Opinion
IP99-1692-C-M/S.
October 24, 2002
ORDER ON MOTION FOR SUMMARY JUDGMENT ON CONGRESSIONAL REVIEW OF AGENCY RULEMAKING
This matter is before the Court on Defendant Southern Indiana Gas and Electric Company's ("SIGECO") Motion for Summary Judgment on the United States' ("the Government") claims that it violated the Clean Air Act ("CAA"), 42 U.S.C. § 7401, et seq. The issue presented in SIGECO's motion is whether or not the Government violated the Congressional Review of Agency Rule Making Act, 5 U.S.C. § 801, et seq. ("CRA"), by establishing a new agency rule without submitting a report to Congress about the rule as required by the CRA. The parties have fully briefed their arguments, and the motion is now ripe for ruling.
I. FACTUAL BACKGROUND
A brief summary of the facts is necessary to give background for the current motion. In support of its position that the Environmental Protection Agency ("EPA") has recently changed its policy regarding the applicability of the CAA's "New Source Review" ("NSR") rules to existing utility sources, SIGECO offers declarations made by former government officials and consultants. The following former highly-placed government officials have made declarations: James Schlesinger, former Secretary of Energy; Walter Barber, former director of EPA's Office of Air Quality Planning and Standards; Joseph Cannon, former EPA Administrator for the Office of Air and Radiation; and Kenneth Schweers, a former consultant at ICF Kaiser, a firm EPA used for technical support during the development of the Title IV program. The declarants testify about what the NSR rules were intended to cover, and how the EPA interpreted the NSR provisions after they were initially enacted. SIGECO provides these declarations as evidence that the EPA had a different policy regarding the NSR rules prior to this enforcement action, and maintains that the EPA has recently changed its NSR policies, which should have been reported to Congress pursuant to the CRA. Because the Court ultimately agrees with the Government that the declarations are not relevant or admissible, it is not necessary to elaborate further on the details of the former officials' recollections.
See SIGECO's Exhibits in Support of Motion for Summary Judgment Regarding the Congressional Review of Agency Rulemaking Act.
II. STANDARDS A. SUMMARY JUDGMENT
As stated by the Supreme Court, summary judgment is not a disfavored procedural shortcut, but rather is an integral part of the federal rules as a whole, which are designed to secure the just, speedy, and inexpensive determination of every action. See Celotex Corp. v. Catrett, 477 U.S. 317, 327 (1986). See also United Ass'n of Black Landscapers v. City of Milwaukee, 916 F.2d 1261, 1267-68 (7th Cir. 1990), cert. denied, 111 S.Ct. 1317 (1991). Motions for summary judgment are governed by Rule 56©) of the Federal Rules of Civil Procedure, which provides in relevant part:
The judgment sought shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.
Once a party has made a properly-supported motion for summary judgment, the opposing party may not simply rest upon the pleadings but must instead submit evidentiary materials which "set forth specific facts showing that there is a genuine issue for trial." FED. R. CIV. P. 56(e). A genuine issue of material fact exists whenever "there is sufficient evidence favoring the nonmoving party for a jury to return a verdict for that party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986). The nonmoving party bears the burden of demonstrating that such a genuine issue of material fact exists. See Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586-87 (1986); Oliver v. Oshkosh Truck Corp., 96 F.3d 992, 997 (7th Cir. 1996), cert. denied, 520 U.S. 1116 (1997). It is not the duty of the Court to scour the record in search of evidence to defeat a motion for summary judgment; rather, the nonmoving party bears the responsibility of identifying the evidence upon which she relies. See Bombard v. Fort Wayne Newspapers, Inc., 92 F.3d 560, 562 (7th Cir. 1996). When the moving party has met the standard of Rule 56, summary judgment is mandatory. See Celotex, 477 U.S. at 322-23; Shields Enters., Inc. v. First Chi. Corp., 975 F.2d 1290, 1294 (7th Cir. 1992).
