Opposition Brief — American Chemistry Council v. Sierra Club

Supreme Court, U.S.

FILED

JAN 27 2010

he (i) OFFICE OF THE CLERK

No. 09-495

IN THE

Supreme Court of the United States

AMERICAN CHEMISTRY COUNCIL, ET AL.,

Petitioners

+;

SIERRA CLUB, ET AL.,

Respondents

On Petition for Writ of Certiorari

to the United States Court Of Appeals for the

District of Columbia Circuit

OPPOSITION TO PETITION

FOR WRIT OF CERTIORARI

JAMES S. PEW

Counsel of Record

KERI N. POWELL

KARTHJUSTICE

1625 MASSACHUSETTS

AVE., N.W., SUITE 702

WASHINGTON, DC 20036

(202) 667-4500

v J * )

Counsel for Respondents

QUESTION PRESENTED

The question presented in the petition —

although not raised by any party before the D.C.

Circuit panel or in petitioners’ request for en banc

review, nor addressed by that court — is whether,

consistent with the Clean Air Act’s judicial review

provisions, a regulatory provision adopted under the

Act may be reopened for public comment and judicial

review when the Environmental Protection Agency

subsequently rescinds express limits on_ that

provision’s operation, thereby materially altering its

operation and significantly increasing its adverse

impacts on affected parties.

il

RULE 29.6 DISCLOSURE

Respondents Sierra Club, Friends of Hudson,

Environmental Integrity Project, Louisiana

Knvironmental Action Network, and Coalition For A

Safe Environment neither have parent corporations

nor have they issued shares to the public or any

publicly held company.

ll

TABLE OF CONTENTS

Page

QUESTION PRESENTED................ leeeeceenent arene ae 1

UE ss ZO.G LIM ULAP ES Re llissisicesasieisctesvoracissneveseeeenes ll

LF hPa eT E, sacsdvsancnvpveciainsisepdaniienietar eee l

A. ATmistr tava PEGG ooibicici aide ce desessescsnens cise 2

1. Section 112 Emission Standards

FOr Fit Te cies eae 2

> ee FR © GOIN. DTIC ING ina viccescerosecatevensectscnens 3

3. EPA’s Elimination Of The Regulatory

Constraints Promulgated To

Contain The SSM Exemption . 5

BD. EF VOCWOGIIRG TGGOW csi dcsccsccudsccccsacsiswsescssceencecssasens 7

REASONS WHY THE PETITION SHOULD

BE DENIED ........ 1]

I. THE QUESTION PRESENTED WAS

NOT RAISED OR ADDRESSED BELOW.........

Il. THE ISSUE PRESENTED DOES NOT

MERIT REVIEW BY THIS COURT

A. The Case Below Does Not Create A

Circuit Split...

1. The Decision Below Is Consistent

With Other D.C. Circuit Decisions .....

2. ‘There Is No “Intra-Circuit Conflict.”

3. There Is No Inter-Circuit Split

TABLE OF CONTENTS—continued

Page

B. The Issue Presented By ACC Is

Fact-Bound and Case-Specific...............c.cseesssesee 20

C. ACC’s Claims Of Legal Or Practical

Significance Are Groundless ..............ccccceceee eee es 26

1. The Decision Below Does Not Alter

\xisting Law, Threaten The Finality

Of Agency Actions, Or Unravel Notice

And Comment Rulemaking Procedures ....... 26

2. The Alleged Impact Of the Decision

Below On ACC’s Members Does Not

Warrant This Court’s Review ..... Laas ak AR |

CAPE WARE MERION seco cicciasnccascaravenesaeens Gieiapenaveeaeaen ee

TABLE OF AUTHORITIES

Pave

CASES

Adarand Constructors, Inc. v. Mineta,

ee rs RE 0D voc outnva sic kn chucocsiesbcniecsarerchanns 14, 15

Amer. Road & Transport Builders

Association vu. EPA, D.C. Cir. No. 08-1381

(December 11, 2009) (“ARTBA”), slip op.

at 6-9, pet’n for reh'g and reh'g en banc

filed GJanuary 25, ZOWO) ...........0.c0cccecencesecsenee ae

Association of American Railroads v. ICC,

846 F.2d 1465 (D.C. Cir. 1988) Linvewandaaaisihaeen cae

CTIA v. FCC,

466 F.3d 105 (D.C. Cir. 2006) jie mee

Chevron USA, Inc. v. NRDC,

467 U.S. 837 (1984) .. ) ; , 8, 9

Cities of Batavia v. FERC,

672 F.2d 64 17

Columbia Falls Aluminum v. EPA,

139 F.3d 914 (D.C. Cir. 1998) ys) a

Cutter v. Wilkinson,

944 U.S. 709 1:3

Davis v. Untted States.

117 U.S. 833 (1974) 1Q

vl

TABLE OF AUTHORITIES—continued

Page

Duignan v. United States,

I Vobenckecanbbavesersswsssursenns 13

Dunn-McCampbell Royalty Interest v.

National Park Service,

De eee Ba Stee Cir. LOD) vccsicecccncvccscvecsccccanccesess 21

EEOC v. FLRA,

io LOS Sa Be er een eae 14

Edison Electric Co. v. EPA,

996 F.2d 326 (D.C. Cir. 1993) .. ; ieoce ae

Environmental Defense v. EPA,

167 ¥'.3a 1329 (D.C. Cir. 2006) ............++. 16, 19, 24, 25

FCC vu. Fox Television Stations,

So es ED SPD oy, pcvacccavenscecicedesousesdadeveees we bO

Kennecott Utah Copper v.

United States Department of Interior,

88 F.3d 1191 (D.C. Cir. 1996) ......... ... passim

Legal Environmental Assistance

Foundation v. U.S EPA,

118 F.3d 1467 (11th Cir. 1997) 2]

Montana vu. Clark, 749 F.2d 740, 743-744

(D.C. Cir. 1984) cert. dented 474 U.S. 919 (1985) 22

VRDC vo. EPA,

571 je 3d 1245 (|) [ Cir POO) l6 ws LY, 25

Vii

TABLE OF AUTHORITIES—continued

)

a

Page

National Association of Manufacturers

v. EPA, 134 F.3d 1095 (D.C. Cir. 1998)................60. L6

National Association of Reversionary Property

Owners v. ST'B,

158 F.3d 135 (D.C. Cir. 1998) 23

National Lime Association v. EPA,

233 F.3d 625 (D.C. Cir. 2000) Z

COCO RR ER EME h

National Mining Association v. DOI,

70 F.3d 1345 (D.C. Cir. 1995) ....... PALER Re SN A 19

New Jersey v. EPA, 517 F.3d 574 (D.C. Cir. 2008),

cert. dismissed 129 8. Ct. 13813 (2009) and cert.

denied sub nom. Utility Air Regulatory

Group v. New Jersey, 1298S. Ct. 13808 (2009) ......... 3

Qhio v. EPA, 838 F.2d 1325 (D.C. Cir. 1988),

cert. dented sub nom. Nuclear Management

and Resources Council v. Public Citizen,

Es CE © IED cca vccchcceassackes ransebeduiucducncendescvon MUU?

