Petition for Writ of Certiorari — Environmental Defense v. Duke Energy Corporation

increases of pollutants, see 42 U.S.C. 7473 — through

permitting of “major” sources of pollution. 42 U.S.C. 7475,

7479(1), 7602(j). If permitted, major sources constructed or

modified in a PSD area must install the “best available

pollution control technology” (“BACT”), id 7475(a),

identified on a “case-by-case” basis based on environmental,

economic, and other factors. See id 7479(3). Facilities

subject to PSD must also comply with the NSPS and other

CAA requirements. /d. 7475(a)(3). See generally ADEC, 540

U.S. at 472-75. (Together with corresponding site-specific

permitting requirements for nonattainment areas, 42 U.S.C.

7501-7515, PSD review of new and modified sources is

called “New Source Review” or “NSR.” See New York, 413

F.3d at 12-13.).

Whereas the 1970 NSPS program establishes categorical

requirements that apply “[w]ithout regard to the effect of the

emissions from [an NSPS] facility will have on overall air

quality,” Potomac Electric Power Co. v. Environmental

Protection Agency, 650 F.2d 509, 518 (4" Cir. 1981), PSD

“focuses on where the plant will be located and its potential

effect on its environs,” Citizens for Clean Air v. EPA, 959

F.2d 839, 849 (9 Cir. 1992), and demands a site-specific

review of whether a proposed major source will contribute to

a Significant degradation of local air quality despite

compliance with the NSPS. See 42 U.S.C. 7470(1); Alabama

Power v. Costle, 636 F.2d 323, 346-51 (D.C. Cir. 1979); 44

Fed. Reg. 51,924, 51,931 (Sept. 5, 1979).

The 1977 amendments granted existing sources a qualified

exemption from the PSD requirements based in part on a

concern that “[flor some of the older and smaller sources, it is

not physically or economically feasible to retrofit * * *

control technology.” H.R. Rep. No. 94-1175 at 159 (1976).

The resulting environmental harms were understood to be

limited, however, because existing plants had limited useful

lives and would be retired within a relatively short time. See,

e.g., H.R. Rep. No. 94-1175 at 159 (“[I]}t is imprudent to

backfit FGD [a control technology] into existing plants,

especially older units facing retirement within 10-15 years.”);

S. Rep. No. 95-127 at 128 (1977) (“There are in the United

States approximately 200 old coal-fired power plants over 20

years of age. * * * Most will be totally phased out of

operation in the next 5 to 20 years.”) (additional views of Sen.

Baker).

But consistent with its emphasis on “‘a proper balance

between environmental and economic goals,’” New York, 413

F.3d at 13 (citations omitted), Congress subjected existing

major sources that undertake “modifications” to PSD. The

PSD provisions define “construction” of a source to include

“modification,” which, in turn, is defined by cross-reference

to the 1970 Act’s definition of “modification” for the NSPS

program, which embraces physical or operational “changes”

to a source that “increase the amount” of any air pollutant

emitted. See 42 U.S.C. 7479(2)(C) (PSD “construction”

“includes the modification (as defined in section 7411(a) of

this title) of any source or facility”).

In 1980, EPA promulgated comprehensive PSD >

regulations specifying what activities satisfy the two statutory

requirements for a “modification”: (1) a physical or

operational “change,” and (2) an “increase” in the amount of

any air pollutant emitted by the source. 45 Fed. Reg. 52676

(Aug. 7, 1980); see 40 C.F.R. 51.166 (1987).' The PSD

regulations define an emissions “increase” in terms of “actual

emissions,” measured in “tons per year.” 40 C.F.R.

51.166(b)(2), (3), (21) (1987). EPA emphasized that it had

drafted the regulations to comport with the Alabama Power

court’s reading of the PSD statute to emphasize actual

' EPA initially promulgated PSD regulations in 1978, 43 Fed. Reg. 26,380

(June 19, 1978), but it replaced them with new regulations following the

D.C. Circuit’s decision in Alabama Power Co. v. Costle, 636 F.2d 323

(D.C. Cir. 1979). The PSD regulations applicable to the activities at issue

in this case, which occurred between 1988 and 2000, were promulgated in

1980 and recodified in 1987. See App. Sa n.1. Certain of the activities are

governed by a subsequent set of PSD regulations promulgated in 1992, 57

Fed. Reg. 32,314 (July 21, 1992), but the differences are not material here.

6

impacts of source activity on ambient air. 45 Fed. Reg. at

52699-52700. Thus, EPA’s 1980 rules sought “as close a

correspondence as possible” between the regulatory coverage

of new and modified sources and their actual impacts on air

quality and available PSD increment. 45 Fed. Reg. at 52,701.

EPA specifically refused to exempt from the emissions-

increase calculation additional emissions that occur when

physical improvements at an existing facility enable

“increased hours of operation or capacity utilization.” Jd. at

52,714. See also id at 52,718.“ Petitions for review

challenging the EPA’s 1980 regulations were filed in the D.C.

Circuit, and then stayed.’

EPA issued a formal interpretation of the 1980 regulations

in a 1989 applicability determination concerning the

refurbishment of old power generation facilities by the

Wisconsin Electric Power Company (“WEPCo”). The agency

rejected a utility’s contention that only increases in the

source’s maximum emissions “rate” triggered PSD review,

explaining that actual emissions are the product of “three

factors”: (1) the “emissions rate” (“e.g., pounds of sulfur

dioxide per ton of coal combusted” emissions per unit of

2 The regulations specify, however, that an “an increase in the hours of

operation or in the production rate,” does not by itself constitute a

“physical change or change in the method of operation.” 40 C.F.R.

51.166(b)(2\{iii). Regarding its decision to treat increased hours of

operation as a PSD trigger only when accompanied by accompanied a

physical or operational “change,” EPA explained that while “as a general

rule Congress intended any significant net increase in such emissions to

undergo PSD” review, the statute’s “emphasis * * * on ‘construction””

indicated an intent not to find a “modification” requiring PSD review

when a company merely increases its hours of operation “to take

advantage of favorable market conditions.” 45 Fed. Reg. at 52704.

> Challenges to the 1980 regulations were consolidated in Chemical

Manufacturers Assoc. v. EPA, No. 79-1112 (D.C. -Cir.), then stayed

pursuant to a settlement agreement that obligated EPA to consider

amendments to its PSD regulations. EPA ultimately decided not to adopt

the proposed regulations, see 67 Fed. Reg. at 80204-06, and the revived

challenges were addressed in New York. See 413 F.3d at 14-15.

