Appendix — Appalachian Power Co. v. Environmental Protection Agency
Supreme Court brief1999
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IN THE ;
Supreme Court of the United States
OCTOBER TERM, 1998
APPALACHIAN POWER COMPANY, et al.,
7% Petitioners,
ENVIRONMENTAL PROTECTION AGENCY,
UNITED STATES,
Respondent.
On Petition for a Writ of Certiorari to the
United States Court of Appeals
for the District of Columbia Circuit
APPENDIX TO
PETITION FOR A WRIT OF CERTIORARI
DAVIb E. MENOTTI HENRY V. NICKEL
WILLIAM F’. PEDERSEN (Counsel of Record)
SHAW, PITTMAN, POTTS KEVIN L. FAST
& TROWBRIDGE LAUREN E. FREEMAN
2300 N St., N.W. MATTHEW F.. GOLDBERG
Washington, D.C. 20037 HUNTON & WILLIAMS
(202) 663-8675 1900 K Street, N.W.
Counsel for American Washington, D.C. 20006
Petroleum Institute (202) 955-1500
Counsel for Appalachian
Power Company, et al.
G. WILLIAM FRICK
JOHN E. REESE
AMERICAN PETROLEUM INSTITUTE
1220 L Street, N.W.
Washington, D.C. 20005
(202) 682-8240
Counsel for American
February 18, 1999 Petroleum Institute
[Additional Counsel Listed Inside]
WILSON - Ergs PRINTING Co., INC. - 789-0096 - WASHINGTON, D.C. 20001 al ¢e
RUSSELL S. FRYE
Roy S. BELDEN
CHADBOURNE & PARKE LLP
1200 New Hampshire Ave., N.W.
Washington D.C., 20036
(202) 974-5600
Counsel for American Forest &
Paper Association, Inc.
ROBERT A. KIRSHNER
General Counsel
AMERICAN FOREST &
PAPER ASSOCIATION, INC.
1111 19th Street, N.W.
8th Floor
Washington, D.C. 20036
(202) 463-27000
Counsel for American Forest &
Paper Association, Inc.
MICHAEL H. LEVIN
NEAL J. CABRAL
MICHAEL MCGOVERN
McGuIRE, Woops, BATTLE
& BooTHeE, L.L.P.
1627 Eye Street, N.W.
Washington, D.C. 20006
(202) 857-1700
Counsel for
Can Manufacturers Institute
WILLIAM H. LEwiIs, JR.
MICHAEL A. McCorD
JOSHUA D. SARNOFF
MorGAN, LEwIs & Bockius LLP
1800 M Street, N.W.
Washington, D.C. 20036
(202) 467-7145
Counsel for Clean Air
Implementation Project
DAVID E. MENOTTI
WILLIAM F.. PEDERSEN
SHAW, PITTMAN, PoTTs
& TROWBRIDGE
2300 N Street, N.W.
Washington, D.C. 20037
(202) 663-8675
Counsel for
Corn Refiners Association, Inc.
ROBERT L. BRUBAKER
JANET J. HENRY
KATERINA M. EFTIMOFF
PORTER, WRIGHT, MORRIS
& ARTHUR
41 South High Street
Columbus, Ohio 43215
(614) 227-2033
Counsel for Ohio Chamber of
Commerce, and Ohio
Chemical Couneil
LYNN L. BERGESON
BETHAMI AUERBACH
LisA CAMPBELL
BERGESON & CAMPBELL
1300 Eye Street, N.W.
Suite 1000 West
Washington, D.C. 20005
(202) 962-8585
Counsel for RSR Corporation
HOWARD B. MYERS
General Counsel
RSR CORPORATION
2777 Stemmons Freeway
Suite 1800
Dallas, Texas 75207
(214) 583-0238
Counsel for RSR Corporation
oD
APPENDIX TABLE OF CONTENTS
Page
Decision of the D.C; Circuit... la
Order Denying Petition for Rehearing... 17a
Crder Denying Suggestions for Rehearing In
St ERNE SEE IE RIOR fa aD aT NE eran ee 19a
mancate of the D.C. Cireuit 2la
Excerpts from Articles I & III of the Constitu-
NO rath Sikes a Ns Bt 23a
Excerpts from Sections 110, 111, 112 & 307 of
OUI Uh: ne: a re RIN ee 24a
Select Regulatory Provisions From 40 C.F.R.
ee dg tr Oe Ni 53a
Relevant Legislative History From S. Rep. No.
91-1196, 91st Cong., 2d Sess. (1970) & H.R.
Rep. No. 95-294, 95th Cong., Ist Sess. (1977)... 68a
Rule 29 Corporate Listing .................................... 83a
—
la
APPENDIX A
UNITED STATES COURT OF APPEALS
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued April 21, 1998 Decided August 14, 1998
No. 97-1117
CLEAN AIR IMPLEMENTATION PROJECT, et al.,
Petitioners
v.
ENVIRONMENTAL PROTECTION AGENCY,
Respondent
NATURAL RESOURCES DEFENSE CoUNCIL, INC.
AND BATTERY COUNCIL INTERNATIONAL,
Intervenors
Consolidated with Nos.
97-1125, 97-1130, 97-1142, 97- 1169, 97-1173, 97-1179,
97- 1190, 97-1195, 97-1226, 97-1241, 97- 1242, 97-1253,
97-1254, 97-1259, 97-1261, 97- 1266, 97-1269, 97-1273,
97-1278, 97-1281, 97- 1282, 97-1283, 97-1286, 97-1289
On Petition for Review of an Order of the
Environmental Protection Agency
Before: SILBERMAN, WILLIAMS, and RANDOLPH, Cir-
cuit Judges.
2a
Opinion for the Court filed by Circuit Judge RANDOLPH.
RANDOLPH, Circuit Judge: Petitioners Clean Air Im-
plementation Project and other trade associations?
brought this action for judicial review of the Environ-
mental Protection Agency’s rule permitting the use of
“credible evidence” to prove or disprove violations of the
Clean Air Act, 42 U.S.C. §§ 7401 et seg. They allege
that the rule is illegal for various reasons, including lack
of statutory authority and unlawful revision of substantive
standards. We hold that the issues they raise are unripe
and cannot be decided at this time.
I
The Clean Air Act directs the EPA Administrator to
develop and promulgate three types of air pollution stand-
ards. National ambient air quality standards (“NAAQS”),
issued under § 109, 42 U.S.C. § 7409, specify the maxi-
mum permissible concentrations of six criteria pollutants
in the air. See 40 C.F.R. pt. 50. The Act makes states
primarily responsible for the attainment and maintenance
of the NAAQS through state-designed implementation
plans, see 42 U.S.C. § 7410, also called “SIPs,” which
EPA must approve and which become federally enforce-
able once approved, see id. § 7413(a). Performance
standards issued pursuant to § 111, 42 U.S.C. § 7411,
regulate emissions of air pollutants from newly constructed
or modified stationary sources. See 40 C.F.R. pt. 60.
Emission standards for stationary sources of hazardous
air pollutants for which no ambient air quality standard is
applicable are issued pursuant to § 112, 42 US.C.
§ 7412.2 See 40 C.F.R. pt. 61. EPA may enforce these
1The trade associations represent various industry groups, in-
cluding car manufacturers, lumber companies, steel producers,
petroleum companies, and mining companies.
2In the Clean Air Act Amendments of 1990, Congress rewrote
§ 112 to include a list of 189 toxic air pollutants that EPA was
required to regulate. However, §112(q) provides that standards
cn See seg i eee gr eee ene ny reine
3a
standards through administrative, civil, or, with the assist-
ance of the Attorney General, criminal actions. See 42
U.S.C. § 7413.
Before EPA adopted its credible evidence rule in Feb-
ruary 1997, 62 Fed. Reg. 8314, the agency’s air pollution
standards specified not only the maximum permissible !evel
of emissions, but also the performance or reference test
that should be used as a means of sampling and analyzing
air pollutants for the particular standard. See, e.g., 40
C.F.R. §§ 60.2, 61.02. A reference test is any “generic
multi-use test protocol[] that measure[s] whether a
source’s emissions comply with numeric performance
standards.” Paul D. Hoburg, Use of “Credible Evidence”
to Prove Clean Air Act Violations, 25 B.C. ENVTL. AFF.
L. Rev. 771, 784-85 (1998). Subparts of Title 40 pre-
scribe reference tests for various emission sources. Appen-
dix A to 40 C.F.R. Part 60, for instance, contains more
than fifty different test methods for determining compli-
ance with the new source performance standards. See also
40 C.F.R. pt. 61, App. B (listing test methods for hazard-
ous air pollutant standards); 40 C.F.R. pt. 51, App. M
(listing recommended test methods for state implementa-
tion plans). In all, there are approximately 130 reference
tests, although the same test may be “used in connection
with many different performance standards.” Hoburg,
supra, at 785.
In the rulemaking challenged here, EPA added nearly
identical language to five sections of its regulations, pro-
viding that nothing in them “shall preclude the use, in-
cluding the exclusive use, of any credible evidence infor-
mation, relevant to whether a source would have been in
compliance with applicable requirements if the appropriate
performance or compliance test or procedure had been
performed.” 40 C.F.R. § 60.11(g); see also 40 C.F.R.
in effect before the date of enactment “shall remain in force and
effect after such date.”
4a
§§ 51.212(c), 52.12(c), 52.33(a), and 61.12(e). The
agency based these revisions on its “long-standing author-
ity under the Act, and on amplified authority provided by
the 1990 [Clean Air Act Amendments],” specifically
§ 113(a) and (e), 42 U.S.C. § 7413(a), (e). 62 Fed.
Reg. 8314. Section 113 deals with federal enforcement of
emission standards and, according to its legislative history,
was amended to enhance EPA’s enforcement powers. See
S. Rep. No. 101-228, at 358 (1989), reprinted in 1990
U.S.C.C.A.N. 3385, 3741. EPA maintains that the “lan-
guage, history and intent” of the 1990 Amendments sup-
port its credible evidence revisions. 62 Fed. Reg. 8314.
Nothing in the rule itself defines or limits the possible
kinds of evidence encompassed within the phrase “credible
evidence.” EPA explained in the preamble to its final
rule: “today’s rule will make it clear that various kinds
of information other than reference test data, much of
which is already available and utilized for other purposes,
may be used to determine compliance or noncompliance
with emission standards.” 62 Fed. Reg. at 8315. The
preamble listed “engineering calculations, indirect esti-
mates of emissions, and direct measurement of emissions
by a variety of means” as methods on which EPA, state
agencies, and industry routinely rely. 7d. Also mentioned
were “continuous emission monitoring” and “parametric
monitoring” data. Jd. To illustrate, EPA discussed the
use of a continuous opacity monitor instead of Method 9,
the reference test method for opacity. Method 9 requires
that a “trained visible emissions observer (VEO) view a
smoke plume with the sun at a certain angle to the plume
in order to properly illuminate it. In contrast, a continu-
Ous opacity monitor (COM) contains a calibrated light
source that provides for accurate and precise measure-
ment of opacity at all times. Notably, EPA uses COM
data to certify and re-certify the credentials of VEOs
under Method 9.” Id. at 8319. Thus, according, to the
agency, continuous opacity monitoring data would be
CN mmrmnmemmenta mame ememeemereceeecnecamneeena a eS cc
5a
credible evidence in lieu of Method 9. The preamble also
cited two citizen suits based on credible evidence. Id. at
8318. In Sierra Club v. Public Service Co., 894 F. Supp.
1455 (D.Colo. 1995), the court accepted opacity monitor-
ing data and reports as means of proving emissions viola-
tions. In Unitek Environmental Servs. v. Hawaiian Ce-
ment, No. 95-00723 (D.Haw. 1996), the court upheld
teh use of evidence that included EPA’s notice of viola-
tion issued to Hawaiian Cement several months before,
Hawaiian Cement’s admission of noncompliance, and re-
sults of Hawaiian Cement’s computerized modeling of its
own particulate emissions.
Petitioners argue that EPA promulgated the rule with-
out statutory authority, that the revisions are unlawful
because EPA failed to comply with proper rulemaking
procedures, and that EPA violated the Clean Air Act by
forcing states to rewrite their implementation plans. The
heart of the argument is that the credible evidence rule,
by altering the means of determining compliance for the
new source performance standards and the hazardous air
pollutant standards, increases the stringency of the under-
lying standards. Since EPA admittedly did not conduct
a rulemaking for each of the standards to which the cred-
ible evidence rule may be applied, petitioners charge that
it violated the procedures required by the Act. See 42
U.S.C. § 7607(d). EPA’s short answer is that there was
no need for such proceedings because the standards have
not been changed.
II
Petitioners’ theory of the relationship between tests and
standards is this: the test method is an integral part of the
standard itself and the test method should not be changed
without a full evaluation of the impact such a change
might have on the standard. The theory proceeds from
the fact that in developing its standards, EPA relied on
tests showing the standards to be consistently achievable
using the best current technology. See Brief of Petitioners
6a
at 9-10. EPA then used these same test methods to deter-
mine compliance with the numerical standards it promul-
gated. Citing Portland Cement Ass’n v. Ruckelshaus, 486
F.2d 375 (D.C. Cir. 1973), petitioners argue that chang-
ing the means of testing compliance amounts to changing
the standard themselves. In Portland Cement, the court
stated that “a significant difference between techniques
used by the agency in arriving at standards, and require-
ments presently prescribed for determining compliance
with standards, raises questions about the validity of the
standard.” Id. at 396. There the court required EPA to
explain the discrepancy between the method used to de-
velop the standard and the method used to enforce it.
Id. at 397.
Petitioners’ view of the interaction between tests and
standards leads them to two contentions. First, they as-
sert that any change in compliance method or test is sub-
stantive because “use of a different test method or proce-
dure can lead to fundamental differences in results, due to
differences in analytical method, data reduction, or meas-
urement location.” Brief of Petitioners at 13-14. For
example, a newer and more sensitive test might detect
emissions in excess of the numerical limit at times when
the original reference test would show that emissions were
below the regulatory ceiling. Second, they claim that the
credible evidence rule converts “periodic” standards to
“continuous” ones. See id. at 35-42. That is, sources
previously subject to standards based on “snapshot” data
from infrequent “short-term” tests may now have their
compliance monitored on an ongoing basis through the
use of credible evidence. Id. at 35-36. Converting a
periodic standard into a continuous one makes the stand-
ard more rigorous because, petitioners assert, continuous
monitoring will capture all the fluctuations and variability
inherent in emissions and thus increase each source’s num-
ber of “violations.” (According to petitioners, variability
in emissions had previously been compensated for by
Ja
means of infrequent testing.) The issues raised by these
contentions are not, we hold, justiciable at this time.
In 1967, three Supreme Court cases, decided in tandem,
revolutionized judicial review of agency rulemaking. The
cases—Abbott Laboratories v. Gardner, 387 U.S. 136;
Toilet Goods Ass'n v. Gardner, 387 U.S. 158; and Gard-
ner v. Toilet Goods, Ass'n, 387 U.S. 167—dealt with the
then-unsettled question when, if ever, courts may pass
upon the validity of an agency regulation prior to its en-
forcement. “Before Abbott Laboratories the courts typ-
ically reviewed the lawfulness of an agency’s rule, not
when it was promulgated, but when it was enforced. After
Abbott Laboratories reviewing practice changed radically.”
STEPHEN G. BREYER & RICHARD B. STEWART, ADMINIS-
TRATIVE LAW AND REGULATORY Policy 1136 (2d ed.
1985). In deciding whether judicial review must await
application of the rule in the concrete setting of an en-
forcement action, the Supreme Court adopted Judge
Friendly’s formulation in Toilet Goods Ass'n v. Gardner,
360 F.2d 677, 684 (2d Cir. 1966) (quoting Joint Anti-
Fascist Refugee Comm. v. McGrath, 341 U.S. 123, 156
(1951) (Frankfurter, J., concurring): there must be an
evaluation of “both the fitness of the issues for judicial
decision and the hardship to the parties of withholding
court consideration.” Abbott Labs., 387 U.S. at 149.
In the three decades since Abbott Laboratories, “preen-
forcement review of agency rules and regulations has be-
come the norm, not the exception,” BREYER & STEWART,
supra, at 1137, a trend accelerated by Congress’ enact-
ment of a host of regulatory statutes specifically providing
for this. The review provision of the Clean Air Act, 42
U.S.C. § 7607(b), invoked here, is typical. It provides
that a petition for judicial review must be filed within 60
days of publication of a rule in the Federal Register, 42
U.S.C. § 7607(b)(1), and that action of the EPA Admin-
istrator “with respect to which review could have been
obtained . . . shall not be subject to judicial review in civil
8a
or criminal proceedings for enforcement,” 42 U.S.C.
