Utility Air Regulatory Group v. Environmental Protection Agency

United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued December 10, 2013 Decided March 11, 2014

No. 12-1166

UTILITY AIR REGULATORY GROUP,

PETITIONER

v.

ENVIRONMENTAL PROTECTION AGENCY,

RESPONDENT

EDGECOMBE GENCO, LLC, ET AL.,

INTERVENORS

Consolidated with 12-1366, 12-1420

On Petitions for Review of Final Action of the

United States Environmental Protection Agency

Lauren E. Freeman argued the cause for Industry

Petitioners. With her on the briefs were Craig S. Harrison,

Greg Abbott, Attorney General, Office of the Attorney General

for the State of Texas, Jon Niermann, Chief, Environmental

Protection Division, and Mark Walters and Mary E. Smith,

Assistant Attorneys General. Elizabeth L. Horner entered an

appearance.

2

David B. Rivkin, Jr., Lee A. Casey, Mark W. DeLaquil,

Andrew M. Grossman, Lisa M. Jaeger, Eric A. Groten, and

Jeremy C. Marwell were on the brief for intervenors Edgecomb

Genco, LLC, et al. in support of petitioners.

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

Justice, argued the cause for respondent. On the brief were

Robert G. Dreher, Acting Assistant Attorney General, and

Norman L. Rave, Jr., Attorney. Eric G. Hosteller and Matthew

R. Oakes, Attorneys, entered appearances.

Pamela A. Campos, argued the cause for Environmental

Intervenors in support of respondent. With her on the briefs

were Tomás E. Carbonell, Shannon Smyth, James S. Pew, Neil

E. Gormley, Sean H. Donahue, Sanjay Narayan, John D. Walke,

and John T. Suttles.

Before: GARLAND, Chief Judge, and ROGERS and

KAVANAUGH, Circuit Judges.

Opinion for the Court filed by Chief Judge GARLAND.

Concurring opinion filed by Circuit Judge KAVANAUGH.

GARLAND, Chief Judge: The Utility Air Regulatory Group

and the State of Texas challenge 2009 and 2012 final rules

issued by the Environmental Protection Agency (EPA) under the

Clean Air Act. The rules revised the new source performance

standards for steam generating units. Several of the petitioners’

challenges are not properly before us because they were first

raised in petitions for reconsideration that remain pending before

the agency. We reject the petitioners’ remaining challenges and

deny the petitions for review.

3

I

The Clean Air Act directs the EPA Administrator to publish

and periodically revise a list of categories of stationary sources,

which are large, fixed sources of air pollution. 42 U.S.C.

§ 7411(a)(3), (b)(1)(A). The Administrator must include a

category of sources in this list “if in his judgment it causes, or

contributes significantly to, air pollution which may reasonably

be anticipated to endanger public health or welfare.” Id.

§ 7411(b)(1)(A). Once a source category is listed, the

Administrator must establish new source performance standards

for that category. Id. § 7411(b)(1)(B).1

Fossil-fuel-fired steam generating units are boilers that

produce electricity. In so doing, they emit particulate matter

into the atmosphere. Because EPA determined that those

emissions “may contribute significantly to air pollution which

causes or contributes to the endangerment of public health or

welfare,” List of Categories of Stationary Sources, 36 Fed. Reg.

5931, 5931 (Mar. 31, 1971), it promulgated new source

performance standards for those units. The regulations are

divided into four subparts within 40 C.F.R. Part 60 -- Subparts

1

A “new source” is “any stationary source, the construction or

modification of which is commenced after the publication of

regulations . . . prescribing a standard of performance under this

section which will be applicable to such source.” 42 U.S.C.

§ 7411(a)(2). A “standard of performance” is “a standard for

emissions of air pollutants which reflects the degree of emission

limitation achievable through the application of the best system of

emission reduction which (taking into account the cost of achieving

such reduction and any nonair quality health and environmental

impact and energy requirements) the Administrator determines has

been adequately demonstrated.” Id. § 7411(a)(1).

