O RAL A RGUMENT N OT Y ET S CHEDULED IN THE UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT Case Nos. 13-1312, 14-1186

N ORTH C AROLINA , P ETITIONER , v. U NITED S TATES E NVIRONMENTAL P ROTECTION A GENCY , R ESPONDENT , S IERRA CLUB , ET AL ., R ESPONDENT -I NTERVENORS

.

O N P ETITIONS F OR R EVIEW O F F INAL A GENCY A CTION O F T HE U NITED S TATES E NVIRONMENTAL P ROTECTION A GENCY

B RIEF F OR R ESPONDENT

S AM H IRSCH A CTING A SSISTANT A TTORNEY G ENERAL E NVIRONMENT AND N ATURAL R ESOURCES D IVISION A MY J. D ONA E NVIRONMENTAL D EFENSE S ECTION U.S. D EPARTMENT OF J USTICE P.O. B OX 7611 W ASHINGTON , D.C. 20044 T EL : (202) 514-0223; F AX : (202) 514-8865
D ECEMBER 16, 2014 USCA Case #13-1312 Document #1527612 Filed: 12/16/2014 Page 1 of 74i RESPONDENT’S CERTIFICAT E 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 seek s review of EPA’s final rule entitled “Prevention of Significant Deterioration (PSD) fo r Particulate Matter Less Than 2.5 Micrometers (PM 2.5 )--Increments, Significant Impact Levels (SILs) and Significant Monitoring Concentration (SMC),” publishe d in the Federal Re gister 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 Reconsid eration and Amended Rulemaking, published in the Federal Register at 79 Fed. Reg. 55,412 (Sept . 16, 2014), entitled “Prevention of Significant Deterioration (PSD) for Par ticulate Matter Less Than 2.5 Micrometers (PM 2.5 )--Increments, Significant Im pact Levels (SILs) and Significant Monitoring Concentration (SMC)—Notice of Action Denying Petition for Reconsideration and Amended Rulemaking,” is under review. USCA Case #13-1312 Document #1527612 Filed: 12/16/2014 Page 2 of 74ii 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) (staye d 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 USCA Case #13-1312 Document #1527612 Filed: 12/16/2014 Page 3 of 74iii TABLE OF CONTENTS
STATEMENT OF JU RISDICTI ON.......................................................................... 1 STATUTES AND RE GULATIONS ......................................................................... 2 ISSUES PRES ENTED ............................................................................................... 2 STATEMENT OF THE CASE .................................................................................. 4 I. NATURE OF THE CASE ............................................................................... 4 II. STATUTORY AND REGUL ATORY BACKGR OUND .............................. 5 A. Clean Air Ac t Overvi ew ........................................................................ 5 B. Particulate Matter NAAQS and Implementing Regulations ................. 6 C. The Prevention of Signifi cant Deteriorati on Program .......................... 8 D. The 2010 Rule That North Carolin a Attempts to Challenge Here ...... 11 1. The Proposed Rule .................................................................... 11 2. The Fina l Rule ........................................................................... 14 3. Judicial Challenge to the 2010 Rule ......................................... 16 E. North Carolina’s Administrative Petition for Reconsideration and Amended Rulema king ......................................................................... 16 1. Clean Air Act and Ad ministrative Procedure Act Administrative Petiti on Provisions ........................................... 16 2. North Carolina’s Ad ministrative Petition ................................. 17 3. EPA’s Denial of the Administrative Petition ............................ 18 F. North Carolina’s 2013 State Impl ementation Plan Submission ......... 20 USCA Case #13-1312 Document #1527612 Filed: 12/16/2014 Page 4 of 74iv STANDARD OF REVIEW ..................................................................................... 20 SUMMARY OF AR GUMENT ............................................................................... 22 ARGUMENT ........................................................................................................... 24 I. THIS COURT LACKS JURISDIC TION OVER NORTH CAROLINA’S CHALLENGE TO TH E 2010 RULE ............................................................ 24 A. The Court Lacks Subject Ma tter Jurisdiction Because North Carolina’s Objection to EPA’s Inte rpretation 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 Ma tter Jurisdiction Because North Carolina’s Petition Was Not Filed W ithin 60 Days of the Alleged After-Arising Gr ounds ........................................................................ 35 C. The State’s Theory That Ot her, Tangentially-Related EPA Rulemakings “Ripened” Its Claim Is Flawed ..................................... 36 D. The Jurisdictional Flaws in No rth Carolina’s Challenge to the 2010 Rule are Further Compounded By its Failure to File its Petition Within 60 days of One of the A lleged “Ripening” Events ................. 41 II. IF THE COURT CONSIDERS THE MERITS OF NORTH CAROLINA’S CHALLENGE TO THE 2010 RULE, TH E COURT SHOULD DEFER TO EPA’S REASONABLE INTERPRETATIO N OF 42 U.S.C. § 7476 ......... 46 III. EPA'S DENIAL OF NORTH CAROLINA’S ADMINISTRATIVE PETITION WAS RE ASONABLE ................................................................ 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 USCA Case #13-1312 Document #1527612 Filed: 12/16/2014 Page 5 of 74v CONCLUSI ON ........................................................................................................ 58 USCA Case #13-1312 Document #1527612 Filed: 12/16/2014 Page 6 of 74vi TABLE OF AUTHORITIES

Abbott Labs. v. Gardner , 387 U.S. 136 (19 67) .............................................................................................. 41 Am. Iron & Steel Inst. v. EPA , 886 F.2d 390 (D.C. Ci r 1989) ........................................................................ 38, 56 * Am. Road & Transp. Builde rs 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. Ci r. 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. Ci r. 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 (19 86) .............................................................................................. 24 Bennett v. Spear , 520 U.S. 154 (19 97) .............................................................................................. 36 Bowles v. Russell , 551 U.S. 205 (20 07) .............................................................................................. 43

*Authorities chiefly relied upon ar e marked with an asterisk. USCA Case #13-1312 Document #1527612 Filed: 12/16/2014 Page 7 of 74vii Bowman Transp., Inc. v. Ark ansas-Best Freight Sys., Inc. , 419 U.S. 281 (19 74) .............................................................................................. 21 Camp v. Pitts , 411 U.S. 138 (19 73) .............................................................................................. 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. Ci r. 1981) ..................................................................... 26, 33 Honeywell Int'l, Inc. v. EPA, 705 F.3d 470 (D.C. Ci r. 2013) ....................................................................... 31, 35 Houston v. Lack , 487 U.S. 266 (1988) ....................................................................................... 44, 45 Kokkonen v. Guardian Life Ins. Co. , 511 U.S. 375 (19 94) .............................................................................................. 21 USCA Case #13-1312 Document #1527612 Filed: 12/16/2014 Page 8 of 74viii 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. St ate Farm Mut. Auto. Ins. Co. , 463 U.S. 29 (198 3) ................................................................................................ 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 (19 98) .............................................................................................. 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 USCA Case #13-1312 Document #1527612 Filed: 12/16/2014 Page 9 of 74ix 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. Ci r. 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 (19 96) .............................................................................................. 22 United States v. Shimer , 367 U.S. 374 (19 61) .............................................................................................. 50 Utah ex rel. Utah Dep't of Env tl. Quality ("Utah I") v. EPA ,

