National Mining Association v. United States Environmental Protection Agency

Opinion Per Curiam.

This is a petition for review of an order of the Environmental Protection Agency implementing the 1990 amendments to § 112 of the Clean Air Act. Petitioners are General Electric Company and four trade associations: (1) National Mining Association, which represents companies that produce metal, coal, and minerals, and that manufacture mining equipment; (2) American Forest and Paper Association, which represents companies that make pulp, paper, paperboard, and solid wood; (3) Chemical Manufacturers Association, which represents companies that manufacture industrial chemicals; and (4) American Petroleum Institute, which represents companies engaged in the petroleum industry. We deny the petition for review with respect to the issues raised by General Electric, National Mining Association, and American Forest and Paper Association, but grant it with respect to Chemical Manufacturers Association and American Petroleum Institute’s challenge.

I

In 1990, as part of its comprehensive overhaul of the Clean Air Act, Pub.L. No. 91-604, *1353 84 Stat. 1676 (1970), Congress revised § 112 of the Act, which regulates emissions of hazardous air pollutants. Pub.L. No. 101-549, 104 Stat. 2399, 2531-84 (1990). Dissatisfied with EPA’s health-based regulation of hazardous air pollutants under the 1970 program, 1 S.Rep. No. 228, 101st Cong., 1st Sess. 128 (1989), U.S.Code Cong. & Admin.News 1990, 3385, Congress replaced this approach with a detailed, technology-based regulatory scheme. The 1990 amendments to § 112 establish an initial list, which EPA may periodically revise, of 189 hazardous air pollutants. 42 U.S.C. § 7412(b)(l)-(3). EPA must publish a list of “categories and subcategories” of “major sources” and certain “area sources” that emit these pollutants. 42 U.S.C. § 7412(e). For each listed “category or subcategory of major sources and area sources” of hazardous air pollutants, § 112(d) of the Act directs EPA to promulgate emission standards. 42 U.S.C. § 7412(d)(1).

Under the Act, “major sources” of hazardous air pollutants are potentially subject to stricter regulatory control than are “area sources.” 2 For example, major sources must comply with technology-based emission standards requiring the maximum degree of reduction in emissions EPA deems achievable, often referred to as “maximum achievable control technology” or MACT standards. 3 42 U.S.C. § 7412(d)(1) — (2). In order to obtain an operating permit under title Y of the Act, §§ 501-507, major sources must comply with extensive monitoring, reporting and record-keeping requirements. 42 U.S.C. §§ 7661-76611 Further, § 112(g) generally conditions the modification, construction or reconstruction of a major source on the source’s meeting MACT emission limitations. 42 U.S.C. § 7412(g).

“Area sources” of hazardous air pollutants are not necessarily subject to such stringent regulation. EPA need not list all “categories and subcategories” of area sources, 42 U.S.C. § 7412(e)(3), 4 and it does not have to establish emission standards for unlisted area sources, 42 U.S.C. § 7412(d)(1). For listed area sources, EPA may choose to promulgate emission standards requiring only “generally available control technologies or management practices.” 42 U.S.C. § 7412(d)(5). These standards can be less rigorous than those required for major sources under 42 U.S.C. *1354 § 7412(d)(1). S.Rep. No. 228, supra, at 172. Area sources are not subject to title V permitting requirements, or to § 112(g)’s restrictions on modification, construction and reconstruction of their facilities.

In July 1992, pursuant to § 112(c)(1), EPA published an initial list of categories of sources that emit hazardous air pollutants, 57 Fed.Reg. 31,576 (1992), and almost seventeen months later, it published a schedule for promulgation of emission standards for these listed source categories, as required by § 112(e), 58 Fed.Reg. 63,941 (1993). In August 1993, in order to “eliminate the need to repeat general information and requirements within each [emission] standard,” EPA proposed a rule codifying the “procedures and criteria needed to implement” emission standards for hazardous air pollutants. 58 Fed. Reg. 42,760, 42,760 (1993). It promulgated a final rule, which is the subject of this dispute, adopting these general provisions on March 16, 1994. 59 Fed.Reg. 12,408 (1994).

