B-247038.3 August 7, 1992

B-247038.3: Aug 7, 1992

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Because Clean Air Act operating program permit regulations are not specifically required to be developed under section 307(d)(1). That presumption was not overcome since the Administrator made neither an express nor an implied determination. As he was authorized to do. Chairman: The following is in response to your request for our opinion whether regulations issued by the Environmental Protection Agency (EPA) pertaining to the operating permit program under the Clean Air Act were subject to the rulemaking procedures of section 307 of that Act. We conclude that these regulations were not subject to the rulemaking procedures of section 307. Is open to the public. Rulemaking for the operating permit program is not included on this list.

B-247038.3 August 7, 1992

Because Clean Air Act operating program permit regulations are not specifically required to be developed under section 307(d)(1), there exists a presumption that the rulemaking provisions do not apply. That presumption was not overcome since the Administrator made neither an express nor an implied determination, as he was authorized to do, that the rulemaking provisions of section 307(d) applied.

The Honorable John D. Dingell Chairman, Subcommittee on Oversight and Investigations Committee on Energy and Commerce House of Representatives

Dear Mr. Chairman:

The following is in response to your request for our opinion whether regulations issued by the Environmental Protection Agency (EPA) pertaining to the operating permit program under the Clean Air Act were subject to the rulemaking procedures of section 307 of that Act, and if so, whether EPA could later elect to use Administrative Procedure Act processes for the rulemaking. We conclude that these regulations were not subject to the rulemaking procedures of section 307.

In 1977, Congress enacted section 307 of the Clean Air Act to create specific procedures to be applicable to certain rulemaking under the Act. These procedures require EPA to establish an extensive "rulemaking docket" that, among other things, is open to the public. (Clean Air Act SEC. 307(d)(2) (3), (4) (B) (i), (6).) The Administrative Procedure Act, in contrast, does not prescribe any procedures for assembling a record for judicial review of informal rulemaking.

Section 307(d) of the Clean Air Act specifically lists the situations to which its special rulemaking procedures apply, including "such other actions as the Administrator may determine." Rulemaking for the operating permit program is not included on this list. (Section 307(d) (l) (v).) The question then is whether the Administrator determined expressly or by necessary implication that section 307(d) of the Clean Air Act would apply to the rulemaking for the operating permit program regulations.

The pertinent language of the Notice of Proposed Rulemaking is as follows:

"The docket is an organized and complete file of all the information submitted to or otherwise considered by EPA in the development of this proposed rulemaking. The principal purposes of the docket are: (1) To allow interested parties a means to identify and locate documents so that they can effectively participate in the rulemaking process and (2) to serve as the record in case of judicial review (except for interagency review materials) (307 (d) (7) (A))." (56 Fed. Reg. 21,712, at 21,766 (1991) (to be codified at 40 C.F.R. pt. 70) (proposed May 10, 1991).)

The Notice of Proposed Rulemaking for the operating permit program regulations does not contain an express determination by the EPA Administrator, nor do we find such a determination to be necessarily implied. The pertinent language only makes reference to the docket to be used in the rulemaking and does not mention section 307 (d) (1) (v), the source of the Administrator's authority to make special determinations. Furthermore, our research did not reveal any instances where EPA has applied the special procedures to a rulemaking not specifically listed in section 307 (d). Finally, we informally corroborated our analysis with an EPA attorney, who advised us that the quoted Notice of Proposed Rulemaking was not intended to constitute a determination by the Administrator under section 307 (d) (1) (v).

Because it appears that the EPA Administrator made neither an express nor an implied determination that the rulemaking procedures of section 307(d) applied to the promulgation of operating permit program regulations, we do not address your second question.