750 F.3d 1182 (10th Ci r. 2014) ..................................................................... 42, 43 Utah ("Utah II") v. EPA ,

765 F.3d 1257 (10th Ci r. 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. §§ 740 1-7671q .......................................................................................... 5 42 U.S.C. § 7407(d) ................................................................................................... 5 USCA Case #13-1312 Document #1527612 Filed: 12/16/2014 Page 10 of 74x 42 U.S.C. §§ 740 8-09 ................................................................................................ 5 42 U.S.C. § 7410 (a)(1) ............................................................................................... 5 42 U.S.C. § 7410(a )(2)(C) ......................................................................................... 6 42 U.S.C. §§ 747 0-92 ................................................................................................ 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. §§ 750 1-09a ............................................................................................... 6 42 U.S.C. §§ 750 1-15 ................................................................................................ 6 42 U.S.C. §§ 751 3-13b .............................................................................................. 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 USCA Case #13-1312 Document #1527612 Filed: 12/16/2014 Page 11 of 74xi 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 (A pr. 30, 197 1) ............................................................................ 6 52 Fed. Reg. 24,634 (J uly 1, 19 87) ............................................................................ 7 58 Fed. Reg. 31,622 (J une 3, 1993) ......................................................................... 10 62 Fed. Reg. 38,652 (J uly 18, 1 997) ......................................................................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 (M ay 16, 2 008) ......................................................................... 7 75 Fed. Reg. 64,864 (Oct. 20, 2010) ............................... 1, 11, 14, 15, 29, 30, 48, 49 78 Fed. Reg. 3086 (J an. 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), repr inted in 1972 U.S.C.C .A.N. 3668 ....................... 44 USCA Case #13-1312 Document #1527612 Filed: 12/16/2014 Page 12 of 74xii H.R. Rep. No. 294, 95th Cong., 1st Sess. 322 (1977), reprinted in 1977 U.S.C.C.A.N. 1077 ........................................................................................ 44, 54 USCA Case #13-1312 Document #1527612 Filed: 12/16/2014 Page 13 of 74xiii GLOSSARY

CAA or Act Clean Air Act EPA Environmental Protection Agency NAAQS National ambient air quality standard
PM Particulate matter

PM 2.5 Fine particulate matter; Partic ulate matter which is nominally 2.5 microns in aerodynamic diameter and smaller

PM 10 Coarse particulate matter; Partic ulate matter which is nominally 10 microns in aerodynamic diameter and smaller
PSD Prevention of Si gnificant Deterioration SIPs State implementation plans USCA Case #13-1312 Document #1527612 Filed: 12/16/2014 Page 14 of 74STATEMENT OF JURISDICTION The petition for review in case number 13-1312, which seeks direct review of a 2010 rule promulgated by the Envir onmental Protection Agency (“EPA”), entitled “Prevention of Signi ficant Deterioration (PSD) fo r Particulate Matter Less Than 2.5 Micrometers (PM 2.5 )--Increments, Significant Impact Levels (SILs) and Significant Monitoring Concentration (SMC), ” published in the Federal Register at 75 Fed. Reg. 64,864 (Oct. 20, 2010) (her einafter “2010 Rule”), should be dismissed for lack of jurisdiction. Petiti oner, the State of North Carolina (“North Carolina” or the “State”) did not file w ithin 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 a dvanced by the State in thes e petitions was in fact raised by other parties during the 2010 rulemaking and is not “based solely on grounds arising” more than 60 days af ter 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 gr ounds 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 th e 60-day period allowe d under § 7607(b)(1) USCA Case #13-1312 Document #1527612 Filed: 12/16/2014 Page 15 of 742 for the first of the alleged “ripening” ev ents, 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 fi rst 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 ca se number 14-1186. EPA does not dispute that the Court has jurisdiction to review EPA’s denial of the State’s administrative petition for reconsiderati on 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 w ithin 60 days of the publication of the Federal Register notice; (b) there are no new grounds for challenging the USCA Case #13-1312 Document #1527612 Filed: 12/16/2014 Page 16 of 743 2010 Rule within the meaning of the Cl ean 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-ari sing grounds, the petition was not timely filed within 60 days of the c ourt’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 ca se number 13-1312 is time-barred and should be dismissed for lack of jurisd iction because it was filed more than 60 days after October 25, 2013, the date of one of the “ripening” events alleged to give ri se to its petition.
3. Whether, if this Court were to reac h the merits, the petition in case number 13-1312 should be denied because EPA’s interpretation is reasonable since it closely tracks the applicable statutor y language and fl ows directly from interpretations arrived at throug h notice-and-comment rulemaking.
4. Whether EPA reasonably denied the State’s administrative petition for reconsideration and amended rulemaki ng because the State did not satisfy the statutory requirements for reconsideration and EPA provided a reasoned basis for declining to in itiate a new rulemaking. USCA Case #13-1312 Document #1527612 Filed: 12/16/2014 Page 17 of 744 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 Clea n Air Act (“CAA” or “Act”), and in particular, EPA’s 1997 national ambient ai r quality standard (“NAAQS”) for fine particulate matter (“PM 2.5 ”). The component of the 2010 Rule that the State seeks to challenge relates to the calcula tion of what concentration of PM 2.5 may be permitted in a particular area that meets the PM 2.5 NAAQS without causing significant deteriorations of air quality in that area. The Stat e seeks to use two alternative procedural pathways to obtai n 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 recons ideration and amende d rulemaking. The applicable CAA judicial revi ew provision, 42 U.S.C. § 7607(b)(1), requires that petitions be file d within 60 days of the pr omulgation 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 dir ect challenge to the 2010 Rule is untimely under § 7607(b)(1) for multiple reasons a nd should be dismissed for lack of jurisdiction. The petition for review of EPA’s denial of North Carolina’s administrative petition, while timely, shoul d be denied because EPA’s decision to deny the administrative petition was reason able and well supported by the record. USCA Case #13-1312 Document #1527612 Filed: 12/16/2014 Page 18 of 745 II. STATUTORY AND REGULA TORY 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, es tablishes a comprehensive program for controlling and improving the nation’s ai r quality through a regulatory system of cooperative federalism. Under Title I of the Act, th e EPA Administrator is charged with identifying air pollutants that endange r the public health and welfare and with formulating NAAQS that sp ecify the maximum permissi ble concentrations of those pollutants in the ambient air. 42 U.S.C. §§ 7408-09. EPA has promulgated NAAQS for various pollutants, including pa rticulate matter, for which it has set, over the years, a number of se parate 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 “uncla ssifiable” 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 implementati on 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 constr uction of stationary sources of air USCA Case #13-1312 Document #1527612 Filed: 12/16/2014 Page 19 of 746 pollution in accordance with a pr ogram known as New Source Review. Id

