Petition for Writ of Certiorari — American Chemistry Council v. Sierra Club

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i% ({) 09-495 OCT 22 2009

No. 09-OFFIGE OF THE CLERK

IN THE

Supreme Court of the United States

AMERICAN CHEMISTRY COUNCIL, AMERICAN FOREST

AND PAPER ASSOCIATION INC., AMERICAN PETROLEUM

INSTITUTE, NATIONAL PETROCHEMICAL & REFINERS

ASSOCIATION,

Petitioners,

Vv.

SIERRA CLUB, et al.,

Respondents.

On Petition for a Writ of Certiorari

to the United States Court of Appeals for the

District of Columbia Circuit

PETITION FOR A WRIT OF CERTIORARI

CARTER G. PHILLIPS*

DAVID T. BUENTE JR.

PETER R. STEENLAND JR.

JAMES W. COLEMAN

SIDLEY AUSTIN LLP

1501 K Street, N.W.

Washington, DC 20005

(202) 736-8000

Counsel for Petitioners

October 22, 2009 * Counsel of Record

an RRR IR EEToenE nt A TREOEED Hime me SSE

WILSON-EPES PRINTING Co., INC. — (202) 789-0096 — WASHINGTON, D. C. 20002

QUESTION PRESENTED

The Clean Air Act, 42 U.S.C. § 7607(b)(1), provides

a 60-day period for initiating petitions for review of

Environmental Protection Agency (EPA) regulations.

Petitions for review filed outside that period are

jurisdictionally barred. The District of Columbia

Circuit has adopted a “constructive reopening”

doctrine that permits a challenge to longstanding

regulations regardless of a failure to challenge the

regulation within the statutonly authorized period,

whenever regulatory changes have “changed the

calculus for petitioners in seeking judicial review.”

Pet. App. 12a. Other courts of appeals have

permitted petitions for review in such circumstances

only after the petitioner has first filed a petition with

the agency to alter or rescind its regulation. The

question presented is:

Whether a petitioner may challenge a Clean Air Act

regulation after the Act’s 60-day time period for

judicial review has expired, on the ground that the

regulatory context of the regulation has changed

sufficiently to alter the stakes for judicial review,

without first filing a petition with the EPA to rescind

or alter the regulation.

(1)

PARTIES TO THE PROCEEDING

‘ The Petitioner in Nos. 02-1135 and 03-1219

below was Sierra Club.

The Petitioners in No. 06-1215 below were Friends

of Hudson, Environmental Integrity Project,

Louisiana Environmental Action Network and

Coalition for a Safe Environment.

The Petitioner in No. 07-1201 below was Coalition

for a Safe Environment.

The Respondents in these consolidated cases below

were the United States Environmental Protection

Agency and Stephen L. Johnson, Administrator.

The Intervenors in these consolidated cases below

were American Chemistry Council, National

Environmental Development Association’s Clean Air

Project, Alliance of Automobile Manufacturers,

National Paint and Coatings Association, Coalition

for Clean Air Implementation, Clean Air

Implementation Project, Air Permitting Forum,

American Forest and Paper Association, American

Petroleum Institute and National Petrochemical &

Refiners Association, all in support of Respondent

EPA.

RULE 29.6 STATEMENT

Petitioner American Forest & Paper Association

(““AF&PA”) is the national trade association of the

forest, paper and wood products industry.

Petitioner American Petroleum Institute (“API”) is

a nationwide, not-for-profit association.

National Petrochemical & Refiners Association

(“NPRA”) is a national trade association.

ill

The AF&PA, API, and NPRA have no parent

companies, and no publicly-held company has a 10%

or greater ownership interest in either the AF&PA,

API, or NPRA.

The American Chemistry Council (“ACC”) is a not-

for-profit trade association. ACC has no outstanding

shares or debt securities in the hands of the public

and has no parent company. No publicly held

company has a ten percent (10%) or greater

ownership interest in ACC.

TABLE OF CONTENTS

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PARTIES TO THE PROCEEDING .....................

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STATUTES AND REGULATIONS INVOLVED

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A. Statutory Background ..................2.....20000

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REASONS FOR GRANTING THE PETITION...

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THE DECISION BELOW DEFIES THE

PLAIN TEXT OF THE CLEAN AIR ACT

AND UNRAVELS IMPORTANT ADMIN-

ISTRATIVE PROCEDURES ...-ccsccossccsoseeeess

THE CONSTRUCTIVE REOPENING

DOCTRINE CREATES A_ CIRCUIT

Ill. THE PRACTICAL IMPACT OF THE DE-

CISION BELOW MAKES IT PARTICU-

LARLY WORTHY OF REVIEW....................

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APPENDIX

APPENDIX A: Sierra Club v. EPA, 551 F.3d

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TABLE OF CONTENTS—continued

Page

APPENDIX B: Sierra Club v. EPA, No. 02-

1135 (9th Cir. July 30, 2009) (order denying

AA ESSER ee Oe RODEN SD eS a OA aR ae ee 22a

APPENDIX C: Sierra Club v. EPA, No. 02-

1135 (9th Cir. July 30, 2009) (order denying

reh’g en banc)

SORES EEE HEHEHE HEE EEE EERE HHO HEE

APPENDIX D: Statutes and Regulation

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TABLE OF AUTHORITIES

CASES Page

Bowen v. Georgetown Univ. Hosp., 488 U.S.

Pe II ox cots dona eecaena vangeaeecnsaa;tasienvadeone 23

Caminetti v. United States, 242 U.S. 470

ENT ccsch suet sudebtieineteseumebackesimiaasiainueianasentees 15

Dunn-McCampbell Royalty Interest, Inc. v.

Nat? Park Serv., 112 F.3d 1283 (5th Cir.

MUTED vaxuececdes cvdus insu nsenudeiasiaccadanaaceteiaeemaacn 18, 19

Enuvtl. Def. v. Duke Energy Corp., 549 U.S.

UN SITE uuiucassnsteversussascekicdakavckcutieasasenonaas 13

Kennecott Utah Copper Corp. v. U.S. Dep't

of Interior, 88 F.3d 1191 (D.C. Cir.

REE eR er iene re RC ERS er OO Aa 14, 16

Legal Envtl. Assistance Found., Inc. v. U.S.

EPA, 118 F.3d 1467 (11th Cir. 1997) ........ 19

Motor Vehicles Mfrs. Ass’n of U.S. v. State

Farm Mut. Auto. Ins. Co., 463 U.S. 29

EeININTY clcoccrule bisiculscouudusaumsmpbadanesbeuecseucete’ 15, 23

Natl Mining Ass’n v. U.S. EPA, 59 F.3d

Re eit Wy IED Kcacusecscachinessssectecsemneses 7

Oljato Chapter of Navajo Tribe v. Train,

515 F.2d 654 (D.C. Cir. 19785)............ecceees 21

Save the Bay, Inc. v. EPA, 556 F.2d 1282

i yk og 5 oe eee ane wre een 22

Union Elec. Co. v. EPA, 515 F.2d 206 (8th

Cir. 1975), affd, 427 U.S. 246 (1976)...... 20, 21

Wind River Mining Corp. v. United Siates,

946 F.2d 710 (9th Cir. 1991)...............00c00. 19

STATUTES AND REGULATIONS

6 U.S.C. § 701 Ot 800. ........0:02000. ieivecieccadeuios 16

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RS eae etd 18

OF Ua Ac Be I hired seeskchscnia Seecasecetdais 20

§ 1857h-5(b)(1) (1970).........-cceeeeee. 20

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TABLE OF AUTHORITIES—continued

Page

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Th) aeons tit: 5

OP EA scccdduancavevennialenazocsanauaaeal 1, 4, 6, 22

37 Fed. Reg. 17,214 (proposed Aug. 25,

RO TEP vncscvincocindecsssseacissnnesveineneaaaen 5

58 Fed. Reg. 42,760 (proposed Aug. 11

ROIEED veccecssissvesciicsceiieassatarttecmmneenee 6, 9, 24

National Emission Standards for Hazard-

ous Air Pollutants Source Categories:

General Provisions, 59 Fed. Reg. 12,408

(Dat. 16, BIO oisicncissscccncistereasna eee 6

National Emission Standards for Hazard-

ous Air Pollutants for Source Categories:

General Provisions; and Requirements

for Control Technology Determinations

for Major Sources in Accordance with

Clean Air Act Sections, Sections 112(g)

and 112()), 67 Fed. Reg. 16,582 (Apr. 5,

ITE) cvnvccacssseseccvénesonscanasasesnsaussiaeneel iiss 9

TABLE OF AUTHORITIES—continued

Page

National Emission Standards for Hazard-

ous Air Pollutants for Source Categories:

General Provisions; and Requirements

for Control Technology Determinations

for Major Sources in Accordance with

Clean Air Act Sections, Sections 112(g)

and 112(j), 68 Fed. Reg. 32,586 (May 30,

Cs csseneesceverseesecsoes )

National Emission Standards for Hazard

ous Air Pollutants: General Provisions,

71 Fed. Reg. 20,446 (Apr. 20, 2006) .......... 9

74 Fed. Reg. 9698 (proposed Mar. 5,

ole lens ses cecese py SE 8, 17, 24

PETITION FOR A WRIT OF CERTIORARI

Petitioners American Chemistry Council, American

Forest and Paper Association Inc., American

Petroleum Institute, and National Petrochemical &

Refiners Association respectfully petition for a writ of

certiorari to review the judgment and opinion of the

United States Court of Appeals for the District of

Columbia Circuit.

OPINIONS BELOW

The opinion of the court of appeals is reported at

551 F.3d 1019 and is reproduced in the appendix to

this petition (Pet. App.) at la—21la. The orders of the

court denying the petitions for rehearing and

rehearing en banc are unreported, and are reprinted

at Pet. App. 22a—25a.

JURISDICTION

The judgment of the court of appeals was entered

on December 19, 2008. A timely petition for

rehearing was denied on July 30, 2009. Pet. App.

22a--23a. Petitioners invoke this Court’s jurisdiction

under 28 U.S.C. § 1254.

STATUTES AND REGULATIONS INVOLVED

Section 112, 42 U.S.C. § 7412, section 302, 42

U.S.C. § 7602, and section 307, 42 U.S.C. § 7607, of

the Clean Air Act, and 40 C.F.R. § 63.6, in relevant

parts, are reproduced in the appendix at 26a—35a.

STATEMENT

In this case, a divided panel of the D.C. Circuit

invalidated a 1994 air pollution rule at the Sierra

Club’s request, even though the Clean Air Act’s 60-

day window for seeking judicial review of the rule

had long since passed. The court reasoned that,

notwithstanding the text of the Clean Air Act, Sierra

Club should be allowed to challenge the 1994 rule

because later rulemakings had changed the context

in which the earlier adopted rule operates, which has

supposedly altered the “stakes of judicial review.”

The panel held that the rule had been “constructively

reopened,” while conceding that it had not been

“actually reopened.”

The holding below raises a square conflict among

the circuits: the consensus of the Fifth, Eighth,

Ninth, and Eleventh Circuits is that, in these

circumstances, Sierra Club should have first

presented its case to the agency, petitioning the

Environmental Protection Agency (EPA) to rescind

its rule. If EPA had denied its petition to rescind, all

circuits agree that the Sierra Club could have

challenged this denia] and the agency’s reasoning in

federal court. This petition-to-rescind procedure

would have caused Sierra Club no harm and would

have avoided several harms caused by the D.C.

Circuit’s ruling.

