United
States
Court
of
Appeals
FOR
THE
DISTRICT
OF
COLUMBIA
CIRCUIT
Argued
April
24,
2001
Decided
July
24,
2001
No.
99­
1457
Cement
Kiln
Recycling
Coalition,
et
al.,
Petitioners
v.

Environmental
Protection
Agency
and
Christine
Todd
Whitman,
Administrator,
Respondents
Dow
Chemical
Company,
et
al.,
Intervenors
Consolidated
with
99­
1477,
99­
1480,
99­
1483,
99­
1485,
99­
1486,
99­
1490,
99­
1491,
99­
1492,
99­
1493,
99­
1494,
99­
1495,
99­
1496,
99­
1497,
99­
1498
On
Petitions
for
Review
of
an
Order
of
the
Environmental
Protection
Agency
­­­­­­­­­

James
S.
Pew
argued
the
cause
for
petitioner
Sierra
Club.
With
him
on
the
briefs
was
Howard
I.
Fox.
Jeremiah
J.
Jewett,
III,
David
P.
Novello,
Ronald
A.
Shipley,
and
Scott
H.
Segal
argued
the
cause
for
Industry
Petitioners.
With
them
on
the
briefs
were
Richard
G.
Stoll,
Michael
W.
Steinberg,
Terry
J.
Satterlee,
Alok
Ahuja,
Karl
S.
Bourdeau,
David
M.
Friedland,
Aaron
H.
Goldberg,
Lisa
M.
Jaeger,
David
R.
Case,
Thomas
G.
Echikson,
James
N.
Cahan,
William
M.
Bumpers,
David
A.
Smart,
and
Douglas
H.
Green.

David
R.
Case
argued
the
cause
and
filed
the
briefs
for
petitioner
Environmental
Technology
Council.

Richard
G.
Stoll,
David
P.
Novello,
Michael
W.
Steinberg,
Ronald
A.
Shipley,
Karl
S.
Bourdeau,
David
M.
Friedland,
Aaron
H.
Goldberg,
Scott
H.
Segal,
Lisa
M.
Jaeger,
David
R.
Case,
William
M.
Bumpers,
and
Jeremiah
J.
Jewett,
III
were
on
the
brief
for
industry
intervenors.
Joshua
D.
Sarnoff
entered
an
appearance.

Lois
Godfrey
Wye
and
Norman
L.
Rave,
Jr.,
Attorneys,
U.
S.
Department
of
Justice,
and
Steven
E.
Silverman,
Attor­
ney,
Environmental
Protection
Agency,
argued
the
cause
for
respondents.
With
them
on
the
brief
was
Lois
J.
Schiffer,
Assistant
Attorney
General
at
the
time
the
brief
was
filed,
U.
S.
Department
of
Justice.
Christopher
S.
Vaden,
Attorney,
U.
S.
Department
of
Justice,
entered
an
appearance.

James
S.
Pew
and
Howard
I.
Fox
were
on
the
brief
for
intervenor
Sierra
Club.

David
R.
Case
was
on
the
brief
for
intervenor
Environmen­
tal
Technology
Council.

Before:
Randolph,
Rogers
and
Tatel,
Circuit
Judges.

Opinion
for
the
Court
filed
Per
Curiam.*

Per
Curiam:
In
this
case,
industry
and
environmental
petitioners
challenge
EPA
air
pollution
standards
for
hazard­

__________
*
Judge
Tatel
wrote
Parts
I,
II,
III,
IV,
and
VII;
Judge
Ran­
dolph
wrote
Parts
V
and
VI.
ous
waste
combustors.
Because
the
standards
fail
to
reflect
the
emissions
achieved
in
practice
by
the
best­
performing
sources
as
required
by
the
Clean
Air
Act,
we
remand
to
the
Agency
for
further
proceedings.
In
all
other
respects,
we
deny
the
petitions
for
review.

I
Until
1990,
the
Clean
Air
Act
("
CAA"),
42
U.
S.
C.
ss
7401­
7671q,
required
the
Environmental
Protection
Agency
to
set
risk­
based
air
pollution
standards
that
would
provide
an
"
ample
margin
of
safety
to
protect
the
public
health."
Id.
s
7412(
b)(
1)(
B)
(
1990);
see
also
H.
R.
Rep.
No.
101­
490,
at
151,
322
(
1990).
To
address
problems
with
the
implementa­
tion
of
risk­
based
regulation,
Congress
amended
the
Act
in
1990
to
require
EPA
to
set
the
most
stringent
standards
achievable,
42
U.
S.
C.
s
7412(
d)(
2),
that
is,
standards
"
based
on
the
maximum
reduction
in
emissions
which
can
be
achieved
by
application
of
[
the]
best
available
control
technol­
ogy."
S.
Rep.
No.
101­
228,
at
133
(
1989).

The
1990
amendments
included
the
provision
at
issue
in
this
case­­
42
U.
S.
C.
s
7412(
d)­­
which
directs
EPA
to
set
standards
limiting
emissions
of
listed
hazardous
air
pollutants
("
HAPs"),
id.
ss
7412(
b),
(
c)(
1)­(
2),
from
major
stationary
sources.
Section
7412(
d)(
2)
provides
that:

Emission
standards
...
shall
require
the
maximum
de­
gree
of
reduction
in
emissions
of
the
hazardous
air
pollutants
subject
to
this
section
...
that
the
Administra­
tor,
taking
into
consideration
the
cost
of
achieving
such
emission
reduction,
and
any
non­
air
quality
health
and
environmental
impacts
and
energy
requirements,
deter­
mines
is
achievable
for
new
or
existing
sources....

Supplementing
this
general
guidance,
Congress
imposed
min­
imum
stringency
requirements­­
EPA
calls
them
"
emission
floors"­­
which
"
apply
without
regard
to
either
costs
or
the
other
factors
and
methods
listed
in
section
7412(
d)(
2)."
Nat'l
Lime
Ass'n
v.
EPA,
233
F.
3d
625,
629
(
D.
C.
Cir.
2000)
("
National
Lime
II").
For
"
new
sources"­­
factories
or
other
sources
on
which
construction
begins
after
EPA
publishes
emission
standards,
42
U.
S.
C.
s
7411(
a)(
2)­­"[
t]
he
maximum
degree
of
reduction
in
emissions
that
is
deemed
achievable
...
shall
not
be
less
stringent
than
the
emission
control
that
is
achieved
in
practice
by
the
best
controlled
similar
source...."
Id.
s
7412(
d)(
3).
For
existing
sources,
what
EPA
deems
achievable
"
shall
not
be
less
stringent
than[
]
the
average
emission
limitation
achieved
by
the
best
performing
12
percent
of
the
existing
sources
(
for
which
the
Administra­
tor
has
emissions
information)...."
Id.
As
we
explained
in
National
Lime
II,
EPA
implements
these
requirements
through
a
two­
step
process:
the
Agency
first
sets
emission
floors
for
each
pollutant
and
source
category
and
then
deter­
mines
whether
stricter
standards,
known
as
"
beyond­
the­
floor"
limits,
are
achievable
in
light
of
the
factors
listed
in
section
7412(
d)(
2).
233
F.
3d
at
629.

Hazardous
waste
combustors
("
HWCs"),
the
focus
of
this
case,
are
also
subject
to
regulation
under
the
Resource
Con­
servation
and
Recovery
Act
("
RCRA"),
42
U.
S.
C.
ss
6901­
6992k,
which
"
establishes
a
comprehensive
'
cradle
to
grave'
regulatory
program
for
the
treatment,
storage,
and
disposal
of
hazardous
waste."
Horsehead
Res.
Dev.
Co.
v.
Browner,
16
F.
3d
1246,
1252
(
D.
C.
Cir.
1994).
A
pre­
1990
risk­
based
statute,
RCRA
directs
EPA
to
set
standards
for
hazardous
waste­
burning
facilities
that
"
protect
human
health
and
the
environment."
42
U.
S.
C.
s
6924(
q)(
1).
Both
Congress
and
EPA
have
acknowledged
the
overlap
between
RCRA
and
the
CAA.
Indeed,
the
CAA
itself
directs
the
Administrator
to
"
take
into
account
any
regulations
of
such
emissions
which
are
promulgated
under
[
RCRA]
and
...
to
the
maximum
extent
practicable
...
ensure
that
the
requirements
of
[
RCRA]
and
[
section
7412]
are
consistent."
Id.
s
7412(
n)(
7).
Hazardous
waste
combustors
must
have
RCRA
permits
for
stack
air
emissions
until
they
can
demonstrate
compliance
with
CAA
standards
through
required
tests;
once
a
source
complies
with
the
CAA,
it
no
longer
needs
a
separate
RCRA
permit.
Final
Standards
for
Hazardous
Air
Pollutants
for
Hazardous
Waste
Combustors,
64
Fed.
Reg.
52,828,
52,833
(
Sept.
30,
1999).
In
1999,
acting
pursuant
to
CAA
section
7412(
d)
and
follow­
ing
notice
and
comment,
EPA
issued
standards
limiting
emis­
sions
from
three
types
of
HWCs:
incinerators
that
destroy
hazardous
waste;
cement
kilns
that
use
hazardous
waste
as
fuel
in
the
cement­
manufacturing
process;
and
lightweight
aggregate
kilns
that
use
hazardous
waste
as
fuel
to
produce
lightweight
aggregate
concrete,
a
building
material
used
for
structural
purposes
and
thermal
insulation.
These
HWCs
burn
approximately
80%
of
the
hazardous
waste
combusted
each
year
in
the
United
States,
id.
at
52,832,
emitting
more
than
11,000
metric
tons
of
HAPs.