. § 7410(a)(2)(C). Relevant to the 2010 Rule challenged he re, 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 NAAQ S, 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 genera lly applicable requirements for nonattainment area pl ans, while Subpart 4, id . §§ 7513-13b, contains additional provisions for nonattainment area plans for particulate matter.
B. Particulate Matter NAAQS and Im plementing Regulations. Particulate matter, or PM, is the generi c term for a broad class of chemically and physically diverse substances that exist as discrete particle s (liquid droplets or solids) over a wide range of sizes. Particles originate from a variety of anthropogenic stationary and mobile so urces 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 prom ulgated in 1971 and we re expressed in terms of total suspended particles. 36 Fed. Reg. 8186 (Apr. 30, 1971). Total suspended particles include s particles that range up to 45 micrometers. Id

. USCA Case #13-1312 Document #1527612 Filed: 12/16/2014 Page 20 of 747 EPA has since revised the particul ate matter NAAQS multiple times. Especially relevant here, the initial partic ulate matter standards were replaced with standards for particles that are 10 micrometers or smaller (“PM 10 ”) in 1987, see 52 Fed. Reg. 24,634 (July 1, 1987), and in 1997, EPA added standards for PM 2.5 while retaining PM 10 standards. 62 Fe d. Reg. at 38,652; see also 78 Fed. Reg. 3086, 3091-96 (Jan. 15, 2013) (describing the hist ory of particulate matter regulation in more detail). At presen t, there are particulate ma tter NAAQS for each of the following forms of PM (also known as indicators) and averaging times: annual
PM 2.5 , 24-hour PM 2.5 , and 24-hour PM 10 . 40 C.F.R. §§ 50.6-50.7. EPA has promulgated several rules to facilitate the implementation of the 1997 PM 2.5 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
PM 2.5 Rule”). This rule addressed require ments under the nonattainment area plan provisions found in CAA Title I, Part D. The 2007 PM 2.5 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 PM 2.5 . 73 Fed. Reg. 28,321 (May 16, 2008) (hereinafter “2008 PM 2.5 Rule”). This rule addresses requirements of both the PSD and Nonattainment New Source Review pr ograms under CAA Title I, Parts C and USCA Case #13-1312 Document #1527612 Filed: 12/16/2014 Page 21 of 748 D, respectively. The nonattainme nt area portions of the 2008 PM 2.5 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 PM 2.5 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 Signific ant 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 progr am requires preconstruction review and permitting of major new stationary sour ces 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 constr uction 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 polluta nt concentrations for a given area over USCA Case #13-1312 Document #1527612 Filed: 12/16/2014 Page 22 of 749 a “baseline concentration.” 42 U.S.C. §§ 7473, 7479(4). These allowable increases in concentrations of pollutant s are known as “increments.” The baseline concentration plus the PSD increm ent 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-speci fic increments that have been established, increments for particulate matter and sulfur di oxide were initially established in the CAA. 42 U.S.C. § 7473. Congress then instructed EPA to promulgate regulations to prevent the si gnificant deterioration of air quality for four other pollutants cove red by a NAAQS in 1977 and for additional pollutants for which NAAQS are promulgated after A ugust 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 standard s 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 par ticularized authority in 42 U.S.C. § 7476(f) to substitute PM 10 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 USCA Case #13-1312 Document #1527612 Filed: 12/16/2014 Page 23 of 7410 allowable increases in partic ulate 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 conc entration for each pollutant-specific increment should be determined with refere nce 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 app licant is required to submit.” 42 U.S.C. § 7479(4). Congress also directed that cert ain emissions should not be included in the baseline and instead be counted agains t the maximum allowable concentration. Id . § 7479(4). Interpreting the CAA, EPA has esta blished 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 a nd 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 afte r the trigger date.

1 EPA promulgated PM 10 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 PM 10 increments for the statutorily-specified particulate matter increments, EPA retained the original baseline dates for those increments. Id . at 31,631. USCA Case #13-1312 Document #1527612 Filed: 12/16/2014 Page 24 of 7411 75 Fed. Reg. at 64,868-69, JAXX. The partic ulars of how these dates are used to determine each area’s maximum allowabl e pollutant concentration are complex and not material for reso lving this dispute. Generally speaking, because emissions of particulate matter have largely decreased over time, the ear lier the baseline dates, th e more likely that PSD increment consumption and expansion will be measured agains t a greater initial baseline concentration of ambient air po llution. Thus, the maximum allowable concentration established by adding the in crement to the baseline concentration will likely be a higher total concentration for PM 2.5 when the baseline concentration is calculated using earlier base line dates. In this case, North Carolina argues that the fixed baseline dates shoul d 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
PM 2.5 pollution across the country.
D. The 2010 Rule that North Carolin a Attempts to Challenge Here. 1. The Proposed Rule. On September 21, 2007, EPA proposed to promulgate both annual and 24- hour PM 2.5 increments, significant impact levels and a significant monitoring USCA Case #13-1312 Document #1527612 Filed: 12/16/2014 Page 25 of 7412 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 PM 2.5 increments. See , e.g ., 72 Fed. Reg. at 54,119-21, JAXX. EPA proposed two options. Option 1, which EPA called the “con tingent safe harbor” approach, proposed using § 7476(a) to establish new PM 2.5 increments. Id . at 54,120, 123-35, JAXX, XX. As EPA explai ned in the proposal, § 7476(a) authorizes EPA to promulgate pollutant-specific regulati ons targeted at preventing significant deterioration of air quality, which may in clude increments, for any pollutant for which EPA establishes a NAAQS after 1977. Id . at 54,119, JAXX. Thus, EPA could promulgate increments and accomp anying baseline dates for an additional form of PM pursuant to § 7476(a) while retaining the existing PM 10 increments. EPA also noted that § 7476(f), which spea ks specifically of “substitution” and
“PM 10 ,” could be read to limit the provisi on to apply only where EPA substitutes increments for a new form of PM to replac e the statutorily-specified increments or where EPA promulgates increments for the PM 10 indicator—situations that are

