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United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued September 6, 2002 Decided February 28, 2003
No. 01-1204
UTILITY AIR REGULATORY GROUP,
PETITIONER
v.
ENVIRONMENTAL PROTECTION AGENCY,
RESPONDENT
CLEAN AIR IMPLEMENTATION PROJECT,
INTERVENOR
On Petition for Review
Lauren E. Freeman argued the cause for the petitioner.
Mel S. Schulze was on brief.
Christopher S. Vaden, Attorney, United States Department
of Justice, argued the cause for the respondent. Gregory B.
Foote and Kerry E. Rodgers, Attorneys, United States Envi-
Bills of costs must be filed within 14 days after entry of judgment.
The court looks with disfavor upon motions to file bills of costs out
of time.
2
ronmental Protection Agency, were on brief. Kent E. Han-
son, Attorney, United States Department of Justice, entered
an appearance.
William H. Lewis, Jr., and Michael A. McCord were on
brief for the intervenor.
Before: EDWARDS, HENDERSON, and ROGERS, Circuit Judges.
Opinion for the court filed by Circuit Judge HENDERSON.
KAREN LECRAFT HENDERSON, Circuit Judge: The petitioner,
the Utility Air Regulatory Group (UARG), a trade association
whose members include inter alia individual electric utilities,
seeks review and vacatur of the interpretation given by the
Environmental Protection Agency (EPA or Agency) to its
State Operating Permit Program regulations, 40 C.F.R.
§ 70.6(c)(1), and Federal Operating Permit Program regula-
tions, 40 C.F.R. § 71.6(c)(1). According to the EPA, the
regulations authorize, pursuant to Title V of the Clean Air
Act (CAA), 42 U.S.C. §§ 7661 et seq., permit issuing authori-
ties to enhance the conditions included in operating permits
issued to facilities that release air pollutants, viz. by imposing
emission monitoring requirements on a case-by-case basis to
‘‘assure compliance’’ with federal emission standards. 42
U.S.C. § 7661c(a); 40 C.F.R. §§ 70.6(c)(1), 71.6(c)(1). UARG
asserts that the EPA’s interpretation—which it says is mani-
fested in at least two permit-specific orders as well as an
Agency permit instruction manual—effectively, and without
required notice and comment, amends operating permit rules
the EPA promulgated in 1992 and 1996. Alternatively,
UARG asserts, the Agency’s interpretation of 40 C.F.R.
§§ 70.6(c)(1) and 71.6(c)(1) is unauthorized under the CAA.
For the following reasons, we dismiss the petition because
UARG lacks standing. In any event, the issue raised by
UARG is not ripe for judicial review.
I.
UARG’s petition for review is one of various industry
groups’ challenges to the EPA’s implementation of the 1990
amendments to Title V of the Clean Air Act. See, e.g.,
3
Appalachian Power v. EPA, 208 F.3d 1015, 1019 (D.C. Cir.
2000); Clean Air Implementation Project v. EPA, 150 F.3d
1200, 1204 (D.C. Cir. 1998). Title V of the CAA and its
implementing regulations govern the operating permit issuing
process for stationary sources of air pollution. 42 U.S.C.
§§ 7661 et seq.; 40 C.F.R. parts 70, 71.1 Under Title V, a
regulated source of air pollution cannot operate without ob-
taining an operating permit from the appropriate state or
local authority that administers an EPA-approved implemen-
tation plan (or from the EPA if no EPA-approved plan
exists). 42 U.S.C. § 7661a(a). Although the state or local
authority may approve a new permit or a permit submitted
for modification or renewal, it must first submit the permit to
the EPA for its review. Id. § 7661d. The EPA may ‘‘object
to [the] issuance’’ of the permit within 45 days; if it does
object, ‘‘the permitting authority may not issue the permit’’
unless the permit is ‘‘revised to meet the objection.’’ Id.
§ 7661d(b)(3), (c).
