Appalachian Power Co. v. EPA

United States Court of Appeals for the District of Columbia Circuit · 2000 · Administrative Law

208 F.3d 1015 (2000)

Updated August 1, 2026

Administrative Lawguidance documents as legislative rulesfinal agency actionguidancepolicy statementinterpretive rulelegislative rulenotice and comment

Facts

EPA's 1992 Title V regulations required permits to include periodic monitoring when the applicable requirement did not require periodic testing or instrumental or noninstrumental monitoring. In 1998, EPA issued a 19-page Periodic Monitoring Guidance stating that state permitting authorities must review the sufficiency of monitoring in existing state and federal standards and add monitoring where EPA deemed existing monitoring inadequate. Petitioners contended that the 1992 rule only authorized gap-filling, such as where a standard had no monitoring, no frequency, or only a one-time test. EPA used the Guidance in reviewing state-issued permits, and state authorities were insisting on additional monitoring requirements during permit negotiations.

Issue

Was EPA's 1998 Periodic Monitoring Guidance reviewable as final agency action, and if so, did it unlawfully amend 40 C.F.R. § 70.6(a)(3)(i)(B) by requiring states to conduct broad sufficiency reviews and add monitoring beyond existing standards without notice-and-comment rulemaking?

Rule

Agency action is final when it marks the consummation of the agency's decisionmaking process and is one by which rights or obligations have been determined or from which legal consequences will flow. A guidance document can be practically binding if the agency treats it as controlling, bases enforcement or permit objections on it, and leads regulated parties or state regulators to believe compliance is required. An agency may not avoid required rulemaking procedures by labeling as guidance or interpretation a substantive legal expansion that is not fairly encompassed within the existing regulation.

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One of 10 multiple-choice questions for this case. Pick an answer to see why.

The Federal Water Systems Bureau posted a 14-page 'compliance bulletin' on its website directing state permit offices in Ohio and Michigan to require weekly leak-detection reports from all refinery permit applicants, including those already subject to quarterly testing under existing regulations. Bureau staff then began objecting to draft state permits that omitted the weekly reports, and state officials told applicants they had no realistic choice but to comply.

Is the bulletin most likely reviewable as final agency action?

Explanation. Final agency action requires consummation of the agency's decisionmaking process and legal consequences. A guidance document may qualify when the agency treats it as controlling in the field, bases objections or enforcement on it, and leads state regulators and permittees to believe compliance is required. Publication format and the absence of an immediate fine do not defeat finality.