United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued September 12, 2008 Decided December 19, 2008
No. 02-1135
SIERRA CLUB,
PETITIONER
v.
ENVIRONMENTAL PROTECTION AGENCY
AND STEPHEN L. JOHNSON, ADMINISTRATOR,
ENVIRONMENTAL PROTECTION AGENCY,
RESPONDENTS
AMERICAN CHEMISTRY COUNCIL, ET AL.,
INTERVENORS
Consolidated with Nos. 03-1219, 06-1215, 07-1201
On Petitions for Review of a Final Action
of the Environmental Protection Agency
James S. Pew and Keri N. Powell argued the cause and filed
the briefs for petitioner.
Daniel R. Dertke, Attorney, U.S. Department of Justice,
argued the cause for respondent. With him on the brief were
John C. Cruden, Deputy Assistant Attorney General, and Sheila
2
Igoe, Counsel, U.S. Environmental Protection Agency.
Leslie S. Ritts, Charles H. Knauss, Sandra P. Franco,
Lorane F. Hebert, Leslie A. Hulse, Susan T. Conti, John P.
Wagner, William H. Lewis Jr., Thomas J. Graves, Richard S.
Wasserstrom, and Maurice H. McBride were on the brief for
intervenors in support of respondent. Sam Kalen, Michael A.
McCord, Jeffrey C. Nelson, Richard A. Penna, Michael B.
Wigmore, David F. Zoll entered appearances.
Before: ROGERS, TATEL, Circuit Judges, and RANDOLPH,
Senior Circuit Judge.
Opinion for the Court by Circuit Judge ROGERS.
Dissenting opinion by Senior Circuit Judge RANDOLPH.
ROGERS, Circuit Judge: Petitioners challenge the final rules
promulgated by the Environmental Protection Agency
exempting major sources of air pollution from normal emission
standards during periods of startups, shutdowns, and
malfunctions (“SSM”) and imposing alternative, and arguably
less onerous requirements in their place.1 Because the general
duty that applies during SSM events is inconsistent with the
plain text of section 112 of the Clean Air Act (“CAA”), even
accepting that “continuous” for purposes of the definition of
“emission standards” under CAA section 302(k) does not mean
unchanging, the SSM exemption violates the CAA’s
requirement that some section 112 standard apply continuously.
Accordingly, we grant the petitions and vacate the SSM
exemption.
I.
1 40 C.F.R. § 63.6(e)(l)(i);, (f)(1), and (h)(1).
3
CAA section 112 designates over one hundred pollutants as
“hazardous,” 42 U.S.C. § 7412(b)(1), and directs the
Administrator of EPA to list all categories of “major sources”
of hazardous air pollutants (“HAPs”), id. § 7412(c)(1), and to
establish for each “emissions standards” requiring “the
maximum degree of reduction in emissions,” id. § 7412(d)(2).
These controls are referred to as maximum achievable control
technology (“MACT”) standards. See Natural Resources Def.
Council v. EPA, 489 F.3d 1364, 1368 (D.C. Cir. 2007). Section
112 also sets a “MACT floor,” id., requiring that standards
“shall not be less stringent than the emission control that is
achieved in practice by the best controlled similar source,” 42
U.S.C. § 7412(d)(3). After eight years, under section 112(f),
EPA is to revisit and potentially revise the emissions standards
for each source category to ensure that they “provide an ample
margin of safety to protect public health,” id. § 7412(f)(2)(A).
“Emission standard” is defined in section 302(k) as “a
requirement established by the State or the Administrator which
limits the quantity, rate, or concentration of emissions of air
pollutants on a continuous basis, including any requirement
relating to the operation or maintenance of a source to assure
continuous emission reduction, and any design, equipment, work
practice or operational standard promulgated under this
chapter.” 42 U.S.C. § 7602(k).
In addition to revising section 112, the 1990 Amendments
also added Title V, which establishes a permit program to better
monitor compliance with emissions standards. “Each permit . . .
shall include enforceable emission limitations and standards, a
schedule of compliance, . . . and such other conditions as are
necessary to assure compliance with applicable requirements of
this chapter.” Id. § 7661c(a). Sources are required to certify
that they are in compliance with the applicable requirements of
the permit “and to promptly report any deviations from permit
requirements to the permitting authority.” Id. § 7661b(b)(2).