2 The significant impact levels and significant monitoring concentration are screening thresholds used in the permitti ng process, which are not challenged in these cases. See 72 Fed. Reg. at 54,112, JAXX. USCA Case #13-1312 Document #1527612 Filed: 12/16/2014 Page 26 of 7413 distinct from the circumst ances 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 PM 10 increments with annual PM 2.5 increments because the annual PM 10 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 th e 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) coul d be used if EPA substituted the PM 2.5 increments for the PM 10 increments and eliminated the PM 10 increments. 4 Id

. Under each approach, EPA proposed sp ecific fixed dates to serve as the trigger date and major s ource baseline date for PM 2.5 . 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 PM 2.5

3 EPA proposed options 2A and 2B, variations of the “equivalents substitution” approach that varied sli ghtly 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 PM 2.5 NAAQS because the 24-hour PM 10 NAAQS was not revoked, a nd thus, there could be no “substitution” of the 24-hour PM 2.5 NAAQS for the existing 24-hour PM 10 NAAQS. USCA Case #13-1312 Document #1527612 Filed: 12/16/2014 Page 27 of 7414 increments for the annual PM 10 increments, the existing particulate matter major source baseline date in 1975 and tri gger date in 1977 would be retained. 5 Id . at 54,138, JAXX. But for the 24-hour PM 2.5 increments, EPA proposed establishing new baseline dates, consis tent with option 1. Id . EPA noted that the baseline dates set at the effective date of the final rule would make the new PM 2.5 increments more protective and the use of 2010 dates would overcome significant implementation concerns ( i.e. , avoid the difficulty of “recreating” a PM 2.5 emission inventory for a historic period of time when PM 2.5 emissions were not in fact measured). Id . at 54,136, JAXX. EPA specifica lly requested comment on the alternative approaches and justifi cations 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 PM 2.5 increments for the annual PM 10 increments, and thus, set the increments for both PM 2.5 averaging times using § 7476(a), consistent with

5 EPA proposed that it could also set a new major source baseline for the substituted annual PM 2.5 increments, consistent with option 1. Id . at 54,138, JAXX. USCA Case #13-1312 Document #1527612 Filed: 12/16/2014 Page 28 of 7415 proposed option 1. Of particular releva nce to North Carolina’s argument regarding baseline dates, twelve comme nters, many of whom suppor ted the application of § 7476(f) to create substitute PM 2.5 increments, supported the proposal to establish new, more protective baseline dates for PM 2.5 , while one commenter supported retaining the historic particulate matter baseline dates for the new PM 2.5 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 ne w dates for implementing the PM 2.5 increments. EPA noted that several commenters had identif ied difficulties that would occur if the
PM 2.5 emissions inventory for increment anal yses had to be created for an earlier time period. EPA concluded that given the lack of information on historic PM 2.5 emissions, and the technical difficulties in establishing PM 2.5 emission inventories without that historic data, it would not be appropriate to require states and sources to retroactively account for PM 2.5 increment consumption by setting the major source baseline date for the PM 2.5 increments in 1975. 75 Fed. Reg. at 64,888, JAXX. In addition, EPA noted that be cause it decided to retain the annual PM 10 increment, the current level of environm ental protection associated with that increment and its 1975 major source ba seline date would be preserved. Id . at 64,887, JAXX. Thus, EPA promulgated a new major source baseline date of October 20, 2010, and trigger da te of October 20, 2011. Id

. USCA Case #13-1312 Document #1527612 Filed: 12/16/2014 Page 29 of 7416 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 cha llenge 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 PM 2.5 Rule vacated by th e Court were being removed from the Code of Federal Regulations. 78 Fed. Reg. 73,698 (Dec. 9, 2013).
E. North Carolina’s Administrative Pe tition 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 re view 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.). USCA Case #13-1312 Document #1527612 Filed: 12/16/2014 Page 30 of 7417 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 Ad ministrative Procedure Act more generally provides an interest ed 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 rulemaki ng to EPA concerning the 2010 Rule. Admin. Petition, JAXX. The petition reque sted that EPA reconsider the major source baseline date associated with the PM 2.5 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 Administra tive 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 a dopt a different interpretation of CAA §§ 7476(a) and 7476(f) as applied to the pr omulgation of the major source baseline date for PM 2.5 . Admin. Petition at 5-7, JAXX. No rth Carolina asserted that in the
NRDC decision, the Court held that the statutory definition of PM 10 at 42 U.S.C. § 7602(t) included PM 2.5 . Thus, North Carolina argued, § 7476(f) should be interpreted to include PM 2.5 , and it would be “illogical for Congress to restrict EPA’s discretion in addressing smalle r sizes of PM through § 7476(f) while USCA Case #13-1312 Document #1527612 Filed: 12/16/2014 Page 31 of 7418 allowing EPA to simply bypass that rest riction 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 PM 2.5 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 admi nistrative petition on August 24, 2014, declining to undertake a reconsideration of the PM 2.5 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 PM 2.5 , and North Carolina’s petition did not provide compelling policy or legal reasons for EP A to change that date. EPA Denial, Enclosure Summary, JAXX. EPA noted that a revision of the major source baseline date for PM 2.5 would significantly disrupt the implementation of the PSD program and would reduce the level of air-quality protection provided by the PM 2.5 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

