FILED

United States Court of Appeals

Tenth Circuit

May 6, 2014

Elisabeth A. Shumaker

Clerk of Court

PUBLISH

UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

STATE OF UTAH, on behalf of the Utah

Department of Environmental Quality,

Division of Air Quality,

 Petitioner,

v.

UNITED STATES ENVIRONMENTAL

PROTECTION AGENCY, and GINA

McCARTHY, Administrator, United

States Environmental Protection Agency,

Respondents.

--------------------

UTAH ASSOCIATED MUNICIPAL

POWER SYSTEMS,

 Intervenor.

PACIFICORP,

 Petitioner,

v.

UNITED STATES ENVIRONMENTAL

PROTECTION AGENCY, and GINA

McCARTHY, Administrator, United

States Environmental Protection Agency,

 Respondents.

No. 13-9535

 No. 13-9536
--------------------

UTAH ASSOCIATED MUNICIPAL

POWER SYSTEM; STATE OF UTAH

DEPARTMENT OF ENVIRONMENTAL

QUALITY AND DIVISION OF AIR

QUALITY,

 Intervenors.

PETITION FOR REVIEW OF FINAL DECISION ISSUED BY 

THE UNITED STATES ENVIRONMENTAL PROTECTION AGENCY

EPA-R09-OAR-2011-0589 and EPA-R08-OAR-2011-0114

E. Blaine Rawson, Ray Quinney & Nebeker, P.C., (Michael G. Jenkins, Assistant

General Counsel, PacifiCorp Energy, on the briefs), Salt Lake City, Utah, for

Petitioner PacifiCorp.

Christian C. Stephens, Assistant Attorney General, (Craig W. Anderson, Division

Chief and Assistant Attorney General, on the briefs), Utah Attorney General’s

Office, Salt Lake City, Utah, for Petitioner-Intervenor State of Utah.

Stephanie J. Talbert, United States Department of Justice, Environment & Natural

Resources Division, Washington, D.C. (Robert G. Dreher, Acting Assistant

Attorney General, United States Department of Justice, Environment & Natural

Resources Division, Washington, D.C.; Chloe H. Kolman, United States

Department of Justice, Environment & Natural Resources Division, Washington,

D.C.; Matthew C. Marks, Of Counsel, Office of General Counsel, United States

Environmental Protection Agency, Washington, D.C.; Sara L. Laumann, Of

Counsel, Office of Regional Counsel, United States Environmental Protection

Agency, Region 8, Denver, Colorado, on the brief), for Respondent.

H. Michael Keller, Van Cott, Bagley, Cornwall & McCarthy, P.C., (Mary Jane E.

Galvin-Wagg, Van Cott, Bagley, Cornwall & McCarthy, P.C.; Mason Baker,

General Counsel Utah Associated Municipal Power Systems, on the briefs), Salt

Lake City, Utah, for Intervenor Utah Associated Municipal Power Systems.

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Before BACHARACH, SEYMOUR, and MURPHY, Circuit Judges.

BACHARACH, Circuit Judge.

This action grows out of the Clean Air Act, which requires states to adopt

programs that will reduce emission of air pollutants that affect visibility. In light

of this requirement, the State of Utah submitted a revised plan to the

Environmental Protection Agency. The agency partially rejected the plan, and the

State of Utah and one of the affected companies (PacifiCorp) filed petitions for

review. Though all parties agree that we have jurisdiction, we disagree and

dismiss the petitions.

I. Timeliness as a Jurisdictional Requirement

Under the Clean Air Act, an aggrieved party must ordinarily file a petition

for review within 60 days of the date on which the EPA’s action appears in the

Federal Register. 42 U.S.C. § 7607(b)(1) (2012). This deadline is jurisdictional. 

See Okla. Dep’t of Envtl. Quality v. EPA, 740 F.3d 185, 191 (D.C. Cir. 2014)

(stating that the 60-day deadline in 42 U.S.C. § 7607(b)(1) is jurisdictional).

The agency’s rejection of the Utah plan appeared in the Federal Register on

December 14, 2012, and Utah and PacifiCorp waited until March 21 and 22, 2013,

to file petitions for review. 77 Fed. Reg. 74355 (Dec. 14, 2012) (EPA action). 

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Because more than 60 days had passed from the date of publication in the Federal

Register, the petitions would ordinarily be considered untimely.

II. The Parties’ Arguments

The EPA, Utah, and PacifiCorp present four arguments in support of

jurisdiction:

! The 60-day deadline does not apply to grounds arising after the 60th

day;

! the EPA changed the promulgation date when it identified the

deadline as March 25, 2013; 

! filing after the 60th day is allowed under the “reopener doctrine”; and

! denial of jurisdiction would be inequitable.

We reject each argument as a basis for jurisdiction.

A. Grounds Arising After the 60th Day

There is an exception to the 60-day deadline when the petition “is based

solely on grounds arising” after the 60th day. 42 U.S.C. § 7607(b)(1) (2012). 

PacifiCorp invokes this exception, but it does not apply here because the

“grounds” for the petitions lie in the EPA action published on December 14, 2012.

The term “grounds,” as used in § 7607(b)(1), is not defined in our

precedents. But the Supreme Court has elsewhere defined the term “grounds” as

“a sufficient legal basis for granting the relief sought.” Sanders v. United States,

373 U.S. 1, 16 (1963) (defining the term “ground” for successive motions for

relief under the habeas statutes or 28 U.S.C. § 2255).

