rule the
proposal of which occurs after ninety days after August 7, 1977.
(e) Other methods of judicial review not authorized
Nothing in this chapter shall be construed to authorize judicial review of regulations
or orders of the Administrator under this chapter, except as provided in this section.
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HOUSE OF REPRESENTATIVES
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REPami490
CLEAN AIR ACT AMENDMENTS OF 1990
REPORT
OF THE
COMMITTEE ON ENERGY AND COMMERCE
U.S. HOUSE OF REPRESENTATIVES
ON
H.R. 3030
together with
ADDITIONAL, STJPPLEMENTAL, AND
DISSENTING VIEWS
`,
~
~~
,; ti
MnY 17, 1990.—Ordered to be printed
U.B. GOVERNMENT PRINTING OFFICE
29-694
WASHINGTON : 1990
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315
Also provided is injunctive authority to restrain violations of fuels
regulations, as is already available for violations of vehicle and stationary source requirements.
Section 221. High altitude testing
This section requires that EPA promptly establish at least one
new testing center at a site that represents high altitude conditions.
Section 225. Technical amendments
Section 225 revises various sections of the Act to delete outdated
provisions and to improve the organization of Title II.
Title III.• Provisions for Control of Hazardous Air Pollution
INTRODUCTION
~tle III amends section 112 of the Clean Air Act to establish a
new program for the control of hazardous air pollutants. Pollutants
controlled under this section tend to be Less widespread than those
regulated under the NAAQS established under section 109 of the
Act, but are often associated with more serious health impacts,
such as cancer, neurological disorders, and reproductive dysfunctions. Because of their serious impacts, hazardous air pollutants
are subject nationally to uniform, source category and subcategory
specific controls.
BACKGROUND
Hazardous air pollutants are air pollutants that can cause serious fflnesses, such as cancer, or death. In theory, they were to be
stringently controlled under the existing Clean Air Act section 112.
However, as already noted, only seven of the hundreds of potentially hazardous air pollutants have been regulated by EPA since section 112 was enacted in 1970.
SUMMARY OF TITLE III
"Hazardous air pollutants" versus "criteria air pollutants"
The Clean Air Act distinguishes between two categories of pallutants: hazardous air pollutants and criteria or conventional air pollutants. Criteria air pollutants, as noted earlier, are defined as pollutants that "endanger public health or welfare" and "result from
numerous or diverse mobile or stationary sources." These pollutants tend to be more pervasive, but less potent, than hazardous air
pollutants. Examples include ozone, CO, and PM-10. The Act requires EPA to set National Ambient Air Quality Standards
(NAAQS)for these pollutants, which the States have responsibility
for achieving through State Implementation Plans (SIPs).
Hazardous air pollutants are pollutants that pose especially serious health risks. Under existing law, they are pollutants that
"cause or contribute to an increase in mortality or an increase in
serious irreversible, or incapacitating reversible, illness." They may
reasonably be anticipated to cause cancer, neurological disorders,
reproductive dysfunctions, other chronic health effects, or adverse
acute human health effects.
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HOUSE OF REPRESENTATIVES
{
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Page 52 of 66
REPORT
101-952
CLEAN AIR ACT AMENDMENTS
OF 1990
CONFERENCE REPORT
TO ACCOMPANY
S. 1630
OCTOBER
26, 1990.—Ordered to be printed
U.S. GOVERNMENT PRINTING OFFICE
:i:~dl'L
WASHINGTON : 1990
For sale by the Superintendent of Documents, U.S. Government Printing Office
Washington, DC 20402
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JOINT EXPLANATORY STATEMENT OF THE COMMITTEE OF
CONFERENCE
The managers on the part of the House and the Senate at the
conference on the disagreeing votes of the two Houses on the
amendments of the Houae to the bill (S. 1630) to amend the Clean
Air Act to provide for attainment and maintenance of health protective national ambient air quality standards, and for other purposes, submit the following joint statement to the House and the
Senate in explanation of the effect of the action agreed upon by the
managers and recommended in the accompanying conference
report:
The House amendment to the text of the bill struck out all of the
Senate bill after the enacting clause and inserted a substitute text.
