# Petition for Writ of Certiorari — Utility Air Regulatory Group v. New Jersey (No. 08-352) > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386020_0696%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition for Writ of Certiorari - **Published:** January 1, 2009 ## Text adie ve. .2 Cou b (\) - Ficepe o= \ ee IN THE Supreme Court of the Gnited States UTILITY AIR REGULATORY GROUP, Petitioner, We STATE OF NEW JERSEY, ET AL., Respondent. On Petition for Writ of Certiorari to the United States Court of Appeals for the District of Columbia Circuit PETITION FOR A WRIT OF CERTIORARI HENRY V. NICKEL F. WILLIAM BROWNELL LEE B. ZEUGIN (Counsel of Record) HUNTON & WILLIAMS LLP 1900 K Street, N.W. Washington, D.C. 20006 (202) 955-1500 aT AE TAT ATE A TT, AAAS TE AT AA TT CET WALSON-EPES PRINTING Co., INC. — (202) 789-0096 — WASHINGTON, D.C. 20002 QUESTIONS PRESENTED The Clean Air Act (“CAA”) authorizes the U.S. En- vironmental Protection Agency to regulate hazardous air pollutant emissions from electric generating units (““EGUs”) under CAA §112 only where EPA deter- mines, pursuant to CAA § 112(n), that “such regula- tion is appropriate and necessary.” In December 2000, without notice-and-comment, the then-EPA Administrator issued a finding that regulation of EGUs was “appropriate and necessary” and added them to the list of source categories to be regulated pursuant to CAA § 112(c) and (d). In March 2005, EPA determined following rulemaking that the De- cember 2000 finding “lacked foundation,” concluded that regulation of EGUs was neither “appropriate” nor “necessary,” and removed them from the CAA § 112(c) list of source categories. The D.C. Circuit held that EPA’s 2005 “delisting” action was unlawful under the “plain language” of CAA § 112(c), and that EPA must proceed to regulate EGUs. 1. Whether the D.C. Circuit acted contrary to Chevron by focusing solely on the supposed meaning of CAA § 112(c) to find that EPA must regulate EGUs under CAA § 112(d), even though EPA determined under CAA § 112(n) that such regulation was neither “appropriate” nor “necessary.” 2. Whether an outgoing EPA Administrator may, without notice-and-comment, require a subsequent Administrator to regulate EGUs under CAA § 112(d), despite the subsequent Administrator's determination after rulemaking that such regulation is not “appro- priate and necessary.” rt PARTIES TO THE PROCEEDINGS 1. The following were petitioners in the consoli- dated proceeding, the judgment in which review is sought. In No. 05-1097, the State of New Jersey, State of California, State of Connecticut, State of Maine, Commonwealth of Massachusetts, State of New Hampshire, State of New Mexico, State of New York, and State of Vermont. In No. 05-1104, the Commonwealth of Pennsyl- vania, Department of Environmental Protection. In No. 05-1116, the State of Delaware. In No. 05-1118, the State of Wisconsin. In No. 05-1158, the Chesapeake Bay Foundation, Inc., Conservation Law Foundation, and Waterkeeper Alliance. In No. 05-1159, Environmental Defense, National Wildlife Federation, and Sierra Club. In. No. 05-1160, the Natural Resources Council of Maine, Ohio Environmental Council, and U.S. Public Interest Research Group. In No. 05-1162, the State of New Jersey, State of California, State of Connecticut, State of Maine, Commonwealth of Massachusetts, State of New Hampshire, State of New Mexico, State of New York, Commonwealth of Pennsylvania, State of Vermont, and State of Wisconsin. In No. 05-1163, the Natural Resources Defense Council. In No. 05-1164, the Ohio Environmental Council, Natural Resources Council of Maine, and U.S. Public Interest Research Group. lll In No. 05-1167, the Natural Resources Defense Council. In No. 05-1174, the State of Illinois. In No. 05-1175, the State of Minnesota. In No. 05-1176, the State of Minnesota. In No. 05-1183, the State of Delaware. In No. 05-1189, the State of Hlinois. In No. 05-1263, the Mayor and City Council of Bal- timore. In No. 05-1267, the Chesapeake Bay Foundation, Inc., Environmental Defense, National Wildlife Fed- eration, Sierra Club, and Waterkeeper Alliance. In No. 05-1270, American Coal for Balanced Mer- cury Regulation, Alabama Coal Asseciation, Coal Op- erators & Associates, Inc., Maryland Coal Association, Ohio Coal Association, Pennsylvania Coal Associa- tion, Virginia Coal Association, and West Virginia. In No. 05-1271, ARIPPA. In No. 05-1275, the Utility Air Regulatory Group. In No. 05-1277, the United Mine Workers of Amer- ica. In No. 06-1211, the State of New Jersey, State of California, State of Connecticut, State of Delaware, State of Illinois, State of Maine, Commonwealth of Massachusetts, State of Minnesota, State of New Hampshire, State of New Mexico, State of New York, Commonwealth of Pennsylvania, State of Rhode Is- land, State of Vermont, State of Wisconsin, and Michigan Department of Envircnmental Quality. In No. 06-1220, the National Congress of American Indtans, Little River Band of Ottawa Indians, Bay Mills Indian Community, Grand Traverse Band of Ot- tawa and Chippewa Indians, Jamestown S’Klallam Tribe, Lac Courte Oreilles Bank of Lake Superior 1V Chippewa Indians, Little Traverse Bay Bands of Odawa Indians, Lower Elwha Klallam Tribe, Lummi Nation, Minnesota Chippewa Tribe, Nisqually Tribe, and Swinomish Indian Tribe Community. In No. 06-1231, the American Nurses Association, the American Public Health Association, American Academy of Pediatrics, Chesapeake Bay Foundation, Inc., Conservation Law Foundation, Environmental Defense, National Wiidlife Federation, Natural Re- sources Council of Maine, Natural Resources Defense Council, Ohio Environmental Council, Physicians for Social Responsibility, Sierra Club, U.S. Public Inter- est Research Group, and WaterKeeper Alliance. In No. 06-1287, the Mayor and City Council of Bal- timore. In No. 06-1291, American Coal for Balanced Mer- cury Regulation, Alabama Coal Association, Coal Op- erators and Associates of Kentucky, Maryland Coal Association, Ohio Coal Association, Pennsylvania Coal Association, Virginia Coal Association, and West Virginia Coal Association. In No. 06-1293, ARIPPA. In No. 6-1294, The Alaska Industrial Development and Export Authority. 2. The following was respondent in the consoli- Gated proceeding, the judgment in which review is sought. United States Environmental Protection Agency. 3. The following was intervenor in support of re- spondent in the consolidated proceeding, the V judgment in which review is sought, and who files this petition. The Utility Air Regulatory Group. 4. The following were intervenors in support of re- spondent in the consolidated proceeding, the judg- ment in which review is sought, and who do not join in this petition. Duke Energy Indiana, Incorporated Duke Energy Kentucky, Incorporated Duke Energy Ohio, Incorporated Edison Electric Institute Florida Power & Light Company National Mining Association NRG Energy, Inc. PPL Corp. Producers for Electric Reliabilit: PSEG Fossil LLC State of Alabama State of Indiana State of Nebraska State of North Dakota State of South Dakota State of Wyoming West Associates 5. The following was intervernor in support of petitioners in the consolidated proceeding, the judg- ment in which review is sought. Adirondack Mountain Club American Academy of Pediatrics v1 American Nurses Association The American Public Health Association Bay Mills Indian Community City of Baltimore Greater Traverse Band of Ottawa and Chippewa Indians Jamestown S’Klallam Tribe Lac Courte Oreilles Band of Lake Superior Chip- pewa Indians Little River Band of Ottawa Indians Little Traverse Bay Bands of Odawa Indians Lower Elwha Klallam Tribe Lummi Tribe Michigan Department of Environmental Quality Minnesota Chippewa Tribe National Congress of American Indians Nisqually Tribe Physicians for Social Responsibility State of Maryland State of Rhode Island Swinomish Indian Tribe Community 6. The following appeared as amici in support of respondent in the consolidated proceeding, the judg- ment in which review is sought. The Washington Legal Foundation The State of West Virginia, Department of Envi- ronmental Protection Vii DISCLOSURE STATEMENT The Utility Air Regulatory Group (““UARG”) is a non-profit, unincorporated organization of individual] electric utilities and national trade associations. UARG has no outstanding shares or debt securities in the hands of the public and does not have any parent, subsidiary or affiliate that has issued shares or debt securities to the public. TABLE OF CONTENTS GiriGetions PYOROTIOOG 0 oo a ernee CRA S218; OE DG. S FOB iiiviccedicietscsiscces CAA § 112(b); 42 U.S.C. § 7412(b)............000. CAA § 112(c); 42 U.S.C. § 112(6).......cceeeceeeeeens CAA § 112(d); 42 U.S.C. § 7412(d).................. CAA § 112(e)(4); 42 U.S.C. § 7412(e)(4).....0..2ee CAA § 112(n); 42 U.S.C. § 7412(n)..........cseeees CAA § 307(d); 42 U.S.C. § 7607(A)..............cc0eees 16 UB, © Fes sictsi ieee reneeanen 42 U.S.C. § SOOT}-7la)...cccccccoccccceccesescacseccncenes Xl 30 23 17 12 passim passim passim passim passim 29 passim passim 18 18 Gis IS ep sivecnseciskcdcdersdavevecesevesens 18 a es Bs kkk veccacocersepttccsesssccseavaeries 18 ee ee I ivexs cetera sdsviveveicccsivsctsieerseses 18 FEDERAL REGISTER 40 Fed. Reg. 48,292 et seq. (1975)............00ceeee 5 48 Fed Reg. 15,076, et seq. (19838)..............0c eee. § 52 Fed. Reg. 8,724 et seq. (1987).........cccccceceees 5 65 Fed. Reg. 79,825, et seq. (2000)...............008. 10, 11 69 Fed. Reg. 4,652 et seq. (2004)................0008- 7,8 70 Fed. Reg. 15,994, et seq. (2005)...............006. 2, 13 70 Fed. Reg. 28,606, et seq. (2005)............... ee 13 71 Fed. Reg. 33,388, et seq. (2006)..............0008. 15 X11 PETITION FOR A WRIT OF CERTIORARI The Utility Air Regulatory Group (““UARG’”) respect- fully petitions for a writ of certiorari to review the de- cision of the United States Court of Appeals for the District of Columbia Circuit in New Jersey v. U.S. Environmental Protection Agency, 517 F.3d 574 (D.C. Cir. 2008). OPINION BELOW The opinion of the D.C. Circuit is reported at 517 F.3d 574, 380 U.S. App. D.C. 134, and is reproduced in the Appendix (“App.”) at pages la-19a. The orders on the petitions for panel and en banc rehearing, as well as the judgment of the D.C. Circuit, are included in the Appendix at pages 223a-224a, 225a-226a, and 227a-228a. JURISDICTION The D.C. Circuit entered its judgment on February 8, 2008. Timely petitions for panel and en bane re- hearing were denied by orders entered on May 20, 2008. On August 14, 2008, this Court extended the deadline for the filing of the instant petition to and including September 17, 2008. The Court’s jurisdic- tion is invoked under 28 U.S.C. § 1254(1). STATUTORY AND REGULATORY PROVISIONS INVOLVED IN THE CASE This case involves portions of the Clean Air Act (““CAA” or “the Act”), 42 U.S.C. §§ 7412; CAA § 112 (App. 235a-238a); the U.S. Environmental Protection Agency's December 2000 Regulatory Finding, 65 Fed. 2 Reg. 79,825 et seq. (Dec. 20, 2000) (App. 20a-43a); and the now-vacated Revision of December 2000 Regula- tory Finding (the so-called “Delisting Rule”), 70 Fed. Reg. 15,994 et seg., (March 29, 2005) (App. 44a-222a). STATEMENT OF THE CASE On February 8, 2008, the U.S. Court of Appeals for the D.C. Circuit struck down a final rule of the U.S. Environmental Protection Agency (“EPA” or “the Agency”) that G) removed electric generating units (““EGUs”) from the list of source categories whose hazardous air pollutant (“HAP”) emissions are to be regulated under CAA § 112(d); and (ii) established stringent requirements limiting EGU emissions of mercury under CAA § 111 of the Act. New Jersey u. U.S. Environmental Protection Agency, 517 F.3d 574 (D.C. Cir. 2008). The D.C. Circuit’s decision ignores Congress’ explicit direction to EPA in CAA § 112(n) that it regulate EGUs under CAA § 112 only if regu- lation is “appropriate” and “necessary” under that section, and EPA’s express conclusion reached after extensive rulemaking that it had neither a legal nor a factual basis for regulating EGUs under CAA § 112. Instead, the Court required EPA to proceed with a CAA § 112(d) rulemaking that the Agency had ex- pressly found it lacked the authority to conduct. As Judge Tatel observed during oral argument, “maybe that’s what Congress intended,” 1.e., for EPA “to go through a standard setting process that the Agency itself admits is wrong.” Oral Argument Transcript at 40, App. 232a. Under this view of CAA § 112, Congress required promulgation of unlawful standards so that the Court could “invalidate . . . [them] under the statute” once promulgated. Oral Argument Transcript at 37, App. 3 230a. The decision is contrary to the requirements of the CAA and violates fundamental principles of ad- ministrative law and of statutory interpretation, as laid out by this Court in Chevron v. NRDC, 467 U.S. 837 (1984). When Congress overhauled the CAA in 1990, it had a clear vision for controlling HAP emissions from EGUs and from other sources. In general, Congress provided that CAA § 112 regulation begins with iden- tifying source categories which have at least one “major” source, then rulemakings to set stringent technology-based standards for those major source categories, and then further rulemakings to address any unacceptable residual risk from those source categories. In contrast, Congress concluded that this general framework did not make sense for EGUs. Congress knew that other parts of the 1990 CAA Amendments, notably the Acid Rain program, would impose sub- stantial emission reduction requirements on EGUs that would reduce indirectly EGU HAP emissions. As a result, the public-health implications of any re- maining HAP emissions, as well as the efficacy and costs of additional control, required further study. Consequently, Congress did not apply the new HAP-control framework to EGUs. Rather, it directed EPA in CAA § 1:i2(n)(1)(A) to study EGU HAP emis- sions and to determine if further regulation of those emissions under CAA § 112 is “appropriate and nec- essary.” At issue here is how EPA carried out this broad delegation of authority under CAA §& 112(n)(1)(A). In December 2000, in the closing hours of the Clin- ton Administration and without notice and comment rulemaking, EPA’s Administrator announced that regulation of EGUs under CAA § 112 was appropriate 4 and necessary, and added EGUs to the list of source categories for regulation under CAA § 112. In that “notice of finding” under CAA § 112(n), EPA promised the public an opportunity for comment in the context of the CAA § 112(n) rulemaking required under CAA § 307(d)(1)(C) to establish emission standards for EGUs under CAA § 112. EPA subsequently undertook that rulemaking, pro- posing to regulate EGUs under either CAA § 111 or CAA § 112 depending on its review of the December 2000 “notice of finding” under CAA § 112(n). At the end of this rulemaking, EPA