Among other things, the general provisions rule implements § 112(a)(l)’s definition of “major source.” The rule defines “major source” in terms nearly identical to those in § 112(a)(1) of the Clean Air Act:

Major source means any stationary source or group of stationary sources located within a contiguous area and under common control that emits or has the potential to emit considering controls, in the aggregate, 10 tons per year or more of any hazardous air pollutant or 25 tons per year or more of any combination of hazardous air pollutants, unless the Administrator establishes a lesser quantity, or in the case of radionuclides, different criteria from those specified in this sentence.

59 Fed.Reg. at 12,433-34 (to be codified at 40 C.F.R. § 63.2). A “stationary source” is “any building, structure, facility or installation which emits or may emit any air pollutant.” Id. An “area source [is] any stationary source ... that is not a major source.” Id. The preambles to the proposed and final rules, and other definitions adopted in the final rule explain in greater detail how EPA plans to identify major sources.

Petitioners challenge three aspects of EPA’s implementation of the definition of “major source.” First, National Mining Association and American Forest and Paper Association (collectively referred to as “National Mining Association”) and General Electric question EPA’s requiring the aggregation of all hazardous air emissions within a plant site — instead of only those emissions from equipment in similar industrial categories — in a § 112 major source determination. Second, National Mining Association challenges EPA’s requiring the inclusion of “fugitive emissions” in a source’s aggregate emissions in determining whether the source is major. Third, Chemical Manufacturers Association and American Petroleum Institute (collectively referred to as “Chemical Manufacturers Association”) contend that EPA overstepped its regulatory authority by permitting a source to reduce its “potential to emit” only with “federally enforceable” emission controls and limitations.

II

EPA promulgated the rule challenged here in accordance with the special rulemaking provisions of 42 U.S.C. § 7607(d). EPA rules that are “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law” or in excess of EPA’s “statutory jurisdiction, authority, or limitations” must be set aside. 42 U.S.C. § 7607(d)(9). With respect to alleged procedural errors in EPA’s promulgation of a rule, these will 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.” 42 U.S.C. § 7607(d)(8).

A

General Electric and National Mining Association have similar arguments against the final rule’s implementation of § 112(a)(1). Both maintain that EPA may not, in determining whether a site is a major source, include emissions from all facilities on a contiguous plant site under common control. These petitioners assert that, for purposes of major source determinations, EPA may aggregate emissions from different facilities on *1355 a contiguous plant site under eon. non control only when the facilities fall within a similar industrial classification. General Electric says EPA must aggregate emissions on a “source category” basis; 5 National Mining Association contends that EPA may combine emissions only if the emitting facilities fall within the same two-digit Standard Industrial Classification (SIC) Code. 6

In the preamble to the final rule, 7 EPA made clear that in determining whether a source is major, emissions from all sources of hazardous air pollutants within a plant site must be aggregated, so long as the sources are geographically adjacent and under common control. 59 Fed.Reg. at 12,412. As a result, if the total annual emissions of hazardous air pollutants from a plant site exceed the designated thresholds, each source emitting pollutants at the site must comply with the stricter MACT emission standards applicable to sources under § 112(d)(2), and with other requirements applicable to major sources.

Petitioners read § 112(a)(1) more restrictively. In their view, EPA’s approach will impermissibly regulate “minor facilities” that happen to be located at an industrial site with annual emissions of hazardous air pollutants that, in the aggregate, exceed the major source thresholds. See Brief for General Electric at 19. They contend that EPA may require aggregation of emissions from sources only if those sources fall within a single source category — General Electric’s argument, or the same two-digit SIC Code— National Mining Association’s contention. It follows, according to petitioners, that a source must comply with regulatory requirements applicable to major sources only if it belongs to some group of sources at an industrial site emitting, in the aggregate, more than the major source threshold. Under petitioners’ theories, it is possible that only some of a site’s sources would have to comply with the regulatory requirements applicable to major sources, including the stricter emission limitations of § 112(d)(2). Other sources of hazardous air pollutants would be regulated as area sources, possibly subject to less stringent emission standards or to none at all. 42 U.S.C. § 7412(e)(5).