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The legal basis for the claim existed on December 14, 2012, when the

EPA’s rejection of the Utah plan appeared in the Federal Register. Thus, Utah and

PacificCorp cannot avoid the jurisdictional bar based on the existence of grounds

arising after the 60th day.

B. Change in the Notice of Promulgation Date

Utah, PacifiCorp, and the EPA also argue that: (1) the EPA changed the

notice date of its decision to January 22, 2013, and (2) based on that date, the

petitions would be timely. These arguments are invalid.

When the EPA decides on a state plan, it typically alerts interested parties to

the 60-day deadline for filing a petition for review. But the EPA inadvertently

neglected to include this statement when rejecting the Utah plan. Trying to correct

the error, the EPA stated on January 22, 2013, that aggrieved parties would have

until March 25, 2013, to file a petition for review. 78 Fed. Reg. 4341 (Jan. 22,

2013).

Utah and PacifiCorp relied on the EPA’s statement, assuming they had until

March 25, 2013, to file a petition for review. Based on this assumption, Utah and

PacifiCorp filed petitions for review on March 21 and 22, 2013. The parties now

argue that when the EPA identified the new deadline (March 25, 2013), it

effectively changed the notice date of its decision. This argument is invalid as a

matter of law.

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To support this argument, the parties rely on 40 C.F.R. § 23.3. This section

states that the EPA’s action is considered the date of publication in the Federal

Register “[u]nless the Administrator otherwise explicitly provides in a particular

promulgation, approval, or action.” 40 C.F.R. § 23.3. Under § 23.3, we must

determine whether the EPA “explicitly” changed the promulgation date.

The word “explicit” means “unequivocal” or “fully and clearly expressed or

demonstrated,” with nothing left that is “merely implied.” Webster’s New

Universal Unabridged Dictionary 681 (1996). With this definition, we conclude

that the EPA did not explicitly change the promulgation date.

The EPA may have changed the date implicitly, for the EPA undoubtedly

intended to restart the 60-day period. But we are obligated to follow the EPA’s

own words in 40 C.F.R. § 23.3. There, the EPA said that it could change the

promulgation date “explicitly,” not “implicitly.” When the EPA restarted the 60-

day deadline, it never said it was changing the promulgation date of its earlier

determination. As a result, the EPA did not “explicitly” change the promulgation

date when it incorrectly identified the deadline as March 25, 2013.

In oral argument, the Petitioners’ counsel argued that we should defer to the

EPA’s interpretation of 40 C.F.R. § 23.3. Two problems exist: The EPA never

said it had changed the promulgation date, and it has not characterized its

identification of the deadline as an “explicit” change in the promulgation date;1

1 The EPA did say in its brief that it had “expressly intended” to change the “notice

date of promulgation.” EPA Jurisd. Mem. at 1-2 (Apr. 24, 2013). But, “intending” to do

something is not the same as actually doing it.

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thus, we do not have a contrary interpretation by the EPA to defer to even if

deference were otherwise appropriate.

C. The “Reopener Doctrine”

PacifiCorp also invokes the “reopener doctrine.” The D.C. Circuit Court of

Appeals has recognized the doctrine, but we have not decided whether to adopt the

doctrine in our circuit. See Council Tree Investors, Inc. v. FCC, 739 F.3d 544,

553 n.7 (10th Cir. 2014) (“we need not decide in this case whether or not to adopt

the reopener doctrine”); HRI, Inc. v. EPA, 198 F.3d 1224, 1238 n.8 (10th Cir.

2000) (“we decline to decide whether or not to adopt the ‘reopener doctrine’ in

this Circuit”). We need not decide here whether to adopt the doctrine. Even if we

were to do so, it would not apply.

“The reopener doctrine allows judicial review where an agency has—either

explicitly or implicitly—undertaken to ‘reexamine its former choice.’” Nat’l

Mining Ass’n v. U.S. Dep’t of the Interior, 70 F.3d 1345, 1351 (D.C. Cir. 1995)

(quoting Pub. Citizen v. Nuclear Regulatory Comm’n, 901 F.2d 147, 151 (D.C.

Cir. 1990)); see also P & V Enters. v. U.S. Army Corps of Eng’rs, 516 F.3d 1021,

1024 (D.C. Cir. 2008) (stating that the “[reopener] doctrine only applies . . . where

‘the entire context’ demonstrates that the agency ‘ha[s] undertaken a serious,

substantive reconsideration of the [existing] rule’” (second and third alteration in

original) (citation omitted) (quoting Pub. Citizen, 901 F.2d at 150; Nat’l Mining

Ass’n, 70 F.3d at 1352)).

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This doctrine, as defined in the D.C. Circuit Court of Appeals, would not

apply to the EPA’s so-called “correction.” There, the EPA stated that petitions

would be due March 25, 2013, but it did not suggest that it had reexamined, or

would reexamine, its rejection of the Utah plan. Thus, even if we were to adopt

the reopener doctrine, it would not apply here.

D. Inequity to Utah and PacifiCorp

The State of Utah and PacificCorp argue that it would be inequitable to

dismiss the petitions on the ground of timeliness. We agree that the jurisdictional

bar creates an inequity. The EPA stated that petitions were not due until March

25, 2013, and Utah and PacifiCorp naturally assumed that the EPA was correct. 

But it was not, and we cannot expand our jurisdiction to avoid hardships even

when they are inequitable. Bowles v. Russell, 551 U.S. 205, 213-14 (2007).

III. Conclusion

The petitions for review are untimely; thus, we dismiss both petitions based

on a lack of jurisdiction.

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