4

D, Da, Db, and Dc -- each of which concerns a specific group of

sources.2

To ensure that steam generating units comply with emission

limits, EPA requires that they measure the particulate matter in

their emissions. When EPA initially promulgated the

regulations, the only way to measure such emissions was to

perform a manual test. See Standards of Performance for New

Stationary Sources, 36 Fed. Reg. 24,876, 24,888-90 (Dec. 23,

1971). To provide an alternative (and less expensive) way to

assess compliance, EPA later added opacity standards to its

boiler rules. See Standards of Performance for New Stationary

Sources: Additions and Miscellaneous Amendments, 39 Fed.

Reg. 9308, 9308-09 (Mar. 8, 1974). Opacity is not a pollutant

but rather can serve as a proxy for pollutants: It measures the

degree to which stack emissions block the transmission of light.

Opacity can be measured by (among other things) visual

inspection by a trained observer or by a continuous opacity

monitoring system (COMS). A COMS requires the installation

of equipment in the steam generating unit’s stack. This

2

Subpart D covers fossil-fuel-fired electric utility steam

generating units (EGUs) of greater than 73 megawatts (MW) heat

input capacity, on which construction, modification, or reconstruction

commenced after August 17, 1971 and on or before September 18,

1978. See 40 C.F.R. § 60.40(a). Subpart Da covers EGUs of greater

than 73 MW heat input capacity on which construction, modification,

or reconstruction began after September 18, 1978. See id.

§ 60.40Da(a). Subpart Db covers industrial-commercial-institutional

steam generating units with a heat input capacity of greater than 29

MW on which construction, modification, or reconstruction began

after June 19, 1984. See id. § 60.40b(a). And Subpart Dc covers

industrial-commercial-institutional steam generating units with a heat

input capacity of between 2.9 and 29 MW, on which construction,

modification, or reconstruction began after June 9, 1989. See id.

§ 60.40c(a).

5

equipment shines a light beam through stack gases and records

the resulting opacity readings at fixed intervals.

A newer form of monitoring technology is a continuous

emissions monitoring system (CEMS). A CEMS, like a COMS,

requires the installation of monitoring equipment in the unit’s

stack. But a CEMS measures pollutants directly, rather than by

measuring opacity as a proxy. Both a CEMS and a COMS

measure only filterable particulate matter -- which is emitted

from the stack as a solid. They do not measure condensable

particulate matter -- which is emitted as a gas, but turns liquid

or solid upon exiting the stack. Visual inspection, by contrast,

can measure both. Historically, however, only filterable

particulate matter has been subject to emission limitations.

In 2006 and 2007, EPA gave facilities the option of

installing particulate matter CEMS as “an alternative method to

demonstrate continuous compliance and as an alternative to

opacity . . . monitoring requirements.” Standards of

Performance [for Subparts Da, Db, and Dc Units], 71 Fed. Reg.

9866, 9867-68 (Feb. 27, 2006); see Standards of Performance

[for Subparts D, Da, Db, and Dc Units], 72 Fed. Reg. 32,710,

32,719 (June 13, 2007). The agency said that, because

particulate matter CEMS “measure the pollutant of primary

interest they provide adequate assurance of [particulate matter]

control device performance, and continuous opacity monitoring

is an unnecessary burden to affected sources using” CEMS.

Standards of Performance [for Subparts D, Da, Db, and Dc

Units]; Reconsideration and Amendments, 72 Fed. Reg. 6320,

6322 (proposed Feb. 9, 2007). EPA did not, however, eliminate

the opacity standards themselves; it merely said that facilities

using CEMS were no longer required to install and operate

COMS. See Standards of Performance [for Subparts D, Da, Db,

and Dc Units], 73 Fed. Reg. 33,642, 33,644 (proposed June 12,

2008) [hereinafter 2008 Proposal].

