*2 Before: GINSBURG, Chief Judge, TATEL, Circuit Judge, and WILLIAMS, Senior Circuit Judge.
Opinion for the Court filed PER CURIAM.
Concurring opinion filed Senior Circuit Judge WILLIAMS.
PER CURIAM: In case, this the Sierra Club challenges the Environmental Protection Agency’s air pollution standards for brick and ceramics kilns. Because most of the standards vio late the Clean Air Act as interpreted by this Court in Cement Kiln Recycling Co EPA, alition v. (D.C.Cir. F.3d 855 2001) (per curiam), and National Lime Ass’n EPA,233 F.3d 625 (D.C.Cir.2000), and because the remaining standards vio late the Act’s requirements for “work practice standards,” we vacate the stan dards in their entirety and remand for further proceedings consistent with opinion.
I. The Act, Clean Air §§ 7401- 7671q, directs the Environmental Protec- tion Agency to establish emission stan- dards for “major sources” of hazardous air pollutants listed in the statute. Id. James S. argued Pew the cause and filed 7412(d)(1). § Kiln, we de- the briefs petitioner. scribed the Act as follows: Eric G. Hostetler, Attorney, U.S. De- Until the Clean Air Act partment Justice, argued the cause for required the Environmental Protection respondent. With him on the brief was Agency to set pollution risk-based air John Cruden, C. Deputy Assistant Attor- standards that provide would an “ample practice is achieved public protect safety to
margin
”
....
source
similar
also
7412(b)(1)(B); see
best controlled
§
Id.
health.”
sources,
151, 322
101-490,
7412(d)(3). For
NO.
REP.
H.R.
*3
the
problems
address
not
(1990). To
“shall
achievable
deems
EPA
what
regulation,
risk-based
of
implementation
average
the
than[]
stringent
be less
in
Act
1990
the
amended
Congress
best
by the
achieved
limitation
emission
stringent
most
the
to set
EPA
require
existing
of the
percent
12
performing
achievable,
U.S.C.
42
standards
has
Administrator
(for
the
which
sources
“based
is, standards
7412(d)(2), that
§
information)
As we
....” Id.
emissions
emissions
in
reduction
maximum
the
on
II, EPA
Lime
National
in
explained
of
by application
achieved
can be
which
through
requirements
technology.”
these
implements
control
available
best
[the]
(1989),
first
Agency
133
the
101-228, at
process:
two-step
NO.
S.REP.
at
News
Admin.
&
Cong.
pollutant
for each
U.S.Code
emission
sets
3385, 3518.
then deter-
and
category
source
and
... 42
included
amendments
The 1990
standards,
stricter
whether
mines
EPA
7412(d)
directs
§
—which
limits, are
“beyond-the-floor”
as
known
listed
of
limiting emissions
standards
set
in
listed
the factors
of
light
in
achievable
(“HAPs”), id.
pollutants
air
hazardous
629.
at
7412(d)(2).
F.3d
233
section
major sta-
(e)(l)-(2),
7412(b),
§§
7412(d)(2) pro-
sources.
tionary
857-58.
Kiln,
255 F.3d
that:
vides
Sier-
the
considered
Kiln
In Cement
require
... shall
Emission
emission
argument
in
Club’s
of reduction
ra
degree
maximum
the
vio-
pollu-
air
combustors
waste
hazardous
hazardous
the
of
...
Act, the
section
the
to this
of
subject
tants
section
lated
into consid-
Administrator, taking
at 859.
the
case.
this
in
at issue
provision
such
achieving
of
cost
the
eration
had identified
sources, EPA
existing
For
any non-air
reduction, and
emission
of sources
percent
best-performing
the
im-
and environmental
health
quality
Among
information.
it had
which
deter-
requirements,
energy
pacts
the me-
identified
then
sources, EPA
these
or
for new
is achievable
mines
technology,
control
emission
dian source’s
....
sources
achievable
“maximum
the
it called
which
guidance,
general
Supplementing
control”—
“MACT
technology”
—or
stringency
minimum
imposed
Congress
limitation
emission
“average”
the
as
“emis
them
calls
requirements —EPA
Id.;
42 U.S.C.
see
re
performers.
without
“apply
floors”—which
sion
the
factors
identified
next
7412(d)(3)(A).
the other
or
costs
§
either
gard
in
section
MACT
listed
the
using
methods
source
worst-performing
EPA,
Ass’n
Lime
7412(d)(2).” Nat'l
the emission
floor
(“Na
(D.C.Cir.2000)
625, 629
F.3d
For
at 859.