4
Title V further creates a “permit shield” for sources, ensuring
that compliance with the permit is “deemed compliance with
other applicable provisions” of the CAA. Id. § 7661c(f). “Any
permit application, compliance plan, permit, and monitoring or
compliance report” under Title V must be “ma[d]e available to
the public.” Id. § 7661a(b)(8).
In the 1970s EPA had determined that excess emissions
during SSM periods are not considered violations of CAA
emissions standards under section 111.2 Although sources were
“exempt[ed] from compliance with numerical emissions limits”
during SSM events, 42 Fed. Reg. 57,125, EPA required that
“[a]t all times, including periods of [SSM], owners and
operators shall, to the extent practicable, maintain and operate
any affected facility including associated air pollution control
equipment in a manner consistent with good air pollution control
practice for minimizing emissions,” 40 C.F.R. § 60.11(d). EPA
refers to sources’ obligation to minimize emissions to the
greatest extent possible as the “general duty” standard. See, e.g.,
70 Fed. Reg. 43,992, 43,993 (July 29, 2005).
In 1994, EPA adopted the SSM exemption for section 112.
National Emission Standards for [HAPs] for Source Categories:
General Provisions, 59 Fed. Reg. 12,408 (Mar. 16, 1994) (“1994
Rule”).3 Each source was thus exempted from the numerical
2 Standards of Performance for New Stationary Sources, 42
Fed. Reg. 57,125 (Nov. 1, 1977); see, e.g., 51 Fed. Reg. 27,956,
27,970 (Aug. 4, 1986). Section 111 left to the Administrator’s
discretion the establishment of emissions standards for pollutants from
sources while section 112 mandated the establishment of emissions
standards for over 100 HAPs. See New Jersey v. EPA, 517 F.3d 574,
580 n.1 (D.C. Cir. 2008).
3 “The General Provisions have the legal force and effect of
standards, and they may be enforced independently of relevant
5
limits set for emission control pursuant to section 112 and only
the general duty would apply. However, in order to avoid a
blanket exemption, EPA required each source to develop and
implement an SSM plan. “The purpose of the plan [was] for the
source to demonstrate how it will do its reasonable best to
maintain compliance with the standards, even during [SSMs].”
Id. at 12,423. Each SSM plan was to “describe[], in detail,
procedures for operating and maintaining the source during
periods of [SSM] and a program of corrective action for
malfunctioning process and air pollution control equipment used
to comply with the relevant standard.” Id. at 12,439. The EPA
Administrator could require changes to the SSM plan if it was
inadequate. Id. at 12,440. The plan was incorporated by
reference into the source’s Title V permit, 59 Fed. Reg. at
12,439, and thereby subject to prior approval by the State
permitting authority, 58 Fed. Reg. 42,760, 42,768 (Aug. 11,
1993). Under the CAA, the SSM plan was to be made publicly
available, 42 U.S.C. § 7661a(b)(8), and served as a safe harbor
during SSM events, id. § 7661c(f).
In 2002, EPA removed the requirement that a source’s Title
V permit incorporate the SSM plan, and instead determined that
a source’s Title V permit must simply require the source to
adopt an SSM plan and to abide by it.4 Because the SSM plan
was no longer itself part of the permit and could be revised
standards.” 59 Fed. Reg. at 12,408. The requirements of the General
Provisions are superceded by any category-specific standard. See id.
at 12,409.
4 National Emission Standards for Hazardous Air Pollutants
for Source Categories: General Provisions; and Requirements for
Control Technology Determinations for Major Sources in Accordance
with Clean Air Act Sections, Sections 112(g) and 112(j), 67 Fed. Reg.
16,582 (Apr. 5, 2002) (“2002 Rule”).
6
without formal revision of the permit, it was no longer subject
to prior approval, and was no longer eligible for the permit
shield. Id. Additionally, “to minimize the unnecessary
production of the SSM plan,” 66 Fed. Reg. 16,318, 16,326 (Mar.