Parts 70 and 71 of the EPA’s ‘‘Air Programs’’ regulations
establish the ‘‘minimum elements’’ of a Title V permit pro-
gram, including provisions specifying the contents of each
permit. 40 C.F.R. §§ 70.6, 71.6. Under the EPA’s rules,
each permit must specify the permit’s duration, the emission
limitations and standards applicable to the source of air
pollution, monitoring and ‘‘measures to assure compliance’’
(including record keeping and reporting) with the conditions
and terms of the permit. 40 C.F.R. §§ 70.6(a)(1)–(3), (c),
71.6(a)(1)–(3), (c).
Because emission standards and monitoring requirements
differ depending on the particular source of air pollution, the
terms and conditions of each permit also vary. For some
1Part 70 applies to state-implemented Title V permit programs
and Part 71 applies to Title V programs administered by the EPA
where an EPA-approved state program is not in place. Although
the regulations at issue here, 40 C.F.R. §§ 70.6(c)(1), 71.6(c)(1),
were promulgated at different times, Part 70 in 1992 and Part 71 in
1996, the relevant text of each is identical and therefore we treat
them the same.
4
sources, in addition to restricting the amount of emitted
pollutants, the permit imposes periodic monitoring, testing
and recordkeeping requirements.2 The monitoring and test-
ing requirements ensure that sources continuously comply
with emission standards. For other sources no EPA or state-
approved standard imposes periodic monitoring or testing;
instead, the EPA regulation requires the state or other
permit authority to add monitoring and testing conditions
sufficient to monitor compliance with the permit. 40 C.F.R.
§ 70.6(a)(3)(i)(B); see Appalachian Power, 208 F.3d at 1019
(explaining that section 70.6(a)(3)(i)(B) requires periodic mon-
itoring if no periodic monitoring requirement exists).
Before the EPA employed the interpretation under chal-
lenge, it had read 40 C.F.R. § 70.6(a)(3)(i)(B)3 to authorize
the inclusion of supplemental monitoring and testing condi-
tions in a permit even if an EPA or state-approved periodic
monitoring or testing requirement was already in place. In
1998 the EPA issued a document entitled Periodic Monitor-
2 For example, for a source that engages in lead smelting, the
standards limit the total amount of stack emissions, 40 C.F.R.
§ 63.1543(a), and require the source to monitor daily the ‘‘baghouse
cell’’ pressure, inspect weekly to ensure that dust is removed from
hoppers and perform quarterly inspections of certain equipment, 40
C.F.R. § 63.1547.
3 Section 70.6(a)(3)(i)(B) provides that a permit must contain:
Where the applicable requirement does not require periodic
testing or instrumental or noninstrumental monitoring (which
may consist of recordkeeping designed to serve as monitoring),
periodic monitoring sufficient to yield reliable data from the
relevant time period that are representative of the source’s
compliance with the permit, as reported pursuant to paragraph
(a)(3)(iii) of this section. Such monitoring requirements shall
assure use of terms, test methods, units, averaging periods, and
other statistical conventions consistent with the applicable re-
quirement. Recordkeeping provisions may be sufficient to
meet the requirements of this paragraph (a)(3)(i)(B) of this
section[.]
40 C.F.R. § 70.6(a)(3)(i)(B).
5
ing Guidance for Title V Operating Permits Programs (Guid-
ance), which interpreted 40 C.F.R. § 70.6(a)(3)(i)(B) to re-
quire a permit issuer, if existing requirements failed to ‘‘yield
reliable data from the relevant time period that are represen-
tative of the source’s compliance,’’ to impose stricter monitor-
ing and testing conditions. Appalachian Power, 208 F.3d at
1019–20 (describing EPA’s view of 40 C.F.R. § 70.6(a)(3)(i)(B)
articulated in Guidance). In Appalachian Power, however,
electric utilities as well as associations representing the chem-
ical and petroleum industries successfully challenged the
EPA’s interpretation as an impermissible broadening of the
EPA’s regulation. Id. at 1028. We concluded the Guidance
effectively, and invalidly, amended 40 C.F.R. § 70.6(a)(3)(i)(B)
without complying with the rulemaking requirements of the
CAA, 42 U.S.C. § 7607(d). Id.