In evaluating a motion for summary judgment, the Court should draw all reasonable inferences from undisputed facts in favor of the nonmoving party and should view the disputed evidence in the light most favorable to the nonmoving party. See Estate of Cole v. Fromm, 94 F.3d 254, 257 (7th Cir. 1996), cert. denied, 519 U.S. 1109 (1997). The mere existence of a factual dispute, by itself, is not sufficient to bar summary judgment. Only factual disputes that might affect the outcome of the suit in light of the substantive law will preclude summary judgment. See Anderson, 477 U.S. at 248; JPM Inc. v. John Deere Indus. Equip. Co., 94 F.3d 270, 273 (7th Cir. 1996). Irrelevant or unnecessary facts do not deter summary judgment, even when in dispute. See Clifton v. Schafer, 969 F.2d 278, 281 (7th Cir. 1992). "If the nonmoving party fails to establish the existence of an element essential to [her] case, one on which [she] would bear the burden of proof at trial, summary judgment must be granted to the moving party." Ortiz v. John O. Butler Co., 94 F.3d 1121, 1124 (7th Cir. 1996), cert. denied, 519 U.S. 1115 (1997).
B. CAA'S NEW SOURCE REVIEW RULES
Although the Government alleges violations of the federally approved Indiana State Implementation Plan in addition to the PSD and NSPS violations, those claims are not relevant to this motion.
When Congress enacted the Clean Air Act in 1970, and subsequently amended it in 1977, it determined that existing pollution sources would be "grandfathered." In other words, existing sources would not be required to immediately install technology to comply with the CAA limitations on pollution emissions. However, Congress did not grant existing sources permanent immunity from the restrictions of the CAA; subsequent "modifications" of existing sources would be required to comply with the New Source Review programs. 42 U.S.C. § 7411(a)(4). The CAA defines modification as "any physical change" that increases total emissions. Id. However, the EPA regulations exempt some activities from the broader definition of modification. The exemption relevant to the present case is the routine maintenance exemption. The regulations provide in relevant part:
The following shall not, by themselves, be considered modifications under this part:
(1) Maintenance, repair, and replacement which the Administrator determines to be routine for a source category . . .40 C.F.R. § 52.21(b)(2)(iii).
In this enforcement action, the Government alleges that SIGECO made CAA "modifications" during the 1990s at three electrical generating units at Culley Station. SIGECO claims its actions were exempt as routine maintenance, and consequently, not modifications subject to the NSR requirements. Thus, a central issue in this case is the scope of the routine maintenance exception.
When the CAA was enacted in 1970, it included the New Source Performance Standards program ("NSPS"), which governs emission of air pollutants from new sources. The Prevention of Significant Deterioration program ("PSD") was added in the 1977 Amendments to the CAA to ensure that relatively unpolluted areas, like Warrick County, would not allow a decline of air quality to the minimum level permitted by the CAA. The NSPS and the PSD are collectively referred to as New Source Review. As stated earlier, the NSR programs apply not only to new sources of air emissions, but also to modifications of existing sources. In this motion, SIGECO argues that the EPA has made a major change in its interpretation of how NSR rules apply to existing sources of pollution.
C. CONGRESSIONAL REVIEW OF AGENCY RULEMAKING ACT
The CRA was enacted on March 29, 1996, as part of the Contract with America Advancement Act ("CAAA") to provide a legislative check on administrative agency actions. The CAAA requires that before any "rule" promulgated by a federal agency can take effect, a copy of the rule, along with an accompanying report, must be submitted to Congress and the Comptroller General. 5 U.S.C. § 801(a)(1)(A); 5 U.S.C. § 801(2)(A). The Administrator of the Office of Information and Regulatory Affairs of the Office of Management and Budgets ("OMB") is required to make a finding about whether or not a rule is "major," basing the determination on a number of factors measuring the rule's effect on the economy. Id. § 804(2). If the rule is deemed to be "major," then the Comptroller General is required to submit a report about it to committees from both the House of Representatives and the Senate. Id. § 801(2)(A). Congress can then issue a "joint resolution" disapproving the proposed rule. Id. § 802. Rules that are not major "shall take effect as otherwise provided by law after submission to Congress." Id. § 801(a)(1)(4).
