Natl Resrc Def Cncl v. EPA

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued February 23, 2007 Decided June 8, 2007

No. 04-1385

NATURAL RESOURCES DEFENSE COUNCIL, SIERRA CLUB,
ENVIRONMENTAL INTEGRITY PROJECT,
PETITIONERS

v.

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

COALITION FOR RESPONSIBLE WASTE
INCINERATION ET AL;
UTILITY AIR REGULATORY GROUP;
UTILITY SOLID WASTER ACTIVITIES GROUP ET AL.,
INTERVENORS

No. 04-1386

AMERICAN MUNICIPAL POWER-OHIO, INC.;
CITY OF DOVER, OHIO; CITY OF HAMILTON, OHIO;
CITY OF ORVILLE, OHIO;
CITY OF PAINESVILLE, OHIO,
CITY OF SHELBY, OHIO; CITY OF ST. MARYS, OHIO,
PETITIONERS

v.
 2

ENVIRONMENTAL PROTECTION AGENCY,
RESPONDENT

No. 05-1302

NATURAL RESOURCES DEFENSE COUNCIL;
ENVIRONMENTAL INTEGRITY PROJECT,
PETITIONERS

v.

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

No. 05-1434

LOUISIANA ENVIRONMENTAL ACTION NETWORK;
SIERRA CLUB,
PETITIONERS

v.

ENVIRONMENTAL PROTECTION AGENCY,
RESPONDENT

UTILITY SOLID WASTER ACTIVITIES GROUP ET AL.,
INTERVENORS
 3

No. 06-1065

NATURAL RESOURCES DEFENSE COUNCIL;
SIERRA CLUB; ENVIRONMENTAL INTEGRITY PROJECT,
PETITIONERS

v.

ENVIRONMENTAL PROTECTION AGENCY;
STEPHEN L. JOHNSON, ADMINISTRATOR,
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY,
RESPONDENTS

On Petitions for Review of Final Rules of the
Environmental Protection Agency

James S. Pew argued the cause for the Environmental
Petitioners. John D. Walke was on brief.
Douglas A. McWilliams argued the cause for the Municipal
Petitioners. Allen A. Kacenjar was on brief.
Stuart Rabner, Attorney General, and Maurice A. Griffin and
Kevin P. Auerbacher, Deputy Attorneys General, State of New
Jersey; Robert J. Spagnoletti, Attorney General at the time the
brief was filed, Todd S. Kim, Solicitor General, and Donna M.
Murasky, Assistant Attorney General, District of Columbia;
Eliot Spitzer, Attorney General at the time the brief was filed,
and Jacob E. Hollinger and J. Jared Snyder, Assistant Attorneys
General, State of New York; G. Steven Rowe, Attorney General,
and Gerald D. Reid, Assistant Attorney General, State of Maine,
were on brief for amici curiae the State of New Jersey et al. in
support of the Environmental Petitioners. Edward E. Schwab,
Deputy Attorney General, District of Columbia, Peter H.
 4

Lehner, Assistant Attorney General, State of New York, and
Jean P. Reilly, Assistant Attorney General, State of New Jersey,
entered appearances.
Geoffrey M. Klineberg and Mary Ann McGrail were on brief
for amici curiae State and Territorial Air Pollution Program
Administrators and the Association of Local Air Pollution
Control Officials in support of the Environmental Petitioners.
Pamela S. Tonglao, Norman L. Rave, Jr. and Catherine M.
Wannamaker, Attorneys, United States Department of Justice,
argued the cause for the respondents. Brian L. Doster, Counsel,
United States Environmental Protection Agency, was on brief.
Michele L. Walter, Attorney, United States Department of
Justice, entered an appearance.
Douglas H. Green argued the cause for intervenors Utility
Solid Waste Activities Group et al. in support of the
respondents. James R. Rathvon and Aaron J. Wallisch were on
brief. Richard S. Wasserstrom entered an appearance.
Claudia M. O'Brien argued the cause for the Industry
Intervenors in support of the respondents. Cassandra Sturkie
and Ronald A. Shipley were on brief. Craig S. Harrison, Lee B.
Zeugin, Leslie A. Hulse and William F. Lane entered
appearances.
Marc D. Machlin and Charles H. Carpenter were on brief
for amicus curiae Rubber Manufacturers Association in support
of the respondents.
Scott H. Segal was on brief for amicus curiae American
Boiler Manufacturers Association in support of the respondents.
Before: HENDERSON, RANDOLPH and ROGERS, Circuit
Judges.
 5

Opinion for the court filed by Circuit Judge HENDERSON.
Concurring opinion filed by Circuit Judge RANDOLPH.
Opinion concurring in part and dissenting in part filed by
Circuit Judge ROGERS.
KAREN LECRAFT HENDERSON, Circuit Judge: We address in
this proceeding five petitions seeking review of two separate
rules promulgated by the Environmental Protection Agency
(EPA): (1) the National Emission Standards for Hazardous Air
Pollutants for Industrial, Commercial, and Institutional Boilers
and Process Heaters, 69 Fed. Reg. 55,218 (Sept. 13, 2004), as
amended on recons., 70 Fed. Reg. 76,918 (Dec. 28, 2005),
(Boilers Rule), promulgated pursuant to section 112 of the Clean
Air Act (CAA), 42 U.S.C. § 7412; and (2) the Standards of
Performance for New Stationary Sources and Emission
Guidelines for Existing Sources: Commercial and Industrial
Solid Waste Incineration Units, 70 Fed. Reg. 55,568 (Sept. 22,
2005) (CISWI Definitions Rule), amending Standards of
Performance for New Stationary Sources and Emissions
Guidelines for Existing Sources: Commercial and Industrial
Solid Waste Incineration Units, 65 Fed. Reg. 75,338 (Dec. 1,
2000) (CISWI Rule), promulgated pursuant to CAA section 129,
42 U.S.C. § 7429. Four environmental organizations—the
Natural Resources Defense Council, the Sierra Club, the
Environmental Integrity Project and the Louisiana
Environmental Action Network (collectively, Environmental
Petitioners)—challenge the CISWI Definitions Rule on the
ground that its narrow definition of “commercial or industrial
waste” contradicts the plain language of CAA section 129 and
therefore impermissibly constricts the class of “solid waste
incineration unit[s]” that are subject to the emission standards of
the CISWI Rule. The Environmental Petitioners also challenge
specific emission standards that EPA promulgated in the Boilers
Rule and EPA’s methodology for setting them. A second set of
petitioners—the American Municipal Power-Ohio, Inc. and six
 6