EPA rejected petitioners’ methods of implementing “major source.” With respect to General Electric’s source category definition, EPA acknowledged that “[m]ore than one source category on the EPA’s source category list may be represented within a plant that is a major source” of hazardous air pollutants, as is the case for a large chemical manufacturing complex. 59 Fed.Reg. at 12,-411; see also 57 Fed.Reg. at 31,578 (“a large plant ... would clearly be a ‘major source,’ but would also comprise multiple source categories”). Congress intended, according to EPA, “that all portions of a major source be subject to MACT [emission standards] regardless of the number of source categories into which the facility is divided.” 59 Fed. Reg. at 12,411. “Thus, the EPA will set one or more MACT standards for a major source, and sources within that major source will be covered by the standard(s), regardless of whether, when standing alone, each one of *1356 those regulated sources would be major.” Id. EPA also rejected the SIC Code approach to implementing “major source,” advanced here by National Mining Association. Because § 112(a)(1) does not refer to SIC Codes, EPA reasoned that Congress intended major sources of hazardous air pollutants to “encompass entire contiguous ... plant sites without being subdivided according to industrial classifications.” 59 Fed.Reg. at 12,412. A separation of emission sources by SIC Codes “would be an artificial division of sources that, in reality, all contribute to public exposure around a plant site.” Id.

If § 112(a)(1) is viewed in isolation, EPA’s reading of the provision is not simply consistent with the provision; it is nearly compelled by the statutory language. Section 112(a)(1) states that a “group of stationary sources” need meet only three conditions to be termed a “major source”: (1) sources within the group must be “located within a contiguous area”; (2) they must be “under common control”; and (3) in the aggregate, they must emit or, considering controls, have the potential to emit 10 or more tons per year of a single hazardous air pollutant or 25 or more tons per year of any combination of hazardous air pollutants. Section 112(a)(1) says nothing about combining emissions only from sources within the same source categories or SIC Codes. In this respect, EPA’s definition of “major source,” set forth in the preamble to the final rule, is faithful to the language of § 112(a)(1).

Petitioners ask us to look beyond the language of § 112(a)(1). In the first of several loosely connected arguments, General Electric recites fragments from § 112’s other provisions, including: (1) § 112(e)(1), which directs EPA to publish “a list of all categories and subcategories of major sources and area sources”; (2) § 112(d)(1), which directs EPA to establish emission standards “for each category or subcategory of major sources and area sources”; and (3) § 112(j)(2), which describes what an operator of a “major source in [a] category” must do if EPA does not promulgate an emission standard for that “category of major sources.” From these portions of § 112, General Electric leaps to the conclusion that “major source must be defined “with reference to’ (and cannot be broader than) the source category defined by EPA for § 112 regulation.” Brief for General Electric at 16.

General Electric’s logic is hard to grasp. Rather than supporting General Electric, the provisions the company invokes, read in full and in context, tend to support EPA’s implementation of “major source” without reference to source categories. Section 112 directs EPA to perform certain tasks on a category-wide basis — it is to identify categories of major and area sources of hazardous air pollutants (§ 112(c)(1)), and it must promulgate category-wide emission standards for these sources (§ 112(d)(2)). It by no means follows that because the statute in several provisions uses the terms “major source” and “category” in the same sentence — which is all General Electric’s argument amounts to — EPA must read a source category restriction into § 112(a)(l)’s definition of “major source.” Nor does § 112(c) somehow prohibit EPA from applying § 112(d)’s MACT emission limitations “to minor sources in a listed category of major sources without complying with the statutory requirements for listing area sources.” See Brief for General Electric at 18. Section 112(c) simply requires the listing of all major sources and those area sources presenting adverse health or environmental effects. 42 U.S.C. § 7412(c)(1), (3). Neither § 112(c) nor § 112(d) says anything about EPA’s including “minor sources” in a “listed category of major sources.” 8

Taking its argument one step further, General Electric contends that EPA’s definition *1357 of “major source” will lead to “anomalous and unreasonable results” when other parts of §112 are implemented. Brief for General Electric at 19. General Electric sees a tension between the final rule’s definition of “major source” and § 112(g), which describes requirements for constructing, reconstructing or modifying a major source. 42 U.S.C. § 7412(g). The idea is that under § 112(g), an operator of a small emissions unit at a large facility might have to install MACT in order to modify or reconstruct the unit, even though the unit would not be subject to a MACT standard under § 112(d). We agree with EPA that General Electric’s argument reflects a misreading of § 112, which draws no distinction between “major source” for purposes of § 112(d) and § 112(g). If a small emissions unit is a “major source” because it is located at a plant that emits or, considering controls, has the potential to emit 10 or more tons per year of a single hazardous air pollutant or 25 or more tons per year of any combination of hazardous air pollutants, it is subject to all the regulatory requirements imposed on major sources, including those of § 112(d) and § 112(g). 9