7

production); (2) the “production rate” (“e.g., tons of coal

combusted per hour’’), and (3) “hours of operation (e.g., hours

per year).” Letter from Don R. Clay, Acting Assistant

Administrator for Air and Radiation, to John H. Boston, Vice

President, WEPCo. (Feb. 15, 1989) (CA App. 838). EPA

explained that “an increase in any one of these three specified

factors, if attributable to a physical or operational change, can

trigger an emissions increase for PSD purposes[.]” /d.

Reviewing that determination under Section 307(b), the

Seventh Circuit upheld EPA’s reliance on actual emissions

(including those reflecting increased hours of operation).

Wisconsin Electric Power Co. v. Reilly, 893 F.2d 901 (7" Cir.

1990). The court observed that EPA’s PSD and NSPS

regulations measured emissions increases in “a fundamentally

distinct manner,” explaining that NSPS “is concerned

primarily with increases in emissions rates, expressed in

kilograms per hour,” whereas “[uJnlike NSPS, PSD is

concerned with changes in total annual emissions, expressed

in tons per year,” 893 F.2d at 913, 915 (emphasis original).

The court also agreed with EPA that the increased hours of

operation made possible by WEPCo.’s extensive upgrading of

its facilities did not qualify for the “increased hours of

operation” exemption, which “was provided to allow facilities

to take advantage of fluctuating market conditions, not

construction or modification activity.” 893 F.2d at 916 n.11.

See also Puerto Rican Cement Co. v. EPA, 889 F.2d 292, 297

(1* Cir.1989) (Breyer, J.) (upholding EPA’s application of

1980 regulation measuring PSD emissions “increases” to

include emissions from increased utilization enabled by

physical upgrade and observing that EPA’s regulation took

account of “the fact that a firm’s decision to introduce new,

more efficient machinery may lead the firm to decide to

increase the level of production, with the result that, despite

the new machinery, overall! emissions will increase”).

Factual and Procedural Background. Respondent Duke

operates thirty coal-fired generating units at eight plants in the

Carolinas that began service between 1940 and 1975. In the

1980s and 1990s, Duke undertook a “Plant Modernization

Program” intended to refurbish these facilities to allow the

plants — many of them so worn as to be often or always out of

service — to operate more of the time, and to enjoy longer

lives. Duke stated that the subject facilities were “no longer

reliable because of their age” (CA App. 744), and would that

some require a “total rehabilitation” that would extend the

facility’s useful life an “additional 20 years,” “well beyond”

its “expected retirement.” CA App. 770-72, 776. The costs

of rehabilitation were often many times the original cost of

the unit. See CA App 730, 785-86. To accomplish the

renovations, Duke shut down the units for lengthy periods, in

some instances more than a decade. CA App. 756-61.

Unlike the regulated entities in cases like WEPCo. and

Puerto Rican Cement, Duke never sought an applicability

determination on whether its modernization undertaking was

subject to PSD review; rather it simply proceeded with the

project upgrades at the various plants. In December 2000, the

United States filed an action against Duke in the United States

District Court for the Middle District of North Carolina

pursuant to Sections 113(b) and 167 of the CAA, charging

that Duke had violated the Act by engaging in 29

“modifications” without obtaining PSD permits required

under the Act and the applicable state implementation plans.

Petitioners intervened as plaintiffs.

The parties disputed how to measure whether Duke’s

Modernization Program caused a “significant net emissions

increase” under the governing 1980 PSD regulation. 40

C." R. 51.166(b) (1987). The United States submitted that

those extensive refurbishments would increase emissions by

allowing aging facilities that had fallen into sporadic use or

total disuse to operate more of the time, resulting in large

increases in the actual, annual emissions targeted under the

* A Duke representative told state regulators in 1985 that “[h]istorically,

units of this age and condition would be retired and scrapped.” CA App.

744.

1980 PSD regulations. However, the district court agreed with

Duke’s argument that, in employing for the PSD program the

same statutory definition of “modification” already in place

for the NSPS, Congress intended to adopt an NSPS regulation

that (according to the court) employed a “maximum hourly

emissions rate” test under which a project refurbishment

enabling a plant to operate for more hours, but without

changing the maximum emissions rate, would not count as

having “increased” emissions. App. 58a-61a. To frame the

issue for appeal, plaintiffs stipulated that Duke’s activities

would not cause a PSD-triggering “net emissions increase”

under such a test and, based on that stipulation, the court

entered final judgment for Duke. App. 87a.

After initial briefing and oral argument, the Fourth Circuit

panel directed the parties (App. 21a) to address the relevance

of a case none had cited, Rowan Companies, Inc. v. United

States, 452 U.S. 247 (1981), in which this Court invalidated

certain Treasury regulations that construed identical

definitions of “wages” in two sections of the Internal Revenue

Code differently. The United States and petitioners argued ~

that the Rowan did not call into question EPA’s PSD

regulations, and that Section 307(b) barred review of the

consistency of the regulations with the CAA in this

enforcement action.

The Fourth Circuit affirmed the judgment for Duke. It did

not adopt the district court’s theory that Congress had adopted

a specific NSPS regulatory test. Instead it reasoned that

“because Congress mandated that the -PSD definition of

‘modification’ be identical to the NSPS definition of

‘modification,’ the EPA cannot interpret ‘modification’ under

the PSD inconsistently with the way it interprets the term

under the NSPS.” App. lla (footnote omitted). The court

relied both on “[cJommon sense,” and on Rowan, which it

read to require that “when Congress itself provided

‘substantially identical’ statutory definitions of a term in

different statutes, the agency charged with enforcing the

statutes could not interpret the statutory definitions

10

‘differently.”” Jd. at 547 (quoting Rowan, 452 U.S. at 257).

In a footnote, the Fourth Circuit addressed the appellants’

argument that CAA Section 307(b) precluded it from

reviewing consistency of the PSD regulations with the statute.

The panel stated that “no question as to the validity of the

PSD regulations is (or could be, see 42 U.S.C. § 7607(b))

[Section 307(b)], presented here,” explaining that “the PSD

regulations can be interpreted consistently with pre-existing

principles — the NSPS regulations * * *” App. 15a n.7. The

Court further stated that its decision did not reflect an

“invalidation” of the regulations, but merely a requirement

that the PSD regulations and the NSPS regulations be

“similarly interpreted and enforced.” Jd.

