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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
______________________________________________
BRIEF FOR RESPONDENT EPA
______________________________________________
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
Of Counsel:
Elliott Zenick
Scott Jordan
United States Environmental
Protection Agency
Office of General Counsel
1200 Pennsylvania Ave., N.W.
Washington, D.C. 20460
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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. 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
II. 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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1. The Proposed Rule did not consummate the
rulemaking process............................................................................... 23
2. Proposing a rule creates no binding legal consequence ................. 25
C. Murray’s challenges are unripe ....................................................................... 26
III. 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
IV. 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
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
C. 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.
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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.
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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
1See 1 U.S.C. §§ 112 & 204(a).
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III. 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, 79,826-
30 (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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IV. 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 rate-
based 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 notice-
and-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 non-
hazardous 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-and-
comment 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 state-
specific 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
2See, 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).
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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.
3Other 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.
4The 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.
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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
5Murray 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.
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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
6Moreover, “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).
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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
7One 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 . . .”).
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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).
8See 42 U.S.C. § 7607(b)(1).
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B. 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
9E.g,. Harrison v. PPG Indus., Inc., 446 U.S. 578 (1980).
10E.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
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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. 55-
57), 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.
11E.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).
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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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III. 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 well-
established 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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B. 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
12 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).
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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 coal-
and 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
13 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.
14 Merriam Webster defines “or” as “a function word [used] to indicate an alternative
<coffee or tea> <sink or swim>.” At http://www.merriam-
webster.com/dictionary/or.
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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 state-
by-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
15 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.
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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.
18See 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 . . . ).
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B. 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
19 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.
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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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3. 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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C. 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 non-
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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
22Murray 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).
23 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)).
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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
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
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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 XX-
XX). 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.
25See 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.”).
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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;
26Intervenors 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.
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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
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.”).
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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
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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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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
O R D E R
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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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
Page 2
USCA Case #12-1248 Document #1409856 Filed: 12/13/2012 Page 2 of 2USCA Case #14-1112 Document #1537419 Filed: 02/12/2015 Page 75 of 75
(Page 75 of Total)
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
______________________________________________
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
Of Counsel:
Elliott Zenick
Scott Jordan
United States Environmental
Protection Agency
Office of General Counsel
1200 Pennsylvania Ave., N.W.
Washington, D.C. 20460
USCA Case #14-1112 Document #1537419 Filed: 02/12/2015 Page 1 of 66
(Page 76 of Total)
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
USCA Case #14-1112 Document #1537419 Filed: 02/12/2015 Page 2 of 66
(Page 77 of Total)
PUBLIC
LAW
101-549—NOV_
13,
1990
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
Nov.
1~,
1990
protective
national
ambient
air
quplity
standards,
and
Por
other
RuTP~~~
[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
AM-
BIENT
AIR
QUALITY
STANDARDS
Scti.
ldl.
General
planning
requirements.
Sec.
102.
C;enea~i
proviuiona
for
nonattainment
areas.
Ser.
1D:i.
Additional
provisions
fog
rrtone
non~ttainment
areas.
Sec.
1U4.
9dditiona!
provisions
for
carbon
monoxide
nonattHinment
areas.
See.
1Q5.
Additional
pr~vibiona
for
purticutate
matter
ePM-14~
nnnattuinment
areas.
Sec.
lOfi.
Additional
prnvibions
Car
areas
designated
nonattainment
for
sulfur
oxides.
nitrogen
dioxide,
and
lead.
Sec.
10i.
Provisions
related
to
Indian
tribes.
Sec.
IdB.
l~Iisc~e(laneous
provisions.
Sec.
id9.
Interstate
pollution,
Sec.
11(l.
C.onfanrcing
amendments.
Sec.
ttt.
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.—
"~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
Adminis-
trator
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
identi-
fied
in
clause
ti~~
that
meets
the
national
primary
or
secondary
ambient
air
quality
standard
for
the
pollut-
ant,
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~
later
-
governmental
rnlatione.
