Page 1

PORTLAND CEMENT ASSOCIATION, PETITIONER v. ENVIRONMENTAL 

PROTECTION AGENCY AND LISA PEREZ JACKSON, RESPONDENTS, CAPE 

FEAR RIVER WATCH, ET AL., INTERVENORS; PORTLAND CEMENT ASSOCIATION, PETITIONER v. ENVIRONMENTAL PROTECTION AGENCY 

AND LISA PEREZ JACKSON, RESPONDENTS, UTILITY SOLID WASTE ACTIVITIES GROUP, ET AL., INTERVENORS

No. 10-1358, Consolidated with 10-1363, 10-1366, 10-1367, 10-1369, 10-1373, 

10-1374, 10-1376, 10-1379, 11-1012, 11-1244, No. 10-1359, Consolidated with 

10-1361, 10-1364, 10-1365, 10-1368, 10-1370, 10-1372, 10-1375, 10-1377, 11-1245

UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA 

CIRCUIT

665 F.3d 177; 398 U.S. App. D.C. 397; 2011 U.S. App. LEXIS 24577; 73 ERC (BNA) 

1801; 42 ELR 20358

October 11, 2011, Argued 

December 9, 2011, Decided

SUBSEQUENT HISTORY: Related proceeding at, 

Petition granted by, in part, Petition denied by, in part 

NRDC v. EPA, 2014 U.S. App. LEXIS 7281 (D.C. Cir., 

Apr. 18, 2014)

PRIOR HISTORY: [***1]

 On Petitions for Review of a Final Action of the Environmental Protection Agency.

COUNSEL: Carter G. Phillips argued the causes for 

Industry Petitioners on NSPS and NESHAP Issues. With 

him on the briefs were Roger R. Martella, Jr., Timothy 

K. Webster, Deborah E. Jennings, Richard G. Stoll, Beth 

S. Ginsberg, Jason T. Morgan, William M. Bumpers, 

Debra J. Jezouit, Ashley C. Parrish, Cynthia A.M. Stroman, and Chet M. Thompson. Howard L. Gilberg and 

Roger J. Marzulla entered appearances.

David D. Doniger argued the cause for Environmental 

Petitioners and State Intervenors on NSPS Issues. With 

him on the briefs were Meleah Geertsma, Timothy D. 

Ballo, Joanne Marie Spalding, and Craig Holt Segall.

Kamala D. Harris, Attorney General, Office of the Attorney General for the State of California, Thomas G. 

Heller, Deputy Attorney General, John Kroger, Attorney 

General, Office of the Attorney General for the State of 

Oregon, Paul Logan, Assistant Attorney in Charge, Oregon Department of Justice, Robert M. McKenna, Attorney General, Office of the Attorney General for the State 

of Washington, and Leslie R. Seffern, Assistant Attorney 

General, were on the brief for state intervenors California, et al. in support [***2] of Environmental Petitioners. Susan L. Durbin, Attorney, Office of the Attorney 

General for the State of California, entered an appearance.

Julie A. Weis was on the brief for amici curiae Baker 

City and Baker County, Oregon, et al. in support of petitioners.

Russell S. Frye was on the brief for amicus curiae SSM 

Coalition in support of petitioners.

T. Monique Peoples and Daniel R. Dertke, Attorneys, 

U.S. Department of Justice, argued the causes for respondents on NSPS and NESHAP Issues. With them on 

the briefs were Steven Silverman and Elliott Zenick, 

Counsel, U.S. Environmental Protection Agency.

Carter G. Phillips argued the cause for Industry Intervenors in support of respondents. With him on the briefs 

were Roger R. Martella, Jr., Timothy K. Webster, Deborah E. Jennings, Richard G. Stoll, Beth S. Ginsberg, Jason T. Morgan, William M. Bumpers, Debra J. Jezouit, 

Norman W. Fichthorn, Allison D. Wood, Ashley C. Parrish, Cynthia A.M. Stroman, and Chet M. Thompson. 
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2011 U.S. App. LEXIS 24577, ***; 73 ERC (BNA) 1801

Douglas H. Green, Aaron J. Wallisch, and Willian R. 

Weissman entered appearances.

Timothy D. Ballo, Geoffrey R. Gisler, James S. Pew, 

Seth L. Johnson, Avinash Kar, Meleah Geertsma, and 

John D. Walke were on the briefs of Environmental 

[***3] Intervenors in support of respondents. John T. 

Suttles, Jr. and David D. Doniger entered appearances.

JUDGES: Before: HENDERSON, TATEL and 

BROWN, Circuit Judges. Concurring opinion filed by 

Circuit Judge BROWN.

