Nat Resrc Def Cncl v. EPA

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United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued April 23, 2007 Decided June 19, 2007

No. 04-1323

NATURAL RESOURCES DEFENSE COUNCIL AND
SIERRA CLUB,
PETITIONERS

v.

ENVIRONMENTAL PROTECTION AGENCY AND
STEPHEN L. JOHNSON, ADMINISTRATOR,
ENVIRONMENTAL PROTECTION AGENCY,
RESPONDENTS

AMERICAN FOREST AND PAPER ASSOCIATION INC., ET AL.,
INTERVENORS

Consolidated with
Nos. 04-1325, 04-1328, 06-1140

On Petitions for Review of an Order of the
Environmental Protection Agency

James S. Pew argued the cause for petitioners NRDC, et al.
 2

With him on the briefs was John D. Walke, Amanda C. Leiter
and David G. McIntosh entered appearances.

Russell S. Frye argued the cause and filed the briefs for
petitioner Louisiana-Pacific Corporation.

Thomas E. Starnes and L. Eden Burgess were on the brief
for amici curiae State and Territorial Air Pollution Program
Administrators and Association of Local Air Pollution Control
Officials in support of petitioners.

David S. Gualtieri, Attorney, and David Gunter, Attorney,
U.S. Department of Justice, argued the cause for respondent.
With them on the brief were John C. Cruden, Deputy Assistant
Attorney General, and Michael W. Thrift, Counsel, U.S.
Environmental Protection Agency.

Claudia M. O’Brien argued the cause for industry
intervenors in support of respondent. With her on the brief was
Cassandra Sturkie. Brock R. Landry, Guy J. Sternal, Paul H.
Amundsen, and William F. Lane entered appearances.

Peter L. de la Cruz was on the brief for amicus curiae
Formaldehyde Council, Inc. in support of respondents.

Before: GINSBURG, Chief Judge, and ROGERS and
GRIFFITH, Circuit Judges.

Opinion for the Court filed by Circuit Judge ROGERS.

ROGERS, Circuit Judge: These are consolidated petitions
for review of two final rules promulgated by the Environmental
Protection Agency in 2004 and 2006 under Section 112 of the
Clean Air Act (“CAA”), 42 U.S.C. § 7412, to regulate
hazardous air pollution from processing plywood and composite
 3

wood products (“PCWP”).1 PCWP sources use heat and
pressure to bond wood material, usually with resin, to form a
panel or other engineering product. The outputs from PCWP
processes include veneer, particleboard, oriented strandboard,
hardboard, fiberboard, medium density fiberboard, as well as
other products. As a result of the PCWP process, at least six
primary hazardous air pollutants (“HAPs”) are released into the
air. HAPs are defined in the CAA as “pollutants which present,
or may present . . . a threat of adverse human health effects . . .
or adverse environmental effects whether through ambient
concentrations, bioaccumulation, deposition, or otherwise.” 42
U.S.C. § 7412(b)(2).

The Environmental Petitioners—the Natural Resources
Defense Counsel, the Sierra Club, and the Environmental
Integrity Project (together, “NRDC”)— contend that EPA has
failed to adhere to the statutory requirements to set emission
standards for listed HAPs. They also contend that EPA
exceeded its authority in creating a risk-based subcategory and
in extending the deadline for complying with emission
standards set by the 2004 Rule. Pursuant to EPA’s request
following this court’s decision in Sierra Club v. EPA, 479 F.3d
875 (D.C. Cir. 2007), we vacate and remand the 2004 Rule
insofar as it fails to set emission standards for listed HAPs;
neither the NRDC nor industry intervenors object, although
each seeks an additional remedy, which we will leave for EPA’s
consideration. We hold that EPA lacked authority to create a

1
See National Emission Standards for Hazardous Air
Pollutants: Plywood and Composite Wood Products, 69 Fed. Reg.
45,944 (July 30, 2004) (“2004 Rule”); National Emission Standards
for Hazardous Air Pollutants: Plywood and Composite Wood
Products; List of Hazardous Air Pollutants, Lesser Quantity
Designations, Source Category List, 71 Fed. Reg. 8342 (Feb. 16,
2006) (“2006 Rule”).
 4

low-risk subcategory and to extend the compliance deadline and
therefore grant NRDC’s petitions on those issues and vacate
those provisions of the rules.