23, 2001), the SSM plan was to be made publicly available only
upon request. Id. The Sierra Club sought reconsideration and
filed a petition for review of the 2002 Rule, and as part of a
settlement agreement, EPA proposed “modest” changes to the
SSM plan regulations, 67 Fed. Reg. 72,875, 72,879 (Dec. 9,
2002), namely that sources must submit their SSM plans to the
permitting authority along with their Title V permit applications.
In the final rule adopted in 2003, however, EPA “decided
instead to adopt a less burdensome approach,”5 requiring
members of the public to make a “specific and reasonable
request” of the permitting authority to request the SSM plan
from the source. 68 Fed. Reg. at 32,591. The Sierra Club
challenged the 2003 Rule in a new petition for review, which
was consolidated with its previous challenge. The Natural
Resources Defense Council (“NRDC”) also filed a petition for
reconsideration on the ground that any limitation on the public
availability of the SSM plans was unlawful. EPA agreed to take
comment on the new SSM provisions, and the consolidated
cases were held in abeyance pending reconsideration.
In 2006, EPA retracted the requirement that sources
5 National Emission Standards for Hazardous Air Pollutants
for Source Categories: General Provisions; and Requirements for
Control Technology Determinations for Major Sources in Accordance
with Clean Air Act Sections, Sections 112(g) and 112(j), 68 Fed. Reg.
32,586, 32,591 (May 30, 2003) (“2003 Rule”)
7
implement their SSM plans during SSM periods.6 According to
EPA, “[t]his is consistent with the concept that the plan specifics
are not applicable requirements [under Title V] and thus cannot
be required to be followed. Nonetheless, the general duty to
minimize emissions remains intact and is the applicable
requirement.” 70 Fed. Reg. 43,992, 43,994 (Jul. 29, 2005).
Post-event reporting requirements provided that sources must
describe what actions were taken to minimize emissions “any
time there is an exceedance of an emission limit . . . and thus a
possibility that the general duty requirement was violated.” 71
Fed. Reg. at 20,448. EPA clarified that reporting and
recordkeeping is only required when a start up or shut down
caused the applicable emission standard to be exceeded, and “for
any occurrence of malfunction which also includes potential
exceedances.” Id. at 20,447. EPA also eliminated the
requirement that the Administrator obtain a copy of a source’s
SSM plan upon request from a member of the public and
determined that the public may only access those SSM plans
obtained by a permitting authority. The permitting authorities,
in turn, “still have the discretion to obtain plans requested by the
public, but will not be required to do so.” Id.
Petitioners7 now contend that the exemption from
6 National Emission Standards for Hazardous Air Pollutants:
General Provisions, 71 Fed. Reg. 20,446, 20,447 (Apr. 20, 2006)
(“2006 Rule”).
7 The Coalition for a Safe Environment (“CFASE”)
petitioned for reconsideration of EPA’s conclusion that a source’s
“Title V permit will assure its compliance with the general duty to
minimize emissions during [SSM] events merely by requiring the
facility to file a report after such an event.” CFASE, Comment Letter,
Petition for Reconsideration of “National Emission Standards for
Hazardous Air Pollutants: General Provisions,” 71 Fed. Reg. 20,446
(June 19, 2006). EPA denied reconsideration, 72 Fed. Reg. 19,385
8
compliance with emissions standards during SSM events is both
unlawful and arbitrary, and that the 2002, 2003, and 2006 rules
unlawfully and arbitrarily fail to “assure compliance” with
“applicable requirements” under Title V. Upon determining that
we have jurisdiction, we turn to petitioners’ challenges to the
rules.
II.
The CAA provides that “[a]ny 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.” 42 U.S.C. § 7607(b)(1). EPA maintains that
petitioners have waived their challenge to the SSM exemption
by not challenging the 1994 Rule articulating that the general
duty standard replaces section 112 emissions standards during
SSM events. Petitioners, noting that “EPA received repeated
comments on the illegality of its SSM exemption in the course
of its rulemaking -- which covered more than six years,
generated three separate proposals and necessitated three
petitions for reconsideration,” Petrs. Br. 29, respond that
“rulemakings that significantly change the context for a
regulatory provision can re-open it for comment, even if an
agency does not change the provision itself,” id., and that this is
what happened here.
