Citations
- 372 F. Supp. 2d 1283
Full opinion text
MEMORANDUM OPINION ON CORRECT LEGAL TESTS
HOPKINS, District Judge.
I. Introduction and Procedural Background
On January 12, 2001, the Attorney General of the United States, acting at the request of the Administrator of the United States Environmental Protection Agency (“EPA”) and through the United States Attorney for the Northern District of Alabama, filed this action against Defendant Alabama Power Corporation (“APC”). Doc. # 1. The EPA alleges that APC constructed new, or made modifications to existing, electrical power generating plants APC operates in Alabama (variously referred to herein as “plant”, “plants”, “unit”, “units”, “facility”, “facilities”) and that those actions were in violation of the Clean Air Act (the “CAA” or “Act”), 42 U.S.C. § 7401 et seq. EPA alleges APC failed to obtain New Source Review (“NSR”) permits in violation of the Prevention of Significant Deterioration (“PSD”) provisions of the Act, 42 U.S.C. §§ 7470-92, and APC violated Alabama’s State Implementation Plans (“SIP”) approved by EPA under the Act for the State of Alabama. On April 26, 2001, the Alabama Environmental Council (sometimes referred to “AEC” or “Intervenor-Plaintiffs”) moved to intervene as plaintiffs. Doc. # 6. On May 21, 2001, EPA, APC, and AEC filed a Joint Stipulation permitting AEC to intervene under the same terms as had been set by the Northern District of Georgia when this action was pending there. Doc. # 12. On May 29, 2001, the court granted the Joint" Stipulation on intervention, and denied as moot the AEC intervention motion. Doc. # 13.
This CAA enforcement action is similar, if not identical, to a number of other November, 1999, CAA enforcement actions brought by EPA against other regional utilities (e.g. Ohio Edison, Southern Indiana Gas and Electric, and Duke Energy) in the midwestern and southeastern United- States. As discussed in detail later, the legal issues here are sufficiently similar to the other enforcement actions that have been litigated that much of the court’s work here involves reference to and analysis of the other enforcement actions. Many, if not all, of the parties’ arguments and authorities set out in their briefs and responses have been raised in the other enforcement actions.
One difference here is noted: this case involves one facility, the “Miller” plant, that the parties agree is different and is not addressed in this Memorandum. The court expresses no opinion on whether and, if so, how much of this Opinion will apply to the Miller plant because of the parties’ agreement the Miller plant should be treated differently where applicable in this action. In other words, the Miller plant portion of this litigation was not considered, and left for subsequent decision is whether the Miller plant issues will be affected by this Opinion.
II. The Issues Involved In ■ This Memorandum
This matter comes before the court for ruling on the parties’ response to item 3 of the Scheduling Order entered on August 5, 2004. Doc. # 68 In their response, the parties identified two issues they agreed were ripe for adjudication, Doc. # 75, and the court ordered briefing on those issues as suggested by the parties. Doc. # 77. The two issues for decision are:
1) the correct legal test for determining a physical change, including the correct legal test for determining routine maintenance, repair, and replacement; and 2) the correct legal test for determining a significant net emissions increase.
EPA, APC, and AEC each have filed an opening and response brief. Docs. # 101, 99, 96, 112, 107, 106. Numerous exhibits have also been filed by the parties. The United States has stipulated that the regulations applicable to the claims in this case áre the Alabama rules approved by the United States Environmental Protection Agency (“EPA”) in 1981, 46 Fed.Reg. 55517 (Nov. 10, 1981) (APC Ex. 26), and currently codified at ADEM Admin. Code R. 335-3-14-.04. Doc. # 69.
III. Preliminary Discussion
1. The Clean Air Act And NSR Review Provisions
The Clean Air Act is codified at 42 U.S.C. §§ 7401-767 (2000). The implementing regulations are found at 40 C.F.R., pts. 50-99. The original Act and the amending legislation can be found, respectively, at Clean Air Act Amendment of 1970, Pub.L. No. 91-604, 84 Stat. 1676 (1970); Clean Air Act Amendments of 1977, Pub.L. 95-95, 91 Stat. 685 (1977); Clean Air Act Amendments of 1990, Pub.L. No. 101-549, 108 Stat. 2399 (1990).
“New source review” denotes a series of provisions within the federal Clean Air Act (Act). Congress enacted the Clean Air Act in 1970, with major amendments occurring in 1977 and 1990. The Act represents one of the federal government’s earliest efforts to protect the environment through a comprehensive regulatory scheme.
The Clean Air Act requires the Environmental Protection Agency to establish baseline “national ambient air quality standards” (NAAQS), setting maximum permissible concentrations for “criteria” pollutants. The Act divides the United States into two types of regions: those that are currently in compliance with all of the NAAQS standards (“attainment areas”), and those that are violating some or all of these standards (“non-attainment areas”). The Act establishes different emissions requirements for facilities in each region, with stricter standards applicable to facilities in non-attainment areas.
The 1977 Amendments to the Clean Air Act incorporated the new source review provisions. These provisions were designed to ensure that large industrial sources of air pollution included modern pollution-control equipment when they altered their facilities. New source review mandated that the. “best” emissions-control. technology be installed whenever a “major” source were built, replaced, or modified (creating, in NSR terminology, a “new source” of air pollution). NSR provides an exception to this best-technology requirement for some “routine maintenance” to major sources.
What qualifies as the “best” technology in turn depends on the ambient air quality in the surrounding region. Facilities seeking to build or modify equipment in attainment areas are subjected to “prevention of significant deterioration” (PSD) review. To proceed with their proposed projects, facilities must determine whether new or increased emissions resulting from these projects would cause the area to exceed ambient air quality standards or to suffer a “significant” deterioration in air quality. PSD review requires that any new source adhere to the “best available control technology” (BACT) standard, governing emissions of regulated pollutants. BACT, a source-specific standard, is generally understood to require the best pollution-control technology available, after taking into account energy, economic and environmental considerations. Facilities seeking to build or modify structures in NAAQS non-attainment areas are subject to more, stringent requirements. These facilities must obtain pre-construction permits, certifying that pollution from any new source will not hinder the region’s progress towards attainment of the NAAQS standards. New sources must install emissions-eon-trol equipment that meets the stringent “lowest achievable emissions rate” (LAER) standards. LAER standards are generally stricter than BACT standards, because they are set without any consideration of energy or economic factors. Facilities seeking to add sources in non-attainment areas must show, furthermore, that they plan to “offset” any projected emissions increases from these new or modified sources with emissions decreases in other areas of the same facility or from other facilities in the non-attainment area.