Louisiana-Pacific Corporation also petitions for review of
the two rules. It contends that EPA was arbitrary and capricious
in declining to create a separate subcategory for wet/wet
hardboard presses and to establish a variance procedure.
Finding no arbitrary or capricious action by EPA, we deny the
petition.

I.

The relevant statutory provisions and the regulatory
background of the 2004 and 2006 Rules are as follows.

A.
Until 1990, Section 112 of the CAA directed EPA to use
health-risk-based regulations for air pollution. Thus, Congress
directed EPA to establish risk-based air pollution standards that
provided an “ample margin of safety to protect public health.”
42 U.S.C. § 7412(b)(1)(B) (1990). In 1990, Congress
determined that the risk-based approach had “worked poorly.”
National Lime Ass’n v. EPA, 233 F.3d 625, 633-34 (D.C. Cir.
2000). Over the course of twenty years, EPA had promulgated
only seven standards. H.R. REP. NO. 101-490, pt. 1, at 151,
reprinted in 2 A LEGISLATIVE HISTORY OF THE CLEAN AIR ACT
AMENDMENTS OF 1990, at 3175 (1993) (“LEGISLATIVE
HISTORY”). Concerned, then, that EPA had failed to adequately
regulate toxic emissions, see S. REP. NO. 101-228 (1989),
reprinted in 5 LEGISLATIVE HISTORY, supra, at 8338, Congress
adopted the current version of Section 112 to require technology
based standards in place of the previous risk-based standards.
See Cement Kiln Recycling Coalition v. EPA, 255 F.3d 855, 857
(D.C. Cir. 2001). Additionally, EPA no longer had discretion
 5

to set emission standards for individual sources, nor to set
whatever standards EPA deemed adequate.

Section 112, as amended, provides that EPA “shall
promulgate regulations establishing emission standards for each
category or subcategory of major sources . . . [and that these]
standards . . . shall require the maximum degree of reduction in
emissions.” 42 U.S.C. § 7412(d)(1)-(2) (emphasis added).
Section 112 thus mandates that EPA list and establish emission
standards for each category and subcategory of “major sources”
that emit one or more of over 100 HAPs. Id. § 7412(b), (c), (e).
The standards “shall require the maximum degree of reduction
in emissions” of HAPs that EPA, “taking into consideration the
cost of achieving such emission reduction, and any non-air
quality health and environmental impacts and energy
requirements, determines is achievable for new or existing
sources.” Id. § 7412(d)(1), (2). The standards for “major
sources” of HAPs must reflect the “maximum reduction in
emissions which can be achieved by application of [the] best
available control technology.” S. REP. NO. 101-228, at 133,
reprinted in 5 LEGISLATIVE HISTORY, supra, at 8473. Congress
also specified the degree of control, namely, the maximum
achievable control technology (“MACT”), which sets a floor for
MACT emissions — a minimum degree of emissions reductions
that HAP sources must achieve under the technology-based
standards. 42 U.S.C. § 7412(d)(3). For new sources, the
MACT floor “shall not be less stringent than the emission
control that is achieved in practice by the best-controlled similar
source, as determined by the [EPA],” Id. § 7412(d)(3); for
existing sources, the MACT floor shall be no less stringent than
“the average emission limitation achieved by the best
performing 12 percent of the existing sources (for which the
Administrator has emissions information).” Id. Congress also
set the compliance date:
 6

After the effective date of any emissions standard,
limitation or regulation . . . the Administrator shall
establish a compliance date or dates for each category
or subcategory of existing sources, which shall provide
for compliance as expeditiously as practicable, but in
no event later than 3 years after the effective date of
such standard . . . .

