ORAL ARGUMENT SCHEDULED FOR APRIL 16, 2015 

No. 14-1112 & No. 14-1151 

______________________________________________ 

IN THE UNITED STATES COURT OF APPEALS 

FOR THE DISTRICT OF COLUMBIA CIRCUIT

______________________________________________ 

IN RE: MURRAY ENERGY CORPORATION, 

Petitioner. 

______________________________________________ 

MURRAY ENERGY CORPORATION, 

Petitioner, 

v. 

UNITED STATES ENVIRONMENTAL PROTECTION AGENCY, ET AL. 

Respondents. 

______________________________________________ 

On Petition for Writ of Prohibition & Petition for Review 

______________________________________________ 

FINAL BRIEF FOR RESPONDENTS 

______________________________________________ 

 

JOHN C. CRUDEN 

 Assistant Attorney General 

 s/ Amanda Shafer Berman 

 AMANDA SHAFER BERMAN 

BRIAN H. LYNK 

 U.S. Department of Justice 

 Environmental Defense Section 

 P.O. Box 7611 

 Washington, D.C. 20044 

 (202) 514-1950 (phone) 

 Email: amanda.berman@usdoj.gov 

March 9, 2015

Of Counsel: 

Elliott Zenick 

Scott Jordan 

United States Environmental 

Protection Agency 

Office of General Counsel 

1200 Pennsylvania Ave., N.W. 

Washington, D.C. 20460 

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Certificate as to Parties, Rulings, and Related Cases 

 Pursuant to Circuit Rules 28(a)(1)(A) and 21(d), Respondents the United States 

Environmental Protection Agency et al. states as follows: 

Parties and Amici: 

The parties in these consolidated cases are: 

 Petitioner: Murray Energy Corporation; 

Intervenors for Petitioner: National Federation of Independent Business, 

Utility Air Regulatory Group, Peabody Energy Corporation, State of Alabama, State 

of Alaska, State of Indiana, State of Kansas, State of Kentucky, State of Louisiana, 

State of Nebraska, State of Ohio, State of Oklahoma, State of South Dakota, State of 

West Virginia, State of Wyoming; 

 Amici Curiae for Petitioner: American Coalition for Clean Coal Electricity, 

National Mining Association, American Chemistry Council, American Coatings 

Association, Inc., American Fuel & Petrochemical Manufacturers, American Iron and 

Steel Institute, State of South Carolina, United States Chamber of Commerce, Council 

for Industrial Boiler Owners, Independent Petroleum Association of America, Metals 

Service Center Institute, National Association of Manufacturers; 

 Respondents: The United States Environmental Protection Agency, and 

Regina A. McCarthy, Administrator; 

 Intervenors for Respondent: Environmental Defense Fund, Natural Resources 

Defense Council, Sierra Club, Commonwealth of Massachusetts, District of 

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Colombia, State of California, State of Connecticut, State of Delaware, State of Maine, 

State of Maryland, State of New Mexico, State of New York, State of Oregon, State 

of Rhode Island, State of Vermont, State of Washington, City of New York; and 

Amici Curiae for Respondent: State of New Hampshire, Clean Wisconsin, 

Michigan Environmental Council, Ohio Environmental Council, Calpine 

Corporation, Jody Freeman, and Richard J. Lazarus. 

Rulings under Review: 

 Petitioner challenges, and alternatively asks this Court to issue a writ 

prohibiting, this proposed rule: Carbon Pollution Emission Guidelines for Existing 

Stationary Sources: Electric Utility Generating Units, 79 Fed. Reg. 34,380 (June 18, 2014). 

Related Cases: 

These consolidated cases are related to, and have been designated by the Court 

for argument on the same day as, State of West Virginia, et al., v. EPA, No. 14-1146, 

which purportedly challenges a 2010 settlement agreement between EPA, certain 

states, and non-governmental organizations, but asks the Court to stop the same 

ongoing rulemaking that Petitioner Murray Energy Corp. challenges in this case. 

 

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TABLE OF CONTENTS 

Jurisdiction and Standing ......................................................................................................... 1 

Issues Presented ......................................................................................................................... 1 

Statutes and Regulations ........................................................................................................... 1 

Statement of the Case ............................................................................................................... 2 

Background ................................................................................................................................ 3 

I. THE CLEAN AIR ACT .............................................................................................. 3 

II. THE 1990 AMENDMENTS ...................................................................................... 5 

III. THE MATS RULE ....................................................................................................... 7 

IV. THE PROPOSED RULE ........................................................................................... 8 

Summary of Argument ............................................................................................................. 9 

Argument .................................................................................................................................. 10 

I. MURRAY LACKS ARTICLE III STANDING ................................................... 10 

A. Murray cannot show “actual or imminent” injury from a proposal ........ 10 

B. Murray cannot show that the impacts it cites are traceable to the 

Proposed Rule and would be averted if the Court grants relief ............... 14 

C. The Intervenors also lack Article III standing................................................. 16  

II. THE COURT LACKS JURISDICTION OVER MURRAY’S DIRECT 

CHALLENGE TO THE PROPOSAL FOR ADDITIONAL REASONS .... 17 

A. Under the plain text of the Act, neither the Proposed Rule nor the 

supporting legal memorandum is a “final action.” ..................................... 17 

B. Murray cannot satisfy either prong of the Bennett finality test ................ 23 

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1. The Proposed Rule did not consummate the 

rulemaking process............................................................................... 23 

2. Proposing a rule creates no binding legal consequence ................. 25 

C. Murray’s challenges are unripe ....................................................................... 26 

III. THE COURT LACKS JURISDICTION TO ISSUE A WRIT OF 

PROHIBITION TO STOP THE ONGOING RULEMAKING .................... 27 

A. A writ may issue to aid, but not enlarge, jurisdiction ................................. 27 

B. A writ is only available where there is no other legal remedy ................... 29 

C. An extraordinary writ may issue only in certain circumstances ................ 29 

D. No authority supports the issuance of a writ here ...................................... 32 

IV. THE COURT SHOULD NOT STOP THE RULEMAKING BASED 

ON ONE INTERPRETATION OF AN AMBIGUOUS PROVISION ........ 34 

A. Section 7411(d) need not be read as Murray insists ................................... 35 

B. The Act’s structure, purpose, context, and legislative history do not 

favor Murray’s authority-nullifying interpretation of § 7411(d) ............... 41 

1. The Act’s structure and purpose conflict with Murray’s 

interpretation ......................................................................................... 41 

2. The legislative history conflicts with Murray’s interpretation ....... 42 

3. The statutory context is also at odds with Murray’s 

interpretation ......................................................................................... 45 

C. The Senate Amendment also conflicts with Murray’s interpretation 

of section 7411(d), and cannot be ignored .................................................. 46 

1. The Senate Amendment should not be ignored ............................. 46 

2. The Senate Amendment poses no non-delegation issue ............... 51 

Conclusion ................................................................................................................................ 54

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TABLE OF AUTHORITES 

CASES 

Abbott Labs. v. Gardner, 

387 U.S. 136 (1967) ............................................................................................................. 26 

Action on Smoking & Health v. Dep't of Labor, 

28 F.3d 162 (D.C. Cir. 1994) .............................................................................................. 26 

Ala. Power Co. v. Costle, 

636 F.2d 323 (D.C. Cir. 1979) .............................................................................................. 3 

*Alternative Research & Dev. Found. v. Veneman, 

262 F.3d 406 (D.C. Cir. 2001) ..................................................................................... 11, 12 

Am. Electric Power Co., Inc. v. Connecticut ("AEP"), 

131 S. Ct. 2527 (2011) ............................................................................................ 22, 39, 40 

Am. Petroleum Inst. v. EPA ("API"), 

683 F.3d 382 (D.C. Cir. 2012) ............................................................................................ 26 

Am. Petroleum Inst. v. SEC, 

714 F.3d 1329 (D.C. Cir. 2013).......................................................................................... 49 

Appalachian Power Co. v. EPA, 

208 F.3d 1015 (D.C. Cir. 2000).......................................................................................... 24 

Arizonans for Official English v. Arizona, 

520 U.S. 43 (1997) ................................................................................................................ 16 

Ass'n of Battery Recyclers, Inc. v. EPA, 

716 F.3d 667 (D.C. Cir. 2013) ............................................................................................ 14 

Athlone Indus. v. Consumer Prod. Safety Comm'n, 

707 F.2d 1485 (D.C. Cir. 1983).......................................................................................... 25 

*Authorities chiefly relied upon are marked with an asterisk. 

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Atlantic States Legal Found. v. EPA, 

325 F.3d 281 (D.C. Cir. 2003) ............................................................................................ 26 

Ayuda, Inc. v. Thornburgh, 

948 F.2d 742 (D.C. Cir. 1991) ..................................................................................... 27, 28 

Bell Atlantic Telephone Cos. v. F.C.C., 

131 F.3d 1044 (D.C. Cir. 1997)............................................................................. 41, 42, 45 

*Bennett v. Spear, 

520 U.S. 154 (1997) ......................................................................................... 21, 23, 25, 26 

Burgess v. United States, 

553 U.S. 124 (2008) ............................................................................................................. 49 

Chamber of Commerce of U.S. v. EPA, 

642 F.3d 192 (D.C. Cir. 2011) ............................................................................................ 11 

*Chevron, U.S.A., Inc. v. Natural Resources Def. Council, 

467 U.S. 837 (1984) ................................................................................................ 34, 38, 52

Citizens to Save Spencer Cnty. v. EPA, 

600 F.2d 844 (D.C. Cir. 1979) ............................................................................................ 52 

City of Chicago v. Envtl. Def. Fund, 

511 U.S. 328 (1994) ............................................................................................................. 19 

Clapper v. Amnesty Int'l USA, 

133 S. Ct. 1138 (2013) .................................................................................................. 10, 11 

Clinton v. Goldsmith, 

526 U.S. 529 (1999) ............................................................................................................. 27 

Colonial Times, Inc. v. Gasch, 

509 F.2d 517 (D.C. 1975) ...................................................................................... 30, 31, 32 

Crete Carrier Corp. v. EPA, 

363 F.3d 490 (D.C. Cir. 2004) ............................................................................................ 16 

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*Defenders of Wildlife v. Perciasepe, 

714 F.3d 1317 (D.C. Cir. 2013)................................................................................... 12, 17 

Envtl. Def. Fund v. EPA, 

82 F.3d 451 (D.C. Cir. 1996) .............................................................................................. 51 

Ethyl Corp. v. EPA, 

306 F.3d 1144 (D.C. Cir. 2002)................................................................................... 13, 14 

Ex parte Wren, 

63 Miss. 512 (Miss. 1886) ................................................................................................... 48 

Five Flags Pipe Line Co. v. Dep't of Transp., 

854 F.2d 1438 (D.C. Cir. 1988)................................................................................... 47, 50 

Gen. Elec. Co. v. Jackson, 

610 F.3d 110 (D.C. Cir. 2010) ............................................................................................ 17 

Harrison v. PPG Indus., Inc., 

446 U.S. 578 (1980) ............................................................................................................. 24 

Holistic Candlers & Consumers Ass'n v. Food & Drug Admin., 

664 F.3d 940 (D.C. Cir. 2012) ............................................................................................ 26 

I.C.C. v. U.S. ex rel. Campbell, 

289 U.S. 385 (1933) ............................................................................................................. 30 

In re Bluewater Network, 

234 F.3d 1305 (D.C. Cir. 2000).......................................................................................... 34 

In re Tennant, 

359 F.3d 523 (D.C. Cir. 2004) ..................................................................................... 17, 27 

In re United States, 

925 F.2d 490, 1991 WL 17225 (D.C. Cir. Feb. 11, 1991) .............................................. 34 

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Kerr v. U. S. Dist. Court for N. Dist. of Cal.,

426 U.S. 394 (1976) ............................................................................................................. 34 

Kokkonen v. Guardian Life Ins. Co., 

511 U.S. 375 (1994) ............................................................................................................. 17 

La. Envt'l Action Network v. Browner, 

87 F.3d 1379 (D.C. Cir. 1996) ............................................................................................ 13 

Leedom v. Kyne, 

358 U.S. 184 (1958) ............................................................................................................. 33 

Lexmark Int'l, Inc. v. Static Control Components, Inc., 

134 S. Ct. 1377 (2014) ......................................................................................................... 13 

Lodge 1858, Am. Fed'n of Gov't Emp. v. Webb, 

580 F.2d 496 (D.C. Cir. 1978) ............................................................................................ 48 

Loving v. I.R.S., 

742 F.3d 1013 (D.C. Cir. 2014).......................................................................................... 41 

*Lujan v. Defenders of Wildlife, 

504 U.S. 555 (1992) ................................................................................................ 11, 14, 16

McCulloch v. Sociedad Nacional, 

372 U.S. 10 (1963) ................................................................................................................ 32 

Meredith v. Fed. Mine Safety & Health Review Comm'n, 

177 F.3d 1042 (D.C. Cir. 1999).......................................................................................... 33 

Michigan v. EPA, 

135 S. Ct. 702 (Nov. 25, 2014) (No. 14-46) ....................................................................... 7 

Monroe Energy, LLC v. EPA, 

750 F.3d 909 (D.C. Cir. 2014) ..................................................................................... 13, 14 

Motor & Equip Mfrs. Ass'n v. Nichols, 

142 F.3d 449 (D.C. Cir. 1998) ............................................................................................ 14 

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Nat'l Ass'n of Home Builders v. EPA, 

667 F.3d 6 (D.C. Cir. 2011) ................................................................................................ 12

Nat'l Automatic Laundry & Cleaning Council v. Shultz, 

443 F.2d 689 (D.C. Cir. 1971) ............................................................................................ 21 

Nat'l Envtl. Dev. Ass'n's Clean Air Project v. EPA, 

752 F.3d 999 (D.C. Cir. 2014) ............................................................................................ 13 

NLRB v. Noel Canning, 

134 S.Ct. 2550 (2014) .......................................................................................................... 48 

Okla. Dep't of Envtl. Quality v. EPA ("ODEQ"), 

740 F.3d 185 (D.C. Cir. 2014) ..................................................................................... 16, 17 

Public Util. Comm'r of Or. v. Bonneville Power Admin., 

767 F.2d 622 (9th Cir. 1985) ....................................................................................... 29, 31 

Roche v. Evaporated Milk Ass'n, 

319 U.S. 21 (1943) ................................................................................................................ 30 

Rush Prudential HMO, Inc. v. Moran, 

536 U.S. 355 (2002) ............................................................................................................. 37 

Sackett v. EPA, 

132 S. Ct. 1367 (2012) ......................................................................................................... 25 

Schlagenhauf v. Holder, 

379 U.S. 104 (1964) ...................................................................................................... 30, 31 

*Scialabba v. Cuellar de Osorio, 

134 S. Ct. 2191 (2014) ............................................................................................ 51, 52, 53 

*Sierra Club v. Thomas, 

828 F.2d 783 (D.C. Cir. 1987) ............................................................................... 30, 31, 32 

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S. Coast Air Quality Mgmt. Dist. v. EPA, 

472 F.3d 882 (D.C. Cir. 2006) ............................................................................................ 19 

Steel Co. v. Citizens for a Better Env't, 

523 U.S. 83 (1998) ................................................................................................................ 17 

Stephan v. United States, 

319 U.S. 423 (1943) ............................................................................................................. 47 

*Telecomms. Research & Action Ctr. v. FCC ("TRAC"), 

 750 F.2d 70 (D.C. Cir. 1984) ............................................................. 28, 29, 30, 31, 32, 40 

United States v. Vogel Fertilizer Co., 

455 U.S. 16 (1982) ................................................................................................................ 42 

United States v. Welden, 

377 U.S. 95 (1964) ................................................................................................................ 48 

UNUM Life Ins. Co. of Am. v. Ward, 

526 U.S. 358 (1999) ............................................................................................................. 37 

Util. Air Regulatory Grp. v. EPA, 

320 F.3d 272 (D.C. Cir. 2003) ............................................................................................ 26 

Util. Air Regulatory Grp. v. EPA ("UARG"), 

 134 S. Ct. 2427 (2014) .................................................................................................. 38, 41 

Wash. Hosp. Ctr. v. Bowen, 

795 F.2d 139 (D.C. Cir. 1986) ............................................................................................ 49 

*White Stallion Energy Ctr., LLC v. EPA, 

748 F.3d 1222 (D.C. Cir. 2014), cert. granted, 135 S. Ct. 702 (Nov. 25, 2014) .. 4, 5, 7 

Whitman v. Am. Trucking Ass'ns, 

531 U.S. 457 (2001) ................................................................................................ 20, 25, 52

Young v. Cmty. Nutrition, Inst., 

476 U.S. 974 (1986) ............................................................................................................. 38 

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STATUTES 

1 U.S.C. § 112 ............................................................................................................................. 6 

1 U.S.C. § 204(a) ........................................................................................................................ 6 

15 U.S.C. § 2081(b)(1) ............................................................................................................. 48 

42 U.S.C. § 1395l(a)(1)(K) ...................................................................................................... 48 

42 U.S.C. § 7401(b) ................................................................................................................... 5 

42 U.S.C. § 7401(b)(1) ............................................................................................................. 42 

42 U.S.C. §§ 7408-7410 ............................................................................................................ 3 

42 U.S.C. § 7408(a)(1) ............................................................................................................... 3 

42 U.S.C. § 7409(a)-(b) ............................................................................................................. 3 

42 U.S.C. § 7410(c)(1)(A) ....................................................................................................... 20 

*42 U.S.C. § 7411 ...................................................................................................................... 5 

42 U.S.C. § 7411(a)(1) ............................................................................................................. 44 

42 U.S.C. § 7411(b)(1)(A) ......................................................................................................... 5 

*42 U.S.C. § 7411(d) .................................................................... 2, 35, 38, 39, 40, 45, 46, 47 

*42 U.S.C. § 7411(d)(1) ............................................................................................ 5, 6, 36, 37 

42 U.S.C. § 7411(d)(1)(A) ......................................................................................................... 6 

42 U.S.C. § 7411(d)(2) ............................................................................................................... 5 

*42 U.S.C. § 7412 ............................................................................................................... 3, 45 

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42 U.S.C. § 7412(a), (b)(1) & (2), (d)(1) .................................................................................. 6 

42 U.S.C. § 7412(b)(2) ............................................................................................................... 4 

42 U.S.C. § 7412(c)(1) & (2) ..................................................................................................... 4 

42 U.S.C. § 7412(d) ................................................................................................................. 44 

42 U.S.C. § 7412(d)(7) ............................................................................................................. 45 

42 U.S.C. § 7412(n)(1)(A) .................................................................................................... 4, 7 

42 U.S.C. § 7416 ...................................................................................................................... 44 

42 U.S.C. § 7604(a) .................................................................................................................. 30 

42 U.S.C. § 7607(b)(1) ................................................................16, 17, 18, 19, 22, 28, 29, 33 

42 U.S.C. § 7607(d) ................................................................................................................. 28 

 

42 U.S.C. § 7607(d)(1)(C) ....................................................................................................... 18 

42 U.S.C. § 7607(d)(3) ............................................................................................................. 18 

42 U.S.C. § 7607(d)(3)(C) ....................................................................................................... 21 

42 U.S.C. § 7607(d)(6)(A)(ii), (B) .......................................................................................... 19 

42 U.S.C. § 7607(d)(7)(B) ....................................................................................................... 19 

42 U.S.C. § 7607(e) .................................................................................................................. 17 

*Pub. L. No. 101-549, § 108(g), 104 Stat. 2399, 2467 (1990) ............................................. 6 

*Pub. L. No. 101-549, § 302(a), 104 Stat. at 2574 ....................................................... 6, 46 

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FEDERAL REGISTERS 

40 Fed. Reg. 53,340 (Nov. 17, 1975) ...................................................................................... 3 

65 Fed. Reg. 79,825 (Dec. 20, 2000) ....................................................................................... 7 

70 Fed. Reg. 15,994 (Mar. 29, 2005) ..................................................................................... 39 

77 Fed. Reg. 9304 (Feb. 16, 2012) .......................................................................................... 7 

77 Fed. Reg. 22,392 (Apr. 13, 2012) ..................................................................................... 15 

79 Fed. Reg. 1352 (Jan. 8, 2014) ............................................................................................ 24 

79 Fed. Reg. 1430 (Jan. 8, 2014) ....................................................................................... 8, 24 

79 Fed. Reg. 34,830 (June 18, 2014) ........................................................... 2, 7, 8, 13, 15, 24 

79 Fed. Reg. 34,960 (June 18, 2014) ....................................................................................... 8 

LEGISLATIVE HISTORY 

H.R. Rep. No. 101-490, 315 (1990), reprinted in 2 Legislative History of 

 the Clean Air Act Amendment's of 1998 at 3339 (Comm. Print 1998) ...................... 4 

H.R. Rep. No. 101-952, at 336, 340, 345 & 347, reprinted in 1 Legis. Hist. 

at 1786, 1790, 1795 & 1797 ................................................................................................. 42 

S. 1631, 101st Cong., § 108 (Oct. 27, 1990), reprinted in 1 Legis. Hist. at 885 ............ 50 

1 Legis. Hist. at 46 n.1 ............................................................................................................ 43 

1 Legis. Hist. at 880 ............................................................................................................... 50 

S. Rep. No. 101-228, at 133, reprinted in 5 Legis. Hist. at 8473 ...................................... 42 

S. Rep. No. 101-228, at 14, reprinted in 5 Legis. Hist. at 8354 ........................................ 42 

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MISCELLANEOUS 

ANTONIN SCALIA & BRYAN A. GARNER, READING LAW: THE INTERPRETATION

OF LEGAL TEXTS 189 (2012) .................................................................................................. 53 

 

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GLOSSARY 

Act The Clean Air Act

CO2 Carbon dioxide 

EPA United States Environmental Protection Agency 

NAAQS National Ambient Air Quality Standards 

MATS Mercury and Air Toxics Standards 

OLRC Office of the Law Revision Counsel of the United States House of 

Representatives 

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Jurisdiction and Standing 

 As explained in Argument sections I through III, Petitioner lacks standing and 

the Court lacks jurisdiction over this challenge to an ongoing EPA rulemaking. 

Issues Presented 

1. Whether Petitioner has standing to seek relief from a proposed rule that – if 

finalized – would not regulate Petitioner; 

2. Whether Petitioner can challenge a proposed rule despite the requirement that 

agency action be final prior to judicial review; 

3. Whether this Court has jurisdiction to issue a writ of prohibition to stop an 

ongoing rulemaking; and 

4. Whether, even if it has jurisdiction, the Court should take the truly 

extraordinary step of prohibiting an ongoing rulemaking based on Petitioner’s 

interpretation of an ambiguous statutory provision. 

Statutes and Regulations 

All relevant statutes and regulations are set forth in Respondents’ Addendum. 

 

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Statement of the Case 

 Greenhouse gas emissions continue to pose a real threat to Americans by 

causing “damaging and long-lasting changes in our climate that can have a range of 

severe negative effects on human health and the environment.” 79 Fed. Reg. 34,830, 

34,833 (June 18, 2014) (“Proposed Rule”). Fossil-fuel fired power plants are, “by far, 

the largest emitters” of greenhouse gases in the United States. Id. 

At the President’s direction, EPA has proposed regulatory measures to address 

U.S. greenhouse gas emissions. One key measure is its proposal that states submit 

plans for reducing existing power plants’ carbon dioxide (“CO2”) emissions under 

42 U.S.C. § 7411(d). 79 Fed. Reg. at 34,830-33. Murray Energy Corp. (“Murray”), a 

coal producer, objects to this proposal, and petitions the Court to “halt” the ongoing 

rulemaking, either by issuing a writ of prohibition or “set[ting] aside EPA’s legal 

conclusion.” Pet.Br. 1. It so requests even though Murray is not an entity that would 

be regulated under the Proposed Rule; the rule is not final; and the issue Murray raises 

concerns the interpretation of a patently-ambiguous statutory provision. 

Murray argues that this is an “extraordinary case.” Pet.Br. 1. Murray is right, 

but not for the reasons it believes. Rather, it is what Murray asks this Court to do – 

halt an ongoing rulemaking before EPA takes final action – that is extraordinary. 

There is no legal basis for such relief, and EPA should not be prevented from 

completing a rulemaking intended to address the serious threat of climate change. 

 

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Background 

I. THE CLEAN AIR ACT 

The Clean Air Act (“Act”) was enacted in 1970 to “[r]espond[] to the growing 

perception of air pollution as a serious national problem.” Ala. Power Co. v. Costle, 

636 F.2d 323, 346 (D.C. Cir. 1979). It set out a comprehensive scheme for air 

pollution control, “address[ing] three general categories of pollutants emitted from 

stationary sources”: (1) criteria pollutants; (2) hazardous pollutants; and (3) 

“pollutants that are (or may be) harmful to public health or welfare but are not” 

hazardous or criteria pollutants “or cannot be controlled under” those programs. 

40 Fed. Reg. 53,340 (Nov. 17, 1975). 

Six relatively ubiquitous “criteria” pollutants are regulated under 42 U.S.C. 

§§ 7408-7410. These are pollutants that “cause or contribute to air pollution which 

may reasonably be anticipated to endanger public health or welfare”; “the presence of 

which in the ambient air results from numerous and diverse mobile or stationary 

sources”; and for which the Administrator has issued, or plans to issue, “air quality 

criteria.” 42 U.S.C. § 7408(a)(1). Once EPA issues air quality criteria for such 

pollutants, the Administrator must propose primary National Ambient Air Quality 

Standards (NAAQS) for them at levels “requisite to protect the public health” with an 

“adequate margin of safety.” 42 U.S.C. § 7409(a)-(b). 

“Hazardous air pollutants” are regulated under 42 U.S.C. § 7412, and include 

pollutants so designated by Congress in 1990 and other pollutants that EPA finds: 

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may present, through inhalation or other routes of exposure, a threat of adverse 

human health effects (including, but not limited to, substances which are 

known to be, or may reasonably be anticipated to be, carcinogenic, mutagenic, 

teratogenic, neurotoxic, which cause reproductive dysfunction, or which are 

acutely or chronically toxic) or adverse environmental effects whether through 

ambient concentrations, bioaccumulation, deposition, or otherwise . . . . 