OPINION

[*182] [**402] PER CURIAM: Pursuant to the 

Clean Air Act ("CAA"), the Environmental Protection 

Agency enacted twin rules in 2010 setting emissions 

standards for portland cement facilities--one under a section called National Emission Standards for Hazardous 

Air Pollutants (NESHAP), 42 U.S.C. § 7412(a)(4), the 

second under a section called New Source Performance 

Standards (NSPS), id. § 7411. Petitioners, Portland Cement Association and other cement manufacturers 

("PCA"), argue that both rules violate the CAA and are 

arbitrary and capricious. A consortium of environmental 

groups including the Sierra Club ("Environmental Petitioners") filed their own petition, arguing that EPA 

abused its discretion by declining to include greenhouse 

gas emissions standards in its NSPS rule.

For the reasons set forth below, we agree that EPA 

acted arbitrarily when it promulgated the final NESHAP 

rule and therefore grant PCA's petition for review with 

respect to EPA's denial of reconsideration on that issue. 

We also stay the [***4] NESHAP standards for clinker 

storage piles pending reconsideration by EPA. We deny 

PCA's petitions with respect to all other issues relating to 

NESHAP and NSPS, and dismiss Environmental Petitioners' petition for lack of jurisdiction.

I 

Portland cement, a fine gray powder used to make 

construction-grade concrete, is produced by combining 

raw materials in a kiln and heating the mixture to produce a substance called "clinker," which is then cooled 

and ground into powder. This kiln firing process causes 

the airborne emission of particulate matter ("PM"), as 

well as a number of other dangerous chemicals. Once 

produced, the clinker is stored in piles which may also 

continue to emit some hazardous chemicals.

There are three basic types of portland cement kilns. 

The first, called "long wet" or "long dry" process kilns, 

are the least efficient. These kilns, which tend to be older, simply heat raw materials as they pass through a large 

rotating cylinder. The second type of kiln, called a "preheater," is more modern and efficient. Preheater kilns 

preheat the raw materials by first passing them through a 

tower filled with hot exhaust gases. Finally, the most 

modern and efficient kilns, preheater/precalciner [***5]

kilns, are equipped with both preheater [*183] 

[**403] towers and a combustion vessel which heats 

raw materials at a high temperature before they reach the 

core of the kiln, removing moisture and undesirable 

compounds. Ultimately, the type of kiln directly affects 

the amount of uncontrolled pollutants emitted. For example, long wet and long dry process kilns emit between 

eight to ten times the amount of sulfur dioxide as preheater/precalciner kilns.

Two separate sections of the CAA, 42 U.S.C. § 7401 

et seq., require EPA to promulgate emissions standards 

for "stationary sources" of pollution such as cement 

kilns. The first, NESHAP, requires EPA to set emissions 

standards for both new and existing sources. Id. § 

7412(a)(4); (a)(10). The second, NSPS, requires EPA to 

set emissions standards for new and newly-modified 

sources. Id. § 7411. (A "modified" source, for the purposes of the CAA, is a source that has undergone a 

physical or operational change "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." Id. § 7411(a)(4)). Thus, although 

NESHAP and NSPS overlap as to regulation of new 

sources, NESHAP alone [***6] governs the regulation 

of existing sources, and NSPS alone governs the regulation of modified sources.

Pursuant to CAA Section 112, EPA sets NESHAP 

emissions limits in a two-stage process. First, EPA sets 

what it calls a "floor." For new sources, the floor is equal 

to the amount of emissions reduction "achieved in practice by the best controlled similar source." 42 U.S.C. § 

7412(d)(3). For existing sources, the floor equals the 

amount of emissions reduction "achieved [on average] by 

the best performing 12 percent of the existing sources 

(for which the Administrator has emissions information)" 

in the source category. Id. If the category contains fewer 

than 30 sources, the floor is to be set based on the 

amount of emissions reduction achieved by the best performing five sources for which the Administrator has 

emissions information. Id. NESHAP emissions standards 

"shall not be less stringent than" this floor. Id. Second, 

EPA may go "beyond-the-floor" and set a more stringent 

standard if, taking cost and other factors into account, it 

determines that such a standard would be "achievable." 

Id. § 7412(d)(2); see also Cement Kiln Recycling Coalition v. EPA, 255 F.3d 855, 857-58, 347 U.S. App. D.C. 

127 (D.C. Cir. 2001) [***7] (describing the two-step 

regulatory framework and noting that "floors" apply 

"without regard to either costs or . . . other factors," but 
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2011 U.S. App. LEXIS 24577, ***; 73 ERC (BNA) 1801

that EPA may set limits "beyond-the-floor" if it takes 

cost and other factors into account). The promulgated 

NESHAP standard is known as the "maximum achievable control technology" or "MACT."