The Senate recedes from its disagreement to the amendment of
the House with an amendment which is a substitute for the Senate
bill and the House amendment. Certain matters agreed to in conference are noted below.
The Conference agreement on S. 1630, the Clean Air Act Amendments of 1990, includes provisions addressing attainment and
maintenance of ambient air quality standards, mobile sources of
air pollution, toxic air pollution, acid rain, permits, enforcement,
stratospheric ozone protection, miscellaneous provisions, and clean
air research. A summary of the conference agreement follows.
TITLE I-NONATTAINMENT PROVI3ION8
title I of the conference agreement, which adopts the House
Title I except with respect to transportation related issues and with
a change concerning the regulation of oxides of nitrogen, divides
areas that fail to meet any one of the pollution standards listed
above into categories, depending on the severity of the problem,
and sets out requirements of different levels of stringency for each
category.
Depending on the severity of the pollution problem, nonattainment areas for any of the pollutants must attain the health standard for ozone within five, ten, fifteen, or seventeen years (twenty
years for Los Angeles).
In the case of ozone, areas must reduce emissions of volatile organic compounds (VOCs), a precursor of ozone, by 3 percent per
year (with waivers for certain specified conditions) until the standard ie attained.
Vehicle inspection and maintenance programs must be upgraded
in.ozone and carbon monoxide areas that already have such programs and must be instituted in most other areas that do not already have them.
The Environmental Protection Agency (EPA) is required to
impose one of the following sanctions in an area that fails to pre(335)
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~s
pare or implement a plan to attain an air quality standard: limited
use of Federal highway funds or a requirement that new industry
offset emissions at a 2•to 1 ratio.
Under the safety exemption to highway sanctions, the principsi
purpose of the project must be to improve highway safety, but the
project may also have other important benefits.
The definition of major sources in current law is modified so that
smaller sources of VOCs are required to control emissions (50 tons
in moderate and serious areas; 25 tons in severe areas; 10 tons in
extreme areas).
When a State fails to develop a plan that meets the requirements
of the law, the EPA is required to promulgate a Federal Implementation Plan.
The EPA is required to issue control requirements for a number
of sources of pollution, including commercial and consumer products.
A new program is established to address the interstate transport
of ozone air pollution.
The conferees adopt the House language on rocket testing with
the agreement that the appropriate Federal agency msy find that
testing required for a civilian or commercial launch program is easential to the national security.
Trri.E II—MaroR V~uc~•RELATED PROVISIONS
1~tle II is based on the House bill with a number of significant
modifications.
Reformulated gasoline
Cleaner, reformulated gasoline would be mandated in the nine
cities with the most severe ozone pollution beginning in 1995.
States could elect to have the requirements apply in other cities
with ozone pollution problems. In comparison with conventional
gasoline, reformulated gasoline would be required to have 15 percent lower emissions of VOCs and tonic chemicals by 1995, and
greater reductions by 2000. The agreement also contains additional
standards for oxygen, benzene, and aromatics.
Under section 211(kx4), a petition for the certification of a fuel
formulation or slate of fuel formulations is deemed certified
if the
Administrator fails to act on the petition within 180 days of its
receipt. Such a petition is deemed certified until the Administrator
completes action on the petition. In the
that the Administrator subsequently denies such a petition,event
the
conferee
s intend that
the Administrator will take appropriate steps
to ensure orderly
and prompt compliance.
Section 219 of the bill includes a credit program
to provide fleaibility in meeting the bill's requirements on
aromatic
the
oxygen,
hydrocarbon, and benzene content of reformulated gasoline
. A
credit program is the mechanism by which
these
persons
subject
to
requirements will be allowed to pool gasoline sold in
a given covered area for purposes of determining
complia
nce
with
these requirements.
Under this credit program, a person may earn
credit for gasoline
with a higher oxygen content, lower aromati
c hydrocarbon content,
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340
Permits
It is the conferees' intent that EPA not use the permit hammer
approach (case-by-case) to avoid or delay meeting MAGI requirements.
