Chesapeake Climate Action Network v. EPA

United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued October 21, 2019 Decided March 13, 2020

No. 15-1015

CHESAPEAKE CLIMATE ACTION NETWORK, ET AL.,

PETITIONERS

v.

ENVIRONMENTAL PROTECTION AGENCY,

RESPONDENT

ALABAMA POWER COMPANY, ET AL.,

INTERVENORS

Consolidated with 16-1169, 16-1349

On Petitions for Review of Agency Action of the

United States Environmental Protection Agency

Patton Dycus argued the cause for petitioners. With him

on the briefs were Neil Gormley, James S. Pew, and Eric

Schaeffer. Sanjay Narayan entered an appearance.

Meghan E. Greenfield, Trial Attorney, U.S. Department of

Justice, argued the cause for respondent. With her on the brief

were Jeffrey Bossert Clark, Assistant Attorney General, and

Jonathan D. Brightbill, Principal Deputy Assistant Attorney

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General. Norman L. Rave Jr. and Stephanie J. Talbert,

Attorneys, entered appearances.

Lauren E. Freeman, Makram B. Jaber, Andrew D.

Knudsen, C. Grady Moore, III, Margaret C. Campbell, and

Emily Gerhardt were on the brief for industry intervenor-

respondents.

Before: TATEL, PILLARD, and WILKINS, Circuit Judges.

Opinion for the Court filed by Circuit Judge WILKINS.

WILKINS, Circuit Judge: Congress charged the EPA with

establishing emission regulations under the Clean Air Act. In

a 2014 final rule challenged here, EPA exempted coal- and oil-

burning power plant utility boilers’ startup periods from

numerical limits on hazardous air pollutants. Instead, EPA

imposed qualitative “work practice” standards during these

periods of time. This consolidated action challenges that final

rule on two fronts. First, Petitioners challenge EPA’s denial of

their petition for reconsideration of the final rule as

procedurally improper. Second, Petitioners challenge the final

rule itself as arbitrary and capricious.

For the reasons that follow, we conclude that EPA erred in

denying Petitioners’ petition for reconsideration. We grant the

petition in No. 16-1349 because it was impracticable for

Petitioners to raise their two objections during the notice-and-

comment period and the objections were of central relevance

to the final rule. Because we remand the final rule for EPA’s

reconsideration, we do not reach the merits arguments set forth

in No. 15-1015.1

1

Petitioners brought a third challenge to a separate final action by EPA on

April 6, 2016, entitled “National Emission Standards for Hazardous Air

Pollutants From Coal- and Oil-Fired Electric Utility Steam Generating

3

I.

The Clean Air Act (“CAA”), 42 U.S.C. § 7401 et seq., was

enacted “to protect and enhance the quality of the Nation’s air

resources so as to promote the public health and welfare and

the productive capacity of its population,” § 7401(b)(1). In

order to regulate the emission of toxic pollutants considered

hazardous to public health, the CAA created a list of hazardous

air pollutants (HAPs) and required EPA to promulgate

restrictions on their emission by various sources. See U.S.

Sugar Corp. v. EPA, 830 F.3d 579, 593 (D.C. Cir. 2016) (per

curiam). This case involves such restrictions on an important

category of existing major sources, specifically utility boilers

at coal-fired and oil-fired power plants. See § 7412(a)(10)

(defining “existing source” as “any stationary source other than

a new source”); U.S. Sugar Corp., 830 F.3d at 593 (describing

major sources as “‘any stationary source or group of stationary

sources’ that neighbor each other, share common control, and

emit (or have the potential to emit) either ten tons per year or

more of any single HAP or twenty-five tons per year or more

of any HAP combination” (quoting § 7412(a)(1))).

EPA must set HAP emission limits in the form of

numerical limits whenever “feasible,” § 7412(d)(2), (h)(4), and

limits for major sources must be capped at the “the maximum

degree of reduction in emissions” that EPA deems

Units and Standards of Performance for Fossil-Fuel-Fired Electric Utility,

Industrial-Commercial-Institutional, and Small Industrial-Commercial-

Institutional Steam Generating Units; Technical Correction.” 81 Fed. Reg.

20,172 (April 6, 2016). We consolidated that challenge, contained in

Petitioners’ Petition for Review at No. 16-1169, with the two petitions

discussed herein. Petitioners acknowledged both in their opening brief and

at oral argument that they do not “specifically challeng[e] any portion of the

final action at issue” with respect to that April 6, 2016, final action, so we

dismiss the petition in No. 16-1169. Pet’rs’ Opening Br. 3 n.1.