found that the December 2000 finding “lacked foundation” and that regulation of EGUs under CAA § 112 was neither “appropriate” nor “necessary.” The Agency nevertheless promul- gated stringent emission reduction requirements un- der CAA § 111. Without addressing the merits of EPA’s CAA § 112(m) rulemaking determination, a panel of the D.C. Circuit found that the December 2000 “notice of finding” precluded subsequent EPA Administrators from any course of action other than one that would involve unlawful regulation of EGUs under CAA § 112(d) — i.e., unlawful due to the absence of a CAA § 112(m) “appropriate and necessary” finding. As the statute and the long history of EPA’s efforts to 1m- plement CAA § 112(n)(1)(A) show, however, the De- cember 2000 finding could have no such effect. The D.C. Circuit erred in ignoring CAA § 112(n)’s thresh- old requirements and focusing exclusively on another provision of the statute (i.e., CAA § 112(c)(9)) to re- quire, under the guise of a Chevron step one analysis, future EPA Administrators to proceed with unlawful rulemaking. The Clean Air Act Section 112 was added to the CAA in 1970. The 1970 Act required EPA to make a risk-based determi- nation in order to regulate substances as HAPs: EPA could regulate substances “reasonably . . . anticipated to result in an increase in mortality or an increase in serious ... illness,” to a level that protects public health with an “ample margin of safety.” CAA § 112(a)(1) (1970). Under this provision, EPA regulated a number of HAPs emitted from industrial source categories other than EGUs. See 40 CFR Part 63. As for EGUs, EPA found that the combustion of fos- sil fuels produces extremely small releases of a broad variety of substances that are present in trace amounts in fuels and that are removed from the gas stream by contro] equipment installed to satisfy other CAA requirements. EPA found that these HAP re- leases did not pose hazards to public heaith. See 48 Fed. Reg. 15,076, 15,085 (1983). In the case of mer- cury specifically, EPA found that “coal-fired power plants... donot emit mercury in such quantities that they are likely to cause the ambient mercury concen- tration to exceed” a level that “will protect -the public health with an ample margin of safety.” 40 Fed. Reg. 48,297-98 (1975) (mercury); 52 Fed. Reg. 8,725 (1987) (reaffirming mercury conclusion). In 1990, Congress expressed general concern that the risk-based approach to HAP regulation of the 1970 CAA was time-consuming and expensive to 1m- plement for non-EGUs. See S.Rep. No. 101-228, at 131-33 (1989), 1990 U.S. Code Cong. & Admin. News at 3385, 3516-18. Congress therefore designated 189 chemicals as HAPs under CAA § 112(b) and in- structed EPA in CAA § 112(c) to list categories of “major” stationary sources of HAP emissions for the 6 development of control technology-based emission standards under CAA § 112(d). These technology- based standards are referred to as “maximum achiev- able control technology” or “MACT” standards and are based on the emission reductions achieved by the best controlled similar sources. CAA § 112(d). To remove a category or subcategory of major sources from this technology-based program for a non- carcinogen (such as mercury), EPA must make a risk- based determination that “no source in the category . . exceed a level which is adequate to protect public health with an ample margin of safety and no adverse environmental effect will result.” CAA § 112(c)(9). For major source categories other than EGUs, there- fore, the 1990 CAA Amendments changed the risk- based determination from a threshold for HAP regu- lation to a criterion for “de-listing” a major source category. By contrast, in CAA § 112(n)(1)(A), Congress spe- cifically directed that EPA shall regulate EGU HAP emissions under CAA § 112 only after completion of a study of the “hazards” to public health “reasonably anticipated to occur” as a result of EGU HAP emis- sions, and only after the Agency had considered the impact of “imposition of the requirements of this Act” on those emissions. As part of that evaluation, Con- gress directed EPA to “develop and describe” “alterna- tive control strategies” for any HAP emissions that “may warrant regulation under this section.” Finally, Congress provided that EPA shall regulate HAP emissions from EGUs under CAA § 112 only to the extent it found, after rulemaking, that regulation was “appropriate and necessary after considering the re- sults of the study” required by CAA § 112(n)(1)(A). In implementing provisions such as CAA § 112, CAA § 307(d) provides rulemaking procedures that 7 apply in lieu of the Administrative Procedures Act rulemaking requirements. In CAA § 307(d)(1)(©), Congress directed that these rulemaking procedures “appl[y] to... any regulation under section 112... (n).” In sum, Congress recognized that EGUs are specif}- cally and extensively regulated under various CAA programs. It therefore treated EGUs differently from other source categories under CAA § 112 by providing that EPA can regulate EGU HAP emissions under CAA § 112 only if it determines after rulemaking, and after considering the impact. of other CAA require- ments, that regulation of specific HAP emissions is “appropriate and necessary” to avoid “hazards” to “public health.” Mercury Mercury is a naturally occurring element in the Earth’s crust that is released into the environment as a result of both natural processes such as volcanoes, oceans, and soils, and manmade processes such as gold and ore mining, municipal and medical waste incineration, fossil fuel combustion, and chlorine manufacturing. EPA has estimated that total global emissions of mercury are about 5,000 tons per year: 1,000 tons from natural sources, 2,000 tons from manmade sources and 2,000 tons from release of mer- cury into ambient air that has been deposited on soil or 1n water. 69 Fed. Reg. 4,658 (2004). Mercury is a global pollutant. Much of the mercury emitted enters the global pool where it circulates in the atmosphere for up to one year before depositing on soil or in wa- ter. EPA estimates that U.S. coal-fired EGUs emit about 45 tons of mercury annually, or about 1% of 8 worldwide mercury emissions. Furthermore, EPA es- timates that only about 30% of EGU mercury emis- sions (13.5 tons) deposits in the U.S. (By comparison, about 75% of the mercury that deposits in the U.S. originates from sources outside the U.S.) As a result, U.S. coal-fired EGUs contribute only about 8% of the total annual mercury deposited across the U.S. See 70 Fed. Reg. 16,019, App. 155a. In nature, mercury is found in elemental, organic (methylmercury) and inorganic forms. 69 Fed. Reg. 4657. The primary route of human exposure to mer- cury is by consumption of methylmercury in fish. 69 Fed. Reg. 4,658. Methylmercury is principally formed by microbial action in the top layers of sediment in water bodies, after mercury has precipitated from the air and deposited into those waters. Once formed, methylmercury bioaccumulates in the aquatic food chain, ultimately reaching large predator fish con- sumed by humans. See Utility Study, p. 7-1. Fossil fuel combustion by EGUs produces trace amounts of three forms of mercury: elemental, par- ticulate, and gaseous ionic. 70 Fed. Reg. 16,011, App. 120a. EGUs do not produce or emit organic forms of mercury, like methylmercury. As a result, the mer- cury deposited in the U.S. as a result of EGU emis- sions must be transformed in the environment into methylmercury before it can enter the food chain and contribute to human exposure. As EPA recognizes, only a fraction of the EGU mercury emissions depos- ited in the U.S. actually enters water bodies, and only a fraction of that deposition is transformed into me- thylmercury. /d. at 16,020, App. 157a. 9 CAA § 112(n)(1)(A) Rule Shortly after enactment of the 1990 CAA Amend- ments, EPA began updating information on the types and amounts of HAPs emitted from the combustion of coal, oil] and gas by EGUs. EPA also collected infor- mation on the health effects of those HAPs, and con- ducted modeling to determine how those emissions may affect public health. The products of these ef- forts were reported in the Mercury Study and the Utility Study, published in December 1997 and Feb- ruary 1998, respectively. The Utility Study did not contain a CAA § 112(n)(1)(A) regulatory determina- tion whether regulation of certain HAPs under CAA § 112 was “appropriate and necessary.” Utility Study, ES-1. Instead, EPA stated that it “believes that mer- cury from coal-fired utilities is the HAP of greatest potential concern and merits additional research and monitoring” to inform a regulatory determination. Utility Study, p. ES-27. Following issuance of the Utility Study, EPA under- took several efforts to advance its understanding of mercury health effects and of the quantity and form of mercury emissions from coal-fired EGUs. At Con- gress’ direction, EPA asked the National Academy of Sciences (“NAS”) to review the toxicological effects of methylmercury and to make recommendations re- garding an appropriate reference dose (“RfD”). The NAS National Research Council panel found that EPA’s current RfD for methylmercury was “scientifi- cally justified.” KPA also issued two information collection requests to EGUs. The first required all coal-fired EGUs to collect coal samples throughout 1999 and to analyze those samples for mercury con- tent. The second required approximately 80 EGUs to 10 conduct stack sampling of their mercury emissions over a three-day period. On December 14, 2000, days before the Clinton Administration left office and well before EPA could complete the data collection and research it had pre- viously said was necessary to make a CAA § 112(n)(1)(A) determination, then-departing EPA Ad- ministrator Browner published, without any rule- making under CAA § 307(d)(1)(C), a “notice of regula- tory finding.” This “notice” announced her “conclu- sion” that regulation of mercury emissions from coal- fired EGUs was “appropriate and necessary” under CAA § 112. 65 Fed. Reg. 79,825 (Dec. 20, 2000), App. 20a. Because necessary research had not been com- pleted, the notice neither described the increment of emissions whose control was “necessary and appro- priate” under CAA § 112, nor the “alternative control strategies warranted to address those emissions un- der this section.” Indeed, Administrator Browner ac- knowledged that EPA could not at that time quantify the amount of methylmercury (the form of mercury of health concern) in U.S. fish attributable to mercury emissions from domestic coal-fired EGUs. 65 Fed. Reg. 79,827, App. 27a-28a. Administrator Browner explained that it was “un- necessary to solicit additional public comment on to- day’s finding {because] .. . [t]he regulation developed subsequent to the finding will be subject to public re- view and comment.” 65 Fed. Reg. at 79,831, App. 42a-43a; cf. National Asphalt Pavement Ass’n ov. Train, 539 F. 2d 775, 779 nn. 1 & 2 (D.C. Cir. 1976) (“The preliminary action of the Administrator in list- ing a particular source category is action taken in the course of promulgating final standards. . . . [S}ince the Administrator can propose regulations only for a source category on his list... we think the Clean Air 11 Act requires an opportunity for comment on the des- ignation issue.”). In that future rulemaking, she rep- resented, EPA would also consider the “effectiveness and costs of controls” for mercury, and alternative control strategies, including “economic incentives such as emissions trading.” 65 Fed. Reg. 79,830, App. 39a, 41a. As EPA explained, “judicial review would be available on both the listing decision and the sub- sequent regulation” at the end of that rulemaking. Id. at 79,831, App. 42a. Immediately following its publication, UARG sought review of the December 2000 notice in the D.C. Circuit. UARG intended to argue that Adminis- trator Browner’s “appropriate and necessary” finding was not factually justified and that EPA had violated CAA §§ 112(n)(1)(A), and 307(d) by issuing the finding and by purporting to list EGUs under CAA § 112(c) as a “major” source category based on that finding. In response, EPA filed a motion to dismiss and advised the court that “[b]ecause the decision to add coal and oil fired electric utility steam generating units to the source category list is not yet final agency action, it will be among the matters subject to further comment in the subsequent rulemaking.” EPA’s Motion to Dismiss (April 9, 2001) at 9 (emphasis added). On July 26, 2001, the D.C. Circuit granted EPA’s motion to dismiss. Order, App. 233a-234a. Following the December 2000 notice, EPA con- ducted the comprehensive CAA rulemaking it had promised, addressing former Administrator Browner’s “appropriate and necessary” finding, the CAA § 112(c) listing decision, and regulatory options. Regulatory options considered by EPA in that rulemaking in- cluded: (1) no further regulation of EGU mercury emissions, or (2) adoption of legislative rules regu- lating EGU mercury emissions under the MACT pro- 12 visions of CAA § 112(d), or (3) adoption of legislative rules under CAA § 112(n) addressing any EGU emis- sions that are “appropriate and necessary” to regu- late, or (4) adoption of legislative rules under other sections of the Act (e.g., CAA § 111) that make further controls inappropriate and unnecessary under CAA § 112. EPA also completed extensive scientific and techni- cal studies to address the areas of research need iden- tified in the Utility Study. Commentors submitted detailed technical information on EGU mercury emis- sions and on the health consequences of those emis- sions. This process resulted in a rulemaking record that is the most detailed technical record ever devel- oped by EPA under CAA § 112. In particular, EPA conducted extensive modeling to analyze how changes in mercury emissions from coal- fired EGUs would affect U.S. mercury deposition and methylmercury levels in fish for a range of cases. EPA’s analyses included an alternative scenario as- suming zero mercury emissions from all EGUs. The modeling showed that total mercury deposition in the U.S. is not significantly affected by mercury deposi- tion from EGUs, and that EGUs contribute a “rela- tively small percentage” to fish tissue methylmercury levels in the U.S. 70 Fed. Reg. 16,020, App. 158a. More importantly, the modeling showed that, quite apart from any CAA 6§112_ regulation, the implementation of other requirements of the Act (in- cluding CAA § 110 state implementation plans, the CAA § 111 new source performed standards, and the Title IV Acid Rain Program) produces the vast ma- jority of the reductions in U.S. mercury deposition and in U.S. methylmercury levels in fish tissue that can be achieved by controlling mercury emissions from coal-fired EGUs. 13 Thus, EPA concluded that “the December 2000 ‘ap- propriate’ finding lacked foundation because it was not based on the level of utility Hg emissions re- maining ‘after imposition of the requirements of thle] Act.” 70 Fed. Reg. 16,004, App. 91a. EPA explained that because “we now recognize the availability of these other statutory provisions . . . we further con- clude today that it is not necessary to regulate” EGUs under CAA § 112. /d. at 16,005, App. 97a. At the conclusion of this rulemaking, EPA removed EGUs from the CAA § 112(c) list because regulation under CAA § 112 was neither “appropriate” nor “necessary” and therefore the December 2000 notice “lacked [le- gal] foundation.” Jd. at 15,994, App. 44a. The Clean Air Mercury Rule On the same day EPA issued its CAA § 112(n)(1)(A) rule and removed EGUs from the lst of major source categories under CAA § 112, the Agency decided in- stead to regulate mercury emissions from coal-fired EGUs under CAA § 111. 