Petition for Writ of Certiorari — Peter Williams, Petitioner v. Environmental Protection Agency, et al.
Supreme Court briefMar 25, 2024
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No. __-_____
In the Supreme Court of the United States
PETER WILLIAMS,
Petitioner,
v.
ENVIRONMENTAL PROTECTION AGENCY, ET AL.,
Respondents.
ON PETITION FOR WRIT OF CERTIORARI
TO THE U.S. COURT OF APPEALS
FOR THE DISTRICT OF COLUMBIA CIRCUIT
PETITION FOR WRIT OF CERTIORARI
LAWRENCE J. JOSEPH
Counsel of Record
1250 Connecticut Ave. NW
Suite 700-1A
Washington, DC 20036
202-355-9452
ljoseph@larryjoseph.com
Counsel for Petitioner
i
QUESTIONS PRESENTED
Petitioner Williams applied to enter a new Clean
Air Act (the “Act”) program distributing allocations
annually. Although his application applied expressly
as an individual with the dba New Era Group, the logo
to his letterhead shows “New Era Group, Inc.” and his
email address was at neweragroupinc.com. Notwithstanding express statements in his application’s body
that he applied as an individual, EPA denied his
application as an ineligible corporation in a letter that
EPA loosely summarized in a Federal Register notice
on April 5, 2022, announcing approvals for the new
program beginning October 1, 2022. Through counsel,
by letter on April 20, 2022, he sought reconsideration,
including new evidence of the individual nature of his
application. Contrary to 5 U.S.C. § 555, EPA has yet
to act on—or even formally respond to—Williams’
administrative petition for reconsideration. Two more
petitions were filed to correct EPA’s error, without a
response. Williams timely petitioned for review when
EPA issued new annual allocations for the next year
without resolving his pending administrative petition.
Petitions for review must be filed within 60 days
of EPA’s publishing actions in the Federal Register,
42 U.S.C. § 7607(b)(1). In § 7607(d), the Act exempts
most major EPA action from 5 U.S.C. §§ 553-557 and
706 of the Administrative Procedure Act (“APA”), but
not the program here, to which the APA still applies.
The questions presented are:
1. Whether Williams could have petitioned for
review using non-record rebuttal evidence within 60
days of EPA’s initial action.
2. Whether the Act required Williams to petition
for review within 60 days of EPA’s initial action.
ii
PARTIES TO THE PROCEEDING
Petitioner here and in the court of appeals is Peter
Williams, who used the trade name New Era Group in
his application at issue here.
The respondents here and in the court of appeals
are the federal Environmental Protection Agency and
its Administrator—Michael S. Regan—in his official
capacity.
RULE 29.6 STATEMENT
Petitioner is a natural persons with no parent
companies and no outstanding stock.
STATEMENT OF RELATED CASES
For purposes of this Court’s Rule 14.1(b)(iii), this
case arises from and is related to the following
proceedings in the U.S. Court of Appeals for the
District of Columbia Circuit and this Court:
• Williams v. Envtl. Prot. Agency, No. 22-1314 (D.C.
Cir.). Dismissed July 7, 2023.
• In re Williams, No. 23-1269 (D.C. Cir.). Dismissed
December 21, 2023.
• Williams v. Envtl. Prot. Agency, No. 23-1340 (D.C.
Cir.). Docketed December 21, 2023; pending.
iii
TABLE OF CONTENTS
Questions Presented ................................................... i
Parties to the Proceeding ........................................... ii
Rule 29.6 Statement ................................................... ii
Statement of Related Cases ....................................... ii
Appendix .................................................................... iv
Table of Authorities................................................... vi
Petition for Writ of Certiorari .................................... 1
Opinions Below ........................................................... 1
Jurisdiction ................................................................. 1
Constitutional and Statutory Provisions Involved ... 1
Statement of the Case ................................................ 1
Reasons to Grant the Writ ......................................... 3
I. Review of EPA’s initial denial was not
available with Williams’ new information by
June 6, 2022. ........................................................ 4
A. Even if not constitutionally required,
prudential considerations warranted
giving EPA an opportunity to apply its
new-entrant rule to Williams’ facts. ............. 5
B. The APA and § 307(d) apply different
timing criteria to EPA’s action—and
inaction—on administrative petitions. ......... 8
1. The APA applies outside § 307(d)........... 8
2. The APA and § 307(d) apply different
timing to administrative petitions for
reconsideration. ..................................... 11
II. Even if Williams could petition by June 6,
2022, § 307 did not require it. ............................ 13
A. EPA never published its denial, so the 60
days never began to run. ............................. 13
iv
B. Williams can challenge EPA’s inaction on
his administrative petition here. ................ 15
1. EPA’s issuance of the 2023 allocation
without action on the administrative
petition constructively denied the
petition, triggering a new. .................... 16
2. § 706(1) authorizes granting
Williams’ application without further
EPA action. ............................................ 17
3. The district courts lack jurisdiction to
issue merits relief.................................. 18
III. Thie Questions Presented are important,
recurring, and squarely presented. ................... 20
Conclusion ................................................................ 21
APPENDIX
RMS of Georgia, LLC v. Envtl. Prot. Agency,
Nos. 22-1025, 22-1313, 22-1314 (D.C. Cir.
July 7, 2023) ....................................................... 1a
Letter from Cynthia A. Newburg, Director,
Stratospheric Protection Division,
Environmental Protection Agency, to Peter
Williams (Mar. 31, 2022) ................................... 4a
Phasedown of Hydrofluorocarbons: Notice of
2022 Set-Aside Pool Allowance Allocations
for Production and Consumption of
Regulated Substances under the American
Innovation and Manufacturing Act of 2020,
87 Fed. Reg. 19,683 (Apr. 5, 2022) (excerpt) ..... 7a
In re Williams, No. 23-1269 (D.C. Cir. Dec. 21,
2023) ................................................................... 9a
Williams v. Envtl. Prot. Agency, No. 22-1314
(D.C. Cir. Oct. 26, 2023) (en banc)................... 10a
v
Williams v. Envtl. Prot. Agency, No. 22-1314
(D.C. Cir. Oct. 26, 2023) (panel) ...................... 11a
U.S. CONST. art. II, § 2 ........................................... 12a
U.S. CONST. amend. I ............................................. 12a
5 U.S.C. § 551(13) ................................................... 13a
5 U.S.C. § 553(e) ..................................................... 13a
5 U.S.C. § 555(b), (e) ............................................... 13a
5 U.S.C. § 559 ......................................................... 14a
5 U.S.C. § 702 ......................................................... 14a
5 U.S.C. § 703 ......................................................... 15a
5 U.S.C. § 704 ......................................................... 16a
5 U.S.C. § 705 ......................................................... 16a
5 U.S.C. § 706 ......................................................... 16a
28 U.S.C. § 1651 ..................................................... 17a
28 U.S.C. § 2201(a) ................................................. 18a
42 U.S.C. § 7604(a) ................................................. 18a
42 U.S.C. § 7607(b) ................................................. 19a
42 U.S.C. § 7607(d) ................................................. 21a
42 U.S.C. § 7675(e)(2)(D)........................................ 29a
42 U.S.C. § 7675(k)(1) ............................................ 29a
40 C.F.R. § 84.3 (excerpt) ....................................... 30a
40 C.F.R. § 84.11 .................................................... 30a
40 C.F.R. § 84.15(c) ................................................ 33a
EPA Office of Air Quality Planning and
Standards, EPA Process Manual for
Responding to Requests Concerning
Applicability and Compliance Requirements
of Certain Clean Air Act Stationary Source
Programs (July 2020) (excerpt) ....................... 34a
Williams New-Entrant Application (excerpt) ....... 35a
Williams Declaration (Apr. 24, 2023) .................... 39a
vi
TABLE OF AUTHORITIES
Cases
Abbott Labs. v. Gardner,
387 U.S. 136 (1967) ......................................... 6, 15
Am. Dairy of Evansville, Inc. v. Bergland,
627 F.2d 1252 (D.C. Cir. 1980) ...................... 17-18
Amoco Oil Co. v. EPA,
501 F.2d 722 (D.C. Cir. 1974) .......................... 9-10
Appalachian Power Co. v. EPA,
251 F.3d 1026 (D.C. Cir. 2001) ........................... 13
Arizona v. Inter Tribal Council of Arizona, Inc.,
570 U.S. 1 (2013) ................................................. 17
Ass’n of Battery Recyclers v. EPA,
716 F.3d 667 (D.C. Cir. 2013) ............................. 13
API v. EPA,
706 F.3d 474 (D.C. Cir. 2013) ............................. 13
BellSouth Corp. v. FCC,
162 F.3d 678 (D.C. Cir. 1998) ............................... 5
Bennett v. Spear,
520 U.S. 154 (1997) ............................................. 15
Clean Air Implementation Project v. EPA,
150 F.3d 1200 (D.C. Cir. 1998) ........................... 13
Coal. for Sustainable Res., Inc. v. United States
Forest Serv., 259 F.3d 1244 (10th Cir. 2001) ..... 16
Cohen v. Beneficial Indus. Loan Corp.,
337 U.S. 541 (1949) ............................................. 15
Colorado v. Dep’t of Interior,
880 F.2d 481 (D.C. Cir. 1989) ............................. 17
Dickinson v. Zurko,
527 U.S. 150 (1999) ............................................. 10
Eagle-Picher Indus., Inc. v. United States Envtl.
Prot. Agency, 759 F.2d 905 (D.C. Cir. 1985) ........ 6
vii
Eisen v. Carlisle & Jacquelin,
417 U.S. 156 (1974) ............................................. 15
El Rio Santa Cruz Neighborhood Health Ctr. v.
United States HHS, 396 F.3d 1265 (D.C. Cir.
2005) .................................................................... 20
Energy Future Coal. v. EPA,
793 F.3d 141 (D.C. Cir. 2015) ............................... 6
Env’t Def. Fund v. Thomas,
870 F.2d 892 (2d Cir. 1989) ................................ 18
Envtl. Integrity Project v. EPA,
864 F.3d 648 (D.C. Cir. 2017) ............................. 10
Ethyl Corp. v. EPA,
541 F.2d 1 (D.C. Cir. 1976) ................................. 10
Friedman v. FAA,
841 F.3d 537 (D.C. Cir. 2016) ............................. 16
Growth Energy v. EPA,
5 F.4th 1 (D.C. Cir. 2021) ................................... 13
Harrison v. PPG Indus.,
446 U.S. 578 (1980) ............................................. 13
Her Majesty the Queen v. United States EPA,
912 F.2d 1525 (D.C. Cir. 1990) ............................. 6
Hercules, Inc., v. EPA,
938 F.2d 276 (D.C. Cir. 1991) ............................. 17
Home Builders Ass’n v. United States Army Corps
of Eng’rs, 335 F.3d 607 (7th Cir. 2003) .............. 10
In re Williams,
No. 23A631 (U.S. 2024)......................................... 1
Interstate Commerce Comm’n v. Bhd. of
Locomotive Eng’rs, 482 U.S. 270 (1987) ......... 9, 11
John Doe, Inc. v. DEA,
484 F.3d 561 (D.C. Cir. 2007) ............................... 6
viii
Long v. United States IRS,
693 F.2d 907 (9th Cir. 1982) ............................... 17
Louisiana Envtl. Action Network v. Browner,
87 F.3d 1379 (D.C. Cir. 1996) ............................... 5
Maracich v. Spears,
570 U.S. 48 (2013) ............................................... 17
Mexichem Specialty Resins, Inc. v. EPA,
787 F.3d 544 (D.C. Cir. 2015) .................. 11, 19-20
Miller v. Harco Nat’l Ins. Co.,
274 Ga. 387 (2001) ................................................ 5
Motor & Equip. Mfrs. Ass’n v. Nichols,
142 F.3d 449 (D.C. Cir. 1998) ............................. 13
Nat’l Asphalt Pavement Ass’n v. Train,
539 F.2d 775 (D.C. Cir. 1976) ............................. 10
Nat’l Ass’n of Home Builders v. Defs. of Wildlife,
551 U.S. 644 (2007) ............................................. 10
Nat’l Ass’n of Home Builders v. U.S. Army Corps
of Engrs., 417 F.3d 1272 (D.C. Cir. 2005) .......... 15
Nat’l Labor Relations Bd. Union v. Fed. Labor
Relations Auth., 834 F.2d 191 (D.C. Cir. 1987) ... 9
Nicholson v. Brown,
599 F.2d 639 (5th Cir.), rehearing denied, 605
F.2d 209 (5th Cir. 1979). ....................................... 8
North Carolina v. EPA,
531 F.3d 896 (D.C. Cir. 2008) ............................. 13
Payne Enters., Inc. v. United States,
837 F.2d 486 (D.C. Cir. 1988) ............................. 17
Pub. Citizen Health Research Grp. v. Comm’r,
Food & Drug Admin., 740 F.2d 21 (D.C. Cir.
