United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued January 18, 2007 Decided March 13, 2007
No. 03-1202
SIERRA CLUB,
PETITIONER
v.
ENVIRONMENTAL PROTECTION AGENCY,
RESPONDENT
BRICK INDUSTRY ASSOCIATION, ET AL.,
INTERVENORS
Consolidated with
06-1013
On Petitions for Review of an Order of the
Environmental Protection Agency
James S. Pew argued the cause and filed the briefs for
petitioner.
Eric G. Hostetler, Attorney, U.S. Department of Justice,
argued the cause for respondent. With him on the brief was
John C. Cruden, Deputy Assistant Attorney. Kerry E. Rodgers,
Attorney, U.S. Environmental Protection Agency, entered an
2
appearance.
Christopher L. Rissetto and Howard L. Gilberg were on the
brief for intervenors the Brick Industry Association, et al. in
support of respondent.
Before: GINSBURG, Chief Judge, TATEL, Circuit Judge, and
WILLIAMS, Senior Circuit Judge.
Opinion for the Court filed PER CURIAM.
Concurring opinion filed by Senior Circuit Judge
WILLIAMS.
PER CURIAM: In this case, the Sierra Club challenges the
Environmental Protection Agency’s air pollution standards for
brick and ceramics kilns. Because most of the standards violate
the Clean Air Act as interpreted by this Court in Cement Kiln
Recycling Coalition v. EPA, 255 F.3d 855 (D.C. Cir. 2001) (per
curiam), and National Lime Ass’n v. EPA, 233 F.3d 625 (D.C.
Cir. 2000), and because the remaining standards violate the
Act’s requirements for “work practice standards,” we vacate the
standards in their entirety and remand for further proceedings
consistent with this opinion.
I.
The Clean Air Act, 42 U.S.C. §§ 7401-7671q, directs the
Environmental Protection Agency to establish emission
standards for “major sources” of hazardous air pollutants listed
in the statute. Id. § 7412(d)(1). In Cement Kiln, we described
the Act as follows:
Until 1990, the Clean Air Act . . . required
the Environmental Protection Agency to set risk-
3
based air pollution standards that would provide
an “ample margin of safety to protect the public
health.” Id. § 7412(b)(1)(B); see also H.R. REP.
NO. 101-490, at 151, 322 (1990). To address
problems with the implementation of risk-based
regulation, Congress amended the Act in 1990 to
require EPA to set the most stringent standards
achievable, 42 U.S.C. § 7412(d)(2), that is,
standards “based on the maximum reduction in
emissions which can be achieved by application
of [the] best available control technology.”
S.REP. NO. 101-228, at 133 (1989), U.S. Code
Cong. & Admin. News at 3385, 3518.
The 1990 amendments included . . . 42
U.S.C. § 7412(d)—which directs EPA to set
standards limiting emissions of listed hazardous
air pollutants (“HAPs”), id. §§ 7412(b), (c)(1)-
(2), from major stationary sources. Section
7412(d)(2) provides that:
Emission standards . . . shall
require the maximum degree of
reduction in emissions of the
hazardous air pollutants subject
to this section . . . that the
Administrator, 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 . . . .
4
Supplementing this general guidance, Congress
imposed minimum stringency
requirements—EPA calls them “emission
floors”—which “apply without regard to either
costs or the other factors and methods listed in
section 7412(d)(2).” Nat’l Lime Ass’n v. EPA,
233 F.3d 625, 629 (D.C. Cir. 2000) (“National
Lime II”). For “new sources”— . . . sources on
which construction begins after EPA publishes
emission standards, 42 U.S.C.
§ 7411(a)(2)—“[t]he maximum degree of
reduction in emissions that is deemed achievable
. . . shall not be less stringent than the emission
control that is achieved in practice by the best
controlled similar source . . . .” Id. § 7412(d)(3).
For existing sources, what EPA deems
achievable “shall not be less stringent than[] the
average emission limitation achieved by the best
performing 12 percent of the existing sources
(for which the Administrator has emissions
information) . . . .” Id. As we explained in
National Lime II, EPA implements these
requirements through a two-step process: the
Agency first sets emission floors for each
pollutant and source category and then
determines whether stricter standards, known as
“beyond-the-floor” limits, are achievable in light
of the factors listed in section 7412(d)(2).