70 Fed. Reg. 28,606 (May 18, 2005). EPA interpreted the term “standard of per- formance” in CAA § 111(a) to include emission trad- ing systems and determined that the “best system of [mercury] emission reduction” for existing EGUs was a national cap-and-trade program that ensured that (i) mercury emissions were limited in accordance with the “best system” of emissions control, and (ii) that mercury emissions from coal-fired EGUs — both ex- isting and new — were capped so total emissions could never increase in the future as new facilities were built to meet increased electricity demand. 70 Fed. Reg. 28,616, 28,617. The result was the Clean Air Mercury Rule (““CAMR’”). 14 CAMR set output-based emission limits for new EGUs and established a nationwide cap-and-trade program for mercury emissions from all coal-fired EGUs. Total mercury emissions from all EGUs were capped at 38 tons per year (“tons/yr”’) in 2010 and 15 tons/yr beginning in 2018. CAMR’s cap-and-trade program is implemented through state plans devel- oped under CAA § 111(d). Based on the extensive analyses performed for the CAA § 112(n)(1)(A) regula- tory determination, EPA found that the additional mercury controls required by CAMR would result in “relatively small” additional reductions in mercury deposition in the United States when compared to the imposition of other CAA requirements, and that going beyond CAMR to zero emissions would produce little or no health benefits. 70 Fed. Reg. 16,019-20, App. 156a. Petitions for Reconsideration After EPA published its CAA § 112(n)(1)(A) rule and CAMR, several parties filed petitions seeking re- consideration of both CAMR and EPA’s CAA §& 112(n)(1)(A) rule. On October 28, 2005, EPA agreed to reconsider these decisions. EPA requested addi- tional comment on several aspects of its CAA § 112(n)(1)(A) rule, including its legal interpretation of CAA § 112(n)(1)(A), and the detailed technical and scientific analyses of the impact of EGU mercury emissions on public health. 70 Fed. Reg. 62,200. After considering the petitions, EPA produced a de- tailed 306-page response to comments. Based on the petitions and the additional comments, EPA found no reason to make any substantive revisions to its CAA § 112(n)(1)(A) rule or te CAMR and therefore reaf- 15 firmed its rulemaking determination. 71 Fed. Reg. 33,388 (June 9, 2006). The D.C. Circuit’s Decision In vacating both the Delisting Rule and CAMR, the D.C. Circuit never questioned EPA’s March 2005 rulemaking determination (i) that the December 2000 notice of regulatory finding, made without rulemak- ing, “lacked foundation,” and (ii) that regulation of EGUs under CAA § 112 is neither “appropriate” nor “necessary.” Instead, the court focused exclusively on another CAA provision, CAA § 112(c)(9), that deals with the “delisting” of lawfully listed source catego- ries. Section 112({c)(9) provides that once listed “the Ad- ministration may delete any source category from this list under this subsection” if he makes a specific risk- based determination. In the case of non-carcinogens (such as mercury), this determination involves a showing that “no source in the category . . . [will] ex- ceed a level which is adequate to protect public health with an ample margin of safety.” According to the D.C. Circuit, this statutory lan- guage establishes, as a Chevron step one matter, that Administrator Browner’s eleventh-hour CAA § 112(n) “notice of regulatory finding,” made without the rulemaking required under CAA § 307(d)(1)(C), had a legally binding effect on all future actions by EPA. According to the court, this “finding” precluded the Agency from adopting a different position in the sub- sequent rulemaking promised by Administrator Browner and required by the CAA. According to the court, “[s]ection 112(n)({1) governs how the Adminis- trator decides whether to list EGUs,” but “says noth- ing about delisting EGUs.” 517 F.3d at 582, App. 16a. 16 By contrast, because “section 112(c)(9) governs the removal of ‘any source category’ from the section 112(c)(1) list,” the court found that once the December 2000 “notice of regulatory finding” was issued, “the only way EPA could remove EGUs from the... list was by satisfying section 112(c)(9)’s requirements.” 517 F.3d at 582, App. 15a (emphasis in original). As a result, as Judge Tatel observed during oral argu- ment, the Agency, “can’t correct its own mistake” in the rulemaking that follows its “notice of regulatory finding,” undertaken to address regulatory options. Oral Argument Transcript at 36, App. 229a. Rather, it must promulgate unlawful rules so that the court (not the Agency) can correct “the errors in a challenge to th[ose] emission standards.” Id. REASONS FOR GRANTING THE PETITION By its express terms, the CAA states that EPA shall regulate HAP emissions from EGUs under CAA § 112 only after the Agency has determined that “such regulation is appropriate and necessary.” On March 29, 2005, the Agency concluded following notice-and- comment rulemaking that regulation of EGUs under CAA § 112 was not “appropriate and necessary.” EPA therefore removed EGUs from the list of major source categories to be regulated under CAA § 112, and in- stead issued a stringent CAA § 111 regulatory pro- gram for EGUs. In its decision, the D.C. Circuit invoked Chevron step one to conclude that EPA’s March 29, 2005 rule- making decision to remove EGUs from the CAA § 112(c) list, based on the Agency’s CAA § 112(n) de- termination that regulation of EGUs under CAA § 112 was neither “appropriate” nor “necessary,” was unlawful under the “plain text and structure of sec- 17 tion 112.”! 517 F.3d at 583, App. 19a. According to the court, three words in CAA § 112(c)(9) — “any source category” — compel to EPA to adopt a standard under CAA § 112(d) that ts not authorized under CAA § 112(n), a standard that would therefore have to be vacated on subsequent review by the D.C. Circuit. This case is but the latest and perhaps most strik- ing example of recent decisions by appellate courts, and by the D.C. Circuit in particular, under which specific meaning is given to fragments of statutory language in order to find an unambiguous congres- sional intent that could not be discerned if traditional canons of statutory construction were applied to the statutory provision as a whole. This results-oriented approach to statutory construction using Chevron step one allows the court to conclude that the “plain language” of the CAA compels a policy result that Congress could have never imagined, much less in- tended the Agency to pursue. Years ago, this Court found it necessary to admon- ish the D.C. Circuit that the “fundamental policy questions appropriately resolved in Congress ...are not subject to re-examination in the federal courts under the guise judicial review of agency action.” Vermont Yankee Nuclear Power Corp. v. NRDC, 435 U.S. 519, 558 (1978) (emphasis in original). “Admin- istrative decisions,” the Court said, should not be set ' The D.C. Circuit expressly declined even to “reach [the] con- tention that... EPA was arbitrary and capricious in reversing its determination that regulating EGUs under section 112 was ‘appropriate and necessary.” See 517 F.3d at 581, App. 13a. 18 aside “simply because the [reviewing] court is un- happy with the result reached.” Id. Seemingly, a reminder of these principles is today in order. In vacating the Delisting Rule and CAMR, the D.C. Circuit has so far departed from the accepted and usual course of judicial proceedings under Chev- ron that it calls for the exercise of this Court’s super- visory power. The D.C. Circuit is afforded exclusive jurisdiction to review the validity of legislative rules promulgated by EPA to implement the CAA, see CAA § 307(b), as well as rules, orders and actions by other federal agencies under many other federal statutes.2 This imposes on this Court the responsibility to give heightened scru- tiny to the D.C. Circuit’s exercise of its judicial review function, recognizing that the D.C. Circuit’s views as to the meaning of authorizing statutes — because that court’s word is final absent review by this Court — will necessarily have an enormous impact on the shape and direction of many regulatory initiatives. Certio- rari is needed to ensure that the respective roles of agencies and reviewing courts in our constitutional system are respected. Finally, certiorari is needed to address whether a non-final notice and finding that regulation is au- “ See, eg., 47 U.S.C. § 402(b) (Federal Communications Commission orders); 42 U.S.C. § 300j-7(a) (EPA regulations under the Safe Drinking Water Act); 42 U.S.C. § 6976(a)(1) (EPA regulations under the Resource Conservation and Recovery Act): 42 U.S.C. § 9613(a) (EPA regulations under the Comprehensive Environmental Response, Compensation, and Liability Act); 15 U.S.C. § 766(c) (Federal Energy Regulatory Commission regulations). 19 thorized, issued by an outgoing administration with- out rulemaking, can compel a new administration to adopt a regulatory program found to be unauthorized following notice and comment rulemaking. A funda- mental principle of administrative law is that an agency can only bind itself in the future through leg- islative rulemaking. Equally fundamental is the principle that an agency is required to correct a legal error where a rulemaking record establishes that an agency’s preliminary findings were unsupported. Both principles were ignored by the D.C. Circuit. As a consequence, the court’s decision deprives UARG of a timely opportunity to have the legal defi- ciencies of EPA’s December 2000 notice of finding and listing judicially reviewed. When UARG sought re- view of EPA’s December 2000 actions in February 2001, the court dismissed UARG’s petition after EPA averred that its December 2000 notice and listing were not final agency action, and that they would be the subject of comment during subsequent rulemak- ing. After UARG convinced EPA that its December 2000 CAA § 112(n) finding was legally and factually in error, the D.C. Circuit again refused to resolve the issue of the legal adequacy of EPA’s December 2000 notice of finding, but nevertheless found that that no- tice compelled future EPA action to adopt an invalid CAA § 112(d) MACT standard for EGUs. The court’s decision requires UARG to participate in many more years of unnecessary rulemaking activities simply be- cause the court has refused to address EPA’s author- ity to hst EGUs in the first place. 20 :. CERTIORARI IS NEEDED TO ADDRESS THE D.C. CIRCUITS NEW APPROACH TO STATUTORY CONSTRUCTION, WHICH CONFLICTS WITH CHEVRON. Under CAA § 112(n)(1)(A), EPA may regulate EGUs under CAA § 112 only if the Agency finds that such regulation is “appropriate and necessary.” Notwith- standing EPA’s having determined under CAA § 112(n)(1)(A) that it had no legal or factual basis for regulating EGUs under CAA § 112, the D.C. Circuit held that the words “any source category” in CAA § 112(c)(9) required the completion of the very MACT standard-setting rulemaking under CAA § 112(d) that the Agency had expressly found was neither “appro- priate” nor “necessary.” As Judge Tatel observed during oral argument, Congress used these three words to mandate that EPA “go through a standard setting process that the Agency itself admits is wrong,” leaving it to the court later to “invalidate” the resulting unlawful MACT standard that Congress supposedly directed EPA to develop. Oral Argument Transcript at 40, App.232a. This case is the latest in a series of recent appellate decisions under which specific meaning is given to fragments of statutory language in order to find an unambiguous congressional intent that could not be discerned from the statutory provision as a whole. For example, in New York v. EPA, 443 F.3d 880 (D.C. Cir. 2006), the D.C. Circuit found that “the word ‘any’ before a phrase with several common meanings” eliminates the agency’s discretion to interpret that phrase to select among those meanings, regardless of the statutory definition “taken as a whole.” 443 F.3d at 885 and 888 n.4 (D.C. Cir. 2006). In South Coast Air Quality Management District v. EPA, 172 F.3d 21 882 (D.C. Cir. 2006), the D.C. Circuit found that the word “control” unambiguously requires EPA to in- clude in the definition of that term not only pollution control requirements, but “penalties, rate-of-progress milestone, [and] contingency plans.” 472 F.3d at 900. In.Friends of the Earth v. EPA, 446 F.3d 140 (D.C. Cir. 2006), the D.C. Circuit found that the word “daily” must be interpreted by EPA as a 24-hour measurement of effluent discharges as opposed to other measures of “daily” discharges. 446 F.3d at 142. Most recently, in Sierra Club v. EPA, 536 F.3d 673 (D.C. Cir. 2008), two judges on a D.C. Circuit panel rejected EPA’s interpretation of the CAA based on the conclusion that the words “each permit” evinced an unambiguous command. 536 F.3d at 678. The dissenting judge also employed a Chevron step one analysis to cite other broader provisions in the CAA that he believed supported EPA’s action. 536 F.3d at 680-82. That Congress could so often convey unambiguous: intent on such complex _ subjects through isolated words or fragments of phrases defies credulity. Similarly, in this case, the entirety of the D.C. Cir- cuit’s decision boils down to a fragment of a phrase: “because Section 112(c)(9) governs the removal of ‘any source category’ from the section 112(c)(1) list,” once the Administrator listed them under section 112(c)(1)” in December 2000, EPA “had no authority to delist them without taking the steps required under section 112(c)(9).” See 517 F.3d at 582, 581, App. 15a, 14a (emphasis in original). As a result, even though EPA found after rulemaking that the December 2000 no- tice of regulatory finding and listing “lacked founda- tion” and that regulation of EGUs under CAA § 112 was neither “appropriate” nor “necessary,” the Agency's “purported removal of EGUs from the sec- 22 tion 112(c)(1) lst” without making the CAA § 112(c)(9) findings for delisting, according to the court, “violated the CAA’s plain text and must be re- jected under step one of Chevron.” Id. at 582, App. 15a. In Chevron, this Court enunciated the now-familiar approach to judicial review of an agency’s interpreta- tion of a statute it is responsible for implementing: “First, always, is the question whether Congress has spoken to the precise question at issue.” 