ORAL ARGUMENT NOT YET SCHEDULED 

IN THE UNITED STATES COURT OF APPEALS 

FOR THE DISTRICT OF COLUMBIA CIRCUIT 

Case Nos. 13-1312, 14-1186 

 

NORTH CAROLINA, 

 PETITIONER, 

v. 

UNITED STATES ENVIRONMENTAL PROTECTION AGENCY, 

 RESPONDENT, 

SIERRA CLUB, ET AL., 

RESPONDENT-INTERVENORS. 

 

ON PETITIONS FOR REVIEW OF FINAL AGENCY ACTION OF THE 

UNITED STATES ENVIRONMENTAL PROTECTION AGENCY

 

 

BRIEF FOR RESPONDENT

 

SAM HIRSCH

ACTING ASSISTANT ATTORNEY GENERAL

ENVIRONMENT AND NATURAL 

 RESOURCES DIVISION

 AMY J. DONA

 ENVIRONMENTAL DEFENSE SECTION 

 U.S. DEPARTMENT OF JUSTICE

 P.O. BOX 7611 

 WASHINGTON, D.C. 20044 

 TEL: (202) 514-0223; FAX: (202) 514-8865 

 

 DECEMBER 16, 2014 

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RESPONDENT’S CERTIFICATE AS TO PARTIES, 

RULINGS, AND RELATED CASES 

A. Parties and Amici

All parties appearing in this Court are accurately identified in the Brief of 

Petitioner State of North Carolina. 

B. Rulings Under Review 

 Two agency actions are under review in these consolidated cases. In case 

number 13-1312, Petitioner seeks review of EPA’s final rule entitled “Prevention 

of Significant Deterioration (PSD) for Particulate Matter Less Than 2.5 

Micrometers (PM2.5)--Increments, Significant Impact Levels (SILs) and Significant 

Monitoring Concentration (SMC),” published in the Federal Register at 75 Fed. 

Reg. 64,864 (Oct. 20, 2010). In case number 14-1186, EPA’s denial of the State of 

North Carolina’s Petition for Reconsideration and Amended Rulemaking, 

published in the Federal Register at 79 Fed. Reg. 55,412 (Sept. 16, 2014), entitled 

“Prevention of Significant Deterioration (PSD) for Particulate Matter Less Than 

2.5 Micrometers (PM2.5)--Increments, Significant Impact Levels (SILs) and 

Significant Monitoring Concentration (SMC)—Notice of Action Denying Petition 

for Reconsideration and Amended Rulemaking,” is under review. 

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C. Related Cases 

 Two other cases have sought review of the EPA final rule that Petitioner 

challenges in case number 13-1312: Texas v. EPA, case number 10-1415 (D.C. 

Cir. Dec. 20, 2010) (stayed pending EPA reconsideration proceedings), and Sierra 

Club v. EPA, 705 F.3d 458 (D.C. Cir. 2013) (fully resolved). 

Respectfully submitted, 

 /s/ Amy J. Dona 

AMY J. DONA, Attorney 

Environmental Defense Section 

U.S. Department of Justice 

December 16, 2014

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TABLE OF CONTENTS 

STATEMENT OF JURISDICTION.......................................................................... 1 

STATUTES AND REGULATIONS ......................................................................... 2 

ISSUES PRESENTED ............................................................................................... 2 

STATEMENT OF THE CASE .................................................................................. 4 

I. NATURE OF THE CASE ............................................................................... 4 

II. STATUTORY AND REGULATORY BACKGROUND .............................. 5 

 A. Clean Air Act Overview ........................................................................ 5 

 B. Particulate Matter NAAQS and Implementing Regulations ................. 6 

 C. The Prevention of Significant Deterioration Program .......................... 8 

 D. The 2010 Rule That North Carolina Attempts to Challenge Here ...... 11 

 1. The Proposed Rule .................................................................... 11 

 2. The Final Rule ........................................................................... 14 

 3. Judicial Challenge to the 2010 Rule ......................................... 16 

E. North Carolina’s Administrative Petition for Reconsideration and 

Amended Rulemaking ......................................................................... 16 

1. Clean Air Act and Administrative Procedure Act 

Administrative Petition Provisions ........................................... 16 

2. North Carolina’s Administrative Petition ................................. 17 

3. EPA’s Denial of the Administrative Petition ............................ 18 

 F. North Carolina’s 2013 State Implementation Plan Submission ......... 20 

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STANDARD OF REVIEW ..................................................................................... 20 

SUMMARY OF ARGUMENT ............................................................................... 22 

ARGUMENT ........................................................................................................... 24 

I. THIS COURT LACKS JURISDICTION OVER NORTH CAROLINA’S 

CHALLENGE TO THE 2010 RULE ............................................................ 24 

A. The Court Lacks Subject Matter Jurisdiction Because North 

Carolina’s Objection to EPA’s Interpretation of 42 U.S.C. § 7476 Is 

Not Based “Solely” On Grounds that Arose After the 60-day Filing 

Period for the 2010 Rule ..................................................................... 26 

B. The Court Lacks Subject Matter Jurisdiction Because North 

Carolina’s Petition Was Not Filed Within 60 Days of the Alleged 

After-Arising Grounds ........................................................................ 35 

C. The State’s Theory That Other, Tangentially-Related EPA 

Rulemakings “Ripened” Its Claim Is Flawed ..................................... 36 

D. The Jurisdictional Flaws in North Carolina’s Challenge to the 2010 

Rule are Further Compounded By its Failure to File its Petition 

Within 60 days of One of the Alleged “Ripening” Events ................. 41 

II. IF THE COURT CONSIDERS THE MERITS OF NORTH CAROLINA’S 

CHALLENGE TO THE 2010 RULE, THE COURT SHOULD DEFER TO 

EPA’S REASONABLE INTERPRETATION OF 42 U.S.C. § 7476 ......... 46 

III. EPA'S DENIAL OF NORTH CAROLINA’S ADMINISTRATIVE 

PETITION WAS REASONABLE ................................................................ 52 

A. EPA’s Denial of the Petition for Reconsideration Was Reasonable and 

Consistent with 42 U.S.C. § 7607(d)(7)(B) ........................................ 53 

B. EPA’s Denial of the Petition for Amended Rulemaking Was 

Reasonable ........................................................................................... 56 

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CONCLUSION ........................................................................................................ 58 

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TABLE OF AUTHORITIES 

Abbott Labs. v. Gardner, 

387 U.S. 136 (1967) .............................................................................................. 41 

Am. Iron & Steel Inst. v. EPA, 

886 F.2d 390 (D.C. Cir 1989) ........................................................................ 38, 56 

* Am. Road & Transp. Builders Ass'n ("ARTBA I") v. EPA, 

588 F.3d 1109 (D.C. Cir. 2009) .............................................. 25, 33-35, 38, 39, 56 

Am. Road & Transp. Builders Ass'n ("ARTBA II") v. EPA, 

705 F.3d 453 (D.C. Cir. 2013) ....................................................................... 25, 39 

Appalachian Power Co. v. EPA, 

249 F.3d 1032 (D.C. Cir. 2001) ............................................................................ 21 

Arkema, Inc. v. EPA, 

618 F.3d 1 (D.C. Cir. 2010) .................................................................................. 31 

AT&T Corp. v. FCC, 

363 F.3d 504 (D.C. Cir. 2004) .............................................................................. 22 

Bender v. Williamsport Area Sch. Dist., 

475 U.S. 534 (1986) .............................................................................................. 24 

Bennett v. Spear, 

520 U.S. 154 (1997) .............................................................................................. 36 

Bowles v. Russell, 

551 U.S. 205 (2007) .............................................................................................. 43 

*Authorities chiefly relied upon are marked with an asterisk.

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Bowman Transp., Inc. v. Arkansas-Best Freight Sys., Inc., 

419 U.S. 281 (1974) .............................................................................................. 21 

Camp v. Pitts, 

411 U.S. 138 (1973) .............................................................................................. 51 

Chevron, U.S.A., Inc. v. NRDC, 

467 U.S. 837 (1984) ........................................................................... 21, 22, 48, 50

Clean Water Action Council of N.E. Wis. v. EPA, 

765 F.3d 749 (7th Cir. 2014) ................................................................................ 42 

Cutler v. Hayes, 

818 F.2d 879 (D.C. Cir. 1987) .............................................................................. 54 

Engine Mfrs. Ass'n v. EPA, 

88 F.3d 1075 (D.C. Cir. 1996) ................................................................................ 2 

EPA v. EME Homer City Generation, L.P., 

134 S. Ct. 1584 (2014) .......................................................................................... 49 

Georgiades v. Martin-Trigona, 

729 F.2d 831 (D.C. Cir. 1984) .............................................................................. 21 

Grp. Against Smog & Pollution, Inc. v. EPA, 

665 F.2d 1284 (D.C. Cir. 1981) ..................................................................... 26, 33 

Honeywell Int'l, Inc. v. EPA,

705 F.3d 470 (D.C. Cir. 2013) ....................................................................... 31, 35 

Houston v. Lack, 

487 U.S. 266 (1988) ....................................................................................... 44, 45 

Kokkonen v. Guardian Life Ins. Co., 

511 U.S. 375 (1994) .............................................................................................. 21 

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Massachusetts v. EPA, 

549 U.S. 497 (2007) ....................................................................................... 22, 56 

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

645 F.3d 420 (D.C. Cir. 2011) .............................................................................. 25 

Motor Vehicle Mfrs. Ass'n v. State Farm Mut. Auto. Ins. Co., 

463 U.S. 29 (1983) ................................................................................................ 21 

Nat'l Ass'n of Reversionary Property Owners v. ICC, 

No. 94–1581, 1995 WL 687741 (D.C. Cir. Nov. 3, 1995) ................................... 56 

Nat'l Min. Ass'n v. U.S. Dep't of Interior, 

70 F.3d 1345 (D.C. Cir. 1995) ................................................................. 25, 26, 40 

* NRDC v. EPA, 

706 F.3d 428 (D.C. Cir 2013) .................................... 3, 7, 8, 17, 23, 26, 27, 28, 51 

NRDC v. EPA, 

559 F.3d 561 (D.C. Cir. 2009) .............................................................................. 36

NRDC v. Thomas, 

845 F.2d 1088 (D.C. Cir. 1988) ............................................................................ 33 

NRDC v. v. U.S. Nuclear Regulatory Comm'n, 

666 F.2d 595 (D.C. Cir. 1981) .............................................................................. 40 

Ohio Forestry Ass'n, Inc. v. Sierra Club,

523 U.S. 726 (1998) .............................................................................................. 41 

Okla. Dep't of Envtl. Quality v. EPA, 

740 F.3d 185 (D.C. Cir. 2014) .............................................................................. 25 

* Oljato Chapter of Navajo Tribe v. Train, 

515 F.2d 654 (D.C. Cir. 1975) .................................................. 2, 32-34, 38, 41, 54 

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Petro-Chem Processing, Inc. v. EPA, 

866 F.2d 433 (D.C. Cir. 1989) .............................................................................. 26 

Sierra Club v. EPA, 

705 F.3d 458 (D.C. Cir. 2013) ....................................................................... 16, 39 

Small Refiner Lead Phase-Down Task Force v. EPA, 

705 F.2d 506 (D.C. Cir. 1983) .............................................................................. 21 

Smiley v. Citibank (South Dakota), N.A., 

517 U.S. 735 (1996) .............................................................................................. 22 

United States v. Shimer, 

367 U.S. 374 (1961) .............................................................................................. 50 

Utah ex rel. Utah Dep't of Envtl. Quality ("Utah I") v. EPA, 

750 F.3d 1182 (10th Cir. 2014) ..................................................................... 42, 43 

Utah ("Utah II") v. EPA, 

765 F.3d 1257 (10th Cir. 2014) ..................................................................... 42, 43 

Utility Air Regulatory Grp. v. EPA, 

744 F.3d 741 (D.C. Cir. 2014) .............................................................................. 33 

WildEarth Guardians v. EPA, 

751 F.3d 649 (D.C. Cir. 2014) .............................................................................. 22 

STATUTES 

5 U.S.C. §§ 551-59 ................................................................................................... 17 

5 U.S.C. § 553(e) .................................................................................. 17, 52, 53, 56 

42 U.S.C. §§ 7401-7671q .......................................................................................... 5 

42 U.S.C. § 7407(d) ................................................................................................... 5 

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42 U.S.C. §§ 7408-09 ................................................................................................ 5 