Martin, The Reform of New Source Review: Toward A More Balanced Approach, 23 Stan. Envtl. L.J. 351, 356-58 (2004) (citations omitted)
2. WEPCO and the CAAJNSR Framework
In the years leading up to Wisconsin Electric Power Co. v. Reilly, 893 F.2d 901 (7th Cir.1990) (“WEPCO”), owners and operators of power plants routinely made many types of routine repairs and modifications (“RMRR”) to their units without triggering the NSR regulations. A review of decisional law reveals no appellate review of how to interpret RMRR, specifically the term “modification” (narrowly or broadly), until the Seventh Circuit’s decision in WEPCO. Wisconsin Electric Power Company (WEPCO) challenged EPA’s determinations that' WEPCO’s proposed renovations to its Port Washington power plant would subject the plant to the more stringent provisions of the Act because the work, in EPA’s assessment, would be a major modification. EPA further concluded that the renovation of the electric power plant would subject the plant to new source performance standards (“NSPS”) and prevention of serious deterioration requirements (“PSD”) of the Clean Air Act.
In WEPCO, the Seventh Circuit became the first appellate court to undertake a review of a CAA enforcement action against an electric utility for violating the CAA. As it began, the Seventh Circuit described the CAA and NSR framework as it saw it at the time of decision:
In 1970, Congress enacted the Clean Air Act Amendments, Pub.L. No. 91-604, 84 Stat. 1676, to establish minimum air quality standards that would regulate the emission of certain pollutants into the atmosphere. To this end, Congress instructed the EPA to develop National Ambient Air Quality Standards (“NAAQS”) that would specify the maximum permissible concentration of air pollutants in different areas across the country.
In section 111 of the 1970 Amendments, Congress required.the EPA to promulgate New Source Performance- Standards (“NSPS”) in order to regulate the emission of air pollutants from new sources. These standards addressed hourly rates of emission and, in addition to new sources, applied to modifications of existing facilities-that created new or increased pollution. Indeed, section 111(a)(2) of the Act stated that NSPS would apply to any stationary source, the construction or modification of which is commenced after the publication of regulations (or, if earlier, proposed regulations) prescribing a standard of performance under this section which will be applicable to such source. 42 U.S.C. § 7411(a)(2) (emphasis supplied). Congress then defined “modification” as any physical change in, or change in the method of operation of, a stationary source which increases the amount of any air pollutant emitted by such source or which results in the emission of any air pollutant not previously emitted. 42 U.S.C. § 7411(a)(4) (emphasis supplied).
Subsequently, faced with only varying degrees of success in controlling pollution in different parts of the country, Congress enacted the Clean Air Act Amendments of 1977, Pub.L. No. 95-95, 91 Stat. 685 (codified' at 42 U.S.C. §§ 7401-7642 (1982)). Congress revised the NSPS so that regulated sources of pollution would have to use “the best system of continuous emission reduction which (taking into consideration the costs of achieving such emission reduction, and any nonair quality health and environmental impact and energy requirements) the Administrator determines has been adequately demonstrated....” 42 U.S.C. § 7411(a)(1)(C). In addition, Congress added a program for the Prevention of Significant Deterioration (“PSD”), concerned with increases in total annual emissions, to ensure that operators of regulated sources in relatively unpolluted areas would not allow a decline of air quality to the minimum level permitted by NAAQS. Air quality is preserved in this program by requiring sources to limit their -emissions to a “baseline rate”; regulated owners or operators in areas that have attained NAAQS must obtain a permit before constructing or modifying facilities. 42 U.S.C. § 7475(a)(1). Congress also essentially adopted its NSPS definition of “modification” for the PSD program. 42 U.S.C. § 7479(2)(C). From this statutory framework, the EPA promulgated regulations for both the NSPS and PSD programs. In this case, its regulations concerning modifications are central. The EPA defines “modification” in substantially the same terms used by Congress:
[A]ny 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 section 111 [42 U.S.C. § 7411] of the Act. 40 C.F.R. § 60.14(a) (1988). To determine whether a physical change constitutes a modification for purposes of NSPS, the EPA must determine whether the change increases the facility’s hourly rate of emission. 40 C.F.R. § 60.14 (1988). For PSD purposes, current EPA regulations provide that an increase in the total amount of emissions activates the modification provisions of the regulations. 40 C.F.R. § 52.21(b)(3) (1988).
893 F.2d 901, 904-05 (emphasis in original).
The Seventh Circuit ruled in favor of the EPA on two (2) key issues over which the industry and EPA have been at odds with each other since. The first is how to determine what types of maintenance are “routine” or RMRR, and therefore do not trigger NSR, and what types aren’t routine, and do trigger NSR. The second issue is what constitutes an increase in emissions. The emissions measurement methodology is critical because any project that results in.an increase in emissions would trigger the NSR regulations, no matter how minor the project.
NSR applies to two similar permitting functions affecting APC, but the focus in this action is on the PSD program. PSD requires permits to be obtained for construction of new facilities and for “major modifications” of existing facilities. 42 U.S.C. §§ 7470-92. The significance of triggering PSD permitting is that any construction falling under PSD must use “best available control technology” (“BACT”).
The dispute between APC and EPA, like the dispute in WEPCO and the reported (district court) cases, centers on how to determine whether the pertinent APC facilities have undergone a “major modification.” Two factors determine whether a plant has made a “major modification” subject to PSD permitting: the “physical change” test’s RMRR exclusion and the emissions increase test. Both factors must be present to trigger the requirement to obtain a PSD permit.
3. Physical Change And The “Routine Maintenance Repair Replacement” Exclusion
The “change” analysis under the Act is about the only issue that is simple and easily answered: “any physical change in or a change in the method of operation” of a major (emissions) source qualifies. Because this test is so broad, encompassing nearly every change to a plant’s operations, there are several exclusions, the relevant exclusion here being RMRR.
The court does not understand APC to dispute that it has made “physical changes” to its affected plants in the form of needed repairs to, or replacement of, degraded equipment in those plants. Thus, the legal issue as to the physical change part of the test is whether APC’s projects should be deemed RMRR, as APC says, or major modifications, as EPA says. As noted, the former does not trigger NSR permitting; the latter does.
Resolution of the physical change question depends in turn on, as noted above, whether the RMRR exclusion should be interpreted narrowly (EPA) or broadly (APC). EPA says the RMRR exclusion should only apply to work projects that are routine for an individual unit; APC says the RMRR exclusion applies to projects that are routine within the industry. The court understands that, by “routine within the industry”, APC means work of a type performed commonly within the industry, although perhaps infrequently at any specific one or more of APC’s particular plants.