The CAAA adopts the Administrative Procedure Act's ("APA") definition of "rule," with certain limited exceptions. Id. § 804. ("The term `rule' has the meaning given such term in section 551 . . ."). Section 551(4) of the APA provides:
"[R]ule" means the whole or a part of an agency statement of general or particular applicability and future effect designed to implement, interpret, or prescribe law or policy or describing the organization, procedure, or practice requirements of an agency and includes the approval or prescription of or the future of rates, wages, corporate or financial structures or reorganizations thereof, prices, facilities, appliances, services or allowances therefor or of valuations, costs or accounting, or practices bearing on any of the foregoing . . .5 U.S.C. § 551(4).
The CAAA contains one, brief provision on judicial review. § 805 provides: "No determination, finding, action, or omission under this chapter shall be subject to judicial review." 5 U.S.C. § 805.
III. DISCUSSION A. JUDICIAL REVIEW OF EPA'S FAILURE TO SUBMIT RULE TO CONGRESS UNDER 5 U.S.C. § 805
Before responding to the substance of SIGECO's motion, the Government argues that this Court lacks jurisdiction to review any actions or omissions by the EPA for the purpose of assessing compliance with the CRA. The CRA provides: "No determination, finding, action, or omission under this chapter shall be subject to judicial review." 5 U.S.C. § 805. In the Government's view, this language precludes any court not only from reviewing Congressional findings about an agency rule after it was submitted pursuant to the CRA, but also prevents judicial scrutiny of an agency's failure to report a rule to Congress in the first place. SIGECO, on the other hand, asserts that Congress intended a narrower construction of 5 U.S.C. § 805. According to SIGECO, the judicial review provision of the CRA bars a court's review of Congressional findings required under the CRA, but does not preclude a court from determining whether an agency rule is in effect that should have been reported to Congress pursuant to the CRA.
The Government points the Court to one district court case that has considered this precise issue. In Tex. Sav. Cmty. Bankers Ass'n v. Fed. Hous. Fin. Bd., 1998 WL 842181, (W.D.Tex.), aff'd, 201 F.3d 551 (5th Cir. 2000), the plaintiffs argued that the defendant violated the CRA by failing to submit a report of a new rule to Congress. See id. at *8. The district court, however, concluded that the statute barred judicial review of the defendant's alleged "omission" to submit a report pursuant to the CRA. See id. ("The plaintiffs argue § 805 only forecloses review of any `determination, finding, action, or omission' by Congress. But the statute provides for no judicial review of any `determination, finding, action, or omission under this chapter,' not `by Congress under this chapter.' The Court must follow the plain English. Apparently, Congress seeks to enforce the [CRA] without the able assistance of the courts."). Id. n. 15.
The Court's own research revealed only one other case that has considered this issue, which was decided after the parties submitted their briefs on the current motion. The District Court for the Southern District of Ohio, in a recent EPA enforcement action similar to the instant action, also concluded that the plain language of the statute left the court without jurisdiction to review an agency's purported failure to report a new rule to Congress. Although the court cited Texas Savings approvingly, the court also based its decision to strike the defendant's CRA claim on its doubt that the enforcement action constituted rulemaking covered by the CRA. See United States v. Am. Elec. Power Serv. Corp., 2002 WL 1900067, at *14 (S.D.Ohio).
This Court respectfully disagrees with Texas Savings and American Electric and finds the language of the CRA judicial review provision to be ambiguous. As this Court reads 5 U.S.C. § 805, ("No determination, finding, action, or omission under this chapter shall be subject to judicial review"), it is susceptible to two plausible meanings: (1) as Texas Savings and American Electric concluded, Congress did not intend for courts to have any judicial review of an agency's compliance with the CRA; or (2) Congress only intended to preclude judicial review of Congress' own determinations, findings, actions, or omissions made under the CRA after a rule has been submitted to it for review. Under the first interpretation, which Texas Savings and American Electric adopted, agencies could evade the strictures of the CRA by simply not reporting new rules, and courts would be barred from reviewing their lack of compliance. This result would be at odds with the purpose of the CRA, which was to provide a check on administrative agencies' power to set policies and essentially legislate without Congressional oversight. The CRA has no enforcement mechanism, and to read it to preclude a court from reviewing whether an agency rule is in effect that should have been reported would render the statute ineffectual.