467 U.S. at 842. “If the intent of Congress is clear, that is the end of the matter,” for the reviewing court, like the agency before it, “must give effect to the unambiguously ex- pressed intent of Congress.” Jd. If, however, “Con- gress has not directly addressed the precise question at issue” — because the statute is “silent or ambiguous with respect to the specific issue” — the “question for the court is whether the agency’s answer is based ona permissible construction of the statute.” Jd. In the latter case, “federal judges ... have a duty to respect legitimate policy choices” made by the agency. Id. at 866. The judiciary is the “final authority on issues of statutory construction.” 467 U.S. at 843 n.9. Exer- cising this authority with care is particularly impor- tant for the D.C. Circuit, because it is charged with exclusive jurisdiction to review many of the legislative rules issued by EPA and other agencies. In exercising this authority, this Court has made clear that the “court ... employ{s] traditional tools of statutory con- struction ... [to] ascertain|[} whether . . . Congress had an intention on the precise question at issue.” Jd. at 843 n.9 (emphasis added). Application of “traditional tools of statutory con- struction” requires a court to examine both the statu- tory context and the history of a word or phrase. In 23 particular, the “meaning of a word must be ascer- tained in the context of achieving particular objec- tives, and the words associated with it may indicate ... the true meaning.” 467 U.S. at 861. For that rea- son, a reviewing court “should not confine itself to ex- amining a particular statutory provision in isolation.” See FDA v. Brown & Williamson Tobacco Corp., 529 U.S. 120, 132 (2000); see also Philbrook v. Glodgett, 421 U.S. 707, 713 (1975) (‘In expounding a statute, we must not be guided by a single sentence or mem- ber of a sentence, but look to the provisions of the whole law, and to its object and policy.”). In other words, “[s]tatutory construction” is a “holistic en- deavor,” United Savings Ass’n vu. Timbers of Inwood Forest, 484 U.S. 365, 371 (1988), a characterization that reflects the “cardinal rule” that a “statute is to be read as a whole,” since the “meaning of statutory lan- guage, plain or not, depends on context.” See King v. St. Vincent’s Hosp., 502 U.S. 215, 221 (1991) (citations omitted). In this case, the court’s gaze never deviated from three words — “any source category” — as the basis for its holding that EPA’s decision “violated the CAA’s plain test and must be rejected under step one of Chevron.” 517 F.2d at 582, App. 15a. Had the court _read CAA § 112 “as a whole,” it could not have con- cluded that, even after determining in March 2005 that regulation of EGUs under CAA § 112 was not “appropriate and necessary,” the Agency was never- theless precluded from removing EGUs from the CAA § 112(c) source list. To begin with, the D.C. Circuit’s holding ignores the plain language of CAA § 112(n)(1)(A), which clearly and unambiguously communicates Congress’s intent that EPA is to regulate EGUs under CAA § 112 only if the Agency “finds such regulation is appropriate 24 and necessary.” Notably, the D.C. Circuit did not take issue with EPA’s decision, as part of its March 2005 Delisting Rule, that former Administrator Browner’s December 2000 regulatory notice “lacked foundation,” and that EPA had subsequently deter- mined that regulation of EGUs under CAA § 112 was not “appropriate and necessary.” Indeed, the court expressly declined to reach the petitioners’ challenge to that aspect of the Delisting Rule. Instead, the panel reasoned that CAA § 112(n)(1)(A) “governs how the Administrator decides whether to hst EGUs,” and that it “says nothing about delisting EGUs.” See 517 F.3d at 582, App. 16a. But this is no answer. As the language of CAA § 112(n)(1)(A) makes clear, the “appropriate and necessary” finding is the prerequisite for EPA’s regulating EGUs “under this section” — t.e. under CAA § 112 itself. Under the plain language of the CAA, EGUs cannot simultane- ously be listed under CAA § 112(c) — and, thus, sub- ject to regulation under CAA § 112(d) — and at the same time have been found by EPA not to warrant regulation under CAA § 112, based on the Agency’s determination that regulation of EGUs is not “appro- priate and necessary.” Yet that anomalous situation is precisely what the D.C. Circuit’s decision has cre- ated. Chevron step one does not allow that result, much less, as the court found, compel it. Second, even when _ recad in isolation, CAA § 112(c)(9)(B), does not say what the D.C. Circuit be- leved it to say. The court read subparagraph (9)(B) as if it provides that EPA “may delete any source category from the list” under subsection (c) only where either of the criteria set forth in clauses (i) or (ii) is satisfied. But, by its plain terms, subparagraph (9)(B) says no such thing, nor can the provision be plausibly construed in such a fashion. To the con- 25 trary, subparagraph (b)(9)(B) addresses the situation where a source category otherwise properly listed un- der subsection (c) may nevertheless be removed from the list applying a risk-based test — and thereby avoid being subject to a MACT standard established under subsection (d). In other words, the provisions of subparagraph (9)(B) have nothing whatsoever to do with EPA’s au- thority to police the inclusion and deletion of major sources that may or may not be properly listed under subsection (c). Rather, CAA § 112(c)(9)(B) reflects Congress’s intent that an “off-ramp,” as it were, be af- forded for those categories of major sources for which establishment of a MACT standard under subsection (d) would not be warranted, based on a determination by EPA that the sources within the category do not present a significant risk to public health or to the environment. The D.C. Circuit’s contrary conclusion that the provisions of subparagraph (c)(9)(B) repre- sent a “comprehensive delisting process’? that serve as the only means by which EPA is authorized to re- move major sources from the subsection (c) list is it- self contrary to the plain language of the state. For example, what of the situation where EPA de- termines that a category initially listed under CAA § 112(c) should be deleted from this st due to the Agency’s having subsequently learned that, in fact, the category in question contains no “major sources” warranting its listing? Nothing on the face of CAA § 112(c)(9)(B) speaks to that situation, but Congress could not have intended to restrain EPA’s authority to 3 See 517 F.3d at 582, App. 16a. 26 revise the source category listing in the face of later- developed information indicating that the initial list- ing of a particular category was incorrect. To the con- trary, other language in subsection (c) makes it per- fectly clear that EPA has such authority. Specifically, CAA § 112(c)(1) provides that EPA “shall publish, and shall from time to time, if appro- priate, revise, tn response to public comment or new information, a list of all categories and subcategories of major sources and area sources.” (emphasis added). It is hard to imagine a clearer indication that Congress expected that EPA would and should peri- odically revise the subsection (c) source category list as “appropriate,” based on “public comment or new information,” but the D.C. Circuit steadfastly ignored this language even as it was purporting to ferret out “unambiguously expressed” congressional intent on the face of CAA § 112. Indeed, when EPA pointed out to the D.C. Circuit that the Agency had in the past revised the source category list to remove certain previously-listed cate- gories upon determining that, in fact, the category contained no sources that emitted at the “major source” thresholds, and that this underscored EPA’s authority to remove EGUs from the listed based on its March 2005 determination that the December 2000 “appropriate and necessary” finding “lacked founda- tion,” the court responded that “previous statutory violations cannot excuse the one now before the court.” See 517 F.3d at 583, App. 18a But this retort is circular nonsense, as the only basis for the D.C. Circuit’s assumption that such prior action by EPA constituted a “statutory violation” is the court’s own mistaken conclusion, based on its misplaced reading of a snippet of the language of CAA § 112(c), that the 27 Agency had no such authority to correct mistakes in the CAA § 112(c) list based on “new information.” Finally, the D.C. Circuit’s decision fails altogether to address the point that, regardless whether then- Administrator Browner’s December 2000 “finding” that regulation of EGUs was “appropriate and neces- sary’ was substantively valid, her purported listing of EGUs under CAA § 112(c) was per se unlawful under the plain language of the Act. That is, an affirmative finding under CAA § 112(n)(i)(A) does not automati- cally entail that EGUs must be listed under CAA § 112(c). By its plain terms, CAA § 112(n)(1)(A) merely provides that EGUs are to be regulated “under this section” if such a finding is made; it does not specify that such regulation is to take place, or must take place, pursuant to the source category listing and MACT standard-setting procedures laid out in CAA § 112(c) and (d). Had the D.C. Circuit employed the “traditional tools of statutory construction” in assessing what Congress intended under CAA § 112 (as Chevron directs), read the statute “as a whole,” and looked to the “provisions of the whole law, and to its object and policy,” it could not have concluded that, once listed, EGUs could only be removed from the CAA § 112(c) list through EPA’s making one of the showings described by the provi- sions of CAA § 112(c)(9)(B). After all, if then-Adminis- trator Browner’s purported listing of EGUs was itself unlawful under the CAA, it could not possibly be the case that CAA § 112(c)(9)(B) provides the “only” means by which EPA could “undo” that illegal action. 28 I]. CERTIORARI IS NEEDED TO ADDRESS WHETHER A DEPARTING EPA ADMINISTRATOR CAN COMPEL FUTURE AGENCY REGULATION WITHOUT RULEMAKING. The Clean Air Act and similar statutes are replete with provisions that condition regulation on specific statutory findings. Rulemaking is the procedure pre- scribed by Congress either to transform a preliminary finding into the predicate for a binding regulatory program or to abandon that preliminary finding as unsupported. If preliminary findings announced without rulemaking could compel future administra- tions to establish new regulatory programs, then new regulatory policy could be mandated without any ac- countability or opportunity for correcting that finding. That is precisely the result reached by the D.C. Cir- cuit here. According to the D.C. Circuit, Administra- tor Browner in December 2000 successfully compelled the incoming administration to promulgate regula- tions under CAA § 112(d) merely by issuing, without rulemaking, a “notice of regulatory finding” under CAA §112(m) and a listing of EGUs under CAA § 112(c). In this case, there is no dispute that, when EPA is- sued its December 2000 notice, it had not undertaken rulemaking, it had not completed “necessary” studies, it had not considered all of the specific factors re- quired to be considered by CAA § 112(n)(1)(A), and it had not justified that MACT controls under CAA § 112(c) and (d) were the proper way to address the hazards to public health it had identified as war- ranting regulation. UARG challenged that notice in early 2001, but, consistent with longstanding D.C. Circuit case law postponing judicial review of listing 29 decisions until the conclusion of .rulemaking on - whether to promulgate emission standards,* and in response to EPA’s representations that the CAA § 112(n) finding would not be final until completion of future notice and comment rulemaking, the D.C. Cir- cuit dismissed UARG’s petition to review the Decem- ber 2000 “notice of regulatory finding.” Following the promised CAA § 112{n) rulemaking, EPA corrected the preliminary, nenfinal finding and listing decision made by Administrator Browner, and announced that regulation of EGUs under CAA § 112 was neither “appropriate” nor “necessary.” Under the D.C. Circuit’s decision, however, a subsequent Ad- ministrator cannot correct an erroneous listing that was based on a preliminary CAA § 112(n) finding subsequently determined to have been unfounded. Instead, the new Administrator must proceed to es- tablish a MACT standard for EGU’s under CAA § 112(da), notwithstanding a final CAA § 112(n) finding that will necessarily render those standards a nullity upon subseguent review in the D.C. Circuit. Whether unreviewable preliminary action taken without notice and comment rulemaking can preclude reconsideration of that action following rulemaking and can compel establishment of a new regulatory program is a question of no small importance to the future of administrative law and executive branch ac- countability. It is also a question that UARG believed that the D.C. Circuit resolved decades ago in one of Justice Scalia’s last opinions on that court. 4 See, e.g.. National Asphalt Pavement Ass'n, 539 F.2d 775; see also CAA § 112(e)(4). 30 In Thomas v. State of New York, 802 F.2d 1443 (D.C. Cir. 1986), the D.C. Circuit addressed whether a letter sent by the EPA Administrator to the Secretary of State in the last days of the Carter Administration, in which the outgoing Administrator concluded that acid deposition was endangering public health in the U.S. and Canada, obligated future EPA Administra- tors to take regulatory action under CAA § 115. The court found that an agency statement that binds sub- sequent Administrators is a statement of future effect designed te implement law or policy, and is therefore a “rule.” Jd. at 1446. Because the Administrator had not issued the letter through notice and comment rulemaking, this Court found that it was not a “rule” and, therefore, could have no binding effect. Jd. at 1447. Similarly, when EPA has taken action that, when completed, has future regulatory consequences, like “approval” of a State Implementation Plan (which transforms state-adopted regulations into federally enforceable ones), the court of appeals have uniformly held that EPA must do more than simply publish a notice in the Federal Register. Instead, EPA must conduct a “notice and comment” rulemaking in order to create enforceable requirements for the future.