In addition to alleging inconsistencies between EPA’s definition of “major source” and § 112’s other provisions, General Electric insists that EPA’s implementation of § 112(a)(1) is at odds with other aspects of the Clean Air Act. It points to § 112(a)(3)’s provision that “stationary source” has the same meaning as it does in § 111 of the Act, 42 U.S.C. § 7411, which deals with performance standards applicable to new sources. In Alabama Power Co. v. Costle, 636 F.2d 323, 395-96 (D.C.Cir.1979), General Electric notes, this court rejected EPA’s definition of “stationary source” as used in § 111(a)(3) as a “combination” of “buildings, structures, facilities, or installations.” 10 To be sure, Alabama Power struck down EPA’s defining “source” for purposes of its preventing significant deterioration in air quality program (established pursuant to 42 U.S.C. §§ 7470-7479) 11 as any “structure, building, facility equipment, installation or operation (or combination thereof).” 636 F.2d at 394, 395-96 (italics added). But that was because EPA had unlawfully expanded § 111(a)(3), which defines “stationary source” as “any building, structure, facility or installation which emits or may emit any air pollutant,” without reference to combinations of these things. 636 F.2d at 395. That is not the case here. Section 112(a)(1) expressly provides that a “major source” is “any stationary source or group of stationary sources ” with emissions exceeding certain limits. 42 U.S.C. § 7412(a)(1) (italics added). Indeed, one could infer from § 112(a)(1) a congressional intent, in the context of hazardous air pollution regulation, to override Alabama Power. 12

We also reject General Electric’s final argument that EPA’s implementation of § 112(a)(1) was procedurally flawed. EPA sufficiently addressed the effect of its definition of “major source” on various aspects of the hazardous air pollution program, and it was explicit enough about binding effect of the final rule’s definition on future actions. In both the proposed and final rules, EPA *1358 extensively discussed the implications of the general provisions, including its definition of “major source,” on other aspects of § 112. See 59 Fed.Reg. at 12,414-18; 58 Fed.Reg. at 42,764-68. The agency further explained that it intended the general provisions to be “the minimum generic requirements necessary for implementation” of emission standards for hazardous air pollutants. 59 Fed. Reg. at 12,415. To the extent EPA finds it appropriate to override specific aspects of the final rule in future rulemakings for specific source categories, “EPA will describe in the [new] subpart exactly which requirements of the General Provisions are applicable to the specific source category and which have been overridden.” Id. at 12,408-09. Even if General Electric were correct about EPA’s alleged procedural defects, the company has not shown why these supposed mistakes were so serious that, had they not been made, there is a “substantial likelihood that the rule would have been significantly changed.” See 42 U.S.C. § 7607(d)(8).

National Mining Association takes a somewhat different tack in its challenge to EPA’s definition of “major source.” For serious, severe and extreme ozone nonattainment areas, § 182(c)-(e) (42 U.S.C. § 7511a(e)-(e)), and for the title V permitting program, § 501(2) (42 U.S.C. § 7661(2)), the Act defines the terms “major source” or “major stationary source” in language very similar to that of § 112(a)(1). See, e.g., 42 U.S.C. § 7511a(c) (defining “major source” as “any stationary source or group of sources located within a contiguous area and under common control” with emissions exceeding 50 tons per year of volatile organic compounds). As EPA acknowledges, to some extent it uses a SIC Code approach to defining “major source” in these programs. See, e.g., 40 C.F.R. § 70.2 (emissions to be aggregated by SIC Code for title V major source determination). 13 National Mining Association reasons that EPA is required to use the same approach in defining “major source” pursuant to § 112(a)(1).