§ 7607(b)(2). We have not considered this provision, or
like provisions in other regulatory statutes, as requiring
the court to adjudicate issues raised in a preenforcement
challenge to a rule unless those issues are suitable for
decision. If the issues are not of that nature, we will dis-
miss the petition as unripe. See Louisiana Environmental
Action Network v. Browner, 87 F.3d 1379, 1385 (D.C.
Cir. 1996); Association of American Railroads v. Surface
Transportation Bd., No. 97-1020, 1998 WL 343436 *4
(D.C. Cir. June 30, 1998).3 A necessary corollary is that
if the issues later become justiciable, as a result for in-
stance of an enforcement action, the petitioner may then
raise those issues, notwithstanding the portion of § 7607
(b)(2) just quoted. See Louisiana Environmental Action
Network, 87 F.3d at 1381; Baltimore Gas & Elec. Co. v.
ICC, 672 F.2d 146 (D.C. Cir. 1982).
As to petitioners’ first contention, neither element of the
Abbott Laboratories inquiry—fitness for judicial decision
and hardship of denying relief—has been satisfied. In
determining the fitness of an issue for judicial review we
look to see whether the issue “is purely legal, whether con-
sideration of the issue would benefit from a more con-
certe setting, and whether the agency’s action is sufficiently
final.” Natural Resources Defense Council, Inc. v. EPA,
22 F.3d 1125, 1133 (D.C. Cir. 1994) (quoting Her
Majesty the Queen ex rel. Ontario v. EPA, 912 F.2d
1525, 1532 (D.C. Cir. 1990)). EPA’s credible evidence
rule is final, but in contending that the rule alters the
standards, petitioners have raised issues that are not purely
legal, issues that are not suitable for decision in the ab-
3 The purpose of withholding judicial review “is to prevent the
courts, through avoidance of premature adjudication, from entan-
gling themselves in abstract disagreements over administrative
policies, and also to protect the agencies from judicial interference
until an administrative decision has been formalized and its effects
felt in a concrete way by the challenging parties.” Abbott Labs.,
387 U.S. at 148-49.
9a
stract. See Truckers United for Safety v. Federal High-
way Administration, 139 F.3q 934 (D.C. Cir. 1998).
Judicial resolution of these issues would benefit signifi-
cantly from having “the scope of the controversy . . . re-
duced to more manageable proportions, and its factual
components fleshed out, by some concrete action applying
the regulation to the [petitioners’] situation in a fashion
that harms or threatens to harm” them. Lujan v. National
Wildlife Fed’n, 497 U.S. 871, 891 (1990).
As matters now stand, there are too many imponder-
ables. EPA insists that using credible evidence will not
“change any of the numeric emission limits with which
sources must comply” and that reference tests remain the
benchmark against which credible evidence is measured.
Brief of Respondent at 3, 11. In promulgating the rule,
EPA stated that credible evidence was “not intended to
and will not serve to affect the stringency of underlying
emission standards by amending the nature of the com-
pliance obligation.” 62 Fed. Reg. at 8315. It explained:
Typically, reference test methods . - . quantify the
presence of particular physical attributes—for ex-
ample, mass or concentration of a chemical or group
of chemicals—over a specified period of time. As
long as these two elements, quantification and speci-
fied time period—are retained and the data from the
alternate method is related to the reference test, in-
formation generated by alternate methods yield data
bearing on what the results of a reference test would
have been, and the use of such information to estab-
lish compliance or noncompliance in an enforcement
action will not affect the stringency of the standard.
62 Fed. Reg. at 8319. Petitioners dismiss EPA’s asser-
tions, claiming that the agency “is in denial” about the
consequences of its own actions. Brief of Petitioners at
34,
Will each of the 130 or so reference tests truly be main-
tained as benchmarks against which credible evidence will
10a
be measured? The tests themselves are described in “pain-
staking technical detail in various appendices throughout
Title 40 C.F.R. chapter I.” Hoburg, supra, at 785. For
all we know, application of EPA’s credible evidence rule
in the place of a reference test may potentially affect some
standards but not others. Moreover, credible evidence is
not a closed set. Given the universe, of all possible evi-
dence that might be considered “credible,” it is impossible
for us to decide now what impact the rule will have.
EPA’s representation that credible evidence must be “re-
lated” to the results a reference test would have shown is
highly abstruse. See 62 Fed. Reg. 8314 (promulgation of
credible evidence rule). An enforcement action brought
on the basis of credible evidence would, we believe, pro-
vide the factual development necessary to determine
whether the new rule has affected whatever existing stand-
ard is involved. Until then, we have the “classic institu-
tional reason to postpone review: we need to wait for a
rule to be applied to see what its effect will be.” Louisiana
Environmental Action Network, 87 F.3d at 1385 (quot-
ing Diamond Shamrock vy. Costle, 580 F.2d 670, 674
(D.C. Cir. 1978) ).
Petitioners cannot point to any great hardship they
would suffer by our deferring judicial review. EPA’s rule
does not require them “to engage in, or to refrain from,
any conduct.” Texas v. United States, 118 S. Ct. 1257,
1260 (1998). Unlike the drug manufacturers in Abbott
Laboratories, but like the cosmetics companies in Toilet
Goods Ass'n v. Gardner, 387 U.S. at 164, petitioners here
need not change their behavior or risk costly sanctions.
Source owners and operators are already under an obliga-
tion to comply with EPA’s emission standards. If the
credible evidence rule has in fact altered these standards,
petitioners can raise that as a defense in an enforcement
action. The burden of participating in future proceed-
ings does not “constitute sufficient hardship for the pur-
poses of ripeness.” Florida Power & Light Co. v. EPA,
lla
No. 95-1093, 1998 WL 336520, *8 (D.C. Cir. June 26,
1998). To be sure, it is easier and cheaper to mount a
single challenge now rather than defend a series of en-
forcement actions. But “this kind of litigation cost-saving”
does not “justify review in a case that would otherwise be
unripe.” Ohio Forestry Ass’n v. Sierra Club, 118 S. Ct.
1665, 1671 (1998).
This brings us to petitioners’ contention that the cred-
ible evidence rule illegally converts “periodic” standards
to “continuous” ones. Owners and operators of emission
sources are required, according to petitioners, to meet
emission limits only when intermittent tests are conducted;
at all other times they are subject to no more than a “gen-
eral duty” requirement to maintain good operiting pro-
cedures. Brief of Petitioners at 18.
Again, we find that it would be premature for us to
decide this issue now. EPA points to provisions of the
Clean Air Act and implementing regulations seeming to
support its view that compliance is required continuously,
not periodically. Still, the effect of the credible evidence
rule on compliance obligations is difficult to assess without
any information or experience showing how the rule oper-
ates in particular settings. For some standards, measuring
emission levels at each and every instant—i.e., on a con-
tinuous basis—might affect stringency in ways that are im-
possible at this moment to foretell. We therefore find
this issue unripe for review as well.
Because the merits of petitioners’ first set of contentions
are not justiciable, we do not reach their related asser-
tion, also raised by Battery Council International as in-
tervenor, that the Clean Air Act Amendments provide no
basis for promulgating the credible evidence rule. Peti-
tioners argue that § 113(a) of the Act addresses only the
initiation of an enforcement action. Although this is a
#Section 113(a) provides that an action to enforce compliance
may be brought “[w]henever, on the basis of any information
12a
purely legal question, and thus presumably ripe, the need
for statutory authority depends in the first instance on
what it is that the credible evidence rule actually accom-
plishes. See Toilet Goods, 387 U.S. at 163-64.°
Ill
Petitioners also challenge EPA’s credible evidence addi-
tions to 40 C.F.R. Part 51 (requirements for the prepara-
tion, adoption, and submission of state implementation
plans) and Part 52 (requirements for the approval and
promulgation of implementation plans), claiming that
EPA has “violate[d] the Federal-State division of author-
ity established by [§ 110 of the Act] by requiring States
to revise SIPs that EPA has found are already adequate
to implement the Act.” Brief of Petitioners at 28. EPA’s
revisions inserted language to the effect that the state
plans “must not preclude the use, including the exclusive
use, of any credible evidence or information. . . .” 40
C.F.R. § 51.212; see also id. §§ 52.12(c) (federal en-
forcement of state plans), 52.33(a) (compliance certifi-
cations). According to petitioners, these changes “illegally
invade” the authority of states under the Clean Air Act.
Brief of Petitioners at 48.
available to the Administrator, the Administrator finds that any
person has violated or is in violation of” an applicable standard.
Although § 113(a) is written in terms of finding a violation, the
procedure followed is that the Administrator issues a notice of
violation and then may either issue an administrative order,
§113(d), or commence a civil action, §113(b). See 42 U.S.C.
§ 7413.
5If, as EPA maintains, the rule really does not change the
standards, then it might be seen as a permissible exercise of the
agency’s general rulemaking authority under § 301 of the Act, 42
U.S.C. § 7601(a)(1). (The agency itself does not rely exclusively on
§§ 113(a) and (e), noting that the credible evidence rulemaking was
“based primarily on EPA’s existing authority prior to the 1990
CAA Amendments.” 62 Fed. Reg. at 8320.)
a
oS a ee
13a
During the credible evidence rulemaking, the EPA re-
sponded to comments that these amendments were un-
authorized by asserting that
EPA is not by this rulemaking revising any SIP;
rather, EPA is amending the rules governing SIPs.
Such rules are promulgated under EPA’s authority
to (1) require SIPs to provide adequate enforcement
authority (see sections 110(a)(2)(A), (C), and
(E)); (2) call for SIP revisions to correct inade-
quacies (see section 110(k)(5)); and (3) “pre-
scribe such regulations as are necessary to carry out
[the Administrator’s] functions under this chapter.
42 U.S.C. § 7601.
Response to Comments at 103. EPA’s brief explains that
it derived its authority for the rule from § 110(a)(2)(H)
(ii), under which state plans shall “provide for revision”
whenever EPA finds that the plan is “substantially inade-
quate to . . . comply with any additional requirements
established under this chapter,” 42 U.S.C. § 7410(a)(2)
(H) (ii), and from the statutory requirement that state
plans must be “enforceable.” Brief of Respondent at 41.
This is hard to follow. If state plans approved by EPA
met the enforceability requirement prior to EPA’s adop-
tion of the credible evidence rule, one may wonder why
the state plans have now become “unenforceable” to the
extent they do not permit the use of credible evidence.
The pre-existing test methods, after all, are still available
to determine compliance. In any event the merits of this
claim are not properly before us.
Regardless whether a state might be able to challenge
directly the revised regulations (no state has), petitioners
cannot do so. Nothing in the amended regulations re-
quires states to change their implementation plans. That
can only occur through an independent procedure known
as a “SIP call.” Under § 110(k)(5), the EPA must notify
a state of inadequacies in its plan and request the sub-
mission of a revised plan. 42 U.S.C. § 7410(k)(5). This
14a
begins an extensive regulatory process that includes the
publication of a proposed plan in the Federal Register for
notice and comment before final approval by the agency.
See Greater Cincinnati Chamber of Commerce v. EPA,
879 F.2d 1379 (6th Cir. 1989) (finding that SIP calls do
not constitute final agency action).
This proces was set in motion before the promulgation
of the rule challenged here. See 62 Fed. Reg. at 8327.
SIP calls to various states were issued as early as 1994.
EPA’s notice to states included draft credible evidence
language that, “if adopted by the State and submitted to
EPA for aproval in the SIP, would satisfy the require-
ments of this SIP call.” 60 Fed. Reg. 46,222, 46,225
(1995) (approving South Dakota’s plan); see also 60
Fed. Reg. 36,361 (1995) (Kansas); 62 Fed. Reg. 17,081,
17,082 (1997) (Minnesota). When EPA published the
credible evidence rule, it noted that fifteen states had sub-
mitted new plans and several had already been approved.
Thus, the request that state plans be revised and the sub-
mission and approval of revised plans were not triggered
by the amendments to Parts 51 and 52. In this case,
petitioners have challenged neither the SIP calls nor any
of the newly-approved state plans.
Even if we were to assume that revising the regula-
tions forced the states to submit new plans—something
not suggested by the record—we would find petitioners’
challenge unripe. It is not at all apparent that use of cred-
ible evidence alters the emissions standards governing pe-
titioners’ activities. Although the question whether EPA
had statutory authority is a purely legal one, the effect of
the credible evidence rule on petitioners—that is, the ef-
fect of language in state plans specifying that use of
credible evidence is not precluded—is highly uncertain for
reasons already mentioned. In addition, an amicus brief
submitted by state air pollution authorities indicates that
states have historically used credible evidence and that
some state and local air agencies have relied on credible
15a
evidence as the exclusive basis for enforcement actions.
See Brief of Amici Curiae at 4-5. Like the Supreme Court
in Toilet Goods, 387 U.S. at 162, we believe that our ju-
dicial appraisal “is likely to stand on a much surer foot-
ing in the context of a specific application of this
regulation.”
IV
Battery Council International, as intervenor, claims that
EPA has “attempted unlawfully to revise” its permit shield
regulations in promulgating the credible evidence rule.
Brief of Intervenor at 27.
In the 1990 Amendments, Congress established an oper-
ating permit program for certain sources of air pollution,
including major stationary sources. See 42 US.C.
§§ 7661-7661f. Under this program, each permit issued
must include all emissions limitations and standards’ ap-
plicable to the source, as well as provisions concerning
inspection, monitoring, compliance certification, and re-
porting requirements. The regulations implementing the
permit program are contained in 40 C.F.R. Part 70.
Battery Council thinks the following language in EPA’s
preamble to the credible evidence rule “would undermine
the principal purpose” of the permits:
[although permits] can include a “permit shield” pro-
tecting [a source] from allegations that it has failed
to satisfy CAA monitoring requirements, such shield
does not relieve the source of its obligation to com-
ply with the underlying emission limits or other appli-
cable requirements being monitored. . . . In other
words, . . . the source would not be shielded from al-
legations of noncompliance with the underlying sub-
stantive requirements (e.g., emission limits) being
monitored even if the source’s required monitoring
failed to detect the violation.
62 Fed. Reg at 8320. Battery Council argues that, con-
trary to EPA's interpretation, “permit shields also protect
l6a
sources from enforcement of ‘underlying emission limits,’
as long as sources comply with their permits.” Brief of
Intervenor at 30,
We will not reach the merits of this argument. The
credible evidence rule did not change any language in Part
70. It is doubtful that the preamble alone is definite and
specific enough to be a binding statement of agency pol-
icy. For one thing, the statements concerning the permit
shield were not published in the Code of Federal Regula-
tions. See Florida Power & Light, 1998 WL 336520, *4.
For another, EPA has claimed that its statements were no
more than “an interpretation” given “existing permit shield
regulation,” Brief of Respondent at 45, and Battery Coun-
cil has presented no evidence that the preamble has a
direct and immediate effect on it. In Kennecott Utah
Copper Corp. v. Department of the Interior, 88 F.3d
1191, 1222 (D.C. Cir. 1996), we held that although a
“preamble may under some circumstances be reviewable,”
the preamble challenged there was nevertheless not ripe
because the issue presented was conjectural and “a more
complete understanding of its ramifications must await a
concrete application.” The same holds true here. This
chalenge is therefore unripe for review.
a * x oK
Petitioners and intervenor raise a number of other sub-
sidiary issues which, while we have considered fully, pre-
sent no need for discussion. For the reasons stated above,
we dismiss the petition for review. 4
So ordered.
17a
APPENDIX B
[Filed Nov. 20, 1998]
UNITED STATES COURT OF APPEALS
FOR THE DISTRICT OF COLUMBIA CIRCUIT
No. 97-1117
CLEAN AIR IMPLEMENTATION PROJECT,
Petitioner
We
ENVIRONMENTAL PROTECTION AGENCY,
Respondent
NATURAL RESOURCES DEFENSE COUNCIL, INC.
and BATTERY COUNCIL INTERNATIONAL,
Intervenors
—
Consolidated with
97-1125, 97-1130, 97-1142, 97-1169, 97-1173, 97-1179,
97-1190, 97-1195, 97-1226, 97-1241, 97-1242, 97-1253,
97-1254, 97-1259, 97-1261, 97-1266, 97-1269, 97-1273,
97-1278, 97-1281, 97-1282, 97-1283, 97-1286, 97-1289
BEFORE: Silberman, Williams and Randolph, Circuit
Judges
ORDER
Upon consideration of the petitions for rehearing of pe-
titioners Appalachian Power Co., et al. and the Clean Air
Implementation Project, et al., filed September 28, 1998,
and of the response thereto, it is
18a
ORDERED that the petitions be denied.