® For the foregoing reasons, this Court should grant certiorari to address whether agency “findings,” is- sued without rulemaking, can be used to bind incom- 5 See, e.g., Duquesne Light Co. v. EPA, 166 F.3d 606, 611 (3d Cir. 1999) (“Each SIP must be submitted to EPA for review and approval. The [CAA] requires a notice and comment period.”). 31 ing administration’s to their predecessor’s policy pref- erences. CONCLUSION The petition for writ of certiorari should be granted. Respectfully submitted, HENRY V. NICKEL F. WILLIAM BROWNELL LEE B. ZEUGIN (Counsel of Record) HUNTON & WILLIAMS LLP 1900 K Street, N.W. Washington, D.C. 20006 (202) 955-1500 Counsel for the Utility Atr Regulatory Group September 17, 2008 APPENDIX APPENDIX TABLE OF CONTENTS New Jersey v. U.S. Environmental Protection Agency, 517 F.3d 574 CE sc Re. Sas bv ccckvodaneshdcabunestennsastoveunee la December 2000 Regulatory Finding, 65 Fed. Reg. 79,825 (Dec. 20, 2000)............ 20a Revision of December 2000 Regulatory Finding, 70 Fed. Reg. 15,994 CE ee kas oun beewavscyertvariewcndccvuesss 44a Order on Panel Rehearing.....................4. 223a Order on Rehearing en banc................000 225a idk sid sieiniadars entrada sees 227a Oral Argument Transcript, New Jersey v. EPA, No. 05-1097 (excerpts)...........ceeeeeeees 22Ya Order, No. 01-1074 (July 26, 2001)............ 233a Excerpts from the Clean Air Act............... 235a APPENDIX A UNITED STATES COURT OF APPEALS For the District of Columbia Circuit Argued December 6, 2007 Decided February 8, 2008 No. 05-1097 State of New Jersey, et al., Petitioners Vv. Environmental Protection Agency, Respondent Utility Air Regulatory Group, et al., Intervenors Consolidated with Nos. 05-1104, 05-1116, 05-1118, 05-1158, 05-1159, 05-1160, 05-1162, 05-1163, 05-1164, 05-1167, 05-1174, 05-1175, 05-1176, 05-1183, 05-1189, 05-1263, 05-1267, 05-1270, 05-1271, 05-1275, 05-1277, 06-1211, 06-1220, CS-1231, 06-1287, 06-1291, 06-1293, 06-1294 On Petitions for Review of the Final Action of the Environmental Protection Agency 2a James S. Pew argued the cause for Environmental Petitioners. With him on the briefs were John D. Walke, Jon Devine, Scott Edwards, Jon A. Mueller, Ann Brewster Weeks, Jonathan F. Lewis, Brad Kuster. Vanya S. Hogen, Colette Routel, Sarah I. Wheelock, Riyaz A. Kanji, Philip E. Katzen, and Ann Tweedy were on the briefs for petitioners National Congress of American Indians and Treaty Tribes. Brian B. O'Neill entered an appearance. Bart E. Cassidy and Meredith DuBarry Huston were on the briefs for petitioner ARIPPA. Carol F. McCabe entered an appearance. Scott C. Oostdyk, Neal J. Cabral, Grant F. Crandall, Judith Ellen Rivlin, and Eugene M. Trisko were on the briefs for petitioners American Coal for Balanced Mercury Regulation, et al. and United Mine Workers of America, AFL-CIO. James B. Vasile, Brian R. Gish, Susan E. Reeves, and Robert K. Reges were on the briefs for petitioner Alaska Industrial Development and Export Authority. Anne Milgram, Attorney General, Attorney General’s Office of the State of New Jersey, Christopher D. Ball and Ruth E. Carter, Deputy Attorneys General, Edmund G. Brown, Jr., Attorney General, Attorney General’s Office of the State of California, Susan Durbin, Deputy Attorney General, Richard Blumenthal, Attorney General, Attorney General’s Office of the State of Connecticut, Matthew Levine, Assistant Attorney General, Joseph R. Biden, ITI, Attorney General, Attorney General’s Office of the State of Delaware, Valerie S. Csizmadia, Deputy 3a Attorney General, Lisa Madigan, Attorney General, Attorney Gencral’s Office of the State of Ilhnois, Ann Alexander, Assistant Attorney, G. Steven Rowe, Attorney General, Attorney General’s Office of the State of Maine, Gerald D. Reid, Assistant Attorney General, Douglas F. Gansler, Attorney General, Attorney General’s Office of the State of Maryland, Kathy M. Kinsey and Judah Prero, Assistant Attorneys General, Martha Coakley, Attorney General, Attorney General’s Office of the Commonwealth of Massachusetts, William L. Pardee, Assistant Attorney General, Michael A. Cox, Attorney General, Attorney General’s Office of the State of Michigan, Michigan Department of Environmental Quality, Thomas L. Casey, Solicitor General, Alan F. Hoffman and Neil D. Gordon, Assistant Attorneys General, Lori Swanson, Attorney General, Attorney General’s Office of the State of Minnesota, Alan C. Williams, Assistant Attorney General, Kelly A. Ayotte, Attorney General, Attorney General’s Office of the State of New Hampshire, Maureen D. Smith, Senior Assistant Attorney General, Gary King, Attorney General, Attorney General’s Office of the State of New Mexico, Karen L. Reed, Assistant Attorney General, Andrew M. Cuomo, Attorney General, Attorney General’s Office of the State of New York, Jacob Hollinger, Assistant Attorney General, Robert A. Reiley, Assistant Counsel, Commonwealth of Pennsylvania, Department of Environmental Protection, Patrick C. Lynch, Attorney General, Attorney General’s Office of the State of Rhode Island, Terence Tierney, Special Assistant Attorney General, William H. Sorrell, Attorney General, Attorney General’s Office of the State of Vermont, Kevin O. Leske, Assistant Attorney General, J.B. Van Hollen, Attorney General, Attorney General’s Office of 4a the State of Wisconsin, Thomas J. Dawson, Assistant Attorney General, and William R. Phelan, Jdr., Attorney, for the City of Baltimore, Maryland, were on the briefs for Government Petitioners. Jean P. Reilly and Kevin P. Auerbacher, Assistant Attorneys General, Attorney General’s Office of the State of New Jersey, Peter H. Lehner, Assistant Attorney General, Attorney General’s Office of the State of Connecticut, Christopher D. Coppin, Assistant Attorney General, Attorney General’s Office of the State of New Mexico, Gerald T. Karr, Assistant Attorney General, Attorney General’s Office of the State of Illinois, entered appearances. Henry V. Nickel, F. William Brownell, David G. Scott, and Lee B. Zeugin were on the briefs for petitioner Utility Air Regulatory Group. Eric G. Hostetler, Attorney, U.S. Department of Justice, argued the cause for respondent. With him on the brief were John C. Cruden, Deputy Assistant Attorney General, Jon M. Lipshultz and Matthew R. Oakes, Attorneys, and Carol S. Holmes and Howard J. Hoffman, Counsel, U.S. Environmental Protection Agency. Wendy L. Blake, Attorney, U.S. Environmental Protection Agency, entered = an appearance. Lee B. Zeugin argued the cause for Industry State Intervenors and State Amici Curiae. With him on the briefs were Troy King, Attorney General, Attorney General's Office of the State of Alabama, Milt E. Belcher, Assistant Attorney General, Wayne Stenehjem, Attorney General, Attorney General's Office of the State of North Dakota, Paul Seby, Special Assistant, Lyle Witham, Solicitor General, 5a Steve Carter, Attorney General, Attorney General’s Office of the State of Indiana, Thomas M. Fisher, Assistant Attorney General, Lawrence E. Long, Attorney General, Attorney General’s Office of the State of South Dakota, Roxanne Giedd, Deputy Attorney General, Mark J. Rudolph, Senior Counsel, State of West Virginia, Department of Environmental Protection, Peter H. Wyckoff, Henri D. Bartholomot, Jon C. Bruning, Attorney General, Attorney General’s Office of the State of Nebraska, Jodi Fenner, Assistant Attorney General, Patrick Crank, Attorney General, Attorney General’s Office of the State of Wyoming, Nancy Vehr, Assistant Attorney General, Henry V. Nickel, F. William Brownell, Lee B. Zeugin, William M. Bumpers, Debra J. Jezouit, and Peter Glaser. Valerie M. Tachtiris, Assistant Attorney General, Attorney General's Office of State of Indiana, Jay A. Jerde and Vicci M. Colgan, Assistant Attorneys General, Attorney General's Office of State of Wyoming, Kevin C. Newsom, Harold P. Quinn, Jr., and Claudia M. O'Brien entered appearances. Leah W. Casey was on the brief for intervenor for petitioner Adirondack Mountain Club. Charles H. Knauss, Sandra P. Franco, and David G. Scott, IJ were on the brief for intervenors Producers for Electric Reliability and West Associates. Karma B. Brown entered an appearance. John T. Suttles, Jr. was on the brief for intervenors Physicians for Social Responsibility, et al. Peter Glaser, Daniel J. Popeo, and Paul D. Kamenar were on the brief for amicus curiae Washington Legal Foundation in support of respondent. 6a Before: ROGERS, TATEL and BROWN, Circuit Judges. Opinion for the Court by Circuit Judge ROGERS. ROGERS, Circuit Judge: Before the court are petitions for review of two final rules promulgated by the Environmental Protection Agency regarding the emission of hazardous air pollutants (“HAPs”) from electric utility steam generating units (“EGUs’”). The first rule removes coal- and oil-fired EGUs from the list of sources whose emissions are regulated under section 112 of the Clean Air Act (“CAA”), 42 U.S.C. § 7412. Revision of December 2000 Regulatory Finding (“Delisting Rule”), 70 Fed. Reg. 15,994 (Mar. 29, 2005). The second rule sets performance standards pursuant to section 111, 42 U.S.C. § 7411, for new coal-fired EGUs and establishes total mercury emissions limits for States and certain tribal areas, along with a voluntary cap-and-trade program for new and existing coal-fired EGUs. Standards of Performance for New and _ Existing Stationary Sources: Electric Utility Steam Generating Units (““CAMR”), 70 Fed. Reg. 28,606 (May 18, 2005). Petitioners contend that the Delisting Rule is contrary to the plain text and structure of section 112. In response, EPA and certain intervenors rely on section 112(n), which sets special conditions before EGUs can be regulated under section 112, to justify the rule. We hold that the delisting was unlawful. Section 112 requires EPA to regulate emissions of HAPs. Section 112(n) requires EPA to regulate EGUs under section 112 when it concludes that doing so is “appropriate and necessary.” In December 2000, EPA 7a concluded that it was “appropriate and necessary” to regulate mercury emissions from coal- and oil-fired power plants under section 112 and lhsted these EGUs as sources of HAPs regulated under that section. In 2005, after reconsidering its previous determination, EPA purported to remove these EGUs from the section 112 list. Thereafter it promulgated CAMR under section 111. EPA’s removal of these EGUs from the section 112 list violates the CAA because section 112(c)(9) requires EPA to make specific findings before removing a source listed under section 112; EPA concedes it never made _ such findings. Because coal-fired EGUs are listed sources under section 112, regulation of existing coal-fired EGUs’ mercury emissions under section 111 is prohibited, effectively invalidating CAMR’s regulatory approach. Accordingly, the court grants the petitions and vacates both rules. I. In 1970, Congress added section 112 to the CAA. Pub. L. No. 91-604, § 4(a), 84 Stat. 1676, 1685 (1970). In its original form, section 112 required EPA to list HAPs that should be regulated because they could “cause, or contribute to, an increase in mortality or an increase in serious irreversible[{] or incapacitating reversible[] illness.” Jd. § 112(a)(1). Over the next eighteen years, however, EPA listed only eight HAPs, established standards for only seven of these and as to these seven addressed only a limited selection of possible pollution sources. See Natl Mining Ass'n v. EPA, 59 F.3d 1351, 1353 n.1 (D.C. Cir. 1995); S. COMM. ON ENV’T & PUB. WORKS, CLEAN AIR ACT AMENDMENTS OF 1989, S. REP. NO. 101-228, at 131 (1989), reprinted in 1990 U.S.C.C.A.N. 3385, 3516. 8a In 1990, Congress, concerned about the slow pace of EPA’s regulation of HAPs, altered section 112 by eliminating much of EPA’s discretion in the process. See, e.g., Natl Lime Ass’n. v. EPA, 233 F.3d 625, 633- 34 (D.C. Cir. 2000). Three aspects of the amendments are relevant here. First, Congress required EPA to regulate more than one hundred specific HAPs, including mercury and nickel compounds. CAA § 112(b)(1). Further, EPA was required to list and to regulate, on a_ prioritized schedule, id. § 112(e)(1)-(3), “all categories and subcategories of major sources and areas sources” that emit one or more HAPs, id. § 112(c)(1). In seeking to ensure that regulation of HAPs reflects the “maximum reduction in emissions which can be achieved by application of [the] best available control technology,” S. REP. NO. 101-228, at 133, reprinted in 1990 U.S.C.C.A.N. at 3518; see, eg. CAA § 112(g)(2)(A), Congress imposed _ specific, strict pollution control requirements on both new and existing sources of HAPs. Congress specified that new sources must adopt at minimum “the emission control that is achieved in practice by the best controlled similar source, as determined by the Administrator.” Id. § 112(d)(3). Existing sources (with certain exceptions) must adopt emission controls equal to the “average emission limitation achieved by the best performing 12 percent of the existing sources.” Id. § 112(d)(3)(A). Second, Congress restricted the opportunities for EPA and others to intervene in the regulation of HAP sources. For HAPs that result in health effects other than cancer, as is true of mercury, Congress directed 9a that the Administrator “may delete any source category” from the section 112(c)(1) list only after determining that “emissions from no source in the category or subcategory concerned . . . exceed a level which is adequate to protect public health with an ample margin of safety and no adverse environmental effect will result from emissions from any source.” /d. § 112(c)(9). Third parties may not challenge the Administrator’s decision to add a pollutant to the list under section 112(b) or a source category or subcategory to the list under section 112(c) until “the Administrator issues emission standards for such pollutant or category.” Jd. § 112(e)(4). Third, Congress required the Administrator to evaluate regulatory options with care and to meet certain conditions before listing EGUs as an HAP source under section 112(c)(1). Specifically: [t]he Administrator shall perform a study of the hazards to public health reasonably anticipated to occur as a result of emissions by [EGUs] of pollutants listed under subsection (b) of this section after imposition of the requirements of this chapter. The Administrator shall report the results of this study to the Congress within 3 years after November 15, 1990. The Administrator shall develop and describe in the Administrator’s report to Congress alternative control strategies for emissions which may warrant regulation under this section. The Administrator shall regulate [EGUs] under this section, if the Administrator finds such regulation is appropriate and necessary after considering the results of the study required by this subparagraph. Id. § 112(n)(1)(A) (emphasis added). 