Under NSPS, however, EPA is required to set 

standards for emissions that "reflect[] the degree of 

emission limitation achievable through the application of 

the best system of emission reduction." 42 U.S.C. § 

7411(a)(1). In contrast to NESHAP's two-stage process, 

under which EPA is prohibited from considering cost, 

achievability, or countervailing considerations at step 

one, NSPS requires EPA take into account the "cost of 

achieving" emissions reductions, as well as health, environmental, and energy considerations. Id. § 7411(a)(1).

In June 2008, EPA initiated two rulemaking procedures to revise emissions standards for the portland cement industry: one under NESHAP and one under NSPS. 

Following a comment period, these rules were finalized 

in September 2010. In the NESHAP rule, EPA set standards for new sources and existing sources for emissions 

of PM, mercury, [***8] hydrochloric acid, and hydrocarbons. EPA did not go [*184] [**404] "beyond-the-floor," so these standards are instead equal to 

the respective floors. Because the rulemaking took place 

entirely at the first NESHAP step, EPA did not--because 

it could not at that step--take into account cost or other 

considerations.

In the NSPS rule, EPA, for the first time, set standards for both new and modified sources for emissions of 

nitrogen oxide and sulfur dioxide. In addition, EPA revised its existing NSPS emissions standard for PM, setting a limit of 0.01 pounds of PM emitted per ton of 

clinker produced. EPA concluded that this revised PM 

standard was achievable if kilns installed a particular 

type of pollution control technology: fabric filters with 

membrane bags.

EPA declined to include emissions standards for

carbon dioxide or other greenhouse gases in its final 

NSPS rule. Explaining its decision to omit such standards, EPA noted that because it had proposed no specific 

emissions standard for greenhouse gases in the proposed 

regulations, "promulgating such a standard without 

providing opportunity to comment on it would . . . violate the norms of notice and comment rulemaking." 75 

Fed. Reg. 54,970, 54,996 (Sept. 9, 2010). [***9]

Moreover, although EPA's "preliminary evaluation" indicated "it may be appropriate for the Agency to set a 

standard of performance for greenhouse gases," EPA 

determined that it did "not yet have adequate information 

about greenhouse gas emissions to set a standard." Id. at 

54,996-97. EPA then identified specific types of pertinent information it was lacking, such as information 

about greenhouse gas emissions from cement plants and 

site-specific factors that could affect the performance of 

emissions controls. Id. at 54,997. EPA concluded by 

stating that it was "working towards a proposal for 

greenhouse gas standards," which it would promulgate 

after receiving additional information from cement facilities. Id.

PCA sought administrative reconsideration of both 

the NESHAP and NSPS rules. EPA denied PCA's petitions for reconsideration on all but two issues. First, EPA 

granted PCA's petition for reconsideration of emissions 

regulations for outdoor clinker storage piles, holding that 

"petitioners are correct that the Agency did not give sufficient notice of what [clinker storage pile] standards 

might be." 76 Fed. Reg. 28,318, 28,325 (May 17, 2011). 

Second, EPA granted PCA's petition for reconsideration 

[***10] of the NSPS PM emissions standards for modified sources. Although PCA asked EPA to stay both 

standards pending reconsideration, EPA declined to do 

so.

PCA subsequently filed the instant petitions for review of both the rules themselves and EPA's denials of 

reconsideration. Environmental Petitioners filed their 

own petition challenging EPA's decision not to include 

greenhouse gas emissions standards in its final NSPS 

rule. PCA intervened on behalf of EPA on this issue.

II 

While EPA was establishing the NESHAP standards 

at issue in this case, it was simultaneously developing a 

definition of commercial and industrial solid waste incinerators ("CISWI"). This definition would create a 

separate category of pollutant sources subject to emissions standards distinct from NESHAP. This rulemaking 

process, which EPA described as "relevant" to NESHAP, 

would impact the NESHAP rulemaking because some 

cement kilns "combust secondary materials [like solid 

waste] as alternative fuels." Such kilns would be subject 

to standards under the CISWI rules rather than under the 

NESHAP rules, since the two regimes are mutually exclusive. 74 Fed. Reg. 21,136, 21,138 [*185] [**405] 

(May 6, 2009); see also 42 U.S.C. § 7429(h)(2) [***11]

(requiring exclusivity); NRDC v. EPA, 489 F.3d 1250, 

1260-61, 376 U.S. App. D.C. 414 (D.C. Cir. 2007)

(same). EPA proposed the CISWI definition ten months 

after the close of the NESHAP comment period but three 

months before the final NESHAP rule was issued. The 

CISWI definition was enacted six months after the 

NESHAP rule became final.