This argument warrants little discussion. As EPA explained in the preamble to the final rule, “because of the different objectives of section 112 and title V ... and because section 112 contains its own definition,” it would define “major source” for purposes of § 112 without reference to SIC Codes. 59 Fed.Reg. at 12,412. The explanation is reasonable. Different programs have different objectives and structures. EPA is not bound to any one definition of “major source.” See Alabama Power, 636 F.2d at 397-98 (“EPA has latitude to adopt definitions of ... ‘source’ that are different ... from those [used in other programs].”); of. Mobil Oil Corp. v. EPA, 871 F.2d 149, 153 (D.C.Cir.1989) (“This court has previously upheld the agency’s decision to employ different definitions of the term ‘facility’ in construing different portions of RCRA.”). The § 112 and § 182 (42 U.S.C. § 7511a) programs are plainly distinguishable. Section 112 is directed at limiting nationwide emissions of hazardous air pollutants; § 182 addresses emissions of volatile organic compounds in serious, severe and extreme ozone nonattainment areas. Apart from this very obvious difference, in § 182 the term “major source” is used mainly to determine the sort of control technology that must be installed by an operator wishing to modify a facility in a way that increases emissions of volatile organic compounds. See, e.g., 42 U.S.C. § 7511a(e)(7). Whether a source is major for purposes of § 112 governs not only modifications, § 112(g), but also emission limitations applicable to new and existing sources of hazardous air pollutants, § 112(d). The title V program also differs fundamentally from § 112. It is essentially procedural — other provisions in the Act supply the substantive requirements applicable to sources subject to the permitting program.

In a second argument, National Mining Association contends that EPA’s definition of “major source” is inconsistent with the legislative history of the 1990 amendments to the Clean Air Act. It bases this conclusion on an excerpt from a House Report discussing the “major source” definitional language added *1359 to the ozone nonattainment provision in § 182 of the Act, 42 U.S.C. § 7511a:

The definition of “major source” [in the ozone nonattainment area] and elsewhere in the bill uses the term “group of sources located within a contiguous area and under common control.” The Committee understands this to mean a group of sources with a common industrial grouping, i.e., the same two-digit SIC code. It is the approach followed by EPA as a result of the Alabama Power litigation. It avoids the possibility that dissimilar sources, like a power plant and an adjacent coal mine, will be considered as the same “source” because of common ownership.

H.R.Rep. No. 490(1), 101st Cong., 2d Sess. 236-37 (1990) (italics added). Seizing upon the italicized language, National Mining Association urges that “Congress intended that a source-based limitation, such as the SIC limitation, apply to all of the definitions” of “major source.” Brief for National Mining Association at 21.

We agree with EPA that the legislative history of the Clean Air Act does not compel a conclusion that Congress intended to limit “major source” in the way National Mining Association suggests. The section of the Report that specifically discusses § 112(a)(l)’s definition of “major source” contradicts the Association’s interpretation of the provision:

For purposes of the definition [of “major source”], all emissions of listed pollutants are counted from a group of sources within a plant boundary (contiguous property under common ownership). This is to assure that emissions from the facility as a whole are adequately controlled.

H.R.Rep. No. 490(1), supra, at 324 (italics added). The Senate Report contains similar language: 14

The definition of “major source” [in § 112] also includes provisions to assure that stationary sources which would otherwise be subject to the emissions standards, are not excluded from control requirements as the result of arbitrary subdivision or description of the source. A stationary source potentially subject to an emissions standard because it emits a listed air pollutant is to be defined to include “all emission points and units of such source located within a contiguous area and under common control”. This language will prevent a facility from avoiding control by subdividing its operations into separate emissions points, product lines or units at one site with individual emissions rates less than the 10 or 25 ton per year thresholds.

S.Rep. No. 228, supra, at 151, U.S.Code Cong. & Admin.News 1990, at 3536 (italics added). These explicit references to § 112(a)(l)’s definition of “major source” support EPA’s view. At most, the legislative history leaves unresolved whether the agency must define “major source” with reference to SIC Codes. In such circumstances, “it is enough that the Agency’s construction is reasonable.” Natural Resources Defense Council v. EPA, 22 F.3d 1125, 1141 (D.C.Cir.1994) (citing Ohio v. EPA, 997 F.2d 1520, 1527 (D.C.Cir.1993)). EPA’s interpretation of “major source” satisfies that standard. 15

B

National Mining Association also thinks EPA erred in deciding to count “fugitive emissions” of hazardous air pollutants in determining whether a “source” is a “major source,” without first conducting a rulemaking pursuant to § 302(j), 42 U.S.C. § 7602(j). “Fugitive emissions” are defined in the final rule as:

those emissions from a stationary source that could not reasonably pass through a stack, chimney, vent or other functionally *1360 equivalent opening. Under section 112 of the Act, all fugitive emissions are to be considered in determining whether a stationary source is a major source.