Routine Emissions From "Area"Sources
Based on the list of pollutants mentioned above, EPA can also
list an area source category just as the agency would list a major
source category, and can require MALT. EPA must list sufficient
source categories to assure that 90% of the emissions of the 30
most serious area source pollutants are regulated.
Five years after enactment, EPA is to propose a national urban
air toxics strategy to reduce cancer risks associated with urban air
toxics by 75%. EPA is to report on reductions achieved in S and 12
years intervals.
Accidental Releases
The agreement contains provisions that are designed to prevent
chemical accidents.
EPA is to publish a list of at least 100 regulated substances, of
which 16 are listed in the agreement.
EPA is authorized to promulgate accident prevention regulations.
The conferees do not intend the term "stationary source" to
apply to transportation, including the storage incident to such
transportation, of any regulated substance or other extremely ham
ardous substance under the provisions of this subsection.
The prohibition on listing substances for the accident prevention
program which have been listed under this section 108(a) does not
preclude the listing of anhydrous sulfur dioxide which is on the initial list.
The conference agreement establishes a Chemical Safety and
Hazard Investigation Board, similar to the National Transportation
Safety board, to investigate chemical accidents.
The Board is authorized to investigate accidental releases which
cause substantial property damage. Substantial damage would include fires, explosions, and other events which cause damages that
are very costly to repair or correct, and would not include incidental damage to equipment or controls.
Hazard assessments required under this section shall include:
(1) basic data on the source, units at the source facility
which contain or process regulated substances (including the
longitude and latitude of such units), operating procedures,
population of nearby communities, and the meteorology of the
area where the source is located;
(2) an identification of the potential points of accidental r~
leases from the source of regulated substances;
(3) an identification of any previous accidental releases from
the source including the amounts released, frequencies, and
durations;
(4) an identification of a range (including worst case events)
of potential releases from the source, including an estimate of
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The conferees intend that termination of the seasonal or temporary vse of a cleaner fuel shall not be considered a modification for
purposes of section 111 or part C of'I~tle I.
T1TI.6 V-PSQMIT ~ROVI8ION8
The conference agreement includes provisions that require various sources of sir pollution to obtain operating permits which
would ensure compliance with all applicable requirements of the
Clean Air.Act.
Permit p~gnams
EPA is required to issue permit program regulations within one
year. States are required to develop pr~rams consistent with those
regulations. The programs would be in effect within four years, and
the requirement to have a permit would be phased-in over the enConsistent the general provisions of section 116 of the Clean
e
Air Act, the conferees understand that a State may establish additional, more stringent permitting requirements, but a State may
not establish permit requirements that are inconsistent with the
national permitting requirements of this Act, including this title.
EPA Oversight ofHermit Programs
The conference agreement provides EPA with the authority to
review permits proposed to be issued by a State and to object to
permits that violate the Clean Air Act. EPA would also have the
opportunity to waive review of permits for small sources.
State respn~e to EPA objections
Under the conference agreement, States would be granted 90
days to revise permits to meet any EPA objection. If the State fails
to revise the permit, EPA will issue or deny the permit.
.Permit shield
The agreement provides that compliance with a permit is
deemed compliance with the requirements of the permit program.
Permit compliance also may be deemed compliance with other air
plicshle provisions of the Clean Air Act if the permit has been
issued in accordance with Title V and includes those provisions, or
if the permitting authority includes in the permit a specific determination that such provisions are not applicable.
Operational flPsibility
Facilities will be authorized to make changes in operations without the necessity for a permit revision so long as: (i) the changes
are not "modifications" under Title I of the Act, (u) the changes
will not result in emissions that exceed emissions allowable under
the permit, and (iii) the facility provides EPA and the permitting
authority with seven days written notice in advance of the changes.
P►ncessing perneit apPlic~ationa
Ezc~pt for applications submitted within the first year of the
permit program (for which a 3-year phased review is allowed),
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are subsequently destroyed is too broad and does not include adequate safeguards to preclude abuse. In the course of implementing
this Act, however, EPA shall consider whether an exclusion will be
allowed on a case-by~ase basis for the manufacture of controlled
substances that are (1) coincidental, unavoidable byproducts of a
manufacturing process and (2) immediately contained and destroyed by the producer using maximum available control technologies.