PCA argues that EPA improperly ignored this ongoing CISWI process when it set the NESHAP standards. EPA realized the CISWI definition could potentially impact the NESHAP rule, since under the proposed 

definition, EPA could reclassify close to a third of all 
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2011 U.S. App. LEXIS 24577, ***; 73 ERC (BNA) 1801

cement kilns out of NESHAP and into CISWI.1(In fact, 

PCA notes that some of the best performing sources central to the setting of the NESHAP floor are excised from 

the NESHAP universe altogether under the new CISWI 

rule.) But EPA was unconcerned that its NESHAP 

floor-setting calculations might include sources that actually would not be subject to the NESHAP standard 

once the rules were completed. Instead of treating the 

two rules as truly interdependent efforts and acknowledging their close correlation, EPA let each run its own 

course regardless of the collateral impact. PCA argues 

that it both violated [***12] the CAA and was arbitrary 

and capricious for EPA to have set the NESHAP standard on the premise that all kilns would be subject to 

NESHAP while at the same time modifying the dataset 

to change that premise. We agree it is arbitrary and capricious.2

1 The final CISWI definition ultimately reclassified fewer sources. PCA and EPA disagree as to 

the number: EPA's most recent estimate is that 

closer to 16 percent were reclassified. 76 Fed. 

Reg. 28,318, 28,322 (May 17, 2011).

2 EPA did not violate the provision of the CAA 

stating that "no solid waste incineration unit subject to performance standards under [CISWI] 

shall be subject to standards under [NESHAP]," 

42 U.S.C. § 7429(h)(2), because no unit has actually been subjected to both standards. The provisions requiring EPA to set NESHAP standards 

based on emissions reductions achieved by similar sources within the same NESHAP category, 

id. § 7412(d)(1), (d)(3), on the other hand, come 

closer to being implicated here. But at the time 

EPA set the NESHAP standards, all of the 

sources it examined were within the same category. While we find EPA's ostrich-like approach 

to its recategorization efforts was arbitrary, it did 

not violate the text of [***13] the CAA.

Before reaching the merits, we must decide whether 

we have jurisdiction. PCA cannot challenge the rule directly. Before an objection can be raised in this Court, it 

must be "raised with reasonable specificity during the 

period for public comment." 42 U.S.C. § 7607(d)(7)(B). 

PCA did not comment on this issue in the NESHAP 

rulemaking, so even if we agreed with PCA on the merits, we could not vacate the NESHAP rule. However, 

"[i]f the person raising an objection can demonstrate . . . 

that it was impracticable to raise [an] objection within 

[the comment period] or if the grounds for [the] objection arose after the period for public comment . . . , the 

Administrator shall convene a proceeding for reconsideration of the rule." Id. If reconsideration is denied, review of the Administrator's refusal is available "in the 

United States court of appeals for the appropriate circuit." Id. Although it is a very close question, we are 

satisfied PCA could not have reasonably anticipated the 

extent to which EPA would base the final NESHAP 

standard on data from kilns it would soon reclassify into 

a different--and mutually exclusive--regulatory regime. 

Because EPA refused to reconsider the rule, [***14] we 

have jurisdiction to review that refusal.

In its proposed rule, EPA acknowledged the CISWI 

rulemaking was ongoing and [*186] [**406] noted 

some unknown number of kilns might ultimately be classified as CISWI sources. Because EPA did not yet know 

what shape the CISWI rule would take, however, EPA 

said it would continue to assume no kilns were CISWI 

sources "until the solid waste definition . . . is promulgated." 74 Fed. Reg. 21,136, 21,138 (May 6, 2009). 

These statements left open a couple of possibilities. First, 

the re-sorting of some kilns into CISWI was, while likely, not inevitable. Id. ("EPA therefore cannot reliably 

determine at this time if the secondary materials combusted by cement kilns are to be classified as solid 

wastes."); see also Office of Air Quality Planning and 

Standards, Development of the MACT Floors for the 

Proposed NESHAP for Portland Cement 4 (Apr. 15, 

2009) ("Pending the outcome of other rulemakings, there 

is a possibility that some of the kilns currently in the 

Portland Cement NESHAP source category will at some 

point become subject to the [CISWI] regulation, and thus 

no longer subject to this regulation.") (emphases added). 

Second, EPA's conditional language--"until the [***15]

solid waste definition . . . is promulgated"--suggested 

that, should any kilns ultimately fall under the CISWI 

definition, EPA would adjust the NESHAP rule accordingly.