1984) ...................................................................... 7
RMS of Ga., LLC v. United States EPA,
64 F.4th 1368 (11th Cir. 2023) ........................... 19
ix
Roelofs v. Sec’y of Air Force,
628 F.2d 594 (D.C. Cir. 1980) ............................... 8
Schlesinger v. Councilman,
420 U.S. 738 (1975) ............................................. 10
Sierra Club v. Browner,
130 F. Supp. 2d 78, 90 (D.D.C. 2001) ................. 18
Sierra Club v. Peterson,
228 F.3d 559, 568 (5th Cir. 2000) ....................... 16
Sierra Club v. Thomas,
783, 792-97 (D.C. Cir. 1987) ..................... 9, 17, 19
West Penn Power Co. v. United States Envtl. Prot.
Agency, 860 F.2d 581, 588 (3d Cir. 1988) ........... 12
Whitman v. Am. Trucking Ass’ns,
531 U.S. 457, 479-80 (2001) .................................. 6
Winter v. Natural Resources Def. Council, Inc.,
555 U.S. 7, 51 (2008) ........................................... 18
Women’s Equity Action League v. Cavazos,
906 F.2d 742, 751 (D.C. Cir. 1990) ..................... 20
Statutes
U.S. CONST. art. II, § 2 ............................................... 3
28 U.S.C. § 1254(1) ..................................................... 1
Administrative Procedure Act
5 U.S.C. §§551-706 ...................... 4, 8-12, 15, 17-20
5 U.S.C. § 551(1)(F)-(G) .............................................. 8
5 U.S.C. § 551(13) ........................................... 9, 17, 19
5 U.S.C. § 553(a)(1)-(2) ............................................... 8
5 U.S.C. § 554(a)(4) .................................................... 8
5 U.S.C. § 555(b) ......................................................... 8
5 U.S.C. § 559 ........................................................... 10
5 U.S.C. § 701(b)(1)(F)-(G) ......................................... 8
5 U.S.C. § 703 ........................................................... 10
x
5 U.S.C. § 704 ........................................................... 15
5 U.S.C. § 706 ....................................................... 8, 12
5 U.S.C. § 706(1) ............................ 4, 8-9, 17-18, 20-21
5 U.S.C. § 706(2)(A) .................................................. 10
Clean Air Act,
42 U.S.C. §§ 7401-7675 .......... 1, 3-4, 6, 8-11, 13-14
42 U.S.C. § 7604(a) ............................................. 17, 20
42 U.S.C. § 7604(a)(2) ........................... 1, 4, 17-18, 21
42 U.S.C. § 7607(b)(1) ............... 1, 3-4, 9-14, 17-18, 21
42 U.S.C. § 7607(d)(1) ............................................. 8-9
42 U.S.C. § 7607(d)(1)(a)-(u) ...................................... 4
42 U.S.C. § 7607(d)(5)(iv) ......................................... 12
42 U.S.C. § 7607(d)(7)(B) ..................................... 9, 12
Legislative History
S. REP. NO. 101-228 (1989) ....................................... 19
Rules, Regulations and Orders
40 C.F.R. § 84.15(c)(2) ............................................. 6-7
86 Fed. Reg. 10,567, 10,568-81 (2021) ..................... 14
Phasedown of Hydrofluorocarbons: Notice of 2022
Set-Aside Pool Allowance Allocations for
Production and Consumption of Regulated
Substances under the American Innovation
and Manufacturing Act of 2020, 87 Fed. Reg.
19,683 (Apr. 5, 2022) ............................................. 2
Phasedown of Hydrofluorocarbons: Notice of 2023
Allowance Allocations for Production and
Consumption of Regulated Substances under
the American Innovation and Manufacturing
Act of 2020, 87 Fed. Reg. 61,314 (Oct. 11,
2022) ...................................................................... 4
xi
Other Authorities
EPA Office of Air Quality Planning and
Standards, EPA Process Manual for
Responding to Requests Concerning
Applicability and Compliance Requirements of
Certain Clean Air Act Stationary Source
Programs (July 2020) ..................................... 13-14
Peter H.A. Lehner, Judicial Review of
Administrative Inaction, 83 COLUM. L. REV.
627 (1983) ............................................................ 16
Daniel P. Selmi, Jurisdiction To Review Agency
Inaction Under Federal Environmental Law,
72 IND. L.J. 65 (1996) .......................................... 16
1
PETITION FOR WRIT OF CERTIORARI
Peter Williams respectfully petitions this Court
for a writ of certiorari to the U.S. Court of Appeals for
the District of Columbia Circuit to review that Court’s
dismissal of his Clean Air Act petition for review as
untimely under 42 U.S.C. § 7607(b)(1) and—to the
extent he seeks to compel respondent Environmental
Protection Agency and its Administrator (collectively,
“EPA”) to respond to Williams’ long-pending petition
for administrative reconsideration of EPA’s denying
his application as a new-market entrant—as filed in
the wrong court under 42 U.S.C. § 7604(a)(2).
OPINIONS BELOW
The District of Columbia Circuit’s unreported
order is reprinted in the Appendix (“App”) at 1a.
JURISDICTION
On July 7, 2023, the District of Columbia Circuit
issues its Order dismissing the petition for review. By
orders dated October 26, 2023, App:10a-11a, the panel
and en banc court denied petitioners’ timely petition
for rehearing. By order dated January 11, 2024, the
Circuit Justice extended the time within which to
petition for a writ of certiorari to March 24, 2024. In
re Williams, No. 23A631 (U.S. 2024). The Court of
Appeals has jurisdiction under 42 U.S.C. § 7607(b)(1).
This Court has jurisdiction under 28 U.S.C. § 1254(1).
CONSTITUTIONAL AND STATUTORY
PROVISIONS INVOLVED
The Appendix sets out the relevant constitutional,
statutory, and regulatory provisions. App:12a-34a.
STATEMENT OF THE CASE
This is a case of mistaken identity in which
Williams applied as an individual, but EPA chose to
interpret his application to be on behalf of a defunct
2
corporation. Through counsel, Williams quickly
petitioned EPA administratively to reconsider EPA’s
error, EPA has not acted on the administrative
petition for reconsideration in almost two years.
In 2009, Williams registered neweragroupinc.com
as an internet domain and had the “The New Era
Group, Inc.” logo on his letterhead prepared. Williams
Decl. ¶7 (App:40a), but he never incorporated his
consultancy. He used his logo, neweragroupinc.com
email, and “New Era Group” trade name in EPA
comments and communications with EPA prior to the
incorporation of New Era Group, Inc., of Georgia. Id.
¶¶9-10 (App:40a).
Although Williams applied for hydrofluorocarbon
(“HFC”) allocations as an individual (App:37a-38a),
EPA interpreted his “dba” tradename (“New Era
Group”) as referring to a defunct Georgia corporation,
New Era Group, Inc. and denied his application by
letter dated March 31, 2022 (App:4a-6a) both as
ineligible given New Era Group, Inc.’s relationship
with an existing market participant (RMS of Georgia)
and for lacking corporate information that EPA would
require only for corporate applicants. EPA announced
(but did not publish) its denial of Williams’ application
in the Federal Register notice for the 2022 allocations.
Phasedown of Hydrofluorocarbons: Notice of 2022 SetAside Pool Allowance Allocations for Production and
Consumption of Regulated Substances under the
American Innovation and Manufacturing Act of 2020,
87 Fed. Reg. 19,683 (Apr. 5, 2022) (App:7a-8a).
Through counsel, on April 20, 2022, Williams
petitioned EPA administratively to correct EPA’s
error, but EPA has never acted on his petition.
Williams supplemented his administrative petition
through counsel by letter dated December 12, 2022,
3
and RMS of Georgia—the company with which EPA
believed Williams or New Era Group, Inc. had
corporate relations—administratively petitioned EPA
to correct its error by letter dated December 29, 2022.
EPA did not act on the pending administrative
petition in time to include Williams in the 2023
allocation. Phasedown of Hydrofluorocarbons: Notice
of 2023 Allowance Allocations for Production and
Consumption of Regulated Substances under the
American Innovation and Manufacturing Act of 2020,
87 Fed. Reg. 61,314 (Oct. 11, 2022). EPA similarly
excluded Williams from the 2024 allocation without
action on his pending petition for administrative
reconsideration.
On December 12, 2022, Williams petitioned this
Court for review of EPA’s 2023 allocation as
constructively denying his administrative petition. He
also argued, in the alternative, that the Appointments
Clause required the EPA staff who make these billiondollar disbursements to be confirmed by the Senate. A
motions panel dismissed Williams’s petition for
review as an untimely challenge to EPA’s action in the
Federal Register on April 5, 2022 (App:2a) and denied
as moot Williams’ motion for summary vacatur.
REASONS TO GRANT THE WRIT
The Clean Air Act’s control over so many facets of
the national economy and even daily life make it
critical that federal courts ensure the judicial review
that Congress enacted, consistent with constitutional
and prudential guidelines. Given that so much of the
litigation in the Act funnels through the District of
Columbia Circuit as “nationally applicable,” see 42
U.S.C. § 7607(b)(1), this Court should not wait for
circuit splits to arise when the District of Columbia
4
Circuit errs. The Court should grant the writ to review
at least four issues in this action.
1. The court of appeals applied cases under the
Clean Air Act generally, without distinguishing the
bulk of major EPA actions that fall under the Act’s
abbreviated review procedures under § 307(d), see 42
U.S.C. § 7607(d)(1)(a)-(u) (listing the EPA actions
subject to § 307(d)) vis-à-vis EPA actions like this
matter that remain subject to the Administrative
Procedure Act, 5 U.S.C. §§ 551-706 (“APA”), instead.
See Section I.B.1, infra.
2. That “APA versus § 307(d)” distinction bears
on the timing of judicial review of EPA action on
petitions for administrative reconsideration. See
Section I.B.2, infra.
3. This action requires reviewing when agency
inaction can be reviewed as agency action, including a
split in circuit authority on the degree of agency
inaction required to review inaction as action under
the APA. See Section II.B.1, infra.
4. This action also requires distinguishing
between venue and jurisdiction on the issue of which
courts may or must address APA claims for EPA
action unlawfully withheld versus EPA action
unlawfully delayed under 5 U.S.C. § 706(1) and 42
U.S.C. §§ 7604(a)(2), 7607(b)(1). See Sections II.B.2II.B.3, infra.
These important reasons justify this Court’s resolving
these crucial issues expeditiously.
I. REVIEW OF EPA’S INITIAL DENIAL WAS
NOT AVAILABLE WITH WILLIAMS’ NEW
INFORMATION BY JUNE 6, 2022.
Before finding a challenge to EPA’s initial denial
untimely for not being filed within 60 days of the
5
Federal Register notice on April 5, 2022, a court first
must find that—when Williams filed his petition for
administrative reconsideration—a challenge was ripe.
A lack of constitutional or prudential ripeness would
stall the 60-day clock until the claim ripened:
We have held in other cases involving the
confrontation between a statutory bar and a
claim not yet prudentially ripe that a time
limitation on petitions for judicial review can
run only against challenges ripe for review.
Our reading of 42 U.S.C. § 7607(b) does not
contradict this precedent.
Louisiana Envtl. Action Network v. Browner, 87 F.3d
1379, 1385 (D.C. Cir. 1996) (internal quotations and
alterations omitted). The factual elements of EPA’s
denial of Williams’ application require not only the
factual development that his administrative petition
provided, but potentially also EPA’s application of its
unique new-entrant rule to those facts.
A. Even if not constitutionally required,
prudential considerations warranted
giving EPA an opportunity to apply its
new-entrant rule to Williams’ facts.
When EPA staff revisit the issue aided by counsel,
they will abandon the legally impossible conflation of
Williams with a corporation.1 Until then, however, a
court would have no factual background against
“An individual doing business under a trade name is clearly
a sole proprietor distinct under Georgia law from a corporation
in which that individual holds stock.” Miller v. Harco Nat’l Ins.
Co., 274 Ga. 387, 390 (2001); see also BellSouth Corp. v. FCC, 162
F.3d 678, 684 (D.C. Cir. 1998) (“it is obvious that there are
differences between a corporation and an individual under the
law”).
1
6
which to review EPA’s implausible sua sponte
analysis applying the corporate-affiliation test in 40
C.F.R. § 84.15(c)(2): “Where the record provides
inadequate factual information to resolve novel legal
claims, the court can dismiss those claims as unripe.”
John Doe, Inc. v. DEA, 484 F.3d 561, 567 (D.C. Cir.
2007). For that reason, EPA’s initial action might
remain unripe for review without EPA’s response to
Williams’ administrative petition.
Ripeness has both a constitutional element and a
prudential element, and prudential ripeness has two
elements: “the fitness of the issues for judicial decision
and the hardship to the parties of withholding court
consideration.” Abbott Labs. v. Gardner, 387 U.S. 136,
149 (1967). For statutes like the Clean Air Act with
expedited review provisions, courts can disregard the
hardship prong. Whitman v. Am. Trucking Ass’ns, 531
U.S. 457, 479-80 (2001); Eagle-Picher Indus., Inc. v.