42 U.S.C. § 7410(a)(1) ............................................................................................... 5 

42 U.S.C. § 7410(a)(2)(C) ......................................................................................... 6 

42 U.S.C. §§ 7470-92 ................................................................................................ 6 

42 U.S.C. § 7471 ........................................................................................................ 8 

42 U.S.C. § 7473 ........................................................................................................ 9 

42 U.S.C. § 7475 ........................................................................................................ 8 

42 U.S.C. § 7475(a)(3) ............................................................................................... 8 

42 U.S.C. § 7476 ............................................................................................... 29, 46 

42 U.S.C. § 7476(a) ................................................................................ 9, 23, 29, 47 

42 U.S.C. § 7476(f) ..................................................................... 9, 10, 29, 47, 51, 57 

42 U.S.C. § 7479(4) ................................................................................ 9, 10, 51, 52 

42 U.S.C. §§ 7501-09a ............................................................................................... 6 

42 U.S.C. §§ 7501-15 ................................................................................................ 6 

42 U.S.C. §§ 7513-13b .............................................................................................. 6 

42 U.S.C. § 7602(t) ........................................................................................... 17, 29 

42 U.S.C. § 7607(b) ................................................................................ 2, 23, 35, 40 

42 U.S.C. § 7607(b)(1).................................................. 1, 2, 4, 22, 23, 25, 36, 40, 42 

42 U.S.C. § 7607(d)(7)(B) ......................................................... 17, 19, 22, 23, 52-56 

42 U.S.C. § 7607(d)(9)(A) ....................................................................................... 21 

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CODE OF FEDERAL REGULATIONS 

40 C.F.R. pt. 50 .......................................................................................................... 6

40 C.F.R. §§ 50.6-50.7 ............................................................................................... 7 

40 C.F.R. § 51.166(b)(13), (14) ............................................................................... 10 

FEDERAL REGISTERS 

36 Fed. Reg. 8186 (Apr. 30, 1971) ............................................................................ 6 

52 Fed. Reg. 24,634 (July 1, 1987) ............................................................................ 7 

58 Fed. Reg. 31,622 (June 3, 1993) ......................................................................... 10 

62 Fed. Reg. 38,652 (July 18, 1997) ......................................................................6, 7 

72 Fed. Reg. 20,586 (Apr. 25, 2007) ......................................................................... 7 

72 Fed. Reg. 54,112 (Sept. 21, 2007) ................................. 12, 13, 14, 29, 30, 48, 50 

73 Fed. Reg. 28,321 (May 16, 2008) ......................................................................... 7 

75 Fed. Reg. 64,864 (Oct. 20, 2010) ............................... 1, 11, 14, 15, 29, 30, 48, 49 

78 Fed. Reg. 3086 (Jan. 15, 2013) ............................................................................. 7 

78 Fed. Reg. 63,883 (Oct. 25, 2013) ........................................................................ 37

78 Fed. Reg. 73,698 (Dec. 9, 2013) .................................................................. 16, 39 

LEGISLATIVE HISTORY 

S. Rep. No. 91-1196 (1970), reprinted in 1972 U.S.C.C.A.N. 3668 ....................... 44 

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H.R. Rep. No. 294, 95th Cong., 1st Sess. 322 (1977), reprinted in 1977 

U.S.C.C.A.N. 1077 ........................................................................................ 44, 54 

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GLOSSARY 

CAA or Act Clean Air Act 

 

EPA Environmental Protection Agency 

 

NAAQS National ambient air quality standard 

 

PM Particulate matter 

PM2.5 Fine particulate matter; Particulate matter which is nominally 

2.5 microns in aerodynamic diameter and smaller 

PM10 Coarse particulate matter; Particulate matter which is nominally 

10 microns in aerodynamic diameter and smaller 

PSD Prevention of Significant Deterioration 

SIPs State implementation plans 

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STATEMENT OF JURISDICTION 

The petition for review in case number 13-1312, which seeks direct review 

of a 2010 rule promulgated by the Environmental Protection Agency (“EPA”), 

entitled “Prevention of Significant Deterioration (PSD) for Particulate Matter Less 

Than 2.5 Micrometers (PM2.5)--Increments, Significant Impact Levels (SILs) and 

Significant Monitoring Concentration (SMC),” published in the Federal Register at 

75 Fed. Reg. 64,864 (Oct. 20, 2010) (hereinafter “2010 Rule”), should be 

dismissed for lack of jurisdiction. Petitioner, the State of North Carolina (“North 

Carolina” or the “State”) did not file within 60 days of the promulgation of the 

challenged rule or within 60 days of new grounds that arose solely after the initial 

60-day period for seeking judicial review as required under 42 U.S.C. 

§ 7607(b)(1). The argument advanced by the State in these petitions was in fact 

raised by other parties during the 2010 rulemaking and is not “based solely on 

grounds arising” more than 60 days after the promulgation of the 2010 Rule, as 

discussed infra at 24-34. Moreover, the petition was not filed within 60 days of 

the alleged “after-arising grounds,” infra at 35. Nor do the “ripening” events 

alleged by North Carolina present new grounds to bring a challenge to the 2010 

Rule outside of the 60-day period for judicial review, infra at 36-41. Even if the 

“ripening” events could be construed as “after-arising grounds,” which they are 

not, the petition was filed outside of the 60-day period allowed under § 7607(b)(1) 

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for the first of the alleged “ripening” events, and the State cannot rely on Federal 

Rule of Appellate Procedure 2 to circumvent the strict jurisdictional time limits in 

§ 7607(b)(1), infra at 41-46. 

Under Oljato Chapter of Navajo Tribe v. Train, 515 F.2d 654 (D.C. Cir. 

1975), North Carolina was required to first present any objection to the 2010 Rule 

based on new information to EPA in an administrative petition. See also Engine 

Mfrs. Ass’n v. EPA, 88 F.3d 1075, 1078 (D.C. Cir. 1996) (arguments dismissed 

where petitioners never gave EPA the opportunity to consider issues raised before 

filing petition for review). EPA denied the State’s administrative petition for 

reconsideration and amended rulemaking, and North Carolina filed a timely 

petition for review of that denial in case number 14-1186. EPA does not dispute 

that the Court has jurisdiction to review EPA’s denial of the State’s administrative 

petition for reconsideration and amended rulemaking pursuant to 42 U.S.C. § 

7607(b). 

STATUTES AND REGULATIONS 

Pertinent provisions are provided in the Petitioners’ addendum. 

ISSUES PRESENTED 

1. Whether the petition for review presented in case number 13-1312 is timebarred because: (a) it was not filed within 60 days of the publication of the 

Federal Register notice; (b) there are no new grounds for challenging the 

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2010 Rule within the meaning of the Clean Air Act’s “after-arising grounds” 

jurisdictional provision; (c) even if the decision in NRDC v. EPA, 706 F.3d 

428 (D.C. Cir. 2013), provides after-arising grounds, the petition was not 

timely filed within 60 days of the court’s decision; and, (d) the alleged 

“ripening” events did not reopen the issue that North Carolina seeks to 

litigate. 

2. Whether North Carolina’s claim in case number 13-1312 is time-barred and 

should be dismissed for lack of jurisdiction because it was filed more than 

60 days after October 25, 2013, the date of one of the “ripening” events 

alleged to give rise to its petition. 

3. Whether, if this Court were to reach the merits, the petition in case number 

13-1312 should be denied because EPA’s interpretation is reasonable since it 

closely tracks the applicable statutory language and flows directly from 

interpretations arrived at through notice-and-comment rulemaking. 

4. Whether EPA reasonably denied the State’s administrative petition for 

reconsideration and amended rulemaking because the State did not satisfy 

the statutory requirements for reconsideration and EPA provided a reasoned 

basis for declining to initiate a new rulemaking. 

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STATEMENT OF THE CASE 

I. NATURE OF THE CASE. 

In this case, Petitioner belatedly attempts to challenge a 2010 Rule 

promulgated by EPA to implement the Clean Air Act (“CAA” or “Act”), and in 

particular, EPA’s 1997 national ambient air quality standard (“NAAQS”) for fine 

particulate matter (“PM2.5”). The component of the 2010 Rule that the State seeks 

to challenge relates to the calculation of what concentration of PM2.5 may be 

permitted in a particular area that meets the PM2.5 NAAQS without causing 

significant deteriorations of air quality in that area. The State seeks to use two 

alternative procedural pathways to obtain judicial review of the 2010 Rule: a 

direct challenge to the 2010 rule; and a challenge to EPA’s denial of North 

Carolina’s administrative petition for reconsideration and amended rulemaking. 

The applicable CAA judicial review provision, 42 U.S.C. § 7607(b)(1), 

requires that petitions be filed within 60 days of the promulgation of the challenged 

rule or within 60 days of new grounds that arose after the initial 60-day period for 

seeking judicial review. The State’s direct challenge to the 2010 Rule is untimely 

under § 7607(b)(1) for multiple reasons and should be dismissed for lack of 

jurisdiction. The petition for review of EPA’s denial of North Carolina’s 

administrative petition, while timely, should be denied because EPA’s decision to 

deny the administrative petition was reasonable and well supported by the record.

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II. STATUTORY AND REGULATORY BACKGROUND. 

A. Clean Air Act Overview. 

 The Clean Air Act, 42 U.S.C. §§ 7401-7671q, enacted in 1970 and 

extensively amended in 1977 and 1990, establishes a comprehensive program for 

controlling and improving the nation’s air quality through a regulatory system of 

cooperative federalism. Under Title I of the Act, the EPA Administrator is charged 

with identifying air pollutants that endanger the public health and welfare and with 

formulating NAAQS that specify the maximum permissible concentrations of 

those pollutants in the ambient air. 42 U.S.C. §§ 7408-09. EPA has promulgated 

NAAQS for various pollutants, including particulate matter, for which it has set, 

over the years, a number of separate and distinct NAAQS. See 40 C.F.R. pt. 50. 

Pursuant to the CAA, EPA also must designate areas of the country as 

“attainment,” “nonattainment,” or “unclassifiable” with respect to each NAAQS. 

42 U.S.C. § 7407(d). 

Once a NAAQS has been established, each state must adopt and submit to 

EPA for approval a state implementation plan (“SIP”) that “provides for 

implementation, maintenance, and enforcement of [the NAAQS] in each air quality 

control region (or portion thereof) within such State.” Id. § 7410(a)(1). Each SIP 

must regulate the modification and construction of stationary sources of air 

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pollution in accordance with a program known as New Source Review. Id. 

§ 7410(a)(2)(C). 

Relevant to the 2010 Rule challenged here, Part C of Title I of the CAA, id. 

§§ 7470-92, which is described further infra at 8-11, sets forth the plan 

requirements for areas meeting the NAAQS, known as Prevention of Significant 

Deterioration, or “PSD.” Part D of Title I, id. §§ 7501-15, sets forth the plan 

requirements for nonattainment areas. Also relevant to petitioner’s argument, 

Subpart 1 of Part D, id. §§ 7501-09a, contains generally applicable requirements 

for nonattainment area plans, while Subpart 4, id. §§ 7513-13b, contains additional 

provisions for nonattainment area plans for particulate matter. 

B. Particulate Matter NAAQS and Implementing Regulations. 

Particulate matter, or PM, is the generic term for a broad class of chemically 

and physically diverse substances that exist as discrete particles (liquid droplets or 

solids) over a wide range of sizes. Particles originate from a variety of 

anthropogenic stationary and mobile sources as well as from natural sources. See

62 Fed. Reg. 38,652, 38,653 (July 18, 1997). The initial primary and secondary 

NAAQS for particulate matter were promulgated in 1971 and were expressed in 

terms of total suspended particles. 36 Fed. Reg. 8186 (Apr. 30, 1971). Total 

suspended particles includes particles that range up to 45 micrometers. Id. 

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EPA has since revised the particulate matter NAAQS multiple times. 

Especially relevant here, the initial particulate matter standards were replaced with 

standards for particles that are 10 micrometers or smaller (“PM10”) in 1987, see 52 

Fed. Reg. 24,634 (July 1, 1987), and in 1997, EPA added standards for PM2.5 while 

retaining PM10 standards. 62 Fed. Reg. at 38,652; see also 78 Fed. Reg. 3086, 

3091-96 (Jan. 15, 2013) (describing the history of particulate matter regulation in 

more detail). At present, there are particulate matter NAAQS for each of the 

following forms of PM (also known as indicators) and averaging times: annual 

PM2.5, 24-hour PM2.5, and 24-hour PM10. 40 C.F.R. §§ 50.6-50.7. 