AUTHE
NTIGATED
U.S.
GOVERNMENT
INFORMATION
GPO
ADD1
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PUBLIC
LAW
101-549—NOV.
15,
1990
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
func-
tions
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
regu-
lation,
other
means
by
which
the
Administrator
will
directly
admin-
ister
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
provid-
ing
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
Guide-
lines
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
construc-
tion
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
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
emis-
sion
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
limita-
tions
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
perform-
ance
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
perform-
ance
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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(Page 80 of Total)
104
STAT.
2574
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
stand-
ards
including
the
costs
of
compliance
experienced
by
sources
in
various
categories
and
subcategories;
"(3)
development
and
implementntiun
of
the
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.
(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
para-
graphs
accordingly.
Such
section
is
further
amended
by
striking
"or
section
lI2"
in
paragraph
(gX5)
as
redesignated
in
the
preceding
sentence.
az
usc~
^r~i•~.
(.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".
a2
USC
~41~.
(d)
Section
11$(b)
of
the
Clean
Air
Act
is
amended
by
striking
"I12(c?"
and
inserting
in
Ilea
thereof
"112fi}f4)".
a2
CfSC
~so2.
(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.".
42
USC
76u4.
(~
$action
304(b}
of
the
Clean
Air
Act
is
amended
by
striking
"112(cX1xB)"
and
inserting
in
lieu
thereof
"112(ix3xA)
or
(fX4)".
42
USC
i6o7,
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
subpara-
graphs
accordingly.
4'L
USC1
7412
3EC.
303.
RISK
ASSF.SSMF.'YT
AND
MANACE:MENT
COMMI9SI(1N.
note.
(g)
~`
TABLI9HMENT.—T~1@re
is
hereby
established
a
Risk
Assess-
ment
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
investiga-
tion
of
the
policy
implications
and
appropriate
uses
of
risk
assess-
ment
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
concentra-
tion
levels,
tolerances
or
other
environmental
criteria
for
hazardous
substances
that
present
a
risk
of
carcinogenic
effects
ADD4
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1
U.S.C.
~
112.
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.
~**
ADD7
USCA Case #14-1112 Document #1537419 Filed: 02/12/2015 Page 9 of 66
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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
USCA Case #14-1112 Document #1537419 Filed: 02/12/2015 Page 10 of 66
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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.
**~
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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.
*~~
ADD10
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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
ADD11
USCA Case #14-1112 Document #1537419 Filed: 02/12/2015 Page 13 of 66
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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.
ADD12
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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.
ADD13
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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
satisfactory
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
enforce
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.
~**
ADD14
USCA Case #14-1112 Document #1537419 Filed: 02/12/2015 Page 16 of 66
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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.