First, the D.C. Circuit’s ruling defies the plain text

of the Clean Air Act (CAA). Under CAA section

307(b)(1), Sierra Club had 60 days within which to

file its petition for review, 42 U.S.C. § 7607(b)(1);

here, it waited eight years.

Second, the decision below unravels the normal

procedure for administrative rulemaking. In the

normal rulemaking process the agency notifies the

public of a proposed rule change; the stakeholders

comment on the proposal; the agency compiles these

comments in a record; and finally the agency makes a

considered decision on the basis of that record. At

that point, the decision is subject to judicial review

for a specified period of time. The “constructive

reopening” doctrine, which allows a party to

challenge a longstanding regulation in court anytime

that the context of the regulation changes, bypasses

and undercuts this process. It allows a petitioner to

raise a new challenge in court, without notice to other

stakeholders or comments from them, without a

record, without agency consideration of the views of

all interested parties, and without a reasoned agency

decision made in a nonlitigation context.

Third, the D.C. Circuit severely compounded this

problem in its substantive ruling by invalidating the

1994 rule on the basis that EPA had supposedly

admitted that it did not comply with statutory

requirements. Regardless of whether EPA actually

admitted anything, an agency cannot “admit” the

meaning of a statute. Allowing an agency to admit to

the meaning of a statute means that an agency can

reverse a longstanding rule in its litigation papers.

In this case, the court held that a few sentences in a

legal brief in 2008 negated a rule promulgated 14

years earlier after careful deliberation through

notice-and-comment procedures. If the agency wishes

to reverse position, it should do so following regular

rulemaking procedures open to all stakeholders.

Fourth, invalidating this particular rule threatens

regulated industries and businesses with substantial

hability, and the economy with unnecessary

disruption. The 1994 rule had provided that during

startup, shutdown, and malfunction (SSM) events,

businesses had to follow good work practices for

minimizing emissions, rather than meeting the

otherwise applicable standards for emissions of

hazardous air pollutants developed for normal

operations. EPA promulgated this rule because it

recognized that startup, shutdown, and malfunction

periods present unique and disparate challenges.

Acknowledging that these idiosyncrasies often make

it impossible for businesses to meet the otherwise

applicable emission standard, or for EPA to prescribe

a different standard for such events, EPA directed

that all sources follow “good air pollution control

practices for minimizing emissions,” during startup,

shutdown, and malfuncticn events. 40 C.F.R.

§ 63.6(e)(1)G). The ruling below means businesses

will be liable for noncompliance with standards that

EPA has acknowledged they will be unable to meet

Guring certain SSM periods. This is a significant

threat to these businesses because both the

government and ordinary citizens may sue them

under the Clean Air Act, potentially subjecting

violating businesses to substantial civil, and even

criminal, penalties.

In sum, this case presents an issue of sweeping

importance both to administrative law and _ to

companies subject to the Clean Air Act—an issue on

which the circuits are squarely divided. The Court

should grant certiorari.

A. Statutory Background

The Clean Air Act, designed to “protect and

enhance the quality of the Nation’s air resources,” 42

U.S.C. § 7401(b)(1), assumed its modern shape after

significant amendments in 1970. It contains several

programs to achieve its ends. Among the principal

provisions are the Clean Air Act section 111

“standards of performance” fer certain categories of

new sources that “cause[], or contribute[] significantly

to, air pollution” that endangers the public. 42 U.S.C.

§ 7411(b)(1). These section 111 standards are known

as new source performance standards, or NSPS.

When EPA first issued NSPS standards in the 1970s,

it directed that they did not apply to periods of

equipment startup, shutdown, and _ malfunction

(SSM), because the technologies used to meet these

standards of performance often “do not reach opti-

mum operating efficiency for some time,” and because

there is a “statistical probability of infrequent,

unavoidable mechanical failures” that can make it

impossible for a source to meet the standards during

a period of malfunction. 37 Fed. Reg. 17,214

(proposed Aug. 25, 1972). Instead, sources must

follow “good air pollution control practice for minimiz-

ing emissions” during SSM periods—a standard that

better reflects the unique and unpredictable problems

faced by extremely diverse sources during these

events. 40 C.F.R. § 60.11(d).

The Clean Air Act also regulates hazardous air

pollutants under section 112. 42 U.S.C. § 7412. In

1990 Congress significantly aitered the hazardous air

pollutant provisions of the Clean Air Act. Congress

listed 189 hazardous air pollutants, id. § 7412(b), and

directed that EPA provide “a list of all categories and

subcategories” of stationary sources that emitted

these pollutants by November 15, 1991. Id. § 7412(c).

Congress also instructed EPA to promulgate emission

standards for each source category on an aggressive

schedule. Jd. § 7412(d), (e). These section 112

standards are known as maximum achievable control

technology, or MACT, standards. MACT standards

for new sources must be at least as stringent as “the

emission contro] that is achieved in practice by the

best controlied similar source.” Jd. § 7412(d)(3). EPA

has set MACT standards on a source-by-source basis

for well over one hundred source categories, 40 C.F.R.

pt. 63, ranging from “Wood Furniture Manufacturing

Operations,” 40 C.F.R. pt. 63, subpt. JJ, to

“Containers” 40 C.F.R. pt. 63, subpt. PP, and from

“Dry Cleaning Facilities,” 40 C.F.R. pt. 63, subpt. M,

to “Shipbuilding and Ship Repair,” 40 C.F.R. pt. 63,

subpt. II. Thus, these section 112 standards now

affect a vast array of American manufacturers.

In promulgating MACT standards during the early

1990s, EPA relied upon its experience from the NSPS

program. It noted that section 112’s technology-

based standards for hazardous air pollutants are

“essentially equivalent to [section 111) performance

standards,” which apply to non-hazardous air

pollutants. 58 Fed. Reg. 42,760, 42,762 (proposed

Aug. 11, 1993). Consequently, it adopted a similar

exemption and general duty for startup, shutdown,

and malfunction events. EPA stated, with no.

equivocation, that “it is technically impossible to

properly operate” some required pollution control

techniques during “unpredicted and _ reasonably

unavoidable failures of air pollution control systems.”

Id. at 42,777. Accordingly, it required sources to

comply with the general duty to follow “good air

pollution control practices for minimizing emissions

to the greatest extent possible consistent with safety

and good air pollution control practices,” during such

events, 40 C.F.R. § 63.6(e)(1)G), rather than the

otherwise applicable MACT standard. National

Emission Standards for Hazardous Air Pollutants for

Source Categories: General Provisions, 59 Fed. Reg.

12,408 (Mar. 16, 1994) (“1994 Rule’).

Another provision of the 1994 Rule established

“recordkeeping requirements to allow [sources] to

develop a plan” for SSM events. 58 Fed. Reg. at

42,777. The 1994 Rule also provided that this plan

would be incorporated into the operating permit

required by the Clean Air Act, Title V. See 42 U.S.C.

§ 7661 et seq.; 59 Fed. Reg. at 12,439.

EPA’s final rule was published on March 16, 1994.

Clean Air Act section 307(b) directs that section 112

rules may be challenged only by a petition for review

in the D.C. Circuit within 60 days of publication—in

this case the deadline for challenge was May 15,

1994, 42 U.S.C. § 7607(b)(1). Environmental groups

did not petition for review of the 1994 Rule.

Although industry groups did seek review of other

portions of this rule,! no one challenged the SSM

provision at issue here—that is, the requirement that

a source follow the general duty to minimize emis-

sions during SSM periods unless its MACT prescribes

a more specific SSM standard. Accordingly, all

stakeholders—EPA, industry, States, environmental

groups, and others, viewed the SSM issue under

section 112 as resolved, subject only to future agency

promulgations, after notice and opportunity to

comment, of new MACT emission standards for

individual source categories.

After 1994, EPA promulgated MACT standards for

numerous source categories. Because these stan-

dards are specific to individual types of industrial

operation, they may supersede the general provisions

of the 1994 Rule where applicable. Some of these

MACT standards for specific industrial operations

apply during SSM periods, superseding the genera]

duty to follow good practices for minimizing

emissions during such periods. See 40 C.F.R. pt. 63,

subpt. L, National Emission Standards for Coke Oven

Batteries; 40 C.F.R. § 63.310. This makes sense for

source categories where startup, shutdown, and

malfunction events create predictable emission

problems that may be planned for and addressed with

new technology.

Many of the MACT standards, however, do not

apply during SSM events; instead, they rely on the

1 Industry groups’ claims were largely rejected. Natl Mining

Ass’n v. U.S. EPA, 59 F.3d 1351 (D.C. Cir. 1995) (per curiam)

general duty established in the 1994 rule to follow

good air pollution control work practices for

minimizing emissions at such times. This is not

surprising because during startup, shutdown or

malfunction, it is often literally impossibie for sources

to comply with the otherwise applicable MACT

standards for normal operations.

For example, when, after the decision below, EPA

proposed MACT standards for stationary recipro-

cating internal combustion engines, EPA recognized

that “emissions will likely be different during periods

of startup and malfunction, particularly for engines

relying on catalytic controls.” 74 Fed. Reg. 9698,

9710 (proposed Mar. 5, 2009). The agency deter-

mined that for some stationary internal combustion

engines, it could not rely upon catalytic controls to

reduce emissions during startup “because the engine

exhaust temperatures need to increase up to a certain

level for such controls to work effectively.” Id.

Further, EPA found that for this category of sources,

add-on controls often cannot be relied upon during

periods of malfunction, and relying upon the catalytic

controls during this period could permanently

damage the controls, rendering them unusable

during normal conditions. Id.

Faced with the decision below, EPA could no longer

rely on the general duty, and instead proposed

different, less stringent standards for periods of

startup, shutdown, and malfunction. Jd. at 9702—03

(listing different proposed standards for non-

emergency 2SLB, 4SLB, 4SRB, and CI sources). But

existing MACT standards often rely on the same

kinds of catalytic controls—controls that EPA has

acknowledged cannot be applied during startup and

malfunction. Thus, EPA was only stating the obvious

years ago when it noted that “unpredicted and

reasonably unavoidable failures of air pollution

control systems” could occur, making it “technically

impossible” to comply with MACT standards designed

for normal operation. 58 Fed. Reg. at 42,777. Indeed,

applying MACT standards designed for normal

operations to SSM events would violate the plain text

of the CAA, which requires that such standards be

“achievable.” 42 U.S.C. § 7412(d)(2).

B. Proceedings Below

In 2002, 2003, and 2006 EPA promulgated new

rules that changed how EPA monitors a source’s

compliance with the general duty to minimize

emissions during SSM events.2 As noted, other

provisions of the 1994 Rule required sources to file

SSM plans. Under these provisions, compliance with

the plan provided a safe harbor from enforcement

actions for violating the general duty. The 2002,

2003, and 2006 rulemakings altered these provisions

so that plan requirements no longer needed to be

subject to Title V review, but also provided that a

source’s compliance with a plan no longer provided it

with a safe harbor.

Sierra Club filed petitions for review, challenging

the 2002, 2003, and 2006 rules, alleging that these

2 National Emission Standards for Hazardous Air Pollutants

for Source Categories: General Provisions; and Requirements for

Control] Technology Determinations for Major Sources in

Accordance with Clean Air Act Sections, Sections 112(g) and

1129), 67 Fed. Reg. 16,582 (Apr. 5, 2002); National Emission

Standards for Hazardous Air Pollutants for Source Categories:

General] Provisions; and Requirements for Control Technology

Determinations for Major Sources in Accordance with Clean Air

Act Sections, Sections 112(g) and 112Q), 68 Fed. Reg. 32,586,

32,591 (May 30, 2003); National Emission Standards for

Hazardous Air Pollutants: General Provisions, 71 Fed. Reg.