42 U.S.C. § 7412(i)(3)(A) (emphasis added).

Congress further envisioned that there would be
circumstances where a “source category” could appropriately be
exempted (“delisted”) from MACT emission standards.
Subsection 112(c)(9)(B)(i) provides that:

(B) The Administrator may delete any source category
from the list under this subsection, on petition of any
person or on the Administrator’s own motion,
whenever the Administrator makes the following
determination or determinations, as applicable:

(i) In the case of hazardous air pollutants
emitted by sources in the category that may result
in cancer in humans, a determination that no
source in the category (or group of sources in the
case of area sources) emits such hazardous air
pollutants in quantities which may cause a
lifetime risk of cancer greater than one in one
million to the individual in the population who is
most exposed to emissions of such pollutants
from the source (or group of sources in the case of
area sources).

42 U.S.C. § 7412(c)(9)(B)(i) (emphasis added).
 7

B.
The 2004 Rule regulates “total HAP” emissions from the
process units within each PCWP source. 69 Fed. Reg. at
45,946, 45,949. In view of Sierra Club v. EPA, 294 F.3d 155,
161 (D.C. Cir. 2002), which held that EPA could not set a “no
emission reduction” standard for existing sources for listed
HAPs, we need not review how EPA established the MACT
floors for a source other than to note that EPA determined that
“the only way in which PCWP [sources could] currently limit
HAP emissions” was through add-on controls. 69 Fed. Reg. at
45,968.

As relevant to the petitioners’ remaining challenges, the
2004 Rule created a PCWP “low risk” subcategory, pursuant to
§ 112(c)(9)(B), which included sources that met the statutory
criteria and additional requirements, such as annual emissions
testing and reporting, set forth in the 2004 and 2006 Rules. 69
Fed. Reg. 45,955; 71 Fed. Reg. 8344-49. Subject to
acknowledged omissions, EPA determined that the sources in
the low-risk subcategory did not emit carcinogens in excess of
the statutory ceiling, namely, in amounts resulting in a lifetime
cancer risk exceeding one in a million to the most-exposed
individual; that they did not emit non-carcinogens in amounts
exceeding a level adequate to provide an ample margin of safety
to protect public health; and that no source emitted any HAP or
combination of HAPs in amounts resulting in an adverse
environmental effect as defined in subsection 112(a)(7). 69
Fed. Reg. at 45,946, 45,953-54. Where site specific data was
unavailable, EPA used standards ten times more protective of
human health to analyze model emissions data for potentially
low-risk facilities. Id. at 45,954. Eight sources met the criteria
initially and EPA contemplated that others also would be
relieved of all emission reduction requirements upon EPA
approval of their low-risk eligibility. Id.
 8

The 2006 Rule, as relevant, reset the MACT standard
compliance date from October 1, 2007 to October 1, 2008. The
2004 rule had set the earlier compliance date. After the NRDC
requested reconsideration of the low-risk subcategory and the
delisting of sources under the 2004 Rule, EPA proposed
amendments to the 2004 Rule, which concerned such matters as
the definition of “affected source,” “plywood and composite
wood products manufacturing facility” (among others),
procedures for the low-risk demonstration process, and other
permitting and timing issues. 70 Fed. Reg. 44,012, 44,014 (July
29, 2005). After receiving comments, EPA concluded that the
changes to the emission testing requirements in the 2004 Rule
had caused many sources to postpone emissions tests necessary
to demonstrate eligibility for the low-risk subcategory and to
identify their MACT compliance options. 71 Fed. Reg. at 8357-
58. Therefore, EPA determined to allow PCWP sources
additional time to comply with what it characterized as
“substantial” changes to the 2004 Rule. Id. at 8357.

II.

We first address, as a threshold issue, industry intervenors’
challenge to the NRDC’s standing under Article III of the
Constitution. Industry intervenors contend specifically that the
NRDC failed to allege a sufficiently “concrete and
particularized” or “actual and imminent” injury and thus failed
to show an injury-in-fact. This contention fails.

