United States Court of Appeals 

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued September 16, 2015 Decided November 3, 2015

No. 13-1263

TREASURE STATE RESOURCE INDUSTRY ASSOCIATION,

PETITIONER

v.

ENVIRONMENTAL PROTECTION AGENCY AND GINA 

MCCARTHY, ADMINISTRATOR, U.S. ENVIRONMENTAL 

PROTECTION AGENCY, RESPONDENTS

Consolidated with 13-1264, 14-1093, 14-1164

On Petitions for Review of Actions of the

United States Environmental Protection Agency

William W. Mercer argued the cause for petitioner 

Treasure State Resource Industry Association. Douglas A. 

McWilliams argued the cause for petitioner United States 

Steel Corporation. With them on the briefs were John D. 

Lazzaretti, Emily C. Schilling, Marie Bradshaw Durrant, and 

Michael P. Manning.

Norman J. Mullen, Special Assistant Attorney General, 

Office of the Attorney General for the State of Montana, was 

on the brief for amicus curiae State of Montana in support of 
2

remedy of reversal urged by petitioner Treasure State 

Resource Industry Association in 13-1263 and 14-1164. 

Amanda Shafer Berman, Attorney, U.S. Department of 

Justice, argued the cause for respondents. With her on the 

brief were John C. Cruden, Assistant Attorney General, and 

Mike Thrift, Counsel, U.S. Environmental Protection Agency. 

Before: GRIFFITH and MILLETT, Circuit Judges, and 

WILLIAMS, Senior Circuit Judge.

Opinion for the Court filed by Senior Circuit Judge

WILLIAMS. 

WILLIAMS, Senior Circuit Judge: The Clean Air Act, 42 

U.S.C. §§ 7401-7671q, directs the Environmental Protection 

Agency to establish air concentration levels above which 

certain pollutants may endanger public health and welfare, 

called National Ambient Air Quality Standards (“NAAQS”), 

id. §§ 7408-7409. On June 22, 2010 EPA exercised this 

authority to issue a new standard for sulfur dioxide, SO2. 75 

Fed. Reg. 35,520/1. The new NAAQS imposes a 1-hour 

ceiling of 75 parts per billion, based on the 3-year average of 

the annual 99th percentile of 1-hour daily concentrations. Id. 

(Because the stringency of the changes derives largely from 

the ways in which compliance is calculated rather than from 

the raw concentration numbers, it is almost impossible to give 

a meaningful statement of the degree by which the standard 

increased stringency. See Sulfur Dioxide (SO2) Primary 

Standards – Table of NAAQS, http://www3.epa.gov/ttn/

naaqs/standards/so2/s_so2_history.html.) States were then to 

develop state implementation plans (“SIPs”) to guide them in 

imposing requirements on pollution sources in order to 

implement the NAAQS. 42 U.S.C. §§ 7502(c), 7503(a).
3

Within two years after a new NAAQS is established 

(extendable as in this case to three for want of adequate data), 

id. § 7407(d)(1)(B)(i), EPA must designate all parts of the 

country as being in “attainment,” in “nonattainment,” or 

“unclassifiable” with respect to the air quality standards, id. 

§ 7407(d)(1)(A). “Nonattainment” areas either fail to satisfy 

the NAAQS themselves or contribute to pollution in another 

area that does not satisfy the NAAQS. “Attainment” areas 

both satisfy the NAAQS and do not contribute to 

nonattainment status for another area. In “unclassifiable” 

areas, EPA lacks adequate information to make a 

determination either way. Id. § 7407(d)(1)(A)(i)-(iii). 

On August 5, 2013 EPA designated 29 areas as not 

meeting its new SO2 standards. Air Quality Designations for 

the 2010 Sulfur Dioxide (SO2) Primary National Ambient Air 

Quality Standard, 78 Fed. Reg. 47,191/3 (“Final Rule”). Each 

of the two petitioners now before us, Treasure State Resource 

Industry Association and United States Steel Corporation,

challenges one of these 29 designations: the Association 

attacks the one for part of Yellowstone County, Montana, and 

U.S. Steel challenges the one for part of Wayne County, 

Michigan. Each sought reconsideration by EPA, 

unsuccessfully. 79 Fed. Reg. 18,248/3 (Apr. 1, 2014); 79 Fed. 