For
each
type
of
HWC,
i.
e.,
each
"
source
category,"
EPA
set
standards
for
the
following
HAPs:
dioxins;
mercury;
the
semi­
volatile
metals
lead
and
cadmium;
the
low­
volatility
metals
chromium,
arsenic,
and
beryllium;
particulate
matter;
chlorine;
carbon
monoxide;
and
hydrocarbons.
All
of
these
HAPs
can
have
serious
health
effects.
Dioxin,
mercury,
and
semi­
volatile
metal
emissions
are
of
particular
concern;
expo­
sure
can
cause
effects
such
as
cancer,
neurological
and
organ
damage,
and
impaired
child
development.
See
id.
at
53,002­
03.

To
set
these
standards,
EPA,
acting
pursuant
to
section
7412(
d)(
3),
began
by
setting
emission
floors
for
new
and
existing
sources­­
EPA
calls
them
"
MACT
(
maximum
achiev­
able
control
technology)
floors."
After
assembling
a
database
of
sources
and
their
emission
levels
recorded
primarily
during
RCRA
compliance
tests,
the
Agency
went
through
the
follow­
ing
steps
for
each
HAP
in
each
source
category.
For
existing
sources,
EPA
identified
the
best­
performing
12
percent
of
sources,
creating
what
it
calls
the
"
MACT
pool."
EPA
then
identified
the
primary
emission
control
technology
used
by
sources
in
the
MACT
pool
with
emission
levels
equivalent
to
or
lower
than
the
pool's
median.
It
labeled
that
technology
the
"
MACT
control."
For
some
HAPs,
EPA
chose
end­
of­
stack
pollution
control
technology
as
the
MACT
control;
for
other
HAPs,
the
Agency
chose
the
technique
of
"
feedrate"­­
the
rate
at
which
source
operators
feed
hazardous
waste
into
combustors.
EPA
next
expanded
the
MACT
pool
to
include
all
sources
using
the
MACT
control
(
provided
the
control
was
well­
designed
and
properly
operated)
and
set
the
MACT
floor
at
the
worst
emission
level
achieved
by
any
source
in
that
expanded
pool.
For
new
sources,
EPA
used
the
same
meth­
odology
but
chose
as
the
MACT
control
the
technology
used
by
the
best­
performing
source
for
which
it
had
information.

After
setting
forty­
nine
floors,
EPA
considered,
as
required
by
section
7412(
d)(
2),
whether
stricter
limits­­"
beyond­
the­
floor"
standards­­
would
be
achievable.
Taking
into
account
cost,
energy
requirements,
and
certain
non­
air
quality
health
and
environmental
impacts,
EPA
ultimately
set
five
beyond­
the­
floor
standards.

Environmental
and
industry
petitioners
now
challenge
the
HWC
emission
standards.
The
Sierra
Club
argues
that:
(
1)
the
MACT
approach
results
in
emission
standards
that
violate
section
7412(
d)(
3)
because
they
fail
to
reflect
the
emissions
achieved
in
practice
by
the
best­
performing
sources;
(
2)
the
Agency
violated
the
Act
by
basing
standards
on
RCRA
test
data,
which
are
generated
under
worst­
case
conditions;
and
(
3)
in
making
beyond­
the­
floor
determina­
tions,
the
Agency
failed
to
consider
certain
"
non­
air
quality
health
and
environmental
impacts"
as
required
by
section
7412(
d)(
2)
and
arbitrarily
and
capriciously
refused
to
consider
tougher
standards
based
on
additional
controls
for
some
HAPs.
Industry
petitioners
contend
that
EPA
violated
sec­
tion
7412(
d)(
3)(
A)
by
basing
existing­
source
floors
on
actual
emissions
data
rather
than
on
existing
regulatory
require­
ments,
such
as
RCRA
permit
limits.
Industry
petitioners
also
challenge
as
arbitrary
and
capricious
many
individual
emission
standards,
as
well
as
several
monitoring
and
imple­
mentation
regulations.
One
industry
petitioner,
Continental
Cement,
argues
that
EPA
violated
the
Regulatory
Flexibility
Act,
5
U.
S.
C.
ss
601­
612.
Another
petitioner,
the
Environ­
mental
Technology
Council,
challenges
EPA's
adoption
of
procedures
that
permit
sources
to
petition
the
Agency
for
alternative
requirements
if
they
cannot
meet
MACT
stan­
dards
due
to
raw
material
contributions
to
emissions.
See
40
C.
F.
R.
ss
63.1206(
b)(
9)
&
(
10).
II
We
begin
with
industry
petitioners'
argument
that
EPA
violated
CAA
section
7412(
d)(
3)(
A)
by
basing
existing­
source
standards
on
emissions
data
rather
than
RCRA
or
other
permit
limits.
Section
7412(
d)(
3)(
A)
provides
that
"[
e]
mission
standards
promulgated
...
for
existing
sources
...
shall
not
be
less
stringent
...
than[
]
the
average
emission
limitation
achieved
by
the
best
performing
12
percent
of
the
existing
sources
(
for
which
the
Administrator
has
emissions
informa­
tion)...."
42
U.
S.
C.
s
7412(
d)(
3)(
A).
Focusing
on
the
phrase
"
emission
limitation,"
petitioners
point
out
that
CAA
section
7602(
k)
defines
that
term
as
"
a
requirement
estab­
lished
by
the
State
or
the
Administrator
which
limits
the
quantity,
rate,
or
concentration
of
emissions
of
air
pollu­
tants...."
Id.
s
7602(
k).
According
to
petitioners,
section
7412(
d)(
3)(
A)
must
therefore
be
read
as
follows:
"[
e]
mission
standards
promulgated
...
for
existing
sources
...
shall
not
be
less
stringent
...
than
the
average
state
or
federal
re­
quirement
limiting
emissions
of
a
pollutant
achieved
in
practice
by
the
best
performing
12
percent
of
the
existing
sources."
Indus.
Petitioners'
Opening
Br.
at
8.

Although
EPA
disputes
this
reading
of
the
statute­­
it
contends
that
CAA
section
7412(
d)(
3)(
A)'
s
use
of
the
word
"
achieved"
indicates
that
standards
must
be
based
on
actual
emissions
data­­
the
Agency
argues
that
we
may
not
even
consider
petitioners'
argument
because
they
failed
to
present
it
to
the
Agency
during
the
rulemaking.
See
42
U.
S.
C.
s
7607(
d)(
7)(
B)
("
Only
an
objection
to
a
rule
or
procedure
which
was
raised
with
reasonable
specificity
during
the
period
for
public
comment
...
may
be
raised
during
judicial
re­
view.").
Having
reviewed
each
page
of
the
record
petitioners
cite
to
demonstrate
that
they
presented
their
interpretation
of
section
7412(
d)(
3)(
A)
during
the
rulemaking,
we
agree
with
EPA.
The
first
cited
comment
argued
only
that
the
Agency
should
set
the
standard
for
particulate
matter
emissions
from
lightweight
aggregate
kilns
at
the
same
level
as
existing
New
Source
Performance
Standards
("
NSPS"),
to
which
EPA
re­
sponded
that
"[
w]
e
rejected
the
NSPS
as
the
basis
for
the
floor
emission
level
because
our
MACT
analysis
of
data
from
existing
sources
indicates
that
a
particulate
matter
floor
level
lower
than
the
NSPS
is
currently
being
achieved
in
prac­
tice...."
Final
Response
to
Comments
to
the
Proposed
HWC
MACT
Standards,
Vol.
I:
Standards
("
1
Final
Re­
sponse
to
Comments"):
LWAK
Standards,
at
13­
14
(
July
1999).
The
second
cited
comment
stated
only
that
"[
t]
he
MACT
floor
should
be
set
based
on
projections
of
Tier
I
allowable
mercury
feedrate
limits,"
to
which
EPA
responded,
"[
w]
e
agree
that
BIF
Tier
I
feedrate
limits
could
be
consid­
ered
as
a
floor
control
option.
We
conclude,
however,
that
those
allowable
feedrate
limits
are
much
higher
than
actual
feedrate
levels
...
and
thus
do
not
represent
MACT."
Id.
Cement
Kilns
Mercury,
at
7.
As
the
Agency
points
out,
these
comments
"
merely
argued
that
EPA
could
permissibly
con­
sider
RCRA
permit
limitations
in
establishing
floors,"
Re­
spondent's
Br.
at
51,
not
(
as
petitioners
now
argue)
that
section
7412(
d)(
3)(
A)
requires
existing­
source
floors
to
be
based
on
permit
limits.
And
the
final
page
petitioners
cite
says
nothing
at
all
about
existing
regulatory
limits.
See
Final
Technical
Support
Document
for
HWC
MACT
Standards,
Vol.
III:
Selection
of
MACT
Standards
and
Technologies,
at
2­
2
(
July
1999)
("
3
Final
TSD").