6

In 2008, EPA published a notice of proposed rulemaking,

seeking comment on the possible elimination of opacity

standards altogether for facilities using CEMS. See id. at

33,646. The agency said that elimination of such standards at

those units might be appropriate, “[s]ince opacity data has been

used as a surrogate for [particulate matter] emissions and since

[particulate matter] CEMS give a more direct continuous

measurement of the primary pollutant of interest causing

opacity.” Id. (footnote omitted). EPA noted, however, that

opacity is useful not only as a proxy for pollutants, but also “as

an indicator of control device operation and proper

maintenance.” Id. at 33,646 n.1.

The 2009 final rule exempted all units using particulate

matter CEMS from all opacity standards and monitoring

requirements, but conditioned the exemption on their

compliance with an emission standard for filterable particulate

matter of 0.03 pounds per million British thermal units

(lb/MMBtu) or less, rather than any otherwise applicable, higher

limits. See Standards of Performance [for Subparts D, Da, Db,

and Dc Units], 74 Fed. Reg. 5072, 5073-74 (Jan. 28, 2009)

[hereinafter 2009 Rule]. For Subpart D units, for example, the

higher limit was 0.10 lb/MMBtu. See 40 C.F.R. § 60.42.3

If a unit that was using a particulate matter CEMS did not

comply with the lower limit, the 2009 rule required it “to either

use a COMS or perform periodic visual inspections to comply

with the opacity standard.” Id. at 5074. The frequency of such

inspections depended on the results of the most recent

inspection. See id. In addition, the rule required all facilities to

3

By the time of the 2009 Rule, Subpart Da units were already

required to comply with the 0.03 lb/MMBtu limit, see 40 C.F.R.

§ 60.42Da (2007), as were certain, newer Subparts Db and Dc units,

see id. §§ 60.43b(h)(1), 60.43c(e)(1) (2007).

7

measure and report emissions of condensable particulate matter.

See id. at 5073.

UARG filed a petition for reconsideration of the 2009 rule.

Among other things, it asked EPA to reconsider its decision to

limit the exemption from the opacity standard and monitoring

requirements to units complying with the 0.03 lb/MMBtu

emission standard. EPA granted the petition for reconsideration.

At the same time, it published notice of a new proposed rule. In

most respects, the proposal tracked the 2009 final rule. It

contained only two differences relevant here: First, EPA

proposed a total (that is, filterable plus condensable) particulate

matter emission limit for certain Subpart Da units on which

construction, reconstruction, or modification commenced after

May 3, 2011. Second, EPA proposed to add an affirmative

defense to civil penalties for exceedances of emission limits that

are caused by malfunctions. See Standards of Performance [for

Subparts D, Da, Db, and Dc Units], 76 Fed. Reg. 24,976,

25,061, 25,064, 25,071 (proposed May 3, 2011) [hereinafter

2011 Proposal].

Thereafter, UARG submitted a new round of comments. It

argued that EPA should exempt all Subpart D units using CEMS

from the opacity standard and monitoring requirements because

CEMS are sufficiently accurate to ensure compliance with

emission standards. The Texas Commission on Environmental

Quality also submitted comments urging EPA to revise its rules

to allow steam generating units to use state-law affirmative

defenses in lieu of the federal affirmative defense the agency

had proposed.

On February 16, 2012, EPA issued another final rule.

Standards of Performance [for Subparts D, Da, Db, and Dc

Units], 77 Fed Reg. 9304 (Feb. 16, 2012) [hereinafter 2012

Rule]. The 2012 rule did not expand the exemption from the

8

opacity standard or monitoring requirements. Id. at 9424.

Although it reduced the frequency of periodic visual opacity

inspections for Subpart Da facilities not using COMS, see id. at

9457, it did not do so for Subparts D, Db, and Dc facilities, see

id. at 9448, 9460, 9463. The 2012 rule also required certain

Subpart Da units -- those on which construction, reconstruction,

or modification commenced after May 3, 2011 -- to test for

condensable particulate matter. See id. at 9458. Finally, the rule

did not allow the use of state-law affirmative defenses. Id. at

9433.