59 Fed.Reg. at 12,433 (to be codified at 40 C.F.R. § 63.2). 16

Section 302(j) of the Act, as interpreted in Alabama Power v. Costle, 636 F.2d at 369-70, requires EPA to conduct a separate rule-making to achieve this result, so the Association contends. This provision, fully quoted in the margin, 17 states that, “[ejxcept as otherwise expressly provided,” a “major stationary source” or “major emitting facility” is any stationary source of air pollutants that “directly emits, or has the potential to emit” at least 100 tons per year of any air pollutant, including “any major ... source of fugitive emissions ... as determined by rule by the Administrator.” Alabama Power held that EPA could not, without rulemaking, include fugitive emissions of air pollutants in a facility’s aggregate emissions for purposes of determining whether the facility was a “major emitting facility” within § 169(1), 42 U.S.C. § 7479. 636 F.2d at 368-70. For the prevention of significant deterioration in air quality program (42 U.S.C. §§ 7470-7479), § 169(1) defines “major emitting facility” as any of 28 categories of sources that emit 100 or more tons per year of any air pollutant. 42 U.S.C. § 7479(1). For “any other source,” the threshold is 250 or more tons per year. Id. Although § 169(1) did “expressly make a substantial modification in the 302(j) definition of ‘major,’ ” it had “no ‘express’ provision modifying section 302(j)’s ‘rule’ requirement as to fugitive emissions.” Alabama Power, 636 F.2d at 370. “Therefore under section 169(1) controlled in this respect by section 302(j), the calculation of the threshold quantity emissions may include fugitive emissions only as determined by rule by the Administrator.” 18 636 F.2d at 370.

Finding this case indistinguishable from Alabama Power, National Mining Association spins out the following argument: § 112(a)(1) defines “major source” in terms of a “stationary source or group of stationary sources”; a § 112 major source is thus, “by definition, a ‘major stationary source,’ ” subject to the requirements of § 302(j); § 112(a)(1) does not expressly exempt a major source from § 302(j)’s fugitive emissions rulemaking requirement; therefore, EPA may not require a source to include fugitive emissions of hazardous air pollutants in the source’s total emissions without a § 302(j) rulemaking. 19

The Association’s argument is not very persuasive. Alabama Power was decided in the pre-Chevron age. Moreover, there is a notable difference between § 302(j) and § 112(a)(1). Section 302(j) speaks of sources that “directly” emit air pollutants, on the one hand, and fugitive emissions on the other, thus suggesting that emissions of the fugitive variety are not direct. By contrast, § 112(a)(1) does not contain the modifier “di *1361 reetly,” and it does not mention fugitive emissions as a separate category of emissions. Furthermore, one cannot say that § 302(j) supplies “quantitative terms” for § 112(a)(l)’s definition of “major source,” as it did for § 169(1), one of the provisions at issue in Alabama Power, 636 F.2d at 369. When it comes to hazardous air pollutants, the quantities — 10 tons of any one kind per year or 25 tons of a combination — are specified in § 112(a)(1), not § 302(j), which has a 100-ton threshold.

While the Association’s argument is thin, EPA’s counterargument is hardly overwhelming. EPA thinks its best point is that § 112(a)(1) defines “major source” whereas § 302(j) defines “major stationary source” and “major emitting facility”; since the phrases are different so must be the meanings with respect to counting fugitive emissions. The problem with this argument is that at a critical juncture § 302(j) also uses the phrase “major source” — a “major stationary source” may include a “major ... source of fugitive emissions” if EPA so decides in a rulemaking. And as the Association notes, other provisions of the Act unrelated to § 112 or § 302(j) refer to “major source” and “major stationary source” interchangeably, see 42 U.S.C. §§ 7426(a)(1)-(2), 7511a, 7513a. If EPA’s point related to differences between major stationary sources and major mobile sources, the omission of “stationary” in § 112(a)(1) and its inclusion in § 302(j) might be significant, but that of course is not EPA’s point.