20,446 (Apr. 20, 2006).

rules did not ensure compliance with the general

duty. But Sierra Club also argued that the i994 rule

itself was invalid because it relied on the general

duty to minimize emissions during SSM periods,

rather than the otherwise applicable MACT stan-

dard. Sierra Club argued that the 1994 Rule violates

section 112’s requirement that EPA promulgate

“emission standards” because CAA § 302(k) defines

“emission standard” as a requirement that “limits the

quantity, rate, or concentration of emissions of air

pollutants on a continuous basis.” 42 U.S.C.

§ 7602(k) (emphasis added). According to Sierra

Club, the 1994 rule did not provide for emission

limits on a “continuous” basis.

EPA, joined by Petitioners, noted that the court

only had jurisdiction to review petitions that had

been timely filed, and that the period for reviewing

the 1994 Rule had long passed. The D.C. Circuit

acknowledged that the petition fell outside the

statutory period, and that EPA had neither reopened

the 1994 Rule, nor acted in a manner that was

“tantamount to an actual reopening” of the rule. Pet.

App. 8a—9a (emphasis in original). Nevertheless, the

court held that EPA had “constructively reopened” its

1994 Rule by “modifying the SSM plan require-

ments.” Jd. at 10a. The court asserted that changing

the SSM plan requirements had “completely changed

the regulatory context for its SSM exemption.” /7d.

(quoting Sierra Club brief) (emphasis in original).

Offering several extended quotations from Sierra

Club’s brief, and none from the Clean Air Act, the

court asserted that ““EPA ha[d] eliminated all of thef]

safeguards,” that had ensured compliance with the

general duty. Pet. App. 10a (quoting Sierra Club

brief). The court suggested that “the general duty

requirement and the SSM plan requirements were

both elements of a package deal that EPA devised

and sold to the public as adequate protection from

{hazardous air pollutants] during SSM events.” 7d.

at 12a (quoting Sierra Club brief). Thus, the court

concluded that the 2002, 2003, and 2006 rules had

“changed the calculus for petitioners in seeking

judicial review, and thereby constructively reopened

consideration of the exemption from section 112

emission standards during SSM events.” Id. at 12a—

13a (internal citation omitted).

The court next concluded that the 1994 Rule

violated CAA section 112. It reasoned that the

definition of “emission standard” in CAA section

302(k) meant that “there must be continuous section

112—compliant standards.” Pet. App. 15a. It asserted

that EPA had admitted that the general duty to

follow good practices to minimize emissions was “not

a section 112-—compliant standard.” Jd. Thus, it

invalidated the 1994 Rule, asserting that “the general

duty that applies during SSM events is inconsistent

with the plain text of section 112.” Jd. at 2a.

Consequently, the court did not reach Sierra Club’s

objections to the 2002, 2003, and 2006 rules. Id. at

17a.

Judge Randolph dissented from the panel decision.

On the constructive reopening doctrine, he noted that

“{t]he majority’s [constructive reopening] rationale

implies that each time EPA changes an emissions

regulation, it risks subjecting every. related

regulation to challenges from third parties.” Pet.

App. 19a. He also noted that there is no need for the

constructive reopening doctrine: Sierra Club “may

file a petition to rescind [the 1994] regulations, and if

EPA denies the petition, Sierra Club may seek

judicial review of EPA’s action.” Jd. at 20a. Judge

Randolph also dissented from the majority’s

substantive ruling, noting that the majority’s

substantive analysis “dispose[d] of the case with an

argument not addressed in the brief of either party,”

so “EPA never had a fair opportunity to address the

issue.” Id. at 20a—21a. A timely petition for en banc

rehearing was denied on a five-to-three vote, with

Senior Judge Randolph and Judge Kavanaugh not

participating.

REASONS FOR GRANTING THE PETITION

The D.C. Circuit’s “constructive reopening” device

violates the plain text of the Clean Air Act, expanding

the jurisdiction of the court of appeals beyond that

granted by Congress. The decision also conflicts with

the decisions of several other federal circuits. The

court’s disregard of the text of the Act conflicts with a

long line of decisions from this Court. The decision

below presents particularly important questions

because the “constructive reopening” doctrine

threatens to undo administrative finality in cases far

beyond those involving EPA, thereby shifting the

focus of agency rulemaking from notice and comment

procedures, where the agency, industry, other

organizations, and the public can present their views

and defend their interests, to the federal courts,

where litigants are incentivized to play a cat-and-

mouse game with the agency and other parties in

order to attack settled rules.

The need for review of the decision of the D.C.

Circuit is particularly acute because of its substan-

tive conclusion that the general duty to follow “safety

and good air pollution control practices for

minimizing emissions,” during periods of equipment

startup, shutdown, and malfunction, unambiguously

violates EPA’s duty to promulgate “emission

standards.” This aspect of the decision holds sources

experiencing unavoidable malfunctions liable for

failure to comply with MACT rules that were adopted

on the understanding that it would often be

impossible to comply with them during malfunctions.

Given that the CAA authorizes both governmental

and citizen suit enforcement of the Act, the decision

threatens industries with substantial, unavoidable,

and unnecessary liabilities.

I. THE DECISION BELOW DEFIES THE

PLAIN TEXT OF THE CLEAN AIR ACT

AND UNRAVELS IMPORTANT ADMINI-

STRATIVE PROCEDURES.

The Clean Air Act’s judicial review provision, CAA

section 307(b)(1) provides: “A petition fer review of

action of the Administrator in promulgating ... any

emission standard or requirement under section 7412

of this title .. . may be filed only in the United States

Court of Appeals for the District of Columbia.” 42

U.S.C. § 7607(b)(1).2 It further provides:

Any 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.

Id.; see also Enutl. Def. v. Duke Energy Corp., 549

U.S. 561, 572—73 (2007).

3This provision dictates the review procedures for eight

categories of EPA action under the CAA, as well as “any other

nationally applicable regulations promulgated, or final action

taken” by EPA under the Act. 42 U.S.C. § 7607(b)(1).

There is no dispute that in this case the Sierra

Club’s petition is not “based solely on grounds arising

after” 1994. Although Sierra Club has asserted that

the 2002, 2003, and 2006 rules “completely changed

the regulatory context for [the] SSM exemption,” Pet.

App 9a (second emphasis added), Sierra Club’s

challenge is unquestionably aimed at the 1994

exemption itself. Whether or not Sierra Club’s

petition is based partly on grounds arising after 2002,

clearly it is not based solely on such grounds.

The text of the Clean Air Act provides an

unambiguous answer to petitioner’s challenge: it is

years too late. The decision below, however,

discarded the statutory time limits prescribed by

Congress. Instead, the court reasoned that EPA’s

changes to the SSM plan requirements had

“significantly altered the stakes of judicial review,”

and thus concluded that “(t]he fact that the

regulatory terms defining the general duty itself are

unchanged is legally irrelevant.” Pet. App. lla

(internal quotations and alteration omitted).

To support its decision, the court of appeals

provided an extremely one-sided summary of the

regulatory history of SSM plan requirements. But

more importantly, it offered no explanation of why

this regulatory history has any relevance to the text

of the Clean Air Act, which bars Sierra Club’s

challenge. Instead, it relied on a handful of earlier

D.C. Circuit cases, principally Kennecott Utah Copper

Corp. v. United States Department of Interior, 88 F.3d

1191 (D.C. Cir. 1996), that have employed the

“constructive reopening” device. Pet. App. 9a—1la.

Such a text-free approach to statutory construction

conflicts with this Court’s long-standing and

consistent doctrine: “Where the language is plain

and admits of no more than one meaning, the duty of

interpretation does not arise and the rules which are

to aid doubtful meanings need no discussion.”

Caminetti v. United States, 242 U.S. 470, 485 (1917).

One might imagine that such a departure from the

statutory text was motivated by strong policy

concerns, but there is no practical advantage to the

constructive reopening device. A long-standing rule

is not completely shielded from review by the running

of the statutory time period for a petition. As Judge

Randolph explained, “Sierra Club has another option:

it may file a petition to rescind those regulations and,

if EPA denies the petition, Sierra Club may seek

judicial review of EPA’s action.” Pet. App. 20a.

While this procedure would cause Sierra Club

almost no trouble, it would provide EPA, the public,

and the reviewing court clear benefits. Faced with a

petition to rescind, EPA could address the validity of

its 1994 regulation in a non-litigation setting and

within the context of its overall) responsibilities under

section 112. Equally important, other stakeholders,

such as the States, industry, and other non-

governmental organizations, could present their

views and defend their interests. And, if EPA

decided to rescind its regulation, it would have to do

so through notice-and-comment rulemaking. See

Motor Vehicles Mfrs. Ass'n of U.S. v. State Farm Mut.

Auto. Ins. Co., 463 U.S. 29, 42-43 (1983). This

procedure would allow the agency to make an

informed decision based on the comments of all

stakeholders. Finally, it would create a record that

would serve as the basis for the court of appeals’

review of the agency’s action.

Furthermore, as Judge Randolph noted, the

constructive reopening doctrine “implies that each

time EPA changes an emissions regulation, it risks

subjecting every related regulation to challenges from

third parties.” Pet. App. 19a. And, of course, the

doctrine is not limited to Clean Air Act regulation.

Kennecott was a case challenging regulations issued

under the Comprehensive Environmental Response,

Compensation, and Liability Act, 42 U.S.C. § 9601 et

seq. 88 F.3d 1191. In almost every area of

administrative law, each new regulation changes the

“regulatory context” for numerous other regulations.

Thus, the statutory time limits for review contained

in the Hobbs Act, 28 U.S.C. § 2341 et seq., as well as

other specific judicial review statutes similar to CAA

section 307(b)(1), are in danger of being compromised

by this ruling. Here, for example, the decision

radically altered the regulatory context for current

MACT standards for section 112 source categories

that rely on the general duty. Before the ruling

below, the otherwise applicable MACT standard did

not apply during SSM events; now, under the panel’s

ruling, it will. There is no doubt that the decision

below “significantly alter[ed] the stakes of judicial

review” of these source-specific MACT standards.

Pet. App. lla. Under the decision below, each such

standard may now be challenged regardless of the

Clean Air Act’s explicit deadline.

This unravels the regular ordering of the

administrative process. It unfairly disadvantages

those parties that rely on the notice-and-comment

procedure of the Administrative Procedure Act, 5

U.S.C. § 701 et seq. And, it rewards parties that

ambush agencies in litigation before they have been

able te consider their regulation in a non-litigation

context. EPA’s proposed MACT standard for station-

ary reciprocating internal combustion engines, which

followed the circuit court’s decision in this case,

reaffirms the wisdom of allowing the agency to

develop its record in a non-litigation context. For this

category of sources, the agency has been able to seek

views on how long a “start up” period should be and

consider the fact that use of the catalytic controls

during malfunction could render them ineffective

during normal operations. 74 Fed. Reg. at 9710—11.

Such tailoring of the MACT standards to the

applicable physical conditions has not been possible

for the large number of source categories for which

the decision below made the established MACT stan-

dard applicable at all times regardless of particular

problems and safety considerations present during

SSM events. This approach does not foster the

reasoned decision-making promoted by established

administrative procedures. Instead, it pushes

administrative disputes into the federal courts.

Il. THE CONSTRUCTIVE REOPENING DOC-

TRINE CREATES A CIRCUIT SPLIT.