Per Curiam
FOR THE COURT:
MarK J. LANGER
Clerk
By: /s/ Robert A. Bonner
RoBERT A. BONNER
Deputy Clerk
19a
APPENDIX C
[Filed Nov. 20, 1998]
UNITED STATES COURT OF APPEALS
FOR THE DISTRICT OF COLUMBIA CIRCUIT
No. 97-1117
CLEAN AIR IMPLEMENTATION PROJECT,
Petitioner
Vv.
ENVIRONMENTAL PROTECTION AGENCY,
Respondent
NATURAL RESOURCES DEFENSE COUNCIL, INC.
and BATTERY COUNCIL INTERNATIONAL,
Intervenors
Consolidated with
97-1125, 97-1130, 97-1142, 97-1 169, 97-1173, 97-1179,
97-1190, 97-1195, 97-1226, 97-1241, 97-1242, 97-1253,
97-1254, 97-1259, 97-1261, 97-1266, 97-1269, 97-1273,
97-1278, 97-1281, 97-1282, 97-1283, 97-1286, 97-1289
BEFORE: Edwards, Chief Judge; Wald, Silberman,
Williams, Ginsburg, Sentelle, Henderson,
Randolph, Rogers, Tatel and Garland, Cir-
cuit Judges
ORDER
Upon consideration of the Suggestions for Rehearing
In Banc of petitioners Appalachian Power Co., et al. and
20a
the Clean Air Implementation Project, et al., the response
thereto, and the absence of a request by any member of
the court for a vote, it is
ORDERED that the suggestions be denied.
Per Curiam
FoR THE CouRT:
MARK J. LANGER
Clerk
By: /s/ Robert A. Bonner
ROBERT A. BONNER
Deputy Clerk
Circuit Judges Henderson and Tatel did not participate
in this matter.
21a
APPENDIX D
[Mandate Issued: 12/1/98]
UNITED STATES COURT OF APPEALS
FOR THE DISTRICT OF COLUMBIA CIRCUIT
No. 97-1117
CLEAN AIR IMPLEMENTATION PROJECT, et al.,
Petitioners
Vv.
ENVIRONMENTAL PROTECTION AGENCY,
Respondent
NATURAL RESOURCES DEFENSE COUNCIL, INC.
and BATTERY COUNCIL INTERNATIONAL,
Intervenors
Consolidated with
97-1125, 97-1139, 97-1142, 97-1 169, 97-1173, 97-1179,
97-1190, 97-1195, 97-1226, 97-1241, 97-1242. 97-1253,
97-1254, 97-1259, 97-1261, 97-1266, 97-1269, 97-1273,
97-1278, 97-1281, 97-1282, 97-1283, 97-1286, 97-1289
On Petitioners for Review of an Order of the
Environmental Protection Agency
Before: SILBERMAN, WILLIAMS and RANDOLPH, Cir-
cuit Judges.
22a
JUDGMENT
These causes came on to be heard on the petitions for
review of an order of the Environmental Protection
Agency and were argued by counsel. On consideration
thereof, it is
ORDERED and ADJUDGED, by the Court, that the
petitions for review are dismissed, in accordance with the
opinion of the Court filed herein this date.
FOR THE CouRT:
MarK J. LANGER
Clerk
By: /s/ Robert A. Bonner
ROBERT A. BONNER
Deputy Clerk
Date: August 14, 1998
Opition for the Court filed by Circuit Judge Randolph.
23a
APPENDIX E
Excerpts From Articles I and III of the
United States Constitution
CONSTITUTION OF THE
UNITED STATES OF AMERICA
Article I, Section 8, Clause 9
ARTICLE I
* * * x
SECTION 8. The Congress shall have Power
* * of *
To constitute Tribunals inferior to the Supreme Court;
* * * *
Article III, Section 1
ARTICLE III
SECTION 1. The judicial Power of the United States,
shall be vested in one supreme Court, and in such inferior
Courts as the Congress may from time to time ordain and
establish. The Judges, both of the supreme and inferior
Courts, shall hold their Offices during good Behaviour,
and shall, at stated Times, receive for their Services, a
Compensation, which shall not be diminished during their
Continuance in Office.
* * * *
24a
APPENDIX F
Excerpts From Sections 110, 111, 112 and 307
of the Clean Air Act
Excerpt from Section 110 of the Clean Air Act
§ 7410. State implementation plans for national primary
and secondary ambient air quality standards
(a) Adoption of plan by State; submission to Adminis-
rator; content of plan; revision; new sources; indirect
source review program; supplemental or intermittent
control systems
(1) Each State shall, after reasonable notice and public
hearings, adopt and submit to the Administrator, within
3 years (or such shorter period as the Administrator may
prescribe) after the promulgation of a national primary
ambient air quality standard (or any revision thereof)
under section 7409 of this title for any air pollutant, a
plan which provides for implementation, maintenance, and
enforcement of such primary standard in each air quality
control region (or portion thereof) within such State. In
addition, such State shall adopt and submit to the Ad-
ministrator (either as a part of a plan submitted under the
preceding sentence or separately) within 3 years (or such
shorter period as the Administrator may prescribe) after
the promulgation of a national ambient air quality second-
ary standard (or revision thereof), a plan which provides
for implementation, maintenance, and enforcement of such
secondary standard in each air quality control region (or
portion thereof) within such State. Unless a separate pub-
lic hearing is provided, each State shall consider its plan
implementing such secondary standard at the hearing re-
quired by the first sentence of this paragraph.
(2) Each implementation plan submitted by a State
under this chapter shall be adopted by the State after
reasonable notice and public hearing. Each such plan
shall--
ey meet
EL ORAEPLAREELIV
fF Sibi A REREAD RAEI GO a ey in BN AGH
Te rN) Bee en
i
rs
}
4
;
a
4
:
25a
(A) include enforceable emission limitations and
other control measures, means, or techniques (includ-
ing economic incentives such as fees, marketable per-
mits, and auctions of emissions rights), as well as
schedules and timetables for compliance, as may be
necessary Or appropriate to meet the applicable re-
quirements of this chapter;
(B) provide for establishment and operation of
appropriate devices, methods, systems, and _proce-
dures necessary to—
(i) monitor, compile, and analyze data on
ambient air quality, and
(ii) upon request, make such data available
to the Administrator;
(C) include a program to provide for the enforce-
ment of the measures described in subparagraph
(A), and regulation of the modification and con-
struction of any stationary source within the areas
covered by the plan as necessary to assure that na-
tional ambient air quality standards are achieved,
including a permit program as required in parts C
and D of this subchapter;
(D) contain adequate provisions—
(i) prohibiting, consistent with the provisions
of this subchapter, any source or other type of
emissions activity within the State from emitting
any air pollutant in amounts which will—
(I) contribute significantly to nonattain-
ment in, or interfere with maintenance by,
any other State with respect to any such
national primary or secondary ambient air
quality standard, or
(II) interfere with measures required to
be included in the applicable implementa-
26a
tion plan for ary other State under part C
of this subchapter to prevent significant
deterioration of air quality or to protect
visibility.
(ii) insuring compliance with the applicable
requirements of sections 7426 and 7415 of this
title (reating to interstate and international pol-
lution abatement) ;
(E) provide (i) necessary assurances that the
State (or, except where the Administrator deems in-
appropriate, the general purpose local government or
governments, or a regional agency designated by the
State or general purpose local governments for such
purpose) will have adequate personnel, funding, and
authority under State (and, as appropriate, local)
law to carry out such implementation plan (and is
not prohibited by any provision of Federal or State
law from carrying out such implementation plan or
portion thereof), (ii) requirements that the State
comply with the requirements respecting State boards
under section 7428 of this title, and (iii) necessary
assurances_that, where the State has relied on a local
or regional government, agency, or instrumentality
for the implementation of any plan provision, the
State has responsibility for ensuring adequate imple-
mentation of such plan provision;
(F) require, as may be prescribed by the Adminis-
trator—
(i) the installation, maintenance, and re-
placement of equipment, and the implementation
of other necessary steps, by owners or operators
of stationary sources to monitor emissions from
such sources,
(ii) periodic reports on the nature and
amounts of emissions and emissions-related data
from such sources, and
27a
(iii) correlation of such reports by the State
agency with any emission limitations or stand-
ards established pursuant to this chapter, which
reports shall be available at reasonable times for
public inspection;
(G) provide for authority comparable to that in
section 7603 of this title and adequate contingency
plans to implement such authority;
(H) provide for revision of such plan—
(i) from time to time as may be necessary to
take account of revisions of~such national pri-
mary or secondary ambient air quality standard
or the availability of improved or more expedi- |
tious methods of attaining such standard, and |
(ii) except as provided in paragraph (3)(C),
whenever the Administrator finds on the basis
of information available to the Administrator
that the plan is substantially inadequate to at-
tain the national ambient air quality standard
which it implements or to otherwise comply with
any additional requirements established under
this chapter;
(I) in the case of a plan or plan revision for an
area designated as a nonattainment area, meet the
applicable requirements of part D of this subchapter
(relating to nonattainment areas);
(J) meet the applicable requirements of section
7421 of this title (relating to consultation), section
7427 of this title (relating to public notification) and
part C of this subchapter ( relating to prevention of
Significant deterioration of air quality and visibility
protection);
(K) provide for—
(i) the performance of such air quality mod-
cling as the Administrator may prescribe for the
28a
purpose of predicting the effect on ambient air
quality of any emissions of any air pollutant for
which the Administrator has established a na-
tional ambient air quality standard, and
(ii) the submission, upon request, of data
related to such air quality modeling to the Ad-
ministrator;
(L) require the owner or operator of each major
stationary source to pay to the permitting authority,
as a condition of any permit required under this
chapter, a fee sufficient to cover—
(i) the reasonable costs of reviewing and act-
ing upon any application for such a permit, and
(ii) if the owner or operator receives a per-
mit for such source, the reasonable costs of im-
plementing and enforcing the terms and condi-
tions of any such permit (not including any
court costs or other costs associated with any
enforcement action),
until such fee requirement is superseded with respect
to such sources by the Administrator’s approval of a
fee program under subchapter V of this chapter; and
(M) provide for consultation and participation by
local political subdivisions affected by the plan.
(3)(A) Repealed. Pub. L. 101-549, title I, § 101(d)
(1), Nov. 15, 1990, 104 Stat. 2409.
(B) As soon as practicable, the Administrator shall,
consistent with the purposes of this chapter and the Energy
Supply and Environmental Coordination Act of 1974 [15
U.S.C. 791 et seq.], review each State’s applicable imple-
mentation plans and report to the State on whether such
plans can be revised in relation to fuel burning stationary
sources (or persons supplying fuel to such sources) with-
out interfering with the attainment and maintenance of
any niitional ambient air quality standard within the period
PrA ae iS RIL it Sacpalllans
hele ah VE Tans ADIN I OL SS nde:
29a
permited in this section. If the Administrator determines
that any such plan can be revised, he shall notify the
State that a plan revision may be submitted by the State.
Any plan revision which is submitted by the State shall,
after public notice and Opportunity for public hearing, be
approved by the Administrator if the revision relates only
to fuel burning Stationary sources (or persons supplying
fuel to such sources), and the plan as revised complies
with paragraph (2) of this subsection. The Administrator
shall approve or disapprove any revision no later than
three months after its submission.
(C) Neither the State, in the case of a plan (or por-
tion thereof) approved under this subsection, nor the
Administrator, in the case of a plan (or portion thereof)
Promulgated under subsection ( C) of this section, shall be
required to revise an applicable implementation plan be-
cause one or more exemptions under section 7418 of this
title (relating to Federal facilities), enforcement orders
under section 7413(d) of this title, suspensions under
subsection (f) or ( g) of this section ( relating to tempo-
rary energy or econmic authority), orders under section
7419 of this title ( relating to primary nonferrous smelt-
ers), or extensions of compliance in decrees entered under
section 7413(e) of this title ( relating to iron- and steel-
Producing operations) have been granted, if such plan
would have met the requirements of this section if no
such exemptions, orders, or extensions had been granted.
(4) Repealed.| Pub. L. 101-549, title I, § 101(d)
(2), Nov. 15, 1990, 104 Stat. 2409.
(5) (A) (i) Any State may include in a State imple-
mentation plan, but the Administrator may not require
as a condition of approval of such plan under this section,
any indirect source review program. The Administrator
may approve and enforce, as part of an applicable imple-
mentation plan, an indirect source review program which
the State chooses to adopt and submit as part of its plan.
30a
(ii) Except as provided in subparagraph (B), no plan
promulgated by the Administrator shall include any in-
direct source review program for any air quality control
region, or portion thereof.
(iii) Any State may revise an applicable implementa-
tion plan approved under this subsection to suspend or
revoke any such program included in such plan, provided
that such plan meets the requirements of this section.
(B) The Administrator shall have the authority to
promulgate, implement and enforce regulations under sub-
section (c) of this section respecting indirect source re-
view programs which apply only to federally assisted high-
ways, airports, and other major federally assisted indirect
sources and federally owned or operated indirect sources.
(C) For purposes of this paragraph, the term “indirect
source means a facility, building, structure, installation,
real property, road, or highway which attracts, or may
attract, mobile sources of pollution. Such term includes
parking lots, parking garages, and other facilities subject
to any measure for management of parking supply
(within the meaning of subsection (c)(2)(D) (ii) of this
section), including regulation of existing off-street parking
but such term does not include new or existing on-street
parking. Direct emissions sources or facilities at, within,
or associated with, any indirect source shall not be deemed
indirect sources for the purpose of this paragraph.
(D) For purposes of this paragraph the term “indirect
source review program” means the facility-by-facility re-
view of indirect sources of air pollution, including such
measures as are necessary to assure, or assist in assuring,
that a new or modified indirect source will not attract
mobile sources of air pollution, the emissions from which
would cause or contribute to air pollution concentra-
tions—
AND ems na saa ae Rh
3la
(i) exceeding any national primary ambient air
quality standard for a mobile source-related air pol-
lutant after the primary standard attainment date, or
(ii) preventing maintenance of any such standard
after such date.
(E) For purposes of this paragraph and paragraph
(2)(B), the term “transportation control measure” does
not include any measure which is an “indirect source re-
view program.”
(6) No State plan shall be treated as meeting the re-
quirements of this section unless such plan provides that
in the case of any source which uses a supplemental, or
intermittent control system for purposes of meeting the
requirements of an order under section 7413(d)* of this
title or section 7419 of this title (relating to primary
nonferrous smelter orders), the owner or operator of such
source may not temporarily reduce the pay of any em-
ployee by reason of the use of such supplemental or inter-
mittent or other dispersion dependent control system.
* * * *
(c) Preparation and publication by Administrator of
proposed regulations setting forth implementation
plan; transportation regulations study and report;
parking surcharge; suspension authority; plan imple-
mentation
(1) The Administrator shall promulgate a Federal
implementation plan at any time within 2 years after the
Administrator—
(A) finds that a State has failed to make a
required submisison or finds that the plan or plan
revision submitted by the State does not satisfy the
minimum criteria established under subsection (k)
(1)(A) of this section, or
(B) disapproves a State implementation plan sub-
mission in whole or in part,
32a
unless the State corrects the deficiency, and the Adminis-
trator approves the plan or plan revision, before the
Administrator promulgates such Federal implementation
plan.
(2)(A) Repealed. Pub. L. 101549, title I, § 101(d)
(3)(A), Nov. 15, 1990, 104 Stat. 2409.
(B) No parking surcharge regulation may be required
by the Administrator under paragraph (1) of this sub-
section as a part of an applicable implementation plan.
All parking surcharge regulations previously required by
the Administrator shall be void upon June 22, 1974. This
subparagraph shall not prevent the Administrator from
approving parking surcharges if they are adopted and sub-
mitted by a State as part of an applicable implementation
plan. The Administrator may not condition approval of
any implementation plan submitted by a State on such
plan’s including a parking surcharge regulation.
(C) Repealed. Pub. L. 101-549, title I, § 101(d)(3)
(B), Nov. 15, 1990, 104 Stat. 2409.
(D) For purposes of this paragraph—
(i) The term “parking surcharge regulation”
means a regulation imposing or requiring the imposi-
tion of any tax, surcharge, fee, other area used for
the temporary storage of motor vehicles.
(ii) The term “management of parking supply”
shall include any requirement providing that any new
facility containing a given number of parking spaces
shall receive a permit or other prior approval, issu-
ance of which is to be conditioned on air quality
considerations.
(iii) The term “preferential bus/carpool lane” shall
include any requirement for the setting aside of one
or more lanes of a street or highway on a permanent
ere ae
salliaeint ainda
he aE Ne ein
i, AA lel Mig tc a i > she Nec ac id lis shih is deta
33a
or temporary basis for the exclusive use of buses or
carpools, or both.
