FACTS: The EPA first contended that the court could not review the so-called database challenges under the preclusion of judicial review clause contained in § 402(4)(C) of the Act, 42 U.S.C.S. § 7651a(4)(C). The court, after determining that review of the claims was in fact available and that § 307(b)(1) of the Act was a waivable venue provision, denied the petitions for review. The court rejected all of the utilities' substantive claims, holding that EPA did not unreasonably interpret the statute or otherwise act arbitrarily by relying on an emission rate calculated from a state-wide average in determining the initial entitlements to be received by a utility, which did not have its emission rate included in the database on which EPA relied. The court held that EPA's rejection of utilities' requests for allowances after the deadline for making such requests had passed had not been inappropriate. Additionally, the court ruled that EPA had not improperly annualized its relevant allowable emission rate, and that none of the procedural claims raised by the utilities could be considered because, inter alia, they were not first presented to EPA, as required by 42 U.S.C.S. § 7607(d)(7)(B).
CONCLUSION: The utilities' petitions for review were denied.
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