EPA fares better when it tells us that title V of the Act explicitly draws a distinction between the nomenclature of § 112 and that of § 302, defining “major source” for permitting purposes as either a “major source as defined in section 7412 [§ 112]” or a “major stationary source as defined in section 7602 [§ 302] ... or part D of subchapter I [nonattainment program].” 42 U.S.C. § 7661(2). And on EPA’s side is the Senate committee report stating that the definition of “major source” in § 112 “will only apply in the context of this section and should not be confused with other meanings of the term ‘major source’ in parts C (prevention of significant deterioration) or D (non-attainment) of the Act.” S.Rep. No. 228, supra, at 150-51, U.S.Code Cong. & Admin.News 1990, at 3535-3536.

We conclude that EPA may require the inclusion of fugitive emissions in a site’s aggregate emissions without conducting any special rulemaking, even if “major source” and “major stationary source” mean the same thing. Section 112(a)(1) expressly provides that a “major source” is any stationary source or group of stationary sources “located within a contiguous area and under common control” and emitting more than 10 tons per year of a single hazardous air pollutant or 25 tons per year of such pollutants combined. An emission may be fugitive, but it is still an emission from a stationary source. And so the italicized language certainly may be read as EPA reads it — that all emissions are to be counted in determining whether a source is major, subject only to the qualification that they emanate from a contiguous site under common control. So read, § 112(a)(1) satisfies § 302(j)’s “[e]xcept as otherwise expressly provided” clause such that fugitive emissions may be counted in a source’s aggregate emissions without a special rulemaking.

C

As noted above, in determining whether a source is to be categorized as a “major source” of emissions (or by default an “area” source), EPA was directed by Congress to calculate the amount of hazardous air pollutants a stationary source “emits or has the potential to emit considering controls.” Clean Air Act § 112(a)(1), 42 U.S.C. § 7412(a)(1) (emphasis added). In its final rule, EPA defined a source’s “potential to emit” as its “maximum capacity ... to emit a pollutant under its physical and operational design.” 59 Fed.Reg. at 12,434. To comply with the statutory directive to “consider[] controls” while determining emissions capacities, the rule also provides:

Any physical or operational limitation on the capacity of the stationary source to emit a pollutant, including air pollution control equipment and restrictions on hours of operation or on the type or amount or material combusted, stored, or *1362 processed, shall be treated as part of its design if the limitation or the effect it would have on emissions is federally enforceable.

Id. (emphasis added). Under the rule, a control is deemed to be “federally enforceable” if it is “enforceable by the Administrator and citizens under the Act or ... under other statutes administered by the Administrator.” Id. at 12,433.

Petitioner Chemical Manufacturers Association argues that this restrictive definition— which disregards emissions limitations imposed by state or local regulations not deemed “federally enforceable” — is contrary to the language of § 112(a)(1) of the Act. The government contends that since the word “controls” is not defined in the statute, it was open to EPA under Chevron to define the term, and it has done so reasonably. See Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 843, 104 S.Ct. 2778, 2782, 81 L.Ed.2d 694 (1984). According to petitioners, even if Chevron Step II is to be reached — because the statute does not reveal a specific congressional intent — we should conclude that EPA’s construction of “controls” is impermissible.

It is common ground that Congress meant the word “controls” to refer to governmental regulations and not, for instance, operational restrictions that an owner might voluntarily adopt. (We note, however, that the word could be read that broadly, which certainly supports the government’s position that the term is not clear on its face.) Petitioners further conceded at oral argument — quite properly, we believe — that Congress intended the term to stand for effective controls. EPA clearly is not obliged to take into account controls that are only chimeras and do not really restrain an operator from emitting pollution. Nevertheless, petitioners claim that EPA has imposed the federal enforceability requirement in pursuit of policy objectives unrelated to concerns about the effectiveness of controls imposed at the state and local level. EPA is accused of interpreting the statute so as to pressure states — through the ministrations of sources eager to have local controls counted in determining their capacity to emit under § 112 — to seek EPA approval of state emissions policies. This objective, petitioners claim, is no part of § 112’s requirement that controls be considered in determining whether a facility qualifies as a major source. It is an impermissible interpretation since it subordinates the effectiveness of controls to other considerations not approved by Congress.