EPA has promulgated several rules to facilitate the implementation of the 

1997 PM2.5 NAAQS. In 2007, EPA promulgated a rule that described the 

requirements for States and Tribes as they submit SIPs for areas that are not 

attaining that standard. 72 Fed. Reg. 20,586 (Apr. 25, 2007) (hereinafter “2007 

PM2.5 Rule”). This rule addressed requirements under the nonattainment area plan 

provisions found in CAA Title I, Part D. The 2007 PM2.5 Rule was remanded but 

not vacated in NRDC, 706 F.3d 428. 

In 2008, EPA promulgated a final rule addressing the bulk of New Source 

Review program provisions for PM2.5. 73 Fed. Reg. 28,321 (May 16, 2008) 

(hereinafter “2008 PM2.5 Rule”). This rule addresses requirements of both the PSD 

and Nonattainment New Source Review programs under CAA Title I, Parts C and 

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D, respectively. The nonattainment area portions of the 2008 PM2.5 Rule were 

remanded but not vacated in NRDC, 706 F.3d 428. 

In 2010, EPA promulgated the rule at issue in this case. The 2010 Rule 

amended requirements for PM2.5 under the PSD program in Title I, Part C, by 

adding maximum allowable increases in ambient air quality and two screening 

tools not related to this case. The 2010 Rule is described in greater detail infra at 

11-15. 

C. The Prevention of Significant Deterioration Program. 

The PSD program, set forth in Title 1, Part C of the CAA, aims to prevent 

the significant deterioration of air quality in areas of the country that meet the 

NAAQS. 42 U.S.C. § 7471. The PSD program requires preconstruction review 

and permitting of major new stationary sources and existing stationary sources that 

propose to make major modifications. 42 U.S.C. § 7475. One of the PSD permit 

requirements is that the permitting authority must assess the air quality effects of 

the proposed new source or modification of an existing source and ensure that 

granting a PSD permit, authorizing construction and operation of the source, would 

not result in a violation of the NAAQS or the maximum allowable concentration 

for the area. 42 U.S.C. § 7475(a)(3). 

Thus, the PSD program allows for some deterioration of air quality, but sets 

limits on the incremental increases in pollutant concentrations for a given area over 

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a “baseline concentration.” 42 U.S.C. §§ 7473, 7479(4). These allowable 

increases in concentrations of pollutants are known as “increments.” The baseline 

concentration plus the PSD increment amount establish a ceiling on the 

concentration of air pollution permitted in an area (unless the NAAQS is lower 

than this total, in which case the NAAQS serves as the limit). 

Regarding the various pollutant-specific increments that have been 

established, increments for particulate matter and sulfur dioxide were initially 

established in the CAA. 42 U.S.C. § 7473. Congress then instructed EPA to 

promulgate regulations to prevent the significant deterioration of air quality for 

four other pollutants covered by a NAAQS in 1977 and for additional pollutants 

for which NAAQS are promulgated after August 7, 1977. 42 U.S.C. § 7476(a). In 

reference to additional pollutants, § 7476(a) states: “In the case of pollutants for 

which national ambient air quality standards are promulgated after August 7, 1977, 

[EPA] shall promulgate such regulations not more than 2 years after the date of 

promulgation of such standards.” 

Congress also granted EPA a more particularized authority in 42 U.S.C. 

§ 7476(f) to substitute PM10 increments for statutorily-specified particulate matter 

increments, stating that: 

The Administrator is authorized to substitute, for the maximum 

allowable increases in particulate matter specified in section 7473(b) 

of this title and section 7475(d)(2)(C)(iv) of this title, maximum 

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allowable increases in particulate matter with an aerodynamic 

diameter smaller than or equal to 10 micrometers. Such substituted 

maximum allowable increases shall be of equal stringency in effect as 

those specified in the provisions for which they are substituted. 

Id. § 7476(f).1

 

Congress directed that the baseline concentration for each pollutant-specific 

increment should be determined with reference to “the first permit applicant” in 

that area and be “based on air quality data available to [EPA or a State] and on 

such monitoring data as the permit applicant is required to submit.” 42 U.S.C. § 

7479(4). Congress also directed that certain emissions should not be included in 

the baseline and instead be counted against the maximum allowable concentration. 

Id. § 7479(4). 

Interpreting the CAA, EPA has established a methodology for calculating 

the baseline concentration that uses three dates: a “major source baseline date,” a 

“trigger date,” and “minor source baseline date,” defined in EPA’s regulations. 40 

C.F.R. § 51.166(b)(13), (14). The major source baseline dates and trigger dates are 

fixed dates, while the minor source baseline date varies by area and is established 

in each area by the submission of the first permit application after the trigger date. 

                                                            

1

 EPA promulgated PM10 increments to replace the statutory particulate matter 

increments pursuant to 42 U.S.C. § 7476(f) on June 3, 1993. 58 Fed. Reg. 31,622 

(June 3, 1993). Because EPA was substituting the PM10 increments for the 

statutorily-specified particulate matter increments, EPA retained the original 

baseline dates for those increments. Id. at 31,631.

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75 Fed. Reg. at 64,868-69, JAXX. The particulars of how these dates are used to 

determine each area’s maximum allowable pollutant concentration are complex 

and not material for resolving this dispute. 

Generally speaking, because emissions of particulate matter have largely 

decreased over time, the earlier the baseline dates, the more likely that PSD 

increment consumption and expansion will be measured against a greater initial 

baseline concentration of ambient air pollution. Thus, the maximum allowable 

concentration established by adding the increment to the baseline concentration 

will likely be a higher total concentration for PM2.5 when the baseline concentration 

is calculated using earlier baseline dates. In this case, North Carolina argues that 

the fixed baseline dates should be set in 1975 and 1977, rather than the 2010 and 

2011 dates that were selected through the notice-and-comment rulemaking process. 

The 1975 and 1977 baseline dates would thus likely allow higher concentrations of 

PM2.5 pollution across the country. 

D. The 2010 Rule that North Carolina Attempts to Challenge Here. 

1. The Proposed Rule. 

On September 21, 2007, EPA proposed to promulgate both annual and 24-

hour PM2.5 increments, significant impact levels and a significant monitoring 

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concentration.2 72 Fed. Reg. 54,112 (Sept. 21, 2007), JAXX. The proposal 

addressed requirements only for the CAA’s PSD provisions under Title I, Part C. 

EPA explained in the proposal that it interprets 42 U.S.C. § 7476 to give it 

discretion to use either § 7476(a) or § 7476(f) to establish PM2.5 increments. See, 

e.g., 72 Fed. Reg. at 54,119-21, JAXX. EPA proposed two options. 

Option 1, which EPA called the “contingent safe harbor” approach, 

proposed using § 7476(a) to establish new PM2.5 increments. Id. at 54,120, 123-35, 

JAXX, XX. As EPA explained in the proposal, § 7476(a) authorizes EPA to 

promulgate pollutant-specific regulations targeted at preventing significant 

deterioration of air quality, which may include increments, for any pollutant for 

which EPA establishes a NAAQS after 1977. Id. at 54,119, JAXX. Thus, EPA 

could promulgate increments and accompanying baseline dates for an additional 

form of PM pursuant to § 7476(a) while retaining the existing PM10 increments. 

EPA also noted that § 7476(f), which speaks specifically of “substitution” and 

“PM10,” could be read to limit the provision to apply only where EPA substitutes 

increments for a new form of PM to replace the statutorily-specified increments or 

where EPA promulgates increments for the PM10 indicator—situations that are 

                                                            

2

 The significant impact levels and significant monitoring concentration are 

screening thresholds used in the permitting process, which are not challenged in 

these cases. See 72 Fed. Reg. at 54,112, JAXX.

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distinct from the circumstances in the proposed option. 72 Fed. Reg. at 54,120, 

JAXX. 

Option 2, which EPA called the “equivalent substitution” approach, 

proposed using § 7476(f) to replace the annual PM10 increments with annual PM2.5

increments because the annual PM10 NAAQS had been revoked in 2006.3

 EPA 

proposed that it could construe § 7476(f) to give EPA authority to update 

increments for particulate matter when EPA adopts a new form of particulate 

matter as an indicator for the particulate matter NAAQS. Id. at 54,120-21, JAXX. 

EPA noted, however, that § 7476(f) describes a process of “substitution.” Thus, in 

option 2, EPA proposed that § 7476(f) could be used if EPA substituted the PM2.5

increments for the PM10 increments and eliminated the PM10 increments.4

 Id. 

 Under each approach, EPA proposed specific fixed dates to serve as the 

trigger date and major source baseline date for PM2.5. 72 Fed. Reg. at 54,136-38, 

JAXX. Under option 1, the dates would be the effective date of the final rule. Id. 

at 54,136, JAXX. Under option 2, if EPA chose to substitute the annual PM2.5

                                                            

3

 EPA proposed options 2A and 2B, variations of the “equivalents 

substitution” approach that varied slightly depending on how EPA might define the 

statutory phrase “equal stringency.” See 72 Fed. Reg. at 54,137, JAXX. 

4

 EPA did not propose to apply option 2 to the 24-hour PM2.5 NAAQS 

because the 24-hour PM10 NAAQS was not revoked, and thus, there could be no 

“substitution” of the 24-hour PM2.5 NAAQS for the existing 24-hour PM10

NAAQS. 

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increments for the annual PM10 increments, the existing particulate matter major 

source baseline date in 1975 and trigger date in 1977 would be retained.5

 Id. at 

54,138, JAXX. But for the 24-hour PM2.5 increments, EPA proposed establishing 

new baseline dates, consistent with option 1. Id. EPA noted that the baseline dates 

set at the effective date of the final rule would make the new PM2.5 increments 

more protective and the use of 2010 dates would overcome significant 

implementation concerns (i.e., avoid the difficulty of “recreating” a PM2.5 emission 

inventory for a historic period of time when PM2.5 emissions were not in fact 

measured). Id. at 54,136, JAXX. EPA specifically requested comment on the 

alternative approaches and justifications set forth in the proposal. Id. at 54,136, 

54,138, JAXX, XX. 

2. The Final 2010 Rule. 

 EPA received numerous comments on the proposal (though none from North 

Carolina), including comments on EPA’s proposed interpretation of 42 U.S.C. 

§§ 7476(a) and (f). 75 Fed. Reg. at 64,881-90, JAXX; 2010 Resp. to Comments at 

7-13, JAXX. Considering these comments, EPA decided not to substitute the new 

annual PM2.5 increments for the annual PM10 increments, and thus, set the 

increments for both PM2.5 averaging times using § 7476(a), consistent with 

                                                            

5

 EPA proposed that it could also set a new major source baseline for the 

substituted annual PM2.5 increments, consistent with option 1. Id. at 54,138, 

JAXX.

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proposed option 1. Of particular relevance to North Carolina’s argument regarding 

baseline dates, twelve commenters, many of whom supported the application of § 

7476(f) to create substitute PM2.5 increments, supported the proposal to establish 

new, more protective baseline dates for PM2.5, while one commenter supported 

retaining the historic particulate matter baseline dates for the new PM2.5

increments. 75 Fed. Reg. at 64,887, JAXX; 2010 Resp. to Comment at 49-51, 

JAXX. EPA reviewed the comments and concluded that the most reasonable 

approach was to establish new dates for implementing the PM2.5 increments. EPA 

noted that several commenters had identified difficulties that would occur if the 

PM2.5 emissions inventory for increment analyses had to be created for an earlier 

time period. EPA concluded that given the lack of information on historic PM2.5

emissions, and the technical difficulties in establishing PM2.5 emission inventories 

without that historic data, it would not be appropriate to require states and sources 

to retroactively account for PM2.5 increment consumption by setting the major 

source baseline date for the PM2.5 increments in 1975. 75 Fed. Reg. at 64,888, 

JAXX. In addition, EPA noted that because it decided to retain the annual PM10 

increment, the current level of environmental protection associated with that 

increment and its 1975 major source baseline date would be preserved. Id. at 

64,887, JAXX. Thus, EPA promulgated a new major source baseline date of 

October 20, 2010, and trigger date of October 20, 2011. Id. 

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3. Judicial Challenge to the 2010 Rule. 