Since Appalachian Power, in two permit-related adjudica-
tions and in the promulgation of its Instruction Manual for
Permit Application Forms, the EPA has used a ‘‘separate
‘sufficiency’ requirement’’ imposed by other regulations (sec-
tions 70.6(c)(1) and 71.6(c)(1)) to reach the same interpreta-
tion this court rejected in Appalachian Power. PacifiCorp’s
Jim Bridger and Naughton Electric Utility Steam Generat-
ing Plants, Petition No. VIII–00–1 at 18, at
http://www.epa.gov/region07/programs/artd/air/title5/t5memos
/woc020.pdf (Nov. 18, 2000) (order denying in part and grant-
ing in part petition challenging state operating permit) (Paci-
fiCorp Order), Joint Appendix (JA) at 288; see Fort James
Camas Mill, Petition No. X–1999–1, at 7 (Dec. 22, 2000)
(order denying in part and granting in part petition to object
to state operating permit) (Fort James Camas Mill Order),
JA 29; Instruction Manual for Permit Application Forms
at 23 (Jan. 2001) (Manual), JA 36. According to the petition-
er, the EPA now interprets section 70.6(c)(1) (as well as
section 71.6(c)(1)) to mandate, ‘‘[w]here the applicable re-
quirement already requires periodic testing or instrumental
or non-instrumental monitoring,’’ that a permit issuer con-
duct ‘‘sufficiency reviews of periodic testing and monitoring
in applicable requirements, and enhancement of that testing
or monitoring through the permit as necessary to be suffi-
6
cient to assure compliance with the terms and conditions of
the permit.’’ PacifiCorp Order at 18–19.4 For example, in
PacifiCorp, where a quarterly monitoring requirement was
required by existing standards, the EPA determined the
quarterly monitoring to be too ‘‘infrequent’’ to ‘‘ ‘assure com-
pliance,’ ’’ and, using section 70.6(c)(1), conditioned issuance
of the permit on additional monitoring. PacifiCorp Order at
19.5
UARG challenges the EPA’s interpretation of sections
70.6(c)(1) and 71.6(c)(1), maintaining that it resurrects the
interpretation we rejected in Appalachian Power; that is, it
results in the same impermissible broadening of the rule.
UARG points out that the regulatory history, the same
history applicable to section 70.6(a)(3)(i)(B), does not indicate
that section 70.6(c)(1) was meant to impose a separate regula-
tory standard requiring a permit issuer to conduct sufficiency
reviews. See also Appalachian Power, 208 F.3d at 1026–27
4 Sections 70.6(c)(1) and 71.6(c)(1) both state:
(c) Compliance requirements. All part [70 or 71] permits shall
contain the following elements with respect to compliance:
(1) Consistent with paragraph (a)(3) of this section, compliance
certification, testing, monitoring, reporting, and recordkeeping
requirements sufficient to assure compliance with the terms
and conditions of the permit. Any document (including re-
ports) required by a part [70 or 71] permit shall contain a
certification by a responsible official that meets the require-
ments of § [70.5(d) or 71.5(d)] for [sic] this part.
40 C.F.R. §§ 70.6(c)(1), 71.6(c)(1).
5 In the Fort James Camas Mill Order the EPA, explaining that
‘‘the separate regulatory standard at section 70.6(c)(1) applies’’
where periodic testing or monitoring exists, decided that two permit
conditions failed to provide sufficient monitoring. Fort James
Camas Mill Order at 7–9, JA 29–31. The Manual likewise directs
Part 71 permit approval authorities to apply the same interpreta-
tion, requiring authorities to ‘‘enhance TTT testing or monitoring’’
where the applicable requirement is not ‘‘sufficient to assure compli-
ance with the terms and conditions of the permit.’’ Manual at 23,
JA 36.
7
(‘‘The short of the matter is that the regulatory history EPA
offers fails to demonstrate that § 70.6(a)(3)(i)(B) initially had
the broad scope the Guidance now ascribes to it.’’). Alterna-
tively, UARG argues that the EPA’s interpretation results in
a regulation unauthorized by the CAA.
II.
‘‘[B]efore we reach the merits of any claim, we must first
assure ourselves that the dispute lies within the constitutional
and prudential boundaries of our jurisdiction.’’ La. Envtl.