Moreover, the language of the statute precludes judicial review of a "determination, finding, action, or omission under this chapter . . ." Agencies do not make findings and determinations under this chapter; Congress, on the other hand, is required to make a number of findings and determinations under the CRA. Therefore, it is logical to interpret the judicial preclusion language as barring review of the determinations, findings, actions, or omissions made by Congress after a rule is submitted by an agency, but not extending the bar of judicial scrutiny to questions of whether or not an agency rule is in effect that should have been reported to Congress in the first place.
Because there is a "genuine ambiguity in the statute," Bd. of Trade of the City of Chi. v. Sec. and Exch. Comm'n, 187 F.3d 713, 720 (7th Cir. 1999), the Court will consider the legislative record. The legislative history of the CRA confirms the limited reach of the preclusion of judicial review. The sponsers of the CRA commented:
The Court acknowledges that the lack of formal legislative history for the CRA makes reliance on this joint statement troublesome. However, Representative Hyde explicitly stated that the joint statement "will serve as the equivalent of a statement of managers." 142 Cong. Rec.H2987. 3000 (daily ed. Mar. 28, 1996). In any event, this Court reached its conclusion about the limited scope of the judicial review provision of the CRA based on the text of the statute and overall purpose of the Act. The legislative history only serves to further reinforce the Court's conclusion.
Section 805 provides that a court may not review any congressional or administrative "determination, finding, action, or omission under this chapter." Thus, the major rule determinations made by the Administrator of the Office of Information and Regulatory Affairs Office of Management and Budget are not subject to judicial review. Nor may a court review whether Congress complied with the congressional review procedures under this chapter.
Thus, the legislative record buttresses the "limited scope" interpretation of the CRA's judicial review provision; the comments focus of the preclusion of review of determinations made by the OMB and Congress under the CRA, not whether or not an agency's decision not to submit a rule in the first place is reviewable. The sponsers of the CRA also explained, "[t]he limitation on judicial review in no way prohibits a court from determining whether a rule is in effect." No other mention of the judicial review provision is made in the legislative history.
The Government also contends that the plain meaning of 5 U.S.C. § 805 is particularly evident when compared to the judicial review provision from the Regulatory Flexibility Act ("RFA"). Prior to its amendment in 1996 as part of the CAAA, section 611(a)-(b) of the RFA provided:
(a) Except as otherwise provided in subsection (b), any determination by an agency concerning the applicability of any of the provisions of this chapter to any action of the agency shall not be subject to judicial review.
(b) Any regulatory flexibility analysis prepared under sections 603 and 604 of this title and the compliance or noncompliance of the agency with the provisions of this chapter shall not be subject to judicial review.
When the CAAA was enacted in 1996, it included both the CRA and an amendment to 5 U.S.C. § 611 of the RFA. Reversing the previous version quoted above that precluded judicial review, the amendment to the RFA specifically provided for judicial review of agency compliance with the RFA.
According to the Government, the RFA amendment to provide for judicial review shows that Congress knew how to provide for judicial review of agency actions if that is what it intended. The Court draws the opposite conclusion by viewing the language of the RFA amendment together with the provision it replaced. The prior version of § 611(a), quoted above, is the precise issue this Court is deciding with regard to the CRA. If Congress wanted to bar judicial review of an agency's determination concerning the applicability of any of the provisions of the CRA, it would have clearly done so, as it had with the prior version of the RFA. Instead, Congress limited its judicial review preclusion by referring to determinations, findings, actions and omissions made under the CRA. Immediately preceding § 805, Congress enumerated a number of determinations, findings, and actions that the OMB and Congressional committees would be required to make under the CRA, and this Court concludes that Congress was referring back to those duties when it enacted the CRA judicial review provision. Thus, this Court concludes that it has jurisdiction to review whether an agency rule is in effect that should have been reported to Congress pursuant to the CRA.