*~~
ADD15
USCA Case #14-1112 Document #1537419 Filed: 02/12/2015 Page 17 of 66
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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
ADD16
USCA Case #14-1112 Document #1537419 Filed: 02/12/2015 Page 18 of 66
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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
ADD17
USCA Case #14-1112 Document #1537419 Filed: 02/12/2015 Page 19 of 66
(Page 94 of Total)
(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
Acetonitrile
98862
Acetophenone
53963
2-Acetylaminofluorene
107028
Acrolein
79061
Acrylamide
79107
Acrylic
acid
107131
Acrylonitrile
107051
Allyl
chloride
92671
4-Aminobiphenyl
62533
Aniline
90040
o-Anisidine
1332214
Asbestos
71432
Benzene
(including
benzene
from
gasoline)
92875
Benzidine
98077
Benzotrichloride
100447
Benzyl
chloride
92524
Biphenyl
117817
Bis(2-ethylhexyl)phthalate
(DEHP)
542881
Bis
(chloromethyl)
ether
75252
Bromoform
106990
1,3
-Butadiene
156627
Calcium
cyanamide
105602
Caprolactam
133062
Captan
63252
Carbaryl
75150
Carbon
disulfide
ADD18
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56235
Carbon
tetrachloride
463581
Carbonyl
sulfide
120809
Catechol
133904
Chloramben
57749
Chlordane
7782505
Chlorine
79118
Chloroacetic
acid
532274
2-Chloroacetophenone
108907
Chlorobenzene
510156
Chlorobenzilate
67663
Chloroform
107302
Chloromethyl
methyl
ether
126998
Chloroprene
1319773
Cresols/Cresylic
acid
(isomers
and
mixture)
95487
o
-Cresol
108394
m
-Cresol
106445
p
-Cresol
98828
Cumene
94757
2,4-D,
salts
and
esters
3547044
DDE
334883
Diazomethane
132649
Dibenzofurans
96128
1,2-Dibromo-3-chloropropane
84742
Dibutylphthalate
106467
1,4-Dichlorobenzene
(p)
91941
3,3-Dichlorobenzidene
111444
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
ADD19
USCA Case #14-1112 Document #1537419 Filed: 02/12/2015 Page 21 of 66
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119937
3,3'-Dimethyl
benzidine
79447
Dimethyl
carbamoyl
chloride
68122
Dimethyl
formamide
57147
1,1-Dimethyl
hydrazine
131113
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
Epichlorohydrin (1-Chloro-2,3-epoxypropane)
106887
1,2-Epoxybutane
140885
Ethyl
acrylate
100414
Ethyl
benzene
51796
Ethyl
carbamate
(Urethane)
75003
Ethyl
chloride
(Chloroethane)
106934
Ethylene
dibromide
(Dibromoethane)
107062
Ethylene
dichloride
(1,2-Dichloroethane)
107211
Ethylene
glycol
151564
Ethylene
canine
(Aziridine)
75218
Ethylene
oxide
96457
Ethylene
thiourea
75343
Ethylidene
dichloride
(1,1-Dichloroethane)
50000
Formaldehyde
76448
Heptachlor
118741
Hexachlorobenzene
87683
Hexachlorobutadiene
77474
Hexachlorocyclopentadiene
67721
Hexachloroethane
822060
Hexamethylene-l,6-diisocyanate
680319
Hexamethylphosphoramide
110543
Hexane
302012
Hydrazine
ADD20
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7647010
Hydrochloric
acid
7664393
Hydrogen
fluoride
(Hydrofluoric
acid)
123319
Hydroquinone
78591
Isophorone
58899
Lindane
(all
isomers)
108316
Malefic
anhydride
67561
Methanol
72435
Methoxychlor
74839
Methyl
bromide
(Bromomethane)
74873
Methyl
chloride
(Chloromethane)
71556
Methyl
chloroform
(1,1,1-Trichloroethane)
78933
Methyl
ethyl
ketone
(2-Butanone)
60344
Methyl
hydrazine
74884
Methyl
iodide
(Iodomethane)
108101
Methyl
isobutyl
ketone
(Hexone)
624839
Methyl
isocyanate
80626
Methyl
methacrylate
1634044
Methyl
tert
butyl
ether
101144
4,4
-Methylene
bis(2-chloroaniline)
75092
Methylene
chloride
(Dichloromethane)
101688
Methylene
diphenyl
diisocyanate
(MIDI)
101779
4,4'-Methylenedianiline
91203
Naphthalene
98953
Nitrobenzene
92933
4-Nitrobiphenyl
100027
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
ADD21
USCA Case #14-1112 Document #1537419 Filed: 02/12/2015 Page 23 of 66
(Page 98 of Total)
106503
p-Phenylenediamine
75445
Phosgene
7803512
Phosphene
7723140
Phosphorus
85449
Phthalic
anhydride
1336363
Polychlorinated
biphenyls
(Aroclors)
1120714
1,3
-Propane
sultone
57578
beta-Propiolactone
123386
Propionaldehyde
114261
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
Styrene
ode
1746016
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
Toxaphene
(chlorinated
camphene)
120821
1,2,4-Trichlorobenzene
79005
1,1,2-Trichloroethane