United States Envtl. Prot. Agency, 759 F.2d 905, 918
(D.C. Cir. 1985) (“no purpose is served by proceeding
to the second prong”). The fitness prong involves at
least three issues:
We consider such factors as whether the issue
presented
is
purely
legal,
whether
consideration of the issue would benefit from
a more concrete setting, and whether the
agency’s action is sufficiently final.
Her Majesty the Queen v. United States EPA, 912 F.2d
1525, 1532 (D.C. Cir. 1990); Energy Future Coal. v.
EPA, 793 F.3d 141, 146 (D.C. Cir. 2015) (same). While
the first and third criteria may be sufficiently met
here, the second is not.
7
The missing aspect of the fitness prong denies
both EPA and the Court the opportunity to fulfil their
respective roles:
The agency is denied full opportunity to apply
its expertise and to correct errors or modify
positions in the course of a proceeding, the
integrity of the administrative process is
threatened by piecemeal review of the
substantive underpinnings of [agency action],
and judicial economy is disserved because
judicial review might prove unnecessary if
persons seeking such review are able to
convince the agency to alter a tentative
position. Such considerations weigh strongly
when the court is asked to rule on a factual
question particularly within the agency’s
bailiwick as opposed to a purely legal question
within the primary competence of the courts.
Pub. Citizen Health Research Grp. v. Comm’r, Food &
Drug Admin., 740 F.2d 21, 31-32 (D.C. Cir. 1984).
Prior to Williams’ administrative petition, the factual
record was incomplete regarding the relationship that
EPA imagined to exist between Williams and RMS
through New Era Group, Inc.
The Court could reject EPA’s position based on the
purely legal issue that natural persons cannot do
business as corporations. By contrast, it would require
facts not in the record without Williams’ administrative petition for the Court to uphold EPA’s
rationale for sua sponte finding that three entities—
Williams, New Era Group, Inc., and RMS of Georgia,
LLC—are corporate affiliates within the meaning of
40 C.F.R. § 84.15(c)(2). Under Public Citizen Health
Research Group, supra, EPA deserved the opportunity
either to correct its error or to explain its unique view
8
of corporate affiliation. EPA has proved recalcitrant in
refusing either to affirm or to correct its initial error
after numerous requests from Williams and RMS.
B. The APA and § 307(d) apply different
timing criteria to EPA’s action—and
inaction—on administrative petitions.
Perhaps because most Clean Air Act litigation has
involved the major programs listed in § 307(d)(1),
there is not much law on how the APA applies to EPA
action outside § 307(d). While § 307(d)’s procedures
are a form of “APA-lite,” the two standards obviously
differ in some ways, or Congress would not have taken
the time to draft § 307(d)’s abbreviated procedures. As
shown in this section, the APA continues to apply in
matters outside § 307(d), and the two procedures—the
APA and § 307(d)—impose different standards to this
matter.
1. The APA applies outside § 307(d).
The APA requires a response to Williams’ petition
for administrative reconsideration and provides
judicial review to “compel agency action unlawfully
withheld.” 5 U.S.C. §§ 555(b), 706(1).2 That future
action is the final agency action that the APA reviews
when an agency denies an administrative petition,
and that final agency action had not occurred by June
6, 2022.
By way of example, even the military—which is exempt from
so much of the APA, 5 U.S.C. §§ 551(1)(F)-(G), 553(a)(1)-(2),
554(a)(4), 701(b)(1)(F)-(G)—is subject to judicial review under 5
U.S.C. § 706 for violating 5 U.S.C. § 555(b). Roelofs v. Sec’y of Air
Force, 628 F.2d 594, 600 (D.C. Cir. 1980); accord Nicholson v.
Brown, 599 F.2d 639, 648 n.9. (5th Cir.), rehearing denied, 605
F.2d 209 (5th Cir. 1979).
2
9
Specifically, under the APA, a “reviewing court
shall … compel agency action unlawfully withheld or
unreasonably delayed.” 5 U.S.C. § 706(1). The action
reviewed when EPA acts (or fails to act3) on a petition
for administrative reconsideration under the APA is
the latter act (or failure to act) of withholding or
denying reconsideration, not the original action that a
petitioner asks an agency to reconsider. Interstate
Commerce Comm’n v. Bhd. of Locomotive Eng’rs, 482
U.S. 270, 284-85 (1987); Nat’l Labor Relations Bd.
Union v. Fed. Labor Relations Auth., 834 F.2d 191,
195-196 (D.C. Cir. 1987); cf. Sierra Club v. Thomas,
783, 792-97 (D.C. Cir. 1987). Simply put, by June 6,
2022, § 307(b)(1)’s 60-day clock had not begun to run
on EPA’s failure to grant Williams’ petition for
administrative reconsideration.4
Prior to the 1977 enactment of § 307(d)’s
abbreviated procedures and partial APA exemption,5
the APA governed judicial review under § 307(b)(1):
Being silent on the scope of judicial review,
the Clean Air Act incorporates the APA’s
mandate that agency “action, findings, and
conclusions” be struck down if they are
“arbitrary, capricious, an abuse of discretion,
or otherwise not in accordance with law.”
3
Agency “action” includes inaction. 5 U.S.C. § 551(13).
If § 307(d) applied, the 60-day window would have begun on
April 5, 2022. See 42 U.S.C. § 7607(d)(7)(B). But since § 307(d)
does not apply, see Section I.B, supra, § 307(d)(7)(B) does not
apply either.
4
“The provisions of section 553 through 557 and section 706
of title 5 shall not, except as expressly provided in this
subsection, apply to actions to which this subsection applies.” 42
U.S.C. § 7607(d)(1).
5
10
Amoco Oil Co. v. EPA, 501 F.2d 722, 731 (D.C. Cir.
1974) (quoting 5 U.S.C. § 706(2)(A)); accord Ethyl
Corp. v. EPA, 541 F.2d 1, 33-35 (D.C. Cir. 1976); Nat’l
Asphalt Pavement Ass’n v. Train, 539 F.2d 775, 786
(D.C. Cir. 1976). For Clean Air Act proceedings
outside § 307(d), the Clean Air Act remains “silent on
the scope of judicial review” and thus the APA still
governs those Clean Air Act actions.6
For statutes—such as the Clean Air Act—that are
or were enacted after the APA’s enactment, the APA
applies unless expressly exempted. See 5 U.S.C. § 559;
Dickinson v. Zurko, 527 U.S. 150, 154-55 (1999). The
Clean Air Act expressly exempts only those EPA
actions subject to the provisions of § 307(d) from the
indicated provisions of the APA (i.e., 5 U.S.C. §§ 553557, 706). See id.; Envtl. Integrity Project v. EPA, 864
F.3d 648, 649 (D.C. Cir. 2017) (Clean Water Act). Even
if this were a close case (and it is not), repeals by
implication are disfavored, Nat’l Ass’n of Home
Builders v. Defs. of Wildlife, 551 U.S. 644, 662 (2007),
and “this canon of construction applies with particular
force when the asserted repealer would remove a
remedy otherwise available.” Schlesinger v.
Councilman, 420 U.S. 738, 752 (1975). By negative
implication of the Clean Air Act’s express terms in §
307(d), as well as pursuant to 5 U.S.C. § 559, the APA
generally and 5 U.S.C. 555, 706 specifically remain
The APA’s venue provision explains why the Clean Air Act’s
APA review occurs in the Court of Appeals under § 307(b)(1),
rather than the usual venue in district courts. See 5 U.S.C. § 703
(discussing “special statutory review proceeding relevant to the
subject matter in a court specified by statute”).
6
11
applicable to EPA action under the Clean Air Act that
falls outside the provisions of § 307(d).7
2. The APA and § 307(d) apply different
timing to administrative petitions
for reconsideration.
As general matters of administrative law and
statutory construction, seeking administrative reconsideration based on additional evidence or other
added information renders the initial agency action
nonfinal for purposes of judicial review, and review is
applied instead to the agency action on
reconsideration. See Bhd. of Locomotive Eng’rs, 482
U.S. at 284-85. That two-faceted statement of
administrative law is only half true to the portions of
the Clean Air Act where the APA applies.
In 1990, Congress amended § 307(b)(1) to provide
that the pendency of administrative petitions for
reconsideration does not render EPA action nonfinal
or alter the date for judicial review of that EPA action:
The filing of a petition for reconsideration …
of any otherwise final rule or action shall not
affect the finality of such rule or action for
purposes of judicial review nor extend the
time within which a petition for judicial
review of such rule or action under this section
may be filed, and shall not postpone the
effectiveness of such rule or action.
Then-Judge Kavanaugh made a similar point in a partial
dissent in Mexichem Specialty Resins, Inc. v. EPA, 787 F.3d 544
(D.C. Cir. 2015), where he argued that 5 U.S.C. § 705—which §
307(d) does not displace—continues to apply to EPA actions
covered by § 307(d). Id. at 562 (Kavanaugh, J., dissenting in
part).
7
12
42 U.S.C. § 7607(b)(1). The amendment abrogated
West Penn Power Co. v. United States Envtl. Prot.
Agency, 860 F.2d 581, 588 (3d Cir. 1988), which held
that the Court of Appeals jurisdictionally could not
review the otherwise final EPA action while a petition
for administrative reconsideration was pending.
The 1990 amendments thus stand—at a
minimum, and Williams respectfully submits also at
a maximum—for the proposition that EPA’s action
was sufficiently final for statutory subject-matter
jurisdiction on June 6, 2022. But see Section I.A, supra
(EPA action was unripe). While the 1990 amendment
thus removed the non-finality half of the traditional
administrative-law framework, it does not—and could
not consistent with due process—eliminate the second
half (namely, that the agency action on the petition for
reconsideration is reviewable under 5 U.S.C. § 706.
Even under § 307(d)’s truncated administrative
procedures, EPA must “keep the record of such
proceeding open for thirty days after completion of the
proceeding to provide an opportunity for submission
of rebuttal and supplementary information.” Id. §
7607(d)(5)(iv). By petitioning for administrative
reconsideration on April 20, 2022, with the corrective
information that he applied as a natural person, not
as a corporation, Williams complied with the spirit of
§ 307(d). If § 307(d) had applied, the 60-day window
would have begun on April 5, 2022. See 42 U.S.C. §
7607(d)(7)(B). But since § 307(d) does not apply, see
Section I.B.1, supra, § 307(d)(7)(B) does not apply
either. As such, Williams has no 60-day problem with
seeking review of APA action or inaction that EPA
takes on his still-pending petition.
13
II. EVEN IF WILLIAMS COULD PETITION BY
JUNE 6, 2022, § 307 DID NOT REQUIRE IT.
Assuming arguendo that ripeness presented no
barrier to Williams’ having petitioned for review by
June 6, 2022, that would not necessarily make
Williams’ petition filed by December 12, 2022,
untimely for two reasons. The first reason is mundane
and hinges on what event triggers the 60-day clock.
The second is a complex question of administrative
law applied to the 1990 amendments to § 307(b)(1) for
the types of EPA action that fall outside § 307(d). Both
are important, given the Clean Air Act’s impact on the
national economy and day-to-day life.
A. EPA never published its denial, so the
60 days never began to run.
Under §307(b)(1), the 60-day deadline to petition
for review runs from publication of the EPA action in
the Federal Register. 42 U.S.C. §7607(b)(1); Harrison
v. PPG Indus., 446 U.S. 578, 605 & n.7 (1980)
(Stevens, dissenting).8 EPA has made this clear for
applicability determinations:
OAQPS tracking coordinator is also
responsible for providing notice of such
responses in the Federal Register on a periodic
See also Growth Energy v. EPA, 5 F.4th 1, 12 (D.C. Cir.
2021) (“Clean Air Act requires that challenges to a final EPA
action be filed within sixty days of its publication in the Federal
Register or the occurrence of valid after-arising grounds”)
(emphasis added); Ass’n of Battery Recyclers v. EPA, 716 F.3d
667, 671 (D.C. Cir. 2013); API v. EPA, 706 F.3d 474, 477 (D.C.
Cir. 2013); North Carolina v. EPA, 531 F.3d 896, 905 (D.C. Cir.
2008); Appalachian Power Co. v. EPA, 251 F.3d 1026, 1032 (D.C.
Cir. 2001); Clean Air Implementation Project v. EPA, 150 F.3d
1200, 1204 (D.C. Cir. 1998); Motor & Equip. Mfrs. Ass’n v.
Nichols, 142 F.3d 449, 459 (D.C. Cir. 1998).
8
14
basis. Federal Register publication of final
actions like applicability determinations is
particularly important, as such publication
starts a 60-day period for judicial challenges
to EPA’s decision.
EPA Office of Air Quality Planning and Standards,
EPA Process Manual for Responding to Requests
Concerning
Applicability
and
Compliance
Requirements of Certain Clean Air Act Stationary
Source Programs, at 47 (July 2020) (App:34a). For the
applicability determinations that are an archetypal
non-rule final EPA action under the Clean Air Act,
EPA publishes an annual Federal Register notice that
abstracts each EPA letter and links to the full letters.