~TI.E VII-I'~:DERAL ENFORCEMENT'
The conference agreement includes a number of provisions that
enhance the enforcement authority of the Federal government
under the Clean Air Act while at the same time providing substantive procedural safeguards. In general terms, the agreement increases the range of civil and criminal penalties for violations of
the Clean Air Act.
SIP and permit violations
The conference agreement revises and strengthens EPA enforcement authority regarding violations of State Implementation Plans
and permits, including authority to bring civil actions for injunctive relief and penalties, as well as new authority to issue administrative penalty orders in response to violations. These authorities
can also be used by EPA when States fail to enforce SIPs or permit
requirements.
Violations ofother requirements
EPA ie authorized to initiate a range of enforcement actions for
a number of violations of specified section$ and titles of the Act.
Included is authority to issue administrative penalty orders, file
civil actions, and initiate criminal. proceedings via the Attorney
General.
It is the cnnfereea' intention to provide the Administrator with
prosecutorial discretion to decide not to seek sanctions under Section 1I3 for d~ minimis or technical violations in civil and criminal
matters.
Criminal penalties
• Criminal fines end penalties are included for a range of violations of the Act, including negligent or knowing violations that
result in the endangerment of others, knowing violations of SIPs
that occur after the violator is on notice of the violatipn, knowing
violations of certain sections in the permit title, and knowing violationa of the acid rain title or the stratospheric ozone protection
title. Ia addition, the agreement provides criminal fines and penalties for the knowing filing of false statements and other similar
recordkeeping, monitoring, and reporting violations. Consistent
with other recent environmental statutes, criminal violations of
the Clean Air Act are upgraded from misdemeanors to felonies.
The amendments sdd new criminal sanctions for recordkeeping,
filing and other omissions. These provisions are not meant to penalize inadvertent errors. For criminal sanctions to apply, a source
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Calendar No. 427
IOZST CONGRE58
~
SENATE
1st Session
(
REPORT
~
101-228
CLEAN AIR ACT AMENDMENTS OF 1989
REPORT
OF THE
COMMITTEE ON
ENVIRONMENT AND PUBLIC WORKS
UNITED STATES SENATE
together with
ADDITIONAL AND MINORITY VIEWS
TO ACCOMPANY
S. 1630
DECEMBER 2O,
1989.—Ordered to be printed
U.3. GOVERNMENT PRINTING OFFICE
24-525
WASHINGTON : 1989
gqr ~1e by the Superintendent of Documents, U.S. Government Printing Office
Pleshington, DC 20402
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14
that does not meet the standard is to be designated nonattainment.
An area that meets the standard and does not contribute to another area that exceeds the standard is to be designated attainment. An area that cannot be classified on the basis of available
information as meeting the standard is to be designated unclassifiable.
Revised section 1070(3) of the Act designated any area that did
not meet the primary ambient air quality standard for ozone or
carbon monoxide as of the last calendar year before the date of enactment of the bill as nonattainment. Revised section 107(fl(4) designates each area that was identified by EPA as a Group I area in
the August 7, 1987, promulgation of the revised particulate standard (PM-10) or which contains a site for which monitoring data
shows a violation of the air quality standard for PM-10 before the
date of enactment as nonattanment.
Revised section 107(d)(5) of the Act provides that areas may be
redesignated by the Administrator upon the request of the Governor of a State or on the Administrator's own motion. The Adminis=
trator must act to redesignate an area not currently designated as
nonattainment as a nonattainment area within one hundred eighty
days of receiving evidence that the area exceeds the national ambient air quality standard for any pollutant. In order to redesignate
an area from nonattainment to attainment, the Administrator
must promulgate the redesignation by rule, must determine that
the area has attained the air quality standard and that attainment
is due to permanent reductions in emissions, must have approved a
maintenance plan, and determine that the State con~ai.ning the
area has met requirements of the Act applicable to the area. The
Administrator may not redesignate an area from nonattainment to
unclassified.
