ORAL ARGUMENT SCHEDULED FOR APRIL 16, 2015 

No. 14-1146 

______________________________________________ 

IN THE UNITED STATES COURT OF APPEALS 

FOR THE DISTRICT OF COLUMBIA CIRCUIT

______________________________________________ 

STATE OF WEST VIRGINIA, et al., 

Petitioners, 

v. 

UNITED STATES ENVIRONMENTAL PROTECTION AGENCY, 

Respondent. 

______________________________________________ 

On Petition for Review 

______________________________________________ 

FINAL BRIEF FOR RESPONDENT EPA 

______________________________________________ 

 

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 4, 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), Respondent the United States 

Environmental Protection Agency states as follows: 

Parties and Amici: 

All parties appearing in this Court are listed by Petitioners, except: 

 Amici for Petitioners: The American Chemistry Council; the American 

Coatings Ass’n; the American Fuel and Petrochemical Manufacturers; the American 

Iron and Steel Institute; the Chamber of Commerce; the Council of Industrial Boiler 

Owners; the Independent Petroleum Ass’n of America; the Metals Service Center 

Institute; and the Pacific Legal Foundation. 

 Amicus for Respondent: The Institute for Policy Integrity at New York 

University School of Law. 

Rulings under Review: 

 Petitioners purport to challenge a settlement agreement executed in 2010 and 

finalized by EPA on March 2, 2011, but ask the Court enjoin EPA from finalizing the 

following proposed rule: Carbon Pollution Emission Guidelines for Existing Stationary 

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

 

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Related Cases: 

This case is related to, and has been designated by the Court for argument on 

the same day as, the following two consolidated cases: 

(1) Murray Energy Corp. v. EPA, No. 14-1112 (D.C. Cir. filed June 18, 2014) 

(petition for extraordinary writ to “prohibit” ongoing rulemaking); and 

(2) Murray Energy Corp. v. EPA, No. 14-1151 (D.C. Cir. filed Aug. 15, 2014) 

(challenging proposed rule Carbon Pollution Emission Guidelines for Existing Stationary 

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

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TABLE OF CONTENTS 

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

Statement of Issues ................................................................................................................... 1 

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

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

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

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

II. THE 1990 AMENDMENTS ...................................................................................... 4 

III. THE 2010 SETTLEMENT AGREEMENT ........................................................... 5 

IV. THE MATS RULE ....................................................................................................... 7 

V. THE PROPOSED RULE ........................................................................................... 8 

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

Argument .................................................................................................................................. 11 

I. PETITIONERS LACK ARTICLE III STANDING .......................................... 11 

A. EPA’s Entry Into the Settlement Agreement Caused No Injury ............. 11 

B. Petitioners’ Claims Of Injury From Publication 

Of The Proposed Rule Are Insufficient ....................................................... 18 

C. Petitioners Fail to Show Redressability ........................................................ 21 

II. THE SETTLEMENT AGREEMENT IS NOT A “FINAL ACTION.” ........ 22 

III. PETITIONERS’ CHALLENGE TO THE AGREEMENT IS MOOT ......... 25 

IV. THIS PETITION IS UNTIMELY .......................................................................... 27 

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V. THE PENDENCY OF AN ONGOING RULEMAKING PROCESS 

RENDERS THIS PETITION UNRIPE FOR JUDICIAL REVIEW ............. 28 

VI. PETITIONERS’ CHALLENGE FAILS ON THE MERITS ........................... 32 

A. The Text of § 7411(d) Does not Mandate Petitioners’ Reading .............. 33 

 1. There are multiple “literal” readings of 42 U.S.C. § 7411(d) ......... 35 

2. 42 U.S.C. § 7411(d) is replete with ambiguous terminology ......... 38 

3. The Senate Amendment compounds the ambiguity ...................... 40 

B. The Legislative History Does Not Support Petitioners’ Reading ............ 45 

 1. Congress sought to broaden EPA’s authority in 1990, 

not narrow it ......................................................................................... 45 

2. The legislative history is far more consistent with an intent 

to preserve the scope of section 7411(d) – or to broaden it ......... 47 

3. Congress was not seeking to avoid “double regulation,” 

and none results from regulating different pollutants under 

different programs ............................................................................... 48 

C. The Statutory Context Does Not Support Petitioners’ Theory ............... 49 

D. EPA Has Never Adopted Petitioner’s Interpretation of § 7411(d) ......... 51 

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

 

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TABLE OF AUTHORITIES 

CASES 

Abbott Labs. v. Gardner, 

 387 U.S. 136 (1967) .............................................................................................................. 28 

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

 28 F.3d 162 (D.C. Cir. 1994) .............................................................................................. 31 

Ala. Power Co. v. Costle, 

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

Alt. Research & Dev. Found. v. Veneman, 

 262 F.3d 406 (D.C. Cir. 2001) ............................................................................... 15, 17, 20 

Am. Elec. Power Co. v. Connecticut, 

 131 S. Ct. 2527 (2011) ......................................................................................................... 34 

Am. Sec. Vanlines, Inc. v. Gallagher, 

 782 F.2d 1056 (D.C. Cir. 1986) .......................................................................................... 26

*API v. EPA, 

 683 F.3d 382 (D.C. Cir. 2012) ............................................................................... 28, 29, 31 

API v. SEC, 

 714 F.3d 1329 (D.C. Cir. 2013) .......................................................................................... 41

Ass’n of Irritated Residents v. EPA, 

 494 F.3d 1027 (D.C. Cir. 2007) .......................................................................................... 24

Atl. States Legal Found. v. EPA, 

 325 F.3d 281 (D.C. Cir. 2003) ..................................................................................... 29, 31 

*Bennett v. Spear, 

 520 U.S. 154 (1997) .............................................................................................................. 23 

Burgess v. United States, 

 553 U.S. 124 (2008) .............................................................................................................. 41 

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CBS, Inc. v. FCC, 

 453 U.S. 367 (1981) .............................................................................................................. 48 

Ctr. for Biological Diversity v. EPA, 

 274 F.R.D. 305 (D.D.C. 2011) ........................................................................................... 15 

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

 467 U.S. 837 (1984) ....................................................................................................... 11, 32 

Citizens to Save Spencer Cnty. v. U.S. EPA, 

 600 F.2d 844 (D.C. 1979) ................................................................................................... 43 

Clapper v. Amnesty Int’l USA, 

 133 S. Ct. 1138 (2013) ............................................................................................ 11, 12, 18 

Clean Water Action Council of Ne. Wis., Inc. v. EPA, 

 765 F.3d 749 (7th Cir. 2014) .............................................................................................. 27 

Conserv. Nw. v. Sherman, 

 715 F.3d 1181 (9th Cir. 2013) ............................................................................................ 17 

Daimler Trucks N. Am. L.L.C. v. EPA, 

 745 F.3d 1212 (D.C. Cir. 2013) ................................................................................... 25, 26 

*Defenders of Wildlife v. Perciasepe, 

 714 F.3d 1317 (D.C. Cir. 2013) ................................................................ 14, 15, 16, 17, 18 

Devon Energy Corp. v. Kempthorne, 

 551 F.3d 1030 (D.C. Cir. 2008) .......................................................................................... 23

Envtl. Def. v. Leavitt, 

 329 F. Supp. 2d 55 (D.D.C. 2004) .............................................................................. 15, 17 

Exec. Bus. Media, Inc. v. United States Dep’t of Defense, 

 3 F.3d 759 (4th Cir. 1993) ................................................................................................... 25 

Five Flags Pipe Line Co. v. DOT, 

 854 F.2d 1438 (D.C. Cir. 1988) ............................................................................................ 5 

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Grocery Mfrs. Ass’n v. EPA, 

 693 F.3d 169 (D.C. Cir. 2012), 

 Cert. denied, 133 S. Ct. 2880 (2013) .................................................................................. 19 

Holistic Candlers & Consumers Ass’n v. FDA, 

 664 F.3d 940 (D.C. Cir. 2012) ..................................................................................... 30, 31 

In re Endangered Species Act Section 4 Deadline Litig., 

 704 F.3d 972 (D.C. Cir. 2013) ............................................................................................ 15 

Local No. 93, Int’l Ass’n of Firefighters v. Cleveland, 

 478 U.S. 501 (1986) ....................................................................................................... 15, 25 

Makins v. District of Columbia, 

 277 F.3d 544 (D.C. Cir. 2002) ............................................................................................ 25 

Marks v. United States, 

 24 Cl. Ct. 310 (Cl. Ct. 1991) ............................................................................................... 26 

Mass. v. EPA, 

 549 U.S. 497 (2007) ......................................................................................................... 5, 21 

Med. Waste Inst. & Energy Recovery Council v. EPA, 

 645 F.3d 420 (D.C. Cir. 2011) ............................................................................................ 27 

Michigan v. EPA, 

 135 S. Ct. 702 (Nov. 25, 2014) (No. 14-46) ................................................................ 8, 33 

Minard Run Oil Co. v. U.S. Forest Serv., 

 670 F.3d 236 (3d Cir. 2011) ......................................................................................... 17, 26 

Nat’l Ass’n of Clean Air Agencies v. EPA, 

 489 F.3d 1221 (D.C. Cir. 2007) .......................................................................................... 20

*Nat’l Ass’n of Home Builders v. EPA, 

 667 F.3d 6 (D.C. Cir. 2011) ............................................................................ 15, 18, 19, 20 

Nat’l Envtl. Dev. Ass’ns Clean Air Project v. EPA, 

 686 F.3d 803 (D.C. Cir. 2012), 

 Cert. denied, 133 S. Ct. 983 (2013) ............................................................................. 23, 24 

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New Jersey v. EPA, 

 517 F.3d 574 (D.C. Cir. 2008) ....................................................................................... 4, 51 

Natural Res. Def. Council v. Costle, 

 561 F.2d 904 (D.C. Cir. 1977) ............................................................................................ 16 

Ne. Md. Waste Disposal Auth. v. EPA, 

 358 F.3d 936 (D.C. Cir. 2004) ............................................................................................ 30 

Oklahoma Dep’t of Envtl. Quality v. EPA, 

 740 F.3d 185 (D.C. Cir. 2014) .............................................................................. 20, 22, 27 

Reiter v. Sonotone Corp., 

 442 U.S. 330 (1979) .............................................................................................................. 36 

Rush Prudential HMO, Inc. v. Moran, 

 536 U.S. 355 (2002) .............................................................................................................. 39 

Scialabba v. Cuellar de Osorio., 

 134 S. Ct. 2191 (2014) .................................................................................................. 43, 44 

Toilet Goods Ass’n v. Gardner, 

 387 U.S. 158 (1967) .............................................................................................................. 24 

Tozzi v. HHS, 

 271 F.3d 301 (D.C. Cir. 2001) ............................................................................................ 20 

United States v. Carpenter, 

 526 F.3d 1237 (9th Cir. 2008) ............................................................................................ 25 

United States v. Neville, 

 82 F.3d 1101 (D.C. Cir. 1996) ............................................................................................ 47 

United States v. Welden, 

 377 U.S. 95 (1964) ................................................................................................................ 43 

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

 526 U.S. 358 (1999) .............................................................................................................. 39 

Utah v. EPA, 

 750 F.3d 1182 (10th Cir. 2014) .......................................................................................... 27

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Util. Air Regulatory Group v. EPA, 

 320 F.3d 272 (D.C. Cir. 2003) ............................................................................................ 31 

*Util. Air Regulatory Group v. EPA, 

 134 S. Ct. 2427 (2014) ............................................................................................ 38, 40, 49 

Util. Air Regulatory Group v. EPA, 

 744 F.3d 741 (D.C. Cir. 2014) ........................................................................................... 26 

Village of Kaktovik v. Watt, 

 689 F.2d 222 (D.C. Cir. 1982) ............................................................................................ 26 

White Stallion Energy Center, L.L.C. v. EPA, 

 748 F.3d 1222 (D.C. Cir. 2014) ........................................................................................ 7, 8

Wash. Hosp. Center v. Bowen, 

 795 F.2d 139 (D.C. Cir. 1986) ........................................................................................... 41 

West Virginia v. EPA, 

 362 F.3d 861 (D.C. Cir. 2004) ........................................................................................... 20 

*Whitman v. Am. Trucking Ass’ns, Inc., 

 531 U.S. 457 (2001) ..................................................................................................... 23, 54 

Young v. Cmty. Nutrition Inst., 

 476 U.S. 974 (1986) ............................................................................................................ 39 

STATUTES

1 U.S.C. § 112 ............................................................................................................................. 5 

1 U.S.C. § 204(a) ........................................................................................................................ 5 

5 U.S.C. § 706(2)(A) ................................................................................................................ 22 

11 U.S.C. § 101 ......................................................................................................................... 43 

21 U.S.C. § 355 ......................................................................................................................... 43 

26 U.S.C. § 1201 ...................................................................................................................... 43 

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42 U.S.C. § 7401(b)(1) ............................................................................................................. 50 

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

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

*42 U.S.C. § 7411 ........................................................................................................... 3, 5, 51 

42 U.S.C. § 7411(b) ........................................................................................................ 3, 4, 12 

42 U.S.C. § 7411(b)(1)(A) ......................................................................................................... 3 

*42 U.S.C. § 7411(d) ....................... 1, 2, 4, 8, 11, 13, 27, 32, 34, 35, 38, 40, 44, 47, 50, 51 

42 U.S.C. § 7411(d)(1) (1988) ................................................................................................. 5 

*42 U.S.C. § 7411(d)(1) ............................................................................. 4, 33, 35, 36, 37, 38 

42 U.S.C. § 7411(d)(2) ............................................................................................................... 4 

*42 U.S.C. § 7412 ........................................................................... 1, 7, 33, 39, 40, 45, 49, 52 

42 U.S.C. § 7412(a) .................................................................................................................... 4 

42 U.S.C. § 7412(b)(1) ............................................................................................................... 4 

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

42 U.S.C. § 7412(c) ................................................................................................................... 7 

42 U.S.C. § 7412(c)(1) ............................................................................................................. 38 

42 U.S.C. § 7412(d)(1) ............................................................................................................... 4 

42 U.S.C. § 7412(d)(7) ...................................................................................................... 49, 50 

42 U.S.C. § 7412(n)(1)(A) .................................................................................................. 7, 49 

42 U.S.C. § 7413(g) ............................................................................................................. 7, 24 

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42 U.S.C. § 7416 ...................................................................................................................... 48 

42 U.S.C. § 7521(a)(1) ............................................................................................................. 21 

*42 U.S.C. § 7607(b)(1) ....................................................................................... 13, 21, 22, 27 

42 U.S.C. § 7607(d) ................................................................................................................. 12 

42 U.S.C. § 7607(d)(3) ............................................................................................................. 12 

42 U.S.C. § 7607(d)(6)(A)(ii) ........................................................................................... 12, 30 

42 U.S.C. § 7607(d)(6)(B) ....................................................................................................... 12 

42 U.S.C. § 7607(e) .................................................................................................................. 22 

42 U.S.C. § 9874 ...................................................................................................................... 43 

Pub. L. No. 91-604, 84 Stat. 1676, 1684 (1970) .................................................................. 5 

*Pub. L. No. 101-549, § 108(g), 104 Stat. 2399, 2467 (1990) ............................................. 5 

*Pub. L. No. 101-549, § 302(a), 104 Stat. 2399, 2574 (1990) ............................... 5, 40, 42 

FEDERAL REGISTER

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) ..................................................................................... 52 

75 Fed. Reg. 82,392 (Dec. 30, 2010) ....................................................................................... 7 

77 Fed. Reg. 9304 (Feb. 16, 2012) ............................................................................... 7, 8, 27 

77 Fed. Reg. 22,392 (Apr. 13, 2012) ............................................................................ 7, 8, 27 

79 Fed. Reg. 1352 (Jan. 8, 2014) ................................................................................. 8, 19, 31 

79 Fed. Reg. 1430 (Jan. 8, 2014) ....................................................................................... 8, 19 

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79 Fed. Reg. 34,830 (June 18, 2014) ................................................................. 2, 8, 9, 22, 29 

79 Fed. Reg. 34,959 (June 18, 2014) ....................................................................................... 8 

79 Fed. Reg. 57,492 (Sept. 25, 2014) ...................................................................................... 9 

LEGISLATIVE HISTORY

S. Rep. No. 101-228 at 14, 123, 133, reprinted in 5 A Legislative History of the Clean 

Air Act Amendments of 1990 (“Legis. Hist.”) 8338, 8354, 8463, 8473 (Comm. Print 

1993) ............................................................................................................................. 45, 46, 47 

H.R. Rep. No. 101-952 at 355, 336, 340, 345 & 347, reprinted in 5 Legis. Hist. at 

1785, 1786, 1790, 1795, & 1997 ............................................................................................ 46 

S.1490 § 108 (July 27, 1989) .................................................................................................. 42 

S.1630 (Dec. 20, 1989) ........................................................................................................... 42 

1 Legis. Hist. at 46 n.1 ..................................................................................................... 47, 48 

TREATISES 

Senate Legislative Drafting Manual, § 126(b)(2) ................................................................. 41 

Strunk & White, The Elements of Style, p.3 (The Penguin Press, 2003) ...................... 37 

ELECTRONIC DATABASES 

Merriam-Webster.com ..................................................................................................... 35, 36 

*Authorities chiefly relied on are marked with asterisks. 

 

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GLOSSARY 

CO2 Carbon dioxide 

EPA United States Environmental Protection Agency 

NAAQS National Ambient Air Quality Standards 

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Jurisdiction and Standing 

 As explained in Arguments I through V below, Petitioners lack standing and 

the Court lacks jurisdiction over this challenge to a 2010 settlement agreement. 

Statement of Issues 

1. Whether Petitioners lack Article III standing to seek declaratory and 

injunctive relief in connection with a settlement agreement that sets rulemaking 

deadlines but does not limit EPA’s discretion over the final rulemaking action; 

2. Whether the Court also lacks jurisdiction because the settlement itself is 

not a final action, because the challenge to the settlement is both moot and untimely, 

and because the pendency of an ongoing rulemaking that will consider the same legal 

questions renders the asserted dispute unripe for review; and 

3. Whether Petitioners’ interpretation of 42 U.S.C. § 7411(d) as barring 

EPA from addressing harmful carbon dioxide (“CO2”) emissions from existing power 

plants because EPA previously regulated, under 42 U.S.C. § 7412, different pollutants 

emitted by these plants is the only permissible interpretation of that text. 