Oljato Chapter of Navajo Tribe v. Train,

615 F.2d 654 (D.C. Cir. 1975) ...........: 420, 21, 29

P&AYV Enterprises v U.S. Army C'orp of

Engineers, 516 F.3d 1021 (D.C. Cir. 2008).... 23

Public Citizen v. Nuclear Regulatory

4

Commission, 901 F.2d 147 (D.C. Cir. 1990).

ta ‘

cert. dented, 498 U.S. 992 (1990) ; ZU, 21, Z

V1l)

TABLE OF AUTHORITIES—continued

Page

Save The Bay v. EPA,

556 F.2d 1282 (5th Cir. 1977)............... NR 2

Sterra Club v. HPA,

479 F.3d 875 (D.C. Cir. 2007) .. 3

Union Electric Co. v. EPA, 515 F.2d 206

(8th Cir. 1975), aff'd, 427 U.S. 246 (1976) ......... 21

Webster v. Cooper,

130 5. Ct. 456 (2009) en uednnwien |

Whitman v. American Trucking

Associations, 531 U.S. 457 (2001) eee

Wind River Mining Corp. v. U.S.,

946 F.2d 710 (9th Cir. 1991) 2 |

Youakim v. Miller,

125 U.S. 231 (1976) 14

12 U.S.C. § 7412(d)(2). (3) 3

42 U.S.C. § 7413(e)(1) 28, 29

12 U.S.C. § 7602(k) 3

12 U.S.C. § 7607(b) passim

12 U.S.C. § 7607(d)(7)(B) fi

TABLE OF AUTHORITIES—continued

Page

10 C.F .R. § GS.GUG May Geeta sisresccscccesescce. ; !

12 Fed. Reg. 57125 (Nov. 1, 1977) ............... SE ORE 7

59 Fed. Reg. 12408 (March 16, 1994)..... «0. OU

Fed. R. ADD. F. Bee ee datectborceseccces cise LO

LEGISLATIVE

S. Rep. No. 228, 101st Cong.,

Ist Sess. 128 (1989) teaes ,

STATEMENT

In the decision below, the D.C. Circuit applied

longstanding and unbroken precedent to find that

the United States Environmental Protection Agency

(EPA or “the agency”) had reopened a sweeping

regulatory exemption from Clean Air Act controls on

emissions of hazardous air pollutants to renewed

public comment and to judicial review under Clean

Air Act § 307(b), 42 U.S.C. § T7607(b), by

subsequently retracting inextricably linked

regulatory requirements that EPA had promulgated

for the express purpose of limiting that exemption.

Pet. App. at Ya-13a. The Court then held that the

exemption is contrary to the plain text of the Act. Id

at 13a-17a. EPA agreed below that the reopening

decision was consistent with D.C. Circuit precedent

(KPA Response to Reh’g Petition at 5), does not seek

further review of the decision, and has already

undertaken to correct the flaws identified by the

Court’s opinion (July 22, 2009 Letter to Counsel from

Adam M. Kushner, Director, EPA Office of Civil

Enforcement, available at

http://www.epa.gov/complhiance/civil/caa/ssm-

memo080409.pdf (EPA Letter’) at 4).

Although EPA did not seek further review of the

opinion, some of the industry groups who were

intervenors below (collectively, “American Chemistry

Council” or “ACC”), have petitioned for certiorari to

advance an argument that no party raised, is

contrary to the position they took in the proceedings

below (including their unsuccessful petition for

rehearing en banc), and that the D.C. Circuit has

never addressed. Although ACC does not challengs

the D.C. Circuit’s ruling that the disputed exemption

was unlawful, or dispute that Clean Air Act

regulatory provisions can be reopened for judicial

review, ACC now argues that a regulatory provision

can never be reopened by an agency's subsequent

changes to interrelated regulatory provisions no

matter how inextricably linked those provisions are.

But because ACC does not dispute that Clean Air Act

rules can be reopened for judicial review, and

because decisions about whether any given rule has

been reopened necessarily turn on case-specific,

particularized analysis of the administrative record,

ACC’s new contention would not warrant review by

this Court even if it had been raised and ruled upon

in the D.C. Circuit. Moreover, contrary to ACC's

claims, the decision below is fully consistent with

D.C. Cireuit precedent, does not conflict with any

decision in any other court, and readily comports

with the Clean Air Act’s judicial review provisions

There is no basis for further review

A. Administrative History

1. Section 112 Emission Standards For Air

Toxics

Hazardous air pollutants, also known as “air

toxics, are pollutants that can cause cancer and

other serious adverse health effects. S. Rep. No. 228,

1Olst Cong., Ist Sess. 128 (1989). The air toxics

provisions in the pre-1990 Clean Air Act (CAA or

“the Act”) relied largely on EPA discretion, and

“worked poorly.” National Lime Ass'n v. EPA, 2338

Kk 38d 625. 634 (D.C (‘ir 2OUO) \ccordingly,

Congress completely rewrote § 112 in the 1990 Clean

\ir Act Amendments, “eliminating much of EPA's

discretion in the process.” New Jersey v. EPA, 517

F.3d 574, 578 (D.C. Cir. 2008), cert. dismissed 129 S.

Ct. 1313 (2009) and cert. denied sub nom. Utility Air

Regulatory Group v. New Jersey, 129 S. Ct. 1308

(2009). Section 112 now requires EPA to set

emission standards for each hazardous air pollutant

that a regulated industry emits and precisely

prescribes the stringency for these standards. Sierra

Club v. EPA, 479 F.3d 875, 877 (D.C. Cir. 2007).

Consistent with the special health risks associated

with air toxics, the statute provides that standards

to control emissions from new or existing sources

“shall require the maximum degree of reduction in

emissions’ that the Administrator finds to be

achievable for the source category in question, and

may not be less stringent than the emission

limitation actually achieved by the best performing

sources. 42 U.S.C. § 7412(d)(2)-(3). The Act

requires that all Clean Air Act emission standards

apply “on a continuous basis.” 42 U.S.C. § 7602(k).

See Pet. App. at 2a-3a.

2. EPA’s SSM Exemption

This case involves a_ broad admunistrative

exemption from statutorily required hazardous air

pollutant emission standards. During periods of

startup, shutdown, or malfunction (SSM), the

exemption at issue excused the operators of major

sources of hazardous air pollutants from complying

with § 112 emission standards and allowed them to

comply instead with only a “general duty’ to operate

“In a manner consistent with safety and good air

pollution control practices for minimizing emissions.”

