42 U.S.C. § 7607 : US Code - Section 7607: Administrative proceedings and judicial review

Search 42 U.S.C. § 7607 : US Code - Section 7607: Administrative proceedings and judicial review

(a) Administrative subpenas; confidentiality; witnesses
In connection with any determination under section 7410(f) of
this title, or for purposes of obtaining information under section
7521(b)(4) (!1) or 7545(c)(3) of this title, any investigation,
monitoring, reporting requirement, entry, compliance inspection, or
administrative enforcement proceeding under the (!2) chapter
(including but not limited to section 7413, section 7414, section
7420, section 7429, section 7477, section 7524, section 7525,
section 7542, section 7603, or section 7606 of this title),,(!3)
the Administrator may issue subpenas for the attendance and
testimony of witnesses and the production of relevant papers,
books, and documents, and he may administer oaths. Except for
emission data, upon a showing satisfactory to the Administrator by
such owner or operator that such papers, books, documents, or
information or particular part thereof, if made public, would
divulge trade secrets or secret processes of such owner or
operator, the Administrator shall consider such record, report, or
information or particular portion thereof confidential in
accordance with the purposes of section 1905 of title 18, except
that such paper, book, document, or information may be disclosed to
other officers, employees, or authorized representatives of the
United States concerned with carrying out this chapter, to persons
carrying out the National Academy of Sciences' study and
investigation provided for in section 7521(c) of this title, or
when relevant in any proceeding under this chapter. Witnesses
summoned shall be paid the same fees and mileage that are paid
witnesses in the courts of the United States. In case of contumacy
or refusal to obey a subpena served upon any person under this
subparagraph, the district court of the United States for any
district in which such person is found or resides or transacts
business, upon application by the United States and after notice to
such person, shall have jurisdiction to issue an order requiring
such person to appear and give testimony before the Administrator
to appear and produce papers, books, and documents before the
Administrator, or both, and any failure to obey such order of the
court may be punished by such court as a contempt thereof.
(b) Judicial review
(1) A petition for review of action of the Administrator in
promulgating any national primary or secondary ambient air quality
standard, any emission standard or requirement under section 7412
of this title, any standard of performance or requirement under
section 7411 of this title, any standard under section 7521 of this
title (other than a standard required to be prescribed under
section 7521(b)(1) of this title), any determination under section
7521(b)(5) (!1) of this title, any control or prohibition under
section 7545 of this title, any standard under section 7571 of this
title, any rule issued under section 7413, 7419, or under section
7420 of this title, or any other nationally applicable regulations
promulgated, or final action taken, by the Administrator under this
chapter may be filed only in the United States Court of Appeals for
the District of Columbia. A petition for review of the
Administrator's action in approving or promulgating any
implementation plan under section 7410 of this title or section
7411(d) of this title, any order under section 7411(j) of this
title, under section 7412 of this title,,(!3) under section 7419 of
this title, or under section 7420 of this title, or his action
under section 1857c-10(c)(2)(A), (B), or (C) of this title (as in
effect before August 7, 1977) or under regulations thereunder, or
revising regulations for enhanced monitoring and compliance
certification programs under section 7414(a)(3) of this title, or
any other final action of the Administrator under this chapter
(including any denial or disapproval by the Administrator under
subchapter I of this chapter) which is locally or regionally
applicable may be filed only in the United States Court of Appeals
for the appropriate circuit. Notwithstanding the preceding sentence
a petition for review of any action referred to in such sentence
may be filed only in the United States Court of Appeals for the
District of Columbia if such action is based on a determination of
nationwide scope or effect and if in taking such action the
Administrator finds and publishes that such action is based on such
a determination. Any petition for review under this subsection
shall be filed within sixty days from the date notice of such
promulgation, approval, or action appears in the Federal Register,
except that if such petition is based solely on grounds arising
after such sixtieth day, then any petition for review under this
subsection shall be filed within sixty days after such grounds
arise. The filing of a petition for reconsideration by the
Administrator of any otherwise final rule or action shall not
affect the finality of such rule or action for purposes of judicial
review nor extend the time within which a petition for judicial
review of such rule or action under this section may be filed, and
shall not postpone the effectiveness of such rule or action.