B. EFFECT OF CAA'S JUDICIAL REVIEW PROVISION
The Government also argues that if the Court accepts SIGECO's argument that the EPA's interpretation was a new rule, this Court does not have jurisdiction over this motion because the CAA expressly reserves jurisdiction over final agency action to Courts of Appeal. 42 U.S.C. § 7607(b). Under the CAA, agency actions that could have been reviewed in Courts of Appeal "shall not be subject to judicial review in civil or criminal proceedings for enforcement." 42 U.S.C. § 7607(b)(2).
SIGECO responds that because it could not have obtained prior judicial review under § 7607(b)(1), it is not barred from alleging improper agency rulemaking now. The Court agrees with SIGECO. In this motion, SIGECO alleges that on November 3, 1999, the date of the filing of this enforcement action, a major shift in EPA policy occurred that constituted improper rulemaking. To support its contention that the EPA has advanced a new policy, SIGECO cites an EPA expert report prepared for this litigation, and an applicability determination letter sent to another utility company by the EPA after the filing date of this enforcement action. SIGECO could not have challenged these in the Seventh Circuit. To the extent that these documents constitute a new EPA law, the position was never officially promulgated by the Administrator, nor was it published in the Federal Register, and the Court concludes that they do not constitute final agency action under section 7607 of Title 42. See United States v. Zimmer Paper Prod., Inc., 733 F. Supp. 1265, 1269-70 (S.D.Ind. 1989) ("[Section 7607(b)] deals with judicial review of various air quality rules and standards that are formally promulgated, published, or otherwise officially noticed by the Administrator.").
C. IS EPA'S INTERPRETATION A NEW RULE PROMULGATED AFTER MARCH 1996?
Because the Court has determined it has jurisdiction to consider this alleged CRA violation, it must decide if the EPA has promulgated a new rule or policy as defined by the CRA. However, the CRA only applies to new policies or rules promulgated after its March 1996 effective date; thus, the CRA is only applicable if a new EPA rule came into effect after that date. In this motion, SIGECO asserts that EPA's "new" interpretation of the routine maintenance exemption, illustrated by the filing of this action in November 1999, is a new rule or policy promulgated after March 1996 that should have been reported to Congress. According to SIGECO, EPA's new view of this exemption would impose NSR requirements that "would require significant and expensive pollution control retrofits to virtually all coal-fired generating units." SIGECO Memo in Support of Motion for Summary Judgment on CRA at 11. The Government claims that the EPA has never changed its interpretation of the routine maintenance exception and, therefore, was under no duty to report a new rule or policy under the CRA.
The CRA incorporates the APA's definition of rule with some limited exceptions.
1. EPA's Pre-1996 Interpretation of Routine Maintenance and NSR
SIGECO offers the testimony of four highly-placed government officials and consultants to establish EPA's long-standing policy with respect to the applicability of NSR to existing sources. The Government contends that these declarations are inadmissible for a number of reasons, and claims that they do not assist the Court in ruling on the motion. The Court agrees with the Government, and excludes the testimony by these four experts under Rule 702 of the Federal Rules of Evidence.
As the Supreme Court noted in Kumho Tire Co., Ltd. v. Carmichael, the Daubert reliability inquiry is "a flexible one." Kumho Tire Co., Ltd. v. Carmichael, 526 U.S. 137, 150, 119 S.Ct. 1167 (1999) (quoting Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579, 593 (1993)). The objective of a district court's "gatekeeping" function "is to ensure the reliability and relevancy of expert testimony." Kumho Tire, 526 U.S. at 152. This is a case where the Daubert factors are not particularly helpful to the Court in determining the admissibility of these experience-based experts. See id. at 150. However, the Court still must perform its "gatekeeping" function, and will determine whether the declarations are relevant and reliable based on the nature of the issue before the Court. See id.
