dissenting in part and concurring in part:
On December 18, 1978 the Environmental Protection Agency (“EPA” or “agency”) announced its intention to list waste lubricating oils, hydraulic oils and cutting oils as hazardous under section 3001 of the Resource Conservation and Recovery Act of 1976 (“RCRA”), as amended, 42 U.S.C. § 6921. 43 Fed.Reg. 58,946, 58,957. Since that opening shot in 1978, however, the EPA’s efforts to list used oil as a hazardous waste have followed a tortuous course of hide and seek. Today the majority permits the EPA to call off its latest effort to list used oil as hazardous without ever determining whether there is an adequate factual basis in the record for doing so.
I. BACKGROUND
On May 19,1980, in the course of announcing the regulatory criteria for identifying specific hazardous characteristics and fisting particular wastes as hazardous, the EPA postponed any fisting decision on used oil until some time that fall. 45 Fed.Reg. 33,-084, 33,086, 33,118. In November of that year, the fisting decision was deferred again. 45 Fed.Reg. 74,884, 74,890. Responding to EPA inaction, Congress passed the Used Oil Recycling Act of 1980, sec. 8, Pub.L. No. 96-*1075463, 94 Stat. 2055, 2058 (uncodified), which required the EPA to “make a determination as to the applicability to used oil of the criteria and regulations ... relating to characteristics of hazardous wastes” and to submit to Congress a report “together with a detailed statement of the data and other information upon which the determination is based.”
In its January, 1981 report to Congress, [the] EPA indicated its intention to list both used oil and unused waste oil as hazardous under section 3001 of RCRA based on the presence of a number of toxicants in crude or refined oil {e.g., benzene, naphthalene, and phenols), as well as the presence of contaminants in used oil as a result of use {e.g., lead, chromium, and cadmium). In addition, the report cited the environmental and human health threats posed by these used oils and unused waste oils, including the potential threat of rendering ground water non-potable through contamination.
57 Fed.Reg. 21,524, 21,525 (May 20, 1992). See U.S. ENVIRONMENTAL PROTECTION AGENCY, Listing Waste Oil as a Hazardous Waste: Report to Congress (1981), reprinted in Joint Appendix (“J.A.”) 103. As then-Administrator Douglas M. Costle wrote in his accompanying letter to Congress, “[t]he information presented here will be used later this year to support the proposed listing of these waste oils as hazardous wastes.” J.A. 105.
Three years later, the EPA had still not moved on the matter, leading Congress to put a “further prod” to the agency and adopt section 241 of the Hazardous and Solid Waste Amendments of 1984, Pub.L. No. 98-616, 98 Stat. 3221, 3258 (codified at 42 U.S.C. § 6935). H.R.Rep. No. 98-198, 98th Cong., 1st Sess., pt. 1, at 64 (1983), reprinted in 1984 U.S.C.C.A.N. 5576, 5623. The new legislation provided that the EPA shall “propose whether to list or identify used automobile and truck crankcase oil as hazardous waste” no later than November 8, 1985 and shall make a final decision on the matter no later than the following year. 42 U.S.C. § 6935(b). Cf. Hazardous Waste Treatment Council v. EPA, 861 F.2d 270, 271-72 (D.C.Cir.1988) (“HWTC”) (discussing history of used oil legislation).
On November 29,1985, in near compliance with the congressional mandate, the EPA proposed to list used oil as a hazardous waste in 40 C.F.R. § 261.31. 50 Fed.Reg. 49,258, 49,270. As the factual basis for its decision, the agency invoked
the used oil background document [which] provides a summary of approximately 80 major mismanagement incidents and the cost implications of cleanup operations ($10,000 to $5,150,000 per site). The mismanagement issue is not confined to on-site management of used oil, as evidenced by the fact that seventy (70) of these incidents occurred off the generation site. The media affected include surface water (35 sites), ground water (24 sites), drinking water (17 sites), air (8 sites), and soil (25 sites).