F.3d
source.
of
level
”).
sources”—
For “new
II
Lime
tional
ap-
the same
followed
sources, EPA
new
be
construction
which
instead
except
proach,
stan
emission
publishes
after
gins
as
source
median
technology
7411(a)(2)
§
“[t]he
dards, 42 U.S.C.
—
technology
control,
MACT
emis
of reduction
degree
maximum
Id.;
source.
best-performing
single
... shall
achievable
deemed
that is
sions
7412(d)(3).
42 U.S.C.
see
than
stringent
less
be
not
The Sierra
argued
Club
that this tech-
Cement Kiln was not the first time this
nology-based approach violated section
court invalidated an EPA interpretation of
7412(d)(3)’srequirement
that floors reflect
7412(d)(3).
section
Six
earlier,
months
emissions actually
“achieved”
“achieved
II,
National Lime
we considered the Sier
in practice” by the best-performing
ra Club’s challenge to EPA’s setting of “no
sources.
statutorily relevant Nothing sources in the achieve in statute even suggests practice, EPA may not that EPA may deviate from sec- emission levels only 7412(d)(3)’s tion requirement for that floors those listed HAPs controlled with reflect what the best performers technology. actual- To the contrary, the statute ly achieve claiming that floors must requires EPA to “promulgate regu- be achievable all lations establishing emission standards MACT technology. for each or category subcategory of ma- Id. (citing U.S.A., jor Chevron Inc. v. sources ... of Natural air hazardous pollu- Council, Res. 467 837, U.S. tants 842-43, listed regulation.” for Def. [42 U.S.C.] 104 2778, S.Ct. 81 (1984) L.Ed.2d 694 .... (holding that if Congress spoken has di Contrary to EPA’s argument, nothing rectly to the disputed issue of statutory in Sierra relieves it of the clear statuto- construction, “that is the end of the mat ry obligation to set emission standards ter; court, for the as well as the agency, for each listed HAP. Although Sierra give must effect to the unambiguously ex permits the Agency to look at technolog- pressed intent of Congress”)); see also Ne. ical controls set emission standards, Md. Waste Disposal EPA, Auth. v. 358 see 665, 167 F.3d at say does not 936, F.3d 955 (D.C.Cir.2004) curiam) (per EPA may avoid setting for standards (reiterating that floors based on achievabil HAPs not controlled with technology. ity satisfy cannot the statute’s actual achievement requirement). at chose 633-34. Following the panel deci not to file petition for rehearing en sion, banc EPA filed an unsuccessful petition for or to seek Supreme Court review. rehearing, Nat’l EPA, Lime Ass’n v. No.
879 Clay Products Structural and Brick (order 2001) de- Feb.14, (D.C.Cir. 99-1325 Manu- Clay Ceramics and Manufacturing neither sought again rehearing), but nying 26,692-94 26,690, Fed.Reg. 68 facturing, review. Court Supreme nor banc en 40 C.F.R. 2003) (to codified be (May mind, turn background this With 63). pt. are issue At case. facts rule proposed 2002, EPA issued and for brick HAP emissions limit (BSCP) and kilns products clay structural kilns. ceramics brick and and kilns new Over 500 kilns. clay ceramics Hazard- Standards Emission operate National kilns ceramics than more and and Structural Brick in- Air Pollutants ous BSCPs States. United throughout Clay Manufacturing and tile; Clay Products clay roof brick, clay pipe, clude 47,- Manufacturing, sanitaryware, Ceramics tile and include ceramics 2002) (to be codified July (proposed Production and sinks. toilets as such subcatego- 63). For pt. C.F.R. processing involves ceramics BSCPs pollu- use air no kilns few forming and which ries shales clays and common *5 proposed devices, EPA clays control tion transporting Because shapes. firing other reductions” —in infeasible, “no emissions is long distances over shales and 47,909, at Id. all. words, at no floors supply- the mines close located are kilns remaining sub- all 47,916-17. For 47,912, their in shales used and clays ing the on floors based proposed EPA categories, fired are ceramics and BSCPs products. the used devices pollution that the kilns: those types of two one in the i.e., Mins, those best-performing “tun- include continuously, which operate 47,912, 47,911, emissions. kilns; those lowest and “roller” nel” and pro- the comments 47,917. In their “period- as known cycles, in batch operate in- industry members regulations, into posed kilns brick divided EPA Mins. ic” used devices the