(E) No standard, plan, or requirement, relating to
management of parking supply or preferential bus/carpool
lanes shall be promulgated after June 22, 1974, by the
Administrator pursuant to this section, unless such promul-
gation has been subjected to at least one public hearing
which has been held in the area affected and for which
reasonable notice has been given in such area. If substan-
tial changes are made following public hearings, one or
more additional hearings shall_be held in such area after
such notice.
(3) Upon application of the chief executive Officer of
any general purpose unit of local government, if the Ad-
ministrator determines that such unit has adequate author-
ity under State or local law, the Administrator may dele-
gate to such unit the authority to implement and enforce
within the jurisdiction of such unit any part of a plan
promulgated under this subsection. Nothing in this para-
graph shall prevent the Administrator from implementing
or enforcing any applicable provision of a plan promul-
gated under this subséction.
(4) Repealed. Pub. L. 101-549, title I, § 101(d)(3)
(C), Nov. 15, 1990, 104 Stat. 2409.
(5)(A) Any measure in an applicable implementation
plan which requires a toll or other charge for the use of
a bridge located entirely within one city shall be elim-
inated from such plan by the Administrator upon applica-
tion by the Governor of the State, which application shall
include a certification by the Governor that he will revise
such plan in accordance with subparagraph (B).
(B) In the case of any applicable implementation plan
with respect to which a measure has been eliminated under
subparagraph (A), such plan shall, not later than one year
34a
after August 7, 1977, be revised to include comprehensive
measures to:
(i) establish, expand, or improve public transpor-
tation measures to meet basic transportation needs,
as expeditiously as is practicable; and
(ii) implement transportation control measures
necessary to attain and maintain national ambient air
quality standards.
and such revised plan shall, for the purpose of implement-
ing such comprehensive public transportation measures,
include requirements to use (insofar as is necessary) Fed-
eral grants, State or local funds, or any combination of
such grants and funds as may be consistent with the terms
of the legislation providing such grants and funds. Such
measures shall, as a substitute for the tolls or charges elim-
inated under subparagraph (A), provide for emissions re-
ductions equivalent to the reductions which may reason-
ably be expected to be achieved through the use of the
tolls or charges eliminated.
(C) Any revision of an implementation plan for pur-
poses of meeting the requirements of subparagraph (B)
shall be submitted in coordination with any plan revision
required under part D of this subchapter.
* * 26 *
(k) Environmental Protection Agency action on plan
submissions
(1) Completeness of plan submissions
(A) Completeness criteria
Within 9 months after November 15, 1990, the
Administrator shall promulgate minimum criteria
that any plan submission must meet before the Ad-
ministrator is required to act on such submission
35a
under this subsection. The criteria shall be limited
to the information necessary to enable the Adminis-
trator to determine whether the plan submission com-
plies with the provisions of this chapter.
(B) Completeness finding
Within 60 days of the Administrator’s receipt of a
plan or plan revision, but no later than 6 months
after the date, if any, by which a State is required
to submit the plan or revision, the Administrator
shall determine whether the minimum criteria estab-
lished pursuant to subparagraph (A) have been met.
Any plan or plan revision that a State submits to the
Administrator, and that has not been determined by
the Administrator (by the date 6 months after re-
| ceipt of the submission) to have failed to meet the
minimum criteria established pursuant to subpara-
3 graph (A), shall on that date be deemed by opera-
i tion of law to meet such minimum criteria.
| (C) Effect of finding of incompleteness
Where the Administrator determines that a plan
4 submission (or part thereof) does not meet the min-
imum criteria established pursuant to subparagraph
(A), the State shall be treated as not having made
the submission (or, in the Administrator’s discretion,
part thereof).
(2) Deadline for action
Within 12 months of a determination by the Ad-
ministrator (or a determination deemed by operation
of law) under paragraph (1) that a State has sub-
mitted a plan or plan revision (or, in the Adminis-
trator’s discretion, part thereof) that meets the mini-
mum criteria established pursuant to paragraph (1),
if applicable (or, if those criteria are not applicable,
~ P= 4 4 Pet + ee =
See en are Te ee POS ener eee
4
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w
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-
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OO
36a
within 12 months of submission of the plan or revi-
sion), the Administrator shall act on the submission
in accordance with paragraph (3).
(3) Full and partial approval and disapproval
In the case of any submittal on which the Admin-
istrator is required to act under paragraph (2), the
Administrator shall approve such submittal as a
whole if it meets all of the applicable requirements of
this chapter. If a portion of the plan revision meets
all the applicable requirements of this chapter, the
Administrator may approve the plan revision in part
and disapprove the plan revision in part. The plan
revision shall not be treated as meeting the require-
ments of this chapter until the Administrator approves
the entire plan revision as complying with the appli-
cable requirements of this chapter.
(4) Conditional approval
The Administrator may approve a plan revision
based on a commitment of the State to adopt specific
enforceable measures by a date certain, but not later
than 1 year after the date of approval of the plan
revision. Any such conditional approval shall be
treated as a disapproval if the State fails to comply
with such commitment.
(5) Calls for plan revisions
Whenever the Administrator finds that the appli-
cable implementation plan for any area is substan-
tially inadequate to attain or maintain the relevant
national ambient air quality standard, to mitigate ade-
quately the interstate pollutant transport described in
section 7506a of this title or section 7511c of this
title, or to otherwise comply with any requirement of
this chapter, the Administrator shall require the State
to revise the plan as necessary to correct such inade-
37a
quacies, The Administrator shal] notify the State of
the inadequacies, and may establish reasonable dead-
lines (not to exceed 18 months after the date of such
notice) for the submission of such plan revisions.
Such findings and notice shall be public. Any finding
under this paragraph shall, to the extent the Admin-
istrator deems appropriate, subject the State to the
requirements of this chapter to which the State was
subject when it developed and submitted the plan for
which such finding was made, except that the Admin-
istrator may adjust any dates applicable under such
requirements as appropriate (except that the Admin-
istrator may not adjust any attainment date prescribed
under part D of this subchapter, unless such date has
elapsed).
(6) Corrections
Whenever the Administrator determines that the
Administrator’s action approving, disapproving, or
promulgating any plan or plan revision (or part
thereof), area designation, redesignation, classifica-
tion, or reclassification was in error, the Adminis-
trator may in the same manner as the approval, dis-
approval, or promulgation revise such action as ap-
propriate without requiring any further submission
from the State. Such determination and the basis
thereof shall be provided to the State and public.
* * * %
Excerpt from Section 111 of the Clean Air Act
§ 7411. Standards of performance for new stationary
sources
(a) Definitions
For purposes of this section:
(1) The term “standard of performance” means
a standard for emissions of air pollutants which re-
38a
flects the degree of emission limitation achievable
through the application of the best system of emis-
sion reduction which (taking into account the cost of
achieving such reduction and any nonair quality
health and environmental impact and energy require-
ments) the Administrator determines has been ade-
quately demonstrated.
(2) The term “new source” means any stationary
source, the construction or modification of which is
commenced after the publication of regulations (or,
if earlier, proposed regulations) prescribing a stand-
ard of performance under this section which will be
applicable to such source.
(3) The term “stationary source” means any
building, structure, facility, or installation which
emits or may emit any air pollutant. Nothing in sub-
chapter II of this chapter relating to nonroad engines
shall be construed to apply to stationary internal com-
bustion engines.
(4) The term “modification” means any physical
change in, or change in the method of operation of,
a stationary source which increases the amount of
any air pollutant emitted by such source or which
results in the emission of any air pollutant not pre-
viously emitted.
(5) The term “owner or operator” means any per-
son who owns, leases, operates, controls, or super-
vises a stationary source.
(6) The term “existing source” means any station-
ary source other than a new source.
(7) The term “technological system of continuous
emission reduction” means—
(A) a technological process for production
or operation by any source which is inherently
low-polluting or nonpolluting, or
39a
(B) a technological system for continuous
reduction of the pollution generated by a source
before such pollution is emitted into the ambient
air, including precombustion cleaning or treat-
ment of fuels.
(8) A conversion to coal (A) by reason of an
order under section 2(a) of the Energy Supply and
Environmental Coordination Act of 1974 [15 U.S.C.
792(a)] or any amendment thereto, or any subse-
quent enactment which supersedes such Act [15
U.S.C. 791 et seq.], or (B) which qualifies under sec-
tion 7413(d)(5)(A) (ii) of this title, shall not be
deemed to be a modification for purposes of para-
graphs (2) and (4) of this subsection.
(b) List of categories of Stationary sources; standards of
performance; information on pollution control tech-
niques; sources owned or operated by United States;
particular systems; revised standards
(1)(A) The Administrator shall, within 90 days after
December 31, 1970, publish (and from time to time there-
after shall revise) a list of categories of stationary sources.
He shall include a category of sources in such list if in
his judgment it causes, or contributes significantly to, air
pollution which may reasonably be anticipated to endan-
ger public health or welfare.
(B) Within one year after the inclusion of a category
of stationary sources in a list under subparagraph (A),
the Administrator shall publish proposed regulations, es-
tablishing Federal standards of performance for new
sources within such category. The Administrator shall af-
ford interested persons an opportunity for written com-
ment on such proposed regulations. After considering
such comments, he shal! promulgate, within one year after
such publication, such standards with such modifications
40a
as he deems appropriate. The Administrator shall, at least
every 8 years, review and, if appropriate, revise such stand-
ards following the procedure required by this subsection
for promulgation of such standards. Notwithstanding the
requirements of the previous sentence, the Administrator
need not review any such standard if the Administrator
determines that such review is not appropriate in light of
readily available information on the efficacy of such stand-
ard. Standards of performance or revisions thereof shall
become effective upon promulgation. When implementa-
tion and enforcement of any requirement of this chapter
indicate that emission limitations and percent reductions
beyond those required by the standards promulgated
under this section are achieved in practice, the Adminis-
trator shall, when revising standards promulgated under
this section, consider the emission limitations and percent
reductions achieved in practice.
(2) The Administrator may distinguish among classes,
types, and sizes within categories of new sources for the
purpose of establishing such standards.
(3) The Administrator shall, from time to time, issue
information on pollution control techniques for categories
of new sources and air pollutants subject to the provisions
of this section.
(4) The provisions of this section shall apply to any
new source owned or operated by the United States.
(5) Except as otherwise authorized under subsection
(h) of this section, nothing in this section shall be con-
strued to require, or to authorize the Administrator to
require, any new or modified source to install and operate
any particular technological system of continuous emis-
sion reduction to comply with any new source standard of
performance.
(6) The revised standards of performance required by
enactment of subsection (a)(1)(A)(i) and (ii) of this
4la
section shall be promulgated not later than one year after
August 7, 1977. Any new or modified fossil fuel fired
stationary source which commences construction prior to
the date of publication of the proposed revised standards
shall not be required to comply with such revised
standards.
(c) State implementation and enforcement of standards
of performance
(1) Each State may develop and submit to the Admin-
istrator a procedure for implementing and enforcing stand-
ards of performance for new sources located in such
State. If the Administrator finds the State procedure is
adequate, he shall delegate to such State any authority he
has under this chapter to implement and enforce such
standards,
(2) Nothing in this subsection shall prohibit the Ad-
ministrator from enforcing any applicable standard of per-
formance under this section.
* cd * *
Excerpt from Section 112 of the Clean Air Act
§ 7412. Hazardous air pollutants
* a a ©
(q) Savings provision
(1) Standards previously promulgated
Any standard under this section in effect before the
date of enactment of the Clean Air Act Amendments
of 1990 [November 15, 1990] shall remain in force
and effect after such date unless modified as provided
in this section before the date of enactment of such
Amendments or under such Amendments. Except as
provided in paragraph (4), any standard under this
42a
section which has been promulgated, but has not
taken effect, before such date shall not be affected
by such Amendments unless modified as provided in
this section before such date or under such Amend-
ments. Each such standard shall be reviewed and, if .
appropriate, revised, to comply with the requirements 4
of subsection (d) of this section within 10 years after i
the date of enactment of the Clean Air Act Amend- F
ments of 1990. If a timely petition for review of any
such standard under section 7607 of this title is pend-
ing on such date of enactment, the standard shall be
upheld if it complies with this section as in effect
before that date. If any such standard is remanded .
2 the Administrator, the Administrator may in the
Administrator’s discretion apply either the require-
ments of this section, or those of this section as in
effect before the date of enactment of the Clean Air
Act Amendments of 1990.
(2) Special rule
Notwithstanding paragraph (1), no standard shall
be established under this section, as amended j
by the Clean Air Act Amendments of 1990, for ’
radionuclide emissions from (A) elemental phospho-
rous plants, (B) grate calcination elemental phos- !
phorous plants, (C) phosphogypsum stacks, or (D)
any subcategory of the foregoing. This section, as in
effect prior to the date of enactment of the Clean Air :
Act Amendments of 1990 [November 15, 1990], ;
shall remain in effect for radionuclide emissions
from such plants and stacks.
(3) Other categories
Notwithstanding paragraph (1), this section as in
effect prior to the date of enactment of the Cican Air
43a
Act Amendments of 1990 [November 15, 1990],
shall remain in effect for radionuclide emissions from
non-Department of Energy Federal facilities that are
not licensed by the Nuclear Regulatory Commission,
coal-fired utility and industrial boilers, underground
uranium mines, surface uranium mines, and disposal
of uranium mill tailings piles, unless the Adminis-
trator, in the Administrator’s discretion. applies the
requirements of this section as modified by the Clean
Air Act Amendments of 1990 to such sources of
radionuclides.
(4) Medical facilities
Notwithstanding paragraph (1), no standard prom-
ulgated under this section prior to November 15,
1990, with respect to medical research or treatment
facilities shall take effect for two years following No-
vember 15, 1990, unless the Administrator makes a
determination pursuant to a rulemaking under sub-
section (d)(9) of this section. If the Administrator
determines that the regulatory program established by
the Nuclear Regulatory Commission for such facilities
does not provide an ample margin of safety to pro-
tect public health, the requirements of this section
shall fully apply to such facilities. If the Administrator
determines that such regulatory program does provide
an ample margin of safety to protect the public
health, the Administrator is not required to promul-
gate a stancard under this section for such facilities,
as provided in subsection (d)(9) of this section.
* 76 * 76
44a
Excerpt from Section 307 of the Clean Air Act
§ 7607. Administrative proceedings and judicial review
* o * %
(b) Judicial review
(1) A petition for review of action of the Adminis-
trator in promulgatingg any national primary or secondary
ambient air quality standard, any emission standard or re-
quirement under section 7412 of this 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 sec-
tion 7521(b)(5) of this title, any control or prohibition
under section 7545 of this title, any standard under sec-
tion 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 ac-
tion 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 Ad-
ministrator’s action in approving or promulgating any im-
plementation plan under section 7410 of this title or sec-
tion 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 regu-
lations for enhanced monitoring and compliance certifica-
tion 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 Ad-
ministrator 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 appropriate cir-
cuit. Notwithstanding the preceding sentence a petition
45a
for review of any action referred to in such sentence may
be filed only in the United States Court of Appeals for
the District of Columbia if such action js based on a
determination of nationwide scope or effect and if in tak-
ing such action the Administrator finds and publishes that
such action is based on such a determination. Any peti-
tion 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, ex-
cept that if such petition is based solely on grounds aris-
ing 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 reconsid-
eration 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 nondiscre-
tionary statutory action to a later time, any person may
challenge the deferral pursuant to paragraph (1).