4

“achievable,” § 7412(d)(2). EPA’s determination of what is

“achievable” is often referred to as a “MACT” standard, as in

“maximum achievable control technology.” U.S. Sugar Corp.,

830 F.3d at 594.

In setting a MACT standard, EPA follows a two-step

process. Id. at 594. First, it creates a “MACT floor” for each

category of emissions source that “ensures that all HAP sources

at least clean up their emissions to the level that their best

performing peers have shown can be achieved.” Id. (internal

quotation marks omitted). For sources like those at issue here,

“the MACT floor cannot be less stringent than the average

emissions limits achieved by the best performing 12 percent of

existing sources in that category or subcategory.” Id. (citing

§ 7412(d)(3)(A) (emphasis added)). Second, EPA may

exercise its discretion “to require an even greater reduction in

emissions, taking into account costs, health effects,

environmental effects, and energy requirements.” Nat. Res.

Def. Council v. EPA, 529 F.3d 1077, 1079 (D.C. Cir. 2008)

(citing § 7412(d)(2)).2

Congress recognized that numerical HAP emission limits

for MACT standards may not always be “feasible,” so it

included § 7412(h), which enables EPA to promulgate number-

alternative standards called “work practice” standards.

§ 7412(h); see Sierra Club v. EPA, 884 F.3d 1185, 1190 (D.C.

Cir. 2018) (“Work practice standards can be thought of as a

statutory Plan B; EPA may resort to them only when using

numeric limits is not feasible.” (internal quotation marks

2

This second step, often referred to as “beyond-the-floor” limits, “risk-

based” limits, or “health-based” limits after the factors listed in

§ 7412(d)(2), is not at issue here. Cement Kiln Recycling Coal. v. EPA, 255

F.3d 855, 858 (D.C. Cir. 2001) (per curiam); see also Nat. Res. Def.

Council, 529 F.3d at 1080.

5

omitted)). Relevant here, numerical MACT standards are not

feasible (and thus “work practice” standards may be used)

when “the application of measurement methodology to a

particular class of sources is not practicable due to

technological and economic limitations.” § 7412(h)(2)(B).

However, work practice standards must be, “in the

Administrator’s judgment,” consistent with numerical MACT

requirements, § 7412(h)(1), i.e., “the maximum degree of

reduction in emissions” that EPA deems “achievable,”

§ 7412(d)(2).

In addition, although not expressly contemplated by the

CAA, we have held that EPA has the “flexibility” to “regulate

a HAP indirectly, by controlling a proxy, or ‘surrogate,’ instead

of the pollutant itself. . . . so long as the resulting rules are

reasonably calculated to control the relevant HAPs to the extent

the statute demands.” Sierra Club, 884 F.3d at 1190 (citing

U.S. Sugar Corp., 830 F.3d at 628-29).

Finally, § 7607 sets forth the CAA’s administrative

proceedings and judicial review provisions applicable to

standards promulgated under § 7412. 42 U.S.C. § 7607(b),

(d)(1)(C). Notices of proposed rulemaking are published in the

Federal Register, accompanied by a statement of the basis and

purpose, the period available for public comment, and a

summary of the factual data on which the proposed rule is

based and the methodology used in obtaining and analyzing the

data. § 7607(d)(3). Anyone may submit written comments and

data in response to a proposed rule during the comment period,

§ 7607(d)(3), (d)(5)(i), but one is entitled to reconsideration by

the Administrator after the period for public comment has

passed if that person can show: (1) “it was impracticable to

raise such objection within such time or if the grounds for such

objection arose after the period for public comment (but within

the time specified for judicial review),” and (2) “such objection

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is of central relevance to the outcome of the rule,”

§ 7607(d)(7)(B). EPA’s refusal to convene such a proceeding,

which is what happened here, is subject to judicial review. See

id.

With this statutory framework in mind, we turn to the

regulatory background that led to the final rule challenged here.

II.

Coal- and oil-fired electric utility steam generating units

(sometimes referred to as “EGUs”) are one of the main sources

of many HAPs emitted into our atmosphere. Air pollution from

utility boilers at coal-fired and oil-fired power plants can be

particularly problematic during a facility’s startup or shutdown

period. According to EPA, an average power plant had

between 9 and 10 startup events annually between 2011 and

2012, but some plants had over 100 startup events in 2011.