233 F.3d at 629.
Cement Kiln, 255 F.3d at 857-58.
In Cement Kiln we considered the Sierra Club’s argument
that EPA’s emission floors for hazardous waste combustors
violated section 7412(d)(3) of the Act, the provision at issue in
5
this case. Id. at 859. For existing sources, EPA had identified
the best-performing 12 percent of sources for which it had
information. Among these sources, EPA then identified the
median source’s emission control technology, which it called the
“maximum achievable control technology”—or “MACT
control”—as the “average” emission limitation of the best
performers. Id.; see 42 U.S.C. § 7412(d)(3)(A). EPA next
identified the worst-performing source using the MACT control
and set the floor at the emission level of that source. 255 F.3d
at 859. For new sources, EPA followed the same approach,
except that instead of using the technology of the median source
as the MACT control, it used the technology of the single best-
performing source. Id.; see 42 U.S.C. § 7412(d)(3).
The Sierra Club argued that this technology-based approach
violated section 7412(d)(3)’s requirement that floors reflect
emissions actually “achieved” or “achieved in practice” by the
best-performing sources. 255 F.3d at 861. In response, EPA
argued that section 7412(d)(3)’s floor provision “is a gloss” on
section 7412(d)(2), which requires that beyond-the-floor
emission standards be “achievable” by all sources, based on
costs and other factors. Id. According to EPA, section
7412(d)(3) incorporates section 7412(d)(2)’s achievability
requirement, meaning that emission floors must also be
achievable by all sources. Id. We rejected EPA’s interpretation,
finding it to be an impermissible reading of the statute’s
unambiguous language:
Section 7412(d)(3) . . . limits the scope of the
word “achievable” in section 7412(d)(2). While
standards achievable by all sources using the
MACT control might also ultimately reflect what
the statutorily relevant sources achieve in
practice, EPA may not deviate from section
7412(d)(3)’s requirement that floors reflect what
6
the best performers actually achieve by claiming
that floors must be achievable by all sources
using MACT technology.
Id. (citing Chevron U.S.A., Inc. v. Natural Res. Def. Council,
467 U.S. 837, 842-43 (1984) (holding that if Congress has
spoken directly to the disputed issue of statutory construction,
“that is the end of the matter; for the court, as well as the
agency, must give effect to the unambiguously expressed intent
of Congress”)); see also Ne. Md. Waste Disposal Auth. v. EPA,
358 F.3d 936, 955 (D.C. Cir. 2004) (per curiam) (reiterating that
floors based on achievability cannot satisfy the statute’s actual
achievement requirement). EPA chose not to file a petition for
rehearing en banc or to seek Supreme Court review.
Cement Kiln was not the first time this court invalidated an
EPA interpretation of section 7412(d)(3). Six months earlier, in
National Lime II, we considered the Sierra Club’s challenge to
EPA’s setting of “no control” floors—that is, no emission floors
at all—for certain HAPs emitted by cement plants. 233 F.3d at
633-34. Defending its decision, EPA relied on Sierra Club v.
EPA, 167 F.3d 658 (D.C. Cir. 1999) (“Sierra”), in which we
explained that “EPA would be justified in setting the floors at a
level that is a reasonable estimate of the performance of the
‘best controlled similar unit’ under the worst reasonably
foreseeable circumstances.” Id. at 665. Based on Sierra, EPA
argued that because cement plants used no emission control
technology, “no control” floors reasonably estimated variability
among the best performers. National Lime II, 233 F.3d at 633.
We found EPA’s interpretation of the statute untenable:
Nothing in the statute even suggests that EPA
may set emission levels only for those listed
HAPs controlled with technology. To the
contrary, the statute . . . requires EPA to
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“promulgate regulations establishing emission
standards for each category or subcategory of
major sources . . . of hazardous air pollutants
listed for regulation.” [42 U.S.C.] § 7412(d)(1).
...
Contrary to EPA’s argument, nothing in
Sierra relieves it of the clear statutory obligation
to set emission standards for each listed HAP.