New paragraphs (2) and (3) of section 107(d) of the Act provide
that the boundaries of an area that is designated nonattainment
for ozone and that is located within a metropolitan statistical area
(MSA) or a consolidated metropolitan statistical area (CMSA) are
the boundaries of the MSA or CMSA, unless the State demonstrates that some portion of the MSA or CMSA does not contribute
to violations of the air quality standard and that there is a geographical basis for excluding the portion. With respect to a serious
carbon monoxide area, the Administrator may, by rule, include the
entire MSA or CMSA in the nonattainment area.
niscussiox
This section of the bill restr~ictures and clarifies the process for
designating and redesignating areas of the country depending on
their emissions and ambient air quality. The bill gives significant
authority to the Administrator in order to overcome the deficiencies in current law that have failed to allow the Administrator to
respond to new information about pollution levels and control
needs.
Existing law, a$ interpreted by EPA, precludes the Administrator from issuing new designations or revising existing ones when
an ambient standard is revised, as occurred with the promulgation
in 1987 of the ambient standard for PM-10. Current law is also
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133
currently recognized within the structure of section 112 and
have no other statutory authorization.
There is now abroad consensus that the program to regulate
hazardous air pollutants under section 112 of the Clean Air Act
should be restructured to provide EPA with authority to regulate
industrial and area source categories of air pollution (rather than
the pollutants) with technology-based standards in the near term.
In light of these conclusions, the reported legislation makes fundamental changes in the basic provisions of section 112 of the
Clean, Air. Act. The bill establishes a list of 191 air pollutants and a
mandatory schedule for issuing emissions standards for the major
sources of these pollutants. The standards are to be based on the
maximum reduction in emissions which can be achieved by application of best available control technology. These nev✓, technologybased standards will become the principal focus of activity under
section 112. Authority to issue health-based standards is preserved
is mod~ed form to be used for especially serious pollution problems.
This approach to regulation of toxic pollutants is not without
precedent. It follows the general model which has been employed
since the mid-1970's to control toxic effluents discharged to surface
waters by major industrial point sources.
Under the 1972 amendments to the Clean Water Act, industrial
dischargers were given two deadlines to control conventional pollutants (biological oxygen demand, suspended solids, and acidity): 1)
by July 1, 1977 each facility was required to meet emissions limitations reflecting "best practicable control technology currently
available" (so-called BPT limits); and 2) by July 1, 1983 each facility was to meet emissions limitations set according to "best available technology economically achievable" BAT).
To$ic pollutants under the 1972 Act were to be treated differently. The Administrator was to publish a list of toxic pollutants
within 90 days and within a year promulgate effluent standards
that would provide an "ample margin of safety" to protect the
most affected (aquatic) organisms. Thus, the structure of this authority to regulate toxic discharges to surface waters was very
similar to the current structure of section 112 of the Clean Air Act.
During the five-year period following passage of the 1972 Clean
Water Act, EPA promulgated standards for only six toxic pollu~
ants. In 1975 the Environmental Defense Fund and the Natural Resources Befense Council brought suit against the Agency for failure
to list more toxics and to promulgate standards as mandated by the
Act. In June 1976, EPA and the plantiffs entered into a consent
decree that established a new formula for the development of effluent standards for toxic water pollutants. This agreement created a
list of 120 priority pollutants and required EPA to promulgate effluent guidelines based on best available control technology for
each pollutant and each industrial category not later than December 31, 1980. Industrial dischargers were to be in compliance with
these standards by July 1, 1983, the same deadline as established
by the Act for BAT control of conventional pollutants. There were
14,000 dischargers divided into 21 industrial categories and 399 subcategories potentially subject to these new toxics standards.