The bulk of the testimony offered by these experts is not relevant to the Court's consideration of this motion. They explain the political and policy background that existed when Congress initially passed the Clean Air Act, and the conditions and compromises that surrounded it. See generally Dec. of James Schlesinger. They also assert that they never heard about the types of NSR issues raised in this enforcement action while they worked with or for the EPA, and are surprised by the current enforcement action. See, e.g., Cannon Dec. at 8. However, none of this information establishes what the law was with respect to the NSR rules, and does not aid this Court in determining the EPA's pre-1996 interpretation of the routine maintenance exception. Many portions of the declarations are akin to legislative history, and the Court will not resort to legislative history when it has the benefit of unambiguous statutory language and case law that establish the law with respect to the NSR rules. The Court is hesitant to consider the politics and compromises that went into a statute, especially when the testimony comes ten or twenty years after the fact from paid declarants.
Moreover, the declarations are essentially being offered to explain the law to the Court. SIGECO contests this, but the declarants clearly opine on the applicability of the NSR rules to existing sources, and this is a question of legal interpretation of the CAA and its accompanying regulations. As the Seventh Circuit held in Bammerlin v. Navistar Int'l Transp. Corp., 30 F.3d 898, (7th Cir. 1994), "[t]he meaning of federal regulations is not a question of fact, to be resolved by the jury after a battle of experts. It is a question of law, to be resolved by the court." Bammerlin, 30 F.3d at 900-01 (citing Harbor Ins. Co. v. Cont'l Bank, 922 F.2d 357, 366 (7th Cir. 1990); Specht v. Jensen, 853 F.2d 805 (10th Cir. 1988) (en banc); United States v. Baskes, 649 F.2d 471, 478-79 (7th Cir. 1980). But cf. United States v. Bilzerian, 926 F.2d 1285, 1294-95 (2nd Cir. 1991). Although there may be instances when former government employees' testimony will assist a court in determining the scope of a regulation, this is not one of those instances, and the Court will rely instead upon the statutory and regulatory language of the CAA, and the Seventh Circuit's decision in Wis. Elec. Power Co. v. Reilly, 893 F.2d 901, (7th Cir. 1990) ("WEPCO").
It is clear from the language of the CAA that it was, in fact, meant to treat existing sources differently from new sources. However, the plain language of the CAA did not give the utility industry a permanent exemption from the NSR rules. The NSR requirements apply not only to new sources constructed after the enactment of the CAA, but also to modifications of sources existing at the time of the enactment. Indeed, section 7411(a)(2) provided that NSR would apply to:
any stationary source, the construction or modification of which is commenced after the publication of regulations (or, if earlier, proposed regulations) prescribing a standard of performance under this section which will be applicable to such source.42 U.S.C. § 7411(a)(2) (emphasis added). Congress then defined modification as:
any physical change in, or change in the method of operation of, a stationary source which increases the amount of any air pollutant emitted by such source of which results in the emission of any air pollutant not previously emitted.42 U.S.C. § 7411(a)(4). The plain language of the statute makes the NSR rules applicable to existing sources, which include utility stations like Culley Station, if they are modified. If the CAA was never meant to apply to existing sources of pollution, Congress would not have included modifications of existing sources within the ambit of the NSR coverage.
In this motion and other pending motions, the parties contest vigorously how to interpret the Seventh Circuit's decision in WEPCO. The Court will discuss WEPCO in more detail in subsequent motions. However, for purposes of this motion, it is relevant to note a point in WEPCO about which both parties agree — the Seventh Circuit clearly applied the EPA's fact-intensive test, considering the nature, extent, cost, and frequency of an action, to determine if a modification fit the contours of the routine maintenance exemption. Moreover, WEPCO provides a pre-1996 example of the EPA enforcing NSR requirements on an existing utility source for proposed modifications.
Summary
In sum, the statutory language makes it clear that the NSR requirements apply not only to new sources of pollution, but to existing sources upon modification. The routine maintenance exception exempts certain actions from the CAA definition of modification, effectively shielding those actions from the NSR requirements. The EPA and Seventh Circuit have applied a fact-intensive, common-sense approach to determine whether an action qualifies for the routine maintenance exception, taking into account the nature, extent, purpose, and cost of the action.