Reg. 50,577/3 (Aug. 25, 2014). 

We deny the petitions for review. Except insofar as both 

are attacks on EPA’s August 2013 designations with respect 

to the 2010 SO2 NAAQS, the two claims have virtually 

nothing in common. We take Montana first, then Michigan.

* * *

The Association is “a trade association comprised of 

natural resource industries and associations, labor unions, 

consulting firms and law firms, and recreation organizations 
4

located throughout Montana.” Petitioners’ Br. iii. Its 

standing is clear and uncontested; its members are located 

within the nonattainment area and are subject to regulations 

resulting from the designation. The Association’s primary 

arguments are: (1) that the data on which EPA relied were so 

unreliable that its reliance was arbitrary and capricious, 42 

U.S.C. § 7607(d)(9)(A), and (2) that EPA’s application of the 

Act was retroactive within the meaning of Landgraf v. U.S.I. 

Film Products, 511 U.S. 244 (1994), and thus, there being no 

clear congressional intent to authorize retroactivity, not in 

accord with the statute. 

The Association claims that EPA failed to follow its 

regulations because Montana, which collected the monitoring 

data, had an “outdated” Quality Assurance Project Plan 

(“QAPP”) for data collection. In particular, EPA regulations 

require that states have a QAPP that 

ensure[s] that the monitoring results: (a) Meet a welldefined need, use, or purpose; (b) Provide data of 

adequate quality for the intended monitoring objectives; 

(c) Satisfy stakeholder expectations; (d) Comply with 

applicable standards specifications; (e) Comply with 

statutory (and other) requirements of society; and (f) 

Reflect consideration of cost and economics. 

40 C.F.R. § Pt. 58, App. A. Although the Association says 

that Montana’s QAPP was “outdated” because it was 

developed in 1996, it identifies only one respect in which 

Montana’s failure to adjust the QAPP might have undermined 

its usefulness or accuracy. Specifically it claims that the 1996 

QAPP was aimed at an obsolete NAAQS standard, seeking 

“to measure a standard set at more than six times the 2010 

SO2 NAAQS and [it therefore] contains sub-optimal 

equipment settings, range levels, and monitoring guidance” 

for measuring satisfaction of the new NAAQS. Petitioners’ 
5

Br. 22. We can easily imagine a situation where a calibration 

aimed at a different ambient pollution level would lead to 

such questionable readings that agency acceptance of the data 

would be arbitrary and capricious. But the Association

presents no evidence that the calibration to a prior standard 

here has actually led, or was likely to lead, to faulty 

measurement. In fact the record points the other way. 

Montana conducted numerous audits of the monitor at levels 

lower than the new standard, which showed the monitor’s 

ability to record data properly at that level. There was nothing 

unreasonable in EPA’s determination that the data from the 

monitor were “robust enough to be reliable” for the 2010 

NAAQS. Responses to Significant Comments on the State 

and Tribal Designation Recommendations for the 2010 Sulfur 

Dioxide National Ambient Air Quality Standards (NAAQS)

(July 2013) (“Responses to Comments”) at 45, Joint Appendix 

(“J.A.”) 431. 

The Association’s last data-quality claim is that EPA

inappropriately applied a “weight of evidence” standard in its 

evaluation of the air quality monitoring data. Specifically, it 

says, EPA’s regulation requiring use of the “weight of 

evidence” was promulgated only weeks before comments 

were due on EPA’s proposed SO2 designations and well after 

issuance of the new NAAQS standard. 78 Fed. Reg. 3,086, 

3,283/3-3,284/1 (Jan. 15, 2013). Given this timing, the 

Association claims that the use of the new “weight of 

evidence” standard was post hoc. But in its response to the 

Association’s petition for reconsideration EPA observed that 

in promulgating the standard it had merely codified its longestablished practice in review of data quality, EPA Denial 

Letter to Treasure State at 6, J.A. 302, and the Association 

offers only lame arguments to refute that contention. 

As to retroactivity, the Association’s argument turns on 

the fact that EPA used data from as far back as 2009 to make 
6

the nonattainment designation under the June 2010 SO2

NAAQS regulation. Thus it imposed special regulatory

burdens on parties in Yellowstone County as a direct result of 

activities that took place in 2009, and the first half of 2010, 

before promulgation of the June 2010 NAAQS rule. The 

regulatory burdens do not flow instantly from the 

nonattainment designation, but they flow ineluctably. 