42 U.S.C. § 7412(b)(2). Hazardous air pollutants tend to be less widespread than 

criteria pollutants but are considered more potent and are associated with more 

serious health impacts, such as cancer, neurological disorders, reproductive 

dysfunctions, and death, even in small quantities. H.R. Rep. 101-490, 315 (1990), 

reprinted in 2 Legislative History of the Clean Air Act Amendments of 1998, at 3339 

(Comm. Print 1998). EPA must publish and revise a list of “major” and “area” 

source categories of hazardous pollutants, and then has a nondiscretionary obligation 

to establish achievable emission standards for all listed hazardous air pollutants 

emitted by sources within a listed category. 42 U.S.C. § 7412(c)(1) & (2). 

 Congress prescribed a unique listing requirement for power plants. EPA must 

first study the hazards posed by power plant emissions after imposition of the other 

requirements of the Act, and then determine if regulation is “appropriate and 

necessary” after considering the results of the study. See 42 U.S.C. § 7412(n)(1)(A). 

If EPA so determines, regulation of hazardous emissions from power plants proceeds 

under section 7412(d) just as with any other type of listed source category. See White 

Stallion Energy Ctr. LLC v. EPA, 748 F.3d 1222, 1243-44 (D.C. Cir. 2014), cert. 

granted, 135 S. Ct. 702 (Nov. 25, 2014). 

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The final major category of pollutants covered by the Act – harmful pollutants 

not regulated under the NAAQS or hazardous pollutant programs – are subject to 

regulation under 42 U.S.C. § 7411. Section 7411 has two main components. First, 

section 7411(b) requires EPA to promulgate federal “standards of performance” 

addressing new stationary sources that cause or contribute significantly to “air 

pollution which may reasonably be anticipated to endanger public health or welfare.” 

42 U.S.C. § 7411(b)(1)(A). Once EPA has set new source standards addressing 

emissions of a particular pollutant, section 7411(d) authorizes EPA to promulgate 

regulations requiring states to establish standards of performance for existing stationary 

sources of the same pollutant. 42 U.S.C. § 7411(d)(1). If a state fails to submit a 

satisfactory plan, EPA is authorized to prescribe a plan for the state, and also to 

enforce plans where states fail to do so. Id. § 7411(d)(2). 

Together, the NAAQS, hazardous pollutant, and performance standard 

programs constitute a comprehensive scheme designed to achieve Congress’ goal of 

“protect[ing] and enhance[ing] the quality of the Nation’s air resources so as to 

promote the public health and welfare.” 42 U.S.C. § 7401(b). 

II. THE 1990 AMENDMENTS 

The Act was amended extensively in 1990. Among other things, Congress 

sought to accelerate EPA’s regulation of hazardous pollutants. White Stallion, 748 

F.3d at 1230. To that end, Congress established a lengthy list of hazardous air 

pollutants; set criteria for listing “source categories” of such pollutants; and required 

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EPA to establish standards for each source category hazardous pollutant emissions. 

42 U.S.C. § 7412(a), (b)(1) & (2), & (d)(1). 

 In the course of overhauling the regulation of hazardous pollutants under 

section 7412, Congress also edited section 7411(d), which cross-referenced a 

provision of old section 7412 that was to be eliminated. Specifically, the pre-1990 

version of section 7411(d) obligated EPA to require standards of performance: 

for any existing source for any air pollutant (i) for which air quality criteria have 

not been issued or which is not included on a list published under section 

[7408(a)] or [7412(b)(1)(A)] . . . . 

42 U.S.C. § 7411(d)(1)(A) (1988). To address the obsolete cross-reference to section 

7412(b)(1)(A), Congress passed two amendments – one from the House and one 

from the Senate – that were never reconciled. The House amendment replaced the 

cross-reference with the phrase “emitted from a source category which is regulated 

under section [7412].” Pub. L. No. 101-549, § 108(g), 104 Stat. 2399, 2467 (1990). 

The Senate amendment replaced the same text with a cross-reference to section 7412. 

Pub. L. No. 101-549, § 302(a), 104 Stat. at 2574. Both amendments were enacted into 

law in the Statutes at Large, which supersedes the U.S. Code if there is a conflict.1

 

 

                                                            

1 See 1 U.S.C. §§ 112 & 204(a).

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III. THE MATS RULE 

In 2000, EPA determined under 42 U.S.C. § 7412(n)(1)(A) “that regulation of 

[hazardous pollutant] emissions from coal- and oil-fired [power plants] under section 

112 of the [Act] is appropriate and necessary,” and added those power plants to the 

section 7412(c) list of source categories to be regulated. 65 Fed. Reg. 79,825, 79,826-

30 (Dec. 20, 2000). EPA determined that it was not “appropriate and necessary” to 

regulate natural-gas fired power plants. Id. at 79,831. In 2012, EPA promulgated a 

final rule establishing hazardous pollutant emission standards for coal- and oil-fired 

plants. 77 Fed. Reg. 9304 (Feb. 16, 2012) (the “MATS Rule”). The MATS Rule does 

not regulate CO2, which is not a listed hazardous air pollutant, and does not regulate 

natural gas-fired plants, which are not a listed source category. Unlike the MATS 

Rule, the Proposed Rule addresses CO2, and covers natural gas-fired plants as well as 

coal- and oil-fired plants. Compare 77 Fed. Reg. 9304 with 79 Fed. Reg. at 34,855. 

This Court upheld the MATS Rule. White Stallion, 748 F.3d at 1222. The 

Supreme Court granted certiorari. Michigan v. EPA, 135 S. Ct. 702 (Nov. 25, 2014). 

Murray has filed an amicus brief urging the Court to vacate the MATS Rule, arguing 

that hazardous pollution from power plants instead should be regulated under section 

7411 because: “Section [74]11 offers the flexibility necessary for regulating a widely 

diverse source category like power plants without imposing unjustified costs” and 

“the ability to address all of the same public health and environmental concerns.” 

Am. Curiae Br. of Murray Energy Corp. (No. 14-46) at 22, 27. 

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IV. THE PROPOSED RULE 

In 2013, the President announced his “Climate Action Plan,” and directed EPA 

to work expeditiously to promulgate CO2 emission standards for fossil fuel-fired 

power plants. EPA has since proposed (1) performance standards for new power 

plants under section 7411(b), 79 Fed. Reg. 1430 (Jan. 8, 2014); (2) standards for 

modified and reconstructed power plants under section 7411(b), 79 Fed. Reg. 34,960, 

(June 18, 2014); and (3) and regulations under which states would submit plans to 

address CO2 emissions from existing power plants under section 7411(d), 79 Fed. 

Reg. at 34,830-34 (“Proposed Rule”). Petitioner challenges the last of these proposals. 

The Proposed Rule has two main elements: (1) state-specific emission ratebased CO2 goals, to be achieved collectively by all of a state’s regulated coal- and 

natural gas-fired sources; and (2) guidelines for the development, submission, and 

implementation of state plans. 79 Fed. Reg. at 34,833. While the proposal lays out 

individualized CO2 goals for each state, it does not prescribe how a state should meet 

its goal. Id. Rather, each state would have the flexibility to design a program that 

reflects its circumstances and energy and environmental policy objectives. Id. 

EPA solicited comments on all aspects of the Proposed Rule. 79 Fed. Reg. at 

34,830. Over two million comments were submitted before the comment period 

closed on December 1, 2014. EPA is reviewing those comments, and plans to take 

final action this summer. 

 

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Summary of Argument 

Neither Murray nor Intervenors in support of Petitioner can establish that they 

have Article III standing to seek review of the Proposed Rule. Speculation regarding 

the consequences of one possible future outcome of an ongoing notice-and-comment 

rulemaking proceeding is not enough to demonstrate the concrete, particularized, and 

actual or imminent injury required for Article III standing. The Court has dismissed 

such challenges on standing grounds in previous cases and should do likewise here. 

The Court also lacks jurisdiction because the Proposed Rule is obviously not a 

“final” action. The Act prescribes the process by which EPA may establish standards 

or requirements under section 7411(d), and EPA indisputably has not completed that 

process. EPA has only published a proposal for notice and comment; it has not yet 

considered and responded to those comments as the Act requires, nor “promulgated” 

a regulation. Thus, it has taken no action that has binding legal effect or determines 

any entity’s rights or obligations. Moreover, because EPA is in the midst of a noticeand-comment rulemaking process in which it will evaluate and respond to comments 

on the very legal question Murray would have this Court prematurely decide, this 

petition is not “fit” for a judicial decision and must be dismissed as unripe.

If this Court were to reach the merits despite the non-final nature of the 

challenged rulemaking, it should decline to issue a writ of prohibition or otherwise 

“halt” the rulemaking as Murray asks. Murray argues that section 7411(d) of the Act 

bars EPA from addressing power plants’ emissions of carbon dioxide – or any other 

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pollutant – under that provision because power plants’ emissions of certain hazardous

pollutants, like mercury, have been regulated under section 7412. But section 7411(d) 

is far from unambiguous on this point. Given the convoluted, ungrammatical and 

ambiguous nature of the text as set forth in the U.S. Code, it could reasonably be 

interpreted as authorizing EPA to address non-hazardous emissions from power plants. 

Moreover, in interpreting section 7411(d), EPA could also appropriately consider the 

existence of two separate amendments to the relevant portion of that text in the 

Statutes at Large, one of which would plainly authorize the regulation of nonhazardous pollutants under that provision. Thus, there are a number of reasons why 

EPA might reasonably conclude it may address power plants’ carbon dioxide 

emissions under section 7411(d), and the Court should not intervene in the 

rulemaking before EPA has the opportunity to reach a final conclusion and articulate 

its reasoning, based on its own ongoing analysis as well as the comments received. 

Argument 

I. MURRAY LACKS ARTICLE III STANDING. 

A. Murray cannot show “actual or imminent” injury from a proposal. 

“To establish Article III standing, an injury must be concrete, particularized, 

and actual or imminent; fairly traceable to the challenged action; and redressable by a 

favorable ruling.” Clapper v. Amnesty Int’l USA, 133 S. Ct. 1138, 1147 (2013) 

(internal quotation and citations omitted). A petitioner that asserts standing based on 

the expectation of future injury “confronts a significantly more rigorous burden to 

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establish standing.” Chamber of Commerce of U.S. v. EPA, 642 F.3d 192, 200 (D.C. 

Cir. 2011) (internal quotation omitted); accord Clapper, 133 S. Ct. at 1147 

(“allegations of possible future injury are not sufficient”) (internal quotation omitted). 

Additionally, “when the [petitioner] is not himself the object of the government 

action or inaction he challenges, standing is not precluded, but it is ordinarily 

substantially more difficult to establish.” Lujan v. Defenders of Wildlife, 504 U.S. 

555, 562 (1992) (internal quotation omitted). In such a case, standing “depends on 

the unfettered choices [of] independent actors . . . whose exercise of broad and 

legitimate discretion the courts cannot presume either to control or to predict,” and it 

thus becomes the petitioner’s burden “to adduce facts showing that those choices 

have been or will be made in such manner as to produce causation and redressability 

of injury.” Id. (internal quotations omitted); Chamber of Commerce, 642 F.3d at 201. 

Murray cannot possibly meet this burden here, because the action it challenges 

is only a “proposed” rule. This Court long has held that an administrative agency’s 

“initiation of a rulemaking” through a notice and comment process does not impair the 

rights of interested parties so as to give rise to Article III standing, even if such parties 

would be directly regulated by a final rule. Alternative Research & Dev. Found. v. 

Veneman, 262 F.3d. 406, 411 (D.C. Cir. 2001) (emphasis added). In Alternative 

Research, the Court held that an association of biomedical researchers lacked standing 

to challenge a settlement establishing a schedule for rulemaking to consider whether 

to regulate the treatment of birds, mice and rats used in such research. Id. As the 

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Court observed, parties potentially affected by such a rulemaking have the 

opportunity, first, to participate in the rulemaking – by making known any objections 

they may have and, if desired, attempting to persuade the agency not to finalize the 

proposal – and then to seek judicial review if the proposed rule is finalized in a 

manner that genuinely harms their interests. See id. 

The Court recently reaffirmed this conclusion in Defenders of Wildlife v. 

Perciasepe, 714 F.3d 1317 (D.C. Cir. 2013), where it held that an association of energy 

companies lacked standing to intervene for the purpose of challenging a consent 

decree that set a rulemaking schedule to revise regulations governing wastewater 

discharges from power plants. See id. at 1323-26. There, as in Alternative Research, 

the claimants faced the potential of direct regulation by the rulemaking at issue, unlike 

Murray; yet the Court again made clear that merely commencing a notice-andcomment rulemaking that may result in a “new, stricter rule” does not create standing, 

because Article III “requires more than the possibility of potentially adverse 

regulation.” Perciasepe, 714 F.3d at 1325 (emphasis added); see also Nat’l Ass’n of 

Home Builders v. EPA, 667 F.3d 6, 13 (D.C. Cir. 2011) (no standing to challenge 

Clean Water Act jurisdictional determination). 

Because Murray’s claim is based on predicting the substantive content of one 

possible final outcome of the rulemaking, it is too speculative to support standing. 

Murray relies on the predictive modeling EPA developed in connection with the 

Proposed Rule, which projects that if the proposal is promulgated as a final rule, 

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domestic power plants will use 25 to 27 percent less coal to generate electricity by 

2020 (as compared with a hypothetical base case in which no final rule is ever 

promulgated), and 30 to 32 percent less coal by 2030. 79 Fed. Reg. at 34,934; Pet.Br. 

13-14; Declaration of Robert E. Murray (“Murray Decl.”) ¶¶ 15-16 (attached to 

Pet.Br.). This model necessarily assumes, however, not only that EPA will 

promulgate a final rule, but that the content of that final rule will not significantly 

change from the proposal. At this stage, when EPA is still evaluating and has not yet 

responded to the millions of comments it received, any predictions about what statespecific guidelines EPA might adopt in a final rule – let alone what requirements each 

state, in turn, independently may impose on power plants pursuant to such guidelines 

– are pure conjecture. See La. Envtl. Action Network v. Browner, 87 F.3d 1379, 1383 

(D.C. Cir. 1996) (no standing based on “multi-tiered speculation” that states with 

delegated authority would adopt certain programs and that EPA would approve). 

The Article III standing cases Murray relies on (Pet.Br. 12-14) involved 

challenges to final rules promulgated after notice and comment – not proposed rules 

published for the purpose of soliciting public comments2

 – or to agency directives that 

were not subject to notice-and-comment, e.g., National Envt’l Dev. Ass’n’s Clean Air 

Project (“NEDA-CAP”) v. EPA, 752 F.3d 999, 1005-06 (D.C. Cir. 2014) (EPA 

                                                            

2 See, e.g., Ethyl Corp. v. EPA, 306 F.3d 1144, 1147-48 (D.C. Cir. 2002); Monroe 

Energy, LLC v. EPA, 750 F.3d 909, 914-15 (D.C. Cir. 2014).

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directive established an immediately-effective new policy for permitting decisions).3 

Murray cites no authority holding that speculation about one possible outcome of an 

ongoing notice-and-comment rulemaking process can give rise to Article III standing. 

B. Murray cannot show that the impacts it cites are traceable to the 

Proposed Rule and would be averted if the Court grants relief. 

Even if EPA had promulgated a final section 7411(d) rule for power plants in 

January 2014, Murray’s affidavit would still fail to establish Article III standing. As a 

coal producer, Murray would not be subject to any requirements if such a rule were 

promulgated. It therefore bears a heightened burden to establish that the downstream 

economic effects it complains of are genuinely traceable to EPA’s action rather than 

to third parties’ independent choices, and are redressable here. Lujan, 504 U.S. at 562. 

Specifically, Murray must demonstrate a “substantial probability” that these economic 

effects would not have occurred but for EPA’s January 2014 publication, and that, “if 

the court affords the relief requested, the [alleged] injury will be removed.” Ass’n of 

Battery Recyclers, Inc. v. EPA, 716 F.3d 667, 671 (D.C. Cir. 2013) (internal quotation 

omitted).4 This Murray has not done. 

                                                            

3 Other cases are inapposite because they address “prudential standing” or the “zone 

of interests” test, not Article III standing. E.g., Lexmark Int’l, Inc. v. Static Control 

Components, Inc., 134 S. Ct. 1377, 1386 (2014); Pet.Br. 14 n.3.

4 The claimants in most of the Article III cases Murray cites either were directly 

regulated by the rules in question or asserted injuries that Murray does not. See, e.g., 

Monroe, 750 F.3d at 915; Ethyl Corp., 306 F.3d at 1147-48 (asserting “informational” 

injuries). And in Motor & Equip Mfrs. Ass’n v. Nichols, 142 F.3d 449, 457 (D.C. Cir. 

1998), EPA did not contest that the rule caused the third-party conduct at issue. 

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For example, Murray’s standing affidavit states that several of its power plant 

customers anticipate converting coal-fired units to other fuel sources in the 

foreseeable future. These plans often are not characterized as a response specifically 

to the Proposed Rule, however, but rather to the cumulative regulatory burden under 

other, final regulations that EPA previously promulgated, such as the MATS Rule. See 

Murray Decl. ¶¶ 20, 25. Elsewhere, Murray simply states in conclusory fashion that 

certain customers’ power plants have shut down or are slated for closure, without 

providing any reasons for these customers’ decisions. Id. ¶ 24. Another power plant 

reportedly faces “uncertainty” about whether it will continue operating beyond 2020, 

but Murray does not identify that plant as a customer. Id. ¶ 22. 

Murray also relies on reports identifying regional and national trends towards 

reduced coal production, and the industry-wide conversion of many coal-fired power 

plants to natural gas or other fuel sources. But these patterns of industry behavior 

emerged years before EPA published the Proposed Rule. See Murray Decl. ¶¶ 17-195

; 

see also 77 Fed. Reg. 22,392, 22,399 (April 13, 2012) (preamble to April 2012 proposal 

under section 7411(b)); 79 Fed. Reg. at 34,863. As discussed in EPA’s preamble 

statements, there are numerous economic factors independent of EPA’s air 

regulations that may explain these long-term trends towards increased use of natural 

                                                            

5 Murray also cites one report predicting that the Proposed Rule will result in reduced 

coal generation capacity in Texas. Id. ¶ 21. Murray has no coal production 

operations in Texas, nor supplies any power plant customers there. Id. ¶¶ 9, 13. 

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gas and decreased use of coal in power generation, and Murray’s standing affidavit 

makes no attempt to address such factors. Nor has Murray shown a “substantial 

likelihood” that power plants will reverse these trends if the Court sets aside the 

Proposed Rule. See Crete Carrier Corp. v. EPA, 363 F.3d 490, 494 (D.C. Cir. 2004) 

(trucking companies lacked standing to challenge rule regulating engine manufacturers 

because “‘it is entirely conjectural whether the nonagency activity’ (that is, the engine 

manufacturers’ production decisions) affecting the prices of tractors . . . ‘will be 

altered or affected’ should the EPA rescind [it]”) (quoting Lujan, 504 U.S. at 571). In 

short, Murray’s affidavit would fail even if EPA had completed its rulemaking process. 

C. The Intervenors also lack Article III standing. 

If the Court finds that Murray lacks standing, then the Intervenors in support 

of Murray also are subject to Article III standing requirements. See Arizonans for 

Official English v. Arizona, 520 U.S. 43, 65 (1997). None of the Intervenors can 

stand in Murray’s shoes, however, because they did not file within sixty days after 

Federal Register publication of the Proposed Rule. 42 U.S.C. § 7607(b)(1); Okla. 

Dep’t of Envtl. Quality (“ODEQ”) v. EPA, 740 F.3d 185, 191 (D.C. Cir. 2014) (time 

limit is jurisdictional); see Doc Nos. 1520421 & 1523376 (motions to intervene in 

Case No. 14-1112 filed by National Federation of Independent Businesses and Utility 

Air Regulatory Group, respectively, on Nov. 3 & Nov. 19, 2014); 1523876 (joint 

notice of intention to intervene filed by State Intervenors on Nov. 21, 2014); 1529468 

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(motion to intervene filed by Peabody Energy Corp. on Dec. 29, 2014).6 Even if not 

untimely, the Intervenors’ standing assertions would fail for the reasons discussed 

above or in EPA’s brief in the related petition brought by states. See Brief for EPA in 

Case No. 14-1146 at 11-22 (Doc No. 1533964). 

II. THE COURT LACKS JURISDICTION OVER MURRAY’S DIRECT 

CHALLENGE TO THE PROPOSAL FOR ADDITIONAL REASONS. 

Murray bears the burden of demonstrating that the Court has subject-matter 

jurisdiction. Kokkonen v. Guardian Life Ins. Co., 511 U.S. 375, 377 (1994). Its 

invocation of the All Writs Act does not change that requirement. See In re Tennant, 

359 F.3d 523, 527 (D.C. Cir. 2004) (quoting Steel Co. v. Citizens for a Better Env’t, 

523 U.S. 83, 94-95 (1998)); infra Argument III. Murray cannot meet that burden here, 

because a “proposed” rule is neither “final action” nor ripe for judicial review. 

A. Under the plain text of the Act, neither the Proposed Rule nor the 

supporting legal memorandum is a “final action.” 

Section 307(b)(1) of the Act, 42 U.S.C. § 7607(b)(1), governs judicial 

review of EPA’s nationally applicable air regulations and is an exclusive remedy. Id. 

§ 7607(e); ODEQ, 740 F.3d at 191. It lists specific, nationally applicable actions that 

are subject to judicial review – including action “promulgating . . . any standard of 

                                                            

6

  Moreover, “investor perceptions of the short-term impacts of the Proposed Rule on 

Peabody’s business” are not a cognizable injury under Article III. Peabody Br. at 8 

(Doc. No. 1529726); see Perciasepe, 714 F.3d at 1323 (consent agreement did not 

cause injury despite claimant’s belief that EPA “likely” would “promulgate a rule 

economically harmful to” energy companies); cf. Gen. Elec. Co. v. Jackson, 610 F.3d 

110, 121-22 (D.C. Cir. 2010).

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performance or requirement under [42 U.S.C. § 7411]” – along with “any other 

nationally applicable regulations promulgated, or final action taken, by the Administrator 

under this chapter.” 42 U.S.C. § 7607(b)(1) (emphasis added). 

Murray relies on a truncated reading of this last phrase to suggest that although 

Congress expressly made only “promulgated” standards or requirements under 

section 7411 reviewable, it also intended to make proposed requirements under this 

section subject to judicial review when it referred to review of “any other . . . final 

action.” Pet.Br. 38. Murray further contends that because the Proposed Rule was 

signed by the Administrator, both the proposal and its supporting legal memorandum 

are “presumptively final.” Pet.Br. 48. Murray errs on both counts. 

With respect to Murray’s first argument, the plain text of the Act’s general 

rulemaking provision, 42 U.S.C. § 7607(d), unambiguously mandates the procedures 

by which EPA first “proposes” and then “promulgates” all notice-and-comment rules 

subject to that provision, which include all such rules under section 7411. See id. 

§ 7607(d)(1)(C). Section 7607(d) makes clear that only a promulgated rule consummates 

the rulemaking process. Specifically, the Act states that “proposed rules” are to be 

made available for public comment in the Federal Register and must include a notice 

specifying the period available for public comment. Id. § 7607(d)(3). “Promulgated 

rules,” in contrast, are only issued after the public comment period and must be 

accompanied, inter alia, by “an explanation of the reasons for any major changes in 

the promulgated rule from the proposed rule,” and “a response to each of the 

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significant comments, criticisms, and new data submitted in written or oral 

presentations during the comment period.” Id. § 7607(d)(6)(A)(ii), (B). 

Because the Act is so precise in referring to “proposed” and to “promulgated” 

rules, giving each term a distinct meaning, the fact that the judicial review provision in 

42 U.S.C. § 7607(b)(1) only refers to “promulgated,” not proposed, rules when 

describing actions that are subject to this Court’s review is dispositive. “It is generally 

presumed that Congress acts intentionally and purposely when it includes particular 

language in one section of a statute but omits it in another.” So. Coast Air Quality 

Mgmt. Dist. v. EPA, 472 F.3d 882, 894 (D.C. Cir. 2006) (internal quotation omitted); 

see, e.g., City of Chicago v. Envtl. Def. Fund, 511 U.S. 328, 337-38 (1994). Had 

Congress intended that proposed rules be subject to immediate judicial review, it 

could readily have made that clear by including “action proposing or promulgating 

[requirements under section 7411 and other listed items]” on the list of specific 

actions subject to review. Congress chose, instead, specifically to authorize review 

only of final action “promulgating” such requirements. 

 The fact that 42 U.S.C. § 7607(d)(7)(B) limits judicial review to “[o]nly” those 

objections “raised with reasonable specificity during the period for public comment 

(including any public hearing)” further supports the conclusion that only 

“promulgated,” not “proposed” rules governed by section 7607(d)’s procedures are 

subject to judicial review. If a claimant could petition for review of a proposed rule 

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without first submitting comments and awaiting EPA’s final action in response to 

those comments, this limitation would make no sense. 

Moreover, when the phrase “other . . . final action taken” is read in conjunction 

with the earlier list of specific “promulgated” actions – rather than reading the latter 

phrase in isolation as Murray does – it becomes clear that “other . . . final action” 

logically refers not to any of the specific “promulgated” regulations already listed as 

reviewable (such as requirements under section 7411), but to other types of final 

actions EPA may take that do not involve notice and comment.7

 Reading this phrase 

to also encompass judicial review of “proposed requirements under section 7411” 

would effectively nullify the Act’s provisions mandating the procedures by which such 

requirements may be made final through “promulgation.” See Whitman v. Am. 

Trucking Ass’ns, 531 U.S. 457, 485 (2001) (Act may not be construed in a manner 

that “nullifies textually applicable provisions”). Congress’ choice not to subject 

proposed rules to judicial review until they are “promulgated” must be given effect. 

That the Act provides for judicial review of promulgated regulations even if 

they are the subject of administrative petitions for reconsideration (Pet.Br. 50) does 

not contradict this plain reading of the statutory text. Whether or not a petition for 

                                                            

7

  One example of a non-notice-and-comment “final” action of which this phrase 

authorizes judicial review is an action under 42 U.S.C. § 7410(c)(1)(A) (“find[ing] that 

a State has failed to make a [state implementation plan] submission . . .”).     