Under the reopening doctrine, the time for seeking review
starts anew where the agency reopens an issue “by holding out
the unchanged section as a proposed regulation, offering an
explanation for its language, soliciting comments on its
substance, and responding to the comments in promulgating the
(Apr. 18, 2007), and CFASE petitioned for review. This petition
along with the other challenges to the 2006 Rule were consolidated
with the previous petitions for review.
9
regulation in its final form.” Am. Iron & Steel Inst. v. EPA, 886
F.2d 390, 397 (D.C. Cir. 1989); see P&V Enters. v. U.S. Army
Corps of Eng’rs., 516 F.3d 1021, 1023-24 (D.C. Cir. 2008);
Ohio v. EPA, 838 F.2d 1325, 1328 (D.C. Cir. 1988). In its 2003
rulemaking, EPA discussed revisions to its SSM plan
requirements, but asserted that “[n]othing in these revisions is
intended . . . to change the general principle that compliance
with a MACT standard is not mandatory during periods of
[SSM].” 67 Fed. Reg. at 72,880. In response to Sierra Club’s
comments questioning the legality of the SSM exemption, EPA
stated: “We believe that we have discretion to make reasonable
distinctions concerning those particular activities to which the
emission limitations in a MACT standard apply, and we,
therefore, disagree with the legal position taken by the Sierra
Club.” 2003 Rule, 68 Fed. Reg. at 32,590. However, “when the
agency merely responds to an unsolicited comment by
reaffirming its prior position, that response does not create a
new opportunity for review. Nor does an agency reopen an
issue by responding to a comment that addresses a settled aspect
of some matter, even if the agency had solicited comments on
unsettled aspects of the same matter.” Kennecott Utah Copper
Corp. v. Dep’t of Interior, 88 F.3d 1191, 1213 (D.C. Cir. 1996);
see also Am. Iron, 886 F.2d at 398. Moreover, when EPA
received unsolicited comments on this issue in its 2006
rulemaking, it explained that “[t]hese commenters raise issues
that are outside of the scope of this rulemaking. The general
duty provision has been in place since 1994.” 71 Fed. Reg. at
20,449; cf. PanAmSat Corp. v. FCC, 198 F.3d 890, 897 (D.C.
Cir. 1999). Such agency conduct is not tantamount to an actual
reopening.
However, petitioners contend that the 2006 Rule “has
completely changed the regulatory context for its SSM
exemption by stripping out virtually all of the SSM plan
requirements that it created to contain that exemption.” Petrs.
10
Br. at 29. In Kennecott, this court established that an “agency’s
decision to adhere to the status quo ante under changed
circumstances” can “constructively reopen[]” a rule “by the
change in the regulatory context.” 88 F.3d at 1214. A
constructive reopening occurs if the revision of accompanying
regulations “significantly alters the stakes of judicial review,”
id. at 1227, as the result of a change that “could have not been
reasonably anticipated,” Envtl. Def. v. EPA, 467 F.3d 1329,
1334 (D.C. Cir. 2006).
Petitioners recount, and EPA does not dispute, that:
To avoid creating a “blanket exemption from emission
limits,” EPA’s 1994 rule required that (1) sources
comply with their SSM plans during periods of SSM;
(2) SSM plans be reviewed and approved by permitting
authorities like any other applicable requirement; (3)
SSM plans be unconditionally available to the public,
which could participate in evaluating their adequacy in
the permit approval process; and (4) SSM plan
provisions be directly enforceable requirements. 5 9
Fed. Reg. at 12423 []. In the rulemakings challenged
here, however, EPA has eliminated all of these
safeguards. SSM plans are no longer enforceable
requirements, and EPA has expressly retracted the
requirement that sources comply with them. 71 Fed.
Reg. at 20447 []. EPA also has eliminated any
requirement that SSM plans be vetted for adequacy and
any opportunity for citizens to see or object to them.
Id. [].
Petrs. Br. at 29-30. These are not mere “minor changes,” Envtl.
Def., 467 F.3d at 1333. In so modifying the SSM plan
requirements, EPA has constructively reopened the SSM
exemption. While the text of the general duty itself did not
11
change, “EPA has completely changed the regulatory context for
its SSM exemption by stripping out virtually all of the SSM plan
requirements that it created to contain the exemption.” Petrs.
Br. at 29 (emphasis in original).
