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## North Carolina v. EPA

United States Court of Appeals for the District of Columbia Circuit

July 7, 2015, Filed

No. 13-1312 Consolidated with 14-1186

Reporter

614 Fed. Appx. 517; 2015 U.S. App. LEXIS 16246

STATE OF NORTH CAROLINA, PETITIONER v.

ENVIRONMENTAL PROTECTION AGENCY,

RESPONDENT. CLEAN AIR CAROLINA, ET AL.,

INTERVENORS

Prior History: [**1] On Petitions for Review of Final

Agency Action of the United States Environmental Protection

Agency.



## Core Terms

Increment, air, grounds, pollutant, petition for

reconsideration, after-arising, untimely, petition for review,

concentration, baseline, days



## Case Summary

Overview

HOLDINGS: [1]-The State of North Carolina's petition was

untimely; [2]-It filed its petition on December 26, 2013,

which was years after the deadline for petitions expired; [3]-

While the State contended that the appellate court's NRDC

decision constituted after-arising grounds under 42 U.S.C.S. §

7607(b)

, it brought its petition more than 10 months after that

decision, which was well outside the 60-day window for

petitions that the after-arising grounds exception provides;

[4]-The EPA did not abuse its discretion in determining that

the State's petition for reconsideration was untimely.

Outcome

One petition was dismissed, and a second petition was denied.



## LexisNexis® Headnotes

Business & Corporate Compliance >

... > Environmental

Law > Air Quality > National Ambient Air Quality Standards

Environmental Law > Air Quality > State Implementation Plans HN1 The Clean Air Act (Act) requires the Environmental

Protection Agency (EPA) to establish national ambient air

quality standards (NAAQS) for pollutants that contribute to

air pollution or threaten public health. 42 U.S.C.S. §§ 7408-

7409

. After the EPA sets a NAAQS, each state must submit to

the agency a state implementation plan (SIP) explaining how

it will implement, maintain, and enforce that NAAQS within

its boundaries. 42 U.S.C.S. § 7410(a)(1) For areas in a state

that attain a given NAAQS, the Act provides various SIP

requirements that collectively act as a program for the

prevention of significant deterioration of air quality in those

areas. 42 U.S.C.S. §§ 7470-7492

.

Business & Corporate Compliance >

... > Environmental

Law > Air Quality > National Ambient Air Quality Standards

HN2 For any national ambient air quality standards (NAAQS)

that the Environmental Protection Agency (EPA) sets after

August 7, 1977, the Clean Air Act requires the agency to

promulgate regulations that will prevent significant

deterioration of air quality resulting from emissions of the

pollutant relevant to that NAAQS. 42 U.S.C.S. § 7476(a)

. To

further that undertaking, the EPA must set baseline

concentration levels of the relevant pollutant, which reflect a

measurement of the concentration of that pollutant in the air

in a specific area on a specific date. 42 U.S.C.S. §§ 7473 and

7479(4)

. The gap between the baseline concentration level

and the NAAQS is known as an increment. Put more simply:

after the EPA issues a NAAQS, it measures the air quality in

a given area, the baseline concentration level, and determines

how much more pollution could exist in that area before

running afoul of the NAAQS, the increment.

Business & Corporate Compliance >

... > Environmental

Law > Air Quality > National Ambient Air Quality Standards

HN3 The Clean Air Act (Act) also authorizes the

Environmental Protection Agency (EPA) to substitute an

increment for particulate matter equal to or smaller than ten

micrometers for the existing increments for particular matter,

a broad class of pollutants, generally, which are set out in aPage 2 of 4

different section of the Act. 42 U.S.C.S. § 7476(f)

. In other

words, instead of setting a new baseline date and level and

determining for the first time the increment for particulate

matter smaller than ten micrometers, the Act authorizes the

EPA to apply the increment that the Act elsewhere sets forth

for particulate matter generally. 42 U.S.C.S. § 7473(b)

.

Business & Corporate Compliance >

... > Environmental

Law > Air Quality > National Ambient Air Quality Standards

HN4 The Environmental Protection Agency exercises its

authority under 42 U.S.C.S. § 7476(a) and, in a 2010 rule, set

a baseline concentration level and increment for fine

particulate matter smaller than 2.5 micrometers in length.

Environmental Law > Air Quality > General Overview

Governments > Legislation > Statute of Limitations > Time

Limitations

Environmental Law > Air Quality > Enforcement > Civil Actions

HN5 Petitioners seeking to challenge a rule promulgated

under the Clean Air Act must bring their challenge within 60

days of when the final rule first appears in the Federal

Register. 42 U.S.C.S. § 7607(b)

.

Governments > Legislation > Statute of Limitations > Time

Limitations

Environmental Law > Air Quality > Enforcement > Civil Actions

HN6 A petitioner invoking the after-arising grounds

exception in 42 U.S.C.S. § 7607(b) must bring its petition

within sixty days of when its after-arising claim ripens.