of its members, the cities of Dover, Hamilton, Orrville,
Painesville, Shelby and St. Mary’s, (collectively, Municipal
Petitioners)—challenges the Boilers Rule on the grounds that
EPA failed to comply with the requirements of the Regulatory
Flexibility Act, 5 U.S.C. §§ 601 et seq., and that the standards
as applied to small municipal utilities are unlawful. For the
reasons set out below, we conclude that EPA’s definition of
“commercial or industrial waste,” as incorporated in the
definition of “commercial and industrial solid waste incineration
unit” (CISWI unit), is inconsistent with the plain language of
section 129 and that the CISWI Definitions Rule must therefore
be vacated. We further conclude that, because the Boilers Rule
must be substantially revised as a consequence of our vacatur
and remand of the CISWI Definitions Rule, the Boilers Rule as
well must be vacated.
I.
We first set out the statutory and regulatory background of
the two challenged rules.
A. The Boilers Rule
CAA section 112 requires EPA to set a national emission
standard for each category or subcategory of “major sources”
of “hazardous air pollutant” (HAP) emissions, 42 U.S.C.
§ 7412(d)(1), that is, of stationary sources that emit (or have
potential to emit) “10 tons per year or more of any [HAP] or 25
tons per year or more of any combination of [HAPs],” id.
§ 7412(a)(1).1 Section 112, as in effect until 1990, directed the
EPA Administrator to “establish any such standard at the level

1
The Congress provided an “initial list” of HAPs, 42 U.S.C.
§ 7412(b)(1), and directed EPA to “periodically review the list” and,
“where appropriate, revise such list by rule, adding pollutants which
present, or may present . . . a threat of adverse human health effects
. . . or adverse environmental effects,” 42 U.S.C. § 7412(b)(2).
 7

which in his judgment provides an ample margin of safety to
protect the public health from such hazardous air pollutant.” 42
U.S.C. § 7412(b)(1)(B) (1990). In 1990, the Congress amended
section 112 to require technology-based standards in place of the
previous risked-based standards. Clean Air Act Amendments,
Pub. L. No. 101-549, 104 Stat. 2399 (1990). Under the 1990
CAA Amendments, EPA sets emission standards based on the
“maximum achievable control technology” or “MACT” in a
two-step process.
First, EPA identifies a MACT floor for each pollutant and
source category. For “new sources” of HAP emissions, the
MACT floor is “the emission control that is achieved in practice
by the best controlled similar source, as determined by the
[EPA] Administrator”; for “existing sources,” the MACT floor
is “the average emission limitation achieved by the best
performing 12 percent of the existing sources” or, if there are
fewer than 30 sources, “the average emission limitation
achieved by the best performing 5 sources.” 42 U.S.C.
§ 7412(d)(3). In the second step of the process, EPA selects as
its technology-based standard either the applicable MACT floor
identified in the first stage or a “beyond the floor” limitation
more stringent than the MACT if such a standard is “achievable”
in light of costs and other factors and methods listed in section
7412(d)(2). See generally Cement Kiln Recycling Coal. v. EPA,
255 F.3d 855, 857-58 (D.C. Cir. 2001) (per curiam) (explaining
two-step MACT process for hazardous waste combustors); Nat’l
Lime Ass’n v. EPA, 233 F.3d 625, 628-29 (D.C. Cir. 2000)
(explaining two-step MACT process for portland cement
manufacturing plants).
On September 13, 2004, EPA issued the Boilers Rule, which
identified 18 subcategories of boilers emitting four different
types of HAPs. See 69 Fed. Reg. at 55,223-24. EPA set out to
establish the MACT floor for each subcategory emitting each
HAP according to the effectiveness of various add-on
 8

technologies. See 68 Fed. Reg. 1660, 1674 (Jan. 13, 2003)
(proposed rule). Applying this methodology, EPA set 25
numerical emission standards. For the remaining 47 boiler
subcategory/HAP emissions, EPA determined that the
appropriate MACT floor was “no emissions reduction” because
“the best-performing sources were not achieving emissions
reductions through the use of an emission control system and
there were no other appropriate methods by which boilers and
process heaters could reduce HAP emissions.” 69 Fed. Reg. at
55,233. Accordingly, EPA adopted a “no control” standard, id.,
and, in addition, it set risk-based standards, also known as
health-based standards, as alternatives to the MACT-based
standards for hydrogen chloride and manganese. Id. at 55,227,
55,255.
On November 12, 2004, the Municipal Petitioners filed a
petition for review of the Boilers Rule, challenging its
Regulatory Flexibility Act certification and its treatment of
small municipal utilities. The same day, the Environmental
Petitioners filed both a petition for judicial review of the Boilers
Rule and an administrative petition for reconsideration by EPA,
challenging the no control standard and the risk-based
alternatives. By notice published June 27, 2005, EPA granted
reconsideration in part and solicited comments on the health-
based compliance alternative for manganese in particular and, in
general, the methodology for demonstrating eligibility for and
compliance with health-based alternatives. 70 Fed. Reg. 36,907
(June 27, 2005). On July 29, 2005, the Environmental
Petitioners filed a petition for review of the reconsideration
notice insofar as it denied reconsideration in other respects. On
December 28, 2005, EPA issued a reconsideration decision
which modified the health-based alternative methodology. 70
Fed. Reg. 76,918 (Dec. 28, 2005). The Environmental
Petitioners then filed another petition for review of the Boilers
Rule on February 14, 2006.
 9

B. The CISWI Definitions Rule
In addition to amending section 112, the 1990 CAA
amendments also added section 129, which requires EPA to
establish specific performance standards, including emission
limitations, for “solid waste incineration units” generally, 42
U.S.C. § 7429(a)(1)(A), and, in particular, for “solid waste
incineration units combusting commercial or industrial waste,”
id. § 7429(a)(1)(D). Section 129 defines “solid waste
incineration unit” as “a distinct operating unit of any facility
which combusts any solid waste material from commercial or
industrial establishments or the general public (including single
and multiple residences, hotels, and motels).” Id. § 7429(g)(1)
(emphases added). The statute includes four express exceptions
to this definition for: (1) units requiring a permit under 42
U.S.C. § 6925, (2) “materials recovery facilities . . . which
combust waste for the primary purpose of recovering metals,”
(3) qualifying “small power production facilities” and
“cogeneration facilities” which combust “homogeneous waste”
“for the production of electric energy or . . . for the production
of electric energy and steam or forms of useful energy (such as
heat) which are used for industrial, commercial, heating or
cooling purposes” and (4) qualifying “air curtain incinerators”
that burn only “wood wastes, yard wastes and clean lumber.”
Id. § 7429(g)(1).
Like the section 112 standards, section 129 standards are
based on a MACT floor, which is substantially the same as
under section 112: for new sources, it is “the emissions control
that is achieved in practice by the best controlled similar unit”;
for existing units, it is “the average emissions limitation
achieved by the best performing 12 percent of units in the
category.” Id. § 7429(a)(2). Also, as with section 112
standards, EPA is to establish an above-the-floor standard if
EPA determines it is “achievable” taking into account costs and
other factors. Id.; see Ne. Md. Waste Disposal Auth. v. EPA, 358
 10