Treatment, storage, and disposal of used oils in tank and container storage facilities (25 sites), surface impoundments (36 sites), and other improper disposal facilities (35 sites), burning operations (7 sites), and use of waste oil as a dust suppressant (3 sites) have resulted in the pollution of ground or surface water with lead, chlorinated organics, or aromatic organics from these wastes.
In summary, the Agency has determined that used oil typically contains toxic constituents at concentrations that are of concern, that these constituents are mobile, persistent, and bioaecumulative, and capable of migration in hazardous concentrations, and, therefore, that these wastes are capable of causing (indeed, repeatedly have caused) substantial harm if mismanaged. Consequently the Agency is proposing to add used oil to the lists of hazardous wastes.
Id. at 49,267. The EPA, however, subsequently underwent a change of heart regarding recycled oil (in contradistinction to used oil destined for disposal which is at issue here) and issued supplemental notices suggesting special management standards and a no-list decision for recycled oil. 51 Fed.Reg. 8206 (Mar. 10, 1986).
*1076Shortly before the expiration of its one year deadline for final action by the EPA on the listing of used oil, Congress passed the Superfund Amendments and Reauthorization Act of 1986, Pub.L. No. 99^99, 100 Stat. 1613 (codified in scattered sections of the United States Code), which gave the EPA additional authority to regulate recycled oil without listing it as hazardous. The EPA’s final decision did not list recycled oil citing as its principal reason that the stigmatie effects of such a listing would discourage recycling. 51 Fed.Reg. 41,900 (Nov. 19, 1986).1 The EPA also deferred, once again, the listing of used oil destined for disposal, apparently on the argument that such a listing would have a spillover stigma effect on recycling used oil. Id. at 41,903. The listing decision as to used oil was now scheduled for “[m]id 1988.”- Id. at 41,904.
Mid-1988 passed without any decision. In October of that year, a panel of this court held that the EPA’s decision not to list recycled oil based on stigma concerns was contrary to law because the Act “does not permit the Agency to consider these stigmatie consequences in deciding whether to list recycled oil as a hazardous waste.” HWTC, 861 F.2d at 271. The court held that the EPA was obligated to reconsider “whether any recycled oils meet the technical criteria for listing.” Id. at 277 (emphasis added).
In March, 1990 when the EPA had still not acted on used oil destined for disposal, the NRDC filed suit in federal court. NRDC v. EPA, No. 90-0694, 1992 WL 469734 (D.D.C. filed March 26, 1990). The EPA thereupon entered into a consent decree, promising to issue a final determination by May 1, 1992, and the agency published a supplemental notice of proposed rulemaking to that effect on September 23, 1991. 56 Fed.Reg. 48,000.
In addition to replicating earlier studies in its accompanying justification, the EPA presented “updated information” it thought useful to “determine the status of ... used oils with respect to the toxicity characteristic.” Id. at 48,006. The new study broke down used oil into several categories, one of which was oils from gasoline-powered engines (ie., automotive crankcase, gasoline-powered marine craft, and piston-engine aircraft). See Soience Applications InteRnational CORPORATION, Used Oil Characterization Sampling AND Analysis Program (1991) (“SAIC report”) (prepared for EPA under contract), reprinted in J.A. 218. The EPA found oil from gasoline-powered engines to contain toxicants detectable by its toxic characteristics test (“TCLP”), as well as other toxicants not detectable by that test.
