Petitioners Reply Brief 3-26-15

NO. 14–60649

IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

ENVIRONMENTAL INTEGRITY PROJECT; TEXAS ENVIRONMENTAL

JUSTICE ADVOCACY SERVICES; COMMUNITY IN POWER & DEVELOPMENT ASSOCIATION; CITIZENS FOR ENVIRONMENTAL JUSTICE; AIR ALLIANCE HOUSTON; TEXAS CAMPAIGN FOR THE

ENVIRONMENT; and TEXAS IMPACT,

Petitioners, v.

UNITED STATES ENVIRONMENTAL PROTECTION AGENCY,

Respondent,

On Petition for Review, Approval and Promulgation of Implementation Plans; Texas; Revisions to the New Source Review State Implementation Plan; Flexible

Permit Program, 79 Fed. Reg. 40,666

REPLY BRIEF OF PETITIONERS

Charles W. Irvine Attorney-in-Charge IRVINE & CONNER PLLC 4709 Austin Street Houston, Texas 77004 713-533-1704 Counsel for Petitioners

March 26, 2015

Gabriel Clark-Leach Environmental Integrity Project 1002 West Avenue, Suite 305 Austin, Texas 78701 512-637-9478

Case: 14-60649 Document: 00512983474 Page: 1 Date Filed: 03/26/2015

i.

TABLE OF CONTENTS

TABLE OF CONTENTS .......................................................................................... i

TABLE OF AUTHORITIES ................................................................................... iii

SUMMARY OF ARGUMENT ON REPLY ........................................................... 1

ARGUMENT ............................................................................................................ 2

I. This Court’s decision in Flex I Does Not Bar Petitioners’ Claims ............... 2

A. Petitioners raise new issues, on a different procedural posture ............... 4

B. EPA and Intervenors overstate the scope of Flex I and a court’s role in reviewing agency actions ............................................................ 5

C. A holding that Section 116.711 assures compliance was unnecessary for the Flex I judgment ...................................................... 8

II. EPA’s and Intervenors’ Characterization Of The Program As a “Minor NSR SIP Revision” Is a Red Herring ................................................ 9

A. There are not separate “Major” and “Minor” programs in Texas because the rules are completely interdependent ......................... 9

B. Unquestionably, the Flexible Permit Program regulates construction of new and modified major sources ................................. 11

C. The Program revises requirements contained in Texas’s “Major” NSR SIPs ................................................................................ 13

III. EPA’s Approval Of The Flexible Permit Program Is Not Supported By The Text Of The Program Rules ........................................... 14

A. EPA’s reading of Sections 116.711, 116.718 and 116.721 is arbitrary and capricious ..................................................................... 15

B. Texas does not agree with EPA’s reading of Sections 116.718 and 116.721 ............................................................................. 18

C. EPA’s reading of the Program’s definition of “Modification” is arbitrary and capricious ..................................................................... 20


ii.

D. EPA’s interpretation is inconsistent with its interpretation of the disapproved Texas Qualified Facilities rules ............................. 25

E. EPA’s interpretation of Texas’s Program rules to support approval is not entitled to deference ..................................................... 27

IV. The Program Interferes With PSD Public Participation Requirements ........ 27

V. Petitioners Have Standing ............................................................................ 29

CONCLUSION ....................................................................................................... 30


iii.

TABLE OF AUTHORITIES

Cases

Alpha/Omega Ins. Services v. Prudential Ins. Co., 272 F.3d 276 (5th Cir. 2001) ................................................................................ 5

BCCA Appeal Grp. v. EPA, 476 F.App’x 579 (5th Cir. 2012) ............................... 25

Chapman v. Nat’l Aeronautics & Space Admin., 736 F.2d 238 (5th Cir. 1984) ................................................................................ 5

Chicago v. Environmental Defense Fund, 511 U.S. 328 (1994) ............................ 23

Christianson v. Colt Industries, 486 U.S. 800 (1988) ............................................ 30

Davis v. Michigan Dep’t of the Treasury, 489 U.S. 803 (1989) ............................... 8

Diamond Roofing Co. v. Occupational Safety & Health Review Comm’n, 528 F.2d 645 (5th Cir. 1976) .............................................................................. 17

INS v. Ventura, 537 U.S. 12 (2002) .......................................................................... 6

New York v. EPA, 413 F.3d 3 (D.C. Cir. 2005) ...................................................... 11

Northern Ohio Lung Ass’n v. EPA, 572 F.2d 1143 (6th Cir. 1978) ......................... 7

Northshore Min. Co. v. Sec’y of Labor, 709 F.3d 706 (8th Cir. 2013) ..................... 8

SEC v. Chenery Corp., 332 U.S. 194 (1947) ........................................................ 3, 6

Sierra Club v. Otter Tail Power Co., 615 F.3d 1008 (8th Cir. 2010) ..................... 15

Texas Office of Pub. Utility Counsel v. FCC, 183 F.3d 393 (5th Cir. 1999) ................................................................................ 5

Texas v. EPA, 690 F.3d 670 (5th Cir. 2012) .................................................... passim

Union Elec. Co. v. EPA, 427 U.S. 246 (1976) .......................................................... 8

United States v. EME Homer City Generation, 727 F.3d 274 (3d Cir. 2013) ........ 14

Winters v. Diamond Shamrock Chem. Co., 149 F.3d 387 (5th Cir. 1998) ............... 8


iv.

Statutes

42 U.S.C. § 7410 ..................................................................................................... 30

42 U.S.C. § 7410(a)(2) ............................................................................................. 8

42 U.S.C. § 7410(a)(2)(C) ...................................................................................... 27

42 U.S.C. § 7410(a)(2)(E) ................................................................................ 27, 29

42 U.S.C. § 7410(k)(3) ......................................................................................... 6, 7

42 U.S.C. § 7410(l) ................................................................................................. 27

42 U.S.C. § 7475(a)(1) ............................................................................................. 5

42 U.S.C. § 7475(a)(2) ........................................................................................... 27

42 U.S.C. § 7502(c)(5) ............................................................................................. 5

42 U.S.C. § 7503(a) .................................................................................................. 5

Tex. Health & Safety Code § 382.056(g) ............................................................... 28

Texas Regulations

30 Tex. Admin. Code § 116.10 ............................................................................... 22

30 Tex. Admin. Code § 116.10(9) .......................................................................... 20

30 Tex. Admin. Code § 116.10(9)(D) .................................................................... 25

30 Tex. Admin. Code § 116.10(9)(E) .............................................................. passim

30 Tex. Admin. Code § 116.110(a) ............................................................ 10, 13, 20

30 Tex. Admin. Code § 116.111 ....................................................................... 10, 19

30 Tex. Admin. Code § 116.116(b) ........................................................................ 10

30 Tex. Admin. Code § 116.116(b)(1)(C) .............................................................. 11

30 Tex. Admin. Code § 116.116(e)(1)(B) .............................................................. 26


v.