In 2010, Sierra Club filed a timely petition for review of the 2010 Rule, 

challenging the Rule’s significant impact levels and the significant monitoring 

concentration.6

 Following oral argument, this Court vacated portions of the 2010 

Rule that pertained to those provisions. See Sierra Club v. EPA, 705 F.3d 458 

(D.C. Cir. 2013). Sierra Club did not challenge the promulgation of the increments 

or baseline dates, and the Court’s decision did not address increments or baseline 

dates. See id. On December 9, 2013, EPA published notice in the Federal 

Register that the portions of the 2010 PM2.5 Rule vacated by the Court were being 

removed from the Code of Federal Regulations. 78 Fed. Reg. 73,698 (Dec. 9, 

2013). 

E. North Carolina’s Administrative Petition for Reconsideration and 

Amended Rulemaking. 

1. Clean Air Act and Administrative Procedure Act Administrative 

Petition Provisions. 

The CAA provides for reconsideration of a rule when a person demonstrates 

through an administrative petition to EPA that it was impracticable to raise her 

objection during the period for public comment or if the grounds for such objection 

                                                            

6

 Texas also filed a petition for review of the 2010 rule, as well as an 

administrative petition for reconsideration. See Case No. 10-1415 (D.C. Cir.). 

Texas’ petition for review is being held in abeyance pending final action by EPA 

on reconsideration. See ECF No. 1303725, Case No. 10-1415 (D.C. Cir.). 

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arose after the period for public comment (but within the time specified for judicial 

review), and also that the objection is of central relevance to the outcome of the 

rule. See 42 U.S.C. § 7607(d)(7)(B). The Administrative Procedure Act more 

generally provides an interested person with the right to petition an agency “for 

issuance, amendment, or repeal of a rule.” 5 U.S.C. § 553(e).

2. North Carolina’s Administrative Petition. 

On December 23, 2013, North Carolina addressed a petition for 

reconsideration and amended rulemaking to EPA concerning the 2010 Rule. 

Admin. Petition, JAXX. The petition requested that EPA reconsider the major 

source baseline date associated with the PM2.5 increments pursuant to 42 U.S.C. 

§ 7607(d)(7)(B), and undertake a rulemaking procedure to amend the major source 

baseline date pursuant to the Administrative Procedure Act, 5 U.S.C. § 551-59. 

The petition argued that this Court’s decision in NRDC v. EPA, 706 F.3d 

428 (D.C. Cir. 2013), required that EPA adopt a different interpretation of CAA 

§§ 7476(a) and 7476(f) as applied to the promulgation of the major source baseline 

date for PM2.5. Admin. Petition at 5-7, JAXX. North Carolina asserted that in the 

NRDC decision, the Court held that the statutory definition of PM10 at 42 U.S.C. 

§ 7602(t) included PM2.5. Thus, North Carolina argued, § 7476(f) should be 

interpreted to include PM2.5, and it would be “illogical for Congress to restrict 

EPA’s discretion in addressing smaller sizes of PM through § 7476(f) while 

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allowing EPA to simply bypass that restriction by using § 7476(a) to treat the 

smaller size of PM as a new pollutant.” Admin. Petition at 6, JAXX. North 

Carolina requested that EPA reconsider the PM2.5 major source baseline date and 

amend the 2010 Rule to “incorporate” a major source baseline date of 1975. 

Admin. Petition at 7, JAXX. 

3. EPA’s Denial of the Administrative Petition. 

EPA responded to the State’s administrative petition on August 24, 2014, 

declining to undertake a reconsideration of the PM2.5 major source baseline date 

that was established in the 2010 Rule or undertake a rulemaking to amend the 

regulation. EPA Denial, Enclosure at 4-9, JAXX. In summarizing its response, 

EPA explained that it had sound reasons for establishing October 20, 2010, as the 

major source baseline date for PM2.5, and North Carolina’s petition did not provide 

compelling policy or legal reasons for EPA to change that date. EPA Denial, 

Enclosure Summary, JAXX. EPA noted that a revision of the major source 

baseline date for PM2.5 would significantly disrupt the implementation of the PSD 

program and would reduce the level of air-quality protection provided by the PM2.5

increments, and that nothing in the NRDC decision compels a change in the 

baseline date or any other aspect of the 2010 Rule. EPA Denial, Enclosure 

Summary, JAXX.

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 In regard to the petition for reconsideration specifically, EPA concluded that 

the petition did not satisfy either of the two alternative bases for reconsideration set 

forth in 42 U.S.C. § 7607(d)(7)(B). EPA Denial, Enclosure at 3-4, JAXX. First, 

EPA concluded that the petition did not demonstrate that it was impracticable to 

raise the objection to the PM2.5 major source baseline date during the period for 

public comment on the 2010 Rule. EPA noted that it had taken comment on which 

subsection of § 7476 should be applied in developing the PM2.5 increments and 

what major source baseline date should be used under either section, including the 

option to apply the existing PM10 major source baseline date of 1975. Id. In 

addition, EPA observed that the NRDC decision did not present for the first time 

the argument that EPA must apply § 7476(f) to develop PM2.5 increments because 

PM2.5 is a subset of PM10. Rather, that legal issue had been the subject of extensive 

discussion by EPA and commenters in 2007 and 2010, during the rulemaking 

process for the 2010 Rule. 

Second, EPA found that the petition also did not demonstrate that the 

grounds for the objection arose after the period for public comment on the 2010 

Rule and within the period for judicial review. EPA observed that the NRDC

decision did not address the 2010 Rule or the major source baseline date, but rather 

addressed how EPA had established SIP requirements for nonattainment areas 

under Part D, Title I of the CAA, and the court’s analysis in NRDC does not 

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compel a particular interpretation of the PSD provisions at issue in the 2010 Rule. 

EPA Denial, Enclosure at 5, JAXX. And again, EPA noted that the fact that PM2.5

is a subset of PM10 could have been, and indeed was, raised by other parties during 

the public comment period on the 2010 Rule. Moreover, EPA observed that even 

if the State’s objection based on the NRDC decision could be deemed “new 

grounds,” the grounds did not arise within the time specified for judicial review, 

i.e., 60 days after the final rule was published in the Federal Register. Id. at 5-6, 

JAXX. EPA further observed that its response to North Carolina’s comments on a 

proposed Utah SIP action could not be a trigger for renewed judicial review of the 

2010 Rule, citing Supreme Court and D.C. Circuit case law, and that the petition 

was not filed with 60 days of the court’s NRDC decision. Id. at 6, JAXX. 

F. North Carolina’s 2013 State Implementation Plan Submission. 

While not in the administrative records for either of the EPA actions challenged 

in these consolidated cases, as noted in the Holman affidavit attached to North 

Carolina’s Opening Brief, the State has submitted a SIP revision to EPA that uses a 

1975 major source baseline date. See Holman Aff. ¶ 4; Ex. 1. EPA has not taken 

action on that SIP submittal as of the date of this filing. 

STANDARD OF REVIEW 

When the Court’s subject-matter jurisdiction is challenged, a petitioner must 

demonstrate that jurisdiction exists. Kokkonen v. Guardian Life Ins. Co., 511 U.S. 

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375, 377 (1994); Georgiades v. Martin-Trigona, 729 F.2d 831, 833 n.4 (D.C. Cir. 

1984). If the Court finds jurisdiction exists, the CAA provides that the Court may 

reverse a final EPA rule under the Act if it was “arbitrary, capricious, an abuse of 

discretion, or otherwise not in accordance with law[.]” 42 U.S.C. § 7607(d)(9)(A). 

This narrow, deferential standard prohibits the Court from substituting its judgment 

for that of EPA. Motor Vehicle Mfrs. Ass'n v. State Farm Mut. Auto. Ins. Co., 463 

U.S. 29, 43 (1983). The Court must consider whether EPA’s decision “was based 

on a consideration of the relevant factors and whether there has been a clear error 

of judgment.” Bowman Transp., Inc. v. Arkansas-Best Freight Sys., Inc., 419 U.S. 

281, 285 (1974) (citation omitted). EPA’s determinations must be upheld if they 

“conform to ‘certain minimal standards of rationality.’” Small Refiner Lead PhaseDown Task Force v. EPA, 705 F.2d 506, 520-21 (D.C. Cir. 1983) (citation 

omitted). “Agency determinations based upon highly complex and technical 

matters are ‘entitled to great deference.’” Appalachian Power Co. v. EPA, 249 F.3d 

1032, 1051-52 (D.C. Cir. 2001) (citation omitted). 

To the extent the Court’s inquiry involves statutory questions, EPA is 

entitled to a high degree of deference. Under Chevron, U.S.A., Inc. v. NRDC, 467 

U.S. 837, 842-43 (1984), the Court and EPA must adhere to Congress’ clearlystated intent; however, if Congress has not “directly spoken to the precise question 

at issue,” id. at 842, the agency’s interpretation should be upheld if it is a 

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reasonable interpretation of the statute. Id. at 843-44. The agency’s interpretation 

need not “represent [] the best interpretation of the statute,” only a “reasonable 

one.” Smiley v. Citibank (South Dakota), N.A., 517 U.S. 735, 744-45 (1996). 

If EPA denies a petition to reconsider a rule, that denial is subject to judicial 

review under 42 U.S.C. § 7607(d)(7)(B). When reviewing a denial of a petition for 

reconsideration, “a court will reverse an agency’s denial of reconsideration only in 

the most extraordinary circumstances, and only if the agency has engaged in the 

clearest abuse of discretion.” AT&T Corp. v. F.C.C., 363 F.3d 504, 509 (D.C. Cir. 

2004) (internal quotations and citations omitted). Similarly, judicial review of an 

agency decision not to initiate a rulemaking is “very narrow” and “highly 

deferential.” See WildEarth Guardians v. EPA, 751 F.3d 649, 653 (D.C. Cir. 

2014) (citing Massachusetts v. EPA, 549 U.S. 497, 527 (2007)). 

SUMMARY OF ARGUMENT 

The State’s direct challenge to the 2010 Rule is untimely and should be 

dismissed for lack of jurisdiction. The CAA provides an explicit time limit for 

challenging EPA rulemakings. A petition for review must be filed within 60 days 

of publication in the Federal Register, or if the petition is “based solely on grounds 

arising after such sixtieth day,” within 60 days of the alleged after-arising grounds. 

42 U.S.C. § 7607(b)(1). The petition for review challenging the 2010 Rule was 

filed in 2013, clearly outside the 60-day window for a direct challenge. 

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The State’s argument that the Court has subject matter jurisdiction based on 

“after-arising grounds” has numerous failings. Most significantly, this Court’s 

decision in NRDC, 706 F.3d 428, does not provide a basis for a newly justiciable 

claim to challenge the 2010 Rule that could be directly filed in a court of appeals, 

and even if it did, the State did not file its petition with 60 days of the alleged 

“after-arising grounds.” The State’s theory that subsequent, tangentially-related 

actions by EPA “ripen” its claim to allow a challenge to the 2010 Rule after the 60-

day window lacks merit. In addition, because the 60-day limits in § 7607(b)(1) are 

jurisdictional bars, the State’s failure to file its petition for review within 60 days 

of one of the alleged “ripening” events even further condemns its efforts to obtain 

belated judicial review of the 2010 Rule. If the Court were to consider the merits 

of the State’s direct challenge to the 2010 Rule, despite these numerous 

jurisdictional flaws, the record for the rulemaking demonstrates that EPA’s 

decision to promulgate the baseline dates pursuant to 42 U.S.C. § 7476(a) was 

reasonable. 

A person may seek reconsideration of a rule, as North Carolina did here, but 

reconsideration does not extend the period for judicial review of the underlying 

rule, and the reconsideration petition must present new grounds (i.e., grounds 

which were not available during the rulemaking process) for objecting to the rule. 

See 42 U.S.C. § 7607(b), (d)(7)(B). The arguments that the State advances in its 

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administrative petition—that the PM2.5 increments should have been promulgated 

pursuant to 42 U.S.C. § 7476(f) and that the major source baseline date should be 

in 1975—could have been presented to EPA during the rulemaking proceedings. 

In fact, several commenters made such arguments in response to the proposed rule. 

EPA squarely addressed the issues as they were raised in the rulemaking, and 

reasonably opted to promulgate the PM2.5 increment under 42 U.S.C. § 7476(a) 

rather than § 7476(f) and set the major source baseline date in 2010. EPA 

explained its reasoning for not initiating reconsideration or new rulemaking 

proceedings in detail in its denial of the State’s administrative petition, which was 

eminently reasonable. 

ARGUMENT 

I. THIS COURT LACKS JURISDICTION OVER NORTH 

CAROLINA’S CHALLENGE TO THE 2010 RULE. 