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reconsideration has been filed, the relevant question for purposes of the judicial 

review provision is whether the regulation has been “promulgated” in the manner the 

Act requires. The Proposed Rule here has not. 

Murray’s second contention – that EPA’s Proposed Rule and supporting legal 

memorandum may be “presumed” final because of the Administrator’s signature on 

the preamble, Pet.Br. 48-49 – is not supported by the case Murray cites. In National 

Automatic Laundry and Cleaning Council v. Shultz, 443 F.2d 689 (D.C. Cir. 1971), 

the Court reviewed a Department of Labor advisory letter issued pursuant to the Fair 

Labor Standards Act. Id. at 689. Thus, not only was Schultz decided under a 

different statute than the CAA and prior to the Supreme Court’s clarification of the 

test for determining “finality” in Bennett v. Spear, 520 U.S. 154 (1997), but the Court 

there did not suggest that a “presumption of finality” could apply to a “proposed rule” 

published as part of a notice-and-comment process, as no such proposal was at issue. 

Instead, the Court specifically limited the scope of its holding to “interpretative 

rulings.” Shultz, 443 F.2d at 702. 

However valid a presumption of finality may have been in the narrow set of 

circumstances addressed by Shultz, it makes no sense in the context of the CAA’s 

notice-and-comment rulemaking process. The CAA mandates that every “proposed 

rule” subject to the rulemaking procedures in section 7607(d) be accompanied by a 

“statement of basis and purpose” that includes, inter alia, “the major legal 

interpretations . . . underlying the proposed rule.” 42 U.S.C. § 7607(d)(3)(C). Thus, 

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by setting forth relevant legal interpretations in the preamble to the Proposed Rule 

and supporting legal memorandum (see Pet.Br. 45-47), EPA was merely taking a step 

that the Act requires for any proposed rule governed by section 7607(d). 

Moreover, the Administrator routinely signs proposed rules that are nationwide 

in scope, such as this one, because the Administrator is the only agency official 

authorized to take such administrative action. Thus, were the Court to adopt 

Murray’s “presumption,” every proposed nationwide air rule could potentially be 

considered “final” and immediately reviewable in this Court without waiting for the 

conclusion of the rulemaking process. Were such a precedent established, claimants 

that disagree with EPA’s legal interpretations in any future proposed rule under the 

CAA likely would be forced to sue within sixty days of publication of the proposal in 

order to avoid the risk that their challenge might otherwise be deemed untimely.8

 

In short, Murray’s suggested approach for determining “finality” is wholly at 

odds with the text of the Act’s rulemaking and judicial review provisions and would 

destroy the orderly scheme that Congress established. Dismissing Murray’s petition, 

in contrast, would uphold the “prescribed order of decisionmaking” in which “the 

first decider under the Act is the expert administrative agency, the second, federal 

judges.” Am. Elec. Power Co., Inc. v. Connecticut, 131 S. Ct. 2527, 2539 (2011). 

 

                                                            

8 See 42 U.S.C. § 7607(b)(1).

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B. Murray cannot satisfy either prong of the Bennett finality test. 

1. The Proposed Rule did not consummate the rulemaking process. 

Although it is clear that the Proposed Rule and supporting legal 

memorandum are not final actions for the reasons explained above, the familiar 

finality test articulated in Bennett reinforces this conclusion, as this Court 

held when dismissing premature challenges to EPA’s 2012 proposed rule under 

section 7411(b). Las Brisas Energy Ctr., LLC v. EPA, No. 12-1248 & consolidated 

cases (Order dated Dec. 13, 2012) (Attach. A). 

To be final, an action (1) “must mark the consummation of the agency’s 

decisionmaking process” and “must not be [] merely tentative or interlocutory”; and 

(2) it “must be one by which rights or obligations have been determined, or from 

which legal consequences will flow.” Bennett, 520 U.S. at 177-78. Murray cannot 

demonstrate that the first criterion is met here, because the Proposed Rule clearly 

does not represent “the consummation of [EPA’s] decision-making process.” The 

process by which the Administrator promulgates “standards of performance” and 

other “requirements” under section 7411 is prescribed by 42 U.S.C. § 7607(d) as 

shown above, and EPA indisputably has not completed that process. Therefore, the 

Proposed Rule is an “interlocutory” action. Bennett, 520 U.S. at 178. 

The Proposed Rule is also “tentative,” id., in that EPA has sought comments 

on all aspects of the proposal – including on the legal questions at the heart of 

Murray’s challenge – and EPA may modify its final action in any number of ways in 

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response to those comments. See 79 Fed. Reg. at 34,853/2 (EPA “solicits comment 

on all aspects of its legal interpretations, including the discussion in the Legal Memorandum”) 

(emphasis added); id. at 34,835/2 (EPA seeks “public comment on all aspects of this 

proposal”). Hypothetically, it would be well within EPA’s administrative discretion to 

issue a supplemental proposal, issue a modification to the Proposed Rule, or even 

withdraw it entirely if the Administrator determined, after consideration of the 

comments, that such action was appropriate. See 79 Fed. Reg. 1352 and 79 Fed. Reg. 

1430 (Jan. 8, 2014) (notices withdrawing April 2012 proposal and substituting a new, 

substantially different proposal under section 7411(b)). 

 Murray insists that the legal interpretations in the preamble and supporting 

legal memorandum are phrased in an “unequivocal” or conclusive manner, and argues 

that because EPA employed such phrasing, the Court may review the Proposed Rule 

despite the acknowledged possibility that EPA may not promulgate a rule or may 

modify the proposal. See generally Pet.Br. 45-55. But the absence of hedge-words 

does not render a “proposed” notice-and-comment rule definitive. While courts 

sometimes ascertain finality based on the agency’s choice of language or other 

contextual clues in cases involving agency letters,9

 guidance statements,10 or other 

                                                            

9 E.g,. Harrison v. PPG Indus., Inc., 446 U.S. 578 (1980). 

10 E.g., Appalachian Power Co. v. EPA, 208 F.3d 1015, 1028 (D.C. Cir. 2000). 

Murray’s reliance on Appalachian Power is especially ironic, since the Court held that 

it was error to adopt a guidance statement without going through notice and 

comment. 208 F.3d at 1028. Here, Murray seeks to thwart the notice-and-comment 

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actions not subject to statutory notice-and-comment rulemaking requirements,11 here 

the decision-making process EPA must follow is spelled out in the Act itself. 

Murray’s reliance on Whitman v. American Trucking Associations, 531 U.S. 

457 (2001), is also misplaced (Pet.Br. 49, 51, 57). There, the Supreme Court held that 

an interim policy for implementing NAAQS was reviewable, in part, because EPA 

had published the policy in conjunction with the proposed rule and then adopted the 

policy in the preamble to the final rule “in light of” the comments it received. Id. at 

477-79. Here, in contrast, EPA’s challenged preamble and supporting legal 

memorandum have only been published with the Proposed Rule for the purpose of 

seeking comments on EPA’s legal interpretations, and EPA has not yet considered and 

responded to those comments as the Act requires. 

2. Proposing a rule creates no binding legal consequence. 

Murray asserts that the second prong of Bennett’s test is satisfied (Pet.Br. 55- 

57), but never explains how EPA’s mere publication of a rulemaking proposal could 

impose legal consequences or determine rights or obligations. Bennett, 520 U.S. at 

177-78. No state or potentially regulated entity – let alone Murray – is “required” to 

                                                            

process by asking the Court to review the merits before EPA has the opportunity to 

consider and respond to the comments it received. 

11 E.g., Sackett v. EPA, 132 S. Ct. 1367, 1369 (2012) (administrative compliance order). 

Other cases are irrelevant because they did not address finality. E.g., Athlone Indus. 

v. Consumer Prod. Safety Comm’n, 707 F.2d 1485 (D.C. Cir. 1983).   

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do anything based on the Proposed Rule. Only a final regulation promulgated in 

conjunction with EPA’s responses to comments would have such effect. 

C. Murray’s challenges are unripe. 

In assessing ripeness, this Court “focus[es] on . . . the ‘fitness of the issues for 

judicial decision’ and the extent to which withholding a decision will cause ‘hardship 

to the parties.’” Am. Petroleum Inst. (“API”) v. EPA, 683 F.3d 382, 387 (D.C. Cir. 

2012) (quoting Abbott Labs. v. Gardner, 387 U.S. 136, 149 (1967)). “[A] dispute is 

not ripe if it is not fit . . . and . . . it is not fit if it does not involve final agency action.” 

Holistic Candlers & Consumers Ass’n v. Food & Drug Admin., 664 F.3d 940, 943 n.4 

(D.C. Cir. 2012) (internal citations omitted). 

Because fitness is so plainly lacking when a claimant seeks judicial review of a 

legal dispute that may be mooted by the outcome of a pending notice and comment 

rulemaking process, this Court historically has dismissed such claims as unripe. See, 

e.g., API, 683 F.3d at 386; Atlantic States Legal Found. v. EPA, 325 F.3d 281, 284 

(D.C. Cir. 2003); Utility Air Regulatory Group v. EPA, 320 F.3d 272, 278-79 (D.C. 

Cir. 2003); Action on Smoking & Health v. Dep’t of Labor, 28 F.3d 162, 165 (D.C. 

Cir. 1994); accord Las Brisas (Order dated Dec. 13, 2012) (Attach. A); see also Brief 

for EPA in Case No. 14-1146 at 28-31. This Court should likewise dismiss Murray’s 

premature petition. 

 

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III. THE COURT LACKS JURISDICTION TO ISSUE A WRIT OF 

PROHIBITION TO STOP THE ONGOING RULEMAKING. 

Murray cannot overcome the non-final nature of the action it challenges by 

invoking the All Writs Act. Murray attempts to convince the Court otherwise by 

mixing together disparate bits of All Writs Acts jurisprudence, with a dash of the 

collateral order doctrine and other inapposite case law thrown in for good measure. 

See Pet.Br. at 39-41. But Murray’s writ request remains half-baked. The All Writs 

Act does not confer jurisdiction where it is otherwise lacking; a writ is unavailable 

where there is another legal remedy; and writ issuance is a rare occurrence that has 

been confined to limited categories of circumstances, none of which apply here. 

A. A writ may issue to aid, but not enlarge, jurisdiction. 

Murray ignores key constraints on the Court’s authority under the All Writs 

Act. That act “is not itself a grant of jurisdiction.” In re Tennant, 359 F.3d 523, 527 

(D.C. Cir. 2004). Rather, it “confines the [court’s] authority to the issuance of process 

‘in aid of’ the issuing court’s jurisdiction” and “does not enlarge that jurisdiction.” 

Clinton v. Goldsmith, 526 U.S. 529, 534-35 (1999). It “can never provide jurisdiction 

to a court that does not and would not otherwise have jurisdiction.” Ayuda, Inc. v. 

Thornburgh, 948 F.2d 742, 755 (D.C. Cir. 1991) (vacated on other grounds). 

Here, entertaining a challenge to the ongoing section 7411(d) rulemaking would 

impermissibly enlarge the Court’s jurisdiction. As discussed above, it is wellestablished that courts only have jurisdiction to review final agency action. Allowing 

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Murray to challenge the Proposed Rule would allow parties to bypass the limitations 

imposed by Congress in 42 U.S.C. § 7607(b)(1), thus enlarging the Court’s 

jurisdiction. Ayuda, 948 F.2d at 755 (“Surely” a “court may not use the All Writs Act 

to exercise jurisdiction over an agency . . . before a case is ripe or the agency's action is 

final. Otherwise . . . courts could easily circumvent those jurisdictional bars.”). 

Moreover, premature review of the rulemaking would impede, not aid, the 

Court’s exercise of its jurisdiction, as it places the Court in the position of having to 

review an agency position that is not fully developed. As this Court explained in 

Telecomms. Research & Action Ctr. v. FCC (“TRAC”), 750 F.2d 70, 79 (D.C. Cir. 

1984) (quotation omitted), “[p]ostponing review until relevant agency proceedings 

have been concluded permits an administrative agency to develop a factual record, 

[and] to apply its expertise to that record.” Murray suggests that those steps are 

unnecessary here because its challenge “focuses exclusively on the legal basis” for the 

rulemaking and “will never be clearer.” Pet.Br. 43. But that ignores the value of 

comments received from Murray and others on the issue raised. Such comments – of 

which EPA has received many – may alter EPA’s or the Court’s analysis. Indeed, if 

an issue is not raised in comment with reasonable specificity, it cannot be raised on 

judicial review. See 42 U.S.C. § 7607(d). This further underscores that Murray’s 

challenge is inconsistent with the review process Congress prescribed in the Act. 

 

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B. A writ is only available where there is no other legal remedy.

 A writ is “an extraordinary remedy that is not available when review by other 

means is possible.” TRAC, 750 F.2d at 78. Here, the Clean Air Act already provides 

a specific remedy for an allegedly “ultra vires” rule: review under its judicial review 

provision, 42 U.S.C. § 7607(b)(1), once the rule is final. Thus, “review by other 

means” is not only possible, but certain here. 

Murray suggests, with much hyperbole, that review of the final rule is not an 

adequate remedy because states and industry will have to expend resources before the 

rule is finalized. Pet.Br. 42-43 (complaining that the “specter of the mandate” may 

force coal plants to shut down, and “States must immediately devote tremendous time 

and resources”). As discussed in Section I, that claim is factually unsubstantiated. But 

in any event, such concerns do not justify issuing a writ where the challenged action 

will be reviewable in the normal course. See Public Util. Comm’r of Or. v. Bonneville 

Power Admin., 767 F.2d 622, 630 (9th Cir. 1985) (rejecting argument that writ should 

issue because delay would cause irreparable harm). 

C. An extraordinary writ may issue only in certain circumstances.

Because an extraordinary writ may only issue “in aid of” a court’s jurisdiction, 

courts have entertained petitions for a writ only in certain narrow categories of 

circumstances, otherwise concluding that jurisdiction is lacking. 

First, “[t]he traditional use of the writ in aid of appellate jurisdiction . . . has 

been to confine an inferior court to a lawful exercise of its prescribed jurisdiction or 

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to compel it to exercise its authority when it is its duty to do so.” Roche v. 

Evaporated Milk Ass’n, 319 U.S. 21, 26 (1943); see also I.C.C. v. U.S. ex rel. 

Campbell, 289 U.S. 385, 394 (1933) (“Mandamus is an appropriate remedy to compel 

a judicial officer to act. It may not be used as a substitute for an appeal . . . ”). 

Second, appellate courts have issued writs to address non-jurisdictional lower 

court action where “resolution of an important, undecided issue will forestall future 

error in trial courts, eliminate uncertainty and add importantly to the efficient 

administration of justice.” Colonial Times, Inc. v. Gasch, 509 F.2d 517, 524 (D.C. 

Cir. 1975). Such cases have generally addressed discovery orders, see, e.g., 

Schlagenhauf v. Holder, 379 U.S. 104 (1964), which “are often collateral to the 

litigation and thus lost to appellate review . . . .” Gasch, 509 F.2d at 526. 

Third, courts “have the authority, under the All Writs Act, 28 U.S.C. § 1651, to 

issue a writ of mandamus” in regard to agency action where an agency has 

“unreasonably delayed” taking action required of it by law. Sierra Club v. Thomas, 

828 F.2d 783, 795-96 (D.C. Cir. 1987); TRAC, 750 F.2d at 76 (court had jurisdiction 

over petition for a writ of mandamus alleging unduly lengthy delay by the FCC in 

responding to complaint).12 The delayed action must lie within the Court’s future 

jurisdiction, see Tennant, 359 F.3d at 529, and issuance of the writ must be necessary 

                                                            

12 After Thomas and TRAC, Congress amended the Clean Air Act so that 

unreasonable delay claims are now heard in district court. See 42 U.S.C. § 7604(a). 

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“to protect [that] future jurisdiction.” TRAC, 750 F.2d at 76. In other words, the 

court may only assume jurisdiction if “the agency might forever evade our review and 

thus escape its duties [while] we awaited final action.” Thomas, 828 F.2d at 793. 

Murray’s petition fits into none of these three categories. It does not address a 

lower court’s exercise of jurisdiction it lacks or refusal to exercise jurisdiction, but 

rather the substance of administrative action. It also does not fit into the 

Gasch/Schlagenhauf category, not only because it does not address lower court 

action, but also because the goals of preventing similar errors and furthering the 

“efficient administration of justice” by addressing an issue that might otherwise evade 

review are not in play here. To the contrary, “[r]efusing intervention in current 

agency proceedings ensures against premature, possibly unnecessary, and piecemeal 

judicial review.” Bonneville Power, 767 F.2d at 629. The issue Murray raises can be 

addressed when a final rule is before this Court. While that issue may be important 

and undecided, “[n]ot every issue of first impression or every ‘basic, undecided’ 

problem should be the basis for mandamus relief.” Gasch, 509 F.2d at 525. 

The third category – the only one addressing agency action as opposed to lower 

court action – is also inapposite because, unlike in TRAC and the other cases in this 

vein, Murray does not challenge agency delay that might frustrate the Court’s review of 

final action. Rather, it is Murray that would deprive the Court of the opportunity to 

review a final rule by demanding that the agency take no action. 

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Murray attempts to overcome the traditional limitations on the availability of an 

extraordinary writ by cobbling together isolated aspects of some of the above cases, 

while ignoring the corresponding limitations. Murray relies heavily on Gasch and 

Schlagenhauf as authorizing review of “new and important problems” (Pet.Br. 39) – a 

label that could apply to any number of cases – but conveniently ignores that those 

cases were limited to addressing district court discovery orders that might have 

otherwise been “lost to appellate review.” Gasch, 509 F.2d at 526. Petitioner points 

to Thomas and TRAC as holding that the Court can review non-final agency action 

(Pet. at 24), but glosses over the limitation of those holdings to undue delay claims 

where the court’s opportunity to review the agency’s action might be frustrated by a 

failure to take action. Thomas, 828 F.2d at 793; TRAC, 750 F.2d at 76. Petitioner 

also fails to mention that the Court declined to issue the writ in both cases. Id. 

D. No authority supports the issuance of a writ here. 

Apparently recognizing that the All Writs Act is insufficient to achieve its ends, 

Murray turns to several other inapposite doctrines and cases. Pet.Br. 40-41. Not one 

of them supports its arguments. 

Murray cites McCulloch v. Sociedad Nacional, 372 U.S. 10 (1963), as holding 

that a court can enjoin non-final action that involves “public questions particularly 

high in the scale of our national interest.” Pet.Br. at 40. But no party challenged 

jurisdiction in that case, regarding whether the NLRB could hold an election on a 

Honduran ship. Addressing jurisdiction on its own initiative, the Court noted that the 

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NLRB’s action “aroused vigorous protests from foreign governments,” creating “a 

uniquely compelling justification for prompt judicial resolution of the controversy.” 

372 U.S. at 16-17. While the Proposed Rule has certainly drawn “vigorous protests” 

from Murray and others, such protests – which occur often in agency rulemakings – 

do not present the same type of “compelling justification” for bypassing normal 

jurisdictional rules as the international incident at issue in McCulloch. 

Murray also relies on Leedom v. Kyne, 358 U.S. 184, 187-91 (1958). But there, 

the National Labor Relations Board conceded that the district court had jurisdiction 

under a general review provision, unless the National Labor Relations Act specifically 

deprived it of such jurisdiction. Id. Here, there is no such general grant of 

jurisdiction that allows review of non-final EPA action, and the All Writs Act cannot 

fill that void. As discussed above, it does not “enlarge” the Court’s jurisdiction. 

Finally, Murray relies on Meredith v. Federal Mine Safety and Health Review 

Commission, 177 F.3d 1042 (D.C. Cir. 1999), for the proposition that the Court may 

review non-final action under the collateral-order doctrine. Pet.Br. at 41. But Murray 

offers no support for its bare assertion that the prerequisites for application of that 

doctrine – conclusiveness and unreviewability – have been met, even though the 

challenged rulemaking has not concluded and the Court will have the opportunity to 

review the resulting final rule under 42 U.S.C. § 7607(b)(1) once it does. 

Murray’s argument for issuance of an extraordinary writ is, in essence, that the 

challenged rulemaking is really important. But even if true, that is not enough. There 

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is simply no authority for the remarkable proposition Murray advances: that the 

Court can halt an ongoing rulemaking under the auspices of the All Writs Act. As in 

other cases where a party has attempted to use that limited tool to achieve a novel 

end, the Court should reject this argument. See In re Bluewater Network, 234 F.3d 

1305, 1312 (D.C. Cir. 2000) (“petitioners cannot use the present mandamus action to 

challenge the substance of” temporary regulations). 

IV. THE COURT SHOULD NOT STOP THE RULEMAKING BASED 

ON ONE INTERPRETATION OF AN AMBIGUOUS PROVISION. 

 If it reaches the merits, the Court should decline to take the extreme step of 

ordering EPA to stop an ongoing rulemaking based on Murray’s preferred 

interpretation of a patently ambiguous provision. 

To prevail on the merits at this preliminary stage, Murray must show that its 

interpretation of section 7411(d) of the Act – under which EPA is barred from 

addressing non-hazardous pollutants emitted by a source category because it has 

regulated hazardous pollutants from that source category – is clearly and indisputably 

the only possible way to interpret that provision. See Chevron, U.S.A., Inc. v. 

Natural Resources Def. Council, 467 U.S. 837 (1984) (a court must accept an 

agency’s reasonable construction of an ambiguous provision); In re United States, 

925 F.2d 490, 1991 WL 17225, at *2 (D.C. Cir. Feb. 11, 1991) (a writ may issue only 

where the “right to issuance . . . is ‘clear and indisputable’”) (quoting Kerr v. U.S. 

Dist. Court for N. Dist. of Cal., 426 U.S. 394, 403 (1976)). 

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Murray cannot make that showing. The text of section 7411(d), even as 

amended by the House alone, does not require Murray’s interpretation; the legislative 

history and statutory context do not favor it; and Murray improperly discounts the 

Senate’s amendment to section 7411(d), which would plainly allow EPA to regulate 

power plants’ emissions of carbon dioxide. Moreover, even under Murray’s 

interpretation of section 7411(d), EPA would still have the authority to regulate 

natural gas plants; thus, in seeking to halt the rulemaking (which addresses both coaland natural gas-fired plants) in its entirety, Murray is seeking relief that would 

preclude EPA from exercising authority that even Murray does not dispute EPA has. 

EPA must have the opportunity to proffer its own interpretation of section 

7411(d), addressing all of the above, after completing its analysis and considering the 

comments it has received from Murray, Intervenors, and thousands of others. Then, 

this Court can properly consider whether that interpretation is reasonable in light of 

the statute’s text, context, and legislative history, as well as common sense. 

A. Section 7411(d) need not be read as Murray insists. 

Murray contends that there is only one way to read section 7411(d): as barring 

regulation thereunder of all emissions from a source category once that source 

category’s hazardous emissions have been regulated under section 7412. Not so. As 

EPA has previously explained,13 that provision – even as amended by the House only 

                                                            

13 Because EPA discussed these alternative interpretations at length in both its 

Response to [Writ] Petition in this case (p.28-30) and in its brief in the companion 

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– is rife with ambiguity and subject to several other possible interpretations. All 

except Murray’s proposed reading would authorize regulation of non-hazardous 

pollutants, such as carbon dioxide, emitted by power plants. 

 First, the literal text of the House-amended version of section 7411(d) (set 

forth in the U.S. Code) can be read as authorizing EPA to address power plant 

emissions under that provision so long as the pollutant in question (here, carbon 

dioxide) is not a criteria pollutant. This interpretation is apparent once one focuses 

on the way the three qualifying clauses in the text are joined: 

The Administrator shall prescribe regulations . . . under which each State 

shall submit to the Administrator a plan which (A) establishes standards of 

performance for any existing source for any air pollutant [1] for which air 

quality criteria have not been issued or [2] which is not included on a list 

published under section 7408(a) of this title or [3] emitted from a source 

category which is regulated under section 7412 of this title . . . . 

42 U.S.C. § 7411(d)(1) (emphasis and internal numbering added). Because Congress 

used the conjunction “or” rather than “and” between the three clauses, they would be 

more naturally read as alternatives, rather than requirements to be imposed 

simultaneously.14 In other words, the literal language of section 7411(d) provides that 

the Administrator may require states to establish standards for an air pollutant so long 

                                                            

case West Virginia v. EPA, No. 14-146 (Brief for Respondent pp.35-40), it will 

provide a more condensed treatment here. 

14 Merriam Webster defines “or” as “a function word [used] to indicate an alternative 

<coffee or tea> <sink or swim>.” At http://www.merriamwebster.com/dictionary/or. 

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as either air quality criteria have not been established for that pollutant, or one of the 

remaining criteria is met. Air quality criteria have not been issued for CO2; thus, 

whether power plants have been regulated under section 7412 is arguably irrelevant. 

Section 7411(d) could also be literally read as requiring regulation of power 

plant carbon dioxide emissions because of the lack of a negative before the third 

clause. Petitioner presumes that the negative from the second clause was intended to 

carry over, implicitly inserting another “which is not” before “emitted from a source 

category.” But the text (as amended by the House) says that EPA “shall” require 

standards for “any air pollutant . . . emitted from a source category which is regulated 

under section 7412.” 42 U.S.C. § 7411(d)(1). Thus, section 7411(d) can also be 

literally read as requiring EPA to regulate emissions of a pollutant from a source 

category if that category is regulated under section 7412. 

Next, the House chose to use the term “regulated,” which is inherently 

ambiguous. As the Supreme Court has explained, when interpreting that term, an 

agency must consider what is being regulated. See Rush Prudential HMO, Inc. v. 

Moran, 536 U.S. 355, 366 (2002) (It is necessary to “pars[e] . . . the ‘what’” of the term 

“regulates.”); UNUM Life Ins. Co. of Am. v. Ward, 526 U.S. 358, 363 (1999) (the 

term “‘regulates insurance’ . . . require[s] interpretation, for [its] meaning is not 

‘plain.’”) Here, the “what” being “regulated under section 7412” is a source category’s 

emission of specific hazardous pollutants. Thus, EPA could reasonably conclude that 

it is only precluded from regulating sources in regard to a particular pollutant under 

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section 7411(d) if those sources are already “regulated under section 7412” with respect 

to that same pollutant. This is precisely the sort of “reasonable, context-appropriate 

meaning” that the Supreme Court has directed EPA to give such ambiguous terms. 