2. EPA's Post-1996 Interpretation of Routine Maintenance and NSR
SIGECO suggests that an expert report prepared for this litigation by an EPA expert witness, Alan Michael Hekking ("Hekking Report"), and an NSR applicability letter written by an EPA office to Detroit Edison ("Detroit Edison letter") in 2000 illustrate EPA's radical change in policy. Gov't Exs. 75, 4. The Government responds that it has never changed its interpretation of the routine maintenance exception over the years, and to the extent the Hekking Report evidences a departure from their policies, his views as an engineering expert are not necessarily the legal views of the EPA. Moreover, the Government asserts that the Detroit Edison letter is consistent with their long-held interpretation of the routine maintenance exemption — an interpretation that was validated by the Seventh Circuit in WEPCO.
The Hekking Report is a technical, factual analysis of the challenged projects at Culley Station by an engineer hired by the Government. Gov't Ex. 75. It is not appropriate or necessary for the Court to analyze every aspect of the Hekking Report and determine if it agrees with its conclusions. The current motion only requires the Court to decide if it represents a shift in policy that constitutes a new rule for purposes of the CRA. The Hekking Report generally applies the same EPA test used by the EPA in WEPCO, considering the cost, frequency, nature and extent of the modifications to arrive at a finding of whether or not they qualify for the routine maintenance exception. To the extent that there are any differences between the Hekking Report and the EPA's pre-1996 interpretation of the NSR, he is a private citizen hired by the Government to prepare a report for litigation, and his report cannot be considered a new EPA rule.
The Detroit Edison letter was the EPA response to a request by Detroit Edison for an NSR applicability determination regarding proposed replacement projects at the company's power plant. EPA concluded that Detroit Edison's changes would not be a "modification" for purposes of the CAA, and, consequently, that Detroit Edison could proceed with the project without first obtaining a PSD permit. However, the EPA based this determination on Detroit Edison's assurance that the projects would not increase emissions, rejecting the company's claim that the construction was exempt as routine maintenance.
As observed earlier, NSR only applies where there is both a physical change and increased emissions due to the change. In the Detroit Edison letter, the EPA concluded that the proposed work would constitute a nonroutine physical change, but the NSR permitting requirements would not apply because EPA could not conclude, based on Detroit Edison's submissions, that emissions would increase.
SIGECO cites the Detroit Edison letter for the proposition that EPA's current view is "that any project that maintains a unit's generating capacity, results in fewer breakdowns, or results in more efficient or reliable operations is presumptively subject to PSD and NSPS [i.e., NSR]." SIGECO Memo in Support at 11. However, the Court's review of the Detroit Edison letter, and the accompanying analysis, reveals no such categorical conclusions. Instead, the EPA applied the WEPCO test to the facts of the Detroit Edison project:
Detroit Edison claims that the Dense Pack project is eligible for the exclusion for routine maintenance, repair, and replacement. The determination of whether a proposed physical change is "routine" is a case-specific determination which takes into consideration the nature, extent, purpose, frequency, and cost of the work, as well as other relevant factors.
Gov't Ex. 4 at 2. EPA then considered the facts of the case in light of nature, extent, frequency and cost of the work, and concluded that the proposed change was a nonroutine physical change. The Court concludes that the Detroit Edison letter does not represent the kind of departure from WEPCO and the language of the CAA that SIGECO ascribes to it, and it does not constitute a new, post-1996 rule under the CRA. Thus, the Court DENIES SIGECO'S Motion for Summary Judgment on Congressional Review of Agency Rulemaking.
IV. CONCLUSION
For the reasons discussed herein, the Court finds that SIGECO has failed to demonstrate that EPA has changed its interpretation of the law. Accordingly, the Court DENIES SIGECO's Motion for Summary Judgment regarding the Congressional Review of Agency Rulemaking Act.
IT IS SO ORDERED this ___ day of October, 2002.