30 Tex. Admin. Code § 116.12 ......................................................................... 22, 23

30 Tex. Admin. Code § 116.150 ............................................................................. 10

30 Tex. Admin. Code § 116.151 ............................................................................. 10

30 Tex. Admin. Code § 116.160 ............................................................................. 10

30 Tex. Admin. Code § 116.160(b)(1) ................................................................... 24

30 Tex. Admin. Code § 116.710 ............................................................................. 10

30 Tex. Admin. Code § 116.711 ...................................................................... passim

30 Tex. Admin. Code § 116.711(2)(C)(ii) ........................................................ 12, 23

30 Tex. Admin. Code § 116.711(2)(H) ............................................................ 12, 20

30 Tex. Admin. Code § 116.711(2)(I) .............................................................. 12, 20

30 Tex. Admin. Code § 116.715(c)(11) ................................................................. 17

30 Tex. Admin. Code § 116.716(c)(1)(A) ........................................................ 12, 23

30 Tex. Admin. Code § 116.716(c)(2) ................................................................... 12



30 Tex. Admin. Code § 116.721(a) ............................................................ 10, 16, 17

30 Tex. Admin. Code § 55.101(e) .......................................................................... 28

30 Tex. Admin. Code §116.116(c)(1) .................................................................... 13

Federal regulations

40 C.F.R. § 51.166(a)(7)(i) ..................................................................................... 11

40 C.F.R. § 52.21 .................................................................................................... 10

40 C.F.R. § 52.21(a)(2)(iii) ..................................................................................... 10


vi.

Federal Register

57 Fed. Reg. 28,093 ................................................................................................ 13

60 Fed. Reg. 49,781 ................................................................................................ 13

75 Fed. Reg. 19,468 ................................................................................................ 25

75 Fed. Reg. 41,312 .................................................................................................. 2

79 Fed. Reg. 40,666 ................................................................................................ 17

79 Fed. Reg. 8,368 .................................................................................................. 12

Texas Register

35 Tex. Reg. 11,909 .................................................................................... 18, 19, 23

39 Tex. Reg. 5,557 ...................................................................................... 18, 19, 24


1.

SUMMARY OF ARGUMENT ON REPLY

After a source is granted a flexible permit, all subsequent actions by the

source are governed by the Texas’s Flexible Permit Program (the “Program”) and

the rules found in Subchapter G. As Petitioners have briefed, these rules plainly

state that New Source Review (“NSR”) is only triggered when an “application” is

required. These rules also plainly state that projects which increase air emissions,

but that do not exceed the emissions cap (the “allowables”) are “insignificant” and

thereby do not trigger the application or amendment process. Thus, following the

plain language of the Program rules, a source can make major modifications that

increase actual air emissions above the level allowed by the Clean Air Act, without

triggering preconstruction permitting requirements because it has a Texas flexible

permit.

In their briefs, EPA and Intervenors overstate this Court’s ruling in Flex I

and sow confusion about an already complicated set of rules by claiming that the

Program is only a “minor” NSR program. The Court should not be misled: this

case raises new legal issues on a different procedural posture than Flex I, which

does not bar Petitioners’ claims. Additionally, as Texas must know, the Texas State

Implementation Plan (“SIP”) does not establish separate “major” and “minor” NSR

programs running in parallel to one another. The rules are interdependent, as

evidenced by the fact that Texas’s major NSR permitting rules do not contain


2.

provisions requiring applicants to obtain permits. The notion that the Program is

only for “minor NSR” is a red herring.

EPA’s defense of its approval must fail, because it focuses on these

distractions and does not address the Program’s actual deficiency. The Program is

not deficient because it fails to contain a prohibition on circumvention or because

its rules are ambiguous. The Program is deficient because it allows major sources

covered by flexible permits to construct major modifications without any agency

review, so long as post-project emissions remain below flexible permit emission

caps.

ARGUMENT

I. This Court’s decision in Flex I Does Not Bar Petitioners’ Claims

Flex I concerned EPA’s disapproval of the Program. In 2010, EPA

disapproved the Program because it was ambiguous regarding circumvention of

Major NSR. Texas v. EPA (“Flex I”), 690 F.3d 670, 676 (5th Cir. 2012);

Disapproval of Texas’s Flexible Permit Program, 75 Fed. Reg. 41,312 at 41,318

(July 15, 2010). EPA said the Program was ambiguous for two reasons. First, the

permit application rule—30 Texas Administrative Code § 116.711—did not

expressly prohibit circumvention of the State’s Prevention of Significant

Deterioration (“PSD”) and Nonattainment New Source Review (“NNSR”) rules.


3.

Second, EPA thought that this rule was unclear about how applicants should

demonstrate compliance with Texas’s PSD and NNSR rules.1

This Court rejected EPA’s argument that Section 116.711 was ambiguous,

because that rule required applicants to demonstrate compliance with Texas’s PSD

and NNSR rules before the State could issue a flexible permit. Flex I, 690 F.3d at

678. The Court also held that EPA’s concern about circumvention amounted to

quibbling about drafting preferences, which could not support disapproval. Id. at

679.

EPA’s circumvention arguments in Flex I only addressed Section 116.711,

the Program rule providing for demonstrations an applicant must make to obtain a

new or amended flexible permit. But here, EPA and Intervenors contend that the

Court’s decision requires EPA to approve the Program in its entirety without

considering whether its provisions for projects undertaken after a flexible permit is

issued assure compliance with the Act’s PSD and NNSR requirements. EPA Br. at

26; Texas Br. at 2, 8; BCCA Br. at 23. This argument overstates the scope this

Court’s decision in Flex I, misstates the issues actually litigated in Flex I, and

attempts to “propel the court into the domain which Congress has set aside

exclusively for the administrative agency.” SEC v. Chenery Corp., 332 U.S. 194,

196 (1947).

1 EPA’s position was also articulated in its briefing in Flex I. See generally Brief of Respondent EPA, 2011 WL 791851 at *22–24.


4.