Designation of an area as nonattainment triggers an obligation 

for the state within which the area is located to modify its SIP

(or create one), with the goal of bringing the area into 

attainment. To that end the SIP must require “all reasonably 

available control measures as expeditiously as practicable

(including such reductions in emissions from existing sources

in the area as may be obtained through the adoption, at a 

minimum, of reasonably available control technology).” 42 

U.S.C. § 7502(c)(1). And the SIP also must impose special 

permitting requirements on firms proposing construction of a 

new source or modification of an existing one, id. 

§ 7502(c)(5); the new or modified source must comply “with 

the lowest achievable emission rate,” id. § 7503(a)(2). Thus 

the challenged nonattainment designation leads to a regulatory 

burden on parties in nonattainment areas such as the 

Association’s members. 

The Act and EPA’s enforcement strategy made it highly 

likely that data pre-dating the final adoption of the new 

NAAQS would be critical in causing some areas to be 

designated nonattainment and to incur those burdens. 

Combining to make that probable are (1) EPA’s decision to 

measure compliance with the new NAAQS standard by a 3-

year average of various 1-hour readings, (2) the requirement 

that EPA make its final designations within three years of 

promulgation, 42 U.S.C. § 7407(d)(1)(B)(i), and (3) 

conventional process delays and a general desire to use full 

calendar years. The Association does not, however, challenge 

the three-year averaging rule itself. Rather, it attacks the 
7

actual designation in August 2013, which because of these

features in fact drew on data antedating the new NAAQS 

standard.

The Supreme Court will refuse “to give retroactive effect 

to statutes burdening private rights unless Congress ha[s]

made clear its intent.” Landgraf, 511 U.S. at 270. (The due 

process clause also may place limits on retroactive burdens, 

see, e.g., Usery v. Turner Elkhorn Mining Co., 428 U.S. 1 

(1976), but is not in play here.) We have already found, in a 

case involving a party’s attempt to have a nonattainment 

designation made effective before EPA actually issued the 

designation, that the sections of the Act relating to 

nonattainment “contain no language suggesting that Congress 

intended to give EPA the unusual ability to implement rules 

retroactively.” Sierra Club v. Whitman, 285 F.3d 63, 68 (D.C. 

Cir. 2002).1

 Thus a finding that EPA’s Final Rule had 

retroactive effect (within the meaning of Landgraf) would 

render it impermissible under the attainment designation 

provisions of the Act. 

Although Landgraf requires that courts evaluating a rule 

for retroactivity ask “whether the new provision attaches new 

legal consequences to events completed before its enactment,” 

that is far from the end of the story; “[a] statute does not 

operate ‘retrospectively’ merely because it is applied in a case 

arising from conduct antedating the statute’s enactment.” 511 

 1 Furthermore, the APA prohibits retroactive rulemaking. See

Georgetown Univ. Hosp. v. Bowen, 821 F.2d 750, 756-58 & n.11 

(D.C. Cir. 1987), aff'd, 488 U.S. 204 (1988) (citing 5 U.S.C. 

§ 551(4), defining a “rule” as “an agency statement of general or 

particular applicability and future effect” (emphasis added)). We 

said in Celtronix Telemetry, Inc. v. FCC, 272 F.3d 585, 588 (D.C. 

Cir. 2001), that the “tests formulated in Landgraf are indeed 

pertinent to the APA issue.” 
8

U.S. at 269-70. The most concrete factors are “considerations 

of fair notice, reasonable reliance, and settled expectations,”

id. at 270 (citations omitted), to which we now turn.

The typical form of unfairness that retroactivity may 

wreak is by radically undermining the value of costs that 

parties incurred in reasonable reliance on continuation of the 

status quo, or by discouraging parties from incurring costs that 

by virtue of the new rule might have yielded net savings. An 

example of the first would be decisions to build or improve a 

plant for compliance with the old standards—changes that as a 

result of the new rule and the nonattainment designation may

require costly retrofitting. A cost that knowledge of the new 

rule and nonattainment classification might have encouraged 

would be building to the resulting specifications—again in 

order to avoid retrofitting costs that would stem from an 

improvement that complied merely with the old regulatory 

landscape. (A further advantage would have been the chance 

of avoiding nonattainment designation—and its attendant 

regulatory entanglement—by improving the area’s overall air 

quality, but it’s hard to imagine a single source owner’s

employing such a strategy, which could easily be undermined 

by the conduct of other source owners.) Here, in fact, the 

record discloses no evidence of Yellowstone County source 

owners’ taking any such steps in reliance on the old standards. 

