New York v. U.S. Environmental Protection Agency
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Full Opinion
In 1977, Congress amended the Clean Air Act (“CAA” or “the Act”) to strengthen the safeguards that protect the nation’s air quality. Among other things, these amendments directed that major stationary sources undertaking modifications must obtain preconstruction permits, as must major new sources, through a process known as “New Source Review” (“NSR”). According to a preexisting definition referenced in the 1977 amendments, a source undertakes a modification when “any physical change ... or change in the method of operation ... which increases the amount of any air pollutant emitted by such source” occurs. 42 U.S.C. § 7411(a)(4) (2000). The Environmental Protection Agency (“EPA”) has interpreted this rather terse definition in numerous rules, including ones issued in 1980, 1992, and most recently in 2002.
Industry, government, and environmental petitioners now challenge this 2002 rule, which departs sharply from prior rules ' in several significant respects. Roughly speaking, industry petitioners argue that the 2002 rule interprets “modification” too broadly, while government and environmental petitioners argue that the rule’s interpretation is too narrow. Industry petitioners have also revived previously stayed challenges to EPA’s earlier rules.
Today, we reject challenges to substantial portions of the 2002 rale. Specifically, we find the following elements permissible interpretations of the CAA and not otherwise arbitrary and capricious: the use of past emissions and projected future actual emissions, rather than potential emissions, in measuring emissions increases; the use of a ten-year lookback period in selecting the two-year baseline period for measuring past actual emissions; the use of a five-year lookback period in certain circumstances; the abandonment of a provision authorizing states to use source-specific allowable emissions in measuring baseline emissions; the exclusion of increases due to unrelated demand growth from the measurement of projected future actual emissions; and the Plantwide Applicability Limitations (“PAL”) program. We also find meritless certain procedural challenges related to lack of notice.
We conclude, however, that two aspects of the 2002 rule rest on impermissible interpretations of the Act and a third is arbitrary and capricious. Specifically, EPA erred in promulgating the Clean Unit applicability test, which measures emissions increases by looking to whether “emissions limitations” have changed. Congress directed the agency to measure emissions increases in terms of changes in actual emissions. EPA also erred in exempting from NSR certain Pollution Control Projects (“PCPs”) that decrease
Finally, industry challenges to passages in the preambles to the 2002 and 1992 rules, as well as government challenges to the implementation of the 2002 rule, are unripe for review.
I. Background
The 1977 CAA amendments define “modification” by reference to a statutory provision added in 1970. Seeking to understand what the 1977 Congress meant by modification — the central issue in this case — we thus begin with the 1970 CAA amendments and their implementing regulations.
Congress passed the 1970 amendments “to protect and enhance the quality of the Nation’s air resources so as to promote the public health and welfare and the productive capacity of its population.” 42 U.S.C. § 7401(b). The amendments set out a two-step process for achieving this goal: EPA first develops “National Ambient Air Quality Standards” (“NAAQS”) for various pollutants, and states then create and implement plans, known as “State Implementation Plans” (“SIPs”), to ensure their air meets these standards. See id. §§ 7409-7410.
The amendments also required new or modified sources to conform to emissions limits, known as “New Source Performance Standards” (“NSPS”), set by EPA. See id. § 7411. Because “[t]he Act contemplated” that these criteria would be “more stringent than those needed to meet ... NAAQS,” Alabama Power Co. v. Costle, 636 F.2d 323, 346 (D.C.Cir.1979), the meaning of “modified sources” took on particular significance: if an existing source made a “modification,” it needed to conform its change to NSPS, whereas an unmodified source only needed to meet whatever lesser requirements (if any) the SIP imposed for attaining NAAQS. Congress provided the following .definition for “modification”:
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 or which results in the emission of any air pollutant not previously emitted.
42 U.S.C. § 7411(a)(4). This definition requires both a change — whether physical or operational — and a resulting increase in emissions of a pollutant.