The NRDC claims associational standing to represent their
individual members. Consequently, it must demonstrate that at
least one member would have standing under Article III to sue
in his or her own right, that the interests it seeks to protect are
germane to its purposes, and that neither the claim asserted nor
the relief requested requires that an individual member
participate in the lawsuit. See Hunt v. Wash. State Apple Adver.
 9

Comm’n, 432 U.S. 333, 342-43 (1977); Sierra Club v. EPA, 292
F.3d 895, 898 (D.C. Cir. 2002). Such a member, therefore,
must meet three-prong test set out in Lujan v. Defenders of
Wildlife, 504 U.S. 555, 560 (1992), by showing (1) an injury in
fact that is actual or imminent, not conjectural or hypothetical;
(2) an injury that is fairly traceable to the EPA’s challenged
action; and (3) the likelihood that a favorable decision will
redress the member’s concerns. Id.

In Friends of the Earth v. Laidlaw Environmental Services,
528 U.S. 167, 183 (2000), the Supreme Court held that
“environmental plaintiffs adequately allege injury in fact when
they aver that they use the affected area and are persons ‘for
whom the aesthetic and recreational values of the area will be
lessened’ by the challenged activity.” Industry intervenors
ignore this precedent. In Laidlaw, the affidavits referred to
observations of pollution and alterations of behavior as a result
of the risk of pollution in an affected area. 528 U.S. at 181-84.
Two members of the petitioning organizations live near PCWP
facilities that are exempt as low-risk facilities from all HAP
controls. Holly Clark, a member of NRDC, states that she lives
near the exempt facility in Rocklin, California. She monitors
the air quality reports and on particularly polluted days she cuts
back on her outdoor activities, including her gardening, and she
does not drive her car. In the past 17 years she has seen the
horizon become visibly smoggier; although she was once able
to see the Sacramento skyline, she no longer can. Karen
Kirkwood, a member of the Sierra Club, states that emissions
from a nearby low-risk PCWP facility “diminish the enjoyment
that [her] family . . . derive[s] from outside recreational
activities, including gardening, walking, working with animals,
and sitting on the back porch.” These are the kinds of harms
that the Supreme Court in Laidlaw determined were sufficient
to show injury-in-fact because the member-affiants use or live
in areas affected by the PCWP sources, and are persons “‘for
 10

whom the aesthetic and recreational values of the area [are]
lessened’ by the challenged activity.” 528 U.S. at 183.

Therefore, because NRDC members meet the Lujan test for
standing, we reject industry intervenors’ challenge and hold that
the NRDC has standing to challenge the 2004 and 2006 rules.

III.

In reviewing the challenges to the final rules, our review of
EPA’s interpretation of the Clean Air Act follows the familiar
standard set out in Chevron U.S.A. v. NRDC, 467 U.S. 837
(1984). If Congress has directly spoken to the precise question
at issue and the intent of Congress is clear, that is the end of the
matter; the court, as well as EPA, must give effect to the
unambiguously expressed intent of Congress. Id. at 842-43. If,
however, the court determines that Congress has not directly
addressed the precise question at issue, and the statute is silent
or ambiguous, then the court must determine whether EPA’s
interpretation is a permissible construction of the statute. Id.

A.
Following the decision in Sierra Club, 479 F.3d 875, EPA
requested a remand of the 2004 Rule to the extent it failed to
establish emission standards for listed HAPs. In Sierra Club,
the court held that EPA’s failure to set floors for existing small
tunnel brick kilns and existing and new periodic brick kilns
violated CAA Section 112(d)(3), 42 U.S.C. § 7412(d)(3), noting
that in National Lime, 233 F.3d at 633-34, the court had held
unlawful EPA’s “no control” emission floors for categories in
which the best performers used no emission control technology.
Sierra Club, 479 U.S. at 878. In the instant case, using the same
rationale, the NRDC challenged EPA’s failure to set emission
standards for listed HAPs that PCWP plants emit. EPA
declined to do so on the rationale that these HAPs are not
 11

controlled with technology. See 68 Fed. Reg. 1276, 1285 (Jan.
9, 2003); 69 Fed. Reg. at 45,949 (Table 1); id. at 45,967-68.
However, the fact that one form of control does not control
emissions does not excuse EPA from finding other means to
achieve that result. National Lime, 233 F.3d at 633-34.