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3. Ptrr. 103-98
Vol. I
COM1YII77'E~ PR,~VT
A LEGISLATIVE HISTORY OF THE CLEAN
AIR ACT AMENDMENTS OF 1990
TOGETHER WITH
A SECTION-BY-SECTION INDEX
PREPARED BY THE
ENVIRONMENT AND NATURAL ftESOURCEB
POLICY DIVISION
OF THE
a
CONGRESSIONAL RESEARCH SERVICE
OF THE
LIBRARY OF CONGRESS
FOR THE
COMMITTEE ON
ENVIRONMENT AND PUBLIC WORKS
U.S. SENATE
VOLUME I
~~ ,I;~il ,~.;
>:.~
'Yr
y~f.,
NOVEMBER 1995
Printed for the use of the Senate Committee
on Environment and Public Works
U.3. GOVERNMENT PRiNTIN(3 OFFICE
X8-867
WA3HINf3TON :1993
.3~~-~
For sale by the U.S. Guvemmenl P~nling Ot'fice
Superintendent of Dcxumeniti. Congressional Salc, Officc, Watihm~lon. DC 20402
ISBN 0-16-041786-4
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880
CLEAN A1R ACT AMENDMENTS OF 1990
CHAFEE-BAUCU5 STATEMENT OF SENATE MANAGERS
Mr. President, the conference report that is before us includes some 800 pages of
legislative language and less than 40pages•-double spaced--of explanatory text. Due to time
constraints, we do not have a particularly useful statement of managers.
To help rectify this problem, we have prepared a detailed explanation of five important
titles. The explanation Is In the form of a traditional statement of managers. It has not
been reviewed or approved by all of the confcrecs but it is our best effort to provide the
agenry and the courts with the guidance that they will need in the course of implementing
and interpreting this complex act.
The titles covered by the "Chafee-Baucus Statement of Senate Managers" are: title 1 on
nonattainment; title lI on mobile sources; title V on permits; title VI on stratospheric ozone;
and title VII on enforcement.
Mr. President, I ask unanimous consent that this document be printed in the Record.
There being no objection, the material was ordered to be printed on the Record, as
follows:
CHAFEE-BAUCUS STATEMENT OF SENATE MANAGERS,
S. 1630, THE CLEAN AIR ACT AMENDMENTS OF 1990
Title I--Provisions for Attainment and Maintenance of National Ambient Air Quality
Standards.
Title II--Mobile Sources.
Title V--Permits.
Title VI•-Stratospheric Ozone Protection.
Title V1I--Enforcement.
TITLE I--PROVISIONS FOR ATTAINMENT AND MAINTENANCE OF
NATIONAL AMBIENT AIR QUALITY STANDARDS
SECTION 101-•GENERAL PLANNING REQUIREMENTS
Senate bill. In sections 10] and 104 the Senate bill amends the Clean Air Act with
respect to processes for designating areas of the country based on air quality and with
respect to requirements for preparation, contents, submittal, and review of State
implementation plans.
]n section 106 the Senate bill amends section 176(c) of the Clean Air Act which requires
conformity ofFederal activities and federally funded activities with the State implementation
plan.
House amendment. In section 101 the House bill amends the Clean Air Act to establish
a somewhat different structure from existing law for State and EPA action following
promulgation of new or revised national ambient air quality standards, including procedures
for designating areas based on air quality and for preparation, s~ibmittal and review of State
implementation plans.
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Conferencx agreemea~ The Senate recedes to the House eacoept that, by refenna to the
provlstona in section 103 of the agreement, transportation control requirements appiIcable
in severs ozane nonattatnment areas--including the requirement appllcablo to employe"• of
100 or more employees—are also applied in serious CO nonattainment areas.
SECTION 105--ADD1TtONAL PROVISIONS FOR PARTICULAR MATTERS
(PM-10) NONATTAINMENT AREAS
Senate bill. Section 109 of the Senate bill provides for classification ofPM-10 areas based
on the severity of pollution, deadlines for attaining the PM-10 primary standard,
requirements appllcabla to PM-10 nonattainment areas depending on their claasittcation,
and consequences for failure to comply with requirements or meet deadlines.
House amendment. The House amendment is similar in structure and content to the
Senate bill but differs in details.
Conference agreement. The Senate recedes to the House.