Action Network v. Browner, 87 F.3d 1379, 1382 (D.C. Cir.
1996). A court must confine itself ‘‘to adjudicating ‘actual
cases’ and ‘controversies,’ ’’ Allen v. Wright, 468 U.S. 737, 750
(1984), and in the administrative context, should avoid ‘‘pre-
mature adjudication TTT until an administrative decision has
been formalized and its effects felt in a concrete way by the
challenging parties.’’ Abbott Labs. v. Gardner, 387 U.S. 136,
148–49 (1967). For UARG, this means that UARG has
standing to challenge the EPA’s interpretation, and, if so,
that the controversy is ripe for us to review. Because UARG
petitions on behalf of its members, it has standing only if ‘‘at
least one of its members would have standing to sue in his
own right,’’ Sierra Club v. EPA, 292 F.3d 895, 898 (D.C. Cir.
2002) (citing Hunt v. Wash. State Apple Advertising Comm’n,
432 U.S. 333, 342–43 (1977)). As an ‘‘irreducible constitution-
al minimum,’’ then, it must meet the Article III requirements
for standing; it must have suffered ‘‘a concrete and particu-
larized injury that [was]: (1) actual or imminent, (2) caused
by, or fairly traceable to an act that [it] challenges in the
instant litigation, and (3) redressable by the court.’’ Fla.
Audubon Soc’y v. Bentsen, 94 F.3d 658, 663 (D.C. Cir. 1996)
(en banc) (internal quotation marks and citations omitted);
see Lujan v. Defenders of Wildlife, 504 U.S. 555, 560–61
(1992).
While UARG identifies several instances in which the EPA
has applied the ‘‘interpretation’’ it seeks to have overturned,
it does not specify how any particular action(s) has injured it
8
or its members.6 Of the three Agency actions UARG discuss-
es in its brief,7 we need consider only whether the EPA’s
issuance of the Manual has caused it injury because it ex-
pressly disavows any challenge of the two permit proceedings.
Brief for Petitioner at 30; Reply Brief for Petitioner at 9.8
UARG’s petition, however, fails to allege any ‘‘concrete and
particularized’’ injury that is ‘‘actual or imminent[ ] [and] not
conjectural or hypothetical’’ based on the EPA’s interpreta-
tion contained in its Manual. Panhandle E. Pipeline Co. v.
FERC, 198 F.3d 266, 268 (D.C. Cir. 1999). UARG does not
assert that the interpretation in the Manual has affected any
Title V permit of any UARG member or the Title V permit-
ting process. Although UARG contends that the EPA’s
interpretation has caused ‘‘permitting authorities to continue
to be under pressure to issue final Title V permits consistent
with EPA’s new statement of the law,’’ Brief for Petitioner at
23, it has not presented one instance in which any of its
members has felt so pressured.
Furthermore, UARG does not assert injury based on the
EPA’s adoption of the Manual qua an amendment to sections
70.6(c)(1) and 71.6(c)(1) without providing the notice and
comment procedures required by 42 U.S.C. § 7607(d) for any
CAA regulation because the Manual constitutes neither a
regulation nor an amendment thereto. It is instead an
agency policy statement—issued without the signature of any
Agency official and applied, it appears, on a purely ad hoc
6 UARG also notes a notice of deficiency issued to the State of
Texas, Texas Notice of Deficiency Order, 67 Fed. Reg. 732 (Jan. 7,
2002), a revoked draft Periodic Monitoring Technical Reference
Document and several regional comment letters—all applying the
interpretation under challenge, Brief for Petitioner at 20–23—but it
fails to allege any resulting injury.
7 See supra p. 5.
8UARG’s disavowal is understandable for it would face a serious
venue problem if it did challenge the two regional orders since a
challenge to a ‘‘locally or regionally applicable’’ action must be
brought in the appropriate regional circuit court. 42 U.S.C.
§ 7607(b).
9
basis—and in no way binds the Agency or regulated entities.
Cf. Gen. Elec. Co. v. EPA, 290 F.3d 377, 382–84 (D.C. Cir.