Utility Air Regulatory Group v. EPA (UARG), 134 S. Ct. 2427, 2440 (2014). 

Moreover, the phrase “which is regulated under section 7412” is ambiguous in 

regard to the object(s) it modifies. Petitioner assumes it modifies “source category,” 

but it may also or instead modify “air pollutant.” “As enemies of the dangling 

participle well know, the English language does not always force a writer to specify [to 

what] . . . a modifying phrase relates.” Young v. Cmty. Nutrition Inst., 476 U.S. 974, 

980-81 (1986) (FDA’s interpretation therefore gets Chevron deference). If Congress 

intended the phrase “which is regulated . . .” to modify “air pollutant,” then regulation 

would be barred only if a source category was already regulated under section 7412 for 

the same pollutant EPA sought to regulate under section 7411(d). 

Finally, the clause “emitted from a source category which is regulated under 

section 7412” is ambiguous as a whole because it modifies the ambiguous phrase “any 

air pollutant.” 42 U.S.C. § 7411(d). As the Supreme Court recently noted, “any air 

pollutant” is routinely given a “context-appropriate meaning.” UARG, 134 S. Ct. at 

2439. Here, context suggests that “any air pollutant” “emitted from a source category 

which is regulated under section 7412” should be understood as referring only to any 

hazardous air pollutants, since hazardous pollutants are what section 7412 addresses. 

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Murray addresses none of these textual ambiguities. Rather, it blithely asserts 

that “[t]he Supreme Court has . . . already confirmed . . . that the text of Section 

[74]11(d) as reflected in the United States Code prohibits EPA from mandating stateby-state standards . . . .” Pet.Br. 17.15 The Supreme Court has done no such thing. 

In a footnote in American Electric Power v. Connecticut, the Court said: 

“EPA may not employ § 7411(d) if existing stationary sources of the pollutant 

in question are regulated under the national ambient air quality standard 

program §§ 7408-7410, or the ‘hazardous air pollutants’ program, § 7412.” 

 131 S. Ct. 2527, 2537 n.7 (2011) (“AEP”). First, the issue presented here – whether 

section 7411(d) bars regulation of all emissions from a source category once hazardous

emissions from that category have been regulated under section 7412 – was not raised 

or addressed in AEP. To the contrary, industry petitioners asserted in briefing that 

“EPA may . . . require States to submit plans to control” power plants’ greenhouse 

                                                            

15 Murray also claims that EPA has “acknowledged that the text of Section 

[74]11(d) . . . unambiguously prohibits doubly regulating existing source categories.” 

Not true. As discussed in EPA’s brief in West Virginia (pp.51-53), while, in the 

preamble to a 2005 rule that was overturned, EPA stated that the interpretation of 42 

U.S.C. § 7411(d) advanced by Murray here was “a literal reading” of that text 

(emphasis added), it nevertheless concluded that the text was ambiguous, not only 

because of the Senate amendment, but also because of context and legislative history. 

See 70 Fed. Reg. 15,994, 16,031-32 (Mar. 29, 2005) (“Such a reading would be 

inconsistent with the general thrust of the 1990 amendments . . . . We do not believe 

that Congress sought to eliminate regulation for a large category of sources . . .”). No 

party disagreed. Rather, the question raised then was whether section 7411(d) 

authorized regulation thereunder of a hazardous pollutant where that pollutant was 

listed, but not actually regulated, under section 7412. In any event, EPA is not tied to 

statements in the preamble of a vacated rule, and it should not be criticized for failing 

to explore all possible meanings of the House amendment in that context, particularly 

given that the argument Murray now asserts was not raised in that rulemaking. 

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gas emissions under 42 U.S.C. § 7411(d), 16 and reiterated at argument – which took 

place after EPA proposed the MATS Rule – that EPA has “the authority to consider 

[greenhouse gas] standards under section [74]11.”17 

Furthermore, the phrase “of the pollutant in question” arguably indicates that 

the Supreme Court understood the prohibition to be pollutant-specific. The structure 

of the Court’s statement also so suggests, as the Court’s references to the NAAQS 

program and hazardous pollutant program are parallel, and it is indisputable that the 

NAAQS exclusion is criteria-pollutant specific.18 Thus, if the Supreme Court’s dicta 

in AEP means what Murray believes, then it is at least half wrong. 

Finally, the holding of AEP – that section 7411 “speaks directly to emissions of 

[CO2] from the defendants’ [power] plants,” 131 S. Ct. at 2537 – undercuts Murray’s 

position, particularly since it post-dates the issuance of the final MATS Rule. 

The Supreme Court has not yet grappled with the myriad ambiguities of section 

7411(d), and its passing reference to the language of that provision in AEP does not 

inform the analysis here. What is evident, at this point, is that this is no “case of ‘clear 

right’” concerning a “clear statutory provision,” TRAC, 750 F.2d at 79, and so the 

Court should neither issue a writ of prohibition nor set aside the Proposed Rule. 

                                                            

16 Brief for Pet’s, No. 10-174, 2011 WL 334707, at *6-7. 

17 Transcript, 2011 WL 1480855, at *16-17.

18 See 42 U.S.C. § 7411(d)(“The Administrator shall prescribe regulations . . . [requiring 

states to] establish[] standards of performance for any existing source for any air 

pollutant (i) for which air quality criteria have not been issued . . . ).

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B. The Act’s structure, purpose, context, and legislative history do 

not favor Murray’s authority-nullifying interpretation of § 7411(d). 

Statutory interpretation begins with the text, but does not end there. As this 

Court has explained, “[t]he literal language of a provision taken out of context cannot 

provide conclusive proof of congressional intent.” Bell Atlantic Telephone Cos. v. 

F.C.C., 131 F.3d 1044, 1047 (D.C. Cir. 1997). Rather, the Court “must employ all the 

tools of statutory interpretation, including . . . structure, purpose, and legislative 

history.” Loving v. I.R.S., 742 F.3d 1013, 1016 (D.C. Cir. 2014) (internal quotation 

omitted). Fully employed here, those tools favor a reading of section 7411(d) that 

does not bar regulation thereunder of all emissions from a source simply because its 

hazardous emissions are already regulated under section 7412. 

1. The Act’s structure and purpose conflict with Murray’s interpretation. 

In assessing any interpretation of section 7411(d), the Court should consider 

how the three main programs set forth in the Act work together. See UARG, 134 S. 

Ct. at 2442 (a “reasonable statutory interpretation must account for . . . the broader 

context of the statute as a whole”) (quotation omitted). 

Congress designed section 7411(d) to work in tandem with the NAAQS and 

section 7412 programs such that, together, the three programs cover the full range of 

dangerous emissions from stationary sources. See supra pp. 3-5. Under Murray’s 

reading, there would be a gaping hole in that coverage, leaving sources’ emissions of 

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certain pollutants outside the Act’s scope. Such a result is starkly at odds with the 

Act’s purpose of protecting “public health and welfare.” 42 U.S.C. § 7401(b)(1). 

This Court should not rush to adopt an interpretation of section 7411 that is at 

odds with the Act’s purpose and creates gaps in the otherwise-comprehensive scheme 

designed by Congress in 1970. Rather, it should give EPA an opportunity to interpret 

that provision so as to “make sense of the whole.” Bell Atl., 131 F.3d at 1047. 

2. The legislative history conflicts with Murray’s interpretation. 

The legislative history of the 1990 Amendments also “makes it plain” that 

Murray’s theory of section 7411(d) “is not a reasonable statutory interpretation.” 

United States v. Vogel Fertilizer Co., 455 U.S. 16, 26 (1982). That history is replete 

with language indicating that Congress sought to expand EPA’s regulatory authority 

across the board, compelling the Agency to regulate more pollutants, under more 

programs, more quickly.19 Conversely, no party has identified a single statement in 

the legislative history indicating that Congress simultaneously sought to restrict EPA’s 

                                                            

19 See S. Rep. No. 101-228 at 133 (“the program to regulate hazardous air pollutants 

. . . should be restructured to provide EPA with authority to regulate industrial and 

area source categories of air pollution . . . in the near term”), reprinted in 5 Legis. Hist. 

at 8473; S. Rep. No. 101-228 at 14 (“The bill gives significant authority to the 

Administrator in order to overcome the deficiencies in [the NAAQS program]”), 

reprinted in 5 Legis. Hist. at 8354; H.R. Rep. No. 101-952 at 336, 340, 345 & 347 

(discussing enhancements to Act’s motor vehicle provisions, EPA’s new authority to 

promulgate chemical accident prevention regulations, the enactment of the Title V 

permit program, and enhancements to EPA’s enforcement authority), reprinted in 1 

Legis. Hist. at 1786, 1790, 1795, & 1797. 

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authority under the existing source performance standards program or to create gaps 

in the comprehensive structure of the statute. This strongly suggests that both houses 

simply intended to edit section 7411(d) to reflect the structural changes made to 

section 7412; i.e., EPA’s new mandate to regulate the nearly 200 hazardous pollutants 

Congress identified on a source category-by source category basis, rather than 

regulating hazardous pollutants one-by-one. Indeed, that was the conclusion drawn by 

the Congressional Research Service shortly after enactment of the 1990 Amendments. 

1 Legis. Hist. at 46 n.1 (characterizing House and Senate amendments as “duplicative” 

edits that “change the reference to section 112” using “different language”). 

Lacking any contemporaneous historical evidence supporting its interpretation 

of section 7411(d), Murray presents a theory as to why Congress might have wanted 

to exempt all source categories regulated under section 7412 from any regulation 

under section 7411(d): a supposed desire to prohibit “double regulation.” Pet.Br. 20. 

Murray posits that “ban[ning] EPA from doubly regulating source categories under 

both Sections [74]11(d) and [74]12” was “sensibl[e]” because those provisions might 

impose “conflicting or unaffordable requirements.” Pet.Br. 19-20. Beyond the lack 

of historical evidence supporting it, there are several things wrong with this theory. 

First, sections 7412 and 7411 regulate different types of air pollutants – 

hazardous and non-hazardous respectively – although a lay reader of Murray’s brief 

would have no idea this was the case. If the section 7411 and section 7412 programs 

addressed the same sets of pollutants, then Murray’s theory might make some sense, 

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but there is obviously no “double regulation” when the two programs at issue address 

different pollutants. Moreover, Murray provides no factual support for its suggestion 

that the controls required under section 7412 to address hazardous emissions might 

“conflict,” technologically, with the controls required under section 7411(d) to 

address the emissions of other pollutants. 

Second, instead of legislating to avoid any regulatory overlap between state and 

federal programs as Murray theorizes (Pet.Br. 19), Congress in fact made it clear that 

sources may be simultaneously subject to multiple regulatory programs. See 42 U.S.C. 

§ 7416 (authorizing states to require sources already regulated under section 7412 or 

other national standards to impose additional, more stringent state controls). Indeed, the 

Title V program, enacted in 1990 and providing for the collection of all regulatory 

requirements applicable to a source into one permit, would be largely unnecessary if a 

source can only be subject to one program at a time. 

Finally, Murray’s suggestion that Congress sought to bar all regulation under 

section 7411(d) once a source category has been regulated under section 7412 in order 

to avoid imposing “unaffordable requirements” is undercut by something Murray 

itself points out: the fact that the standards set under those programs both 

incorporate cost considerations. Pet.Br. 19; 42 U.S.C. §§ 7411(a)(1), 7412(d). Thus, 

Congress addressed the issue of affordability by incorporating cost considerations into 

the standard-setting process under both the section 7411(d) and 7412 programs, not 

by exempting a source category from one of those programs. 

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3. The statutory context is also at odds with Murray’s interpretation. 

 “Context serves an especially important role in textual analysis of a statute 

when Congress has not expressed itself as unequivocally as might be wished.” Bell, 

131 F.3d at 1047. Where the Court is “charged with understanding the relationship 

between two different provisions within the same statute” – e.g., §§ 7411(d) and 7412 

– it “must analyze the language of each to make sense of the whole.” Id. 

Here, the text of section 7412 states that regulation of hazardous pollutants 

under that section is not to “diminish or replace the requirements of” EPA’s 

regulation of non-hazardous pollutants under section 7411. 42 U.S.C. § 7412(d)(7). 

Under Murray’s reading, section 7412 standards for hazardous pollutants would 

entirely eliminate regulation of non-hazardous emissions from a source category. 

Given that current sections 7412(d)(7) and 7411(d) were both the result of the 1990 

Amendments, one would have to ascribe contradictory intentions to the same 

Congress to interpret the latter as Murray suggests. 

 Ultimately, EPA may or may not conclude that section 7411(d) should be 

interpreted as Murray argues, and the reasoning supporting its conclusion may or may 

not be along the lines of the arguments addressed above. But EPA must be afforded 

the opportunity to complete the rulemaking process, and reach its own final 

conclusion regarding the issues raised here, before the arguments for and against any 

particular interpretation of the statute can properly be considered by this Court. 

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C. The Senate Amendment also conflicts with Murray’s interpretation 

of section 7411(d), and cannot be ignored. 

Murray’s preferred interpretation of section 7411(d) is also at odds with 

Congress’ enactment of a second amendment to that provision, drawn from the 

Senate’s bill, which plainly authorizes EPA to regulate unless the same pollutant is 

already regulated under section 7412. This clear preservation of EPA’s regulatory 

authority over the full range of dangerous pollutants emitted by a source, hazardous 

and non-hazardous, is properly considered when interpreting section 7411(d). 

1. The Senate Amendment should not be ignored. 

 Unlike the ambiguous amendment to section 7411(d) drawn from the House 

bill, the amendment drawn from the Senate bill is straightforward. It simply 

substitutes “section 112(b)” for the prior cross-reference to “section 112(b)(1)(A).” 

Pub. L. No. 101-549, § 302(a), 104 Stat. at 2574. So amended, section 7411(d) would 

mandate that EPA require states to submit plans establishing standards “for any 

existing source for any air pollutant . . . which is not included on a list published under 

section 7408(a) or section 7412(b).” 

 Murray and Intervenors offer various arguments as to why this clear mandate, 

which all concede is at odds with the interpretation of section 7411(d) advanced by 

Murray (see Pet.Br. n8), should be ignored. All are unavailing. First, Murray asserts 

that the Court should “defer” to the Office of Law Revision Counsel’s (“OLRC’s”) 

“decision” regarding “what the text of the Clean Air Act” is; i.e., that OLRC’s nonUSCA Case #14-1112 Document #1541205 Filed: 03/09/2015 Page 62 of 75

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execution of the Senate Amendment in the U.S. Code is the authoritative word on the 

interpretation of section 7411(d). Pet.Br. 34. Murray goes so far as to claim that, 

because OLRC did not execute the Senate Amendment, “there is no ambiguity.” Id. 

 But Murray misunderstands the role of OLRC. OLRC is not a “legislative 

agency” as Murray asserts (id.); it does not make law. Rather, its job is simply to 

“prepare[] and publish[] the United States Code.” 20 OLRC may also recommend “such 

amendments and corrections as will remove ambiguities, contradictions, and other 

imperfections” in a law and submit a revised version of that title to the Committee of 

the Judiciary of the House of Representatives,21 but until Congress enacts that version 

of the title into positive law, the text in the Statutes at Large controls. See Stephan v. 

United States, 319 U.S. 423, 426 (1943) (“the Code cannot prevail over the Statutes at 

Large when the two are inconsistent”); Five Flags Pipe Line Co. v. Dep’t of Transp., 

854 F.2d 1438, 1440 (D.C. Cir. 1988) (“[W]here the language of the Statutes at Large 

conflicts with the language in the United States Code that has not been enacted into 

positive law, the language of the Statutes at Large controls.”). This Court accordingly 

concluded in Five Flags that it had to give effect to the version of a provision set 

forth in the Statutes at Large, as opposed to the version in the U.S. Code, where there 

was a substantive difference between the two. Id. In contrast, OLRC’s mechanical 

                                                            

20 At http://uscode.house.gov/about/info.shtml. 

21 Id. 

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non-execution of an amendment (for whatever reason22) is entitled to “no weight.” 

United States v. Welden, 377 U.S. 95, 98 n.4 (1964).23

 None of the cases cited by Murray (Pet.Br. 35-36) remotely support its 

argument to the contrary. NLRB v. Noel Canning, 134 S. Ct. 2550, 2577 (2014), 

concerned the President’s authority under the Recess Appointment Clause of the 

Constitution. While the Court found “some linguistic ambiguity” in that Clause, 

which it interpreted in light of “the basic purpose of the Clause, and the historical 

practice,” id. at 2573, there were obviously no issues of conflicting statutory language, 

or deference to the OLRC. The “undue judicial interference” language repeatedly 

quoted by Murray relates to the question of whether the Court should take the 

Senate’s representations of its own actions at face value or instead inquire into the 

facts behind them. Thus, Noel Canning is irrelevant to the issues presented here. Ex 

parte Wren, 63 Miss. 512 (Miss. 1886), is also off point. That case addressed whether 

                                                            

22 Murray states that the House Amendment had “execution priority” because it 

appears before the Senate Amendment in the bill. But “if there exists a conflict in the 

provisions of the same act, the last provision in point of arrangement must control.” 

Lodge 1858, Am. Fed’n of Gov’t Emps. v. Webb, 580 F.2d 496, 510 (D.C. Cir. 1978). 

23 EPA does not dispute that there are other instances in which statutory amendments 

have not been executed. See Pet.Br. n.9. Murray misses the point: in the rare 

instances where unexecuted text is found to matter, it must be considered and given 

effect, just as this Court did in Five Flags. This will not “embroil” courts in “the 

intricacies of the legislative process” as Murray hyperbolically suggests. Indeed, most 

of the unexecuted amendments cited by Murray are trivial and/or duplicative (e.g., 

1990 Amendments to 42 U.S.C. § 1395l(a)(1)(K) (both amendments struck same 

word, “and”), or obviously in error (e.g., 2008 Amendments to 15 U.S.C. § 2081(b)(1) 

(section amended had been repealed)). 

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an amendment that did not make its way into the final bill signed by the governor, 

despite the legislature’s intent to include it, has effect. If anything, the Mississippi 

Supreme Court’s conclusion – that the text of the bill as signed into law governs – 

supports EPA’s position here, not Murray’s. 

 Murray also suggests that the Senate amendment should be discounted because 

it is “not substantive,” but only “conforming.” Pet.Br. 33. Murray is again wrong. 

First, the “conforming” label is irrelevant. A “conforming” amendment may be 

substantive or non-substantive. Burgess v. United States, 553 U.S. 124, 135 (2008). 

And while the House Amendment contains more words, it also qualifies as 

“conforming” under the definition in the Senate Legislative Drafting Manual, Section 

126(b)(2) (“necessitated by the substantive amendments of provisions of the bill”). 

Here, both the House and Senate amendments were “necessitated by” Congress’ 

revisions to section 7412, which included the deletion of old section 7412(b)(1)(A). 

Thus, the House’s amendment is no less “conforming” than the Senate’s, and the 

heading under which it was enacted – “Miscellaneous Guidance” – no more indicates 

substantive import. In any event, this Court gives full effect to conforming 

amendments, see Washington Hospital Center v. Bowen, 795 F.2d 139, 149 (D.C. Cir. 

1986), and so the Senate amendment cannot be ignored.24 

                                                            

24 Murray cites Am. Petroleum Inst. v. SEC as suggesting otherwise. Pet.Br. 33. It 

does not. There, the Court did not ignore a conforming amendment; rather, it 

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 Intervenors NFIB and UARG seize on a line from the legislative history stating 

that the Senate “recedes to the House,” arguing that this language indicates the Senate 

“defer[red] . . . to the . . . House amendment” and thereby “reconcile[ed] the alternate 

versions of the 1990 amendments.” NFIB/UARG Br. 17 (citing S. 1631, 101st Cong., 

§ 108 (Oct. 27, 1990), reprinted in 1 Leg. Hist. at 885) (JA 418)). Intervenors misuse 

this rather mundane legislative history snippet. 

 To begin with, the language quoted is not from the conference report as 

Intervenors state, but from a “Statement of Senate Managers” read into the record on 

the floor. See 1 Leg. Hist., at 880 (JA 413). As the reader noted, it was “not reviewed 

or approved by all of the conferees,” id., and thus has limited value. Furthermore, 

“recedes” is a boilerplate term that signals that one chamber is withdrawing its prior 

objection to a provision of a bill, either because it has been amended, replaced, or 

otherwise. See Riddick’s Senate Procedure S. Doc. 101-28 at pp. 1481-82 (JA 426-27). 

It does not mean one house is deferring to another. Moreover, the statement at issue 

here is specific to section 108 of the bill, and thus says nothing about the Senate’s 

intentions regarding section 302, containing the Senate amendment. Indeed, the 

Senate Managers expressly stated that they were not addressing Title III of the bill, 

which contained that amendment. 1 Leg. Hist., at 880 (JA 413). In any event, the key 

                                                            

refused to act based on a non-existent conforming amendment that a party theorized 

Congress might have forgotten to enact. 714 F.3d 1329, 1336-37 (D.C. Cir. 2013). 

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point remains that both amendments to section 7411(d) were enacted into law, and 

must therefore be given effect. See Envtl. Def. Fund v. EPA, 82 F.3d 451, 460 n.10 

(D.C. Cir. 1996) (Statement of Senate Managers “cannot undermine the statute’s 

language”). Thus, both Murray and Intervenors fail to show that the Senate 

Amendment must be disregarded. 

2. The Senate Amendment poses no non-delegation issue. 

 In a last-ditch attempt to excise the Senate Amendment from the Act, 

Intervenors point to the non-delegation doctrine. They argue that agencies may not 

“pick and choose between . . . conflicting legislative enactments” (NFIB Br. 22), and 

that EPA is unlawfully “attempt[ing] to exercise lawmaking power” (Peabody Br. 11). 

Intervenors’ attempt to scare up a constitutional bogeyman fails. 

 First, it is not apparent that there is a “conflict” between the two amendments 

to section 7411(d), given that the House-amended text can be interpreted as not 

barring regulation of a source category under section 7411(d) unless that source 

category’s emissions of the pollutant in question are already regulated under section 7412. 

Supra pp. 35-40. EPA should be permitted to at least consider that possibility.25 

 Second, if there is tension between the two amendments, EPA should have the 

opportunity to try to harmonize them, in light its expertise on this statutory scheme. 

                                                            

25 See Scialabba v. Cuellar de Osorio, 134 S. Ct. 2191, 2228 (2014) (Sotomayor, J., 

dissenting) (“before concluding that Congress has legislated in conflicting and 

unintelligible terms,” “traditional tools of statutory construction” should be used to 

“allow [the statute] to function as a coherent whole.”).

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Where “internal tension” in a statute “makes possible alternative reasonable 

constructions,” “Chevron dictates that a court defer to the agency’s . . . expert 

judgment about which interpretation fits best with, and makes the most sense of, the 

statutory scheme.” Scialabba, 134 S. Ct. at 2203 (Kagan, J., plurality op.). This Court 

has similarly opined that where Congress “drew upon two bills originating in different 

Houses and containing provisions that, when combined, were inconsistent in respects 

never reconciled in conference . . . it was the greater wisdom for [EPA] to devise a 

middle course.” Citizens to Save Spencer Cnty. v. EPA, 600 F.2d 844, 872 (D.C. Cir. 

1979). Thus, if there is a conflict between the House and Senate amendments, EPA 

should be given the chance to find a reasonable “middle course.” Id.26 

 Intervenors cite to Chief Justice Roberts’ statement that “Chevron is not a 

license for an agency to repair a statute that doesn’t make sense.” NFIB Br. 25 (citing 

Scialabba, 134 S. Ct. at 2214 (concurring opinion)). But (in addition to being at odds 

with the plurality opinion), that statement doesn’t apply here. The Act makes sense; 

                                                            

26 Intervenors cite Whitman, 531 U.S. at 457, as suggesting that EPA may not choose 

“between competing versions of a statute.” NFIB/UARG Br. 22. But that case 

concerned whether Congress’ command that EPA set air quality standards “requisite 

to protect public health” and “allowing an adequate margin of safety” was too broad. 

It was in that different context that the Court suggested that, if a grant of authority 

was too broadly drawn, EPA could not cure it by declining to exercise some of that 

authority. Id. at 472. And the Court noted that “[i]n the history of the Court we have 

found the requisite ‘intelligible principle’ lacking in only two statutes,” whereas it has 

routinely upheld agencies’ authority to execute vaguely-drafted Congressional 

commands. 531 U.S. at 474. 

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Congress’ intent in 1970 to establish a comprehensive regulatory scheme, covering the 

full range of dangerous pollutants, was clear and sensible, and its intent to strengthen 

that scheme in 1990 was equally clear and sensible. If EPA determines that there is a 

discrepancy between the two amendments at issue here, those “intelligible principles” 

can guide its application of the traditional tools of statutory interpretation to 

harmonize the two amendments. Indeed, the Chief Justice made clear that he favored 

reading a statute “as a symmetrical and coherent regulatory scheme,” and “fit[ing], if 

possible, all parts into a harmonious whole.” Id. at 2214. 

 Finally, even if the Court concluded that there was a “direct conflict” between 

the House and Senate amendments, which it did not think the agency could properly 

address through interpretation, 134 S. Ct. at 2203, the result would not be what 

Murray or Intervenors wish. Rather, the amended portion of section 7411(d) would 

revert to its pre-1990 text – which would either render it entirely null (because it 

cross-references section 4712(b)(1)(A), which no longer exists), or instead might be 

found to preserve the pre-1990 scope of the exclusion (if only the now-inapplicable 

subsection references (“(b)(1)(A)”) are considered null).27

                                                            

27 See ANTONIN SCALIA & BRYAN A. GARNER, READING LAW: THE INTERPRETATION 

OF LEGAL TEXTS 189 (2012) (“[I]f a text contains truly irreconcilable provisions . . . 

and they have been simultaneously adopted, neither provision should be given 

effect.”). 