The federal courts are courts of limited jurisdiction and may only exercise 

that jurisdiction which has been granted to them by Congress. Bender v. 

Williamsport Area Sch. Dist., 475 U.S. 534, 541 (1986). The judicial review 

provision of the CAA provides that a petition for review of a CAA rule 

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 

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such sixtieth day, then any petition for review under this subsection 

shall be filed within sixty days after such grounds arise. 

42 U.S.C. § 7607(b)(1). Outside these 60-day periods, the Court does not have 

jurisdiction to consider a challenge. Id.; see, e.g., Okla. Dep’t of Envtl. Quality v. 

EPA, 740 F.3d 185, 191 (D.C. Cir. 2014) (stating that the CAA’s 60-day deadline 

is “jurisdictional in nature”); Med. Waste Inst. & Energy Recovery Council v. EPA, 

645 F.3d 420, 427 (D.C. Cir. 2011) (“The filing period in the Clean Air Act ‘is 

jurisdictional in nature’; if the petitioners have failed to comply with it, [the courts] 

are powerless to address their claim.”) (citation omitted); Nat’l Mining Ass’n v. 

Dep’t of Interior, 70 F.3d 1345, 1350 (D.C. Cir. 1995) (“We have repeatedly held 

that temporal limitations on judicial review are jurisdictional in nature.”). 

This Court has repeatedly noted that it is necessary to preserve “‘the 

consequences’ of failing to bring a challenge within 60 days of a regulation’s 

promulgation.” Am. Road & Transp. Builders Ass’n v. EPA, 705 F.3d 453, 458 

(D.C. Cir. 2013) (“ARTBA II”); see also Am. Road & Transp. Builders Ass’n v. 

EPA, 588 F.3d 1109, 1113 (D.C. Cir. 2009) (“ARTBA I”). The State’s petition for 

review of the 2010 Rule should be dismissed for lack of subject matter jurisdiction 

because it fails to satisfy the jurisdictional prerequisites of 42 U.S.C. § 7607(b)(1). 

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A. The Court Lacks Subject Matter Jurisdiction Because North 

Carolina’s Objection to EPA’s Interpretation of 42 U.S.C. § 7476 Is 

Not Based “Solely” On Grounds that Arose After the 60-day Filing 

Period for the 2010 Rule. 

The State of North Carolina’s petition for review was filed well beyond the 

original 60-day period for challenging a Clean Air Act (“CAA”) rule, a fact the 

State does not dispute. See Opening Br. at 1, 25. The State asserts that its 

challenge to the 2010 PM2.5 Rule is an “after-arising grounds” claim that arises 

from this Court’s January 4, 2013, decision in NRDC v. EPA, 706 F.3d 428 (D.C. 

Cir. 2013). See Opening Br. at 29. 

The CAA provision invoked by North Carolina allows petitions for review 

of a rule to be filed more than 60 days after the promulgation of that rule only “if 

such petition is based solely on grounds arising after such sixtieth day.” 42 U.S.C. 

§ 7607(b)(1) (emphasis added). The “grounds arising after” or “new grounds” 

doctrine is narrow. New grounds can form the basis for a late challenge to final 

agency action only where the challenge is based on substantive legal arguments 

that were not available during the initial review period. See Nat’l Mining Ass’n, 70 

F.3d at 1350; see also Grp. Against Smog & Pollution, Inc. v. EPA, 665 F.2d 1284, 

1289-90 (D.C. Cir. 1981) (noting that the legislative history of 42 U.S.C. § 

7607(b)(1) indicates that it was intended for circumstances where “significant new 

information has become available”); Petro-Chem Processing, Inc. v. EPA, 866 

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F.2d 433, 437 n.4 (D.C. Cir. 1989) (holding that RCRA’s identical language “does 

not apply in these cases, in which the substantive grounds for the petitions arose, if 

at all, before the time limit expired”). 

Contrary to North Carolina’s arguments, the NRDC decision does not 

constitute a change in the legal landscape of how EPA interpreted 42 U.S.C. 

§ 7476 when it promulgated the 2010 Rule. In the NRDC case, environmental 

organizations challenged EPA’s decision to promulgate the nonattainment area 

portions of the 2007 and 2008 PM2.5 Rules pursuant to the provisions of Subpart 1 

rather than Subpart 4 of Part D (i.e., general nonattainment plan requirements 

rather than PM10-specific nonattainment plan provisions). 706 F.3d at 429. The 

NRDC court held that the nonattainment area portions of the 2007 and 2008 PM2.5

Rules ignored the plain meaning of the CAA because Subpart 4’s reference to 

PM10, which is statutorily defined to include all particles less than ten micrometers 

in diameter, necessarily included all PM2.5 particles since they are smaller than ten 

micrometers in diameter. Id. at 435. Thus, by the CAA’s express terms, Subpart 4 

governed the SIPs requirements for PM2.5 nonattainment areas. Id. Based on this 

interpretation of the CAA, the court remanded the nonattainment area portions of 

the 2007 and 2008 PM2.5 Rules to the EPA to “re-promulgate these rules pursuant 

to Subpart 4.” Id. at 437. The court did not vacate the 2007 and 2008 PM2.5 Rules 

or address the Prevention of Significant Deterioration program components of the 

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2008 PM2.5 Rule. Id. The NRDC decision does not compel a change in portions of 

the distinct PSD regulations promulgated in the 2010 Rule, as North Carolina 

contends. 

The NRDC case does not discuss the central legal issue in this case—

whether the PM2.5 increments and baseline dates should have been promulgated 

pursuant to § 7476(a) or (f)—and North Carolina could have presented its legal 

arguments regarding the application of §§ 7476(a) and 7476(f), as other 

commenters did, during the 2010 rulemaking process, and then subsequently 

brought a judicial challenge during the 60-day period following publication of the 

rule in the Federal Register. Thus, the State’s challenge is not based solely on 

grounds that arose after the 60-day period that followed publication of the 2010 

Rule in the Federal Register. 

North Carolina’s reading of the NRDC decision is overly broad. In NRDC, 

the D.C. Circuit held that because the statute defines PM10 to include PM2.5, when 

EPA promulgated the 2007 and 2008 PM2.5 Rules, it was required to promulgate 

the PM2.5 nonattainment implementing regulations for States and Tribes pursuant 

to Subpart 4 of Part D, Title 1 of the CAA (which by its terms applies to PM10), 

rather than the more general Subpart 1. There is, however, nothing in the NRDC

decision that specifically addresses the PSD program requirements or the 

promulgation of PM2.5 PSD increments and the related baseline dates, which apply 

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29

in attainment areas. Indeed, the NRDC decision contains no reference to the CAA 

statutory provision that North Carolina asserts should be interpreted differently in 

this case, 42 U.S.C. § 7476. At most, the NRDC decision confirmed something 

that EPA never disputed in the 2007 proposal or the 2010 Rule—that PM2.5 is 

included within the CAA’s definition of PM10 (42 U.S.C. § 7602(t)), and that by 

extension, 42 U.S.C. § 7476(f) may be read to apply to PM2.5. This does not mean, 

however, that EPA is precluded from also applying § 7476(a) to PM2.5. 

North Carolina also mischaracterizes EPA’s interpretation of 42 U.S.C. 

§ 7476 and its application in the 2010 Rule. EPA did not state that it was 

establishing the PM2.5 increment under § 7476(a) rather than § 7476(f) because it 

believed that PM2.5 was not included within the term PM10, as North Carolina 

contends. See Opening Br. at 10, 21-22, 28. To the contrary, EPA referred to 

PM2.5 as a new indicator for an existing criteria pollutant (i.e., particulate matter), 

and stated its belief that it could interpret § 7476(a) to apply to the promulgation of 

an additional increment for PM2.5 “since EPA promulgated a NAAQS for [the] new 

indicator of that pollutant after 1977.” 72 Fed. Reg. at 54,120, JAXX; see also 75 

Fed. Reg. at 64,871, JAXX (“[EPA] established new annual and 24-hour NAAQS 

for PM2.5 as if PM2.5 was a new pollutant, even though EPA had already developed 

air quality criteria for PM generally. Thus, for purposes of [§ 7476(a)], the 

promulgation of a NAAQS for PM2.5 established a NAAQS for an additional 

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30

pollutant after 1977.”). EPA opted not to promulgate the PM2.5 increment under § 

7476(f) because that subsection plainly applies specifically to circumstances where 

EPA “substitutes” a PM10 increment for the statutorily-specified particulate matter 

increments. 72 Fed. Reg. at 54,121, JAXX; 75 Fed. Reg. at 64,873, JAXX. EPA 

explained that because it was not setting or amending any increments for PM10 or 

otherwise taking action with respect to PM10 increments, and the preexisting annual 

and 24-hour PM10 increments were being retained (i.e., there was no substitution of 

one particular matter indicator for another), § 7476(a) provided the most 

straightforward approach for developing the PM2.5 increments. 75 Fed. Reg. at 

64,872, JAXX. 

Indeed, North Carolina could have presented the legal arguments that it 

seeks to advance now at the time of the 2010 rulemaking. North Carolina argues 

that EPA should apply § 7476(f) to develop the PM2.5 increments and baseline 

dates because PM2.5 is a subset of PM10. See Opening Br. at 17-22. Rather than 

disputing this premise, EPA discussed in the proposal its interpretation of § 7476(f) 

and specifically sought comment on whether that subsection should be used for 

this form of particulate matter rather than the more general § 7476(a). Numerous 

commenters made the same argument that North Carolina asserts is “new grounds” 

following the NRDC decision— that PM2.5 is a subset of particulate matter—and 

those commenters argued what North Carolina argues now—that § 7476(f) should 

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apply to the development of the PM2.5 increments. See 2010 Response to 

Comments 9-11, JAXX. 

Because the NRDC decision did not alter the “legal landscape” at issue in the 

2010 Rule, North Carolina’s reliance on Honeywell Int’l, Inc. v. EPA, 705 F.3d 470 

(D.C. Cir. 2013), is misplaced. In Honeywell, certain participants in a CAA capand-trade program sought review of EPA’s approval of pollutant transfers after a 

prior judicial decision, Arkema, Inc. v. EPA, 618 F.3d 1 (D.C. Cir. 2010), that had 

reviewed that same approval. The Arkema court held that certain pollutant 

transfers were “permanent,” whereas before the Arkema decision, EPA had viewed 

the transfers as non-permanent. Thus, the Arkema decision “changed the legal 

landscape” as it specifically applied to the participants in the CAA cap-and-trade 

program and effectively altered the terms of EPA’s approval of the program, and 

the petitioner in Honeywell “could not have raised its merits argument until [the 

court’s] decision in Arkema.” Honeywell, 705 F.3d at 473. Given this factual 

context, the Honeywell court concluded that the Arkema decision constituted afterarising grounds for participants in the programs to challenge the initial approval of 

the program. Id. In short, the legal change at issue in Honeywell arose directly 

from the Arkema decision. 

Similar facts and circumstances are not present in the instant case. The 2010 

Rule (and specifically EPA’s basis for selecting the baseline dates) is unaltered by 

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the NRDC decision, and there is no “newly justiciable” claim that arises directly 

from the NRDC decision. 

If the NRDC decision could be construed as providing new grounds to 

challenge the 2010 Rule, then North Carolina’s challenge to the 2010 Rule would 

run afoul of this Court’s longstanding precedent firmly establishing that any new 

grounds must first be presented to EPA in an administrative petition. See Oljato 

Chapter, 515 F.2d at 666-67. In Oljato Chapter, the petitioner also brought an 

untimely challenge under 42 U.S.C. § 7607(b)(1) directly in this Court, and the 

Court dismissed the petition because the petitioner had failed to present the 

information to the Agency first, stating that “a preliminary presentment to the 

Administrator of the new information allegedly justifying revision of a standard is 

required before we will exercise jurisdiction under [42 U.S.C. § 7607(b)(1)].” 515 

F.2d at 661. The Court then set forth the proper three-step procedure: 

(1) The person seeking revision of a standard of performance . . . 

should petition EPA to revise the standard in question . . . . 

(2) EPA should respond to the petition and, if it denies the petition, set 

forth its reasons. 

(3) If the petition is denied, the petitioner may seek review of the 

denial in this court pursuant to [§ 7607(b)(1)]. 

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Oljato Chapter at 666. As the Court further explained, such a procedure removes 

the serious anomaly that there is no “record” on which the Court can review the 

new information and the Agency’s response to it. Id. at 665. 

