# Appendix — Appalachian Power Co. v. Environmental Protection Agency > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386018_1294%3A2 ## Record - **Collection:** Supreme Court brief - **Document type:** Appendix - **Published:** January 1, 1999 - **Citation:** 527 U.S. 1021 ## Text r™ £ vo >” @8 1880 FER 18 ON cringe ne ne Ai PA“ MT ive Uf TRE ' j 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 4 w 2 - ] % 3 £ ‘4 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 [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386018_1294%3A2. Public record. Not legal advice.