40 C.F.R. § 63.6(e)(1)Q).

+

When EPA established the SSM exemption in

1994, the agency recognized that allowing sources to

comply only with the “general duty” during SSM

events would create a “blanket exemption” from

§ 112 emission standards. Pet. App. at 4a. To

prevent that outcome, EPA — simultaneously

promulgated a robust and detailed set of

requirements for “SSM plans.” Jd. Contrary to

ACC’s claim (Pet. at 6), these were not mere

recordkeeping requirements. Rather, the final rule

expressly required each SSM plan to set out source-

specific “procedures for operating and maintaining

the source during periods of [SSM]” and a source-

specific “program of corrective action for

malfunctioning process and air pollution control

equipment used to comply with the _ relevant

standards.” 40 C.F.R. § 632.6(e)(3)(i) (1994), C.A.

JA927. Source operators had to comply with their

plans during SSM events, and the SSM plan

elements — including the operation and maintenance

procedures and the corrective action program — were

binding requirements that were directly and

independently enforceable. Jd. § 63.6(e)(1)(i1)-(111)

(1994), C.A. JA927. See Pet. App. at 5a, 10a.

Because SSM plans were incorporated into sources’

operating permits (required under CAA Title V, 42

U.S.C. § 7661), they had to be reviewed for adequacy

and approved by State permitting authorities. Pet.

App. at 5a, 10a. The public could comment on SSM

plans before they were approved, EPA could require

inadequate plans to be revised, and the public could

challenge the approval] of inadequate plans in court.

Id. After approval, the SSM _ plans” were

unconditionally available to the public which — lke

EPA or State permitting authorities — could use

—

oO

them to evaluate whether specific exceedances of

emission standards were or were not actually caused

by SSM events and to assess and_ support

enforcement measures. Jd.

EPA described the combination of the general

duty and the SSM plan requirements as “a

reasonable bridge between the difficulty associated

with determining compliance with emission

standards during [SSM] events and a blanket

exemption from emission limits” (59 Fed. Reg. 12408,

12423 (March 16, 1994), C.A. JA148), and stated that

the “purpose” of the plan requirements was to

“ensure” that facility owners abide by the general

duty, id. at 12439, C.A. JA164).

The record showed that major sources of

hazardous air pollutants routinely operate subject to

the SSM exemption and the general duty rather than

CAA § 112 emission standards and that, during such

operations, they emit toxic pollution in quantities

that vastly exceed their emission limits. SC Br. at 3-

5 (citing administrative record). It further showed

that the air toxics emitted during these exempted

periods have severe adverse effects on health and

welfare in communities across America. Jd. at 5-8.

See also, e.g., C.A. JA937-953. Neither EPA nor ACC

disputed these facts.

3. EPA’s Elimination Of The Regulatory

Constraints Promulgated To Contain The

SSM Exemption

From 2002 to 2006, EPA revised the regulations

containing the SSM exemption three times, see Pet.

App. at 5a-7a. Contrary to ACC's claim (Pet. at 9),

6

the agency’s revisions did not merely dispose of Title

V review for SSM plans. EPA went so far as to

retract the requirement that sources actually comply

with their SSM plans, rendering the plans — which

were the only specific emission control requirements

of any kind that applied during SSM events — purely

voluntary and unenforceable. Pet. App. at 10a. The

agency also eliminated the requirement that SSM

plans be incorporated by reference into Title V

permits, the opportunity for EPA to require revisions

to inadequate plans, and the opportunities for the

public to comment on SSM plans and to challenge

the approval of inadequate plans in court. Jd. In

addition, EPA eliminated the requirement that SSM

plans be available for public review, instead allowing

them to be revised in secret and kept secret on plant

premises. Id. See SC Br. at 14-17, 29-30

(summarizing and citing provisions); SC Reply at 11

(same). As the Court found below, “these [were] not

mere ‘minor changes.” Pet. App. at 10a (quoting

Enutl. Def. v. EPA, 467 F.3d 1329, 1333 (D.C. Cir.

2006)). EPA had “completely changed the regulatory

context for its SSM exemption by stripping out

virtually all the SSM plan requirements that it

created to contain the exemption.” Jd. (quoting SC

Br. at 29) (emphasis In original).

Throughout the rulemaking process, EPA

received repeated comments from petitioners in the

case below (collectively “Sierra Club”) that both its

changes to the SSM plan requirements and the

underlying SSM exemption were unlawful. Sierra

Club, June 4, 2002 Reconsideration Petition at 8,

C.A. JA457; Environmental Integrity Project, et al.

September 12, 2005 Comments at 2-7, C.A. JA463-

7

468. Sierra Club filed timely petitions for review of

all three rules revising the SSM regulations under

Clean Air Act § 307(b) and, because each rule

contained changes that EPA had not proposed,

Sierra Club also filed administrative petitions for

reconsideration under § 307(d)(7)(b), 42 U.S.C. §

7607(d)(7)(B).

B. Proceedings Below

Sierra Club argued below that EPA reopened the

SSM exemption by rescinding the SSM plan

requirements that the agency had promulgated

expressly to prevent it from becoming a blanket

exemption from emission standards, SC Br. at 29-30,

relying on longstanding D.C. Circuit precedent

recognizing that agencies can effectively change an

existing regulatory provision by changing closely

interrelated provisions. E.g., Kennecott Utah Copper

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

1191, 1214, 1227 (D.C. Cir. 1996). The panel

concluded that EPA’s progressive stripping of the

regulatory constraints that the agency had originally

placed on the SSM exemption and “general duty” fit

within this doctrine, which the court refers to as

“constructive” reopening. Pet. App. at Ya-l3a. In

particular, the court explained:

EPA’s modifications to the SSM plan

requirements created a_ different regulatory

construct as to the means of measuring

compliance with the general duty. Because the

general duty does not include any “numerical

emission limits.” 42 Fed. Reg. at 57125, the

general duty assumes new shape depending on

the means used to capture that standard. In

8

1994, EPA determined that compliance with the

general duty on its own was insufficient to

prevent the 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

modifications to those requirements’ have

eliminated the only effective constraints that EPA

originally placed on the SSM exemption.

Id. at 10a-1la.!

On the merits, the D.C. Circuit found the SSM

exemption contrary to unambiguous statutory intent

and therefore unlawful under “Step 1” of the analysis

required by Chevron USA, Inc. v. NRDC, 467 U.S.

837, 842-843 (1984). Pet. App. at 13a-17a. It hela

that Clean Air Act § 112 and § 302(k), read together,

“require[] that there must be continuous section 112-

compliant standards” and that the “general duty” is

not a § 112 standard of any kind. 7d. at 15a.2. The

‘ The dissent below also recognized constructive reopening but

found it inapplicable on these facts. Pet. App. at 18a-19a.