(2) Action of the Administrator with respect to which review
could have been obtained under paragraph (1) shall not be subject
to judicial review in civil or criminal proceedings for
enforcement. Where a final decision by the Administrator defers
performance of any nondiscretionary statutory action to a later
time, any person may challenge the deferral pursuant to paragraph
(1).
(c) Additional evidence
In any judicial proceeding in which review is sought of a
determination under this chapter required to be made on the record
after notice and opportunity for hearing, if any party applies to
the court for leave to adduce additional evidence, and shows to the
satisfaction of the court that such additional evidence is material
and that there were reasonable grounds for the failure to adduce
such evidence in the proceeding before the Administrator, the court
may order such additional evidence (and evidence in rebuttal
thereof) to be taken before the Administrator, in such manner and
upon such terms and conditions as to (!4) the court may deem
proper. The Administrator may modify his findings as to the facts,
or make new findings, by reason of the additional evidence so taken
and he shall file such modified or new findings, and his
recommendation, if any, for the modification or setting aside of
his original determination, with the return of such additional
evidence.
(d) Rulemaking
(1) This subsection applies to -
(A) the promulgation or revision of any national ambient air
quality standard under section 7409 of this title,
(B) the promulgation or revision of an implementation plan by
the Administrator under section 7410(c) of this title,
(C) the promulgation or revision of any standard of performance
under section 7411 of this title, or emission standard or
limitation under section 7412(d) of this title, any standard
under section 7412(f) of this title, or any regulation under
section 7412(g)(1)(D) and (F) of this title, or any regulation
under section 7412(m) or (n) of this title,
(D) the promulgation of any requirement for solid waste
combustion under section 7429 of this title,
(E) the promulgation or revision of any regulation pertaining
to any fuel or fuel additive under section 7545 of this title,
(F) the promulgation or revision of any aircraft emission
standard under section 7571 of this title,
(G) the promulgation or revision of any regulation under
subchapter IV-A of this chapter (relating to control of acid
deposition),
(H) promulgation or revision of regulations pertaining to
primary nonferrous smelter orders under section 7419 of this
title (but not including the granting or denying of any such
order),
(I) promulgation or revision of regulations under subchapter VI
of this chapter (relating to stratosphere and ozone protection),
(J) promulgation or revision of regulations under part C of
subchapter I of this chapter (relating to prevention of
significant deterioration of air quality and protection of
visibility),
(K) promulgation or revision of regulations under section 7521
of this title and test procedures for new motor vehicles or
engines under section 7525 of this title, and the revision of a
standard under section 7521(a)(3) of this title,
(L) promulgation or revision of regulations for noncompliance
penalties under section 7420 of this title,
(M) promulgation or revision of any regulations promulgated
under section 7541 of this title (relating to warranties and
compliance by vehicles in actual use),
(N) action of the Administrator under section 7426 of this
title (relating to interstate pollution abatement),
(O) the promulgation or revision of any regulation pertaining
to consumer and commercial products under section 7511b(e) of
this title,
(P) the promulgation or revision of any regulation pertaining
to field citations under section 7413(d)(3) of this title,
(Q) the promulgation or revision of any regulation pertaining
to urban buses or the clean-fuel vehicle, clean-fuel fleet, and
clean fuel programs under part C of subchapter II of this
chapter,
(R) the promulgation or revision of any regulation pertaining
to nonroad engines or nonroad vehicles under section 7547 of this
title,
(S) the promulgation or revision of any regulation relating to
motor vehicle compliance program fees under section 7552 of this
title,
(T) the promulgation or revision of any regulation under
subchapter IV-A of this chapter (relating to acid deposition),
(U) the promulgation or revision of any regulation under
section 7511b(f) of this title pertaining to marine vessels, and
(V) such other actions as the Administrator may determine.