10a The study of public health hazards required by section 112(n)(1)(A) was finally completed in 1998. This study found “a _ plausible link between anthropogenic releases of mercury from industrial and combustion sources in the United States and methylmercury in fish” and that “mercury emissions from [EGUs] may add to the existing environmental burden.” EPA, OFFICE OF AIR QUALITY PLANNING AND STANDARDS, STUDY OF HAZARDOUS AIR POLLUTANT EMISSIONS FROM ELEC. UTIL. STEAM GENERATING UNITS--FINAL REPORT TO CONG. 7-1, 45 (1998). On December 20, 2000, the Administrator announced — in light of the study mandated by section 112(n)(1)(A), as well as subsequent information and consideration of alternative feasible control strategies — that it was “appropriate and necessary” to regulate coal- and oil- fired EGUs under section 112 because, as relevant, mercury emissions from EGUs, which are the largest domestic source of mercury emissions, present significant hazards to public health and _ the environment. Regulatory Finding on the Emissions of Hazardous Air Pollutants From Electric Utility Steam Generating Units, 65 Fed. Reg. 79,825, 79,827 (Dec. 20, 2000) (“2000 Determination”). “As a result the source category for Coal- and QOuil-Fired [EGUs] was added to the lst of source categories under section 112(c)” on December 20, 2000. National Emission Standards for Hazardous Air Pollutants: Revision of Source Category List Under Section 112 of the Clean Air Act (“2002 Notice of Listing”), 67 Fed. Reg. 6521, 6522, 6524 (Feb. 12, 2002). In early 2004, EPA proposed two regulatory alternatives to control emissions from coal- and oil-fired EGUs. The first was similar to EPA’s proposal in 2000 — regulation under section 112 through issuance of Maximum Achievable lla Control Technology standards, see, e.g., CAA § 112(g)(2)(A), or implementation of a cap-and-trade system. The second proposed removing EGUs from the list of HAP sources prepared pursuant to section 112(c)(1) and instead regulating their emissions under section 111.! Proposed National Emission Standards for Hazardous Air Pollutants; and, in the Alternative, Proposed Standards of Performance for New and Existing Stationary Sources: Electric Utility Steam Generating Units, 69 Fed. Reg. 4652, 4659-61, 4683, 4689 (Jan. 30, 2004). After receiving public comment, EPA chose the_ second alternative, announcing in March 2005 that it was removing EGUs from the section 112({c)(1) list, Delisting Rule, 70 Fed. Reg. at 16,002-08, 16,032, and regulating mercury emissions from coal-fired EGUs under section 111, CAMR, 70 Fed. Reg. at 28,610, 28,624-32. EPA justified its decision to delist EGUs by explaining that it “reasonably interprets section 112(n)(1)(A) as providing [] authority to remove coal- and oil-fired units from the section 112(c) list at any 1 Section 111 requires the Administrator to “establish{] . standards of performance,” CAA § 111(b)(1)(B), for pollutants from new sources that in the Administrator's judgment “cause[]. or contribute[] significantly to, air pollution which may reasonably be anticipated to endanger public health or welfare.” Id. § 111(b)(1)(A). “Standards of performance” are designed to limit emissions to reflect “the degree of emission limitation achievable through the application of the best system of emission reduction which (taking into account the cost of achieving such reduction and any nonair quality health and environmental impact and = energy requirements) the Administrator determines has been adequately demonstrated.” Id. § 111(a)(1). Existing sources of pollutants are regulated under section 111(d). 12a time that it makes a negative appropriate and necessary fjding under the section.” Delisting Rule, 70 Fed. Rey. at 16,032. It based this interpretation on the “entirely different structure and predicate for assessing whether [EGUs] should be listed for regulation under section 112” as set forth in section 112(n)(1)(A), id., and on the absence of a temporal “deadline” for deciding “whether regulation of [EGUs was] appropriate and necessary” under section 112, id. at 16,001. It also interpreted “section 112(c)(9) [delisting] criteria... not [to] apply” to EGUs because their inclusion in the list established by section 112(c)(1) was not a “final agency action[],” and claimed, contrary to the 2000 Determination, that “the source category at issue did not meet the statutory criteria for listing at the time of listing.” Jd. at 16,033. Having decided that it possessed the authority to delist EGUs without making the findings required by section 112(c)(9), EPA explained that the delisting of EGUs was justified because their regulation under section 112 was neither “appropriate” nor “necessary.” The potential mercury emissions’ reductions achievable under CAMR figured prominently in EPA’s explanation of its delisting of coal-fired EGUs, id. at 16,005, which EPA promulgated in May 2005. CAMR_ established plant-specific “standards of performance” for mercury emissions from new coal- fired EGUs under section 111(b). 70 Fed. Reg. at 28,613-16. Relying on sections 111(b) and (d), it also established a national mercury emissions cap for new and existing EGUs, allocating each state and certain tribal areas a mercury emissions budget. This was 13a supplemented by a voluntary cap-and-trade program. Id. at 28,616, 28,622, 28,629. IT. New Jersey and fourteen additional States, the Michigan Department of Environmental Quality, the Pennsylvania Department of Environmental Protection, the City of Baltimore (“Government Petitioners”), and various environmental organizations (“Environmental Petitioners”) contend that EPA violated Section 112’s plain text and structure when it did not comply with the requirements of section 112(c)(9) in delisting EGUs. Because we agree, we do not reach their alternative contention that even if this delisting was lawful, EPA was arbitrary and capricious in reversing its determination that regulating EGUs under section 112 was “appropriate and necessary.” Government and Environmental! Petitioners further contend that CAMR is inconsistent with provisions of section 111, and that both the Delisting Rule and CAMR should be vacated. Certain intervenors — including various industry representatives, States, and state agencies —join EPA in urging the lawfulness of the two rules. 2 Upon reconsideration, EPA made no _ substantive change to the Delisting Rule but revised CAMR’s State mercury allocations and the statistical analysis used for new source performance standards; EPA declined to stay CAMR. Revision of December 2000 Clean Air Act Section 112(n) Finding Regarding Electric Utility Steam Generating Units; and Standards of Performance for New and Existing Electric Utility Steam Generating Units: Reconsideration, 71 Fed. Reg. 33,388, 33,388- 89, 33,395-96 (June 9, 2006). l4a The court reviews the challenges to the final rules to determine whether EPA’s promulgation of them was arbitrary or capricious, an abuse of discretion, or otherwise not in accordance with law. See CAA § 307(d)(9)(A), 42 U.S.C. § 7607(d)(9)(A). Challenges to EPA’s interpretation of the CAA itself are governed by the familiar two-pronged test of Chevron, U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837 (1984). Under step ene, the court asks “whether Congress has directly spoken to the... issue.” Id. at 842. If Congress’s intent “is clear, that is the end of the matter; for the court, as well as the agency, must give effect to the unambiguously expressed intent of Congress.” /d. at 842-43. However, if the court determines that “Congress has not directly addressed the precise question at issue,” then, under step two, “the question for the court is whether the agency's answer is based on a permissible construction of the statute.” Id. at 843. The agency’s interpretation need not be the only permissible reading of the _ statute, nor. the interpretation that the court might have originally given the statute. Jd. at 843 n.11. Petitioners contend that once the Administrator determined in 2000 that EGUs should be regulated under Section 112 and listed them under section 112(c)1), EPA had no authority to delist them without taking the steps required under section 112(c)(9). We agree.* 3 Certain intervenors also contend, citing Thomas v. New ‘ork, 802 F.2d 1443, 1446-47 (D.C. Cir. 1986), that the Administrator's determination in December 2000 to list EGUs as a source under section 112(c)(1) was not binding for lack of notice and comment and, consequently, that EPA was never (continued...) 15a Section 112(c)(9) provides that: The Administrator may delete any source category from the [section 112(c)(1) list] . . . whenever the Administrator ... [determines] that emissions from no source in the category or subcategory concerned . . exceed a level which is adequate to protect public health with an ample margin of safety and no adverse environmental effect will result from emissions from any source. [emphasis added] EPA concedes that it listed EGUs under section 112. Thus, because section 112(c)(9) governs the removal of “any source category” (emphasis added) from the section 112(c)(1) list, and nothing in the CAA exempts EGUs from section 112(c)(9), the only way EPA could remove EGUs from the section 112(c)(1) list was by satisfying section 112(c)(9)’s requirements. Yet EPA concedes that it never made the findings section 112(c)(9) would require in order to delist EGUs. EPA’s purported removal of EGUs from the section 112(c)({1) list therefore violated the CAA’s plain text and must be rejected under step one of Chevron. EPA offers several arguments in an attempt to evade section 112(c)(9)’s plain text, but they are not persuasive. First, EPA seeks to reach step two of required to comply with section 112(c)(9)'s delisting process for EGUs. We need not consider this contention, however, because EPA has steadfastly refused to join it. See New York v. Reilly, 969 F.2d 1147, 1154 n.11 (D.C. Cir. 1992); see also Util. Air Regulatory Group v. EPA, No. 01-1074, 2001 WL 936363, at *1 (D.C. Cir. July 26, 2001). 16a Chevron and obtain judicial deference to its interpretation by maintaining that section 112(n)(1) makes _ section 112(c)(9) ambiguous because “(llogically, if EPA makes a determination under section 112(n)(1)(A) that power plants should not be regulated at all under section 112 .. . [then] this ‘determination ipso facto must result in removal of power plants from the section 112(c) list.” Resp’t Br. at 26. But this simply does not follow. Section 112(n)(1) governs how the Administrator decides whether to list EGUs; it says nothing about delisting EGUs, and the plain text of section 112(c)(9) specifies that it applies to the delisting of “any source.” In the context of the CAA, “the word ‘any’ has an expansive meaning.” New York v. EPA, 443 F.3d 880, 885 (D.C. Cir. 2006) (citations omitted); see also id. at 885-86. Moreover, where Congress wished to exempt EGUs from specific requirements of section 112, it said so explicitly. For example, section 112(c)(6) expressly exempts EGUs from the strict deadlines imposed on other sources of certain pollutants. Furthermore, EPA concedes that lhsting EGUs under section 112(c) triggered application of some subparts of section 112, see, e.g., 2002 Notice of Listing, 67 Fed. Reg. at 6521, 6524, 6535 n.b; CAA § 112(c)(2), but provides no persuasive rationale for why the comprehensive delisting process of section 112(c)(9) does not also apply. Its brief states only that previous applications of section 112 provisions in response to EGUs listing were undertaken “based on the fact that [EPA] had made a positive ‘appropriate and necessary’ finding that was still in place. EPA has now reversed that finding.” Resp’t Br. at 28. This explanation deploys the logic of the Queen of Hearts, substituting EPA’s desires for the plain text of section 112(c)(9). Thus, EPA can point to no persuasive evidence suggesting 17a that section 112(c)(9)’s plain text is ambiguous. It is therefore bound by section 112(c)(9) because “for [] EPA to avoid a literal interpretation at Chevron step one, it must show either that, as a matter of historical fact, Congress did not mean what it appears to have said, or that, as a matter of logic and statutory structure, it almost surely could not have meant it,” Engine Mfrs. Ass’n v. EPA, 88 F.3d 1075, 1089 (D.C. Cir. 1996), showings EPA has failed to make. Second, EPA maintains that it possesses authority to remove EGUs from the section 112 list under the “fundamental principle of administrative law that an agency has inherent authority to reverse an earlier administrative determination or ruling where an agency has a principled basis for doing so.” Resp’t Br. at 22 (citing Williams Gas Processing-Gulf Coast Co. v. FERC, 475 F.3d 319, 326 (D.C. Cir. 2006); Dun & Bradstreet Corp. Found. v. USPS, 946 F.2d 189, 193 (2d Cir. 1991)). An agency can normally change its position and reverse a decision, and prior to EPA’s listing of EGUs under section 112(c)(1), nothing in the CAA would have prevented it from reversing its determination about whether it was “appropriate and necessary” to do so. Congress, however, undoubtedly can limit an agency’s discretion to reverse itself, and in section 112(c)(9) Congress did just that, unambiguously limiting EPA’s discretion to remove sources, including EGUs, from the section 112(c)(1) list once they have been added to it. This precludes EPA’s inherent authority claim for “EPA may not construe [a] statute in a way that completely nullifies textually applicable provisions meant to limit its discretion.” Whitman v. Am. Trucking Ass’ns, 531 U.S. 457, 485 (2001). As this court has observed, “when Congress has provided a mechanism capable of 18a rectifying mistaken actions... it is not reasonable to infer authority to reconsider agency action.” Am. Methyl Corp. v. EPA, 749 F.2d 826, 835 (D.C. Cir. 1984). Indeed, EPA’s position would nullify section 112(c)(9) altogether, not just with regard to EGUs, for EPA is unable to explain how, if it were allowed to remove EGUs from the section 112 list without regard to section 112(c)(9), it would not also have the _ authority to remove any other source by ignoring the statutory delisting process. Finally, EPA states in its brief that it has previously removed sources listed under section 112(c) without satisfying the requirements of section 112(c)(9). But previous statutory violations cannot excuse the one now before the court. “[W]Je do not see how merely applying an unreasonable statutory interpretation for several years can transform it into a reasonable interpretation.” F.J. Vollmer Co. uv. Magaw, 102 F.3d 591, 598 (D.C. Cir. 1996). EPA suggests that it would be “anomalous” for it to be forced to await a court order to correct “its own mistake” in listing coal- and oil-fired EGUs as a source under section 112(c)(1). Resp’t Br. at 32; see also id. at 33 (citing Cleveland Nat'l Air Show, Inc. v. DOT, 430 F.3d 757, 765 (6th Cir. 2005)). However Congress was not preoccupied with what EPA considers “anomalous,” but rather with the fact that EPA had failed for decades to regulate HAPs sufficiently. See, e.g., Natl Lime Ass’n, 233 F.3d at 634 (citing S. REP. NO. 101-228, at 128, reprinted in 1990 U.S.C.C.A.N. at 3513). In the context of this congressional concern, EPA’s disbelief that it would be prevented from correcting its own listing “errors” except through section 112(c)(9)’s delisting process or 19a court-sanctioned vacatur cannot overcome the plain text enacted by Congress. Accordingly, in view of the plain text and structure of section 112, we grant the petitions and vacate the Delisting Rule. See Allied-Signal, Inc. v. U.S. Nuclear Regulatory Comm'n, 988 F.2d 146, 150-51 (D.C. Cir. 1993). This requires vacation of CAMR’s regulations for both new and existing EGUs. EPA promulgated the CAMR regulations for existing EGUs under section 111(d), but under EPA’s own interpretation of the section, it cannot be used to regulate sources listed under section 112; EPA thus concedes that if EGUs remain listed under section 112, as we hold, then the CAMR regulations for existing sources must fall. Resp’t Br. at 99, 101-02; see also Delisting Rule, 70 Fed. Reg. at 16,031. EPA promulgated the CAMR regulations for new sources under section 111(b) on the basis that there would be no section 112 regulation of EGU emissions and that the new source performance standards would be accompanied by a national emissions cap and a voluntary cap-and- trade program. See CAMR, 70 Fed. Reg. at 28,608-10, 28,614-15, 28,619, 28,622; see also id. at 28,616. Given that these vital assumptions were incorrect, the court must vacate CAMR’s new = source performance standards and remand them to EPA for reconsideration, for “[s]everance and affirmance of a portion of an administrative regulation is improper if there is ‘substantial doubt’ that the agency would have adopted the severed portion on its own.” Davis County Solid Waste Mgmt. v. EPA, 108 F.3d 1454, 1459 (D.C. Cir. 1997) (citations omitted). In view of our disposition, the court does not reach other contentions of petitioners or intervenors. 