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Utility Air Regulatory Group v. EPA

ELR Citation: 33 ELR 20159
Nos. No. 01-1204, (D.C. Cir., 02/28/2003)

The court denies an electric utility association's petition to review the U.S. Environmental Protection Agency's (EPA's) interpretation of its state and federal operating permit program regulations. According to EPA, the regulations allow permit-issuing authorities to enhance the conditions included in operating permits by imposing emission monitoring requirements on a case-by-case basis to assure compliance with federal emission standards. The association argued that EPA's interpretation—which it says is manifested in an Agency permit instruction manual—effectively, and without required notice and comment, amends operating permit rules EPA promulgated in 1992 and 1996. Alternatively, the association asserts that the Agency’s interpretation of the regulations is unauthorized under the Clean Air Act. The association, however, lacks standing. Although it identifies several instances in which EPA has applied the interpretation it seeks to have overturned, it does not specify how any particular action has injured it or its members. Further, the manual is an Agency policy statement and in no way binds the Agency or regulated entities. In addition, even if the association had standing, the claim that it has raised is not ripe for judicial review. EPA is currently undertaking a rulemaking to amend and clarify the federal and state operating permits program regulations, and it would be a waste of judicial resources for the court to reach the merits of the association’s petition while the rulemaking is pending.

Lauren E. Freeman
Hunton & Williams
1900 K St. NW, Washington DC 20006
(202) 955-1500

Counsel for Respondent
Christopher S. Vaden
Environment and Natural Resources Division
U.S. Department of Justice, Washington DC 20530
(202) 514-2000