F.3d 936, 944 (D.C. Cir. 2004) (per curiam). Although section
129 “establishes emission requirements virtually identical to
section [112’s],” Nat’l Lime Ass’n v. EPA, 233 F.3d at 631, the
statutes nonetheless differ in two respects of particular
significance here. First, as noted above, section 112’s MACT
standards apply only to “major” sources of HAP emissions,
while section 129’s MACT standards apply across the board to
all solid waste incineration disposal units in a given category.
Compare 42 U.S.C. § 7412(d)(1) (“The [EPA] Administrator
shall promulgate regulations establishing emission standards for
each category or subcategory of major sources and area sources
of hazardous air pollutants listed for regulation pursuant to
subsection (c) of this section . . . .”) with id. § 7429(a)(1)(A)
(“The [EPA] Administrator shall establish performance
standards and other requirements pursuant to [42 U.S.C. § 7411]
and this section for each category of solid waste incineration
units.”). Second, section 129 requires that emission standards
be set for certain pollutants that are not classified as section 112
HAPs (at least not in section 112’s “initial list,” see supra note
1) and therefore are not subject to section 112’s MACT
standards, e.g. sulphur dioxide, nitrogen oxides and particulate
matter. Compare id. § 7429(a)(4) with id. § 7412(b)(1). Finally,
the Congress made section 129’s standards and section 112’s
standards mutually exclusive by directing that “no solid waste
incineration unit subject to performance standards under this
section and [42 U.S.C. § 7411] shall be subject to standards
under section 7412(d).” Id. § 7429(h)(2).
On December 1, 2000, EPA issued the CISWI Rule, setting
emission standards for commercial and industrial solid waste
incinerators pursuant to section 129. The Sierra Club filed a
petition for review and the Louisiana Environmental Action
Network and the National Wildlife Federation filed a petition for
reconsideration by EPA, objecting that EPA had not subjected
the rule’s definitions to comment. EPA granted the motion for
 11

reconsideration and filed a motion for voluntary remand, which
the court granted on September 6, 2001.
On remand, EPA solicited comments on the CISWI Rule’s
definitions of “solid waste,” “commercial and industrial waste”
and “CISWI unit.” Standards of Performance for New
Stationary Sources and Emission Guidelines for Existing
Sources: Commercial or Industrial Solid Waste Incineration
Units, 69 Fed. Reg. 7390 (Feb. 17, 2004). On September 22,
2005, after receiving comments, EPA issued the CISWI
Definitions Rule, which, as relevant here, contains definitions
that are substantively the same as before reconsideration. The
CISWI Definitions Rule defines a “commercial or industrial
solid waste incineration unit,” in relevant part, as “any
combustion unit that combusts commercial or industrial waste
(as defined in this subpart)” and then defines “commercial or
industrial waste” to include only waste that is combusted at a
facility that cannot or does not use a process that recovers
thermal energy from the combustion for a useful purpose. 70
Fed. Reg. at 55,580-81 (codified at 40 C.F.R. § 60.2265).2 The

2
The CISWI Rule EPA issued on December 1, 2000, had defined
the terms as follows:
Commercial and industrial solid waste incineration (CISWI)
unit means any combustion device that combusts commercial
and industrial waste, as defined in this subpart. . . .
Commercial and industrial waste means solid waste
combusted in an enclosed device using controlled flame
combustion without energy recovery that is a distinct
operating unit of any commercial or industrial facility
(including field-erected, modular, and custom built
incineration units operating with starved or excess air), or
solid waste combusted in an air curtain incinerator without
energy recovery that is a distinct operating unit of any
commercial or industrial facility.
 12

Environmental Petitioners filed a petition for review of the
CISWI Definitions Rule on November 21, 2005.
II.
A. CISWI Definitions Rule
The Environmental Petitioners challenge EPA’s definition
of “CISWI unit” insofar as it incorporates EPA’s definition of
“commercial or industrial waste,” asserting that it is inconsistent
with the plain language of section 129. We review the
Environmental Petitioners’ challenge to EPA’s interpretation of
section 129 under the two-step framework established in
Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc.,
467 U.S. 837 (1984). See Ne. Md. Waste Disposal Auth., 358
F.3d at 944 (“Chevron . . . governs our review of Industry
Petitioners’ claim that the 2000 Rule conflicts with
§ 129(a)(2).”). Under Chevron:
We first ask “whether Congress has directly spoken to
the precise question at issue,” in which case we “must
give effect to the unambiguously expressed intent of
Congress.” If the “statute is silent or ambiguous with
respect to the specific issue,” however, we move to the
second step and defer to the agency’s interpretation as
long as it is “based on a permissible construction of the
statute.”
Bluewater Network v. EPA, 372 F.3d 404, 410 (D.C. Cir. 2004)
(quoting Chevron, 467 U.S. at 842-43). We agree with the
Environmental Petitioners that EPA’s definition of “commercial
or industrial waste,” as incorporated in the definition of CISWI
units, stumbles on Chevron’s first step because it conflicts with
the plain language of section 129.

65 Fed. Reg. at 75,359.
 13

Section 129 on its face applies to “solid waste incineration
units” generally, 42 U.S.C. § 7429(a)(1)(A), and specifically to
“solid waste incineration units combusting commercial or
industrial waste,” id. § 7429(a)(1)(D). The statute further
expressly defines “[t]he term ‘solid waste incineration unit’ ”
plainly and broadly to include “a distinct operating unit of any
facility which combusts any solid waste material from
commercial or industrial establishments or the general public
(including single and multiple residences, hotels, and motels).”
Id. § 7429(g)(1) (emphases added). “The word ‘any’ is usually
understood to be all inclusive.” Fin. Planning Ass’n v. SEC, 482
F.3d 481, 488 (D.C. Cir. Mar. 30, 2007); see New York v. EPA,
443 F.3d 880, 885 (D.C. Cir. 2006) (“In a series of cases, the
Supreme Court has drawn upon the word ‘any’ to give the word
it modifies an ‘expansive meaning’ when there is ‘no reason to
contravene the clause’s obvious meaning.’ ” (quoting Norfolk S.
Rwy. Co. v. Kirby, 543 U.S. 14, 31-32 (2004)) (citing HUD v.
Rucker, 535 U.S. 125, 130-31 (2002); United States v. Gonzales,
520 U.S. 1, 5 (1997)). Applying the usual meaning here, we
interpret section 129 under Chevron step 1 to unambiguously
include among the incineration units subject to its standards any
facility that combusts any commercial or industrial solid waste
material at all—subject to the four statutory exceptions
identified above. See supra p. 9. The definition EPA
promulgated in the CISWI Definitions Rule, however, constricts
the scope of this plain, broad language.
The CISWI Definitions Rule defines the term “CISWI unit”
to include “any combustion unit that combusts commercial or
industrial waste (as defined in this subpart)” 70 Fed. Reg. at
55,580 (emphasis added). The same subpart, however, defines
“commercial or industrial waste” narrowly to include only “solid
waste . . . that is combusted at any commercial or industrial
facility using controlled flame combustion in an enclosed,
distinct operating unit: (1) Whose design does not provide for
energy recovery (as defined in this subpart); or (2) operated
 14