2002) (‘‘Guidance Document’’ binding both EPA and applicant
under Toxic Substances Control Act is, on its face, regulation,
not policy statement); Molycorp v. EPA, 197 F.3d 543, 545–
46 (D.C. Cir. 1999) (‘‘the ultimate focus of the inquiry [is]
whether agency action partakes of the fundamental character-
istic of a regulation, i.e., that it has the force of law.’’); see
also Kennecott Utah Copper Corp. v. Dep’t of the Interior, 88
F.3d 1191, 1207 (D.C. Cir. 1996) (‘‘We have interpreted ‘regu-
lation’ to mean a statement that has ‘general applicability’ and
that has the ‘legal effect’ of ‘binding’ the agency or other
parties.’’) (citations omitted). Compare Panhandle E. Pipe-
line Co., 198 F.3d at 269–70 (FERC opinions rendered moot
by settlement although they ‘‘offered useful discussions of
recurring issues’’ and may have had future value as policy
statements only), with Appalachian Power, 208 F.3d at 1023
(because Guidance ‘‘reads like a ukase’’ and ‘‘State authori-
ties, with EPA’s Guidance in hand, are insisting on [additional
monitoring],’’ document was binding in effect and thus subject
to notice and comment requirements). Accordingly, the
EPA’s interpretation as set forth in the Manual is ‘‘merely an
announcement to the public of the policy which the agency
hopes to implement in future rulemakings or adjudications,’’
Pac. Gas & Elec. Co. v. Fed. Power Comm’n, 506 F.2d 33, 38
(D.C. Cir. 1974), and does not injure UARG in any imminent
or redressable manner.
Furthermore, even if UARG has standing, the claim that it
has raised is not ripe for judicial review. Courts are obliged
to avoid ‘‘entangling themselves in abstract disagreements
over administrative policies[ ] and TTT to protect the agencies
from judicial interference until an administrative decision has
been formalized and its effects felt in a concrete way by the
challenging parties.’’ Abbott Labs., 387 U.S. at 148–49. In
determining whether a case is ripe, we consider ‘‘both the
fitness of the issues for judicial decision and the hardship to
the parties of withholding court consideration.’’ Id. at 149.
In considering whether an issue is fit for review, ‘‘we look to
see whether the issue ‘is purely legal, whether consideration
10
of the issue would benefit from a more concrete setting, and
whether the agency’s action is sufficiently final.’ ’’ Clean Air
Implementation Project, 150 F.3d at 1204 (D.C. Cir. 1998)
(quoting Natural Res. Def. Council, Inc. v. EPA, 22 F.3d
1125, 1133 (D.C. Cir. 1994)). Of these three criteria, the
third, at least, is not satisfied. The EPA is currently under-
taking a rulemaking to amend section 70.6(c)(1) and 71.6(c)(1).
Revisions To Clarify the Scope of Sufficiency Monitoring
Requirements for Federal and State Operating Permits Pro-
grams, 67 Fed. Reg. 58,561 (proposed Sept. 17, 2002). It
would be a waste of judicial resources for us to reach the
merits of UARG’s petition while the rulemaking is pending.
Ciba-Geigy Corp. v. EPA, 801 F.2d 430, 436 (D.C. Cir. 1986)
(‘‘The interest in postponing review is powerful when the
agency position is tentative. Judicial review [then] improper-
ly intrudes into the agency’s decisionmaking process. It also
squanders judicial resources since the challenging party still
enjoys an opportunity to convince the agency to change its
mind.’’) (citing Pub. Citizen Health Res. Group v. FDA, 740
F.2d 21, 31 (D.C. Cir. 1984); Cont’l Air Lines, Inc. v. CAB,
522 F.2d 107, 125 (D.C. Cir. 1974) (en banc)).
Finally, we note that UARG is not without remedies to
address the present situation. At least until the ongoing
rulemaking is complete, UARG, or one of its members, can
seek relief from a regional circuit court if the EPA takes
action affecting a permit pursuant to the challenged interpre-
tation. For this reason, we find no hardship to the petitioner
in withholding judicial review. 42 U.S.C. § 7607(b).
For the foregoing reasons, we dismiss the petition for
review.
So ordered.