B.
The thrust of the NRDC challenge to EPA’s establishment
of a low-risk subcategory is based on the proposition that EPA
cannot do an end-run around the statutory scheme enacted by
Congress. First, the low-risk subcategory contravenes the plain
text of subsections 112(c)(2) and (d)(1), which indicate that
Congress intended EPA to create categories and subcategories
as a step toward establishing emission standards. Thus,
subsection 112(d)(1) provides that EPA “shall promulgate
regulations establishing emission standards for each category or
subcategory of major sources and area sources of hazardous air
pollutants.” 42 U.S.C. § 7412(d)(1). Hence, the NRDC
maintains, Congress never intended EPA to create a category or
subcategory “whose defining characteristic is that its members
will never be subject to emission standards.” Second, EPA’s
authority under Section 112(d)(1) to establish categories and
subcategories for sources does not authorize it to ignore
subsection 112(c)(2)’s requirement that EPA establish emission
standards for the low-risk subcategory; otherwise, the NRDC
contends, emissions would be allowed that Congress has
expressly prohibited. Third, because Section 112 categories,
“[t]o the extent practicable . . . shall be consistent with the list
of source categories established pursuant to [Section 111],” 42
U.S.C. § 7412(c)(1), the NRDC contends that when EPA acts
under Section 112(d)(4) to establish emission standards it
should only be looking to “classes, types, and sizes” of sources,
as mentioned in Section 112(d)(1). Fourth, the NRDC points to
legislative history indicating that Congress did not intend EPA
to base subcategories on risk. See House Debate (May 23,
 12

1990), Comm. Print S. Prt. 103-38, reprinted in 2 LEGISLATIVE
HISTORY, supra, at 2725.

EPA itself states in the 2004 Rule that “[a]t the time of the
1990 Amendments, Congress did not consider it necessary to
provide express relief for additional groups such as low-risk
PCWP facilities, beyond those defined by traditional category
and subcategory criteria.” 69 Fed. Reg. at 45,990. Nonetheless
EPA maintains its interpretation of its authority under
subsection 112(c)(1) is reasonable because nothing in the CAA
limits EPA’s authority to subcategorize as the NRDC suggests.
Congress allowed EPA to establish categories and subcategories
“as appropriate,” 42 U.S.C. § 7412(c)(1). Because emission
levels from PCWP sources are so low as to be of negligible
harm to human health and the environment, EPA maintains the
PCWP category was particularly well suited to
subcategorization based on risk, and that it stands to reason that
EPA should eliminate unnecessary and costly regulatory
controls. 69 Fed. Reg. at 45,985. Although finding no
correlation between the facilities it identified as low-risk and the
factors it had previously applied to subcategorize facilities,
based on considerations such as technology, process, product,
and emissions characteristics, 69 Fed. Reg. at 45,990-91, EPA
maintains that its broad discretion allows it to consider other
factors and that Congress recognized that in certain instances a
risk-based approach can be appropriate.

That EPA may have broad subcategorization authority,
however, does not authorize EPA to sidestep what Congress has
plainly prohibited. Whatever factors EPA might properly
consider for subcategorization, it has no authority to create a
low-risk subcategory scheme that allows harmful emissions in
a manner contrary to Congress’s statutory scheme. Section
112(c)(9)(B) provides that EPA may delete from its source list
“any source category.” (emphasis added) Not only is the risk-
 13