* bd * *
(d) Rulemaking
(1) This subsection applies to—
(A) the promulgation or revision of any national
ambient air quality standard under section 7409 of
this title,
(B) the promulgation or revision of an implemen-
tation plan by the Administrator under section 7410
(c) of this title,
46a
(C) the promulgation or revision of any standard
of performance under section 7411 of this title, or
emission standard or limitation under section 7412
(d) of this title, any standard under section 7412
(f) of this title, or any regulation under section
7412(g)(1)(D) and (F) of this title, or any regula-
tion under section 7412(m) or (n) of this title,
(D) the promulgation of any requirement for solid
waste combustion under section 7429 of this title,
(E) the promulgation or revision of any regula-
tion pertaining to any fuel or fuel additive under sec-
tion 7545 of this title,
(F) the promulgation or revision of any aircraft
emission standard under section 7571 of this title,
(G) the promulgation or revision of any regula-
tion under subchapter IV-A of this chapter (relating
to control of acid deposition),
(H) promulgation or revision of regulations per-
taining to primary nonferrous smelter orders under
section 7419 of this title (but not including the grant-
ing or denying of any such order),
(I) promulgation or revision of revulations under
subchapter VI of this chapter (relating to strato-
sphere and ozone protection),
(J) promulgation or revision of regulations under
part C of subchapter I of this chapter (relating to
prevention of significant deterioration of air quality
and protection of visibility),
(K) promulgation or revision of regulations under
section 7521 of this title and test procedures for new
motor vehicles on engines under section 7525 of this
title, and the revision of a standard under section
7521(a)(3) of this title,
135 vate oo Awid ney aiilhl d foc
Sr ere ae
47a
(L) promulgation or revision of regulations for
noncompliance penalties under section 7420 of this
title,
(M) promulgation or revision of any regulations
promulgated under section 7541 of this title (relating
to warranties and compliance by vehicles in actual
use),
(N) action of the Administrator under section
7426 of this title (relating to interstate pollution
abatement),
(O) the promulgation or revision of any regula-
tion pertaining to consumer and commercial products
under section 7511b(e) of this title,
(P) the promulgation or revision of any regula-
tion pertaining to field citations under section 7413
(d)¢€3) of this title,
(Q) the promulgation or revision of any regula-
tion pertaining to urban buses or the clean-fuel ve-
hicle, clean-fuel fleet, and clean-fuel programs under
part C of subchapter IT of this chapter,
(R) the promulgation or revision of any regula-
tion pertaiing to nonroad engines or nonroad ve-
hicles under section 7547 of this title,
(S) the promulgation or revision of any regulation
relating to motor vehicle compliance program fees
under section 7552 of this title,
(T) the promulgation or revision of any regula-
tion under subchapter IV-A of this chapter (relating
to acid deposition),
(U) the promulgation or revision of any regula-
tion under section 7511b(f) of this title pertaining
to marine vessels, and
(V) such other actions as the Administrator may
determine.
“48a
The provisions of section 553 through 557 and section
706 of title 5 shall not, except as expressly provided in
this subsection, apply to actions to which this subsection
applies. This subsection shall not apply in the case of any
rule or circumstance referred to in subparagraphs (A) or
(B) of subsection 553(b) of title 5.
(2) Not later than the date of proposal of any action
to which this subsection applies, the Administrator shall
establish a rulemaking docket for such action (hereinafter
in this subsection referred to as a “rule”). Whenever a
rule applies only within a particular State, a second
(identical) docket shall be simultaneously established in
the appropriate regional office of the Environmental Pro-
tection Agency.
(3) In the case of any rule to which this subsection
applies, notice of proposed rulemaking shall be published
in the Federal Register, as provided under section 553(b)
of title 5, shall be accompanied by a statement of its basis
and purpose and shall specify the period available for
public comment (hereinafter referred to as the “comment
period”). The notice of proposed rulemaking shall also
state the docket number, the location or locations of the
docket, and the times it will be open to public inspection.
The statement of basis and purpose shall include a sum-
mary of—
(A) the factual data on which the proposed rule
is based;
(B) the methodology used in obtaining the data
and in analyzing the data; and
(C) the major legal interpretations and policy
considerations underlying the proposed rule.
The statement shall also set forth or summarize and pro-
vide a reference to any pertinent findings, recommenda-
tions, and comments by the Scientific Review Committee
established under section 7409(d) of this title and the
49a
National Academy of Sciences, and, if the proposal differs
in any important respect from any of these recommenda-
tions, an explanation of the reasons for such differences.
All data, information, and documents referred to in this
paragraph on which the proposed rule relies shall be in-
cluded in the docket on the date of publication of the
proposed rule.
(4)(A) The rulemaking docket required under para-
graph (2) shall be open for inspection by the public at
reasonable times specified in the notice of proposed rule-
making. Any person may copy documents contained in
the docket. The Administrator shall provide copying fa-
cilities which may be used at the expense of the person
seeking copies, but the Administrator may waive or reduce
such expenses in such instances as the public interest re-
quires. Any person may request copies by mail if the
person pays the expenses, including personnel costs to
do the copying.
(B)(i) Promptly upon receipt by the agency, all writ-
ten comments and documentary information on the pro-
posed rule received from any person for inclusion in the
docket during the comment period shall be placed in the
docket. The transcript of public hearings, if any, on the
proposed rule shall also be included in the docket
promptly upon receipt from the person who transcribed
such hearings. All documents which become available
after the proposed rule has been published and which the
Administrator determines are of central relevance to the
rulemaking shall be placed in the docket as soon as pos-
sible after their availability.
(ii) The drafts of proposed rules submitted by the Ad-
ministrator to the Office of Management and Budget for
any interagency review process prior to proposal of any
such rule, all documents accompanying such drafts, and
all written comments thereon by other agencies and all
written responses to such written comments by the Admin-
50a
istrator shall be placed in the docket no later than the
date of proposal of the rule. The drafts of the final rule
submitted for such review process prior to promulgation
and all such written comments thereon, all documents ac-
companying such drafts, and written responses thereto
shall be placed in the docket no later than the date of
promulgation.
(5) In promulgating a rule to which this subsection
applies (i) the Administrator shall allow any person to
submit written comments, data, or documentary informa-
tion; (ii) the Administrator shall give interested persons
an opportunity for the oral presentation of data, views, or
arguments, in addition to an opportunity to make written
submissions; (iii) a transcript shall be kept to any oral
presentation; and (iv) the Administrator shall keep the
record of such proceeding open for thirty days after com-
pletion of the proceeding to provide an opportunity for
submission of rebuttal and supplementary information.
(6)(A) The promulgated rule shall be accompanied
by (i) a statement of basis and purpose like that referred
to in paragraph (3) with respect to a proposed rule and
(ii) an explanation of the reasons for any major changes
in the promulgated rule from the proposed rule.
(B) The promulgated rule shall also be accompanied
by a response to each of the significant comments, criti-
cisms, and new data submitted in written or oral presen-
tations during the comment period.
(C) The promulgated rule may not be based (in part
or whole) on any information or data which has not been
placed in the docket as of the date of such promulgation.
(7)(A) The record for judicial review shall consist
exclusively of the material referred to in paragraph (3),
clause (i) of paragraph (4)(B), and subparagraphs (A)
and (B) of paragraph (6).
ee Ra Ate iit Sit
S5la
(B) Only an objection to a rule or procedure which
was raised with reasonable specificity during the period
for public comment (including any public hearing) may
be raised during judicial review. If the person raising an
objection can demonstrate to the Administrator that it
was impracticable to raise such objection within such time
or if the grounds for such objection arose after the period
for public comment (but within the time specified for
judicial review) and if such objection is of central rele-
vance to the outcome of the rule, the Administrator shall
convene a proceeding for reconsideration of the rule and
provide the same procedural rights as would have been
afforded had the information been available at the time
the rule was proposed. If the Administrator refuses to
convene such a proceeding, such person may seek review
of such refusal in the United States court of appeals for
the appropriate circuit (as provided in subsection (b) of
this section). Such reconsideration shall not postpone the
effectiveness of the rule. The effectiveness of the rule may
be stayed during such reconsideration, however, by the
Administrator or the court for a period not to exceed
three months.
(8) The sole forum for challenging procedural deter-
minations made by the Administrator under this subsec-
tion shall be in the United States court of appeals for the
appropriate circuit (as provided in subsection (b) of this
section) at the time of the substantive review of the rule.
No interlocutory appeals shall be permitted with respect
to such procedural determinations. In reviewing alleged
procedural errors, the court may invalidate the rule only
if the errors were so serious and related to matters of
such central relevance to the rule that there is a substan-
tial likelihood that the rule would have been significantly
changed if such errors had not been made.
(9) In the case of review of any action of the Admin-
istrator to which this subsection applies, the court may
reverse any such action found to be—
52a
(A) arbitrary, capricious, an abuse of discretion,
or otherwise not in accordance with law;
(B) contrary to constitutional right, power, priv-
ilege, or immunity;
(C) in excess of statutory jurisdiction, authority,
or limitations, or short of statutory right; or
(D) without observance of procedure required by
law, if (i) such failure to observe such procedure is
arbitrary or capricious, (ii) the requirement of para-
graph (7)(B) has been met, and (iii) the condition
of the last sentence of paragraph (8) is met.
(10) Each statutory deadline for promulgation of rules
to which this subsection applies which requires promulga-
tion less than six months after date of proposal may be
extended to not more than six months after date of pro-
posal by the Administrator upon a determination that
such extension is necessary to afford the public, and the
agency, adequate opportunity to carry out the purposes
of this subsection.
(11) The requirements of this subsection shall take
effect with respect to any rule the proposal of which oc-
curs after ninety days after August 7, 1977.
(e) Other methods of judicial review not authorized
Nothing in this chapter shall be construed to authorize
judicial review of regulations or orders of the Adminis-
trator under this chapter, except as provided in this
section.
Nitty “acon ia
Heiss facies
53a
APPENDIX G
Select Regulatory Provisions From
40 C.F.R. Parts 51, 52, 60 and 61
Excerpt from 40 C.F.R. Part 51 (1997)
§ 51.212 Testing, inspection, enforcement, and com-
plaints.
The plan must provide for—
(a) Periodic testing and inspection of stationary
sources; and
(b) Establishment of a system for detecting violations
of any rules and regulations through the enforcement of
appropriate visible emission limitations and for investigat-
ing complaints.
(c) Enforceable test methods for each emission limit
specified in the plan. For the purpose of submitting com-
pliance certifications or establishing whether or not a per-
son has violated or is in violation of any standard in this
part, the plan must not preclude the use, including the
exclusive use, of any credible evidence or information,
relevant to whether a source would have been in compli-
ance with applicable requirements if the appropriate per-
formance or compliance test or procedure had been per-
formed. As an enforceable method, States may use:
(1) Any of the appropriate methods in appendix M tc
this part, Recommended Test Methods for State Imple-
mentation Plans; or
(2) An alternative method following review and ap-
proval of that method by the Administrator; or
(3) Any appropriate method in appendix A to 40
CFR part 60.
[51 FR 40673, Nov. 7, 1986, as amended at 55 FR
14249, Apr. 17, 1990; 62 FR 8328, Feb. 24, 1997]
54a
Excerpt from 40 C.F.R. Part 52 (1997)
§ 52.12 Source surveillance
(a) Each subpart identifies the plan provisions for
source surveillance which are disapproved, and sets forth
the Administrator’s promulgation of necessary provisions
for requiring sources to maintain records, make reports,
and submit information.
(b) No provisions are promulgated for any disap-
proved State or local agency procedures for testing, in-
spection, investigation, or detection, but detailed critiques
of such portions are provided to the State.
(c)For purposes of Federal enforcement, the following
test procedures and methods shall be used, provided that
for the purpose of establishing whether or not a person
has violated or is in violation of any provision of the
plan, nothing in this part shall preclude the use, includ-
ing the exclusive use, of any credible evidence or infor-
mation, relevant to whether a source would have been in
compliance with applicable requirements if the appropriate
performance or compliance test procedures or methods
had been performed:
(1) Sources subject to plan provisions which do not
specify a test procedure and sources subject to provisions
promulgated by the Administrator will be tested by means
of the appropriate procedures and methods prescribed in
part 60 of this chapter unless otherwise specified in this
part.
(2) Sources subject to approved provisions of a plan
wherein a test procedure is specified will be tested by the
specified procedure.
[37 FR 10846, May 31, 1972, as amended at 40 FR
26032, June 20, 1975; 62 FR 8328, Feb. 24, 1997]
eenmsaiiit reece pan cer cares eoee
My CBP be A ae CE in RECENT A OR ig BSE EW orl TAB ERP A Git tifa tinal ig tL Sa aia
55a
§ 52.33 Compliance certifications.
(a) For the purpose of submitting compliance certifica-
tions, nothing in this part or in a plan promulgated by the
Administrator shall preclude the use, including the exclu-
sive use, of any credible evidence or information, relevant
to whether a source would have been in compliance with
applicable requirements if the appropriate performance or
compliance test had been performed.
(b) For all federal implementation plans, paragraph
(a) of this section is incorporated into the plan.
[62 FR 8328, Feb. 24, 1997]
Excerpt from 40 C.F.R. Part 60 (pre-“Credible
Evidence” Rule)
$ 60.11 Compliance with standards and maintenance re-
quirements,
(a) Compliance with standards in this part, other than
opacity standards, shall be determined only by perform-
ance tests established by § 60.8, unless otherwise specified
in the applicable standard.
(b) Compliance with opacity standards in this part
shall be determined by conducting observations in accord-
ance with Reference Method 9 in appendix A of this part,
any alternative method that is approved by the Adminis-
trator, or as provided in paragraph (e)(5) of this section.
For purposes of determining initial compliance, the mini-
mum total time of observations shall be 3 hours (30 6-
minute averages) for the performance test or other set of
observations (meaning those fugitive-type emission sources
subject only to an opacity standard).
(c) The opacity standards set forth in this part shall
apply at all times except during periods of startup, shut-
down, malfunction, and as otherwise provided in the ap-
plicable standard.
56a
(d) At all times, including periods of startup, shut-
down, and malfunction, owners and operators shall, to the
extent practicable, maintain and operate any affected
facility including associated air pollution control equip-
ment in a manner consistent with good air pollution con-
trol practice for minimizing emissions. Determination of
whether acceptable operating 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, opacity observations, review of oper-
ating and maintenance procedures, and inspection of the
source.
(e)(1) For the purpose of demonstrating initial com-
pliance, capacity observations shall be conducted concur-
rently with the initial performance test required in § 60.8
unless one of the following conditions apply. If no per-
formance test under § 60.8 is required, then opacity
observations shall be conducted within 60 days after
achieving the maximum production rate at which the af-
fected facility will be operated but no later than 180 days
after initial startup of the facility. If visibility or other
conditions prevent the opacity observations from being
conducted concurrently with the initial performance test
required under § 60.8, the source owner or operator shall
reschedule the opacity observations as soon after the ini-
tial performance test as possible, but not later than 30
days thereafter, and shall advise the Administrator of the
rescheduled date. In these cases, the 30-day prior noti-
fication to the Administrator required in § 60.7(a)(6)
shall be waived. The rescheduled opacity observations
shall be conducted (to the extent posible) under the same
operating conditions that existed during the initial per-
formance test conducted under § 60.8. The visible emis-
sions observer shall determine whether visibility or other
conditions prevent the opacity observations from being
made concurrently with the initial performance test in ac-
cordance with procedures contained in Reference Method
9 of appendix B of this part. Opacity readings of portions
Saar RS Mt eae Eh Setaic nee ORT EI ND
i
$
4
4
¥
3
57a
of plumes which contain condensed, uncombined water
vapor shall not be used for purposes of determining com-
pliance with opacity standards. The owner or operator of |
an affected facility shall make available, upon request by
the Administrator, such records as may be necessary to
determine the conditions under which the visual observa-
tions were made and shall provide evidence indicating
proof of current visible observer emission certification.
Except as provided in paragraph (e)(5) of this section,
the results of continuous monitoring by transmissometer
which indicate that the opacity at the time visual observa-
tions were made was not in excess of the standard are
probative but not conclusive evidence of the actual opacity
of an emision, provided that the source shall meet the bur-
den of proving that the instrument used meets (at the
time of the alleged violation) Performance Specification 1
in appendix B of this part, has been properly maintained
and (at the time of the alleged violation) that the result-
ing data have not been altered in any way.
(2) Except as provided in paragraph (e)(3) of this
section, the owner or operator of an affected facility to
which an opacity standard in this part applies shall con-
duct opacity observations in accordance with paragraph
(6) of this section, shall record the opacity of emissions,
and shall report to the Administrator the opacity results
along with the results of the initial performance test re-
quired under § 60.8. The inability of an owner or opera-
tor to secure a visible emissions observer shall not be con-
sidered a reason for not conducting the opacity observa-
tions concurrent with the initial performance test.
(3) The owner or operator of an affected facility to
which an opacity standard in this part applies may request
the Administrator to determine and to record the opacity
of emissions from the affected facility during the initial
performance test and at such times as may be required.
The owner or operator of the affected facility shall report
the opacity results. Any request to the Administrator to
determine and to record the opacity of emissions from
58a
an affected facility shall be included in the notification re-
quired in § 60.7(a)(6). If, for some reason, the Admin-
istrator cannot determine and record the opacity of emis-
sions from the affected facility during the performance
test, then the provisions of paragraph (e)(1) of this
section shall apply.
(4) An owner or operator of an affected facility using
a continuous opacity monitor (transmissometer) shall re-
cotd the monitoring data produced during the initial per-
formance test required by § 60.8 and shall furnish the
Administrator a written report of the monitoring results
along with Method 9 and § 60.8 performance test results.