Nine days later, the D.C. Circuit, exercising jurisdiction

under Section 307(b), issued its decision on the consolidated

challenges to EPA’s 1980, 1992, and 2002 PSD regulations.

New York, 413 F.3d 3. The court upheld the 1980 PSD

regulations at issue here against challenges by an industry

coalition including respondent Duke, specifically rejecting

industry’s argument that Congress, by incorporating for PSD

purposes the statutory definition of “modification” initially

enacted for the NSPS program, had adopted specific NSPS

regulations in place at that time. 413 F. 3d at 19-20. The

court ruled that the Act’s use of the cross-referencing

definition created no such inference about legislative intent,

noting among other things that when the PSD definition was

added in 1977, two different regulatory definitions for NSPS

emissions “increases” (one of which industry had not cited)

were in place. /d.

The D.C. Circuit acknowledged the decision in this case,

but found that industry petitioners there had waived the

argument that “Congress must use identical regulatory

definitions of modification across the NSPS and NSR

programs.” 413 F.3d at 20. Noting that industry had made

“no attack at all on the reasonableness of EPA’s definition of

modification for NSR (apart from its divergence from one of

the 1975 NSPS definitions)” the court “reject[ed] this portion

11

of industry’s challenge to the 1980 and the 2002 rules.” Jd

In New York, the D.C. Circuit set aside a portion of the 2002

regulations, called the “Clean Units” provision, which

exempted from PSD review certain changes that increased

actual emissions. 413 F.3d at 39-40. The D.C. Circuit ruled

that “the plain language of the CAA indicates that Congress

intended to apply NSR [which includes PSD} to changes that

increase actual emissions instead of potential or allowable

emissions[.]” /d. at 40.

Petitioners and the United States sought rehearing in the

Fourth Circuit. The United States referenced the Fourth

Circuit’s explanation that Section 307(b) was no bar because

the court was “merely mandating one possible interpretation,”

of the PSD emissions “increase” regulation, and then

observed that D.C. Circuit in New York had just “held that the

statutory language mandates a contrary interpretation,” a

situation the United States termed as “precisely the type of

outcome that [Section 307(b)] was enacted to prevent.” U.S.

Pet. for Reh. in 04-1763 at 10 (filed Aug. 10, 2005) (2005

WL 1978694). Both petitions were denied.

Shortly thereafter, EPA issued a notice of proposed

rulemaking proposing to amend its regulations to establish a

“uniform emissions test nationally under the NSPS and NSR

programs[.]” 70 Fed. Reg. 61081, 61083 (Oct. 20, 2005).

While stating that EPA “respectfully disagreed” with the

decision in this case, the notice stated that the need for

amendments was “apparent” in light of the panel’s ruling. /d.

at 61083 & n.3.

* Petitions for panel rehearing and rehearing en banc filed by EPA and

industry in the New York case were denied on December 9, 2005, 2005

WL 3334349 (D.C. Cir.).

12

REASONS FOR GRANTING THE WRIT

I. THE COURT OF APPEALS INVALIDATED

NATIONAL CAA REGULATIONS IN VIOLATION

OF SECTION 307(b), IN VIOLATION OF THIS

COURT’S PRECEDENT AND DECISIONS OF

OTHER COURTS OF APPEALS

The court of appeals held that EPA “cannot interpret

‘modification’ under the PSD inconsistently wih the way it

interprets that term under the NSPS,” because Congress

“intended the statutory definitions of ‘modification’ in the

PSD and NSPS provisions to be interpreted identically.”

App. 14a. This ruling cannot be fairly read as anything short

of an invalidation of the test for “emissions increases” set

forth in EPA’s 1980 regulations — turning on changes in

actual, annual emissions, measured in “tons per year,” 40

C.F.R. 51.166(b)(3), (21) (1987) — as contrary to the statute.°

In reaching that holding, the Fourth Circuit disregarded all

three of the distinct limitations on the timing, forum, and type

of judicial review proceedings that Section 307(b) imposes:

exclusive D.C. Circuit review of national CAA regulations;

filing of challenges within 60 days; and the command that

EPA actions reviewable by petition for review “shall not be

subject to judicial review” in enforcement proceedings. See

also 42 U.S.C. 7607(e).

The basis of the Fourth Circuit’s ruling was not the

application of EPA’s regulations to particular facts; rather the

court announced a categorical rule, based on assertedly

“plain” statutory language, that EPA lacks the authority to

adopt PSD modification regulations that interpret emissions

“increase” — a component term of the modification definition

— differently from how EPA’s NSPS regulations interpret that

* As we explain below, the Fourth’s explanation that Section 307(b) was

no bar because the court was merely “interpreting” the 1980 regulations,

App. | la n.7, was demonstrably wrong (and if correct would still not have

justified the court’s action).

13

term. See App. 1I4a-18a. Indeed, the court candidly

acknowledged that because (in its view) Congress had

“directly spoken to the precise question at issue * * * the

language and various interpretations of the PSD regulations”

were “largely irrelevant to the proper resolution of this case.”

App. lla n.3. But Section 307(b) expressly forbids courts

from engaging in such statutory-consistency review of

national EPA regulations in an enforcement proceeding.

The Fourth Circuit’s decision here represents an abrupt

departure from the decisions of other courts of appeals, which

have held that contentions that CAA regulations are contrary

to statute are cognizable only in the D.C. Circuit, and are

barred from enforcement proceedings.’ These courts have

correctly regarded the limitations in Section 307(b) (and the

similar or identical limitations on judicial review provided in

many other major regulatory statutes, see p. 28-29, infra) as

circumscribing the “subject matter jurisdiction” of federal

courts that are asked to review EPA regulations and other

final agency actions. See United States v. Ethyl Corp., 761

F.2d 1153, 1154 (Sth Cir. 1985).* They have emphasized the

” See, e.g., Enviro Tech International, Inc. v. EPA, 371 F.3d 370 (7th Cir.

2004) (review of EPA regulations “not within our own authority,”

because “that task belongs to” the D.C. Circuit); United States v. Kung-

Shou Ho, 311 F.3d $89, 607-08 (S" Cir. 2002) (challenge to definition of

“facility” in 1990 CAA regulations had to be brought in D.C. Circuit);

United States v. Walsh, 8 F.3d 659, 664 (9 Cir. 1993) (declining to

review regulations that were “challengeable under the procedures and

limits set out in 42 U.S.C. § 7607(b\1)”). See also Siegelman v. EPA,

911 F.2d 499 (11™ Cir. 1990) (claim that “EPA’s regulation conflicts with

an act of Congress” may not be entertained in enforcement proceeding

under RCRA provision, 42 U.S.C. 6976(a\(1), similar to CAA Section

307(b)); Chemical Weapons Working Group, Inc. v. U.S. Dept. of the

Army, \11 F.3d 1485, 1492 (10® Cir. 1997); WEPCo., 893 F.2d at 914;

Hawaiian Elec. Co., Inc. v. E.P.A.,, 723 F.2d 1440, 1445 (9" Cir. 1984).