See, e.g., 86 Fed. Reg. 10,567, 10,568-81 (2021). EPA
neither published nor even abstracted the EPA action
on Williams’ application in the Federal Register, see
App:7a-8a, so the 60-day clock has not even begun to
run.
Even if a letter recipient like Williams is on notice,
§307(b)(1) sets a single deadline for all interested
parties, based on public notice in the Federal Register,
not based on private notice to individual parties. See
42 U.S.C. §7607(b)(1). EPA’s Federal Register notice
does not specify the basis for denying Williams’
application, as evidenced by the fact that RMS did not
know about EPA’s action—which regulatorily tied
RMS to Williams—until Williams filed EPA’s letter
with his petition for review in this matter. And RMS
noticed the letter only because RMS also challenged
the same EPA action for different reasons. If the 60day window has not started to run, Williams’ petition
for review was not untimely.
15
B. Williams can challenge EPA’s inaction
on his administrative petition here.
With exceptions not relevant here, the APA
requires final agency action before a party can seek
judicial review. 5 U.S.C. § 704. While EPA did not act
on Williams’ long-pending petition for administrative
reconsideration, EPA did issue the 2023 allocations
without deciding Williams’ eligibility issue. Williams
contends that the indisputably final EPA action on the
2023 allocation qualifies as a sufficiently final EPA
action on his application and administrative petition
for him to seek judicial review as a denial.
Courts interpret finality in a “pragmatic” and
“flexible” way, Abbott Labs., 387 U.S. at 149-50; Nat’l
Ass’n of Home Builders v. U.S. Army Corps of Engrs.,
417 F.3d 1272, 1279 (D.C. Cir. 2005) (same), “rather
than a technical construction.” Cohen v. Beneficial
Indus. Loan Corp., 337 U.S. 541, 546 (1949)
(construing 28 U.S.C. §1291); Mathews v. Eldridge,
424 U.S. 319, 331 n.11 (1976) (analogizing Cohen and
§1291 to statutory finality). Courts must evaluate
“competing considerations underlying all questions of
finality—the inconvenience and costs of piecemeal
review on the one hand and the danger of denying
justice by delay on the other.” Eisen v. Carlisle &
Jacquelin, 417 U.S. 156, 171 (1974). Under the
practical definition, EPA has acted with sufficient
finality for Williams to seek judicial review.
Finality has two prongs: (1) a consummated
decisionmaking process, and (2) the agency action is
“one by which rights or obligations have been
determined, or from which legal consequences will
flow.” Bennett v. Spear, 520 U.S. 154, 177-78 (1997)
(interior quotations omitted). Both conditions are met:
16
•
First, although there has been no consummated
decision on Williams’ application, EPA did
conclude a review of the program and proceeded
to issue the new annual allocations.
• Second, EPA’s decision produced the legal
consequence that Williams did not receive
allocations for 2023.
EPA thus acted with sufficient finality for a court to
review EPA’s action and related inaction.
1. EPA’s issuance of the 2023 allocation
without action on the administrative
petition constructively denied the
petition, triggering a new.
When inaction has the same effect as the denial of
relief, the inaction is sufficiently final for merits
review. See, e.g., Coal. for Sustainable Res., Inc. v.
United States Forest Serv., 259 F.3d 1244, 1251 (10th
Cir. 2001); Sierra Club v. Peterson, 228 F.3d 559, 568
(5th Cir. 2000); Daniel P. Selmi, Jurisdiction To
Review Agency Inaction Under Federal Environmental Law, 72 IND. L.J. 65, 90-102 (1996) (describing
five judicial tests for determining whether agency
inaction is final); Peter H.A. Lehner, Judicial Review
of Administrative Inaction, 83 COLUM. L. REV. 627,
652-55 (1983) (student note); but see Home Builders
Ass’n v. United States Army Corps of Eng’rs, 335 F.3d
607, 616 (7th Cir. 2003) (requiring egregious delay for
mere inaction to convert to denial).
Withholding “formal acknowledgement” of denial
is immaterial if the “practical effect” constitutes a
“constructive denial.” Friedman v. FAA, 841 F.3d 537,
541-42 (D.C. Cir. 2016). By issuing 2023 allocations
without resolving Williams’ pending administrative
petition, EPA constructively denied the petition.
17
Sierra Club v. Thomas, 828 F.2d 783, 793 (D.C. Cir.
1987); Colorado v. Dep’t of Interior, 880 F.2d 481, 48586 (D.C. Cir. 1989); Hercules, Inc., v. EPA, 938 F.2d
276, 282 (D.C. Cir. 1991). Under the circumstances,
inaction can be action. See 5 U.S.C. §551(13).
2. § 706(1) authorizes granting
Williams’ application without
further EPA action.
At least with respect to Clean Air Act issues to
which the APA applies, the panel decision sets up a
false jurisdictional dichotomy between appellate
review of EPA action under § 307(b)(1) and district
court review of EPA inaction under § 304(a)(2). By
using both the phrase “unlawfully withheld” and the
phrase “unreasonably delayed” in the same sentence,
5 U.S.C. § 706(1), the APA recognizes that the two are
not the same. Maracich v. Spears, 570 U.S. 48, 68-70
(2013) (courts should read statutes to avoid
surplusage). Importantly, the 1990 amendments
transferred only the unreasonable-delay component to
the citizen-suit provision, 42 U.S.C. § 7604(a), not the
unlawfully-withheld component.
The APA’s “unlawfully withheld” clause is
synonymous with mandamus. Arizona v. Inter Tribal
Council of Arizona, Inc., 570 U.S. 1, 19 n.10 (2013). At
some point, as this Court and the lower courts have
recognized, a court faced with agency inaction must
decide whether to grant the agency action unlawfully
withheld. Id. (citing 5 U.S.C. § 706(1)); Payne Enters.,
Inc. v. United States, 837 F.2d 486, 494 (D.C. Cir.
1988) (citing Long v. United States IRS, 693 F.2d 907,
910 (9th Cir. 1982)) (requiring declaratory relief); Am.
Dairy of Evansville, Inc. v. Bergland, 627 F.2d 1252,
1262 (D.C. Cir. 1980) (granting interim relief, citing 5
18
U.S.C. § 706(1)). That is a remedy question, not a
jurisdictional question.
Specifically, it is a question of equity, although the
APA codified equitable principles of judicial review.
Under both equity and the APA, courts have broad
powers to craft an equitable resolution:
The essence of equity jurisdiction has been the
power of the Chancellor to do equity and to
[mold] each decree to the necessities of the
particular case. Flexibility rather than
rigidity has distinguished it.
Winter v. Natural Resources Def. Council, Inc., 555
U.S. 7, 51 (2008) (internal quotation marks omitted).
Under all these strands of authority, a reviewing court
plainly can issue the ultimate relief that Williams
seeks, without waiting for EPA to act.
3. The district courts lack jurisdiction
to issue merits relief.
Although the 1990 amendments transferred to the
district courts actions to compel EPA to take certain
nondiscretionary actions, 42 U.S.C. § 7604(a)(2), that
transfer does not apply to compelling final EPA action
that alters existing EPA final agency action
reviewable under 42 U.S.C. § 7607(b)(1). Env’t Def.
Fund v. Thomas, 870 F.2d 892, 899 (2d Cir. 1989);
Sierra Club v. Browner, 130 F. Supp. 2d 78, 90 (D.D.C.
2001). Nor could it. Transferring ultimate relief over
granting a nondiscretionary change to an existing
final EPA action would transfer the Court of Appeals’
exclusive § 307(b)(1) jurisdiction to district courts.
That does not follow from the 1990 amendments to §
304(a)(2) for two reasons.
First, the district courts’ authority does not extend
to review that would affect EPA action reviewable in
19
the courts of appeal. Mexichem Specialty Resins, Inc.
v. EPA, 787 F.3d 544, 553 n.6 (D.C. Cir. 2015) (citing
S. REP. NO. 101-228, at 374 (1989) for proposition that
the 1990 amendments to § 304 abrogated Sierra Club
v. Thomas only “partly”). As the Senate Report makes
clear, inaction that refuses to modify a prior final EPA
action or that itself constitutes a final refusal to act is
reviewable in the courts of appeals:
[W]here adjudication of a challenge to EPA
inaction would effectively require a court to
overturn final action previously taken by the
EPA, jurisdiction over the challenge would
[lie] in the court of appeals under section
307(b)(l). See Indiana & Michigan Electric Co.
v US. EPA, 733 F. 2d 489, 490 (7th Cir. 1984)
(courts of appeals have jurisdiction over cases
where a complaint about agency inaction is
“embedded” in a challenge to agency action).
In addition, where the EPA inaction
culminates in a formal decision not to take
action, such a situation would constitute a
“denial” within the meaning of APA section
551(13) and would likewise be reviewable in
the courts of appeal under section 307(b)(1).
S. REP. NO. 101-228, at 374. Granting Williams’
application is not a simple binary yes-no decision that
affects only Williams, as the Eleventh Circuit held in
requiring RMS to sue in the District of Columbia
Circuit because RMS’s claim about its allocation
necessarily affected all other allocations: “Rather, the
Allocation Notice is better understood as one EPA
action, and RMS’s allocation an inseparable
component of it.” RMS of Ga., LLC v. United States
EPA, 64 F.4th 1368, 1374 (11th Cir. 2023). Under the
circumstances, Williams’ petition here falls within the
20
exception to the 1990 amendment recognized in
Mexichem.
Second, prodding EPA to act is not the “same
genre” as the merits relief that Williams seeks. El Rio
Santa Cruz Neighborhood Health Ctr. v. United States
HHS, 396 F.3d 1265, 1271 (D.C. Cir. 2005) (quoting
Women’s Equity Action League v. Cavazos, 906 F.2d
742, 751 (D.C. Cir. 1990) (“WEAL”)). In WEAL, suing
schools to stop discrimination was deemed the same
genre as suing the Department of Education to
enforce its anti-discrimination rules. WEAL, 906 F.2d
at 751. Prodding EPA to act is not the same genre as
merits relief (i.e., the former is procedural, the latter
substantive). As indicated, APA review includes both
agency action “unlawfully withheld” and agency
action “unreasonably delayed,” 5 U.S.C. § 706(1), but
the 1990 amendments transferred only the latter to
the citizen-suit provision, 42 U.S.C. § 7604(a), not the
former. As such, the courts of appeals retain their
exclusive jurisdiction over claims of EPA action
unlawfully withheld. That answers the jurisdictional
question, even if a court of appeals elects—in its
discretion—to order a timely agency response in lieu
of reaching the merits.
III. THIE QUESTIONS PRESENTED ARE
IMPORTANT, RECURRING, AND
SQUARELY PRESENTED.
The Clean Air Act’s wide scope covers not only key
national industries—such as electrical power, fuel,
and transportation—that indirectly affect everyone
but also direct effects such land-use planning,
consumer products, and appliances. As such, the Act’s
implementation is vitally important and worthy of
this Court’s review on the following recurring issues
presented here.
21
•
The APA’s ongoing application to—and divergent
standards for—reviewing EPA actions outside the
Clean Air Act’s abbreviated review procedures in
§ 307(d).
• The trigger—namely, notice or publication—for
the 60-day window for review under § 307(b)(1).
• A court’s authority under 5 U.S.C. § 706(1) to
issue merits relief—as opposed to merely setting
a time for the agency to act—when an agency fails
to act.
• The division of jurisdiction—for EPA inaction—
between the courts of appeals under § 307(b)(1)
and the district courts under § 304(a)(2).
All these purely legal and recurring issues are
important and squarely presented here.
CONCLUSION
The petition for a writ of certiorari should be
granted.
March 25, 2024
Respectfully submitted,
LAWRENCE J. JOSEPH
Counsel of Record
1250 Connecticut Ave. NW
Suite 700-1A
Washington, DC 20036
202-355-9452
ljoseph@larryjoseph.com
Counsel for Petitioner
ia
APPENDIX
RMS of Georgia, LLC v. Envtl. Prot. Agency,
Nos. 22-1025, 22-1313, 22-1314 (D.C. Cir.