installing brick tunnel sisted large subcategories: three be would best-performing kilns, periodic and brick Mins, tunnel small economically infeasible. and technologically into Mins ceramics It divided Mins. brick complained Club Sierra part, its ceramics For tunnel large subcategories: four non-tech- to consider failed EPA had roller ceramics tunnel Mins, small materi- type, raw fuel e.g., nology kilns. Mins, ceramics periodic and factors — ceramics Min coatings, surface and als, forth additives set standards different Reflecting con- training operator 7412(d)(3)(A), and design, —that 7412(d)(3) and sections Prot. Envtl. U.S. to emissions. into tribute subcategory each divided EPA further for Standards Emission National Agency, existing Mins. and new and Brick Pollutants Air Hazardous emit Mins ceramics and year, Each Manufacturing: Clay Products Structural hydro- HAPs, including 6,440 tons of over Re- and Comments Public Summary of acid, particu- acid, hydrochloric fluoric (hereinafter 2003) (Feb. 2-40 sponses metals, such containing toxic late matter Comments”). Public “Summary of cadmium, arsenic, beryllium, antimony, as comments, EPA’s these response In nickel, lead, manganese, cobalt, chromium, for sev- standards final se- can cause HAPs These and selenium. pollution on the based subcategories eral cancer, neuro- problems, respiratory vere second-best by the used devices adverse damage, organ logical proposed, had as performers not, Emission National effects. — reproductive “no replaced performers best Pollutants Air —and for Hazardous Standards 88 0 large reductions” floors in other sub- Most tunnel brick kilns that have
categories
practice
with a so-called
pollution
“work
installed air
control devices use
(DLA).
clean-burning
standard” of
dry
fuels. 68
lime adsorbers
Others use
26,699-26,701, 26,712-13;
Fed.Reg. at
see
technology, including dry
non-DLA
lime
7412(h)
§
(explaining require-
(DIFF),
U.S.C.
injection
dry
fabric filters
lime
practice
ments for
work
(DLS/FF),
filters
and wet
scrubber/fabric
standards).
(WS).
in lieu of emission
The Sierra
scrubbers
of proposed
its notice
reconsideration,
petition
Club filed
rulemaking, EPA concluded that
these
but
adhered to its
pollution
standards. Na-
“repre-
non-DLA
control devices
tional Emission Standards for Hazardous
Reg.
sented]
control[
67 Fed
].”
47,907.
Pollutants
Brick and Structural
percentile
Because the 94th
(the
Clay Products Manufacturing,
median of the
top
percent)
(reconsidered
69,655,
2005)
69,657
Nov.
best-performing large tunnel brick kilns
(to
63).
pt.
be codified at 40 C.F.R.
non-DLA technology,
EPA—as re-
quired by
Kiln—proposed
floor
The
petitions
Sierra Club now
for re-
47,911.
technology.
based on this
Id. at
7607(b)(1) (autho-
view. See
receiving
But after
“numerous comments
rizing petitions for
pro-
review of EPA’s
industry representatives” saying
from
standards).
mulgation of emission
The
kilns
were unable
retrofit with WS be-
Industry
Brick
Association and two ceram-
cause of a lack of sewer access to treat
ics
producers intervene
support of EPA.
device,
wastewater
or with DIFF
*6
production,
without affecting
DLS/FF
II.
EPA changed course in
final
its
rule. 68
argues
The Sierra Club
that EPA’s
26,694.
Finding that non-
in
methodology
brick and
DLA technology
“potentially
would have
ceramics kilns violates the
Clean
Act’s
significant impacts
production
on the
pro-
plain language
interpreted by
as
Cement
cess,”
26,695,
id. at
contrary
to Ce-
Kiln and
agree.
National Lime II. We
requirement
ment Kiln’s
that floors reflect
See Nat’l Cable & Telecomms.
Ass’n
emission levels of the best-performing
Servs.,
X
Brand
Internet
545 U.S.
sources, EPA excluded non-DLA technolo-
982, 125
(2005)
S.Ct.
which we held that floors fect proved “impossible reliably quanti- variability fy,” id. at that account because “each “floors must be [specified] by using must meet stan- achievable all sources MACT [source] every operating technology,” all id. at day explained: dard and under 864. We Mossville, at 1242. In conditions.” Id. factors technology [I]f other than MACT however, record evidence demonstrated do perform- indeed influence a source’s ance, reasonably the floor estimated the that not sufficient that EPA is con- variability best-performing using only actual sidered sources ... MACT (noting source. “factual data” controls....