“ Contrary to ACC’s claim, the D.C. Circuit neither based its

merits ruling exclusively on EPA’s admission that the general

duty is not a §112 emission standard (Pet. at 3, 11), nor

allowed EPA to use an admission in court to “reverse a well-

settled rule without any administrative process or notice to

interested parties” (id. at 23). The DC. Cireuit independently

found that the general duty is not an emission standard, and

merely noted that EPA had “[aJdmitt{[ed} as much.” Pet. App

at lia

9

D.C. Circuit concluded that “[b]ecause the general

duty is the only standard that applics 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.” Jd. 3

Following the D.C. Circuit’s decision, ACC

petitioned for rehearing and rehearing en banc.

Nowhere did ACC argue that the doctrine of

constructive rcopening was contrary to the statute or

otherwise impermissible. To the contrary, ACC

acknowledged that Sierra Club “could bring their

challenge” if the SSM exemption was constructively

reopened, and merely claimed that the Club had not

satisfied the criteria established in D.C. Circuit

3 Without actually claiming the SSM exemption was lawful,

ACC implies that it was not truly defective and that EPA might

have obtained a different result in court if the agency had the

opportunity to address comments on the SSM exemption and

develop a record that better supported it. Pet. at 3, 11-12, 22

23. Because ACC does not seek review of the 1).C. Circuit's

decision that the exemption contravenes the statute, any such

suggestions are irrelevant here. In any event, the D.C. Circuit

held that the SSM exemption was unlawful under Chevron Step

1, and a rule that is contrary to law cannot be saved from its

unlawfulnecs by any amount of factual support in an agency

record. See Chevron, 467 U.S. at 842-843 (court and agency

alike “must give effect to the unambiguously expressed intent of

Congress’); EPA Response to Reh'g Pet. at 6-7 (acknowledging

that because panel held SSM exemption unlawful under

Chevron Step 1, further explanation of it would be pointless).

Further, because the agency received repeated comments on the

unlawfulness of its SSM exemption during its rulemakings to

undo tne SSM plan requirements, the agency had ample

opportunity to address comments on this issue. Pet. App. at da-

7a. See supra at 6

10

precedent for constructive reopening. Pet. of

Respondent-Intervenors for Reh’g and Reh’g En Banc

(“Reh’g Pet.”) at 7-9. On the merits, ACC argued

that the general duty was a work practice standard

under § 112(h) and therefore satisfied the Clean Air

Act’s requirement for continuous § 112-compliant

standards. Id. at 10-11.4 ACC also argued that the

D.C. Circuit's decision would have dire practical

effects for industry. Jd. at 3-4, 22-25.

EPA did not seek rehearing, and opposed ACC’s

petition, stating “the Panel’s analysis of its

jurisdiction does not conflict with Kennecott, and

thus does not meet the standards for rehearing en

banc.” EPA Response to Reh’g Pet. at 5. EPA also

refuted ACC’s claim on the merits that the general

duty was a § 112(h) standard, agreeing with the

Court’s finding that “EPA has not purported to act

under section 112(h).” /d. at 5 (quoting Pet. App. at

15a). In addition, EPA refuted ACC’s claims of “dire

consequences” from the ruling. It pointed out,

among other things, that the agency has long

implemented significant air pollution § control

programs — _ including the nationwide’ State

Implementation Plan (SIP) program — without a

blanket SSM exemption and without disruptive

effects. Jd. at 7-10.

' Citing the dissent, ACC incorrectly claims the question of

whether the general duty ts an emission standard was not

briefed below. Pet. at 11-12 (quoting Pet. App. at 2Ua-2la). The

issue was fully briefed. SC Br. at 24-25, 24 n6, 25 n7; EPA Br

at 32-34 & 33 nd, SC Reply at 2-3

1]

The D.C. Circuit denied ACC’s petition for

rehearing en banc by a 5-3 vote.

REASONS WHY THE PE'TITION

SHOULD BE DENIED

The petition for certiorari should be denied. ACC

never raised its current argument that constructive

reopening is impermissible below, either before the

Panel or in its petition for rehearing en banc, and the

D.C. Circuit has never addressed that argument in

the present case or any other. The reasons

underlying this Court’s normal practice of declining

to decide issues that were not raised or addressed

below apply with particular force here, where ACC

seeks to overturn longstanding and unbroken D.C

Circuit precedent with respect to an issue on which

that court has developed unique and extensive

expertise.

Nor would there be a basis for review even if the

issue had been raised below and passed on by the

court of appeals. Contrary to ACC’s claims, the

decision below is entirely consistent with D.C.

Circuit precedent, and does not conflict with any

decision of any other lower court. Further, because

ACC does not dispute that Clean Air Act regulatory

provisions can be reopened for judicial review by

agency action, its claim that they cannot be reopened

In the specific circumstances addressed by the D.C.

Circuit’s constructive reopening precedent — L.e.,

where the operation and effect of a regulatory

provision is changed by an agency's subsequent

retraction or overhaul of interlinked provisions

boils down to a fact-bound dispute with the D.C.

—_—

.

~~

t

Circuit over which circumstances suffice to effect a

reopening.

Nor does the opinion have the far-reaching effects

that might militate in favor of review by this Court

even in the absence of a true inter-circuit division of

authority. The decision below does nothing to

change longstanding D.C. Circuit precedent on

constructive reopening, and cases involving that

issue arise very rarely. The D.C. Circuit has found

constructive reopening of rules only two times in the

fourteen years since it recognized the concept in

Kennecott, and no reported cases from other courts

even address the issue. ACC’s claims that the

decision has adverse practical effects on its members

merely reflect dissatisfaction with the Clean Air Act

as written and are, in any event, without any factual

basis.

I. THE QUESTION PRESENTED WAS NOT

RAISED OR ADDRESSED BELOW.

ACC seeks certiorari to argue that a Clean Air

Act rule can never be constructively reopened. Pet.

App. at 1, 13-14. In the briefing below, however, no

party raised any such argument. Nor did ACC or

any other party present such an argument by

petition for rehearing. ‘To the contrary, both ACC

and EPA merely claimed in their merits briefs that

the agency's actions did not suffice under the D.C.

Circuit’s case law to constructively reopen the SSM

13

exemption. Int. Br. at 17-18; EPA Br. at 23-27.5

Indeed, ACC expressly acknowledged, in both its

merits brief and in its rehearing petition, that rules

can be constructively reopened. Int. Br. at 17-18

(citing Enutl. Def., 467 F.3d at 1334); Reh’g Pet. at 7-

8 (D.C. Circuit could review SSM exemption “if EPA

had constructively reopened the exemption under

Kennecott”). Not surprisingly, the D.C. Circuit panel

did not address ACC’s current argument that

constructive reopening is unlawful. Addressing only

the arguments actually before it, the D.C. Circuit

explained that, based on the specific record before it,

EPA had _ constructively reopened the SSM

exemption to comment and judicial review in the

particular circumstances here. Pet. App. at 10a-13a.

“This Court ... 1s one of final review, ‘not of first

view.” FCC vu. Fox Television Stations, 129 S. Ct.