without energy recovery (as defined in this subpart).” 70 Fed.
Reg. at 55,572 (codified at 40 C.F.R. § 60.2265). EPA defines
the term “energy recovery,” in turn, as “the process of
recovering thermal energy from combustion for useful purposes
such as steam generation or process heating.” Id. (codified at 40
C.F.R. § 60.2265). The effect of these definitions is to
substantially reduce the number of commercial or industrial
waste combustors subject to section 129’s standards by
exempting from coverage any commercial or industrial
incinerator combusting “solid waste” if the combustion unit’s
design permits thermal recovery or the combustion process in
fact recovers thermal energy—notwithstanding such a unit
plainly fits the statutory definition of “solid waste incineration
unit” as “any facility which combusts any solid waste material
from commercial or industrial establishments,” 42 U.S.C.
§ 7429(g)(1) (emphases added). In the rulemaking, EPA
asserted its definition simply resolves an ambiguity created by
the Congress’s failure to provide a statutory definition of
“commercial or industrial waste.” See CISWI Definitions Rule,
70 Fed. Reg. at 55,573 (“CAA section 129 is ambiguous because
it does not contain definitions of certain terms. . . . [S]ection
129 does not define commercial or industrial waste. Inherent in
EPA’s implementation of this statutory provision is the
discretion to reasonably define what constitutes this undefined
type of solid waste.”).3 We have previously rejected just such
an argument, stating unequivocally: “There is no such rule of
law.” Goldstein v. SEC, 451 F.3d 873, 878 (D.C. Cir. 2006). As
we there explained, “[t]he lack of a statutory definition of a
word does not necessarily render the meaning of a word

3
EPA seemed to abandon the ambiguity argument in its brief, see
EPA Br. at 30 (noting absence of definition but drawing no express
inference of ambiguity therefrom), but resurrected it at oral argument.
See Natural Res. Def. Council v. EPA, Nos. 04-1385 et al., 2/23/07
Oral Argument Tr. at 9-10.
 15

ambiguous, just as the presence of a definition does not
necessarily make the meaning clear.” Id. Here, the statutory
definition of “solid waste incineration unit” is clear and
unambiguous as written—and EPA acknowledges as much when
it objects to a “literal” reading of the definition’s language. See
EPA Br. at 24 (asserting that “[a] literal interpretation of the
definition of ‘solid waste incineration unit’ in section 129(g)(1),
42 U.S.C. § 7429(g)(1), would require EPA to treat as an
incinerator any facility that combusts any amount of solid waste
from a commercial or industrial source”). EPA offers three
other arguments to support its definition of “commercial and
industrial waste,” none of them any more persuasive.
First, EPA asserts the legislative history of section 129
supports its position that “any,” as used in the statutory
definition of CISWI to modify “solid waste,” was intended to
bear “a narrower meaning in context than it has in common
usage,” EPA Br. at 31, thereby allowing thermal energy
recovery facilities to be exempted from the definition of “solid
waste incineration unit.” Cf. Bell Atl. Tel. Cos. v. FCC, 131
F.3d 1044, 1047-48 (D.C. Cir. 1997) (stating “Supreme Court
has specifically held that in context the word ‘any’ may be
construed in a non-expansive fashion” (citing O‘Connor v.
United States, 479 U.S. 27, 31 (1986)). In particular, EPA
points to remarks made by three senators during debate which
acknowledged a “solid waste disposal crisis” and supported
recycling and recovering resources in the solid waste disposal
process—most notably, the remarks of one senator in support of
the express statutory exemptions for “secondary materials
recovery facilities from these requirements because their
specific purpose is to recover valuable materials” and for
“facilities regulated under the Public Utilities Regulatory Policy
Act,” 16 U.S.C. § 824a-3. See EPA Brief at 32-34 (citing 1 A
Legislative History of the Clean Air Act Amendments of 1990
1131 (Comm. Print 1993) (Sen. Dole); 4 id. 7049 (Sen. Dole);
id. at 7051 (Sen. Durenberger); id. at 7054 (Sen. Baucus)). “It
 16

is true . . . that we ‘may examine the statute’s legislative history
in order to “shed new light on congressional intent,
notwithstanding statutory language that appears superficially
clear.” ’ ” Consumer Elecs. Ass’n v. FCC, 347 F.3d 291, 298
(D.C. Cir. 2003) (quoting Nat’l Rifle Ass’n v. Reno, 216 F.3d
122, 127 (D.C. Cir. 2000) (quoting Natural Res. Def. Council,
Inc. v. Browner, 57 F.3d 1122, 1127 (D.C. Cir. 1995))). But
“ ‘the bar is high,’ ” id. (quoting Williams Cos. v. FERC, 345
F.3d 910, 914 (D.C. Cir. 2003)), and “only rarely have we relied
on legislative history to constrict the otherwise broad application
of a statute indicated by its text,” id. Here, EPA cannot clear the
high bar relying solely on the isolated remarks of a few senators.
Cf. Davis County Solid Waste Mgmt. v. EPA, 101 F.3d 1395,
1407 (D.C. Cir. 1996) (finding contradictory comments of
individual senators during section 129 debates “too ‘meager [a]
record’ ” to rely on “ ‘given the clear statutory language’ to the
contrary”) (quoting Engine Mfrs. Ass’n v. EPA, 88 F.3d 1075,
1091 (D.C. Cir. 1996)). In any event, the remarks that EPA
cites, when viewed in the context of the express and
unambiguous provisions in the statute, show only that when the
Congress wanted to exempt a particular kind of solid waste
combustor from section 129’s coverage—based on the
desirability of resource recovery or any other interest—it knew
how to accomplish this through an express statutory exception
and in fact did so for four specific classes of combustion units.
See 42 U.S.C. § 7429(g)(1). Had the Congress intended to
exempt all units that combust waste for the purpose of
recovering thermal energy, it could likewise have expressly
provided for their exemption in the statute. See Sierra Club v.
EPA, 294 F.3d 155, 160 (D.C. Cir. 2002) (if statute “details the
conditions in which EPA may extend the attainment deadline,”
“[w]e cannot but infer from the presence of these specific
exemptions that the absence of any other exemption for the
transport of ozone was deliberate, and that the Agency’s attempt
to grant such a dispensation is contrary to the intent of the
 17