Although Sierra permits the Agency to look at
technological controls to set emission standards,
see 167 F.3d at 665, it does not say that EPA
may avoid setting standards for HAPs not
controlled with technology.
Id. at 633-34. Following the panel decision, EPA filed an
unsuccessful petition for rehearing, Nat’l Lime Ass’n v. EPA,
No. 99-1325 (D.C. Cir. Feb. 14, 2001) (order denying
rehearing), but again sought neither en banc nor Supreme Court
review.
With this background in mind, we turn to the facts of this
case. At issue are EPA’s emission standards for brick and
structural clay products (BSCP) kilns and clay ceramics kilns.
Over 500 brick kilns and more than 50 ceramics kilns operate
throughout the United States. BSCPs include brick, clay pipe,
and clay roof tile; ceramics include tile and sanitaryware, such
as toilets and sinks. Production of BSCPs and ceramics involves
processing common clays and shales and forming and firing
shapes. Because transporting clays and shales over long
distances is infeasible, kilns are located close to the mines
supplying the clays and shales used in their products. BSCPs
and ceramics are fired in one of two types of kilns: those that
operate continuously, which include “tunnel” and “roller” kilns;
and those that operate in batch cycles, known as “periodic”
8
kilns. EPA divided brick kilns into three subcategories: large
tunnel brick kilns, small tunnel brick kilns, and periodic brick
kilns. It divided ceramics kilns into four subcategories: large
tunnel ceramics kilns, small tunnel ceramics kilns, roller
ceramics kilns, and periodic ceramics kilns. Reflecting the
different standards set forth in sections 7412(d)(3) and
7412(d)(3)(A), EPA further divided each subcategory into new
and existing kilns.
Each year, brick and ceramics kilns emit over 6,440 tons of
HAPs, including hydrofluoric acid, hydrochloric acid, and
particulate matter containing toxic metals, such as antimony,
arsenic, beryllium, cadmium, chromium, cobalt, lead,
manganese, nickel, and selenium. These HAPs can cause severe
respiratory problems, cancer, neurological and organ damage,
and adverse reproductive effects. National Emission Standards
for Hazardous Air Pollutants for Brick and Structural Clay
Products Manufacturing and Clay Ceramics Manufacturing,
68 Fed. Reg. 26,690, 26,692-94 (May 16, 2003) (to be codified
at 40 C.F.R. pt. 63).
In 2002, EPA issued a proposed rule setting floors to limit
HAP emissions from new and existing brick and ceramics kilns.
National Emission Standards for Hazardous Air Pollutants for
Brick and Structural Clay Products Manufacturing and Clay
Ceramics Manufacturing, 67 Fed. Reg. 47,894 (proposed July
22, 2002) (to be codified at 40 C.F.R. pt. 63). For the
subcategories in which few or no kilns use air pollution control
devices, EPA proposed floors of “no emissions reductions”—in
other words, no floors at all. Id. at 47,909, 47,912, 47,916-17.
For all remaining subcategories, EPA proposed floors based on
the pollution control devices used by the best-performing kilns,
i.e., those with the lowest emissions. Id. at 47,911, 47,912,
47,917. In their comments on the proposed regulations, industry
members insisted that installing the devices used by the best-
9
performing sources would be technologically and economically
infeasible. For its part, the Sierra Club complained that EPA
had failed to consider non-technology factors—e.g., fuel type,
raw materials, additives and surface coatings, kiln design, and
operator training—that contribute to emissions. U.S. Envtl.
Prot. Agency, National Emission Standards for Hazardous Air
Pollutants for Brick and Structural Clay Products
Manufacturing: Summary of Public Comments and Responses
2-40 (Feb. 28, 2003) (hereinafter “Summary of Public
Comments”).
In response to these comments, EPA’s final emission
standards set floors for several subcategories based on the
pollution control devices used by the second-best
performers—not, as EPA had proposed, the best
performers—and replaced “no emissions reductions” floors in
other subcategories with a so-called “work practice standard” of
using clean-burning fuels. 68 Fed. Reg. at 26,699-26,701,
26712-13; see 42 U.S.C. § 7412(h) (explaining requirements for
setting work practice standards in lieu of emission standards).