The supplemental notice presented three options: (1) list all used oils as hazardous waste, (2) list as hazardous used oils that typically and frequently exhibit toxic constituents at levels of concern, such as used oil from gasoline-powered engines, and (3) list no oils as hazardous and rely mainly on management standards for recycled oil promulgated under RCRA section 3014(a), 42 U.S.C. § 6935, as well as the RCRA regulatory scheme that would be triggered when any batch of used oil, whether, destined for disposal or recycling, individually exhibits toxic or other hazardous characteristics. 56 Fed.Reg. at 48,019-21. The notice “recognizes that this [third] option is not completely comprehensive because the EPA lacks the authority to impose Federally-enforceable regulation on the disposal of [as opposed to recycling of] nonhazardous used oil. Therefore, a suboption that the Agency is considering would combine aspects of Options Two and Three to list used gasoline-powered engine crankcase oil when disposed.” Id. at 48,021.
In discussing the threat of used oil to the environment within the existing regulatory landscape, the supplemental notice described numerous examples of mismanagement and “potential pathways ... for used oil to cause *1077damage to the environment.” See id. at 48,-034. The EPA pointed out:
Past mismanagement of used oils has resulted in significant environmental damage, which the Agency has documented extensively. Of the 445 National Priorities List (NPL) facilities having documented Records of Decision, 185 (42%) have had used oils co-disposed with other hazardous or industrial sTdid waste....
In addition, the 1981 Report to Congress on used oil includes damage incidents and examples of severe threats to human health and the environment. As explained in that Report, used oil mixed with hazardous wastes has been shown to have toxic or carcinogenic effects on humans. Also, used oil that is mixed with solvents or other hazardous wastes when burned created products of incomplete combustion ... [which] are of particular concern due to their carcinogenic nature.
An investigation of 25 Superfund sites that involved the mismanagement of used oil found used oil contamination of surface and ground waters, soils, and surrounding lands and crops. In several cases wildlife damage or wildlife death has been documented. Further, over 60 damage incident summaries indicate contamination of surface water, while over 30 incidents involve soil contamination, and a few contain evidence of air contamination.
... EPA notes that many of the potential risks to human health and the environment from the mismanagement of used oil, as documented above, are present regardless of the type of used oil that is released to the environment, particularly the contamination of ground water and effects on plant and animal life.
Id. at 48,033-35. The SAIC report concluded: “Based on the preponderance of damage incidents involving used oil and on the quantity of scientific literature assessing the effects, EPA believes that used oil presents a significant environmental hazard.” SAIC report at 1 (J.A. 277). In other words, the existing regulatory scheme was not doing the-job of protecting the environment from the dangers of used oil disposal.
The NRDC’s submitted comments argued forcefully that more needed to be done than sitting back and riding the current regulatory tracks. The NRDC specifically opposed the no-list option, documented countless instances of mismanagement and drew on the “California experience [which] shows that listing used oil as a hazardous waste leads to an increase in the responsible handling of used oil.” Comments of NRDC at iii (Nov. 13, 1991), reprinted in Supplemental Appendix (“Supp.A.”) 1, 6. See also id. at 4-1 to 4-5 (Supp.A. 54-58); Comments of Evergreen Oil Inc. at 5 (Nov. 6, 1991) (Supp.A. 71, 75). While some commenters charged that the EPA’s study underestimated the dangers of used oil, they argued that even on the basis of that “data, EPA cannot simply ignore the impacts of plausible mismanagement scenarios in deciding at what point to list used oil as hazardous.” Evergreen at 19 (Supp.A. 89). See also id. at 18 (Supp.A. 88). For example, while there have been some changes “over the last decade,” such as the “lead phase-down in gasoline, ... Evergreen’s most recent test data ..., like the EPA’s, continue to show significant levels of lead [in used oil].” Id. at 26 (Supp.A. 96). And although the EPA had asserted that “the types of mismanagement historically associated with used oil may no longer be plausible if subject to Federal enforcement [of oil management standards],” 56 Fed.Reg. at 48,021 (emphasis added), as one eommenter pointed out, “[t]his statement assumes that EPA will devote substantial resources to enforcing new used oil management standards” and that “[n]o such commitment of resources has been made by the agency.” Id. at 32 (Supp.A. 102).