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 EPA has not yet determined what weight to give the Senate amendment; 

whether or how to reconcile it with the House amendment; or if reconciliation is even 

necessary. Intervenors suggest that, instead of having the opportunity to proffer its 

conclusions on these issues, EPA must throw its hands in the air and look to either 

Congress to clarify its intentions or the Court to divine them. But separation of 

powers principles instead require that the agency to which Congress has delegated the 

implementation of a statute, and which has extensive expertise in interpreting and 

applying that statute, gets the first crack at answering such questions. 

Conclusion 

The Court should dismiss or deny Murray’s Petition for Review and its Petition 

for an Extraordinary Writ. 

 Respectfully submitted, 

JOHN C. CRUDEN 

 Assistant Attorney General 

 s/ Amanda Shafer Berman 

 AMANDA SHAFER BERMAN 

BRIAN H. LYNK 

 U.S. Department of Justice 

 Environmental Defense Section 

 P.O. Box 7611 

 Washington, D.C. 20044 

 (202) 514-1950 (phone) 

 E mail: amanda.berman@usdoj.gov 

March 9, 2015

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Certificate of Compliance 

Pursuant to Fed. R. App. P. 32(a)(7), I hereby certify that: 

1. This brief complies with the type-volume limitations of Fed. R. App. P. 

32(a)(7)(B) because, as counted by the word count feature of Microsoft Office Word, 

it contains 13,960 words, excluding the parts of the brief exempted by Fed. R. App. P. 

32(a)(7)(B)(iii) and Circuit Rule 32(a)(1); and 

2. This brief complies with the typeface and type style requirements of Fed. R. 

App. P. 32(a)(5) because it was prepared using Microsoft Office Word 2013 in a 

proportionally spaced typeface, Garamond, in 14 pt. font. 

 

 /s/ Amanda Shafer Berman 

Amanda Shafer Berman 

Counsel for Respondent EPA 

Dated: March 9, 2015 

 

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Certificate of Service 

I certify that the Brief of Respondent EPA was electronically filed today with 

the Clerk of the Court for the United States Court of Appeals for the District of 

Columbia Circuit through the Court’s CM/ECF system, and that, pursuant to Circuit 

Rule 31(b), eight paper copies of the brief were delivered to the Court by hand. 

I further certify that a copy of the foregoing Brief of Respondent EPA was 

today served electronically through the court’s CM/ECF system on all registered 

counsel for Petitioners, Intervenors and Amici. 

 

/s/ Amanda Shafer Berman 

Counsel for Respondent 

 

Dated: March 9, 2015 

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Attachment A 

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United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

____________

No. 12-1248 September Term, 2012

EPA-77FR22392

Filed On: December 13, 2012

Las Brisas Energy Center, LLC,

Petitioner

v.

Environmental Protection Agency and Lisa

Perez Jackson,

Respondents

------------------------------

Conservation Law Foundation, et al.,

Intervenors

------------------------------

Consolidated with 12-1251, 12-1252, 12-1253,

12-1254, 12-1257

BEFORE: Rogers, Garland, and Brown, Circuit Judges

O R D E R

Upon consideration of the motions to dismiss, the oppositions thereto, and the

replies; and the motion for declaratory relief, the oppositions thereto, and the replies, it

is

ORDERED that the motions to dismiss be granted. The challenged proposed

rule is not final agency action subject to judicial review. See 42 U.S.C. § 7607(b)(1);

Bennett v. Spear, 520 U.S. 154, 177-78 (1997) (holding that final agency action “must

mark the consummation of the agency’s decisionmaking process” and “must be one by

which rights or obligations have been determined, or from which legal consequences

will flow”) (internal quotations omitted). It is

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United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

____________

No. 12-1248 September Term, 2012

FURTHER ORDERED that the motion for declaratory relief be dismissed as

moot.

Pursuant to D.C. Circuit Rule 36, this disposition will not be published. The Clerk

is directed to withhold issuance of the mandate herein until seven days after resolution

of any timely petition for rehearing or petition for rehearing en banc. See Fed. R. App.

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

Per Curiam

Page 2

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ORAL ARGUMENT SCHEDULED FOR APRIL 16, 2015

No. 14-1112 & No. 14-1151

IN THE UNITED STATES COURT OF APPEALS

FOR THE DISTRICT OF COLUMBIA CIRCUIT

IN RE: MURRI3Y ENERGY CORPORATION,

Petitioner.

MURRAY ENERGY CORPORATION,

Petitioner,

v.

UNITED STATES ENVIRONMENTAL PROTECTION AGENCY, ET AL.

Respondents.

On Petition for Writ of Prohibition &Petition for Review

RESPONDENTS' FINAL STATUTORY ADDENDUM

Of Counsel:

Elliott Zenick

Scott Jordan

United States Environmental

Protection Agency

Office of General Counsel

1200 Pennsylvania Ave., N.W.

Washington, D.C. 20460

JOHN C. CRUDEN

Assistant Attorney General

s / Amanda Shafer Berman

AMANDA SHAFER BERMAN

BRIAN H. LYNK

U.S. Department of Justice

Environmental Defense Section

P.O. Box 7611

Washington, D.C. 20044

(202) 514-1950 (phone)

E mail: amanda.berman@usdoj.gov

March 9, 2015

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TABLE OF CONTENTS

Pub. L. No. 101-549, ~~ 108(g) & 302(a), 104 Stat. 2399, 2467 & 2574 (1990) ... ADD1

1 U.S.C. ~ 112 ................................................................................................................ ADD5

1 U.S.C. ~ 204(a) .......................................................................................................... ADD6

28 U.S.C. ~ 1651(a) ....................................................................................................... ADD7

42U.S.C. ~ 7401(b) ....................................................................................................... ADD8

42 U.S.C. ~ 7408(a) ....................................................................................................... ADD9

42 U.S.C. ~ 7409(a)-(b) ............................................................................................... ADD10

42 U.S.C. ~ 7411(a)-(b) & (d) .................................................................................... ADD11

42 U.S.C. ~ 7411(d)(1988) .......................................................................................... ADD15

42 U.S.C. ~ 7412(a)-(d) & (n) .................................................................................... ADD16

42 U.S.C. ~ 7416 ......................................................................................................... ADD38

42 U.S.C. ~ 7604(a) ..................................................................................................... ADD39

42 U.S.C. ~ 7607(b), (d) & (e) .................................................................................... ADD40

H.R. Rep. No. 101-490, 101St Cong., 2d Sess., 315 (1990) .................................... ADD48

H.R. Rep. No. 101-952, 101St Cong., 2d Sess., at 335-36, 340, 345 & 347 (1990) .. ADD50

S. Rep. No. 101-228, 101St Cong., 1St Sess., at 14 & 133 (1989) ............................ ADD56

Chafee-Baucus Statement of Senate Managers, S. 1630, The Clean Air Act

Amendments of 1990, reprinted in 1 Leg. History at 880 & 885 ......................... ADD59

Riddick's Senate Procedure, S. Doc 101-28 at p. 1481-82 .................................... ADD62

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PUBLIC LAW 101-549—NOV. 15, 1990 144 STAT. 2399

Public Law 101.-549

101st Congress

An Act

To amend the Clean Air Act w provide for attainment and maintenance of health Nor. 15. 1890 protective national ambient air quality standards, and foe other purposes. {$. 1880]

Be it enacted by the Senate erred House o~ Repr~esentatiuea of the United States of A►nerica in Con~greaa oasembled ~t~uution

TITLE I-PROVISIONS FOR ATTAINMENT

AND MAINTENANCE OF NATIONAL AMBIENT AIR QUALITY STANDARDS

Sec. 101. General plegning nsquirementa.

Sec. 11YL. General provisions for aonatteinment areas.

9cc. IOS. Additional provisions For amore nonattainment areas.

Sec. 104. Additional proviaiona far carbon monoxide nonatt,ainment areas.

Sec. 1Q5. Additional provisions for perticuLte matter lPM-101 nanaLtainmeat sense.

Sec. LO6. Additiottal pruv fr►r areas designated nonattainment for e~ifur o~ridee. eitrogea dioxide. and laid.

Sec. 107. ProviNonQ reLted to Indian tribes.

$ee. 108. Miscellaneous provisions.

9er, to8, Intae~tute pollution.

Sec. 110, Conformi~ amendments.

S'ec. 111. Tratuportation syseem itnpec4+ on clean sir.

4EC, lei. GEI~fEERAL PLANNING ~EQIJlItEMS1VT8. Interla1 Axs~► Dss~ax~~r[oxs.—Section 107(d) of the Clean Air Act (42 ~e1~

U.9.G. 740'C(d)l is amended bo read as follows:

"fl) D~raxwTToxa asxsawiax.—

~~IA) SUBM18810N BY GOVERNORS OF INITIAL D89I~NATIONB

FOLLOWING PBOII~LJL4ATfGN Ole NBW 08 BEVIB~ STANDARD6.—

By such date as the Administrator may reenonably require, but not Later than 1 year niter promulgation of a new or revised national ambient air quality standard for any

pollutant under section 109, the Governor of each State shall (and at any other time the Governor of a State deems

appropriate the Governor mayl sabmit to the Adminlstrator stint of alt areas (or portions thereofl in the $fate,

designs►ting as—

"ti) nonattainment, any area that dcea not meet for

that contributes to ambient air quality is a nearby area

that does not meetl the national primary or secondary

ambient sir quality standard for the pollutant,

"till attainment, any area (other than an area identified in ctaaee tii) that meets the national primary or secondary ambient air quality standard for the pollutant, or

"Iiii► unclassifiable, any area that cannot be classified

on the basis of available information as meeting or not

~r~~:~so - po - i ~s~s~

AUTHENTIGAT2~

U.5. GWERNMCNT

INf'ORMATION

CPO

ADD1

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PUBLIC UAW 101-549—NOV. 15, 1990 104 STAT. 2465

exterior boundaries of the reservation or other areas within the

tribe's jurisdiction; and

"(C) the Indian tribe is reasonably expected to be capable, in

the judgment of the Administrator, of carrying out the functions to be exercised in a manner consistent with the ternvs and

purposes of this Act and all applicable regulations.

"(3) The Administrator may promulgate regulations which eetab~

lish the elements of tribal implementation plans and procedures for

approval or disapproval of tribal implementation plans and portions

thereof.

"(4) In any case in which the Administrator determines that the

treatment of Indian tribes as identical to States is inappropriate ar

administratively infeasible, the Administrator may provide, by r~gulation, other mearsa by which the Administrator will directly administer such provisions eo as to achieve the appropriate purpose.

"(5) Until such time ae the Administrator promulgates regulations

pursuant to this subsection, the Administrator may continue to

provide f nancial assistance to eligible Indian tribes under section

105.".

3EC. 108. MI9CELLANEOU3 GUIDANCE.

(A) TBANBPOgTAT10N PI.ANN[NG GUIDANCE.—SeCt10A 108(e) of the

Clean Air Act is amended by deleting the first sentence and insert- a~~ use 7ao8. ing in lieu thereof the fallowing: "The Administrator shall, aRer

consultation with the Secretary of Transportation, and after providing public notice and opportunity for comment, and with State and

local officials, within. nine months after enactment of the Clean Air

Act Amendments of 1989 and periodically thereafter as necessary to

maintain a continuous transportation-air quality planning process,

update the June 1978 Transportation-Air Quality Planning Guidelinee and publish guidance on the development and implementation

of transportation and other measures nec~saary to demonstrate and

maintain attainment of national ambient air quality standards.".

(~1) TRANBPORTATlOPI CONTROL MBABU8S8.—S@CtiOII 10&fl(1) of the

Clean Air Act is amended by deleting all after "(fl" tEuough the end

of subparagraph (A) and inserting in lieu thereof the following:

"(1) The Adaunistrator shall publish and make availab}e to appro- Pubtic

priate Federal, State, sad local environmental and transportation information.

agencies not later than one year after enactment of the Clean Air

Act Amendments of 1990, and from tune to time thereafter—

"(A) information prepared, as appropriate, in consultation

with the Secretary of Transportation, and after providing public

notice and opportunity for comment, regarding the formulation

and emission reduction potential of transportation control

measures related to criteria pollutants and their precursors,

including, but not limited to—

"(i) programs for improved public transit;

"(u) restriction of certain roads or lanes to, or conatruction of such roads or lanes for use by, pa$eenger buses or

high occupancy vehicles;

"(ui) employer-based transportation management plans,

including incentives;

"Eiv) trip-reduction ordinances;

"(v) traffic flow improvement programs that achieve

emission reductions;

F.~~7!~

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PUBLIC LAW 101-549—NOV. 15, 199(} 104 STAT. 2467

need for revision, or implementation of any plan or plan revision

required under this Act.' .

(el New Souses Szerrnwane or Ps~roRs~wxc$.—(1) Section

111(bX1xB) of the Clean Air Act (42 U.S.C. 7411(bx1XB)) ie amended

ae follows:

(A) Strike "120 days" and insert "one year".

(B) Strike "9D days" and insert "one year".

(C} Strike "four years" and insert "8 years".

(D) Immediately before the sentence beginning "Standards of

performance or revisions thereof' insert 'Notwithstanding the

requirements of the previous sentence, the Administrator need

not review any such standard if ttse Administrator determines

that such review is not appropriate in light of readily available

information on the efficacy of such standard.".

(E) Add the following at the end: "When implementation and

enforcement of any requirement of this Act indicate that emis- eion limitations and percent reductions beyond thaee reQuired

by the etandardss promulgated under this section are achieved in practice, the Administrator shall, when revising standards

promulgated under this section, consider the emulsion limita- tions and percent reductions achieved in practice.".

(21 Section 121('t1(1} of the Clean Air Act (42 U.S.C. 7411(fkl)) is

amended to read as follows:

"(1) For those categories of major stationary sources that the ~s~+lauon6.

Administrator listed under subsection (bx1xA) before the date of the

enactment of the Clean Air Act Amendments of 1990 and for which regulations had not been proposed by the Administrator by such date, the Administrator shal!—

"(A) propose regulations establishing standards of performance for at least 25 percent of such categories of sources within

2 years after the date of the enactment of the Clean Air Act

Amendments of 1990;

"B) propose regulations establishing standards of performance for at lea$t b0 percent of such categories of sources within

4 years after the date of the enactment of the Clean Air Act

Amendments of 1990; and

"!C) propose regulations for the remaining categories of

sources within 6 years after the date of the enactment of the. Clean Air Act Amendments of 1990.".

(fl S~vtxcs Ci.nus$.—Section 111(ax3) of the Clean Air Act (42 U.S.C. 7411tfl(2)) is amended by adding at the end: "Nothing in title 3I of the Act relating to nonroad engines shall be construed to apply

to stationary internal combustion engines.".

(g) Kscv~TTox of E5[ISCING SovxcEs.—Section 111(dl(1l(Al(i) of the Clean Air Act (g2 U.S.C. 7411td1(1xAxi)) is amended by striking

"or 1l2tbX11(A)" and inserting "or emitted from a source category which is regulated under section 112".

Q3) CONSULTATIOTt.-TF1e penultimate sentence of section Ill of the Clean Air Act (42 U.S.C. ?421) is amended Lo read as follows: "The Administrator shall update as necessary the original regale- ~~attona.

tione required and promulgated under this section (as in effect. immediately before the date of the enactment of the Clean Air Act Amendments of 1990) to ensure adequate consultation.".

(i) D$i.sow~rtoty.—The second sentence of section 301(axl) of the Clean Air Act (42 U.S.C. ?601(aXl)1 is amended by inserting "subject to section 307(.d)" immediately following "regulations".

ADD3

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104 STAT. 2574 PUBLIC LAW 101-549—NOV. Y5, 1990

and sources subject to the provisions of this section and shall include

aggregate information from the database in each annual report. The report shall include, but not be limited ta—

"(11 astatus report on standard-setting under s~b~ections (d) and (~;

"('Ll information with respect. to compliance with Ruch stand- arda including the costs of compliance experienced by sources in various categories and subcategories;

"l3) development and implementation of the national urban air toxica program; and

"(4) recommendations of the Chemical Safety and Hazard Investigation Board with respect to the prevention and mitigA- tion of accidental releases.".

3EC. 302. CONFORMING AMENDMF~'T5.

42 USC' 74IL ~a) Section 111(dk1? of the Clean Air Act is amended by striking "112(bx1KA)" and inserting in lieu thereof "112fb)".

tb) Section 111 of the Ctean Air Act is amended by striking paragraphs (gX5) and (gX6) and redesignsting the succeeding para- graphs accordingly. Such section is further amended by striking "or section 1 ~'L" in paragraph (gM5) as redesignated in the preceding

sentence.

a2 Usc 9ai•~. (c) Section 114(a) of the Glean Air Act is amended by striking "or" after "r~ection 111," and by inserting ", or any regulation of solid

a2 waste combustion under section 129," after "section 112". USC pats. ~d) Section 11$(b) of the Clean Air Act is amended by striking "I1'L(c)" and inserting in lieu thereof "112(1)(4)". ~2 USC'tso2. gel Section 342(kl of the Clean Air Act is amended 5y adding before the period at the end thereof ", and any design, equipment, work practice or operational standard promulgated under this Act.". 42 usC 76u~t, (fl Section 304(b} of the Clean Air Act. is amended by strikin~

42 

"112(cxl KB)" and inserting in lieu thereof "lI'l(ix3XAl or (fl(4) '. USC iGo7. OgSection 3U7(bXl) is amended by striking "112(e)" and inserting in lieu thereof "112".

(h) Section 307(dXl} is amended by inserting—

"(D) the promulgation of any requirement for solid waste combustion under section 129,"

after subparagraph (Li and redesignating the succeeding subpara- grapha accordingly.

4'L USC 741.2 3F.1'. 303. RISK AEi9F.9t'~MF.,'YT ANb MANAGEMENT COMMISSInTV.

note. tg) EgTABLI3HMENT.—Th~TC 18 hereby established a Risk Assessment and Man ement Commission (hereafter referred to in this section as the `~mmission"), which shell commence proceedings

not later than 18 months after the date of enactment of the Clean Air Act Amendments of I99Q and which shall mgke a full investiga- tion of the policy implications and appropriate uses of risk asse~sment and risk management in regulatory programs under various Federal laws to prevent cancer and other chronic human health

effects which may result from exgoeure to hazardous substances. tb} CxAxcE.—The Commission shall coneider—

(1)the report of the National Academy of Sciences authorized

by section 112to? of the Clean Air Act, the use and limitations of risk assessment in establishing emission or effluent standards, ambient standards, exposure standards, acceptable concentration levels, tolerances or other environmental criteria for hazardous substances that present a risk of carcinogenic effects

ADD4

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1 U.S.C. ~ 112. Statutes at Large; contents; admissibility in evidence

The Archivist of the United States shall cause to be compiled, edited, indexed, and

published, the United States Statutes at Laxge, which shall contain all the laws and

concurrent resolutions enacted during each regular session of Congress; all

proclamations by the President in the numbered series issued since the date of the

adjournment of the regulax session of Congress next preceding; and also any

amendments to the Constitution of the United States proposed or ratified pursuant to

article V thereof since that date, together with the certificate of the Archivist of the

United States issued in compliance with the provision contained in section 106b of

this title. In the event of an extra session of Congress, the Archivist of the United

States shall cause all the laws and concurrent resolutions enacted during said extra

session to be consolidated with, and published as part of, the contents of the volume

for the next regular session. The United States Statutes at Large shall be legal evidence

of laws, concurrent resolutions, treaties, international agreements other than treaties,

proclamations by the President, and proposed or ratified amendments to the

Constitution of the United States therein contained, in all the courts of the United

States, the several States, and the Territories and insular possessions of the United

States.

***

ADD5

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1 U.S.C. ~ 204. Codes and Supplements as evidence of the Laws of United

States and District of Columbia; citation Codes and Supplements

(a) United States Code.--The matter set forth in the edition of the Code of Laws of

the United States current at any time shall, together with the then current supplement,

if any, establish prima facie the laws of the United States, general and permanent in

their nature, in force on the day preceding the commencement of the session

following the last session the legislation of which is included: Provided, however, That

whenever tides of such Code shall have been enacted into positive law the text

thereof shall be legal evidence of the laws therein contained, in all the courts of the

United States, the several States, and the Territories and insulax possessions of the

United States.

***

ADD6

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28 U.S.C. ~ 1651. Writs

(a) The Supreme Court and all courts established by Act of Congress may issue all

writs necessary or appropriate in aid of their respective jurisdictions and agreeable

to the usages and principles of law.

***

ADD7

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42 U.S.C. ~ 7401. Congressional findings and declaration of purpose

***

(b) Declaration. The purposes of this subchapter are—

(1) to protect and enhance the quality of the Nation's air resources so as to promote

the public health and welfare and the productive capacity of its population;

(2) to initiate and accelerate a national reseazch and development program to achieve

the prevention and control of air pollution;

(3) to provide technical and financial assistance to State and local governments in

connection with the development and execution of their aix pollution prevention and

control programs; and

(4) to encourage and assist the development and operation of regional air pollution

prevention and control programs.

***

~ ~:

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42 U.S.C. ~ 7408. Air quality criteria and control techniques

(a) Air pollutant list; publication and revision by Administrator; issuance of air quality

criteria for air pollutants.

(1) For the purpose of establishing national primary and secondary ambient air

quality standards, the Administrator shall within 30 days after the date of enactment

of the Clean Air Amendments of 1970 [enacted Dec. 31, 1970] publish, and shall

from time to time thereafter revise, a list which includes each air pollutant--

(A) emissions of which, in his judgment, cause or contribute to air pollution which

may reasonably be anticipated to endanger public health or welfare;

(B) the presence of which in the ambient atr results from numerous or diverse mobile

or stationary sources; and

(C} for which air quality criteria had not been issued before the date of enactment of

the Clean Air Amendments of 1970 [enacted Dec. 31,1970), but for which he plans

to issue air quality criteria under this section.

(2) The Administrator shall issue air quality criteria for an air pollutant within 12

months after he has included such pollutant in a list under paragraph (1). Air quality

criteria for an air pollutant shall accurately reflect the latest scientific knowledge useful

in indicating the kind and extent of all identifiable effects on public health or welfare

which may be expected from the presence of such pollutant in the ambient air, in

varying quantities. The criteria for an air pollutant, to the extent practicable, shall

include information on--

(A) those variable factors (including atmospheric conditions) which of themselves or

in combination with other factors may alter the effects on public health or welfare of

such air pollutant:

(B) the types of air pollutants which, when present in the atmosphere, may interact

with such pollutant to produce an adverse effect on public health or welfare; and

(G~ any known or anticipated adverse effects on welfare.

***

ADD9

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42 U.S.C. ~ 7409. National primary and secondary ambient air quality

standards

(a) Promulgation.

(1) The Administrator--

(A) within 30 days after the date of enactment of the Clean Air Amendments of 1970

[enacted Dec. 31,1970], shall publish proposed regulations prescribing a national

prinnary ambient air quality standard and a national secondary ambient air quality

standard for each air pollutant for which aix quality criteria have been issued prior to

such date of enactment; and

(B) after a reasonable time for interested persons to submit written comments

thereon (but no later than 90 days after the initial publication of such proposed

standards) shall be regulation promulgate such proposed national primary and

secondary ambient air quality standards with such modifications as he deems

appropriate.

(2) With respect to any air pollutant for which air quality criteria are issued after the

date of enactment of the Clean Air Amendments of 1970 [enacted Dec. 31, 1970), the

Administrator shall publish, simultaneously with the issuance of such criteria. and

information, proposed national primary and secondary ambient air quality standards

for any such pollutant. The procedure provided for in paragraph (1)(B) of this

subsection shall apply to the promulgation of such standards.

(b) Protection o£ public health and welfare.

(1) National primary ambient air quality standards, prescribed under subsection (a}

shall be ambient air quality standards the attainment and maintenance of which in the

judgment of the Administrator, based on such criteria and allowing an adequate

margin of safety, are requisite to protect the public health. Such primary standards

may be revised in the same manner as promulgated.

(2) Any national secondary ambient air quality standard prescribed under subsection

(a) shall specify a level of air quality the attainment and maintenance of which in the

judgment of the Administrator, based on such criteria, is requisite to protect the

public welfare from any known or anticipated adverse effects associated with the

presence of such air pollutant in the ambient air. Such secondary standards maybe

revised in the same manner as promulgated.

***

ADD10

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42 U.S.C. ~ 7411. Standards of performance for new stationary sources

(a) Definitions. For purposes of this section:

(1) The term "standard of performance" means a standard for emissions of air

pollutants which reflects the degree of emission limitation aclvevable through the

application of the best system of emission reduction which (taking into account the

cost of achieving such reduction and any nonair quality health and environmental

impact and energy requirements) the Administrator detexrnines has been adequately

demonstrated.

(2) The term "new source" means any stationary source, the construction or

modification of which is commenced after the publication of regulations (or, if earlier,

proposed regulations) prescribing a standard of performance under this section which

will be applicable to such source.

(3) The term "sta.tionary source" means any building, structure, facility, or installation

which emits or may emit any air pollutant. Nothing in tide II of this Act [42 USCS ~~

7621 et seq.] relating to nonroad engines shall be construed to apply to stationary

internal combusrion engines.

(4) The term "modification" means any physical change in, or change in the method

of operation of, a stationary source which increases the amount of any air pollutant

emitted by such source or which results in the emission of any air pollutant not

previously emitted.

(5) The term "owner or operator" means any person who owns, leases, operates,

controls, or supervises a stationary source.

(6) The term "existing source" means any stationary source other than a new source.

(7} The term "technological system o£ continuous emission reduction" means--

(A) a technological process for production or operation by any source which is

inherently low-polluting or nonpolluting, or

(B) a technological system for continuous reduction of the pollution generated by a

source before such pollution is emitted into the ambient air, including precombustion

cleaning or treatment of fuels.

(8) A conversion to coal (A) by reason of an order under section 2(a) of the Energy

Supply and Environmental Coordination Act of 1974 [15 USCS ~ 792(a)] or any

ADD11

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amendment thereto, or any subsequent enactment which supersedes such Act, or (B)

which qualifies under section 113(d) (5) (A) (u) of this Act shall not be deemed to be a

modification for purposes of paragraphs (2) and (4) of this subsection.