The Sierra Club filed a petition for reconsideration, but EPA
adhered to its standards. National Emission Standards for
Hazardous Air Pollutants for Brick and Structural Clay Products
Manufacturing, 70 Fed. Reg. 69,655, 69,657 (reconsidered Nov.
17, 2005) (to be codified at 40 C.F.R. pt. 63).
The Sierra Club now petitions for review. See 42 U.S.C.
§ 7607(b)(1) (authorizing petitions for review of EPA’s
promulgation of emission standards). The Brick Industry
Association and two ceramics producers intervene in support of
EPA.
10
II.
The Sierra Club argues that EPA’s methodology in setting
floors for brick and ceramics kilns violates the Clean Air Act’s
plain language as interpreted by Cement Kiln and National Lime
II. We agree. See Nat’l Cable & Telecomms. Ass’n v. Brand X
Internet Servs., 545 U.S. 967, 982 (2005) (“A court’s prior
judicial construction of a statute trumps an agency construction
. . . if the prior court decision holds that its construction follows
from the unambiguous terms of the statute.”).
“Achieved,” not “Achievable”
As discussed above, we held in Cement Kiln that “EPA may
not deviate from section 7412(d)(3)’s requirement that floors
reflect what the best performers actually achieve by claiming
that floors must be achievable by all sources using MACT
technology.” 255 F.3d at 861. In setting the floor for existing
large tunnel brick kilns, however, EPA did just that.
Most large tunnel brick kilns that have installed air
pollution control devices use dry lime adsorbers (DLA). Others
use non-DLA technology, including dry lime injection fabric
filters (DIFF), dry lime scrubber/fabric filters (DLS/FF), and wet
scrubbers (WS). In its notice of proposed rulemaking, EPA
concluded that these non-DLA pollution control devices
“represent[ed] the best control[].” 67 Fed Reg. at 47,907.
Because the 94th percentile (the median of the top 12 percent)
of the best-performing large tunnel brick kilns used non-DLA
technology, EPA—as required by Cement Kiln—proposed a
floor based on this technology. Id. at 47,911. But after
receiving “numerous comments from industry representatives”
saying that kilns were unable to retrofit with WS because of a
lack of sewer access to treat wastewater from the device, or with
DIFF or DLS/FF without affecting production, EPA changed
11
course in its final rule. 68 Fed. Reg. at 26,694. Finding that
non-DLA technology would have “potentially significant
impacts on the production process,” id. at 26,695, and contrary
to Cement Kiln’s requirement that floors reflect emission levels
of the best-performing sources, EPA excluded non-DLA
technology from its ranking of best-performing kilns, id. at
26,700. It then set the floor for existing large tunnel brick kilns
based on DLA. Id.
EPA argues that it has “reasonably construe[d] the term
‘best performing’ . . . to allow it to consider whether retrofitting
kilns with a particular pollution control technology is technically
feasible.” Resp’t’s Br. 27. But EPA cannot circumvent Cement
Kiln’s holding that section 7412(d)(3) requires floors based on
the emission level actually achieved by the best performers
(those with the lowest emission levels), not the emission level
achievable by all sources, simply by redefining “best
performing” to mean those sources with emission levels
achievable by all sources. See 255 F.3d at 861. Moreover,
EPA’s rationales for excluding kilns equipped with non-DLA
technology from its ranking of the best-performing large tunnel
kilns (the infeasibility of retrofitting all kilns with certain non-
DLA technology and the negative impact other non-DLA
technology would have on productivity) amount to nothing more
than a concern about ensuring that its floor is achievable by all
kilns in the subcategory—precisely the position we rejected in
Cement Kiln.
III.
EPA’s emission standards run counter to Cement Kiln and
National Lime II in several other respects—all variations on the
Agency’s fundamental failure to set floors at the emission levels
actually achieved by the best-performing sources.