Congress”); TRW Inc. v. Andrews, 534 U.S. 19, 28 (2001)
(“ ‘Where Congress explicitly enumerates certain exceptions to
a general prohibition, additional exceptions are not to be
implied, in the absence of evidence of a contrary legislative
intent.’ ” (quoting Andrus v. Glover Constr. Co., 446 U.S. 608,
616-17 (1980)). But the Congress did not—and EPA may not,
consistent with Chevron, create an additional exception on its
own. In sum, “[i]n this context, there is no reason the usual
tools of statutory construction should not apply and hence no
reason why ‘any’ should not mean ‘any.’ ” New York v. EPA,
443 F.3d 880, 886 (D.C. Cir. 2006). In New York v. EPA, the
court rejected EPA’s narrow construction of the statutory
definition of “modification,” contained in CAA section 111, as
“any physical change in, or change in the method of operation
of, a stationary source which increases the amount of any air
pollutant emitted by such source or which results in the emission
of any air pollutant not previously emitted,” 42 U.S.C.
§ 7411(a)(4) (emphasis added). The court accorded “an
expansive meaning” to the term “any,” 443 F.3d at 885-86,
thereby expanding the class of new sources subject to new
source emission standards. See 42 U.S.C. § 7411(a)(2) (defining
“new source” as “any stationary source, the construction or
modification of which is commenced after the publication of
regulations . . . prescribing a standard of performance under this
section which will be applicable to such source” (emphasis
added)); id. § 7411(b) (requiring EPA to establish emission
standards for “new sources”). The court explained that “the
context of the Clean Air Act warrants no departure from the
word’s customary effect.” New York v. EPA, 443 F.3d at 885-
86. We likewise give an expansive reading to “any” to increase
the number of CISWI units subject to section 129’s emission
standards, reading sections 111 and 129 in pari materia. Cf.
Bluewater Network, 372 F.3d at 411 (reading CAA § 213(a)(3)
in pari materia with CAA § 202(l)(2) as “technology-forcing”).
 18

Second, EPA contends that “[b]y specifying that the
classification of a source turns on its primary function, the
[CISWI] Definitions Rule reasonably distinguishes between
incinerators, which are ‘designed to discard materials by
burning them at high temperatures and leaving as little residue
as possible,’ and boilers, which are ‘designed to recover the
maximum amount of heat from a material’s combustion.’ ”
EPA Br. at 36 (quoting Summary of Public Comments and
Responses, OAR-2003-0119-0038, at 15 (JA 1271)). The
distinction EPA draws may well be reasonable but it is not the
line drawn by the Congress in section 129 to separate a CISWI
unit from a boiler when it unambiguously defined the former
term as “any facility which combusts any solid waste material,”
42 U.S.C. § 7429(g) (emphasis added). This plain statutory
language governs—and halts our review at Chevron’s step 1.

Finally, EPA asserts that section 129(h)(2), which makes
section 112’s and section 129’s standards mutually exclusive
(by directing that “no solid waste incineration unit subject to
performance standards under [section 129] and [42 U.S.C.
§ 7411] shall be subject to standards under section [42 U.S.C.
§] 7412(d)”), “implicitly gave EPA the discretion to implement
the requirements of section 129 in a way that avoids results
inconsistent with the statutory purpose.” EPA Br. at 41. EPA
reasons that section 129’s exclusivity language “directs EPA to
make the MACT standards mutually exclusive but does not tell
EPA how to accomplish this task, instead leaving the
line-drawing details to EPA’s considered judgment.” Id. We
perceive no such gap in the statute, which simply directs EPA
in plain terms to subject a solid waste combustion facility
exclusively to section 129’s standards, and not to section 112’s,
if the facility fits section 129’s clear definition of “solid waste
incineration unit.” The provision gives EPA a straightforward
directive to draw the distinction based solely on the
 19

applicability vel non of section 129’s definition. It confers no
discretion in this respect, either express or implied.
B. Boilers Rule
Having determined that EPA’s definition of “solid waste
incineration unit” conflicts with the plain meaning of section
129 and must therefore be vacated, we next address the
Environmental Petitioners’ and the Municipal Petitioners’
challenges to the Boilers Rule and conclude they are premature
as the Boilers Rule cannot survive as currently promulgated.
As the Environmental Petitioners noted at oral argument, if
the court requires EPA to revise the CISWI Definitions Rule, as
we do in this opinion, the Boilers Rule will need to be revised
as well because the universe of boilers subject to its standards
will be far smaller and more homogenous after all CISWI units,
as the statute unambiguously defines them, are removed from
its coverage. See Natural Res. Def. Council v. EPA, Nos 04-
1385 et al., 2/23/07 Oral Argument Tr. at 37-38. Given the
likelihood (if not certainty) that the Boilers Rule will change
substantially as a result of our vacatur of the challenged “solid
waste” definition, we believe the Boilers Rule should be vacated
in its entirety and remanded for EPA to repromulgate after
revising the CISWI Definitions Rule. Cf. Friends of the Earth,
Inc. v. EPA, 446 F.3d 140 (D.C. Cir. 2006) (remanding to
district court with instruction to vacate “daily load” limits on
effluent discharges as inconsistent with statutory language).4 It
is therefore premature to consider the Environmental
Petitioners’ or the Municipal Petitioners’ challenges to the
current rule. Cf. Ala. Power Co. v. EPA, 40 F.3d 450, 456 (D.C.

4
In light of our vacatur and remand of the entire Boilers Rule, we
dismiss as moot EPA’s motion for partial vacatur and remand filed
March 26, 2007.
 20

Cir. 1994) (vacating rule and declining to resolve issue rendered
moot thereby).
In choosing to vacate rather than simply remand the CISWI
Definitions Rule and the Boilers Rule, we disagree with our
dissenting colleague who would not vacate either of the Rules
because “the court has traditionally not vacated the rule if doing
so would have adverse implications for public health and the
environment.” Dissent at 1 (citing Sierra Club v. EPA, 167
F.3d 658, 664 (D.C. Cir. 1999); Nat’l Lime Ass’n v. EPA, 233
F.3d at 635)). We find the cited cases distinguishable from the
situation here.
As a result of our decision today, neither of the two Rules
survives remand in anything approaching recognizable form.
As the Environmental Petitioners point out, our rejection of
EPA’s definition of “commercial or industrial waste,” as
incorporated in the definition of CISWI, will “shift thousands
of units that are currently regulated under the section 112
Boilers Rule into the CISWI category, subject to regulation
under section 129” and “[a]s a result, the populations of units
subject to EPA’s boilers and CISWI rules will change
substantially,” requiring that EPA “recalculate the stringency of
the emissions standards for the newly expanded CISWI
category and the newly shrunk boilers category.” Envtl. Pet’rs
Br. at 29. By contrast, in declining to vacate the standard
successfully challenged in Sierra Club, the court expressly
noted it was “possible that EPA may be able to explain it” on
remand, 167 F.3d at 664. In National Lime Association, we
remanded because EPA “failed to consider non-air quality
health and environmental impacts of potential beyond-the-floor
standards for HAP metals, and because it relied on a factually
incorrect assertion in rejecting such standards.” 233 F.3d at
635. In neither case did our decision foreclose EPA from
promulgating the same standards on remand.
 21