In
considering
the
extent
to
which
a
statutory
interpreta­
tion
must
have
been
presented
to
an
agency
before
a
petition­
er
can
raise
it
here,
we
have
said
that:

[
w]
hile
there
are
surely
limits
on
the
level
of
congruity
required
between
a
party's
arguments
before
an
adminis­
trative
agency
and
the
court,
respect
for
agencies'
proper
role
in
the
Chevron
framework
requires
that
the
court
be
particularly
careful
to
ensure
that
challenges
to
an
agen­
cy's
interpretation
of
its
governing
statute
are
first
raised
in
the
administrative
forum.

Natural
Res.
Def.
Council,
Inc.
v.
EPA,
25
F.
3d
1063,
1074
(
D.
C.
Cir.
1994).
Though
we
have
recognized
that
"
precisely
the
same
argument
that
was
made
before
the
agency
[
need
not]
be
rehearsed
again,
word
for
word,
on
judicial
review,"
Appalachian
Power
Co.
v.
EPA,
135
F.
3d
791,
818
(
D.
C.
Cir.
1998),
petitioners
point
us
to
nothing
in
the
record
even
hinting
that
the
phrase
"
emission
limitation"
must
be
defined
by
reference
to
section
7602(
k).
EPA
(
as
opposed
to
its
appellate
counsel)
has
not
had
"
the
first
opportunity
to
bring
its
expertise
to
bear
on
the
resolution"
of
this
question.
Id.

III
The
Sierra
Club
also
challenges
EPA's
interpretation
of
CAA
section
7412(
d)(
3),
but
on
different
grounds.
The
Sierra
Club
argues
that
section
7412(
d)(
3)
requires
floors
to
reflect
emissions
actually
"
achieved"
by
the
best­
performing
sources,
and
that
EPA
violated
the
statute
by
setting
floors
the
Agency
considered
achievable
by
all
sources
using
MACT
technology.
See,
e.
g.,
1
Final
Response
to
Comments:
MACT
Floor
Approaches,
at
54­
55
("[
W]
e
do
not
agree
that
the
proper
interpretation
of
the
CAA
would
require
that
the
MACT
standards
be
based
solely
on
an
analysis
of
the
emissions
levels
being
achieved
by
the
best
performing
12%
of
sources....
MACT
standard[
s]
must
be
achievable
by
all
sources
judged
to
be
using
MACT
or
MACT
equivalent
technology.").
According
to
the
Sierra
Club,
the
contrast
between
the
language
of
section
7412(
d)(
2),
which
requires
the
maximum
degree
of
reduction
"
achievable,"
and
section
7412(
d)(
3),
which
establishes
that
what
EPA
deems
achievable
"
shall
not
be
less
stringent"
than
what
certain
sources
actual­
ly
"
achieve[
],"
demonstrates
that
"
Congress
was
well
aware
of
the
difference
between
what
EPA
believes
to
be
'
achiev­
able'
through
the
use
of
a
particular
technology
and
what
the
relevant
sources
actually
'
achieved.'
"
Sierra
Club's
Opening
Br.
at
20.
"
EPA's
insistence
that
[
section
7412]
floors
must
reflect
what
the
agency
determines
to
be
achievable
through
the
use
of
a
particular
technology,"
the
Sierra
Club
concludes,
"
boils
down
to
an
attempt
to
nullify
the
objective
limits
that
Congress
deliberately
placed
on
EPA's
standard
setting
dis­
cretion
by
enacting
[
section
7412]'
s
mandatory
floor
provi­
sions
in
the
1990
Amendments."
Id.
at
21­
22.

Defending
its
achievability
rationale,
EPA
argues
that
sec­
tion
7412(
d)(
3)'
s
floor
provision
"
is
a
gloss"
on
section
7412(
d)(
2),
which
establishes
the
achievability
requirement.
Respondent's
Br.
at
23.
According
to
the
Agency,
section
7412(
d)(
3)
incorporates
section
7412(
d)(
2)'
s
achievability
stan­
dard.
For
this
reason,
EPA
explains,
it
designed
the
MACT
approach
to
produce
achievable
standards.

We
agree
with
the
Sierra
Club.
Though
section
7412(
d)(
2)
does
direct
EPA
to
require
the
"
maximum
emission
reduc­
tion"
that
it
determines
to
be
achievable,
section
7412(
d)(
3)
provides
that
"
the
maximum
degree
of
reduction
in
emissions
that
is
deemed
achievable
...
shall
not
be
less
stringent
than"
what
the
best­
performing
sources
"
achieve[
]."
Section
7412(
d)(
3)
therefore
limits
the
scope
of
the
word
"
achievable"
in
section
7412(
d)(
2).
While
standards
achievable
by
all
sources
using
the
MACT
control
might
also
ultimately
reflect
what
the
statutorily
relevant
sources
achieve
in
practice,
EPA
may
not
deviate
from
section
7412(
d)(
3)'
s
requirement
that
floors
reflect
what
the
best
performers
actually
achieve
by
claiming
that
floors
must
be
achievable
by
all
sources
using
MACT
technology.
See
Chevron
U.
S.
A.,
Inc.
v.
Natural
Res.
Def.
Council,
Inc.,
467
U.
S.
837,
842­
43
(
1984)
(
holding
that
if
Congress
has
spoken
directly
to
the
disputed
issue
of
statuto­
ry
construction,
"
that
is
the
end
of
the
matter;
for
the
court,
as
well
as
the
agency,
must
give
effect
to
the
unambiguously
expressed
intent
of
Congress").

This
interpretation
is
required
by
our
decisions
in
Sierra
Club
v.
EPA,
167
F.
3d
658
(
D.
C.
Cir.
1999),
and
National
Lime
II,
233
F.
3d
625.
In
Sierra
Club,
we
held
that
CAA
section
7429(
a)(
2),
which
(
in
language
virtually
identical
to
the
terms
of
section
7412(
d)(
3))
directs
EPA
to
set
emission
floors
for
medical
waste
incinerators,
requires
EPA
"
to
make
a
reasonable
estimate
of
the
performance
of
the
top
12
percent
of
units."
167
F.
3d
at
662
(
interpreting
42
U.
S.
C.
s
7429(
a)(
2),
which
requires
that
"[
t]
he
degree
of
reduction
in
emissions
that
is
deemed
achievable
for
new
units
in
a
category
shall
not
be
less
stringent
than
the
emissions
control
that
is
achieved
in
practice
by
the
best
controlled
similar
unit,"
and
that
"[
e]
missions
standards
for
existing
units
in
a
category
...
shall
not
be
less
stringent
than
the
average
emissions
limitation
achieved
by
the
best
performing
12
per­
cent
of
units
in
the
category").
While
acknowledging
that
EPA
has
authority
to
devise
the
means
of
deriving
this
estimate,
we
made
clear
that
the
method
the
Agency
selects
must
"
allow[
]
a
reasonable
inference
as
to
the
performance
of
the
top
12
percent
of
units."
Id.
at
663.
We
emphasized
that
EPA
must
show
not
only
that
it
believes
its
methodology
provides
an
accurate
picture
of
the
relevant
sources'
actual
performance,
but
also
why
its
methodology
yields
the
re­
quired
estimate.
Id.
In
evaluating
EPA's
new­
source
floors
in
particular,
which
the
Agency
based
on
emission
levels
achieved
by
the
worst­
performing
sources
using
a
given
con­
trol
technology,
we
concluded
that
EPA
had
not
explained
"
why
the
phrase
'
best
controlled
similar
unit'
encompasses
all
units
using
the
same
technology
as
the
unit
with
the
best
observed
performance,
rather
than
just
that
unit
itself,
as
the
use
of
the
singular
in
the
statutory
language
suggests."
Id.
at
665.
In
National
Lime
II,
we
addressed
a
Sierra
Club
petition
challenging
emission
standards
set
under
section
7412(
d)
for
non­
hazardous
waste­
burning
portland
cement
kilns.
In
evaluating
EPA's
standards,
we
reiterated
Sierra
Club's
central
holding
that
"
to
comply
with
the
statute,
EPA's
method
of
setting
emission
floors
must
reasonably
estimate
the
performance
of
the
relevant
best
performing
plants."
233
F.
3d
at
632
(
citing
Sierra
Club,
167
F.
3d
at
665).

We
thus
turn
to
EPA's
alternative
argument:
that
the
MACT
approach
does
in
fact
measure
what
the
best­
performing
sources
actually
achieve.
According
to
EPA,
Sierra
Club
requires
standards
to
reflect
"
the
worst
reason­
ably
foreseeable
performance
of
the
best
unit[
s],"
167
F.
3d
at
665.
EPA
argues
that
to
meet
this
requirement,
as
well
as
to
account
for
"
inherent
process
variability
in
pollution
control
devices,"
the
Agency
set
the
floors
at
the
worst
emission
level
experienced
by
any
source
using
the
MACT
control.
Respon­
dent's
Br.
at
28.
Indeed,
EPA
claims,
Sierra
Club
actually
suggests
that
considering
data
from
all
sources
using
a
common
control
approach
is
a
reasonable
means
of
estimating
the
performance
of
the
best
sources
under
the
worst
foresee­
able
circumstances.