20a APPENDIX B December 2000 Regulatory Finding 65 Fed. Reg. 79,825 (December 20, 2000) ENVIRONMENTAL PROTECTION AGENCY [AD-FRL-6919-6] 2060-ZA10 Regulatory Finding on the Emissions of Hazardous Air Pollutants From Electric Utility Steam Generating Units AGENCY: Environmental Protection Agency (EPA). ACTION: Notice of regulatory finding. SUMMARY: This notice presents EPA's finding required by section 112(n)(1)(A) of the Clean Air Act (CAA) as to whether regulation of emissions of hazardous air pollutants (HAP) from fossil fuel-fired electric utility steam generating units (as defined in section 112(a)(8) of the CAA) is appropriate and necessary. This finding is based on the results of EPA's February 1998 "Study of Hazardous Air Pollutant Emissions from Electric Utility Steam Generating Units-Final Report to Congress' (utility RTC), and on information obtained subsequent to the utility RTC concerning HAP emissions to the atmosphere from electric utility steam generating units. In the utility RTC, the EPA indicated that coal- and oil-fired electric utility steam generating units are significant emitters of HAP, including mercury 21a which is emitted from coal-fired units, and which EPA identified as the HAP of greatest concern to public health from the industry. Based on the available information, the Administrator finds that regulation of HAP emissions from coal- and oil-fired electric utility steam generating units under section 112 of the CAA is appropriate and necessary. As a result, this notice adds coal-and oil-fired electric utility steam generating units to the list of source categories under section 112(c) of the CAA. Also in the utility RTC, the EPA indicated that the impacts due to HAP emissions from natural gas-fired electric utility steam generating units were negligible based on the results of the study. The Administrator finds that regulation of HAP emissions from natural gas-fired electric utility steam generating units is not appropriate or necessary. The EPA does not believe that the definition of electric utility steam generating unit found in section 112(a)(8) of the CAA encompasses stationary combustion turbines. Therefore, the finding concerning natural-gas fired electric utility steam generating units does not apply to stationary combustion turbines. ADDRESSES: Docket No. A-92-55, containing information used in development of this notice, is available for public inspection and copying between 8:00 a.m. and 5:30 p.m., Monday through Friday, excluding legal holidays. The docket is located in EPA's Air and Radiation Docket and Information Center, Waterside Mali, Room M-1500, 401 M Street, SW, Washington, DC 20460, or by calling (202) 260- 7548. A reasonable fee may be charged for copying docket materials. 22a FOR FURTHER INFORMATION CONTACT: Mr. William Maxwell, Emission Standards Division (MD- 13), U.S. EPA, Research Triangle Park, North Carolina 27711, telephone number (919) 541-5430, facsimile number (919) 541-5450, electronic mail address . SUPPLEMENTARY INFORMATION: Docket. The docket is an organized file of all the information submitted to or otherwise relied upon by EPA in the development of this regulatory finding. The principal purpose of the docket is to allow interested parties to identify and locate documents that serve as a record of the process engaged in by EPA which resulted in the publication of today's finding. World Wide Web. In addition to being available in the docket, an electronic copy of today's notice will be posted on the Technology Transfer Network's (TTN) policy and guidance information page under "Recent Actions." The TIT'N provides’ information § and technology exchange in various areas of air pollution control. If more information regarding the TTN is needed, call the TTN HELP line at (919) 541-5384. I. What Is the Statutory Authority and Background of This Finding? Today's finding is issued under the authority of section 112(n)(1)(A) and 112(c) of the CAA. Section 112(n)(1)(A) requires that, after considering the results of the study mandated by the same section and reported in the utility RTC, the Administrator determine whether regulation of HAP emissions from electric utility steam generating units 1s appropriate 23a and necessary. The study was initiated following enactment of the 1990 Amendments to the CAA, which included section 112(n)(1)(A). Data were gathered, and the utility RTC was prepared. Section 112(c) provides that the Administrator shall lst categories of sources of the air pollutants contained in the section 112(b) list. The listing of source categories under section 112(c) is a dynamic process. (See "Initial List of Categories of sources under Section 112(c)(1) of the Clean Air Act Amendments of 1990," 57 FR 31576.) Decisions as to the description and scope of source categories listed will be perfected during the course of the rulemaking process for each listed category and will take account of improvements in available information and analysis during the rulemaking. A draft utility RTC was submitted for scientific peer review in July 1995, and, concurrently, was made available for public review (60 FR 35393). A public meeting to obtain comments from the scientific peer review panel was held on July 11-12, 1995 in Research Triangle Park, North Carolina. In addition, a public outreach meeting was held on July 13, 1995 in Durham, North Carolina, at which time the public was invited to present oral comments on its interpretation of the "results of the study." The utility RTC was finalized in February 1998 and released to Congress and the public. In the final utility RTC, the EPA stated that, for the utility industry, mercury from coal-fired electric utility steam generating units was the HAP of greatest concern for public health. To further inform the regulatory finding, the EPA issued an information collection request under the authority of section 114 of the CAA to all coal-fired electric utility steam generating units requesting coal data from such units for calendar year 1999. Certain units were also required to conduct stack tests to 24a evaluate their HAP emissions. In addition, the EPA solicited data from the public through a February 29, 2000 notice (65 FR 10783). Another public meeting was held on June 13, 2000 in Chicago, Illinois, where the public was invited to provide EPA with their views on what the regulatory finding should be (65 FR 18992). Further, the EPA undertook an evaluation of the mercury control performance of various emission control technologies that are either currently in use on electric utility steam generating units for pollutants other than mercury or that could be applied to such units for mercury control. The evaluation was conducted along with other parties, including the Department of Energy (DOE). In addition, at the direction of Congress, the EPA funded the National Academy of Sciences (NAS) to perform an independent evaluation of the available data related to the health impacts of methylmercury and provide recommendations for EPA's reference dose (RfD-the amount of a chemical which, when ingested daily over a lifetime, is anticipated to be without adverse health effects to humans, including sensitive subpopulations). The NAS conducted an 18- month study of the available data on the health effects of methylmercury and provided EPA a report of its findings in July 2000. II. What Has EPA Learned From the Utility RTC and the Subsequent Data- Gathering Activities? The following four sections present a summary of the information and conclusions presented in the utility RTC along with the information obtained subsequent to publishing the utility RTC. 25a A. Health Hazard Assessment The EPA evaluated exposures, hazards, and risks due to HAP emissions from coal-, oil-, and natural gas-fired electric utility steam generating units. Much of the assessment focused on inhalation exposure. However, multipathway exposures (e.g., inhalation plus ingestion) were considered for six HAP (mercury, radionuclides, arsenic, cadmium, lead, and dioxins). The assessment for radionuclides was relatively extensive and included multipathway modeling for all facilities identified in the utility RTC. The analysis for mercury was primarily based on information obtained from EPA's December 1997 "Mercury Study Report to Congress" (mercury RTC) and included a multipathway modeling assessment of mercury from four model electric utility plants. Screening level multipathway exposure modeling analyses were also conducted for arsenic and dioxins. For the other two HAP (cadmium and lead), a qualitative assessment of potential concerns for multipathway exposure was presented; multipathway modeling was not conducted for those two HAP. The methods and results of the analyses are presented in the utility RTC. Based on the assessment of hazards and risks due to emissions of HAP from electric utility steam generating units, mercury is the HAP of greatest concern. Mercury is highly toxic, persistent, and bioaccumulates in food chains. Mercury emitted from electric utility steam generating units (and other sources), primarily in the elemental or divalent forms, is transported through the atmosphere’ and eventually deposits onto land or water bodies (with the divalent form depositing nearer the source than the elemental form). Once deposited, the chemical form of mercury can change (through a methylation 26a process) into methylmercury which is a highly toxic, more bioavailable, form that biomagnifies in the aquatic food chain (e.g., fish). Nearly all the mercury that accumulates in fish is methylmercury. Fish consumption dominates the pathway for human and wildlife exposure to mercury. As of July 2000, 40 States ard American Samoa have issued fish advisories ior mercury. Thirteen of those States have issued advisories for all water bodies in their State, and the other 27 States have issued advisories for over 1,900 specific water bodies. Because the developing fetus is the most sensitive to the effects of methylmercury, the greatest concern is the consumption of mercury contaminated fish by women of childbearing age. Also of particular concern are subsistence fish-eating populations that may be consuming fish from contaminated waterbodies. The EPA estimates that about 7 percent of women of childbearing age (i.e., between the ages of 15 and 44 years) are exposed to methylmercury at levels exceeding its RfD of 0.1 microgram per kilogram body weight per day (0.1 ug/ kg/day). The risk following exposures above the RfD is uncertain, but risk increases with increasing exposure. About 1 percent of women have methylmercury exposures 3 to 4 times the methylmercury RfD. The NAS, in its July 2000 report "Toxicological Effects of Methylmercury," affirmed EPA's assessment of methylmercury toxicity and the level of its RfD. Most of the mercury currently entering U.S. water bodies and contaminating fish is the result of air emissions which, following atmospheric transport, deposit onto watersheds or directly to water bodies. Wastewater discharges also contribute to environmental loadings, but to a much lesser degree than air emissions. Based on modeling conducted for 27a the mercury RTC, the EPA estimates that roughly 60 percent of the total mercury deposited in the U.S. comes from U.S. anthropogenic air emission sources; the percentage is estimated to be even higher in certain regions (e.g., northeast U.S.). The remainder of the mercury deposited from the air comes from natural emission sources, reemissions of historic global anthropogenic mercury releases, and from anthropogenic sources outside the U.S. In the mercury RTC, the EPA concluded that, given the total mass of mercury estimated to be emitted from all anthropogenic sources and EPA's modeling of the atmospheric transport of emitted mercury, coal combustion and waste incineration most likely bear the greatest responsibility for direct anthropogenic mercury deposition to the continental U.S. Mercury emissions from waste incineration (including municipal waste combustors and _ hospital/medical/ infectious waste incinerators) have been declining substantially over the last decade largely due to regulations issued by EPA. Electric utility steam generating units (which are not currently regulated for mercury emissions) are the largest source of mercury emissions in the U.S., estimated to emit about 30 percent of current U.S. anthropogenic emissions. There is a_ plausible link between emissions of mercury from anthropogenic sources (including coal- fired electric utility steam generating units) and methylmercury in fish. Therefore, mercury emissions from electric utility steam generating units are considered a threat to public health and the environment. It is acknowledged that there