. USCA Case #13-1312 Document #1527612 Filed: 12/16/2014 Page 32 of 7419 In regard to the petition for reconsid eration specifically, EPA concluded that the petition did not satisfy either of the tw o alternative bases fo r reconsideration set forth in 42 U.S.C. § 7607(d)( 7)(B). EPA Denial, Enclos ure at 3-4, JAXX. First, EPA concluded that the petition did not de monstrate that it was impracticable to raise the objection to the PM 2.5 major source baseline da te during the period for public comment on the 2010 Rule . EPA noted that it ha d taken comment on which subsection of § 7476 should be a pplied in developing the PM 2.5 increments and what major source baseline date should be used under either section, including the option to apply the existing PM 10 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 PM 2.5 increments because
PM 2.5 is a subset of PM 10 . 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 al so 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 judici al review. EPA observed that the NRDC decision did not address the 2010 Rule or th e major source baseline date, but rather addressed how EPA had es tablished SIP requirements for nonattainment areas under Part D, Title I of the CAA, and the court’s analysis in NRDC does not USCA Case #13-1312 Document #1527612 Filed: 12/16/2014 Page 33 of 7420 compel a particular interpre tation of the PSD provisions at issue in the 2010 Rule. EPA Denial, Enclosure at 5, JAXX. And again, EPA not ed that the fact that PM 2.5 is a subset of PM 10 could have been, and indeed wa s, 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 re sponse to North Carolina’s comments on a proposed Utah SIP action could not be a tri gger 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 Impl ementation Plan Submission. While not in the administrative records fo r either of the EPA actions challenged in these consolidated cases, as noted in the Holman a ffidavit attached to North Carolina’s Opening Brief, the State has s ubmitted 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 jurisd iction is challenged, a petitioner must demonstrate that jurisdiction exists. Kokkonen v. Guardian Life Ins. Co. , 511 U.S. USCA Case #13-1312 Document #1527612 Filed: 12/16/2014 Page 34 of 7421 375, 377 (1994); Georgiades v. Martin-Trigona , 729 F.2d 831, 833 n.4 (D.C. Cir. 1984). If the Court finds jurisdiction exis ts, 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 sta ndard prohibits the Court from substituting its judgment for that of EPA. Motor Vehicle Mfrs. Ass'n v. St ate Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43 (1983). The Court must cons ider 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. Ar kansas-Best Freight Sys. , Inc. , 419 U.S. 281, 285 (1974) (citation omitted). EPA’s dete rminations must be upheld if they “conform to ‘certain minima l standards of rationality.’” Small Refiner Lead PhaseDown Task Force v. EPA , 705 F.2d 506, 520-21 (D.C. Cir. 1983) (citation omitted). “Agency determ inations 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 i nvolves 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 interpreta tion should be upheld if it is a USCA Case #13-1312 Document #1527612 Filed: 12/16/2014 Page 35 of 7422 reasonable interpretation of the statute. Id . at 843-44. The agency’s interpretation need not “represent [] the best interpre tation 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 ru le, 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 ag ency’s denial of reconsideration only in the most extraordinary circ umstances, and only if the ag ency 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 rule making is “very na rrow” 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 cha llenge to the 2010 Rule is untimely and should be dismissed for lack of jurisdiction. Th e CAA provides an explicit time limit for challenging EPA rulemakings. A petition for review must be f iled 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. USCA Case #13-1312 Document #1527612 Filed: 12/16/2014 Page 36 of 7423 The State’s argument that the Court ha s subject matter jurisdiction based on “after-arising grounds” ha s 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.” Th e 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, beca use 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 th e rulemaking demonstrates that EPA’s decision to promulgate the baseline da tes 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 rulema king process) for objecting to the rule.
See 42 U.S.C. § 7607(b), (d)(7)(B). The argumen ts that the State advances in its USCA Case #13-1312 Document #1527612 Filed: 12/16/2014 Page 37 of 7424 administrative petition—that the PM 2.5 increments should have been promulgated pursuant to 42 U.S.C. § 7476(f) and that th e major source baseline date should be in 1975—could have been presented to EPA during the rulemaking proceedings. In fact, several commenters ma de such arguments in response to the proposed rule. EPA squarely addressed the issues as th ey were raised in the rulemaking, and reasonably opted to promulgate the PM 2.5 increment under 42 U.S.C. § 7476(a) rather than § 7476(f) and set the majo r source baseline date in 2010. EPA explained its reasoning for not initiating reconsideration or new rulemaking proceedings in detail in its denial of th e State’s administrative petition, which was eminently reasonable. ARGUMENT
I. THIS COURT LACKS JURI SDICTION OVER NORTH CAROLINA’S CHALLENG E TO THE 2010 RULE.
The federal courts are courts of limit ed 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 base d solely on grounds arising after USCA Case #13-1312 Document #1527612 Filed: 12/16/2014 Page 38 of 7425 such sixtieth day, then any petiti on 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) (sta ting 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 ha ve 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 re view are jurisdictional in nature.”). This Court has repeatedly noted that it is necessary to preserve “‘the consequences’ of failing to bring a cha llenge 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) (“AR TBA I”). The State’s petition for review of the 2010 Rule should be dismisse d for lack of subject matter jurisdiction because it fails to satisfy th e jurisdictional prerequisites of 42 U.S.C. § 7607(b)(1). USCA Case #13-1312 Document #1527612 Filed: 12/16/2014 Page 39 of 7426 A. The Court Lacks Subject Matter Jurisdiction Because North Carolina’s Objection to EPA’s Int erpretation 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 PM 2.5 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 Car olina 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 “gro unds arising after” or “new grounds” doctrine is narrow. New grounds can form th e basis for a late challenge to final agency action only where the challenge is based on substantive legal arguments that were not available duri ng 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 th e 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 USCA Case #13-1312 Document #1527612 Filed: 12/16/2014 Page 40 of 7427 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 subs tantive grounds for the petitions arose, if at all, before the time limit expired”). Contrary to North Car olina’s arguments, the NRDC decision does not constitute a change in the legal lands cape 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 PM 2.5 Rules pursuant to the provisions of Subpart 1 rather than Subpart 4 of Part D ( i.e ., general nonattainment plan requirements rather than PM 10 -specific nonattainment plan provisions). 706 F.3d at 429. The
NRDC court held that the nonattainment area portions of the 2007 and 2008 PM 2.5 Rules ignored the plain meaning of the CAA because Subpart 4’s reference to