79016
Trichloroethylene
95954
2,4,5-Trichlorophenol
88062
2,4,6-Trichlorophenol
121448
Triethylamine
1582098
Trifluralin
540841
2,2,4-Trimethylpentane
ADD22
USCA Case #14-1112 Document #1537419 Filed: 02/12/2015 Page 24 of 66
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108054
Vinyl
acetate
593602
Vinyl
bromide
75014
Vinyl
chloride
75354
Vinylidene
chloride
(1,1-Dichloroethylene)
1330207
Xylenes
(isomers
and
rriixture)
95476
o-Xylenes
108383
m-Xylenes
106423
p-Xylenes
0
Antimony
Compounds
0
Arsenic
Compounds
(inorganic
including
arsine)
0
Beryllium
Compounds
0
Cadmium
Compounds
0
Chromium
Compounds
0
Cobalt
Compounds
0
Coke
Oven
Emissions
0
Cyanide
Compounds
)
0
Glycol
ethers
2
0
Lead
Compounds
0
Manganese
Compounds
0
Mercury
Compounds
0
Fine
mineral
fibers
3
0
Nickel
Compounds
0
Polycylic
Organic
Matter
4
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
ADD23
USCA Case #14-1112 Document #1537419 Filed: 02/12/2015 Page 25 of 66
(Page 100 of Total)
R'
=
R,
H,
or
groups
which,
when
removed,
yield
glycol
ethers
with
the
structure:
R-
(OCH2CH)
n
OH.
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
ADD24
USCA Case #14-1112 Document #1537419 Filed: 02/12/2015 Page 26 of 66
(Page 101 of Total)
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
defects
1
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,
2,3,7,8-
tetrachlorodibenzofurans
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
non
-
air
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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USCA Case #14-1112 Document #1537419 Filed: 02/12/2015 Page 32 of 66
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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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USCA Case #14-1112 Document #1537419 Filed: 02/12/2015 Page 33 of 66
(Page 108 of Total)
(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
sections
3
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
ADD44
USCA Case #14-1112 Document #1537419 Filed: 02/12/2015 Page 46 of 66
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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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USCA Case #14-1112 Document #1537419 Filed: 02/12/2015 Page 48 of 66
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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.
ADD47
USCA Case #14-1112 Document #1537419 Filed: 02/12/2015 Page 49 of 66
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10
~
d
S
x~x~sa
~
HOUSE
OF
REPRESENTATIVES
~
RE
P
a
m
i
490
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
ADD48
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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
sta-
tionary
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
condi-
tions.
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
dysfunc-
tions.
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
seri-
ous
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
potential-
ly
hazardous
air
pollutants
have
been
regulated
by
EPA
since
sec-
tion
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
pallut-
ants:
hazardous
air
pollutants
and
criteria
or
conventional
air
pol-
lutants.
Criteria
air
pollutants,
as
noted
earlier,
are
defined
as
pol-
lutants
that
"endanger
public
health
or
welfare"
and
"result
from
numerous
or
diverse
mobile
or
stationary
sources."
These
pollut-
ants
tend
to
be
more
pervasive,
but
less
potent,
than
hazardous
air
pollutants.
Examples
include
ozone,
CO,
and
PM
-10.
The
Act
re-
quires
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
seri-
ous
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.
ADD49
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102sr
Coxceass
I
HOUSE
OF
REPRESENTATIVES
{
REPORT
2d
Session
j
~
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
ADD50
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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
pro-
tective
national
ambient
air
quality
standards,
and
for
other
pur-
poses,
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
con-
ference
are
noted
below.
The
Conference
agreement
on
S.