1800, 1819 (2009) (quoting Cutter v. Wilkinson, 544

U.S. 709, 718 n7 (2005)). “It 1s only in exceptional

cases coming here from the federal courts that

questions not pressed or passed upon below are

reviewed.” Duignan v. United States, 274 U.S. 195,

° In response to an alternative argument that the D.C. Circuit

did not reach, EPA argued that administrative petitions are

necessary where a party seeks review of an existing rule that

“EPA has not reopened” based on its “substantive legal defects.”

EPA Br. at 27-28 (emphasis added). See also Int. Br. at 18 n3

(same). Cf. SC Br. at 30 (“even if EPA had not reopened the

SSM ecxemption, this Court could still review it...”). No party,

however, claimed that administrative petitions are necessary

where a rule is reopened, either constructively or otherwise.

Compare SC Br. at 29-30 (addressing reopening); EPA Br. at

-27 (responding to reopening argument): Int. Br. at 12 18

~

14

200 (1927). See Adarand Constructors, Inc. v.

Mineta, 534 U.S. 103, 109 (2001) (“We ordinarily do

not decide issues in the first instance not decided

below.”) (internal quotation marks and citation

omitted); HEOC v. FLRA, 476 U.S. 19, 24 (1986)

(“Our normal practice, from which we see no reason

to depart on this occasion, is to refrain from

addressing issues not raised in the Court of

Appeals.”); Youakim v. Miller, 425 U.S. 231, 234

(1976) (“Ordinarily, this Court does not decide

questions not raised or resolved in the lower court.”).

In this case, the reasons for adhering to this

Court’s normal practice are especially strong. The

sole argument that ACC seeks to advance before this

Court — that constructive reopening is impermissible

— was neither raised nor addressed below. Further,

the contentions ACC now raises — e.g., that the

panel’s ruling on reopening “unravels the regular

ordering of the administrative process” (Pet. 16) and

that the decision conflicts with decisions of other

circuits (Pet. 17-20) and with other decisions of the

D.C. Circuit itself (Pet. 21-22) — are the prototypical

grounds for seeking en banc review. Moreover,

Congress expressly committed review of all

nationally applicable Clean Air Act rules to the D.C.

Circuit, 42 U.S.C § 7607(b)(1), and that court is

uniquely well positioned to evaluate claims about its

own longstanding precedent concerning’ the

appropriate grounds for reopening under CAA §

307(b) and similar provisions as well as the broader

implications of alternative rules for administrative

law.

—_

ul

ACC’s failure to present its current argument to

the D.C. Circuit and the fact that the D.C. Circuit

has never addressed or even had the opportunity to

address that argument call for denial of ACC’s

petition for certiorari. See Webster v. Cooper, 130

S.Ct. 456, 457 (2009) (Scalia, J., dissenting from

order vacating and remanding case) (“Since

[petitioner] did not argue that ground to the Court of

Appeals, and since that court did not address it, we

would almost certainly deny certiorari. See Adarand

Constructors, Inc. v. Mineta, 534 U.S. 103, 108-109

(2001) (per curiam) (dismissing ae writ’ as

improvidently granted because the question at issue

was not raised or considered below).”’); Robert L.

Stern, et al., Supreme Court Practice 459-60 (8th ed.

2002) (demonstration that issue was not raised or

decided below is “ordinarily fatal to the petition”).

ll. THE ISSUE PRESENTED DOES NOT

MERIT REVIEW BY THIS COURT.

A. The Case Below Does Not Create A Circuit

Split.

l. The Decision Below Is Consistent With

Other D.C. Circuit Decisions.

It 1s undisputed that Sierra Club timely filed

petitions for review of all three of EPA’s rules that

revised its regulations containing the SSM

exemption and that Sierra Club repeatedly objected

to the SSM exemption during the public comment

periods for those rules. The D.C. Circuit made clear

that the SSM exemption, the general duty, and the

rescinded SSM plan requirements were inextricably

linked and that EPA’s revisions to the SSM plan

16

requirements changed the SSM _— exemption’s

operation and significantly increased its adverse

impacts for Sierra Club members and other people

living in communities located near major sources of

hazardous air pollutants. Pet. App. at 10a-13a. ACC

does not challenge these conclusions. In short, it is

now undisputed that the present case met all of the

requirements for constructive reopening under

longstanding D.C. Circuit precedent.

Although ACC does not ask this Court to review

the lower court’s ruling on this score, it nonetheless

devotes considerable portions of its petition to

arguing either that the D.C. Circuit is divided with

respect to the permissibility of constructive

reopening or that the decision below is inconsistent

with D.C. Circuit precedent. Pet. at 11-12, 15-16, 17-

22. Those contentions, which hardly support review

by this Court, are in any event wrong. The D.C.

Circuit has consistently held that a rule can be

reopened when an agency significantiy changes the

effect of a regulatory provision by making

subsequent changes to closely interrelated

provisions. Kennecott, 88 F.3d at 1214, 1226-1227.

See also Nat'l Ass'n of Mfrs. v. EPA, 134 F.3d 10985,

1104-1105 (D.C. Cir. 1998) (“NAM”) (granting

reopening claim); Environmental Defense v. EPA, 467

I.3d 1329, 1333-1334 (D.C. Cir. 2006) (rejecting

reopening claim); Sierra Club v. EPA, Pet. App. at

@a-13a (granting reopening claim); NRDC vu. EPA,

17

571 F.3d 1245, 1265-1266 (D.C. Cir. 2009) (rejecting

reopening claim). 6

Kennecott, for example, addressed a_ 1986

regulatory provision authorizing State officials to

recover, from companies that had discharged oil or

hazardous substances into navigable waters, the

value of services lost to the public when those

impaired waters were restored. 88 F.3d at 1226. In

1994, without changing that provision,’ the

Department of the Interior (DOI) amended

interrelated provisions in a way that “expanded the

remedies for lost use values.” Jd. The D.C. Circuit

found that by substantially changing the extent to

which lost use values could be recovered, DOI

reopened its decision to allow them to be recovered at

all. Id. at 1226-1227

Similarly, NAM found that DO] had

constructively reopened provisions in a_— 1987

regulation under the Comprehensive [Xmergency

Response, Compensation, and Liability Act

(CERCLA) when it sivnificantly chanyed related

provisions in 1996. 134 F.3d at 1099-1100, 1103

1104. The 1987 regulations authorized the use of

certain computer models to determine the amount of

money that potentially responsible parties would he

t

Even before Aennecott, the D.C. Circuit noted that “[w]hile a

petition from an agency order cannot be filed after the statuto

period for filing has run, it may be that some of the issu that

might have been raised in that appeal are so inextricably linked

'

a subsequent agency opinion on another aspect of the same

‘ase, that those issues may be raised in a timely appeal f1

the se ind opinion ( ilte f Batavia FERC, 67 F 2d 64

nl5(D.C. Cir ms?