Civil Procedure >

... > Justiciability > Ripeness > Tests for

Ripeness

HN7 A suit is ripe if the legal issue is fit for judicial

resolution and the party challenging an administrative action

has felt its effects in a concrete way.

Environmental Law > Air Quality > General Overview

Environmental Law > Air

Quality > Enforcement > Administrative Proceedings

HN8 The Clean Air Act allows petitions for reconsideration if

the grounds for the objection arose after the period for public

comment, but within the time specified for judicial review. 42

U.S.C.S. § 7607(d)(7)(B)

.

Administrative Law > Judicial Review > Standards of

Review > Abuse of Discretion

Administrative Law > Agency Adjudication > Review of Initial Decisions

HN9 A court will reverse an agency's denial of

reconsideration only in the most extraordinary circumstances

and only if the agency has engaged in the clearest abuse of

discretion.

Counsel: For State of North Carolina, Petitioner: Amy Lynn

Bircher, Scott Alan Conklin, Brenda Eileen Menard, Esquire,

North Carolina Department of Justice, Raleigh, NC.

For Environmental Protection Agency, Respondent: John

Charles Cruden, Assistant Attorney General, Amy Jeanne

Dona, Sam Hirsch, U.S. Department of Justice, (DOJ)

Environmental & Natural Resrc Div, Washington, DC.

For Sierra Club, Movant-Intervenor for Respondent: David S.

Baron, Seth L. Johnson, Washington, DC.

For Clean Air Carolina, North Carolina Coastal Federation,

Movant-Intervenor for Respondents: Myra Dean Blake, John

Timothy Suttles, Jr., Attorney, Southern Environmental Law

Center, Chapel Hill, NC.

Judges: Before: GRIFFITH and KAVANAUGH, Circuit

Judges, and RANDOLPH, Senior Circuit Judge.



## Opinion

[*517] JUDGMENT

These petitions for review were considered on the record from

the Environmental Protection Agency and on the briefs of the

parties and oral argument of counsel. The Court has accorded

the issues full consideration and has determined that they do

not warrant a published opinion. See F ED

. R. A PP

. P. 36 ; D.C.

Cir. R. 36(d)

. For the reasons stated below, it is

ORDERED [**2] and ADJUDGED that the petition in case

No. 13-1312 be dismissed as untimely and that the petition in

case No. 14-1186 be denied.

HN1 The Clean Air Act requires the Environmental

Protection Agency (EPA) to establish national ambient air

quality standards (NAAQS) for pollutants that contribute to

air pollution or threaten public health. 42 U.S.C. §§ 7408-09

.

After EPA sets a NAAQS, each state must submit to the

agency a state implementation plan (SIP) explaining how it

will "implement[], maint[ain], and enforce[]" that NAAQS

within its boundaries. Id. § 7410(a)(1)

. For areas in a state

that attain a given NAAQS, the Act provides various SIP

requirements that collectively act as a program for the

prevention of significant deterioration of air quality in those 614 Fed. Appx. 517, *517 ; 2015 U.S. App. LEXIS 16246, **1Page 3 of 4

areas. See id

. §§ 7470-92

.

HN2 For any NAAQS that EPA sets after August 7, 1977, the

Act requires the agency to promulgate regulations that will

prevent significant deterioration of air quality resulting from

emissions of the pollutant relevant to that NAAQS. 42 U.S.C.

§ 7476(a)

. To further this undertaking, EPA must set

"baseline concentration" levels of the relevant pollutant,

which reflect a measurement of the concentration of that

pollutant in the air in a specific area on a specific date. Id. §§

7473

, 7479(4)

. The gap [**3] between the baseline

concentration level and the NAAQS is known as an

"increment." Put more simply: After EPA issues a NAAQS, it

measures the air quality in a given area (the baseline

concentration level) and determines how much more pollution

could exist in that area before running afoul of the NAAQS

(the increment).

HN3 The Act also authorizes EPA "to substitute" an

increment for particulate matter equal to or smaller than ten

micrometers [*518] (PM10) for the existing increments for

particular matter (a broad class of pollutants) generally, which

are set out in a different section of the Act. 42 U.S.C. §

7476(f)

. In other words, instead of setting a new baseline date

and level and determining for the first time the increment for

particulate matter smaller than ten micrometers, the Act

authorizes EPA to apply the increment that the Act elsewhere

sets forth for particulate matter generally. See id

. § 7473(b)

.

HN4 EPA exercised its authority under 42 U.S.C. § 7476(a)

and set a baseline concentration level and increment for fine

particulate matter smaller than 2.5 micrometers in length

(PM2.5) in a 2010 rule (the Increment Rule). See 75 Fed. Reg.