PM 10 , which is statutorily defined to include all particles less than ten micrometers in diameter, necessarily included all PM 2.5 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 PM 2.5 nonattainment areas. Id . Based on this interpretation of the CAA, the court rema nded the nonattainment area portions of the 2007 and 2008 PM 2.5 Rules to the EPA to “re-pr omulgate these rules pursuant to Subpart 4.” Id . at 437. The court did not vacate the 2007 and 2008 PM 2.5 Rules or address the Prevention of Significant Deterioration program components of the USCA Case #13-1312 Document #1527612 Filed: 12/16/2014 Page 41 of 7428 2008 PM 2.5 Rule. Id. The NRDC decision does not compel a change in portions of the distinct PSD regulations promulga ted in the 2010 Rule, as North Carolina contends. The NRDC case does not discuss the central legal issue in this case— whether the PM 2.5 increments and baseline dates should have been promulgated pursuant to § 7476(a) or (f)—and North Car olina could have presented its legal arguments regarding the application of §§ 7476(a) and 7476(f), as other commenters did, during the 2010 rulemaki ng 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 pe riod 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 PM 10 to include PM 2.5 , when EPA promulgated the 2007 and 2008 PM 2.5 Rules, it was required to promulgate the PM 2.5 nonattainment implementing regulations for States and Tribes pursuant to Subpart 4 of Part D, Title 1 of th e CAA (which by its terms applies to PM 10 ), 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 PM 2.5 PSD increments and the relate d baseline dates, which apply USCA Case #13-1312 Document #1527612 Filed: 12/16/2014 Page 42 of 7429 in attainment areas. Indeed, the NRDC decision contains no reference to the CAA statutory provision that North Carolina asse rts 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 PM 2.5 is included within the CAA’s definition of PM 10 (42 U.S.C. § 7602(t)), and that by extension, 42 U.S.C. § 7476(f) ma y be read to apply to PM 2.5 . This does not mean, however, that EPA is precluded fro m also applying § 7476(a) to PM 2.5 . North Carolina also mischaracterizes EPA’s interpretation of 42 U.S.C. § 7476 and its application in the 2010 Ru le. EPA did not state that it was establishing the PM 2.5 increment under § 7476(a) rather than § 7476(f) because it believed that PM 2.5 was not included within the term PM 10 , as North Carolina contends. See Opening Br. at 10, 21-22, 28. To the contrary, EPA referred to
PM 2.5 as a new indicator for an existing criteria pollutant ( i.e. , particulate matter), and stated its belief that it could interpre t § 7476(a) to apply to the promulgation of an additional increment for PM 2.5 “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] es tablished new annua l and 24-hour NAAQS for PM 2.5 as if PM 2.5 was a new pollutant, even t hough EPA had already developed air quality criteria for PM generally. T hus, for purposes of [§ 7476(a)], the promulgation of a NAAQS for PM 2.5 established a NAAQS for an additional USCA Case #13-1312 Document #1527612 Filed: 12/16/2014 Page 43 of 7430 pollutant after 1977.”). EPA opted not to promulgate the PM 2.5 increment under § 7476(f) because that subsection plainly app lies specifically to circumstances where EPA “substitutes” a PM 10 increment for the statutorily-s pecified particulate matter increments. 72 Fed. Reg. at 54,121, JA XX; 75 Fed. Reg. at 64,873, JAXX. EPA explained that because it was not setti ng or amending any increments for PM 10 or otherwise taking action with respect to PM 10 increments, and the preexisting annual and 24-hour PM 10 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 PM 2.5 increments. 75 Fed. Reg. at 64,872, JAXX. Indeed, North Carolina could have pr esented the legal arguments that it seeks to advance now at th e time of the 2010 rulemaking. North Carolina argues that EPA should apply § 7476(f) to develop the PM 2.5 increments and baseline dates because PM 2.5 is a subset of PM 10 . 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 ma tter 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 PM 2.5 is a subset of pa rticulate matter—and those commenters argued what North Car olina argues now—that § 7476(f) should USCA Case #13-1312 Document #1527612 Filed: 12/16/2014 Page 44 of 7431 apply to the development of the PM 2.5 increments. See 2010 Response to Comments 9-11, JAXX. Because the NRDC decision did not alter the “leg al 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 th e participants in the CAA cap-and-trade program and effectively alte red the terms of EPA’s appr oval 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 pr ograms 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 sel ecting the baseline da tes) is unaltered by USCA Case #13-1312 Document #1527612 Filed: 12/16/2014 Page 45 of 7432 the NRDC decision, and there is no “newly jus ticiable” 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 Caro lina’s challenge to the 2010 Rule would run afoul of this Court’s longstanding prec edent 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 th e petitioner had failed to present the information to the Agency first, stating that “a preliminary presentment to the Administrator of the new information allege dly justifying revision of a standard is required before we will exer cise jurisdiction under [ 42 U.S.C. § 7607(b)(1)].” 515 F.2d at 661. The Court then set forth th e 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 th e petition and, if it de nies the petition, set forth its reasons. (3) If the petition is denied, the pe titioner may seek review of the denial in this court pursuant to [§ 7607(b)(1)]. USCA Case #13-1312 Document #1527612 Filed: 12/16/2014 Page 46 of 7433 Oljato Chapter at 666. As the Court further e xplained, such a procedure removes the serious anomaly that there is no “r ecord” on which the Court can review the new information and the Agency’s response to it. Id . at 665. The Court has reaffirmed the ne cessity of complying with the Oljato Chapter procedure in multiple subs equent 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 r ecently re-affirmed the principle that EPA should have the first opportunity to address a new issu e 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 reconsid eration must await EPA’s action on that petition.”). North Carolina attempts to dis tinguish 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 ba sed 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” cl aim without elaboration, when it posited, USCA Case #13-1312 Document #1527612 Filed: 12/16/2014 Page 47 of 7434 but did not answer, the question of “where , precisely, a party is supposed to file such a claim” based on after-arising gr ounds 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 informa tion 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 wa s 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 deci sion that reviewed regulations promulgated under different provi sions 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 petiti on so that EPA has the first opportunity to evaluate and respond to the petitione r’s claim. It is only through this administrative process that the record fo r 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 reconsid eration or amended rulemaking. USCA Case #13-1312 Document #1527612 Filed: 12/16/2014 Page 48 of 7435 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 Ru le, 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 plai nly states that a petition challenging a CAA rule based on after-arising grounds “sha ll 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. Ind eed, 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, rath er 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-ari sing grounds). On this basis alone, the petition should be dismissed. USCA Case #13-1312 Document #1527612 Filed: 12/16/2014 Page 49 of 7436 C. The State’s Theory That Oth er, 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 Stat e attempts to bootstrap EPA action in two more recent rulemakings, which are at be st tangentially-related to th e State’s contention that EPA should reconsider or amend the 2010 PM 2.5 Rule, into a “ripened” claim. See Opening Br. at 28-30. Specifically, North Carolina asserts that the following “ripened” its claim: (1) EPA’s respons e 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 Regul ations on December 10, 2013. Neither of these two events provides a basis for jurisd iction 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 in terlocutory 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). USCA Case #13-1312 Document #1527612 Filed: 12/16/2014 Page 50 of 7437 EPA’s response to comments on the Utah SIP meets neither of these conditions with respect to whether EP A would reconsider or amend the PM 2.5 major source baseline date in light of the NRDC decision. First, it was not the “consummation” of the Agency’s decisi on-making process on whether it would initiate reconsideration or amended rule making proceedings with respect to the 2010 Rule. North Carolina’s comment on th e Utah SIP proposal merely contended that the NRDC decision required that EPA treat PM 2.5 in the same manner as PM 10 for the purposes of the PM 2.5 major source baseline date, and questioned EPA’s proposed approval of the Utah SIP, which incorporated the 2010 PM 2.5 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 vi ew on whether it would reconsider or amend the 2010 PM 2.5 Rule in light of the NRDC decision. Appropriately, EPA’s response to that comment was limited to th e question presented, explaining that the