EPA’s 1975 NSPS regulation, like its earlier 1971 regulation, elaborated upon this statutory definition, doing so in provisions whose meaning the parties debate today. One part of the 1975 regulation provided that “ ‘[modification’ means any physical change in, or change in the method of operation of, an existing facility which increases the amount of any air pollutant (to which a standard applies) emitted into the atmosphere by that facility.” 40 Fed.Reg. 58,416, 58,418 (Dec. 16, 1975); see also 36 Fed.Reg. 24,876, 24,877 (Dec. 23, 1971). Using somewhat different terms, another part of the 1975 regulation stated that “any physical or operational change to an existing facility which results in an increase in the emission rate to the atmosphere of any pollutant to which a standard applies shall be considered a modification within the meaning ... of the Act,” with “[e]mission rate ... expressed as kg/hr of any pollutant discharged into
Adding to the confusion, EPA put forth yet another definition of “modification” in a 1974 regulation implementing what became known as the regulatory “Prevention of Significant Deterioration” (“PSD”) program. Seeking to prevent backsliding in regions whose air quality met NAAQS, this program required new sources and sources undertaking modifications to obtain preconstruction permits. See Alabama Power, 686 F.2d at 346-49 (describing the regulatory PSD program). The regulation defined “modification” in a manner that closely tracked — but didn’t precisely mirror — the NSPS regulatory definition, stating that “[t]he phrases ‘modification’ or ‘modified source’ mean any physical change in, or change in the method of operation of, a stationary source which increases the emission rate of any pollutant for which a national standard has been promulgated.” 39 Fed.Reg. 42,510, 42,514 (Dec. 5, 1974). The regulation’s preamble further provided that the term “modified source” was meant “to be consistent with the definition used in [NSPS].” Id. at 42,513.
Both the NSPS and PSD regulations listed certain exceptions to what constitutes a “modification,” though once again the precise content of the regulations varied. The 1974 PSD and the 1971 NSPS regulations provided that:
(1) Routine maintenance, repair, and replacement shall not be considered a physical change, and (2) The following shall not be considered a change in the method of operation: (i) An increase in the production rate, if such increase does not exceed the operating design capacity of the source; (ii) An increase in the hours of operation; (iii) Use of an alternative fuel or raw material [under certain conditions].
Id. at 42,514; accord 36 Fed.Reg. at 24,-877. The 1975 NSPS regulation not only phrased its exceptions differently, but also added a few additional ones:
The following shall not, by themselves, be considered modifications under this part: (1) Maintenance, repair, and replacement which the Administrator determines to be routine ...; (2) An increase in production rate of an existing facility, if that increase can be accomplished without a capital expenditure on the stationary source containing that facility; (3) An increase in the hours of operation; (4) Use of an alternative fuel or raw material [under certain conditions] ...; (5) The addition or use of any system whose primary function is the reduction of air pollutants ...; (6) The relocation or change in ownership of an existing facility.
40 Fed.Reg. at 58,419-20.
In its various permutations, this regulatory framework had not been long in place when, in 1977, Congress amended the CAA yet again. These amendments drew upon, expanded, and superceded the regulatory PSD program. In particular, the amendments strengthened the Act by (1) expressly creating a preconstruction review process for new or modified major sources located in “nonattainment” areas (i.e., areas which failed to meet NAAQS), see generally 42 U.S.C. §§ 7501-7515; and (2) expressly providing a parallel preconstruction review process in PSD areas (i.e., areas which met NAAQS or where there was insufficient information to evaluate whether NAAQS were met), see generally id. §§ 7470-7492. The parties refer to the first as “Nonattainment New Source Review” (“NNSR”), to the second as “Prevention of Significant Deterioration”
Under the amendments, sources seeking NNSR permits must meet stricter requirements than sources seeking PSD permits. Most notably, for NNSR permits, sources must achieve the “lowest achievable emission rate” (“LAER”) for new or modified units, whereas sources seeking PSD permits need only use the less demanding “best available control technology” (“BACT”). At a minimum, LAER and BACT are as restrictive as NSPS. Id. § 7479(3) (“In no event shall application of [BACT] result in emissions of any pollutants which will exceed the emissions allowed by any applicable standard established pursuant to” NSPS); accord id. § 7501(3) (for LAER). In certain circumstances, however, BACT and LAER can be more stringent than NSPS. See id. § 7479. Moreover, to obtain NNSR permits, sources must arrange for emissions reductions at other sources such that the modifications produce no increase in overall regional emissions. Id. § 7503. Sources must also demonstrate that any other sources owned by the same company comply with CAA requirements. Id. To obtain PSD permits, sources must undergo ambient air quality analyses to show that they will neither violate NAAQS increments nor adversely affect air quality in national parks or other areas that EPA has designated as needing particularly high-quality air. Id. § 7475.
