614 F. App'x 517
D.C. Cir.2015Background
- EPA set PM2.5 baseline and increment in 2010 Increment Rule under 42 U.S.C. § 7476(a).
- North Carolina challenged the Increment Rule as misapplying PM2.5 under § 7476(a) vs § 7476(f).
- Petition for review was filed on December 26, 2013, over three years after the 2010 rule’s publication.
- North Carolina invoked the after-arising-grounds exception under § 7607(b) to extend the deadline.
- EPA’s denial of North Carolina’s petition for reconsideration (Dec. 28, 2013) was also reviewed for timeliness under § 7607(d)(7)(B).
- The court held the petitions untimely and did not publish the disposition.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether petition is timely under §7607(b) | North Carolina relies on after-arising-grounds exception. | Untimely given deadline and late grounds. | Untimely; petition dismissed. |
| Whether NRDC decision creates after-arising grounds | NRDC (Jan 4, 2013) constitutes after-arising grounds. | Even if NRDC is after-arising, filing was beyond 60 days of NRDC. | Untimely; after-arising grounds window not met. |
| Whether reconsideration petition timeliness under §7607(d)(7)(B) | Seek reconsideration within time after NRDC decision. | EPA did not abuse discretion in denying reconsideration as untimely. | Untimely; agency did not abuse discretion. |
Key Cases Cited
- NRDC v. EPA, 706 F.3d 428 (D.C. Cir. 2013) (after-arising grounds consideration (timeliness))
- American Road & Transp. Builders Ass’n v. EPA, 588 F.3d 1109 (D.C. Cir. 2009) (time limits for after-arising grounds petitions)
- Abbott Laboratories v. Gardner, 387 U.S. 136 (Supreme Court 1967) (ripeness considerations for administrative challenges)
- AT&T v. FCC, 363 F.3d 504 (D.C. Cir. 2004) (agency denial of reconsideration reviewed for abuse of discretion)