PM 2.5 baseline date had been promulgated in 2010 and remained in effect, and that the NRDC decision did not address the issue of PM 2.5 increments and associated baseline dates. See 78 Fed. Reg. at 63,885. EP A further explained that it was bound to apply the existing regulations to re view 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 USCA Case #13-1312 Document #1527612 Filed: 12/16/2014 Page 51 of 7438 reconsideration or amendment of the PM 2.5 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 a ffect North Carolina and its preference for a 1975 major source baseline date for PM 2.5 . EPA’s Utah SIP action did not resolve how EPA would respon d to the claims later pres ented in North Carolina’s administrative petition. It is well-esta blished that a woul d-be petitioner cannot goad the agency into a reply and then su e 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 administra tive petition to the agency, not through some less formal process such as subm ission 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 insuff icient to create the necessary record for judicial review). EPA’s respons e to comments on the Utah SIP simply explained the existing regulation’s si gnificance and neither actually nor constructively reopene d the regulation. See ARBTA I , 588 F.3d at 1115. USCA Case #13-1312 Document #1527612 Filed: 12/16/2014 Page 52 of 7439 The December 9, 2013, rulemaking noti ce 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 PM 2.5 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 th rough a good cause final rule, did not in any way address the NRDC decision or amendment of the EPA regulations addressing the PM 2.5 increment and major source baseline date. The December 9, 2013, notice merely implemented a decision by this C ourt 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 re spect to the 2010 Rule, and there are no legal consequences related to the PM2.5 increments a nd major source baseline date which flow from the removal of the unr elated, vacated portions of the 2010 PM 2.5 Rule. This Court has repeatedly rejected attempts to expand the narrow “afterarising grounds” provision in th e 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 administra tive petition is not after-arising grounds USCA Case #13-1312 Document #1527612 Filed: 12/16/2014 Page 53 of 7440 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 cha llenge within the statutory period” in the judicial review provision in SMCRA, wh ich parallels 42 U.S.C . § 7607(b)(1)). The rule that North Carolina advances woul d 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 woul d essentially eviscerate th e 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 in to the administrative process, thereby conserving administrative resources a nd protecting the reliance interests of regulatees who conform their c onduct 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 la w 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 di sagreements 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 USCA Case #13-1312 Document #1527612 Filed: 12/16/2014 Page 54 of 7441 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 Ad ministrator’s views in a nonlitigation context ....” 515 F.2d at 665-66. The Oct ober 25, and Decembe r 9, 2013, Federal Register notices, which did not address wh ether EPA would reconsider or amend the 2010 Rule, did nothing to “ripen” the substa ntive claim that is, in fact, available to the State—a challenge to EPA’s deni al of North Carolina’s administrative petition for reconsideration and am ended 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” clai m, the petition for re view was untimely with respect to that claim. North Caro lina’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 USCA Case #13-1312 Document #1527612 Filed: 12/16/2014 Page 55 of 7442 Appellate Procedure 2 to suspend its rule s and deem the State’s petition filed on December 24, 2014, the day it wa s expected to arrive at the court if not for holiday and weather-related de livery 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 be yond 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 re cently provided a thorough analysis of the CAA’s sixty-day limit for petitions to re view, 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 (10 th 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 “c lear indication” from Congress that the filing deadline was jurisdictional. Clean Water Action Counc il of NE Wisc. v. EPA , 765 F.3d 749 (7th Cir. 2014). The Sevent h Circuit’s analysis, however, did USCA Case #13-1312 Document #1527612 Filed: 12/16/2014 Page 56 of 7443 dismissed the petitioners’ claims for review for lack of subject matter jurisdiction because the petitions were filed after th e 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 de tail 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, cont ext, 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. Immedi ately on point to the circumstances in this case, the court in Utah II concluded that the Congress intended to “dispel any notion that the Cl ean Air Act’s deadline could be avoided if the claimant had an ‘excuse.’” Id . at 1259. Indeed, CAA legislative history dem onstrates 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. USCA Case #13-1312 Document #1527612 Filed: 12/16/2014 Page 57 of 7444 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 enac ted 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 lim it[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 “f iled” as used in § 7607(b)(1). In Houston v. Lack , 487 U.S. 266, 270-74 (1988), the Suprem e 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 s hould 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. USCA Case #13-1312 Document #1527612 Filed: 12/16/2014 Page 58 of 7445 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 appeal s 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 s ophisticated petitioners and litigated by trained lawyers, such as North Carolin a 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 w ould permit a petitioner to file a petition at any time and ask the court to deem the pe tition filed within the 60 days required by USCA Case #13-1312 Document #1527612 Filed: 12/16/2014 Page 59 of 7446 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 REAS ONABLE INTERP RETATION 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 re aches 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 PM 2.5 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 PM 2.5 increments and baseline dates mu st 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 PM 2.5 is not a “new” pollutant, but rather is a subset of PM 10 . Id . at 20-22; 28-30. North Carolina’s Chevron step-one-styled argument must fail because Congress did not speak directly to the preci se question that is presented here— that USCA Case #13-1312 Document #1527612 Filed: 12/16/2014 Page 60 of 7447 is, Congress did not clearly state that § 7476(f), rather than § 7476(a), provides EPA with the sole authority to promulgate PM 2.5 increments and baseline dates. In relevant part, § 7476(a) requires EP A to develop regulations to prevent significant deterioration, which may includ e increments, for “pollutants for which national ambient air quality standards are prom ulgated after August 7, 1977, . . . .” Nothing in this section precludes its appli cation 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 po llutants 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 PM 2.5 increments and the associated baseline dates. Section 7476(f) states specifically that “[t]he Admini strator 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)(i v) of this title, maximum allowable increases in PM 10 .” The circumstances that are specifically addressed in § 7476(f) are the substitution of the statutorily-speci fied particulate matter increments with
PM 10 increments—notably not the circum stances presented here since EPA retained the PM 10 increments and promulgated new PM 2.5 increments. In addition, § 7476(f) is not mandatory in nature, but rather simply prov ides EPA with the USCA Case #13-1312 Document #1527612 Filed: 12/16/2014 Page 61 of 7448 authority to undertake the described substitution. And most significantly to North Carolina’s argument that § 7476(f) should dictate how the PM 2.5 baseline dates are set, § 7476(f) contains no refere nce to any baseline dates. In sum, Congress provided no clear i ndication that EPA must use § 7476(f) to promulgate increments and the baseline dates for PM 2.5 . Thus, under the Chevron doctrine, Congress implicitly delegate d to EPA the authority to fill this gap, and the Court must defer to EPA’s in terpretation 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 PM 2.5 under specific circumstances. See , e.g. , 72 Fed. Reg. at 54,119-21, JAXX. EPA proposed that it could promulgate the annual PM 2.5 increment pursuant to § 7476(f) if EPA were to substitute that increment for the annual PM 10 increment. Id