The
Sierra
Club
disagrees,
arguing
that
EPA
has
failed
to
abide
by
Sierra
Club
because
the
Agency
has
not
demonstrat­
ed
that
its
floors
based
on
the
worst
performers'
emissions
reflect
a
reasonable
estimate
of
the
emissions
achieved
in
practice
by
the
best­
performing
sources.
As
to
new­
source
floors,
the
Sierra
Club
contends
that
Sierra
Club,
by
ques­
tioning
whether
EPA
can
represent
"
the
performance
of
the
best
performing
source
in
the
category
with
the
performance
of
the
worst
performing
source
that
uses
the
same
technolo­
gy[,]....
casts
serious
doubt"
on
the
legitimacy
of
the
MACT
approach
as
a
means
of
implementing
section
7412(
d)(
3).
Sierra
Club's
Opening
Br.
at
27­
28.
Indeed,
according
to
the
Sierra
Club,
"
common
use
of
one
control
technology
provides
little
or
no
reason
to
believe
that
the
performance
of
the
worst
performing
source
that
was
using
that
technology
is
in
any
way
representative
of
the
best
source's
performance."
Id.
at
29­
30.
The
Sierra
Club
points
to
other
factors,
such
as
the
use
of
additional
control
techniques
or
of
newer
and
better
versions
of
MACT
technology,
better
training
of
opera­
tors,
and
better
design
and
operation
of
the
source
itself,
that
could
all
contribute
to
the
best­
performing
source's
level
of
emissions.
By
failing
to
consider
these
factors,
the
Sierra
Club
claims,
EPA
set
floors
that
fail
to
reflect
the
estimates
required
by
CAA
section
7412
and
Sierra
Club.

Applying
the
principles
set
forth
in
Sierra
Club
and
Na­
tional
Lime
II,
we
again
agree
with
the
Sierra
Club.
To
begin
with,
Sierra
Club
permits
EPA
to
account
for
variabili­
ty
by
setting
floors
at
a
level
that
reasonably
estimates
"
the
performance
of
the
'
best
controlled
similar
unit'
under
the
worst
reasonably
foreseeable
circumstances,"
167
F.
3d
at
665,
not
the
worst
foreseeable
circumstances
faced
by
any
unit
in
a
given
source
category.
Moreover,
although
Sierra
Club
also
notes
that
"[
p]
erhaps
considering
all
units
with
the
same
technology
is
justifiable
because
the
best
way
to
predict
the
worst
reasonably
foreseeable
performance
of
the
best
unit
with
available
data
is
to
look
at
other
units'
performance,"
id.,
we
explained
in
National
Lime
II
that
such
an
approach
would
satisfy
the
statute
"
if
pollution
control
technology
were
the
only
factor
determining
emission
levels
of
that
HAP,"
233
F.
3d
at
633
(
emphasis
added).
Moreover,
using
language
especially
relevant
to
this
case,
National
Lime
II
observed
that:

it
became
clear
[
at
oral
argument]
that
the
Sierra
Club
believes
that
EPA's
MACT
approach
would
not
accurate­
ly
estimate
emission
levels
of
the
best
performing
twelve
percent
of
plants
if
the
best
performing
plants
achieved
their
emission
levels
not
just
by
using
technology,
but
also
by
selecting
cleaner
manufacturing
inputs.
For
example,
the
best
performing
twelve
percent
of
plants
might
perform
well
because,
in
comparison
to
other
plants
having
the
same
technology,
they
use
less­
polluting
fuels
or
purer
raw
materials.
Such
plants
would
have
predictably
lower
emissions
than
plants
using
MACT
floor
technology
alone.

Id.
at
632­
33.
National
Lime
II
goes
on
to
note
that
although
"
this
argument
may
well
have
merit,"
id.
at
633,
the
argument
could
not
be
considered
because
the
Sierra
Club
failed
to
present
it
in
its
opening
brief,
thus
failing
to
explain
"
why
the
emissions
standards
EPA
set
might
not
accurately
estimate
the
performance
of
the
best
performing
twelve
percent
of
plants,"
id.
at
632.

Here,
unlike
in
National
Lime
II,
the
Sierra
Club
has
argued
that
factors
other
than
MACT
technology
influence
emissions:
"
The
best
source
may
use
other
control
techniques
that
the
worst
source
does
not,
may
use
a
newer
and
better
version
of
the
chosen
technology,
may
train
its
operators
more
rigorously,
or
may
simply
be
better
designed
and
operated."
Sierra
Club's
Opening
Br.
at
29.
The
statute
itself,
the
Sierra
Club
points
out,
directs
EPA
to
consider
factors
such
as
"
process
changes,
substitution
of
materials
or
other
modifications
...
design,
equipment,
work
practice,
or
operational
standards
...
[
or]
a
combination
of
above,"
42
U.
S.
C.
ss
7412(
d)(
2)(
A)­(
E),
suggesting
that
"
Congress
itself
recognized
that
many
factors
...
affect
sources'
emissions,"
Sierra
Club's
Opening
Br.
at
29.
In
addition,
the
Sierra
Club
points
to
record
evidence
that
other
factors
contribute
to
emissions.
For
example,
although
EPA's
particulate
matter
floors
for
incinerators
reflect
what
the
Agency
thought
was
achievable
with
just
one
control
technology­­
either
a
fabric
filter,
an
electrostatic
precipitator,
or
an
ionizing
wet
scrub­
ber,
64
Fed.
Reg.
at
52,864­­
record
evidence
suggests
that
some
incinerators
use
these
devices
in
combination
with
other
control
devices,
see
3
Final
TSD,
at
4­
2.
As
the
Sierra
Club
also
observes,
EPA
has
acknowledged
that
different
models
of
the
same
technology
vary
significantly
in
their
perfor­
mance.
See
id.
at
4­
3
("
Fabric
filters
with
conventional
woven
fiberglass
bags
have
demonstrated
emissions
control
levels
on
[
incinerators]....
With
improved
fiberglass
or
Nomex
felt
and
tri­
loft
fabrics,
levels
lower
than
0.005
gr/
dscf
have
been
demonstrated.
High
performance
membrane
fab­
rics
...
have
demonstrated
levels
below
0.0010
gr/
dscf
over
long
term
operation.").

The
record
contains
still
more
indications
that
variables
other
than
the
MACT
control
affect
HWC
emissions.
For
example,
in
a
1996
technical
support
document,
EPA
ob­
served
that
"[
t]
he
MACT
[
expanded
pool]
contains
conditions
with
a
large
range
of
[
dioxin/
furan]
levels,
from
0.005
to
38.5
TEQ
ng/
dscm.
This
indicates
that
the
air
pollution
control
device
system
type
...
may
not
be
the
only
important
consideration[
]
affecting
[
dioxin/
furan]
control;
other
factors
such
as
combustion
quality
and
waste
composition
...
may
also
be
of
importance."
Draft
Technical
Support
Document
for
HWC
MACT
Standards,
Vol.
III:
Selection
of
MACT
Standards
and
Technologies,
at
3­
3
(
Feb.
1996)
("
3
Draft
TSD").
In
a
1999
technical
support
document
detailing
its
strategy
for
estimating
variability,
EPA
noted
that
"[
t]
he
MACT
[
expanded
pools]
typically
contain
data
from
a
wide
variety
of
different
sources
within
each
HAP
and
source
category
combination,
thus
capturing
the
potential
range
in
emissions
due
to
differences
in
equipment
operations,
design,
waste
type,
etc."
3
Final
TSD,
at
2­
17
to
2­
18;
see
also
64
Fed.
Reg.
at
52,857.
Commenters
also
brought
to
the
Agen­
cy's
attention
factors
other
than
the
MACT
control.
One
commenter
noted
that:

[
t]
he
data
in
the
expanded
MACT
pools
...
do
not
provide
meaningful
information
because
many
factors,
other
than
the
type
of
control
device,
significantly
affect
HWCs'
emissions.
Obvious
examples
of
such
factors
include
feedrates,
various
operating
parameters,
operator
training
and
behavior,
and
variations
between
similar
(
but
not
identical)
control
devices....
Because
many
variables
significantly
influence
emission
rates,
identify­
ing
the
emissions
rates
associated
with
a
particular
type
of
control
device
indicates
very
little
about
the
actual
capability
of
that
type
of
control
device.

1
Final
Response
to
Comments:
MACT
Floor
Approaches,
at
51.
EPA
responded
to
this
comment
not
by
explaining
why
these
factors
are
insignificant
to
estimating
emissions
of
the
best­
performers,
but
rather
by
claiming
(
as
it
does
here)
that
floors
must
be
achievable
by
all
sources
using
MACT
technol­
ogy.
See
id.
at
53­
55.

We
think
this
record
evidence
supports
the
Sierra
Club's
claim
that
because
factors
other
than
MACT
technology
affect
emissions,
emissions
of
the
worst­
performing
MACT
source
may
not
reflect
what
the
best­
performers
actually
achieve.
EPA's
responses
are
unpersuasive.