Assessment – Revised, EPA-HQ-OAR-2009-0234-20451, at 4

(Nov. 2014). Environmental groups believe the number of

startup events will increase as renewable energy and gas-fired

units replace coal-fired power plants. Thus, EPA promulgated

specific emission standards applicable during these periods.

A.

In February 2012, EPA promulgated the “MATS Rule,”

which set national emission standards for HAPs emitted from

utility boilers at coal-fired and oil-fired power plants. MATS

Rule, 77 Fed. Reg. 9,304, 9,380-83 (Feb. 16, 2012). Not to be

confused with MACT standards, MATS is shorthand for

“Mercury and Air Toxics Standards.” Id. at 9,306. The MATS

Rule requires a power plant to comply with established

numerical emission limits at all times except during periods of

startup and shutdown. Id. at 9,466. The numerical emission

7

limits in the MATS Rule are “production-based,” so EPA

believed that startup periods – in which production is by

definition non-existent – required separate emissions limits. Id.

at 9,381. The MATS Rule defined the period of “startup” as

either the first-ever firing of fuel in a boiler for

the purpose of producing electricity, or the

firing of fuel in a boiler after a shutdown event

for any purpose. Startup ends when any of the

steam from the boiler is used to generate

electricity for sale over the grid or for any other

purpose (including on-site use).

Id. at 9,486. EPA rationalized the definition “based on the fact

that EGUs function to provide electricity primarily for sale to

the grid but also at times for use on-site; therefore, EGUs

should be considered to be operating normally at all times

electricity is generated.” Id. at 9,381. EPA acknowledged that

it previously had proposed numerical emission standards for

periods of startup, but it received a number of comments, with

“[m]any commenters point[ing] to the lack of data in the record

concerning emissions that occur during periods of startup.” Id.

The MATS Rule explained that of various data collected

there were almost no HAP data for startup and

shutdown periods and almost all of the data

failed to meet our data quality requirements.

Thus, we do not have sufficient data on

emissions that occur during startup and

shutdown on which to set emission standards.

Id. Therefore, the MATS Rule promulgated non-numerical

work practice standards for periods of startup and shutdown.

Id. The work practice standards set forth in the MATS Rule

required, among others, EGUs to use clean fuels for ignition.

8

Id. at tbl. 3. The MATS Rule does not specifically cite to

§ 7412(h), which governs when work practice standards may

be implemented in the place of numerical standards.

B.

Following the promulgation of the MATS Rule, “[t]he

EPA received petitions [for reconsideration] asserting that the

public lacked an opportunity to comment on the startup and

shutdown provisions in the final MATS [Rule].”

Reconsideration of Certain New Source and Startup/Shutdown

Issues, 77 Fed. Reg. 71,323, 71,330 (Nov. 30, 2012). EPA

acknowledged that it had previously “proposed numerical

standards for startup and shutdown periods, and in response to

comments on the proposed rule [it] changed those standards in

the final MATS to work practice standards.” Id. EPA re-

opened the period for comment on the nature of the work

practice standards during the startup period. Contrary to

Intervenors’ assertion, EPA did not propose altering the

endpoint of startup, which remained defined as the point in

which the power plant is able to generate electricity.

C.

On June 25, 2013, EPA issued a Proposed Rule and

Reopening of Comment Period. Reconsideration of Certain

Startup/Shutdown Issues, 78 Fed. Reg. 38,001, 38,002

(June 25, 2013) (“2013 Proposed Rule”). EPA explained that

in the preceding comment period, “comments raised several

significant issues regarding the definition of startup,” among

other issues. Id. Commenters proposed new startup endpoints

based not on when the source first generated electricity, but on

the number of hours after an EGU hits certain operational

benchmarks because then air pollution control devices

9

(“APCDs”) would be operational. Id. at 38,004. EPA noted

that

The commenters asserted that an EGU remains

in “startup” mode beyond the first generation of

electricity because, according to the

commenters, at that point in time many of the

APCDs needed to comply with the

requirements of this subpart may not be

technically or safely capable of operation and

those that are may be operating far from design

conditions because the requisite temperature(s)

and/or flow conditions have not been achieved.

Id. at 38,003. EPA sought comments on these suggested

definitions “so that the public can review the industry-provided

information and data and comment on the suggested revisions

to the startup and shutdown provisions.” Id. at 38,002.

“In addition, the EPA request[ed] comment on the

additional technical analyses it conducted in response to the

above comments concerning the end of startup.” Id. at 38,005

(citing Assessment of Startup Period at Coal-fired Electric

Generating Units, EPA-HQ-OAR-2009-0234-20224 (June 17,

2013)). We refer to this technical support document, which

accompanied the 2013 Proposed Rule, as the “2013 TSD.”