Thereafter, UARG and the State of Texas filed petitions for

agency reconsideration as well as for judicial review. EPA has

not yet acted on the petitions for reconsideration. The petitions

for judicial review are now before us.

II

We begin with two issues regarding the scope of our

review: the law that determines which of the petitioners’

challenges are properly before us, and the standards for

reviewing those challenges that are.

A

This court’s general view is that “a pending petition for

[agency] rehearing . . . render[s] the underlying agency action

nonfinal (and hence unreviewable) with respect to the filing

party.” United Transp. Union v. ICC, 871 F.2d 1114, 1116

(D.C. Cir. 1989); see, e.g., Clifton Power Corp. v. FERC, 294

F.3d 108, 110-12 (D.C. Cir. 2002). In the 1990 Amendments to

the Clean Air Act, however, Congress made clear that this does

not apply to challenges to rules promulgated under the Act. A

provision of 42 U.S.C. § 7607(b)(1) states: “The filing of a

petition for reconsideration by the Administrator of any

9

otherwise final rule or action shall not affect the finality of such

rule or action for purposes of judicial review . . . .” 42 U.S.C.

§ 7607(b)(1). The Senate Report accompanying the Clean Air

Act Amendments confirms that the purpose of that provision

was to “overrule,” in the context of the Clean Air Act, the

holding in West Penn Power Co. v. EPA, 860 F.2d 581, 583 (3d

Cir. 1988), that a pending petition for reconsideration deprives

an agency action of finality. S. REP. NO. 101-228, at 3755

(1989). West Penn was one of the cases upon which this court

relied in adopting our general view. See United Transp. Union,

871 F.2d at 1117-18.

Nonetheless, even under the Clean Air Act, a party may not

raise for judicial review objections to a rule that it raised for the

first time in a petition for agency reconsideration -- at least until

that petition is resolved. The Act states:

Only an objection to a rule or procedure which was

raised with reasonable specificity during the period for

public comment . . . may be raised during judicial

review. If the person raising an objection can

demonstrate to the Administrator that it was

impracticable to raise such objection within such time

or if the grounds for such objection arose after the

period for public comment . . . 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 . . . . If the Administrator

refuses to convene such a proceeding, such person may

seek review of such refusal in the United States court

of appeals for the appropriate circuit . . . .

42 U.S.C. § 7607(d)(7)(B).

10

The first sentence of this subsection flatly states that “[o]nly

an objection to a rule or procedure which was raised . . . during

the period for public comment . . . may be raised during judicial

review.” Standing alone, the sentence indicates that an

objection raised for the first time in a petition for

reconsideration may not be raised in court, because such an

objection was, by definition, not raised “during the period for

public comment.”

The second and third sentences create a limited exception

to the bar imposed by the first. As the second sentence states, if

it was impracticable to raise a particular objection during the

comment period or the grounds for the objection arose after that

period, and if the objection is of central relevance to the

outcome of the rule, “the Administrator shall convene a

proceeding for reconsideration of the rule.” Presumably, a party

can seek judicial review of the outcome of such a

reconsideration proceeding. But that sentence (together with the

one that precedes it) would be pointless if a court could hear an

objection raised for the first time in a petition for

reconsideration before the proceeding was completed.

The third sentence indicates what a petitioner may do “if the

Administrator refuses to convene” a reconsideration proceeding.

In that circumstance, a petitioner “may seek review of such

refusal in the United States court of appeals.” And one thing the

court may then do, if the predicates for reconsideration set out

in the second sentence are satisfied, is vacate the refusal and

direct the Administrator to convene a reconsideration

proceeding. Likewise, when that proceeding is completed, the

court presumably can hear a petition for review of the outcome.

But once again, that sentence (together with the two that precede

it) would be pointless if a court could hear a new objection

before those procedural steps were completed.