The provisions of section 553 through 557 and section 706 of title
5 shall not, except as expressly provided in this subsection, apply
to actions to which this subsection applies. This subsection shall
not apply in the case of any rule or circumstance referred to in
subparagraphs (A) or (B) of subsection 553(b) of title 5.
(2) Not later than the date of proposal of any action to which
this subsection applies, the Administrator shall establish a
rulemaking docket for such action (hereinafter in this subsection
referred to as a "rule"). Whenever a rule applies only within a
particular State, a second (identical) docket shall be
simultaneously established in the appropriate regional office of
the Environmental Protection Agency.
(3) In the case of any rule to which this subsection applies,
notice of proposed rulemaking shall be published in the Federal
Register, as provided under section 553(b) of title 5, shall be
accompanied by a statement of its basis and purpose and shall
specify the period available for public comment (hereinafter
referred to as the "comment period"). The notice of proposed
rulemaking shall also state the docket number, the location or
locations of the docket, and the times it will be open to public
inspection. The statement of basis and purpose shall include a
summary of -
(A) the factual data on which the proposed rule is based;
(B) the methodology used in obtaining the data and in analyzing
the data; and
(C) the major legal interpretations and policy considerations
underlying the proposed rule.
The statement shall also set forth or summarize and provide a
reference to any pertinent findings, recommendations, and comments
by the Scientific Review Committee established under section
7409(d) of this title and the National Academy of Sciences, and, if
the proposal differs in any important respect from any of these
recommendations, an explanation of the reasons for such
differences. All data, information, and documents referred to in
this paragraph on which the proposed rule relies shall be included
in the docket on the date of publication of the proposed rule.
(4)(A) The rulemaking docket required under paragraph (2) shall
be open for inspection by the public at reasonable times specified
in the notice of proposed rulemaking. Any person may copy documents
contained in the docket. The Administrator shall provide copying
facilities which may be used at the expense of the person seeking
copies, but the Administrator may waive or reduce such expenses in
such instances as the public interest requires. Any person may
request copies by mail if the person pays the expenses, including
personnel costs to do the copying.
(B)(i) Promptly upon receipt by the agency, all written comments
and documentary information on the proposed rule received from any
person for inclusion in the docket during the comment period shall
be placed in the docket. The transcript of public hearings, if any,
on the proposed rule shall also be included in the docket promptly
upon receipt from the person who transcribed such hearings. All
documents which become available after the proposed rule has been
published and which the Administrator determines are of central
relevance to the rulemaking shall be placed in the docket as soon
as possible after their availability.
(ii) The drafts of proposed rules submitted by the Administrator
to the Office of Management and Budget for any interagency review
process prior to proposal of any such rule, all documents
accompanying such drafts, and all written comments thereon by other
agencies and all written responses to such written comments by the
Administrator shall be placed in the docket no later than the date
of proposal of the rule. The drafts of the final rule submitted for
such review process prior to promulgation and all such written
comments thereon, all documents accompanying such drafts, and
written responses thereto shall be placed in the docket no later
than the date of promulgation.
(5) In promulgating a rule to which this subsection applies (i)
the Administrator shall allow any person to submit written
comments, data, or documentary information; (ii) the Administrator
shall give interested persons an opportunity for the oral
presentation of data, views, or arguments, in addition to an
opportunity to make written submissions; (iii) a transcript shall
be kept of any oral presentation; and (iv) the Administrator shall
keep the record of such proceeding open for thirty days after
completion of the proceeding to provide an opportunity for
submission of rebuttal and supplementary information.
(6)(A) The promulgated rule shall be accompanied by (i) a
statement of basis and purpose like that referred to in paragraph
(3) with respect to a proposed rule and (ii) an explanation of the
reasons for any major changes in the promulgated rule from the
proposed rule.