July 7, 2023) ....................................................... 1a
Letter from Cynthia A. Newburg, Director,
Stratospheric Protection Division,
Environmental Protection Agency, to Peter
Williams (Mar. 31, 2022) ................................... 4a
Phasedown of Hydrofluorocarbons: Notice of
2022 Set-Aside Pool Allowance Allocations
for Production and Consumption of
Regulated Substances under the American
Innovation and Manufacturing Act of 2020,
87 Fed. Reg. 19,683 (Apr. 5, 2022) (excerpt) ..... 7a
In re Williams, No. 23-1269 (D.C. Cir. Dec. 21,
2023) ................................................................... 9a
Williams v. Envtl. Prot. Agency, No. 22-1314
(D.C. Cir. Oct. 26, 2023) (en banc)................... 10a
Williams v. Envtl. Prot. Agency, No. 22-1314
(D.C. Cir. Oct. 26, 2023) (panel) ...................... 11a
U.S. CONST. art. II, § 2 ........................................... 12a
U.S. CONST. amend. I ............................................. 12a
5 U.S.C. § 551(13) ................................................... 13a
5 U.S.C. § 553(e) ..................................................... 13a
5 U.S.C. § 555(b), (e) ............................................... 13a
5 U.S.C. § 559 ......................................................... 14a
5 U.S.C. § 702 ......................................................... 14a
5 U.S.C. § 703 ......................................................... 15a
5 U.S.C. § 704 ......................................................... 16a
5 U.S.C. § 705 ......................................................... 16a
5 U.S.C. § 706 ......................................................... 16a
28 U.S.C. § 1651 ..................................................... 17a
iia
28 U.S.C. § 2201(a) ................................................. 18a
42 U.S.C. § 7604(a) ................................................. 18a
42 U.S.C. § 7607(b) ................................................. 19a
42 U.S.C. § 7607(d) ................................................. 21a
42 U.S.C. § 7675(e)(2)(D)........................................ 29a
42 U.S.C. § 7675(k)(1) ............................................ 29a
40 C.F.R. § 84.3 (excerpt) ....................................... 30a
40 C.F.R. § 84.11 .................................................... 30a
40 C.F.R. § 84.15(c) ................................................ 33a
EPA Office of Air Quality Planning and
Standards, EPA Process Manual for
Responding to Requests Concerning
Applicability and Compliance Requirements
of Certain Clean Air Act Stationary Source
Programs (July 2020) (excerpt) ....................... 34a
Williams New-Entrant Application (excerpt) ....... 35a
Williams Declaration (Apr. 24, 2023) .................... 39a
1a
UNITED STATES COURT OF APPEALS
FOR THE DISTRICT OF COLUMBIA CIRCUIT
No. 22-1025
September Term, 2022
EPA-86FR55841
RMS of Georgia, LLC,
Filed
On: July 7, 2023
d/b/a Choice Refrigerants,
Petitioner
v.
Environmental Protection
Agency and Michael S.
Regan, Administrator,
United States Environmental Protection Agency
Respondents
Consolidated with 23-1104
No. 22-1313
EPA-87FR19683
EPA-87FR61314
RMS of Georgia, LLC, d/b/a
Choice Refrigerants,
Petitioner
v.
Environmental Protection
Agency and Michael S.
Reagan, Administrator,
United States Environmental Protection Agency,
Respondents
Consolidated with 22-1314
No. 22-1025
No. 22-1313
September Term, 2022
BEFORE: Henderson, Walker, and Garcia, Circuit
Judges
ORDER
Upon consideration of the motion to dismiss No.
22-1314, the opposition thereto, and the reply; the
2a
motion for partial summary vacatur in No. 22-1314,
the opposition thereto, and the reply; the motion to
sever and hold No. 22-1313 in abeyance, the response
in support of the motion, and the opposition to the
motion; the motions for leave to intervene filed by
FluoroFusion Specialty Chemicals, Inc. (“FluoroFusion”) in No. 22-1025, et al., and No. 22-1313, the oppositions to those motions, and the replies; the unopposed motion for entry of a protective order in No.
22-1313, et al.; and the motions to govern future proceedings in No. 22-1025, et al., each containing a motion to consolidate with No. 22-1313, and the response to petitioner’s motion, it is
ORDERED that the motion to dismiss No. 221314 be granted. Petitioner Peter Williams failed to
petition for review of the EPA’s denial of his newmarket-entrant application and 2022 allocation of
set-aside hydrofluorocarbon (“HFC”) allowances
within the requisite sixty days of respondents publishing notice of such action in the Federal Register.
See 42 U.S.C. §§ 7607(b)(1), 7675(k)(1)(C); Growth
Energy v. EPA, 5 F.4th 1, 12–13 (D.C. Cir. 2021) (per
curiam). To the extent Williams claims that the EPA
has unreasonably delayed in ruling on his reconsideration petition, jurisdiction over that claim lies in
the district court. See 42 U.S.C. §§ 7604(a),
7675(k)(1)(C); Mexichem Specialty Resins, Inc. v.
EPA, 787 F.3d 544, 553 n.6 (D.C. Cir. 2015). Lastly,
Williams lacks standing to challenge the EPA’s 2023
allocation of allowances because he has failed to
demonstrate any injury “fairly traceable” to that
agency action, as opposed to the EPA’s earlier action
finding him ineligible for allowances. Nat'l Ass'n of
Home Builders v. U.S. Army Corps of Engineers, 663
F.3d 470, 474 (D.C. Cir. 2011). It is
3a
FURTHER ORDERED that the motion for partial summary vacatur in No. 22-1314 be dismissed as
moot. It is
FURTHER ORDERED that the motion to sever
and hold No. 22-1313 in abeyance be dismissed as
moot. The dismissal of No. 22-1314 moots the request
for severance, and the Eleventh Circuit’s earlier decision transferring No. 23-1104 to this court moots
the request to hold No. 22-1313 in abeyance pending
that decision. It is
FURTHER ORDERED that No. 22-1025, et al.,
be returned to the court’s active docket and that the
motions to consolidate No. 22-1025, et al., with No.
22-1313 be granted. It is
FURTHER ORDERED that the motions for
leave to intervene be granted. It is
FURTHER ORDERED that the motion for entry of a protective order be granted, and the protective order attached hereto be entered. It is
FURTHER ORDERED that the EPA file a certified index to the record in the now consolidated
cases within seven days of the date of this order. The
Clerk is directed to enter a briefing schedule.
Pursuant to D.C. Circuit Rule 36, this disposition
will not be published. The Clerk is directed to withhold issuance of the mandate in No. 22-1314 until
seven days after resolution of any timely petition for
rehearing or petition for rehearing en banc. See Fed.
R. App. P. 41(b); D.C. Cir. Rule 41.
Per Curiam
4a
UNITED STATES ENVIRONMENTAL
PROTECTION AGENCY
WASHINGTON, D.C. 20460
March 31, 2022
OFFICE OF
AIR AND RADIATION
Mr. Peter Williams
New Era Group
709 Pickering Drive Unit B
Murrells Inlet, South Carolina 29567
Dear Mr. Peter Williams,
This letter communicates EPA’s decision regarding
Peter Williams DBA New Era Group (New Era
Group)’s application for set-aside allowances under
40 CFR § 84.15(c). In accordance with the
methodology
finalized
in
the
final
Hydrofluorocarbon (HFC) Allowance Allocation and
Trading Framework Rule (HFC Allocation
Framework Rule), EPA issued allowances on
October 1, 2021, to companies that had provided
data on their historic import and production of
HFCs, as well as entities that use HFCs in six
applications specified by Congress. EPA also
established the set-aside pool of allowances for a
limited set of end users and importers (see 86 FR
55116). The set-aside pool of allowances was
established for three groups: end users that qualify
for
application-specific
allowances;
existing
importers that were not required to report under 40
CFR part 98 (i.e., the Greenhouse Gas Reporting
Program); and new market entrants. New Era
Group submitted an application for set-aside
allowances as a new market entrant. The regulatory
5a
language specifies that set-aside allowances are
available for entities “who are newly importing
regulated substances, do not share corporate or
common ownership, corporate affiliation in the past
five years, or familial relations with entities
receiving allowances through this rule.” 40 CFR §
84.15(c)(2). EPA also explained in the final rule that
new market entrants may include companies that
had previously imported HFCs in any prior year but
exited the business by 2020 and who did not
otherwise qualify to receive general pool allowances
(see 86 FR 55157).
After reviewing New Era Group’s set-aside
application and supporting information available to
the Agency, EPA has determined that New Era
Group is not eligible for allowances under the setaside pool as a new market entrant and is therefore
denying New Era Group’s application. Based on the
information before the Agency, EPA has determined
that New Era Group does “share corporate or
common ownership, corporate affiliation in the past
five years, or familial relations” with an entity
receiving allowances through this rule, specifically
RMS of Georgia.
Public data available to the Agency from the State
of Georgia Secretary of State confirms that you and
the owner of a company who received allowances
under the final HFC Allocation Framework Rule are
both listed as officers for “New Era Group Inc” as
recently as 2019. This equates to corporate
affiliation in the past five years with an entity
receiving allowances through this rule, and
therefore disqualifies New Era Group’s application
in accordance with EPA’s regulations.
6a
Further, the application submitted for new market
entrant set-aside allowances was incomplete. EPA
regulations at 40 CFR § 84.15(d)(2) require
applicants “to be eligible for consideration” to
provide “the complete ownership of the company
(with percentages of ownership)” 40 CFR §
84.15(d)(2)(i). After Agency outreach explaining the
relevant requirements, information submitted by
the applicant failed to show the complete ownership
of the company (with percentages of ownership).
New Era Group also failed to provide as part of its
application, “The date of incorporation and State in
which the company is incorporated” 40 CFR §
84.15(d)(2)(iv), and the “State license identifier” 40
CFR § 84.15(d)(2)(v). For these reasons, EPA is
denying New Era Group’s application.
As of January 1, 2022, if New Era Group chooses to
import any of the HFCs listed at 40 CFR Part 84
Appendix A, or blends containing any of those
HFCs, the company will need to acquire allowances
from another allowance holder by the time of
import.
If you have questions about the content of this
letter, please contact us at HFCAllocation@epa.gov.
More
information
about
the
regulatory
requirements, including fact sheets, frequently
asked questions, and a list of existing allowance
holders is available at https://www.epa.gov/climatehfcs-reduction.
Sincerely,
/s/
Cynthia A. Newberg
Director, Stratospheric Protection
Division
7a
ENVIRONMENTAL PROTECTION AGENCY
[EPA–HQ–OAR–2021–0669; FRL–9116–02–OAR]
Phasedown of Hydrofluorocarbons: Notice of 2022
Set-Aside
Pool
Allowance
Allocations
for
Production and Consumption of Regulated
Substances Under the American Innovation and
Manufacturing Act of 2020
AGENCY: Environmental Protection Agency (EPA).
ACTION: Notice.
SUMMARY: The Environmental Protection Agency
(EPA) is providing notice that on March 31, 2022, the
Agency issued hydrofluorocarbon allowances to
applicants that met the applicable criteria from the
set-aside pool established in EPA's 2021 final rule
titled
Phasedown
of
Hydrofluorocarbons:
Establishing the Allowance Allocation and Trading
Program under the American Innovation and
Manufacturing Act. In accordance with this final
rule, the Agency redistributed allowances remaining
in the set-aside pool to entities that received general
pool production and consumption allowances on
October 1, 2021. Both the set-aside allocation and
the general pool reallocation were announced on the
Agency's website on March 31, 2022, and entities
were notified either by letter or electronic mail of the
allocation decisions. The Agency also provided notice
to certain companies on March 31, 2022, that the
Agency intends to retire an identified set of those
companies' allowances in accordance with the
administrative consequences provisions established
in the final rule.
***
Under the third set-aside category, for new
market entrants, 45 entities submitted applications
by the deadline of December 6, 2021. EPA is denying
8a
applications from seven entities, CAILLECH LLC,
ChemPenn, LLC, ComStar International Inc.,
ISOSTU LLC, J&J AC Supply Inc, Kim Stilwell, and
Peter Williams DBA New Era Group, because they
are ineligible under 40 CFR 84.15(c)(2). The
applicants were ineligible for at least one of the
following reasons: [*19685]
(1) Did not submit complete applications,
(2) were not newly importing regulated
substances, or
(3) shared corporate or common ownership,
corporate affiliation in the past five years, or familial
relations with entities receiving allowances on
October 1, 2021.
Consistent with the provisions in 40 CFR 84.15,
EPA has allocated allowances for new market
entrants to the entities listed in Table 2.
***
Under section 307(b)(1) of the CAA, petitions for
judicial review of this action must be filed in the
United States Court of Appeals for the District of
Columbia Circuit within 60 days from the date this
final action is published in the Federal Register.
Filing a petition for reconsideration by the
Administrator of this final action does not affect the
finality of the action for the purposes of judicial
review, nor does it extend the time within which a
petition for judicial review must be filed and shall
not postpone the effectiveness of such rule or action.
Hans Christopher Grundler,
Director, Office of Atmospheric Programs.
[FR Doc. 2022–07152 Filed 4–4–22; 8:45 am]
BILLING CODE 6560–50–P
9a
UNITED STATES COURT OF APPEALS
FOR THE DISTRICT OF COLUMBIA CIRCUIT
No. 23-1269
September Term, 2023
Filed On: December 21,
In re: Peter Williams,
2023
Petitioner
BEFORE: Henderson, Childs, and Pan, Circuit
Judges
ORDER
Upon consideration of the petition for writ of
mandamus, the opposition thereto, and the reply, it
is
ORDERED that the petition be dismissed for
lack of jurisdiction. Because petitioner seeks to compel respondent to act on his pending reconsideration
petition, jurisdiction over this case lies in the district
court. See 42 U.S.C. §§ 7604(a), 7675(k)(1)(C); Mexichem Specialty Resins, Inc. v. EPA, 787 F.3d 544,
553 n.6 (D.C. Cir. 2015).