(5) An owner or operator of an affected facility sub-
ject to an opacity standard may submit, for compliance
purposes, continuous opacity monitoring system (COMS)
data results produced during any performance test re-
quired under § 60.8 in lieu of Method 9 observation data.
If an owner or operator elects to submit COMS data for
compliance with the opacity standard, he shall notify the
Administrator of that decision, in writing, at least 30 days
before any performance test required under § 60.8 is con-
ducted. Once the owner or operator of an affected facility
has notified the Administrator to that effect, the COMS
data results will be used to determine opacity compliance
during subsequent tests required under § 60.8 until the
owner or operator notifies the Administrator, in writing,
to the contrary. For the purpose of determining compli-
ance with the opacity standard during a performance test
required under § 60.8 using COMS data,the minimum
total time of COMS data collection shall be averages of
all 6-minute continuous periods within the duration of the
mass emission performance test. Results of the COMS
opacity determinations shall be submitted along with the
results of the performance test required under § 60.8.
The owner or operator of an affected facility using a
COMS for compliance purposes is responsible for dem-
Onstrating that the COMS meets the requirements speci-
fied in § 60.13(c) of this part, that the COMS has been
i a a al
Sido Ob A cha Cat Ms sia < ON Ooi hii at
s
bd
59a
properly maintained and operated, and that the resulting
data have not been altered in any way. If COMS data
results are submitted for compliance with the opacity
standard for a period of time during which Method 9
data indicates noncompliance, the Method 9 data will be
used to determine opacity compliance.
(6) Upon receipt from an owner or operator of the
written reports of the results of the performance tests re-
quired by § 60.8, the opacity observation results and ob-
server certification required by § 60.11(e)(1), and the
COMS results, if applicable, the Administrator will make
a finding concerning compliance with opacity and other
applicable standards. If COMS data results are used to
comply with an opacity standard, only those results are
required to be submitted along with the performance test
results required by § 60.8. If the Administrator finds that
an affected facility is in compliance with all applicable
standards for which performance tests are conducted in
accordance with § 60.8 of this part but during the time
such performance tests are being conducted fails to meet
any applicable opacity standard, he shall notify the owner
or operator and advise him that he may petition the Ad-
ministrator within 10 days of receipt of notification to
make appropriate adjustment to the opacity standard for
the affected facility.
(7) The Administrator will grant such a petition upon
a demonstration by the owner or operator that the af-
fected facility and associated air pollution control equip-
ment was operated and maintained in a manner to mini-
mize the opacity of emisions during the performance tests;
that the performance tests were performed under the condi-
tions established by the Administrator; and that the af-
fected facility and associated air pollution control equip-
ment were incapable of being adjusted or operated to meet
the applicable opacity standard.
(8) The Administrator will establish an opacity stand-
ard for the affected facility meeting the above require-
ments at a level at which the source will be able, as indi-
60a
cated by the performance and opacity tests, to meet the
opacity standard at all times during which the source is
meeting the mass or concentration emission standard. The
Administrator will promulgate the new opacity standard
in the FEDERAL REGISTER.
(f) Special provisions set forth under an applicable
subpart of this part shall supersede any conflicting provi-
sions of this section.
[38 FR 28565, Oct. 15, 1973, as amended at 39 FR
39873, Nov. 12, 1974; 43 FR 8800, Mar. 3, 1978; 45
FR 23379, Apr. 4, 1980; 48 FR 48335, Oct. 18, 1983;
50 FR 53113, Dec. 17, 1985; 51 FR 1790, Jan. 15,
1986; 52 FR 9781, Mar. 26, 1987]
Excerpt from 40 C.F.R. Part 60 (1997)
§ 60.11 Compliance with standards and maintenance re-
quirements.
(a) Compliance with standards in this part, other than
opacity standards, shall be determined in accordance with
performance tests established by § 60.8, unless otherwise
specified in the applicable standard.
(b) Compliance with opacity standards in this part
shall be determined by conducting observations in accord-
ance with Reference Method 9 in appendix A of this part,
any alternative method that is approved by the Admin-
istrator, or as provided in paragraph (e)(5) of this sec-
tion. For purposes of determining initial compliance, the
minimum total time of observations shall be 3 hours (30
6-minute averages) for the performance test or other set
of observations (meaning those fugitive-type emission
sources subject only to an opacity standard).
(c) The opacity standards set forth in this part shall
apply at all times except during periods of startup, shut-
down, malfunction, and as otherwise provided in the ap-
plicable standard.
a ac aa aiid a at
6la
(d) At all times, including periods of startup, shut-
down, and malfunction, owners and operators shall, to the
extent practicable, maintain and operate any affected fa-
cility including associated air pollution control equipment
in a manner consistent with good air pollution control
practice for minimizing emissions. Determination of
whether acceptable operating 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, opacity observations, review of
operating and maintenance procedures, and inspection of
the source.
(e€)(1) For the purpose of demonstrating initial com-
pliance, opacity observations shall be conducted concur-
rently with the initial performance test required in § 60.8
unless one of the following conditions apply. If no per-
formance test under § 60.8 is required, then opacity ob-
servations shall be conducted within 60 days after achiev-
ing the maximum production rate at which the affected
facility will be operated but no later than 180 days after
initial startup of the facility. If visibility or other condi-
tions prevent the opacity observations from being con-
ducted concurrently with the initial performance test re-
quired under § 60.8, the source owner or operator shall
reschedule the opacity observations as soon after the ini-
tial performance test as possible, but not later than 30
days thereafter, and shall advise the Administrator of the
rescheduled date. In these cases, the 30-day prior notifica-
tion to the Administrator required in § 60.7(a)(6) shall
be waived. The rescheduled opacity observations shall be
conducted (to the extent possible) under the same operat-
ing conditions that existed during the initial performance
test conducted under § 60.8. The visible emissions ob-
server shall determine whether visibility or other condi-
tions prevent the opacity observations from being made
concurrently with the initial performance test in accord-
ance with procedures contained in Reference Method 9
of appendix B of this part. Opacity readings of portions
62a
of plumes which contain condensed, uncombined water
vapor shall not be used for purposes of determining com-
pliance with opacity standards. The owner or operator of
an affected facility shall make available, upon request by
the Adminstrator, such records as may be necessary to
determine the conditions under which the visual observa-
tioris were made and shall provide evidence indicating
proof of current visible observer emission certification.
Except as provided in paragraph (e)(5) of this section,
the results of continuous monitoring by transmissometer
which indicate that the opacity at the time visual observa-
tions were made was not in excess of the standard are
probative but not conclusive evidence of the actual opacity
of an emission, provided that the source shall meet the
burden of proving that the instrument used meets (at the
time of the alleged violation) Performance Specification 1
in appendix B of thls part, has been properly maintained
and (at the time of the alleged violation) that the result-
ing data have not been altered in any way.
(2) Except as provided in paragraph (e)(3) of this
section, the owner Or operator of an affected facility to
which an opacity standard in this part applies shall con-
duct opacity observations in accordance with paragraph
(b) of this section, shall record the opacity of emissions,
and shall report to the Administrator the opacity results
along with the results of the initial performance test re-
quired under § 60.8. The inability of an owner or opera-
tor to secure a visible emissions observer shall not be con-
sidered a reason for not conducting the opacity observa-
tions concurrent with the initial performance test.
(3) The owner or operator of an affected facility to
which an opacity standard in this part applies may request
the Administrator to determine and to record the opacity
of emissions from the affected facility during the initial
performance test and at such times as may be required.
The owner or operator of the affected facility shall report
the opacity results. Any request to the Administrator to
63a
determine and to record the opacity of emissions from an
affected facility shall be included in the notification re-
quired in § 60.7(a)(6). If, for some reason, the Admin-
istrator cannot determine and record the opacity of emis-
sions from the affected facility during the performance
test, then the provisions of paragraph (e)(1) of this sec-
tion shall apply.
(4) An owner or operator of an affected facility using
a continuous opacity monitor (transmissometer) shall
record the monitoring data produced during the initial
performance test required by § 60.8 and shall furnish the
Administrator a written report of the monitoring results
along with Method 9 and § 60.8 performance test results.
(5) An owner or operator of an affected facility sub-
ject to an opacity standard may submit, for compliance
purposes, continuous opacity monitoring system (COMS)
data results produced during any performance test re-
quired under § 60.8 in lieu of Method 9 observation data.
If an owner or operator elects to submit COMS data for
compliance with the opacity standard. he shall notify the
Administrator of that decision, in writing, at least 30 days
before any performance test required under § 60.8 is con-
ducted. Once the owner or operator of an affected facility
has notified the Administrator to that effect. the COMs
data results will be used to determine opacity compliance
during subsequent tests required under §$ 60.8 until the
Owner or operator notifies the Administrator. in writing,
to the contrary. For the purpose of determining com-
pliance with the opacity standard during a performance
test required under § 60.8 using COMS data, the mini-
mum total time of COMS data collection shall be aver-
ages of all 6-minute continuous periods within the dura-
tion of the mass emission performance test. Results of
the COMs opacity determinations shall be submitted along
with the results of the performance test required under
§ 60.8. The owner or operator of an affected facility
using a COMS for compliance purposes is responsible for
64a
demonstrating that the COMS meets the requirements
specified in § 60.13(c) of this part, that the COMS has
been properly maintained and operated, and that the re-
sulting data have not been altered in any way. If COMS
data results are submitted for compliance with the opacity
standard for a period of time during which Method 9
data indicates non-compliance, the Method 9 data will be
used to determine opacity compliance.
(6) Upon receipt from an owner or operator of the
written reports of the results of the performance tests re-
quired by § 60.8, the opacity observation results and ob-
server certification required by § 60.11(e)(1), and the
COMS results, if applicable, the Administrator will make
a finding concerning compliance with opacity and other
applicable standards. If COMS data results are used to
comply with an opacity standard, only those results are
required to be submitted along with the performance test
results required by § 60.8. If the Administrator finds that
an affected facility is in compliance with all applicable
standards for which performance tests are conducted in
accordance with § 60.8 of this part but during the time
such performance tests are being conducted fails to meet
any applicable opacity standard, he shall notify the owner
or operator and advise him that he may petition the Ad-
ministrator within 10 days of receipt of notification to
make appropriate adjustment to the opacity standard for
the affected facility.
(7) The Administrator will grant such a petition upon
a demonstration by the owner or operator that the affected
facility and associated air pollution control equipment was
operated and maintained in a manner to minimize the
opacity of emissions during the performance tests: that
the performance tests were performed under the conditions
established by the Administrator; and that the affected
facility and associated air pollution control equipment
were incapable of being adjusted or operated to meet the
applicable opacity standard.
IN ECL LAS OIE INA G8 Te HI
engi k hs
agi at x . 4 “elds, OES he Rie Pak fs Sle
ae i lee JE ig Sa etki Sues kD) ENE ARTA Ries
Ee aes
65a
(8) The Administrator will establish an opacity stand-
ard for the affected facility meeting the above require-
ments at a level at which the source will be able, as indi-
cated by the performance and opacity tests, to meet the
opacity standard at all times during which the source is
meeting the mass or concentration emission standard. The
Administrtaor will promulgate the new opacity standard
in the FEDERAL REGISTER.
(f) Special provisions set forth under an applicable
subpart shall supersede any conflicting provisions in para-
graphs (a) through (e) of this section.
(g) For the purpose of submitting compliance certifica-
tions or establishing whether or not a person has violated
or is in violation of any standard in this part, nothing in
this part shall preclude the use, including the exclusive
use, of any credible evidence or information, relevant to
whether a source would have been in compliance with
applicable requirements if the appropriate performance or
compliance test or procedure had been performed.
{38 FR 28565, Oct. 15, 1973, as amended at 39 FR
39873, Nov. 12, 1974; 43 FR 8800, Mar. 3, 1978: 45
FR 23379, Apr. 4, 1980; 48 FR 48335, Oct. 18, 1983:
50 FR 53113, Dec. 27, 1985; 51 FR 1790, Jan. 15,
1986; 52 FR 9781, Mar. 26, 1987; 62 FR 8328, Feb. 24,
1997]
Excerpt from 40 C.F.R. Part 61 (1997)
§ 61.12 Compliance with standards and maintenance re-
quirements.
(a) Compliance with numerical emission limits shall
be determined in accordance with emission tests estab-
lished in § 61.13 or as otherwise specified in an individual
subpart.
(b) Compliance with design, equipment, work practice
or operational standards shall be determined as specified
in an individual subpart.
66a
(c) The owner or operator of each stationary source
shall maintain and operate the source, including asso-
ciated equipment for air pollution control, in a manner
consistent with good air pollution control practice for
minimizing emissions. Determination of whether accept-
able operating and maintenance procedures are being used
will be based on information available to the Administra-
tor which may include, but is not limited to, monitoring
results, review of operating and maintenance procedures,
and inspection of the source.
(d)(1) If, in the Administrator’s judgment, an alterna-
tive means of emission limitation will achieve a reduction
in emissions of a polluant from a source at least equiv-
alent to the reduction in emissions of that pollutant from
that source achieved under any design, equipment, work
practice or operational standard, the Administrator will
publish in the FEDERAL REGISTER a notice permitting the
use of the alternative means for purposes of compliance
with the standard. The notice will restrict the permission
to the source(s) or category(ies) of sources on which the
alternative means will achieve equivalent emission reduc-
tions. The notice may condition permission on require-
ments related to the operation and maintenance of the
alternative means.
(2) Any notice under paragraph (d)(1) shall be pub-
lished only after notice and an opportunity for a hearing.
(3) Any person seeking permission under this subsec-
tion shall, unless otherwise specified in the applicable sub-
part, submit a proposed test plan or the results of testing
and monitoring, a description of the procedures followed
in testing or monitoring, and a description of pertinent
conditions during testing or monitoring.
(e) For the purpose of submitting compliance certifica-
tions or establishing whether or not a person has violated
or is in violation of any standard in this part, nothing in
this part shall preclude the use, including the exclusive
aaa cc a
sb ——
67a
use, of any credible evidence or information, relevant to
whether a source would have been in compliance with
applicable requirements if the appropriate performance or
compliance test had been performed.
[50 FR 46292, Nov. 7, 1985, as amended 62 FR 8328,
Feb. 24, 1997]
68a
APPENDIX H
Excerpt from S. Rep. No. 91-1196
SECTION 308. JUDICIAL REVIEW
One of the uncertainties in the existing Clean Air Act
is the availability or opportunity for judicial review of
administratively developed and promulgated standards and
regulations. Moreover, the effect on the general program
of a review itself is not clear.
Administratively developed standards, rules and regula-
tions under the Act and under this bill would clearly affect
the interests of persons. The courts are increasingly adapt-
ing this test to what administrative actions are reviewable.
In several recent cases [Environmental Defense Fund, Inc.
Vv. Hardin (C.A. No. 23,813, May 28, 1970); Barlow v.
Collins (397 U.S. 159, 167 (1970)); Abbott Labora-
tories Vv. Gardner (387 U.S. 136, 140-41 (1967))] the
Courts have held that even in matters committed by statute
to administrative discretion, preclusion of judicial review
“is not lightly to be inferred . . . it requires a showing of
clear evidence of legislative intent.” (E.D.F. v. Hardin,
supra, p. 7.) The Courts have granted this review to those
being regulated and to those who seek “to protect the
public interest in the proper administration of a regulatory
system enacted for their benefit.” (E.D.F. v. Hardin supra,
p. 6.) Since precluding review does not appear to be war-
ranted or desirable, the bill would specifically provide for
such review within controlled time periods. Of course, the
person regulated would not be precluded from seeking such
review at the time of enforcement insofar as the subject
matter applies to him alone.
Because many of these administrative actions are na-
tional in scope and require even and consistent national
application, the provision specifies that any review of such
actions shall be in the United States Court fo Appeals for
the District of Columbia. For review of the approval or
promulgation of implementation plans which run only to
one air quality control region, the section places jurisdic-
69a
tion in the U.S. Court of Appeals for the Circuit in which
the affected air quality control region, or portion thereof,
is located.
In order to maintain the integrity of the time sequences
provided throughout the Act, the bill would provide that
any review sought must be filed within 30 days of the date
of the challenged promulgation or approval. It would be
further provided that the filing of a petition does not
operate as a stay of the application of the promulgation
or decision for which review is sought, unless the party
seeking such review is able to demonstrate to the court
that there is a substantial likelihood that such party will
prevail on the-merits and that the interests of the public
will not be harmed by such stay. It should be noted that
the provision restricting stays would apply not only to
actions brought pursuant to this section, but also to any
review of an administrative action pursuant to this Act or
under any provision of law.