standard on the worst-performing based accepting Even proposition “reasonably per- estimates the affecting performance factors source Here, top performers”). quantify formance defining are difficult to when contrast, control, by although EPA has in. nothing some evi- MACT the stat- performers experience requires dence that the best ute to use the MACT variability, approach. requires it has failed to show that the only set floors at the emission by per- emission levels achieved the worst best-performing level achieved given pollution formers sources. If EPA cannot meet this re- actually predict range device of emis- quirement using the MACT methodolo- sion perform- levels achieved the best gy, it must devise a approach different ers using that device. Given Cement capable producing satisfy holding may Kiln’s that EPA not use emis- the Clean Act. performers sion levels the worst esti- variability of performers mate the best Id. at 864-65. without relationship a demonstrated be- EPA’s emission two, tween the we conclude that the emis- large large brick tunnel kilns and new large sion floors for new tunnel small small tunnel and ceramics kilns suf- kilns, brick and ceramics as well as for (in fer from the same defect addition to the existing large tunnel brick violate above). defects noted rulemaking, its Act. EPA noted that it had reviewed non-tech- nology pollution prevention techniques—in Non-technology Factors particular the substitution of fuels and Kiln, rejected
In Cement clays with lower amounts of hazardous approach given MACT constituents. It found that fuel type had *8 record other evidence that factors than emissions, no appreciable effect on that technology affected emissions. 255 F.3d clays transporting long over distances was so, at In doing 863-65. we noted our impractical, and that in changes either in conclusion National Lime II that ability duplicate could affect kilns’ to their methodology, purely technology- MACT existing product 26,- lines. at satisfy approach, based would the Clean 699. Given these EPA findings, set floors Air pollution technology Act “if control only pollution based technology, on control only determining were the factor emission explaining that agree we that fac- “[w]hile (internal levels that HAP.” Id. at 863 [technology] type tors other than can af- omitted) quotation (quoting emissions, marks Nation fect we do not have the data to II, 633). al Lime 233 F.3d at We were specific degree determine the of the effect unpersuaded justifications by EPA’s twin [technology] of factors other than on emis- for refusing sions, that, to consider the effect other and we believe for the BSCP emissions, factors on namely industry, that the ef- [technology] factors other than for existing floor ... control EPA’s failure to set floors not viable MACT use are that small tunnel brick kilns and options.” Id. Though acknowledging factor, clay periodic new brick kilns violates section non-technology one at least precisely for same reason. on emis- type, appreciable had an effect justi- EPA set “no emissions sions, reductions” floors articulated the same has for tunnel kilns in Cement Kiln existing small be- fications it offered floors, kiln no i.e., percentile cause the 94th air a lack technology-based pollution technology of non- because quantify to the effects data non-technology in changes that factors were technology factors and a concern or “appropriate” not “viable.” 67 Fed. clay on clean would be unac- floors based 47,909 Reg. (explaining EPA’s rationale inability of kilns to hievable because floors, Agency for “no control” which Id. These justifications are clays. switch rule). adopted later in final EPA also they in set no more here than were valid “no all pe- emissions reductions” Cement Kiln. they explaining riodic brick too Air Act’s argues the Clean pollution technology. use no that it the emission “con- command assess has again claiming Other than that it no or “achieved” refers trol” “limitation” obligation to set floors unless sources take steps kiln take operators the deliberate to control emis- some deliberate action “hap- than to the reduce emissions rather sions, any EPA has failed to offer reason being near cleaner penstance” of located it what did here from distinguishing squarely Yet clay. Resp’t’s Br. 33-34. we what we invalidated in National Lime II. Lime II that the Clean held National in an intentional ac- requires Act neither IV. strategy tion nor a deliberate to reduce in brings This us to the one issue As explained, emissions. we Clean “[t]he neither this case controlled Air Act EPA to MACT requires the II, namely EPA’s Kiln nor National Lime ‘average upon based practice so-called work achieved’; use of sug- it nowhere limitation[s] of emission floors for the remain instead gests achievement must be 7412(h) of kilns. ing subcategories product specific of a intent.” 233 F.3d “if Air Act it is (citation omitted). provides of the Clean decision in of the Admin judgment not feasible exclusively technology even base floors prescribe or enforce an emis istrator to though non-technology factors affect emis- ..., may, Administrator sion standard Act. sion levels thus violates the thereof, promulgate design, lieu “No Control” Floors equipment, practice, operational work 7412(h)(1). That standard.” above, Lime National As noted explains that is “not section further II found unlawful EPA’s “no control” *9 standard when feasible” to set an emission categories in which the emission floors methodol application “the of measurement performers no emission of is not ogy particular to a class As we technology. 