The dispute over the meaning of the “routine” exclusion arose recently in this Circuit. Tennessee Valley Auth. v. EPA 278 F.3d 1184 (11th Cir.2002), withdrawn in part, 336 F.3d 1236 (11th Cir.2003). There the Court observed, without resolving the issue, that the “central disagreement between [the parties] is whether ‘routine’ should be defined relative to an industrial category or to a particular unit.” Id. at 1189 n. 3. APC says “industrial category”; EPA says “particular unit”.
If the authorities and exhibits submitted by the parties, and the authority and exhibits set out in the other enforcement action cases (Ohio Edison, SIEGO, Duke Energy) are accurate, the court says that prior to commencing this and the other 1999 enforcement actions, EPA provided little consistent guidance as to what its position was on RMRR, ie. what work was RMRR and whether the RMRR exclusion would be broadly or narrowly construed, and the guidance it did provide was changeable.
The only reported case on the RMRR exclusion to physical change factor, WEP-CO, supra, found the criteria used by EPA to assess physical change — the nature, extent, purpose, and frequency of the work-adequate. Neither EPA nor the WEPCO court provided guidance on whether these four (4) factors should be construed narrowly (individual unit) or broadly (industry as a whole). Cf EPA Brief (narrow/individual unit review standard) with, e.g. 57 Fed.Reg. 32,314, 32,326 (July 21, 1992) (industry as a whole standard). This is one reason the court does not believe WEPCO answers the questions) before it; as discussed later, there are others.
4. Emissions Increase — How To Measure
The second part of the PSD threshold is whether the work resulted in an emissions increase of the (regulated) pollutants exceeding threshold levels. The reader will not be surprised that EPA and APC cannot agree on how emission increases are measured. EPA, citing 57 Fed.Reg. 32,-314 and a letter from Lee M. Thomas, EPA Administrator, to John Boston, Vice President of WEPCO (Oct. 14, 1988), says APC must measure actual annual emissions before the change and projected annual emissions after the change (“annual actual emissions”); the practical effect of this test is that it could be triggered either by an increase in the plant’s capacity or by a simple increase in hours of operation.
APC’s position is that emission increases are calculated only on the basis of “maximum hourly emission rates”. This is the same test EPA uses in its “new source performance standard” regulations. The practical effect of using maximum hourly emission rates is that past and future levels of plant operation are irrelevant to the test; emission increases would be likely when APC expanded the size of a facility or recaptured lost production capacity (e.g., from equipment degradation). Put another way, the emissions increase test would not be triggered if APC operated its plants more hours in a year at the same production rate as it did before the work was undertaken. APC bases its argument, inter alia, on the “hours of operation” exclusion in the PSD regulations, which say that a “mere” increase in hours of operation cannot be a covered change.
APC’s position is not conceded by EPA, particularly where, as here, the increase in hours of operation is accompanied by construction at the affected plant. See WEP-CO, supra, 893 F.2d at 916; see also WEP-CO rulemaking, where EPA rejected a similar position on the scope of the “hours of operation” exclusion, 57 Fed.Reg. 32,-328, responding to the “industry as a whole” language in 57 Fed.Reg. 32,326.
IV. EPA Interpretation vs. ADEM Interpretation
EPA and APC are at odds over whether, with respect to PSD regulations, the Alabama Department of Environmental Management (“ADEM”) may, by regulation, permitting, or interpretation, vary or differ from those promulgated or announced by EPA.
If the interpretation question involves the unambiguous language of the statute, or regulation(s) issued by EPA that clearly fall within its statutory authority, the court reads Alaska Dep’t of Environmental Conservation v. EPA, 540 U.S. 461, 124 S.Ct. 983, 157 L.Ed.2d 967 (2004), together with dicta in Sierra Club v. Leavitt, 368 F.3d 1300, 1304, n. 9 (11th Circuit 2004), to say that, if the decision at hand comes down solely to whose interpretation controls, EPA’s or ADEM’s, EPA prevails.
In Alaska Dept., the Supreme Court held that EPA had the authority to issue a stop work order for the construction of a power plant when EPA disagreed with the (Aaska) state agency’s judgment as to what constituted BACT. Aaska had issued the permit, and the Court held that its decision to do so was arbitrary and capricious because it didn’t require the utility to install selective catalytic reduction technology on a new generator; Aaska had argued EPA lacked the authority to override a state’s judgment as to what constitutes BACT.
In Leavitt, supra, the Eleventh Circuit said in dicta that, where a SIP “does track the language of the CAA, [] we suspect that an interpretation of the Georgia Rule is sufficiently intertwined with the administration of the CAA that it can be considered part of the federal law of pollution control”.
The court declines discussion of the numerous legal issues that could arise in a “state versus federal” interpretation of law conflict. The Supreme Court’s discussion of the national scope of the PSD guidelines in Alaska Dept., 124 S.Ct. at 1000, is sufficient. While Alaska Dept, was limited to a BACT permitting decision, the court notes that Aaska attacked EPA’s authority over a state in a CAA dispute, and sees no cogent reason why, were EPA and ADEM to square off over implementation of another CAA provision, EPA would not prevail. In Alaska Dept., the Court observed that, without national guidelines, emitting facilities/industries could move to more permissive states, or pit one state against other states in the way often seen in other industries, e.g., the motor vehicle manufacturing industry, where states vie with each other to offer the biggest incentives to the manufacturer in hope of landing the plant and the economic benefits large projects bring in the form of jobs and taxes. If APC’s only argument were that “ADEM said it was ok”, this Opinion would be much shorter. This is not to say that the court misapprehends the CAA statutory scheme that, in significant ways, envisions a federal-state partnership. What the court is saying that, if a state and the United States clash over an issue that falls within EPA’s enforcement authority, it expects the United States’ view would prevail.
V. Other NSR Litigation: Ohio Edison And Duke Power
In trying to answer the RMRR and increased emissions questions, the court, like the parties, focuses primarily on two (2) district court decisions. The two district court cases illustrate the split in decisions on the same issues. Left for later are the possible changes that may be forthcoming from appellate review of the legality of the “new” (2003) EPA NSR regulations.
Given the complexity of the CAA statutory and regulatory history, the scarcity of appellate review of the 1999 enforcement actions, and the opposite conclusions reached by the major district court decisions reviewing same, it is not surprising to review the parties’ CAA arguments and authorities and find at least some statutory and regulatory support for each point of view.