11

In sum, although the filing of a petition for reconsideration

does not render a Clean Air Act rule nonfinal for purposes of

judicial review, the only objections that may immediately be

raised upon judicial review are those that were raised during the

public comment period. Objections raised for the first time in

a petition for reconsideration must await EPA’s action on that

petition. See Oklahoma v. EPA, 723 F.3d 1201, 1214-15 (10th

Cir. 2013); see generally Appalachian Power Co. v. EPA, 249

F.3d 1032, 1055, 1065 (D.C. Cir. 2001); North Dakota v. EPA,

730 F.3d 750, 770-71 (8th Cir. 2013).

At oral argument, UARG maintained that, even if it cannot

obtain judicial review of substantive challenges raised for the

first time in a still-pending petition for reconsideration, it can

obtain judicial review of procedural challenges raised for the

first time in such a petition. But the language of the Clean Air

Act forecloses that argument. See 42 U.S.C. § 7607(d)(7)(B)

(“Only an objection to a rule or procedure which was raised

with reasonable specificity during the period for public

comment . . . may be raised during judicial review.” (emphasis

added)); see also Appalachian Power Co., 249 F.3d at 1055;

Oklahoma, 723 F.3d at 1214-15. Accordingly, because EPA has

not yet resolved the petitioners’ petitions for reconsideration, the

only objections that are properly before us are those the

petitioners made during the public comment periods.

B

We may vacate a final rule promulgated under the Clean

Air Act if it is “arbitrary, capricious, an abuse of discretion, or

otherwise not in accordance with law.” 42 U.S.C.

§ 7607(d)(9)(A). To determine whether a rule is arbitrary or

capricious, we apply the same standard of review that we apply

under the Administrative Procedure Act (APA), 5 U.S.C.

§ 706(2)(A). See Allied Local & Reg’l Mfrs. Caucus v. EPA,

12

215 F.3d 61, 68 (D.C. Cir. 2000). “[W]e must affirm the EPA’s

rules if the agency has considered the relevant factors and

articulated a rational connection between the facts found and the

choice made.” Id. (internal quotation marks omitted).

As under the APA, we may also vacate a rule under the

Clean Air Act if it was promulgated “without observance of

procedure required by law.” 42 U.S.C. § 7607(d)(9)(D); see 5

U.S.C. § 706(2)(D). But the Clean Air Act tacks on three

additional conditions. To vacate a Clean Air Act rule on the

ground that the agency failed to observe a procedural

requirement, we must also find that “(i) such failure to observe

such procedure is arbitrary or capricious, (ii) the requirement of

paragraph (7)(B) has been met, and (iii) the condition of the last

sentence of paragraph (8) is met.” 42 U.S.C. § 7607(d)(9)(D).

The second condition is a reference to the requirement of

§ 7607(d)(7)(B), which we discussed in Part II.A above. The

third condition provides that “the court may invalidate the rule

only if the errors were so serious and related to matters of such

central relevance to the rule that there is a substantial likelihood

that the rule would have been significantly changed if such

errors had not been made.” Id. § 7607(d)(8).

III

The petitioners raise several challenges that are not properly

before us. They object to the following: the 2012 rule’s

condensable particulate matter testing requirement for Subpart

Da units; the rule’s establishment of a different frequency for

periodic visual opacity inspections under Subparts D, Db, and

Dc than under Subpart Da; and the agency’s suggestion that it

would permit the use of state-law affirmative defenses in the

context of the mercury and air toxics (MATS) emission

standards for coal- and oil-fired electric utility steam generating

units (EGUs), issued pursuant to 42 U.S.C. § 7412, while not

13

allowing such defenses in the context of new source

performance standards under § 7411. It is undisputed the

petitioners did not make these objections during the public

comment period. Although they did raise them in their petitions

for reconsideration, those petitions remain pending before the

agency. Accordingly, for the reasons discussed in Part II.A,

these challenges are not properly before us.4

The following subsections address the objections that the

petitioners did raise during the comment period.

A

UARG challenges the requirement -- included in the 2009

rule and reaffirmed in the 2012 rule -- that Subparts D, Db, and

Dc boilers emitting more than 0.03 lb/MMBtu of particulate

matter remain subject to the opacity standard and must install

COMS or perform periodic visual opacity inspections, even if

they use particulate matter CEMS.