Statutes and Regulations 

 All relevant statutes and regulations are set forth in Respondent’s Statutory 

Addendum. 

 

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Statement of the Case 

Greenhouse gas pollution threatens Americans’ welfare 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 – primarily CO2 – among U.S. stationary sources. Id. 

Last year, EPA took a historic step towards addressing those emissions, proposing 

that states submit plans for achieving CO2 emissions goals under section 111(d) of the 

Clean Air Act (“Act”), 42 U.S.C. § 7411(d). Id. at 34,832-35. 

 Petitioners seek to stop this ongoing rulemaking. To avoid the requirement 

that a rule be final before judicial review occurs, they purport to challenge an obsolete 

2010 settlement agreement wherein EPA agreed to propose a rule addressing power 

plant greenhouse gas emissions by mid-2011, arguing that EPA’s regulation of power 

plants’ hazardous pollutant emissions in 2012 rendered that prior agreement unlawful. 

The premise of Petitioners’ suit is wrong; the Proposed Rule is not the result of 

that settlement agreement, but rather part of an Administration initiative to address 

the most critical environmental problem of our time. Petitioners are also wrong on 

the merits; section 7411(d) need not be read to have the illogical result of barring 

regulation of CO2 because power plants’ emissions of other pollutants have been 

regulated under section 7412. Above all, Petitioners are wrong to think that they can 

preempt a rulemaking. This Court has never so allowed, and it should not do so now. 

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Background 

I. THE CLEAN AIR ACT 

The 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 sets 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). 

Pollutants in the first category (criteria pollutants) are regulated under the 

National Ambient Air Quality Standards (NAAQS) program. See 42 U.S.C. §§ 7408 

& 7410. Pollutants in the second category (hazardous pollutants) are regulated under 

42 U.S.C. § 7412. Other harmful pollutants not regulated under the NAAQS or 

hazardous pollutant programs fall into the third category, and are subject to regulation 

under 42 U.S.C. § 7411. Together, these three programs establish a comprehensive 

scheme for protecting the nation’s air quality and public health and welfare. 

The section 7411 program 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 

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particular pollutant under section 7411(b), section 7411(d) obligates 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). 

II. THE 1990 AMENDMENTS 

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

wanted to address EPA’s slow progress in regulating hazardous air pollutants under 

section 7412. See New Jersey v. EPA, 517 F.3d 574, 578 (D.C. Cir. 2008) (prior to 

1990, “EPA listed only eight [hazardous pollutants]” and “addressed only a limited 

selection of possible pollution sources”). To that end, Congress established a 

comprehensive list of hazardous air pollutants; set criteria for listing different “source 

categories” of such pollutants; and required EPA to “establish[] emission standards 

for each category or subcategory of major sources and area sources of hazardous air 

pollutants listed for regulation.” 42 U.S.C. § 7412(a), (b)(1) & (2), & (d)(1). These 

changes were intended to “eliminate[] much of EPA’s discretion” in regulating 

hazardous pollutant emissions. 517 F.3d at 578. 

 In the course of overhauling the regulation of hazardous air 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: 

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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) (1988); Pub. L. No. 91-604, 84 Stat. 1676, 1684 (1970). 

To address the obsolete cross-reference to section 7412(b)(1)(A), Congress 

passed two differing amendments – one from the House and one from the Senate – 

that were never reconciled in conference. The House amendment replaced the crossreference 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 simple cross-reference to new 

section 7412. Pub. L. No. 101-549, § 302(a), 104 Stat. 2399, 2574 (1990). Both 

amendments were included in the Statutes at Large, which supersedes the U.S. Code if 

there is a conflict. 1 U.S.C. §§ 112 & 204(a); Five Flags Pipe Line Co. v. Dep’t of 

Transp., 854 F.2d 1438, 1440 (D.C. Cir. 1988). 

III. THE 2010 SETTLEMENT AGREEMENT 

In New York v. EPA, D.C. Cir. No. 06-1322 (ECF No. 1068502), states and 

environmental groups petitioned for judicial review of a final rule issued under 42 

U.S.C. § 7411, contending that the rule should have included standards of 

performance for greenhouse gas emissions from power plants. Following 

Massachusetts v. EPA, 549 U.S. 497, 558 (2007) (holding that greenhouse gases are 

“air pollutants” as defined in the Act), this Court granted EPA’s requested remand for 

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further consideration of the issues related to greenhouse gas emissions in light of that 

decision. ECF No. 1068502, September 24, 2007 Order (Case No. 06-1322). 

After the remand, EPA executed a settlement agreement in December 2010 

with the New York v. EPA petitioners (“Settlement Agreement” or “Agreement”). 

EPA agreed, inter alia, to sign “a proposed rule under [Clean Air Act] section 111(d) 

that includes emissions guidelines” for greenhouse gases for existing electric utility 

steam generating units (“power plants”) by July 26, 2011. Agreement ¶ 2 (JA 3). EPA 

further agreed that, if it separately elected to finalize standards of performance for new 

and modified sources, and after considering any comments, it would take final action 

with respect to the proposed rule by May 26, 2012. Id. ¶ 4 (JA 4). The Agreement 

was modified in June 2011, changing the date by which EPA was to sign a proposed 

rule addressing greenhouse gas emissions from existing power plants to September 30, 

2011. JA 24-26 (“Modification Agreement”). 

In the Settlement Agreement, EPA preserved all discretion accorded to it by 

the Act and general principles of administrative law, see Agreement ¶ 11 (JA 6), 

including the discretion to withdraw the proposed guidelines for existing power 

plants. The deadlines set forth in the Agreement were not strictly enforceable. The 

sole remedy provided in the event EPA did not take action by the deadlines was for 

the other settling parties to file a motion or petition, or initiate a new action, seeking 

to compel EPA to take action in response to this Court’s remand order in New York 

v. EPA, No. 06-1322 (ECF No. 1068502). Agreement ¶ 7 (JA 4-5). 

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Prior to finalizing its entry into the Settlement Agreement, EPA published the 

Agreement in the Federal Register for public comment, as required by 42 U.S.C. § 

7413(g). See 75 Fed. Reg. 82,392 (Dec. 30, 2010) (notice soliciting comments). EPA 

did not receive any comments questioning its authority to conduct a section 7411(d) 

rulemaking for power plants as a consequence of having listed them as a source 

category regulated under section 7412 (infra Section IV). Petitioners submitted no 

comments at all. After considering the comments it did receive, EPA finalized the 

Agreement on March 2, 2011. See Modification Agreement at 1 (JA 24) (noting date 

Agreement was finalized); 77 Fed. Reg. 22,392, 22,404 (Apr. 13, 2012) (publicly 

announcing finalization). 

EPA did not issue a proposed or final rule under section 7411(d) concerning 

greenhouse gas emissions from existing power plants by the deadlines in the 

Settlement Agreement. The other parties to the Agreement did not seek relief. 

IV. THE MATS RULE 

In 2000, EPA found, 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. 65 Fed. Reg. 79,825, 79,826-30 (Dec. 20, 

2000). EPA promulgated a final rule regulating power plants’ emissions of mercury 

and other hazardous pollutants in 2012. 77 Fed. Reg. 9304 (Feb. 16, 2012) (“MATS 

Rule”). This Court upheld the MATS Rule in White Stallion Energy Center, LLC v. 

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EPA, 748 F.3d 1222 (D.C. Cir. 2014). The Supreme Court has granted certiorari to 

address one issue raised by that decision. See Michigan v. EPA, 135 S. Ct. 702 (U.S. 

Nov. 25, 2014) (No. 14-46). 

The MATS Rule regulates only coal and oil-fired plants; thus, it does not cover 

all of the power plants addressed by the Proposed Rule, which covers natural gas-fired 

plants as well. Compare 77 Fed. Reg. 9304 with 79 Fed. Reg. at 34,855. 

V. THE PROPOSED RULE 

Independent of the Settlement Agreement, and over a year after EPA was 

supposed to have taken any final action under that Agreement, the President 

announced his “Climate Action Plan,” wherein he directed EPA to work expeditiously 

to promulgate CO2 emission standards for fossil fuel-fired power plants. In 

accordance with the President’s directive, EPA proposed performance standards for 

new power plants on January 8, 2014.1

 79 Fed. Reg. 1430. On June 18, 2014, EPA 

proposed rate-based emissions guidelines for states to follow in developing state plans 

to address CO2 emissions from existing power plants under 42 U.S.C. § 7411(d).2

 79 

Fed. Reg. at 34,830-34. Petitioners challenge the latter proposal. 

                                                            

1

 EPA proposed CO2 standards for new power plants in 2012, but withdrew the 

proposal after taking comment. 77 Fed. Reg. 22,392 (Apr. 13, 2012); 79 Fed. Reg. 

1352 (Jan. 8, 2014). 

2

 EPA also proposed standards for modified and reconstructed sources. 79 Fed. Reg. 

34,959 (June 18, 2014). 

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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. The comment period closed on December 1, 2014. See 79 Fed. Reg. 57,492 

(Sept. 25, 2014). More than two million comments were submitted, and EPA is 

currently reviewing those comments. EPA intends to take final action later this year.3

Summary of Argument 

 No matter how urgent Petitioners believe their concerns regarding EPA’s legal 

authority to be, they have chosen both the wrong context and the wrong time in 

which to raise them. First, their challenge to the Settlement Agreement is not 

justiciable because the Agreement does not “injure” Petitioners in any way that could 

give rise to Article III standing. The Agreement sets dates for rulemaking, but does 

not limit EPA’s discretion concerning what final action to take, alter any applicable 

                                                            

3

 EPA Fact Sheet: Clean Power Plan and Carbon Pollution Standards Key Dates, at 

http://www2.epa.gov/carbon-pollution-standards/fact-sheet-clean-power-plancarbon-pollution-standards-key-dates (JA 535-36). 

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rulemaking procedures, or purport to make any change in a regulatory program. Nor 

does the Agreement, standing alone, impose obligations on Petitioners or any other 

entity. This Court has long held that non-settlors lack Article III standing to seek 

judicial review for the purpose of blocking or setting aside such settlements. 

Second, for related reasons, the Settlement Agreement cannot be considered a 

“final agency action.” It does not determine the rights or obligations of, or impose 

legal consequences on, any non-party to the Agreement. Rather, legal consequences 

could be imposed only if EPA promulgates a final regulation following notice and 

comment, which would then be reviewable in this Court. 

Third, any challenge concerning the Settlement Agreement has become moot. 

EPA already has published the “proposed” rule that was due under the Agreement, 

and the Agreement does not require final promulgated standards because EPA retains 

its discretion to decide what final action to take. 

Fourth, the Act requires that petitions for review be brought within sixty days 

after the relevant Federal Register publication, which in this case occurred on April 

23, 2012. Petitioners waited more than two years after that date to file this case, and 

that time limit is jurisdictional. 

Finally, because EPA is currently in the midst of a notice-and-comment 

rulemaking process in which it will evaluate and respond to comments on the very 

issue Petitioners would have this Court prematurely decide, this petition is not “fit” 

for a judicial decision and must be dismissed as unripe. 

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If this Court reaches the merits, it should conclude that Petitioners’ 

interpretation of section 7411(d) as barring regulation of all pollutants under that 

section once a source category has been regulated in regard to hazardous pollutants 

under section 7412 is not the only way to read the convoluted text at issue. That text 

– which includes both the House’s and Senate’s 1990 amendments – is ambiguous 

and can be read multiple ways, allowing for reasonable Agency interpretation. See 

Chevron U.S.A., Inc. v. Natural Res. Def. Council, 467 U.S. 837, 843-44 (1984). One 

reasonable interpretation is that EPA may regulate, under section 7411(d), any 

pollutant that is not a “hazardous” or “criteria” pollutant regulated elsewhere under 

the Act. Unlike Petitioners’ contrary reading, such an interpretation of section 

7411(d) would be consistent with the statutory context and legislative history. Thus, 

the Court cannot conclude at this preliminary stage of the rulemaking process that 

Petitioners’ reading of section 7411(d) is the only permissible reading. 

Argument 

I. PETITIONERS LACK ARTICLE III STANDING. 

A. EPA’s Entry Into the Settlement Agreement Caused No Injury. 

“The law of Article III standing, which is built on separation-of-powers 

principles, serves to prevent the judicial process from being used to usurp the powers 

of the political branches.” Clapper v. Amnesty Int’l USA, 133 S. Ct. 1138, 1146 

(2013). “To establish Article III standing, an injury must be concrete, particularized, 

and actual or imminent [referred to as “injury-in-fact”]; fairly traceable to the 

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challenged action; and redressable by a favorable ruling.” Id. at 1147 (internal 

quotation and citations omitted). “[A]llegations of possible future injury are not 

sufficient.” Id. (emphasis in original; internal quotation omitted). 

The Settlement Agreement contains no provision that could credibly be 

deemed to cause “concrete, particularized, and actual or imminent” injury to 

Petitioners or any other entity. To begin with, although the Agreement set a schedule 

for EPA to conduct rulemakings pursuant to section 7411, it does not limit EPA’s 

administrative discretion in deciding, at the end of that rulemaking process: 

(1) whether to promulgate final standards; and (2) if EPA does so promulgate, what 

the form or content of the final standards should be. 

For example, while Paragraphs 1 and 2 of the Settlement Agreement 

established deadlines for “proposed rule[s] [under sections 7411(b) and (d), respectively] 

that include[] standards of performance for GHGs,” Paragraphs 3 and 4 do not

similarly state that EPA “shall promulgate” such standards by the identified dates. 

Agreement ¶¶ 1-4 (JA 3-4). Instead, the latter paragraphs provide only that EPA “will 

sign . . . a final rule [by each respective date] that takes final action with respect to the 

proposed rule[s] described in [Paragraphs 1 and 2, respectively].” Id. ¶¶ 3, 4 (JA 3-4) 

(emphasis added).4 Paragraph 11 further states that, “[e]xcept as expressly provided 

                                                            

4 The Act distinguishes “proposed rules” from “promulgated” regulations in its 

general rulemaking provision, 42 U.S.C. § 7607(d), which expressly applies to rules 

issued under section 7411. Compare id. § 7607(d)(3), with id. § 7607(d)(6)(A)(ii), (B). 

Judicial review, in turn, is authorized (in relevant part) for action “promulgating . . . any 

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herein, nothing in the terms of this Settlement Agreement shall be construed to limit 

or modify the discretion accorded EPA by the [Act] or by general principles of 

administrative law.” Agreement ¶ 11 (JA 6). Thus, the Agreement sets rulemaking 

deadlines but does not limit EPA’s discretion, after considering the comments on a 

proposed rule, to make a final decision not to promulgate it. 

 Additionally, EPA’s obligation under Paragraph 4 to “take final action” under 

section 7411(d) is conditional – it only arises “if EPA finalizes standards of 

performance for GHGs [for new and modified sources] pursuant to Paragraph 3.” 

Agreement ¶ 4 (JA 4) (emphasis added). Thus, not only does EPA retain its 

discretion regarding what final action to take, it need not take final action under 

section 7411(d) at all unless it promulgates standards under section 7411(b). 

 The Agreement, moreover, contains no provision that purports to alter notice 

and comment requirements or any other procedures applicable to EPA rulemaking 

under the Act or other authority. Nor does it prescribe any other change in any 

regulatory program. Rather, it does nothing more than set deadlines for the 

rulemakings referred to in Paragraphs 1 through 4, with EPA retaining its 

administrative discretion regarding the substance of final action as shown above. 

                                                            

standard of performance or requirement under [42 U.S.C. § 7411].” Id. § 7607(b)(1) 

(emphasis added). 

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 Under both longstanding and recent decisions of this Court, non-settling 

parties lack standing to seek judicial review of settlements that set schedules for 

federal agency rulemaking without limiting the agency’s administrative discretion 

concerning the substance of final action. Just two years ago, the Court considered 

this question in Defenders of Wildlife v. Perciasepe, 714 F.3d 1317 (D.C. Cir. 2013), 

where non-settlors asserted standing to oppose a consent decree establishing a 

schedule for rulemaking “pertaining to revisions to . . . Effluent Guidelines under the 

Clean Water Act.” Id. at 1321. Using language essentially identical to that employed 

by the Settlement Agreement here, the consent decree in Perciasepe established a 

deadline for “a notice of proposed rulemaking pertaining to [such] revisions,” 

followed by a second deadline for “a decision taking final action following notice and 

comment rulemaking pertaining to [such] revisions.” Id. (emphasis added). The 

consent decree also mirrored this Agreement by expressly providing that it did not 

“limit or modify the discretion accorded EPA by the Clean Water Act or by general 

principles of administrative law.” Id. at 1322. This Court concluded that the nonsettlors lacked standing. Id. at 1323-26. In particular, the Court observed that the 

consent decree “merely requires that EPA conduct a rulemaking and then decide 

whether to promulgate a new rule – the content of which is not in any way dictated by 

the consent decree – using a specific timeline.” Id. at 1324. The Court explained that 

such an agreement cannot “injure” any third party, because “Article III standing 

requires more than the possibility of potentially adverse regulation.” Id. at 1324-25 

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(emphasis added) (citing Nat’l Ass’n of Home Builders (“NAHB”) v. EPA, 667 F.3d 

6, 13 (D.C. Cir. 2011)) (other citations omitted). 

Perciasepe is consistent with earlier cases likewise holding that third parties 

lacked standing to bring suits attempting to prevent federal agencies from agreeing to 

negotiated rulemaking schedules. See Alternative Research & Dev. Found. v. 