Nowhere is this dichotomy better illustrated than in the two (2) district court cases repeatedly cited by APC and EPA: United States v. Ohio Edison, 276 F.Supp.2d 829 (S.D.Ohio 2003), and United States v. Duke Energy Corp., 278 F.Supp.2d 619 (M.D.N.C.2003). There, in August of 2003, district courts in Ohio and North Carolina reviewed the same legal questions arising from the NSR provisions of the CAA, specifically on the scope of the RMRR exclusion and the method by which emission increases from regulated sources such as the APC plants are to be measured. Both courts grounded their opinions on analysis of the statute. Both courts reasoned that the statute mandated the result reached. The courts reached diametrically opposed conclusions.
In United States v. Ohio Edison, supra, (“Ohio Edison”), the court sided with EPA on its CAA claims at trial, finding that Ohio Edison’s plant work projects constituted multiple NSR permit violations. The Ohio Edison court did not do enthusiastically:
This case highlights an abysmal breakdown in the administrative process following the passage of the landmark Clean Air Act in 1970. For thirty-three years, various administrations have wrestled with and, to a great extent, have avoided a fundamental issue addressed in the Clean Air Act, that is, at what point plants built before 1970 must comply with new air pollution standards.
Ohio Edison went to on to say that EPA’s failures in enforcement did “... not absolve Ohio Edison from liability under a law that has always been clear”; id. at 833. It also found the EPA’s narrow interpretation of the word “routine” to be justified, id. at 855.
In United States v. Duke Energy Corp., supra, (“Duke Energy ”), the court rejected the same EPA claims and liability theories. EPA sued Duke Energy challenging modifications to its coal-fired plants as violators of the PSD provisions and state SIPs. After extensive discovery (4.6 million pages of documents) and thorough briefing, the court, ruling on cross motions for summary judgment, said that to trigger the PSD permitting requirements, there must be a “physical change” and there must be a “significant net emissions increase”. It said there is no “physical change” for “[rjoutine maintenance, repair, and replacement.” 40 C.F.R. § 51.166(b)(2) (iii) (a) (1987). The Duke Energy court applied a standard of “routine in the industry”, and said EPA has the burden of showing “that a utility engaged in a non-routine physical change that resulted in an increase of emissions”. Id. at 640. The Duke Energy court found, based on
— the PSD rules;
— the contemporaneous EPA interpretations of the PSD rules; and
— the statutory language incorporating the NSPS concept of modification into PSD,
that post-project emissions must be calculated on an annual basis, measuring emissions in tons per year. Further, in calculating post-project emission levels, Duke Energy says the hours and conditions of operations must be held constant. The practical effect is that a net emissions increase can result only from an increase in the hourly rate of emissions. In so holding, the Duke Energy court refused to defer to EPA interpretations that it said were contrary to earlier EPA interpretations. Id. at 641. A decision by the Fourth Circuit in Duke Energy is pending. Docket No. 04-1763.
The split in authority is not surprising in light of the inconsistent positions EPA has taken on core applications of the NSR rules. Again, both the Ohio Edison and Duke Energy courts staked their decisions on different readings of the same statute, and both courts thought the statute commanded the result reached.
In essence, Ohio Edison accepts the EPA’s position that the RMRR exclusion should be narrowly construed, and that emissions increases should be judged by the annual emissions increases resulting, which could include increased hours of operation or plant utilization, if appropriate. Duke Energy agreed with the utility’s arguments on the RMRR exclusion, i.e., construed broadly based on industry norms and on how emissions increases should be measured: maximum hourly emissions must increase before PSD permitting is triggered, and greater annual facility utilization is irrelevant to the analysis.
1. The Scope of the RMRR exclusion in Ohio Edison and Duke Energy
The Ohio Edison court adopted both of EPA’s proposed NSR applicability tests and found that each of the eleven (11) groups of projects alleged by EPA to have needed PSD permits were not RMRR. The projects in question cost from about $1 million to more than $28 million; their completion took from thirty-seven (37) days to eight (8) months. These differences seemed to have no impact on the court’s analysis.
The Ohio Edison court either did not see EPA as having taken various positions over the years on the scope of the RMRR exclusion or, if it did, it chose not to discuss them in any detail. The court reasoned that EPA’s narrow interpretation of the RMRR exclusion was both “reasonable” and consistent with the “plain language of the regulation.” 276 F.Supp.2d at 862, 855. In doing so, the court said the CAA itself required that the RMRR exception in the regulations be construed narrowly. Id. It said the CAA did not contain an RMRR or any other exclusion and therefore demonstrated an intention to broadly cover “any physical change.” Consequently, any regulatory exception to the statute must be construed narrowly in order to be “harmonized with the statutory language,” because “if the broad definition given to [RMRR by the industry] were adopted, the regulations would be in direct conflict with the superseding and controlling language of the Clean Air Act.” Id. In short, because the statute plainly states that “any physical change” is to be covered, it necessarily requires a narrow reading of any exclusion to that broad statutory language.
In answer to the “fair-notice issues”, Ohio Edison arguably ignored conflicting EPA guidance, again for textual reasons: the word “any” in the statute was clear enough:
The plain language of the statute, read together with the routine maintenance exemption, make it clear that the exemption must have a narrow interpretation so as not to swallow the general rule requiring CAA compliance when a modification is made.
Id at 887-888.
The Duke Energy court’s decision on the scope of the RMRR exclusion is inapposite. Duke Energy relied upon EPA’s “industrial source” statements to conclude that EPA has in fact traditionally applied the broader “routine within the industry” standard to PSD. And, like the Ohio Edison court, the Duke Energy court also ultimately grounded its RMRR decision in the statute, not in EPA’s regulations or guidance.
The Duke Energy court’s statutory analysis considered the context in which Congress adopted the PSD modification provision, saying that prior to the adoption of the statutory PSD program, EPA had already adopted the industry’s argued-for “routine within the source category” RMRR exclusion in its “new source performance standard” regulations. This NSPS provision states that RMRR that is determined to be “routine for a source category” shall not be considered a modification. See 40 C.F.R. § 60.14(e)(1). The court was persuaded that Congress developed the PSD program within this existing regulatory framework and that, when it added “modification” to PSD coverage, Congress did so by specifically adopting the NSPS statutory definition of “modification.” The sparse legislative history surrounding the addition of “modifications” to the PSD program was synonymous with an expressed intention to “conform” the PSE> modification provision to “usage in other parts of the act.” Congress’ reference to “usage in other parts of the act” not only included the NSPS statutory provisions, but the regulations EPA adopted to implement them as well. This expressed intention therefore required that the PSD RMRR exclusion “be consistent with the NSPS ‘usage’ of RMRR,” and “this conclusion is compelled by the statutory mandate of the PSD program and congressional intent.”