18

assessed for natural resource damages. Jd. at 1101-

1102. The 1996 rule did not change the models, but

significantly expanded the circumstances to which

they could be applied. Jd. at 1104. DOI’s change to

the regulatory context for the models reopened to

challenge the predictive validity of the models

themselves. Jd. at 1105.

The D.C. Circuit carefully explained that the

instant case fit within Kennecott and its other

constructive reopening decisions. Pet. App. at Qa-

13a. ACC does not challenge that determination

here, and EPA has agreed that the reopening

decision was fully consistent with D.C. Circuit

precedent. EPA Response to Reh’g Pet. at 5.

2. There Is No “Intra-Circuit Conflict.”

Even though no judge on the D.C. Circuit or any

other court has ever heard ACC’s current argument

that constructive reopening is_ categorically

impermissible, ACC implies that Judge Randolph

and the three D.C. Circuit judges who voted to

rehear the case below have endorsed it. Pet. at 11-

12, 15-16. ACC further claims that the D.C. Circuit’s

constructive reopening decisions conflict with a

separate line of cases allowing agency rules to be

challenged outside of statutory review periods

19

following an administrative petition process. Jd. at

17-22."

An intra-circuit split is, as ACC appears to

recognize (Pet at 21), normally a matter for

resolution by the court of appeals, not this Court.

See Sup. Ct. R. 10; Davis v. United States, 417 U.S.

333, 340 (1974). Indeed, a claim that two separate

lines of decisions by a single court of appeals are in

“conflict” is classic ground for the en banc procedure,

see, e.g., Fed. R. App. P. 35(a), and the usual rule

that such claimed intra-circuit conflicts do not

provide a basis for review by this Court applies with

special force where the party seeking this Court’s

review failed to present the alleged intra-circuit

conflict to the en banc court of appeals.

In any event, there is no merit to ACC’s claim of

“intra-circulit conflict,” Pet. at 21. As noted above,

the D.C. Circuit addressed constructive reopening

claims on four occasions after its decision in

Kennecott with different results depending on the

specific evidence in the record before it. See NAM,

134 F.3d at 1104; Environmental Defense, 467 F.3d

at 1333-1334; NRDC, 571 F.3d at 1265-1266; Pet.

’ The D.C. Circuit has held that this petition process is not

available for rules subject to review under Clean Air Act

§ 307(b). Amer. Rd. & Transp. Builders Ass'n v. EPA. D.C. Cir

No. 08-1381 (December 11, 2009) (“ARTBA”), ship op. at 6-9,

petn for reh'g and reh'g en bance filed (January 25, 2010). See

also National Mining Ass'n v. DOI, 70 F.3d 1345, 1350, 13542

(D.C. Cir. 1995) (same holding under similar judicial review

provision in Surface Mining Control and Reclamation Act).

Compare Pet. At 15 (citing Pet. App. at 20a (Randolph, J.,

dissenting)).

20

App. at 9a-13a (decision below). On no occasion has

any panel or individual] judge even suggested that

constructive reopening is categorically improper.

Although Judge Randolph dissented below, he did

not object to the doctrine generally, as ACC suggests

(Pet. at 11-12, 15-16), but would have found only that

it did not apply to the facts of the present case.

Nor is there “tension,” as ACC claims (Pet. at 21-

22), between the D.C. Circuit’s reopening cases and

its cases requiring administrative petitions in Clean

Air Act challenges based solely on grounds arising

after the sixtieth day or on claims that an existing

regulation violates a statute. Rather, as the D.C.

Circuit has made clear repeatedly, judicial review

based on an agency’s own actions reopening a rule is

clearly distinct from judicial review based on an

outside party’s claim that the rule is either unlawful

or subject to challenge on newly arising grounds.

Kennecott, for example, explains that administrative

petitions are generally required where a_ party

challenges a rule after the statutory time period has

passed based on a claim that is “violative of statute”

but that they are not required where the agency

itself has reopened the rule. 88 F.3d at 1213-1214.

See also Public Citizen v. NRC, 901 F.2d 147, 150-

153 (D.C. Cir. 1990), cert. denied, 498 U.S. 992 (1990)

(contrasting petition process and_ rcopening).

Similarly, although administrative petitions are a

prerequisite under Clean Air Act § 307(b)(1)’'s

provision for challenges “based solely on grounds

arising after such sixtieth day,” 42 USC. §

7607(b)(1), see Oljato Chapter of Navajo Tribe uv.

Train, 515 F.2d 654, 666 (D.C. Cir. 1975), the D.C.

Circuit has described that process as a “different

21

route” to judicial review than reopening, Columbia

Falls Aluminum v. EPA, 139 F.3d 914, 920-921 (D.C.

Cir. 1998). The D.C. Circuit has never required

administrative petitions in reopening cases and,

indeed, there is no need for them; reopening claims

reach court only after a rulemaking process in which

interested parties present their objections and the

agency has achance to respond. See supra at 6.

3. There Is No Inter-Circuit Split.

ACC’s attempt to conjure up a split between the

D.C. Circuit and other circuits (Pet. at 17-22) is

equally without merit. By ACC’s own description,

Dunn-McCampbell Royalty Interest v. Natl Park

Service, 112 F.3d 1283 (5th Cir. 1997), Wind River

Mining Corp. v. U.S., 946 F.2d 710 (9th Cir. 1991)

and Legol Enuvtl. Assistance Found. v. U.S EPA, 118

F.3d 1467 (11th Cir. 1997), all involved claims that a

longstanding agency action, unmodified’ by

intervening agency action, was violative of statute.

Pet. at 17-20. Cf. Kennecott, 88 F.3d at 1213. Also

irrelevant are Union Electric Co. v. EPA, 515 F.2d

206 (8th Cir. 1975), affd, 427 U.S. 246 (1976) and

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

(cited in Pet. at 20-22), as these were “new

information” cases. Cf. Oljato, 515 F.2d at 665-666.

See also Columbia Falls Aluminum, 138 F.3d at 920-

921 (explaining difference between review based on

agency reopening and on new information); Public

Citizen, 901 F.2d at 150-153 (separately addressing

review based on reopening and on claim that existing

regulation is “violative of statute”).

Notably, none of the allegedly conflicting opinions

from other circuits even mentions the L).C. Circuit

yy

precedents on reopening, and none of the D.C.

Circuit's reopening decisions addresses the cases

ACC now claims are inconsistent with them. In

short, the cases on which ACC seeks to rely do not

even speak to — far less conflict with — the D.C.

Circuit’s reopening decisions.

B. The Issue Presented By ACC Is Fact-Bound

and Case-Specific.