Veneman, 262 F.3d 406, 411 (D.C. Cir. 2001) (non-settling party’s rights not impaired 

by stipulation of dismissal requiring U.S. Department of Agriculture to conduct 

rulemaking, because it “will not be precluded from participating in the rulemaking 

and, if USDA decides to issue a final rule, [it] is not precluded from challenging that 

rule”); In re Endangered Species Act Section 4 Deadline Litig. – MDL No. 2165, 704 

F.3d 972, 976-79 (D.C. Cir. 2013) (no standing to oppose consent decree); Envt’l 

Defense v. EPA, 329 F. Supp. 2d 55, 67-69 (D.D.C. 2004) (same); cf. Ctr. for 

Biological Diversity v. EPA, 274 F.R.D. 305, 309-12 (D.D.C. 2011) (aircraft engine 

manufacturers lacked standing to intervene in lawsuit to compel agency action relating 

to regulation of greenhouse gas air emissions). Indeed, “[i]t has never been supposed 

that one party . . . could preclude other parties from settling their own disputes and 

thereby withdrawing from litigation.” Local No. 93, Int’l Ass’n of Firefighters, AFLCIO v. City of Cleveland, 478 U.S. 501, 528-29 (1986). 

This Court has found it appropriate, however, to reach the merits of such a 

claim in the highly unusual circumstance – not present here – of a proposed 

settlement that expressly purported to limit EPA’s discretion to decide not to regulate. 

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See Natural Res. Def. Council (“NRDC”) v. Costle, 561 F.2d 904, 908-10 (D.C. Cir. 

1977). In Perciasepe, the Court found Costle distinguishable because the settlement 

agreement in Costle, unlike the consent decree in Perciasepe, “permitted EPA to 

decline to issue any new rule . . . only if it met certain requirements set forth in the 

agreement and ‘promptly submit[ted] a statement under oath to the parties explaining 

and justifying the exclusion,’” which was then subject to district court enforcement 

proceedings if NRDC disagreed with EPA’s explanation. Perciasepe, 714 F.3d at 

1325 (quoting Costle, 561 F.2d at 909); see also 714 F.3d at 1326 (stipulated dismissal 

in Alternative Research did not resemble Costle settlement because the stipulated 

dismissal “d[id] not bind the agency in its rulemaking”). Because of these distinctions, 

the Court in Perciasepe concluded that Costle “does not dictate the outcome here.” 

Id. at 1325. The Court further observed that Costle did not address standing “and 

therefore has no precedential effect on th[at] jurisdictional question.” Id. 

As shown above, the Settlement Agreement here mirrors the provisions of the 

consent decree in Perciasepe and the stipulated dismissal in Alternative Research by 

referring only to deadlines to “take final action” at the conclusion of the rulemaking 

schedules, thus preserving EPA’s administrative discretion. Agreement ¶¶ 3-4 (JA 3-

4). Such language “does not require EPA to promulgate” standards under section 

7411, but instead merely requires EPA to meet a rulemaking schedule “and then decide

whether to promulgate a new rule.” Perciasepe, 714 F.3d at 1324 (emphasis added). 

Moreover, the Agreement does not even require a “final action” under section 

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7411(d) unless EPA, in its discretion, “finalizes standards” under section 7411(b). 

Agreement ¶ 4 (JA 4). That the Agreement “prescribes a date by which regulation 

could occur does not establish Article III standing.” Perciasepe, 714 F.3d at 1325 

(emphasis added); accord Alternative Research, 262 F.3d at 411. Finally, because the 

Settlement Agreement contains no provision purporting to limit notice and comment 

requirements or otherwise alter any statutory procedures governing rulemaking, 

Petitioners “[are] not . . . precluded from participating in the rulemaking and, if [EPA] 

decides to issue a final rule, . . . [are] not precluded from challenging that rule.” 

Alternative Research, 262 F.3d at 411; Envt’l Defense, 329 F. Supp. 2d at 68 (same).5

 

 Petitioners cite cases from other circuits where courts considered the merits of 

objections to a settlement or affirmed an order preliminarily enjoining implementation 

of a settlement. E.g., Pet.Br. 25, 27 n.4. But each of those settlements included 

provisions that immediately altered existing regulatory programs, unlike here.6 

Petitioners identify no authority recognizing a non-settlor’s standing to attempt to 

block a settlement that merely establishes a rulemaking schedule. 

                                                            

5 In contrast, granting the declaratory and injunctive relief Petitioners seek would impair 

the procedural rights of other stakeholders by preventing EPA from considering their 

comments and making a final decision that takes their comments into account. 

6 See Conserv. Nw. v. Sherman, 715 F.3d 1181, 1185-88 (9th Cir. 2013) (consent 

decree altered the “Survey and Manage Standard” of the Northwest Forest Plan 

without prior notice and comment); Minard Run Oil Co. v. U.S. Forest Serv., 670 

F.3d 236, 245-46 (3d Cir. 2011) (settlement imposed immediately effective 

moratorium on oil and gas drilling in the Allegheny National Forest until completion 

of forest-wide environmental impact statement). 

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B. Petitioners’ Claims Of Injury From Publication Of The Proposed 

Rule Are Insufficient. 

Petitioners do not identify any “injury” that allegedly resulted directly from 

EPA’s entry into the Settlement Agreement. Rather, Petitioners assert that they were 

injured by EPA’s publication of the Proposed Rule because they “expended 

substantial state resources as a direct result of the proposal, including thousands of 

hours of employee time.” Pet.Br. 26. Petitioners then assert that the Settlement 

Agreement was at least a “substantial factor” that “motivated” EPA to issue the 

proposal and that this alleged injury therefore is traceable to the Agreement. Pet.Br. 

26-27. Petitioners also claim a second injury resulting from the “obligation to submit 

a State Plan after the [Proposed Rule] is final.” Pet.Br. 28.7

 Neither of these claims 

establishes Article III standing. 

 Addressing Petitioners’ second asserted injury first, the “obligation” to submit a 

State Plan after final standards are promulgated is only hypothetical. As even 

Petitioners acknowledge, it could only arise “after the Section 111(d) rule is final,” 

Pet.Br. 28 (emphasis added) – in other words, it will only become an “obligation” if 

and when EPA promulgates a final rule. Speculation about possible future government 

action cannot meet the requirement of “concrete, particularized, and actual or 

imminent” injury. See Clapper, 133 S. Ct. at 1147-50; NAHB, 667 F.3d at 13. 

Moreover, despite Petitioners’ belief that promulgation of the Proposed Rule is 

                                                            

7 Petitioners do not allege any “procedural injury.” See Perciasepe, 714 F.3d at 1323. 

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inevitable, recent experience demonstrates that EPA does not always finalize its 

rulemaking proposals. See, e.g., 79 Fed. Reg. 1352 and 79 Fed. Reg. 1430 (Jan. 8, 

2014) (withdrawing proposed rule addressing CO2 emissions from new power plants 

and publishing a new proposal based on a different legal theory). 

 Petitioners’ other asserted injury – the staff time and resources expended in 

advance preparation for meeting possible future state planning requirements – cannot 

be considered “traceable” to any EPA action because neither the Settlement 

Agreement nor the Proposed Rule requires any state to conduct such efforts. Rather, 

only a final rule promulgating the proposal could require such action by states.8

 To 

the extent Petitioners have voluntarily undertaken such efforts, their asserted injury is 

“self-inflicted” and, as such, “not fairly traceable to the challenged government 

conduct.” Grocery Mfrs. Ass’n v. EPA, 693 F.3d 169, 177 (D.C. Cir. 2012), cert. 

denied, 133 S. Ct. 2880 (2013) (where final rule permitted but did not “force” or 

“require” manufacturers to use new alternative fuel, majority held that petroleum 

refiners and importers did not have Article III standing based on the alleged costs and 

liabilities associated with that fuel); cf. NAHB, 667 F.3d at 12 (organizational staff 

                                                            

8 The Administrator’s statements encouraging advance planning (Pet.Br. 20) are not the 

same as a promulgated regulation imposing a binding deadline for submitting state 

plans, and no provision of the Agreement imposes such a deadline. See Perciasepe, 

714 F.3d at 1325 n.7 (claimant “has the burden to establish that the consent decree – 

not EPA’s throat-clearing – will cause the injury of which it complains”). 

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time and money expended in response to Clean Water Act jurisdictional 

determination did not constitute injury-in-fact).9

This Court has acknowledged that promulgated air rules may cause an Article III 

“injury” by increasing a state’s burden of developing an approvable plan or otherwise 

meeting implementation requirements; but, consistent with separation-of-powers 

principles, the Court has never suggested that a “proposed” rule could do so. E.g., 

West Virginia v. EPA, 362 F.3d 861, 868 (D.C. Cir. 2004) (states had standing to seek 

review of EPA’s promulgated “NOX SIP Call” rule, which “direct[ed] each state to 

revise its SIP in accordance with EPA’s NOX emissions budget”); Nat’l Ass’n of 

Clean Air Agencies v. EPA, 489 F.3d 1221, 1226-28 (D.C. Cir. 2007) (recognizing 

standing to challenge promulgated rule); Oklahoma Dep’t of Envtl. Quality 

(“ODEQ”) v. EPA, 740 F.3d 185, 189-90 (D.C. Cir. 2014) (same)10; compare with 

Alternative Research, 262 F.3d at 411 (“the initiation of a rulemaking” pursuant to 

settlement did not cause injury); Las Brisas Energy Ctr., LLC v. EPA, No. 12-1248 & 

                                                            

9 Petitioners explain at length their concern that the Proposed Rule, if promulgated, 

would require planning efforts that a number of states believe cannot be achieved 

within the deadlines EPA has proposed. Pet.Br. 16-22. EPA sought rulemaking 

comments regarding, inter alia, the adequacy of the proposed planning deadlines, and 

many of the comments expressed that same concern. Thus, in addition to deciding as 

a threshold matter whether to promulgate the Proposed Rule, EPA will have to decide 

whether to make any changes to the planning deadlines in light of these comments. 

10 Tozzi v. U.S. Dep’t of Health & Human Servs., 271 F.3d 301 (D.C. Cir. 2001) 

(Pet.Br. 27, 29), also involved a genuinely final agency action taken after notice and 

comment, not a proposal. 271 F.3d at 306-07. 

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consolidated cases (Order dated Dec. 13, 2012) (dismissing challenges to April 2012 

proposed section 7411(b) rule on jurisdictional grounds) (Attach. A). 

In Massachusetts, the Supreme Court likewise recognized a state’s standing to 

challenge EPA’s final action denying a rulemaking petition. See 549 U.S. at 526. The 

Court acknowledged a “special solicitude” in its standing analysis for a challenge 

brought by a state; it reasoned that Congress had “ordered EPA to protect [states] by 

prescribing standards applicable to the emission of any air pollutant . . . which in [the 

Administrator’s] judgment cause, or contribute to, air pollution which may reasonably 

be anticipated to endanger public health or welfare,” and, importantly, that Congress 

also “recognized a concomitant procedural right to challenge the rejection of [the 

state’s] rulemaking petition as arbitrary and capricious.” Id. at 519-20 (citing 42 

U.S.C. §§ 7521(a)(1), 7607(b)(1)) (internal quotation omitted). The petition here, in 

contrast to Massachusetts, was filed in the midst of an ongoing rulemaking process, and 

essentially asks the judiciary to assume the administrative function Congress delegated 

to EPA by deciding issues that are the ongoing subject of public comments when 

EPA has yet to respond to those comments and has neither denied a rulemaking 

petition, nor promulgated a regulation. Unlike in Massachusetts, the Act supports no 

“procedural right” to a judicial order thwarting this statutory process. Such a claim, 

whether brought by states, regulated entities or other stakeholders, is not justiciable. 

C. Petitioners Fail to Show Redressability. 

Petitioners also fail to explain how their alleged injuries would be redressed 

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if the Court “h[e]ld ‘unlawful’ and ‘set aside’ the settlement agreement’s Section 

[74]11(d) provisions.” Pet.Br. 59 (quoting 5 U.S.C. § 706(2)(A)). The Agreement 

contains no provisions that purport to “determine” whether power plants should be 

subject to promulgated standards of performance for CO2 emissions, and EPA’s 

schedule for completing the rulemaking process was not derived from the Agreement. 

Indeed, the Proposed Rule was issued as part of the “Climate Action Plan,” a major 

initiative by the current administration to address climate change. See 79 Fed. Reg. at 

34,833/3 (identifying Climate Action Plan as impetus for Proposed Rule). EPA 

would have taken the step of proposing a section 7411(d) rule for power plants 

pursuant to the Act and the Climate Action Plan whether or not this Agreement 

existed, or were vacated. 

II. THE SETTLEMENT AGREEMENT IS NOT 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. See 

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 

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). 

“[T]he phrase ‘final action’ . . . bears the same meaning in [section 7607(b)(1)] 

that it does under the Administrative Procedure Act” and, accordingly, is subject to 

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the familiar standard articulated in Bennett v. Spear, 520 U.S. 154 (1997), to determine 

whether EPA actions taken under the Act are “final.” Whitman v. American Truck 

Ass’ns, 531 U.S. 457, 478 (2001); see, e.g., Nat’l Envtl. Dev. Ass’n’s Clean Air Project 

(“NEDA-CAP”) v. EPA, 686 F.3d 803, 808-09 (D.C. Cir. 2012), cert. denied, 133 S. 

Ct. 983 (2013). “As a general matter, two conditions must be satisfied for action to be 

considered ‘final’: First, the action must mark the ‘consummation’ of the agency’s 

decisionmaking process . . . it must not be of a merely tentative or interlocutive 

nature.” Bennett, 520 U.S. at 177-78 (internal citation omitted). “And second, the 

action must be one by which ‘rights or obligations have been determined,’ or from 

which ‘legal consequences will flow.’” Id. (internal citation omitted); see also Devon 

Energy Corp. v. Kempthorne, 551 F.3d 1030, 1040-41 (D.C. Cir. 2008) (action must 

impose “legal,” not just “practical” consequences, and the change in legal rights must 

be “certain”) (internal quotations and citations omitted). 

The Settlement Agreement does not meet either of Bennett’s criteria because, 

as shown above, it does not resolve what the final outcome of the rulemaking process 

will be and does not “determine” any “rights or obligations” of or impose any “legal 

consequences” on Petitioners or any other non-settling entity.11 In short, the 

Agreement has no legally binding effect on any non-settlor that could render it a 

                                                            

11 Petitioners here do not argue that the Proposed Rule is a separate “final action.” 

See Pet.Br. 52-54. 

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“final action.” See Ass’n of Irritated Residents v. EPA, 494 F.3d 1027, 1034 (D.C. 

Cir. 2007) (consent agreement was not a “rule” subject to judicial review, as it did not 

“bind” EPA to a “substantive interpretation of the statute”); see also NEDA-CAP, 

686 F.3d at 809 (preamble statements describing anticipated future implementation 

plans for revised NAAQS did not “impose[] definite requirements upon states or 

regulated industries” and thus were not final action). 

 That the Settlement Agreement went through notice and comment under 42 

U.S.C. § 7413(g) does not, by itself, establish finality. Pet.Br. 52-53 (citing Toilet 

Goods Ass’n v. Gardner, 387 U.S. 158, 162 (1967)).12 In NEDA-CAP, for example, 

this Court held that a preamble statement concerning future implementation of a 

NAAQS was not reviewable although EPA had published the statement in the 

Federal Register following notice and comment. 686 F.3d at 808-09. Here, even if 

the Agreement represented the “consummation of EPA’s decisionmaking” 

concerning whether and how to settle the threatened litigation regarding the timing of 

its response to the remand in New York v. EPA, Pet.Br. 53, that is not the relevant

decisionmaking process in this case,13 because Petitioners’ claim is focused exclusively 

                                                            

12 Toilet Goods did not address whether a settlement agreement is judicially reviewable 

after going through notice and comment. Rather, the Court found that when a 

regulation is published following notice and comment, it represents the culmination of 

the rulemaking process – a point no one here contests. Id. at 162. 

13 If Petitioners’ view were correct, then every rulemaking settlement could constitute 

“final agency action,” potentially subjecting the federal courts to a flood of collateral 

litigation challenging such settlements and leaving the United States with no effective 

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on the scope of EPA’s regulatory authority, not on the timeframe in which the 

rulemaking will be conducted. EPA has not concluded its process for deciding 

questions concerning its regulatory authority, as its solicitation of public comments on 

that very issue clearly demonstrates. 

 Petitioners’ other cases are readily distinguishable. Pet.Br. 52-53. Makins v. 

District of Columbia, 277 F.3d 544 (D.C. Cir. 2002), was a suit brought to enforce a 

settlement agreement against a settling party. Id. at 545-47. The remaining cases 

involved settlements that imposed immediate legal consequences (not just hypothetical 

future legal consequences) on non-settlors. See United States v. Carpenter, 526 F.3d 

1237, 1238-42 (9th Cir. 2008) (settlement authorized road repairs near federal 

wilderness area, thus allegedly impairing nearby residents’ interest in preserving that 

area); Exec. Business Media, Inc. v. U.S. Dept. of Def., 3 F.3d 759, 761-64 (4th Cir. 

1993) (business competitor challenged settlement that authorized contract award 

without going through competitive bidding). 

III. PETITIONERS’ CHALLENGE TO THE AGREEMENT IS MOOT. 

For several reasons, this petition should be considered moot. See generally 

Daimler Trucks North Am. LLC v. EPA, 745 F.3d 1212, 1216 (D.C. Cir. 2013) (A 

case is moot “if events have so transpired that the decision will neither presently 

                                                            

means of settling suits alleging that it has failed to respond to a judicial remand or 

meet a statutory deadline for final regulatory action. Such an outcome is untenable 

and would be contrary to Firefighters. See 478 U.S. at 428-29. 

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affect the parties’ rights nor have a more-than-speculative chance of affecting them in 

the future.”) (internal quotation and citation omitted); Util. Air Reg. Group 

(“UARG”) v. EPA, 744 F.3d 741, 749-50 (D.C. Cir. 2014). First, the deadlines in the 

Settlement Agreement have long since passed. The Agreement called for EPA to take 

final action with respect to its proposal under section 7411(d) – only if it elected to 

promulgate standards for power plants under section 7411(b) – by May 2012. 