According to the 2013 Proposed Rule, the 2013 TSD

“examined several indicators that can aid in assessing the time

required to achieve operating benchmarks.” 78 Fed. Reg. at

38,005.

The 2013 TSD identified those “several indicators” to be

the removal efficacy of sulfur dioxide and nitrogen oxides

emission APCDs, analyzing their average time for engagement

across several categories. 2013 TSD, at 2. Although sulfur

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dioxide and nitrogen oxides are not HAPs, “EPA believes that

the removal efficacy of [these] APCDs, as evidenced by hourly

emission rates well below uncontrolled levels, may be used as

an indicator of the end of the startup period for the purpose of

the MATS rule.” Id.

The 2013 TSD identified a specific set of data3 on

emissions in order to identify all startup events at different

types of boilers. Id. EPA analyzed when (in terms of hours)

after generation sulfur dioxide and nitrogen oxides emissions

were reduced by APCDs, and then categorized those results by

combustion technologies, APCD type, and boiler type. Id.

EPA’s Assessment “found no significant difference in

performance related to startup between the different groups

assessed in this analysis,” and “could support defining the end

of startup at coal-fired EGUs as occurring at [a specific

capacity threshold] plus 3 hours or the start of electricity

generation plus 6 hours, whichever comes first.” 78 Fed. Reg.

at 38,005; see also 2013 TSD, at 19.

Neither the 2013 TSD nor the 2013 Proposed Rule

referenced the work practice standards provision, § 7412(h), or

analyzed its requirements for application.

3

The data used in the 2013 TSD came from EPA’s Clean Air Markets

Database, which included data from EPA’s Acid Rain Program. Petitioners

base their arbitrary-and-capricious argument on EPA’s alleged failure to

explain how it may treat emissions post-generation as immeasurable based

on EPA’s measured emission data from another program. In other words,

Petitioners argue that EPA failed to reasonably explain how it could treat

similar situations differently. But as already noted, we need not reach that

issue here.

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D.

Several environmental groups, including Petitioners,

submitted comments in response to the 2013 Proposed Rule.

Petitioners commented on the feasibility of numerical

measurability after generation, pointing out the broader

problem that EPA failed to make any finding that numerical

emission standards during this extended time frame were

infeasible under § 7412(h) such that EPA could lawfully

promulgate the extended period of work practice standards.

Petitioners argued in their timely comment that “feasible

‘measurement methodolog[ies]’” were available in order to

demonstrate that EPA could not lawfully conclude that work

practice standards were needed. J.A. 103 (quoting

§ 7412(h)(2)(B) (alteration in original)). Additionally,

Petitioners pointed out that EPA’s work practice standards

“cannot be less stringent than ‘the average emission limitation

achieved by the best performing 12 percent of the existing

sources, respectively.’” J.A. 163 (quoting § 7412(d)(3)).

E.

Ultimately, EPA adopted two alternative definitions of

“startup,” each with its own end point, in the final rule at issue

here. Reconsideration of Certain Startup/Shutdown Issues, 79

Fed. Reg. 68,777 (Nov. 19, 2014) (codified at 40 C.F.R.

§ 63.10042) (“Final Rule”). Power plants may choose between

the definitions because EPA “believe[s] that they both meet the

requirements of [§ 7412] to reduce HAP emissions during this

time period . . . .” Id. at 68,780. Once startup ends (regardless

of which definition the plant uses), the plant must then comply

with the MATS Rule’s numerical emission requirements. Id.

at 68,781.

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The first startup definition mirrors the original definition

from the 2012 MATS Rule and the November 2012 action:

startup begins with “the first-ever firing of fuel in a boiler for

the purpose of producing electricity, or the firing of fuel in a

boiler after a shutdown event for any purpose,” and it ends at

electricity generation. Id. at 68,792. This portion of the Final

Rule is not challenged here.

The alternative definition evolved from the proposed

extended definition tested by the 2013 TSD. It defines the

beginning of startup similarly to the first definition, but defines

the end of startup as occurring at a later juncture: “Startup

ends 4 hours after the EGU generates electricity . . . or 4 hours

after the EGU makes useful thermal energy (such as heat or

steam) for industrial, commercial, heating, or cooling purposes,

whichever is earlier.” Id. at 68,792 (internal citations omitted).