EPA’s modifications to the SSM plan requirements created
a different regulatory construct as to the means of measuring
compliance with the general duty. Because the general duty
does not include any “numerical emissions limits,” 42 Fed. Reg.
at 57,125, the general duty assumes new shape depending on the
means used to capture that standard. In 1994, EPA determined
that compliance with the general duty on its own was
insufficient to prevent the SSM exemption from becoming a
“blanket” exemption. It established the SSM plan requirements
precisely because the general duty was inadequate. Now EPA
has removed these necessary safeguards. Because the general
duty was defined in 1994 through and housed in the four walls
of the SSM plan requirements, EPA’s modifications to those
requirements have eliminated the only effective constraints that
EPA originally placed on the SSM exemption. The fact that the
regulatory terms defining “the general duty” itself are
unchanged is legally irrelevant because the other “extensive
changes . . . significantly alter[ed] the stakes of judicial review,”
Kennecott, 88 F.3d at 1226-27. Just as the court in Kennecott
agreed with industry that the agency had constructively
reopened a regulation when it incorporated amended regulations
that expanded available remedies and thus altered its financial
incentives for challenging the regulation, so too here from the
perspective of environmental petitioners’ interests and allocation
of resources the general duty “may not have been worth
challenging in [1994], but the [revised] regulations gave [that
duty] a new significance,” id. at 1227. In Kennecott, there were
“new and potentially more onerous provisions,” id., facing
industry; here petitioners face a blanket exemption and a more
12
onerous task in effecting compliance with HAP emission
standards during SSM events.
Although EPA asserts that “the duty to minimize emissions
is not inextricably linked to the SSM plan,” Resp. Br. at 24, the
rulemaking record shows that “the general duty requirement and
the SSM plan requirements were both elements of a package
deal that EPA devised and sold to the public as adequate
protection from [HAPs] during SSM events,” Petrs. Reply Br.
at 12. When commenters raised objections to the SSM
exemption in 1994, EPA’s direct response relied upon the SSM
plan as a justification for the relaxed standard:
The EPA believes, as it did at proposal, that the
requirement for a[n] [SSM] plan is a reasonable bridge
between the difficulty associated with determining
compliance with an emission standard during these
events and a blanket exemption from emission limits.
The purpose of the plan is for the source to
demonstrate how it will do its reasonable best to
maintain compliance with standards, even during
[SSMs].”
59 Fed. Reg. at 12,423. EPA attempts now to dismiss this
statement as mere “inartful[] word[ing],” Resp. Br. at 27, but the
fact that EPA’s entire discussion of the proper standard to apply
during SSM events invoked the SSM plan provisions confirms
that the SSM plan and general duty standard are inextricably
linked. Indeed, the explicit purpose of the SSM plan as devised
in 1994 was to “ensure” that facility owners abide by the general
duty. 59 Fed. Reg. at 12,439.
Shifting from a regulatory scheme based on a mandatory
SSM plan that was part of a source’s Title V permit, which is
subject to prior approval with public involvement, see 42 U.S.C.
13
§§ 7661a(b)(6), to a regulatory scheme with a non-mandatory
plan providing for no such approval or involvement but only
after-the-fact reporting changed the calculus for petitioners in
seeking judicial review, id., and thereby constructively reopened
consideration of the exemption from section 112 emission
standards during SSM events. Petitioners’ challenges to the
SSM exemption are therefore timely.
III.
On the merits, petitioners contend that EPA’s decision to
exempt major sources from compliance with section 112
emissions standards during SSM events is contrary to the plain
text of the statute and arbitrary and capricious in any event.
EPA and Industry Intervenor respond that EPA’s general-duty
requirement during SSM events is a lawful interpretation of the
statute and a reasonable way to reconcile the need to minimize
emissions with the inherent technological limitations during
SSM events. Challenges to EPA’s interpretation of the CAA are
governed by Chevron U.S.A., Inc. v. NRDC, 467 U.S. 837, 842-
843 (1984), in which “the court, as well as the agency, must give
effect to the unambiguously expressed intent of Congress.”
Only if the statute is silent or ambiguous on a particular issue,
may the court defer to the agency’s reasonable interpretation.
Id. at 844. The CAA provides that the court may reverse any
agency action found to be “arbitrary, capricious, an abuse of
discretion, or otherwise not in accordance with law.” 42 U.S.C.