1630,
the
Clean
Air
Act
Amend-
ments
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,
nonattain-
ment
areas
for
any
of
the
pollutants
must
attain
the
health
stand-
ard
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
or-
ganic
compounds
(VOCs),
a
precursor
of
ozone,
by
3
percent
per
year
(with
waivers
for
certain
specified
conditions)
until
the
stand-
ard
ie
attained.
Vehicle
inspection
and
maintenance
programs
must
be
upgraded
in.
ozone
and
carbon
monoxide
areas
that
already
have
such
pro-
grams
and
must
be
instituted
in
most
other
areas
that
do
not
al-
ready
have
them.
The
Environmental
Protection
Agency
(EPA)
is
required
to
impose
one
of
the
following
sanctions
in
an
area
that
fails
to
pre
-
(335)
ADD51
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(Page 128 of Total)
~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
Implemen-
tation
Plan.
The
EPA
is
required
to
issue
control
requirements
for
a
number
of
sources
of
pollution,
including
commercial
and
consumer
prod-
ucts.
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
ea-
sential
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
per-
cent
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
re-
ceipt.
Such
a
petition
is
deemed
certified
until
the
Administrator
completes
action
on
the
petition.
In
the
event
that
the
Administra-
tor
subsequently
denies
such
a
petition,
the
conferees
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
fleai-
bility
in
meeting
the
bill's
requirements
on
the
oxygen,
aromatic
hydrocarbon,
and
benzene
content
of
reformulated
gasoline.
A
credit
program
is
the
mechanism
by
which
persons
subject
to
these
requirements
will
be
allowed
to
pool
gasoline
sold
in
a
given
cov-
ered
area
for
purposes
of
determining
compliance
with
these
re-
quirements.
Under
this
credit
program,
a
person
may
earn
credit
for
gasoline
with
a
higher
oxygen
content,
lower
aromatic
hydrocarbon
content,
ADD52
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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
require-
ments.
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
regula-
tions.
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
ini-
tial
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
in-
clude
fires,
explosions,
and
other
events
which
cause
damages
that
are
very
costly
to
repair
or
correct,
and
would
not
include
inciden-
tal
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
ADD53
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345
The
conferees
intend
that
termination
of
the
seasonal
or
tempo-
rary
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
vari-
ous
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
en
-
e
Consistent
the
general
provisions
of
section
116
of
the
Clean
Air
Act,
the
conferees
understand
that
a
State
may
establish
addi-
tional,
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
of
Hermit
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
deter-
mination
that
such
provisions
are
not
applicable.
Operational
flPsibility
Facilities
will
be
authorized
to
make
changes
in
operations
with-
out
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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347
are
subsequently
destroyed
is
too
broad
and
does
not
include
ade-
quate
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
de-
stroyed
by
the
producer
using
maximum
available
control
technol-
ogies.
~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
substan-
tive
procedural
safeguards.
In
general
terms,
the
agreement
in-
creases
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
enforce-
ment
authority
regarding
violations
of
State
Implementation
Plans
and
permits,
including
authority
to
bring
civil
actions
for
injunc-
tive
relief
and
penalties,
as
well
as
new
authority
to
issue
adminis-
trative
penalty
orders
in
response
to
violations.
These
authorities
can
also
be
used
by
EPA
when
States
fail
to
enforce
SIPs
or
permit
requirements.
Violations
of
other
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
Sec-
tion
1I3
for
d~
minimis
or
technical
violations
in
civil
and
criminal
matters.
Criminal
penalties
•
Criminal
fines
end
penalties
are
included
for
a
range
of
viola-
tions
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
viola-
tiona
of
the
acid
rain
title
or
the
stratospheric
ozone
protection
title.
Ia
addition,
the
agreement
provides
criminal
fines
and
penal-
ties
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
pe-
nalize
inadvertent
errors.
For
criminal
sanctions
to
apply,
a
source
ADD55
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Calendar
No.