Moreover, we find this case much like Cement Kiln
Recycling Coal. v. EPA, 255 F.3d 855 (D.C. Cir. 2001) (per
curiam), in which we vacated the challenged emission
standards, notwithstanding the environmental petitioners’
request to leave them intact, because we had “chosen not to
reach the bulk of industry petitioners claims, and leaving the
regulations in place during remand would ignore petitioners’
potentially meritorious challenges.” 255 F.3d at 872. Similarly
here, we elect not to address potentially meritorious challenges
to the Boilers Rule raised by the Municipal Petitioners—that
EPA violated the CAA by failing to create a separate
subcategory for small municipal utilities.
In light of the need for wholesale revision on remand of
both the CISWI Definitions Rule and the Boilers Rule and the
effect that leaving the Boilers Rule in place would have on the
Municipal Petitioners, we believe the appropriate course is to
vacate the Rules in their entirety. To remedy the resulting lack
of standards, any party “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.” Cement Kiln, 255 F.3d at 872 (citing
Columbia Falls Aluminum Co. v. EPA, 139 F.3d 914, 924 (D.C.
Cir. 1998)).
For the foregoing reasons, we grant the Environmental
Petitioners’ petitions for review of the CISWI Definitions Rule
(No. 05-1434) and consequently vacate and remand both the
CISWI Definitions Rule and the Boilers Rule. We further
dismiss as moot both the Environmental Petitioners’ and the
Municipal Petitioners’ petitions for review of the vacated
Boilers Rule (Nos. 04-1385, 04-1386, 05-1302 and 06-1065).
So ordered.
 RANDOLPH, Circuit Judge, concurring: I write separately
to address the question whether a court, after finding agency
action unlawful, should remand the case to the agency without
vacating the illegal rule or order. In cases governed by the
Administrative Procedure Act, I have long believed that the law
requires us to vacate the unlawful agency rule. See 5 U.S.C.
§ 706(2). I also believe that in cases such as this, in which APA
§ 706(2) does not apply, vacating and remanding should be the
preferred course.

Contrary to the apparent view of Judge Rogers, our
precedents on this question fall into no particular pattern. Often
we vacate and remand. Sometimes we simply remand. Rarely
do we explain why we favored one disposition over the other.
And sometimes it is not even clear what disposition we
intended.1 Our court’s remedial judgment varies even in
seemingly identical cases involving the same agency. This
“inconsistent” treatment of cases has not gone unnoticed. See
Kristina Daugirdas, Note, Evaluating Remand Without Vacatur:
A New Judicial Remedy for Defective Agency Rulemakings, 80
N.Y.U. L. REV. 278, 293 (2005).

In the past, when we have vacated rules or orders and
remanded to the agency, we have indicated that we would
entertain a motion for a stay of the mandate while the agency
took corrective action.2 There are several reasons why we

1
See William S. Jordan, III, Ossification Revisted: Does
Arbitrary & Capricious Review Significantly Interfere with Agency
Ability to Achieve Regulatory Goals Through Informal Rulemaking?,
94 NW. U. L. REV. 393, 410 & n.88 (2000) (finding that in twenty-
eight of the sixty-one rulemaking cases studied our court “did not
explicitly state whether or not it was vacating the rule at issue”).
2
See, e.g., Friends of the Earth, Inc. v. EPA, 446 F.3d 140,
148 (D.C. Cir. 2006); Cement Kiln Recycling Coal. v. EPA, 255 F.3d
855, 872 (D.C. Cir. 2001) (stating that EPA and other parties “may file
 2

should prefer this course in non-APA cases like this one in
which the court has some remedial discretion. Vacating an
order or rule and then considering a stay motion has several
distinct advantages over just remanding. In the first place, it
preserves the adversarial process.3 Remand-only decisions are

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”); U.S. Tel. Ass’n v. FCC, 188 F.3d
521, 531 (D.C. Cir. 1999); Columbia Falls Aluminum Co. v. EPA, 139
F.3d 914, 924 (D.C. Cir. 1998); Envtl. Def. Fund, Inc. v. EPA, 672
F.2d 42, 57 (D.C. Cir. 1982) (observing that “following the court’s
decision,” EPA and other parties “participated in extensive
deliberations . . . to seek [and obtain] a stay of the mandate and
develop a program to achieve a revised regulatory scheme”); cf.
Honeywell Int’l Inc. v. EPA, 374 F.3d 1363, 1375 (D.C. Cir. 2004)
(Randolph, J., concurring), withdrawn in part on other grounds, 393
F.3d 1315 (D.C. Cir. 2005); Schurz Commc’ns Inc. v. FCC, 982 F.2d
1043, 1057 (7th Cir. 1992).
3
The post-argument filings in this case do not, as the dissent
supposes, fully address the remedial issues. After oral argument, EPA
filed a motion seeking both partial remand of the Boilers Rule for
revisions consistent with this court’s intervening decision in Sierra
Club v. EPA, 479 F.3d 875 (D.C. Cir. 2007) (per curiam), and partial
vacatur of certain compliance deadlines and emissions limits to allow
for the agency’s intended revisions. That motion and the filings
accompanying it addressed issues related to, but distinct from, the
remedial issues presented by our unanimous holding that EPA
unlawfully defined “commercial or industrial waste” in a way that will
require substantial alterations to both challenged rules, see Op. at 6,
12-21. As one of the parties put it: “Considering a stay of this Court’s
mandate (in whole or in part) and/or holding EPA to a remand
deadline may be appropriate topics for the parties to discuss, and for
this Court to evaluate. But . . . an informed, non-hypothetical
discussion can occur only after this Court issues its decision.” Resp.
& Opp’n of Indus. Intervenors to Envtl. Pet’rs’ Opp’n to EPA’s Mot.
 3

almost always reached without input from the parties. The
briefs scarcely ever deal with the remedial question. That is
perfectly understandable. It may be impossible for petitioners,
agencies, or intervenors to anticipate exactly how the court’s
decision will come out. There may be challenges to many rules
or many aspects of one rule. The court may uphold some and
reject others. Different consequences can result from different
combinations. Besides, agencies, in their presentations to the
court, do not relish anticipating a loss. No litigant does. To
require the parties to address the subject in each case would
waste their time and the court’s in all cases in which the agency
prevails.