12
Variability
In Cement Kiln we declared unlawful EPA’s method of
estimating variability among the best performers by lowering
floors to the level of the worst performer using the same
technology. We explained:
[W]e are unpersuaded by EPA’s claim that to
account for the best-performing sources’
operational variability, it had to base the floors
on the worst performers’ emissions. While we
have recognized that a given control can
experience operational variability, the relevant
question here is not whether control technologies
experience variability at all, but whether the
variability experienced by the best-performing
sources can be estimated by relying on emissions
data from the worst-performing sources using the
MACT control. In this case, the evidence EPA
cites to support the MACT approach as a means
of accounting for operational variability fails to
demonstrate the relevant relationship. Some of
the Agency’s citations to the record merely
contain assertions that “[the] approach . . . fully
accounts for normal process variability.” The
actual variability data EPA cites suggest only
that emissions from sources using a given
control vary over a wide range, not that the high
emission levels achieved by sources at one end
of that range reflect levels achieved by sources at
the other end, nor that the best-performing
sources ever experience a wide range of
variability at all.
255 F.3d at 865 (citations omitted).
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Here, EPA used the same flawed process to set floors for
new large and small tunnel brick and ceramics kilns, as well as
for existing large tunnel brick kilns. In its rulemaking, EPA
explained that it “used the highest emission level associated with
the[] best performers [i.e., all DLA-controlled kilns] to set the
emission standard because it was [EPA’s] intent to set emission
limits that reflect the performance that the best-controlled
sources continually achieve considering variability.” 68 Fed.
Reg. at 26,700 (justifying technology-based approach for
existing kilns); see also Summary of Public Comments at 2-54
(same, with regard to new kilns). Citing a range of emission
datapoints from a single DLA-equipped kiln, EPA explained
that “[a]ll sources, including the best-controlled sources, have
variability in emissions.” 68 Fed. Reg. at 26,700. Because these
reasons for using the emission level achieved by the worst-
performing kilns to predict the variability of the best performers
differ little from the reasons EPA gave in Cement Kiln, this
element of the Agency’s floor-setting methodology is similarly
unlawful.
Defending its approach, EPA points to Mossville
Environmental Action Now v. EPA, 370 F.3d 1232 (D.C. Cir.
2004), in which we held that floors may legitimately account for
variability because “each [source] must meet the [specified]
standard every day and under all operating conditions.” Id. at
1242. In Mossville, however, record evidence demonstrated that
the floor reasonably estimated the actual variability of the best-
performing source. Id. (noting “factual data” that a standard
based on the worst-performing sources “reasonably estimates
the performance of the top performers”). Here, by contrast,
although EPA has some evidence that the best performers
experience variability, it has failed to show that the emission
levels achieved by the worst performers using a given pollution
control device actually predict the range of emission levels
achieved by the best performers using that device. Given
14
Cement Kiln’s holding that EPA may not use emission levels of
the worst performers to estimate variability of the best
performers without a demonstrated relationship between the
two, we conclude that the emission floors for new large and
small tunnel brick and ceramics kilns, as well as for existing
large tunnel brick kilns, violate the Act.
Non-technology Factors
In Cement Kiln, we rejected EPA’s MACT approach to
setting floors given record evidence that factors other than
technology affected emissions. 255 F.3d at 863-65. In doing so,
we noted our conclusion in National Lime II that the MACT
methodology, a purely technology-based approach, would
satisfy the Clean Air Act “if pollution control technology were
the only factor determining emission levels of that HAP.” Id. at
863 (quoting National Lime II, 233 F.3d at 633). We were
unpersuaded by EPA’s twin justifications for refusing to
consider the effect of other factors on emissions, namely that the
effect proved “impossible to reliably quantify,” id. at 865, and
that “floors must be achievable by all sources using MACT
technology,” id. at 864. We explained:
[I]f factors other than MACT technology do
indeed influence a source’s performance, it is not
sufficient that EPA considered sources using
only . . . MACT controls. . . .
Even accepting the proposition that factors
affecting source performance . . . are difficult to
quantify when defining the MACT control,
nothing in the statute requires EPA to use the
MACT approach. Section 7412(d)(3) requires
only that EPA set floors at the emission level
achieved by the best-performing sources. If EPA
15
cannot meet this requirement using the MACT
methodology, it must devise a different approach
capable of producing floors that satisfy the Clean
Air Act.
Id. at 864-65.