Even if the absence of a circuit split or even an

“intra-circuit split” could be overlooked, the Clean

Air Act argument that ACC now seeks to raise for

the first time in this Court (Pet. at 12-15) does not

have any of the broad statutory and jurisdictional

implications that ACC claims. In reality ACC’s

argument boils down to a fact-bound and casc-

specific dispute with the D.C. Circuit over which

agency actions suffice to reopen an_ existing

regulatory provision.

Clean Air Act § 307(b)(1) broadly authorizes

judicial review of “any” final action by EPA, 42

U.S.C. § 7607(b)(1), and the D.C. Circuit has long

recognized that “the period for seeking judicial

review may be made to run anew when the agency in

question by some new promulgation creates the

opportunity for renewed comment and objection.”

Ohio v. EPA, 838 F.2d 1325, 13828 (D.C. Cir. 1988),

cert. dented sub nom. Nuclear Management and

Resources Council v. Public Citizen, 498 U.S. 992

(1990) (ctting Montana v. Clark, 749 F.2d 740, 743-

744 (D.C. Cir. 1984) cert. denied sub nom Montana v.

23

Hodel, 474 U.S. 919 (1985)).8 ACC does not dispute

that regulatory provisions can be reopened by agency

action and that Clean Air Act § 307(b)(1) authorizes

judicial review of reopened rules. Thus, the issue

presented by ACC’s petition is not whether a Clean

Air Act rule can be reopened for judicial review, but

whether the circumstances in a given case suffice to

effect a reopening.

Whether a rule has been reopened is a fact-bound

issue that the D.C. Circuit has always resolved case

by case based on the whole administrative record.

CTIA, 466 F.3d at110 (quoting NARPO, 158 F.3d at

141 (quoting Public Citizen, 901 F.2d at 150)). See

also Public Citizen, 901 F.2d at 150 (“[T]he general

principle [is] that if the agency has opened the issue

up anew, even though not explicitly, its renewed

adherence is substantively reviewable.”) (quoting

Ass'n of American Railroads, 846 F.2d at 1473). This

is equally true whether an agency “creates the

opportunity for renewed comment and objection,”

Ohio, 838 F.2d at 1328, by changing a regulatory

provision directly or by changing its operation and

effect on regulated entities or the public through

major alterations to “inextricably linked” provisions,

S See generally P & V Enterprises v. U.S. Army Corp of

Engineers, 516 F.3d 1021, 1023-1024 (D.C. Cir. 2008); CVA -

The Wireless Ass'n v. FCC, 466 F.3d 105, 110 (D.C. Cir. 2006)

(“CTIA”); National Ass'n of Reversionary Property Owners vu

STB, 158 F.3d 135, 141 (D.C. Cir. 1998) (“NARPO”): Kennecott,

88 F.3d at 1214; Edison Electric Co. v. EPA, 996 F.2d 326, 331-

332 (D.C. Cir. 1993); Public Cittzen, 901 F.2d at 150; Ass'n of

American Railroads v. ICC, 846 F.2d 1165, 1473 (D.C. Cur

1988)

24

Pet. App. at 12a. Indeed, the D.C. Circuit has

expressly held that constructive reopening is a type

of reopening “within the broader meaning of Ohio.”

Kennecott, 88 F.3d at 1227. See Environmental

Defense, 467 F.3d at 1333-1334 (court bases

reopening decision on specific evidence in record

before it).

Although ACC repeatedly claims that its

argument is based on the Clean Air Act’s “text,” Pet.

at 12-14, ACC does not identify any textual basis for

distinguishing reopening of a regulatory provision

based on subsequent changes to inextricably linked

provisions from other types of reopening that ACC

does not challenge. Nor does ACC suggest any way

that this Court or any other court could determine

when a reopening has occurred, other than on the

case-specific and fact-specific basis that the D.C.

Circuit has employed for decades. In short, the

argument ACC advances is not a textual or statutory

argument at all, but a challenge to the D.C. Circuit’s

resolution of a highly fact-bound issue that is

presented differently in the context of each

individual agency action. For this reason as well, it

would not warrant review by this Court even had the

question been duly raised below.

ACC also asserts the D.C. Circuit “acknowledged”

that EPA did not reopen the SSM exemption. Pet. at

LO. ‘lo the contrary, the D.C. Circuit held that EPA

constructively reopened the SSM exemption (let.

App. at 12a-13a), and then went on to review the

SSM exemption on its merits (td. at 13a-17a) -

something the Court would not have done absent a

conclusion that EPA’s actions had reopened the

29

exemption. See, e.g., Kennecott, 88 F.3d at 1220-1221

(declining to review regulatory provision that was

not reopened). Although the Court uses the terms

“actual” and “constructive” to refer to different ways

that an agency can create a “renewed opportunity for

comment and objection” under Ohio, 838 F.2d at

1238, it has never suggested that these terms dictate

any categorical difference with respect to whether a

rule has been reopened for judicial review.?

Far from relying on the “subjective” perceptions of

a party alleging that a rule has been reopened

(Amicus Br. at 7-10), the D.C Circuit has always

rigorously examined the administrative record in

each case to determine whether and to what extent

the operation of the challenged regulatory provision

has been changed by subsequent revisions to

interrelated provisions. Thus, in Environmental

Defense, the D.C. Circuit rejected a claim based only

on the _ petitioner’s “own interpretation” and

“understanding,” unequivocally holding “[wle

require evidence.” 467 F.3d at 1334 (emphasis in

original). In NRDC, the D.C. Circuit rejected a

reopening claim where the Court found EPA's

% Contrary to ACC's claim (at 10), the conduct that the D.C.

Circuit described as “not tuntamount to actual reopening” was

not the conduct that reopened the SSM exemption—i.e. EPA’s

retraction of the SSM plan requirements—but EPA's refusal to

address unsolicited comment Pet. App. at 9a (emphasis in

original). In explaining that “such conduct” does not reopen a

rule, D.C. Circuit simply noted a longstanding principle that

“when the agency merely responds to an unsolicited comment

by reaffirming its prior position, that response does not create a

new opportunity for review.” Jd. (quoting Kennecott, 88 F.3d at

et a I

26

revisions did not work a “sea change” on the

challenged provision. 571 F.3d at 1266. Conversely,

in the only cases where the D.C. Circuit granted

constructive reopening claims, it based its decision

on strong record evidence of a major change to

“inextricably linked” provisions that substantially

altered the operation and effect of the reopened

provision. Pet. App. at 12a. Here, EPA “eliminated

the only effective constraints that EPA originally

placed on the SSM exemption.” Jd. at lla. By

changing the requirements that governed sources’

operation during the periods when the SSM

exemption applied, EPA changed the operation and

effect of the exemption itself. See supra at 17-18

(discussing reopening holdings in Kennecott and

NAM).

C. ACC’s Claims Of Legal Or Practical

Significance Are Groundless.

1. The Decision Below Does Not Alter

Existing Law, Threaten The Finality Of

Agency Actions, Or Unravel Notice And

Comment Rulemaking Procedures.