The absence of such evidence is hardly surprising in light 

of the established rules governing nonattainment designation 

and the ample public notice of the impending change in the 

NAAQS. The Act itself requires that “at five-year intervals

. . . , the [EPA] Administrator shall complete a thorough 

review of” the NAAQS and revise them as appropriate. 42 

U.S.C. § 7409(d)(1). Moreover, these changes have moved

generally toward greater stringency over the life of the Act. 

See links to historical NAAQS standards at 

http://www3.epa.gov/ttn/naaqs/criteria.html. More
9

specifically, EPA had long given notice of the prospect of 

more stringent SO2 regulations. (See the review of the history 

in 75 Fed. Reg. at 35,522/2-35,523/3.) As early as 1988, it 

requested public comment on a new 1-hour standard similar to 

the one that was adopted in 2010. 53 Fed. Reg. 14,926/1

(Apr. 26, 1988). In 1998, this court held that a later decision 

not to revise the standards had been inadequately reasoned. 

American Lung Association v. EPA, 134 F.3d 388 (D.C. Cir. 

1998). EPA embarked on further data collection, and in 2006

initiated the review of its SO2 air quality criteria, 71 Fed. Reg. 

28,023/2 (May 15, 2006), a review that culminated in the 

2010 standards. While of course divining the specifics of

EPA’s decision would have been impossible, firms had years 

of notice that more stringency was possible. Accordingly, any 

investment decisions taken in the expectation of stasis would 

not have qualified as having been made in reasonable reliance

on preexisting law. 

Finally, the Association challenges EPA’s denial of its 

reconsideration petition. 79 Fed. Reg. 50,577/3. Its main 

argument in its petition for reconsideration was that if EPA 

had considered new data from 2013 it would have found that 

Yellowstone County was no longer out of attainment. Petition 

for Reconsideration or Repeal of a Portion of the Final Rule 

and Request for an Administrative Stay Pending Agency 

Proceedings at 7-8, J.A. 332-33. There are at least two 

problems with this claim. First, the 2013 data were not 

complete or certified at the time that the Association

suggested that they be used. Id. at 6 n.28. And using only 

data for 2010-2012 would not have undone the county’s 

violation of the NAAQS. Responses to Comments at 51, J.A. 

437.

Second, a ruling that an agency’s disregard of data 

gathered after final agency action was arbitrary and capricious 

could make it difficult for many actions to go into effect. 
10

Since new data may continue to pour in, reconsideration based 

on such data could materially delay arrival at a final decision. 

And the Act clearly did intend to produce final rules, since 

“Congress imposed deadlines on EPA and thus clearly 

envisioned an end to the designation process.” Catawba

County, N.C. v. EPA, 571 F.3d 20, 51 (D.C. Cir. 2009). 

Further, parties in areas designated nonattainment aren’t 

without recourse: Congress explicitly provided a redesignation process in 42 U.S.C. §§ 7407(d)(3), 7505a. 

Rejecting the petition for reconsideration, EPA explained this 

recourse, as well as the possibility of submitting a request for 

a “clean data determination,” which “would suspend certain 

nonattainment planning requirements.” Treasure State Den. 

Ltr. at 22-23, J.A. 318-19. Given the difficulties arising from 

reconsideration of new data and the availability of other 

avenues of redress, it was reasonable for EPA to deny 

reconsideration of this claim. 

The Association’s remaining arguments, alleging data 

quality deficiencies that it claims the agency ignored in 

finalizing the Montana designation, were not specifically 

raised until reconsideration and were then fully and 

reasonably disposed of by EPA in its denial.

We therefore uphold the Final Rule’s designation of part 

of Yellowstone County as nonattainment. 

* * *

We turn now to the Michigan designation. U.S. Steel has 

a plant located in the nonattainment portion of Wayne County 

and does not dispute the designation of that portion as 

nonattainment. But it argues that it was not reasonable for 

EPA to designate part of Wayne County as nonattainment

without simultaneously making the same determination for at 

least that portion of neighboring Monroe County that includes 
11

the Monroe Coal-Fired Power Plant (the “Monroe plant”). 