EPA’s emission standards for existing large tunnel brick
kilns and new large and small tunnel brick and ceramics kilns
suffer from the same defect (in addition to the defects noted
above). In its rulemaking, EPA noted that it had reviewed non-
technology pollution prevention techniques—in particular the
substitution of fuels and clays with lower amounts of hazardous
constituents. It found that fuel type had no appreciable effect on
emissions, that transporting clays over long distances was
impractical, and that changes in either could affect kilns’ ability
to duplicate their existing product lines. 68 Fed. Reg. at 26,699.
Given these findings, EPA set floors based only on pollution
control technology, explaining that “[w]hile we agree that
factors other than [technology] type can affect emissions, we do
not have the data to determine the specific degree of the effect
of factors other than [technology] on emissions, and we believe
that, for the BSCP industry, factors other than [technology] use
are not viable MACT floor . . . control options.” Id. Though
acknowledging that at least one non-technology factor, clay
type, had an appreciable effect on emissions, EPA has
articulated the same justifications it offered in Cement Kiln for
using technology-based floors, i.e., a lack of data to quantify the
effects of non-technology factors and a concern that floors based
on clean clay would be unachievable because of the inability of
kilns to switch clays. Id. These justifications are no more valid
here than they were in Cement Kiln.
EPA argues that the Clean Air Act’s command that it assess
the emission “control” or “limitation” “achieved” refers to the
16
deliberate steps kiln operators take to reduce emissions rather
than to the “happenstance” of being located near cleaner clay.
Resp’t’s Br. 33-34. Yet we squarely held in National Lime II
that the Clean Air Act requires neither an intentional action nor
a deliberate strategy to reduce emissions. As we explained,
“[t]he Clean Air Act requires the EPA to set MACT floors based
upon the ‘average emission limitation[s] achieved’; it nowhere
suggests that this achievement must be the product of a specific
intent.” 233 F.3d at 640 (citation omitted). EPA’s decision to
base floors exclusively on technology even though non-
technology factors affect emission levels thus violates the Act.
“No Control” Floors
As noted above, in National Lime II we found unlawful
EPA’s “no control” emission floors for categories in which the
best performers used no emission control technology. 233 F.3d
at 633-34. As we explained, EPA has a “clear statutory
obligation to set emission standards for each listed HAP,” which
does not allow it to “avoid setting standards for HAPs not
controlled with technology.” Id. at 634.
EPA’s failure to set floors for existing small tunnel brick
kilns and existing and new periodic brick kilns violates section
7412(d)(3) for precisely the same reason. EPA set “no
emissions reductions” floors for existing small tunnel brick kilns
because the 94th percentile kiln used no air pollution control
technology and because changes in non-technology factors were
not “appropriate” or “viable.” 67 Fed. Reg. at 47,909
(explaining EPA’s rationale for “no control” floors, which the
Agency later adopted in final rule). EPA also set “no emissions
reductions” floors for all periodic brick kilns, explaining that
they too use no pollution control technology. Id. Other than
again claiming that it has no obligation to set floors unless
sources take some deliberate action to control emissions, EPA
17
has failed to offer any reason for distinguishing what it did here
from what we invalidated in National Lime II.
IV.
This brings us to the one issue in this case controlled by
neither Cement Kiln nor National Lime II, namely EPA’s use of
so-called “work practice” standards instead of emission floors
for the remaining subcategories of kilns. Section 7412(h) of the
Clean Air Act provides that “if it is not feasible in the judgment
of the Administrator to prescribe or enforce an emission
standard . . . , the Administrator may, in lieu thereof, promulgate
a design, equipment, work practice, or operational standard.”
42 U.S.C. § 7412(h)(1). That section further explains that it is
“not feasible” to set an emission standard when “the application
of measurement methodology to a particular class of sources is
not practicable due to technological and economic limitations.”
Id. § 7412(h)(2)(B).