In this section, and in two other provisions of the bill,
section 115 and section 202(b)(4) the Committee directs
any court reviewing any administrative promulgation or
decision to presume that the findings of the Administrator
related to the matter subject to review are correct. In
adopting this position offered by Senator Baker, the Com-
mittee proposes to clarify for purposes of this Act the
value, or weight, given to administrative findings and de-
cisions by the reviewing court.
The Committee does not intend by this language to
provide a statutory provision that establishes administra-
tive promulgations or decisions as conclusive and thereby
effectively extinguishing the right of review. Rather, the
presumption of correctness established is rebuttable by
proof that the administrative promulgation or decision is
not supported by a prepondarence of its evidence. It
should also be noted that evidence regarding any exclusion
Or Omission of relevant material from the administrative
70a
record may be adduced to challenge the sufficiency of the
administrative record.
The committee recognizes that it would not be in the
public interest to measure for all time the adequacy of a pro-
mulgation of any standard or regulation by the information
available at the time of such promulgation. In the area
of protection of public health and environmental quality,
it is clear that new information will be developed and that
such information may dictate a revision or modification of
any promulgated standard or regulation established under
the act. The judicial review section, therefore, provides
that any person may challenge any promulgated standard,
regulation, or approved or promulgated implementation
plan after the date of promulgation whenever it is alleged
that significant new information has become available.
New information may become available at some future
date which indicates that a particular pollution agent or
combination of agents is hazardous to the health of persons
and therefore should be added to those pollution agents
subject to the provisions of section 115. Conversely, new
information may become available indicating that a pollu-
tion agent for which a prohibition had been established
under section 115 is not hazardous to the health of per-
sons. If the Secretary failed to act in either event, the
promulgation could be challenged.
Excerpt from H.R. Rep. No. 95-294
SECTION 305—ADMINISTRATIVE PROCEDURES
AND JUDICIAL REVIEW
BACKGROUND
Under the 1970 Clean Air Act Amendments, the Ad-
ministrator was directed to promulgate rules and regula-
tions under informal rulemaking procedures. These pro-
cedures call for notice of the proposed rule, opportunity
to submit written comments, public hearing (when required
expressly by the act), and final promulgation of the rule.
Tla
The formal adjudicatory-type procedures of 5 U.S.C. 554,
556, and 557 were not required to be involved in the rule-
making process under the act. For some actions of the
Administrator (e.g., State implementation plan approval),
no procedural requirements were specified in the act.
In some ways the informal rulemaking approach has
worked well. The administrative process has been quicker
and more flexible than if more elaborate procedures had
been required. But in several respects, the informal rule-
making procedures of the current act have been challenged
as inadequate.
First, the existing Clean Air Act does not require the
establishment of a clearly defined record on which agency
consideration of a rule, public comments, and judicial
review can be based. Thus, for instance, in Texas v. EPA,
499 F. 2d 289 (Sth Cir. 1974), both the majority and
| the concurring opinions expressed dissatisfaction with the
state of the record. Other courts have voiced similar
concerns.
Second, concern was expressed about the absence of a
requirement for a public hearing prior to approval or dis-
approval of the State implementation plan by the Ad-
ministrator.®
Third, the legislative-type hearings provided for in the
current act have been challenged as not providing an ade-
quate opportunity to challenge the factual basis under-
lying the proposed rule. Thus, for instance, Representative
Van Deerlin introduced and testified in favor of H.R. 2765,
a bill introduced in 1975 which provided in part that “no
element of an implementation plan . . . could be approved
(if submitted by a State) or promulgated by the Agency,
unless a hearing has been held at the State or Federal level
where a record was kept and where participants were
given the opportunity to examine agency officials”. (H.
968).
ee
51973 Hearings, op. cit., pp. 813-828.
el
72a
A fourth alleged procedural shortcoming of the existing
act is its failure to require the Administrator of EPA to
state clearly the reasons for his action. This criticism was
implicit in the Court’s decision in Kennecott Copper Corp.
v. EPA, 462 F. 2d 846 (D.C. Cir. 1972). It was explicit
in the 1973 testimony from the Director of the Texas Air
Control Board:
When EPA disapproved the hydrocarbon control
strategy portion of the Texas implementation plan, it
was some time before the State could obtain any
indication of the reasons for the disapproval. Formal
findings of fact and supportive data for the dis-
approval have still not been received by the State.®
Fifth, the Clean Air Act was arguably deficient in fail-
ing to establish an express standard of review for the
courts to apply in judicial review of Agency rulemaking.
While the committee did not agree to some of the pro-
posed solutions to these problems, it did agree that they
needed to be remedied. For in the committee’s view,
appropriately broad administrative discretion to promul-
gate regulations to protect health or the environment must
be restrained by thorough and careful procedural safe-
guards that insure an effective opportunity for public par-
ticipation in the rulemaking process.
The committee was also concerned about inconsistencies
in procedures, policies, practices, and legal interpretations
in EPA’s regional offices. These problems are highlighted
by the factual situation which is detailed in Montana Power
Company v. EPA, CV-76-136-BLG (D. Mont. 1977).
While the committee’s action on the section 108 definition
of “commenced construction” makes clear its disagreement
with the interpretation of the judge in that case, the case
does raise important, broader issues relating to regionali-
zation, which the committee believed should be addressed.
6 1973 Hearing, op. cit., p. 814; see also p. 828,
73a
COMMITTEE PROPOSAL
Section 305 of the committee bill establishes a new
subsection 307(d) of the act. This provision of the com-
mittee bill attempts to cure each of the problems which
have been identified under the current act’s approach to
rulemaking. At the same time, the committee bill is in-
tended to retain the flexibility and expedition of the in-
formal rulemaking approach. It is not intended to require
formal rulemaking proceedings under the Clean Air Act.
The Record.—Section 305 of the bill clearly defines
what the record for a rule consists of, and how and when
material must be placed in the record. By and large, this
section represents a legislative adoption of the suggestions
for a rulemaking record set forth in a law review article
dealing with EPA. (Pederson, “Formal Records and In-
formal Rulemaking,” 85 Yale L.J. 38 (1975).)
Several points about this reform should be emphasized.
First, the new record system cannot be expected to yield
its full benefits unless EPA establishes a record room in
which to keep the records, and adequate staff and other
resources to keep the records in order. The committee
expects this to be done. |
Second, the record system will not result in better
records unless all those participating in the rulemaking
process keep in mind the objective of creating a useful
record. This means the agency should include in the
record only those documents in its possession which are of
genuine material relevance to the rule. Of course, the
agency has at least as great an obligation to include any
such documents that contradict its position as it does to
include those that support it.
These central documents should where necessary cite or
summarize, and place in perspective, less relevant docu-
ments on which they in turn rely.
Other participants should make their points clearly and
concisely, and not submit for inclusion in the record ma-
74a
terial of only marginal relevance, or that could have been
submitted in more abbreviated form.
Third, though the committee is not requiring the adop-
tion of a formal discovery system for use in rulemaking,
it realizes that the current use of the Freedom of Informa-
tion Act for this purpose will undoubtedly continue.
Accordingly, it expects EPA to take any necessary ad-
ministrative steps to ensure that its procedures for dealing
with such requests are coordinated with the record making
system established by this legislation.
Hearings.—Section 305 of the bill expands the require-
ments relating to public hearings to apply to specified
actions of the Administrator which are not now subject
to the hearing requirement.
In specific, under new section 307(d)(5) of the act,
the Agency would be required to afford opportunity for a
public hearing with respect to specified actions where no
such opportunity is currently required to be afforded.
In regard to this provision as well as the rest of section
305, the committee intends that these procedures be re-
quired to be applied only prospectively. Thus, any rule-
making proceeding which commenced prior to date of
enactment of the 1977 amendments would not be required
to follow such procedures, nor would it be subject to
attack in judicial review for failure to follow such proce-
dures. Furthermore, the committee does not intend to
change the established rule that even where opportunity
for a hearing is required by statute that hearing may be
omitted if .t is clear no useful purpose would be served.
Weinberger v. Hynson, Westcott & Dunning, Inc., 412
U.S. 609, 620-22 (1973); United States v. Storer Broad-
casting Co., 351 U.S. 192, 205 (1956).
Hearing procedures.—In general, the committee has di-
rected the Administrator to permit opportunity for cross-
examination in the course of any such hearing. There are
several limits on this obligation to permit cross-examina-
Ea er aie Oe eee a Ne
—————$—$—————————
75a
tion, however,. First, the opportunity for cross-examina-
tion need only be afforded with respect to disputed issues
of material fact. Second, the opportunity for cross-exami-
nation need only be afforded to the extent and in the
manner which the Administrator determines is necessary
and appropriate.’ Third, of course, the committee does
not intend that this procedural opportunity should over-
ride the statutory deadlines in the act. Therefore, cross-
examination must be limited so as to permit adequate
time for the entire rulemaking process to be concluded
within such deadlines. Fourth, section 307(d)(5)(B) (iii)
makes clear that the Administrator may require classes of
participants with similar interests to participate through a
single representative, and that he may deny cross-exami-
nation of any sort in cases where such a limiting agree-
ment cannot be reached.
In determining the extent to which cross-examination is
appropriate and necessary, the Administrator may consider
the other types of opportunities for illumination of dis-
puted issues of material fact which have been or will be
afforded. Thus, for example, scientific and technical issues
might be probed by discussions between panels of scien-
tists, and these discussions may be considered in deter-
mining the extent to which cross-examination is necessary
and appropriate. The use of such panels has been EPA’s
practice in a number of cases, and a study of them has
reported that it has worked well. Williams “ ‘Hybrid Rule-
making’ Under the Administrative Procedure Act: A Legal
and Empirical Analysis”, 42 U. Chi. L. Rev. 401, 448-455
(1975).
In cases where only one request for cross-examination
is received, section 307 (d)(5)(B)(ii) permits formal
cross-examination under 5 U.S.C. 556. There is no re-
7 Section 307(d)(5)(B)(i) of the act would confer broad discre-
tion on the Administrator in making such determinations. It would
clearly include, but not be limited to, the Authority to prevent
irrelevant, repetitive, or improper cross-examination.
76a
quirement, however, that an administrative law judge pre-
side at the hearing. That would be inconsistent’ with the
purpose of rulemaking to directly expose the responsible
staff of the agency to the problems raised during the com-
ment period. Instead, a responsible member of the agency
staff may preside.
By using the phrase “disputed issue of material fact” to
designate the allowable scope of cross-examination, the
committee intends to refer to what Professor Davis calls
“adjudicative facts”*® the truth or falsity of which is sub-
ject to evidentiary proof and which could reasonably be
expected to affect the outcome of the rule. The burden
of proving that any issue is a “disputed issue of material
fact” rests on the person seeking to engage in cross-
examination.
In many cases, such facts may not be present, or even
if they are, it may not be possible to say that their truth
or falsity could reasonably be expected to affect the out-
come of the rulemaking. The data base may be so broad,
or policy considerations so dominant as to reduce to in-
significance the question whether one particular “adjudi-
cative” fact is true or not.
Even where this is true, however, a hearing must still
be held whenever legitimate policy questions are still open.
The statute requires an opportunity to present “views and
arguments” in all such cases.
Administrative decision.—In promulgating any rule re-
ferred to in this section, the Administrator must state the
basis of purpose of the final rule, just as such a statement
must accompany the proposed rule. The final rule must
also be accompanied by an explanation of he reasons for
any major changes from the proposed version and a re-
sponse to the significant comments, criticisms and data
submitted during the comment period. While these state-
ments need not be exhaustive or respond to every argu-
8 K. Davis, I Administrative Law Treatise, sec. 702.
77a
ment regardless of weight, they must be of sufficient depth
and complexity to show that the Administrator did con-
sider public comments, to provide basis for States to know
how to revise plans so as to be approvable (in case of a
disapproval), and to permit any court reviewing the rule
under section 307(b) to be fairly apprised of the basis
for the Administrator’s action.
Judicial review.—The committee bill expands the time
available for petitioning for judicial review under section
307 of the act from 30 to 60 days. Moreover, the bill
makes clear the intention of the 1970 amendments that
this period for filing a section 307 judicial review petition
runs from the date the final rule is published in the Federal
Register, not from the date the Administrator signs the
rule and transmits it for publication therein.
With repect to the change in the deadline for filing a
petition for judicial review, the committee notes the recent
decision in Investment Company Institute v. Board of
Governors of the Federal Reserve System (F. 2d—District
of Columbia Cir. 1977). In that case, the court inter-
preted a provision similar to section 307 of the Clean Air
Act. What is of concern to the committee is the possible
application of dictum in that case to the Clean Air Act.
The dictum which is of concern states that with an un-
defined legitimate excuse, the statutory deadline (and the
underlying policies of expedition and finality) may be
circumvented.
In extending to 60 days the time within which a party
may file a petiiton for review of certain EPA actions, the
committee wishes to reaffirm its intent to strictly limit
section 307 challenges to those which are actually filed
within that time. The only instance in which the com-
mittee intends that later challenges may be entertained by
the court of appeals are those in which the grounds arise
solely after the 60th day. Thus, unless a petitioner can
show that the basis for his challenge did not exist or was
not reasonably to be anticipated before the expiration of
78a
60 days, the court of appeals is without jurisdiction to
consider a petition filed later than 60 days after the publi-
cation of the promulgated rule. The committee deems 60
days a legally adequate opportunity for judicial review.
Under the flexible procedures specified by the commit-
tee, disputed questions of classification may arise concern-
ing, for example, whether a given question involves “facts”
or “policy” or whether a given fact is “legislative” or
“adjudicative”. To prevent rulemaking from bogging down
in arguments about such matters, and to underline that
the agency is authorized to adapt rulemaking procedures
to the individual case, the committee has limited the extent
to which the Administrator’s decisions on such procedural
matters may be reversed during judicial review.
As indicated in new section 307(d)(9)(D) of the act
the court may reverse any “rule” if that action is taken
“without observance of procedure required by law”. In
deciding whether or not such reversal is warranted on pro-
cedural grounds, the court is directed to consider two
factors. The first is whether the Administrator’s determi-
nation on the procedural point is “arbitrary or capricious”.
(Section 307(d)(5)(C)).
The second is whether the procedural errors “were so
serious and related to matters of such centrai relevance to
the rule that there is a substantial likelihood that the rule
would have been significantly changed if such errors had
not been made.” (Section 307(d)(8)). Only if the re-
viewing court can make affirmative findings as to each
of these questions would it be authorized to reverse the
Administrator’s action on the ground that it was “without
observance of procedures required by law”.
The committee bill would explicitly adopt the “sub-
stantial evidence” test for judicial review of the substance
of rules under the Clean Air Act. Neither this provision,
nor the requirement of a record, hearing or limited cross-
examination is meant to imply criticism of the courts in
79a
their past reviews of administrative action under the act.
Those reviews have in general been thorough and search-
ing. Nor is the purpose of this provision to shift the
traditional burden of proof in judicial review of adminis-
trative action. The traditional presumption of validity
would remain in effect and the petitioner would, of course,
bear the burden of showing that the rule is invalid. Thus,
the purpose of the committee’s provision in this regard
is to endorse the court’s practice of engaging in searching
review without substituting their judgment for that of
the Administrator and to assure that no retreat to a less
search approach takes place,
The committee recognizes that the factual support
needed for a rule may vary greatly according to the sub-
ject being addressed, and that rules on some subjects,
such as procedures, may not require any factual basis
at all. There is no intention to increase the amount of
“factual” support now required to support “policy judg-
ments where no factual certainties exist or where facts
alone do not provide the answer”, Industrial Union De-
partment, AFL-CIO v. Hodgson, 499 F.2d 467, 476
(D.C. Cir. 1974). Nor is there any intent to diminish
the Administrator’s authority to adopt precautionary regu-
lations based on a showing of risk, which has been con-
firmed by the amendments to various sections of the
Clean Air Act set forth in section 102 of this bill.
Section 307(d)(7)(B) would specify the circumstances
in which a reviewing court may consider data and argu-
ments that were not presented to the agency during the
rulemaking. Even in such cases, however, the Agency
must first be given an opportunity to pass on the signifi-
cance of the materials and determine whether supple-
® Thus, the committee bill would confirm the judgment of the
Court in upholding EPA regulations in Texas Vy. EPA, 499 F, 2d
289 (5th 1974), where the Court found there was no better basis
of support for the State’s assumptions about hydrocarbon reactivity
than for EPA’s assumptions.
80a
mentary proceeding are called for or not. Thus, the com-
mittee bill confirms the court’s decision in Oljato Chapter
of the Navajo Tribe v. Train, 515 F.2d 654 (D.C. Cir.
1975).