Nonetheless, on May 20, 1992, the EPA issued its final decision not to list used oil as a hazardous waste. The EPA did not change its position on the toxicity of used oil, but, relying on factors (vii) (“plausible types of improper management”) and (x) (“actions taken by other governmental agencies or regulatory programs”) of the multi-factor test in 40 C.F.R. § 261.11(a)(3), concluded that “the current regulatory structure controlling the management of used oil destined for disposal provides adequate controls so that used oil will not pose a substantial *1078threat to human health or the environment.” 57 Fed.Reg. 21,524, 21,528. The EPA explained:
After assessing the extent and potential success of current regulatory programs and their effect on the disposal of used oil, the Agency believes that the existing network of regulations provides protection from plausible disposal mismanagement scenarios, as discussed below.
The “discuss[ion] below,” however, consisted solely of a laundry list of current regulations. See 57 Fed.Reg. at 21,528-31. The record reflected — so far as any party has pointed out — no further attempt on the EPA’s part to “assess the extent and potential success” of existing regulations in preventing or cleaning up pollution caused by used oil.
II. The Instant Appeal
In addition to the statutory construction issue discussed by the majority (with which I generally agree), the NRDC makes two additional challenges on appeal: first, that the EPA, without adequate support, ignored the record which demonstrates that mismanagement is widespread and poses considerable danger to the environment; and second, that the EPA unjustifiably disregarded plausible mismanagement scenarios by presuming waste generators’ compliance with every regulatory constraint on the books. The panel majority, resting on principles of appellate briefing and administrative exhaustion, refuses to consider the merits of either challenge, holding that the NRDC’s first argument was not properly raised on appeal and that its second was not properly raised below. I disagree.
In its opening brief, the NRDC challenged the EPA’s determination that other environmental statutes controlled any plausible mismanagement scenarios. “Each of the other environmental statutes relied on by EPA in its challenged determination address only narrow aspects of used oil management.” Brief for Petitioners at 38 (citation omitted). According to NRDC, the EPA’s decision inexplicably ignores “[t]he record below [which] documents countless instances of environmental damage due to mismanagement of used oil.” Id. To be sure, in the opening brief, this argument was wedded to the NRDC’s second, related attack which was phrased in terms of regulatory inteipretation of factors (vii) and (x) of 40 C.F.R. § 261.-11(a)(3), i.e., the NRDC’s challenge that the EPA failed to consider improper management of used oil and wrongly presumed that waste management would always be conducted in compliance with every regulatory stricture. The wider thrust of £he NRDC’s first challenge, however, was not lost on the EPA.
In its responding brief, the EPA argued that it “considered the impact of existing federal regulatory programs on the management and disposal of used oil,” that used oil exhibiting a hazardous characteristic “was already subject to RCRA” regulation and that
[w]ith respect to the remaining used oils, which do not exhibit the toxicity characteristic, the [a]gency concluded that a variety of federal regulations control the plausible types of improper management to which used oil could be subjected to a sufficient extent so that there is no substantial threat to human health or the environment from the improper management of used oil.
Brief for Respondent at 12 (citations omitted). The agency, according to the EPA’s brief, “relied on [the regulations’] cumulative impact,” id. at 13, “considered scenarios that were unregulated,” id. at 14, and “concluded that existing federal regulations controlling the management and disposal of used oil were sufficient to avoid any substantial risk that the improper management of used oil could cause harms to human health or the environment,” id. at 17. In support of its conclusion, the EPA then presented the same roadmap of the regulatory landscape upon which it had relied in the rulemaking. Id. at 19-21. It also mustered the only “factual” support ever noted for its decision to ignore the documented mismanagement scenarios, arguing “that the mismanagement incidents described in the 1991 Notice ... occurred prior to many of these regulations.” Id. at 21 n. 16. The EPA ended by reiterating that “[a]fter evaluating all available information, EPA rejected [the] option [to list used oil as hazardous].” Id. at 36.