are uncertainties regarding the extent of the risks due to electric utility mercury emissions. For example, there is no quantification of how much. of the methylmercury in fish consumed by the U.S. 28a population is due to electric utility emissions relative to other mercury sources (e.g., natural and other anthropogenic sources). Nonetheless, the available information indicates that mercury emissions from electric utility steam generating units comprise a substantial portion of the environmental loadings and are a threat to public health and the environment. The EPA believes that it is not necessary to quantify the amount of mercury in fish due to electric utility steam gencrating unit emissions relative to other sources for the purposes of this finding. With regard to the other HAP, arsenic and a few other metals (e.g., chromium, nickel, cadmium) are of potential concern for carcinogenic effects. Although the results of the risk assessment indicate that cancer risks are not high, they are not low enough to eliminate those metals as a potential concern for public health. Dioxins, hydrogen chloride, and hydrogen fluoride are three additional HAP that are of potential concern and may be evaluated further during the regulatory development process. The other HAP studied in the risk assessment do not aprear to be a concern for public health based on the available information. However, because of data gaps and uncertainties, it is possible that future data collection efforts or analyses may identify other HAP of potential concern. B. Emissions In developing the utility RTC, the EPA examined HAP emissions test data acquired by the DOE, electric utility companies and organizations, and EPA itself. Further, using section 114 authority, the EPA obtained data from each coal-fired electric utility unit to update and refine the information on mercury 29a emissions from such units. After evaluating various methods to estimate the emissions, the EPA estimates that the industry emitted 43 tons of mercury in 1999 from 1,149 units at 464 coal-fired plants. The analyses of the data obtained are explained in the utility RTC and in subsequent documentation. Table 1 of this notice presents estimated 1990 and 2010 nationwide HAP emissions from electric utility steam generating units as presented in the utility RTC. The estimates account for projected changes in the population of units, fuel consumption, and control device configurations. Coal- and oil-fired electric utility steam generating units are major sources (as defined in section 112(a){1) of the CAA) of hydrogen chloride and hydrogen fluoride emissions, emit a significant number of the 188 HAP on the section 112(b) list, and are the leading anthropogenic sources of mercury emissions in the U.S. TABLE 1. — SELECTED NATIONWIDE ESTIMATED HAP EMISSIONS | Selected nationwide HAP emissions estimated (tons/year) Natural gas 1990 2010 71 Beryllium 8.2 Cadmium 3.3 3.8 | Chromium 73 87 | Dioxins.......... ..... | 0.000097 | 0.000108 | Formaldehyde Hydrogen chloride 143,000 155,000 2.860 Hydrogen flouride esis _19,500 27,500 | OS a ee 75 87 10.6 5.4 Manganese.........- 164 219 9.3 4.7 Serer 46 60 0.25 0.13 ie cs | weewiewendennes | 393 198 y Be 3.5 For mercury, it was estimated in the utility RTC that the industry emitted approximately 46 tons in 1990 (51 tons in 1994) and was projected to emit approximately 60 tons in 2010 from 1,026 units at 426 coal-fired plants. The new information obtained under section 114 £4authority corroborates’ the emissions estimates. The increase in the number of units over that of the utility RTC results primarily from the identification of additional co-generation facilities meeting the section 112(a)(8) definition. The quality of the 1999 data is considered to be significantly better than that of the data reported in the utility RIC. Specific coal data, including the mercury content, were obtained for each coal-fired unit in the U.S. over the entire year; previously, State-average data were used. In addition, the control performance of existing control devices for each of the three major species of mercury (divalent, elemental, and particulate) were available; for the utility RTC, only total mercury values were available. The new data allowed EPA to significantly refine and improve its analyses and evaluate various methodologies in estimating nationwide mercury emissions from coal- fired electric utility steam generating units. C. Alternative Control Strategies Recent data show the technologies used to control criteria pollutants (particulate matter (PM), nitrogen oxides (NOx) and sulfur dioxide (SO2)) are effective in controlling emissions of nearly all HAP except 3la mercury. In addition, combinations of controls for criteria pollutants can lead to varying levels of control, and in some cases full control, of mercury emissions. The application of technologies used to control mercury emissions in conjunction with technologies used to control other pollutants, an approach called multipollutant control, can substantially reduce or offset the costs of HAP control. Potential strategies for controlling mercury and other HAP emissions include the use of: precombustion controls (e.g., fuel switching, coal switching, coal cleaning); combustion modification methods used to control NOx emissions; flue gas cleaning technologies that can be used to control emissions of criteria pollutants and HAP; and nontraditional controls such as demand _= side management and energy conservation. Conversion of coal- and oil-fired units to natural gas firing effectively eliminates HAP emissions. Although conversion of coal-fired units to oil combustion will decrease emissions of some HAP, including mercury, it could increase emissions of others (especially nickel). Because of the wide variability in the trace metal contents of coals, switching coals generally may not result in consistently reduced HAP emissions. Current methods of coal cleaning remove portions of the trace metals contained within the coal; the average emissions reductions range from approximately 30 percent for mercury to approximately 50 percent for lead. Nontraditional control methods (e.g., demand side management, energy conservation, pollution prevention) have the potential to result in reauced HAP emissions, but the extent to which that is possible is currently uncertain. The nontraditional 32a controls reduce HAP emissions through the avoided generation of HAP rather than by their removal from the exhaust gas stream. Mercury in the flue gas from coal combustion may be present in three different forms. The forms, called species, include elemental mercury, divalent oxidized forms, and mercury adsorbed onto the surface of fly ash or other particles. The capture of mercury is highly dependent on the relative amount of mercury species that are present in the flue gas. Particulate bound mercury can easily be removed in conventional PM emission control devices such as electrostatic precipitators (ESP) and fabric filters (FF). Divalent forms of mercury are generally soluble in water and can be captured in wet scrubbers. Wet flue gas desulfurization (FGD) systems generally capture more than 90 percent of the divalent mercury, which may represent a 20 to 80 percent removal of the total mercury. Elemental mercury is insoluble in water, does not react with alkaline reagents used in FGD systems, and cannot be captured in wet scrubbers. Both the elemental and divalent forms of mercury can be adsorbed onto porous solids (e.g., fly ash, powdered activated carbon, calcium-based acid gas sorbents) for subsequent removal in a PM control device, although elemental mercury is more difficult to adsorb onto solid surfaces than are the divalent forms of mercury. Bituminous coals contain higher concentrations of chlorine and other constituents that promote the oxidation and capture of mercury in conventional air pollution control devices. In contrast, flue gas from the combustion of subbituminous and lignite coals typically have higher amounts of the more difficult to control elemental form of mercury. The available data indicate that installation of low- NOx burners and other combustion modification 33a methods in pulverized coal-fired units may increase the carbon content of the fly ash. Mercury emissions may then be reduced through adsorption onto the fly ash carbon and subsequent capture in the PM control device. The improved mercury capture may come at the expense of slightly higher emissions of organic HAP. Cyclone-fired units emit low amounts of fly ash and reduce the chances of mercury adsorption and capture as particle-bound mercury. Fluidized bed combustion systems typically have high flue gas concentrations of high carbon-content fly ash and high levels of mercury capture in PM emission control devices. Electrostatic precipitators and FF generally remove greater than 90 percent of all trace metallic HAP, with the exception of mercury. They are not effective in reducing emissions of gas- phase HAP, which include trace organic HAP and HAP such as hydrogen chloride and hydrogen fluoride. Mechanical collectors and wet PM scrubbers are not generally effective in reducing HAP emissions. Mechanical collectors capture only HAP that are associated with large particles; fine- particle HAP and gas-phase HAP pass through and are emitted to the atmosphere. Wet PM _ scrubbers are moderately effective in reducing water- soluble HAP but do not effectively reduce HAP emissions associated with fine particulate or hydrophobic volatile organic HAP. Dry scrubbers which employ a spray dryer adsorber (SDA) in conjunction with an ESP or FF are typically very effective in reducing HAP emissions. In SDA systems, water containing an acid gas sorbent is sprayed into a reaction vessel where the acid gases and other pollutants are reacted to form solid particles that can be collected in a downstream PM control device. Some coal-fired utilities that use 34a bituminous coal in pulverized coal-fired units have shown mercury capture in excess of 90 percent in SDA/FF systems. Wet FGD systems are capable of capturing nearly all HAP other than mercury and more than 90 percent of the divalent and particle bound mercury. Mercury removal in wet FGD systems may range from less than 20 to more then 80 percent, depending on the type of coal and combustion system used. Mercury capture in such units can be improved by the use of catalysts or reagents to increase the conversion of elemental mercury to soluble divalent forms of mercury. Recent research indicates that mercury removal may be enhanced through the use of oxidizing agents (that convert elemental mercury to the ionized form) or through the use of sorbents (that adsorb the mercury onto solid particles). Enhanced mercury removal may also be achieved through greater use of multipollutant control options. Recent data indicate that the use of selective catalytic or noncatalytic reduction for NOx control may also oxidize mercury and, therefore, enhance mercury control. Thus, EPA's analysis of potential HAP control strategies allows EPA to conclude that, during the regulatory development process, effective controls for mercury and other HAP can be shown to be feasible. D. Conclusions The following conclusions summarize those presented in the utility RTC and those based on the information subsequently obtained and are based on the currently available’ scientific data. The conclusions, as a whole, support a finding that regulation of coal-and oil- fired electric utility steam 35a generating units for HAP is appropriate and necessary. 1. Fossil fuel-fired electric utility steam generating units (coal-and oil- fired units in particular) emit a significant number of the 188 HAP included on the section 112(b) list. Estimated growth in the number of, and fuel use by, electric utility steam’ generating units (particularly coal-fired units) during the period 1990 to 2010 will result in an overall increase in HAP emissions. The new data gathered to date corroborate the previous nationwide mercury emissions estimate and confirm that electric utility steam generating units are the largest anthropogenic source of mercury in the U.S. 2. Mercury is highly toxic, persistent, and bioaccumulates in the food chain. Mercury emissions are transported through the atmosphere and eventually deposit onto land or water bodies. The deposition can occur locally near the source or at long distances (e.g., hundreds or thousands of miles away). The air transport and deposition patterns of mercury emissions depend on various factors, including: The form of mercury released (divalent mercury deposits nearer to the source whereas elemental mercury enters the global pool and deposits farther from the source); the stack height and meteorology; and chemical transformations during transport in the atmosphere. Once deposited, the chemical form of mercury can change into methylmercury (through a methylation process), which is a more toxic form that biomagnifies up the aquatic food chain. Fish consumption dominates the pathway for human and wildlife exposure to mercury. There is a plausible link between emissions of mercury from anthropogenic sources (including coal-fired electric utility units) and methylmercury in fish. 36a 3. Neurotoxicity is the health effect of greatest concern with methylmercury exposure. Methylmercury has a relatively long half-life in the human body (averaging about 70 to 80 days). Dietary methylmercury is almost completely absorbed into the blood and distributed to all tissues including the brain; it also readily passes through the placenta to the fetus and fetal brain. The developing fetus is considered most sensitive to the effects from methylmercury; therefore, women of childbearing age are the population of greatest concern. Offspring born of women exposed to relatively high levels of methylmercury during pregnancy have exhibited a variety of developmental neurological abnormalities, including delayed developmental milestones, cerebral palsy, and reduced neurological test scores. Studies suggest that far lower levels of in utero exposures have resulted in delays and deficits in learning abilities. It is also possible that children exposed after birth are also potentially more sensitive to the toxic effects of methylmercury than adults because their nervous systems are still developing. 4. Extrapolating from high-dose exposure incidents, the EPA derived an RfD for methylmercury of 0.1 ug/kg/day based on developmental neurological effects observed in children born to mothers exposed to methylmercury during their pregnancy. The NAS study determined that EPA's RID is a scientifically justifiable level for the protection of public health. At the RID or below, exposures are expected to be safe. The risks following [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_IA40386020_0696%3A1. Public record. Not legal advice.