Agreement ¶ 4 (JA 4); Modification Agreement ¶ 2 (JA 26). EPA took no such action 

by that deadline, and the settling parties have not pursued the limited remedy that the 

Agreement authorizes in the event of breach, which is to “file an appropriate motion 

or petition . . . seeking to compel EPA to take action responding to the Remand 

Order” in New York v. EPA, No. 06-1322. Agreement ¶ 7 (JA 4-5).14 

 Second, EPA has already published the section 7411(d) proposal, which is the 

only step EPA was required to take under the Settlement Agreement, since (1) the 

obligation to take final action under section 7411(d) was conditional on whether EPA 

promulgated section 7411(b) standards; and (2) EPA retained its discretion to make a 

                                                            

14 The Agreement contains no specific performance remedy, and it is not enforceable 

in Court. Id. ¶ 7. Petitioners’ contrary arguments concerning the Agreement’s 

“enforceability” (Pet.Br. 27 & n.4, 57-58) fail to address its language limiting the 

remedy for breach and rely on cases that did not involve similar contractual language. 

See, e.g., Am. Sec. Vanlines, Inc. v. Gallagher, 782 F.2d 1056, 1059 (D.C. Cir. 1986); 

Vill. of Kaktovik v. Watt, 689 F.2d 222, 228-30 (D.C. Cir. 1982); Minard Run, 670 

F.3d at 247 n.4; see also Marks v. United States, 24 Cl. Ct. 310, 319 (Cl. Ct. 1991) 

(“[P]arties to a contract are free to limit remedies in accordance with their desire . . . at 

the time the contract is executed . . . .”). 

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final decision not to promulgate section 7411(d) standards. Granting judicial relief 

now would not “un-do” EPA’s publication of the proposal. 

IV. THIS PETITION IS UNTIMELY. 

 A petition under 42 U.S.C. § 7607(b)(1) “shall be filed within sixty days from 

the date notice of [a final] 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 it “shall be filed within sixty days after such grounds arise.” Id.; see 

Utah v. EPA, 750 F.3d 1182, 1184 (10th Cir. 2014) (“grounds” means “a sufficient 

legal basis for granting the relief sought”) (internal quotation and citation omitted). 

These time limits are jurisdictional. E.g., Med. Waste Inst. & Energy Recovery 

Council v. EPA, 645 F.3d 420, 427 (D.C. Cir. 2011); ODEQ, 740 F.3d at 191.15 

Assuming that EPA’s entry into the Settlement Agreement on March 2, 2011, 

did not immediately trigger the sixty-day filing period, as EPA did not publish a 

Federal Register notice at that time, that period began to run no later than April 3, 

2012, when EPA published a Federal Register notice stating that it had “finalized” the 

Agreement. 77 Fed. Reg. at 22,404. On that date, the claims and arguments that 

Petitioners seek to assert in this case were available to them, because by then EPA: 

(1) had promulgated a final rule regulating power plants under section 7412,16 which 

                                                            

15 But see Clean Water Action Council of Ne. Wis., Inc. v. EPA, 765 F.3d 749, 751 

(7th Cir. 2014).

16 77 Fed. Reg. 9304. 

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according to Petitioners “prohibits EPA from requiring States to regulate [the same 

source category] under Section [74]11(d),” Pet.Br. 30; and (2) had subsequently

announced in the Federal Register its finalization of the settlement setting deadlines 

for a section 7411(d) rulemaking for power plants. Thus, the legal dispute Petitioners 

wish to raise now already had crystallized, at the latest, by April 3, 2012, making the 

“arising after” exception inapplicable to this petition. 

V. THE PENDENCY OF AN ONGOING RULEMAKING PROCESS 

RENDERS THIS PETITION UNRIPE FOR JUDICIAL REVIEW. 

Petitioners claim that this case became “fit for judicial decision” in June 2014 

when EPA published the Proposed Rule and accompanying Legal Memorandum. 

Pet.Br. 55. EPA published those documents, however, for the specific purpose of 

obtaining public comments to help inform a rulemaking decision it has not yet made. 

In assessing the ripeness of a case, this Court “focus[es] on two aspects: 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)). “The fitness requirement is primarily meant to protect the agency’s 

interest in crystallizing its policy before that policy is subjected to judicial review and 

the court’s interest in avoiding unnecessary adjudication and in deciding issues in a 

concrete setting.” API, 683 F.3d at 387 (internal quotation omitted). 

To uphold these interests, the Court determines fitness by evaluating not just 

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whether an issue is “purely legal,” but also “whether consideration of the issue would 

benefit from a more concrete setting, and whether the agency’s action is sufficiently 

final.” Id. (internal quotation omitted). “[E]ven purely legal issues may be unfit for 

review,” and “a claim is not ripe . . . if it rests upon contingent future events that may 

not occur as anticipated, or indeed may not occur at all.” Atlantic States Legal Found. 

v. EPA, 325 F.3d 281, 284 (D.C. Cir. 2003) (internal quotation omitted). “Courts 

decline to review tentative agency positions because,” among other consequences, 

“the integrity of the administrative process is threatened by piecemeal review of the 

substantive underpinnings of a rule, and judicial economy is disserved because judicial 

review might prove unnecessary if persons seeking such review are able to convince 

the agency to alter a tentative position.” API, 683 F.3d at 387 (quotation omitted). 

 Reviewing the merits of this case, at this time, would lead the Court into the 

very pitfalls against which it warned in API. The legal analyses EPA set forth in the 

Legal Memorandum accompanying its Proposed Rule preamble are quite obviously 

“tentative,” notwithstanding Petitioners’ characterization of that document. Pet.Br. 

55-56. The preamble made clear that EPA “solicits comment on all aspects of its 

legal interpretations, including the discussion in the Legal Memorandum.” 79 Fed. Reg. at 

34,853/2 (emphasis added). EPA also sought “public comment on all aspects of this 

proposal” including technical as well as legal issues. Id. at 34,835/2. The legal 

positions presented to this Court in Petitioners’ brief have also been presented to 

EPA in the rulemaking; and many other stakeholders – often expressing different, and 

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in some cases diametrically opposed legal interpretations – have presented their 

comments as well. EPA had not yet had the opportunity, however, to complete its 

evaluation of these comments and determine what final action to take. 

Importantly, the Act requires EPA to evaluate and respond to any significant 

written or oral comments on the proposal when taking final action. 42 U.S.C. 

§ 7607(d)(6)(A)(ii). Indeed, if EPA attempted to treat the Legal Memorandum as a 

document that conclusively decided the legal issues of concern to Petitioners for 

purposes of this rulemaking, it would be subject to reversal for failure to respond to 

comments. See Ne. Md. Waste Disposal Auth. v. EPA, 358 F.3d 936, 950 (D.C. Cir. 

2004). Thus, to say that EPA’s legal interpretations are currently “tentative” is not an 

exercise in self-serving labelling; it is an accurate description of a rulemaking process 

that the Act mandates EPA follow before it decides whether to promulgate standards. 

Furthermore, even if Petitioners’ showing of “hardship” were sufficient to 

meet the second element of the ripeness test,17 it could not overcome the 

demonstrable unfitness of the case for review at this time. “Although both the fitness 

and hardship prongs encompass a number of considerations, a dispute is not ripe if it 

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

                                                            

17 As discussed above, Petitioners have not demonstrated an “injury-in-fact” sufficient 

to establish Article III standing. Supra Argument I.A, B.   

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Candlers and 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 found such claims unripe. See, e.g., 

API, 683 F.3d at 386; Atlantic States, 325 F.3d at 284; UARG 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). More recently, when confronted with petitions seeking review 

of the April 2012 proposed section 7411(b) rule, the Court summarily dismissed the 

petitions because the “proposed rule [was] not final agency action subject to judicial 

review.” Las Brisas (Order dated Dec. 13, 2012) (Attach. A). EPA then withdrew the 

proposal, which only confirms that further judicial review at that time would have 

been a wasteful use of the Court’s resources. See 79 Fed. Reg. at 1352. 

Petitioners ask the Court to ignore the lessons of Las Brisas and exacerbate the 

premature intrusion of judicial review into the administrative rulemaking process by 

hearing this case now, when it would be more prudent to wait until EPA makes a final 

rulemaking decision. The Court should decline their request, and dismiss the petition. 

 

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VI. PETITIONERS’ CHALLENGE FAILS ON THE MERITS. 

Petitioners argue that, in 1990, Congress impaled EPA on the horns of a 

dilemma: EPA can regulate a source category’s “hazardous” pollutant emissions 

under section 7412 of the Act, or it can regulate other dangerous emissions from the 

source category under section 7411(d), but not both. If correct, EPA would have to 

pick one set of health and environmental issues to address, while ignoring another. 

Petitioners believe this pick-your-poison approach to regulation is mandated by 

a “literal reading” of section 7411(d) as set forth in the U.S. Code. Pet.Br. 23. But 

that convoluted text can be read “literally” multiple ways, leading to opposite 

conclusions regarding the scope of EPA’s authority, and is replete with ambiguous 

terms. The textual ambiguity is compounded by the fact that two amendments to the 

relevant text were enacted into law in 1990, at least one of which would 

unquestionably allow EPA to regulate CO2 emissions from existing power plants. 

To prevail here, Petitioners must show that no reading of section 7411(d) other 

than the one they advance could possibly be reasonable. See Chevron, 467 U.S. at 

837. They cannot. Given the many ambiguities in the text, along with supporting 

legislative history and statutory context, EPA could reasonably conclude that it has 

the authority to address power plant emissions of CO2 under section 7411(d) so long 

as it has not regulated power plants’ emissions of CO2 under section 7412. Thus, if it 

reaches the merits, the Court’s inquiry should end with the conclusion that Petitioners 

have not cornered the market on the meaning of section 7411(d). 

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A. The Text of § 7411(d) Does not Mandate Petitioners’ Reading. 

Section 7411(d) is a grammatical mess. Overburdened with dependent clauses 

and lacking in punctuation, the relevant sentence from the U.S. Code reads as follows: 

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 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) of this title or emitted from a source category which is 

regulated under section 7412 of this title but (ii) to which a standard of 

performance under this section would apply if such existing source were a new 

source . . . 

42 U.S.C. § 7411(d)(1). 

Petitioners argue that this text (reflecting the House Amendment alone) is only 

capable of a single interpretation and must be read as barring regulation of any source 

category previously regulated under 42 U.S.C. § 7412, even if in regard to different

pollutants. Because EPA regulated emissions of certain hazardous pollutants from 

certain coal- and oil-fired power plants in its 2012 MATS Rule,18 the argument 

continues, EPA cannot now promulgate a section 7411(d) rule addressing power plant 

emissions of CO2 – or any other nonhazardous pollutant from any fossil-fuel fired 

power plants (including natural gas-fired plants not regulated under MATS). This 

reading of section 7411(d) would largely eviscerate EPA’s authority under that 

                                                            

18 Most of the State Petitioners are also challenging the legality of MATS, and that 

case is pending in the Supreme Court. Michigan v. EPA, S. Ct. No. 14-46 (cert. 

granted Nov. 25, 2014). 

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provision, as 146 source categories have been regulated in regard to their hazardous 

emissions under section 7412. 

Even if Petitioner’s convoluted take on section 7411(d) is a possible 

interpretation of that text, it is hardly the only possible interpretation.19 Rather, the 

text of 42 U.S.C. § 7411(d) lends itself to multiple “literal” readings and is rife with 

ambiguous terms. The existence of two different amendments to section 7411(d) in 

the Statutes at Large further complicates the task of interpreting that provision. Thus, 

                                                            

19 Petitioners and amici claim that the Supreme Court has read the text as they do. 

Pet.Br. 23; Br. of Amici Trade Ass’ns et al. (“Trade Amici”) at 8, 13. It has not. In a 

footnote in Am. Elec. Power Co. (“AEP”) v. Connecticut, the Court stated: “EPA 

may not employ § 7411(d) if existing stationary sources of the pollutant in question 

are regulated under . . . the ‘hazardous air pollutants’ program,” essentially 

paraphrasing section 7411(d) as set forth in the U.S. Code. 131 S. Ct. 2527, 2537 n.7 

(2011). But Petitioners’ argument here was not raised or briefed in AEP. The actual 

holding in AEP – issued after EPA had already proposed the MATS Rule – was that 

section 7411 “speaks directly to emissions of [CO2] from the defendants’ plants,” and 

therefore preempts state law nuisance claims. Id. at 2537. That holding undercuts 

Petitioners’ position. Indeed, at oral argument in AEP – a month after the MATS 

proposal – counsel for industry petitioners (now counsel for Trade Amici) assured the 

Court that EPA could regulate greenhouse gas emissions under section 7411(d). 

Transcript, 2011 WL 1480855, at *16-17 (“We believe that the EPA can consider, as 

it’s undertaking to do, regulating existing . . . sources under section 111 of the Clean 

Air Act, and that’s the process that’s engaged in now. . . . Obviously, at the close of 

that process there could be APA challenges on a variety of grounds, but we do believe 

that they have the authority to consider standards under section 111.”). Likewise, 

industry petitioners averred in their brief that “EPA may . . . require States to submit 

plans to control” greenhouse gases under 42 U.S.C. § 7411(d). Brief for Pet’s, No. 10-

174, 2011 WL 334707, at *6-7. All of this demonstrates that Petitioners’ reliance on 

the AEP footnote is misplaced. 

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42 U.S.C. § 7411(d) can be interpreted a number of ways, and Petitioner’s way is the 

least consistent with legislative history and statutory context. 

1. There are multiple “literal” readings of 42 U.S.C. § 7411(d). 

 In addition to Petitioners’ proposed reading of section 7411(d), which 

emphasizes certain portions of the text in order to reach a certain conclusion, there 

are at least two other “literal”20 readings of that text that would compel an opposite 

conclusion. The existence of multiple contradictory ways to read the same text shows 

that the text is neither plain nor unambiguous. 

 First, because Congress used the conjunction “or” rather than “and,” the string 

of qualifying clauses set forth in subsection (d)(1)(A)(i) could be read as alternatives, 

rather than requirements to be imposed simultaneously. Numbering these clauses and 

highlighting the conjunctive term “or,” the provision reads: 

The Administrator shall prescribe regulations . . . under which each State shall 

submit to the Administrator a plan which 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 . . . . 

                                                            

20 Petitioners conflate “literal” with “unambiguous.” But “literal” means “involving 

the ordinary or usual meaning of a word,” or “giving the meaning of each individual 

word,” while “unambiguous” means “clearly expressed or understood.” MerriamWebster Dictionary, available at http://www.merriam-webster.com/. A text can be 

read so as to give ordinary meaning to each word, but that does not mean it is clear.     

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42 U.S.C. § 7411(d)(1). Giving the term “or” its ordinary meaning,21 section 7411(d) 

literally provides that the Administrator may require states to establish standards for 

an air pollutant so long as either air quality criteria have not been established for that 

pollutant, or one of the other remaining criteria is met. See Reiter v. Sonotone Corp., 

442 U.S. 330, 338 (1979) (rejecting a “construction [that] would have us ignore the 

disjunctive ‘or’”). No air quality criteria have been issued for CO2, and CO2 is not 

listed under Section 7408(a). Thus, under this “literal” reading, section 7411(d)(1) 

poses no bar to regulation of CO2 emissions.22

Petitioners argue that “‘when an exclusion clause contains multiple disjunctive 

subsections, the exclusion applies if any one of the multiple conditions is met.” 

Pet.Br. 37-38 (internal quotation omitted). As discussed below, it is debatable 

whether the relevant text should be considered an “exclusion clause.” And unlike 

Petitioners’ example of a landlord seeking a tenant “who is not a smoker or a pet 

                                                            

21 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. 

22 Trade Amici criticize this as a “new position” concocted by “litigation counsel,” and 

argue that EPA must be tied to the “reasoning supplied by the [agency] itself in its 

rulemaking.” Trade Amici at 12-13. But the rulemaking is ongoing; there is no final 

“agency reasoning” until EPA issues a final rule supplying such. Trade Amici are 

simply wrong to suggest that EPA may not revisit its interpretation of section 7411(d) 

in the context of an ongoing rulemaking. 

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owner or married” (id. at 38),23 the text at issue is not one clause with three direct 

objects, but rather a string of three clauses, each with its own internal grammatical 

structure. The disjunctive “or” plays a different role in that context. 

 Next, although Petitioners want to read 42 U.S.C. 7411(d) “literally,” they 

ignore that the third clause differs from the first two in that it does not contain a 

negative. Rather, Petitioners presume that the negative from the second clause was 

intended to carry over, and would implicitly rewrite the statute as follows: 

[EPA must require states to submit plans establishing standards for] 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) of this title or [which is not] emitted from a source 

category which is regulated under section 7412 of this title but (ii) to 

which a standard of performance under this section would apply if such 

existing source were a new source . . . . . . . 

42 U.S.C. § 7411(d)(1) (emphasis added). Without the addition of the bracketed 

language, the text can be read to say that, once EPA has regulated a source category 

under section 7411(b), it must require states to establish standards for that source 

category under section 7411(d) if that source category is regulated under section 7412 

– the exact opposite of what Petitioners argue. See 42 U.S.C. § 7411(d)(1) (EPA must 

                                                            

23 In fact, Petitioners’ example would be more correctly written as: The landlord 

advertised for a tenant who is not a smoker, a pet owner, or married. See Strunk & 

White, The Elements of Style, p.3 (The Penguin Press, 2003).

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require state standards for “any air pollutant . . . emitted from a source category which 

is regulated under section 7412”).24 

 All of these “literal” readings (including Petitioners’) must be considered in 

light of the structure, history, and purpose of the Act, as well as common sense, and 

EPA may conclude that none of them are reasonable in light thereof. The point here 

is simply that there is more than one way to read the convoluted – and ambiguous – 

text of section 7411(d), and EPA must have the opportunity to consider all of them. 

2. 42 U.S.C. § 7411(d) is replete with ambiguous terminology. 

 In addition to being subject to multiple literal readings, section 7411(d) 

contains ambiguous terminology, which EPA must have the opportunity to interpret. 