Congress meant NSR to apply to both new and modified sources. Due to a technical defect, however, Congress initially achieved this goal only in the NNSR portion of the amendments, which defined modification by reference to the NSPS definition: “The terms ‘modifications’ and ‘modified’ mean the same as the term ‘modification’ as used in section 7411(a)(4) of this title.” Id. § 7501(4). By contrast, the PSD portion of the amendments applied initially to new sources only. Congress corrected this in a technical amendment passed several months later, which applied the PSD program to sources that were to undergo modifications “as defined in section 7411(a) of this title.” Pub.L. No. 95-190, § 14(a)(54), 91 Stat. 1393, 1402 (1977) (codified at 42 U.S.C. § 7479(2)(C)). As the legislative history explains, this “technical and conforming” amendment “[i]mplements conference agreement to cover ‘modification’ ... [in] eonform[ance with] usage in other parts of the Act.” 123 Cong. Rec. 36,250, 36,253 (Nov. 1, 1977).
In sum, the 1977 amendments carved out a significant difference between existing sources on the one hand and new or modified sources on the other. The former faced no NSR obligations — in the common phrase, they were “grandfathered” — while the latter were subject to strict standards. Limiting NSR to new or modified sources was one method of accomplishing the amendments’ goal of “a proper balance between environmental controls and economic growth,” id. at 27,-076 (Aug. 04, 1977) (statement of Rep. Waxman) (quoted in Chevron U.S.A., Inc. v. Natural Res. Def. Council, 467 U.S. 837, 852 n. 25, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984)).
EPA promulgated an NSR regulation in 1978. (Although at this time and later ones, EPA issued multiple sets of regulations — those applying to PSD in states without approved SIPs, those applying to NNSR in states without approved SIPs, those applying to PSD in states with approved SIPs, and those applying to NNSR in states with approved SIPs — these sets are sufficiently similar that for simplicity we typically reference the first of these as a shorthand for them all.) The 1978 regulation defined a major “modification” as a
In the period between the two Alabama Power opinions, EPA proposed a new NSR regulation. The proposed definition of modification continued focusing on potential emissions rates rather than actual emissions. 44 Fed.Reg. 51,924, 51,952 (Sept. 5, 1979). After the issuance of the revised Alabama Power opinion, however, EPA changed its definition of modification. The final 1980 rule defined the term as follows: “ ‘[mjajor modification’ means any physical change in or change in the method of operation of a major stationary source that would result in a significant net emissions increase of any pollutant subject to regulation under the Act.” 45 Fed.Reg. 52,676, 52,735 (Aug. 7, 1980) (emphasis added). The regulation defined “[n]et emissions increase” as “any increase in actual emissions from a particular physical change or change in method of operation” that occurred after taking into account, through a process known as “netting,” “any other increases and decreases in actual emissions at the source that are contemporaneous with the particular change and are otherwise creditable.” Id. at 52,736. The regulation then defined “actual emissions” as follows:
(ii)In general, actual emissions as of a particular date shall equal the average rate, in tons per year, at which the unit actually emitted the pollutant during a two-year period which proceeds the particular date and which is representative of normal source operation. The Administrator shall allow the use of a different time period upon a determination that it is more representative of normal source operation. Actual emissions shall be calculated using the unit’s actual operating hours, production rates, and types of materials processed, stored, or combusted during the selected time period.
(iii) The Administrator may presume that source-specific allowable emissions for the unit are equivalent to the actual emissions of the unit.