Given that the constructive reopening doctrine

violates the plain text of the Clean Air Act and the

animating principles of administrative procedure, it

is not surprising that it conflicts with the decisions of

several circuit courts of appeals. The D.C. Circuit, of

course, handles many petitions for review, so its

decision, even standing alone, would warrant this

Court’s review because of the practical importance of

its holding. But other circuits have repeatedly

rejected the approach taken by the D.C. Circuit,

holding that if a party wants to challenge a

regulation after statutory time limits have passed, it

must first petition the agency to rescind the

challenged regulation.

The Fifth, Ninth, and Eleventh Circuits have

emphasized that the petition-to-rescind procedure is

faithful to the text of statutory time limitations, while

at the same time allowing for review of older

regulations that are alleged to be ultra vires. In

Dunn-McCampbeil Royalty Interest, Inc. v. National

Park Service, 112 F.3d 1283 (5th Cir. 1997), the Fifth

Circuit addressed a 1994 challenge to 1978 Nationa!

Park Service regulations. Jd. at 1285-86. The court

held that the challenge was barred by the general six-

year statute of limitations for civil actions against the

government, 28 U.S.C. § 2401(a). Dunn-McCampbell,

112 F.3d at 1286-88. It noted: “If Dunn-McCampbell

were able to point to ... an application of the

regulations [to Dunn-McCampbell] here, or if they

had petitioned the National Park Service to change

the ... regulations and been denied, this court might

have jurisdiction to hear that case.” /d. at 1287-88.

The Fifth Circuit relied on a Ninth Circuit decision

and a 1990 decision of the D.C. Circuit:

The Ninth Circuit, for example, has held that a

challenger may contest an agency decision as

exceeding constitutional or statutory authority

after the limitations period, but only by

petitioning the agency to review the application

of the regulation to that particular challenger.

Wind River Mining Corp. v. United States, 946

F.2d 710, 715 (9th Cir.1991). Although the Wind

River Court never said so explicitly, the court

treated the agency’s denial of that petition as a

“final agency action” sufficient to create a new

cause of action under the APA.

Similarly, in Public Citizen vu. Nuclear

Regulatory Commission, the D.C. Circuit held

that it had jurisdiction to hear a substantive

challenge after the limitations period had run.

901 F.2d 147, 152 (D.C.Cir.[1990]). In that case,

the claimant filed a petition with the agency to

rescind regulations, then challenged the agency’s

denial of the petition in federal court.

Id. at 1287 (subsequent history citation omitted).

The Wind River decision is similarly instructive. In

1987, the Wind River mining company petitioned the

Bureau of Land Management (BLM) to rescind its

1979 decision to classify certain land as a Wilderness

Study Area. Wind River Mining Corp. v. United

States, 946 F.2d 710, 711-12 (9th Cir. 1991). The

company alleged that the land did not meet the

statutory requirements for this classification. Jd. at

711. When BLM refused, the company filed suit in

federal court. Id. at 712. Although the Ninth Circuit

concluded that 28 U.S.C. § 2401(a)’s_ six-year

requirement applied to the company’s claim, id. at

713, it held that the claim was timely because of the

1987 petition to rescind. Jd. at 716. It concluded that

if “a challenger contests the substance of an agency

decision as exceeding constitutional or statutory

authority, the challenger may do so later than six

years following the decision by filing a complaint for

review of the adverse application of the decision to

the particular challenger,” reasoning that “[t]he

government should not be permitted to avoid all

challenges to its actions, even if ultra vires, simply

because the agency took the action long before anyone

discovered the true state of affairs.” Id. at 715.

The Eleventh Circuit has also held that a litigant

may challenge the substantive validity of an older

regulation through the petition-to-rescind procedure.

See Legal Enutl. Assistance Found., Inc. v. U.S. EPA,

118 F.3d 1467, 1473 (11th Cir. 1997) (“[I]n the course

of reviewing EPA’s order denying LEAF’s petition,

over which our jurisdiction is not questioned, we also

have jurisdiction to entertain LEAF’s contention that

the regulations upon which EPA relies are contrary

to statute and therefore invalid, regardless of the fact

that LEAF’s challenge is brought outside the

statutory period for a direct challenge to the

regulations.”) (interpreting the Safe Drinking Water

Act’s judicial review provision, 42 U.S.C. § 300)-

7(a)(2)).

Other circuits have reached the same conclusion, on

the basis that requiring an initial petition to rescind

allows for creation of a record and a considered

decision by the agency made outside of the litigation

context. The Eighth Circuit and even the D.C.

Circuit followed this reasoning in relatively early

Clean Air Act cases. The courts were interpreting

section 307(b)(1) of the 1970 Clean Air Act, which

provided: “A petition for review .... shall be filed

within 30 days from the date of such promulgation,

approval, or action, or after such date if such petition

is based solely on grounds arising after such 30th

day.” 42 U.S.C. § 1857h—5(b)(1) (current version at

42 U.S.C. § 7607(b)(1)). The Eighth Circuit concluded

that if a petitioner wanted to bring a challenge

outside of the thirty day limit, it must first present

the request to the agency, even if the petition was

based on new grounds. Union Elec. Co. v. EPA, 515

F.2d 206, 220 (8th Cir. 1975), affd, 427 U.S. 246

(1976). Relying on legislative history, and the need to

develop a record at the agency before an appeal, the

court reasoned:

The Senate Report indicates that it is only when

the Administrator fails to act upon the basis of

the new information that review is proper under

§ 307, implying that the information would have

to be brought to the Administrator’s attention.

The petition for review in this circumstance

would be a challenge to the Administrator's

action and would require a scrutiny of the

administrative record available to the Admini-

strator to determine whether a clear error of

judgment had been shown. It would not require

that this couri in the first instance develop a

record on the challenges.

Id. at 220. Thus, the court concluded that “[i]t is only

when the Administrator fails to act upon the basis of

the new information presented to him that a petition

for review is proper.” Id.

In Oljato Chapter of Navajo Tribe v. Train, 515

F.2d 654 (D.C. Cir. 1975), the D.C. Circuit adopted

the Eighth Circuit’s approach, stating:

we find no substantive difference between direct

review of a new information challenge and

review of the Administrator’s refusal to revise a

standard when presented with new information.

In both cases a revision would be ordered only if

it would be arbitrary and capricious to do

otherwise. We think, however, that review of the

Administrator’s refusal is a considerably more

desirable approach. Such a procedure would

avoid litigation when the Administrator acceded

to a request and, when he did not, it would

present us with an administrative record, includ-

ing the Administrator’s views in a nonlitigation

context, a judicially recognized distinction of

importance.

Id. at 666. Ordinarily, the Court is not concerned

when there appears to be an intra-circuit conflict and

thus the presence of an earlier D.C. Circuit ruling

would not be relevant to certiorari. But given the

dominance of the D.C. Circuit in reviewing agency

rulemakings, tension among decisions within that

Circuit should operate much the way it does when the

Court is reviewing decisions of the Federal Circuit on

subjects over which it has all but exclusive authority.

Thus, Judge Randolph's dissent, which relies heavily

upon previous Circuit holdings, provides an

unusually strong basis for this Court's review in this

case.

The Fifth Circuit has also endorsed these principles

in the context of the Clean Water Act in Save the Bay,

Inc. v. EPA, 556 F.2d 1282 (5th Cir. 1977). The court

embraced Oljato, noting that the petition-to-rescind

procedure would “ensure orderly development of the

issues and the record, as well as ... promote the full

and objective application of the agency’s expertise.”

Id. at 1289.

Thus, other courts of appeals have reached

agreement on the proper procedure for substantive

challenges to agency regulations outside the

statutorily prescribed review period: such challenges

must be brought through a petition to rescind. Such

a rule honors the statutory text, and the principles of

administrative law. The decision below is an

egregious departure from the decisions of the other

circuits, and even from earlier decisions of the D.C.

Circuit. And it is an extremely important departure

because of the D.C. Circuit’s special role in reviewing

agency regulations. Accordingly, this Court should

grant the petition.

Ill. THE PRACTICAL IMPACT OF THE DECI-

SION BELOW MAKES IT PARTICULARLY

WORTHY OF REVIEW.

The substantive conclusion of the court below

reinforces the need for review. The court of appeals

provided little independent reasoning for invalidating

the 1994 Rule. Instead, it relied on a supposed

agency admission that the general duty to follow

“good air pollution control practices for minimizing

emissions,” 40 C.F.R. § 63.6(e)(1)(i), is “not a section

112—compliant standard.” Pet. App. 15a. This

reasoning aggravates the court’s mistaken reopening

decision, because it means that EPA may reverse a

well-settled rule without any administrative process

or notice to interested parties. According to the court,

EPA’s appellate brief as respondent below suddenly

reversed a position that the agency had adopted in

notice-and-comment rulemaking and then maintain-

ed for 14 years. This reasoning is inconsistent with

this Court’s holdings on rescinding a regulation, see

Motor Vehicles Mfrs., 463 U.S. at 42—43, and with the

distinction this Court has drawn between agency

interpretations promulgated under delegated con-

gressional authority and those asserted in litigation

papers. Bowen v. Georgetown Univ. Hosp., 488 U.S.

204, 212 (1988).

The decision reached by this faulty reasoning

threatens to overturn EPA’s complex and well-

developed NSPS program, which was established well

over 30 years ago. As noted, the general SSM duty

for section 112 is modeled on the NSPS standard

under section 111. Although NSPS standards are

known as “standards of performance” rather than

“emission standards,” the Clean Air Act defines a

“standard of performance” as an “emission

limitation,” 42 U.S.C. § 7411(a)(1), which is defined

as equivalent to an “emission standard.” Id.

§ 7602(k). Thus, NSPS standards are now vulnerable

to a similar challenge.

This decision also presents the unusual case of

practical consequences so stark that they warrant

review. The decision holds sources experiencing

unavoidable malfunctions liable for failing to comply

with MACT rules that were promulgated on the

understanding that they would not apply during

startups, shutdowns, or malfunctions.4 As _ noted,

MACT standards are set so that they are at least as

stringent as “the emission control that is achieved in

practice by the best controlled similar source.” Id.

§ 7412(d)(3). And when EPA set these standards, it

generally did not consider the emission control

achieved in practice by sources during SSM events,

because those events were covered by the general

duty to minimize emissions at such times. See 74

Fed. Reg. at 9710. Indeed, EPA still has not even

collected data on these emissions. Jd. But under the

decision below, a source that is starting up, shutting

down, or has malfunctioned will be held to the

emission standards achieved by the best sources

during normal operation, even though “it is

technically impossible to properly operate” many

required pollution control technologies during

“unpredicted and reasonably unavoidable failures of

air pollution control systems.” 58 Fed. Reg. at

42,777; 74 Fed. Reg. at 9710-11.

If the D.C. Circuit’s decision is implemented, the

government could prosecute sources that unavoidably

fail to comply with MACT limits. And even if it does

not, Clean Air Act section 304 provides for citizen

suits. 42 U.S.C. § 7604. Thus, any party seeking to

punish an emission source for any reason, environ-

mental or otherwise, or simply seeking attorneys fees,

see td. § 7604(d), can sue these sources and claim a

violation of section 112 that was never contemplated

when the 1994 Rule was adopted. Given the CAA’s

4As EPA has recognized, it can take 15 to 30 minutes of

operation for exhaust gas temperatures to reach the tempera-

ture levels where certain catalytic controls become effective, and

attempting to use these controls during startup or malfunction

could compromise their overall effectiveness. 74 Fed. Reg. at

9710.

penalties, which include civil and criminal sanctions,

id. § '7413(b); 40 C.F.R. § 19.4; 42 U.S.C. § 7413(c)(1),

this decision threatens industry with substantial,

unavoidable liability and irreparable harm.