 For example, the clause “emitted from a source category which is regulated 

under section 7412” modifies the phrase “any air pollutant.” 42 U.S.C. § 7411(d). As 

the Supreme Court recently noted, the phrase “any air pollutant” is routinely given a 

“context-appropriate meaning.” Util. Air Regulatory Group v. EPA (“UARG”), 134 

S. Ct. 2427, 2439 (2014). Here, context suggests that the phrase “any air pollutant” 

“emitted from a source category which is regulated under section 7412” should be 

                                                            

24 Petitioners argue that this reading would render third clause superfluous. Pet.Br. 

37. But that clause would then reinforce that EPA must comprehensively address all 

harmful pollutants a regulated source category emits, regulating hazardous pollutants 

under section 7412 and other dangerous pollutants under section 7411. This would 

be consistent with 42 U.S.C. § 7412 (c)(1), which instructs EPA to list source 

categories consistently as between sections 7411 and 7412. 

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understood as referring only to any hazardous air pollutants, since hazardous pollutants 

are what the section 7412 program addresses. 

 Furthermore, the phrase “which is regulated under section 7412” could be 

reasonably interpreted as modifying both the immediately-preceding term “source 

category” and the further antecedent term “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) (concluding that FDA’s interpretation of a complex provision 

therefore gets Chevron deference). So interpreted, regulation under section 7411(d) 

would be barred only where the subject source category is already regulated under 

section 7412 for the same pollutant EPA seeks to regulate under section 7411(d). 

 Moreover, as pointed out by commenters,25 the ambiguous term “regulated” 

can, on its own, be reasonably interpreted as hazardous-pollutant specific. 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’ . . . requires interpretation, for [its] meaning is not plain.”) Here, the 

                                                            

25 See, e.g., Environmental Defense Fund’s Comments at 88 (JA 504) (“A source 

category is ‘regulated’ under section 112 not in the abstract, but with respect to 

particular pollutants.”). 

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“what” being “regulated under section 7412” is a source category’s emission of one or 

more specific hazardous pollutants. Thus, EPA could reasonably conclude that it is 

only precluded from regulating sources in regard to a particular pollutant under 

section 7411(d) if those sources are already “regulated under section 7412” with respect 

to that same (hazardous) pollutant. This is again precisely the sort of “reasonable, 

context-appropriate meaning” that the Supreme Court has directed EPA to give such 

ambiguous statutory terms. UARG, 134 S. Ct. at 2440. 

3. The Senate Amendment compounds the ambiguity.

Contrary to Petitioners’ argument, it is also appropriate to consider that two 

competing amendments to section 7411(d) were enacted into law in 1990 in the same 

public law. Unlike the ambiguous House text, the Senate’s amendment is 

straightforward. If implemented alone, it authorizes regulation: 

for any existing source for any air pollutant for which air quality criteria have 

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

7408(a) or section 7412(b) . . . 

 See Pub. L. No. 101-549, § 302(a), 104 Stat. 2399, 2574 (1990). This text would 

undisputedly allow regulation of a source category under section 7411(d) so long as the 

same pollutant is not regulated under section 7412. The Senate’s clear intent in this 

regard must be considered when interpreting section 7411(d). 

 Petitioners’ primary argument for ignoring the Senate amendment is that it was 

placed under the heading “Conforming Amendments.” Pet.Br. 41-44. But the 

Supreme Court has cautioned that parties should not “place[] more weight on the 

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‘Conforming Amendments’ caption than it can bear,” as that heading does not mean 

that the provision is not “substantive.” Burgess v. United States, 553 U.S. 124, 135 

(2008). This Court has acted accordingly.26 Washington Hosp. Ctr. v. Bowen, 795 

F.2d 139, 149 (D.C. Cir. 1986) (giving full effect to a “conforming” amendment, 

intended to conform one part of the statute to significant structural changes in 

another part, because “Congress has directly expressed its intentions”). 

 Moreover, Petitioners’ premise that the House amendment is “substantive” 

while the Senate amendment is “conforming” is a fallacy. As noted in Burgess, 

“conforming” amendments may be “substantive” in nature. 553 U.S. at 135. And 

based on the Petitioners’ own definition of “conforming amendments” as 

“amendments . . . necessitated by the substantive amendments of provisions of the 

bill,” see Pet.Br. 42 (citing Senate Legislative Drafting Manual § 126(b)(2)), the House 

amendment also qualifies as “conforming.” Section 7411(d) was amended because it 

cross-referenced a soon-to-be nonexistent provision of section 7412, and the text 

replaced by both houses was that cross-reference alone. Thus, like the Senate 

                                                            

26 Petitioners cite Am. Petroleum Inst. v. SEC, 714 F.3d 1329, 1336 (D.C. Cir. 2013), 

as suggesting otherwise. Pet.Br. 44. It does not. In that case, the Court rejected the 

assertion that Congress’ failure to update a statutory cross-reference when enacting 

the 2010 Dodd-Frank Wall Street Reform Act suggested that Congress might have 

also forgotten to add a cross-reference into another provision. 714 F.d at 1336-37. 

Thus, the Court did not ignore a conforming amendment; rather, it refused to act 

based on a non-existent conforming amendment. Further, it reminded the petitioners 

of the “basic interpretive canon that a statute should be construed so that effect is 

given to all its provisions.” Id. at 1334 (internal quotation omitted). 

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amendment, the House amendment was also “necessitated by the substantive 

amendments of provisions of the bill.” Id. Moreover, the heading under which the 

House amendment was enacted – “Miscellaneous Guidance” – no more indicates 

substantive import than the Senate’s “Conforming Amendments” heading. 

 Petitioners also assert that the Senate amendment was a mere “clerical error.” 

Pet.Br. 41. The legislative history indicates otherwise. First, a Senate bill introduced 

in mid-1989 contained the same text to replace the obsolete cross-reference as the 

House bill. S. 1490 § 108 (July 27, 1989). But that text was removed in late 1989, and 

the new bill provided that “112(b)(1)(A)" should be changed to “112(b).” S.1630, as 

reported (Dec. 20, 1989). Later in the process, the House deleted the Senate 

amendment, but it was added back into the final bill in conference. Compare S. 1630, 

101st Cong. (passed by the House on May 23, 1990) with Pub. L. No. 101-549, § 

302(a), 104 Stat. 2399, 2574 (1990). This history strongly indicates that the Senate 

consciously chose not to adopt the House’s language. 

 Petitioner’s suggestion that the Court should give weight to the fact that the 

House’s Office of Law Revision Counsel did not execute the Senate amendment 

when publishing the U.S. Code (Pet.Br. 46) is also misguided. That office does not 

make law. On its website, the Office describes its job as simply to “prepare[] and 

publish[] the United States Code.” 27 It has no authority to decide between competing 

                                                            

27 At http://uscode.house.gov/about/info.shtml. 

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amendments to a provision that may have significantly different implications for the 

meaning of the text, and its mechanical decisions not to execute one amendment 

where it is functionally impossible to incorporate both into the U.S. Code are entitled 

to “no weight.” United States v. Weldon, 377 U.S. 95, 98 n.4 (1964).28 

 Rather, if dueling amendments to a bill may have meaningfully different results, 

they should be interpreted – first by the agency to which administration of the statute 

has been delegated, subject to judicial review – to reconcile them if possible. See 

Citizens to Save Spencer Cnty. v. EPA, 600 F.2d 844, 872 (D.C. 1979) (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.”); see 

also Scialabba v. Cuellar de Osorio. 134 S. Ct. 2191, 2203 (2014) (where “internal 

                                                            

28 Petitioners claim to have identified twelve instances where the Office addressed 

competing amendments to the same bill. Pet.Br. 43 & n.10. In eleven of those 

examples, the amendments were either duplicative (e.g., Revisor’s Note, 11 U.S.C. § 

101 (amendment substituting a period for a semicolon could not be executed because 

another amendment had already done so)); very different in scope (e.g., Revisor’s 

Note, 26 U.S.C. § 1201 (one amendment replaced a cross-reference but the other 

deleted the subparagraph)); or there was an obvious error (e.g., Revisor’s Note, 21 

U.S.C. § 355 (language amended did not exist)). The remaining instance is 

distinguishable because while two amendments deleted the same text, only one of 

those amendments replaced the deleted text, so there was no conflict. See Revisor’s 

Note, 42 U.S.C. § 9874. Indeed, instances in which competing amendments have 

meaningfully different implications that require reconciliation will necessarily be rare, 

and courts can address the question of how to interpret the statute in such rare 

instances without creating “disruptive result[s].” Pet.Br. 48. 

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tension” in provision “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.”) 

(Kagan, J, plurality); id. at 2228 (“before concluding that Congress has legislated in 

conflicting and unintelligible terms,” “traditional tools of statutory construction” 

should be used to “allow [the provision] to function as a coherent whole”) 

(Sotomayor, J. dissenting). 

 Petitioners argue that, if the Senate amendment is given effect, the two 

amendments should be interpreted “additively,” so as to exclude from regulation 

under section 7411(d) all source categories previously regulated under section 7412 

(per Petitioners’ reading of the House amendment), and all hazardous pollutants (per 

the Senate amendment). See Pet.Br. 48-50. This even more restrictive interpretation 

of section 7411(d) is no reasonable “middle course” (Spencer Cnty., 600 F.2d at 872), 

and it does not “fit[] best with, and make[] the most sense of, the statutory scheme” 

(Scialabba, 134 S. Ct. at 2203), as it would leave a huge gap in the Act’s coverage of 

harmful pollutants. Furthermore, it belies Petitioners’ assertion that section 7411(d) 

can only be read one way. 

 Here, EPA is still in the middle of the rulemaking process; it has not yet 

determined how best to reconcile the House and Senate amendments and otherwise 

interpret the ambiguous language in section 7411(d). But it is at least plausible that 

EPA could reach a reasonable final conclusion that the statute allows it to regulate 

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CO2 emissions from power plants, whether because the House amendment should be 

interpreted as having the same effect as the Senate amendment, or because the two 

amendments can be reconciled, or for some other reason. Separation of powers 

principles require that EPA be given that chance. 

B. The Legislative History Does Not Support Petitioners’ Reading. 

As discussed above,29 in 1970 Congress provided comprehensive coverage of 

three groups of harmful pollutants (criteria, hazardous, and other) under three 

different programs (the NAAQS program, the section 7412 program, and the section 

7411(d) program). There is not a scintilla of evidence in the legislative history 

supporting Petitioners’ proposition that, in 1990, Congress intended to strip EPA of 

most of its authority to regulate under the third of those programs. To the contrary, 

Congress consistently expressed its desire to expand EPA’s authority under the Act. 

1. Congress sought to broaden EPA’s authority in 1990, not narrow it. 

The legislative history of the 1990 Amendments is replete with language 

indicating that Congress sought to expand EPA’s regulatory authority, compelling the 

Agency to regulate more pollutants, under more programs, more quickly 

Expediting the regulation of hazardous pollutants under section 7412 was a key 

focus. See S. Rep. No. 101-228 at 133 (“There is now a broad consensus that the 

program to regulate hazardous air pollutants . . . should be restructured to provide 

                                                            

29 Supra p. 3. 

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EPA with authority to regulate industrial and area sources of air pollution . . . in the 

near term”), reprinted in 5 A Legislative History of the Clean Air Act Amendments of 

1990 (“Legis. Hist.”) 8338, 8473 (Comm. Print 1993). But Congress also enhanced 

EPA’s authority under other programs, such as the NAAQS, Title V, and mobile 

source programs, and established new programs, such as the stratospheric ozone, 

chemical accident prevention, and acid rain programs. See H.R. Rep. No. 101-952 at 

335, reprinted in 5 Legis. Hist. at 1785 (summarizing bill as “includ[ing] provisions 

addressing attainment and maintenance of ambient air quality standards, mobile 

sources of air pollution, toxic air pollution, acid rain, permits, enforcement, 

stratospheric ozone protection, miscellaneous provisions, and clean air research.”).30

In contrast, the standards of performance program was not a focal point of the 

1990 Amendments. There is no mention of it in the Conference Committee’s 

summary of the bill. See id. And Petitioners have not identified a single statement in 

the legislative history showing Congressional intent to change – let alone dramatically 

reduce – the scope of section 7411(d). Petitioners would have the Court conclude 

that Congress made a major change to the existing source performance standards 

program sub silentio. But Congressional silence merits an opposite conclusion. See 

United States v. Neville, 82 F.3d 1101, 1105 (D.C. Cir. 1996). 

                                                            

30 See also S. Rep. No. 101-228 at 14 & 123, reprinted in 5 Legis. Hist. at 8354, 8463; 

H.R. Rep. No. 101-952 at 336, 340, 345 & 347, reprinted in 5 Legis. Hist. at 1786, 

1790, 1795, & 1997. 

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2. The legislative history is far more consistent with an intent to 

preserve the scope of section 7411(d) – or to broaden it. 

Given Congress’ pervasive expression of its desire to have EPA address the 

emission of more pollutants, through more programs, than ever before, coupled with 

the absence of any evidence of an intent to reduce the scope of section 7411(d), the 

legislative history of the 1990 Amendments strongly suggests that both houses simply 

sought to edit section 7411(d) to reflect the structural changes made to section 7412; 

i.e., EPA’s new mandate to list and regulate source categories of hazardous pollutants 

Congress itself had identified. See S. Rep. No. 101-228 at 133 (under restructured 

hazardous pollutant program, EPA should regulate “source categories of air pollutants 

(rather than the pollutants)”), reprinted at 5 Legis. Hist. at 8473. 

 Viewed in this context, the House’s insertion of the phrase “or emitted from a 

source category which is regulated under section 7412” in lieu of a bare crossreference to new section 7412 makes sense -- not because the House was trying to bar 

regulation of entire source categories in regard to all pollutants under section 7411(d), 

but because it was trying to reflect the fact that regulation under section 7412 would 

no longer proceed on a pollutant-by-pollutant basis, but instead on a source categoryby-source category basis. Indeed, analyzing the 1990 Amendments shortly after 

enactment, the Congressional Research Service characterized the House and Senate’s 

dueling edits to section 7411(d) as “duplicative” amendments that simply “change the 

reference to section 112” using “different language.” 1 Legis. Hist. at 46 n.1. 

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Moreover, even if the Senate Amendment were considered subsidiary to the 

House Amendment as Petitioners argue, it is nonetheless “the most telling evidence 

of congressional intent.” CBS, Inc. v. FCC, 453 U.S. 367, 381 (1981) (discussing 

import of contemporaneous conforming amendment). It is affirmative evidence 

supporting the conclusion that the 101st Congress, as a whole, did not intend to 

dramatically reduce the scope of section 7411(d). Petitioners, in contrast, have no 

such affirmative evidence supporting their contrary view of Congress’ intent. 

3. Congress was not seeking to avoid “double regulation,” and none 

results from regulating different pollutants under different programs. 

Lacking historical evidence of – let alone explanation for – Congress’ supposed 

desire to scale back section 7411(d), Petitioners theorize that Congress sought to 

avoid “double regulation.” Pet.Br. 33. But no “double regulation” results from 

authorizing EPA to address hazardous pollutants emitted from a source under section 

7412, and non-hazardous pollutants emitted from the source under section 7411(d). 

Nor is there any evidence that Congress was preoccupied with eliminating any 

“double regulation” of source categories regulated under section 7412. To the 

contrary, Congress authorized states to require sources already regulated under section 

7412 or other national standards to impose additional, more stringent state controls. 

42 U.S.C. § 7416. Congress also expressly addressed the potential burdens on power 

plants from being subject to regulation under section 7412 and under other programs 

by prescribing a higher standard for regulation under section 7412. See 42 U.S.C. § 

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7412(n)(1)(A) (EPA must conclude that regulation of power plants is “appropriate 

and necessary” after studying the hazards remaining despite the imposition of other 

programs). See also 42 U.S.C. § 7412(d)(7) (“[n]o emission standard or other 

requirement promulgated under [section 7412] shall be interpreted . . . to diminish or 

replace the requirements of a more stringent emission limitation or other applicable 

requirement established pursuant to section 7411 of this title”). Thus, Congress knew 

and intended that power plants might be subject to multiple regulatory programs. 

Instead of avoiding “double regulation,” 31 Petitioners’ interpretation of section 

7411(d) would open a yawning gap up in the Act’s regulatory regime, leaving 

pollutants that are undisputedly dangerous, but not “hazardous” as defined in section 

7412, outside of EPA’s reach. That result is entirely inconsistent with the legislative 

history and goals of both the Act and the 1990 Amendments. 

C. The Statutory Context Does Not Support Petitioners’ Theory. 

As the Supreme Court recently reminded EPA, a “reasonable statutory 

interpretation must account for both the specific context in which . . . language is 

used, and the broader context of the statute as a whole.” UARG, 134 S. Ct. at 2442 

(quotation omitted). Petitioners’ reading of section 7411(d) accounts for neither. 

                                                            

31 Even under Petitioners’ reading, double regulation is permissible under sections 

7411(d) and 7412 so long as EPA regulates under section 7411(d) first. 

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First, Petitioners’ interpretation is inconsistent with 42 U.S.C. § 7412(d)(7), 

which provides that “no emission standard or other requirement promulgated under 

this section shall be interpreted . . . to diminish or replace the requirements of a more 

stringent emission limitation or other applicable requirement established pursuant to 

section 7411 . . . .” This language reflects a clear intent that the section 7411 and 7412 

programs are to operate additively, so as to address the full spectrum of dangerous 

emissions from a source. Under Petitioner’s reading, section 7412 standards for 

hazardous pollutants would, in fact, effectively “diminish” (by eliminating) regulation 

of non-hazardous emissions from the subject source category under 7411(d). That 

result cannot be squared with the text of section 7412(d)(7). 

Furthermore, Petitioners’ interpretation of section 7411(d) is inconsistent with 

the broader scheme of the Act. As discussed above, supra p. 3, section 7411(d) was 

designed to work in tandem with the NAAQS and hazardous pollutant programs such 

that, together, the three programs comprehensively cover the full range of dangerous 

emissions from stationary sources. But under Petitioner’s reading, there would be a 

gaping hole in that coverage, which would leave sources’ emissions of certain 

dangerous pollutants outside the Act’s scope. Such a result is entirely inconsistent 

with the comprehensive scheme designed by Congress in 1970 as well as the Act’s 

purpose: to protect “public health and welfare.” 42 U.S.C. § 7401(b)(1). 