. However, in the final rule EP A opted to retain the annual PM 10 increment. 75 Fed. Reg. at 64,887-88, JAXX. Responding to comments submitted on the proposed rule, EPA observed that § 7476(f) specifi cally addresses EPA’s authority to “substitute” PM 10 increments for the statutorily -specified particulate matter increments. Since EPA decided not to substitute the annual PM 2.5 increments for USCA Case #13-1312 Document #1527612 Filed: 12/16/2014 Page 62 of 7449 the pre-existing annual PM 10 increments, instead crea ting a separate, additional annual PM 2.5 increment, EPA concluded that th e most reasonable approach was to use § 7476(a), which provide s 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 PM 2.5 increments pursuant to § 7476(a), EPA also finalized its proposed approach to set new baseline dates for the new increments. EP A 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 PM 2.5 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 PM 2.5 emissions, it would not be appropriate to require states and sources to retroactively account for PM 2.5 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 ba seline 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 unde rstanding of the force of the statutory policy . . . depend[s] upon mo re than ordinary knowledge’ of the situation, the USCA Case #13-1312 Document #1527612 Filed: 12/16/2014 Page 63 of 7450 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 PM 2.5 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 PM 2.5 simply because § 7476(f) uses the term “PM 10 .” Rather, EPA recognized that § 7476(f) could be read to apply to PM 2.5 , but proposed to interpret § 7476(f) to apply only in the case of a “s ubstitution” of the statutory particulate matter increments and not where an add itional 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 PM 10 encompasses PM 2.5 . The rule change that North Carolina seeks—a change in the baseline dates—does not follow from that hol ding. In fact, EPA’s interpretation of
PM 10 and PM 2.5 in the 2010 rulemaking is consistent with the NRDC decision. USCA Case #13-1312 Document #1527612 Filed: 12/16/2014 Page 64 of 7451 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 19 77 baseline dates in this situation. Finally, for the first time in its Open ing 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 PM 2.5 . 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 rulema king procedures was never raised in the initial 2010 Rule administrative procee dings (or in North Carolina’s 2013 administrative petition for reconsideration and amended rulemaking). It is wellestablished that “the focal point for judi cial review should be the administrative record already in existence, not some ne w 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 fo r North Carolina’s “after-arising grounds” claim, interpreted the term “PM 10 .” See 706 F.3d at 434-37. Title 42 U.S.C. § 7479(4) does not contain the term “PM 10 ,” 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). USCA Case #13-1312 Document #1527612 Filed: 12/16/2014 Page 65 of 7452 Carolina’s attempt to raise a new legal ar gument related to § 7479(4) for the first time in this untimely challenge to the 2010 Rule. 10
III. EPA’S DENIAL OF NORTH CA ROLINA’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 impracticab le to raise such objection within such time or if the grounds for su ch 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 pro cedural 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 Pro cedure Act provides an interested person with the right to petition an agency “for issu ance, amendment, or repeal of a rule.” 5 U.S.C. § 553(e). In a letter dated Decembe r 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 firs t time in its Opening Brief (at 20-22) that the trigger date that determines the minor source baseline date for PM 2.5 should have been set in 1977. This new lega l 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. USCA Case #13-1312 Document #1527612 Filed: 12/16/2014 Page 66 of 7453 EPA erred when it used its authority u nder 42 U.S.C. § 7476(a) to promulgate the
PM 2.5 major source baseline date. That lette r 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 w ould not initiate a reconsideration or a new rulemaking proceeding. In its re sponse, 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 rulema king under the APA. EPA provided both legal and policy reasons for why it would not initiate a process for amending the
PM 2.5 increments and the major source base line date. North Carolina challenges EPA’s denial of the administrative petitio n, focusing solely on EPA’s conclusion that North Carolina had not demonstrat ed that the circumstances met the § 7607(d)(7)(B) reconsideration criteria. A. EPA’s Denial of the Petition fo r 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 ha s promulgated. C ongress endorsed this USCA Case #13-1312 Document #1527612 Filed: 12/16/2014 Page 67 of 7454 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), reprin ted in 1977 U.S.C.C.A.N. at 1402. As the text of § 7607(d)(7)(B) makes cl ear, a person seeking reconsideration must demonstrate that the request is ba sed on data and arguments that could not have been presented to EPA during th e rulemaking. Only when a petitioner demonstrates that “it was impracticable ” to raise the objection during public comment or the “grounds for such objec tion arose after the period for public comment (but within the time specified fo r 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 stat utory 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). USCA Case #13-1312 Document #1527612 Filed: 12/16/2014 Page 68 of 7455 In denying the petition for reconsidera tion, 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 reconsider ation 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 PM 2.5 increments and baseline dates at the time of the 2010 rulemaking. EPA Denial, Enclosur e 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 th at North Carolina now attempts to raise. As discussed supra at 26-31, North Carolina’s argument that PM 2.5 is a subset of
PM 10 could have been, and indeed was, ra ised during the public comment period in the 2010 Rule. Thus, EPA reasonably concl uded that the petition did not satisfy USCA Case #13-1312 Document #1527612 Filed: 12/16/2014 Page 69 of 7456 either of the two alternative timing requirements set forth in 42 U.S.C. § 7607(d)(7)(B). In light of the record, wh ich 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 r econsideration 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 baselin e 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 extremel y limited and highl y 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 defe rence 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-es tablished that EPA action on an administrative petition does not reopen the original ru lemaking 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. USCA Case #13-1312 Document #1527612 Filed: 12/16/2014 Page 70 of 7457 EPA responded to North Carolina’s 42 U.S.C. § 7476(f) legal argument, explaining both why it disagreed with No rth Carolina’s interpretation of the CAA and why a change in the major source ba seline 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 mu ltiple States have submitted state implementation plans that incorporate th e 2010 major source baseline date, further exacerbating logistical concerns related to a 1975 major source baseline date. EPA also described in detail how North Carolin a could have raised its concerns during the 2010 rulemaking. See id . at 7-8, JAXX. In add ition, EPA observed that the goal of preventing significant deterioration of air quality is furthered through the 2010 major source baseline date more th an 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 allege d error in EPA’s denial, ther e is no basis to conclude that EPA’s denial was unreasonable. USCA Case #13-1312 Document #1527612 Filed: 12/16/2014 Page 71 of 7458 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; Fa x: (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 USCA Case #13-1312 Document #1527612 Filed: 12/16/2014 Page 72 of 7459 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 pursu ant to Fed. R. App. P. 32(a)(7)(B)(iii) and Circuit Rule 32(a)(1), I certify th at the foregoing Brief for Respondent contains 13,634 words. /s/ Amy J. Dona AMY J. DONA USCA Case #13-1312 Document #1527612 Filed: 12/16/2014 Page 73 of 7460 CERTIFICATE OF SERVICE I hereby certify that all counsel of r ecord 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 16 th day of December, 2014. /s/ Amy J. Dona AMY J. DONA USCA Case #13-1312 Document #1527612 Filed: 12/16/2014 Page 74 of 74