4

It is true that our cases have said EPA retains a “duty to examine

key assumptions as part of its affirmative burden of promulgating and

explaining a non-arbitrary, non-capricious rule and therefore . . . must

justify [such an] assumption even if no one objects to it during the

comment period.” Okla. Dep’t of Envtl. Quality v. EPA, 740 F.3d

185, 192 (D.C. Cir. 2014) (alteration in original) (internal quotation

marks omitted); see, e.g., Ne. Md. Waste Disposal Auth. v. EPA, 358

F.3d 936, 948 (D.C. Cir. 2004). But unlike the petitioners in the cited

cases, the petitioners here did not merely fail to object to assumptions

(whether “key” or not) underlying the requirements and distinctions

they now challenge in court; rather, they did not object to those

requirements or distinctions at all. Although the petitioners may have

had good reason for not raising those objections during the

rulemaking, judicial review must nonetheless await EPA’s action on

their petitions for reconsideration. See supra Part II.A; infra note 7.

14

1. UARG contends that continuing to subject boilers

emitting more than 0.03 lb/MMBtu of particulate matter to an

opacity standard and opacity monitoring requirements, while

exempting boilers emitting that amount or less, was arbitrary

and capricious. We disagree. In its 2009 rule, EPA explained

that sources emitting 0.03 lb/MMBtu or less of particulate

matter “will operate with little or no visible emissions,” and thus

“an opacity standard is no longer necessary for these sources.”

2009 Rule, 74 Fed. Reg. at 5073. “At this emission rate,” the

agency said, the existence of any “visible emissions may

indicate that the [particulate matter] control device is not

operating properly.” Id. at 5074. Hence, for a source that is

meeting this emission standard, no opacity standard is needed

because any visible opacity will indicate improper operation.

By contrast, units emitting more than 0.03 lb/MMBtu of

particulate matter “may have some visible emissions” even if

their particulate matter control devices are operating properly.

Id. Since particulate matter “CEMS readings cannot be verified

as readily as other CEMS, and since recalibration requires

[particulate matter] performance tests, baseline opacity readings

can be a valuable secondary check on control device

performance and [particulate matter] emissions.” Id.

Accordingly, the agency reasonably concluded that a unit

emitting more than 0.03 lb/MMBtu should remain “subject to an

opacity limit” and “use a COMS or perform periodic visual

inspections to comply with the opacity standard” to verify that

the pollution control and monitoring systems are operating

properly. Id.5

5

The petitioners maintain that, in the 2012 rule, EPA renounced

this rationale for subjecting boilers emitting more than 0.03 lb/MMBtu

of particulate matter to an opacity standard. We disagree. The agency

did add another explanation in its response to comments, but nothing

in that response suggests that it renounced its earlier rationale. See

15

UARG also contends that EPA was unreasonable, not just

in retaining an opacity standard for units emitting more than

0.03 lb/MMBtu of particulate matter, but also in requiring them

to use a COMS or perform periodic visual opacity inspections.

But as just explained, the purpose of retaining the opacity

standard for such a unit is to provide a real-time check to ensure

that its particulate matter control device is functioning properly.

See 2009 Rule, 74 Fed. Reg. at 5073-74; 2008 Proposal, 73 Fed.

Reg. at 33,646 n.1. Using a COMS or performing periodic

visual opacity inspections provides that check. See id. Because

EPA has articulated a reasonable explanation for requiring

opacity monitoring, petitioner’s challenge to this requirement

fails.