SECTION 107--PROVISIONS RBIATED T~ MDIAN TRIBES
Senate bill. Section ]13 of the Senate bill authorizes the Administrator to treat Indian
tribes as States under the Clean Air Act and requires the Administrator to issue regulations
that specify which provisions of the Act may be administered by Indian tribes.
House amendment. The House amendment provides similar authority and directives to
the Administrator regarding treatment of Indian tribes.
Conference agreement. The Senate recedes to the House.
SECITON 108—MISCELLANEOUS PROVISIONS
Senate bill. In section 103 the Senate bill revises sections 108(e) and(~ of the Clean
Air Act to require the Administrator and the Secretary of Transportation to update air
quality/transportation planning guidance and to add to the transportation control measures
to be evaluated by the Administrator after consultation, wren appropriate, v►~th the
Secretary.
House amendment. The House amendment rnntains a similar provision to the one in the
Senate bill regarding amendments to section 108 of the Clean Air Act. In addition, the
House amendment contains provisions for a techaolo~ clearinghouse to be established by
the Administrator, for amending section 111 of the Clean Air Act relating to new and
existing stationary sources, for amending section 302 of the Clean Air Act which contains
definitions, to provide a savings clause, to state that reports that are to be submitted to
Congress are not subject to judicial review, and for other purposes.
Conference agreement. The Senate recedes to the House except that with respect to the
requirement regarding judicial review of reports, the House recedes to the Senate and with
respect to transportation planning, the Nouse recedes to the Senate with certain
modifications.
48-657 0 — 93 — 29
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USCA Case #14-1112
AUTHEN TIGATED
U.S. GOVERNMENT
INFORMATION
Document #1537419
Filed: 02/12/2015
Page 64 of 66
GPO
RIDDICK'S
SENATE PROCEDURE
ADD62
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USCA Case #14-1112
Document #1537419
Filed: 02/12/2015
APPENDI7c
Page 65 of 66
1481
A SENATOR, from the committee of conference, submitted the following:
CONFERENCE REPORT
(To accompany H.ft.
)
The committee of conference on the disagreeing votes of the two
Houses on the amendment of the House to an amendment of the
Senate to the bill (H.R.
),
,having met,
ItiUe of bi]U
after full and free conference, have agreed to recommend and do
recommend to their respective Houses as follows:
That the House of Representatives recede from its amendment to
the amendment of the Senate and concur therein.
~Nanagers on the Part of the Senate.
Managers on the Part of the House.
(Form of a conference report when it is proposed that the Senate recede
from its amendment to an amendment of the House to a Senate bill.]
A SENATOR, from the committee of conference, submitted the following:
CONFERENCE REPORT
(To accompany S. __ ____)
The committee of conference on the disagreeing votes of the two
Houses on the amendment of the Senate to an amendment of the
House to the bill (S.
),
having met,
ititle of 6i11)
after full and free conference, have agreed to recommend and do
recommend to their respective Houses as follows:
ADD63
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USCA Case #14-1112
Document #1537419
1482
Filed: 02/12/2015
Page 66 of 66
SENATE PROCEDURE
That the Senate recede from its amendment to the amendment of
the House ofRepresentatives and concur therein.
Managers on the Part of the Senate.
Managers on the Part of the House.
[Form of conference report on a Senate bill when conferees agree on
entirely new text instead of the amendment by the House of Representa
tives in the nature of a substitute for the bill, or the language of the bill
as passed by the Senate.]
A SENATOR, from the committee of conference, submitted the following:
CONFERENCE REPORT
(To accompany S.
)
The committee of conference on the disagreeing votes of the two
Houses on the amendment of the House to the bill (S.
),
having met,after full and free confer(tifle of billl
ence, have agreed to recommend and do recommend to their respective Houses as follows:
w
•
4
#
4
f
4
That the Senate recede from its disagreement to the amendment of
the House to the bill, and agree to the same with an amendment as
follows:
In lieu of the matter proposed to be inserted by the House amendment,insert the following:
i
4
~
d
#
t
~k
And the House agree to the same.
Mangers on the Part of the Senate.
Managers on the Part of the House.
ADD64
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