The Court has reaffirmed the necessity of complying with the Oljato 

Chapter procedure in multiple subsequent cases, including Grp. Against Smog & 

Pollution, 665 F.2d at 1290, and NRDC v. Thomas, 845 F.2d 1088, 1091-92 (D.C. 

Cir. 1988). See also ARTBA I, 588 F.3d at 1114 (describing the Oljato Chapter

line of cases). The Court recently re-affirmed the principle that EPA should have 

the first opportunity to address a new issue raised in an administrative petition in 

Utility Air Regulatory Grp. v. EPA, 744 F.3d 741, 747 (D.C. Cir. 2014) 

(“Objections raised for the first time in a petition for reconsideration must await 

EPA’s action on that petition.”). 

North Carolina attempts to distinguish the present case from the Oljato 

Chapter line of cases by relying on dicta from ARTBA I that discusses where a 

party should file a claim based on after-arising grounds. See Opening Br. at 25-26, 

28 (citing ARTBA I, 588 F.3d at 1113-14). In ARTBA I, the court concluded that 

none of the events cited by ARTBA satisfied the 60-day criterion, and accordingly, 

it did not need to determine where the ARTBA was required to invoke the 

§ 7607(b)(1) provision for after-arising grounds. The ARTBA I court simply raised 

the possibility of a “newly justiciable” claim without elaboration, when it posited, 

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but did not answer, the question of “where, precisely, a party is supposed to file 

such a claim” based on after-arising grounds under § 7607(b)(1). 588 F.3d at 

1114. Nothing in ARTBA I distinguishes the type of claim advanced here—one in 

which a petitioner asserts that new information calls for a rule change— from other 

cases that have followed Oljato Chapter. Indeed, the State acknowledged in its 

response to the motions to dismiss that ARBTA I does “not appear to go so far as to 

say that [] a petition to the agency was never required or recommended.” North 

Carolina’s Resp. to Motions to Dismiss (hereinafter “MTD Resp.”) at 7. 

The State argues that the regulations promulgated in the 2010 Rule should 

be changed based on new information (i.e., a new judicial decision that reviewed 

regulations promulgated under different provisions of the CAA). This is exactly 

the type of “new grounds” argument that under Oljato Chapter should first be 

presented to EPA in an administrative petition so that EPA has the first opportunity 

to evaluate and respond to the petitioner’s claim. It is only through this 

administrative process that the record for a potential future petition for review is 

developed.7

 Oljato Chapter, 515 F.2d at 666-67. 

                                                            

7

 As discussed infra at 52-57, EPA reasonably denied North Carolina’s 

administrative petition for reconsideration or amended rulemaking. 

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B. The Court Lacks Subject Matter Jurisdiction Because North 

Carolina’s Petition Was Not Filed Within 60 Days of the Alleged 

After-Arising Grounds. 

Even if the NRDC decision qualified as after-arising grounds for North 

Carolina’s late challenge to the 2010 Rule, the Court lacks subject matter 

jurisdiction over the petition for review because North Carolina’s petition was not 

filed within 60 days of the NRDC decision. The CAA plainly states that a petition 

challenging a CAA rule based on after-arising grounds “shall be filed within sixty 

days after such grounds arise.” 42 U.S.C. § 7607(b). Because the State did not file 

a petition for review with this Court or an administrative petition in the 60 days 

following the issuance of the NRDC decision, the State failed to satisfy the 

unambiguous statutory requirement that a claim based on after-arising grounds be 

filed within 60 days of those grounds. Indeed, the case law that the State cites as 

the basis for its after-arising theory, see Opening Br. at 25-26, 28, plainly states 

that petitions brought outside the original 60-day window “must be filed within 60 

days of the new event, rather than any time after it.” ARTBA I, 588 F.3d at 1113; 

see also Honeywell Int’l, 705 F.3d at 473 (noting that the claim had been properly 

filed within 60 days of the alleged after-arising grounds). On this basis alone, the 

petition should be dismissed. 

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C. The State’s Theory That Other, Tangentially-Related EPA 

Rulemakings “Ripened” Its Claim Is Flawed. 

In an attempt to trigger a new 60-day window for filing a claim under 42 

U.S.C. § 7607(b)(1), the State attempts to bootstrap EPA action in two more recent 

rulemakings, which are at best tangentially-related to the State’s contention that 

EPA should reconsider or amend the 2010 PM2.5 Rule, into a “ripened” claim. See

Opening Br. at 28-30. Specifically, North Carolina asserts that the following 

“ripened” its claim: (1) EPA’s response to comments on a Utah SIP proposal on 

October 25, 2013; and (2) the removal of judicially-vacated CAA regulations from 

the Code of Federal Regulations on December 10, 2013. Neither of these two 

events provides a basis for jurisdiction over North Carolina’s petition. 

There can be little question that EPA’s October 25, 2013, response to 

comments on the Utah SIP was not EPA’s final decision on whether EPA would 

reconsider or amend the 2010 Rule in light of the NRDC decision. An agency 

action is final only if: (1) the action marks the consummation of the agency’s 

decision-making process, i.e., it is not tentative or interlocutory in nature; and 

(2) the action is one by which rights or obligations are determined or from which 

legal consequences will flow. Bennett v. Spear, 520 U.S. 154, 177-178 (1997); 

NRDC v. EPA, 559 F.3d 561, 564 (D.C. Cir. 2009). 

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 EPA’s response to comments on the Utah SIP meets neither of these 

conditions with respect to whether EPA would reconsider or amend the PM2.5

major source baseline date in light of the NRDC decision. First, it was not the 

“consummation” of the Agency’s decision-making process on whether it would 

initiate reconsideration or amended rulemaking proceedings with respect to the 

2010 Rule. North Carolina’s comment on the Utah SIP proposal merely contended 

that the NRDC decision required that EPA treat PM2.5 in the same manner as PM10

for the purposes of the PM2.5 major source baseline date, and questioned EPA’s 

proposed approval of the Utah SIP, which incorporated the 2010 PM2.5 Rule’s 

major source baseline date. See 78 Fed. Reg. 63,883, 63,884 (Oct. 25, 2013). 

North Carolina did not ask for EPA’s view on whether it would reconsider or 

amend the 2010 PM2.5 Rule in light of the NRDC decision. Appropriately, EPA’s 

response to that comment was limited to the question presented, explaining that the 

PM2.5 baseline date had been promulgated in 2010 and remained in effect, and that 

the NRDC decision did not address the issue of PM2.5 increments and associated 

baseline dates. See 78 Fed. Reg. at 63,885. EPA further explained that it was 

bound to apply the existing regulations to review of the Utah SIP and that it could 

not revise the federal regulations in the context of a rulemaking on a SIP 

submission. Id. EPA’s response to comment on the Utah SIP action does not 

constitute consummation of any decision-making process in regard to 

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reconsideration or amendment of the PM2.5 baseline date in EPA regulations, much 

less action on North Carolina’s administrative petition (which had not yet been 

filed). 

 Nor do any rights, obligations, or legal consequences flow from EPA’s 

response to comments on the Utah SIP to affect North Carolina and its preference 

for a 1975 major source baseline date for PM2.5. EPA’s Utah SIP action did not 

resolve how EPA would respond to the claims later presented in North Carolina’s 

administrative petition. It is well-established that a would-be petitioner cannot 

goad the agency into a reply and then sue on those grounds, as North Carolina has 

attempted here. See Am. Iron & Steel Inst. v. EPA, 886 F.2d 390, 398 (D.C. Cir 

1989). The pathway for a petitioner to request an amended rulemaking or 

reconsideration is through an administrative petition to the agency, not through 

some less formal process such as submission of a comment on an unrelated SIP 

revision. Cf. Oljato Chapter, 515 F.2d at 667 (concluding that a letter to the 

Administrator requesting revision of a standard of performance and EPA’s 

response letter denying the request were insufficient to create the necessary record 

for judicial review). EPA’s response to comments on the Utah SIP simply 

explained the existing regulation’s significance and neither actually nor 

constructively reopened the regulation. See ARBTA I, 588 F.3d at 1115. 

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The December 9, 2013, rulemaking notice that removed unrelated, vacated 

portions of the 2010 Rule from the Code of Federal Regulations even more clearly 

lacks any final decision on whether the PM2.5 major source baseline date should be 

amended in light of the NRDC decision. See 78 Fed. Reg. 73,698 (Dec. 9, 2013). 

This simple ministerial act, executed through a good cause final rule, did not in any 

way address the NRDC decision or amendment of the EPA regulations addressing 

the PM2.5 increment and major source baseline date. The December 9, 2013, notice 

merely implemented a decision by this Court in a different, timely-filed petition 

that did not address the issue the State seeks to raise here. See Sierra Club, 705 

F.3d 458. The December 9 notice was not a consummation of the agency’s 

decision-making process on the issue of whether to initiate reconsideration or 

amended rulemaking proceedings with respect to the 2010 Rule, and there are no 

legal consequences related to the PM2.5 increments and major source baseline date 

which flow from the removal of the unrelated, vacated portions of the 2010 PM2.5 

Rule. 

This Court has repeatedly rejected attempts to expand the narrow “afterarising grounds” provision in the CAA and similar time limits. See, e.g., ARTBA 

II, 705 F.3d at 458 (holding that “mere application of a regulation in a SIP 

approval” did not constitute after-arising grounds); ARTBA I, 588 F.3d at 1114 

(holding that the rejection of administrative petition is not after-arising grounds 

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and that a subsequent rulemaking did not reopen the challenged regulation); Nat’l 

Mining Ass’n, 70 F.3d at 1350 (concluding that Congress “specifically address[ed] 

the consequences of failure to bring a challenge within the statutory period” in the 

judicial review provision in SMCRA, which parallels 42 U.S.C. § 7607(b)(1)). 

The rule that North Carolina advances would essentially allow a party to re-initiate 

judicial review of concluded rulemakings regardless of whether EPA substantively 

reopened the issue that the party seeks to litigate. The implications of this rule 

would be profound and would essentially eviscerate the time limit on judicial 

review that Congress included in 42 U.S.C. § 7607(b). This time limit “serves the 

important purpose of imparting finality into the administrative process, thereby 

conserving administrative resources and protecting the reliance interests of 

regulatees who conform their conduct to the regulations.” NRDC v. Nuclear 

Regulatory Comm’n, 666 F.2d 595, 602 (D.C. Cir. 1981). 

Moreover, North Carolina’s “ripening” arguments are contrary to the 

Supreme Court’s and this Court’s case law addressing the “ripening” of a claim 

that asserts “new grounds” for challenging an existing regulation. In discussing the 

ripeness doctrine, the Supreme Court has emphasized the courts’ interest in not 

“entangling themselves in abstract disagreements over administrative policies,” 

and EPA’s interest in being protected from “judicial interference until an 

administrative decision has been formalized and its effects felt in a concrete way 

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by the challenging parties.” Ohio Forestry Ass’n, Inc. v. Sierra Club, 523 U.S. 

726, 732-33 (1998) (citing Abbott Labs., 387 U.S. at 148-49). This Circuit applied 

these principles in Oljato Chapter when it concluded that a claim based on new 

information must first be presented to EPA for the development of “an 

administrative record, including the Administrator’s views in a nonlitigation 

context ....” 515 F.2d at 665-66. The October 25, and December 9, 2013, Federal 

Register notices, which did not address whether EPA would reconsider or amend 

the 2010 Rule, did nothing to “ripen” the substantive claim that is, in fact, available 

to the State—a challenge to EPA’s denial of North Carolina’s administrative 

petition for reconsideration and amended rulemaking pursuant to the Oljato 

Chapter doctrine, discussed infra at 52-57. 

D. The Jurisdictional Flaws in North Carolina’s Challenge to the 2010 

Rule Are Further Compounded by its Failure to File Its Petition 

Within 60 days of One of the Alleged “Ripening” Events. 

Even if EPA’s October 25, 2013, Utah SIP response to comments could be a 

basis for an “after-arising grounds” claim, the petition for review was untimely 

with respect to that claim. North Carolina’s petition was received and filed by the 

court on December 26, 2014, more than 60 days after October 25, 2013. See

Petition for Review at 1 (filed Dec. 26, 2013). In North Carolina’s Motion for 

Suspension of Rules, the State requested that the Court use Federal Rule of 

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Appellate Procedure 2 to suspend its rules and deem the State’s petition filed on 

December 24, 2014, the day it was expected to arrive at the court if not for holiday 

and weather-related delivery disruptions. See ECF No. 1473481; see also Opening 

Br. at 23-25. The State’s motion should be denied because it seeks to expand this 

Court’s subject matter jurisdiction beyond the jurisdictional filing window 

established in 42 U.S.C. § 7607(b)(1). 