Thus, the decision below presents a particularly

important question of federal law because of its

implications for administrative procedure, the Clean

Air Act, and the national economy.

CONCLUSION

For the foregoing reasons, the petition for a writ of

certiorari should be granted.

Respectfully Submitted,

CARTER G. PHILLIPS*

DAVID T. BUENTE JR.

PETER R. STEENLAND JR.

JAMES W. COLEMAN

SIDLEY AUSTIN LLP

1501 K Street, N.W.

Washington, DC 20005

(202) 736-8000

Counsel for Petitioners

October 22, 2009 * Counsel of Record

APPENDIX

APPENDIX A

UNITED STATES COURT OF APPEALS,

DISTRICT OF COLUMBIA CIRCUIT

Nos. 02-1135, 03-1219, 06-1215, 07-1201

SIERRA CLUB,

Petitioner

Vv.

ENVIRONMENTAL PROTECTION AGENCY and

STEPHEN L. JOHNSON, ADMINISTRATOR,

ENVIRONMENTAL PROTECTION AGENCY,

Respondents

AMERICAN CHEMISTRY COUNCIL, et al.,

Intervenors

Argued Sept. 12, 2008

Decided Dec. 19, 2008

Before ROGERS, TATEL, Circuit Judges, and

RANDOLPH, Senior Circuit Judge.

Opinion for the Court by Circuit Judge ROGERS.

Dissenting opinion by Senior Circuit Judge

RANDOLPH.

ROGERS, Circuit Judge:

Petitioners challenge the final rules promulgated

by the Environmental Protection Agency exempting

major sources of air poliution from normal emission

standards during periods of startups, shutdowns, and

malfunctions (“SSM”) and imposing alternative, and

arguably less onerous requirements in their place.’

Because the general duty that applies during SSM

events is inconsistent with the plain text of section

112 of the Clean Air Act (“CAA”), even accepting that

“continuous” for purposes of the definition of “emis-

sion standards” under CAA section 302(k) does not

mean unchanging, the SSM exemption violates the

CAA’s requirement that some section 112 standard

apply continuously. Accordingly, we grant the peti-

tions and vacate the SSM exemption.

CAA section 112 designates over one hundred pol-

lutants as “hazardous,” 42 U.S.C. § 7412(b)(1), and

directs the Administrator of EPA to list all categories

of “major sources” of hazardous air pollutants

(“HAPs”), id. § 7412(c)(1), and to establish for each

“emissions standards” requiring “the maximum degree

of reduction in emissions,” id. § 7412(d)(2). These

controls are referred to as maximum achievable con-

trol technology (“MACT”) standards. See Natural Re-

sources Def. Council v. EPA, 489 F.3d 1364, 1368

(D.C.Cir.2007). Section 112 also sets a “MACT floor,”

id., requiring that standards “shall not be less strin-

gent than the emission control that is achieved in

practice by the best controlled similar source,” 42

U.S.C. § 7412(d)(3). After eight years, under section

112(, EPA is to revisit and potentially revise the

emissions standards for each source category to ensure

that they “provide an ample margin of safety to pro-

tect public health,” id. § 7412(f(2)A), “Emission

standard” is defined in section 302(k) as “a require-

ment established by the State or the Administrator

'40 C.F.R. § 63.6(e)(/ )(Gi), (D1), and (h)(1).

which limits the quantity, rate, or concentration of

emissions of air pollutants on a continuous basis, in-

cluding any requirement relating to the operation or

maintenance of a source to assure continuous emission

reduction, and any design, equipment, work practice

or operational standard promulgated under this chap-

ter.” 42 U.S.C. § 7602(k).

In addition to revising section 112, the 1990 Amen-

dments also added Title V, which establishes a permit

program to better monitor compliance with emissions

standards. “Each permit... shall include enforceable

emission limitations and standards, a schedule of com-

pliance, .. . and such other conditions as are necessary

to assure compliance with applicable requirements of

this chapter.” Jd. § 7661c(a). Sources are required to

certify that they are in compliance with the applicable

requirements of the permit “and to promptly report

any deviations from permit requirements to the per-

mitting authority.” Jd. § 7661b(b)(2). Title V further

creates a “permit shield” for sources, ensuring that

compliance with the permit is “deemed compliance with

other applicable provisions” of the CAA. Id. § 7661c(f).

“Any permit application, compliance plan, permit, and

monitoring or compliance report” under Title V must

be “maldle available to the public.” Jd. § 766la(b)(8).

In the 1970s EPA had determined that excess

emissions during SSM periods are not considered vi-

olations of CAA emissions standards under section

111.* Although sources were “exemptled] from com-

? Standards of Performance for New Stationary Sources, 42

Fed.Reg. 57,125 (Nov. 1, 1977); see, e.g., 51 Fed.Reg. 27,956,

27,970 (Aug. 4, 1986). Section 111 left to the Administrator's

discretion the establishment of emissions standards for pollu-

tants from sources while section 112 mandated the establish-

pliance with numerical emissions limits” during SSM

events, 42 Fed.Reg. 57,125, EPA required that “[aJt

all times, including periods of [SSM], owners and op-

erators shall, to the extent practicable, maintain and

operate any affected facility including associated air

pollution control equipment in a manner consistent

with good air pollution control practice for minimizing

emissions,” 40 C.F.R. § 60.11(d). EPA refers to sources’

obligation to minimize emissions to the greatest ex-

tent possible as the “general duty” standard. See, e.g.,

70 Fed.Reg. 43,992, 43,993 (July 29, 2005).

In 1994, EPA adopted the SSM exemption for sec-

tion 112. National Emission Standards for [HAPs] for

Source Categories: General Provisions, 59 Fed.Reg.

12,408 (Mar. 16, 1994) (“1994 Rule”).° Each source

was thus exempted from the numerical limits set for

emission control pursuant to section 112 and only the

general duty would apply. However, in order to avoid

a blanket exemption, EPA required each source to

develop and implement an SSM plan. “The purpose of

the plan [was] for the source to demonstrate how it

will do its reasonable best to maintain compliance with

the standards, even during [SSMs].” Jd. at 12,423.

Each SSM plan was to “describe[ ], in detail, proce-

dures for operating and maintaining the source during

periods of [SSM] and a program of corrective action

for malfunctioning process and air pollution control

equipment used to comply with the relevant stan-

ment of emissions standards for over 100 HAPs. See New Jersey

uv. EPA, 517 F.3d 574, 580 n. 1 (D.C.Cir.2008).

* “The General Provisions have the legal force and effect of

standards, and they may be enforced independently of relevant

standards.” 59 Fed.Reg. at 12,408. The requirements of the

General Provisions are superceded by any category-specific

standard. See id. at 12,409.

dard.” Jd. at 12,439. The EPA Administrator could

require changes to the SSM plan if it was inadequate.

Id. at 12,440. The plan was incorporated by reference

into the source’s Title V permit, 59 Fed.Reg. at 12,439,

and thereby subject to prior approval by the State

permitting authority, 58 Fed.Reg. 42,760, 42,768

(Aug. 11, 1993). Under the CAA, the SSM plan was to

be made publicly available, 42 U.S.C. § 7661la(b)(8),

and served as a safe harbor during SSM events, id.

§ 7661c(f).

In 2002, EPA removed the requirement that a

source’s Title V permit incorporate the SSM plan,

and instead determined that a source’s Title V permit

must simply require the source to adopt an SSM plan

and to abide by it.* Because the SSM plan was no

longer itself part of the permit and could be revised

without formal] revision of the permit, it was no longer

subject to prior approval, and was no longer eligible

for the permit shield. 7d. Additionally, “to minimize

the unnecessary production of the SSM plan,” 66

Fed.Reg. 16,318, 16,326 (Mar. 23, 2001), the SSM

plan was to be made publicly available only upon re-

quest. Id. The Sierra Club sought reconsideration and

filed a petition for review of the 2002 Rule, and as

part of a settlement agreement, EPA proposed “modest”

changes to the SSM plan regulations, 67 Fed.Reg.

72,875, 72,879 (Dec. 9, 2002), namely that sources

must submit their SSM plans to the permitting au-

thority along with their Title V permit applications.

* National Emission Standards for Hazardous Air Pollutants

for Source Categories: General Provisions; and Requirements for

Control Technology Determinations for Major Sources in Accor

dance with Clean Air Act Sections, Sections 112(g) and 112(j), 67

Fed.Reg. 16,582 (Apr. 5, 2002) (“2002 Rule”)

In the final rule adopted in 2003, however, EPA

“decided instead to adopt a less burdensome ap-

proach,”° requiring members of the public to make a

“specific and reasonable request” of the permitting

authority to request the SSM plan from the source.

68 Fed.Reg. at 32,591. The Sierra Club challenged the

2003 Rule in a new petition for review, which was

consolidated with its previous challenge. The Natural

Resources Defense Council (*“NRDC”) also filed a peti-

tion for reconsideration on the ground that any limi-

tation on the public availability of the SSM plans was

unlawful. EPA agreed to take comment on the new

SSM provisions, and the consolidated cases were held

in abeyance pending reconsideration.

In 2006, EPA retracted the requirement that sources

implement their SSM plans during SSM periods.® Ac-

cording to EPA, “(t]his is consistent with the concept

that the plan specifics are not applicable requirements

[under Title V] and thus cannot be required to be fol-

lowed. Nonetheless, the general duty to minimize

emissions remains intact and is the applicable re-

quirement.” 70 Fed.Reg. 43,992, 43,994 (Jul. 29, 2005).

Post-event reporting requirements provided that

sources must describe what actions were taken to mi-

nimize emissions “any time there is an exceedance of

an emission limit... and thus a possibility that the

general duty requirement was violated.” 71 Fed.Reg.

° National Emission Standards for Hazardous Air Pollutants

for Source Categories: General Provisions; and Requirements for

Control Technology Determinations for Major Sources in Accor-

dance with Clean Air Act Sections, Sections 112(g) and 112(j), 68

Fed.Reg. 32,586, 32,591 (May 30, 2003) (“2003 Rule”).

® National Emission Standards for Hazardous Air Pollutants:

General Provisions, 71 Fed.Reg. 20,446, 20,447 (Apr. 20, 2006)

(“2006 Rule”).

at 20,448. EPA clarified that reporting and record-

keeping is only required when a start up or shut

down caused the applicable emission standard to be

exceeded, and “for any occurrence of malfunction which

also includes potential exceedances.” Id. at 20,447.

EPA also eliminated the requirement that the Ad-

ministrator obtain a copy of a source’s SSM plan upon

request from a member of the public and determined

that the public may only access those SSM plans ob-

tained by a permitting authority. The permitting au-

thorities, in turn, “still have the discretion to obtain

plans requested by the public, but will not be required

to do so.” Id.

Petitioners’ now contend that the exemption from

compliance with emissions standards during SSM

events is both unlawful and arbitrary, and that the

2002, 2003, and 2006 rules unlawfully and arbitrarily

fail to “assure compliance” with “applicable require-

ments” under Title V. Upon determining that we

have jurisdiction, we turn to petitioners’ challenges to

the rules.

7 The Coalition for a Safe Environment (“CFASE”) petitioned

for reconsideration of EPA’s conclusion that a source’s “Title V

permit will a3sure its compliance with the general duty to mi-

nimize emissions during [SSM] events merely by requiring the

facility to file a report after such an event.” CFASE, Comment

Letter, Petition for Reconsideration of “National Emission Stan-

dards for Hazardous Air Pollutants: General Provisions,” 71

Fed.Reg. 20,446 (June 19, 2006). EPA denied reconsideration,

72 Fed.Reg. 19,385 (Apr. 18, 2007), and CFASE petitioned for

review. This petition along with the other challenges to the 2006

Rule were consolidated with the previous petitions for review.