(b) List of categories of stationary sources; standards of performance; information on

pollution control techniques; sources owned or operated by United States; particular

systems; revised standards

(1)(A) The Administrator shall, within 90 days after December 31, 1970, publish (and

from time to time thereafter shall revise) a list of categories of stationary sources. He

shall include a category of sources in such list if in his judgment it causes, or

contributes significantly to, air pollution which may reasonably be anticipated to

endanger public health or welfare.

(B) Within one year after the inclusion of a category of stationary sources in a list

under subparagraph (A), the Administrator shall publish proposed regulations,

establishing Federal standards of performance for new sources within such category.

The Administrator shall afford interested persons an opportunity for written

comment on such proposed regulations. After considering such comments, he shall

promulgate, within one year after such publication, such standards with such

modifications as he deems appropriate. The Administrator shall, at least every 8 years,

review and, if appropriate, revise such standards following the procedure required by

this subsection for promulgation of such standards. Notwithstanding the

requirements of the previous sentence, the Administrator need not review any such

standard if the Administrator determines that such review is not appropriate in light

of readily available information on the efficacy of such standard. Standards of

performance or revisions thereof shall become effective upon promulgation. When

implementation and enforcement of any requirement of this chapter indicate that

emission lirrutations and percent reductions beyond those required by the standards

pxomulga.ted under this section are achieved in practice, the Administrator shall, when

revising standards promulgated under this section, consider the emission limitations

and percent reductions achieved in practice.

(2) The Administrator may distinguish among classes, types, and sizes within

categories of new sources for the purpose of establishing such standards.

ADD 12

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(3) The Administrator shall, from time to time, issue information on pollution control

techniques for categories of new sources and air pollutants subject to the provisions

of this section.

(4) The provisions of this section shall apply to any new source owned or operated by

the United States.

(5) Except as otherwise authorized under subsection (h) of this section, nothing in

this section shall be construed to require, or to authorize the Administrator to require,

any new or modified source to install and operate anp particular technological system

of continuous emission reduction to comply with any new source standard of

performance.

(6) The revised standards of performance required by enactment of subsection

(a) (1) (A) (i) and (u) of this section shall be promulgated not later than ane year after

August 7, 1977. Any new or modified fossil fuel fired stationary source which

commences construction prior to the date of publication of the proposed revised

standards shall not be required to comply with such revised standards.

***

(d) Standards of performance for existing sources; remaining useful life of source

(1) The Administrator shall prescribe regulations which shall establish a procedure

similar to that provided by section 7410 of this tide under which each State shall

submit to the Administrator a plan which (A) establishes standards of performance

for any existing source for any air pollutant (i) £or which air quality criteria have not

been issued or which is not included on a list published under section 7408(a) of this

tide or emitted from a source category which is regulated under section 7412 of this

tide but (u) to which a standard of performance under this section would apply if such

existing source were a new source, and (B) provides for the implementation and

enforcement of such standards of performance. Regulations of the Administrator

under this paragraph shall permit the State in applying a standard of performance to

any particular source under a plan submitted under this paragraph to take into

consideration, among other factors, the remaining useful life of the e~cisting source to

which such standard applies.

ADD13

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(2) The Administrator shall have the same authority--

(A) to prescribe a plan for a State in cases where the State fails to submit a satisfactory

plan as he would have under section 7410(c) of this title in the case of failure to

submit an implementation plan, and

(B) to enforce the provisions of such plan in cases where the State fails to enforce

them as he would have under sections 7413 and 7414 of this tide with respect to an

implementation plan.

In promulgating a standaxd of performance under a plan prescribed under this

paragraph, the Administrator shall take into consideration, among other factors,

remaining useful lives of the sources in the category of sources to which such

standard applies.

***

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42 U.S.C. ~ 7411(1988). Statutes at Large; contents; admissibility in evidence

***

(d) Standards of performance for existing sources; remaining useful life of source.

(1) The Administrator shall prescribe regulations which shall establish a procedure

similar to that provided by section 7410 of this title under which each State shall

submit to the Administrator a plan which (A) establishes standards of performance

for anp existing source for any air pollutant (i) for which air quality criteria have not

been issued or which is not included on a list published under section 7408(a) or

7412(b) (1) (A) of this tide but (u) to which a standard of performance under this

section would apply if such exiting source were a new source, and (B) provides for the

implementation and enforcement of such standards of performance. Regulations of

the Administrator under this paragraph shall permit the State in applying a standard of

performance to any particular source under a plan submitted under this paragraph to

take into consideration, among other factors, the remaining useful life of the existing

source to which such standard applies.

***

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42 U.S.C. ~ 7412. Hazardous air pollutants

(a) Definitions

For purposes of this section, except subsection (r) of this section--

(1) Major source

The term "major source" means any stationary source or group of stationary sources

located within a contiguous axea and under common control that emits or has the

potential to emit considering controls, in the aggregate, l0 tons per year or more of

any hazardous air pollutant or 25 tons per year or more of any combination of

hazardous air pollutants. The Administrator may establish a lesser quantity, or in the

case of radionuclides different criteria, for a major source than that specified in the

previous sentence, on the basis of the potency of the air pollutant, persistence,

potential for bioaccumulation, other characteristics of the air pollutant, or other

relevant factors.

(2) Area source

The term "area source" means any stationary source of hazardous air pollutants that is

not a major source. For purposes of this section, the term "area source" shall not

include motor vehicles or nonroad vehicles subject to regulation under subchapter II

of this chapter.

(3) Stationary source

The term "stationary source" shall have the same meaning as such term has under

section 7411(a) of this title.

(4) New source

The term "new source" means a stationary source the construction or reconstruction

of which is commenced after the Administrator first proposes relations under this

section establishing an emission standard applicable to such source.

(5) Modification

The term "modification" means any physical change in, or change in the method of

operation of, a major source which increases the actual emissions of any hazardous air

pollutant emitted by such source by more than a de minimis amount or which results

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in the emission of any hazardous air pollutant not previously emitted by more than a

de minimis amount.

(6) Haza.~dous air pollutant

The term "hazardous air pollutant" means anp air pollutant listed pursuant to

subsection (b) of this section.

(7) Adverse environmental effect

The term "adverse environmental effect" means any significant and widespread

adverse effect, which ma.y reasonably be anticipated, to wildlife, aquatic life, or other

natural resources, including adverse impacts on populations of endangered or

threatened species or significant degradation of environmental quality over broad

areas.

(8) Electric utility steam generating unit

The term "electric utility steam generating unit" means any fossil fuel fired

combustion unit of more than 25 megawatts that serves a generator that produces

electricity for sale. A unit that cogenerates steam and electricity and supplies mope

than one-third of its potential electric output capacity and more than 25 megawatts

electrical output to any utility power distribution system for sale shall be considered

an electric utility steam generating unit.

(9) Owner or operator

The term "owner or operator" means any person who owns, leases, operates,

controls, or supervises a stationary source.

(10) E~usting source

The term "existing source" means any stationary source other than a new source.

(11) Carcinogenic effect

Unless revised, the term "carcinogenic effect" shall have the meaning provided by the

Administrator under Guidelines for Carcinogenic Risk Assessment as of the date of

enactment. Any revisions in the existing Guidelines shall be subject to notice and

opportunity for comment.

(b) List of pollutants

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(1) Initial list

The Congress establishes for purposes of this section a list of hazardous air pollutants

as follows:

CAS Chemical name number

75070 Acetaldehyde

60355 Acetamide

75058 Acetonitrile

98862 Acetophenone

53963 2-Acetylaminofluorene

107028 Acrolein

79061 Acrylamide

79107 Acrylic acid

107131 Acrylonitrile

107051 Allyl chloride

92671 4-Aminobiphenyl

62533 Aniline

90040 o-Anisidine

1332214 Asbestos

71432 Benzene (including benzene from gasoline)

92875 Benzidine

98077 Benzotrichloride

100447 Benzyl chloride

92524 Biphenyl

117817 Bis(2-ethylhexyl)phthalate (DEHP)

542881 Bis(chloromethyl)ether

75252 Bromoform

106990 1,3-Butadiene

156627 Calcium cyanamide

105602 Caprolactam

133062 Captan

63252 Carbaryl

75150 Carbon disulfide

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56235 Carbon tetrachloride

463581 Carbonyl sulfide

120809 Catechol

133904 Chloramben

57749 Chlordane

7782505 Chlorine

79118 Chloroacetic acid

532274 2-Chloroacetophenone

108907 Chlorobenzene

510156 Chlorobenzilate

67663 Chloroform

107302 Chloromethyl methyl ether

126998 Chloroprene

1319773 Cresols/Cresylic acid (isomers and mixture)

95487 o-Cresol

108394 m-Cresol

106445 p-Cresol

98828 Cumene

94757 2,4D, salts and esters

3547044 DDE

334883 Diazomethane

132649 Dibenzofurans

96128 1,2-Dibromo-3-chloropropane

84742 Dibutylphthalate

106467 1,4-Dichlorobenzene(p)

91941 3,3-Dichlorobenzidene

111444 Dichloroethyl ether (Bis(2-chloroethyl)ether)

542756 1,3-Dichloroprop ene

62737 Dichlorvos

111422 Diethanolamine

121697 N,N-Diethyl aniline (N,N-Dimethylaniline)

64675 Diethyl sulfate

119904 3,3-Dimethoxybenzidine

60117 Dimethyl aminoazobenzene

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119937 3,3'-Dimethyl benzidine

79447 Dimethyl carbamoyl chloride

68122 Dimethyl formamide

57147 1,1-Dimethyl hydrazine

131113 Dimethyl phthalate

77781 Dimethyl sulfate

534521 4,6-Dinitro-o-cresol, and salts

51285 2,4-Dinitrophenol

121142 2,4-Dinitrotoluene

123911 1,4-Dioxane (1,4-Diethyleneoxide)

122667 1,2-Diphenylhydrazine

106898 Epichlorohydrin (1-Chloro-2,3-epoxypropane)

106887 1,2-Epo~rybutane

140885 Ethyl acrylate

100414 Ethyl benzene

51796 Ethyl caxbamate (Urethane)

75003 Ethyl chloride (Chloroethane)

106934 Ethylene dibromide (Dibromoethane)

107062 Ethylene dichloride (1,2-Dichloroethane)

107211 Ethylene glycol

151 S64 Ethylene imine (Aziridine)

75218 Ethylene o~ude

96457 Ethylene thiourea

75343 Ethylidene dichloride (1,1-Dichloroethane)

50000 Formaldehyde

76448 Heptachlor

118741 Hexachlorobenzene

87683 Hexachlorobuta.diene

77474 Hexachlorocyclopenta.diene

67721 Hexachloroethane

822060 Hexamethylene-l,6-diisocyanate

680319 Hexamethylphosphoramide

110543 Hexane

302012 Hydrazine

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7647010 Hydrochloric acid

7664393 Hydrogen fluoride (Hydrofluoric acid)

123319 Hydroquinone

78591 Isophorone

58899 Lindane (all isomers)

108316 Malefic anhydride

67561 Methanol

72435 Methoxychlor

74839 Methyl bromide (Bromomethane)

74873 Methyl chloride (Chloromethane)

71556 Methyl chloroform (1,1,1-Trichloroethane)

78933 Methyl ethyl ketone (2-Butanone)

60344 Methyl hydrazine

74884 Methyl iodide (Iodomethane)

108101 Methyl isobutyl ketone (Hexone)

624839 Methyl isocpanate

80626 Methyl methacrylate

1634044 Methyl tert butyl ether

101144 4,4-Methylene bis(2-chloroaniline)

75092 Methylene chloride (Dichloromethane)

101688 Methylene Biphenyl diisocyanate (MD~

101779 4,4'-Methylenedia.niline

91203 Naphthalene

98953 Nitrobenzene

92933 4-Nitrobiphenyl

100027 4-Nitrophenol

79469 2-Nitropropane

684935 N-Nitroso-N-methylurea

62759 N-Nitrosodimethylamine

59892 N-Nitrosomorpholine

56382 Parathion

82688 Pentachloronitrobenzene (Quintobenzene)

87865 Pentachlorophenol

108952 Phenol

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106503 p-Phenylenediamine

75445 Phosgene

7803512 Phosphene

7723140 Phosphorus

85449 Phthalic anhydride

1336363 Polychlorinated biphenyls (Aroclors)

1120714 1,3-Propane sultone

57578 beta-Propiolactone

123386 Propionaldehyde

114261 Propoxur (Baygon)

78875 Propylene dichloride (1,2-Dichloropropane)

75569 Propylene oxide

75558 1,2-Propylenimine (2-Methyl aziridine)

91225 Quinoline

106514 Quinone

100425 Styrene

96093 Styrene oxide

1746016 2,3,7,8-Tetrachlorodibenzo-p-dioxin

79345 1,1,2,2-Tetrachloroethane

127184 Tetrachloroethylene (Perchloroethylene)

7550450 Titanium tetrachloride

108883 Toluene

95807 2,4-Toluene diamine

584849 2,4-Toluene diisocyanate

95534 o-Toluidine

8001352 Toxaphene (chlorinated camphene)

120821 1,2,4-Trichlorobenzene

79005 1,1,2-Trichlo roethane

79016 Trichloroethylene

95954 2,4,5-Trichlorophenol

88062 2,4,6-Trichlorophenol

121448 Triethylamine

1582098 Trifluralin

540841 2,2,4-Trimethylpentane

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108054 Vinyl acetate

593602 Vinyl bromide

75014 Vinyl chloride

75354 Vinylidene chloride (1,1-Dichloroethylene)

1330207 Xylenes (isomers and mixture}

95476 o-Xylenes

108383 m-Xylenes

106423 p-Xylenes

0 Antimony Compounds

0 Arsenic Compounds (inorganic including axsine)

0 Beryllium Compounds

0 Cadmium Compounds

0 Chromium Compounds

0 Cobalt Compounds

0 Coke Oven Emissions

0 Cyanide Compounds)

0 Glycol ethers2

0 Lead Compounds

0 Manganese Compounds

0 Mercury Compounds

0 Fine mineral fibers3

0 Nickel Compounds

0 Polycylic Organic Matter4

0 Radionuclides (including xadon)5

0 Selenium Compounds

NOTE: For all listings above which contain the word "compounds" and for glycol

ethers, the following applies: Unless otherwise specified, these listings are defined as

including any unique chemical substance that contains the named chemical (i.e.,

antimony, arsenic, etc.) as part of that chemical's infrastructure.

1 X'CN where X = H' or any other group where a formal dissociation may occur. For

example KCN or Ca(CI~ 2

2 Includes mono- and di- ethers of ethylene glycol, diethylene glycol, and triethylene

glycol R-(OCH2CHz) n-OR' where

n= 1, 2,or3

R =alkyl or aryl groups

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R' = R, H, or groups which, when removed, yield glycol ethers with the structure: R-

(OCHzCI~ „-OH. Polymers axe excluded from the glycol category.

3 Includes mineral fiber emissions from facilities manufacturing or processing glass,

rock, or slag fibers (or other mineral derived fibers) of average diameter 1

micrometer or less.

4Includes organic compounds with more than one benzene ring, and which have a

boiling point greater than or equal to 100°C.

5 A type of atom which spontaneously undergoes radioactive decay.

(2) Revision of the list

The Administrator shall periodically review the list established by this subsection and

publish the results thereof and, where appropriate, revise such list by rule, adding

pollutants which present, or may present, through inhalation or other routes of

exposure, a threat of adverse human health effects (including, but not limited to,

substances which are known to be, or may reasonably be anticipated to be,

carcinogenic, mutagenic, teratogenic, neurotoxic, which cause repzoductive

dysfunction, or which are acutely or chronically toxic) or adverse environmental

effects whether through ambient concentrations, bioaccumulation, deposition, oz

otherwise, but not including releases subject to regulation under subsection (r) of this

section as a result of emissions to the air. No air pollutant which is listed under

section 7408(a) of this title may be added to the list under this section, except that the

prohibition of this sentence shall not apply to any pollutant which independently

meets the listing criteria of this pazagraph and is a precursor to a pollutant which is

listed under section 7408(a) of this tide or to any pollutant which is in a class of

pollutants listed under such section. No substance, practice, process or activity

regulated under subchapter VI of this chapter shall be subject to regulation under this

section solely due to its adverse effects on the environment.

(3) Petitions to modify the list

(A) Beginning at any time after 6 months after November 15, 1990, any person may

petition the Administrator to modify the list of hazardous air pollutants under this

subsection by adding or deleting a substance or, in case o£ listed pollutants without

CAS numbers (other than coke oven emissions, mineral fibers, or polycyclic organic

matter) removing certain unique substances. Within 18 months after receipt of a

petition, the Administrator shall either grant or deny the petition by publishing a

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written explanation of the reasons for the Administrator's decision. Any such petition

shall include a showing by the petitioner that there is adequate data. on the health or

environmental defects' of the pollutant or other evidence adequate to support the

petition. The Administrator may not deny a petition solely on the basis of inadequate

resources or time for review.

(B) The Administrator shall add a substance to the list upon a showing by the

petitioner or on the Administrator's own deternunation that the substance is an air

pollutant and that emissions, ambient concentrations, bioaccumulation or deposition

of the substance are known to cause or may reasonably be anticipated to cause

adverse effects to human health or adverse environmental effects.

(C) The Administrator shall delete a substance from the list upon a showing by the

petitioner or on the Administrator's own determination that there is adequate data on

the health and environmental effects of the substance to deternune that emissions,

ambient concentrations, bioaccumulation or deposition of the substance may not

reasonably be anticipated to cause any adverse effects to the human health or adverse

environmental effects.

(D) The Administrator shall delete one or more unique chemical substances that

contain a listed hazardous air pollutant not having a CAS number (other than coke

oven emissions, mineral fibers, or polycyclic organic matter) upon a showing by the

petitioner or on the Administrator's own determination that such unique chemical

substances that contain the named chemical of such listed hazardous air pollutant

meet the deletion requirements of subparagraph (C). The Administrator must grant or

deny a deletion petition prior to promulgating any emission standards pursuant to

subsection (d) of this section applicable to any source category or subcategory of a

listed hazardous air pollutant without a CAS number listed under subsection (b) of

this section for which a deletion petition has been filed within 12 months of

November 15, 1990.

(4) Further information

If the Administrator determines that information on the health or environmental

effects of a substance is not sufficient to make a determination required by this

subsection, the Administrator may use any authority available to the Administrator to

acquire such information.

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(5) Test methods

The Administrator may establish, by rule, test measures and other analytic procedures

for monitoring and measuring emissions, ambient concentrations, deposition, and

bioaccumulation of hazardous air pollutants.

(6) Prevention of significant deterioration

The provisions of paxt C of this subchapter (prevention of significant deterioration)

shall not apply to pollutants listed under this section.

(7) Lead

The Administrator may not list elemental lead as a hazardous air pollutant under this

subsection.

(c) List of source categories

(1) In general

Not later than 12 months after November 15, 1990, the Administrator shall publish,

and shall from time to time, but no less often than every 8 years, revise, if appropriate,

in response to public comment or new information, a list of all categories and

subcategories of major sources and area sources (listed under paragraph (3)) of the air

pollutants listed pursuant to subsection (b) of this secrion. To the extent practicable,

the categories and subcategories listed under this subsection shall be consistent with

the list of source categories established pursuant to section 7411 of this title and part

C of this subchapter. Nothing in the preceding sentence limits the Administrator's

authority to establish subcategories under this section, as appropriate.

(2) Requirement for emissions standards

For the categories and subcategories the Administrator lists, the Administrator shall

establish emissions standards under subsection (d) of this section, according to the

schedule in this subsection and subsection (e) of this section.

(3) Area sources

The Administrator shall list under this subsection each category or subcategory of area

sources which the Administrator finds presents a threat of adverse effects to human

health or the environment (by such sources individually or in the aggregate)

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warranting regulation under this section. The Administrator shall, not later than 5

years after November 15, 1990, and pursuant to subsection (k)(3)(B) of this section,

list, based on actual or estimated aggregate emissions of a listed pollutant or

pollutants, sufficient categories or subcategories of area sources to ensure that area

sources representing 90 percent of the area source emissions of the 30 hazardous air

pollutants that present the greatest threat to public health in the largest number of

urban areas are subject to regulation under this section. Such regulations shall be

promulgated not later than 10 years after November 15, 1990.

(4) Previously regulated categories

The Administrator may, in the Administrator's discretion, list any category or

subcategory of sources previously regulated under this section as in effect before

November 15,1990.

(5) Additional categories

In addition to those categories and subcategories of sources listed for regulation

pursuant to paragraphs (1) and (3), the Administrator may at any time list additional

categories and subcategories of sources of hazardous air pollutants according to the

same criteria for listing applicable under such paragraphs. In the case of source

categories and subcategories listed after publication of the initial list required under

paragraph (1) or (3), emission standards under subsection (d) of this section for the

category or subcategory shall be promulgated within 10 years after November 15,

1990, or within 2 years after the date on which such category or subcategory is listed,

whichever is later.

(6) Specific pollutants

With respect to alkylated lead compounds, polycyclic organic matter,

hexachlorobenzene, mercury, polychlorinated biphenyls, 2,3,7,8-

tetrachlorodibenzofurans and 2,3,7,8-tetrachlorodibenzo-p-dioxin, the Administrator

shall, not later than 5 years after November 15, 1990, list categories and subcategories

of sources assuring that sources accounting for not less than 90 per centum of the

aggregate emissions of each such pollutant are subject to standards under subsection

(d) (2) or (d) (4) of this section. Such standards shall be promulgated not later than 10

years after November 15, 1990. This paragraph shall not be construed to require the

Administrator to promulgate sta.ndaxds for such pollutants emitted by electric utility

steam generating units.

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(7) Research facilities

The Administrator shall establish a sepaxate category covering reseaxch or laboratory

facilities, as necessary to assure the equitable treatment of such facilities. For purposes

of this section, "research or laboratory facility" means any stationary source whose

primary purpose is to conduct research and development into new processes and

products, where such source is operated under the close supervision of technically

trained personnel and is not engaged in the manufacture of products for commercial

sale in commerce, except in a de minimis manner.

(8} Boat manufacturing

When establishing emissions standards for styrene, the Administrator shall list boat

manufacturing as a separate subcategory unless the Administrator finds that such

listing would be inconsistent with the goals and requirements of this chapter.

(9) Deletions from the list

(A} Where the sole reason. for the inclusion of a source category an the list required

under this subsection is the emission of a unique chemical substance, the

Administrator shall delete the source category from the list if it is appropriate because

of action taken under either subparagraphs (C) ox (D) of subsection (b)(3) of this

section.

(B) The Administrator may delete any source category £rom the list under this

subsection, on petition of any person or on the Administrator's own motion,

whenever the Administrator makes the following determination or determinations, as

applicable:

(i) In the case of hazardous air pollutants emitted by sources in the category that may

result in cancer in humans, a determination that no source in the category (or group

of sources in the case of area sources) emits such hazardous air pollutants in

quantities which may cause a lifetime risk of cancer greater than one in one million to

the individual in the population who is most exposed to emissions of such pollutants

from the source (or group of sources in the case of area sources).

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(u) In the case of hazardous air pollutants that may result in adverse health effects in

humans other than cancer or adverse environmental effects, a determination that

emissions from no source in the categoxy or subcategory concerned (or group of

sources in the case of axea sources) exceed a level which is adequate to protect public

health with an ample maxgin of safety and no adverse environmental effect will result

from emissions from any source (or from a group of sources in the case of area

sources).

The Administrator shall grant or deny a petition under this paragraph within 1 year

after the perition is filed.

(d) Emission standards

(1) In general

The Administrator shall promulgate regulations establishing emission standards for

each category or subcategory of major sources and area sources of hazardous air

pollutants listed for regulation pursuant to subsection (c) of this section in accordance

with the schedules provided in subsections (c) and (e) of this section. The

Administrator may distinguish among classes, types, and sizes of sources within a

category ox subcategory in establishing such standards except that, there shall be no

delay in the compliance date for any standard applicable to any source under

subsection (i) of this section as the result of the authority provided by this sentence.

(2) Standards and methods

Emissions standards promulgated under this subsection and applicable to new or

existing sources of hazardous air pollutants shall require the ma~mum degree of

reduction in emissions of the hazardous air pollutants subject to this section

(including a prohibition on such emissions, where achievable) that the Administrator,

taking into consideration the cost of achieving such emission reduction, and any nonair quality health and environmental impacts and energy requirements, determines is

achievable for new or e~sting sources in the category or subcategory to which such

emission standard applies, through application of measures, processes, methods,

systems or techniques including, but not limited to, measures which--

(A) reduce the volume of, or eliminate emissions of, such pollutants through process

changes, substitution of materials or other modifications,

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(B) enclose systems or processes to eliminate emissions,

(C) collect, capture or treat such pollutants when released from a process, stack,

storage ox fugitive emissions point,

(D) are design, equipment, work practice, or operational standards (including

requirements for operator training or certification) as provided in subsection (h) of

this section, or

(E) are a combination of the above.

None of the measures described in subparagraphs (A) through (D) shall, consistent

with the provisions of section 7414(c) of this title, in any wap compromise any United

States patent or United States trademark right, or any confidential business

information, or any trade secret or any other intellectual property right

(3) New and existing sources

The maximum degree of reduction in emissions that is deemed achievable for new

sources in a category or subcategory shall not be less stringent than the emission

control that is achieved in practice by the best controlled similar source, as determined

by the Administrator. Emission standards promulgated under this subsection for

existing sources in a category or subcategory maq be less stringent than standards for

new sources in the same category or subcategory but shall not be less stringent, and

may be more stringent than--

(A) the average emission limitation achieved by the best performing 12 percent of the

existing sources (for which the Administrator has emissions information), excluding

those sources that have, within 18 months before the emission standard is proposed

or within 30 months before such sta.ndaxd is promulgated, whichever is later, first

achieved a level of emission rate or emission reduction which complies, or would

comply if the source is not subject to such standard, with the lowest achievable

emission rate (as defined by section 7501 of this title) applicable to the source

category and prevailing at the time, in the category or subcategory for categories and

subcategories with 30 or more sources, or

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(B) the average emission limitation achieved by the best performing 5 sources (for

which the Administrator has or could reasonably obtain emissions information) in the

category or subcategory for categories or subcategories with fewer than 30 sources.