The CAA states that “[a]ny petition for review under this subsection shall be 

filed within sixty days from the date notice of such promulgation . . . appears in the 

Federal Register . . . .” 42 U.S.C. § 7607(b)(1) (emphasis added). This Court has 

repeatedly held that this filing window is jurisdictional in nature, and such 

jurisdictional filing windows may not be enlarged or altered by the courts. See 

supra at 25. 

The Tenth Circuit Court of Appeals recently provided a thorough analysis of 

the CAA’s sixty-day limit for petitions to review, agreeing with this Circuit that 

the time bar in 42 U.S.C. § 7607(b)(1) is jurisdictional. See Utah ex rel. Utah 

Dep’t of Envtl. Quality v. EPA, 750 F.3d 1182 (10th Cir. 2014) (“Utah I”); Utah v. 

EPA, 765 F.3d 1257 (10th Cir. 2014) (“Utah II”). 8 In Utah I, the Tenth Circuit 

                                                            

8

 The Seventh Circuit recently disagreed with the D.C. and Tenth Circuits, 

stating that the court could not find a “clear indication” from Congress that the 

filing deadline was jurisdictional. Clean Water Action Council of NE Wisc. v. 

EPA, 765 F.3d 749 (7th Cir. 2014). The Seventh Circuit’s analysis, however, did 

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43

dismissed the petitioners’ claims for review for lack of subject matter jurisdiction 

because the petitions were filed after the 60-day deadline required by 42 U.S.C. § 

7607(b)(1), even though the petitioners relied on an incorrect date given to them by 

the EPA. Id. at 1186. Responding to the petitioners’ arguments that dismissing the 

case would be inequitable, the Tenth Circuit stated, “we cannot expand our 

jurisdiction to avoid hardships even when they are inequitable.” Id. (citing Bowles 

v. Russell, 551 U.S. 205, 210-14 (2007)). 

The Tenth Circuit subsequently reaffirmed Utah I after the petitioners 

moved for rehearing, explaining in detail how Congress clearly indicated the 

jurisdictional nature of the 42 U.S.C. § 7607(b)(1) deadline. Utah II, 765 F.3d at 

1258. In Utah II, the court examined the text, context, and historical treatment of 

42 U.S.C. § 7607(b)(1) and determined that Congress explicitly recognized that the 

60–day deadline is jurisdictional. Id. at 1259-62. Immediately on point to the 

circumstances in this case, the court in Utah II concluded that the Congress 

intended to “dispel any notion that the Clean Air Act’s deadline could be avoided 

if the claimant had an ‘excuse.’” Id. at 1259. 

Indeed, CAA legislative history demonstrates that Congress intended § 

7607(b)(1) to be jurisdictional and that the window for review should not be 

                                                                                                                                                                                               

not address the thorough reasoning set forth in Utah II, which was issued after the 

Seventh Circuit’s Clean Water Action Council decision.

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expanded. In its report accompanying the 1970 CAA Amendments, the Senate 

stated that pre-enforcement review of rulemakings would be granted “to those 

being regulated and to those who seek to protect the public interest in the proper 

administration of a regulatory system enacted for their benefit[,]” but that such 

review would be limited to “controlled time periods.” S. Rep. No. 91-1196, at 41 

(1970), reprinted in 1972 U.S.C.C.A.N. 3668, 3750. Congress reaffirmed that the 

§ 7607(b)(1)’s time limits are “strictly limit[ing]” and “jurisdiction[al]” when it 

amended the Act in 1977. See H.R. Rep. No. 294, 95th Cong., 1st Sess. 322 

(1977), reprinted in 1977 U.S.C.C.A.N. 1077, 1401. 

The jurisdictional limitations contained in 42 U.S.C. § 7607(b)(1) trump the 

procedural rules in the Federal Rules of Appellate Procedures that North Carolina 

seeks to invoke in an attempt to expand this Court’s subject matter jurisdiction by 

expanding the meaning of the term “filed” as used in § 7607(b)(1). In Houston v. 

Lack, 487 U.S. 266, 270-74 (1988), the Supreme Court explained that it is 

commonly understood that “filing” occurs when a document is received by the 

court. In Houston, the Court held that unique circumstances apply to pro se

prisoners such that a narrow exception should be applied to a pro se prisoner’s 

notice of appeal. Because the “jailer is in effect the clerk of the District Court,” 

the notice of appeal was “filed” when it was delivered to prison authorities for 

forwarding to the district court. Id. at 270. 

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Houston carefully did not extend the time for “filing” to allow for delivery 

delays, which is essentially the relief that North Carolina requests in its motion. In 

carving out a narrow exception for pro se prisoners, the Supreme Court in Houston

carefully distinguished between pro se prisoners and other litigants. “Other 

litigants may choose to entrust their appeals to the vagaries of the mail and the 

clerk’s process for stamping incoming papers, but only the pro se prisoner is 

forced to do so by his situation.” Id. at 271. Any other litigant, the Court noted, 

can track the progress of the mail delivery, if she opts to take the risk of mailing 

her filing, and should the mail not be delivered, she has the option of handdelivering the filing to the clerk of court. 

The CAA’s scheme for review of final agency action is adversarial; petitions 

for review are commonly initiated by sophisticated petitioners and litigated by 

trained lawyers, such as North Carolina and its counsel, which have frequently 

appeared before this Court in CAA matters. As noted supra at 24-25, 39, this 

Court has strictly construed deadlines in environmental statutes, including the 

CAA, to protect the public health and welfare and bring finality to agency 

decisions. The implications of the rule urged by North Carolina are substantial, for 

its logic knows no bounds; such a rule would permit a petitioner to file a petition at 

any time and ask the court to deem the petition filed within the 60 days required by 

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the CAA. For the reasons set forth above, the petition for review in case number 

13-1312 should be dismissed for lack of subject matter jurisdiction. 

II. IF THE COURT CONSIDERS THE MERITS OF NORTH 

CAROLINA’S CHALLENGE TO THE 2010 RULE, THE COURT 

SHOULD DEFER TO EPA’S REASONABLE INTERPRETATION OF 

42 U.S.C. § 7476. 

Because of the numerous reasons set forth supra at 24-45, the Court need 

not address North Carolina’s arguments that challenge the 2010 Rule itself. 

However, if the Court reaches North Carolina’s merits arguments, the petition 

should be denied. The CAA is ambiguous regarding which of the provisions of 42 

U.S.C. § 7476 should apply to the promulgation of the PM2.5 increments (and does 

not even address baseline dates), and EPA reasonably interpreted §§ 7476(a) and 

(f) in the 2010 Rule. 

North Carolina seemingly advances a Chevron step-one argument, asserting 

that the PM2.5 increments and baseline dates must be promulgated pursuant to 

§7476(f), rather than § 7476(a). See Opening Br. at 20-22. According to North 

Carolina, the crux of its argument is that PM2.5 is not a “new” pollutant, but rather 

is a subset of PM10. Id. at 20-22; 28-30. 

North Carolina’s Chevron step-one-styled argument must fail because 

Congress did not speak directly to the precise question that is presented here— that 

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is, Congress did not clearly state that § 7476(f), rather than § 7476(a), provides 

EPA with the sole authority to promulgate PM2.5 increments and baseline dates. 

In relevant part, § 7476(a) requires EPA to develop regulations to prevent 

significant deterioration, which may include increments, for “pollutants for which 

national ambient air quality standards are promulgated after August 7, 1977, . . . .” 

Nothing in this section precludes its application to a pollutant that may also be 

covered by § 7476(f), as North Carolina suggests. Instead, the second sentence of 

the section is reasonably interpreted to provide EPA with a general grant of 

authority to promulgate regulations for pollutants not covered in § 7473 or the first 

sentence of § 7476(a) for which new NAAQS were established after 1977. 

Nor is there any language in § 7476(f) which mandates that that section be 

used to promulgate PM2.5 increments and the associated baseline dates. Section 

7476(f) states specifically that “[t]he Administrator is authorized to substitute, for 

the maximum allowable increases in particulate matter specified in section 7473(b) 

of this title and section 7475(d)(2)(C)(iv) of this title, maximum allowable 

increases in PM10.” The circumstances that are specifically addressed in § 7476(f) 

are the substitution of the statutorily-specified particulate matter increments with 

PM10 increments—notably not the circumstances presented here since EPA 

retained the PM10 increments and promulgated new PM2.5 increments. In addition, 

§ 7476(f) is not mandatory in nature, but rather simply provides EPA with the 

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authority to undertake the described substitution. And most significantly to North 

Carolina’s argument that § 7476(f) should dictate how the PM2.5 baseline dates are 

set, § 7476(f) contains no reference to any baseline dates. 

In sum, Congress provided no clear indication that EPA must use § 7476(f) 

to promulgate increments and the baseline dates for PM2.5. Thus, under the 

Chevron doctrine, Congress implicitly delegated to EPA the authority to fill this 

gap, and the Court must defer to EPA’s interpretation of these ambiguous terms, so 

long as that interpretation is reasonable. See Chevron, 467 U.S. at 862, 866. As 

discussed below, EPA’s interpretation of §§ 7476(a) and (f) was eminently 

reasonable in the context presented here. 

In the proposed rule, EPA explained that it interpreted § 7476 as giving EPA 

discretion to use either § 7476(a) or § 7476(f) to establish increments for PM2.5

under specific circumstances. See, e.g., 72 Fed. Reg. at 54,119-21, JAXX. EPA 

proposed that it could promulgate the annual PM2.5 increment pursuant to § 7476(f) 

if EPA were to substitute that increment for the annual PM10 increment. Id. 

However, in the final rule EPA opted to retain the annual PM10 increment. 75 Fed. 

Reg. at 64,887-88, JAXX. Responding to comments submitted on the proposed 

rule, EPA observed that § 7476(f) specifically addresses EPA’s authority to 

“substitute” PM10 increments for the statutorily-specified particulate matter 

increments. Since EPA decided not to substitute the annual PM2.5 increments for 

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the pre-existing annual PM10 increments, instead creating a separate, additional 

annual PM2.5 increment, EPA concluded that the most reasonable approach was to 

use § 7476(a), which provides general authority for the promulgation of PSD 

regulations for pollutants for which a NAAQS was established after 1977. Id. 

Because EPA promulgated both the 24-hour and annual PM2.5 increments 

pursuant to § 7476(a), EPA also finalized its proposed approach to set new 

baseline dates for the new increments. EPA noted that several commenters, even 

those that preferred the application of § 7476(f) to development of the increments, 

had identified technical difficulties that would occur if the PM2.5 emissions 

inventory for increment analyses had to be created for an earlier period of time. 

2010 Resp. to Comment at 48-50, JAXX. EPA concluded that given the lack of 

information on historic PM2.5 emissions, it would not be appropriate to require 

states and sources to retroactively account for PM2.5 increment consumption by 

setting the major source baseline date at an earlier date than the 2010 date selected. 

75 Fed. Reg. at 64,888, JAXX. In light of the statutory language and the policy 

concerns identified during the comment period, it was reasonable for EPA to 

promulgate a major source baseline date of October 20, 2010, instead of January 6, 

1975. See EPA v. EME Homer City Generation, L.P., 134 S. Ct. 1584, 1603 

(2014) (noting that “[b]ecause ‘a full understanding of the force of the statutory 

policy . . . depend[s] upon more than ordinary knowledge’ of the situation, the 

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administering agency’s construction is to be accorded ‘controlling weight unless . . 

. arbitrary, capricious, or manifestly contrary to the statute.’” (quoting Chevron, 

467 U.S. at 844, and quoting, in turn, United States v. Shimer, 367 U.S. 374, 382 

(1961)). 

In its brief, North Carolina misrepresents EPA’s reasoning for promulgating 

the PM2.5 increments pursuant to § 7476(a). See Opening Br. at 10-11, 18, 20-21, 

28-29. Contrary to North Carolina’s assertions, EPA did not propose the § 7476(a) 

approach for PM2.5 simply because § 7476(f) uses the term “PM10.” Rather, EPA 

recognized that § 7476(f) could be read to apply to PM2.5, but proposed to interpret 

§ 7476(f) to apply only in the case of a “substitution” of the statutory particulate 

matter increments and not where an additional increment was being developed. 