§ 7607(d)(9)(A).
Section 112(d) provides that “[e]missions standards”
promulgated thereunder must require MACT standards. 42
U.S.C. § 7412(d)(2). Section 302(k) defines “emission
standard” as “a requirement established by the State or the
Administrator which limits the quantity, rate, or concentration
of emissions of air pollutants on a continuous basis, including
14
any requirement relating to the operation or maintenance of a
source to assure continuous emission reduction, and any design,
equipment, work practice or operational standard promulgated
under this chapter.” Id. § 7602(k). Petitioners contend that,
contrary to the plain text of this definition, “EPA’s SSM
exemption automatically excuses sources from compliance with
emission standards whenever they start up, shut down, or
malfunction, and thus allows sources to comply with emission
standards on a basis that is not ‘continuous.’” Petrs. Br. at 23.
EPA responds that the general duty that applies during SSM
events “along with the limitations that apply during normal
operating conditions, together form an uninterrupted, i.e.,
continuous, limitation because there is no period of time during
which one or the other standard does not apply,” Respt.’s Br. at
31. “Although Chevron step one analysis begins with the
statute’s text,” the court must examine the meaning of certain
words or phrases in context and also “exhaust the traditional
tools of statutory construction, including examining the statute’s
legislative history to shed new light on congressional intent,
notwithstanding statutory language that appears superficially
clear.” Am. Bankers Ass’n v. Nat’l Credit Union Admin., 271
F.3d 262, 267 (D.C. Cir. 2001) (citations and quotation marks
omitted).
EPA suggests that the general duty is “part of the operation
and maintenance requirements with which all sources subject to
a section 112(d) standard must comply,” Respt.’s Br. at 33,
pointing to section 302(k)’s statement that an “emission
standard” includes “any requirement relating to the operation or
maintenance of a source to assure continuous emission
reduction,” 42 U.S.C. § 7602(k). Section 302(k)’s inclusion of
this broad phrase in the definition of “emission standard”
suggests that emissions reduction requirements “assure
continuous emission reduction” without necessarily
15
continuously applying a single standard. Indeed, this reading is
supported by the legislative history of section 302(k):
By defining the terms ‘emission limitation,’ ‘emission
standard,’ and ‘standard of performance,’ the
committee has made clear that constant or continuous
means of reducing emissions must be used to meet
these requirements. By the same token, intermittent or
supplemental controls or other temporary, periodic, or
limited systems of control would not be permitted as a
final means of compliance.
H.R. Rep. 95-294, at 92 (1977), as reprinted in 1977
U.S.C.C.A.N. 1077, 1170. “Congress’s primary purpose behind
requiring regulation on a continuous basis” appears, as one
circuit has suggested, to have been “to exclude intermittent
control technologies from the definition of emission
limitations,” Kamp v. Hernandez, 752 F.2d 1444, 1452 (9th Cir.
1985).
When sections 112 and 302(k) are read together, then,
Congress has required that there must be continuous section
112-compliant standards. The general duty is not a section 112-
compliant standard. Admitting as much, EPA states in its brief
that the general duty is neither “a separate and independent
standard under CAA section 112(d),” nor “a free-standing
emission limitation that must independently be in compliance”
with section 112(d), nor an alternate standard under section
112(h). Respt.’s Br. 32-34. Because the general duty is the only
standard that applies during SSM events – and accordingly no
section 112 standard governs these events – the SSM exemption
violates the CAA’s requirement that some section 112 standard
apply continuously. EPA has not purported to act under section
112(h), providing that a standard may be relaxed “if it is not
feasible in the judgment of the Administrator to prescribe or
16
enforce an emission standard for control of a [HAP],” id. §
7412(h)(1), based on either a (1) design or (2) source specific
basis, id. § 7412(h)(2)(A), (B).
EPA’s suggestion that it has “discretion to make reasonable
distinctions concerning those particular activities to which the
emission limitations in a MACT standard apply,” 68 Fed. Reg.
at 32,590, belies the text, history and structure of section 112.
“In 1990, concerned about the slow pace of EPA’s regulation of
HAPs, Congress altered section 112 by eliminating much of
EPA’s discretion in the process.” New Jersey, 517 F.3d at 578.
