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

1 40 C.F.R. § 63.6(e)(l)(i);, (f)(1), and (h)(1).

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.
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

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

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
5

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”).

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
6

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”)

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
7

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

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
8

(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. 

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
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)). 
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).

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
2

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. 

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.
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

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
4

meet the requirements of § 112(h). Maj. Op. at 14–16. 

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.