based exemption for a subcategory contrary to the plain
language of the statute, but EPA also failed to make the required
statutory determination that no source in the category, rather
than in the low-risk subcategory, emits HAPs “in quantities
which may cause a lifetime risk of cancer greater than one in
one million to the individual in the population who is most
exposed to emissions . . . .” 42 U.S.C. § 7412(c)(9)(B)(i). EPA
responds that Congress used the words “category” and
“subcategory” interchangeably, but fails to demonstrate that
Congress did not mean what it said in subsection
112(c)(9)(B)(i). See Engine Mfrs. Ass’n v. EPA, 88 F.3d 1075,
1088-89 (D.C. Cir. 1996). While neither word is defined in the
statute, the absence of a statutory definition does not render a
word ambiguous. SEC v. Goldstein, 451 F.3d 873, 878 (D.C.
Cir. 2006). The “words of the statute should be read in context,
the statute’s place in the overall statutory scheme should be
considered, and the problem Congress sought to solve should be
taken into account” to determine whether Congress has
foreclosed the agency’s interpretation. PDK Labs. Inc. v. DEA,
362 F.3d 786, 796 (D.C. Cir. 2004).

As a matter of the plain text, “subcategory” is a subset of
“category,” as EPA has previously recognized. 64 Fed. Reg. at
56,494. Read in the context of subsection 112(c)(9), Congress’s
use of the words suggests that they have different meanings; in
Section 112 at various points Congress specified both
“category” and “subcategory” alone, and also used the
combined phrase “category or subcategory” where appropriate.
Regardless of whether or not Congress may have used the two
words interchangeably in other subsections—EPA cites
subsections 112(e)(4) and (f)(2)(A)—does not necessarily show
that in subsection 112(c)(9)(B), “as a matter of historical fact,
Congress did not mean what it appears to have said, or that, as
a matter of logic and statutory structure, it almost surely could
not have meant it.” New York v. EPA, 443 F.3d 880, 889 (D.C.
 14

Cir. 2006); see also New York v. EPA, 413 F.3d 3, 41 (D.C. Cir.
2005). As the NRDC point outs, because subsection 112(c)(9)
involves carcinogens, limiting delistings to source “categories,”
as distinct from “subcategories,” accords with Congress’s
tighter restrictions on carcinogenic HAPs. See, e.g., 42 U.S.C.
§ 7412(f)(2)(A). By contrast, EPA’s interpretation would make
the words redundant and one of them “mere surplusage,” which
is inconsistent with a court’s duty to give meaning to each word
used by Congress. See, e.g., TRW Inc. v. Andrews, 534 U.S. 19,
31 (2001).

Because EPA’s interpretation of Section 112(c)(9) as
allowing it to exempt the risk-based subcategory is contrary to
the plain language of the statute, EPA’s interpretation fails at
Chevron step one.

C.
In the 2006 Rule, EPA extended by one year the
compliance date for the emission standards established in the
2004 Rule in light of what it characterized as “substantial”
changes made in the 2006 Rule. 71 Fed. Reg. at 8357, 8372.
Only the 2004 Rule, effective September 28, 2004, set the
emissions standards for PCWPs. Consequently, the NRDC
contends, under the plain language of the statute, the
compliance date may be no later than October 1, 2007. We
agree.

Subsection 112(i)(3)(A) provides, in relevant part, that:

After the effective date of any emissions standard,
limitation or regulation . . . the Administrator shall
establish a compliance date or dates for each category
or subcategory of existing sources, which shall provide
for compliance as expeditiously as practicable, but in
no event later than 3 years after the effective date of
 15

such standard . . . .

42 U.S.C. § 7412(i)(3)(A) (emphasis added). Where Congress
used the terms “emissions standard, limitation, or regulation”
earlier in the subsection, but specified only “such standard” as
the trigger for the three-year compliance period, Congress made
clear that only the effective date of Section 112 emissions
standards matters when determining the maximum compliance
date. EPA’s policy argument that extensions of time for
compliance should be allowed across the board whenever it
determines that “substantial” changes and amendments have
been made is not what Congress envisioned. Congress stated it
wanted “expeditious[]” compliance, which is inconsistent with
the notion that EPA has authority to “reset the compliance
deadlines” for compliance with Section 112 standards anytime
it adjusts reporting terms. It also addressed EPA’s concern by
authorizing EPA to make source-by-source extensions under
subsection 112(i)(3)(B), 42 U.S.C. § 7412(i)(3)(B), on which
EPA does not rely.