Pursuant to D.C. Circuit Rule 36, this disposition
will not be published.
Per Curiam
FOR THE COURT:
Mark J. Langer, Clerk
BY: /s/
Selena R. Gancasz
Deputy Clerk
10a
UNITED STATES COURT OF APPEALS
FOR THE DISTRICT OF COLUMBIA CIRCUIT
September Term, 2023
No. 22-1314
EPA-87FR19683
EPA-87FR61314
Peter Williams,
Petitioner
v.
Environmental Protection
Agency and Michael S. Regan, Administrator, U.S.
Environmental Protections
Agency, in his official capacity,
Respondents
Filed On: October 26,
2023
BEFORE: Henderson, Walker, and Garcia, Circuit
Judges
ORDER
Upon consideration of the petition for panel rehearing; and the motion to hold in abeyance, styled
as a motion for stay, the opposition thereto, and the
reply, it is
ORDERED that the motion to hold in abeyance
be denied. It is
FURTHER ORDERED that the petition for
panel rehearing be denied.
Per Curiam
FOR THE COURT:
Mark J. Langer, Clerk
BY: /s/
Daniel J. Reidy
Deputy Clerk
11a
UNITED STATES COURT OF APPEALS
FOR THE DISTRICT OF COLUMBIA CIRCUIT
September Term, 2023
No. 22-1314
EPA-87FR19683
EPA-87FR61314
Peter Williams,
Petitioner
v.
Environmental Protection
Agency and Michael S. Regan, Administrator, U.S.
Environmental Protections
Agency, in his official capacity,
Respondents
Filed On: October 26,
2023
BEFORE: Srinivasan, Chief Judge; Henderson, Millett,
Pillard, Wilkins, Katsas, Rao, Walker, Childs, Pan, and
Garcia, Circuit Judges
ORDER
Upon consideration of the petition for rehearing
en banc and the absence of a request by any member
of the court for a vote, it is
ORDERED that the petition for rehearing en
banc be denied.
Per Curiam
FOR THE COURT:
Mark J. Langer, Clerk
BY: /s/
Daniel J. Reidy
Deputy Clerk
12a
U.S. CONST. art. II, § 2
The President shall be commander in chief of the
Army and Navy of the United States, and of the
militia of the several states, when called into the
actual service of the United States; he may require the
opinion, in writing, of the principal officer in each of
the executive departments, upon any subject relating
to the duties of their respective offices, and he shall
have power to grant reprieves and pardons for
offenses against the United States, except in cases of
impeachment.
He shall have power, by and with the advice and
consent of the Senate, to make treaties, provided two
thirds of the Senators present concur; and he shall
nominate, and by and with the advice and consent of
the Senate, shall appoint ambassadors, other public
ministers and consuls, judges of the Supreme Court,
and all other officers of the United States, whose
appointments are not herein otherwise provided for,
and which shall be established by law: but the
Congress may by law vest the appointment of such
inferior officers, as they think proper, in the President
alone, in the courts of law, or in the heads of
departments.
The President shall have power to fill up all
vacancies that may happen during the recess of the
Senate, by granting commissions which shall expire
at the end of their next session.
U.S. CONST. amend. I
Congress shall make no law respecting an
establishment of religion, or prohibiting the free
exercise thereof; or abridging the freedom of speech,
or of the press; or the right of the people peaceably to
13a
assemble, and to petition the government for a redress
of grievances.
5 U.S.C. § 551(13)
For the purpose of this subchapter—
***
(13)“agency action” includes the whole or a part of
an agency rule, order, license, sanction, relief, or the
equivalent or denial thereof, or failure to act[.]
5 U.S.C. § 553(e)
Each agency shall give an interested person the
right to petition for the issuance, amendment, or
repeal of a rule.
5 U.S.C. § 555(b), (e)
(b) A person compelled to appear in person before
an agency or representative thereof is entitled to be
accompanied, represented, and advised by counsel or,
if permitted by the agency, by other qualified
representative. A party is entitled to appear in person
or by or with counsel or other duly qualified
representative in an agency proceeding. So far as the
orderly conduct of public business permits, an
interested person may appear before an agency or its
responsible employees for the presentation,
adjustment, or determination of an issue, request, or
controversy in a proceeding, whether interlocutory,
summary, or otherwise, or in connection with an
agency function. With due regard for the convenience
and necessity of the parties or their representatives
and within a reasonable time, each agency shall
proceed to conclude a matter presented to it. This
subsection does not grant or deny a person who is not
a lawyer the right to appear for or represent others
before an agency or in an agency proceeding.
14a
***
(e) Prompt notice shall be given of the denial in
whole or in part of a written application, petition, or
other request of an interested person made in
connection with any agency proceeding. Except in
affirming a prior denial or when the denial is selfexplanatory, the notice shall be accompanied by a
brief statement of the grounds for denial.
5 U.S.C. § 559
This subchapter, chapter 7, and sections 1305,
3105, 3344, 4301(2)(E), 5372, and 7521 of this title,
and the provisions of section 5335(a)(B) of this title
that relate to administrative law judges, do not limit
or repeal additional requirements imposed by statute
or otherwise recognized by law. Except as otherwise
required by law, requirements or privileges relating to
evidence or procedure apply equally to agencies and
persons. Each agency is granted the authority
necessary to comply with the requirements of this
subchapter through the issuance of rules or otherwise.
Subsequent statute may not be held to supersede or
modify this subchapter, chapter 7, sections 1305,
3105, 3344, 4301(2)(E), 5372, or 7521 of this title, or
the provisions of section 5335(a)(B) of this title that
relate to administrative law judges, except to the
extent that it does so expressly.
5 U.S.C. § 702
A person suffering legal wrong because of agency
action, or adversely affected or aggrieved by agency
action within the meaning of a relevant statute, is
entitled to judicial review thereof. An action in a court
of the United States seeking relief other than money
damages and stating a claim that an agency or an
officer or employee thereof acted or failed to act in an
15a
official capacity or under color of legal authority shall
not be dismissed nor relief therein be denied on the
ground that it is against the United States or that the
United States is an indispensable party. The United
States may be named as a defendant in any such
action, and a judgment or decree may be entered
against the United States: Provided, That any
mandatory or injunctive decree shall specify the
Federal officer or officers (by name or by title), and
their successors in office, personally responsible for
compliance. Nothing herein (1) affects other
limitations on judicial review or the power or duty of
the court to dismiss any action or deny relief on any
other appropriate legal or equitable ground; or (2)
confers authority to grant relief if any other statute
that grants consent to suit expressly or impliedly
forbids the relief which is sought.
5 U.S.C. § 703
The form of proceeding for judicial review is the
special statutory review proceeding relevant to the
subject matter in a court specified by statute or, in the
absence or inadequacy thereof, any applicable form of
legal action, including actions for declaratory
judgments or writs of prohibitory or mandatory
injunction or habeas corpus, in a court of competent
jurisdiction. If no special statutory review proceeding
is applicable, the action for judicial review may be
brought against the United States, the agency by its
official title, or the appropriate officer. Except to the
extent that prior, adequate, and exclusive opportunity
for judicial review is provided by law, agency action is
subject to judicial review in civil or criminal
proceedings for judicial enforcement.
16a
5 U.S.C. § 704
Agency action made reviewable by statute and
final agency action for which there is no other
adequate remedy in a court are subject to judicial
review. A preliminary, procedural, or intermediate
agency action or ruling not directly reviewable is
subject to review on the review of the final agency
action. Except as otherwise expressly required by
statute, agency action otherwise final is final for the
purposes of this section whether or not there has been
presented or determined an application for a
declaratory order, for any form of reconsideration, or,
unless the agency otherwise requires by rule and
provides that the action meanwhile is inoperative, for
an appeal to superior agency authority.
5 U.S.C. § 705
When an agency finds that justice so requires, it
may postpone the effective date of action taken by it,
pending judicial review. On such conditions as may be
required and to the extent necessary to prevent
irreparable injury, the reviewing court, including the
court to which a case may be taken on appeal from or
on application for certiorari or other writ to a
reviewing court, may issue all necessary and
appropriate process to postpone the effective date of
an agency action or to preserve status or rights
pending conclusion of the review proceedings.
5 U.S.C. § 706
To the extent necessary to decision and when
presented, the reviewing court shall decide all
relevant questions of law, interpret constitutional and
statutory provisions, and determine the meaning or
17a
applicability of the terms of an agency action. The
reviewing court shall—
(1) compel agency action unlawfully withheld or
unreasonably delayed; and
(2) hold unlawful and set aside agency action,
findings, and conclusions found to be—
(A) arbitrary, capricious, an abuse of discretion, or
otherwise not in accordance with law;
(B) contrary to constitutional right, power,
privilege, or immunity;
(C) in excess of statutory jurisdiction, authority,
or limitations, or short of statutory right;
(D) without observance of procedure required by
law;
(E) unsupported by substantial evidence in a case
subject to sections 556 and 557 of this title or
otherwise reviewed on the record of an agency hearing
provided by statute; or
(F) unwarranted by the facts to the extent that the
facts are subject to trial de novo by the reviewing
court.
In making the foregoing determinations, the court
shall review the whole record or those parts of it cited
by a party, and due account shall be taken of the rule
of prejudicial error.
28 U.S.C. § 1651
(a) The Supreme Court and all courts established
by Act of Congress may issue all writs necessary or
appropriate in aid of their respective jurisdictions and
agreeable to the usages and principles of law.
(b) An alternative writ or rule nisi may be issued
by a justice or judge of a court which has jurisdiction.
18a
28 U.S.C. § 2201(a)
In a case of actual controversy within its
jurisdiction, except with respect to Federal taxes other
than actions brought under section 7428 of the
Internal Revenue Code of 1986, a proceeding under
section 505 or 1146 of title 11, or in any civil action
involving an antidumping or countervailing duty
proceeding regarding a class or kind of merchandise
of a free trade area country (as defined in section
516A(f)(9) of the Tariff Act of 1930), as determined by
the administering authority, any court of the United
States, upon the filing of an appropriate pleading,
may declare the rights and other legal relations of any
interested party seeking such declaration, whether or
not further relief is or could be sought. Any such
declaration shall have the force and effect of a final
judgment or decree and shall be reviewable as such.
42 U.S.C. § 7604(a)
Except as provided in subsection (b), any person
may commence a civil action on his own behalf—
(1) against any person (including (i) the United
States,
and
(ii)
any
other
governmental
instrumentality or agency to the extent permitted by
the Eleventh Amendment to the Constitution) who is
alleged to have violated (if there is evidence that the
alleged violation has been repeated) or to be in
violation of (A) an emission standard or limitation
under this chapter or (B) an order issued by the
Administrator or a State with respect to such a
standard or limitation,
(2) against the Administrator where there is
alleged a failure of the Administrator to perform any
act or duty under this chapter which is not
discretionary with the Administrator, or
19a
(3) against any person who proposes to construct
or constructs any new or modified major emitting
facility without a permit required under part C of
subchapter I (relating to significant deterioration of
air quality) or part D of subchapter I (relating to
nonattainment) or who is alleged to have violated (if
there is evidence that the alleged violation has been
repeated) or to be in violation of any condition of such
permit.
The district courts shall have jurisdiction, without
regard to the amount in controversy or the citizenship
of the parties, to enforce such an emission standard or
limitation, or such an order, or to order the
Administrator to perform such act or duty, as the case
may be, and to apply any appropriate civil penalties
(except for actions under paragraph (2)). The district
courts of the United States shall have jurisdiction to
compel (consistent with paragraph (2) of this
subsection) agency action unreasonably delayed,
except that an action to compel agency action referred
to in section 7607(b) of this title which is unreasonably
delayed may only be filed in a United States District
Court within the circuit in which such action would be
reviewable under section 7607(b) of this title. In any
such action for unreasonable delay, notice to the
entities referred to in subsection (b)(1)(A) shall be
provided 180 days before commencing such action.