In requiring that sources regulated under section 112 meet the
strictest standards, Congress gave no indication that it intended
the application of MACT standards to vary based on different
time periods. To the contrary, Congress specifically permitted
the Administrator to “distinguish among classes, types, and sizes
of sources within a category or subcategory in establishing such
standards,” CAA § 112(d)(1), 42 U.S.C. § 7412(d)(1).
Additionally, while recognizing that in some instances it might
not be feasible to prescribe or enforce an emission standard
under § 112, Congress provided in section 112(h) for
establishment of “work practice” or “operational” standards
instead, but, as petitioners point out, “strictly limited this
exception by defining ‘not feasible . . .’ to include only [two
types of] situations,” Petrs. Br. 9, and did not authorize the
Administrator to relax emission standards on a temporal basis.
See NRDC, 489 F.3d at 1374.
In sum, petitioners’ challenge to the exemption of major
sources from normal emission standards during SSM is
premised on a rejection of EPA’s claim of retained discretion in
the face of the plain text of section 112. “Where Congress
explicitly enumerates certain exceptions to a general prohibition,
additional exceptions are not to be implied, in the absence of a
contrary legislative intent”. NRDC, 489 F.3d at 1374 (quoting
17
TRW Inc. v. Andrews, 534 U.S. 19, 28 (2001)). The 1990
Amendments confined the Administrator’s discretion, see New
Jersey, 517 F.3d at 578, and Congress was explicit when and
under what circumstances it wished to allow for such discretion,
id. at 582. “EPA may not construe [a] statute in a way that
completely nullifies textually applicable provisions meant to
limit its discretion.” New Jersey, 517 F.3d at 583 (quoting
Whitman, 531 U.S. at 485).
Accordingly, we grant the petitions without reaching
petitioners’ other contentions, and we vacate the SSM
exemption. See New Jersey, 517 F.3d at 583 (citing Allied
Signal, Inc. v. U.S. Nuclear Regulatory Comm’n, 988 F.2d 146,
150-51 (D.C. Cir. 1993)).
RANDOLPH, Senior Circuit Judge, dissenting: I do not
agree that we have jurisdiction over Sierra Club’s petition for
judicial review. The original regulations at issue, 40 C.F.R.
§ 63.6(e)–(h) (1994), exempt periods of startup, shutdown, and
malfunction from opacity and non-opacity emission standards.
When EPA promulgated these regulations in 1994, Sierra Club
took no legal action. Yet under the Clean Air Act a petition for
judicial review of an EPA regulation must be filed within 60
days of the regulation’s publication in the Federal Register. 42
U.S.C. § 7607(b)(1).
Of course an agency may give notice and ask for comment
on whether an existing regulation should be modified or
repealed or retained, or it may indicate in response to comments
that it has reconsidered the regulation. See Kennecott Utah
Copper Corp. v. Dep’t of Interior, 88 F.3d 1191, 1214 (D.C. Cir.
1996). Or an agency may give its regulation new significance
by altering other regulations incorporating it by reference. See
id. at 1226–27. In any one of these situations the 60-day period
would begin to run again. But nothing of the sort occurred here.
According to Sierra Club, EPA’s rulemakings in 2002, 2003,
and 2006 rendered enforcement of the 1994 startup, shutdown,
and malfunction regulations more difficult. Petr.’s Br. at 29.
Even if true,1 that could hardly have amounted to agency
“action” re-promulgating the 1994 regulations, which is what
§ 7607(b)(1) requires as a prerequisite for judicial review. After
1
The majority opinion makes a factual error when it
suggests that the new startup, shutdown, and malfunction
regulations have eliminated a prior requirement that EPA
approve startup, shutdown, and malfunction plans in the course
of its review of Title V permits. Maj. Op. at 12. In fact, the
plans were merely incorporated by reference into Title V
permits; there has never been any requirement that EPA review
or approve the plans before approving permits. See 66 Fed. Reg.
16,318, 16,326 (2001); see also 40 C.F.R. § 63.6(e)(3)(viii)
(1998); 67 Fed. Reg. 16,582, 16,587 (2002).
