42 U.S.C. § 7607 — Administrative proceedings and judicial review

(a) Administrative subpenas; confidentiality; witnesses: The Administrator^* can issue subpoenas to make witnesses testify and to make people produce papers, books, and documents. This applies to investigations, inspections, and enforcement proceedings under this chapter, including actions under specific listed sections (7413, 7414, 7420, 7429, 7477, 7524, 7525, 7542, 7603, and 7606, plus actions tied to sections 7410(f), 7521(b)(4), and 7545(c)(3)). The Administrator can also swear in witnesses.

If an owner^* or operator shows that certain papers, books, documents, or information would reveal trade secrets or secret processes, the Administrator must treat that material as confidential — except for emission data, which is never protected this way. Even confidential material can still be shared with other U.S. government officials working on this chapter, with people doing the National Academy of Sciences study under section 7521(c), or when it becomes relevant in a proceeding under this chapter.

Witnesses who are summoned get the same fees and mileage pay as witnesses in U.S. courts.

If someone refuses to obey a subpoena, the U.S. district court where that person^* is found, lives, or does business can order them to appear, testify, and produce documents. If they still refuse, the court can punish that as contempt of court.

(b) Judicial review: (1) Petitions to review certain big, nationally-applicable EPA actions — like national air quality standards, emission standards, standards of performance, most vehicle emission standards, fuel controls, aircraft emission standards, and other nationally applicable rules — can only be filed in the U.S. Court of Appeals for the District of Columbia Circuit.

Petitions to review EPA actions that are local or regional — such as approving a state's implementation plan, certain orders under section 7411(j), or other locally or regionally applicable final actions — can only be filed in the U.S. Court of Appeals for the appropriate regional circuit. But if the action is based on a finding of nationwide scope or effect, and the Administrator publishes that finding, review still goes to the D.C. Circuit.

Any petition for review must be filed within 60 days after notice of the action appears in the Federal Register. If a petition is based only on grounds that arose after that 60-day window, it must be filed within 60 days after those grounds arise. Asking the Administrator to reconsider a final rule does not change when the rule becomes final for review purposes, does not extend the filing deadline, and does not delay the rule from taking effect.

(2) If someone could have obtained judicial review of an EPA action under paragraph (1) but did not, that action cannot later be challenged in a civil or criminal enforcement case. But if the Administrator's final decision puts off a required action to a later date, anyone can challenge that delay under paragraph (1).

(c) Additional evidence: If a court is reviewing an EPA determination that had to be made after notice and a hearing, a party can ask the court for permission to add more evidence. The party must show the evidence matters and that there was good reason it was not presented to the Administrator earlier. If the court agrees, it can send the case back to the Administrator to take that evidence (and any evidence responding to it). The Administrator can then change the original findings or make new ones, and must file the updated findings — plus any recommendation to change the original decision — back with the court.

(d) Rulemaking: (1) A special rulemaking process applies to a long list of specific EPA actions, including: national air quality standards (section 7409); state^* implementation plans (section 7410(c)); standards of performance and emission standards (sections 7411, 7412); solid waste combustion rules (section 7429); fuel and fuel additive rules (section 7545); aircraft emission standards (section 7571); acid deposition rules; primary nonferrous smelter orders; stratosphere and ozone protection rules; prevention-of-significant-deterioration and visibility rules; motor vehicle emission and test-procedure rules (sections 7521, 7525); noncompliance penalty rules (section 7420); vehicle warranty rules (section 7541); interstate pollution actions (section 7426); consumer and commercial product rules; field citation rules; urban bus and clean-fuel vehicle program rules; nonroad engine rules; compliance fee rules; marine vessel rules; and any other action the Administrator designates. For these listed actions, the normal federal rulemaking steps in sections 553 through 557 and 706 of title 5 do not apply, except where this subsection expressly says otherwise. This special process also does not apply to certain rules or emergency situations described in section 553(b)(A) or (B) of title 5.

(2) Before proposing any covered action, the Administrator must open a public rulemaking file, called a docket. If a rule applies only in one state, EPA must also open an identical second docket at the relevant EPA regional office.

(3) The proposed rule must be published in the Federal Register with a statement explaining its basis and purpose, and must say how long the public has to comment (the comment period). The notice must list the docket number, where the docket is located, and when it is open for public viewing. The basis-and-purpose statement must summarize: (A) the factual data the rule relies on; (B) how that data was gathered and analyzed; and (C) the major legal and policy reasoning behind the rule. It must also summarize any relevant findings and recommendations from the Scientific Review Committee and the National Academy of Sciences, and explain any important way the proposal differs from their advice. All the data and documents the proposed rule relies on must be in the docket by the day the rule is published.