64,864 (Oct. 20, 2010)

. Petitioner North Carolina challenges

the Increment Rule, arguing that EPA cannot treat PM2.5 as a

new pollutant [**4] under section 7476(a)

. Instead, the State

argues, EPA had to set the PM2.5 increment using its

authority under section 7476(f)

.

We dismiss this petition because it is untimely. HN5

Petitioners seeking to challenge a rule promulgated under the

Clean Air Act must bring their challenge within sixty days of

when the final rule first appears in the Federal Register. See

42 U.S.C. § 7607(b)

. North Carolina filed its petition for

review of the 2010 Increment Rule on December 26, 2013

—

years after the deadline for petitions expired. North Carolina

insists that its petition falls within the Act's exception for

petitions "based solely on grounds arising after such sixtieth

day" that allows a party to file a petition for review "within

sixty days after such grounds arise." Id.

North Carolina contends that our January 4, 2013, decision in

NRDC v. EPA

, 706 F.3d 428, 435-37, 403 U.S. App. D.C. 378 (D.C. Cir. 2013)

, constituted after-arising grounds under

section 7607(b)

. But North Carolina brought its petition more

than ten months after we issued NRDC

— well outside of the

sixty-day window for petitions that the after-arising grounds

exception provides. Even assuming, without deciding, that

NRDC constituted after-arising grounds, North Carolina's

petition is thus still untimely. See 42 U.S.C. § 7607(b) ; see

also Am. Rd. & Transp. Builders Ass'n v. EPA

, 588 F.3d

1109, 1113-14, 388 U.S. App. D.C. 435 (D.C. Cir. 2009)

(holding that HN6 a petitioner invoking the after-arising [**5]

grounds exception must bring its petition within sixty days of

when its after-arising claim ripens).

The State explains that it did not bring its claim immediately

after NRDC because an EPA director suggested that the

agency was reviewing the impact that the decision would

have on the Increment Rule, and the State understood that

"revisions to the Increment Rule," which might have obviated

the need for its petition, "would take time." Pet'r's Br. 29. But

the Clean Air Act does not toll filing deadlines for such

niceties. The Increment Rule was in full effect and applicable

to North Carolina when we handed down our decision in

NRDC. See, e.g.

, 75 Fed. Reg. at 64,898 (noting that the

Increment Rule set "final PM2.5 increments

. . . for all State

[prevention of significant deterioration] programs" (emphasis

added)). The State thus had no more than sixty days from

when we issued that decision on January 4, 2013, to avail

itself of the after-arising grounds exception and file its

petition. See 42 U.S.C. § 7607(b) ; cf. Abbott Labs. v. Gardner

,

387 U.S. 136, 148-49, 87 S. Ct. 1507, 18 L. Ed. 2d 681 (1967)

(holding that HN7 a suit is ripe if the legal issue is fit for

judicial resolution and the party challenging an administrative

action has felt its effects in a "concrete way"), abrogated on

other grounds by Califano v. Sanders

, 430 U.S. 99, 97 S. Ct.

980, 51 L. Ed. 2d 192 (1977)

. [*519] Since the [**6] State

failed to meet that deadline, we dismiss the petition as

untimely.

North Carolina also asks us to review EPA's denial of the

State's administrative petition for reconsideration of the

Increment Rule. HN8 The Clean Air Act allows petitions for

reconsideration "if the grounds for [the] objection arose after

the period for public comment (but within the time specified

for judicial review)

. . . ." 42 U.S.C. § 7607(d)(7)(B)

. The

State filed its petition for reconsideration of the Increment

Rule with EPA on December 23, 2013, making the same

arguments it has now presented to us. EPA denied that

petition for reconsideration for several reasons, including that

the State failed to file it within the sixty-day judicial review

period following our decision in NRDC. See J.A. 181-82. For

the same reasons that we found North Carolina's petition for

review untimely, we hold that the agency did not abuse its

discretion in determining that the petition for reconsideration 614 Fed. Appx. 517, *517 ; 2015 U.S. App. LEXIS 16246, **2Page 4 of 4

was untimely. See AT&T v. FCC

, 363 F.3d 504, 509, 361 U.S.

App. D.C. 68 (D.C. Cir. 2004)

. ( HN9 "[A] court will reverse

an agency's denial of reconsideration only in the most

extraordinary circumstances

. . . and only if the agency has

engaged in the clearest abuse of discretion." (internal

quotations and citation omitted)). We [**7] therefore deny the

State's petition for review of EPA's decision rejecting the

petition for reconsideration. 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 rehearing en banc. See F ED

. R. A PP

.

P. 41(b) ; D.C. Cir. R. 41

.

Per Curiam

End of Document 614 Fed. Appx. 517, *519 ; 2015 U.S. App. LEXIS 16246, **6