The
Agency
argues
that
"
there
is
no
question
as
to
the
type
of
control
device
each
source
uses."
Respondent's
Br.
at
38­
39.
But
as
the
Sierra
Club
points
out,
this
claim
is
non­
responsive:
just
because
EPA
can
identify
which
sources
use
the
MACT
control
does
not
mean
that
factors
other
than
the
MACT
control
have
no
effect
on
emissions.
The
Agency
also
emphasizes
that
it
"
considered
only
the
variability
consistent
with
proper
design
and
operation
of
MACT
control."
Id.
at
39.
Again,
this
claim
misses
the
point:
whether
variability
in
the
MACT
control
accurately
estimates
variability
associated
with
the
best­
performing
sources
depends
on
whether
factors
other
than
the
MACT
control
contribute
to
emissions.
In
other
words,
if
factors
other
than
MACT
technology
do
indeed
influence
a
source's
performance,
it
is
not
sufficient
that
EPA
considered
sources
using
only
well­
designed
and
properly
operated
MACT
controls.

EPA
next
claims
that
even
though
the
performance
of
the
MACT
controls
themselves
vary,
"
effort[
s]
at
further
specifi­
cation
[
of
the
MACT
control]
failed
because
the
myriad
factors
that
create
operating
variability
proved
impossible
to
reliably
quantify."
Id.
(
citing
3
Draft
TSD,
at
2­
6,
which
notes
that
instead
of
setting
the
MACT
control
as
any
fabric
filter,
the
Agency
could
have
differentiated
among
different
fabric
filter
units
according
to
parameters
such
as
"
cloth
type,
fabric
age,
cleaning
practices,
and
pressure
drop,"
but
de­
clined
to
do
so
"
due
to
lack
of
information"
on
specific
facilities'
fabric
filters).
In
a
similar
vein,
the
Agency
claimed
in
a
1996
technical
support
document
(
though
not
in
this
court)
that,
at
least
in
the
case
of
the
dioxin/
furan
standards,
factors
other
than
technology
that
affect
emissions,
"
such
as
combustion
quality
and
waste
composition[,]
...
are
difficult
to
quantify
for
the
definition
of
MACT."
3
Draft
TSD,
at
3­
3.
Even
accepting
the
proposition
that
factors
affecting
source
performance­­
either
design
features
of
the
control
itself
(
such
as
the
type
of
fabric
used)
or
non­
MACT
variables
(
such
as
waste
composition
or
use
of
additional
controls)­­
are
difficult
to
quantify
when
defining
the
MACT
control,
nothing
in
the
statute
requires
the
Agency
to
use
the
MACT
ap­
proach.
Section
7412(
d)(
3)
requires
only
that
EPA
set
floors
at
the
emission
level
achieved
by
the
best­
performing
sources.
If
EPA
cannot
meet
this
requirement
using
the
MACT
methodology,
it
must
devise
a
different
approach
capable
of
producing
floors
that
satisfy
the
Clean
Air
Act.
Indeed,
the
very
fact
that
EPA
recognizes
both
design
differences
in
MACT
technology
and
non­
MACT
factors
as
causes
of
wide­
ranging
variations
in
performance
suggests
that
the
emissions
achieved
by
the
worst­
performing
MACT
source
do
not,
as
the
CAA
requires,
represent
a
reasonable
estimate
of
emis­
sions
achieved
by
the
best­
performing
sources.

Finally,
we
are
unpersuaded
by
EPA's
claim
that
to
ac­
count
for
the
best­
performing
sources'
operational
variability,
it
had
to
base
the
floors
on
the
worst
performers'
emissions.
While
we
have
recognized
that
a
given
control
can
experience
operational
variability,
see
Nat'l
Lime
Ass'n
v.
EPA,
627
F.
2d
416,
424­
25,
436,
439­
41
(
D.
C.
Cir.
1980)
(
recognizing
variabil­
ity
in
the
performance
of
emission
controls
such
as
baghous­
es,
ESPs,
scrubbers,
feed
materials,
and
types
of
fuel),
the
relevant
question
here
is
not
whether
control
technologies
experience
variability
at
all,
but
whether
the
variability
expe­
rienced
by
the
best­
performing
sources
can
be
estimated
by
relying
on
emissions
data
from
the
worst­
performing
sources
using
the
MACT
control.
In
this
case,
the
evidence
EPA
cites
to
support
the
MACT
approach
as
a
means
of
account­
ing
for
operational
variability
fails
to
demonstrate
the
rele­
vant
relationship.
Some
of
the
Agency's
citations
to
the
record
merely
contain
assertions
that
"[
the]
approach
...
fully
accounts
for
normal
process
variability."
1
Final
Re­
sponse
to
Comments:
MACT
Floor
Approaches,
at
59;
see
also
64
Fed.
Reg.
at
52,923
(
noting
that
HWCs
are
particular­
ly
susceptible
to
variability).
The
actual
variability
data
EPA
cites
suggest
only
that
emissions
from
sources
using
a
given
control
vary
over
a
wide
range,
not
that
the
high
emission
levels
achieved
by
sources
at
one
end
of
that
range
reflect
levels
achieved
by
sources
at
the
other
end,
nor
that
the
best­
performing
sources
ever
experience
a
wide
range
of
variabili­
ty
at
all.
See,
e.
g.,
3
Draft
TSD,
at
3­
3
to
3­
12,
4­
2
to
4­
8;
see
also
Final
Technical
Support
Document
for
HWC
MACT
Standards,
Vol.
IV:
Compliance
with
the
HWC
MACT
Stan­
dards,
at
4­
7
(
July
1999)
(
explaining
the
operating
parame­
ters
of
various
control
technologies).
Indeed,
throughout
the
rulemaking,
EPA
defended
its
reliance
on
the
worst­
performing
MACT
source
as
a
means
of
setting
achievable
floors,
not
as
a
way
of
determining
the
operational
variability
experienced
by
the
best­
performing
sources.
See,
e.
g.,
64
Fed.
Reg.
at
52,859
&
n.
77
(
explaining
that
its
decision
to
base
the
floors
"
on
the
highest
test
condition
average
for
sources
in
the
expanded
MACT
pool"
was
designed
to
ensure
that
all
sources
using
the
MACT
control
could
achieve
the
standard).

What
is
more,
statements
in
the
record
actually
cast
doubt
on
the
possibility
that
the
emissions
of
the
worst­
performing
sources
estimate
the
variability
experienced
by
the
best
per­
formers.
For
example,
in
the
introduction
to
the
proposed
rule,
EPA
acknowledged
that
it
considered
a
"
12
percent
approach,"
according
to
which
it
would
have
set
the
floors
based
on
the
statistical
average
of
the
12
percent
MACT
pool
and
then
added
the
"
average
within­
test
condition
variability
within
the
expanded
MACT
pool."
Revised
Standards
for
Hazardous
Waste
Combustors,
61
Fed.
Reg.
17,358,
17,367
(
Apr.
19,
1996).
EPA
chose
not
even
to
propose
this
ap­
proach,
however,
concluding
that
"
it
could
not
be
demonstrat­
ed
that
sources
within
the
expanded
MACT
pool
using
MACT
floor
controls
could
achieve
the
floor
levels"
that
resulted
from
the
Agency's
calculations.
Id.
The
fact
that
EPA
calculated
the
variability
experienced
by
the
top
12
percent
of
sources,
but
then
declined
to
use
those
results
to
set
the
floors
because
they
would
not
be
achievable
by
all
MACT
sources,
strongly
suggests
a
real
difference
between
emis­
sions
achieved
by
the
worst­
performing
sources
and
the
varia­
bility
experienced
by
the
best
performers.
Similarly,
EPA's
use
of
worst­
case
emissions
data
from
RCRA
compliance
tests,
during
which
sources
routinely
spike
their
feed­­
a
practice
we
discuss
in
more
detail
in
Part
IV­­
further
under­
mines
the
Agency's
claim
that
to
account
for
the
variability
experienced
by
the
best­
performing
sources,
it
had
to
set
floors
based
on
the
worst­
performers'
emissions:
if,
as
the
Agency
claims,
RCRA
data
reflect
sources'
performance
un­
der
the
worst
foreseeable
circumstances,
why
is
the
use
of
worst­
case
data,
on
its
own,
insufficient
to
account
for
the
variability
in
emissions
experienced
by
the
best­
performing
sources?

To
sum
up,
the
possibility
we
acknowledged
in
National
Lime
II­­
that
the
"
best
performing
plants
achieve[
]
their
emission
levels
not
just
by
using
technology,"
233
F.
3d
at
633­­
appears
to
have
been
borne
out
in
this
case.
Because
record
evidence
suggests
that
factors
other
than
the
MACT
control
influence
emissions,
EPA
has
not
demonstrated,
in
Sierra
Club's
words,
that
floors
based
on
the
worst­
performing
MACT
sources'
emissions
represent
"
a
reasonable
estimate
of
the
performance
of
the
[
best­
performing]
units."
167
F.
3d
at
662.
To
be
sure,
it
is
not
our
place
to
dictate
to
the
Agency
how
to
account
for
variables
other
than
the
MACT
control.
If
in
the
case
of
a
particular
source
category
or
HAP,
the
Agency
can
demonstrate
with
substantial
evi­
dence­­
not
mere
assertions­­
that
MACT
technology
signifi­
cantly
controls
emissions,
or
that
factors
other
than
the
control
have
a
negligible
effect,
the
MACT
approach
could
be
a
reasonable
means
of
satisfying
the
statute's
requirements.
See
Nat'l
Lime
II,
233
F.
3d
at
633.
But
even
if,
as
EPA
claims,
accounting
for
non­
MACT
factors
is
difficult,
the
Agency
may
not
use
a
proxy
for
the
best
performers
that
it
has
considerable
reason
to
believe
falls
short
of
section
7412(
d)(
3)'
s
requirements.