* See also, e.g., Pan American Grain Mfg. Co., Inc. v. EPA, 95 F.3d 101,

103 (1* Cir. 1996); Greenpeace, Inc. v. Waste Technologies Industries, 9

F.3d 1174, 1180 (6" Cir. 1993); United States v. Walsh, 8 F.3d 659, 664

(9th Cir. 1993); Ohio Environmental Council v. United States District

Court, 565 F.2d 393, 397 (6" Cir. 1977).

14

practical importance of adhering to Section 307(b)’s

prescriptions in light of its “clear language and Congress’s

manifest intent to avoid protracted and _ inconsistent

adjudication.” /d. at 1156. They have recognized, as has this

Court, Section 307(b)’s careful language limiting and

channeling judicial review of CAA implementation, means

“exactly what it says.” Harrison, 446 U.S. at 589. See also

Hallstrom v. Tillamook County, 493 U.S. 20, 31 (1989)

(holding that statutory prerequisites to citizen suits under

Solid Waste Disposal Act was “mandatory” and leave courts

no “discretion” to “disregard these requirements”).

This is not the first unauthorized attack on these very 1980

PSD regulations. In Puerto Rican Cement, 889 F.2d 292, the

First Circuit ruled that the petitioner in a Section 307(a)

proceeding for review of a final EPA action of local or

regional applicability could not challenge the 1980 PSD

“emissions increase” regulations at issue here (as

incorporated in the parallel rules governing federally

administered PSD areas, see 40 C.F.R. 52.21(b) (1987)).

Pointing to the pending but stayed judicial review proceeding

in the D.C. Circuit, see n. 3, supra, Judge Breyer wrote:

EPA promulgated the regulations in question in 1980, see

45 Fed. Reg. 52,735 (1980); other parties have challenged

their lawfulness in a suit filed in the Court of Appeals for

the District of Columbia, see Chemical Mfrs. Ass'n y.

EPA, No. 79-1112 (D.C.Cir.). The Company has not tried

to intervene in that suit (which is still pending). It seems

obviously too late for the Company to mount an

independent legal challenge here. See Hawaiian Elec. Co.

4 \v. EPA}, 723 F.2d [1440, 1447 (9th Cir.1984)] (holding

that a challenge to another provision of 40 C.F.R. § 52.21

was untimely under 42 U.S.C. § 7607(b)(1)).

889 F.2d at 299. See also WEPCo., 893 F.2d at 914 n.6. It

should be noted that the prohibitory line the Fourth Circuit

leapt across here was far brighter than the one the First

Circuit properly declined to cross: This case is an

enforcement action, governed not only by the 60-day and

15

D.C. Circuit-only limitations at issue in Puerto Rican Cement,

but also by Section 307(b)(2)’s specific command that courts

“shall not” entertain collateral attacks to EPA regulations and

other final actions in enforcement actions. And it comes fully

16 years after the challenge that was “obviously too late” in

Puerto Rican Cement.

The court of appeals’ decision is also in tension with this

Court’s Section 307(b) decisions. In Adamo Wrecking, 434

U.S. 275, a criminal enforcement proceeding against a

company alleged to have violated an EPA emissions standard

for asbestos, this Court ruled that Section 307(b) did not bar

the defendant from interposing the defense that the

requirement in question did not constitute an “emissions

standard” under the CAA. /d. at 285. The Court emphasized

the criminal-enforcement context and uncertainty about

whether Section 307(b)’s bar was intended to extend to

EPA’s threshold determination on what is an “emissions

standard.” Even as it permitted the company to assert this

limited defense, the majority emphasized that it was

aware of the possible dangers that flow from this

interpretation; district courts will be importuned, under

the guise of making a determination as to whether a

regulation is an ‘emission standard,’ to engage in judicial

review in a manner that is precluded by Section 307(b)(2)

of the Act. This they may not do.

Id. at 285. In a dissenting opinion joined by two other

Justices, Justice Stewart expressed concern that even the

limited form of review permitted by the majority’s ruling

would “frustrate[} the intent of Congress to establish a speedy

and unified system of judicial review under the Act,” “invite[]

precisely the sort of inconsistent judicial determinations by

various courts that Congress sought to prevent,” and

undermine legislative intent “to maintain the integrity of the

time sequences provided throughout the Act.” /d. at 292. He

perceived a “camel’s nose” in the tent, and “fear[ed] that the

rest of the camel” was “almost certain to follow.” /d. at 293.

The Fourth Circuit’s decision here highlights the risks of

16

circumventing Section 307(b) noted by majority and

dissenters alike in Adamo Wrecking. See United States v. Ho,

311 F.3d 589, 607 (5" Cir. 2002) (Adamo Wrecking

“specifically forebade” lower courts from considering

procedural or substantive inquiries into a regulation during an

enforcement proceeding). And here -- where the challenger

had every opportunity to present the argument in a D.C.

Circuit Section 307(b) petition proceeding -- no due process

concerns are present that might arguably warrant a relaxation

of the express prohibition on collateral attack set forth in

Section 307(b). See Ethyl Corp., 761 F.2d at 1156 (“we

would be remiss to allow the narrow holding of Adamo

Wrecking to bulldoze the statute’s jurisdictional limitations in

civil enforcement proceedings”) (citing City of Seabrook v.

EPA, 659 F.2d 1349, 1370 (5 Cir. 1981)). Indeed, Section

307(b) protects interests in procedural regularity and fairness

— affording EPA, states, regulated entities, and environmental

groups alike clear rules on when, where, and how CAA

regulations may be challenged — that strongly disfavor the

sort of end run allowed here.