(B) The promulgated rule shall also be accompanied by a response
to each of the significant comments, criticisms, and new data
submitted in written or oral presentations during the comment
period.
(C) The promulgated rule may not be based (in part or whole) on
any information or data which has not been placed in the docket as
of the date of such promulgation.
(7)(A) The record for judicial review shall consist exclusively
of the material referred to in paragraph (3), clause (i) of
paragraph (4)(B), and subparagraphs (A) and (B) of paragraph (6).
(B) Only an objection to a rule or procedure which was raised
with reasonable specificity during the period for public comment
(including any public hearing) may be raised during judicial
review. If the person raising an objection can demonstrate to the
Administrator that it was impracticable to raise such objection
within such time or if the grounds for such objection arose after
the period for public comment (but within the time specified for
judicial review) and if such objection is of central relevance to
the outcome of the rule, the Administrator shall convene a
proceeding for reconsideration of the rule and provide the same
procedural rights as would have been afforded had the information
been available at the time the rule was proposed. If the
Administrator refuses to convene such a proceeding, such person may
seek review of such refusal in the United States court of appeals
for the appropriate circuit (as provided in subsection (b) of this
section). Such reconsideration shall not postpone the effectiveness
of the rule. The effectiveness of the rule may be stayed during
such reconsideration, however, by the Administrator or the court
for a period not to exceed three months.
(8) The sole forum for challenging procedural determinations made
by the Administrator under this subsection shall be in the United
States court of appeals for the appropriate circuit (as provided in
subsection (b) of this section) at the time of the substantive
review of the rule. No interlocutory appeals shall be permitted
with respect to such procedural determinations. In reviewing
alleged procedural errors, the court may invalidate the rule only
if the errors were so serious and related to matters of such
central relevance to the rule that there is a substantial
likelihood that the rule would have been significantly changed if
such errors had not been made.
(9) In the case of review of any action of the Administrator to
which this subsection applies, the court may reverse any such
action found to be -
(A) arbitrary, capricious, an abuse of discretion, or otherwise
not in accordance with law;
(B) contrary to constitutional right, power, privilege, or
immunity;
(C) in excess of statutory jurisdiction, authority, or
limitations, or short of statutory right; or
(D) without observance of procedure required by law, if (i)
such failure to observe such procedure is arbitrary or
capricious, (ii) the requirement of paragraph (7)(B) has been
met, and (iii) the condition of the last sentence of paragraph
(8) is met.
(10) Each statutory deadline for promulgation of rules to which
this subsection applies which requires promulgation less than six
months after date of proposal may be extended to not more than six
months after date of proposal by the Administrator upon a
determination that such extension is necessary to afford the
public, and the agency, adequate opportunity to carry out the
purposes of this subsection.
(11) The requirements of this subsection shall take effect with
respect to any rule the proposal of which occurs after ninety days
after August 7, 1977.
(e) Other methods of judicial review not authorized
Nothing in this chapter shall be construed to authorize judicial
review of regulations or orders of the Administrator under this
chapter, except as provided in this section.
(f) Costs
In any judicial proceeding under this section, the court may
award costs of litigation (including reasonable attorney and expert
witness fees) whenever it determines that such award is
appropriate.
(g) Stay, injunction, or similar relief in proceedings relating to
noncompliance penalties
In any action respecting the promulgation of regulations under
section 7420 of this title or the administration or enforcement of
section 7420 of this title no court shall grant any stay,
injunctive, or similar relief before final judgment by such court
in such action.
(h) Public participation
It is the intent of Congress that, consistent with the policy of
subchapter II of chapter 5 of title 5, the Administrator in
promulgating any regulation under this chapter, including a
regulation subject to a deadline, shall ensure a reasonable period
for public participation of at least 30 days, except as otherwise
expressly provided in section (!5) 7407(d), 7502(a), 7511(a) and
(b), and 7512(a) and (b) of this title.