A. Petitioners raise new issues, on a different procedural posture

Petitioners do not deny that Section 116.711 unambiguously requires

applicants to demonstrate compliance with Texas’s PSD and NNSR rules before

the State may issue or amend a flexible permit. Rather, Petitioners challenge

EPA’s approval because the Program exempts sources already covered by a

flexible permit from the Act’s preconstruction permitting requirements as long as

that source has a sufficiently high flexible permit cap, or “allowable,” limit. The

effect of this post-permit issuance exemption was not litigated in Flex I and is the

basis for Petitioners’ challenge to EPA’s Program approval.

Specifically, Petitioners contend that the Flexible Permit Program rules at 30

Texas Administrative Code §§ 116.721, 116.718, and 116.10(9)(E) create

improper allowables-based exemptions from the Act’s PSD and NNSR

requirements to (1) determine whether a project is a major modification and (2)

obtain a permit before constructing a major modification. See 30 Tex. Admin.

Code §§ 116.721 (providing that only significant project increases require an

amendment); 116.718 (providing that only increases above the cap allowables are

significant); 116.10(9)(E) (providing that changes “within the scope of a flexible

permit” are not modifications that require a permit or permit amendment). To be

clear, Petitioners do not claim that these rules are confusing, ambiguous, or may

provide cover for operators who would like to avoid applicable permitting


5.

requirements. Instead, these rules straightforwardly eliminate otherwise applicable

federal requirements and thereby interfere with the Act’s PSD and NNSR

preconstruction provisions.

The law of the case and collateral estoppel doctrines cannot bar these new

arguments, which were not raised by parties and were “not necessary predicates to

the court’s ability to address the issue… specifically discussed” in Flex I.

Alpha/Omega Ins. Services v. Prudential Ins. Co., 272 F.3d 276, 279 (5th Cir.

2001) (“[T]he law of the case doctrine applies only to issues that were actually

decided, rather than all questions in the case that might have been decided, but

were not.”); Texas Office of Pub. Utility Counsel v. FCC, 183 F.3d 393, 435 n.75

(5th Cir. 1999) (holding Petitioners were not estopped from challenging agency

timetable, even though the timetable had been previously challenged, because the

subsequent challenge was based on broader considerations that were not

considered in the previous litigation); Chapman v. Nat’l Aeronautics & Space

Admin., 736 F.2d 238, 241 (5th Cir. 1984).

B. EPA and Intervenors overstate the scope of Flex I and a court’s role in reviewing agency actions

Petitioners have identified Program rules not considered in Flex 1 that

eliminate PSD and NNSR requirements for certain projects at major sources

covered by a previously-issued flexible permit. These rules interfere with Clean

Air Act requirements. See, e.g. 42 U.S.C. §§ 7475(a)(1); 7502(c)(5); 7503(a)


6.

(forbidding major modifications without NSR review). Flex I cannot compel EPA

to approve the Program despite these defects.

The EPA Administrator alone is empowered to approve a SIP revision and a

“revision shall not be treated as meeting the requirements of this chapter until the

Administrator approves the entire plan revision as complying with” the Act. 42

U.S.C. § 7410(k)(3). To this end, it is a “fundamental rule of administrative law”

that courts reviewing a decision that an administrative agency alone is authorized

to make, must judge the propriety of such action solely by the grounds invoked by

the agency. Chenery, 332 U.S. at 196. If an agency’s grounds for decision are

inadequate, the court is powerless to affirm the action or to render judgment in

place of the agency “by substituting what it considers to be a more adequate or

proper basis.” Id. ; INS v. Ventura, 537 U.S. 12, 16 (2002) (“A court of appeals is

not generally empowered to conduct a de novo inquiry into the matter being

reviewed and to reach its own conclusions based on such an inquiry”) (internal

quotation marks omitted). Congress generally intended the administrative agency,

not the courts to render such decisions. See Chenery. 332 U.S. at 196.

Disregarding this fundamental rule, EPA and Intervenors contend that “the

principal issue litigated and decided in Flex I” was not whether EPA based its

disapproval on appropriate considerations, but “whether Texas’s Flexible Permit

Program allows Major NSR evasion.” BCCA Br. at 23 (internal quotation marks


7.

omitted); EPA Br. at 26–27; Texas Br. at 19–20. But the broad question of whether

the Program complies with the Act’s PSD and NNSR provisions was not ripe for

litigation in Flex I, because the Administrator had not approved Texas’s SIP

revision. See 42 U.S.C. § 7410(k)(3) (“The plan revision shall not be treated as

meeting the requirements of this chapter until the Administrator approves the…

plan revision”); Northern Ohio Lung Ass’n v. EPA, 572 F.2d 1143, 1148 (6th Cir.

1978) (“It is not for us to determine in the first instance whether the Ohio SIP

meets all the criteria of the statute. That responsibility rests with the

Administrator”).

The only question before the Court in Flex I was whether EPA’s disapproval

was based on relevant considerations and supported by the record. The Court held

that EPA’s approval was arbitrary and capricious, because the Agency

misinterpreted unambiguous language in Section 116.711 and because the Act does

not authorize the Agency to disapprove SIP revisions over drafting concerns. Flex

I, 690 F.3d at 679.

Intervenors now contend that the Flex I Court’s reading of that single rule

precludes any finding that the Program rules interferes with the Act’s PSD or

NNSR requirements, for any reason. E.g., BCCA Br. at 23 (“[T]he Court held that

EPA had no authority to disapprove the Program on the ground that it potentially

allowed sources to evade Major NSR requirements for new construction or


8.

modifications”).2 This reading drastically overstates the holding of Flex I and what

the Court could do given the procedural posture of that case. It is also contrary to

rules of regulatory construction. Regulatory language “cannot be construed in a

vacuum” and the meaning of a rule must be considered within the context of the

overall regulatory scheme. Northshore Min. Co. v. Sec’y of Labor, 709 F.3d 706,

710 (8th Cir. 2013) (citing Davis v. Michigan Dep’t of the Treasury, 489 U.S. 803,

809 (1989)).

C. A holding that Section 116.711 assures compliance was unnecessary for the Flex I judgment

Even if the Flex I decision were broadly interpreted as holding that Section

116.711 assures compliance with Texas’s Major NSR requirements, such a holding

does not bar consideration of Petitioners’ suit here, because it was unnecessary to

support the Court’s judgment that EPA’s disapproval was arbitrary and capricious.

Winters v. Diamond Shamrock Chem. Co., 149 F.3d 387, 391 (5th Cir. 1998) (re-

litigation of an issue is only barred if “the issue was necessary to support the

judgment in the prior case”).