2
all, Sierra Club’s complaint is not that the 1994 regulations are
now hard to enforce; it is instead that the 1994 regulations are
invalid and always have been. The recent rules did not alter the
exemption for startup, shutdown, and malfunction events. The
new rules simply modified requirements for each source’s plan
regarding implementation of the duty to minimize pollution
during the exempt periods. Sierra Club had the option – which
it exercised2 – of challenging the new rules on the ground that
the modifications will lead to unacceptable levels of pollution.
In Kennecott, regulated industries sought judicial review of
an allegedly invalid regulation after changes in related
regulations made its enforcement more likely and more punitive.
Sierra Club has no comparable financial incentives capable of
assessment by a court; instead, it presumably has an incentive to
challenge any regulatory change that might lead to increased
pollution. The majority’s rationale implies that each time EPA
changes an emissions regulation, it risks subjecting every related
regulation to challenges from third parties. Such a regime, and
the instability it generates, is intolerable. Perhaps that is why,
until today, we have limited the constructive reopening doctrine
to cases involving regulated entities. See Envtl. Def. v. EPA,
467 F.3d 1329, 1334 (D.C. Cir. 2006).
Although EPA did not reopen its 1994 regulations for
judicial review, Sierra Club has another option: it may file a
petition to rescind those regulations and, if EPA denies the
petition, Sierra Club may seek judicial review of EPA’s action.
2
The majority opinion does not reach Sierra Club’s
argument that the recent rules fail to guarantee enforcement of
applicable emissions standards and therefore violate Title V of
the Clean Air Act.
3
See, e.g., Pub. Citizen v. Nuclear Regulatory Comm'n, 901 F.2d
147, 152 (D.C. Cir. 1990). There is no basis for permitting
Sierra Club to circumvent that procedural requirement in this
case. See Kennecott, 88 F.3d at 1214.
There is another problem with the majority opinion. It
disposes of the case with an argument not addressed in the brief
of either party – namely, that § 112(h) of the Clean Air Act
provides the only basis for EPA to impose a non-numerical
emissions standard and that the 1994 regulations are unlawful
because they do not comply with the requirements of § 112(h).
Sierra Club mentions § 112(h), see Petr.’s Br. at 24, but its
argument that the 1994 regulations are unlawful rests on
§ 302(k)’s requirement that “emission standards” must regulate
air pollutants on a “continuous basis,” id. at 23–24. EPA refers
to § 112(h) only to state that it is irrelevant to the question
whether its “general duty to minimize” is an enforceable
standard satisfying the statutory requirement to regulate sources
on a continuous basis. Resp.’s Br. at 33 n.5. As we have
recognized, a passing mention of an otherwise unbriefed issue
does not normally suffice to preserve the issue. United States v.
Haldeman, 559 F.2d 31, 78 n.113 (D.C. Cir. 1976).3
3
The majority attempts to shoehorn its holding into
Sierra Club’s “continuous basis” arguments, stating that it reads
§ 112 and § 302(k) together to “require[] that there must be
continuous section 112-compliant standards.” Maj. Op. at 15.
But the discussion of § 302(k)’s continuous basis requirement
does no work in the majority’s legal analysis; without the
“continuous basis” requirement, the majority would still hold
that EPA’s standards must be “section 112-compliant.” The
majority’s point is not that EPA has failed to regulate emissions
sources on a continuous basis. See Maj. Op. at 14 (stating that
EPA need not continuously apply a uniform standard). It is
instead that the 1994 rule’s “general duty to minimize” does not
4
Though there have been exceptions, we have generally
declined to consider issues not briefed by the parties, especially
when the issue is not easy or the record is long and complex, cf.
United States v. Pryce, 938 F.2d 1343, 1347–48, 1351 (D.C. Cir.
1991), when doing so would be unfair to the respondent, Envtl.
Def. Fund, Inc. v. Costle, 657 F.2d 275, 284 n.32 (D.C. Cir.
1981), or when the legal issue is particularly important.
Carducci v. Regan, 714 F.2d 171, 177 (D.C. Cir. 1983). Here,
the question whether EPA’s interpretation of § 112 is
permissible is a difficult one, and both the record and the statute
are complex. Here too, EPA has never had a fair opportunity to
address the issue.
meet the requirements of § 112(h). Maj. Op. at 14–16.