(iv) For any emissions unit which has not begun normal operations on the particular date, actual emissions shall equal the potential to emit of the unit on that date.
Id. at 52,737. In contrast to the proposed regulation’s approach, this regulation emphasized “actual emissions.” Justifying the shift, EPA explained in the regulation’s preamble that while the initial Alabama Power decision had used the phrase “potential to emit,” the later opinion used language that, “like the [statutory] definition, suggested] changes in actual emissions,” and that EPA had followed suit. Id. at 52,700. Finally, the 1980 regulation provided that “[a] physical change or change in the method of operation shall not include ... an increase in the hours of operation or in the production rate.” Id. at 52,735-36.
Several parties petitioned this court for review of the 1980 rule, but we stayed that challenge because of ongoing settlement discussions with EPA. Ultimately, EPA and the parties entered into an agreement
In the proceedings before us today, industry petitioners and EPA dispute what the 1980 rule meant. Both agree that for a source to undertake a modification, it must first make a physical or operational change other than an increase in the hours of operation. They disagree over how to measure an “increase” in emitted pollutants once a change has occurred. According to industry petitioners, the 1980 regulation' provided that an emissions “increase” occurs only if the maximum hourly emissions rate goes up as a result of the physical or operational change. According to EPA, however, an increase occurs under the 1980 regulations if, after netting, a source’s past annual emissions (typically measured by averaging out the two “baseline” years prior to the change) are less than future annual emissions (measured by calculating the source’s potential to emit after the change). EPA proffered this interpretation, which quickly became known as the “actual-to-potential” test, in proceedings leading up to Puerto Rican Cement Co. v. EPA, 889 F.2d 292 (1st Cir.1989), and Wisconsin Electric Power Co. v. Reilly, 898 F.2d 901 (7th Cir.1990) (“WEPCo ”). EPA also referred to this interpretation in its preambles to later rules, see 57 Fed.Reg. 32,314, 32,328 (July 21, 1992); 67 Fed.Reg. 80,186, 80,199 (Dec. 31, 2002).
Pueyto Rican Cement’s facts illustrate the practical difference between industry’s and EPA’s interpretations. In that case, a factory sought to make a physical change: it would replace old cement kilns that operated 60% of the time with a new kiln that would emit fewer pollutants per hour. “If operated to achieve about the same level of production [as the old ones], the new kiln will pollute far less than the older kilns; but, if the Company operates the new kiln at significantly higher production levels, it will emit more pollutants than did the older kilns.” 889 F.2d at 293. Under the actual-to-potential test, the company “increased” its emissions after the change, making it subject to NSR: operated at full potential, the new kiln would emit more pollutants than the old kilns had emitted when actually in operation. Under the interpretation urged by industry petitioners, however, the company had not undergone an “increase” in emissions — and thus would not trigger NSR — since the new kiln would have a lower hourly emissions rate than the old ones. Siding with EPA, the First Circuit agreed that the company had to obtain an NSR permit to make the intended change. Id. at 296-99.
WEPCo, which is important because of EPA’s response to it, addressed whether EPA could apply the actual-to-potential test to utility plants undergoing extensive renovations. The petitioner argued that given the particular nature of the utility market, it was unfair to compare a utility’s past actual emissions with its future potential emissions. Instead, the petitioner argued — and the Seventh Circuit agreed— that EPA should measure future emissions by projecting future actual emissions rather than by assuming, as it had done under the actual-to-potential test, that the source would operate at full capacity in the future. 893 F.2d at 916-18.