The Act identifies the factors EPA must consider before acting on a SIP

revision. 42 U.S.C. § 7410(a)(2); Union Elec. Co. v. EPA, 427 U.S. 246, 257–58

(1976) (holding that EPA did not have discretion to disapprove plan based on

considerations not listed in the Act). EPA’s decision to base its disapproval on

2 This purported holding is not actually stated in Flex 1.


9.

drafting concerns rather than factors listed in the Act was sufficient reason to

vacate the Agency’s disapproval. Flex I, 690 F.3d at 679 (stating “the

administrative record reflects that the EPA’s rejection is based, in essence, on the

Agency’s preference for a different drafting style, instead of standards Congress

provided in the CAA”). Because EPA’s disapproval was based on irrelevant

concerns, the Court did not need to determine that Section 116.711 assures

compliance with Clean Air Act requirements both before and after a flexible

permit is issued in order to vacate the EPA decision.

II. EPA’s and Intervenors’ Characterization Of The Program As a “Minor NSR SIP Revision” Is a Red Herring

EPA and Intervenors believe it is dispositive of this case that Texas calls its

Program a “minor NSR SIP revision.” But that term is not actually defined in the

Clean Air Act, the Texas Clean Air Act, or applicable regulations. The term itself

is a litigation argument. The Program is not a “minor NSR SIP revision” in any

way that governs the outcome of this case.

A. There are not separate “Major” and “Minor” programs in Texas because the rules are completely interdependent

EPA’s and Intervenors’ briefs advance the mistaken proposition that the

Texas SIP establishes separate “parallel” permitting programs for major and minor

projects. EPA Br. at 13–14; Texas. Br. at 15–16 (“[T]he Program references and

leaves wholly intact Texas’s Major NSR program”), 21–22; BCCA Br. at 15–17,


10.

26–30. Texas’s so-called “major” rules at 30 Texas Administrative Code, Chapter

116, Subchapter B, Divisions 5 and 6 are not “parallel” to Texas’s so-called

“minor” rules, because the “major” rules do not require applicants to obtain a new

or amended permit for any project. See, e.g., 30 Tex. Admin. Code § 116.160

(incorporating by reference many requirements found in EPA’s PSD rule at 40

C.F.R. § 52.21, but not 52.21(a)(2)(iii), which forbids construction of any major

modification without a permit); see also id. §§ 116.150; 116.151. Instead, Texas’s

“major” rules establish special requirements that must be reflected in permits

issued pursuant to Texas’s so-called “minor” rules for major projects. That is why

EPA’s approval of Texas’s PSD and NNSR SIPs incorporated requirements Texas

now misleadingly insists on calling “minor.” See infra Section II.C.

As a result of the way Texas structured its preconstruction permitting rules,

Texas’s “major” rules have no bearing on the permitting process for projects that

do not require a permit or permit amendment. Because requirements in Texas’s

“major” rules are brought to bear on the permitting process through Texas’s

“minor” rules, Texas’s so-called “major” and “minor” rules are not parallel. See 30

Tex. Admin. Code §§ 116.110(a); 116.111; 116.116(b); 116.710; 116.721(a). They

are completely interdependent.

Even though the Program does not delete or rewrite any of Texas’s “major”

rules, it allows operators to construct major modifications at sources covered by a


11.

flexible permit without a permit or permit amendment, so long as emissions remain

below allowables. Compare 30 Tex. Admin. Code § 116.116(b)(1)(C) (requiring a

permit amendment to authorize any project emissions rate increase), with

§§ 116.718 and 116.721 (only requiring a permit amendment to authorize increases

in allowables); see also § 116.10(9)(E) (changes “within the scope of a flexible

permit” are no longer modifications that require a permit or permit amendment).

In this way, the Program improperly ties the Act’s major modification

permitting requirement to increases in allowable emissions instead of increases in

actual emissions. New York v. EPA, 413 F.3d 3, 40 (D.C. Cir. 2005) (“[T]he plain

language of the CAA… appl[ies major] NSR to changes that increase actual

emissions instead of potential or allowable emissions”). For this reason, EPA’s

attempt to distinguish the Program from its vacated Clean Unit Program on the

ground that one is “minor” and one is “major” fails. EPA Br. at 32–33. The

Program plainly creates an allowables-based exemption to requirements in the

Texas SIP that implement the Act’s PSD and NNSR permitting requirements.

B. Unquestionably, the Flexible Permit Program regulates construction of new and modified major sources

The Act’s Major NSR requirements apply to construction of new and

modified major sources. 40 C.F.R. § 51.166(a)(7)(i) (PSD program requirements

“apply to the construction of any new major stationary source… or any project at

an existing major stationary source”) (emphasis added); Texas. Br. at 5–6. Minor


12.

NSR requirements “pertain[] to the construction of new minor sources and to

minor modifications of minor sources.” Id. at 7. The Program straightforwardly

provides that flexible permits may authorize construction of new and modified

major sources, including major modifications to existing major sources. EPA Br. at

21 (explaining control standard for flexible permits “used to authorize a new major

source or a major modification”); see also 30 Tex. Admin. Code

§ 116.716(c)(1)(A).

Indeed, major sources that have obtained a flexible permit “have historically

included some of the largest refinery and petrochemical companies in the state.”

EPA Doc. 2, 79 Fed. Reg. 8,368, 8,378 (February 12, 2014); see also Shelley

Decl., Attachments B, D, and F (photographs of flexible permit major sources).

Flexible permits often authorize emissions that are orders of magnitude higher than

applicable major source thresholds. EPA Doc. 46, Petitioners’ Comments at 11-13.

While EPA and Texas have denied that the Program may be used to

authorize major modifications, BCCA Br. at 39–40 and Texas. Br. at 9, this denial

is inconsistent with Texas’s practice and the plain meaning of Program rules,

which explain how major NSR requirements are to be reflected in flexible permits.

See 30 Tex. Admin. Code §§ 116.711(2)(C)(ii); 116.711(2)(H), and (I); 30 Tex.

Admin. Code § 116.716(c)(1)(A); 116.716(c)(2). Where EPA indicates that

flexible permits may not be used to authorize major modifications, the Agency


13.

likely presumes that Texas’s PSD and NNSR rules contain provisions

independently requiring operators to obtain a “Major NSR” permit before

constructing a major modification. This presumption is unfounded. See supra

Section II.A.