(4) Health threshold

With respect to pollutants for which a health threshold has been established, the

Administrator may consider such threshold level, with an ample margin of safety,

when establishing emission standards under this subsection.

(5) Alternative standard for area sources

With respect only to categories and subcategories of area sources listed pursuant to

subsection {c) of this section, the Administrator may, in lieu of the authorities

provided in paragraph (2) and subsection (~ of this section, elect to promulgate

standards or requirements applicable to sources in such categories or subcategories

which provide for the use of generally available control technologies or management

practices by such sources to reduce emissions of hazardous air pollutants.

(6) Review and revision

The Administrator shall review, and revise as necessary (taking into account

developments in practices, processes, and control technologies), emission standards

promulgated under this section no less often than every 8 years.

(7) Other requirements preserved

No emission standard or other requirement promulgated under this section shall be

interpreted, construed or applied to diminish or replace the requirements of a more

stringent emission limitation or other applicable requirement established pursuant to

section 7411 of this tide, part C or D of this subchapter, or other authority of this

chapter or a standard issued under State authority.

(8) Coke ovens

(A) Not later than December 31, 1992, the Administrator shall promulgate regulations

establishing emission standards under paragraphs (2) and (3) of this subsection for

coke oven batteries. In establishing such standards, the Administrator shall evaluate--

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(i) the use of sodium silicate {or equivalent) luting compounds to prevent door leaks,

and other operating practices and technologies for their effectiveness in reducing coke

oven emissions, and their suitability for use on new and existing coke oven batteries,

taking into account costs and reasonable commercial door warranties; and

(u) as a basis for emission standards under this subsection for new coke oven batteries

that begin construction after the date of proposal of such standards, the Jewell design

Thompson non-recovery coke oven batteries and other non-recovery coke oven

technologies, and other appropriate emission control and coke production

technologies, as to their effectiveness in reducing coke oven emissions and their

capability for production of steel quality coke.

Such regulations shall require at a minimum that coke oven batteries will not exceed 8

per centum leaking doors, 1 per centum leaking lids, 5 per centum leaking offtakes,

and 16 seconds visible emissions per charge, with no exclusion for emissions during

the period after the closing of self-sealing oven doors. Notwithstanding subsection (i)

of this section, the compliance date for such emission standards for existing coke

oven batteries shall be December 31, 1995.

(B) The Administrator shall promulgate work practice regulations under this

subsection for coke oven batteries requiring, as appropriate--

(i) the use of sodium silicate (ox equivalent) luting compounds, if the Administrator

deternunes that use of sodium silicate is an effective means of emissions control and

is achievable, taking into account costs and reasonable commercial warranties for

doors and related equipment; and

(ii) door and jam cleaning practices.

Notwithstanding subsection (i) of this section, the compliance date for such work

practice regulations for coke oven batteries shall be not later than the date 3 years

after November 15, 1990.

(C) For coke oven batteries electing to qualify for an extension of the compliance date

for sta.ndaxds promulgated under subsection (fl of this section in accordance with

subsection (i)(8) of this section, the emission standards under this subsection for coke

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oven batteries shall require that coke oven batteries not exceed 8 per centum leaking

doors, 1 per centum leaking lids, 5 per centum leaking offtakes, and 16 seconds visible

emissions per charge, with no exclusion for emissions during the period after the

closing of self-sealing doors. Notwithstanding subsection (i) of this section, the

compliance date for such emission standards for e~sting coke oven batteries seeking

an extension shall be not later than the date 3 years after November 15, 1990.

(9) Sources licensed by the Nuclear Regulatory Commission

No standard for radionuclide emissions from any category or subcategory of facilities

licensed by the Nuclear Regulatory Commission (or an Agreement State) is required

to be promulgated under this section if the Administrator determines, by rule, and

after consultation with the Nuclear Regulatory Commission, that the regulatory

program established by the Nucleax Regulatory Commission pursuant to the Atomic

Energy Act [42 U.S.C.A. ~ 2011 et seq.] for such category or subcategory provides an

ample margin of safety to protect the public health. Nothing in this subsection shall

preclude or deny the right of any State or political subdivision thereof to adopt or

enfoxce any standard or limitation respecting emissions of radionuclides which is

more stringent than the standard or limitation in effect under section 7411 of this title

or this section.

(10) Effective date

Emission standards or other regulations promulgated under this subsection shall be

effective upon promulgation.

***

(n) Other provisions

(1} Electric utility steam generating units

(A) 'The Administrator shall perform a study of the hazaxds to public health

reasonably anticipated to occur as a result of emissions by electric utility steam

generating units of pollutants listed under subsection (b) of this section after

imposition of the requirements of this chapter. The Administrator shall report the

results of this study to the Congress within 3 years after November 15, 1990. The

Administrator shall develop and describe in the Administrator's report to Congress

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alternative control strategies for emissions which may warrant regulation under this

section. The Administrator shall regulate electric utility steam generating units under

this section, if the Administrator finds such regulation is appropriate and necessary

after considering the results of the study required by this subparagraph.

(B) The Administrator shall conduct, and transmit to the Congress not later than 4

years after November 15, 1990, a study of mercury emissions from electric utility

steam generating units, municipal waste combustion units, and other sources,

including axea sources. Such study shall consider the rate and mass of such emissions,

the health and environmental effects of such emissions, technologies which axe

available to control such emissions, and the costs of such technologies.

(C) The National Institute of Environmental Health Sciences shall conduct, and

transmit to the Congress not later than 3 yeaxs after November 15, 1990, a study to

determine the threshold level of mercury exposure below which adverse human health

effects are not expected to occur. Such study shall include a threshold for mercury

concentrations in the tissue of fish which may be consumed (including consumption

by sensitive populations) without adverse effects to public health.

(2) Coke oven production technology study

(A) The Secretary of the Department of Energy and the Administrator shall jointly

undertake a 6-year study to assess coke oven production emission control

technologies and to assist in the development and commercialization of technically

practicable and economically viable control technologies which have the potential to

significantly reduce emissions of hazardous air pollutants from coke oven production

facilities. In identifying control technologies, the Secretary and the Administrator shall

consider the range of existing coke oven operations and battery design and the

availability of sources of materials for such coke ovens as well as alternatives to

existing coke oven production design.

(B) The Secretary and the Administrator are authorized to enter into agreements with

persons who propose to develop, install and operate coke production emission

control technologies which have the potential for significant emissions reductions of

hazardous air pollutants provided that Federal funds shall not exceed 54 per centum

of the cost of any project assisted pursuant to this paragraph.

ADD34

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(C) On completion of the study, the Secretary shall submit to Congress a report on

the results of the study and shall make recommendations to the Administrator

identifying practicable and economically viable control technologies for coke oven

production facilities to reduce residual risks remaining after implementation of the

standard under subsection (d) of this section.

(D) There are authorized to be appropriated $5,000,000 for each of the fiscal years

1992 through 1997 to carry out the program authorized by this paragraph.

(3) Publicly owned treatment works

The Administrator may conduct, in cooperation with the owners and operators of

publicly owned treatment works, studies to characterize emissions of hazardous air

pollutants emitted by such facilities, to identify industrial, commercial and residential

discharges that contribute to such emissions and to demonstrate control measures for

such emissions. When promulgating any standard under this section applicable to

publicly owned treatment works, the Administrator may provide for control measures

that include pretreatment of discharges causing emissions of hazardous air pollutants

and process ox product substitutions or limitations that may be effective in reducing

such emissions. The Administrator may prescribe uniform sampling, modeling and

risk assessment methods for use in implementing this subsection.

(4) Oil and ga.s wells; pipeline facilities

(A) Notwithstanding the provisions of subsection (a) of this section, emissions from

any oil or gas exploration or production well (with its associated equipment) and

emissions from any pipeline compressor or pump station shall not be aggregated with

emissions from other similar units, whether or not such units are in a contiguous area

or under common control, to deternvne whether such units or stations axe major

sources, and in the case of any oil or gas exploration or production well (with its

associated equipment), such emissions shall not be aggregated for any purpose under

this section.

(B) The Administrator shall not list oil and gas production wells (with its associated

equipment) as an area source category under subsection (c) of this section, except that

the Administrator may establish an area source category for oil and ga.s production

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wells located in any metropolitan statistical area or consolidated metropolitan

statistical area with a population in excess of 1 million, if the Administrator

determines that emissions of hazardous air pollutants from such wells present more

than a negligible risk of adverse effects to public health.

(5) Hydrogen sulfide

The Administrator is directed to assess the hazards to public health and the

environment resulting from the emission of hydrogen sulfide associated with the

extraction of oil and natural gas resources. To the extent practicable, the assessment

shall build upon and not duplicate work conducted for an assessment pursuant to

section 8002(m) o£ the Solid Waste Disposal Act [42 U.S.C.A. ~ 6982(m) ]and shall

reflect consultation with the States. The assessment shall include a review of existing

State and industry control standards, techniques and enforcement. T'he Administrator

shall report to the Congress within 24 months after November 15,1990, with the

findings of such assessment, together with any recommendations, and shall, as

appropriate, develop and implement a control strategy for emissions of hydrogen

sulfide to protect human health and the environment, based on the findings of such

assessment, using authorities under this chapter including sections3 7411 of this tide

and this section.

(6) Hydrofluoric acid

Not later than 2 years after November 15, 1990, the Administrator shall, for those

regions of the country which do not have comprehensive health and safety regulations

with respect to hydrofluoric acid, complete a study of the potential hazards of

hydrofluoric acid and the uses of hydrofluoric acid in industrial and commercial

applications to public health and the environment considering a range of events

including worst-case accidental releases and shall make recommendations to the

Congress for the reduction of such hazards, if appropriate.

(7) RCRA facilities

In the case of any category or subcategory of sources the air emissions of which are

regulated under subtitle C of the Solid Waste Disposal Act [42 U.S.C.A. ~ 6921 et

seq.], the Administrator shall take into account any regulations of such emissions

which are promulgated under such subtitle and shall, to the maximum extent

practicable and consistent with the provisions of this section, ensure that the

requirements o£ such subtitle and this section are consistent.

ADD36

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***

ADD37

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42 U.S.C. ~ 7416. Retention of State authority

Except as otherwise provided in sections 1857c-10(c), (e), and (~ (as in effect before

August 7, 197, 7543, 7545(c)(4), and 7573 of this title (preempting certain State

regulation of moving sources) nothing in this chapter shall preclude or deny the right

of any State or political subdivision thereof to adopt or enforce (1) any standard or

limitation respecting emissions of a.ir pollutants or (2) any requirement respecting

control or abatement of air pollution; except that if an emission standard or limitation

is in effect under an applicable implementation plan or under section 7411 or section

7412 of this title, such State or political subdivision may not adopt or enforce any

emission standard or limitation which is less stringent than the standard or limitation