II.

The CAA provides that “[a]ny 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.” 42 U.S.C.

§ 7607(b\1). EPA maintains that petitioners have

waived their challenge to the SSM exemption by not

challenging the 1994 Rule articulating that the general

duty standard replaces section 112 emissiens stan-

dards during SSM events. Petitioners, noting that

“EPA received repeated comments on the illegality of

its SSM exemption in the course of its rulemaking—

which covered more than six years, generated three

separate proposals and necessitated three petitions

for reconsideration,” Petrs. Br. 29, respond that

“rulemakings that significantly change the context

for a regulatory provision can re-open it for comment,

even if an agency does not change the provision itself,”

id., and that this is what happened here.

Under the reopening doctrine, the time for seeking

review starts anew where the agency reopens an issue

“by holding out the unchanged section as a proposed

regulation, offering an explanation for its language,

soliciting comments on its substance, and responding

to the comments in promulgating the regulation in its

final form.” Am. Iron & Steel Inst. v. EPA, 886 F.2d

390, 397 (D.C.Cir.1989); see P & V Enters. v. U.S.

Army Corps of Eng’rs., 516 F.3d 1021, 1023-24

(D.C.Cir.2008); Ohio v. EPA, 838 F.2d 1325, 1328

(D.C.Cir.1988). In its 2003 rulemaking, EPA discussed

revisions to its SSM plan requirements, but asserted

that “[n]othing in these revisions is intended .. . to

change the general principle that compliance with a

MACT standard is not mandatory during periods of

[SSM].” 67 Fed.Reg. at 72,880. In response to Sierra

Club’s comments questioning the legality of the SSM

exemption, EPA stated: “We believe that we have dis-

cretion to make reasonable distinctions concerning

those particular activities to which the emission limi-

tations in a MACT standard apply, and we, therefore,

disagree with the legal position taken by the Sierra

Club.” 2003 Rule, 68 Fed.Reg. at 32,590. However,

“when the agency merely responds to an unsolicited

comment by reaffirming its prior position, that re-

sponse does not create a new opportunity for review.

Nor does an agency reopen an issue by responding to

a comment that addresses a settled aspect of some

matter, even if the agency had solicited comments on

unsettled aspects of the same matter.” Kennecott Utah

Copper Corp. v. Dep’t of Interior, 88 F.3d 1191, 1213

(D.C.Cir.1996); see also Am. Iron, 886 F.2d at 398.

Moreover, when EPA received unsolicited comments

on this issue in its 2006 rulemaking, it explained that

“(t]hese commenters raise issues that are outside of

the scope of this rulemaking. The general duty provi-

sion has been in place since 1994.” 71 Fed.Reg. at

20,449; cf. PanAmSat Corp. v. FCC, 198 F.3d 890,

897 (D.C.Cir.1999). Such agency conduct is not tan-

tamount to an actual reopening.

However, petitioners contend that the 2006 Rule

“has completely changed the regulatory context for its

SSM exemption by stripping out virtually all of the

SSM plan requirements that it created to contain

that exemption.” Petrs. Br. at 29. In Kennecott, this

court established that an “agency’s decision to adhere

to the status quo ante under changed circumstances”

can “constructively reopen[ ]” a rule “by the change in

the regulatory context.” 88 F.3d at 1214. A constructive

reopening occurs if the revision of accompanying reg-

ulations “significantly alters the stakes of judicial re-

view,” id. at 1227, as the result of a change that

10a

“could have not been reasonably anticipated,” Enviti.

Def. v. EPA, 467 F.3d 1329, 1334 (D.C.Cir.2006).

Petitioners recount, and EPA does not dispute, that:

To avoid creating a “blanket exemption from

emission limits,” EPA’s 1994 rule required that

(1) sources comply with their SSM plans during

periods of SSM; (2) SSM plans be reviewed and

approved by permitting authorities like any other

applicable requirement; (3) SSM plans be uncon-

ditionally available to the public, which could

participate in evaluating their adequacy in the

permit approval process; and (4) SSM plan provi-

sions be directly enforceable requirements. 59

Fed.Reg. at 12423[ ]. In the rulemakings chal-

lenged here, however, EPA has eliminated all of

these safeguards. SSM plans are no longer enfor-

ceable requirements, and EPA has expressly re-

tracted the requirement that sources comply

with them. 71 Fed.Reg. at 20447[ ]. EPA also has

eliminated any requirement that SSM plans be

vetted for adequacy and any opportunity ior citi-

zens to see or object to them. /d.[{ ].

Petrs. Br. at 29-30. These are not mere “minor

changes,” Enutl. Def., 467 F.3d at 1333. In so modify-

ing the SSM plan requirements, EPA has construc-

tively reopened the SSM exemption. While the text of

the general duty itself did not change, “EPA has

completely changed the regulatory context for its

SSM exemption by stripping out virtually all of the

SSM plan requirements that it created to contain the

exemption.” Petrs. Br. at 29 (emphasis in original).

EPA’s modifications to the SSM plan requirements

created a different regulatory construct as to the

means of measuring comphance with the general duty.

lla

Because the general duty does not include any “nu-

merical emissions limits,” 42 Fed.Reg. at 57,125, the

general duty assumes new shape depending on the

means used to capture that standard. In 1994, EPA

determined that compliance with the general duty on

its own was insufficient to prevent the SSM exemption

from becoming a “blanket” exemption. It established

the SSM plan requirements precisely because the

general duty was inadequate. Now EPA has removed

these necessary safeguards. Because the general duty

was defined in 1994 through and housed in the four

walls of the SSM plan requirements, EPA’s modifica-

tions to those requirements have eliminated the only

effective constraints that EPA originally placed on

the SSM exemption. The fact that the regulatory

terms defining “the general duty” itself are unchanged

is legally irrelevant because the other “extensive

changes... significantly alter[ed] the stakes of judicial

review,” Kennecott, 88 F.3d at 1226-27. Just as the

court in Kennecott agreed with industry that the

agency had constructively reopened a regulation

when it incorporated amended regulations that ex-

panded available remedies and thus altered its finan-

cial incentives for challenging the regulation, so too

here from the perspective of environmental petitioners’

interests and allocation of resources the general duty

“may not have been worth challenging in [1994], but

the [revised] regulations gave [that duty] a new signi-

ficance,” id. at 1227. In Kennecott, there were “new

and potentially more onerous provisions,” id., facing

industry; here petitioners face a blanket exemption

and a more onerous task in effecting compliance with

HAP emission standards during SSM events.

Although EPA asserts that “the duty to minimize

emissions is not inextricably linked to the SSM plan,”

Resp. Br. at 24, the rulemaking record shows that

12a

“the general duty requirement and the SSM plan re-

quirements were both elements of a package deal

that EPA devised and sold to the public as adequate

protection from [HAPs] during SSM events,” Petrs.

Reply Br. at 12. When commenters raised objections

to the SSM exemption in 1994, EPA’s direct response

relied upon the SSM plan as a justification for the re-

laxed standard:

“The EPA believes, as it did at proposal, that the

requirement for a(n] [SSM] plan is a reasonable

bridge between the difficulty associated with de-

termining compliance with an emission standard

during these events and a blanket exemption

from emission limits. The purpose of the plan is

for the source to demonstrate how it will do its

reasonable best to maintain compliance with

standards, even during [SSMs].”

59 Fed.Reg. at 12,423. EPA attempts now to dismiss

this statement as mere “inartful[ ] word[ing],” Resp.

Br. at 27, but the fact that EPA’s entire discussion of

the proper standard to apply during SSM events in-

voked the SSM plan provisions confirms that the

SSM plan and general duty standard are inextricably

linked. Indeed, the explicit purpose of the SSM plan

as devised in 1994 was to “ensure” that facility owners

abide by the general duty. 59 Fed.Reg. at 12,439.

Shifting from a regulatory scheme based on a mar

datory SSM plan that was part of a source’s Title V

permit, which is subject to prior approval with public

involvement, see 42 U.S.C. § 7661la(b)(6), to a regula-

tory scheme with a non-mandatory plan providing for

no such approval or involvement but only after-the-

fact reporting changed the calculus for petitioners in

seeking judicial review, id., and thereby constructively

reopened consideration of the exemption from section

l3a

112 emission standards during SSM events. Petition-

ers’ challenges to the SSM exemption are therefore

timely.

III.

On the merits, petitioners contend that EPA’s deci-

sion to exempt major sources from compliance with

section 112 emissions standards during SSM events

is contrary to the plain text of the statute and arbi-

trary and capricious in any event. EPA and Industry

Intervenor respond that EPA’s general-duty require-

ment during SSM events is a lawful interpretation of

the statute and a reasonable way to reconcile the

need to minimize emissions with the inherent tech-

nological limitations during SSM events. Challenges

to EPA’s interpretation of the CAA are governed by

Chevron U.S.A., Inc. v. NRDC, 467 U.S. 837, 842-843,

104 S.Ct. 2778, 81 L.Ed.2d 694 (1984), in which “the

court, as well as the agency, must give effect to the

unambiguously expressed intent of Congress.” Only

if the statute is silent or ambiguous on a particular

issue, may the court defer to the agency’s reasonable

interpretation. Jd. at 844, 104 S.Ct. 2778. The CAA

provides that the court may reverse any agency ac-

tion found to be “arbitrary, capricious, an abuse of

discretion, or otherwise not in accordance with law.” 42

U.S.C. § 7607(d)(9)(A).

Section 112(d) provides that “[e]missions standards”

promulgated thereunder must require MACT stan-

dards. 42 U.S.C. § 7412(d)(2). Section 302(k) defines

“emission standard” as “a requirement established by

the State or the Administrator which limits the

quantity, rate, or concentration of emissions of air

pollutants on a continuous basis, including any re-

quirement relating to the operation or maintenance

of a source to assure continuous emission reduction,

l4a

and any design, equipment, work practice or opera-

tional standard promulgated under this chapter.” Jd.

§ 7602(k). Petitioners contend that, contrary to the

plain text of this definition, “EPA’s SSM exemption

automatically excuses sources from compliance with

emission standards whenever they start up, shut

down, or malfunction, and thus allows sources to

comply with emission standards on a basis that is not

‘continuous.” Petrs. Br. at 23. EPA responds that the

general duty that applies during SSM events “along

with the limitations that apply during normal operat-

ing conditions, together form an uninterrupted, i.e.,

continuous, limitation because there is no period of

time during which one or the other standard does not

apply,” Respt.’s Br. at 31. “Although Chevron step one

analysis begins with the statute’s text,” the court must

examine the meaning of certain words or phrases in

context and also “exhaust the traditional tools of sta-

tutory construction, including examining the statute’s

legislative history to shed new light on congressional

intent, notwithstanding statutory language that ap-

pears superficially clear.” Am. Bankers Ass’n v. Nat'l

Credit Union Admin., 271 F.3d 262, 267 (D.C.Cir. 2001)

(citations and quotation marks omitted).

EPA suggests that the general duty is “part of the

operation and maintenance requirements with which

all sources subject to a section 112(d) standard must

comply,” Respt.’s Br. at 33, pointing to section 302(k)’s

statement that an “emission standard” includes “any

requirement relating to the operation or maintenance

of a source to assure continuous emission reduction,”

42 U.S.C. § 7602(k). Section 302(k)’s inclusion of this

broad phrase in the definition of “emission standard”

suggests that emissions reduction requirements “as-

sure continuous emission reduction” without neces-

sarily continuously applying a single standard. Indeed,

15a

this reading is supported by the legislative history of

section 302(k):

By defining the terms “emission limitation,”

“emission standard,” and “standard of perfor-

mance,” the committee has made clear that con-

stant or continuous means of reducing emissions

must be used to meet these requirements. By the

same token, intermittent or supplemental controls

or other temporary, periodic, or limited systems

of control would not be permitted as a final

means of compliance.