EPA acknowledged that the 2013 TSD “did not attempt to

identify the EGUs that were the best performing sources, but

instead simply looked at a category-wide average time for

engagement of APCDs.” Id. at 68,782. In order to “most

closely follow[] the requirements” of § 7412(h), EPA “revised”

its technical support documents to determine which EGUs

“were able to most quickly engage their [sulfur dioxide and

nitrogen oxides] APCDs because [EPA] determined that the

best performing EGUs for purposes of defining the end of

startup are those that are able to most efficiently engage their

controls after the start of electricity generation.” Id. We refer

to this “revised” technical support document as the “Final

TSD.” Assessment – Revised, EPA-HQ-OAR-2009-0234-

20447.

The 2013 Proposed Rule connected the removal efficacy

of APCDs regulating sulfur dioxide and nitrogen oxides

emissions to “achiev[ing] operating benchmarks,” 78 Fed. Reg.

13

at 38,005, specifically the point where “APCDs needed to

comply with the requirements of this subpart [became]

technically or safely capable of operation,” id. at 38,003. The

Final Rule filled in some gaps. According to the Final Rule,

sulfur dioxide and nitrogen oxides emissions can be proxies of

other emissions and their APCDs aid in the engagement of

HAP controls “that industry commenters stated required

additional time to engage after the start of generation of

electricity or useful thermal energy.” 79 Fed. Reg. at 68,781.

The takeaway in the Final Rule was that EPA believed the

removal efficacy of APCDs regulating sulfur dioxide and

nitrogen oxides emissions was reliable evidence of when EGUs

can begin to not only remove pollutants but measure HAP

emissions. See id. at 68,780.

F.

Petitioners submitted a petition for reconsideration of the

Final Rule that objected to the alternative extended startup

definition. Specifically, Petitioners objected to EPA’s late-

breaking selection of the best performing power plants which

formed the basis of its Final TSD analysis and objected to

EPA’s conclusion that work practice standards were lawful

under § 7412(h) beyond electricity generation. EPA denied the

petition on August 8, 2016. Reconsideration on the [MATS]

and the Utility New Source Performance Standards Startup and

Shutdown Provisions; Final Action, 81 Fed. Reg. 52,346,

52,346 (Aug. 8, 2016). EPA explained why it was denying the

petition for reconsideration in a separate document

accompanying the Federal Register notice. See Denial of

Petitions for Reconsideration of Certain Startup/Shutdown

Issues: MATS, EPA-HQ-OAR-2009-0234-20581 (July 29,

2016).

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III.

Although EPA and Intervenors do not challenge

Petitioners’ standing under Article III to seek judicial review

of both the denial of the petition for reconsideration and the

Final Rule, the Court has an independent obligation to ensure

standing exists. The Court concludes that because at least one

Petitioner – Sierra Club – demonstrates standing, this case may

proceed to the merits. See Ctr. for Biological Diversity v. EPA,

861 F.3d 174, 182 (D.C. Cir. 2017) (“When more than one

association brings suit, we need only find one party with

standing to satisfy the requirement.” (internal quotation marks

and citations omitted)).

Article III of the Constitution provides an association with

standing to sue “only if (1) at least one of its members would

have standing to sue in his own right; (2) the interest it seeks to

protect is germane to its purpose; and (3) neither the claim

asserted nor the relief requested requires the member to

participate in the lawsuit. ” Am. Trucking Ass’ns v. Fed. Motor

Carrier Safety Admin., 724 F.3d 243, 247 (D.C. Cir. 2013)

(internal quotation marks and citations omitted). Sierra Club’s

member’s standing here, as demonstrated in the declaration

attached to Petitioners’ Reply,4 is clear for the same reasons we

articulated in previous cases involving these parties:

[Its] members “unquestionably live[d] within

zones they claim are exposed to” regulated air

pollutants and “our vacatur [would] require

4

Petitioners submitted declarations from other members with their opening

brief, but Petitioners later “realized that the power plants harming

Petitioners’ opening-brief standing declarants have not elected to use the

extended startup period.” Pet’rs’ Reply Br. 3. We accept the declaration

submitted with Petitioners’ reply. See Ctr. for Sustainable Econ. v. Jewell,

779 F.3d 588, 599 (D.C. Cir. 2015).

15

EPA . . . to entertain and respond to the

[Petitioners’] claims about the necessary scope

and stringency of the standards” for regulating

those pollutants. Sierra Club has “shown its

members’ . . . concrete interest” of a type that

its asserted procedural interest is “plainly

designed to protect” and that its injury “is

potentially redressable” by further agency

action on remand.