Because the Program may be used to authorize the construction of new

major sources and major modifications at existing sources, the Program must be a

Major NSR SIP revision—not simply a “minor” one.

C. The Program revises requirements contained in Texas’s “Major” NSR SIPs

EPA approved Texas’s PSD and NNSR permitting programs. These

programs are Texas’s Major NSR SIPs. These Major NSR SIPs include more than

the rules Texas now refers to as its “major NSR” rules. Specifically, Texas’s PSD

and NNSR SIPs contain the State’s general NSR permitting rules, now located at

30 Texas Administrative Code §§ 116.110(a) (requiring new or amended permit

before modification of any source) and 116.116(c)(1) (requiring permit amendment

for changes to facilities that increase actual emissions) as well as the requirements

in Texas’s PSD rules. See 57 Fed. Reg. 28,093, 28,096 (indicating that approved

PSD plan contained Texas’s previously-approved general NSR requirements as

well as the Texas Clean Air Act); 60 Fed. Reg. 49,781 (September 27, 1995)

(relying on PSD SIP to approve NNSR SIP).


14.

The Flexible Permit Program creates an alternative to the general NSR

permitting rules that are part of Texas’s PSD and NNSR SIPs, and it exempts

major (and minor sources) from preconstruction permitting requirements for

changes that do not exceed allowables or cap. Because the Program creates an

exemption to requirements that are actually part of Texas’s Major NSR SIPs, and

because it limits the applicability of preconstruction permitting requirements for

major sources that have obtained a flexible permit, it is unquestionably a Major

NSR SIP revision.

III. EPA’s Approval Of The Flexible Permit Program Is Not Supported By The Text Of The Program Rules

There should be no dispute that (1) the Clean Air Act requires operators to

determine PSD and/or NNSR applicability based on projected actual emission

increases rather than allowables and (2) major modifications may not be built

without a permit. These bedrock Clean Air Act principles have been the subject of

litigation and are now settled law. See Pet’rs Br. at 18, n.7 (citing cases).

These two requirements are crucial, because the Act’s substantive PSD and

NNSR pollution control requirements are meaningless without a permit

requirement. United States v. EME Homer City Generation, 727 F.3d 274, 286 (3d

Cir. 2013) (“[J]ust because the PSD program requires a source to obtain a permit

that sets some operating conditions does not mean that the PSD program requires a

source without a permit to comply with operating conditions”); Sierra Club v.


15.

Otter Tail Power Co., 615 F.3d 1008, 1017–18 (8th Cir. 2010) (“Even though the

preconstruction permitting process may establish obligations [like BACT] which

continue to govern a facility’s operation after construction, that does not

necessarily mean that such parameters are enforceable independent of the

permitting process”).

Importantly, neither EPA nor Intervenors have pointed to any rules that

require compliance with these bedrock major NSR requirements for projects that

increase actual emissions without exceeding flexible permit allowables or cap.

A. EPA’s reading of Sections 116.711, 116.718 and 116.721 is arbitrary and capricious

EPA and Texas’s textual arguments begin with the application requirements

for new and amended flexible permits. See EPA Br. at 18–20; Texas Br. at 15–16,

21–22 (discussing 30 Tex. Admin. Code § 116.711). But this is not responsive to

Petitioners’ arguments. No party disputes that, when Section 116.711 applies, it

assures compliance with applicable major NSR requirements. The fact that

applicants must demonstrate compliance with major NSR requirements to obtain a

flexible permit or permit amendment, however, does not assure that projects built,

after a flexible permit has been issued, without a permit amendment comply with

these requirements.

While Texas’s previously-approved permitting rules require an amendment

for any project that increases actual emissions, the Program only requires an


16.

amendment for “significant increase[s].” 30 Tex. Admin. Code § 116.721(a).

According to the EPA, “when assessing whether an emission increase is significant

for purposes of requiring an application to amend, only minor NSR emission

increases are insignificant.” EPA Br. at 23. But EPA acknowledges on the very

next page: It is the “amendment application process [that] requires the permittee to

determine whether… changes could ultimately trigger Major NSR requirements by

performing a Major NSR applicability determination analysis to ensure that

compliance with Major NSR is not evaded.” Id. at 24. EPA seems to miss the

point. Because an “applicability determination analysis” is only required once a

project triggers the amendment application rule, such analyses cannot be the basis

for determining whether an application is required in the first place. EPA’s reliance

on an applicability determination that operators are not required to make is

arbitrary and capricious.

EPA’s argument also incorrectly presumes that the Program implicitly

contains two separate definitions of “significance” for purposes of determining

whether “major” or “minor” increases require an amendment. Id. at 23 (discussing

Sections 116.718 and 116.721(a)). But that claim has no basis in the Program rules.

Section 116.718 unambiguously states that “an increase in emissions… is

insignificant, for the purposes of minor new source review under this chapter, if the

increase does not exceed either the emission cap or individual emission limitation.”


17.

30 Tex. Admin. Code § 116.718. There is no other applicable rule providing that

actual emissions increases above major modification thresholds but below

allowables are “significant increases” triggering the amendment application

process of § 116.721(a). See infra Sections III.B. (explaining that Texas has

rejected this reading of its rules) and III.C (explaining that EPA is mistaken if it

believes that Texas’s definition of “major modification” does this work).

Finally, EPA argues that “[t]o the extent the Program rules contain

provisions that are not as stringent as applicable non-attainment NSR and PSD

review, then the Major NSR requirements shall govern and be the standard for

compliance.” EPA Br. at 24 (citing 30 Tex. Admin. Code § 116.715(c)(11)).

However, EPA fails to identify any other rule requiring operators to determine

PSD or NNSR applicability or to obtain a permit amendment for emissions

increases that do not exceed flexible permit allowables as the Act requires.3 Unless

these key requirements are clearly established by the SIP, they will be

unenforceable. Diamond Roofing Co. v. Occupational Safety & Health Review

Comm’n, 528 F.2d 645, 649 (5th Cir. 1976) (“If a violation of a regulation subjects

3 EPA’s assurance that “[p]ermittees who use this Minor NSR program to circumvent Major NSR are violating the approved Texas SIP” is empty for this same reason. EPA Doc. 1, 79 Fed. Reg. 40,666, 40,668 (July 14, 2014). The Program does not simply allow bad actors to get around applicable requirements, it eliminates the requirements altogether. Thus, EPA and Texas’s promise to enforce violations of the SIP does not put the regulated community on notice that requirements the Program eliminates still apply.