H.R. Rep. 95-294, at 92 (1977), as reprinted in 1977

U.S.C.C.A.N. 1077, 1170. “Congress’s primary purpose

behind requiring regulation on a continuous basis”

appears, as one circuit has suggested, te have been

“to exclude intermittent control technologies from the

definition of emission limitations,” Kamp v. Hernandez,

752 F.2d 1444, 1452 (9th Cir.1985).

When sections 112 and 302(k) are read together,

then, Congress has required that there must be con-

tinuous section 112-compliant standards. The general

duty is not a section 112-compliant standard. Admit-

ting as much, EPA states in its brief that the general

duty is neither “a separate and independent standard

under CAA section 112(d),” nor “a free-standing

emission limitation that must independently be in

compliance” with section 112(d), nor an alternate

standard under section 112(h). Respt.’s Br. 32-34. Be-

cause the general duty is the only standard that applies

during SSM events—and accordingly no section 112

standard governs these events—the SSM exemption

violates the CAA’s requirement that some section 112

standard apply continuously. EPA has not purported

to act under section 112(h), providing that a standard

may be relaxed “if it is not feasible in the judgment of

16a

the Administrator to prescribe or enforce an emission

standard for control of a [HAP],” id. § 7412(h)(1),

based on either a (1) design or (2) source specific ba-

sis, id. § 7412(h)(2)(A), (B).

EPA’s suggestion that it has “discretion to make

reasonable distinctions concerning those particular

activities to which the emission limitations in a

MACT standard apply,” 68 Fed.Reg. at 32,590, belies

the text, history and structure of section 112. “In

1990, concerned about the slow pace of EPA’s regula-

tion of HAPs, Congress altered section 112 by elimi-

nating much of EPA’s discretion in the process.” New

Jersey, 517 F.5d at 578. In requiring that sources re-

gulated under section 112 meet the strictest standards,

Congress gave no indication that it intended the

application of MACT standards to vary based on dif-

ferent time periods. To the contrary, Congress specif-

ically permitted the Administrator to “distinguish

among classes, types, and sizes of sources within a

category or subcategory in establishing such stan-

dards,” CAA § 112(d)(1), 42 U.S.C. § 7412(d)(1). Addi-

tionally, while recognizing that in some instances it

might not be feasible to prescribe or enforce an emis-

sion standard under § 112, Congress provided in sec-

tion 112(h) for establishment of “work practice” or

“operational” standards instead, but, as petitioners

point out, “strictly limited this exception by defining

‘not feasible .. .’ to include only [two types of] situa-

tions,” Petrs. Br. 9, and did not authorize the Admin-

istrator to relax emission standards on a temporal

basis. See NRDC, 489 F.3d at 1374.

In sum, petitioners’ challenge to the exemption of

major sources from normal emission standards dur-

ing SSM is premised on a rejection of EPA’s claim of

retained discretion in the face of the plain text of sec-

17a

tion 112. “Where Congress explicitly enumerates cer-

tain exceptions to a general prohibition, additional

exceptions are not to be implied, in the absence of a

contrary legislative intent.” NRDC, 489 F.3d at 1374

(quoting TRW Inc. v. Andrews, 534 U.S. 19, 28, 122

S.Ct. 441, 151 L.Ed.2d 339 (2001)). The 1990 Amend-

ments confined the Administrator’s discretion, see

New Jersey, 517 F.3d at 578, and Congress was explicit

when and under what circumstances it wished to allow

for such discretion, id. at 582. “EPA may not construe

[a] statute in a way that completely nullifies textually

applicable provisions meant to limit its discretion.”

New Jersey, 517 F.3d at 583 (quoting Whitman, 531

U.S. at 485, 121 S.Ct. 903).

Accordingly, we grant the petitions without reaching

petitioners’ other contentions, and we vacate the SSM

exemption. See New Jersey, 517 F.3d at 583 (citing

Allied-Signal, Inc. v. U.S. Nuclear Regulatory Comm’n,

988 F.2d 146, 150-51 (D.C.Cir.1993)).

18a

RANDOLPH, Senior Circuit Judge, dissenting.

I do not agree that we have jurisdiction over Sierra

Club’s petition for judicial review. The original regu-

lations at issue, 40 C.F.R. § 63.6(e)-(h) (1994), exempt

periods of startup, shutdown, and malfunction from

opacity and non-opacity emission standards. When

EPA promulgated these regulations in 1994, Sierra

Club took no legal action. Yet under the Clean Air

Act a petition for judicial review of an EPA regulation

must be filed within 60 days of the regulation’s publi-

cation in the Federal Register. 42 U.S.C. § 7607(b)(1).

Of course an agency may give notice and ask for

comment on whether an existing regulation should be

modified or repealed or retained, or it may indicate in

response to comments that it has reconsidered the

regulation. See Kennecott Utah Copper Corp. v. Dep't

of Interior, 88 F.3d 1191, 1214 (D.C.Cir.1996). Or an

agency may give its regulation new significance by

altering other regulations incorporating it by refer-

ence. See id. at 1226-27. In any one of these situa-

tions the 60-day period would begin to run again. But

nothing of the sort occurred here. According to Sierra

Club, EPA’s rulemakings in 2002, 2003, and 2006

rendered enforcement of the 1994 startup, shutdown,

and malfunction regulations more difficult. Petr.’s Br.

at 29. Even if true,’ that could hardly have amounted

‘ The majority opinion makes a factual error when it suggests

that the new startup, shutdown, and malfunction regulations

have eliminated a prior requirement that EPA approve startup,

shutdown, and malfunction plans in the course of its review of

Title V permits. Maj. Op. at 1026. In fact, the plans were merely

incorporated by reference into Title V permits; there has never

been any requirement that EPA review or approve the plans

before approving permits. See 66 Fed.Reg. 16,318, 16,326 (2001);

see also 40 C.F.R. § 63.6(eX3)(vili) (1998); 67 Fed.Reg. 16,582,

16,587 (2002).

19a

to agency “action” re-promulgating the 1994 regula-

tions, which is what § 7607(b)(1) requires as a prere-

quisite for judicial review. After all, Sierra Club’s

complaint is not that the 1994 regulations are now

hard to enforce; it is instead that the 1994 regulations

are invalid and always have been. The recent rules

did not alter the exemption for startup, shutdown,

and malfunction events. The new rules simply mod-

ified requirements for each source’s plan regarding

implementation of the duty to minimize pollution

during the exempt periods. Sierra Club had the op-

tion—which it exercised’—of challenging the new

rules on the ground that the modifications will lead

to unacceptable levels of pollution.

In Kennecott, regulated industries sought judicial

review of an allegedly invalid regulation after changes

in related regulations made its enforcement more

likely and more punitive. Sierra Club has no compara-

ble financial incentives capable of assessment by a

court; instead, it presumably has an incentive to chal-

lenge any regulatory change that might lead to in-

creased pollution. The majority’s rationale implies

that each time EPA changes an emissions regulation,

it risks subjecting every related regulation to chal-

lenges from third parties. Such a regime, and the in-

stability it generates, is intolerable. Perhaps that is

why, until today, we have limited the constructive

reopening doctrine to cases involving regulated enti-

ties. See Envtl. Def. v. EPA, 467 F.3d 1329, 1334

(D.C.Cir.2006).

* The majority opinion does not reach Sierra Club’s argument

that the recent rules fail to guarantee enforcement of applicable

emissions standards and therefore violate Title V of the Clean

Air Act.

20a

Although EPA did not reopen its 1994 regulations

for judicial review, Sierra Club has another option: it

may file a petition to rescind those regulations and, if

EPA denies the petition, Sierra Club may seek judicial

review of EPA’s action. See, e.g., Pub. Citizen v. Nuc-

lear Regulatory Comm’n, 901 F.2d 147, 152 (D.C.

Cir.1990). There is no basis for permitting Sierra

Club to circumvent that procedural requirement in

this case. See Kennecott, 88 F.3d at 1214.

There is another problem with the majority opinion.

It disposes of the case with an argument not addressed

in the brief of either party—namely, that § 112(h) of

the Clean Air Act provides the only basis for EPA to

impose a non-numerical emissions standard and that

the 1994 regulations are unlawful because they do

not comply with the requirements of § 112(h). Sierra

Club mentions § 112(h), see Petr.’s Br. at 24, but its

argument that the 1994 regulations are unlawful

rests on § 302(k)’s requirement that “emission stan-

dards” must regulate air pollutants on a “continuous

basis,” id. at 23-24. EPA refers to § 112(h) only to

state that it is irrelevant to the question whether its

“general duty to minimize” is an enforceable standard

satisfying the statutory requirement to regulate

sources on a continuous basis. Resp.’s Br. at 33 n. 5. As

we have recognized, a passing mention of an other-

wise unbriefed issue does not normally suffice to pre-

serve the issue. United States v. Haldeman, 559 F.2d

31, 78 n. 113 (D.C.Cir.1976).°*

°’ The majority attempts to shoehorn its holding into Sierra

Club’s “continuous basis” arguments, stating that it reads § 112

and § 302(k) together to “require[ }] that there must be conti-

nuous section 112-compliant standards.” Maj. Op. at 1027. But

the discussion of § 302(k)’s “continuous basis” requirement does

no work in the majority’s legal analysis; without the “continuous

Z2la

Though there have been exceptions, we have gen-

erally declined to consider issues not briefed by the

parties, especially when the issue is not easy or the

record is long and complex, cf. United States v. Pryce,

938 F.2d 1343, 1347-48, 1351 (D.C.Cir.1991), when

doing so would be unfair to the respondent, Envtl.

Def. Fund, Inc. v. Costle, 657 F.2d 275, 284 n. 32

(D.C.Cir.1981), or when the legal issue is particularly

important, Carducci v. Regan, 714 F.2d 171, 177

(D.C.Cir.1983). Here, the question whether EPA’s in-

terpretation of § 112 is permissible is a difficult one,

and both the record and the statute are complex.

Here too, EPA has never had a fair opportunity to

address the issue.

basis” requirement, the majority would still hold that EPA’s

standards must be “section 112-compliant.” The majority’s point

is not that EPA has failed to regulate emissions sources on a

continuous basis. See Maj. Op. at 1027 (stating that EPA need

not continuously apply a uniform standard). It is instead that

the 1994 rule’s “general duty to minimize” does not meet the

requirements of § 112(h). Maj. Op. at 1027-28.

22a

APPENDIX B

UNITED STATES COURT OF APPEALS

FOR THE DISTRICT OF COLUMBIA CIRCUIT

[Filed July 30, 2009)

No. 02-1135

September Term 2008

EPA-67FR16582

SIERRA CLUB,

Petitioner

Vv.

ENVIRONMENTAL PROTECTION AGENCY and

LISA PEREZ JACKSON, ADMINISTRATOR,

ENVIRONMENTAL PROTECTION AGENCY,

Respondents

AMERICAN CHEMISTRY COUNCIL, et al.,

Intervenors

Consolidated with 03-1219, 06-1215, 07-1201

BEFORE: ROGERS and TATEL, Circuit Judges,

and RANDOLPH’, Senior Circuit Judge

ORDER

Upon consideration of the petition of intervenor

American Chemistry Council, et al. for panel rehearing

filed on April 3, 2009, and the response thereto, it is

*Senior Circuit Judge Randolph would grant the petition.