See 72 Fed. Reg. at 54,120-21, JAXX. 

As discussed in more detail supra at 26-29, North Carolina also 

misrepresents the scope of the NRDC case and its impact on EPA’s interpretation 

of § 7476. Despite North Carolina’s insistence that the NRDC decision must be 

applied to the 2010 Rule, nothing in the NRDC decision addressed the 

interpretation of §§ 7476(a) and (f). The NRDC court simply held that PM10

encompasses PM2.5. The rule change that North Carolina seeks—a change in the 

baseline dates—does not follow from that holding. In fact, EPA’s interpretation of 

PM10 and PM2.5 in the 2010 rulemaking is consistent with the NRDC decision. 

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This decision confirms the possibility, as discussed in the proposed rule, that § 

7476(f) could apply to PM2.5. It does not compel the conclusion that § 7476(f) is 

the exclusive authority for establishing PM2.5 increments or that § 7476(f) 

requires that EPA retain the 1975 and 1977 baseline dates in this situation. 

Finally, for the first time in its Opening Brief (at 22), North Carolina poses a 

new argument that attempts to link § 7476(f) and § 7479(4), arguing that the 

baseline date articulated in 42 U.S.C. § 7479(4) should be applied to the new 

increments developed for PM2.5. The NRDC decision (the alleged basis for North 

Carolina’s belated challenge to the 2010 Rule) contains no reference to § 7479(4), 

nor is there a clear link between § 7476(f) and § 7479(4).9

 Moreover, the possible 

application of § 7479(4) to the 2010 rulemaking procedures was never raised in the 

initial 2010 Rule administrative proceedings (or in North Carolina’s 2013 

administrative petition for reconsideration and amended rulemaking). It is wellestablished that “the focal point for judicial review should be the administrative 

record already in existence, not some new record made initially in the reviewing 

court.” Camp v. Pitts, 411 U.S. 138, 142 (1973). The court should reject North 

                                                            

9

 The NRDC decision, the alleged basis for North Carolina’s “after-arising 

grounds” claim, interpreted the term “PM10.” See 706 F.3d at 434-37. Title 42 

U.S.C. § 7479(4) does not contain the term “PM10,” so it is clear that the NRDC

decision is not “after-arising grounds” for a belated challenge to the 2010 Rule that 

argues that EPA misinterpreted § 7479(4). 

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Carolina’s attempt to raise a new legal argument related to § 7479(4) for the first 

time in this untimely challenge to the 2010 Rule.10 

III. EPA’S DENIAL OF NORTH CAROLINA’S ADMINISTRATIVE 

PETITION WAS REASONABLE. 

The CAA provides a mechanism whereby a party can petition the agency for 

reconsideration, 

[i]f the person raising an objection can demonstrate to the 

Administrator that it was impracticable to raise such objection within 

such time or 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. 

42 U.S.C. § 7607(d)(7)(B). The Administrative Procedure Act provides an 

interested person with the right to petition an agency “for issuance, amendment, or 

repeal of a rule.” 5 U.S.C. § 553(e). 

In a letter dated December 23, 2013, North Carolina requested that EPA 

reconsider the major source baseline date established in the 2010 Rule, arguing that 

                                                            

10 North Carolina also asserts for the first time in its Opening Brief (at 20-22) 

that the trigger date that determines the minor source baseline date for PM2.5 should 

have been set in 1977. This new legal argument also was not raised in North 

Carolina’s administrative petition, and thus, also is not properly presented for 

judicial review in either of the consolidated petition for review cases.

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EPA erred when it used its authority under 42 U.S.C. § 7476(a) to promulgate the 

PM2.5 major source baseline date. That letter also requested that EPA initiate a 

rulemaking proceeding to amend the regulation that established the 2010 major 

source baseline date, pursuant to 5 U.S.C. § 553(e). 

On August 24, 2014, EPA responded to North Carolina’s administrative 

petition informing North Carolina that it would not initiate a reconsideration or a 

new rulemaking proceeding. In its response, EPA explained first why the 

administrative petition did not satisfy the required circumstances for a 42 U.S.C. 

§ 7607(d)(7)(B) reconsideration. Then, EPA addressed the merits of North 

Carolina’s request for amended rulemaking under the APA. EPA provided both 

legal and policy reasons for why it would not initiate a process for amending the 

PM2.5 increments and the major source baseline date. North Carolina challenges 

EPA’s denial of the administrative petition, focusing solely on EPA’s conclusion 

that North Carolina had not demonstrated that the circumstances met the 

§ 7607(d)(7)(B) reconsideration criteria. 

A. EPA’s Denial of the Petition for Reconsideration Was Reasonable 

and Consistent with 42 U.S.C. § 7607(d)(7)(B). 

The CAA in § 7607(d)(7)(B) provides a narrow opportunity to request 

reconsideration of a rule that EPA has promulgated. Congress endorsed this 

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Court’s decision in Oljato Chapter, 515 F.2d 654, when it added this procedural 

mechanism in the CAA 1977 amendments: 

Section [7607(d)(7)(B)] would specify the circumstances in which a 

reviewing court may consider data and arguments that were not 

presented to the agency during the rulemaking. Even in such cases, 

however, the Agency must first be given an opportunity to pass on the 

significance of the materials and determine whether supplementary 

proceeding (sic) are called for or not. Thus, the committee bill 

confirms the court’s decision in [Oljato Chapter]. 

H.R. Rep. No. 95-294, 323 (1977), reprinted in 1977 U.S.C.C.A.N. at 1402. 

As the text of § 7607(d)(7)(B) makes clear, a person seeking reconsideration 

must demonstrate that the request is based on data and arguments that could not 

have been presented to EPA during the rulemaking. Only when a petitioner 

demonstrates that “it was impracticable” to raise the objection during public 

comment or the “grounds for such objection arose after the period for public 

comment (but within the time specified for judicial review)” is EPA required to 

initiate a reconsideration proceeding. Id. Section 7607(d)(7)(B) does not provide 

a mechanism to subvert the fundamental administrative law principle that a party 

must present all available data and statutory interpretation arguments to EPA in 

comments in the first instance if the data or arguments exist at that time. See, e.g., 

Cutler v. Hayes, 818 F.2d 879, 890 (D.C. Cir. 1987) (describing general exhaustion 

requirements). 

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In denying the petition for reconsideration, EPA reasonably concluded that 

North Carolina had not demonstrated either that (1) “it was impracticable to raise 

[its] objection” during the rulemaking; or (2) “the grounds for such objection arose 

after the period for public comment (but within the time specified for judicial 

review).” 42 U.S.C. § 7607(d)(7)(B). EPA thoroughly explained why the 

objection presented in North Carolina’s petition does not fall within the narrow 

circumstances for reconsideration under § 7607(d)(7)(B), i.e., North Carolina could 

have presented its objection to the use of 42 U.S.C. § 7476(a) for the promulgation 

of the PM2.5 increments and baseline dates at the time of the 2010 rulemaking. 

EPA Denial, Enclosure at 4-7, JAXX. 

North Carolina asserts that EPA erred in denying the petition for 

reconsideration because the NRDC decision was issued in 2013, and it is basing its 

arguments on the NRDC decision. See Opening Br. at 31-32. North Carolina, 

however, fails to provide any meaningful argument showing that its objection 

could not have been made before the NRDC decision. 

The flaw in North Carolina’s argument is plain: the NRDC decision did not 

in fact give rise to the legal argument that North Carolina now attempts to raise. 

As discussed supra at 26-31, North Carolina’s argument that PM2.5 is a subset of 

PM10 could have been, and indeed was, raised during the public comment period in 

the 2010 Rule. Thus, EPA reasonably concluded that the petition did not satisfy 

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either of the two alternative timing requirements set forth in 42 U.S.C. 

§ 7607(d)(7)(B). In light of the record, which clearly shows discussion of the legal 

issue that North Carolina belatedly attempts to revive in its administrative petition, 

see 2010 Resp. to Comments at 9-11, JAXX, the Court should conclude that EPA 

reasonably denied the request for reconsideration of the 2010 Rule. 

B. EPA’s Denial of the Petition for Amended Rulemaking Was 

Reasonable. 

EPA also denied the State’s request that EPA initiate a new rulemaking 

proceeding to amend the major source baseline date in the 2010 Rule, pursuant to 5 

U.S.C. § 553(e). EPA Denial, Enclosure at 7, JAXX. Judicial review of a refusal 

to promulgate rules “is extremely limited and highly deferential.” Massachusetts v. 

EPA, 549 U.S. at 527–28 (internal quotations omitted); see also Nat’l Ass’n of 

Reversionary Property Owners v. ICC, No. 94–1581, 1995 WL 687741, at *3 

(D.C. Cir. Nov. 3, 1995) (“An agency decision not to initiate rulemaking is 

accorded extraordinary deference and is only reversed in a rare and compelling 

case.”) (internal quotations and citations omitted).11 

                                                            

11 North Carolina suggests that EPA’s response to its administrative petition 

allows the State to bring a direct challenge against the 2010 Rule. See Opening Br. 

at 30. That is incorrect. It is well-established that EPA action on an administrative 

petition does not reopen the original rulemaking that a petitioner would like to 

have amended. See, e.g., ARTBA I, 588 F.3d at 1115; Am. Iron & Steel Inst., 886 

F.2d at 398.

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EPA responded to North Carolina’s 42 U.S.C. § 7476(f) legal argument, 

explaining both why it disagreed with North Carolina’s interpretation of the CAA 

and why a change in the major source baseline date at this time would not be 

appropriate as a policy matter. See EPA Denial, Enclosure at 7-8, JAXX. In 

explaining its decision, EPA reviewed its response to comments in the 2010 Rule 

and observed that North Carolina’s petition did not “raise any new issues that 

justify or compel the EPA to reconsider the regulations finalized in that rule.” Id. 

at 7, JAXX. EPA noted that now multiple States have submitted state 

implementation plans that incorporate the 2010 major source baseline date, further 

exacerbating logistical concerns related to a 1975 major source baseline date. EPA 

also described in detail how North Carolina could have raised its concerns during 

the 2010 rulemaking. See id. at 7-8, JAXX. In addition, EPA observed that the 

goal of preventing significant deterioration of air quality is furthered through the 

2010 major source baseline date more than it would be through a 1975 date. See 

id. at 8, JAXX. 

North Carolina provides no argument challenging EPA’s denial of the 

petition for amended rulemaking. See Opening Br. at 31-32. In light of EPA’s 

thorough response to the request for amended rulemaking and North Carolina’s 

failure to identify any alleged error in EPA’s denial, there is no basis to conclude 

that EPA’s denial was unreasonable. 

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CONCLUSION 

For the foregoing reasons, the Court should dismiss the petitions for review. 

Respectfully submitted, 

 SAM HIRSCH 

 Acting Assistant Attorney General 

Environment & Natural Resources Division 

DATED: December 16, 2014 /s/ Amy J. Dona 

AMY J. DONA 

United States Department of Justice 

Environmental Defense Section 

P.O. Box 7611 

Washington, D.C. 20044 

Tel: (202) 514-0223; Fax: (202) 514- 8865 

amy.dona@usdoj.gov 

Of Counsel: 

STEPHANIE HOGAN 

U.S. Environmental Protection Agency 

Office of General Counsel 

1200 Pennsylvania Avenue NW 

Washington, D.C. 

Tel: (202) 564-3244 

Hogan.Stephanie@epa.gov 

KERI POWELL 

U.S. Environmental Protection Agency 

Office of Region Counsel, Region IV 

61 Forsyth Street SW 

Atlanta, GA 

Tel: (402) 562-9567 

Powell.Keri@epa.gov 

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CERTIFICATE OF COMPLIANCE WITH WORD LIMITS 

Pursuant to Fed. R. App. P. 37(a)(7)(C), and exclusive of the components of 

the brief excluded from the word limit pursuant to Fed. R. App. P. 32(a)(7)(B)(iii) 

and Circuit Rule 32(a)(1), I certify that the foregoing Brief for Respondent 

contains 13,634 words. 

 /s/ Amy J. Dona 

 AMY J. DONA 

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CERTIFICATE OF SERVICE 

I hereby certify that all counsel of record who have consented to electronic 

service are being served with a copy of the foregoing Brief for Respondents via the 

Court’s CM/ECF system on this 16th day of December, 2014. 

 

 /s/ Amy J. Dona 

 AMY J. DONA 

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