While we certainly require some degree of foresight 

on the part of commenters, we do not require telepathy. 

We should be especially reluctant to require advocates 

for affected industries and groups to anticipate every 

contingency. To hold otherwise would encourage strategic vagueness on the part of agencies and overly defensive, excessive commentary on the part of interested parties seeking to preserve all possible options for appeal. 

Neither response well serves the administrative process. 

Whatever warning EPA offered regarding CISWI was 

too vague and noncommittal to trigger a response from 

PCA. Indeed, as far as EPA did hint at its next steps, it 

suggested it would reevaluate the NESHAP standards 

after the CISWI definition was promulgated.

Having determined that PCA is not jurisdictionally 

barred from petitioning EPA for reconsideration and that 

it may therefore seek review in this Court of EPA's denial, we proceed to the merits of its objection. In none of 

EPA's proposals, final rules, or briefs in this Court has 

EPA [***16] attempted to defend the principle that, in 

the face of a final and promulgated CISWI definition, 
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2011 U.S. App. LEXIS 24577, ***; 73 ERC (BNA) 1801

data from CISWI kilns could now be considered in setting NESHAP standards. And rightly so: it would certainly be arbitrary, as well as a violation of the CAA itself, for EPA to set one standard based on data already 

placed in another source category in light of the mutual 

exclusivity of the standards themselves. See North Carolina v. EPA, 531 F.3d 896, 930, 382 U.S. App. D.C. 167 

(D.C. Cir. 2008) (noting that it is "entirely arbitrary" to 

base standards on "irrelevant factors"); 42 U.S.C. § 

7412(d)(1), (d)(3) (requiring EPA to set NESHAP standards based on emissions reductions achieved by similar 

sources within the same NESHAP category).

EPA instead defends the otherwise indefensible by 

claiming the unique circumstances of this parallel rulemaking left no other choice. As EPA said in the final 

NESHAP rule, because it "cannot prejudge the outcome 

of the recently proposed [CISWI] rulemaking" and because it could only "bas[e] all determinations as to 

source classification on the emissions information now 

available," it simply had to include "all portland cement 

kilns as . . . subject to regulation under [NESHAP]." 

[***17] 75 Fed. Reg. 54,970, 54,972 (Sept. 9, 2010). 

EPA made the same argument here: a substantial number 

of sources subject to being reclassified as CISWI sources 

were included in the NESHAP calculation because 

[*187] [**407] EPA had not yet decided the precise 

parameters of its definition.

Basing its decision on a premise the agency itself 

has already planned to disrupt is arbitrary and capricious. 

Reasoned decisionmaking requires an agency to "examine the relevant data and articulate a satisfactory explanation for its action[s]." Motor Vehicle Mfrs. Ass'n v. 

State Farm Mut. Auto. Ins. Co.., 463 U.S. 29, 43, 103 S. 

Ct. 2856, 77 L. Ed. 2d 443 (1983). The impending definition of an undeniably related source category is clearly 

a "relevant factor[]" or an "important aspect of the problem" that must be considered. Id. Indeed, EPA stated as 

much in its proposed rule, describing the CISWI rulemaking as "relevant" to the NESHAP proceeding. 74 

Fed. Reg. 21,136, 21,138 (May 6, 2009).

Since agencies "have an obligation to deal with 

newly acquired evidence in some reasonable fashion," 

Catawba County v. EPA, 571 F.3d 20, 45, 387 U.S. App. 

D.C. 20 (D.C. Cir. 2009), or to "reexamine" their approaches "if a significant factual predicate" changes, 

Bechtel v. FCC, 957 F.2d 873, 881, 294 U.S. App. D.C. 

124 (D.C. Cir. 1992), [***18] an agency must have a 

similar obligation to acknowledge and account for a 

changed regulatory posture the agency creates--especially when the change impacts a contemporaneous and closely related rulemaking. See Office of 

Commc'n of United Church of Christ v. FCC, 707 F.2d 

1413, 1441-42, 228 U.S. App. D.C. 8 (D.C. Cir. 1983)

(finding it "seriously disturbing" and "almost beyond 

belief" that an agency would take rulemaking action undercutting another "concurrent" rulemaking process); see 

also Gen. Chem. Corp. v. United States, 817 F.2d 844, 

846, 260 U.S. App. D.C. 121 (D.C. Cir. 1987) (finding 

agency action arbitrary and capricious because it was 

"internally inconsistent and inadequately explained"). All 

EPA did to satisfy this obligation with regard to the 

NESHAP rule was decide that it would do nothing "so 

long as no final definition of solid waste changed [the] 

status [of cement kilns] prior to promulgation of the 

NESHAP." EPA Br. 25 (emphasis added). This is not a 

"satisfactory explanation," State Farm, 463 U.S. at 43, or 

a "hard look at the salient problems," Panhandle E. Pipe 

Line Co. v. FERC, 890 F.2d 435, 439, 281 U.S. App. 