23a

ORDERED that the petition be denied.

Per Curiam

FOR THE COURT:

Mark J. Langer, Clerk

BY: /s/

Michael C. McGrail

Deputy Clerk

24a

APPENDIX C

UNITED STATES COURT OF APPEALS

FOR THE DISTRICT OF COLUMBIA CIRCUIT

[Filed July 30, 2009)

No. 02-1135

September Term 2008

EPA-67FR16582

SIERRA CLUB,

Petitioner

Vv.

ENVIRONMENTAL PROTECTION AGENCY and

LISA PEREZ JACKSON, ADMINISTRATOR,

ENVIRONMENTAL PROTECTION AGENCY,

Respondents

AMERICAN CHEMISTRY COUNCIL, et al.,

Intervenors

Consolidated with 03-1219, 06-1215, 07-1201

BEFORE: SENTELLE, Chief Judge, and

GINSBURG, HENDERSON, ROGERS, TATEL,

GARLAND, BROWN, GRIFFITH, and

* Chief Judge Sentelle and Circuit Judges Henderson and

Brown would grant the petitions.

** Circuit Judge Kavanaugh did not participate in this matter.

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ORDER

The petitions of intervenors National Environmen-

tal Development Association’s Clean Air Regulatory

Project and American Chemistry Council, et al. for

rehearing en banc and the responses thereto were

circulated to the full court, and a vote was requested.

Thereafter, a majority of the judges eligible to par-

ticipate did not vote in favor of the petition. Upon

consideration of the foregoing, it is

ORDERED that the petitions be denied.

Per Curiam

FOR THE COURT:

Mark J. Langer, Clerk

BY: /s/

Michael C. McGrail

Deputy Clerk

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APPENDIX D

STATUTES AND REGULATIONS

42 U.S.C. § 7412. Hazardous air pollutants

* * * *

(d) Emission standards

(1) In general

The Administrator shall promulgate regulations

establishing emission standards for each category or

subcategory of major sources and area sources of

hazardous air pollutants listed for regulation pursu-

ant to subsection (c) of this section in accordance with

the schedules provided in subsections (c) and (e) of

this section. The Administrator may distinguish

among classes, types, and sizes of sources within a

category or subcategory in establishing such stan-

dards except that, there shall be no delay in the

compliance date for any standard applicable to any

source under subsection (i) of this section as the

result of the authority provided by this sentence.

(2) Standards and methods

Emissions standards promulgated under this

subsection and applicable to new or existing sources

of hazardous air pollutants shall require the

maximum degree of reduction in emissions of the

hazardous air pollutants subject to this section

(including a prohibition on such emissions, where

achievable) that the Administrator, taking into

consideration the cost of achieving such emission

reduction, and any non-air quality health and

environmental impacts and energy requirements,

determines is achievable for new or existing sources

in the category or subcategory to which such emission

standard applies, through application of measures,

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processes, methods, systems or techniques including,

but not limited to, measures which—

(A) reduce the volume of, or eliminate emissions

of, such pollutants through process changes,

substitution of materials or other modifications,

(B) enclose systems or processes to eliminate

emissions,

released from a process, stack, storage or fugitive

emissions point,

(D) are design, equipment, work practice, or

operational standards (including requirements

for operator training or certification) as provided

in subsection (h) of this section, or

(E) are a combination of the above.

None of the measures described in subparagraphs (A)

through (D) shall, consistent with the provisions of

section 7414(c) of this title, in any way compromise

any United States patent or United States trademark

right, or any confidential business information, or

any trade secret or any other intellectual property

right.

(3) New and existing sources

The maximum degree of reduction in emissions that

is deemed achievable for new sources in a category or

subcategory shall not be less stringent than the

emission control that is achieved in practice by the

best controlled similar source, as determined by the

Administrator. Emission standards promulgated

under this subsection for existing sources in a

category or subcategory may be less stringent than

standards for new sources in the same category or

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subcategory but shall not be less stringent, and may

be more stringent than—

(A) the average emission limitation achieved by

the best performing 12 percent of the existing

sources (for which the Administrator has

emissions information), excluding those sources

that have, within 18 months before the emission

standard is proposed or within 30 months before

such standard is promulgated, whichever is

later, first achieved a level of emission rate or

emission reduction which complies, or would

comply if the source is not subject to such

standard, with the lowest achievable emission

rate (as defined by section 7501 of this title)

applicable to the source category and prevailing

at the time, in the category or subcategory for

categories and subcategories with 30 or more

sources, or

(B) the average emission limitation achieved by

the best performing 5 sources (for which the

Administrator has or could reasonably obtain

emissions information) in the category or

subcategory for categories or subcategories with

fewer than 30 sources.

(4) Health threshold

With respect to pollutants for which a health

threshold has been established, the Administrator

may consider such threshold level, with an ample

margin of safety, when establishing emission

standards under this subsection.

(5) Alternative standard for area sources

With respect only to categories and subcategories of

area sources listed pursuant to subsection (c) of this

section, the Administrator may, in lieu of the

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authorities provided in paragraph (2) and subsection

(f) of this section, elect to promulgate standards or

requirements applicable to sources in such categories

or subcategories which provide for the use of

generally available control technologies’ or

management practices by such sources to reduce

emissions of hazardous air pollutants.

(6) Review and revision

The Administrator shall review, and revise as

necessary (taking into account developments in

practices, processes, and control technologies),

emission standards promulgated under this section

no less often than every 8 years.

(7) Other requirements preserved

No emission standard or other requirement

promulgated under this section shall be interpreted,

construed or applied to diminish or replace the

requirements of a more stringent emission limitation

or other applicable requirement established pursuant

to section 7411 of this title. part C or D of this

subchapter, or other authority of this chapter or a

standard issued under State authority.

(8) Coke ovens

(A) Not later than December 31, 1992, the

Administrator shall promulgate regulations

establishing emission standards under

paragraphs (2) and (3) of this subsection for coke

oven batteries. In establishing such standards,

the Administrator shall evaluate-—

(i)the use of sodium silicate (or equivalent)

luting compounds to prevent door leaks, and

other operating practices and technologies for

their effectiveness in reducing coke oven

emissions, and their suitability for use on new

30a

and existing coke oven batteries, taking into

account costs and reasonable commercial! door

warranties; and

(ii) as a basis for emission standards under this

subsection for new coke oven batteries that

begin construction after the date of proposal of

such standards, the Jewell design Thompson

non-recovery coke oven batteries and other

non-recovery coke oven technologies, and other

appropriate emission control and coke produc-

tion technologies, as to their effectiveness in

reducing coke oven emissions and _ their

capability for production of steel quality coke.

Such regulations shall require at a minimum

that coke oven batteries will not exceed 8 per

centum leaking doors, 1 per centum leaking lids,

5 per centum leaking offtakes, and 16 seconds

visible emissions per charge, with no exclusion

for emissions during the period after the closing

of self-sealing oven doors. Notwithstanding

subsection (i) of this section, the compliance date

for such emission standards for existing coke

oven batteries shall be December 31, 1995.

(B) The Administrator shall promulgate work

practice regulations under this subsection for

coke oven batteries requiring, as appropriate—

(i) the use of sodium silicate (or equivalent)

luting compounds, if the Administrator deter-

mines that use of sodium silicate is an effective

means of emissions control and is achievable,

taking into account costs and _ reasonable

commercial warranties for doors and related

equipment; and

(ii) door and jam cleaning practices.

3la

Notwithstanding subsection (i) of this section,

the compliance date for such work practice

regulations for coke oven batteries shall be not

later than the date 3 years after November 15,

1990.

an extension of the compliance date for stan-

dards promulgated under subsection (f) of this

section in accordance with subsection (i)(8) of

this section, the emission standards under this

subsection for coke oven batteries shall require

that coke oven batteries not exceed 8 per centum

leaking doors, 1 per centum leaking lids, 5 per

centum leaking offtakes, and 16 seconds visible

emissions per charge, with no exclusion for

emissions during the period after the closing of

self-sealing doors. Notwithstanding subsection (i)

of this section, the compliance date for such

emission standards for existing coke oven

batteries seeking an extension shall be not later

than the date 3 years after November 15, 1990.

(9)Sources licensed by the Nuclear Regulatory

Commission

No standard for radionuclide emissions from any

category or subcategory of facilities licensed by the

Nuclear Regulatory Commiss.on (or an Agreement

State) is required to be promulgated under this

section if the Administrator determines, by rule, and

after consultation with the Nuclear Regulatory

Commission, that the regulatory program established

by the Nuclear Regulatory Commission pursuant to

the Atomic Energy Act [42 U.S.C. § 2011 et seg.] for

such category or subcategory provides an ample

margin of safety to protect the public health. Nothing

in this subsection shall preclude or deny the right of

any State or political subdivision thereof to adopt or

32a

enforce any standard or limitation respecting emis-

sions of radionuclides which is more stringent than

the standard or limitation in effect under section

7411 of this title or this section.

(10) Effective date

Emission standards or other regulations promulgated

under this subsection shall be effective upon promul-

gation.

* > * a

42 U.S.C. § 7602. Definitions

When used in this chapter—

* *« * *

(k) The terms “emission limitation” and “emission

standard” mean a requirement established by the

State or the Administrator which limits the quantity,

rate, or concentration of emissions of air pollutants

on a continuous basis, including any requirement

relating to the operation or maintenance of a source

to assure continuous emission reduction, and any

design, equipment, work practice or operational

standard promulgated under this chapter.’

* * *

42 U.S.C. § 7607. Administrative proceedings and

judicial review

* oe + *

(b) Judicia! review

(1) A petition for review of action of the Administra-

tor in promulgating any national primary or

secondary ambient air quality standard, any emission

standard or requirement under section 7412 of this

' So in original.

33a

title, any standard of performance or requirement

under section 7411 of this title, any 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)

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 Admini-

strator under subchapter I of this chapter) which is

locally or regionally applicable may be filed only in

the United States Court of Appeals for the appropri-

ate circuit. Notwithstanding the preceding sentence a

petition for review of any action referred to in such

sentence may be filed orly 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

? So in original.

34a

finds and publishes that such action is based on such

a determination. Any 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 reconsider-

ation 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).

* * * *

40 C.F.R. § 63.6. Compliance with standards and

maintenance requirements.

* * %* *

(e) Operation and maintenance requirements.

(1)G) At all times, ir.cluding periods of startup, shut-

down, and malfunction, the owner or operator must

operate and maintain any affected source, including

associated air pollution control equipment and

monitoring equipment, in a manner consistent with

35a

safety and good air pollution control practices for

minimizing emissions. During a pericd of startup,

shutdown, or malfunction, this general duty to

minimize emissions requires that the owner or

operator reduce emissions from the affected source to

the greatest extent which is consistent with safety

and good air pollution control practices. The general

duty to minimize emissions during a. period of

startup, shutdown, or malfunction does not require

the owner or operator to achieve emission levels that

would be required by the applicable standard at other

times if this is not consistent with safety and good air

pollution control practices, nor does it require the

owner or operator to make any further efforts to

reduce emissions if levels required by the applicable

standard have been achieved. Determination of

whether such operation and maintenance procedures

are being used will be based on information available

to the Administrator which may include, but is not

limited to, monitoring results, review of operation

and maintenance procedures (including the startup,

shutdown, and malfunction plan required in para-

graph (e)(3) of this section), review of operation and

maintenance records, and inspection of the source.

* * * *

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.