The reasons the Fourth Circuit gave for avoiding Section

307(b) only compound its jurisdictional error. In response to

objections that EPA’s regulations were subject to exclusive

review in the D.C. Circuit, the Fourth Circuit contended that

it was merely addressing an “interpretation” of EPA’s 1980

PSD regulations. See App. 11a n.7. The court reasoned that

“the PSD regulations can be interpreted consistently” with the

NSPS regulations, citing without any analysis the district

court’s interpretation of the regulations (which EPA and

petitioners contended was patently incorrect),? and opined

® The district court misread the provision of the 1980 regulations that

provides that an increase in hours of operation or production rate does not

constitute a “physical change” under the first prong of the modification

test, 40 C.F.R. 51.166(b)(2\iii)(f) (1987), to mean that even where there

is a physical change at a facility, the emissions increases from increased

hours of operation enabled by the change are not counted toward

increases. App. 59a-62a. But under the plain language of the regulations,

17

that a “choice of this interpretation — as required under the

statute — over the EPA’s interpretation is not an invalidation

of those regulations.” /d.

Even if one disregards the panel’s own acknowledgement

that the “the language and various interpretations of the PSD

regulations” were “largely irrelevant to the proper analysis of

this case,” App. 15a n.7, the Fourth Circuit’s asserted reason

for bypassing Section 307(b) is demonstrably wrong.

Undermining its claim to be engaged in “interpretation” of the

regulations, the court made no effort to follow the lodestar in

any such endeavor -- the regulatory text. See Christensen v.

Harris County, 529 U.S. 576, 587-88 (2000). As other courts

of appeals have recognized (in cases properly before them

under Section 307(b)), the NSPS and PSD regulations say

very different things, and these plain textual differences have

clear consequences. Among other things, the NSPS regulation

in question targets “emissions rates” measured in kilograms

per hour, 40 C.F.R. 60.14(b) (1987), whereas the PSD

regulations address “actual emissions” in “tons per year,” 40

C.F.R. 51.166(b)(2), (3), (21) (1987). As the D.C. Circuit

explained: “While the NSPS regulatory definition of

modification allegedly focuses on the hourly rate of

emissions, the NSR definition focuses on net emissions

increases measured in tons per year. Compare 40 C.F.R.

60.14 (NSPS with id 52.21(b)(2)(ii) (NSR).” New York, 413

F.3d at 18. The Seventh Circuit highlighted that same marked

difference in WEPCo, 893 F.2d at 905. See also, e.g., 57 Fed.

Reg. 32,314, 32,316 (July 21, 1992) (contrasting the NSPS

and PSD tests for emissions increase).

The court’s suggestion that the PSD regulations can be

“interpreted” to mean the same thing as the NSPS regulations

the “increased hours” exclusion extends only to the “physical change”

inquiry, not the separate “emissions increase” inquiry. Compare 40

C.F.R. 51.166(bX2\iii)(f) with 40 C.F.R. 51.166(bX3)(i)) (App. 102a,

103a). EPA made this clear when it promulgated the regulations in 1980,

45 Fed. Reg. at 52704, and the district court’s misconstruction was

explicitly rejected in WEPCo., 893 F.2d at 916 n. 11.

is contrary to analysis in WEPCo, 893 F.2d at 905; Puerto

Rican Cement, 889 F.2d at 296-97; and to the D.C. Circuit in

the decision authoritatively reviewing the regulations under

Section 307(b), New York, 413 F.3d at 18. Those courts

correctly recognize that the test of emissions increases

established under the 1980 PSD regulations is different in

textual expression, method of application, and concrete

consequences from the hourly “emissions rate” standard

under the NSPS regulation highlighted by the district court

and the Fourth Circuit. The differences between the

maximum hourly emissions rate mandated by the Fourth

Circuit and the actual, annual emissions standard expressed in

the PSD regulations are large — often (as here) determinative

of whether a pollution source will be treated as having

increased emissions a great deal, or not at all. See, e.g., New

York, 413 F.3d at 15 (illustrating consequences of choice

between maximum-hourly and actual-annual standards by

reference to the facts of Puerto Rican Cement, 889 F.2d at

293, 296-98). See also p. 27, infra.

Because the 1980 PSD regulations cannot be read to

provide for the “hourly rate” test ostensibly provided under

the NSPS regulations, the Fourth Circuit’s rationale for

sidestepping Section 307(b) was insupportable. Even had the

court actually engaged in close textual exegesis, no amount of

“interpretation,” however artful, could eliminate the clear

differences between the respective regulations (differences

that alone seem to violate the panel’s conclusion that the

CAA requires “the statutory definitions of ‘modification’ in

the PSD and NSPS provisions to be interpreted identically.’

App. 14a (emphasis added).

But even if the court had been correct that it was merely

mandating one linguistically possible and statutorily required

“interpretation” of the PSD regulations, it still would have

lacked authority to strike down EPA’s regulatory test for PSD

emissions “increases.” Contrary to the panel’s view, EPA’s

authoritative “interpretations” of CAA regulations are not

somehow exempt from Section 307(b)’s strictures. As this

19

Court made clear in Harrison, 446 U.S. 578, Section

307(b)(1)’s limitations apply not only to regulations, but also

to “any other final action” of EPA. Concluding that Section

307(a)’s broad language “must be construed to mean exactly

what it says,” id. at 584, the Court held that a petition for

review was the exclusive means of review of an EPA

determination that the NSPS applied to respondent’s waste-

heat boilers.

As the D.C. Circuit explained in New York, EPA had

repeatedly reaffirmed as the governing standard under the

1980 PSD regulations a test comparing “past annual

emissions” to “future annual emissions” — and not the

industry petitioners’ favored “maximum hourly emissions

rate” test. See 413 F.3d at 15 (citing Puerto Rican Cement

Co., 889 F.2d 292; WEPCo., 893 F.2d 901; 57 Fed.Reg.

32,314, 32,328 (July 21, 1992), and 67 Fed. Reg. 80,186,

80,199 (Dec. 31, 2002)). If, rather than simply forging ahead

with its Plant Modernization Program, Duke had sought an

applicability determination from EPA (the course followed

by the regulated entities in cases like Puerto Rican Cement

and WEPCo.), it could have filed a petition for review testing

EPA’s application of its regulations to particular facts

(though not the legality of the regulations themselves). See

Puerto Rican Cement, 889 F. 2d at 296-97, 299-300. Had

Duke challenged regulations or actions of “national”

applicability, its petition had to be filed in the D.C. Circuit.'®

What Duke could not lawfully do, under the statute, is what it

was allowed to do here: obtain invalidation of EPA’s

regulatory definition of PSD emissions “increase” in an

enforcement proceeding. See Adamo Wrecking Cos., 434

U.S. at 285; Puerto Rican Cement, 889 F.2d at 299-300.