18.

private parties to… civil sanctions, a regulation cannot be construed to mean what

an agency intended but did not adequately express”).4

B. Texas does not agree with EPA’s reading of Sections 116.718 and 116.721

Texas is notably silent on EPA’s reading of Sections 116.718 and 116.721 of

the Program rules. This is likely because the State already disclaimed EPA’s

interpretation. See 39 Tex. Reg. 5,557, 5,781 (July 25, 2014).

After EPA disapproved the Program, but before this Court vacated that

disapproval, Texas promulgated changes to its Program rules. 35 Tex. Reg. 11,909,

11,916 (December 31, 2010). Texas added language to Section 116.718 providing:

that a physical or operational change under a flexible permit for any project that constitutes a federal major modification must comply with Subchapter B, Division 5 or 6. Adopted § 116.718(b) further requires that the permit holder must document any increases under this section are not major modifications. The amendment further addresses the EPA’s comments that the flexible permit program could be used to avoid applicable major NSR requirements by specifying that when determining whether a change is a major modification as defined in § 116.12, the project emissions increase and the project net shall be determined as defined in § 116.12, regardless of how the existing facilities are authorized.

4 Texas’s claim that “a flexible permit does not authorize any change that would result in [a change to] any representation made in the permit application… or… any other general or special condition of the flexible permit”, Texas Br. at 10–11, is inaccurate to the extent that it suggests that the Program requires an amendment to authorize any change in application representations or permit conditions. Operators may change conditions and representations without an amendment, unless the changes relax emissions controls, or increase emissions above allowables. 30 Tex. Admin. Code § 116.721.


19.

Id. Notably, Texas also revised Section 116.721 to require a flexible permit

amendment prior to construction of any major modifications at a source covered by

a flexible permit. Id.

If these revisions were included in the rules that EPA approved, EPA’s

reading of Sections 116.718 and 116.721 might be reasonable. However, after Flex

I, Texas repealed these revisions and did not re-submit them to EPA for approval.

Texas repealed the revision to Section 116.718, because “other regulations already

address major NSR requirements.” 39 Tex. Reg. at 5,781. Texas repealed the

revision to Section 116.721, because “other rules in Subchapter G and Chapter 116

already require a permit amendment to add a new facility, and require compliance

with applicable major NSR requirements.” Id.5

Thus, Texas does not agree that Sections 116.718 and 116.721 require

operators to determine whether actual emissions increases below allowables at a

source covered by a flexible permit require an amendment. Instead, Texas insists

that “other rules,” specifically the application requirements of Section 116.711 and

Texas’s PSD and NNSR rules, are sufficient to assure compliance with applicable

PSD and NNSR requirements for projects at major sources after a flexible permit is

5 Texas does not consistently require operators to obtain a permit amendment before constructing new facilities. Texas allows operators to avoid this requirement by issuing flexible permits to major sources that pre-authorize construction of new facilities. EPA Doc. 46, Petitioners’ Comments at 13-14 and Attachments B–D.


20.

issued. Texas Br. at 15 (“Although a flexible permit allows an operator to make

certain… changes without amendment the permit, the Flexible Permit Program

[amendment application rule at Sections 116.711(2)(H) and (I)] requires that any

major construction or major modification comply with Major NSR”).

The history of Texas’s treatment of its own rules is telling. The Court should

not accept EPA’s reading of Texas’s rules for Sections 116.718 and 116.721,

because it is inconsistent with the unambiguous text of the rules and it has been

rejected by Texas. Texas’s reading also cannot support approval, because it is

circular and conflicts with EPA’s basis for approval. See, e.g., EPA Br. at 22–23

(urging that 30 Tex. Admin. Code §§ 116.718 and 116.721 are necessary to

“maintain compliance with Major NSR throughout the life of the permit”). The

conflicting positions of EPA and Intervenors show how EPA’s approval is

unsupportable.

C. EPA’s reading of the Program’s definition of “Modification” is arbitrary and capricious

Texas’s SIP provides that “[b]efore any actual work is begun… any person

who plans to… engage in the modification of any existing facility” must obtain a

permit or permit amendment. 30 Tex. Admin. Code § 116.110(a). “Modifications”

are physical or operational changes that increase actual emissions from an existing

facility. Id. § 116.10(9). The Program, however, provides that “changes within the

scope of a flexible permit” are not modifications. Id. § 116.10(9)(E). Despite this


21.

express exclusion, EPA contends that changes to flexible permit sources that

increase actual emissions beyond major modification thresholds without exceeding

allowables are still modifications, because such changes significantly increase

actual emissions and significant increases are not “within the scope of a flexible

permit.” EPA Br. at 29–30. This argument turns on the same faulty reasoning

addressed above: operators are only required to determine PSD and NNSR

applicability for modifications that must be authorized by a permit amendment.

Thus, major modification applicability determinations cannot be the basis for

deciding whether a project is a modification in the first place.

Instead, the Program specifies that emissions increases below allowables at

flexible permit sources are insignificant and within the scope of the permit. 30 Tex.

Admin. Code § 116.718. This is the definition of “significant” that applies when

operators determine whether a project is a modification that requires a permit

amendment. Thus, emissions increases that do not exceed allowables are “within

the scope of a flexible permit” and are not modifications.

EPA misunderstands this key feature of the Program, and instead opines:

the relevant definition to determine whether the Citizen Groups’ concerns regarding major modifications is valid is the definition of “major modification,” and that definition requires compliance with Major NSR for facilities under the Program.

EPA Br. at 30–31. According to EPA, this is so, because “[i]f a physical or

operational change results in a change in emissions that meets the threshold for a


22.

major modification, nothing in the Program rules or in the definition of major

modification enables the owner to evade compliance with major NSR.” Id. at 31.

EPA’s argument is arbitrary and capricious for four reasons.

First, EPA blindly disregards Texas’s choice to limit the applicability of this

definition to Texas’s Chapter 116, Subchapter B, Division 5 and 6 rules, which do

not require an operator to obtain a permit or permit amendment before constructing

any project. 30 Tex. Admin. Code § 116.12 (“[T]he following words and terms

[including ‘major modification’], when used in Subchapter B, Division 5 and 6 of

this chapter (relating to Nonattainment Review Permits and Prevention of

Significant Deterioration Review)… have the following meanings, unless the

context clearly indicates otherwise”). The requirement to obtain a preconstruction

permit before constructing a major modification arises from Texas’s so-called

“minor” rules, which require an operator to obtain a permit amendment before

modifying any major or minor source. To determine whether a project is a

“modification” within the purview of these rules, operators apply the definition of

“modification of an existing facility” in Texas’s general definitions and not the

definition of “major modification.” See id. § 116.10 (“[T]he following words and

terms [including ‘modification’], when used in this chapter6 shall have the

following meanings, unless the context clearly indicates otherwise”) (emphasis

6 Chapter 116 contains Texas’s general NSR rules, the Program rules, and the State’s PSD and NNSR rules


23.

added); compare with id. § 116.12 (definitions, including “major modification”

only apply to terms in Chapter 116, Subchapter B, Divisions 5 and 6).