 

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D. EPA Has Never Adopted Petitioner’s Interpretation of § 7411(d). 

Petitioners argue that EPA has previously read section 7411(d) as they do, and 

is doing an “about face.” Pet.Br. 36. As proof, Petitioners point to statements made 

by EPA in the context of a 2005 Rule (“the Mercury Rule”), Pet.Br. 8-9, that was 

vacated by this Court in New Jersey v. EPA, 517 F.3d 574 (2008).32 But Petitioners 

are attempting to spin hay into gold, ignoring context and mischaracterizing EPA’s 

statements while omitting mention of their own inconsistent position in that litigation. 

To be clear, EPA has never reached the conclusion that Petitioners advance 

here: that 7411(d) should be read as barring regulation of all pollutants under that 

subsection where a source category has previously been regulated in regard to 

hazardous pollutants under section 7412. Rather, EPA’s conclusion regarding how to 

interpret section 7411(d) in the Mercury Rule was the same as the interpretation EPA 

proposed in the Legal Memorandum accompanying the Proposed Rule at issue here: 

i.e., that section 7411(d) only bars regulation in regard to a source category’s emissions 

                                                            

32 Petitioners incorrectly characterize New Jersey as vacating the section 7411(d) 

portion of the Mercury Rule “because it violated the Section 112 Exclusion.” 

Pet.Br. 37. The Court only stated that, having concluded that EPA improperly delisted power plants under section 7412, “under EPA’s own interpretation” EPA could 

not regulate under 7411. 517 F.3d at 583. As explained above, EPA’s conclusion in 

the Mercury Rule was only that it could not regulate a source category’s hazardous 

pollutant emissions under both sections, and only hazardous air pollutants were at issue 

in New Jersey. See id. at 137 (“Before the court are petitions for review of two final 

rules . . . regarding the emission of hazardous air pollutants.”) 

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of hazardous pollutants regulated under section 7412. Compare 70 Fed. Reg. 15,994, 

16,029-32 (Mar. 29, 2005), with Mem. at 21-27 (JA 136-139, with JA 392-398). 

Critically, the question raised in the Mercury Rule, and addressed in briefing in 

New Jersey v. EPA, was a different one: whether section 7411(d) bars regulation of 

emissions of a pollutant only listed as hazardous under section 7412, as opposed to 

actually regulated under that section. EPA concluded that Congress intended the latter. 

70 Fed. Reg. at 16,032. On the path to reaching that conclusion, EPA “note[d]” that 

“a literal reading”33 of the House Amendment “is that a standard of performance 

under section 111(d) cannot be established for any air pollutant – [hazardous] and 

non-[hazardous] – emitted from a source category regulated under section 112.” 70 

Fed. Reg. at 16,031 (emphasis added). But it concluded that such an interpretation of 

section 7411(d) was not the best interpretation, not only because of the Senate 

amendment, but also because: 

Such a reading would be inconsistent with the general thrust of the 1990 

amendments which, on balance, reflects Congress’ desire to require EPA to 

regulate more substances, not to eliminate EPA's ability to regulate large 

categories of pollutants like non-[hazardous pollutants]. . . . We do not believe 

that Congress sought to eliminate regulation for a large category of sources in 

the 1990 Amendments and our proposed interpretation of the two 

amendments to section 111(d) avoids this result. 

70 Fed. Reg. at 16,032. 

                                                            

33 “Literal” does not mean unambiguous, supra n.20, and thus EPA’s use of “literal” 

does not mean that EPA believed that this was the only possible way to read the 

House amendment. To the contrary, EPA stated that it was “interpret[ing]” that 

amendment. 70 Fed. Reg. at 16,031. 

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EPA may or may not reaffirm the conclusion it reached in the context of the 

Mercury Rule, and even if it does, EPA may refine its thinking about how the House 

and Senate amendments should be interpreted. Contrary to Petitioners’ suggestion, 

there is nothing inappropriate about that. Indeed, that is exactly what an agency is 

supposed to do through the rulemaking process. 

While condemning EPA for revisiting its prior analysis of the House and 

Senate amendments, Petitioners fail to mention that, in their own brief in the Mercury 

Rule litigation, they agreed with EPA that section 7411(d) is ambiguous and that EPA 

can reasonably read it as barring regulation only in regard to hazardous pollutants 

actually regulated under section 7412. Joint Brief of State Respondent-Intervenors, 

New Jersey v. EPA, No. 05-1097, 2007 WL 3231261, at *25 (D.C. Cir. Aug. 3, 2007) 

(JA 230) (“EPA developed a reasoned way to reconcile the conflicting language and 

the Court should defer to EPA’s interpretation.”).34 That position is obviously 

inconsistent with Petitioners’ argument here. 

Petitioners – like EPA – may reasonably reconsider an issue when it is 

presented in a different context. But the fact that some of them previously adopted 

an opposite interpretation of the relevant text undermines their claim that the only 

possible reading of section 7411(d) is the one they currently advance, and therefore EPA 

                                                            

34 The parties that filed this brief included Petitioners Alabama, Nebraska, West 

Virginia, and Wyoming. 

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should be prohibited from considering alternatives. Rather, EPA must be left to 

“develop a reasonable interpretation [of the statutory] provisions” (Whitman, 531 U.S. 

at 486) in regard to the question posed here: whether regulation of a source 

category’s hazardous pollutant emission under section 7412 bars regulation of that 

source category’s non-hazardous emissions under section 7411(d). Only then can 

EPA’s interpretation be fairly subjected to judicial scrutiny, in accordance with the 

principles set forth in Chevron, to determine whether that interpretation is reasonable. 

Conclusion 

The Court should dismiss or deny the Petition for Review. 

 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 4, 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 13,950 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 4, 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), five 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 4, 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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1

ORAL ARGUMENT SCHEDULED FOR APRIL 16, 2015 

No. 14-1146 

______________________________________________ 

IN THE UNITED STATES COURT OF APPEALS 

FOR THE DISTRICT OF COLUMBIA CIRCUIT

______________________________________________ 

STATE OF WEST VIRGINIA, et al., 

Petitioners, 

v. 

UNITED STATES ENVIRONMENTAL PROTECTION AGENCY, 

Respondent. 

______________________________________________ 

On Petition for Review 

______________________________________________ 

RESPONDENT’S STATUTORY ADDENDUM 

______________________________________________ 

 

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 4, 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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TABLE OF CONTENTS

Pub. L. No. 101-549, § 108(g), 104 Stat. 2399, 2467 (1990) ................................... ADD1 

Pub. L. No. 101-549 § 302(a), 104 Stat. 2399, 2574 (1990)..................................... ADD4 

1 U.S.C. § 112................................................................................................................ ADD6 

1 U.S.C. § 204(a)........................................................................................................... ADD7 

42 U.S.C. § 7401(b)....................................................................................................... ADD8 

42 U.S.C. § 7411(b) & (d)............................................................................................ ADD9 

42 U.S.C. § 7411(d)(1988).......................................................................................... ADD12 

42 U.S.C. § 7412(a)-(d) & (n) .................................................................................... ADD13 

42 U.S.C. § 7416 ......................................................................................................... ADD35 

42 U.S.C. § 7607(b), (d) & (e).................................................................................... ADD36 

S. Rep. No. 101-228 at 14, 123 & 133 ..................................................................... ADD44 

H.R. Rep. No. 101-952 at 335, 336, 340, 345 & 347 ............................................. ADD48 

S. 1490 § 108 (July 27, 1989)..................................................................................... ADD54 

S. 1630, as reported (Dec. 20, 1989) ........................................................................ ADD57 

S. 1630, 101st Cong. (passed by the House on May 23, 1990) .............................. ADD59 

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PUBLIC LAW 1Q1-549—N4V. 15, 1990 104 STAT. 2399

Public Law 101-549

141st Congress

An Act

Tv amend the C"lean Air Act to provide f'or attainment and maintenance ni' health Nov. 15, 19~

protective national ambient air quality standards, and for othQr purpnsF~. (S. 1534]

Re it enacted by the. Sent~tP and House ~~f Representat.it~e~ of the

U~aited States of America iii Congress assembled, Air pollution

central.

TITLE I—PROVISIONS FOR ATTAINMENT

AND MAINTENANCE OF NATIUNAL AMBIENT AIR QUALITY STANDARnS

Sec. 101. C:enerul planning requirement:;.

Sec.. 102. General pravi~iun5 for nonattainmcnt ~r~as.

Sec. 103. Additional ~rovi~ions for uzunc nnnatt~iiicnent areas.

Sec. 109. Additions! provisiuns for rartwn monoxide nonattxinment areas.

Sec. 1Q5. Additiunf~l provisions for particulKte matter tPM-101 nonattainm~nt areas,

Sec. 1Q6. Additi~n~l provisions f"or areas designAted ~ion~ttainment far sui~'ur

oxide, nitrogen dioxide, and lead.

Sec. 1 f) r . Pravisians related to Indian tribes.

~. 108. iVli~~ellaneous provisions.

Sep, 109, Intc?rstate polIutinn.

Sec. 11(1. ('anfnr.inin~ amendmEnts~

Set;.. 11I.. Transpnrtat.inn syRtem impactas nn clean air.

AEG. ipl. G~:NFRAL PLA~VNIN(:. RE~U[REMENTti.

LS) AREA DESIGNATIONS.—SeCtlUll 1Q~(d) of the Clean Air Act (42

U.S.C. 7447(d1y is amended to read as follows:

"Cf~) DESIGNATInNS.—

"(~ 1 DESIGNATIONS GENERALLY.—

`~CA) SU8M1'3SIUN RY GOVFBNUR9 OF INITIAL LIESIGNATIONS

FOLLOWING PRp1VIULGATIGN OF NEW OR REVISED STANDARDS.—

Ry Such date as the Administrator may reasonably require,

but nat later than 1 year after pramulgation of a new or

revised na~ianal ambient air quality standard for any

pollutant under section 1U9, the Governor af' each State

shall (and at any other time the Governor of a Stag deems

appropriate the Governor may) submit to the Administrat~r a list cif all areas tar portions thereof in the State,

designating as—

"li) nonattainment, any area that does not. meet (or

that contributes to ambient air quality in a nearby area

that dogs not meet► the na~ianal primary or secondary

ambient sir quality standard for the pollutant,

"(ii► attainment, any area tother than an area identified in clause ti}) 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

~t9~ l3'.1 O - `.~fl - 1 ~rf~Ji

Inter-

~overnrnent~l

relation.

AUTHENTICATED

U.S. GOVERNMENT

INFORMATION

GPO

ADD1

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PUBLIC LAW 101-549—NOV. 15, 1990 104 STAT. 2465

exterior boundaries of the reservation ar other areas within the

tribe's jurisdiction; and

"(C) the Indian tribe is reasonably expected to be capable, in

the judgment of the AdminiBtrator, of carrying out the functions to be exercised in a manner consistent with the terms and

purposes of this Act and all applicable regulations.

"(3) The Administrator may promulgate regulations which establish 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 or

administratively infeasible, the Administrator may provide, by re;~ulation, other means by which the Administrator will directly administer such provisions ao as to achieve the appropriate purpose.

"(5) Until such time as the Administrator promulgates regulations

pursuant to this subsection the Administrator may continue to

provide financial assistance to eligible Indian tribes under section

105.".

SEC. tOR. MtSCFi.I.ANEOUS GUIDANCE.

(S) TRANSPORTATION PLANNING GUIDANCE.—S@Ct1UA 1OH{@) O~ t~l@

Clean Air Act is amended by deleting the first sentence and insert- ~w t~s+~ 790 .

ing in lieu thereof the following: "The Administrator shall, afiter

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-ai.r quality planning process,

update the June 1978 Transportation-Air Quality Planning Guidelines and publish guidance on the development and implementation

of transportation and other measures necessary to demonstrate and

maintain attainment of national ambient air quality standards.".

(b) TRANSPORTATION CONTROL MEASURES.—S@Ct10II 108(f~(1) of the

Clean Air Act is amended by deleting all after "(fl" through the end

of subparagraph (A) and inserting in lieu thereof the following:

"(1) The Administrator shall publish and make available to appro- Dubuc

priate Federal, State, and local environmental and transportation information.

agencies not later than one year after enactment of the Clean Air

Act Amendment8 of 1990, and from time 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;

"(ill restriction of certain roads or lanes to, or construction of such roads or lanes for use by, passenger buses or

high occupancy vehicles;

"(iu~ employer-based transportation management plans,

including incentives;

"(iv) trip-reduction ordinances;

"(o} traffic flow improvement programs that achieve

emission reductions;

ADD2

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PUBLIC LAW 14I-549—NOV. 15, 199Q 104 STAT. 2467

need far revision, or implementation of any plan or plan revision

required under this Act.".

(e) NEw SavacE S~rwrtnwxns og PERFORMANCE.—(1) Section

11I1bX1}(B) of the Clean Air Act (42 U.S.C. ?41I(bx1>(B)) is amended

as €ollows:

(A) Strike "124 days" and insert "one year".

CB) Strike "~E} aays" 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 the 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 emission limitations and percent reductions beyond thane required

by the standards promulgated under this section are achieved in

practice, the Administrator shall, when revising standards

promulgated under this section, consider the emission limitations and percent ceductaons achieved in practice.".

~2) Seetian ~11(f)fl} of the Clean Air Act (42 LI.S.C. 7411(f'X1)) is

amended to read as follov~►s:

"(1} For those categories of major stationary sources that the ~'g~~gtiOflfi.

Administrator listed under subsection (b~i1~A) before the date of the

enactment of the Giean Air Act Amendments of 199Q and for which

regulations had not been proposed by the Administrator by such

date, the Administrator ~hall—

"fA) propose regulations establishing standards of perforrnance 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 least ~4 percent of such categories of sources within

4 years after the date of the enactment of the Glean Air Act

Amendments of 199Q; and

"tC~ propose regulations for the remaining categories of

sources within 6 years a€ter tie date of the enactment of the

Clean Air Aet Amendments of 1990.".

(~ SAVINGS CLAUSE.--Section 111(ax3~ of the Clean Air Act (42

U.S.C. ?4; l if fl(2 )) is amended. by adding at the end: "Nothing in title

II of this Act relating to no~road engines shall be construed to apply

to stationary internal combustion engines.".

fg} ~EGULATIdN OF EXISTING SOURCES,---~Ct1021 111td1~1xAx.i1 Of

the Clean Air Act (42 U.S.C. 7411td~~.xAxi1) is amended by striking

"ar 1~2tb~1~A)" and inserting "or emitted from a source category which is regulated under section 112".

4h) Corrsu~.TA~or~.—The penultimate sentence of section 121 of the Clean Air Act (42 U.S.C. 7421) is amended to read ~s follows: "'The Administrator shall update as necessary the original regale- ~~~$tion~.

bons required and promulgated under phis section (as in effect. immediately before the date of the enactment of the Clean Air Act

Amendments of 199(}1 to ensure adequate consultation.".

(11 DELEGATION.—The second sentence of section 301(axl) of the Clean Air Act t42 U.S.C. 760~(axl~) is amended by inserting "subject

to section 30?(dl" immediately following `'regulations".

ADD3

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P~TBLIC LAW 101-549—NOV. 15, 1990 104 STAT. 2389

Public Law ~ 01-549

141st Congress

An Act

Tn amend the Clean Air Act to provide for attainment and maintenance c>#' health Nov. 15, 1990

prntective nati4na) ambient air quality standards, and for other purpose. [S. 1630]

Be ~t enQctecl b~ the Senate and House of Representatic.~es of the

U~r.ited States of America in Congress assembled., Air pollution

cc>ntrat,

TITLE I—PRaVISIOl~TS F4R ATTAINMENT

AND MAINTENANCE 4~F NATIONAL AMBIE1~T AIR QUALITY STANDARDS

Ste. li~l. General planning reyuirement~.

Sec. 102. (~~n~ral provision:; for nt~nattrxinment areas.

Sec. lU$. Additi~nat pr~avisian~ fvr ucone nvn~ttainment, 81'E!89.

Sec. 1U4. ~ddition~l provisions firr carbon monoxide n~natta~inment areas.

Se~r. 1Q~. Additional provisions for purticutatc matter tPM-l0a nanattainment areas.

Sec. 106. Additidnul ~ro~i~iuns Cor areas dc~ignated nonaktainment t'ar sulfur

oxides, nitrogen dioxide,. and lead.

See. 107. Provisions related to Indian tribes.

Sec. 1U8. Miscellaneous provisions.

Sec, 109. lnterst~~t~ paliut.r~n.

Sec. 110. Comformin~ amene~ments,

SeC. Ill. Transportation gystem impactfi on clean air.

SEC. 1(IE. GENERAL PLA~INII~G [i.EQUiREMENTS.

(A) AREA DE3IGNATIOIrFS.—S~C~2UIl 1O`~CC~) Uf LI'1@ GI~3I] AlI` AC$ (~Z

U.S.C. 74U7(d)) is amended to read ~s follows:

"~dI D~IGNATI~NS.—

"E ~ 1 DESIGIVATIdN9 GENERA4LY.—

`~(A) SURMiS5ION BY G4Y~RNOR9 OF CNITIAL llESIGNATIONS

FOLLOWING PROMULGA~TIGi+I ~7F NEW OR REVISED STANDARDS.-

13y such date as the Administrator may reasor~ahly require,

but not. later than ~ year after promulgation of a new or

revised national ambient air quality standard for any

pollutant under section 10~, the Governor of each State

shall (and at any other time the Governor of a Stata deems

appropriate the Governor may? submit to the Administr~~or a lisp of all areas for portions thereof in the State,

ctesigriating as—

"tit nonattainment. any area that does not. meet (or

that contributes to am~iient air quality in a nearby ~►rea

ghat does not, meet► the national primary or secondary

ambient aii• quality standard for the pollutant,

"tii► attainment, an_y area Cother than an area identi-

~ed in clause tit} that meets the national primary ur

secondary ambient air quality standard for the pollutant, ar

'`Iiii) unclassifiable, any area that cannot. be classified

vn the basis of available information as meeting or nod

ay-i~► o - ~o - 1 ~sa~.~~

lnter-

~nvernmenfaI

relations.