Sierra Club v. EPA, 926 F.3d 844, 849 (D.C. Cir. 2019)

(quoting Sierra Club v. EPA, 699 F.3d 530, 533 (D.C. Cir.

2012)). Because the interest Sierra Club seeks to protect is

germane to its purpose and neither the claim asserted nor the

relief requested requires the member to participate in the

lawsuit, Sierra Club has established standing.

IV.

As we noted at the outset, Petitioners challenge both

EPA’s denial of their petition for reconsideration and the Final

Rule itself. The portions of the petition for reconsideration at

issue here attack EPA’s determination in the Final Rule that the

“best performing” power plants cannot reliably measure

emissions until four hours after they generate electricity. This

objection is really two-fold. First, Petitioners argue that EPA

did not analyze which power plants were the “best performers”

until the Final TSD, thus depriving Petitioners of the

opportunity to timely comment. Second, Petitioners argue

EPA’s best-performers analysis was based on an underlying

assumption that the point at which power plants begin to

operate their APCDs and remove pollutants can be used as a

proxy for when it becomes feasible to measure HAP emissions,

an assumption not disclosed prior to the Final Rule.

16

Petitioners seek relief in the form of an order compelling

EPA to reconsider the Final Rule in light of their objections.

While Petitioners ask the Court to vacate the denial of the

petition for reconsideration, they do not ask the Court to vacate

the Final Rule itself. At oral argument, Petitioners

acknowledged that if we remand for reconsideration under

§ 7607(d)(7)(B), we need not reach their additional arguments

that the Final Rule, as it stands now, is arbitrary and capricious.

See Oral Arg. Rec. at 22:00-26. Because we conclude that

Petitioners’ reconsideration petition raised objections that were

both impracticable to raise during the comment period and

centrally relevant to the outcome of the Final Rule, see

§ 7607(d)(7)(B), we vacate EPA’s denial of that petition and

remand for EPA’s reconsideration on these matters.

In Clean Air Council v. Pruitt, we declined to resolve a

dispute about whether our review of EPA’s treatment of the

two § 7607(d)(7)(B) elements is subject to de novo review or

arbitrary-and-capricious review, concluding that EPA erred

even under the more deferential arbitrary-and-capricious

standard. 862 F.3d 1, 10 (D.C. Cir. 2017) (per curiam). Here,

Petitioners seek de novo review, arguing that “EPA has no

greater expertise than this Court in determining whether the

requirements of § 7607(d)(7)(B) have been satisfied.” Pet’rs’

Opening Br. 35. EPA does not directly respond to this

argument, only articulating that the arbitrary-and-capricious

standard governs its “action in promulgating a rule.” Resp’t’s

Br. 23. Further complicating matters, we have previously

applied the abuse-of-discretion standard in cases where we are

asked to “reverse an agency’s denial of reconsideration.”

AT&T Corp. v. FCC, 363 F.3d 504, 509 (D.C. Cir. 2004); see

North Carolina v. EPA, 614 F. App’x 517, 519 (D.C. Cir. 2015)

(unpublished decision applying abuse-of-discretion standard,

citing to AT&T Corp., to review of EPA’s denial of a petition

for reconsideration under § 7607(d)(7)(B)).

17

We need not resolve this issue here, as the same conclusion

in Clean Air Council can be made here. Even under the more

deferential arbitrary-and-capricious standard, EPA erred in

concluding that the two identified issues from Petitioners’

petition for reconsideration did not meet the two requirements

for reconsideration under § 7607(d)(7)(B).

A.

We conclude that the first element of § 7607(d)(7)(B) is

met because it was impracticable to raise either of the two

objections during the period for public comment. The first

element’s impracticability prong – rather than the “arising

after” prong – is met “when the final rule was not a logical

outgrowth of the proposed rule.” Alon Refining Krotz Springs,

Inc. v. EPA, 936 F.3d 628, 648 (D.C. Cir. 2019) (per curiam).

A final rule is the “logical outgrowth” of a

proposed rule if “interested parties should have

anticipated that the change was possible, and

thus reasonably should have filed their

comments on the subject during the notice-and-

comment period.” A final rule “fails the logical

outgrowth test” if “interested parties would

have had to divine the agency’s unspoken

thoughts, because the final rule was surprisingly

distant from the proposed rule.”

Clear Air Council, 862 F.3d at 10 (quoting CSX Transp., Inc. v.