(4)(A) The docket must be open for public inspection at reasonable times stated in the notice. Anyone can copy documents in it. The Administrator must provide copying services, paid for by the person requesting copies, though the Administrator can waive or reduce that cost when the public interest calls for it. People can also request copies by mail if they pay the costs, including staff time.

(B)(i) Written comments and documents the public submits during the comment period must be added to the docket promptly. Transcripts of public hearings go in the docket as soon as they are received. Any document that becomes available after the proposed rule is published, and that the Administrator finds is centrally relevant to the rulemaking, must be added to the docket as soon as possible.

(ii) Draft versions of the proposed rule that were sent to the Office of Management and Budget for interagency review, along with related documents and other agencies' written comments and EPA's written responses, must go into the docket by the date the rule is proposed. The draft final rule sent for that same kind of review before it is finalized — plus its accompanying documents, comments, and responses — must go into the docket by the date the rule is finalized (promulgated).

(5) When issuing a covered rule, the Administrator must: (i) let anyone submit written comments, data, or documents; (ii) give interested people a chance to present data, views, or arguments out loud, in addition to in writing; (iii) keep a transcript of any oral presentation; and (iv) keep the record open for 30 days after the proceeding ends, so people can submit rebuttal or extra information.

(6)(A) The final rule must come with (i) a basis-and-purpose statement like the one required for the proposal, and (ii) an explanation of any major changes made between the proposed and final rule.
(B) The final rule must also respond to each significant comment, criticism, and new piece of data submitted in writing or in person during the comment period.
(C) The final rule cannot rely, even partly, on any information or data that was not placed in the docket by the date the rule was finalized.

(7)(A) When a court reviews the rule, it can only look at the basis-and-purpose material from paragraph (3), the comments and hearing transcripts from paragraph (4)(B)(i), and the material from paragraph (6).
(B) A court can only consider an objection to the rule or the process if that objection was raised clearly enough during the comment period, including at any public hearing. There is an exception: if someone can show the Administrator it was impractical to raise the objection in time, or if the grounds for the objection arose after the comment period but before the judicial-review deadline, and the objection is centrally important to the outcome, the Administrator must hold a new proceeding to reconsider the rule, giving the same rights the person would have had originally. If the Administrator refuses to reconsider, that refusal can itself be reviewed in the appropriate court of appeals under subsection (b). Asking for reconsideration does not by itself pause the rule's effectiveness, though the Administrator or the court can pause it for up to three months during reconsideration.

(8) Any challenge to the Administrator's procedural decisions under this subsection can only happen in the appropriate court of appeals, at the same time as the substantive review of the rule — no separate, earlier appeal is allowed. The court can only strike down the rule for procedural errors if those errors were serious and central enough that the rule likely would have turned out significantly different without them.

(9) When a court reviews a covered EPA action, it can overturn that action if it finds the action: (A) arbitrary, capricious, an abuse of discretion, or otherwise against the law; (B) against a constitutional right, power, privilege, or immunity; (C) beyond EPA's statutory authority or jurisdiction, or short of a statutory right; or (D) issued without following a legally required procedure — but only if (i) skipping that procedure was arbitrary or capricious, (ii) the objection was properly raised as required by paragraph (7)(B), and (iii) the error meets the seriousness test in paragraph (8).

(10) If a law requires the Administrator to issue a covered rule less than six months after proposing it, the Administrator can extend that deadline to up to six months after the proposal date, if that is necessary to give the public and the agency a fair chance to follow this subsection's procedures.

(11) This whole special-rulemaking subsection (d) applies only to rules proposed more than 90 days after August 7, 1977.

(e) Other methods of judicial review not authorized: Nothing else in this chapter lets courts review EPA regulations or orders under this chapter, except through the methods this section describes.

(f) Costs: In any court case under this section, the court can award the costs of the lawsuit — including reasonable attorney and expert-witness fees — whenever it decides that is appropriate.

(g) Stay, injunction, or similar relief in proceedings relating to noncompliance penalties: In a lawsuit about issuing rules under section 7420, or about administering or enforcing section 7420, no court can grant a stay, injunction, or similar relief before it issues its final judgment in that case.

(h) Public participation: Congress intends that, consistent with the relevant policy in title 5, whenever the Administrator issues a regulation under this chapter — including one with a deadline — the Administrator must give the public a reasonable chance to take part, of at least 30 days. Exceptions apply only where specific sections (7407(d), 7502(a), 7511(a) and (b), and 7512(a) and (b)) expressly say otherwise.