D.C. 318 (D.C. Cir. 1989). It is nothing more than a determination that EPA would not address the problem 

unless it happened [***19] to appear at an inconvenient 

time--an eventuality over which EPA had full control. 

The refrain that EPA must promulgate rules based on the 

information it currently possesses simply cannot excuse 

its reliance on that information when its own process is 

about to render it irrelevant.

EPA makes two arguments in response, neither of 

which addresses this basic principle. First, EPA insists 

that it would be absurd to require revised calculations 

every time the content of a source category changes, i.e., 

when a source closes or a new source is built. EPA Br. 

26. But no such absurdity is involved here. No actions by 

the regulated community changed the dataset relevant to 

EPA's calculations; EPA's definition did that. And EPA 

undermined the premise of its calculations at the same 

time it was enshrining those calculations in a final 

rule--without accounting for the impact of the change. It 

is not absurd to require that an agency's right hand take 

account of what its left hand is doing. In fact, this is 

nothing new: this Court has required EPA to recalculate 

standards because of changes to category definitions 

when "the populations of units subject to [exclusive] 

rules will change substantially." [***20] Natural Res. 

Def. Council, 489 F.3d at 1261.

Second, EPA asserts it could not delay finalizing the 

NESHAP rule until after it promulgated a definition of 

solid [*188] [**408] waste. EPA insists such a delay would have been harmful to air quality and health. 

EPA Br. 27. Perhaps. But reasoned decisionmaking is 

not a dispensable part of the administrative machine that 

can be blithely discarded even in pursuit of a laudable 

regulatory goal. "The importance of reasoned decisionmaking in an agency action cannot be 

over-emphasized. When an agency . . . is vested with 

discretion to impose restrictions on an entity's freedom to 

conduct its business, the agency must exercise that discretion in a well-reasoned, consistent, and evenhanded 

manner." Greyhound Corp. v. ICC, 668 F.2d 1354, 1359, 
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2011 U.S. App. LEXIS 24577, ***; 73 ERC (BNA) 1801

215 U.S. App. D.C. 322 (D.C. Cir. 1981). EPA also notes 

that it was facing a NESHAP deadline pursuant to a settlement agreement with PCA, but of course, it could have 

begun the CISWI process much sooner. After all, EPA 

had been working on the NESHAP rule for ten years, and 

so it should have come as no surprise that the CISWI 

definition would play a critical role in setting that standard. It takes a certain amount of chutzpah for EPA to 

claim it [***21] had no time to be careful--after ten 

years of work on NESHAP--when it waited to propose a 

CISWI definition until after the NESHAP comment period had closed. It takes even more chutzpah to repeat 

that claim after the district court has already called the 

argument "silly" in a closely analogous context. Am. Petroleum Inst. v. Johnson, 541 F. Supp. 2d 165, 185 

(D.D.C. 2008) ("The fact that the proposed rule had been 

on the shelf for ten years is no excuse for failing to consider a directly relevant" intervening legal change "decided before the final rule was promulgated.").

Simply put, there was no CISWI definition when the 

NESHAP rule was finalized because, even though EPA 

knew it would be critical to the NESHAP process, EPA 

did not even propose it until after the comment period 

for the NESHAP rules had closed. Far from justifying 

EPA's conduct, the unique circumstances of this parallel 

rulemaking are what doom it: when an agency is simultaneously in control of both defining the universe of relevant data and of applying that data to a given rulemaking, it cannot allow itself to do the latter without having 

already done the former. If an agency can say its failure 

to decide what data are [***22] relevant justifies its 

decision to just consider all data, arbitrary and capricious 

review would be pointless. EPA has put the cart before 

the horse, and there is no justification, least of all an 

agency's own timing choices, for such a cavalier and 

unscientific attitude.

EPA points out that the final CISWI definition--promulgated a mere six months after 

NESHAP--resulted in about 23 kilns being reclassified, 

and that removing these kilns from the NESHAP calculations does little to relax the ultimate standards. In fact, 

one emissions standard would even become more stringent after removing the CISWI kilns from the data set. 

We have no reason to doubt that conclusion; perhaps 

PCA would be better off had they not brought this issue 

to our attention. But we are not interested in whether the 

rule becomes more or less stringent upon reconsideration. Our province is simply to ensure that agencies do 

not act arbitrarily or capriciously, 5 U.S.C. § 706(2)(A), 

and the magnitude or direction of the effect of an agency's arbitrariness does not excuse it.

