Despite its lip-service to “judicial review,” EPA has thus stayed “the effectiveness of [a] rule during [its] reconsideration.” 42 U.S.C. § 7607(d)(7)(B). That has two ramifications.

See SC Memo at 23 (quoting State Farm, 463 U.S. at 43). Dissatisfied with the limited authority Congress gave it to stay the Industrial Boilers and CISWI rules for three months pending reconsideration, 42 U.S.C. § 7607(d)(7)(B), EPA chose to issue the Indefinite Stay under the APA pending “judicial review.” 76 Fed. Reg.

This is information to which they are legally entitled. 42 U.S.C. § 7607(d)(1), (d)(3)- (6). EPA must provide this information because the statute requires EPA to review and make determinations based on particular information, and thus publicly disclose such information as part of these rulemakings.

of Petroleum Retailers v. EPA, No. 97-1486, 1997 WL 634550, at *1 (D.C. Cir. Sept. 25, 1997) (per curiam) (sua sponte dismissing a Clean Air Act petition for review due to an absence of jurisdiction under 42 U.S.C. § 7607(b)). 19 Case 3:13-cv-03236-K Document 13 Filed 09/20/13 Page 26 of 33 PageID 95 Riverkeeper is, in this case, a matter of deference to a court of superior jurisdiction.

These procedures are the exclusive means for judicial review. 42 U.S.C. § 7607(e). The CAA “‘channels review of final EPA action exclusively to the courts of appeals, regardless of how the grounds for review are framed.’

These procedures are the exclusive means for judicial review. 42 U.S.C. § 7607(e). The CAA “‘channels review of final EPA action exclusively to the courts of appeals, regardless of how the grounds for review are framed.’

at 4 (emphasis added).12 Other Duke and industry statements similarly confirm Duke’s knowledge of the actual-to-projected-actual test under the 1980 rules.13 In short, Duke and the rest of the utility industry have long understood both the plain meaning of the 1980 rules and EPA’s 1991 interpretive rule confirming the existence of the actual-to-projected-actual test, and they are barred from challenging that test now in this enforcement action. See 42 U.S.C. § 7607(b); General Motors, 363 F.3d at 451 (trade association’s “letters make clear that industry was aware of EPA’s regulatory interpretation, and [chose not to] mount[] a judicial challenge to that interpretation”). Duke had its chance to challenge the PSD regulations’ focus on utilization in New York I. It’s second attempt to do so was rejected by the Supreme Court in Duke III. Its third bite at the apple is foreclosed by Section 307(b).

3 Section 307(b)(1) also provides generally that the United States Circuit Court of Appeals for the District of Columbia is vested with exclusive jurisdiction if such final action is “based on a determination of national scope or effect.” 42 U.S.C. § 7607(b)(1). Any final action “which is locally or regionally applicable may be filed only in the Court of Appeals for the appropriate circuit.”

3 EPA is mistaken regarding the Act’s reconsideration provision, which is § 307(d)(7)(B) not § 307(d)(5)(B), and provides for administrative reconsideration not “judicial reconsideration.” 42 U.S.C. § 7607(d)(7)(B). Regarding EPA’s claim that re-proposal would be preferable to reconsideration, see SC Opp.

Although EPA cannot control the actual publication date in the Federal Register, publication generally occurs within two to four weeks after the proposed rule has been delivered to the Office of the Federal Register. Under CAA section 307(d)(5), 42 U.S.C. § 7607(d)(5), after the proposal has been published, EPA must hold a public hearing, which EPA typically schedules approximately 2 weeks after publication of the proposal. Decl.