Pointing to the statutory criteria for nonattainment 

designation, § 107(d)(1)(A)(i), 42 U.S.C. § 7407(d)(1)(A)(i), 

which require inclusion of any area “that contributes to 

ambient area quality in a nearby area that does not meet” the 

NAAQS, U.S. Steel says that SO2 from the Monroe plant 

significantly contributes to SO2 levels in Wayne County and 

that therefore designation of Wayne County without the 

Monroe plant violates the statute and is arbitrary and 

capricious. 

U.S. Steel must first establish its standing by showing 

satisfaction of the now-standard elements of injury in fact,

causation and redressability. Lujan v. Defenders of Wildlife, 

504 U.S. 555, 560-61 (1992). Once we understand the 

process for remedying nonattainment in an area so designated, 

it is apparent that U.S. Steel meets those requirements.

U.S. Steel has suffered an injury in fact that is “concrete 

and particularized” and “actual or imminent, not ‘conjectural’ 

or ‘hypothetical,’” id. at 560 (citations omitted), because the 

designation of Wayne County as nonattainment without the 

inclusion of the Monroe plant area subjects it to a markedly 

higher risk of facing costly (or more costly) regulatory 

pollution controls. EPA claims that there is little risk of such 

an injury, since Michigan can elect to address nonattainment 

in Wayne County by “impos[ing] emission reduction 

requirements on all facilities that it determines are, in fact, 

contributing to nonattainment.” Respondents’ Br. 40. Thus, 

says EPA, the burden of reducing pollution could be shared 

between U.S. Steel and the Monroe plant regardless of 

whether the Monroe plant is included in the nonattainment 

area. EPA’s contention is a considerable oversimplification.

The Act gives a kind of primacy to reductions from 

sources in the nonattainment area itself, and we have read it as 
12

sharply prioritizing reductions inside the nonattainment area. 

Speaking of the SIP required for a nonattainment area, the Act 

provides: 

(1) In general

Such plan provisions shall provide for the implementation 

of all reasonably available control measures as 

expeditiously as practicable (including such reductions in 

emissions from existing sources in the area as may be 

obtained through the adoption, at a minimum, of 

reasonably available control technology) and shall 

provide for attainment of the national primary ambient air 

quality standards.

Act, § 172(c)(1), 42 U.S.C. § 7502(c)(1) (emphasis added). 

We considered this provision in NRDC v. EPA, 571 F.3d 

1245 (D.C. Cir. 2009), where we reviewed an EPA rule 

defining state SIP obligations for NOx over a 22-state region 

and instituting a cap-and-trade program throughout the region. 

Besides relying on the language of the parenthetical clause in 

§ 172(c)(1), NRDC had expressed concern that EPA’s rule 

allowed states to rely on sources not only outside 

nonattainment areas but also on sources “in other states 

hundreds of miles away.” Final Opening Brief of Natural 

Resources Defense Council at 21, NRDC, 571 F.3d 1245 (No. 

06-1045). We ruled that the parenthetical “calls for 

reductions in emissions from sources in the area; reductions 

from sources outside the nonattainment area do not satisfy the 

requirement.” Id. at 1256. And we went on to say that 

satisfaction of § 172(c)(1)’s “reasonably available control 

technology” (“RACT”) mandate must “entail[] at least RACTlevel reductions in emissions from sources within the 

nonattainment area.” Id. Thus, if Monroe County were 

designated nonattainment (and if it is a significant enough 
13

contributor, as U.S. Steel claims), then the Monroe plant 

would be subject to RACT; without such designation, any 

state pressure for cutbacks at the Monroe plant would be up to 

Michigan (acting, of course, within the constraints of the Act). 

And, while Michigan could impose restrictions on the Monroe 

plant, as EPA assures us, under NRDC the resulting reductions 

would “not satisfy the [§ 172(c)(1) RACT] requirement.” Id.

Given that understanding of § 172(c)(1), it might seem 

that the cutbacks likely to be imposed on U.S. Steel will be 

the same regardless of whether the Monroe plant is included 

in the nonattainment area. But EPA’s concept of RACT is 

such that inclusion of the Monroe plant (again assuming that 

its contribution to SO2 exceedances in Wayne County is 

significant) would likely reduce the stringency of the RACT 

imposed on U.S. Steel. RACT takes into account “[t]he

necessity of imposing such controls in order to attain and 

maintain a national ambient air quality standard.” 40 C.F.R. 