Second, Texas knows how to incorporate the Section 116.12 definition of

“major modification” into its Program rules when it wants to. See id. §§

116.711(2)(C)(ii) (explaining that limits for “major modification[s] as defined by

§116.12… shall be demonstrated as required by §§ 116.150, 116.151, or

116.160… as applicable”) (emphasis added); 116.716(c)(1)(A) (explaining that

emission control technology requirements in Chapter 116, Subchapter B, Divisions

5 and 6 apply in cases where a new or amended flexible permit will be issued to

authorize a “major modification… as defined by § 116.12”) (emphasis added). But

Texas did not do that here. The Court should not read the definition into Texas’s

Program rules where the State declined to include it. Cf. Chicago v. Environmental

Defense Fund, 511 U.S. 328, 338 (1994) (“It is generally presumed that Congress

acts intentionally and purposefully when it includes particular language in one

section of a statute but omits it in another”) (internal quotation marks omitted).

In fact, Texas has spoken directly to the question of whether the definition of

“major modification” should be read into its Program permit amendment rules: its

answer is “No.” Responding to EPA’s prior disapproval, in 2011 Texas revised

Sections 116.718 and 116.721 of the Program rules to directly incorporate the

definition of “major modification.” 35 Tex. Reg. at 11,916. After Flex I, Texas


24.

repealed these revisions and did not include them in the SIP revision re-submitted

to EPA for this approval. See 39 Tex. Reg. at 5,777 (repealing changes). The Court

should give effect to Texas’s decision to deliberately exclude major modifications

from the list of projects that require an amendment under the Program rules.

Third, as above, EPA’s reliance on the definition of “major modification”

puts the cart before the horse. Operators need only determine whether a project is a

major modification if the project is a modification in the first place. Because major

NSR applicability determinations are made after an operator determines that a

project is a modification, the results of such determinations cannot be the basis for

determining whether a project is a modification that requires an amendment in the

first place.

Finally, while Texas’s so-called “Major NSR rules” at Chapter 116,

Subchapter B, Divisions 5 and 6 require operators to determine whether

modifications to existing facilities are “major modifications,” this requirement only

applies to “modifications,” see, e.g., 30 Tex. Admin. Code § 116.160(b)(1)

(emphasis added), and changes within the scope of a flexible permit are not

modifications. Id. § 116.10(9)(E). Because emissions increases below allowables

are “within the scope of a flexible permit,” they are not modifications and do not

trigger the netting requirement under Texas’s Division 5 and 6 rules. EPA Doc. 46,

Petitioners’ Comments at 7–11. Thus, the SIP’s definition of “major modification”


25.

cannot assure compliance with the Act’s PSD and NNSR preconstruction

requirements for projects undertaken after a flexible permit is issued.

D. EPA’s interpretation is inconsistent with its interpretation of the disapproved Texas Qualified Facilities rules

To understand why EPA’s reliance on the definition of “major modification”

in its Brief is arbitrary and capricious, it is helpful to compare EPA’s position in

this case with the Agency’s contrary decision to disapprove Texas’s Qualified

Facilities Program rules, which was upheld by this Court. 75 Fed. Reg. 19,468

(April 14, 2010) (disapproving the Qualified Facilities Program); BCCA Appeal

Grp. v. EPA, 476 F.App’x 579, 586 (5th Cir. 2012) (unpublished) (upholding

disapproval). The Qualified Facilities Program, like the Flexible Permit Program,

created an exemption to the definition of “modification” for projects that did “not

result in a net increase in allowable emission of any air contaminant.” 30 Tex.

Admin. Code § 116.10(9)(D).7

EPA disapproved the Qualified Facilities Program, in part, because the

“modification” exemption allowed operators to construct projects increasing

emissions from major sources without determining whether the projects were

“major modifications.” 75 Fed. Reg. at 19,469 (The Qualified Facilities Program

“does not require that first an applicability determination be made whether the

7 The Flexible Permit Program and the Qualified Facilities Program “modification” exemptions were both established as part of Texas’s Qualified Facilities Program rulemaking and give effect to the same state law. Pet’rs Br. at 34–35.


26.

modification is subject to Major NSR thereby exempting new major stationary

sources and major modifications from the EPA Major NSR SIP requirements”).

The Qualified Facilities Program rules had that effect because the Texas SIP’s

Major NSR applicability determination requirements only apply to

“modifications.”

After EPA disapproved the Qualified Facilities Program, Texas amended its

rules to close the modification loophole:

[a] separate netting analysis shall be made for each proposed change to determine the applicability of major New Source Review by demonstrating that any increase in actual emissions is below the threshold for major modifications as defined in § 116.12…. Proposed changes exceeding the major modification threshold cannot be authorized under this subsection. This analysis shall meet the definition and requirements of net emissions increase in § 116.12 of this title.

30 Tex. Admin. Code § 116.116(e)(1)(B). This new rule specifically required

operators to determine whether qualified facilities changes that are not

modifications under Texas’s rules nonetheless trigger Major NSR preconstruction

permitting requirements.

To ensure that flexible permit projects that are not modifications under

Section 116.10(9)(E) do not interfere with Clean Air Act requirements, Texas must

revise its rules to require flexible permit major source operators to evaluate Major

New Source Review applicability for these projects.


27.

Texas made changes to its Program rules doing exactly that, but repealed

those changes after Flex I. Because Texas excluded these requirements from the

SIP revision under review here, EPA cannot reasonably read the Program rules to

implicitly include language that Texas explicitly excluded.

E. EPA’s interpretation of Texas’s Program rules to support approval is not entitled to deference

This Court has held that EPA’s interpretation of a SIP revision prior to

approval is not authoritative and the Court may not uphold EPA’s determination

that a SIP revision complies or does not comply with the Act’s requirements solely

on deference to EPA’s interpretation of state law. Flex I, 690 F.3d at 677–78. The

Court should not grant EPA’s reading of Texas’s rules any deference, because the

rules were not promulgated by EPA, EPA did not rely on its technical expertise to

approve the rules, EPA’s reading of the rules is contradicted by their text and

structure, and EPA’s reading is inconsistent with the State’s interpretation of its

own rules. Id.