427
IOZST
CONGRE58
~
(
REPORT
1st
Session
SENATE
~
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
ADD56
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(Page 133 of Total)
14
that
does
not
meet
the
standard
is
to
be
designated
nonattainment.
An
area
that
meets
the
standard
and
does
not
contribute
to
an-
other
area
that
exceeds
the
standard
is
to
be
designated
attain-
ment.
An
area
that
cannot
be
classified
on
the
basis
of
available
information
as
meeting
the
standard
is
to
be
designated
unclassifia-
ble.
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
en-
actment
of
the
bill
as
nonattainment.
Revised
section
107(fl(4)
des-
ignates
each
area
that
was
identified
by
EPA
as
a
Group
I
area
in
the
August
7,
1987,
promulgation
of
the
revised
particulate
stand-
ard
(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
Gover-
nor
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
ambi-
ent
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
demon-
strates
that
some
portion
of
the
MSA
or
CMSA
does
not
contribute
to
violations
of
the
air
quality
standard
and
that
there
is
a
geo-
graphical
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
deficien-
cies
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
Administra-
tor
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
ADD57
USCA Case #14-1112 Document #1537419 Filed: 02/12/2015 Page 59 of 66
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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
fun-
damental
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
applica-
tion
of
best
available
control
technology.
These
nev✓,
technology
-
based
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
prob-
lems.
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
pol-
lutants
(biological
oxygen
demand,
suspended
solids,
and
acidity):
1)
by
July
1,
1977
each
facility
was
required
to
meet
emissions
limita-
tions
reflecting
"best
practicable
control
technology
currently
available"
(so-called
BPT
limits);
and
2)
by
July
1,
1983
each
facili-
ty
was
to
meet
emissions
limitations
set
according
to
"best
avail-
able
technology
economically
achievable"
BAT).
To$ic
pollutants
under
the
1972
Act
were
to
be
treated
different-
ly.
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
au-
thority
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
Re-
sources
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
efflu-
ent
standards
for
toxic
water
pollutants.
This
agreement
created
a
list
of
120
priority
pollutants
and
required
EPA
to
promulgate
ef-
fluent
guidelines
based
on
best
available
control
technology
for
each
pollutant
and
each
industrial
category
not
later
than
Decem-
ber
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
sub-
categories
potentially
subject
to
these
new
toxics
standards.
ADD58
USCA Case #14-1112 Document #1537419 Filed: 02/12/2015 Page 60 of 66
(Page 135 of Total)
a
1084
Coa~ebss
COM1YII77'E~
PR,~VT
3.
Ptrr.
103-98
1st
8enlon
Vol.
I
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
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
X8-867
U.3.
GOVERNMENT
PRiNTIN(3
OFFICE
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
ADD59
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(Page 136 of Total)
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
of
Federal
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.
ADD60
USCA Case #14-1112 Document #1537419 Filed: 02/12/2015 Page 62 of 66
(Page 137 of Total)
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
of
PM
-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
ADD61
USCA Case #14-1112 Document #1537419 Filed: 02/12/2015 Page 63 of 66
(Page 138 of Total)
AUTHEN
TIGATED
U.S.
GOVERNMENT
INFORMATION
GPO
RIDDICK'S
SENATE
PROCEDURE
ADD62
USCA Case #14-1112 Document #1537419 Filed: 02/12/2015 Page 64 of 66
(Page 139 of Total)
APPENDI7c
1481
A
SENATOR,
from
the
committee
of
conference,
submit-
ted
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,
submit-
ted
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
USCA Case #14-1112 Document #1537419 Filed: 02/12/2015 Page 65 of 66
(Page 140 of Total)
1482
SENATE
PROCEDURE
That
the
Senate
recede
from
its
amendment
to
the
amendment
of
the
House
of
Representatives
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,
submit-
ted
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
respec-
tive
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
amend-
ment,
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
USCA Case #14-1112 Document #1537419 Filed: 02/12/2015 Page 66 of 66
(Page 141 of Total)