We also reject UARG’s related contention that EPA’s

action was arbitrary and capricious because it failed to address

“the impacts of the periodic visible emissions testing on the

Subpart D units it had proposed to exempt from the standard, but

did not exempt in the final rule.” Pet’rs’ Br. 35. Whether or not

a failure to consider the burden imposed on those units would

have been arbitrary and capricious, the contention fails because

EPA did consider the burden imposed by its visual opacity

inspection requirement. See 2009 Rule, 74 Fed. Reg. at 5074;

see also 2008 Proposal, 73 Fed. Reg. at 33,643 (noting that the

proposal, which included visual opacity inspection requirements,

“would not significantly change our original projections for the

rule’s compliance costs, . . . burden on industry, or the number

of affected facilities”); id. at 33,645 (noting that “the use of a

digital camera system” to comply with the opacity monitoring

requirements “would also reduce compliance costs”); 2012 Rule,

EPA, Response to Public Comments on Rule Amendments Proposed

May 3, 2011 (73 FR 33642) [hereinafter 2011 Response to

Comments] at 13-14 (Dec. 2011) (J.A. 211-12).

16

77 Fed. Reg. at 9425 (analyzing the power industry’s

compliance costs).

2. UARG further contends that, in promulgating the 2009

rule, EPA violated the Clean Air Act’s rulemaking provisions.

According to UARG, in 2008 “EPA proposed one rule (the full

opacity exemption) based on its longstanding positions . . . , and

then adopted a very different rule without any notice of its new

rationale or positions.” Pet’rs’ Br. 31. But even assuming that

EPA did stumble procedurally during the rulemaking for the

2009 rule, it made up for any procedural error during the

rulemaking for the 2012 rule. There is no dispute that, during

the latter, EPA offered all interested parties an opportunity to

comment on both the opacity standard and the opacity

monitoring requirements. Because thereafter EPA re-

promulgated the same standard and requirements, UARG’s

procedural objection to the allegedly inadequate notice and

opportunity to comment is moot. See NRDC v. U.S. Nuclear

Regulatory Comm’n, 680 F.2d 810, 813-14 (D.C. Cir. 1982); see

also Fund for Animals, Inc. v. Hogan, 428 F.3d 1059, 1063-64

(D.C. Cir. 2005). So, too, is its contention that EPA failed to

respond to comments on the 2008 proposal. See NRDC v. U.S.

Nuclear Regulatory Comm’n, 680 F.2d at 813-14.6

6

UARG also argues that EPA violated the Paperwork Reduction

Act by failing to submit to the Office of Management and Budget an

information collection request to support its condensable particulate

matter testing requirement. See 44 U.S.C. § 3507(a). But even if that

were true, a violation of the Paperwork Reduction Act does not afford

an independent cause of action; it merely serves as a defense to an

enforcement action. See id. § 3512; Dithiocarbamate Task Force v.

EPA, 98 F.3d 1394, 1405 (D.C. Cir. 1996); see also, e.g., Sutton v.

Providence St. Joseph Med. Ctr., 192 F.3d 826, 844 (9th Cir. 1999).

No such action is before us.

17

B

Texas’ petition for review challenges EPA’s refusal to

allow state-law affirmative defenses against the enforcement of

new source performance standards.

As noted earlier, see supra Part I, EPA’s 2011 notice

proposed adding an affirmative defense to civil penalties when

a facility exceeds emission limits as a result of a malfunction.

See 2011 Proposal, 76 Fed. Reg. at 25,064. EPA proposed that

the defense be available only “where the event that causes an

exceedance of the emission limit” is “sudden, infrequent, not

reasonably preventable and not caused by poor maintenance and

or careless operation.” Id. In its comments during the

rulemaking, Texas asked EPA to consider allowing states to use

their own state-law affirmative defenses in lieu of the federal

defense that EPA proposed. Specifically, Texas wanted to use

the affirmative defense provisions in its State Implementation

Plan (SIP), which EPA had previously approved under a

different Clean Air Act provision, 42 U.S.C. § 7410. The 2012

final rule permitted the federal defense only.

Texas maintains that EPA did not explain why it declined

to approve Texas’ use of a state-specific affirmative defense for

the new source performance standards under 42 U.S.C. § 7411,

when it had approved such a defense in its SIP under § 7410.

But EPA did explain: Unlike some other Clean Air Act

standards, new source performance standards are not

incorporated into SIPs as state-promulgated regulations. Rather,

they are federal standards to which SIP affirmative defense

provisions are inapplicable. See 2011 Response to Comments

at 26 (J.A. 215).