IV. The Program Interferes With PSD Public Participation Requirements

EPA may not approve a SIP revision that interferes with the Act’s PSD

public participation requirements. 42 U.S.C. §§ 7410(a)(2)(C); 42 U.S.C. §

7410(l); 7475(a)(2). SIP revisions must include “necessary assurances” that the

State is “not prohibited by any provision of… State law from carrying out” the

implementation plan. Id. § 7410(a)(2)(E). While the Texas SIP contains provisions


28.

that require full public participation for major modifications, the Texas

Commission on Environmental Quality (“TCEQ”) is prohibited from giving effect

to these provisions where project increases do not exceed allowables. Tex. Health

& Safety Code § 382.056(g) (directing the Commission to establish public

participation rules and stating that “the commission may not seek further public

comment or hold a public hearing under” these rules for “an amendment,

modification, or renewal that would not result in an increase in allowable

emissions”); 30 Tex. Admin. Code § 55.101(e).

Texas’s brief is completely silent on this critical state law issue. Texas does

not deny that Texas law prohibits the TCEQ from complying with SIP public

participation requirements for major modifications below flexible permit

allowables, nor does Texas assure EPA that the TCEQ has authority to comply

with the SIP in these cases. Instead, Texas supports EPA’s decision to ignore the

problem. Texas Br. at 22.

But EPA may not ignore the problem without violating the Act. In

comments to EPA, Petitioners identified flexible permits issued to major sources

that contain emission caps sufficiently high to accommodate several major

modifications. EPA Doc. 46, Petitioners’ Comments at 11–13. It is undisputed that

flexible permit allowables are often much higher than a source’s highest baseline

actual emissions. Id. It is also undisputed that flexible permit caps, which


29.

aggregate multiple emission sources under one cap, create more headroom between

actual emissions and allowables than traditional NSR permits. Because flexible

permits covering major sources establish allowables exceeding baseline actual

emissions, and because Texas law prohibits TCEQ from complying with its SIP-

approved PSD public participation requirements for modifications below

allowables, the Program will interfere with the Act’s PSD public participation

requirements.

EPA may not ignore this problem simply because the offending provisions

are not SIP-approved. The Act specifically directs EPA to ensure that state law

does not prohibit implementation of SIP requirements before approving a SIP

revision. 42 U.S.C. § 7410(a)(2)(E). Because EPA declined to address this issue

and did not seek assurances that State law does not prohibit the TCEQ from

complying with PSD SIP public participation requirements, EPA’s Program

approval is arbitrary and capricious.

V. Petitioners Have Standing

The Court should reject BCCA’s attempt to elevate the law of the case and

collateral estoppel doctrines into constitutionally-rooted standing arguments.

BCCA Br. at 35–38. These doctrines do not apply to this case. But even if they did,

they have no bearing on constitutional standing. Doctrines such as the law of the

case “merely expresses the practice of courts generally to refuse to reopen what has


30.

been decided, not a limit on their power.” Christianson v. Colt Industries, 486 U.S.

800, 817 (1988). If a court’s previous resolution of a claim were sufficient to

defeat standing to re-litigate the claim, these discretionary doctrines would be

unnecessary, because federal courts do not have authority to resolve cases brought

by parties without standing.

CONCLUSION

For the reasons set forth in Petitioners’ briefs and Public Comments,

Petitioners respectfully request the Court to vacate EPA’s approval of the Flexible

Permit Program and remand the matter to EPA for further consideration in

accordance with the Act’s requirements. 42 U.S.C. § 7410.

Respectfully submitted,

by /s/ Charles W. Irvine Charles Irvine IRVINE & CONNER PLLC Attorney in Charge TBN: 24055716

4709 Austin Street Houston, Texas 77004 Phone: 713-533-1704 Gabriel Clark-Leach Environmental Integrity Project

TBN: 24069516 1002 West Avenue, Suite 305 Austin, Texas 78701 Phone: 512-637-9478

Attorneys for Petitioners


31.

CERTIFICATE OF SERVICE On this 26th day of March, 2015, a true and correct copy of the foregoing document was filed with the electronic case filing (ECF) system of the U.S. Court of Appeals for the Fifth Circuit, which currently provides electronic service on the counsel of record. by /s/ Charles W. Irvine Charles Irvine Alan David Greenberg U.S. Department of Justice Environmental Defense Section 999 18th Street, Suite 370 South Terrace Denver, Colorado 80202 Brenda Mallory (Via U.S. Mail) U.S. Environmental Protection Agency 1200 Pennsylvania Avenue, N.W. Ariel Rios North Building Washington, DC 20460 Matthew L. Kuryla Baker Botts L.L.P One Shell Plaza 910 Louisiana Street Houston, Texas 77002 Samara L. Kline Baker Botts L.L.P 2001 Ross Avenue Dallas, Texas 75201 Pricilla M. Hubenak Mark L. Walters Linda B. Secord Office of the Texas Attorney General, Environmental Protection Division P.O. Box 12548 Austin, Texas 78711-2548


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CERTIFICATIONS UNDER ECF FILING STANDARDS Pursuant to paragraph A(6) of this Court’s ECF Filing Standards, I hereby certify that (1) required privacy redactions have been made, 5th Cir. R. 25.2.13; (2) the electronic submission is an exact copy of the paper document, 5th Cir. R.25.2.1; and (3) the document has been scanned for viruses with the most recent version of a commercial virus scanning program and is free of viruses. Dated: Mar. 26, 2015 s/ Charles W. Irvine

Charles W. Irvine


33.

CERTIFICATE OF COMPLIANCE 1. This brief complies with the type-volume limitation of FED. R. APP. P. 32(a)(7)(B) because:

This brief contains 6,907 words, excluding the parts of the brief exempted by FED.R.APP.P.32(a)(7)(B)(iii).

2. This brief complies with the typeface requirements of FED.R.APP.P.32(a)(5) and the type style requirements of FED.R.APP.P 32(a)(6) because:

This brief has been prepared in a proportionally spaced typeface using Microsoft Word 2003 in 14-point Times New Roman style.

Dated: Mar. 26, 2015 s/ Charles W. Irvine

Charles W. Irvine


Petitioners Reply Brief 3-26-15

Documents

Transcript of Petitioners Reply Brief 3-26-15