'° Suits for review of EPA actions of local or regional applicability may be

filed in the regional court of appeals; however, as Puerto Rican Cement

illustrates, the validity of EPA’s national PSD rules would not have been

reviewable in such an action. 889 F.2d at 299-300. See also Section

307(b\(1) (exclusive D.C. Circuit review if EPA certifies that “local”

decision was “based on a determination of nationwide scope or effect” ).

20

This time Justice Stewart’s camel has appeared, not as a

nose, but as a camel. The Fourth Circuit’s ruling cuts a

gaping loophole in Section 307(b)’s carefully crafted scheme

for judicial review, and it merits this Court’s review.

Il. THE COURT OF APPEALS’ RULING THAT EPA

MUST ADOPT IDENTICAL REGULATORY

DEFINITIONS OF EMISSIONS “INCREASE”

UNDER THE NSPS AND PSD PROGRAMS IS

INCORRECT AND CONTRARY TO DECISIONS

OF OTHER COURTS OF APPEALS

Having overstepped Section 307(b) limitations on its

authority, the Fourth Circuit proceeded to misinterpret the

CAA. The court’s holding that Congress’s use of the same

statutory definition of “modification” in the PSD and NSPS

provisions “mandated” that EPA interpret an undefined

component of that larger definition — emissions “increase” —

must be “identically” (App. 14a) for the two programs

conflicts with decisions of other courts of appeals, and the

“effectively irrebuttable” (App. 17a) interpretive presumption

it employed is contrary to this Court’s oft-repeated teachings.

Since the earliest days of the PSD program, couris have

recognized that terms common to PSD and NSPS - including

component terms of the common statutory definition of

“modification” — can and should be given different definitions

to fulfill those programs’ distinct functions and aims. In

Alabama Power, the D.C. Circuit held that the term emissions

“increase” in the CAA’s definition of “modification” for PSD

— the very term at issue here -- can be interpreted differently

for those two programs. 636 F.2d at 401. Tha* court upheld

EPA’s use of a “bubble” concept (“netting”) in measuring

emissions increases for PSD, explaining that while ASARCO

Inc. v. Environmental Protection Agency, 578 F.2d 319 (D.C.

Cir. 1978), had held that “a bubble concept would be contrary

to the intent of the NSPS provisions,” such was “clearly not

the case with regard to the PSD provisions.” Alabama Power,

636 F.2d at 402. As the same court recently explained in New

21

York, EPA’s regulations have for decades rested on the

understanding that the agency can make _ reasonable

distinctions in its regulations governing NSPS and PSD

“modifications” to reflect significant differences between the

respective programs work. See 413 F.3d at 11-17, 18. See

also Citizens for Clean Air, 959 F.2d at 849 (“definitions of

the statutory terms are not necessarily transferable between

the PSD and NSPS programs”); WEPCo, 893 F.2d at 915

(“[uJnlike NSPS, PSD is concerned with changes in fotal

annual emissions, expressed in tons per year”).

The decision below conflicts with the D.C. Circuit’s

decision in New York in multiple respects. New York confirms

that, contrary to the Fourth Circuit’s theory, the PSD

regulation clearly establishes the actual, annual emissions

standard the Fourth Circuit believed it could “interpret” away.

413 F.3d at 18. And while the D.C. Circuit found that the

“identical regulatory definitions” theory adopted by the

Fourth Circuit had been waived, the court’s forceful rejection

of industry’s closely related argument (advanced by Duke in

this case) that Congress in 1977 had adopted NSPS

regulations embracing an hourly emissions rate test for use in

the PSD program, 413 F.3d at 19-20, is wholly incompatible

with the Fourth Circuit’s analysis here. The D.C. Circuit

observed that there were multiple regulatory definitions of

“modification” in place in 1977 when Congress added the

modification definition for PSD purposes, 413 F.3d at 19,

undercutting any notion that Congress intended to impose a

unitary, all-purpose regulatory definition covering both

programs. And, contrary to the Fourth Circuit, the D.C.

Circuit ruled that EPA not only may, but must, tailor its

regulatory test for PSD emissions increases to the distinctive

statutory requirements of the overall PSD program. See id. at

39-40 (PSD provisions, including definition of BACT,

obligate EPA to apply PSD “to changes that increase actual

emissions instead of potential or allowable emissions”).

The court of appeals misread Rowan, 452 U.S. 247, as

“dictat[ing]” the conclusion that Congress “affirmatively

22

mandated” that the term “modification” “be interpreted

identically” by EPA in implementing the PSD and NSPS

programs. 41] F.3d at 550. The court reasoned that the

“presumption” under Rowan was “effectively irrebut[t]able”

even by resort to acknowledged “differences between” the

“purposes” of the two statutory programs in which the two

definitions are found. Pet. App. 17a-18a.

Rowan does not, in fact, support that surprising principle.

In Rowan, the Court found that the use of nearly identical

language in defining the term “wages” in two revenue statutes

was “strong evidence” that Congress intended the term to

have identical meaning across them, and that Treasury had

failed to “implement the congressional mandate in a

consistent and reasonable manner.” 452 U.S. at 253, 255. It

did not treat Congress’s use of identical definitions as

dispositive, but relied on legislative history evincing a

specific congressional intent that the agency define the term

“wages” the same way in order to promote “simplicity and

ease of administration,” a goal ill-served by “[c]ontradictory

interpretations of substantially identical definitions.” 452 U.S.

at 255-57 (quoting S. Rep. No. 77-1631 at 165 (1942)). Here,

Congress expressed no intent that terms common to PSD and

NSPS be interpreted “identically” and without regard to

differences between the programs. To the contrary, Congress,

in separate enactments separated by seven years, inserted the

definitions of modification into two separate programs that, as

courts and EPA alike have repeatedly noted, have distinctly

different purposes and mechanics. See pp. 5, 17-18, supra.'!

'! In Rowan the Court noted that Treasury had abandoned its original

interpretation of the term “wages,” a “substantially contemporaneous

construction of the statute by those presumed to have been aware of

congressional intent.” may inform a court’s construction. 452 U.S. at 253,

258-59. By contrast, in PSD regulations enacted only a year after the

1977 amendments, EPA adopted a definition of modification that differed

from the NSPS definition. Compare 40 C.F.R. 52.21(b)(2) (1979) (PSD

modification requires increases above a threshold) with 40 C.F.R. 60.14(a)

(1979) (NSPS — no threshold). See also New York, 413 F.3d at 13-15.