Contrary to ACC’s assertions (Pet. at 2-3, 15, 16-

17), the ruling below does nothing to alter existing

law on the reopening of rules, nor will it open the

floodgates to late challenges of agency actions, or

unravel the normal notice-and-comment rulemaking

process.

It is undisputed that the holding below was fully

consistent with Kennecott and the D.C. Circuit's

other prior constructive reopening decisions.

Kennecott scarcely opened floodgates to cases of any

27

kind. Since Kennecott was decided in 1996, only four

reported claims of constructive reopening have come

before the D.C. Circuit and only two of those were

found to have merit. Nor did Kennecott unravel

administrative rulemaking procedures, an event that

— had it occurred — would doubtless have attracted

some notice by the agencies or the courts in the years

since Kennecott was decided. Having failed to

challenge the D.C. Circuit’s holding that the instant

case fits within Kennecott (Pet. App. at 10a-12a),

dispute EPA’s identical conclusion (EPA Response to

Reh’g Pet, at 4-5), or otherwise identify any

distinction between Kennecott and the present case,

ACC can hardly claim that the present case will have

any effect that Kennecott did not have.

2. The Alleged Impact Of the Decision

Below On ACC’s Members Does Not

Warrant This Court’s Review.

ACC’s last argument is that effects the decision

below allegedly will have on industry make this the

“unusual case” worthy of this Court’s review due to

its “practical consequences.” Pet at 23-25. That

argument is unfounded.

The effect ACC describes, that companies would

no longer have a blanket exemption from compliance

with emission standards during SSM, is not a “stark”

consequence of the D.C. Circuit’s decision but the

intended operation of the Clean Air Act's plain

language (as interpreted by the D.C. Circuit in a

holding that ACC, tellingly, does not ask this Court

to review). As the D.C. Circuit explained, Congress

gave EPA discretion to set different standards for

different “classes, types, and sizes of sources’ and to

28

set section § 112(h) work practice standards in lieu of

§ 112(d) emission standards in specific situations,

but it neither provided an SSM exemption nor gave

EPA discretion to provide one. Pet. App. at 16a. See

Whitman v. American Trucking Associations, 531

U.S. 457, 485 (2001) (statutory limits on agency

discretion must be given effect). See also NRDC uv.

EPA, 859 F.2d 156, 208-209 (D.C. Cir. 1988)

(explaining that it is well within Congress’s

authority to require not-to-be-exceeded standards

even where those standards reflect the usc of fallible

control technology).!°

In any event, as EPA has already demonstrated,

ACC’s claims of “stark” consequences from the D.C.

Circuit’s decision, Pet. at 3-4, 22-25, have no basis in

fact. See EPA Response to Reh’g Pet. at 9; EPA

Letter at 2-4. The “majority” of EPA’s rules under

Clean Air Act § 112 “include specific regulatory text

that exempts or excuses compliance during SSM

events, and such text js in addition to, or in lieu of” a

cross reference to the vacated SSM exemption. EPA

Letter at 2. Even for those rules that do not include

an SSM exemption other than the one vacated by the

decision below, EPA’s initial evaluation — which the

agency has not changed — “indicates that most of

these rules should not present compliance issues for

'0 Although the Clean Air Act does not allow EPA to excuse

violations by providing a blanket exemption from compliance

with emission standards at the liability stage, it expressly

requires both EPA and the courts to consider sources’ “good

faith efforts to comply” in determining what penalty, if any,

should be assessed for violating emission standards. 42 U.S.C

S$ 74138(ce)(1)

29

sources during SSM events.” Jd. at 3. And for any

sources that are unable to comply with emission

standards during SSM events, “EPA will determine

an appropriate response based on, among other

things, the good faith efforts of the source to

minimize emissions during SSM periods ... and

whetner the source has developed and implemented

an SSM plan to minimize such emissions.” Jd. See

42 U.S.C. § 7413(e)(1)."!

To the extent the decision below indicates that

the SSM exemptions still contained in other § 112

rules are unlawful, EPA can address_ those

exemptions in a normal rulemaking process. EPA

Letter at 4. Indeed, EPA could not alter those rules

without notice and comment rulemaking, and ACC’s

members would have an opportunity to participate in

any such rulemaking and to challenge the results in

court. As ACC itself has noted, the D.C. Circuit did

not hold that § 302(k) requires “unchanging”

standards under § 112 and EPA has already

proposed specific alternative standards to apply

'l ACC repeatedly suggests that EPA would have made its

§ 112 standards less stringent if the SSM exemption had not

been in place. Pet. at 3-4, 12-13, 23-24. Although this Court

need not address that issue, which can be resolved by EPA or

by the D.C. Circuit if necessary, the notion that EPA would or

could have set standards at a different level absent the SSM

exemption is purely speculative. If ACC's members or other

entities believe that vacatur of the SSM exemption warrants

changes in the stringency of specific § 112 rules, they can seek

revision of those rules under Clean Air Act § 307(b)(1). See

Oljato, 515 F.2d at 666; supra at 20. Two industry groups have

done so. See Lhe Aluminum Ass'n v. EPA, ILC. Cir. No. 09

1303 (filed December 11, 2009); Amer. Forest & Paper Ass'n |

BPA, D.C. Cir. No. 09 1311 (filed December 15, 2009)

30

during startups and shutdowns for at least one

industry. Reh’g Pet. at 13 & n. 6. Thus, if ACC

believes that the standards contained in those rules

should be less stringent if EPA removes the SSM

exemption (see Pet. at 3-4, 12-13, 23-24), it can

present that argument to EPA if and when the

agency engages in a rulemaking to do so.

Finally, contrary to ACC’s suggestion, it is

neither novel nor unusual for EPA to require

continuous compliance with emission standards and

not provide a blanket SSM exemption. EPA's pre-

1990 air toxics standards required compliance “at all

times,” and provided no SSM exemption. 59 Fed.

Reg. 12408, 12423 (March 16, 1994), JA 148. See

EPA Response to Reh’g Pet. at 7-8 Likewise, EPA

requires continuous compliance with “best available

control technology” (BACT) standards and has

repeatedly rejected the type of blanket SSM

exemption struck down in the decision below. See SC

Br. at 27-28; EPA Response to Reh’g Pet. at 7-8. The

technologies on which these standards are based are

no more infallible than the technology used to comply

with § 112 standards, but these programs have not

produced any of the draconian results about which

ACC speculates.

CONCLUSION

kor the foregoing reasons, the petition for

certiorari should be denied.

Respectfully submitted,

James S. Pew

Counsel of Record

Ken N. Powell

Karthjustice

1625 Massachusetts Ave

NW, Suite 702

Washington, D.C. 20036-2212

(202) 667-4500

Attorneys for Respondent

Sierra Club, Friends of

Hudson. Environmental

Integrity Project, Louisiana

Knvironmental Action

Network, and Coalition kor A