At this point, the NRDC, I believe, was entitled in its reply brief to elaborate upon *1079its original challenge that the EPA had ignored scores of documented instances of mismanagement. Its actual retort that indeed there was no “available” information supporting the EPA’s conclusion that the current regulatory scheme was successfully protecting the environment and controlling plausible scenarios of mismanagement was a reasonable counter to the EPA’s assertion that existing regulations were adequate to the task. The NRDC repeated its initial thrust, arguing that “[t]o the contrary, the administrative record is stacked high with reports documenting that improper management of used oil has caused, and continues to pose, substantial environmental hazards.” Reply Brief for Petitioners at 11-12 (citations omitted). According to the NRDC, the reported damage incidents were “as recent as the administrative record could contain,” id. at 12, and the EPA itself had found earlier that mismanagement occurred despite existing laws, id. at 13. The NRDC concluded that “[t]here is not one report in the record — not one iota of evidence — to support EPA’s conclusion that current laws adequately control used oil mismanagement.” Id. at 14.
Contrary to the majority, I do not believe this is an appropriate instance for invoking our prudential doctrine that we will not consider arguments made for the first time in a reply brief. See Majority Opinion (“Maj. Op.”) at 1071-72 n. 4. The basis for that rule is, of course, that allowing novel arguments to be introduced so late would be “manifestly unfair to the appellee who, under our rules, has no opportunity for a written response,” and would “risk the possibility ‘of an improvident or ill-advised opinion.’ ” Herbert v. National Academy of Sciences, 974 F.2d 192, 196 (D.C.Cir.1992) (quoting McBride v. Merrell Dow and Pharmaceuticals, Inc., 800 F.2d 1208, 1211 (D.C.Cir.1986)). Here, in contrast, we risk reaching an improvident outcome by refusing to review the factual basis (or lack thereof) for the EPA’s decision.
This is not a case where the EPA lacked notice of the NRDC’s challenge to the record evidence supporting a no-list decision. In addition to the fact that the NRDC’s challenge to the record sufficiency appeared in its opening brief, the EPA already had abundant notice of petitioners’ position that no such evidence existed as a result of extensive comments during the rulemaking. During the rulemaking, petitioners flat out challenged that the EPA had absolutely no record evidence supporting a no-list decision. For example, after discussing mismanagement scenarios, the Safety-Kleen Corporation maintained that “[t]he Agency’s previous and new data do not support the option of not listing used oil” and that “[tjhere is no factual or regulatory basis for Option Three.” Comments of Safety-Kleen Corp. at 9 (Nov. 6, 1991), reprinted in Supp.A. 59, 68. The Evergreen Oil Company similarly argued that “[t]he factual record simply does not support a no or limited listing decision.” Comments of Evergreen Oil, Inc. at 29 (Supp.A. 99).