PCA also argues EPA violated the CAA when it 

premised the NESHAP standards on bare emissions data 

rather than on data that specifically isolated [***23] the 

effect of technology by controlling for variations in input 

quality. We considered and rejected this very argument 

quite recently. In Sierra Club v. EPA, 479 F.3d 875, 883, 

[*189] [**409] 375 U.S. App. D.C. 228 (D.C. Cir. 

2007), we declined to read the "the Clean Air Act's 

command that it assess the emission 'control' or 'limitation' 'achieved' [as] refer[ring] to the deliberate steps kiln 

operators take to reduce emissions rather than to the 

'happenstance' of being located near cleaner clay." Instead, we held that EPA must do exactly what it did here. 

Id. PCA's attempt to dismiss this holding as dicta is unavailing since the question of how to account for raw material quality--in that case, "clay type"--was squarely 

presented. Id. at 882-83.

We have carefully considered PCA's other objections to the NESHAP rule and are unconvinced by them. 

PCA's argument that EPA's pollutant-by-pollutant approach to setting NESHAP floors violates the CAA is 

barred because it was not raised within sixty days of 

EPA's first use of that approach, Medical Waste Inst. v. 

EPA, 645 F.3d 420, 427, 396 U.S. App. D.C. 99 (D.C.

Cir. 2011), and their argument that EPA impermissibly 

reset NESHAP floors rather than revise existing floors is 

based on a flawed reading of the [***24] CAA. Though 

EPA must review and revise standards "no less often 

than every eight years," 42 U.S.C. § 7412(d)(6), nothing 

prohibits EPA from reassessing its standards more often.

PCA also argues that the adoption of a continuously-monitored standard ("CEMS") rather than a sampling 

standard for particulate matter emissions was not a "logical outgrowth" of the proposed rule, Small Refiner Lead 

Phase-Down Task Force v. EPA, 705 F.2d 506, 543, 227 

U.S. App. D.C. 201 (D.C. Cir. 1983), but this is not true. 

EPA sought comment on a CEMS requirement in its first 

proposal, and PCA even commented on it. 74 Fed. Reg. 

21,136, 21,157 (May 6, 2009). Moreover, any individual 

hardship resulting from the CEMS requirement is mitigated by the fact that a kiln may employ "alternative 

monitoring" if it demonstrates the "technical or economic 

infeasibility" of installing CEMS. 40 C.F.R. § 

63.8(f)(4)(ii). Similarly, the proposed NESHAP rule provided adequate notice that EPA was considering modifying emissions standards for startup and shutdown periods, and PCA commented on that as well. 74 Fed. Reg. 

21,136, 21,162 (May 6, 2009). PCA's final claims of arbitrariness also fail since EPA adequately explained its 

reasons for, among other [***25] things, not setting 

separate hydrocarbon standards for raw material dryers. 

Nothing in the CAA or our caselaw requires EPA to collect additional data before making that decision. See Sierra Club v. EPA, 167 F.3d 658, 662, 334 U.S. App. D.C. 

421 (D.C. Cir. 1999) (noting that EPA "typically has 

wide latitude in determining the extent of data-gathering 

necessary to solve a problem").
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Because EPA's treatment of the CISWI-NESHAP 

interaction was arbitrary and capricious, we grant the 

petition for review with respect to EPA's denial of reconsideration, and remand for further action consistent with 

this decision. We decline to stay the NESHAP rule 

pending reconsideration. The CAA does not mandate a 

stay, 42 U.S.C. § 7607(d)(7)(B), and because it is unlikely that significant changes will be made to the standards upon reconsideration, we see little chance of PCA 

suffering irreparable harm.

We will, however, enter a stay of the NESHAP 

standards applicable to clinker storage piles. EPA has 

conceded that it "did not give sufficient notice" of those 

standards and has granted PCA's request for reconsideration, but it denied PCA's request for a stay. 76 Fed. Reg. 

28,318, 28,325-26 (May 17, 2011). Because EPA will 

now be receiving [***26] comments for the first time, 

the standards could likely change substantially. Thus, 

industry should not have to build expensive new containment structures until the standard is finally determined.

[*190] [**410] III 

Turning to PCA's challenge to the NSPS rulemaking, we begin by addressing its contention that for all 

regulated pollutants, EPA failed to "consider . . . the 

range of relevant variables that may affect emissions in

different plants." PCA Opening Br. 33 (quoting Nat'l 

Lime Ass'n v. EPA, 627 F.2d 416, 433, 200 U.S. App. 

