This section contains the nature of the case and procedural background.

Amendments to the Clean Air Act required stationary sources of pollution to obtain operating permits from State or local authorities administering their D-approved implementation plans. If a State decided not to participate, or if D disapproved the State's program, federal sanctions would kick in, including a cut-off of federal highway funds and a D takeover of permit-issuing authority within the State. One part of the rules that D required was that each permit must contain the following requirements with respect to monitoring: periodic monitoring sufficient to yield reliable data from the relevant time period that are representative of the source's compliance with the permit. This was ambiguous in that the rule did not state whether this applied only when a state lacked monitoring provisions, or it replaced all state plans. D then issued 'Periodic Monitoring Guidance,' which stated clearly that D's systems overrule any state requirements. Ps sued and D contends that 'Guidance' is not final or binding agency action.

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