When Congress enacted the PSD program, it incorporated by explicit reference the NSPS definition of modification into the NSR definition of construction/modification. Id. § 7479(2)(C)(PSD) (“The term ‘construction’ ... includes the modification (as defined in section 7411(a) of this title [NSPS]) of any source or facility.”); id. § 7501(4)(NNSR) (“The terms ‘modifications’ and ‘modified’ mean the same as the term ‘modification’ as used in section 7411(a)(4) of this title [NSPS].”). The PSD statutory definition incorporated not only the NSPS statutory definition of modification, but also the regulations implementing the NSPS program. A House-Senate Conference Committee report explained the congressional intent “to conform” the NSR definition of modification to the “usage in other parts of the Act.” 123 Cong. Rec. H11956, 3665 (daily ed. Nov. 1, 1977) (Duke Energy Ex. 13). The EPA explained that “[t]he phrase ‘usage in other parts of the Act’ most probably refers, not only to section 111(a)(4) [NSPS], but also to the EPA regulations implementing section 111 that were in effect at the time.” 49 Fed.Reg. 43,211, 43,213 (Oct. 26, 1984) (Duke Energy Ex. 14). In addition, the Director of the Stationary Source Compliance Division, Edward E. Reich, explained:
[T]he Clean Air Act provides in Section 169(l)(c) that for PSD purposes the term modification shall be defined as that term is defined in Section 111(a) of the Act relating to NSPS. EPA has interpreted this to mean that for PSD purposes Congress intended the term modification to include all exemptions included in the NSPS regulations promulgated under Section 111 of the Act prior to the date of enactment of Section 169.
(Mem. from Reich to Davis (Apr. 21, 1983) at 2 (Duke Energy Ex. 16).) Duke Energy, 278 F.Supp.2d 619, 629.
In essence, the Duke Energy court said the CAA prohibited EPA from defining (or applying) the RMRR exclusion in any way other than the pre-existing NSPS. “routine within the source category” approach. 278 F.Supp.2d 619, 629 — 632.
To buttress its statutory construction, the court said EPA itself agreed with this construction, based on a 1984 rulemaking discussion over whether fugitive emissions should be treated the same under NSPS and PSD. As previously noted, EPA said Congress’ reference to “conforming” the PSD provisions to “usage in other parts of the act” “most probably refers, not only to [the NSPS statutory provisions], but also to the EPA regulations implementing [the NSPS statutory provisions] that were in effect at the time.” 49 Fed.Reg. 43,211, 43,213 (Oct. 26,1984). Additional ammunition came from later EPA discussions on the scope of the RMRR exclusion, including EPA’s 1988 applicability determination for Wisconsin Electric Power Co. and EPA’s 1992 WEPCO rulemaking preamble statement that “routine” is to be measured by what “has been repaired or replaced within the relevant industrial category.” 57 Fed.Reg. 32,314, 32,326 (July 21, 1992).
In fairness to the Duke Energy court, it did not accept Duke Energy’s argument that any project performed within the industry was automatically RMRR. Whether or not a project was RMRR had to be evaluated under EPA’s traditional four-factor test, but those factors had to be applied with reference to the entire source category, not an individual unit.
In summary, both the Ohio Edison and Duke Energy courts rest their RMRR analysis on the statute and what each believes Congress intended, while reaching diametrically opposite conclusions on the scope of RMRR. Ohio Edison says the RMRR exclusion is narrow; Duke Energy says it is broad.
As previously noted there were eleven (11) projects in Ohio Edison which took from thirty-seven (37) days to eight (8) months to complete, costing from $1 million more or less' to more than $28 million to complete. The court reads Ohio Edison to say that the variance in size and cost of the various projects was inconsequential. And, rather than try to resolve the various positions held by EPA over the years as to the scope and reach of the RMRR exclusion, the Ohio Edison court chose to focus instead on statutory construction, saying the narrow RMRR exclusion was reasonable and consistent with the plain language of the regulation. 276 F.Supp.2d at 855. Further, because the CAA did not contain an RMRR exclusion, the regulatory exception adopted by the EPA should be construed narrowly. In essence, because the CAA says that “any” physical change is covered, the Act requires a narrow reading of any exclusions to the sweeping statutory language. The appeal of this approach is enticing. It is also incomplete.
EPA argues here that the term “change” in the statute is not defined, and it therefore has discretion to define that term and to provide for some exclusions to it. This argument was not made by EPA in Ohio Edison because EPA argued for and agreed with that court’s de minimis conclusion. EPA revised its RMRR argument in later enforcement cases, including this one, to accommodate authority to issue the new RMRR rule. The Ohio Edison court never had the opportunity to consider whether the agency entrusted with implementing the statute had interpretive discretion in this particular area.
2. The Increased Emissions Analysis in Ohio Edison and Duke Energy
A similar dichotomy applied to the emissions increase issue. Ohio Edison adopted EPA’s proposed emissions increase test. It agreed that EPA’s decision to abandon its traditional actual-to-potential test was “well-founded.” Similarly, EPA’s “actual to projected future actual” test, from the 1992 WEPCO rulemaking, was the appropriate standard because PSD, as a pre-construction permitting program, requires an applicant to perform a pre-project estimate of emission increases that it expects to result from the project. Ohio Edison rejected the utility’s assertion that PSD emission increases only come into play where there is an increase in maximum hourly emissions. The difference, as the court understands it, is that the utility’s approach would focus on the facility’s potential emissions capacity without regard to how frequently it is operated, i.e. increased hours of operation would not be a key factor. The Ohio Edison court said such a result would allow new construction or modifications without pre-construction permits, a result that it said was odds with Congressional intent. It further noted that the Ohio SIP regulations provided no such test, holding that the “hours of operation” exclusion did not apply where the increased hours of operation were accompanied by, and not independent of, a physical change (i.e., the RMRR activity). Ohio Edison, 276 F.Supp.2d 829, 884. Finally, the court accepted EPA’s contention that those emissions increases could be based upon expected greater annual usage after the change. Applying this test, the Ohio Edison court found that each Ohio Edison project resulted in an emissions increase, based on EPA’s calculation of projected increased emissions from increased operations of the plant(s) due to decreased power outages and periods where the plant(s) would have to be shut down.
The EPA increased emission test is problematic because the reason to perform maintenance or repair work at a plant is to prevent future equipment failures. The test becomes a self-fulfilling prophecy because emission increases are inevitable: the less down times or power outages, the more operating hours; the more operating hours, the more emissions. Only the amount of increased emissions would be at issue; the larger the affected plant or unit, the greater the emissions increase. The nature and scope of the maintenance project itself would not be significant. Were one to combine Ohio Edison’s views on both prongs of the PSD applicability test, PSD would apply to virtually any capitalized maintenance or repair project that prevented enough downtime to breach the emissions increase thresholds.