§ 51.100(o)(1) (2009). Indeed, in its response to comments on 

the regulation targeting U.S. Steel’s SO2 emissions, the State 

of Michigan cites this definition. Proposed SIP, Appendix F: 

Draft Rule 430 Comments/Responses at 1-2, 

http://www.deq.state.mi.us/aps/downloads/SIP/SO2SIP.pdf.

Thus, expansion of the nonattainment area to include another 

seriously contributing source would likely reduce the severity 

of the RACT imposed on U.S. Steel; conversely, EPA’s 

failure to add the Monroe plant area inflicts a substantial risk 

of more severe controls on U.S. Steel, an imminent and nonhypothetical injury, redressable by a mandate to include that 

area.

EPA also argues that its Final Rule is not final within the 

meaning of the APA, 5 U.S.C. § 704, with respect to this 

challenge, because it expressly said that it had not completed 

the designation process for Monroe County. Michigan 

Technical Support Document at 7-8, J.A. 655-56. But this 
14

misconceives U.S. Steel’s claim, which, to repeat, is that it 

was unlawful to designate Wayne County without 

simultaneously designating the area containing the Monroe 

plant. 

Reaching the merits, however, we find neither a violation 

of the Act nor any arbitrariness in EPA’s action. For its SO2

rulemaking, EPA issued guidance to the states for making 

their initial recommendations, indicating that “the perimeter 

of a county containing a violating monitor would be the initial 

presumptive boundary for nonattainment areas.” 78 Fed. Reg. 

at 47,195/2. Nothing in the Act or its associated regulations 

prevents EPA from presumptively following county 

boundaries. Recall that the Act defines a nonattainment area 

as “any area that does not meet (or that contributes to ambient 

air quality in a nearby area that does not meet) the national 

primary or secondary ambient air quality standard for the 

pollutant.” 42 U.S.C. § 7407(d)(1)(A)(i). Assuming that the 

portion of Monroe County containing the Monroe plant may 

ultimately be found to contribute to nonattainment in Wayne 

County, nothing in the definition requires a simultaneous 

decision on both counties. (Nor does it require that a single 

area be created. At oral argument EPA counsel told the court 

that in the event of a later nonattainment designation of the 

Monroe plant area because of its contributions to Wayne 

County, “the measuring would ultimately be a collective one 

of [whether] these counties collectively brought 

[non]attainment at the monitoring site in Wayne County.” 

Oral Argument at 58:27.) 

Of course, EPA’s approach could still be arbitrary and 

capricious even in the absence of a statutory or regulatory 

mandate. Under the APA, EPA must “conform to ‘certain 

minimal standards of rationality.’” Small Refiner Lead PhaseDown Task Force v. EPA, 705 F.2d 506, 521 (D.C. Cir. 1983). 

But EPA has offered many reasons that justify its decision to 
15

defer a decision on Monroe County. Most importantly, there 

was uncertainty over whether pollution from Monroe County 

is, in fact, substantially contributing to air quality in Wayne 

County. The Monroe plant is approximately 54 kilometers 

away from the violating Wayne County monitor. Responses 

to Comments at 27, J.A. 413; Michigan Technical Support 

Document at 6, J.A. 654. Additionally, another monitor 

located between the Monroe plant and the violating Wayne 

County monitor—and significantly closer to the former than 

to the latter—showed no exceedances. Responses to 

Comments at 28, J.A. 414. Finally, EPA reasonably asserted 

the need for further study on the effect of recently-installed 

emission control scrubbers on the Monroe plant. Michigan 

Technical Support Document at 6, J.A. 654. Given the 

current uncertainty, postponement of the classification of 

Monroe County was not arbitrary and capricious. 

Finally, U.S. Steel’s challenge to the denial of its petition

for reconsideration fails. In denying that petition, EPA 

thoroughly and reasonably addressed U.S. Steel’s arguments. 

See EPA Denial Letter to U.S. Steel, J.A. 598-610.

* * *

The petitions for review of the Final Rule and EPA’s 

denial of petitions for reconsideration are accordingly

Denied.