IV
As
part
of
its
challenge
to
the
MACT
approach,
the
Sierra
Club
contends
that
EPA
violated
the
Clean
Air
Act
by
relying
on
"
worst­
case
data"
to
derive
the
HWC
standards.
In
setting
the
floors,
EPA
relied
on
emissions
data
generated
during
incinerator
trial
burn
tests
and
RCRA
compliance
testing
of
cement
and
lightweight
aggregate
kilns.
During
such
testing,
sources
often
operate
under
worst­
case
condi­
tions
by
spiking
metals
and
chlorine
in
the
waste
feed
[
and]
detuning
the
emissions
control
equipment....
[
T]
hese
sources
conduct
tests
in
a
manner
that
will
establish
a
wide
envelope
for
their
operating
parameter
limits
in
order
to
accommodate
the
expected
variability
...
[
in]
types
of
wastes,
combustion
system
parameters,
and
emission
control
parameters.

64
Fed.
Reg.
at
52,858.
The
Sierra
Club
argues
that
because
compliance
data
reflect
abnormally
bad
performance,
they
"
do
not
represent
any
source's
actual
performance."
Sierra
Club's
Opening
Br.
at
23.
Indeed,
"
sources'
emissions
during
normal
operations
tend
to
be
less
than
one
half
of
their
'
worst­
case'
emissions."
Id.

Defending
its
use
of
RCRA
compliance
data,
EPA
argues
that
such
data
are
in
fact
actual
test
results
and
therefore
reflect
actual
source
performance.
The
fact
that
RCRA
data
measure
worst­
case
conditions,
the
Agency
explains,

merely
confirms
that
standards
based
on
the
data
reflect
the
most
adverse
conditions
that
can
reasonably
be
ex­
pected
to
recur....
Because
these
test
conditions
are
specifically
designed
to
help
account
for
operating
varia­
bility,
they
are
more
helpful
than
normal
operating
data
would
be
in
estimating
performance
under
a
variety
of
conditions
and
thus
in
helping
to
assure
that
properly
designed
and
operated
sources
can
achieve
the
standard.

Respondent's
Br.
at
33
(
internal
quotation
omitted).
Accord­
ing
to
EPA,
because
the
statute
permits
it
to
use
available
information
to
identify
the
best­
performing
sources,
and
be­
cause
RCRA
data
are
available
information,
it
reasonably
relied
on
RCRA
test
results.

Section
7412(
d)(
3)
requires
EPA
to
set
emission
floors
based
on
"
the
average
emission
limitation
achieved
by
the
best
performing
12
percent
of
the
existing
sources
(
for
which
the
Administrator
has
emissions
information)."
42
U.
S.
C.
s
7412(
d)(
3)(
A)
(
emphasis
added).
We
think
it
not
at
all
unreasonable
for
the
Agency
to
read
this
language
as
permit­
ting
it
to
rely
on
"
information"
in
its
database­­
i.
e.,
the
RCRA
data.
See
Chevron,
467
U.
S.
at
843
("[
A]
court
may
not
substitute
its
own
construction
of
a
statutory
provision
for
a
reasonable
interpretation
made
by
the
administrator
of
an
agency.").
And
as
we
pointed
out
in
Sierra
Club,
"
EPA
typically
has
wide
latitude
in
determining
the
extent
of
data­
gathering
necessary
to
solve
a
problem.
We
generally
defer
to
an
agency's
decision
to
proceed
on
the
basis
of
imperfect
scientific
information,
rather
than
to
invest
the
resources
to
conduct
the
perfect
study."
167
F.
3d
at
662
(
internal
quota­
tion
omitted).
Although
sources
do
spike
their
feed
during
RCRA
compliance
tests,
the
Sierra
Club
has
offered
us
no
basis
for
concluding
that
using
RCRA
data
would
prevent
EPA
from
identifying
the
best­
performers
and
predicting
their
emissions
under
the
"
worst
reasonably
foreseeable
cir­
cumstances."
Id.
at
665.
In
other
words,
the
Sierra
Club
has
failed
to
demonstrate
that
EPA's
model
"
bears
no
ration­
al
relationship
to
the
reality
it
purports
to
represent,"
Colum­
bia
Falls
Aluminum
Co.
v.
EPA,
139
F.
3d
914,
923
(
D.
C.
Cir.
1998)
(
internal
quotation
omitted).

V
Industry
petitioner
Continental
Cement
claims
that
EPA
failed
to
meet
its
obligations
under
the
Regulatory
Flexibility
Act
("
RFA"),
as
amended
by
the
Small
Business
Regulatory
Enforcement
Fairness
Act
of
1996
("
SBREFA").
Pub.
L.
No.
96­
354,
94
Stat.
1165­
70
(
1980),
codified
at
5
U.
S.
C.
ss
601­
612,
as
amended
by
Pub.
L.
No.
104­
121,
110
Stat.
864
(
1996).
Failure
to
comply
with
the
RFA
"
may
be,
but
does
not
have
to
be,
grounds
for
overturning
a
rule."
Small
Refiner
Lead
Phase­
Down
Task
Force
v.
EPA,
705
F.
2d
506,
538
(
D.
C.
Cir.
1983).

Under
the
RFA,
agencies
promulgating
a
rule
that
will
have
a
"
significant
impact"
on
"
small
entities"
are
required
to
"
prepare
and
make
available
for
public
comment
an
initial
regulatory
flexibility
analysis
...
[
that]
describe[
s]
the
impact
of
the
proposed
rule"
on
those
entities,
and
to
publish
a
"
final
regulatory
analysis"
with
the
final
rule.
5
U.
S.
C.
ss
605,
603,
604.
Small
entities
include
small
businesses,
small
organiza­
tions,
and
small
governmental
jurisdictions.
Id.
s
601(
6).
The
regulatory
analysis
forces
the
agency
to
consider
various
factors
set
forth
in
the
statute,
including
"
a
description
of
the
steps
the
agency
has
taken
to
minimize
the
significant
eco­
nomic
impact
[
of
the
rule]
on
small
entities."
Id.
s
604(
a)
(
final
regulatory
flexibility
analysis);
see
also
id.
ss
603(
b)
&
(
c)
(
initial
regulatory
flexibility
analysis).

This
procedure
is
intended
to
evoke
commentary
from
small
businesses
about
the
effect
of
the
rule
on
their
activi­
ties,
and
to
require
agencies
to
consider
the
effect
of
a
regulation
on
those
entities.
An
agency
may
dispense
with
the
regulatory
analysis
if
it
certifies
"
that
the
rule
will
not,
if
promulgated,
have
a
significant
economic
impact
on
a
sub­
stantial
number
of
small
entities."
Id.
s
605(
b).
EPA
relied
on
the
s
605(
b)
exception.

In
seeking
to
determine
whether
its
regulations
would
have
"
significant
economic
impact"
on
a
"
substantial
number
of
small
entities,"
64
Fed.
Reg.
at
53,023­
24,
EPA
examined
the
entities
that
would
be
"
directly
impacted"­­
hazardous
waste
combustion
facilities.
EPA
concluded
that
only
six
of
the
HWC
facilities
met
the
definition
of
a
"
small
business"
and
that
only
two
of
these
would
experience
compliance
costs
in
excess
of
one
percent
of
annual
sales.
Id.
at
53,024.
EPA
therefore
certified
that
there
would
be
no
significant
impact
on
a
substantial
number
of
small
business
HWC
facilities.
Id.
EPA
then
considered
the
economic
effects
of
the
new
rule
on
small
businesses
that
generate
and
blend
the
hazard­
ous
waste
consumed
in
the
HWCs.
Id.
EPA
did
not
believe
the
statute
required
it
to
conduct
this
inquiry,
but
it
decided
to
do
so
in
the
"
spirit"
of
the
RFA
because
some
portion
of
the
burden
of
compliance
might
pass
through
to
the
genera­
tors
and
blenders
of
hazardous
waste.
Id.
at
53,023­
24.
As
to
these
entities,
EPA
did
not
certify
that
there
would
be
no
"
significant
impact"
on
a
"
substantial
number"
of
small
busi­
nesses.
Id.

Continental
claims
that
EPA
should
have
considered
each
category
of
HWCs
separately
in
conducting
its
"
direct
im­
pact"
analysis.
Continental
also
maintains
that
EPA
had
to
certify
that
there
would
be
no
substantial
effect
on
generators
of
hazardous
waste
in
order
to
meet
the
requirements
of
the
RFA.
In
response,
EPA
argues
that
it
complied
with
the
requirements
of
the
RFA.