The advantage to using this analysis here would be its ease of application with a corresponding gain in judicial time saved. There would much less for the court to try as the exhibits submitted by the parties show that applying the Ohio Edison analysis to APC’s RMRR activities and the associated emissions, as EPA would have them measured (per operating unit), would inevitably lead to the same result as in Ohio Edison: APC would be in breach of the Act for not obtaining pre-construction permits and for not using BACT on the construction projects.
3. The Increased Emissions Analysis In Duke Energy
Duke Energy looked to a different statutory context for guidance: the legislative context of the PSD modification program’s creation and its origins in the NSPS program. Once it decided that Congress required EPA to adopt the NSPS RMRR exclusion,' the court had little difficulty concluding that Congress also intended that EPA employ the NSPS “maximum hourly emissions” test advocated by Duke Energy. The court said EPA’s regulatory “hours of operation” exclusion required EPA to hold hours of operation constant, effectively crfeating a maximum hourly emissions rate test. Like Ohio Edison, Duke Energy rests firmly on the statute:
The explicit reference by Congress incorporating the concept of NSPS modification into PSD compels the result that PSD is triggered only by an increase in the unit’s hourly emissions rate. This court cannot envision a clearer indication of Congress’ intent to trigger PSD only when NSPS is likewise triggered by an increase in the maximum hourly emissions rate.
278 F.Supp.2d 619, 644. EPA’s position that a PSD emissions increase could occur based solely on an increase in hours of operation when accompanied by a physical change is, to the Duke Energy court, contrary to the statute.
Duke Energy also contains a detailed analysis of why EPA’s PSD “hours of operation” exclusion also requires the result reached. EPA argued that, while the PSD regulations do have an “hours of operation” exclusion, that exclusion does not apply, as the WEPCO and Ohio Edison courts found, when the increase in hours of operation is accompanied by physical construction to the unit itself. Put more simply, EPA is saying the “hours of operation” exclusion is an exemption from the “physical change/change in methods of operation” prong of the regulations, and not the “emissions increase” prong, which is separately defined. Therefore, it is more difficult to apply the “hours of operation” exclusion from the physical change prong to calculate emissions increases under the emissions increase prong of the PSD applicability test. The argument has logical appeal, but it isn’t very well supported by EPA’s NSPS precedent. NSPS does exclude hours of operation from coverage as “modifications,” but only because it does not need the exclusion to its emissions increase test;. that test is already separately defined as a “maximum hourly increase” test.
Still, when one lays Ohio Edison and Duke Energy side by side, Duke Energy’s observation that Congress clearly intended EPA to adopt the NSPS emissions increase test appears more firmly grounded in the CAA. EPA’s first regulatory PSD program, prior to creation of the statutory program, also used a maximum hourly test to define emission increases. Exhibit B. And when the agency issued its first PSD regulations after the 1977 CAA amendments, EPA also used maximum hourly emissions to define emission increases, changing the definition only in response to Alabama Poiver v. Costle, supra, and the changes dealt with issues unrelated to PSD modification applicability, dealing with netting and consumption of increment issues. The court cannot tell if EPA thought about whether the maximum hourly emissions increase test would still be available for PSD applicability purposes. And, as Duke Energy notes, the only emissions test actually in EPA’s regulations at the time was the largely discredited “actual to potential” test, which means that prior to the 1992 WEPCO rule implementing the “actuals to future actuals” test, EPA had, for many modifications, no lawful emissions increase test at all in its regulations.
VI. THE 2003 NSR RULE; THE 2005 “CAIR”
A third case, potentially significant, is State of N.Y. v. EPA (DC Cir. Case No. 02-1387), currently briefed and awaiting decision. Published on October 27, 2003, at 68 Fed.Reg. 61248 (Oct. 27, 2003) (Alabama Power Legal Tests Brief Exhibit 11) the 2003 NSR EPA rule (“the 2003 rule”) provides, inter alia, that any plant modification costing up to twenty percent (20%) of the replacement cost of the unit will be considered routine maintenance and, therefore, exempt from pollution controls, even if the plant modification results in higher levels of air pollution. In November, 2003, 14 states, the District of Columbia and 29 municipalities asked the U.S. Court of Appeals for the District of Columbia Circuit to block implementation of the 2003 EPA rule, scheduled to take effect Dec. 26, 2003. The Court did so. 2003 U.S.App. LEXIS 26520 (December 24, 2003).
The D.C. Circuit’s ruling on the validity of the 2003 EPA rule would be binding on this court. However, the ruling is unlikely to resolve the issues addressed here. State of New York v. EPA involves new NSR rules that EPA has said are not retroactive and which will not be applied retroactively. Also, predicting the scope of an anticipated decision has not been effective in this action before. This action was stayed for many months awaiting the Eleventh Circuit’s decision in TVA v. Whitman, 336 F.3d 1236 (11th Cir.2003), the thought being that the Court’s decision there would either be dispositive or heavily influential on the issues in this action. It didn’t happen: the Court’s decision in TVA, while relevant to some of the issues in this action, was not dispositive in the manner hoped.
As noted above, if applied to the APC plant(s) work in this litigation, the new EPA rule would likely result in all of the APC work going unchallenged. Alabama Power cites the 2003 Rule in support of its position, and attaches it as an exhibit. See Alabama Power Legal Tests Brief at 4 n. 18,18,19, 53, 54, 59. Exhibit 11.
The court is aware that, on May 11, 2004, the Utility Air Regulatory Group (“UARG”), representing electric utility companies, filed a Brief in State of New York v. EPA, making many of the same arguments accepted by the Duke Energy court. Specifically, UARG argues that EPA’s NSR applicability approach for the past fifteen (15) years which, stripped to basics, has involved comparing past annual emissions with future annual emissions, is flawed. EPA’s focus, set forth in its Brief, has been to determine whether there will be an increase in “total actual annual” emissions from the source. EPA Brief of Aug. 9, 2004, at p. 36, emphasis in original. UARG’s Brief says the correct approach should have been, and should be, analysis of a threshold question: if a change (modification) to a unit does not entail an increase in the nit’s “capacity to emit” — that is, its maximum hourly emission rate — the change will not trigger NSR.