AUTHENTICATED

U.S. GOVERNMENT

~IFORMATION

GPO

ADD4

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104 STAT. 2574 PUBLIC LAW 101-549—N4V. 15, 1994

and sources subject to the pravisians of this section and shall include

aggregate. information from the database in each annual report. The

report shall inctude, but not be limited to—

"(1) astatus report ors standard-setting under subsections fd1

and (~;

"(2) information with respect. to compliance with such standarda including the costs of compliance experienced by sources in

various catEgories and subcategories;

"~3) development and implementation of the E~ation~l urban

air to~cs program; and

"(A! recommendations of the Chemical Safety and Ha7.ard

Investigation Board with respect to the prevention and mi~ig~-

~ion of accidental releases.".

SAC. 3~`l. CONFORMING AMENnME:NTS.

~z Ux` i~~~. (a) Section 111(dxZ) of the Clean Air Act is amended by striking

"112(b,k1xA)" and inserting in lieu thereof "11~(b1".

('b} Section 111 of the Clean Air Act is amended by striking

paragraphs tg~(.5) and (gx6) and redesignating the succeeding paragrap~s accordingly. Such section is further amended by striking "or

section 1 ~2" in paragraph fg.~f ~) as redesignated in the preceding

sentence.

~2 USC Z41~. (c) Section I14(a} of the Glean A.ir pct is amended by striking "or"

after "~ectior~ 111," and. by inserting ", or any regulation of solid

waste combustion under section 129," after "section 11~". ~2 ~s~ ~~1~. (d) Section ~1$(b} of the Clean Air Act is amended by striking

"112(c~" and inserting in lieu thereof "112(i~E4)". ~2 ~jsC 7so2. (Q~ motion 3O2(k) of the Clean Air Act is amended by adding b~fvre

tl~e period at the end ther~f ", and any design, equipment, work

practice or operational standard promulgated under this Act.".

~~ U~ ~~~~• ffl Section 304(b} o€ the Clean Air Act is amended by Striking

"112(c,~l~B)" and inserting in lieu thereof "1}.2(ix3xA) or tf}(4)".

~~ ~~ ~~o~'~ tg~ Section ~0?(b~;l) is am~nde~ by striking `~112(c)" and inserting

in lieu thereof "112".

(h} Section 307fdx1) is amended by inserting—

"(D~ the promulgation of any requirement for solid waste

comb~cstiun u~~er section 1~9,"

after subparagraph (C) and redesignating the succeeding subparagraphs accordiraKly.

42 (1~SC' 7412 SEC. 3113. ttl~K A~SF.SSME~1't' ANI~ MANAGEMENT COMMI9SIn1~.

~~~~ (8) ESTABLISHMENT.—'I`here is hereby established a Risk Assessment and Management Commission thereafter referred to in this

section as the "Commission"), which shall commence proceedings

not later than 18 months after the date of enactment of the Glean

Air Act Amendments of X99(} and which shall make a full investigatian of the policy implications and appropriate uses of risk assessment and risk management in regulatory programs under various

Federal laws to present cancer and other chromic human health

effects which may result from exposure to hazardous sut~~s~ances.

tb) GfFARGE.—The Commission shall coneider—

(1) the report. of the National Academy of Sciences authorized

by section 122to? 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

ttazard~us substances ghat present a risk of carcinogenic effects

ADD5

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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 Large, 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 regular 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.

~~*

ADD6

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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 titles 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 insular possessions of the

United States.

~~*

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 research .and development program to achieve

the prevention and control of a.ir pollution;

(3) to provide technical and financial assistance to State and local governments in

connection with the development and execution of their air pollution prevention and

control programs; and

(4) to encourage and assist the development and operation of regional air pollution

prevention and control programs.

~*~

ADD8

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42 U.S.C. ~ 7411. Standards of performance for new stationary sources

~~~

(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 limitations and percent reductions beyond those required by the standards

promulgated 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.

ADD9

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(3) The Administrator shall, from time to time, issue information on pollution control

techniques for categories of new sources and a.ir 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 any 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 one 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 title 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) for which air quality criteria have not

been issued or which is not included on a list published under section 7408(a) of this

title or emitted from a source category which is regulated under section 7412 of this

title 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 existing source to

which such standard applies.

ADD10

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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 title with respect to an

implementation plan.

In promulgating a standard 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.

~~*

ADD11

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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 any e~sti.ng 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 title but (u) to which a standard of performance under this

section would apply if such emoting source were a netiv 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.

~~*

ADD12

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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 area and under common control that emits or has the

potential to emit considering controls, in the aggregate, 10 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 regulations 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 a.ir

pollutant emitted by such source by more than a de minimis amount or which results

ADD13

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in the emission of any hazardous air pollutant not previously emitted by more than a

de minimis amount.

(6) Hazardous air pollutant

The term "hazardous air pollutant" means any a.ir 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 may 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 more

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) Existing source

The term "e~sting 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

ADD14

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(1) Initial list

The Congress establishes for purposes of this sectionalist 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 2,4-D, 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-Dichloropropene

62737 Dichlorvos

111422 Diethanolamine

121697 N,N-Diethyl aniline (N,N-Dimethylaniline)

64675 Diethyl sulfate

119904 3,3-Dimethoxybe~zidine

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-Epoxybutane

140885 Ethyl acrylate

100414 Ethyl benzene

51796 Ethyl carbamate (Urethane)

75003 Ethyl chloride (Chloroethane)

106934 Ethylene dibromide (Dibromoethane)

107062 Ethylene dichloride (1,2-Dichloroethane)

107211 Ethylene glycol

151564 Ethylene imine (Aziridine)

75218 Ethylene ode

96457 Ethylene thiourea

75343 Ethylidene dichloride (1,1-Dichloroethane)

50000 Formaldehyde

76448 Heptachlor

118741 Hexachlorobenzene

87683 Hexachlorobutadiene

77474 Hexachlorocyclopentadiene

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 isocyanate

80626 Methyl methacrylate

1634044 Methyl tert butyl ether

101144 4,4-Methylene bis (2-chloroaniline)

75092 Methylene chloride (Dichloromethane)

101688 Methylene diphenyl diisocyanate (MDI)

101779 4,4'-Methylenedianiline

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 ode

7 5 5 5 8 1,2-Propylenimine (2-Methyl aziridine)

91225 Quinoline

106514 Quinone

100425 Styrene

96093 Styrene oxide

1746016 2,3,7,8-Tetrachlorodibenzo-p-dio~n

79345 1,1,2,2-Tetrachloroethane

127184 Tetrachloroethylene (I'erchloroethylene)

7550450 Titanium tetrachloride

108883 Toluene

95807 2,4-Toluene diamine

584849 2,4-Toluene diisocyanate

95534 o-Toluidine

8001352 Toxaphene (chlorinated camphene)

120 821 1,2,4-Trichlorob enz ene

7 9005 1,1,2-Trichloroethane

79016 Trichloroethylene

95954 2,4,5-Trichlorophenol

88062 2,4,6-Trichlorophenol

121448 Triethylamine

15 8209 8 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 arsine)

0 Beryllium Compounds

0 Cadmium Compounds

0 Chromium Compounds

0 Cobalt Compounds

0 Coke Oven Emissions

0 Cyanide Compounds1

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 radon) 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(CN) 2

2 Includes mono- and di- ethers of ethylene glycol, diethylene glycol, and triethylene

glycol R-(OCH2CH2) 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-

(OCH2CI~ n-OH. Polymers are 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.

4 Includes 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 tivhich 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 to~c) or adverse environmental

effects whether through ambient concentrations, bioaccumulation, deposition, or

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 paragraph and is a precursor to a pollutant which is

listed under section 7408(a) of this title 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 of 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 defects1 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 determination 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 determine 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 informarion

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 part 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 section. 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 standards for such pollutants emitted by electric utility

steam generating units.

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(7) Research facilities

The Administrator shall establish a separate category covering research 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 on 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) or (D) of subsection (b) (3) of this

section.

(B) The Administrator may delete any source category from 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 vvho 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 category or subcategory concerned (or group of

sources in the case of area sources) exceed a level which is adequate to protect public

health with an ample margin 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 petition 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 or 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

e~sting sources of hazardous air pollutants shall require the maximum 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 nona.ir quality health and environmental impacts and energy requirements, determines is

achievable for new or existing 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 or 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 way 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 e~sting 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 may 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 standard 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 title, 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 e~sting 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 Jetivell 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 (or equivalent) luting compounds, if the Administrator

determines 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

(u) 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 standards promulgated under subsection (~ 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 Nuclear 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

enforce 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 hazards 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 urili.ty

steam generating units, municipal waste combustion units, and other sources,

including area sources. Such study shall consider the rate and mass of such emissions,

the health and environmental effects of such emissions, technologies which are

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 years 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 tivhich 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 e~sting 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 potenttal for significant emissions reductions of

hazardous air pollutants provided that Federal funds shall not exceed 50 per centum

of the cost of any project assisted pursuant to this paragraph.

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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 a.ir

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 or 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 gas 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 determine whether such units or stations are 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 gas 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) of 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. The Administrator

shall report to the Congress within 24 months after November 15, 1990, with the

findings of such assessment, together with any recommendarions, 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 title

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 of such subtitle and this section are consistent.

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~ * ~

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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, 1977), 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 air 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. ~ 7607. Administrative proceedings and 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

title (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 title, 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 maybe 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 implementation plan under section 7410 of

this title or section 7411(d) of this title, any order under section 7411(j) of this title,

under section 7412 of this title, 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 (C) 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 title, or any other final action of the Administrator under this

chapter (including any denial or disapproval by the Administrator 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 for 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 s~tieth day, then any petition for review under this subsection shall

be filed within sixty days after such grounds arise. The 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 maybe 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 title,

(B) the promulgation or revision of an implementation plan by the Administrator

under section 7410(c) of this title,

(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(8) (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

o f this title,

(G) the promulgation or revision of any regulation under subchapter IV-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 title (but not including the granting or denying of

any such order),

(~ promulgation or revision of regulations under subchapter VI of this chapter

(relating to stratosphere and ozone protection),

Q) promulgation or revision of regulations under part C of subchapter I of this

chapter (relating to prevention of significant deterioration of air quality and protection

of visibility),

(K) promulgation or revision of regulations under section 7521 of this title and test

procedures 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 title,

(L) promulgation or revision of regulations for noncompliance penalties under section

7420 of this title,

(1V~ promulgation or revision of any regulations promulgated under section 7541 of

this title (relating to warranties and compliance by vehicles in actual use),

(N) 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 title,

(P) the promulgation or revision of any regulation pertaining to field citations under

section 7413(d)(3) of this title,

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(~ the promulgation or revision of any regulation pertaining to urban buses or the

clean-fuel 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 title,

(S) the promulgation or revision of any regulation relating to motor vehicle

compliance program fees under section 7552 of this title,

(7~ 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 title

pertaining to marine vessels, and

(~ such other actions as the Administrator may determine.

The provisions of section 553 through 557 and section 706 of Title 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 times it will be open to public

inspection. The statement of basis and purpose shall include a summary of--

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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 underlying the proposed

rule.

The statement shall also set forth or summarize 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 expense 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 rule 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 arguments, 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 netiv 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 impracticable to raise such objection within such rime or

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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 of 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 tivhich this subsection

applies, the court may reverse any such action found to be--

(A) arbitrary, capricious, an abuse of discrerion, 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.

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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 s~ 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 ninety 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.

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Calendar No. 427

IO18T CoNGR~SS i ( REpoxT

1st Session j SENATE t 101-228

CLEAN AIR ACT AMENDMENTS OF 1989

REPORT

OF THE

COMMITTEE ON

ENVIRONMET~TT AND PUBLIC WORKS

UNITED STATES SENATE

together with

ADDiTIQNAL AND MINORITY VIEWS

TO ACCOMPANY

S. 1630

DECEMBER 20, 1989.—Ordered to be printed

U.3. GOVERNMENT PAINfiING OFFICE

24-525 WAS~IINGTON : 1989

F.,T ~.lo by the Superintendent of Documents, U.B. Government Printing Office

YJaahington, DC 20402

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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 1070(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 107(f~(4) designates each area that was identi~ ed by EPA as a Group I area in

the August 7, 1987, promulgation of the revised particulate standard {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(d)(5) of the Act provides that areas may be

redesignated by the Administrator upon the request of the Governor of a State or on the Administrator's own motion. The Adminis=

trator must act to redesignate an area not currently designated as

nonattainment as a nonattainment area within one hundred eighty

days of receiving evidence that the area exceeds the national 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 State containing the

area has met requirements of the Act applica'~le 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 is located within a metropolitan statistical area

(MSA) or a consolidated metropolitan statistical area (CMSA) are

the boundaries of the MSA or CMSA, unless the Stat,~ demonstrates that some portion of the MSA or CMSA does not contribute

to ~riolations 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.

DISCUSSION

This section of the bill restructures and clarif es the process fox

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 existi~.ng 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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123

of title II recordkeeping or reporting requirements are calculated

on a per da~ basis.

Fourth; new authority is provided to the Administrator to assess administrative penalties for violations of sections 203(a) (motor ve- hicle and engine provisions), 211(d) (fuel and fuel additive provi- sione}, 21fi(b) (carbon dioxide emission standards), and 217(e) (nonroad engine and vehicle provisions). The maximum civil penalty

that may be assessed by the Administrator under this authority is

X200,000. Any such assessment can only be made after an opportunity for a hearing before the Administrator is provided, and the

amount of the penalty assessed is to be based on the consideration

of statutorily-prescribed factors. The Administrator is also authorized (as at present) to bring a civil action in Federal district court

to assess and recover any civil penalty prescribed in title II of the

Act, and similar factors are prescribed for consideration by the

-court in determining the penalty amount.

Fifth, this section revises the section 211(d) penalty provision,

which currently provides for a mandatory forfeiture of $10,000 per

day for violations of section 211 or fuel or fuel additive regulations

issued under that section. The mandatory forfeiture provision is replaced with a provision for a civil penalty of up to $25,000 per day

for each violation. In addition, the section clarifies that where via

lationa of fuel standards are based on a multi-day averaging period,

each day during the averaging period constitutes a separate day of

violation. This section of the bill also provides injunctive authority

to restrain violations of fuel statutory provisions and regulation, as

is already available in the Act for violations of motor vehicle and

stationary source requirements.

DISCUSSION

Experience with the mobile source provisions in title II of the

Act has shown that the enforcement authorities in this title need.

to be strengthen and broadened in several ways. Most of the title II

enforcement authorities have not been amended since 1970, and

the .impacts of inflation a.nd nearly two decades of enforcement experience need to be accounted for by updating these authorities.

Anti-tampering.—Current law prohibits manufacturers, dealers,

service station or garage operators, fleet owners or those in the

business of leasing vehicles from removing or disabling ("tampering with") components of vehicle emission control systems. Individua1 owners or operators of vehicles are not currently prohibited

from performing the same activities.

In its 1988 Motor Vehicle Tampering Survey, EPA concluded

that 23 percent of the passenger cars and lightrduty trucks surveyed in areas not covered by inspection/maintenance (I/M) programs ,and/or anti-tampering programs (ATP) showed evidence of

tampering with at least one component. Significant amounts of

tampering were also Found in ATP-only areas (17 percent) and I/M

plus ATP areas (1G percent).

Tampering can cause dramatic increases in emissions of hydrocarbons (HC), carbon monoxide (CO) and nitrogen oxides (NOx). For

example, a missing or damaged catalytic converter can increase HC

and CQ emissions by an average of 475 percent and 425 percent,

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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

hazardcus air pollutants under section 112 of the Clean Air Act

should b~ 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 fundainenta~lchanges in the basic provisions of section 112 of the

Clean. Air. Act. The bill establishes a list cif 191 air pollutants and a

mandatory schedule for issuing emissions standards for the major

sources of these pollutants. 'The standards are to be based on the

maximum reduction in emissions which can be achieved by application of best available control technology. These nevi, technologybased standards will become the principal focus of activity under

section 112. Authority to issue health-based standards is preserved

in modified form to beused 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

wate~cs by major industrial point sources.

Under the 1972 amendments to the Clean Water Act, industrial

dischargers were given two deacllinea to control conventional pollutants (biological oxygen 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 ~echnoiogy economically achievable" CBAT).

Toxic pollutants under the 1972 Act were to be treated differently. The Administrator was to publish a list of toxic pollutants

within 90 days and within a year promulgate effluent standards

that would provide an "ample margin of safety" to protect the

most affected (aquatic) organisms. 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 pct, 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 fox 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

decree that established a new formula for the development of effluent standards for toxic water pollutants. This agreement created a

list of 120 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 dischargers were to be in compliance with

these standards by July 1, 1983, 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 these new toxics standards.

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lOIBf CONGRBS$ 1 HOUSE OF REPRESENTATIVES ~ 

REPORT

,2d Session j 101-952

CLEAN AIR ACT AMENDMENTS

OF 1990

CONFERENCE REPORT

TO ACCOMPANY

S. 1630

OCTOBER 26, 1990.—Ordered to be printed

U.S. GOVERNMENT PRINTING OFFICE

:i:~41'L WASHINGTON : 1990

For sale by the Superintendent of Documents, U.S. Government Printing O(t'tce

Washington, DC 20402

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JOINT EXPLANATORY STATEMENT OF THE COMMITTEE OF

CONFERENCE

The managers on the part of the House and the Senate at the

conference on the disagreeing votes of the two Houses on the

amendments of the House to the bill (S. 1630) to amend the Clean

Air Act to provide for attainment and maintenance of health protective national ambient air quality standards, and for other purposes, submit the following joint statement to the House and the

Senate in esplanation of the effect of the action agreed upon by the

managers and recommended in the accompanying conference

report:

The House amendment to the text of the bill struck out ail of the

Senate bill after the enacting clause and inserted a substitute text.

The Senate recedes from its disagreement to the amendment of

the House 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 S. 1630, the Clean Air Act Amendments of 1990, includes provisions addressing attainment and

maintenance of ambient air quality standards, mobile sources of

air pollution, toxic air pollution, acid rain, permits, enforcement,

stratospheric ozone protection, miscellaneous provisions, and clean

air research. A summary of the conference agreement follows.