EPA persists that the reference in subsection 112(i)(3)(A)
to “limitation or regulation” recognizes that sources must
comply with more than an emissions standard, namely,
requirements for work practices, maintenance, reporting and
monitoring, startup, shutdown, and malfunctions. This
indicates, EPA maintains, that Congress authorized it to grant
sources additional time to comply with the whole “regulation”
and not just with the “emission standards.” 42 U.S.C. §
7412(i)(3)(A). EPA’s interpretation, however, is inconsistent
with Congress’s policy as reflected in the plain language of
subsection 112(i)(3)(A). Not only did Congress indicate it
wanted “expeditious[]” compliance with emission standards, it
set an outer limit of three years after emissions standards took
effect and referred only to “such standard” for the compliance
date trigger, and not to the limitations or regulations mentioned
 16

earlier in the subsection. Further, Congress enumerated specific
exceptions to the three-year maximum, which indicates that
Congress has spoken on the question and has not provided EPA
with authority under subsection 112(i)(3)(B) to extend the
compliance date in the 2006 rule. See also 42 U.S.C. §
7412(i)(4), (6)-(8). “Where Congress explicitly enumerates
certain exceptions to a general prohibition, additional
exceptions are not to be implied, in the absence of a contrary
legislative intent.” TRW Inc., 534 U.S. at 28.

D.
Turning to the question of remedy, consistent with
Allied-Signal, Inc. v. United States Nuclear Regulatory
Commission, 988 F.2d 146, 150 (D.C. Cir. 1993), in the case of
an inadequately supported rule, the decision whether to vacate
depends on “the seriousness of the [rule’s] deficiencies (and
thus the extent of doubt whether the agency chose correctly) and
the disruptive consequences of an interim change that may itself
be changed.” Id. at 150-51. See, e.g., Sierra Club v. EPA, 167
F.3d 658, 664 (D.C. Cir. 1999); National Lime, 233 F.3d at 635.
As to the seriousness of the deficiencies in this case, because the
CAA does not permit EPA to set a “no emission reduction”
standard for listed HAPs, create a low-risk subcategory, or
extend the deadline for sources to comply with the requirements
of the 2004 Rule, EPA could not justify those choices by
shoring up its reasoning on remand. The agency’s errors could
not be more serious insofar as it acted unlawfully, which is
more than sufficient reason to vacate the rules.

Vacatur would be disruptive if it set back achievement of
the environmental protection required by the CAA. As the
court explained in Davis County Solid Waste Management v.
EPA, 108 F.3d 1454, 1458-59 (D.C. Cir. 1997), “the more
equitable and appropriate course for this court to take is to
retain the . . . emission guidelines . . . on remand” because
 17

“vacating the guidelines [would] result in an eighteen month
period in which greater . . . emissions [would] occur than would
occur [if the court] remand[ed] for further rulemaking without
vacating.” PCWP sources emit at least 19,000 tons per year of
organic HAPs, including 330 tons of acrolein and 3,400 tons of
formaldehyde; they also emit 50,000 tons of hydrocarbons and
over 10,000 tons of deadly particulate matter. 69 Fed. Reg. at
45,956. Although the MACT floor standards in the 2004 Rule
are inadequate to the extent emission standards are not set for
all listed HAPs, the rules provide protection from the HAPs for
which EPA did establish such standards.