If UARG’s argument, accepted by Duke Energy, is adopted by the D.C. Circuit, then the parties will presumably be back before the court, EPA repeating its argument that the 2003 Rule does not apply to APC’s projects in this action, and APC asserting that the D.C. Circuit has settled the question and that EPA is asserting a (litigation) position that has been rejected by the D.C. Circuit.
There is, strictly speaking, considerable statutory and legislative history, referenced or discussed in this Opinion, supporting the logic of the “capacity to emit” argument. And it is that statutory and legislative history, combined with the Chevron/Mead analysis found at VII. and VIII., infra, that leads the court to its conclusions herein. Having said that, the court is also aware that, if the D.C. Circuit believes adoption of the “capacity to emit” argument will result in facilities that increase annual emissions not falling under NSR because the facilities’ “capacity to emit” does not increase, there may be reluctance by the D.C. Circuit to accept this argument, well supported or not.
Recognizing that it is for higher courts, not this one, to determine these broader issues, and this court’s role is to only address the questions presented in this case or controversy, the court will do so. First, on its face, the 2003 EPA rule will not govern the issues addressed in this Opinion. The preamble states that “[n]one of today’s rule revisions apply to any changes that are the subject of existing enforcement actions that the Agency has brought and none constitute a defense thereto,” 68 Fed.Reg. 61,248, 61,264.
Second, the 2003 EPA rule and the D.C. Circuit’s ruling thereon may, by the time this action reaches the Court of Appeals, be moot. On March 10, 2005, the EPA announced the Clean Air Interstate Rule (“CAIR”), which amends 40 C.F.R. Parts 51, 72, 73, 77, 78, and 96. CAIR, which will be phased in until 2015, appears to be the first CAA rule making that is not national in scope: twenty-eight (28) states, all in the eastern half of the country, are included. Id. While even the most ardent proponent of strict statutory construction or textual analysis would have difficulty reconciling EPA’s prior rulemaking or litigation positions with CAIR, because there is nothing in the CAA, or the amendments thereto, that says EPA can issue power plant (particulate matter) emission regulations affecting half of the country while not applying those regulations to new or old sources in the rest of the country, CAIR may be upheld, implemented, and, as finally implemented, apply to the facilities in this action.
What the D.C. Circuit will eventually say about CAIR is speculative; the ongoing debate in the three branches of government about the CAA is not. In any event, the court will not apply the 2003 EPA rule retroactively, and the CAIR is, on its face, not retroactive.
VII. The Deference Due EPA’s Interpretation
In general, reviewing courts typically grant substantial deference to the EPA’s interpretation of the CAA Amendments and its implementing regulations. The reasoning behind this deferential review is that “considerable weight should be accorded to an executive department’s construction of a statutory scheme it is entrusted to administer.” Chevron U.S.A Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837, 844, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984) (“Chevron ”). Deference to agency interpretation is particularly appropriate where the subject being regulated is technical and complex. Aluminum Co. of Am. v. Central Lincoln Peoples’ Util. Dist., 467 U.S. 380, 390, 104 S.Ct. 2472, 81 L.Ed.2d 301 (1984). An agency’s interpretation of its own regulations must be given “ ‘controlling weight unless it is plainly erroneous or inconsistent with the regulation.’ ” Udall v. Tollman, 380 U.S. 1, 16-17, 85 S.Ct. 792, 13 L.Ed.2d 616 (1965) (quoting Bowles v. Seminole Rock & Sand Co., 325 U.S. 410, 413-14, 65 S.Ct. 1215, 89 L.Ed. 1700 (1945)). However, “this standard does not give the EPA unbridled discretion to construe the [CAA] Amendments free from judicial oversight. [The court] must consider whether the EPA’s construction comports with its statutory mandate and Congress’s intent in enacting clean air legislation.” WEPCO, 893 F.2d 901 at 907.
As already noted, there is surprisingly little authority on the issues presented here despite the number of utilities sued and the substantial sums of money involved. While not dispositive, an obvious consideration for this court is how much deference is accorded the EPA. WEPCO accorded substantial deference to EPA, but WEPCO and Chevron no longer exist in a vacuum. In its August 5, 2004, Scheduling Order, the court directed the parties to address the significance of WEPCO and the impact of U.S. v. Mead Corp., 533 U.S. 218, 121 S.Ct. 2164, 150 L.Ed.2d 292 (2001).
Mead’s impact on NSR litigation has already attracted comment. See, e.g., Michael P. Healy, Spurious Interpretation Redux: Mead and the Shrinking Domain of Statutory Ambiguity, 54 Admin.L.Rev. 673 (2002); Duke Energy, supra, 278 F.Supp.2d 619, 641-42 (refusing to defer to an EPA interpretation that was clearly contrary to earlier interpretations).
Because Mead or, more accurately, to what end its application leads, is an important question, the court sets out verbatim the applicable portions of the Court’s discussion, with accompanying footnotes:
When Congress has “explicitly left a gap for an agency to fill, there is an express delegation of authority to the agency to elucidate a specific provision of the statute by regulation,” Chevron, 467 U.S., at 843-844, 104 S.Ct. 2778, 81 L.Ed.2d 694, and any ensuing regulation is binding in the courts unless procedurally defective, arbitrary or capricious in substance, or manifestly contrary to the statute. [FN6] See id., at 844, 467 U.S. 837, 104 S.Ct. 2778, 81 L.Ed.2d 694; United States v. Morton, 467 U.S. 822, 834, 104 S.Ct. 2769, 81 L.Ed.2d 680 (1984); APA, 5 U.S.C. §§ 706(2)(A), (D). But whether or not they enjoy any express delegation of authority on a particular question, agencies charged with applying a statute necessarily make all sorts of interpretive choices, and while not all of those choices bind judges to follow them, they certainly may influence courts facing questions the agencies have already answered. “[T]he well-reasoned views of the agencies implementing a statute ‘constitute a body of experience and informed judgment to which courts and litigants may properly resort for guidance,’ ” Bragdon v. Abbott, 524 U.S. 624, 642; 118 S.Ct. 2196, 141 L.Ed.2d 540 (1998) (quoting Skidmore, 323 U.S., at 139-140, 65 S.Ct. 161), and “[w]e have long recognized that considerable weight should be accorded to an executive department’s construction of a statutory scheme it is entrusted to administer .... ” Chevron, supra, at 844, 104 S.Ct. 2778 (footnote omitted); see also Ford Motor Credit Co. v. Milhollin, 444 U.S. 555, 565, 100 S.Ct. 790, 63 L.Ed.2d 22 (1980); Zenith Radio Corp. v. United States, 437 U.S. 443, 450, 98 S.Ct. 2441, 57 L.Ed.2d 337 (1978). The fair measure of deference to an agency administering its own statute has been understood to vary with circumstances, and courts have looked to the degree of the agency’s care, [FN7] its consistency, [FN8] formality, [FN9] and relative expertness, [FN10] and to the persuasiveness of the agency’s position, see Skid-more, supra, at 139-140, 65 S.Ct. 161. The approach has produced a spectrum of judicial responses, from great respect at one end, see, e.g., Aluminum Co. of America v. Central Lincoln Peoples’ Util. Dist., 467 U.S. 380, 389-390, 104 S.Ct. 2472, 81 L.Ed.2d 301 (1984) (“ ‘substantial deference’ ” to administrative construction), to near indifference at the other, see, e.g., Bowen v. Georgetown Univ. Hospital, 488 U.S. 204, 212-213, 109 S.Ct. 468, 102 L.Ed.2d 493 (1988) (interpretation advanced for the first time in a litigation brief). Justice Jackson summed things up in Skidmore v. Swift & Co.:
“The weight [accorded to an administrative] judgment in a particular case will depend upon the thoroughness evident in its consideration, the validity of its reasoning, its consistency with earlier and later pronouncements, and all those factors which give it power to persuade, if lacking power to control.” 323 U.S., at 140, [65 S.Ct. 161],
Since 1984, we have identified a category of interpretive choices distinguished by an additional reason for judicial deference. This Court in Chevron recognized that Congress not only engages in express delegation of specific interpretive authority, but that “[s]ome-times the legislative delegation to an agency on a particular question is implicit.” 467 U.S., at 844, 104 S.Ct. 2778. Congress, that is, may not have expressly delegated authority or responsibility to implement a particular provision or fill a particular gap. Yet it can still be apparent from the agency’s generally conferred authority and other statutory circumstances that Congress would expect the agency to be able to speak with the force of law when it addresses ambiguity in the statute or fills a space in the enacted law, even one about which “Congress did not actually have an intent” as to a particular result. Id., at 845, 104 S.Ct. 2778. When circumstances implying such an expectation exist, a reviewing court has no business rejecting an agency’s exercise of its generally conferred authority to resolve a particular statutory ambiguity simply because the agency’s chosen resolution seems unwise, see id., at 845-846, 104 S.Ct. 2778, but is obliged to accept the agency’s position if Congress has not previously spoken to the point at issue and the agency’s interpretation is reasonable, see id., at 842-845,104 S.Ct. 2778; cf. 5 U.S.C. § 706(2) (a reviewing court shall set aside agency action, findings, and conclusions found to be “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law”).
We have recognized a very good indicator of delegation meriting Chevron treatment in express congressional authorizations to engage in the process of rulemaking or adjudication that produces regulations or rulings for which deference is claimed. See, e.g., EEOC v. Arabian American Oil Co., 499 U.S. 244, 257, 111 S.Ct. 1227,113 L.Ed.2d 274 (1991) (no Chevron deference to agency guideline where congressional delegation did not include the power to “ ‘promulgate rules or regulations’ ” (quoting General Elec. Co. v. Gilbert, 429 U.S. 125, 141, 97 S.Ct. 401, 50 L.Ed.2d 343 (1976))); see also Christensen v. Harris County, 529 U.S. 576, 596-597, 120 S.Ct. 1655, 146 L.Ed.2d 621 (2000) (BREYER, J., dissenting) (where it is in doubt that Congress actually intended to delegate particular interpretive authority to an agency, Chevron is “inapplicable”). It is fair to assume generally that Congress contemplates administrative action with the effect of law when it provides for a relatively formal administrative procedure tending to foster the fairness and deliberation that should underlie a pronouncement of such force. [FN11] Cf. Smiley v. Citibank (South Dakota), N. A., 517 U.S. 735, 741, 116 S.Ct. 1730, 135 L.Ed.2d 25 (1996) (APA notice and comment “designed to assure due deliberation”). Thus, the overwhelming number of our cases applying Chevron deference have reviewed the fruits of notice-and-comment rulemaking or formal adjudication. [FN12 (omitted)] That said, and as significant as notice-and-comment is in pointing to Chevron authority, the want of that procedure here does not decide the case, for we have sometimes found reasons for Chevron deference even when no such administrative formality was required and none was afforded, see, e.g., NationsBank of N.C., N.A. v. Variable Annuity Life Ins. Co., 513 U.S. 251, 256-257, 263, 115 S.Ct. 810, 130 L.Ed.2d 740 (1995). [FN13 (omitted) ] The fact that the tariff classification here was not a product of such formal process does not alone, therefore, bar the application of Chevron.
FN6. Assuming in each case, of course, that the agency’s exercise of authority is constitutional, see 5 U.S.C. § 706(2)(B), and does not exceed its jurisdiction, see § 706(2)(C).
FN7. See, e.g., General Elec. Co. v. Gilbert, 429 U.S. 125, 142, 97 S.Ct. 401, 50 L.Ed.2d 343 (1976) (courts consider the “ ‘thoroughness evident in [the agency’s] consideration’ ” (quoting Skidmore v. Swift & Co., 323 U.S. 134, 140, 65 S.Ct. 161, 89 L.Ed. 124 (1944))).
FN8. See, e.g., Good Samaritan Hospital v. Shalala, 508 U.S. 402, 417, 113 S.Ct. 2151, 124 L.Ed.2d 368 (1993) (“[T]he consistency of an agency’s position is a factor in assessing the weight that position is due”).
FN9. See, e.g., Reno v. Koray, 515 U.S. 50, 61, 115 S.Ct. 2021, 132 L.Ed.2d 46 (1995) (internal agency guideline that is not “subject to the rigors of the [APA], including public notice and comment,” is entitled only to “some deference” (internal quotation marks omitted)).
FN10. See, e.g., Aluminum Co. of America v. Central Lincoln Peoples’ Util. Disk, 467 U.S. 380, 390, 104 S.Ct. 2472, 81 L.Ed.2d 301 (1984).
FN11. See Merrill & Hickman, Chevron’s Domain, 89 Geo. L.J. 833, 872 (2001) (“[I]f Chevron rests on a presumption' about congressional intent, then Chevron should apply only where Congress would want Chevron to apply. In delineating the types of delegations of agency authority that trigger Chevron deference, it is therefore important to determine whether a plausible case can be made that Congress would want such a delegation to mean that agencies enjoy primary interpretational authority”).
United States v. Mead Corp., 533 U.S. 218, 229 — 231,121 S.Ct. 2164.
VIII. WEPCO, CHEVRON AND MEAD IN THE ELEVENTH CIRCUIT
WEPCO