Invoking section 7412(h), EPA adopted the work practice
standard of using clean-burning fuels for existing ceramics kilns
and new periodic and roller ceramics kilns. 68 Fed. Reg. at
26,712, 26,713. To justify its use of work practice standards,
EPA pointed out that ceramics kilns, like periodic brick kilns,
use no pollution control devices and cannot feasibly substitute
clays. Rather than setting “no control” floors, however, EPA
imposed a clean-burning fuels standard. Id. According to EPA,
setting a more precise floor based on the emission levels
achieved by the use of clean-burning fuels was not feasible
given the absence of data necessary to make this calculation. Id.
at 26,712.
We agree with the Sierra Club that EPA’s use of work
practice standards instead of emission floors violates section
7412(h). That provision allows EPA to substitute work practice
18
standards for emission floors only if measuring emission levels
is technologically or economically impracticable. Here, EPA
never determined that measuring emissions from ceramics kilns
was impracticable; it determined only that it lacked emissions
data from ceramics kilns. EPA thus had no basis under section
7412(h) for using work practice standards. To be sure, as EPA
points out, because ceramics kilns already use clean-burning
fuels, the work practice standard would have no impact on their
products. For the same reason, of course, it would have no
impact on emissions.
V.
For the foregoing reasons, we vacate the emission standards
for both brick and ceramics kilns and remand for further
proceedings consistent with this opinion. If the Environmental
Protection Agency disagrees with the Clean Air Act’s
requirements for setting emissions standards, it should take its
concerns to Congress. If EPA disagrees with this court’s
interpretation of the Clean Air Act, it should seek rehearing en
banc or file a petition for a writ of certiorari. In the meantime,
it must obey the Clean Air Act as written by Congress and
interpreted by this court.
So ordered.
WILLIAMS, Senior Circuit Judge, concurring: I agree
entirely with the court’s opinion and write only to note a
paradox in the relationship between two key provisions of
§ 112 of the Clean Air Act.
Section 112(d)(2) calls for emissions standards that are
the most stringent that the EPA finds to be “achievable,”
taking into account a variety of factors including cost. 42
U.S.C. § 7412(d)(2); see Per Curiam at 3. Section 112(d)(3)
provides that the standards “shall not be less stringent” than
the emission controls that have been “achieved in practice.”
42 U.S.C. § 7412(d)(3); see Per Curiam at 4. The
“achievable” standards have come to be known as the
“beyond-the-floor” standards, see id. at 4, 5, meaning,
obviously, ones more stringent than the “floors” established
under § 112(d)(3). The language thus embodies an
assumption that standards based on achievability will be more
stringent than ones based merely on past achievement.
What if meeting the “floors” is extremely or even
prohibitively costly for particular plants because of conditions
specific to those plants (e.g., adoption of the necessary
technology requires very costly retrofitting, or the required
technology cannot, given local inputs whose use is essential,
achieve the “floor”)? For these plants, it would seem that
what has been “achieved” under § 112(d)(3) would not be
“achievable” under § 112(d)(2) in light of the latter’s mandate
to EPA to consider cost. (Notice that here EPA issued no
“beyond-the-floor” standards, and petitioner makes no
complaint on that score.) In other words, as applied to some
sources, the floor compelled by the statutory language appears
to be more stringent than “beyond-the-floor.”
If this were all, we might be talking of a statute whose
literal words produced a result so “demonstrably at odds with
the intentions of its drafters” as to justify judicial surgery. See
United States v. Ron Pair Enterprises, Inc., 489 U.S. 235, 242
2
(1989) (quoting Griffin v. Oceanic Contractors, Inc., 458 U.S.
564, 571 (1982)) (internal quotation marks omitted).
Happily § 112 is not such a statute. Section 112(d)(1)
authorizes the Administrator to “distinguish among classes,
types and sizes of sources within a category or subcategory,”
and the language of subsections 112(d)(2) and (3) pervasively
refers to standards for sources in each “category or
subcategory.” The authority to generate subcategories is
obviously not unqualified; at the least it must be limited by the
usual ideas of reasonableness. And there is not necessarily
any guarantee that, even with suitable subcategorization,
every source will be able to achieve standards that meet a
lawful application of § 112(d)(3) to reasonably defined
subcategories. Nonetheless, one legitimate basis for creating
additional subcategories must be the interest in keeping the
relation between “achieved” and “achievable” in accord with
common sense and the reasonable meaning of the statute.