Continental
is
a
"
cement
manufacturer"
under
the
relevant
Small
Business
Administration
Regulations,
and
therefore
qualifies
as
a
small
business
because
it
has
fewer
than
750
employees.
Small
Business
Size
Regulations,
65
Fed.
Reg.
30,836,
30,847
(
May
15,
2000).
While
Continental's
petition
did
not
refer
to
its
status
as
a
hazardous
waste
generator,
we
accept
counsel's
representation
at
oral
argument
that
the
company
also
generates
hazardous
waste,
and
therefore
is
not
bringing
this
claim
solely
in
its
capacity
as
a
hazardous
waste
combustor.
Accordingly,
Continental
has
standing.

We
decline
to
consider
Continental's
argument
that
EPA
should
have
conducted
independent
RFA
analyses
for
each
class
of
HWCs.
Continental's
opening
brief
contains
only
a
single
conclusory
sentence
stating
this
point,
and
its
reply
brief
does
nothing
to
expand
on
the
subject.
A
litigant
does
not
properly
raise
an
issue
by
addressing
it
in
a
"
cursory
fashion"
with
only
"
bare­
bones
arguments."
Wash.
Legal
Clinic
for
the
Homeless
v.
Barry,
197
F.
3d
32,
39
(
D.
C.
Cir.
1997);
Terry
v.
Reno,
101
F.
3d
1412,
1415
(
D.
C.
Cir.
1996);
Carducci
v.
Regan,
714
F.
2d
171,
177
(
D.
C.
Cir.
1983).
Even
if
the
briefing
were
sufficient
to
raise
this
issue,
it
certainly
is
not
persuasive
enough
to
carry
Continental's
burden
of
show­
ing
that
the
agency's
analysis
was
arbitrary
and
capricious.

As
to
Continental's
second
claim
regarding
generators
of
hazardous
waste,
this
court
has
consistently
rejected
the
contention
that
the
RFA
applies
to
small
businesses
indirectly
affected
by
the
regulation
of
other
entities.
Mich.
v.
EPA,
213
F.
3d
663,
688­
89
(
D.
C.
Cir.
2000);
Motor
&
Equip.
Mfrs.
Ass'n
v.
Nichols,
142
F.
3d
449,
467
(
D.
C.
Cir.
1998);
Mid­
Tex
Elec.
Coop.
v.
FERC,
773
F.
2d
327,
342
(
D.
C.
Cir.
1985).
EPA's
rule
regulates
hazardous
waste
combustors,
not
waste
generators.
We
explained
in
Mid­
Tex
that
the
language
of
the
statute
limits
its
application
to
the
"
small
entities
which
will
be
subject
to
the
proposed
regulation"­­
that
is,
those
"
small
entities
to
which
the
proposed
rule
will
apply."
Mid­
Tex
Elec.
Coop.,
773
F.
2d
at
342
(
quoting
5
U.
S.
C.
s
603(
b)).
Congress
"
did
not
intend
to
require
that
every
agency
consid­
er
every
indirect
effect
that
any
regulation
might
have
on
small
businesses
in
any
stratum
of
the
national
economy."
Id.
at
343.

Continental
acknowledges
these
precedents,
but
seeks
to
distinguish
this
case
on
the
basis
that
EPA
actually
intended
to
affect
the
conduct
of
hazardous
waste
generators
by
rais­
ing
the
cost
of
incineration.
This
increase
in
cost
would
create
an
economic
incentive
to
minimize
waste
production.
As
evidence,
Continental
cites
the
portion
of
the
preamble
to
the
rule
which
states
that
the
rule
"
fulfills
our
1993
and
1994
public
commitments
to
upgrade
emissions
standards
for
HWCs.
These
commitments
are
the
centerpiece
of
our
Haz­
ardous
Waste
Minimization
and
Combustion
Strategy."
64
Fed.
Reg.
at
52,832.
Continental
also
refers
us
to
EPA's
statement
that
"[
a]
s
today's
rule
is
implemented,
the
costs
of
burning
hazardous
waste
will
increase,
resulting
in
market
incentives
for
greater
waste
minimization."
64
Fed.
Reg.
at
53,021.

Contrary
to
what
Continental
supposes,
application
of
the
RFA
does
turn
on
whether
particular
entities
are
the
"
tar­
gets"
of
a
given
rule.
The
statute
requires
that
the
agency
conduct
the
relevant
analysis
or
certify
"
no
impact"
for
those
small
businesses
that
are
"
subject
to"
the
regulation,
that
is,
those
to
which
the
regulation
"
will
apply."
Mid­
Tex
Elec.
Coop.,
773
F.
2d
at
342;
5
U.
S.
C.
s
605(
b)(
3).
EPA's
rule
applies,
by
its
terms,
only
to
HWCs.
The
rule
will
doubtless
have
economic
impacts
in
many
sectors
of
the
economy.
But
to
require
an
agency
to
assess
the
impact
on
all
of
the
nation's
small
businesses
possibly
affected
by
a
rule
would
be
to
convert
every
rulemaking
process
into
a
massive
exercise
in
economic
modeling,
an
approach
we
have
already
rejected.
See
Mid­
Tex
Elec.
Coop.,
773
F.
2d
at
343.

VI
The
Environmental
Technology
Council,
a
trade
association
representing
firms
involved
in
disposal
of
hazardous
wastes,
petitions
for
review
of
40
C.
F.
R.
ss
63.1206(
b)(
9)
&
(
10).
These
provisions
create
alternative
emission
standards
for
cement
kilns
and
lightweight
aggregate
kilns.
EPA
ex­
pressed
concern
that
some
sources
might
not
be
able
to
meet
some
of
the
MACT
standards
because
of
raw
material
contri­
bution
to
emissions,
and
therefore
enacted
the
alternative
standards
for
SVMs,
LVMs,
chlorine
and
mercury.
Id.;
see
also
64
Fed.
Reg.
at
52,962­
67;
Revised
Standards
for
Haz­
ardous
Waste
Combustors,
61
Fed.
Reg.
17,358,
17,395
&
17,405
(
Apr.
19,
1996);
Final
Response
to
Comments
to
the
Proposed
HWC
MACT
Standards,
Volume
II:
Compliance:
Equivalency
Determination
and
Alternate
Standards,
at
7
(
July
1999).
The
Council
contends
that
these
provisions
vio­
late
the
language
of
s
7412,
and
are
arbitrary
and
capricious.
We
refuse
to
consider
these
contentions
because
the
Council
lacks
prudential
standing.

The
Council
rests
its
claims
of
constitutional
and
prudential
standing
on
the
ground
that
its
members
will
suffer
"
econom­
ic
and
competitive
injury,
most
significantly
diminished
value
of
capital
investment,
if
competing
facilities
are
excused
from
the
MACT
standards
and
thereby
avoid
the
substantial
com­
pliance
costs."
Envtl.
Tech.
Council's
Opening
Br.
at
7.
According
to
the
Council,
its
members
have
already
made
substantial
investments
in
various
pollution
control
technolo­
gies
and
constitute
the
"
best
performing
sources"
to
which
the
CAA
refers
in
s
7412(
d).
It
alleges
that
its
interests
in
ensuring
that
other
HWCs
comply
with
the
MACT
standards
(
which
they
concede
are
purely
economic),
are
congruent
with
the
interests
protected
by
the
statute,
and
that
it
is
therefore
a
"
suitable
challenger"
within
the
zone
of
interests
of
the
CAA.

The
Council
appears
to
have
constitutional
standing.
It
claims
that
there
are
numerous
costs
associated
with
meeting
the
MACT
standards,
and
that
EPA's
creation
of
an
alterna­
tive
standard
will
save
some
competitors
from
those
costs.
1
Basic
economics
indicates
that
a
competitor
whose
costs
are
lower
will
be
able
to
provide
services
at
lower
cost­­
and
one
can
reasonably
expect
this
to
result
in
lost
business
to
the
Council's
members.
Accordingly,
we
think
the
Council
has
met
its
constitutional
obligation
to
show
injury,
causation,
and
redressability.
Lujan
v.
Defenders
of
Wildlife,
504
U.
S.
555,
560­
62
(
1992).