Although it is the regulations implementing the 1990 amendments to the Clean Air Act which are directly before us, this dispute had its genesis at least a decade earlier. Following the passage of the Clean Air Act Amendments of 1977, the agency took the position that the phrase “potential to emit” as used in the definition of “major emitting facilities” excluded even emissions-reducing equipment, such as scrubbers, filters, and other technologies. See 40 C.F.R. §§ 51.24(b)(3), 52.21(b)(3) (1978). We rejected that position in Alabama Power. See 636 F.2d at 353-55. In the wake of that case, EPA proposed a new definition of “potential to emit” that would have taken into account air pollution control equipment, but not operational restraints. See 44 Fed.Reg. 51,924 (1979). The final regulations issued in 1980, however, adopted the position that capacity calculations could factor in operational restraints — but only if they were “federally enforceable.” See 45 Fed.Reg. 52,676, 52,746 (1980). The regulations defined as “federally enforceable” those emissions restrictions that were “enforceable by the Administrator.” Id. at 52,737. The requirement of federal enforceability was, EPA explained, “necessary, as a practical matter, to ensure that sources will perform the proper operation and maintenance for the control equipment.” Id. at 52,688.

The 1980 rule was challenged in this court, but in a February 1982 settlement, EPA agreed to amend its position on federal enforceability. The proposal that followed would have taken into account emission limits “enforceable under federal, state or local law and discoverable by the Administrator and any other person.” 48 Fed.Reg. 38,742, 38,-748, 38,755 (1983). But by the time the final rule was issued, in 1989, the agency had apparently decided to abandon the terms of the settlement. The final regulations revert *1363 ed to the former position of requiring federal enforceability as the sine qua non for crediting operational restraints. “Federal enforceability” was still defined to reach only those limitations “enforceable by the Administrator,” but this term now included state constraints imposed under federally approved plans. See 54 Fed.Reg. 27,274, 27,285-86 (1989). New litigation followed but the cases were stayed (in our court) in anticipation of the 1990 amendments.

Congress thus acted in 1990 against a backdrop of over a decade of skirmishing between the agency and affected companies, during which the issue of whether and to what extent state and local controls were to be credited in calculating a source’s “potential to emit” was very much in the forefront. In drafting § 112 Congress specifically directed EPA to consider controls in determining which producers should be classified as “major sources,” but conspicuously did not limit controls to those that are federally enforceable. The government maintains that since Congress did not specify what kind of controls would qualify, EPA was free to answer that question. It permissibly did so by once again requiring that they had to be “federally enforceable,” a term which, in EPA’s final manifestation of the concept, applies to “all limitations and conditions that are enforceable by the Administrator and citizens under the Act or that are enforceable under other statutes administered by the Administrator.” 54 Fed.Reg. at 12,433.

As we have noted, it is certainly permissible for EPA to have refused to take into account ineffective controls (indeed, it is likely that a contrary interpretation would be impermissible). But is it also open to EPA under the statute to refuse to consider controls on grounds other than their lack of effectiveness? To qualify as “federally enforceable,” (as best we can determine) controls are required, in addition to being effective as a practical matter, to have been approved by EPA and integrated into the state implementation plan, or SIP, drawn up by each state to enforce substantive restrictions under the Clean Air Act and submitted to the Administrator for approval under § 110, 42 U.S.C. § 7410. Once included within the SIP, a state control becomes enforceable not only by the state which is its primary regulating authority, but also by the Administrator under § 113 of Act, 42 U.S.C. § 7413, and, in certain settings, by private citizens, who can bring suit for noncompliance with federal pollution control programs under § 304, 42 U.S.C. § 7604.

EPA has identified several state and local regulatory approaches through which states can impose restraints and have them deemed “federally enforceable.” Constraints imposed upon a source under a state operating permit, for example, will be deemed “federally enforceable” if the state program has been approved as a “federally enforceable state operating permit program,” or FESOPP, by EPA. A state permitting program cannot stand alone; it must