Surface Transp. Bd., 584 F.3d 1076, 1080 (D.C. Cir. 2009)).

It is undisputed that the 2013 Proposed Rule was the first

time that EPA introduced the idea of extending work practice

standards beyond the point of generation to several hours after

18

generation. It is also undisputed that the 2013 Proposed Rule

and 2013 TSD did not identify which sources were considered

the “best performing,” and neither referenced the section

governing when work practice standards may replace

numerical standards – § 7412(h).

1.

The Final Rule’s reliance on an identified list of best

performing power plants was not a logical outgrowth of the

2013 Proposed Rule. Given the Proposed Rule’s lack of any

mention of best performing sources or § 7412(h), Petitioners

simply could not have anticipated during the comment period

that EPA would convert the 2013 Proposed Rule – based on

data of when all power plants engage pollutant controls – into

an analysis of when then-unidentified best performers could

engage their controls.

It is true that Petitioners did comment on the lack of best

performing source analysis during the comment period. EPA

argues that this forecloses relief, relying on Portland Cement

Ass’n v. EPA, for the premise that a final rule is a logical

outgrowth of the proposed rule where a petitioner commented

on the issue. 665 F.3d 177, 189 (D.C. Cir. 2011) (per curiam).

But in Portland Cement, the Court noted that EPA had sought

comment on the matter and the petitioner had commented. Id.

Portland Cement does not stand for the proposition that an

individual’s comment in and of itself demonstrates sufficient

notice from EPA to the individual. To the contrary, in

Petitioners’ cited CSX Transportation, this Court recognized

that “notice must come from the [Notice of Proposed

Rulemaking,]” not the comments arising out of it. 584 F.3d at

1082. Because nothing in the 2013 Proposed Rule indicated

EPA was setting its standards based on the best performing

sources, the Final Rule’s reliance on its newly selected “best

19

performers” cannot be considered a logical outgrowth of the

2013 Proposed Rule. Thus, it was impracticable for Petitioners

to have raised this challenge during the comment period.

Besides, even if we did consider the Petitioners’ mention of a

best-performer analysis as relevant to the logical outgrowth

test, their comment raised that analysis in a different context.

Namely, Petitioners’ comment argued that EPA was required

to apply a best-performer analysis in setting the work-practice

standards; they said nothing of employing a best-performer

analysis in order to determine the duration of startup.

Even if reliance on any “best performing sources” could

be considered a logical outgrowth, EPA’s process for

identifying those best performing sources was certainly not. To

hold otherwise would place the unreasonable burden on

commenters not only to identify errors in a proposed rule but

also to contemplate why every theoretical course of correction

the agency might pursue would be inappropriate or incorrect.

It was simply impracticable for Petitioners to predict how EPA

would cure the missing “best performer” component and then

submit preemptive attacks on such hypothetical solutions. For

this reason, we find unavailing EPA’s argument that mere

similarities in analytical approaches of the 2013 TSD and the

Final TSD render the latter a logical outgrowth of the former.

EPA gave no notice that it would analyze any best performing

stringency requirements, so EPA cannot now claim that

Petitioners were on notice of how EPA would ultimately

analyze such issues.5 There was simply no opportunity for

5

Furthermore, EPA’s argument that it applied the “same analytical

approach” in the Final TSD as it did in the 2013 TSD is blatantly erroneous.

Resp’t’s Br. 30 (emphasis added). The process by which EPA went about

discerning which sources were the best performing required additional

calculations and data tinkering beyond what EPA did in the 2013 TSD. For

example, the Final TSD eliminated data from 563 startup events in which

“electricity generation lasted less than 4 hours before fossil fuel combustion

20

Petitioners to weigh in on whether additional factors beyond

what was considered in the 2013 TSD should be considered

when determining which sources are the best performing.

To sum up, Petitioners were not given the opportunity to

comment on, propose revisions to, or otherwise challenge the

process for selecting the “best performing” power plants that

EPA first unveiled in the Final TSD. In this respect, because

the final rule was not a logical outgrowth of the 2013 Proposed

Rule, this first objection satisfies the first element of

§ 7607(d)(7)(B).

2.

Turning to their second objection, Petitioners argue that

EPA did not disclose “the critical reasoning behind its

measurability analysis until its [F]inal [R]ule.” Pet’rs’

Opening Br. 42. It was only then, say Petitioners, that EPA

asserted “that the point at which power plants begin to operate

their pollution controls can be used as a proxy for when they

can measure emissions,” id., because no technologically and

economically feasible methodology exists to measure HAP

emissions up until that point, see § 7412(h)(2)(B).