However, vacatur of the challenged provisions will not
adversely affect public health or the environment. By granting
EPA’s motion for a partial vacatur and remand of those portions
of the 2004 Rule setting “no emission reduction” floors for
certain HAPs for PCWP plants, there is no adverse effect on
environmental protection as these provisions provide none, as
the NRDC points out. See Envtl. Pet’rs’ Resp. to EPA’s Mot.
for Voluntary Partial Vacatur and Remand at 1. By vacating the
low risk subcategory and the compliance date extension, PCWP
facilities will be subject to the other provisions of the rules,
including the compliance date set in the 2004 Rule, resulting in
greater protection to public health and the environment.
Accordingly, we vacate the challenged provisions of the 2004
and 2006 Rules. We decline to set a two year limit on EPA’s
proceedings on remand as the NRDC requests; mandamus
affords a remedy for undue delay. We also decline to require
EPA, as industry intervenors request, to provide affirmative
relief raised in their post-brief and post-argument pleadings as
these are matters for EPA’s evaluation in the first instance. Cf.
Oljato Chapter of Navajo Tribe v. Train, 515 F.2d 654 (D.C.
Cir. 1975).

IV.
 18

Louisiana-Pacific Corporation (“L-P”) petitions for review
of the 2004 and 2006 Rules based on EPA’s refusals to establish
a separate subcategory for its presses and, alternatively, to
provide a variance procedure. Essentially, L-P contends that
EPA unjustifiably ignored key differences between L-P’s
wet/wet press process, which requires an employee to remain in
the press area when hardboard mats are created in order to
prevent them from sticking together, and other press processes,
which do not require human intervention, and can thus use a
variety of controls, such as enclosing the press area, to comply
with the emission standards set for the category under the 2004
Rule. Because Congress has vested EPA with subcategorization
authority under Section 112(c)(1), and its exercise of that
authority involves an expert determination, L-P carries a heavy
burden to overcome deference to the agency’s articulated
rational connection between the facts found and the choices
made. Am. Trucking Ass’ns, Inc. v. EPA, 283 F.3d 355, 374
(D.C. Cir. 2002); cf. Lignite Energy Council v. EPA, 198 F.3d
930, 933 (D.C. Cir. 1999).

EPA followed the principle that PCWP equipment should
be classified “according to its function,” 69 Fed. Reg at 45,948,
and relied on three factors in placing the L-P facility in the same
category as other PCWP facilities: (1) use of the same inputs to
create its products—in particular, the same resins—as other
PCWP facilities; (2) competition in the same markets as other
PCWP facilities; and (3) similar levels of HAP emissions.
Creating a subcategory for L-P would, EPA concluded, give L-P
a competitive advantage over other facilities, Summary of
Public Comments and Responses at 2-53 (Feb. 2004). L-P does
not dispute that the three factors show similarity with other
PCWP facilities. Rather L-P contends that it will experience
greater costs in complying with the MACT floor. But cost is
not a factor that EPA may permissibly consider in setting a
MACT floor. See National Lime, 233 F.3d at 640. To the
 19

extent that L-P maintains that it cannot comply with the MACT
floor based on complete enclosure and capture of emissions
because it cannot enclose its presses, L-P also relies on an
incorrect premise that the MACT level of emissions reduction
is invalid if it is based on control technology that a source
cannot install. The 2004 Rule does not require a source to use
any particular method to achieve compliance: if L-P cannot use
enclosure and capture, it may utilize other compliance
techniques. Hence, L-P fails to show that EPA was arbitrary or
capricious in refusing to create a subcategory for it.

L-P’s variance objection fares no better. Section 112(i)
allows for a certain number of exceptions and compliance
extensions, but none applies to L-P’s situation, 42 U.S.C.
§ 7412(i)(3)-(6). The CAA also does not require EPA to allow
a variance. The Clean Water Act cases on which L-P relies are
inapposite because in those cases, the court held that EPA was
authorized to establish categorical limitations by regulation but
that, because the statute also appeared to require one set of
limitations to be set source-by-source, “some allowance [must
be] made for variations in individual plants.” E.I. duPont de
Nemours & Co. v. Train, 430 U.S. 112, 128 (1977). That
rationale does not apply because Section 112(d)(1) explicitly
requires regulation by category or subcategory.

Accordingly, we deny L-P’s petition. We also decline to
address its post-brief and post-argument request for affirmative
relief. Cf. Oljato, 515 F.2d 654.