23

This Court has rejected any “effectively irrebut[t]able”

presumption of the sort the Fourth Circuit invoked. It has

repeatedly emphasized that terms appearing in different

places in a statute — like the term “increases” in the CAA’s

NSPS and PSD provisions ~ necessarily gather meaning from

the different contexts in which they are used. See General

Dynamics Land Systems v. Cline, 540 U.S. 581, 595 (2001)

(“the presumption that identical words used in different parts

of the same act are intended to have the same meaning * * *

is not rigid and readily yields whenever there is variation in

the connection in which the words are used to warrant the

conclusion that they were employed in different parts of the

act with different intent’”) (citations omitted); United States

v. Cleveland Indian Baseball Co., 532 U.S. 200, 213 (2001)

(likening irrebuttable presumption of identical meaning to

“original sin”) (citation omitted). '*

The Fourth Circuit failed to heed these instructions,

relying instead on an abstract presumption favoring

regulatory identity despite “the different purposes of the

NSPS and PSD programs,” App. 18a, and giving no

consideration to how its abstract rule of “identity” would

affect the central elements of the PSD enactment (or the

NSPS provisions), nor to the reasons why EPA opted to use

an “actual annual” emissions test for PSD. Cf. New York, 413

F.3d at 22, 23-24 (noting that “[d]ifferent interpretations of

12 ‘As the court here observed (App. 4a, 9a), the cross-referenced PSD

definition of modification, 42 U.S.C. 7479(C), was added in “technical

and conforming” amendments, passed months after the main 1977 CAA

amendments, whose sponsor indicated the PSD modification definition

was proposed to “to conform” to the “usage in other parts of the Act.”

Pub. L. No. 95-190, § 14, 91 Stat. 1393, 1399-1404; 123 Cong. Rec.

36,250, 36,252, 36,331 (1977) (statement of Sen. Muskie). As the D.C.

Circuit noted in New York, Congress’s use of a cross-reference to

establishing the PSD definition was the equivalent of “having simply

repeated” in the PSD context “the definitional language used before in the

NSPS context,” revealing “no more than if Congress had used a little more

ink and repeated the NSPS definitions verbatim.” 413 F.3d at 19.

24

the term ‘increases’ may have different environmental and

economic consequences”).

The court of appeals’ embrace of an “effectively

irrebuttable” presumption obviating all need to look at

statutory context and purposes was fundamentally

inconsistent with this Court’s teachings on the “holistic

endeavor,” Koons Buick-Pontiac GMC y. Nigh, 125 S. Ct.

560, 566-67 (2004) (citations omitted), that is statutory

construction. This Court has repeatedly emphasized the need

to read statutory words “‘in their context and with a view to

their place in the overall statutory scheme,” Raygor v.

Regents of U. of Minnesota, 534 U.S. 533, 546 (2002)

(citations omitted), and in light of statutory purposes, see

Nixon v. Missouri Municipal League, 541 U.S. 125, 144

(2004) (“in all cases,” courts’ “task is to interpret the words of

[the statute] in light of the purposes Congress sought to

serve”); US Airways, Inc. v. Barnett, 535 U.S. 391, 397

(2002) (rejecting reading under which statute “could not

accomplish its intended objective”).

That the statutory test of modification is the same for both

NSPS and PSD programs did not answer the “precise

question at issue,” Chevron, 467 U.S. at 842, whether EPA

could adopt regulations implementing component terms in

that definition — here, the undefined and pivotal statutory

term, emissions “increase” — differently across the two

programs to accommodate real, explicit differences in the

programs’ legislatively prescribed mechanics and purposes.

Indeed, CAA provisions unique to the PSD program led

the D.C. Circuit in New York to rule that EPA must use an

“actual” emissions standard for measuring PSD emissions

increases. 413 F.3d at 38-40. The court there rejected, as

contrary to the language of the PSD statute (including the

definition of BACT), EPA’s use in the 2002 PSD regulations

of a “potential” emissions standard for measuring

“modifications” — the standard that the Fourth Circuit ruled is

statutorily required for PSD (because it is used in the NSPS

regulations). Other CAA provisions that are specific to the

25

PSD program support EPA’s decision to adopt a PSD

emissions increase test based on actual, annual emissions —

even if EPA chooses to use a maximum-hourly-rate test to

identify NSPS emissions increases. The fundamental purpose

of the PSD program is to regulate and protect local air quality,

42 U.S.C. 7470 — making it essential that any test of

emissions capture real-world changes in emissions. See

Alabama Power, 636 F.2d at 353 (statute requires “actual

emissions” standard); New York, 413 F.3d at 39-40 (CAA

forecloses emissions-increase test based on “potential or

allowable emissions”); 45 Fed. Reg. at 52680 (under 1980

regulations reductions, increases in emissions “will be

quantitatively assessed on the basis of an ‘actual emissions’

baseline, rather than a ‘potential to emit’ baseline”); id.

52699-52700 (discussing “actual, annual emissions” measure

for emissions increase). Numerous other provisions of the

PSD statute depart from the NSPS provisions in ways that

lend specific support to EPA’s “actual, annual” test, and

undermine any suggestion that Congress intended that EPA’s

regulations defining the statutorily undefined term, emissions

“increase,” be identical to regulations under the NSPS

program.”

The Fourth Circuit’s peremptory rule of identity led it to

disregard the consequences of the interpretation it adopted. A

test for emissions increases that is triggered only by increases

in maximum hourly emission rate artificially excludes from

'’ PSD applies only to “major sources,” a class defined by the ability to

emit specified pollutants in “tons per year,” 42 U.S.C. 7475, 7602(j), and

provides a limited exemption for the “expansion or modification” of an

existing facility whose emissions will be less than “fifty tons per year.”

Id. 7475(b). Major sources undergoing PSD review must demonstrate that

they will not violate an area’s “annual” increment, a showing that includes

the submission of “one calendar year” of monitoring data. /d

7475(d2X(C), (D). Under the Fourth Circuit’s approach, conventional

reliance on statutory context and structure was out of bounds, because

Congress’s choice of identical definitions for NSPS and PSD

“irrebuttably” prevailed despite any differences between the programs’

purposes or mechanics.

