Peter Williams v. Environmental Protection Agency, et al.

Petitioner Williams applied to enter a new Clean Air Act (the “Act”) program distributing allocations annually. Although his application applied expressly as an individual with the dba New Era Group, the logo to his letterhead shows “New Era Group, Inc.” and his email address was at neweragroupinc.com. Notwithstanding express statements in his application’s body that he applied as an individual, EPA denied his application as an ineligible corporation in a letter that EPA loosely summarized in a Federal Register notice on April 5, 2022, announcing approvals for the new program beginning October 1, 2022. Through counsel, by letter on April 20, 2022, he sought reconsideration, including new evidence of the individual nature of his application. Contrary to 5 U.S.C. § 555, EPA has yet to act on—or even formally respond to—Williams’ administrative petition for reconsideration. Two more petitions were filed to correct EPA’s error, without a response. Williams timely petitioned for review when EPA issued new annual allocations for the next year without resolving his pending administrative petition. Petitions for review must be filed within 60 days of EPA’s publishing actions in the Federal Register, 42 U.S.C. § 7607(b)(1). In § 7607(d), the Act exempts most major EPA action from 5 U.S.C. §§ 553-557 and 706 of the Administrative Procedure Act (“APA”), but not the program here, to which the APA still applies. The questions presented are:

1. Whether Williams could have petitioned for review using non-record rebuttal evidence within 60 days of EPA’s initial action.

2. Whether the Act required Williams to petition for review within 60 days of EPA’s initial action.