under such plan or section.

~~~:

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42 U.S.C. ~ 7604. Citizen suits

(a) Authority to bring civil action; jurisdiction. Except as provided in subsection (b),

any person may commence a civil action on his own behalf--

(1) against any person (including (i) the United States, and (ii) any other governmental

instrumentality or agency to the extent pern~itted by the Eleventh Amendment to the

Constitution) who is alleged to have violated (if there is evidence that the alleged

violation has been repeated) or to be in violation of (A) an emission standard or

limitation under this Act or (B) an order issued by the Administrator or a State with

respect to such a standard or limitation,

(2) against the Administrator where there is alleged a failure of the Administrator to

perform any act or duty under this Act which is not discretionary with the

Administrator, or

(3) against any person who proposes to construct or constructs any new or modified

major emitting facility without a permit required under part C of tide I [42 USCS ~~

7470 et seq.] (relating to significant deterioration of air quality) or part D of title I [42

USCS ~~ 7501 et seq.] (relating to nonattainment) or who is alleged to have violated (if

there is evidence that the alleged violation has been repeated) or to be in violation of

any condition of such permit

The district courts shall have jurisdiction, without regard to the amount in

controversy or the citizenship of the parties, to enforce such an emission standard or

limitation, or such an order, or to order the Administrator to perform such act or

duty, as the case may be, and to apply any appropriate civil penalties (except for

actions under paragraph (2)). The district courts of the United States shall have

jurisdiction to compel (consistent with paragraph (2) of this subsection) agency action

unreasonably delayed, except that an action to compel agency action referred to in

section 307(b) [42 USCS ~ 7607(b)] which is unreasonably delayed may only be filed

in a United States District Court within the circuit in which such action would be

reviewable under section 307(b) [42 USCS ~ 7607(b)]. In any such action for

unreasonable delay, notice to the entities referred to in subsection (b)(1)(A) shall be

provided 180 days before commencing such action.

***

ADD39

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42 U.S.C. ~ 7607. Administrative proceedings acid judicial review

***

(b) Judicial review

(1) A petition for review of action of the Administrator in promulgating any national

primary or secondary ambient air quality standard, any emission standard or

requirement under section 7412 of this title, any standard of performance or

requirement under section 7411 of this title„2 any standard under section 7521 of this

tide (other than a standard required to be prescribed under section 7521(b) (1) of this

title), any determination under section 7521 (b) (5) of this title, any control or

prohibition under section 7545 of this tide, any standard under section 7571 of this

title, any rule issued under section 7413, 7419, or under section 7420 of this title, or

any other nationally applicable regulations promulgated, or final action taken, by the

Administrator under this chapter may be filed only in the United States Court of

Appeals for the District of Columbia. A petition for review of the Administrator's

action in approving or promulgating any unplementa.tion plan under section 7410 of

this title or section 7411(d) of this title, a.ny order under section 7411 (j) of this title,

under section 7412 of this tide, under section 7419 of this title, or under section 7420

of this title, or his action under section 1857c-10(c)(2)(A), (B), or (G~ of this title (as in

effect before August 7, 1977) or under regulations thereunder, or revising regulations

for enhanced monitoring and compliance certification programs under section

7414(a}(3) of this tide, or any other final action of the Administrator under this

chapter (including any denial or disapproval by the Adnvnistrator under subchapter I

of this chapter) which is locally or regionally applicable may be filed only in the

United States Court of Appeals for the appropriate circuit. Notwithstanding the

preceding sentence a petition fox review of any action referred to in such sentence

may be filed only in the United States Court of Appeals for the District of Columbia

if such action is based on a determination of nationwide scope or effect and if in

taking such action the Administrator finds and publishes that such action is based on

such a determination. Any petition for review under this subsection shall be filed

within sixty days from the date notice of such promulgation, approval, or action

appears in the Federal Register, except that if such petition is based solely on grounds

arising after such sixtieth day, then any petition for review under this subsection shall

be filed within sixty days after such grounds arise. T'he filing of a petition for

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reconsideration by the Administrator of any otherwise final rule or action shall not

affect the finality of such rule or action for purposes of judicial review nor extend the

time within which a petition for judicial review of such rule or action under this

section may be filed, and shall not postpone the effectiveness of such rule or action.

(2) Action of the Administrator with respect to which review could have been

obtained under paragraph (1) shall not be subject to judicial review in civil or criminal

proceedings for enforcement. Where a final decision by the Administrator defers

performance of any nondiscretionary statutory action to a later time, any person may

challenge the deferral pursuant to paragraph (1).

***

(d) Rulemaking

(1) This subsection applies to--

(A) the promulgation or revision of any national ambient air quality standard under

section 7409 of this tide,

(B) the promulgation or revision of an implementation plan by the Administrator

under section 7410(c) of this tide,

(C) the promulgation or revision of any standard of performance under section 7411

of this title, or emission standard or limitation under section 7412(d) of this title, any

standard under section 74120 of this title, or any regulation under section

7412(~(1)(D) and (F~ of this title, or any regulation under section 7412(m) or (n) of

this title,

(D) the promulgation of any requirement for solid waste combustion under section

7429 of this title,

(E) the promulgation or revision of any regulation pertaining to any fuel or fuel

additive under section 7545 of this title,

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(F~ the promulgation or revision of any aircraft emission standard under section 7571

of this title,

{G) the promulgation or revision of any regulation under subchapter N-A of this

chapter (relating to control of acid deposition),

(I~ promulgation or revision of regulations pertaining to primary nonferrous smelter

orders under section 7419 of this tide (but not including the granting or denying of

any such order),

(I} promulgation or revision of regulations under subchapter VI of this chapter

(relating to stratosphere and ozone protection),

~ promulgation or revision of regulations under paxt C of subchapter I of this

chapter (relating to prevention of significant deterioration of aix quality and protection

of visibility),

(I~ promulgation or revision of regulations under section 7521 of this title and test

pxocedutes for new motor vehicles or engines under section 7525 of this title, and the

revision of a standard under section 7521 (a) (3) of this tide,

(L) promulgation or revision of regulations for noncompliance penalties under section

7420 of this tide,

(M} promulgation or revision of any regulations promulgated under section 7541 of

this tide (relating to warranties and compliance by vehicles in actual use),

(l~ action of the Administrator under section 7426 of this title (relating to interstate

pollution abatement),

(0) the promulgation or revision of any regulation pertaining to consumer and

commercial products under section 7511b(e) of this tide,

(P} the promulgation or revision of any regulation pertaining to field citations under

section 7413(d)(3) of this tide,

ADD42

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(~ the promulgation or revision of any regulation pertaining to urban buses or the

clean-fixel vehicle, clean-fuel fleet, and clean fuel programs under part C of subchapter

II of this chapter,

(R) the promulgation or revision of any regulation pertaining to nonroad engines or

nonroad vehicles under section 7547 of this tide,

(S) the promulgation or revision of any regulation relating to motor vehicle

compliance program fees under section 7552 of this title,

(`I) the promulgation or revision of any regulation under subchapter IV-A of this

chapter (relating to acid deposition),

(L~ the promulgation or revision of any regulation under section 7511b(~ of this tide

pertaining to marine vessels, and

(~ such other actions as the Administrator may deternune.

The provisions of section 553 through 557 and section 706 of Tide 5 shall not, except

as expressly provided in this subsection, apply to actions to which this subsection

applies. This subsection shall not apply in the case of any rule or circumstance

referred to in subparagraphs (A) or (B) of subsection 553(b) of Title 5.

(2) Not later than the date of proposal of any action to which this subsection applies,

the Administrator shall establish a rulemaking docket for such action (hereinafter in

this subsection referred to as a "rule'. Whenever a rule applies only within a

particular State, a second (identical) docket shall be simultaneously established in the

appropriate regional office of the Environmental. Protection Agency.

(3) In the case of any rule to which this subsection applies, notice of proposed

rulemaking shall be published in the Federal Register, as provided under section

553(b) of Title 5, shall be accompanied by a statement of its basis and purpose and

shall specify the period available for public comment (hereinafter referred to as the

"comment period'. The notice of proposed rulemaking shall also state the docket

number, the location or locations of the docket, and the rimes it will be open to public

inspection. The statement of basis and purpose shall include a summary of--

ADD43

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(A) the factual data on which the proposed rule is based;

(B) the methodology used in obtaining the data and in analyzing the data; and

(C) the major legal interpretations and policy considerations underlging the proposed

rule.

The statement shall also set forth or sl~mmari~e and provide a reference to any

pertinent findings, recommendations, and comments by the Scientific Review

Committee established under section 7409(d) of this title and the National Academy

of Sciences, and, if the proposal differs in any important respect from any of these

recommendations, an explanation of the reasons for such differences. All data,

information, and documents referred to in this paragraph on which the proposed rule

relies shall be included in the docket on the date of publication of the proposed rule.

(4) (A) The rulemaking docket required under paragraph (2) shall be open for

inspection by the public at reasonable times specified in the notice of proposed

rulemaking. Any person may copy documents contained in the docket. The

Administrator shall provide copying facilities which may be used at the e~ense of the

person seeking copies, but the Administrator may waive or reduce such expenses in

such instances as the public interest requires. Any person may request copies by mail

if the person pays the expenses, including personnel costs to do the copying.

(B) (i) Promptly upon receipt by the agency, all written comments and documentary

information on the proposed rule received from any person for inclusion in the

docket during the comment period shall be placed in the docket. The transcript of

public hearings, if any, on the proposed rule shall also be included in the docket

promptly upon receipt from the person who transcribed such hearings. All documents

which become available after the proposed rule has been published and which the

Administrator determines are of central relevance to the rulemaking shall be placed in

the docket as soon as possible after their availability.

(ii) The drafts of proposed rules submitted by the Administrator to the Office of

Management and Budget for any interagency review process prior to proposal of any

such rule, all documents accompanying such drafts, and all written comments thereon

~ ~,.

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by other agencies and all written responses to such written comments by the

Administrator shall be placed in the docket no later than the date of proposal of the

rule. The drafts of the final rule submitted for such review process prior to

promulgation and all such written comments thereon, all documents accompanying

such drafts, and written responses thereto shall be placed in the docket no later than

the date of promulgation.

(5) In promulgating a Hale to which this subsection applies (i) the Administrator shall

allow any person to submit written comments, data., or documentary information; (u)

the Administrator shall give interested persons an opportunity for the oral

presentation of data, views, or axguments, in addition to an opportunity to make

written submissions; (iii) a transcript shall be kept of any oral presentation; and (iv)

the Administrator shall keep the record of such proceeding open for thirty days after

completion of the proceeding to provide an opportunity for submission of rebuttal

and supplementary information.

(6) (A) The promulgated rule shall be accompanied by (i) a statement of basis and

purpose like that referred to in paragraph (3) with respect to a proposed rule and (ii)

an explanation of the reasons for any major changes in the promulgated rule from the

proposed rule.

(B) The promulgated rule shall also be accompanied by a response to each of the

significant comments, criticisms, and new data submitted in written or oral

presentations during the comment period.

(C) The promulgated rule may not be based (in part or whole) on any information or

data which has not been placed in the docket as of the date of such promulgation.

(7) (A) The record for judicial review shall consist exclusively of the material referred

to in paragraph (3), clause (i) of paragraph (4) (B), and subparagraphs (A) and (B) of

paragraph (6).

(B} Only an objection to a rule or procedure which was raised with reasonable

specificity during the period for public comment (including any public hearing may

be raised during judicial review. If the person raising an objection can demonstrate to

the Administrator that it was unpracticable to raise such objection within such time or

ADD45

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if the grounds for such objection arose after the period for public comment (but

within the time specified for judicial review} and if such objection is of central

relevance to the outcome of the rule, the Administrator shall convene a proceeding

for reconsideration of the rule and provide the same procedural rights as would have

been afforded had the information been available at the time the rule was proposed. If

the Administrator refuses to convene such a proceeding, such person may seek review

of such refusal. in the United States court of appeals for the appropriate circuit (as

provided in subsection (b) of this section). Such reconsideration shall not postpone

the effectiveness of the rule. The effectiveness of the rule may be stayed during such

reconsideration, however, by the Administrator or the court for a period not to

exceed three months.

(8) The sole forum for challenging procedural determinations made by the

Administrator under this subsection shall be in the United States court o£ appeals for

the appropriate circuit (as provided in subsection (b) of this section) at the time of the

substantive review of the rule. No interlocutory appeals shall be permitted with

respect to such procedural determinations. In reviewing alleged procedural errors, the

court may invalidate the rule only if the errors were so serious and related to matters

of such central relevance to the rule that there is a substantial likelihood that the rule

would have been significantly changed if such errors had not been made.

(9) In the case of review of any action of the Administrator to which this subsection

applies, the court may reverse any such action found to be--

(A) arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with

law;

(B) contrary to constitutional right, power, privilege, or immunity;

(C) in excess of statutory jurisdiction, authority, or limitations, or short of statutory

right; or

(D) without observance of procedure required by law, if (i} such failure to observe

such procedure is arbitrary or capricious, (u) the requirement of paragraph (7) (B) has

been met, and (iu) the condition of the last sentence of paragraph (8) is met

ADD46

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(10) Each statutory deadline for promulgation of rules to which this subsection

applies which requires promulgation less than six months after date of proposal may

be extended to not more than six months after date of proposal by the Administrator

upon a determination that such extension is necessary to afford the public, and the

agency, adequate opportunity to carry out the purposes of this subsection.

(11) The requirements of this subsection shall take effect with respect to any rule the

proposal of which occurs after Winery days after August 7,1977.

(e) Other methods of judicial review not authorized

Nothing in this chapter shall be construed to authorize judicial review of regulations

or orders of the Administrator under this chapter, except as provided in this section.

ADD47

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10 ~ S x~x~se i 

1

HOUSE OF REPRFSENTATIVFS ) R part 1 490

CLEAN AIR ACT AMENDMENTS OF 1990

REPORT

OF THE

COMMITTEE ON ENERGY AND COMMERCE

U.S. HOUSE OF REPRESENTATIVES

ON

H.R. 3030

together with

ADDITIONAL, SUPPLEMENTAL, AND

DISSENTING VIEWS

:, 

~,. _~_ .,E

~~,'~If'~i.

Mwtt 17, 1990.—Ordered to be printed

U.B. GOVERNMENT PR1NT[NC OFFICE

29-694 WASHINGTON : 1990

~ 1

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315

ALso provided is injunctive authority to restrain violations of fuels regulations, as is already available for violations of vehicle and ata- tionary source rec}uirements.

Section ,22.¢. High altitude testing

This section requires that EPA promptly establish at least one

new testing center at a site that represents high altitude conditions.

Section 215. Technical amend~ercts

Section 225 revises various sections of the Act to delete outdated provisions and to improve the organization of Title II.

Title III.• Provisions for Control of Hazardous Air Pollution

INTRODUCTION

'I~tle III amends section 112 of the Clean Air Act to establish a

new program for the control of hazardous air pollutants. Pollutants

controlled under this section tend to be less widespread than those

regulated under the NAAQS established under section 109 of the

Act, but are often associated with more serious health impacts,

such as cancer, neurological disorders, and reproductive dysfunctions. Because of their serious impacts, hazardous air pollutants

are subject nationally to uniform, source category and subcategory

specific controls.

BACKGROUND

Hazardous air pollutants are air pollutants that can cause serious illnesses, such as cancer, or death. In theory, they were to be

stringently controlled under the existing Clean Air Act section 112.

However, as already noted, only seven of the hundreds of potentially hazardous air pollutants have been regulated by EPA since sec- tion 112 was enacted in 19?0.

SUMMARY OF TITLE LII

"Hazardous air pollutants" venu.~ "criteria air pollutants"

The Clean Air Act distinguishes between two categories of pollutants: hazardous air pollutants and criteria or conventional air pol- lutants. Cr►teria air pollutant, as noted earlier, are defined as pol- lutants that "endanger public health or welfare" and "result from

numerous or diverse mobile or stationary sources." These pollutants tend to be more pervasive, but Tess potent, than hazardous air pollutants. Examples include ozone, CO, and PM-10. The Act re- quires EPA to set National Ambient Air Quality Standards

(NAAQS) for these pollutants, which the States have responsibility for achieving through State Implementation Plans (SIPs).

Hazardous air pollutants are pollutants that pose especially serious health risks. Under existing law, they are pollutants that

"cause or contribute to an increase in mortality or an increase in serious irreversible, or incapacitating reversible, illness." They may reasonably be anticipated to cause cancer, neurological disorders, reproductive dysfunctions, other chronic health effects, or adverse

acute human health effects.

ADD49

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101er CoNcsses ~ HOUSE OF REPRESENTATIVES ~ 

RBPORT

2d Seeaiors 101-952

CLEAN AIR ACT AMENDMENTS

OF 1990

CONFERENCE REPOftT

TO ACCOMPANY

S. 1630

..~ ~ `r .

Oc,-roeax 26, 1990.—Ordered to be printed

U.B. GOVB$NMENT PAINTING OFFICE

3+~<12 WASHINGTON :1980

For rle by the Superintendent of Document, U.S. Government Printing Office

w..ns~gwn, nc zoaat

~DD50

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JOINT EXPLANATORY STATEMENT OF THE COMNIITTEE OF

CONFERENCE

The managers on the part of the House and Lhe Senate at the conference on the disagreeing votes of the two Houses on the amendments of the House to the bill ($. 1630) to amend the Clean Air Act to provide for attainment and maintenance of health pro- tective national ambient air quality standards. and for other purposes, submit the following joint statement to the House and the

Senate in explanation of the effect of the action agreed upon by the

managers and recommended in the accompanying conference

report:

Tha House amendment to the text of the bill struck out all of the

Senate bill after the enacting clause and inserted a substitute text.

The Senate recedes from its disagreement to the amendment of the Hones with an amendment which is a substitute for the Senate

bill and the House amendment. Certain matters agreed to in conference are noted below.

The Conference agreement on $. 1630, the Clean Air Act Amendments of 199(}, includes provisions addressing attainment and maintenance of ambient air quality standards, mobile sources of air pollution, tonic air pollution, acid rain, permits, enforcement,

stratospheric ozone protection, miscellaneous provisions, and clean air research. A summary of the conference agreement follows.

T1TI.E I-NONATTAINMENT PROVIBIOISS

Title I of the conference agreement, which adopts the House Title I except with respect to transportation related issues and with

a change concerning the regulation of oxides of nitrogen, divides

areas that fail to meet any one of the pollution standards listed above into categories, dependu'~g on the severity of the problem,

and sets out requirements of different levels of stringency for each

category.

Depending on the severity of the pollution problem, nonattainment areas for any of the pollutants must attain the health stand-, and for ozone within five, ten, fifteen, or seventeen years (twenty

years for Los Angeles).

In the case of ozone, areas must reduce emissions of volatile or genic compounds (VOCe), a precursor of ozone, by 3 percent per

Yom' tWith waivers for certain specified conditions) until the stand- ard ie attained.

Vehicle inspection and maintenance programs must be upgraded ia. ozone and carbon monoxide areas that already have such proBrame sad mnst be instituted in moat other areas that do not al- readq have them.

The Environmental Protection Agency (EPA) is required to impose one of the following sanctions in an area that fails to precaas)

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~s

pare or implement a plan to attain an air quality standard: limited

use of Federal highway funds or a requirement that new industry offset emissions at a 2•to 1 ratio.

Under the safety exemption to highway sanctions, the principal

purpose of the project must be to improve highway safety, but the

pro sct may also have other important benefits.

~e definition of major sources ~n current law is modinied eo that smaller sources of VOC1s are required to contrnl emissions (50 tons in moderate and serious areas; 25 tons is severe areas; IO tons in extreme areas).

When a State fails to develop a plan that meets therequiremente

of the law, the EPA is required to promulgate a Federal Implemen- tation Plan.

The EPA isregaired to issue control requirements for a number of sources of pollution, including commercial and consumer prod- ucts.

A new program ie established to address the interstate transport of ozone air pollution.

The conferees adopt the House 1 guageon rocket testing with the agreement that the appropriate~Federal agency may find that testing required for a civilian or commercial launch program is ea- eential to the national aecuritq.

~.~ Q-MOTOR VEHICLFrR~E.ATED P60VIBIONB

Title II is based on the House bill with a number of significant modifications.

Reformulated gasoline

Cleaner, reformulated gasoline would be mandated in the nine cities with the most severe ozone pollution b~~ wg . in 1995. States could elect to have the requirements a 1~ in other cities with ozone pollution problems. In comparison with conventional gasoline, reformulated gasoline would be required to have 15 per- cent lower emi~ions of VOCs and toxic chemicals by 199b, and greater reductions by 2000. Thea~reewent also contains additional standards for oxygen, benzene, and aromatics. Under section 2I1(k)(4), a petition for the certification of a fuel formulation or slate of fuel formulations is deemed certified if the Administrator fails to act on the petition within 180 days of its re- ceipt. Such a petition ie deemed certified until the Administrator completes action on the petition. In the event that the Adnninistra for subsequently denies such a petition, the conferees intend that the Administrator will take appropriate steps to ensure orderly and prompt compliance.

Section 219 of the bill includes a credit program to pmvide flexi• bility in meeting the bill's requirements on the oxy~en, aromatic

credit 

hydrocarbon, and benzene content of reformulated gaswline. A

program is the mechanism by which persons subject to these requirements will be allowed to pool gasoline sold in agiven cov- ered area for purposes of determining compliance with these re- quirementa.

with 

Under this credit program, a person may earn credit for gasoline a higher oxygen content lower aromatic hydrocarbon content,

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Permits

It is the conferees' intent that EPA not use the permit hammer

approach (case-by-case) to avoid or delay meeting MAGI requirementa.

Routine Emissions From "Ar+ea"Souses

Based on the list of pollutants mentioned above, EPA can also

list an area source category just es the agency would list a major

source category, and can require MALT. EPA mint list sufficient

source categories to assure that 90% of the emissions of the 30

mast serious area source pollutants are regulated.

Five years after enactment, EPA is to propose a national urban

air toxics strategy to reduce cancer risks eussociated with urban air

toicics by 75°!0. EPA is to report on reductions achieved in 8 and 12

years intervals.

Accidental Releases

Theagreement contains provisions that are designed to prevent

chemical accidents.

EPA is to publish a list of at least 100 regulated substances, of which 16 are listed in the agreement.

EPA is authorized to promulgate accident prevention regulations.

The conferees do not intend the term "stationary source" to apply to transportation, including the storage incident to such transportation, of any regulated substance or other extremely ham

ardour substance under the provisions of this subsection.

The prohibition on listing substances for the accident prevention

program which have been listed under this section 108(a) does not preclude the listing of anhydrous sulfur dioxide which is on the ini- tial list.

The conference agreement establishes a Chemical Safety and Hazard Investigation Board, similar to the National ZYanaportation Safety board, to investigate chemical accidents.

The Board is authorized to investigate accidental releases which

cause substantial property damage. Substantial damage would in- clude fires, explosions, and other events which cause damages that

are very costly t~ repair or coned, and would not include inciden- tal damage to equipment or controls.

Hazard assessments required under this section shall include: (1) basic data on the source, units at the source facility which contain or process regulated substances (including the longitude and latitude of such unite), operating procedures, population of nearby communities, and the meteorology of the

area where the source is located;

(2) an identification of the potential points of acxidental re- leases from the source of regulated substances; (3) an identification of any previous accidental releases from the source including the amounts released, frequencies, and durations;

(4) an identification of a range (including worst case events) of potential releases from the source, including an estimate of

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The aonfereee intend that termination of the seasonal or temporary use of a cleaner fuel shall not be considered a modification for

purposes of section 111 or part C of ~tle I.

ZY~r~.a V—Pas~rr Psoviazoxs

The conference agreement includes provisions that require various sources of air pollution to obtain operating permits which would ensure o~pl~anoe with all applicable requirements of the Clean Air,Act.

Perncit Pr,~gr~ams

EPA ie required to issue permit progrt~m regulations within one

year. States are required to develop programs consistent with those rEgttlations. Thepragrame would be in effect within four years, and the requirement to have a permit would be phased-in over the en- euing three years.

Consistent with the general pmvisions of section 116 of the Clean Air Act. the conferees understand that aState may establish addi- tional, more st~ring~ent permitting requirements, but a State may

not establish permit requirements that are incanaietent with the national permitting requirements of this Act, including this title.

EPA Or~sight of Pitr►nit Programs

The conference agreement provides EPA with the authoritq to review permits proposed to be issued by a State and to object to

permits that violate the Clean Air Act. EPAwould also have the op~ortuaity to waive review of permits for small sources.

State ~rsponae to EPA abjections

Under the vonference agreement, 3tateia would be granted 90

days to revise permit$ to mcet any EPA objection. ff the State fails

to revise the permit, EPA will i~ue or deny the permit.

Aermit shield

The s at p~ovidee that oompliauce with a permit ie

deemed with the r8quirementa of the permit program.

Permit opam a~ia~also may be deemed compliance with other applicable pro~visians of the Clean Air Act if the permit has been

issued in e000rdaaoe with Title V and includes those provisions, or if the permitting euthorit~► includes in the permit a apecif`c determination that such provisions are not applicable.

Openakonal flesibilih~

Facilities will be autharizEd to make changes in operations without the my for a permit revision eo long as: (~ the changes

are not "modifications" under Title I of the Act, (iW the changes will not result in emissions that exceed emissions allowable under the permit, arni (iii the facility provides EPA and the permitting

authority with seven days written notice in advance of the changes.

~'^~+nBP~t gPPlicationa

Facept for applications submitted within the first year of the Permit program (for which a 3-year phased review is allowed),

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are subsequently destroyed is too broad and does not include adequate safeguards to preclude abuse. In the course of implementing this Act, however, EPA shall consider whether an exclusion will be allowed on a cas~by~case basis for the manufacture of controlled substances that are (Z) coincidental, unavoidable byproducts of a

manufacturing process and (2) immediately contained and destroyed by the producer using maximum available control technologies.

~TLE VII-FEDERAL ENFORCEMFNP

The co9nference agreement incFudes a number of provisions that

enhance the enforcement authority of the Federal government

under the Clean Air Act while at the same time providing subetantive procedural safeguards. In general terms, the agreement increesee the range of civil and criminal penalties for violations of

the Clean Air Act.

SIP and permiE violations

The c~nfereace agreement revises and strengthens EPA enforcement authority regarding violations of State Implementation Plana

and permits, including authority to bring civil actions for injunctive relief and penalties, as well as new authority to issue administrative penalty orders in response to violations. These authorities

can also be used by EPA when Statue fail to enforce 3IPs or permit

requirements.

Violations of other nequir+ements

EPA is authorized to initiate a range of enforcement actions for

a number of violations of specified sectionf~ and titles of the Act.

Included is authority to issue administrative penalty orders, file

civil actions, and initiate criminal proceedings via the Attorney

General.

. It is the conferees' intention tp provide the Administrator with

prosecutorial discretion to decide not to seek sanctions under 3ection 113 for c}~ minimis or technical violations in civil and criminal

matt~ears.

Criminal penaclties

• G4~iminal fines $nd penalties are included for a range of violations of the Act, including negligent or knowing violations that

result in the endangerment of others, knowing violations of SIPs

that occur after t~ violator ie on notice of the violation, knowing

violations of certain sections in the permit title, and knowing violations of the acid rain title ~ar the stratospheric ozone protection

title. In addition, the agreement provides criminal fines and penalties for the knowing l;nu of false statements and other similar

recordkeeping, monitoring and reporting violations. Consistent

with other recent enviroament~al statutes, Criminal violations of

the Clean Air Act are up from misdemeanors to felonies.

The amendments add newcriminal sanctions for recordkeePix►8,

filing and other omissions. These prwisione are not meant to penalize madverf~ent errors. For criminal sanctions to apply, a source

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Calendar No. 427

1O18T CONCRis'S8 ~ 

SENATE ~ R&POKT

Ist Session 101-228

CLEAN AIR ACT AMENDMENTS OF 1989

REPORT

OF THE

COMMITTEE 4N

ENVIRONMENT AND PUBLIC WORKS

UNITED STATES SENATE

together with

ADDITIONAL AND MINORITY VIEWS

TO ACCOMPANY

S. 1630

DECEMBER ZO, 1988.-0rdered to be printed

U.B. GOVERNM&NT PBINTINQ OE`FICE

24-626 WASHINGTON : 1989

For sale 6y the $uoeriateadent of Documeata, US. Government Printis¢ OfTice

WmhingWn, DC 20902

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14

that does not meet the standard is to be designated nonattainment.

An area that meets the standard and does not contribute to another area that exceeds the standard is to be designated atta nment. An area that cannot be classified on the basis of available

information as meeting the standard is to be designated unclassifiable.

Revised section 107(fl(3) of the Act designated any area that did

not meet the primary ambient air quality standard for ozone or

carbon monoxide as of the last calendar year before the date of enactment of the bill as nonattainment. Revised section 1070(4) designates each area that wss identified by EPA ae a Group I area in

the August 7, 1987, promulgation of the revised particulate standaxd (PM-10) or which contains a site for which monitoring data

shows a violation of the air quality standard for PM-10 before the

date of enactment as nonattainment.

Revised section 107(dx6) of the Act provides that areas may be

redesignated by the Administrator upon the request of the Governor of a Slate or on the Administrator's own motion. The Adminis=

trator must act to redesignate an area not currently designated as

nonattainment ae a nonattainment area within one hundred eighty

days of receiving evidence that the area exceeds the nationai ambient air quality standard for any pollutant. In order to redesignate

an area from nonattainment to attainment, the Administrator

must promulgate the redesignation by rule, must determine that

the area has attained the air quality standard and that attainment

is due to permanent reductions in emissions, must have approved a

maintenance plan, and determine that the Stets containing the

area has met requirements of the Act applicable to the area. The

Administrator may not redesignate an area from nonattainment to

unclassified.

New paragraphs (2) and (3) of section 107(d) of the Act provide

that the boundaries of an area that is designated nonattainment

for ozone and that ie located within a metropolitan statistical area

(MSA) or a consolidated metropolitan statistical area (CMSA) are

the boundaries of the MSA or CMSA, unless the $fate demonstrates that some portion of the MSA or CMBA does not contribute

to violations of the air quality standard and that there is a geographical basis for excluding the portion. With respect to a serious

carbon monoxide area, the Administrator may, by rule, include the entire MSA or CMSA in the nonattainment area.

DI9CU38ION

This section of the bill restxllctures and clarifies the process for designating and redesignating areas of the country depending on their emissions and ambient air quality. The bill gives significant

authority to the Administrator in order to overcome the deficiencies in current law that have failed to allow the Administrator to

respond to new information about pollution levels and control

needs.

Existing law, as interpreted by EPA, precludes the Administrator from issuing new designations or revising e~cisting ones when

an ambient standard is revised, as occurred with the promulgation

in 1987 of the ambient standard for PM-10. Current law is also

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133

currently recognized within the structure of section 112 and have no other statutory authorization.

There is now a broad consensus that the program to regulate

hazardous air pollutants under section 212 of the Clean Air Act should be restructured to provide EPA with authority to regulate industrial and area source categories of air pollution (rather than the pollutants) with technology-based standards in the near term.

In light of these conclusions, the reported legislation makes fundamentalchanges in the_ basic provisions of section 112 of the Clean. Air. Act. The bill establishes a list of 191 air pollutants and a

mandatory schedule for i~uing emissions standards for the major

sources of these pollutants. The standards are to be based on the maximum reduction ui emissions which can be achieved by applica- tion of best available control technology. These new, technologybased standards will become the principal focus of activity under section 112. Authority to issue health-based standards is preserved in modified form to be 'used for especially serious pollution problems.

This approach to regulation of toxic pollutants is not without

precedent. It follows the general model which has been employed

since the mid-1970's to control toxic effluents discharged to surface

wateza by major industrial paint sources.

Under the 1972 amendments to the Clean Water Act, industrial

dischargers were given two deadlines to control conventional pollutants (biological ogggen demand, suspended solids, and acidity): 1)

by July 1, 1977 each facility was required to meet emissions limitations reflecting "best practicable control technology currently

available" (so-called BPT limits); and 2) by July 1, 1983 each facility was to meet emissions limitations set according to "best available technology economically achievable" (BAS.

Toxic pollutants under the 1972 Act were to be treated differently. The Administrator was to publish a liust of toxic pollutants

within 90 days and within a year promulgate effluent standards

that would provide an "ample margin of safety" to protect the

moat affectQd (aquatic) or~aniams. Thus, the structure of this authority to regulate toxic discharges to surface waters was very

similar to the current structure of section 112 of the Clean Air Act.

During the five-year period following passage of the 1972 Clean

Water Act, EPA promulgated standards for only six toxic pollutants. In 1975 the Environmental Defense Fund and the Natural Resources Defense Council brought suit against the Agency for failure

to list more toxics and to promulgate standards as mandated by the

Act. In June 1976, EPA and the plantiffs entered into a consent

decrce that established a new formula for the development of effluent standards for tonic water pollutants. Thia agreement created a

list of 12Q priority pollutants and required EPA to promulgate effluent guidelines based on best available control technology for

each pollutant and each industrial category not later than December 31, 1980. Industrial diech ers were to be in compliance with

these standards by July 1, 19, the same deadline as established

by the Act for BAT control of conventional pollutants. There were

14,000 dischargers divided into 21 industrial categories and 399 subcategories potentially subject to theme new toxica standards.

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1084 Con~re~s ~ 

COM~II77'~E PRIIVT r 9. PKr. 109-38 i~t Beaion 1 Vol, I

A LEGISLATIVE HISTORY OF THE CLEAN

AIR ACT AMENDMENTS OF 1990

TOGETHER WITH

A SECTION-BY-SECTION INDEX

PREPARED BY THE

ENVIRONMENT AND NATURAL KE90URCE8

POLICY DIVISION

OF THE

CONGNESBIONAL RESEARCH SERVICE

OF THE

LIBRARY OF CONGRESS

FOR THE

COMMITTEE ON

ENVIRONMENT AND PUBLIC WORKS

U.S. SENATE

VOLUME I

;_

, ~ ,;~ ~,

if tlfi^f`..

NOVEMBER 1998

Printed for the use of the Senate Committee

on Environment and Public Works

U.$. QOVERNMENT PRINTING UFFiCE

X8-867 ~ WASHINGTON :1993

,3asr

For wle by the U.S. Guvernmenl Printing Office

Superintendent of Daument,, Ccmgrescienal Sale, OtfKc, Wa+hmgton. DC 204(!2

ISBN 0-16-041786-4

ADD59

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880

CLBAN AIR AGT AMENDMENTS OF 1990

CHAFEE•BAUCU5 STATEMENT OF SENATE MANACiERS

Mr. President, the conference report that is before ua includes soma 800 pages of legi:lativa languaga and loss Wan 40pages--double spaced•-of explanatory text. Due to time conatreinb, we do aot have a particularly uuful statement of manages,

To help rectify this problem, we have prepared a detailed explanation of eve Important titles. The explanedon is In the form of a traditional statement of managers. It has not been reviewed or approved by alt of the confcrecs but it la our bast ePtort to provide the

agenry end the courts with the guidance that they wUl need in tha course of implementing

and interproting this compbx act.

The titles covered by the "Chafee-Baucus Statement of Senate Managers" are: title 1 on

nonattatnment; title Il on moblie sources; title V on Qermits; title VI on stratospheric ozone;

and title VII on enforcement.

Mr. President, I ask unanimous consent that this document be printed in the Record.

There being no objection, the material was ordered to be printed on the Record, a►

follows:

CHAFEE-BAUCUS STA'T'EMENT O~ SENA'I~ MANAGERS,

S. 1630, THE CLEAN AIR ACT AMENDMENT'S OF 1990

Title I--Provisions for Attainment and Maiatenanco of National Ambient Air Quality

Standards.

Title il--Mobile Sources.

Title V--Permits.

Tftle VI--Stratospheric Ozone Protection.

7Ytle VII--Enforcement.

TITLE I-•PROVISIONS FOR ATTAINMENT AND MAINTENANCE OF

NA'i70NAL AMBIENT AIR QUALITY STANDARDS

SECTION 101••GfiNERAL PLANNING REQUIREMENTS

Senate bill. In sections 101 and 104 the Senate bill amends the Clean Air Act with

respect to processes for designating areas of the country based on air quality and with

respect to requirements for preparation, contents, submittal, and review of State

implementation plans.

In section 106 the Senate bill amends section 176(c) of the Clean Air Act which requires

conformity of Federal activities and federally funded activities with the State implementation

plan.

House amendment. In section 101 the House bill amends the Clean Air Act to establish

a somewhat different structure from existing law for State and EPA action following

promulgation of new or reviud national ambient air quality standards, including procedures

for designating areas based on air quallry and for preparation, submittal and review of State

implementation plans.

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Conference agreement The Senate reoedea to the House nxcapt that, by refenna to the

provlatona in section 103 of the agreement, transportation control requtrementa applicable

{D i0Y0f0 OZ000 pOg8n8IIlJilCA~ OTOdS-•includlag the requirement applicable to employr~~ of

]00 or morn employees—are also applied in serious CO aonattainment areas.

SECTION 1d5--ADDITIONAL PROVISIONS FOR PARTICULAR MATTBRS

(PM-10) NONATTAINMENT AREAS

SenAta bill. Section 109 of the Senate bill provides for classification of PM-]0 areas based

on the severity of pollution, deadlines for attaining the PM-10 primary standard,

roqutrementa appllcabla to PM-10 nonatteInment areas depand[ng on their cleasi~cation,

and consequences for falluro to comply with requirements or meet deadlines.

House amendment. The House amendment is similar in structwe and content to the

Senate biU but differs in details.

Conference agreement. The Senate ncedes to the House.

SECllON 107—PROVISIONS RELATED TO INDIAN TRIBES

Senate bW. Section 113 of the Senate 6111 authorizca the Administrator to that Indian

tribes as States under the Clean Air Act and requires the Administrator to issue reguiattons

tl~nt speafy which provisions of the AM may be administered by Indian tribes.

Horse amendment. The Howse amendment provides similar authodry and directives to

the Administrator regarding treatment of Indian tribes.

Conference agreement The Senate recxdes to the Housa.

SECTION 108--MISCELLANEOUS PROVISIONS

Senate bill. in section 103 the Senate bill revises sections 108 (e) and (~ of the Clean

Air Act to require the Administrator and the Secretary of 7tanaportation to update air

quality/transportation planning guidance and to add to the traiuportation control measures

to be evaluated by the Adintnistrator after consnitattoa, when appropriate, with the

Secretary.

House amendment. The House amendment contains a similar provision to the one in the

Senate bill regardjng amendments to section 108 of the Clean Air AcG In addition, the

House amendment contains provisions for a technology clearinghouse to be established by

the Administrator, for amending section 11 ] of the Clean Air Act relating to new and

existing stationary sources, for amending section 302 of the Clean Air Act which contains

definitions, to prrn+ide a savings clause, to state that reports that are to be submitted to

Congress are not subject to judicial review, and for other purposes.

Conference agreement The Senate recedes to the House except that with respect to the

requirertunt regarding judiaal review of reparta~ the House recedes to the Senate sari with

rospect to tranaportatton planning, the House recedes to the Senate with certain

modifications.

aa-657 0 - ~3 - z9 ADD61

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AUTHENTICATED

U S. GOVERNMENT

INFORMATION

GPO

RIDDICK'S

SENATE PR~CEDu RE

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APPENDIX 1481

A SENATOR, from the committee of conference, submit- ted the following:

CONFERENCE REPORT

(To accompany H.R. )

The committee of conference on the disagreeing votes of the two Houeea on the amendment of the Houae to sn amendment of the Senate to the bill (H.R. ), ,having met,

n~ue ar b~iu

after full and free conference, have agreed to recommend and do recommend to their respective Houses as follows:

That the Houae of Representatives recede from its amendment to the amendment of the Senate and concur therein.

etfanagers on the Part of the Sea¢te.

Managers on the Part of the House.

[Form of a conference report when it is proposed that the Senate recede from its amendment to an amendment of the House to s Senate bill.]

A SENATOR, from the committee of conference, submit- tedthe following:

CONFERENCE REPORT

(To accompany S. --)

The committee of conference on the disagreeing votes of the two Houses on the amendment of the Senate to an amendment of the House to the bill (S. ), having met,

ititte of bilU

after full and free conference, have agreed to recommend and do recommend to their respective Houses as follows:

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1482 SENATE PROCEDURE

That the Senate recede from its amendment to the amendment of the House of Representatives and concur therein.

Managers ors the Part of ehe Senrcte.

Managers ort the Part oj'the House.

LForm of conference repots on a Senate bill when conferees agree on entirely new tent Insuad of the amendment by the House of Represente- t9ves in the nature of a substitute for the bill, or the language of the bill

as passed by the Senate.]

A SENATOR, from the committee of conference, submittedthe following:

CONFERENCE REPORT

(To accompany S. )

The committee of conference on the disagreeing votes of the two Houses on the amendment of the House to the bill (S. ),

(title of 6ilU

having met, after full and free conference, have agreed to recommend and do recommend to their respec- tive Houses ae follows:

'i`hat the Senate recede from its disagreement to the amendment of the House to the bill, and agree to the same with an amendment as follows:

In lieu of the matter proposed to be inserted by the House amend- ment,insert the following:

A • t 1

And the House agree to the same.

Managers on the Part of the Senate.

Managere on the Part o/'the House.

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