The upshot is that remand-only decisions are being made
without sufficient information, which is one of the main reasons
the cases are so difficult to reconcile. In contrast, post-decision
stay motions enable us to decide with our eyes open. The court
will have the benefit of hearing from all sides. In deciding
whether to allow unlawful agency action to remain in place
during the remand (by way of a stay), the court will have the
evidence needed to assess the consequences. And that decision
can be made in accordance with this court’s long-standing
principles governing stays – irreparable harm, probability of
success, public interest, and so forth. See, e.g., Va. Petroleum
Jobbers v. FPC, 259 F.2d 921, 925 (D.C. Cir. 1958) (per
curiam); Wash. Metro. Area Transit Comm’n v. Holiday Tours,
Inc., 559 F.2d 841, 842-43 (D.C. Cir. 1977); Wis. Gas Co. v.
FERC, 758 F.2d 669, 673-74 (D.C. Cir. 1985) (per curiam);
Cuomo v. Nuclear Regulatory Comm’n, 772 F.2d 972, 974 (D.C.
Cir. 1985) (per curiam).

The existence of a stay with time limits, rather than an

for Voluntary Partial Vacatur and Cross-Mot. for Deadline to Govern
Remand at 4 (emphasis in original).
 4

open-ended remand without vacating, will give the agency an
incentive to act in a reasonable time, given the other constraints
on its resources. When we simply remand the agency has no
such incentive. A remand-only disposition is, in effect, an
indefinite stay of the effectiveness of the court’s decision and
agencies naturally treat it as such. See Daugirdas, supra, at 302-
04.

Notice too the distortion of the proper allocation of burdens
among the parties. When the case is simply remanded, and the
agency drags its feet, the winning party’s only recourse is to
bring a mandamus petition and clear all the hurdles such actions
entail. On the other hand, in proceedings on motions for stays
the burden is where it should be – on the losing agency, which
will have to convince the court that private parties should be
required to comply with an illegal order or rule while the agency
responds to the ruling against it. If an extension of time is
needed, the burden will remain on the losing agency.

One final thought. A remand-only disposition may unfairly
deprive parties of the opportunity to obtain Supreme Court
review of our decision on the merits. If a district court merely
remands a case to an agency, we hold that there is no final
judgment to appeal. See In re St. Charles Preservation
Investors, Ltd., 916 F.2d 727, 729 (D.C. Cir. 1990) (per curiam)
(observing well-settled rule that “a district court order remanding
a case to an agency for significant further proceedings is not
final”); see also Pueblo of Sandia v. Babbitt, 231 F.3d 878, 881
(D.C. Cir. 2000) (holding that appellate court lacked jurisdiction
to review district court order remanding to agency for further
proceedings). It is entirely possible that the Supreme Court
would take the same view of our remand-only dispositions and
hold that there is no final order suitable for its review.
 ROGERS, Circuit Judge, concurring in part and dissenting in
part: I join the court in holding that the final rule on the
Standards of Performance for New Stationary Sources and
Emissions Guidelines for Existing Source: Commercial and
Industrial Solid Waste Incineration Units (“Definitions Rule”),
is contrary to the plain text of the Clean Air Act. I also agree
that, as a result, the related rule, the National Emission
Standards for Hazardous Air Pollutants for Industrial,
Commercial, and Institutional Boilers and Process Heaters
(“Boilers Rule”), must be substantially revised. Where I differ
is on the appropriate remedy.

The reality in this case is that the question of whether to
vacate or remand the rules has been fully addressed by the
parties. The initial discussion in the parties’ briefs was
supplemented by a series of motions and responses by the
parties. Thus, the adversarial process has been observed. The
question, then, is whether the parties have persuaded the court
of the appropriate remedy. The court has no reason to postpone
a decision on the question in this case. The fact that over the
years the court’s remedies in different cases fail to reveal a
consistent pattern, see concurring opinion of Randolph, J., does
not pose an obstacle to proceeding now nor necessarily mean
that the remedial responses in particular cases were
inappropriate. The particular fact-intensive circumstances in the
cases that come before the court involving a variety of
regulatory schemes may well mean that there will be no one-
rule-fits-all solution.

Where the court has concluded that a final rule is deficient,
the court has traditionally not vacated the rule if doing so would
have serious adverse implications for public health and the
environment. See, e.g., Sierra Club v. EPA, 167 F.3d 658, 664
(D.C. Cir. 1999); Nat’l Lime Ass’n v. EPA, 233 F.3d 625, 635
(D.C. Cir. 2000). There have been exceptions, but the court has
usually offered a reasoned explanation for its decision, as in
 2

Cement Kiln Recycling Coal. v. EPA, 255 F.3d 855, 872 (D.C.
Cir. 2001), which distinguished Sierra Club and National Lime
because the public health considerations favoring remand were
offset by rule challenges by industry that the court did not reach
but appeared meritorious. Here, the court has rejected industry
contentions as regards the Definitions Rule and the interests of
the Municipal Petitioners, which only challenged the Boilers
Rule, are protected by a separate remand and stay of the
compliance date in the Boilers Rule. Order of Mar. 12, 2007.
The court is not reaching the merits of any parties’ challenge to
the Boilers Rule because of the interrelationship between the
two rules and the need to afford EPA an opportunity to overhaul
that rule in view of the court’s conclusion about the Definitions
Rule. See Op. at 21. But the court can hardly suggest Industry
contentions regarding the Boilers Rule appear meritorious. See,
e.g., Sierra Club v. EPA, 479 F.3d 875, 883 (D.C. Cir. 2007);
Nat’l Lime, 233 F.3d at 633-34.

The second reality in this case stems from the nature of the
court’s decision. It is evident from the court’s recognition that
EPA must conduct a “wholesale revision on remand,” Op. at 21,
that a considerable period of time may pass before EPA
promulgates the revised rules. Although EPA has suggested that
a stay of the mandate of the court would be appropriate, see
Reply in Support of Motion for Voluntary Partial Vacatur and
Remand at 3-4, as a practical matter, a lengthy or indefinite stay
of the mandate is problematic. Federal Rule of Appellate
Procedure 41 calls for the mandate to issue in seven days; our
Circuit rule contemplates that a stay of the mandate will
ordinarily be for no more than 90 days, D.C. CIR.R.41(a)(2); and
our stays of the mandate have tended, in fact, to be for months,
see, e.g., Chamber of Commerce v. SEC, 443 F.3d 890, 909
(D.C. Cir. 2006); U.S. Telecom Ass’n v. FCC, No. 00-1012,
2002 U.S. App. LEXIS 18823, at *1 (D.C. Cir. Sept. 4, 2002),
not years. We know that the agency response may not even be
 3

a matter of a few years; for example, it took EPA ten years to
respond in Engine Mfgrs. Ass’n v. EPA, 20 F.3d 1177 (D.C. Cir.
1994), and fifteen years to respond to a remand of the rule in
Envtl. Def. Fund v. EPA, 898 F.2d 183 (D.C. Cir. 1990); 70 Fed.
Reg. 59,582 (Oct. 12, 2005), and then it did so only after a
petition for a writ of mandamus had been filed. Even assuming
these cases are outliers, EPA has not suggested its response here
will be a matter of months. Nor has EPA suggested it could
promptly adopt an interim rule were the court to vacate the
current rules.