The Seventh Circuit decided WEPCo shortly before Congress enacted the 1990 amendments to the CAA. In those amendments, Congress added several programs — distinct from NSR — aimed at further securing good air quality through regulating existing sources. See generally Pub.L. No. 101-549, 104 Stat. 2399 (1990) (creating, among other things, programs aimed at reducing acid rain and at de
EPA dealt with WEPCo by issuing a 1992 rule that changed the test utilities used for measuring emissions increases. 57 Fed.Reg. 32,314. Under the new test, known as the “actual-to-projected-actual test,” utilities would determine whether they had post-change increases in emissions — and thus whether they needed NSR permits — by comparing actual emissions before the change to them projections of actual post-change emissions. See id. at 32,323-26. In measuring projected emissions, EPA permitted utilities to exclude increases stemming from unrelated demand growth, reasoning that such increases would in no way be caused by physical or operational changes. See id. at 32,326-28. The parties call this the “demand growth exclusion.” Applying the actual-to-projected-actual test and the demand growth exclusion to utilities only, EPA left the actual-to-potential test in place for other sources.
Various petitioners challenged the 1992 rule, but once again we stayed the proceedings as EPA began a new rulemaking process. This new process went slowly. EPA issued a proposed rule in 1996, 61 Fed.Reg. 38,250 (July 23, 1996), followed by a 1998 Notice of Availability (“NOA”) requesting additional comment on several issues, 63 Fed.Reg. 39,857 (July 24, 1998), followed in turn by a four-year hiatus. In the meantime, EPA began investigating numerous sources for noncompliance with the existing NSR program. It ended up bringing complaints against thirty-two utilities in ten states.
In 2002, EPA issued a new final rule to “reduce burden, maximize operating flexibility, improve environmental quality, provide additional certainty, and promote administrative efficiency.” 67 Fed.Reg. at 80,189. This rule departed from the prior rules in several significant respects relevant to this litigation. First, it adopted the actual-to-projected-actual test for all existing sources, id. at 80,275 (codified at 40 C.F.R. § 52.21(a)(2)(iv)(e) (2004)), though leaving sources the option to continue using the actual-to-potential test if they preferred, id. at 80,277 (codified at 40 C.F.R. § 52.21(b)(41)(ii)(d)). Second, it altered the method for measuring past actual emissions. Under the 1980 rule, sources determined past actual emissions by averaging their annual emissions during the two years immediately prior to the change, though they could use either different, more representative periods or source-specific allowable emissions levels, if they could convince the permitting authorities. In contrast, under the 2002 rule, sources other than electric utilities determine past actual emissions by averaging annual emissions of any two consecutive years during the ten years prior to the change. Id. at 80.278 (codified at 40 C.F.R. § 52.21(b)(48)(ii)). EPA determined that this change eliminated the need for case-specific alternatives. See id. at 80,200. Adopting a statement from the 1992 rule’s preamble, the 2002 rule also set a five-year lookback period for electric utilities. Id. at 80.278 (codified at 40 C.F.R. § 52.21 (b)(48)(i)); see also 57 Fed.Reg. at 32,323. Third, the 2002 rule expanded the 1992 rule’s demand growth exclusion, making it applicable to all sources, not just utilities. See 67 Fed.Reg. at 80,277 (codified at 40 C.F.R. § 52.21(b)(41)(ii)(e)). Fourth, the rule provided that sources that saw no reasonable possibility that post-change emissions would prove higher than past actual emissions need keep no records
Numerous petitioners now challenge the 2002 rule. Industry petitioners object to the actual-to-projected-actual test, arguing that the CAA requires EPA to compare past potential emissions with future potential emissions (i.e., use a “potential-to-potential” test). They also challenge the readings of the 1980 rule contained in the preambles to the 1992 and 2002 rules, arguing that these preambles impermissibly interpret the 1980 rule as using an actual-to-potential test rather than a potential-to-potential test. One petitioner, Newmont Mining Corporation (“Newmont”), argues that the 2002 rule is arbitrary and capricious because sources may no longer use either source-specific allowable emissions or a “more representative period” for their two-year baseline that occurred more than ten years before the proposed modification. Between them, government and environmental petitioners challenge virtually all aspects of the 2002 rule, including the use of a ten-year lookback period for selecting the two-year baseline, the use of this ten-year lookback period in the netting context, the use of a five-year look-back period for electric utilities, the demand growth exclusion, the recordkeeping standards, and the PAL, Clean Unit, and PCP provisions. They also raise several procedural challenges involving lack of notice. Environmental petitioners additionally challenge the 1992 rule’s five-year lookback period in the NSPS context. Government petitioners argue that EPA’s presumption that all states must incorporate the 2002 rule’s elements into their SIPs violates several statutory provisions. Finally, several intervenors and amici have joined the fray, attacking or defending various aspects of EPA’s rules. We consolidated these petitions ' and now consider them, first addressing industry petitioners’ contentions and then turning to the arguments of government and environmental petitioners.