26

the “emissions increase” inquiry one of the three basic factors

— hours of operation — that (along with production rate and

emissions rate, see supra, pp. 7-8) determines how much

pollutant a source actually releases into the air. Whether or

not such a test fits with the NSPS provisions, it surely

undermines Congress’s purpose in subjecting “modifications”

to PSD review, disregarding as it does real, physical increases

in emissions of hundreds of tons and offering “vistas of

indefinite immunity,” see WEPCo., 893 F.2d at 909, to aging

facilities that Congress in 1977 expected would soon be

retired. Nothing in the CAA’s cross-referenced NSPS/PSD

definition of “modification,” or in Rowan, required such a

result.

Ill. THE CASE PRESENTS RECURRING ISSUES OF

NATIONAL IMPORTANCE

The decision below stands as a monument to why Congress

chose not to allow for challenges to EPA regulations in

enforcement proceedings: The Fourth Circuit set aside as

contrary to statute a regulatory test for emissions increases set

forth in 25-year-old regulations, and elaborated and applied in

WEPCo and Puerto Rican Cement. It announced a novel and

broad rule that the CAA demands uniformity between EPA’s

NSPS and PSD source modification regulations that conflicts

with Alabama Power and later decisions confirming EPA’s

authority to distinguish between NSPS and PSD in defining

emissions increases. The court did all this while the

regulations in question were before the D.C. Circuit in a

Section 307(b) review proceeding in which industry

challengers (including Duke) waived the argument adopted

by the Fourth Circuit. The court of appeals’ decision holding

unlawful EPA’s use of a PSD “actual, annual” test of PSD

emissions increases, and the statutory interpretation

underlying it, are starkly inconsistent with the D.C. Circuit’s

New York decision, and the ruling has prompted EPA to

initiate a rulemaking despite its continued disagreement with

the decision.

27

Left unreviewed, this extraordinary sequence will surely

invite litigants to try to circumvent Congress’s carefully

wrought and exclusive scheme of CAA review by presenting

challenges to EPA regulations in enforcement actions or other

district court proceedings.'* The Fourth Circuit’s willingness

to issue a broad ruling striking down venerable regulations

with only a perfunctory nod toward Section 307(b) will surely

invite and support future efforts at thinly veiled, piecemeal

collateral attacks on national CAA rules — just the result eight

members of the Court feared in Adamo Wrecking. And the

panel’s casual and legally inaccurate explanation that Section

307(b) somehow does not bar challenges to the

“interpretation” of regulations — a theory the panel elsewhere

appeared to disavow, App. Ila n.3 — provides a large-print

roadmap for such evasions.

The decision is all the more troubling because the judicial

review provisions of many other major environmental and

public health statutes are nearly identical to CAA Section

307(a), among them the Clean Water Act, 33 U.S.C. 1369(b);

the Oil Pollution Act, 33 U.S.C. 2717(a); the Safe Drinking

Water Act , 42 U.S.C. 300j-7; the Noise Control Act, 42

U.S.C. 4915(a); the Resource Conservation and Recovery

Act, 42 U.S.C. 6976(a); and CERCLA, 42 U.S.C. 9613(a).

The Fourth Circuit’s disregard for the bar on collateral attack

on EPA regulations will harm the various interests — from

EPA, to state air administrators, to environmental groups, to

business competitors - who should be able to rely on

adherence by litigants and courts to the exclusive mechanisms

provided for in CAA Section 307(b). This is particularly so

given the enormous time and expense that are invested in

jurisdictionally appropriate, multi-party review proceedings in

the D.C. Circuit that the Section 307(b) scheme fosters.

'* By allowing Duke to prevail on an argument it had waived in the

tribunal exclusively empowered by Congress to hear challenges to EPA

regulations, the ruling will tempt parties selectively to withhold from the

D.C. Circuit challenges they deem more viable in other fora.

28

The court of appeals’ reading of the CAA’s definition of

“modification” unsettles decades of judicial precedent and

administrative policy and practice built around the

recognition that EPA may make reasonable distinctions in its

implementation of the component terms of the statutory

“modification” definition. The court of appeals’ broad and

categorical requirement of identity between the NSPS and

PSD regulations will be invoked as a basis to restrict EPA’s

flexibility to administer the PSD and NSPS programs in the

future.'° And the court’s misreading of Rowan to create an

“effectively irrebuttable” presumption so powerful as to

foreclose inquiry into statutory context or purpose, or

empirical consequences, threatens mischief even beyond the

important questions of environmental law presented here.

The profound implausibility of the Fourth Circuit’s

reading of the statute, and the likelihood that it will foster

further litigation, are apparent in EPA’s recent notice of

proposed rulemaking. There, EPA acknowledged that even

its proposed regulations will be inconsistent with the

regulatory “identity” requirement the Fourth Circuit found in

the CAA’s plain language, but insisted that “[t]here are

differences between the two programs that prevent a

wholesale adoption of the NSPS modification definition into

the major NSR provisions.” 70 Fed. Reg. at 61090."°

'* The validity of the “actual, annual” test will retain considerable

importance regardless of whether EPA proceeds with its proposal to

amend its regulations in response to the decision — since any new

regulations would be prospective and would not apply to numerous major

enforcement proceedings that are pending. U.S v. AEP, Consol. Nos. C2-

99-1182 and C2-99-1250 (S.D. Ohio filed June 28, 2005); U.S. v. Cinergy,

No. 99-C-1693 (S.D. Ind. filed Nov. 3, 1999); U.S. v. Alabama Power,

No. 01-152-VEH (N.D. Ala. filed Jan. 12, 2002); U.S. v. East Kentucky

Power Coop., No. CV-04-34 (E.D. Ky. filed January, 2004).

'° EPA cited various ways in which the NSR/PSD and NSPS programs

differ, and added (70 Fed. Reg. at 61090 n.30): “We disagree with the

Fourth Circuit’s holding in Duke Energy, and thus believe we are able to

make reasonable distinctions between the NSPS and NSR programs where

appropriate.”

29

CONCLUSION

The petition for a writ of certiorari should be granted.

Respectfully submitted.

JEFFREY M. GLEASON SEAN H. DONAHUE*

J. BLANDING HOLMAN, IV 2000 L St., NW

CALEB JAFFE Suite 808

Southern Environmental Washington, D.C. 20036

Law Center (202) 466-2234

200 W. Franklin Suite 330

Chapel Hill, N.C. 27516

(434) 967-1450

VICKIE PATTON DAVID T. GOLDBERG

Environmental] Defense 99 Hudson St., 8th Floor

2334 North Broadway New York, N.Y. 10013

Denver, Colorado 80304 (212) 334-8813

(303) 447-0987

*Counsel of Record Counsel for Petitioners

30