TITLE I-NONATTAINMENT PROVISIONS

~tle I of the conference agreement, which adopts the House

14t1e 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, depending 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 organic compounds (VOCs), a precursor of ozone, by 3 percent per

year (with waivers for certain specified conditions) until the standard is attained.

Vehicle inspection and maintenance programs must be upgraded in. ozone and carbon monoxide areas that already have such programs and must be instituted in most other areas that do not already have them.

The Environmental Protection Agency (EPA) is required to impose one of the following sanctions in an area that fails to pre-

{335)

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~s

pare or implement a plan to attain an air quality standard: lunited

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 project may also have other unportant benefits.

The definition of major sources in current law is modified eo that

smaller sources of VOCs are required to control emissions (50 tons in moderate and serious areas; 25 tons in severe areas; 10 tons in

extreme areas).

When a State fails to develop a plan that meets the requirements

of the law, the EPA is required to promulgate a Federal Implementation Plan.

The EPA is required to issue control requirements for a number

of sources of pollution, including commercial and consumer products.

A new program is established to address the interstate transport

of ozone air pollution.

The conferees adopt the House language on rocket testing with the agreement that the appropriate Federal agency may find that testing required for a civilian or commercial launch program is es- sential to the national security.

Trrr.E II--MaroR V~cr~-R~i.~►~n Pxovisioxs

~tle 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 beginning . in 1995. States could elect to have the requirements apply in other cities with ozone pollution problems. In comparison with conventional gasoline, reformulated gasoline would be required to have 15 per- cent lower emissions of VOCs and toxic chemicals by 1995, and greater reductions by 2000. The agreement also contains additional standards for ozygen, benzene, and aromatics. Under section 211{kx4), 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 is deemed certified until the Administrator completes action on the petition. In the event that the Administra- tor subsequently denies such a petition, the conferees intend that the Admini,~trator will take appropriate steps to ensure orderly and prompt compliance.

Section 219 of the bill includes a credit program to provide flezi- bility in meeting the bill's requirements on the oxygen, aromatic hydrocarbon, and benzene content of reformulated gasoline. A

credit program is the mechanism by which persons subject to these requirements will be allowed to pool gasoline sold iun a given cov- ered area for purposes of determining compliance with these re- quirements.

Under this credit program, a person may earn credit for gasoline with a higher ouygen 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 MALT requirements.

Routine Emissions From "Area"Sources

Based on the list of pollutants mentioned above, EPA can also

list an area source category just as the agency would list a major

source category, and can require MACT. EPA moat list sufficient

source categories to assure that 90% of the emissions of the 30

most serious area source pollutants are regulated.

Five years after enactment, EPA is to propose a national urban

air toxics strategy to reduce cancer risks associated with urban air

toxics by 75%. EPA is to report on reductions achieved in 8 and 12

years intervals.

Accidental Releases

The agreement contains provisions that are designed to prevent

chemical accidents.

EPA is to publish a list of at least 100 regulated substances, of

which lfi 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 initial list.

The conference agreement establishes a Chemical Safety and

Hazard Investigation Board, similar t~ the National Transportation

Safety board, to investigate chemical accidents.

The Board is authorized to investigate accidental releases which

cause substantial property damage. Substantial damage would include fires, explosions, and other events which cause damages that

axe very costly to repair or correct, 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 units), 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 accidental 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 ident~cation of a range (including worst case events) of potential releases from the source, including an estimate of

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The oonfereda 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 pert C of ~tle I.

~ v--PBBMIT PROVISIONS

The conference agreement includes provisions that require various sources of air pollution to obtain operating permits which

would ensure oomplianoe with all applicable requirements of the

Clean Air ,Act.

Permit p~gr~ams

EPA is required to issue permit program regulations within one

year. States are required to develop pr~rams consistent with those

regulations. The programs would be in effect within four years, and

the requirement to have a permit would be phased-in over the ensuing three years.

Consistent with the general prnvisions of section 116 of the Clean

Air Act, the conferees understand that a State may establish additional, more stringent permitting requirements, but a State may

not establish permit requirements that are inconsistent with the

national permitting requirements of this Act, including thus title.

EPA Oversight of Plermit Phngrams

The conference agreement provides EPA vPith the authority to

review permits proposed to be issued by a State and to object to

permits that violate the Clean Air Act. EPA would also have the

opportunity to waive review of permits for small sources.

State response to EPA objections

Under the conference agreement, States would be granted 90

days to revise permits to meet any EPA objection. If the State fails

to revise the permit, EPA will issue or deny the permit.

Permit shield

The agreement provides that compliance with a permit is

deemed compliance with the requirements of the permit program.

Permit compliance also may be deemed compliance with other a~

plicable provisions of the Clean Air Act if the permit has been

issued in accordance with Title V and includes those provisions, or

if the permitting authority includes in the permit a specific determination that such provisions are not applicable.

Operational flexibility

Facilities will be suthari7.ed to make changes in operations without the necessity for a permit reviBion so Tong as: (i} the changes

are not "modifications" under Title I of the Act, (u) the changes

will not result in emissions that exceed emissions allowable under

the permit, and (iii the facility provides EPA and the permitting

authority with seven days written notice in advance of the changes.

P~ocessin~ permit applic~atio~ts

Ezcept €or applications submitted within the first year of the Permit program (for which a 3-year pha$ed review is allowed),

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are su~equently 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 case-by~ase basis for the manufacture of controlled

substances that are (~) coincidental, unavoidable byproducts of a

manufacturing process and (2) immediately contained and destroyed by the producer using maximum available control technologies.

TITLE VII—FEDERAL ENFORCEbIEN`I'

The conference agreement includes a number of provisions that

enhance the enforcement authority of the Federal government

under the Clean Air Act while at the same time providing substantive procedural safeguards. In general terms, the agreement increases the range of civil and criminal penalties for violations of

the Clean Air Act.

SIP and permit violations

The conference agreement revises and strengthens EPA enforcement authority regarding violations of State Implementation Plans

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 States fail to enforce SIPs or permit

requirements.

Violations of other r~equiriements

EPA is suthori~.ed to initiate a range of enforcement actions for

a number of violations of specified sections 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 to provide the Administrator with

prosecutorial discretion to decide not to seek sanctions under Section 113 for de minimis or technical violations in civil and criminal

matters.

Criminal penalties

Criminal fines end 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 the violator is on notice of the violation, knowing

violations of certain sections in the permit title, and knowing violations of the acid rain title ~or the stratospheric ozone protection

title. in addition, the agreement provides criminal fines and penalties for the knowing filing of false statements and other similar

recordkeeping, monitoring, and reporting violations. Consistent

with other recent environmental statute$, criminal violations of

the Clean Air Act are upgrailed from misdemeanors to felonies.

The amendmehts add new criminal sanctions for recordkeeping,

filing and other omissions. These prav~sions are not meant to penalize inadvertent errors. For criminal Sanctions to apply, a source

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101sT CONGRESS

~~T SESSION ~ ~

To amend the Clean Air Act to provide for the attainment anu meanienance of tn^

national ~,mbi~nt air qualify standards, the control of toxic au pollutants, the

prevention of acid deposition, and other improvements in the quality of the

Nation's ~.ir.

IN THE SENATE 0~' TIC TJNITED STATES

AtraUST 3 (legislative day, ~TANUARY 3J, 1989

Mr. C~~E (for himself, Mr. S~MPsox, Mr. DUR~NBERC3ER, Mr. Wa~rrER, Mr.

JEFFO$DS, Mt'. HUMPHREY, Mr. BOSCH~~ITZ, Mr. ~'AMATO, MI'. DOLE,

llZr. DOMENICI, Mr. ExoN, Mir. GoRTox, Mr. H~Tcx, Mr. HATFIELD, Mrs.

~ASSEBAUM, MT. McC~rr, Mr. MCCLURE, MT. MURKOWSKI, Mr. B,IEdLE,

M3'. RUDMAN, Mr. STEVENS, Mr. THURMOIID, Mr. WALLOP, Mr. BREAUX,

and Mr. LEvix} introduced the following bill; which was read twice and referred to the Committee on ;.~„~ronment and Public Works

,A► BILI.~.

To amend the Clean Air Act to provide for the attainment and

maintenance of the national ambient air quality standWrds,

the control of toxic air pollutants, the prevention of acid

deposition, and other improvements in the quality of the

N~at~on's air.

1 Be it enacieu .~ y t. ie Senate and House o f .l~epresentc~-

2 dives o f the L''nized States o f Ame~~ica in C`on~►re~~s assembled,

3 SECTI(1N } . ~I-~ORZ' TITLE AND TABLE O~~' GUNT~;~v~'~~.

4 ~~is Apt mad ~~ cite. ~s t ie "Clean .i~ir ~~ct ~nlend5 meats of 1989".

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~ "(3) the Adnunistrator may promulgate r~guls,,-

2 Lions which ~st~bli~h the elements ~f tribal ur_plemenj tation plans and procedures for appro -w1 or disapproval

4 of tribal implementation plans and portions thereof.

5 "{4) In any case in which the Administrator d~e6 terrnines that the treatment of Indian tribes as identical

7 to Mates is inappropriate or admi~.istratively infeasible,

8 the administrator may provide, by regcz~ation, other

J means by whicY~ the Administrator will directly admin•~

10 later such provisions so as to achievE the appropri~ts

11 ~~r~o~e.

12 "(5) Until such time ~,s the Adixiin.istrator promY~I13 gates regulations pursuant t~ this subsection, the Ad14 ministrator may continue to provide financial assistance

15 to eligible Indian tribes tender section 105.".

16 SEC. 108. MiSCELLANFOUS.

17 ~8,} T~ANBPGFTATiON PLANNING C~rUIDANCE.—SeG~a~n

18 1Q8 of the C~e~,n A.ir Act is amended ~y--

19 (1) revising the first sentence of subsection (e} to

20 read a~ follows:

21 "(e} ~Pithin nine months after the date of enactment a~

`~2 the Clean Air Act Amendrr~ents of 1989 and periodically

23 thereafter ~,s necessary to maintain a continuous process of

24 +ransportatio~ and au quality planning, including er~u~sions

25 inventory de~~lopr~n~~t, the Admuustrator shall, after cansuls i4so ~s

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1 "(B) propose regulations establishing standards of

2 performance for at lzast 5Q per centum of such catega3 rigs of sources within four years of the date of ~nact4 ment of the Clean Air Act amendments oz 1989; and

5 "(C) propose regulations for the remaining catego-

~ Ties of sources within sig ;ears of the date of enact7 ment of the Clean Air Act Amendments of 1989;".

8 (d} RE(~ULATZON OF Egi~TiNG SaURCEQ.---~Pction

J 111(4}(1)(A)(a) of the Clean Air Act is amended by striking

10 "or 112(b}(1)(~i)" and inserting "or enutted from a source

11 category which is regulated under section 112.".

12 (e) ~UTH08~iTY T~ OBTAIN INFORMATION.--Section

13 1 ~4(a){1) of the Clean Air Act is amended by14 {1) striking the term "or" and inserting a comma

15 immediately after t~~e phrase "any emission source";

16 and

17 (2) inserting "or who manufactures emission con18 trol equipment or process equipment, or who the Ad19 ministrator believes may have information necessary

20 for the purposes set forth in this subsection" unmedi21 ately after "any person who owns or operates an emis22 soon source.".

23 (~ CONSULTATION.---The second-to-last sentence of

24 section 121 of the Clean Air Act is amended ~o read as fol25 lows: "The Administrator shall update as necessary the origiADD56

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C~en~ar No. 427

101sT CON{~RESS

IST SE8$ION

1

[Report No. 101-228]

To amend the Clean Air Act to provide for attainment and maintenance of health

protective national ambient air Quality atand~rds, and for other purposes.

IN TAE SENATE OF THE UNITED SATE S

SEPTEMBE$ 14 (~BgiS~RtiVe ~A,y, $EPTEMBE$ s), 1989

~'. BAUOIIB (for himself, ~1'. Ci'HAFEE, ~'. ~UU$DIOB, ~T. D~TSENBE$QEB, mil'.

G}BAHAM, MT. JEFFOBDB, Mt. LAUTENBE${i, MY. LIEHERMAN, MT. ~IITCHELL, Mr. Mo~x, Mr. ~P~ar~$, Mr. CoaEx, and Mr. C$ArrsTox) introduced the following bill; which was read twice and referred to the Committee

an Environment sad Public ~Porks

DECEMBER 20, 1989

Reported, under authority of the order of the Senate of November 22 pegislative

day, November 6, 1989), by Mr. BUBDICK, with an amendment

[8trike all after the enacting clause and insert the part printed in italio]

A SILL

To amend the Clean Air Act to provide for attainment aa~d

maintenance of health protective national ambient au quality standards, and for other purposes.

1 Be it enacted by the Senate and Souse a f I~epresentac2 tines o f the United States o f America in Congress assembled,

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403

1 as8ig~ release prevention, mitigation, or response authorities

2 otherwise established by law.

3 "(k) STATE AUTHORITY.--Nothing in this section

4 shall preclud,~, deny, ox limit any right o f ac Stcxte or poliEical

5 subdivision thereo f to adopt or enforce any regulation, TeS quirement, or standard (including any procedural require7 ment} that is more stringent than a re~►ulation, requirerrtent,

8 or stc~n~Zrd in effect under this section or that- applies to a

9 substance not subject to this ~ectio~a.

10 "(L) A UTHORIZATION. --There are authorized to be aP11 propr. iat~d to the ~d~ninistra~oT such su~is as may be nece~-

12 s~zry to carry out the Provisions o f this section. '

13 CONFORMING AMENDMENTS

14 ~~EC. 305. (a} ,~ectio~ ~Y1(d)(1) o f tie Clean Air Act is

15 amended ~i~ striping "112(b)(Y)(~)" and inserting in lieu

16 thereof "Y12(b~ ".

17 rb) Section Y1Y o f ~~e Clean .fir Act is amended by

18 striking paragraphs Fi~~(5J and (g,~(6~ c~nd r~designating the

19 succeeding ParagrcxPhs .accordingly. Such section is further

20 amended b~ stril~ir~g "or section X12'' in paragraph. (g)(5) as

21 redesignated in the preceding sentence.

~2 lc) ~ectior~ Y1~(a) o f Ehe Clerxn A.ir .9.c~ is amended by

23 striking E`or" a~ter "section .~~1, "and by inserting `; or any

24 tzccir~ent prevention regulation under section Y,~9, " a f t~T "sec2v ti~rt YY2 ".

s isso xs

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IB

Printed as Passer

May 23, 1990

Ordered too be printed. as passed by the

House of Representatives

01sT CONGRESS

2~ ~~:SSION

•

~-~►N AC`s''

To amend the Clean ~~ir .pct to provide for attainment and

maintenance of health protective national ambient air quality standards, and for ot~ier purposes.

Strike out all after the enacting clause and insert:

1 SECTION r. SHORT TITLE, REFERENCE; AND T:~ ALE OF CON

2 TENTS.

3 ~c~) ~~ORT TITLE.—.This ~'ict m~xy be cited as the

4 "Clea~a 1~ir Act Amendments o f 190'

5 (b) I~E~E~ENG'E.—Whenever i~a this Act an amEnd5 ment ~r 7~epeal is expressed in terms o f can amendment Eo, or

? repeal of, a section or other prop: ~~on, the r,:erence shall be

8 consiuered to ae m~c~de to a section or other provision ~ f the

9 C'~an Air Act.

~r~~r~l,r. o~r.~v~•r1;:vT~s

`I'1'I'I,F 1—I'I~() i'1~51U.'~'~5' f{'()I~ .1'I'T~il.~'~IIF~i~'?' a4'D ~li~ilh'TL~VA~'C'~

l)1~' :~':17'I(l.'~'~tl, f1.1t131F,~'T ~tIR !~(..~11,IT~' fi1.~1~'~'1;~1I~I)~S

~S'ublilre ~I--In trc~nr~ral

N~c~. Z(I~. (.i~nr~~~al ~~lrc~t~~i~tr> >~c~gt~~remc+ttls.

,Scar. l~J:?. [rc~nc~rul p;t:t•ftiiv~is fur nr~f"~tluinment crr~rrs.

.~Fr~. 1(I~~. ~tdrlifi~nul l~rr~t~r4inns jrf~ n~nnt~ ltorzrrrrr~~n~r:~~nt arras.

h'r~r. 1(1-x. ~ldclit~~„~rr~ !►,•nt•isir»r,s ju~~ rcn~l~on r~lvr~o.rirlc~ rtrmrr/lrii~imcttl ur~~u~.

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1 o f sources within 2 years after the date o f the enact2 me7it o f the Clean Air Act Amendments o f .990;

3 "(B) propose regulations establishing standards o f

4 performance for at least 50 percent o f such categories

5 o f sources within 4 years after the date o f the entxct6 ment o f the Clean Air Act Amendments o f Y990; and

7 "(L) y propose regulations for the remaining catego8 ries o f sources within 6' years after the date o f the en9 actment o f Ehe Glean Air Acl ~1.mendments o f Y990. '

10 (e1 S~~VINGS CLAUSE.—Section ~1~(a}{3) (42 U.S.C.

11 74YY (f) (7)) is amended by ac;ding at the end: "Nothing in

12 title II o f this Act relating to nonrocxd engines shall be conY 3 strued to apply to stationary in~er~nal, combustion engines. ".

14 (f} ~EG~IL~T~ON OF EXISTING rSOURCES.—,Section

15 .71.7 (d) (1) (A) (i~ (~2 U. S. G'. 74.7Y (d) (Y) (A) (i)) is amendEd by

16 stril~ing "or 1Z2(b~(1)(A)"and inserting "or emitted from a

17 source category which is regulated under seG~tion 1Y2'

18 (g) ~'ONSULTATION.--The penultimate sentence o f sec19 lion ~2~ (42 U.S.C. 7427) is amended to read as follows:

20 "fihe Administrator shall update as necessary the original

21 regulations required aril promulgated under this section (as

22 in effect immediatelz~ before the date o f the enactment o f the

2~3 C.:"leun Air Act Amendments o f X 990) to ensure adequate

,, ~4 con~5~u lal ivn. ~ .

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