In considering these challenges, we apply a highly deferential standard of review. We may set aside a regulation only if it exceeds EPA’s “statutory jurisdiction, authority, or limitations” or is “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.” 42 U.S.C. § 7607(d)(9).
Aside from statutory interpretation, we evaluate EPA’s actions based on traditional administrative law principles. See Ethyl Corp. v. EPA 51 F.3d 1053, 1064 (D.C.Cir.1995) (noting that the CAA’s review provisions are identical to those in the Administrative Procedure Act). “Where, as here, the issue before us requires a high level of technical expertise, we must defer to the informed discretion of the responsible federal agencies.” Transmission Access Policy Study Group v. FERC, 225 F.3d 667, 714 (D.C.Cir.2000) (internal quotation marks and citation omitted). After a “searching and careful inquiry” into the facts, Am. Trucking Ass’n v. EPA, 283 F.3d 355, 362 (D.C.Cir.2002), we will find EPA’s actions arbitrary and capricious if the agency has failed to “examine the relevant data and articulate a satisfactory explanation for its action, including a rational connection between the facts found and the choice made,” Motor Vehicle Mfrs. Ass’n v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43, 103 S.Ct. 2856, 77 L.Ed.2d 443 (1983) (internal quotation marks and citation omitted), or has reached a conclusion unsupported by substantial evidence, Ass’n of Data Processing Serv. Orgs., Inc. v. Bd. of Governors of the Fed. Reserve Sys., 745 F.2d 677, 683-84 (D.C.Cir.1984). The standard of review “does not,” however, “permit us to substitute our policy judgment for that of the Agency.” Bluewater Network v. EPA, 370 F.3d 1, 11 (D.C.Cir. 2004).
II. Industry Challenges
Various firms and industry associations advance three main challenges. First, industry petitioners attack the 2002 rule’s definition of “modification” for NSR purposes on the ground that it unlawfully differs from its definition for NSPS purposes. While the NSPS regulatory definition of modification allegedly focuses on the hourly rate of emissions, the NSR definition focuses on net emissions increases measured in tons per year. Compare 40 C.F.R. § 60.14 (NSPS), with id. § 52.21(b)(2)(ii)(NSR). Industry claims that this divergence is unlawful because Congress intended to adopt for NSR purposes the NSPS regulatory definition in existence at the time of the 1977 amendments. (Industry petitioners also challenge the 1980 rule’s definition of modification in the NSR context to the extent that it differs from the NSPS definition.) We are not convinced.
Second, industry petitioners argue that statements in the preamble to the 2002 rule constitute an unlawful interpretation of the 1980 rule. Because of multiple uncertainties about the existence or likely application of any such interpretation, let alone any burden to petitioners from delay of adjudication, we find the issue unripe.
Third, the previous rules allowed states to use source-specific emissions limitations as proxies for actual emissions. 45 Fed. Reg. at 52,737 (previously codified at 40 C.F.R. § 52.21(b)(21) (1981)). Petitioner
A.
Modification. Industry rests its claim that modification must have the same regulatory meaning for NSR as prevailed for NSPS in 1977 on the fact that Congress, by a cross-reference, used the same language in both statutory contexts. Thus, the NNSR portion of the Act provided:
The terms “modifications” and “modified” mean the same as the term “modification” as used in section 7411(a)(4) of this title.
42 U.S.C. § 7501(4). Similarly, the PSD portion of the statute provides that “construction” includes “the modification (as defined in section 7411(a) of this title) of any source or facility.” Id. § 7479(2)(C). So far as appears, then, these incorporations by reference are the equivalent of Congress’s having simply repeated in the NSR context the definitional language used before in the NSPS context.