As we demonstrate above, the Final Rule is the first time

EPA connects an EGU’s ability to remove pollutants with its

ability to measure HAP emissions. Id. at 68,779-80. EPA is

correct that the 2013 TSD articulated that it was using certain

removal efficacies as a proxy for the end of startup. The end

of startup is clearly the beginning of when emissions are to be

numerically measured for purposes of complying with existing

numerical limits set forth in the MATS Rule. But nowhere in

ended” and then “calculated the 2-hour rolling average emission rate.”

Final TSD, at 20. The 2013 TSD does not indicate similar methods.

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the 2013 TSD or the 2013 Proposed Rule does EPA express its

belief that emissions are immeasurable from the point of

electricity generation until the APCDs become operational.

This key link is a critical statutory requirement for EPA to

lawfully deviate from numerical standards and impose

alternative, non-numerical work practice standards. Simply

put, the 2013 Proposed Rule failed to disclose that it was using

APCDs’ effectiveness as a proxy for measurability.

Again, recognizing that the 2013 Proposed Rule seriously

lacked compliance with § 7412(h)’s requirements, Petitioners

timely commented on the measurability of pollutants.

Petitioners pointed out that EPA failed to make any finding that

numerical standards remained infeasible after the generation of

electricity (the startup end point in the first definition) to justify

work practice standards during the extended period of time in

the alternative definition. Petitioners’ comment also argued

that feasible measurement methodologies existed. EPA again

pounces on this comment, arguing that Petitioners’ timely

comment on feasibility is sufficient to show that it was not

impracticable for Petitioners to timely object to the use of

APCDs as a proxy for measurability.

We conclude that EPA clearly erred in faulting Petitioners’

failure to divine from the 2013 TSD that EPA would later

conclude under § 7412(h)(2)(B) that specific emission

measurements during startup show that HAP emissions cannot

be measured in a technologically and economically feasible

way.

Despite “conced[ing] that the 2013 Proposal could have

been more explicit” on this point, EPA doubles down, arguing

that the challenged premise – “that it was not feasible to

establish numeric limitations” for HAPs until APCDs became

operational – “was central” to the 2013 Proposal, Resp’t’s Br.

22

32, even though the 2013 Proposal lacks any reference to

measurement feasibility or § 7412(h).6 But commenters do not

have to be mind readers, and this is exactly the kind of

“divin[ation]” of “unspoken thoughts” that the logical

outgrowth test rejects. Clear Air Council, 862 F.3d at 10

(quoting CSX Transp., Inc., 584 F.3d at 1080). This second

objection also passes the first § 7607(d)(7)(B) element.

B.

The parties agree that § 7607(d)(7)(B)’s second element,

central relevance, asks whether the objections provide

substantial support for the argument that the regulation should

be revised. Both of Petitioners’ objections surpass that hurdle,

as they go to the very legality of the Final Rule’s § 7412(h)

work practice standards for the extended startup period. See

Kennecott Corp. v. EPA, 684 F.2d 1007, 1019 (D.C. Cir. 1982)

(“Because the reasonableness and accuracy of the forecast data

is critical to whether a smelter can qualify for an NSO,

[petitioners’] objections to that data, if well-founded, would

clearly have been ‘of central relevance.’” (citing

§ 7607(d)(7)(B))).

EPA argues that Petitioners’ objections cannot be centrally

relevant because they lack merit. We are not so convinced.

What is clear is that if different best performers are selected,

the extended startup definition’s end point would have to be

6

Intervenors make the same argument, claiming “measurement

impracticability was a primary issue underlying the entire reconsideration

proceeding.” Intervenors’ Br. at 10. This may indeed be true for the MATS

Rule’s definition of startup – and Petitioners do not challenge the feasibility

of measurability up until generation – but EPA’s radio silence on the matter

after proposing a new, extended endpoint of startup deprived Petitioners of

the opportunity to comment on this issue as it applied to an extended period

of startup.

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recalculated, and unless EPA demonstrates that measurability

is infeasible until APCDs become operational, work practice

standards cannot be applied. These issues certainly meet the

“central relevance” requirement. § 7607(d)(7)(B).

VI.

For the foregoing reasons, the Court grants Petition No.

16-1349, vacates EPA’s denial of the petition for

reconsideration, and remands to the agency for reconsideration.

Petition Nos. 15-1015 and 16-1169 are dismissed.

So ordered.