42 U.S.C. § 7607(b)
(1) A petition for review of action of the
Administrator in promulgating any national primary
or secondary ambient air quality standard, any
emission standard or requirement under section 7412
of this title, any standard of performance or
requirement under section 7411 of this title,,3 any
20a
standard under section 7521 of this title (other than a
standard required to be prescribed under section
7521(b)(1) of this title), any determination under
section 7521(b)(5) 1 of this title, any control or
prohibition under section 7545 of this title, any
standard under section 7571 of this title, any rule
issued under section 7413, 7419, or under section 7420
of this title, or any other nationally applicable
regulations promulgated, or final action taken, by the
Administrator under this chapter may be filed only in
the United States Court of Appeals for the District of
Columbia. A petition for review of the Administrator’s
action in approving or promulgating any
implementation plan under section 7410 of this title
or section 7411(d) of this title, any order under section
7411(j) of this title, under section 7412 of this title,
under section 7419 of this title, or under section 7420
of this title, or his action under section 1857c–
10(c)(2)(A), (B), or (C) of this title (as in effect before
August 7, 1977) or under regulations thereunder, or
revising regulations for enhanced monitoring and
compliance certification programs under section
7414(a)(3) of this title, or any other final action of the
Administrator under this chapter (including any
denial or disapproval by the Administrator under
subchapter I) which is locally or regionally applicable
may be filed only in the United States Court of
Appeals for the appropriate circuit. Notwithstanding
the preceding sentence a petition for review of any
action referred to in such sentence may be filed only
in the United States Court of Appeals for the District
of Columbia if such action is based on a determination
of nationwide scope or effect and if in taking such
action the Administrator finds and publishes that
such action is based on such a determination. Any
21a
petition for review under this subsection shall be filed
within sixty days from the date notice of such
promulgation, approval, or action appears in the
Federal Register, except that if such petition is based
solely on grounds arising after such sixtieth day, then
any petition for review under this subsection shall be
filed within sixty days after such grounds arise. The
filing of a petition for reconsideration by the
Administrator of any otherwise final rule or action
shall not affect the finality of such rule or action for
purposes of judicial review nor extend the time within
which a petition for judicial review of such rule or
action under this section may be filed, and shall not
postpone the effectiveness of such rule or action.
(2) Action of the Administrator with respect to
which review could have been obtained under
paragraph (1) shall not be subject to judicial review in
civil or criminal proceedings for enforcement. Where
a final decision by the Administrator defers
performance of any nondiscretionary statutory action
to a later time, any person may challenge the deferral
pursuant to paragraph (1).
42 U.S.C. § 7607(d)
(1) This subsection applies to—
(A) the promulgation or revision of any national
ambient air quality standard under section 7409 of
this title,
(B) the promulgation or revision of an
implementation plan by the Administrator under
section 7410(c) of this title,
(C) the promulgation or revision of any standard
of performance under section 7411 of this title, or
emission standard or limitation under section 7412(d)
of this title, any standard under section 7412(f) of this
22a
title, or any regulation under section 7412(g)(1)(D)
and (F) of this title, or any regulation under section
7412(m) or (n) of this title,
(D) the promulgation of any requirement for solid
waste combustion under section 7429 of this title,
(E) the promulgation or revision of any regulation
pertaining to any fuel or fuel additive under section
7545 of this title,
(F) the promulgation or revision of any aircraft
emission standard under section 7571 of this title,
(G) the promulgation or revision of any regulation
under subchapter IV–A (relating to control of acid
deposition),
(H) promulgation or revision of regulations
pertaining to primary nonferrous smelter orders
under section 7419 of this title (but not including the
granting or denying of any such order),
(I) promulgation or revision of regulations under
subchapter VI (relating to stratosphere and ozone
protection),
(J) promulgation or revision of regulations under
part C of subchapter I (relating to prevention of
significant deterioration of air quality and protection
of visibility),
(K) promulgation or revision of regulations under
section 7521 of this title and test procedures for new
motor vehicles or engines under section 7525 of this
title, and the revision of a standard under section
7521(a)(3) of this title,
(L) promulgation or revision of regulations for
noncompliance penalties under section 7420 of this
title,
(M) promulgation or revision of any regulations
promulgated under section 7541 of this title (relating
23a
to warranties and compliance by vehicles in actual
use),
(N) action of the Administrator under section 7426
of this title (relating to interstate pollution
abatement),
(O) the promulgation or revision of any regulation
pertaining to consumer and commercial products
under section 7511b(e) of this title,
(P) the promulgation or revision of any regulation
pertaining to field citations under section 7413(d)(3)
of this title,
(Q) the promulgation or revision of any regulation
pertaining to urban buses or the clean-fuel vehicle,
clean-fuel fleet, and clean fuel programs under part C
of subchapter II,
(R) the promulgation or revision of any regulation
pertaining to nonroad engines or nonroad vehicles
under section 7547 of this title,
(S) the promulgation or revision of any regulation
relating to motor vehicle compliance program fees
under section 7552 of this title,
(T) the promulgation or revision of any regulation
under subchapter IV–A (relating to acid deposition),
(U) the promulgation or revision of any regulation
under section 7511b(f) of this title pertaining to
marine vessels, and
(V) such other actions as the Administrator may
determine.
The provisions of section 553 through 557 and
section 706 of title 5 shall not, except as expressly
provided in this subsection, apply to actions to which
this subsection applies. This subsection shall not
apply in the case of any rule or circumstance referred
24a
to in subparagraphs (A) or (B) of subsection 553(b) of
title 5.
(2) Not later than the date of proposal of any
action to which this subsection applies, the
Administrator shall establish a rulemaking docket for
such action (hereinafter in this subsection referred to
as a “rule”). Whenever a rule applies only within a
particular State, a second (identical) docket shall be
simultaneously established in the appropriate
regional office of the Environmental Protection
Agency.
(3) In the case of any rule to which this subsection
applies, notice of proposed rulemaking shall be
published in the Federal Register, as provided under
section 553(b) of title 5, shall be accompanied by a
statement of its basis and purpose and shall specify
the period available for public comment (hereinafter
referred to as the “comment period”). The notice of
proposed rulemaking shall also state the docket
number, the location or locations of the docket, and
the times it will be open to public inspection. The
statement of basis and purpose shall include a
summary of—
(A) the factual data on which the proposed rule is
based;
(B) the methodology used in obtaining the data
and in analyzing the data; and
(C) the major legal interpretations and policy
considerations underlying the proposed rule.
The statement shall also set forth or summarize
and provide a reference to any pertinent findings,
recommendations, and comments by the Scientific
Review Committee established under section 7409(d)
of this title and the National Academy of Sciences,
25a
and, if the proposal differs in any important respect
from any of these recommendations, an explanation of
the reasons for such differences. All data, information,
and documents referred to in this paragraph on which
the proposed rule relies shall be included in the docket
on the date of publication of the proposed rule.
(4)
(A) The rulemaking docket required under
paragraph (2) shall be open for inspection by the
public at reasonable times specified in the notice of
proposed rulemaking. Any person may copy
documents
contained
in
the
docket.
The
Administrator shall provide copying facilities which
may be used at the expense of the person seeking
copies, but the Administrator may waive or reduce
such expenses in such instances as the public interest
requires. Any person may request copies by mail if the
person pays the expenses, including personnel costs to
do the copying.
(B)
(i) Promptly upon receipt by the agency, all
written comments and documentary information on
the proposed rule received from any person for
inclusion in the docket during the comment period
shall be placed in the docket. The transcript of public
hearings, if any, on the proposed rule shall also be
included in the docket promptly upon receipt from the
person who transcribed such hearings. All documents
which become available after the proposed rule has
been published and which the Administrator
determines are of central relevance to the rulemaking
shall be placed in the docket as soon as possible after
their availability.
26a
(ii) The drafts of proposed rules submitted by the
Administrator to the Office of Management and
Budget for any interagency review process prior to
proposal of any such rule, all documents
accompanying such drafts, and all written comments
thereon by other agencies and all written responses to
such written comments by the Administrator shall be
placed in the docket no later than the date of proposal
of the rule. The drafts of the final rule submitted for
such review process prior to promulgation and all
such written comments thereon, all documents
accompanying such drafts, and written responses
thereto shall be placed in the docket no later than the
date of promulgation.
(5) In promulgating a rule to which this subsection
applies (i) the Administrator shall allow any person to
submit written comments, data, or documentary
information; (ii) the Administrator shall give
interested persons an opportunity for the oral
presentation of data, views, or arguments, in addition
to an opportunity to make written submissions; (iii) a
transcript shall be kept of any oral presentation; and
(iv) the Administrator shall keep the record of such
proceeding open for thirty days after completion of the
proceeding to provide an opportunity for submission
of rebuttal and supplementary information.
(6)
(A) The promulgated rule shall be accompanied by
(i) a statement of basis and purpose like that referred
to in paragraph (3) with respect to a proposed rule and
(ii) an explanation of the reasons for any major
changes in the promulgated rule from the proposed
rule.
27a
(B) The promulgated rule shall also be
accompanied by a response to each of the significant
comments, criticisms, and new data submitted in
written or oral presentations during the comment
period.
(C) The promulgated rule may not be based (in
part or whole) on any information or data which has
not been placed in the docket as of the date of such
promulgation.
(7)
(A) The record for judicial review shall consist
exclusively of the material referred to in paragraph
(3), clause (i) of paragraph (4)(B), and subparagraphs
(A) and (B) of paragraph (6).
(B) Only an objection to a rule or procedure which
was raised with reasonable specificity during the
period for public comment (including any public
hearing) may be raised during judicial review. If the
person raising an objection can demonstrate to the
Administrator that it was impracticable to raise such
objection within such time or if the grounds for such
objection arose after the period for public comment
(but within the time specified for judicial review) and
if such objection is of central relevance to the outcome
of the rule, the Administrator shall convene a
proceeding for reconsideration of the rule and provide
the same procedural rights as would have been
afforded had the information been available at the
time the rule was proposed. If the Administrator
refuses to convene such a proceeding, such person
may seek review of such refusal in the United States
court of appeals for the appropriate circuit (as
provided in subsection (b)). Such reconsideration shall
not postpone the effectiveness of the rule. The
28a
effectiveness of the rule may be stayed during such
reconsideration, however, by the Administrator or the
court for a period not to exceed three months.
(8) The sole forum for challenging procedural
determinations made by the Administrator under this
subsection shall be in the United States court of
appeals for the appropriate circuit (as provided in
subsection (b)) at the time of the substantive review of
the rule. No interlocutory appeals shall be permitted
with respect to such procedural determinations. In
reviewing alleged procedural errors, the court may
invalidate the rule only if the errors were so serious
and related to matters of such central relevance to the
rule that there is a substantial likelihood that the rule
would have been significantly changed if such errors
had not been made.
(9) In the case of review of any action of the
Administrator to which this subsection applies, the
court may reverse any such action found to be—
(A) arbitrary, capricious, an abuse of discretion, or
otherwise not in accordance with law;
(B) contrary to constitutional right, power,
privilege, or immunity;
(C) in excess of statutory jurisdiction, authority,
or limitations, or short of statutory right; or
(D) without observance of procedure required by
law, if (i) such failure to observe such procedure is
arbitrary or capricious, (ii) the requirement of
paragraph (7)(B) has been met, and (iii) the condition
of the last sentence of paragraph (8) is met.
(10) Each statutory deadline for promulgation of
rules to which this subsection applies which requires
promulgation less than six months after date of
proposal may be extended to not more than six months
29a
after date of proposal by the Administrator upon a
determination that such extension is necessary to
afford the public, and the agency, adequate
opportunity to carry out the purposes of this
subsection.
(11) The requirements of this subsection shall
take effect with respect to any rule the proposal of
which occurs after ninety days after August 7, 1977.
42 U.S.C. § 7675(e)(2)(D)
(i) Quantity
Not later than October 1 of each calendar year, the
Administrator shall use the quantity calculated under
subparagraph (B) to determine the quantity of
allowances for the production and consumption of
regulated substances that may be used for the
following calendar year.
(ii) Nature of allowances
(I) In general
An allowance allocated under this section—
(aa) does not constitute a property right; and
(bb) is a limited authorization for the production
or consumption of a regulated substance under this
section.
(II) Savings provision
Nothing in this section or in any other provision of
law limits the authority of the United States to
terminate or limit an authorization described in
subclause (I)(bb).
42 U.S.C. § 7675(k)(1)
(A) Rulemakings
30a
The Administrator may promulgate such
regulations as are necessary to carry out the functions
of the Administrator under this section.
(B) Delegation
The Administrator may delegate to any officer or
employee of the Environmental Protection Agency
such of the powers and duties of the Administrator
under this section as the Administrator determines to
be appropriate.
(C) Clean Air Act
Sections 113, 114, 304, and 307 of the Clean Air
Act (42 U.S.C. 7413, 7414, 7604, 7607) shall apply to
this section and any rule, rulemaking, or regulation
promulgated by the Administrator pursuant to this
section as though this section were expressly included
in title VI of that Act (42 U.S.C. 7671 et seq.).
40 C.F.R. § 84.3 (excerpt)
Person means any individual or legal entity,
including an individual, corporation, partnership,
association, state, municipality, political subdivision
of a state, Indian tribe; any agency, department, or
instrumentality of the United States; and any officer,
agent, or employee thereof.