Texas protests that this explanation is arbitrary and

capricious because EPA suggested, in responding to comments

18

in a different rulemaking, that it would permit state-specific

affirmative defenses with respect to different emission standards

-- the mercury and air toxics (MATS) emission standards for

coal- and oil-fired EGUs, issued pursuant to 42 U.S.C. § 7412.

Although EPA’s brief offers the agency’s explanation for the

difference (based on differences between the state-delegation

aspects of the new source performance and MATS rules, see

EPA Br. 30-32), we do not address that explanation. As we

noted above, supra Part III (introduction), Texas did not bring

this alleged inconsistency to EPA’s attention until its petition for

reconsideration. As a consequence, it may not raise this

objection for judicial review until that petition is resolved. See

supra Part II.A.7

IV

For the foregoing reasons, the petitions for review are

Denied.

7

It does appear that Texas had good reason for not raising the

point during the rulemaking: EPA’s response regarding the MATS

comments was not published until the public comment period for the

new source performance standards rule had closed. See EPA’s

Responses to Public Comments on EPA’s National Emission

Standards for Hazardous Air Pollutants from Coal- and Oil-Fired

EGUs (Dec. 2011) (J.A. 167); 2011 Proposal, 76 Fed. Reg. at 24,976

(“Comments must be received on or before July 5, 2011.”). But as we

explained in Part II.A, although this may qualify Texas for the limited

exception to the statutory bar against raising objections not raised

during a rulemaking, see 42 U.S.C. § 7607(d)(7)(B), the State must

nonetheless wait to raise its objection until EPA acts on its petition for

reconsideration. See Oklahoma, 723 F.3d at 1214-15; Appalachian

Power, 249 F.3d at 1065.

KAVANAUGH, Circuit Judge, concurring: I join the Court’s

opinion. I note simply that the Section 7607 exhaustion/finality

rule we describe today likely should not be considered

jurisdictional under the Supreme Court’s recent cases that have

tightened the definition of when a rule is considered

jurisdictional. See generally Sebelius v. Auburn Regional

Medical Center, 133 S. Ct. 817, 824 (2013) (“To ward off

profligate use of the term jurisdiction, we have adopted a readily

administrable bright line for determining whether to classify a

statutory limitation as jurisdictional. We inquire whether

Congress has clearly stated that the rule is jurisdictional; absent

such a clear statement, we have cautioned, courts should treat

the restriction as nonjurisdictional in character.”) (citations,

internal quotation marks, and alteration omitted); Gonzalez v.

Thaler, 132 S. Ct. 641, 648 (2012) (“Recognizing our less than

meticulous use of the term in the past, we have pressed a stricter

distinction between truly jurisdictional rules, which govern a

court’s adjudicatory authority, and nonjurisdictional claim-

processing rules, which do not.”) (internal quotation marks

omitted); Henderson ex rel. Henderson v. Shinseki, 131 S. Ct.

1197, 1202-03 (2011) (“We have urged that a rule should not be

referred to as jurisdictional unless it governs a court’s

adjudicatory capacity, that is, its subject-matter or personal

jurisdiction. Other rules, even if important and mandatory, we

have said, should not be given the jurisdictional brand.”)

(citations omitted).

To be sure, at least one case of ours has referred to the

Section 7607 rule as jurisdictional. See National Association of

Clean Water Agencies v. EPA, 734 F.3d 1115, 1158 (D.C. Cir.

2013). But our statement in that case was based on a prior case

that pre-dated some of the Supreme Court’s more recent

pronouncements on the jurisdiction label. Of course, the

question of whether such a rule is jurisdictional matters only in

those cases where the agency has waived or forfeited reliance on

2

the rule, which is to say not often. Although we do not need to

address the question in this case, in an appropriate case where it

makes a difference, we may want to ensure that our case law on

the jurisdictional status of this particular exhaustion/finality rule

has kept pace with the Supreme Court’s case law on when a rule

should be considered jurisdictional.