Moreover, it may not always be clear what motivates an
agency to act promptly or not after the court has identified
problems with its initial rulemaking. There may be professional
or political incentives, or other matters to which the agency has
accorded a higher priority. Staffing and available resources
might affect the timing of the agency’s response. So might a
technological or scientific breakthrough, or lack thereof. Also,
the agency may change its mind or abandon its initial rule or
Congress may change the law. Or the court’s decision may not
impact the agency’s pursuit of its regulatory goals. Any mix of
these factors or others could affect the expected response time
to the court’s ruling. Consequently, neither vacating nor
remanding, with or without a court imposed deadline, assures a
prompt agency response. Vacating a rule removes it from the
agency’s docket, but interested parties may still seek to
encourage or delay further agency action. Remanding leaves the
agency’s initial approach in effect, and may suggest there is no
urgency to act, yet interested parties may take a different view.
Even if an agency does not welcome mandamus-driven agency
action, the possibility of mandamus may serve as an incentive
not to delay unduly regardless of whether the court vacates or
remands. Even so, a court-imposed deadline for agency action
may not easily be enforced.
 4

EPA has defined the serious adverse implications for public
health and the environment resulting from the pollution emitted
by the sources regulated by the two challenged rules. All of the
hazardous air pollutants emitted by boilers and incinerators
cause serious adverse health effects. 69 Fed. Reg. 55,218,
55,220-22 (Sept. 13, 2004). EPA has stated “[h]uman exposure
to these combustion air toxics occurs both directly and indirectly
and leads to cancer, respiratory diseases, and possibly
developmental abnormalities. A preliminary screening analysis
suggests that ecosystems are also at risk from these air
pollutants.” 64 Fed. Reg. 52,828, 53,014 (Sept. 30, 1999).
Given the delay likely attendant to the promulgation of new
rules or the re-promulgation of partially unlawful rules affecting
public health and the environment, Environmental Petitioners
favor a remand because although the standards in the two
challenged rules may be inadequate, they provide some
protection from the hazardous air pollutants emitted by the
regulated sources. See Opp’n of Envtl. Pet’rs to EPA’s Mot. for
Partial Vacatur and Cross-Mot. for Deadline to Govern Remand
at 2; Resp. & Opp’n of Indus. Intervenors to Envtl. Pet’rs’
Opp’n to EPA’s Mot. for Voluntary Partial Vacatur and Cross-
Mot. for Deadline to Govern Remand at 9-10.

A third reality in this case involves the status of industry
compliance. Environmental Petitioners advise, and neither EPA
nor industry intervenors disputes, that the compliance date for
sources under the Boilers Rule is four months away, and new
boilers and process heaters have been in compliance since 2004.
Id. at 3. Indeed, as regards the Boilers Rule, although not as
regards pollutants from incinerators subject to the Definitions
Rule, EPA suggests that many sources will remain subject to the
current MACT regulations under the Title V permits. See Reply
in Support of Mot. for Voluntary Partial Vacatur and Remand at
5; Resp. & Opp’n of Indus. Intervenors to Envtl. Pet’rs’ Opp’n
to EPA’s Mot. for Voluntary Partial Vacatur and Cross-Mot. for
 5

Deadline to Govern Remand at 9-10.

Under the circumstances, a remand instead of vacatur seems
“the better course,” Cement Kiln, 255 F.3d at 872, because the
rules would ensure greater protection to public health and the
environment during the time EPA will need to develop and
promulgate new rules. See Reply in Support of Motion for
Voluntary Partial Vacatur and Remand at 8-10. No party has
indicated that it wishes to apply for certiorari review by the
Supreme Court. See concurring opinion of Judge Randolph.

Nonetheless, without questioning the reality of the harms to
public health and the environment that EPA has identified and
the status of industry compliance, the court concludes no
protection is better than some protection to the public health and
the environment in the interim. The court’s reliance on Friends
of the Earth, Inc. v. EPA, 446 F.3d 140 (D.C. Cir. 2006), see Op.
at 19, hardly supports an unqualified vacatur of the rules.
Although that case concerned the effect of pollution on aquatic
and plant life as distinct from human life, the court remanded the
case to the district court to determine “the shortest reasonable
timetable” for “an expedited schedule for further rulemaking,”
Friends, 446 F.3d at 148. Moreover, while the case was not
moot, the necessary local action had already addressed the
environmental problem. Id. at 147. The distinctions that the
court draws with our other remands are makeweight arguments;
for example, in National Lime, 233 F.3d at 635, EPA also had
failed to follow the statute in promulgating a rule and the court
remanded; EPA could not, as the court implies, Op. at 20,
promulgate a rule on remand that continued to violate the
statute. Rather, agency shortcomings in rulemakings have been
the gist of remands. Cf. Envtl. Def. Fund, 898 F.2d at 190. The
other opinion on which the court relies, Alabama Power Co. v.
EPA, 40 F.3d 450, 456 (D.C. Cir. 1994), provides no analysis in
support of vacatur. Whatever may or may not be the merits of
 6

procedural uniformity, see concurring opinion of Judge
Randolph, the posture of this case allows the court to decide the
remedy now. The supplementary filings have provided the court
with the information it needs,1 and it would be a waste of
judicial and party resources to require new filings on remedy in
support of a stay upon vacation of the rules.

For these reasons, I would remand the two challenged rules
to EPA rather than vacate them.

1
Industry-intervenors’s concern, referenced in the concurring
opinion of Judge Randolph, arose in the context of opposing
Environmental Petitioner’s request for a remand with a two year
deadline for EPA to respond on the basis that EPA could not know the
magnitude of the work it must undertake on remand until this court’s
opinion issues. See Resp. & Opp’n of Indus. Intervenors to Envtl.
Pet’rs’ Opp’n to EPA’s Mot. for Voluntary Partial Vacatur and Cross-
Mot. for Deadline to Govern Remand at 4; id. at 5, 10.