We have (naturally) required indications in the statutory language or history to infer that Congress intended to incorporate into a statute a preexisting regulatory definition. See Continental Air Lines, Inc. v. Dep’t of Transp., 843 F.2d 1444, 1454 (D.C.Cir.1988). Industry suggests there is “abundant indication” of such intent, pointing to Congress’s having said that modification (in the NNSR portion of the statute) has the meaning of the same word “as used in” the NSPS portion of the statute. It also cites a conference committee report that explains agreement to cover modification as well as construction in Part C of the Act (PSD) (a point apparently originally excluded unintentionally) by saying that construction is being defined “to conform to usage in other parts of the Act.” See 123 Cong. Rec. 32,253 (Nov. 1, 1977) (emphasis added). But the phrases “usage” and “used in” refer not to regulatory usage, but only to usage in the statute itself. They tell us no more than if Congress had used a little more ink and repeated the NSPS definitions verbatim. Elsewhere in the Act, moreover, Congress did incorporate regulatory provisions expressly by reference. See, e.g., Pub.L. No. 95-95, § 129(a)(1), 91 Stat. 685, 745 (1977) (“the interpretative regulation of the Administrator of the Environmental Protection Agency published in 41 Federal Register 55524 ... shall apply ....”) (incorporating EPA’s offset ruling); 42 U.S.C. § 7502 note. Congress’s failure to use such an express incorporation of prior regulations for “modification” cuts against the proposed inference.
Industry petitioners also invoke Bragdon v. Abbott, 524 U.S. 624, 632, 118 S.Ct. 2196, 141 L.Ed.2d 540 (1998), for the proposition that when Congress repeats a well-established term, it implies that Congress intended the term to be construed in accordance with preexisting regulatory interpretations. But that proposition does industry little good here, as the regulatory definitions in the NSPS and PSD programs already differed at the time of the 1977 amendments. See Part I, supra, at 10-12 (comparing regulatory definitions of NSPS and PSD programs).
In fact, the NSPS regulations adopted in 1975 and in force at the time of the 1977 CAA amendments themselves used two different (and possibly inconsistent) definitions of modification. Section 60.2(h) defined modification to include “any physical change in, or change in the method of operation of, an existing facility which increases the amount of any air pollutant (to
B.
Interpretation of 1980 Rule in 2002 Preamble. Industry petitioners also challenge an allegedly new interpretation of the 1980 rule contained in the preamble to the 2002 rule. Specifically, industry objects to the following sentence in the preamble:
Prior to today, the regulations applied an actual-to-future-actual applicability test for EUSGUs [Electric Utility Steam Generation Units] and an actual-to-potential applicability test for all other emissions units.
67 Fed.Reg. at 80,199 (emphasis added). Industry petitioners’ claim is that by uttering the above sentence, EPA attempted to interpret the 1980 rule retroactively to require a “universal actual-to-potential test.” Such an interpretation would be, industry claims, substantively inconsistent with the 1980 rule and the Act, and in violation of various procedural requirements for amendments of agency rules. Industry petitioners raise a similar objection to the 1992 rule’s preamble. Br. for Industry Pet’rs at 29 n.46, 32 n.52.
These claims are unripe. Ripeness depends on (1) the fitness of the issue for judicial review, and (2) the hardship to the parties of withholding a judicial decision. See Abbott Labs. v. Gardner, 387 U.S. 136, 148, 87 S.Ct. 1507, 18 L.Ed.2d 681 (1967). Fitness is highly questionable here, as the disputed sentence appears to be — as EPA claims — no more than a short-hand reference to the 1980 rule, not a formal interpretation. If industry’s fears should prove well-grounded, review could proceed more intelligibly on a clearer record. See Am. Iron & Steel Inst. v. EPA, 115 F.3d 979, 990 (D.C.Cir.1997); State Farm Mut. Auto. Ins. Co. v. Dole, 802 F.2d 474, 479 (D.C.Cir.1986).
Nor has industry shown that delay of review wi