The
problem
for
the
Council
is
that
we
have
previously
rejected
prudential
standing
in
two
nearly
identical
cases
in
which
industry
groups
claimed
to
be
suitable
challengers
to
regulations
directed
at
competitors.
Hazardous
Waste
Treatment
Council
v.
EPA,
885
F.
2d
918
(
D.
C.
Cir.
1989)
(
HWTC
IV);
Hazardous
Waste
Treatment
Council
v.
EPA,
861
F.
2d
277
(
D.
C.
Cir.
1988)
(
HWTC
II).
To
demonstrate
prudential
standing,
ordinarily
a
party
must
show
that
the
interest
it
seeks
to
protect
"
is
arguably
within
the
zone
of
__________
1
At
oral
argument
the
court
pointed
out
to
counsel
that
the
alternative
standards
require
a
facility
seeking
the
exemption
to
demonstrate
that
"
even
though
[
it
uses]
MACT
control"
technology,
it
still
cannot
meet
the
standard.
64
Fed.
Reg.
at
52,965­
66.
In
light
of
this,
the
court
inquired
what
injury
the
exception
might
inflict
on
the
Council's
members.
The
attorney
for
the
Council
explained
that
the
"
best
performing
sources"
rely
on
techniques
other
than
just
technological
aids
to
reduce
pollution,
and
that
these
techniques
cost
money
to
implement.
EPA
did
not
contest
this
representation.
interests
to
be
protected
or
regulated
by
the
statute
...
in
question."
Ass'n
of
Data
Processing
Serv.
Orgs.
v.
Camp,
397
U.
S.
150,
153
(
1970).
Under
this
"
zone
of
interests"
test,
the
"
essential
inquiry
is
whether
Congress
'
intended
for
[
a
particular]
class
[
of
plaintiffs]
to
be
relied
upon
to
challenge
agency
disregard
of
the
law.'
"
Clarke
v.
Securities
Indus.
Ass'n,
479
U.
S.
388,
399
(
1987)
(
quoting
Block
v.
Cmty.
Nutrition
Inst.,
467
U.
S.
340,
347
(
1984)).
While
the
"
zone
of
interests"
test
is
not
meant
to
be
"
especially
demanding,"
it
will
deny
standing
to
one
claiming
to
be
a
"
suitable
challeng­
er"
when
"
plaintiff's
interests
are
so
marginally
related
to
or
inconsistent
with
the
purposes
implicit
in
the
statute
that
it
cannot
reasonably
be
assumed
that
Congress
intended
to
permit
the
suit."
Id.

In
HWTC
II
we
considered
the
claim
of
an
industry
group
similar
to
the
Council
that
challenged
EPA
regulations
under
RCRA
and
sought
tighter
controls
on
competitors.
2
861
F.
2d
at
282.
Petitioner
there
claimed
prudential
standing
because
"
tightening
of
environmental
standards
will
generally
foster
not
only
a
cleaner
environment
but
also
expand
the
member
companies'
profits,
as
it
will
expand
the
market
for
their
services."
Id.
Petitioner
argued
that
its
interests
were
"
in
sync"
with
those
served
by
RCRA.
We
rejected
this
argu­
ment.
The
"
consumers
of
the
environmental
purity
afforded
by
RCRA
seem
highly
suitable
champions
of
enforcement."
Id.
at
284.
Petitioner's
interest
was
not
in
environmental
purity,
but
in
increasing
the
regulatory
burden
on
its
compet­
itors.
To
hold
that
this
satisfied
prudential
standing
would
be
to
create
"
a
considerable
potential
for
judicial
intervention
that
would
distort
the
regulatory
process."
Id.
at
285.
We
followed
the
same
analysis
in
HWTC
IV.
885
F.
2d
at
922­
26.

The
case
before
us
is
identical
to
HWTC
II
and
IV,
except
that
the
relevant
statute
is
the
CAA,
not
RCRA.
The
__________
2
EPA
contends
that
the
Council
is
actually
the
same
organization
as
the
HWTC,
with
a
different
name.
The
Council
does
not
contest
this
representation.
Whether
the
two
organizations
are
the
same
does
not
matter
here,
however,
as
it
is
clear
that
their
positions
and
arguments
are
identical.
Council
thinks
this
makes
all
the
difference­­
that
by
adopting
a
technology­
based
approach
to
emissions
standards,
Con­
gress
aligned
the
interests
of
competitors
and
environmental­
ists
in
such
a
way
as
to
bring
the
former
into
the
zone
of
interests.
We
disagree.
The
Council
has
identified
nothing
to
indicate
that
Congress'
shift
to
a
technology­
based
ap­
proach
was
anything
more
than
a
determination
that
this
would
provide
a
more
workable
basis
for
promulgating
stan­
dards.
The
statute's
language
indicates
that,
contrary
to
the
Council's
contention,
Congress'
"
evident
purpose"
was
not
to
"
compel[
]
those
sources
with
less­
than­
best
pollution
control
to
invest
in
upgraded
equipment."
Neither
the
statute
nor
the
rules
actually
require
HWCs
to
use
the
same
methods
of
emission
control
used
by
the
best
performing
sources;
they
must
only
meet
the
standards
of
those
that
do.
See
42
U.
S.
C.
s
7412(
d)(
2);
64
Fed.
Reg.
at
52,963
n.
255.
As
in
the
HWTC
cases,
the
Council's
interest
lies
only
in
increasing
the
regula­
tory
burden
on
others.
See
HWTC
IV,
885
F.
2d
at
924­
25;
HWTC
II,
861
F.
2d
at
285.
The
Council
therefore
lacks
prudential
standing.

VII
We
remand
the
HWC
floors
to
EPA
for
further
proceed­
ings
consistent
with
this
opinion.
In
so
doing,
we
emphasize
that
we
do
not
expect
the
impossible
of
the
Agency.
Floors
need
not
be
perfect
mirrors
of
the
best
performers'
emissions.
But
whether
EPA
chooses
end­
of­
stack
technology
or
feed­
rate
as
the
MACT
control,
or
abandons
the
MACT
approach
altogether,
CAA
section
7412(
d)(
3),
as
interpreted
by
this
court
in
Sierra
Club
and
National
Lime
II,
requires
that
floors
reflect
a
reasonable
estimate
of
the
emissions
"
achieved"
in
practice
by
the
best­
performing
sources.
See
Nat'l
Lime
II,
233
F.
3d
at
632.

Because
EPA
will
have
to
set
new
floors,
we
need
not
address
the
Sierra
Club's
additional
arguments
that
in
decid­
ing
whether
to
set
beyond­
the­
floor
standards
pursuant
to
CAA
section
7412(
d)(
2),
EPA
failed
to
consider
several
non­
air
quality
health
and
environmental
impacts
that
commen­
ters
claimed
result
from
HWC
emissions,
as
well
as
whether
stricter
standards
based
on
additional
controls
would
be
achievable.
See
id.
at
634
(
declining
to
address
beyond­
the­
floor
arguments
regarding
two
HAPs
because
the
floors
for
those
HAPs
were
being
remanded).
Nor,
for
the
same
reason,
need
we
consider
industry
petitioners'
challenges
to
specific
standards.

Finally,
the
Sierra
Club
requests
that
we
leave
the
current
regulations
in
place
during
remand
in
order
to
"
avoid
serious
adverse
implications
for
public
health
and
the
environment
that
would
result
from
vacating
the
regulations
(
and
thus
allowing
hazardous
waste
combustors
to
emit
even
more
HAPs
than
allowed
by
the
regulation[
s]
...
)."
Sierra
Club's
Opening
Br.
at
36.
Though
we
granted
similar
requests
in
Sierra
Club,
167
F.
3d
at
664,
and
National
Lime
II,
233
F.
3d
at
635,
we
think
this
case
is
different:
in
Sierra
Club,
there
were
no
industry
petitioners,
and
in
National
Lime
II,
we
considered
and
rejected
industry
claims.
Here,
in
contrast,
we
have
chosen
not
to
reach
the
bulk
of
industry
petitioners'
claims,
and
leaving
the
regulations
in
place
during
remand
would
ignore
petitioners'
potentially
meritorious
challenges.
For
example,
industry
petitioners
may
be
correct
that
EPA
should
have
exempted
HWCs
from
regulatory
limits
during
periods
of
startup,
shutdown,
and
malfunction,
permitting
sources
to
return
to
compliance
by
following
the
steps
of
a
startup,
shutdown,
and
malfunction
plan
filed
with
the
Agen­
cy.
We
have
similar
doubts
about
EPA's
decision
to
require
sources
to
comply
with
standards
even
during
openings
of
emergency
safety
valves
caused
by
events
beyond
the
sources'
control.
It
is
also
possible
that
some
of
the
emission
standards
themselves
would
not
have
withstood
arbitrary
and
capricious
analysis:
when
setting
the
beyond­
the­
floor
stan­
dard
for
dioxin
emissions
from
lightweight
aggregate
kilns,
EPA
may
have
relied
inappropriately
on
data
from
cement
kilns
(
a
method
it
had
previously
rejected)
to
demonstrate
that
the
standard
was
achievable;
in
setting
the
beyond­
the­
floor
standard
for
semi­
volatile
metal
emissions
from
cement
kilns,
EPA
may
have
exceeded
its
statutory
mandate
by
relying
on
policy
objectives
other
than
those
enumerated
in
section
7412(
d).

In
light
of
these
circumstances,
we
think
the
better
course
of
action
is
to
vacate
the
challenged
regulations.
Because
this
decision
leaves
EPA
without
standards
regulating
HWC
emissions,
EPA
(
or
any
of
the
parties
to
this
proceeding)
may
file
a
motion
to
delay
issuance
of
the
mandate
to
request
either
that
the
current
standards
remain
in
place
or
that
EPA
be
allowed
reasonable
time
to
develop
interim
standards.
See
Columbia
Falls,
139
F.
3d
at
924
("
If
EPA
wishes
to
promul­
gate
an
interim
treatment
standard,
the
Agency
may
file
a
motion
in
this
court
to
delay
issuance
of
this
mandate
in
order
to
allow
it
a
reasonable
time
to
develop
such
a
standard.").

So
ordered.