40 C.F.R. § 84.11
(a) The relevant agency official will issue, through
a separate notification, calendar years 2022 and 2023
consumption allowances to entities that imported or
produced a bulk regulated substance in 2020, unless
an individual accommodation is permitted by a
relevant Agency official. If multiple entities that
imported are related through shared corporate or
common ownership or control, the relevant agency
official will calculate and issue allowances to a single
31a
corporate or common owner. The number of
consumption allowances allocated to each eligible
entity for 2022-2023 is calculated as follows:
(1) Take the average of the three highest annual
exchange value-weighted consumption amounts
chosen at the corporate or common ownership level for
eligible entities reporting to the agency for each
calendar year 2011 through 2019;
(2) Sum the “average high year” values
determined in step 1 of all eligible entities and
determine each entity's percentage of that total;
(3) Determine the amount of general pool
consumption allowances by subtracting the quantity
of application-specific allowances for that year as
determined in accordance with § 84.13 and the setaside in § 84.15 from the consumption cap § 84.7(b)(3);
(4) Determine individual entity consumption
allowance quantities by multiplying each entity's
percentage determined in step 2 by the amount of
general pool allowances determined in step 3.
(b) Starting with the allocation of 2024 calendar
years allowances the relevant Agency official will
issue, through a separate notification, calendar year
consumption allowances. The allocation of calendar
year 2024, 2025, 2026, 2027, and 2028 consumption
allowances is calculated as follows for each entity:
(1) For new market entrants that were allocated
allowances pursuant to § 84.15(e)(3), take the
allowances allocated for calendar year 2023 and
divide that value by the proportion of calendar year
2023 consumption allowances received by general pool
allowance holders pursuant to paragraph (a) of this
section relative to their high three average calculated
pursuant to paragraph (a)(2) of this section;
32a
(2) For entities that produced or imported a
regulated substance in 2021 or 2022, or both 2021 and
2022, and have not been allocated allowances
pursuant to § 84.15(e)(3), the relevant Agency official
will calculate and issue allowances. This calculation
and issuance will be to a single entity if multiple
entities with historic consumption data are related
through shared corporate or common ownership. The
relevant Agency official will take the average of the
three highest annual exchange value-weighted
consumption amounts, which for entities related
through shared corporate or common ownership or
control would be aggregated and averaged at the
corporate or common ownership level, that each
eligible entity reported to the Agency for calendar
years 2011 through 2019. If an entity, or commonly
owned or controlled group of entities, does not have
consumption amounts for three years between
calendar years 2011 through 2019, the relevant
Agency official will take the average of available
year(s) of consumption for calendar years 2011
through 2019;
(3) If an entity has a value calculated under
paragraphs (b)(1) and (b)(2) of this section, take the
single higher value;
(4) If an entity allocated allowances pursuant to
§ 84.15(e)(3) was acquired by an entity that has a
market share calculable under paragraph (b)(2) of this
section, and EPA has approved this acquisition, sum
the value calculated under paragraph (b)(1) of this
section for the entity allocated allowances pursuant to
§ 84.15(e)(3) with the value calculated under
paragraph (b)(2) of this section disregarding any
historic consumption activity by the entity allocated
allowances pursuant to § 84.15(e)(3), except this
33a
paragraph (b)(4) shall not apply to an entity allocated
allowances pursuant to § 84.15(e)(3) that has a higher
value calculated under paragraph (b)(2) of this section
than under paragraph (b)(1) of this section;
(5) Sum every entity’s values as determined in
paragraphs (b)(1), (2), (3), and (4) of this section and
determine each entity’s percentage of that total;
(6) Determine the amount of general pool
consumption allowances by subtracting the quantity
of application-specific allowances for that year as
determined in accordance with § 84.13 from the
consumption cap in § 84.7(b)(3); and
(7) Determine individual entities’ consumption
allowance quantities by multiplying each entity’s
percentage determined in paragraph (b)(5) of this
section by the amount of general pool allowances
determined in paragraph (b)(6) of this section.
(c)
(1) EPA will allocate calendar year consumption
allowances to individual entities by October 1 of the
calendar year prior to the year in which the
allowances may be used based on the exchange valueweighted quantities calculated in paragraph (a)(4) of
this section.
(2) EPA will provide public notice of the list of
companies receiving consumption allowances as well
as how they will be allocated by that date.
40 C.F.R. § 84.15(c)
(1) Persons who imported regulated substances in
2020 that were not required to report under 40 CFR
part 98 and were not issued allowances as of October
1, 2021; or
34a
(2) Persons who are newly importing regulated
substances, do not share corporate or common
ownership, corporate affiliation in the past five years,
or familial relations with entities receiving allowances
through this rule.
EPA Office of Air Quality Planning and
Standards, EPA Process Manual for
Responding to Requests Concerning
Applicability and Compliance Requirements of
Certain Clean Air Act Stationary Source
Programs (July 2020) (excerpt)
OAQPS tracking coordinator is also responsible
for providing notice of such responses in the Federal
Register on a periodic basis. Federal Register
publication of final actions like applicability
determinations is particularly important, as such
publication starts a 60-day period for judicial
challenges to EPA’s decision.
35a
December 2, 2021
To Whom It May Concern,
Peter Williams/dba The New Era Group intends
to import HFC refrigerants in calendar years 2022
and 2023. The New Era Group, nor myself share
any corporate or common ownership, corporate affiliation within the last five years, or familial relations
with entities receiving allowances through the rule
entitles, “Phasedown of Hydrofluorocarbons; Establishing the Allowance Allocation and Trading Program under the American Innovation and Manufacturing Act”. I have read the HFC Allocation Final
Rule, and understand the sections as noted in this
application for allocations as follows:
• 40 CFR 84.5 Prohibitions relating to regulated
substances
• 40 CFR 84.15 Set-aside of application-specific
allowances, production allowances, and consumption allowances
• 40 CFR 84.19 Transfers of allowances
• 40 CFR 84.23 Certification identification generation and tracking
• 40 CFR 84.31(a), (c), (h), and (k) Recordkeeping
and reporting
• 40 CFR 84.33 Auditing of recordkeeping and reporting
• 40 CFR 84.35 Administrative consequences.
Peter Williams/dba The New Era Group agrees
and certifies the following:
36a
1. will follow all applicable DOT standards, and all
cylinders and containers used by
2. will be compliant with the DOT standards found
at CFR Title 49 part §178.
3. will pay any duties consistent with US Customs
and Boarder Protection requirements per Title 19.
4. will comply with all EPA requirements, including
those established under the AIM Act and annual
Greenhouse
Gas
reporting
requirements
§84.15(d)(2)(viii).
The information submitted in this letter and the application form is complete, accurate, and truthful.
§84.15(d)(2)(ix)
Thank you,
/s/
Peter Williams
37a
OMB Control Number: 2060-0735
Expiration Date: 4/30/2022
American Innovation and Manufacturing Act Application for Set-aside of HFC Allowances
***
Is the compa- Date of Incor- State in which State License
ny a woman
poration
Company is
Identifier
or minority §84.15(d)(2)(i Incorporated §84.15(d)(2)(
owned busiv)
§84.15(d)(2)(i
nesss.
v)
§84.15(d)(2)(
ii)
MinorityUnSouth Caroowned busi- Incorperated
lina
ness
***
v)
Non
38a
Memorandum of Minority Self Certifying
To:
From:
Subject
Date:
HFC Allocation
Peter Williams
The file of HFC Set-aside allowance
February 18, 2022
Please accept this communication as an inclusion to
my application for HFC set aside allowances in the
amount of 200,000 MTEVe. The process that is outlined in 40 CFR Chapter 1 Subchapter C part 84
Subpart A § 84.15 refers to a “Person/Persons”.
My application for the aforementioned set-aside allowance was filed as an individual. Therefore, based
on the clear use of the word person or person, I meet
the qualification set-forth in the CFR.
This correspondence is offered to satisfy the application requirement for proof of corporate structure, of
which there is none for myself as an individual.
With Best Regards
39a
UNITED STATES COURT OF APPEALS
FOR THE DISTRICT OF COLUMBIA CIRCUIT
RMS of Georgia, LLC,
d/b/a Choice Refrigerants,
et al.,
No. 22-1313 (consolidated
with No. 22-1314)
Petitioner
v.
Environmental Protection
Agency, et al.,
Respondents
DECLARATION OF PETER WILLIAM
I, Peter Williams, hereby declare and state as follows:
1. I am over 18 years of age, and I reside in Murrells Inlet, South Carolina.
2. I am the petitioner in No. 22-1314, which challenges the Environmental Protection Agency’s
(“EPA’s”) denial of my application for hydrofluorocarbon (“HFC”) allocations as a new market entrant in
the cap-and-trade program under the American Innovation and Manufacturing Act.
3. The HFC allocations at issue in this litigation
are valuable because HFCs can be acquired from
global producers under U.S. market prices.
4. If I prevail in reversing the denial of my newentrant application, there is enough “fat” in the HFC
allocations for EPA to make me whole for past allocations that EPA wrongfully withheld—such as the
2022 allocation—even if the allocation has “expired.”
There were enough improper allocations granted in
2022-2023 baseline that could be reallocated to me, including past or future allocations under the administrative-consequence process, without affecting the
40a
legitimate allocations made to other entities for 20222023.
5. My connection with the refrigerant-gas industry began as a businessman running a reclamation facility, New Era Environmental, Inc., in Sterling, Virginia, circa 1993-2001. As part of that process, I became familiar with the regulatory and economic issues that affect the industry, including issues under
the Montreal Protocol and its successive amendments
and agreements.
6. Although I was no longer a direct industry
participant—e.g., as a reclaimer, importer, or manufacturer—I continued to work as a consultant for various industry participants on both the business side
and the regulatory side.
7. In 2009, I registered the domain “neweragoupinc.com” and had a logo prepared for “The New
Era Group, Inc.”
8. I meant to incorporate The New Era Group,
Inc. as a consultancy, but I never did so.
9. I nonetheless used an email at neweragoupinc.com and the logo on letterhead, including for
comments to EPA rulemakings. A true and correct
copy of one of the comments I submitted to EPA is attached hereto as Exhibit 1.
10. EPA contacted me using my New Era Group
contact information, including a letter from the thenAdministrator, a true and correct copy of which is attached hereto as Exhibit 2.
11. My background and involvement with the industry and with New Era Group, Inc., of Georgia is
further summarized in the affidavit submitted with
the letter that attorney J. Gordon Arbuckle sent to
EPA on April 20, 2022, to seek reconsideration of the
41a
denial of my application, which documents I understand are at pages 12a-16a of the addendum to my
motion for summary vacatur.
12. While New Era Group, Inc. of Georgia was
perhaps intended to draw on the goodwill of my ongoing work with EPA under the “New Era Group” name,
the Georgia corporation was separate from the New
Era Group consultancy under which I had been operating.
13. While I was active in New Era Group, Inc. of
Georgia, it was a nonprofit representing the interests
of hydrochlorofluorocarbon-22 reclaimers, importers
and producers of alternative refrigerants as a trade
association. Although industry members participated
in New Era Group, Inc. of Georgia as members for advocacy purposes, the New Era Group, Inc. of Georgia
was not itself a direct participant in the economic aspects of the industry (e.g., as a reclaimer, importer, or
manufacturer).
14. When EPA requested further documentation
regarding corporate status through EPA’s Andy
Chang, the way that he conveyed the message in his
voicemail implied that applicants needed to be incorporated, not that EPA has conflated me (with my New
Era Group dba) as a corporation named New Era
Group, Inc. I responded with a certification that I was
applying as an individual with the attachment “StructureMemo.pdf,” which I understand is at page 1a of
the addendum to my motion for summary vacatur.
15. Mr. Chang replied “10-4. Thanks.” A true and
correct copy of his email is attached hereto as Exhibit
3. I also uploaded the “StructureMemo.pdf” to EPA’s
application portal.
16. Until I received EPA’s letter dated March 31,
42a
2022, denying my HFC application, I was not aware
that EPA staff have equated me with New Era Group,
Inc. of Georgia based on a legal analysis of the factors
in the new-entrant program.
17. On April 1, 2022, I communicated with EPA’s
Luke Hall-Jordan and a colleague of his about the
misunderstanding of my relationship with New Era
Group, Inc., of Georgia. A true and correct copy of his
email is attached hereto as Exhibit 4.
18. In response to the email from Mr. Hall-Jordan
on April 26, 2022, I believe that I called him to indicate that he could discuss the HFC issues with my
counsel, J. Gordon Arbuckle, who had submitted my
letter to Cynthia Newberg dated April 20, 2022, which
I understand is (along with my affidavit) at pages 12a16a of the addendum to my motion for summary vacatur.
19. Later that week, on April 29, 2022, I emailed
Cindy Bolinger, who is Gordon Arbuckle’s legal assistant, about the process to follow, once EPA responded
to the Arbuckle letter.
20. Since the email from Luke Hall-Jordan on
April 26, 2022, I have not received a response to the
letter that Mr. Arbuckle sent to EPA’s Cynthia Newberg.
21. I have personal knowledge of the foregoing
and am competent to testify thereto.
I declare under penalty of perjury under the laws of
the United States of America that the foregoing is true
and correct. Executed this 24th day of April, 2023.
/s/
Peter Williams
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.