Subsection (c) of section 305 of the bill is intended to
clarify some questions relating to venue for review of rules
or orders under the act. Paragraph (1) of that sub-
section makes it clear that any nationally applicable regu-
lations promulgated by the Administrator under the Clean
Air Act could be reviewed only in the U.S. Court of Ap-
peals for the District of Columbia. These would include,
to mention but a few examples, regulations to carry out
the nonattainment policy referred to in section 117 of this
bill and regulations to effectuate motor vehicle assembly-
line test provisions of section 206 of the act or inspection/
maintenance requirements under section 208 of this bill.
Subsection (c)(2) of section 305 provides for essen-
tially locally, statewide, or regionally applicable rules or
orders to be reviewed in the U.S. court of appeals for the
circuit in which such locality, State, or region is located.
This provision applies, except as otherwise provided in
paragraph (4), to the Administrator’s action in approving
or promulgating an implementation plan for any State.
On the other hand, if an action of the Administrator
is found by him to be based on a determination of nation-
wide scope or effect (including a determination which has
scope or effect beyond a single judicial circuit), then ex-
clusive venue for review is in the U.S. Court of Appeals
for the District of Columbia, under paragraph (4).
In adopting this subsection, the committee was in large
measure approving the portion of the Administrative
Conference of the United States recommendation section
305.76—4(A), that deals with venue.2° The committee’s
view also concurs, however, with the comments, con-
cerns, and recommendation contained in item No. 1 of
10 See 41 Fed. Reg. 56767-69, December 30, 1976.
—
Sila
the separate statement of G. William Frick, which accom-
panied the Administrative Conference’s views.
Also, as indicated earlier, the committee bill incorpor-
ates recommendation D2 of the Administrative Confer-
ence on extending the period for petitioning for judicial
review in the court of appeals.
However, in no event should these provisions be con-
strued as endorsement of the remainder of the Admin-
istrative Conference’s recommendations. Some of these
recommendations, such as those contained in items B
and C, were simply not considered by the committee.
Others (such as the recommendations in D1 and D3,
were rejected.”
The committee also included amendments to section
114 of the act in this section to assure that the authorities
contained in section 114 could be used for the purpose
of implementing or enforcing any provision of the act
with respect to any person other than a new motor vehicle
manufacturer. Adequate authority for implementing or
enforcing provisions of the act with respect to new motor
vehicle manufacturers are contained in section 209 of
the bill.
The amendments to section 114 extend beyond persons
Owning or operating emission sources. Thus, for instance,
these authorities may be applied to fuel or fuel additive
manufacturers or suppliers, or to any other person subject
to a requirement, permit, condition, certification, or limi-
tation under the act.
11 Jd. at 56768.
12 See supra in this section for a discussion of the committee’s
views on item D3. On recommendation D3, largely for the reasons
stated in the separate statement of G. William Frick, the committee
oposed the Conference’s recommendation. See also Getty Oil Co.
v. Ruckelshaus, 467 F. 2d (3d Cir. 1972); Lloyd A. Fry Roofing
Co. Vv. EPA, 415 F. Supp. 799 (W.D. Mo. 1976).
82a
Section 305(e) of the bill contains measures necessary
for rational administration of a regional system. In no
way, however, are these provisions intended to require
EPA to continue its regional-based system of adminis-
tration of the act.
If the Agency chooses to continue to rely on this
approach, it must do so subject to the following con-
straints. First, there must be reasonable uniformity in the
criteria, procedures, and policies applied by the various
regional offices under the act. Thus, use of different air
quality models in different regions for the purposes of
implementing the provision requiring prevention of sig-
nificant deterioration would no longer be permitted. Sec-
ond, regional offices would be required to identify poten-
tial inconsistencies and the Administrator must provide
for their expeditions resolution and for policy standardi-
zation. Third, no legal interpretation of the regional of-
fices would be entitled to legal weight unless approved
in writing by the Office of General Counsel. This pro-
vision, designed to prevent instances such as those de-
tailed in the Montana Power case (referred to above),
would not prevent regional offices from applying OGC
approval legal interpretations to specific factual situations
in the regions, but would prevent inconsistent legal inter-
pretations of the act and regulations thereunder in differ-
ent regions.
Finally, the section requires the Administrator to assure
at least an adequate quality audit of State efforts in carry-
ing out the act. Particular attention is directed to the
need for adequate federal review of State permitting of
new and modified sources and of State enforcement efforts.
83a
APPENDIX I
PARENT COMPANIES, SUBSIDIARIES
AND AFFILIATES
The following is a list of the individual electric utility
petitioners, their parent companies, subsidiaries, and af-
filiates:
Alabama Power Company
(a subsidiary of Southern Company )
Appalachian Power Company
(a subsidiary of American Electric Power Company,
Inc.)
Subsidiaries:
Central Operating Company
Baltimore Gas and Electric Company
Subsidiaries:
Constellation Energy Projects & Services, Inc.
Constellation Energy Source, Inc.
Constellation Enterprises, Inc.
Subsidiaries:
BGE Home Products & Services, Inc.
Constellation Power, Inc.
Constellation Investments, Inc.
Constellation Real Estate Group, Inc.
Joint Venture:
Safe Harbor Water Power Corp.
84a
Carolina Power & Light Company
Subsidiaries:
CaroHome, LLC
Caronet, LLC
SRS
Central and South West Services, Inc.
(a subsidiary of Central and South West Corporation)
Central Hudson Gas & Electric Corporation
Subsidiaries:
C H Resources, Inc.
Central Hudson Cogeneration, Inc.
Central Hudson Enterprises
Central Hudson Resources, Inc.
Greene Point Development Corp.
Phoenix Development Co., Inc.
Central Illinois Light Company
(a subsidiary of CILCORP INC.)
Subsidiaries:
CILCO Energy Corp.
CILCO Exploration & Development Co.
Central Illinois Public Service Company
(a subsidiary of Ameren Corporation)
Central Power and Light Company
(a subsidiary of Central and Southwest Corporation)
85a
CINergy Corp.
Subsidiaries:
Cinergy
Cinergy Corp.
Subsidiaries:
Miami Power Corp.
Tri-State Improvement Co.
Union Light, Heat & Power Co.
The West Harrison Gas & Electric Co.
Subsidiaries:
Cinergy Investments, Inc.
CGE Corporation
CGE Eck, Inc.
CG&E Resource Marketing, Inc.
PSI Power Resource Development, Inc.
PSI Power Resource Operations
Power Equipment Supply Company
Cinergy Services, Inc.
K O Transmission Company
Subsidiaries:
Lawrenceburg Gas Co.
Cleveland Electric Illuminating Co.
(a subsidiary of FirstEnergy)
Columbus Southern Power Company
(a subsidiary of American Electric Power Company,
Inc.)
Subsidiaries:
Colomet, Inc.
Conesville Coal Preparation Company
: Simco, Inc.
86a
ComEd Co. (formerly Commonwealth Edison)
(a subsidiary of Unicom Corporation)
Subsidiaries:
Commonwealth Research Corp.
Concomber, Ltd.
Cotter Corp.
Edison Development Canada, Inc.
Consumers Energy (formerly Consumers Power Co.)
(a subsidiary of CMS Energy Corporation)
Subsidiaries:
Michigan Gas Storage Co.
Dayton Power & Light Company, The
(a subsidiary of DPL Inc.)
Delmarva Power & Light Company
(a subsidiary of Conectiv)
Subsidiaries:
Delmarva Capital Investments, Inc.
Delmarva Energy Company
Delmarva Industries, Inc.
Delmarva Services Company
Affiliate:
Atlantic City Electric Company
DTE Energy Company (formerly Detroit Edison
Company, The)
Subsidiaries:
The Edison Illuminating Co. of Detroit
Midwest Energy Resources Co.
Syndeco Realty
a a ee
87a
Duke Energy Corporation (formerly Duke Power
Company)
Subsidiaries:
Algonquin Gas Transmission Corporation
Crescent Resources, Inc.
Duke Energy Field Services, Inc.
Subsidiary:
Trunkline Gas Co.
Duke Energy International, L.L.C.
Duke Engineering & Services, Inc.
Duke Power Company McGuire Nuclear
Duke Power Oconee Nuclear Station
Nantahala Power & Light Company
National Helium Corporation
TEPPCO Partners, L.P.
Subsidiary:
Texas Eastern Production Pipelines Company,
LF.
Subsidiary:
Trans-Ohio Pipeline Company
Texas Eastern Transmission Corporation
Trunkline LNG Co.
Duke/Fluor Daniel
Lachmar
Westana Gathering Company
FirstEnergy Corporation
(a merger of Centerior Energy and Ohio Edison)
Subsidiaries:
The Cleveland Electric Illuminating Company
Ohio Edison Company
88a
Subsidiaries:
Ohio Edison Company—Akron Division
Ohio Edison Company—Springfield Division
Ohio Edison Company—Stark Division
Ohio Edison Company—Western Division
Ohio Edison Company—Youngstown Division
OES Capital, Inc.
OES Fuel, Incorporated
Pennsylvania Power Co.
The Toledo Edison Company
Florida Power Corporation
(a subsidiary of Florida Progress Corporation)
Georgia Power Company
(a subsidiary of Southern Company)
Subsidiary:
Southern Electric Generating Company
Gulf Power Company
(a subsidiary of Southern Company)
Illinois Power Company
(a subsidiary of Illinova Inc.)
Subsidiaries:
IP Gas Supply Co.
Illinois Power Fuel Co.
Electric Energy, Inc.
Indiana Michigan Power Company
(a subsidiary of American Electric Power Company,
Inc.)
ia
a i a ican
EEE mmmmaneineene enna
89a
Subsidiaries:
Blackhawk Coal Co.
Price River Coal Co., Inc.
Indianapolis Power & Light Company
(a subsidiary of IPALCO Enterprises, Inc.)
Jacksonville Electric Authority
Kansas City Power & Light Company
Subsidiaries:
KLT Gas, Inc.
KLT Inc.
Subsidiaries:
KLT Energy Services, Inc.
KLT Investments
KLT Power, Inc.
KLT Telecom Inc.
Wymo Fuels Inc.
Subsidiaries:
Red Hill Coal Co.
Wolf Creek Nuclear Operating Corp.
Kentucky Power Company
(a subsidiary of American Electric Power Company,
Inc.)
Kentucky Utilities Company
(a subsidiary of KU Energy)
Louisville Gas and Electric Company
(a subsidiary of LG&E Energy Corp.)
90a
Madison Gas and Electric Company
Subsidiaries:
Central Wisconsin Development Corporation
Great Lakes Energy Corp.
Subsidiary:
American Energy Management :
National Energy Management, LLC
MAGAEL, Inc.
Minnesota Power
Subsidiaries:
Adesa Corporation
Adesa, Inc.
Subsidiary:
Adesa Pittsburgh Auto Auction
Automotive Finance Corp.
BNI Coal, Ltd.
Energy Land, Incorporated
Florida Water, Inc.
Lehigh Utilities Inc.
Rainy River Energy Corporation
RendField Land Company, Inc.
Superior Water, Light & Power Company
Synertec, Incorporated
Topeka Group, Incorporated
Subsidiary:
Heater Utilities, Incorporated
UtilEquip, Incorporated
Capital Re Corporation
Mississippi Power Company
(a subsidiary of Southern Company)
9la
Monongahela Power Company
(a subsidiary of Allegheny Energy, Inc.)
Northern Indiana Public Service Company
(a subsidiary of NIPSCO Industries, Inc.)
Subsidiaries:
NIPSCO Exploration Co., Inc.
Shore Line Shops, Inc.
Oglethorpe Power Corp.
Subsidiaries:
Black Diamond Energy, Inc.
Ohio Power Company
(a subsidiary of American Electric Power Company, Inc.)
Subsidiaries:
Central Ohio Coal Co.
Southern Ohio Coal Co.
Windsor Coal Co.
Ohio Valley Electric Corporation
Subsidiary:
Indiana Kentucky Electric Corporation
Otter Tail Power Company
Subsidiary:
Minnesota-Dakota Generating Co.
PacifiCorp
Subsidiaries:
Pacific Power & Light Company
Utah Power & Light Company
92a
Centralia Mining Company
Energy West Mining Company
Glenrock Coal Company
Pacific Minerals, Inc.
PacifiCorp Group Holdings Company
Subsidiary:
PacifiCorp Financial Services, Inc.
Subsidiaries:
Paccom Leasing Corporation
PacifiCorp Aviation (Holdings), Inc.
PacifiCorp Credit, Inc.
PacifiCorp Trans, Inc.
Subsidiaries:
Cascade Autovon Co.
Gem State Utilities Corporation
Inter Island Telephone Co., Inc.
International Communications Holdings,
Inc.
Northwestern Telephone Systems, Inc.
Pacific Telecom Cellular, Inc.
Telephone Utilities of Alaska, Inc.
Telephone Utilities of Eastern Oregon, Inc.
Telephone Utilities of Oregon, Inc.
Telephone Utilities of Washington, Inc.
TPC Corporation
Powercor Australia-Limited
Pennsylvania Power and Light Company (Now PP&L
Resources )
Subsidiaries:
Pennsylvania Power & Light Company——
Harrisburg Div.
93a
Pennsylvania Power & Light Company—
Lancaster Div.
Pennsylvania Power & Light Company—
Lehigh Div.
Pennsylvania Power & Light Company—
Northeast Div.
Pennsylvania Power & Light Company—
Susquehanna Div.
CEP Group, Inc.
Subsidiary:
Power Markets Development Company
Interstate Energy Co.
Pennsylvania Coal Resources Corp.
Subsidiary:
Pennsylvania Mines Corp.
Subsidiary:
Rushton Mining Co.
Realty Co. of Pennsylvania
Subsidiaries:
BDW Corp.
Greene Manor Coal Co.
Lady Jane Collieries, Inc.
Safe Harbor Water Power Corp.
Plains Electric Generation & Tranmission Cooperative,
Inc.
Potomac Edison Company, The
(a subsidiary of Allegheny Energy, Inc.)
Potomac Electric Power Company
Subsidiary:
Potomac Capital Investment Corporation
94a
Public Service Company of New Mexico
Subsidiaries:
Meadows Resources, Inc.
Paragon Resources, Inc.
Sunbelt Mining Co., Inc.
Sunterra Gas Gathering Company
Sunterra Gas Processing Company
Public Service Company of Oklahoma |
(a subsidiary of Central and Southwest Corporation)
Subsidiaries:
Public Service Company of Oklahoma—
Eastern Division
Public Service Company of Oklahoma—
Mantulsa Division
Public Service Company of Oklahoma—
Northern Division
Public Service Company of Oklahoma—
Western Division
Salt River Project Agricultural Improvement and Power
District
Savannah Electric & Power Company
(a subsidiary of Southern Company)
South Carolina Electric & Gas Company
(a subsidiary of SCANA Corporation)
Southern Company
Subsidiaries:
Alabama Power Company
Georgia Power Company
Subsidiary:
Southern Electric Generating Company
95a
Gulf Power Company
Mississippi Power Company
Savannah Electric & Power Company
Southern Communications Services
Southern Company Services, Inc.
Southern Development and Investment Group
Southern Nuclear
Southwestern Electric Power Company
(a subsidiary of Central Southwest Corporation)
Tampa Electric Company
(a subsidiary of TECO Energy, Inc.)
Subsidiaries:
TECO Coal Corp.
TECO Coalbed Methane, Inc.
Toledo Edison Co.
(a subsidiary of FirstEnergy)
Tucson Electric Power Company
(a subsidiary of UniSource Energy Corporation)
Subsidiaries:
Advanced Energy Technologies
Global Solar Energy
Nations Energy Corporation
Southwest Energy Solutions, Inc.
Southwest Power Productions
Union Electric Company
(a subsidiary of Ameren Corporation)
Subsidiary:
Union Electric Development Corporation
inaiiicenieeaenaiiiaaiiliiaaauusails
96a
Virginia Electric
(a subsidiary of Dominion Resources, Inc. )
West Penn Power Company
(a subsidiary of Allegheny Energy, Inc.)
West Texas Utilities Company
(a subsidiary of Central and South West Corporation)
Wisconsin Electric Power Company
(a subsidiary of Wisconsin Energy Corporation )
The following is the other petitioner with a parent or
subsidiary to list under Rule 29.
RSR Corporation
(a subsidiary of Quexco, Inc.)
The following petitioners have no parents or subsidiaries
to list pursuant to Rule 29.
American Forest and Paper Association, Inc.
American Public Power Association
American Petroleum Institute
Can Manufacturers Institute
Clean Air Implementation Project
Corn Refiners Association
Edison Electric Institute
Ohio Chamber of Commerce
Ohio Chemical Council
National Rural Electric Cooperative Association
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.