To hide behind our prudential rule of not recognizing arguments raised for the first time in a reply brief, then, sidesteps an issue that was adequately raised in the dialogue between petitioners and respondents in this ease.2 I am “confirmed in this belief by the fact that the [EPA] itself never claimed to have been deprived of reasonable notice” of the NRDC’s inadequate evidence claim. Bangor Hydro-Elec. Co. v. Federal Energy Regulatory Comm’n, 925 F.2d 465, 467 n. * (D.C.Cir.1991).3
This point is important because, as I read the record, the NRDC’s challenge to record evidence for a no-list decision prevails on the *1080merits. Only recently we held that the EPA could not presume without evidentiary support that hazardous waste would be managed in a particular, undesirable manner. Edison Elec. Inst. v. EPA, 2 F.3d 438 (D.C.Cir.1998). In that case the “record evidence on which EPA relie[d did] not demonstrate” that the wastes to be regulated “ha[d] ever been disposed of’ in the manner projected by the EPA. Id. at 446. We held that “the [a]gen-cy must at least provide some factual support for its conclusion that such a mismanagement scenario is plausible.” Id. I see no reason why the same standard should not apply equally to projected good management as to bad. Here, while the EPA has laid down the framework of environmental regulation with respect to used oil, it has not yet cited to any assessment or evaluation in the record of whether, empirically, the current regulatory scheme renders mismanagement sufficiently “implausible” so as to justify a no-list decision. So far, it has simply sketched out the regulatory landscape — the abstract theory, not practice. It has in no Avise met the NRDC’s challenge that mismanagement scenarios continue to occur even -with the regulations in place. I would remand for a fuller explanation and discussion of that challenge before permitting the EPA to rely upon that factor to demonstrate that listing is unnecessary.4
III. Conclusion
Over the course of the last fifteen years the EPA has repeatedly announced that it would seek listing used oil as hazardous under the RCRA. Each time it began its venture Arith a host of reasons arguing in favor of a decision to list, and each time it ended its rulemaking in Arithdrawal. In the latest effort, the EPA has, I believe, failed to provide adequate factual cover for its final retreat. I would therefore remand the case to the EPA for a fuller explanation of its decision, including an assessment of the success of the current regulatory regime in preventing used oil from contaminating our environment. The majority avoids that result by relying upon a prudential rule of pleading I think to be inappropriately invoked here especially in view of the high stakes involved for clean air, soil, and groundwater. The EPA needs to make its ease that existing regulation of used oil is enough; to require less would turn rulemaking and appellate review into a game of hide and seek, in this case more hide than seek.
. This claim was somewhat surprising in light of the agency's 1980 statement that the "EPA does not agree with the largely unsubstantiated claims of commenters that controlling the use and recycling of hazardous waste will necessarily discourage bona fide, environmentally sound re-use and reclamation activities.... Commenters' claims about the chilling effect of regulating recycle and re-use activities also seem somewhat exaggerated. In many cases, Federal or State regulation of these activities should legitimatize, not stigmatize, them in the eyes of the public and increase the flow of wastes to well-operated facilities.” 45 Fed.Reg. 33,084, 33,092 (May 19, 1980).
. Given that reasonable minds may differ on how clearly the NRDC's opening brief challenged the evidentiary support for a no-list decision, we could well have ordered supplemental briefing to provide the EPA with an additional opportunity to address this important and consequential issue.
. We have even said,
[Nlotwithstanding the requirements of Federal Rule of Appellate Procedure 28, regarding the contents of briefs on appeal, we may also consider points not raised in the briefs or in oral argument. Our willingness to do so rests on a balancing of considerations of judicial orderliness and efficiency against the need for the greatest possible accuracy in judicial decision-making. The latter factor is of particular weight when the decision affects the broad public interest.
*1080Consumers Union of United States, Inc. v. Federal Power Comm’n, 510 F.2d 656, 662 (D.C.Cir.1975) (footnotes omitted).
. The NRDC also urges that the EPA may not presume waste generators' compliance with applicable regulations, but must indeed posit that other regulations are being ignored. The majority rejects consideration of this challenge on the basis that it was not properly raised below. See Maj.Op. at 1073-1074. Because I would remand the case on the grounds discussed in the text, I find no reason to discuss this regulatory interpretation claim in any detail. I note only that this claim appears to run counter to the language of the regulations which expressly permits the EPA to consider other regulatory schemes, 40 C.F.R. § 261.11(a)(3)(x), and "plausible” scenarios of mismanagement, id. at § 261.1 l(a)(3)(vii), in deciding whether to list any given waste as hazardous. We would effectively be excising these two factors from the regulations were we to require that the EPA always posit the complete ineffectiveness of every other regulatory system. Cf. United States v. Menasche, 348 U.S. 528, 538-39, 75 S.Ct. 513, 519-20, 99 L.Ed. 615 (1955) (applying principle of statutory construction "to give effect, if possible, to every clause and word of a statute” (internal quotes and citation omitted)).