233 F.3d 633-34. and eco practicable technological due to statutory has obli explained, a “clear 7412(h)(2)(B). nomic limitations.” § for each gation to set emission standards 7412(h), HAP,” adopted Invoking not it to section listed which does allow clean- practice con standard setting standards for HAPs not work “avoid existing ceramics kilns Id. at 634. burning fuels for technology.” trolled with periodic new and roller ceramics kilns. writ of certiorari. meantime, In the it 26,712, 26,713. To justify obey must the Clean Air Act as written by its use of work practice standards, EPA Congress and interpreted by this court. pointed out that kilns, ceramics like peri- So ordered. odic use pollution no devices and cannot feasibly substitute WILLIAMS, Senior Judge, Circuit clays. Rather than setting “no control” concurring. floors, however, EPA imposed a clean- I agree entirely with the opinion court’s burning fuels standard. Id. According to and only write a paradox note in the EPA, setting a precise more floor based on relationship key beiween provisions two the emission levels achieved by the use of § 112 of the Clean Act. clean-burning fuels was not given feasible 112(d)(2) Section calls for emissions the absence of data necessary to make this standards that are the most stringent that 26,712. calculation. Id. at the EPA finds to be “achievable,” taking agree We with the Sierra Club that into account a variety of factors including EPA’s use of practice work in- cost. 42 § 7412(d)(2); see Per Cu- stead of emission floors violates section riam at 3. 112(d)(3) provides that 7412(h). That provision allows EPA to the standards “shall not be stringent” less substitute work practice standards than the emission controls that have been only if measuring emission “achieved practice.” 42 U.S.C. levels is technologically or economically § 7412(d)(3); see Per Curiam at 4. The impracticable. Here, EPA never deter- “achievable” standards have come to be mined that measuring emissions from ce- known as the “beyond-the-floor” stan- ramics kilns was impracticable; it deter- dards, see id. at meaning, obviously, only mined that it lacked emissions data ones more stringent than the “floors” es- from ceramics kilns. EPA thus had no 112(d)(3). § tablished under The language basis 7412(h) under section for using work thus embodies an assumption stan- practice sure, standards. To be as EPA dards on based achievability will be more points out, because ceramics kilns already stringent than ones merely based past use fuels, clean-burning practice work achievement. standard would have impact no on their What if meeting the “floors” is extreme- products. For reason, the same course, ly or even prohibitively costly for particu- it would have impact no on emissions. lar plants because of conditions specific to plants those (e.g., adoption of the neces-
Y. sary technology requires very costly retro- For the foregoing reasons, we vacate the fitting, or the required technology cannot, emission standards for both brick and given ce- local inputs whose use is essential, ramics kilns and remand pro- further “floor”)? achieve the For plants, these it ceedings consistent with opinion. If would seem that what has been “achieved” the Environmental Protection Agency dis- 112(d)(3) § under would not be “achiev- agrees with the Clean Air Act’s require- able” under in light of the lat- ments for standards, ter’s mandate to EPA to consider cost. should take its concerns to Congress. (Notice If that here EPA issued “beyond- no EPA disagrees with this court’s interpreta- standards, the-floor” petitioner makes *10 tion of the Act, Clean Air it should seek no complaint on score.) In other rehearing en banc or a petition file words, for a as applied to sources, some
885 statutory language by the compelled floor Appellee America, STATES UNITED “be- than stringent more to be appears yond-the-floor.” v. PERRY, Appellant. aof talking Michael all, might be Antoine were
If this produced words literal whose statute No. 05-3119. with “demonstrably at odds so result Appeals, Court States judi- justify United as to drafters” of its intentions Circuit. of Columbia District Ron States United See surgery. cial 242, 235, Inc., U.S. 489 Enterprises, Pair 13, 2006. Argued Oct. (1989) 290 1026, L.Ed.2d 103 S.Ct. 16, 2007. March Decided Contractors, v. Oceanic (quoting Griffin 3245, 73 S.Ct. Inc., U.S. (internal quotation (1982))
L.Ed.2d omitted).
marks a statute. such is not § 112
Happily Adminis- 112(d)(1) authorizes classes, types among “distinguish
trator or category within of sources sizes
and of subsec- language and the
subcategory,” refers (3) pervasively
tions “category in each for sources
standards generate authority The
subcategory.” unqualified; obviously not is
subcategories usual by the limited be it must least is not there And of reasonableness.
ideas that, with even any guarantee
necessarily every source subcategorization,
suitable meet to achieve be able
will rea- 112(d)(3) to §of application
a lawful Nonethe- subcategories.
sonably defined addi- creating basis
less, legitimate one interest be subcategories must
tional “achieved” between the relation keeping common in accord “achievable” meaning reasonable
sense
statute.