D.C. 363 (D.C. Cir. 1980)). PCA argues that EPA failed 

adequately to consider the impact of its NSPS standards 

on kilns of older design that, if modified, could become 

subject to NSPS. Instead, PCA argues that EPA illegitimately focused solely on kilns with preheater/precalciner 

technology.

This argument fails on its own terms because contrary to PCA's contention, EPA demonstrated how all 

regulated kilns could meet NSPS standards. EPA based 

its PM and sulfur dioxide limits "on control technologies 

that can be applied to any kiln type and achieve the same 

control levels that would be expected with a new kiln at 

similar costs." 75 Fed. Reg. 54,970, 54,995-96 (Sept. 9, 

2010) (emphasis added). PCA nowhere [***27] even 

attempts to dispute this point. As to nitrous oxide, EPA 

did note that it would be more difficult for older kilns to 

meet its final emissions limits, and indeed "investigated 

whether [it] should set a different [nitrogen oxide] emissions limit for modified kilns." Id. at 54,996. But based 

on detailed studies, EPA ultimately determined that older 

kilns could avoid increasing their nitrogen oxide emissions--and thus, remain in compliance with NSPS standards--by utilizing a variety of different controls. Id. See 

ASARCO, Inc. v. EPA, 578 F.2d 319, 328-29, 188 U.S. 

App. D.C. 77 (D.C. Cir. 1978) ("[T]he operator of an 

existing facility can make any alterations he wishes in 

the facility without becoming subject to the NSPS as 

long as the level of emissions from the altered facility 

does not increase. . . . The record does not indicate why 

more flexibility than this is necessary or even appropriate.") (emphasis added). We thus reject as unfounded 

PCA's contention that EPA failed to consider the effects 

of its standards on older kilns.

It is true, as PCA notes, that EPA expected the 

NSPS limits would primarily apply to preheater/precalciner kilns and focused its rulemaking accordingly--for example, by using data [***28] primarily 

derived from preheater/precalciner kilns. See 73 Fed. 

Reg. 34,072, 34,075 (June 16, 2008) ("EPA believes that 

the limits proposed today are appropriate for new, modified, and reconstructed kilns since the preheater/precalciner design will be utilized in each of these 

instances."). But this was an eminently reasonable decision based on the facts EPA had before it. As EPA explained, industry statistics show that virtually all older 

kilns are being replaced by newer preheater/precalciner 

units. Id. Indeed, during the past 20 years only two long 

wet or long dry kilns were modified, rather than replaced, and both were modified to include preheater/precalciner technology. Id. At its core, then, PCA's 

argument is that EPA abused its discretion by failing 

adequately to consider the effects of its standards on an 

entirely conjectural species of kiln: a newly modified 

long wet or long dry kiln without preheater/precalciner 

technology. But given the universal movement in the 

portland cement industry towards adoption of preheater/precalciner technology, we have no basis for concluding that EPA's decision to focus primarily--but not exclusively--on preheater/precalciner kilns was arbitrary 

[***29] or capricious. 42 U.S.C. § 7607(d)(9)(A).

We next turn to PCA's various challenges to the final PM limits. PCA first argues that in promulgating the 

PM NSPS EPA improperly "incorporated the entirely 

distinct new source PM limit from [*191] [**411] 

the NESHAP rulemaking in lieu of undertaking the 

analysis and considering the factors required by 

[NSPS]." PCA Opening Br. 20. In particular, PCA contends that EPA adopted the 0.01 pound/ton NESHAP PM 

standard as the NSPS PM standard without "consideration of the cost or other non-air impacts that [NSPS] requires." PCA Opening Br. 22.

This assertion is incorrect. Although both the NSPS 

and NESHAP rulemaking resulted in a PM emissions 

limit of 0.01 pounds per ton, EPA arrived at that limit 

using two different mechanisms. Under NESHAP, EPA 

set the PM emissions limit at 0.01 pounds per ton because that was the level achieved by the best-performing 

existing source. 75 Fed. Reg. 54,970, 54,987 (Sept. 9, 

2010). By contrast, under NSPS, EPA determined that 
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2011 U.S. App. LEXIS 24577, ***; 73 ERC (BNA) 1801

the "best system of emission reduction," 42 U.S.C. § 

7411(a)(1), for PM was "well-operated and maintained 

fabric filters" with membrane bags. 73 Fed. Reg. 34,072, 

34,076-77 (June 16, 2008). Expressly considering 

[***30] the cost of these filters, EPA's proposed NSPS 

rule determined the technology was "well within the 

range of cost-effectiveness . . . accepted as reasonable for 

other [non cement kiln] stationary sources." Id. at 

34,077. And once EPA determined that fabric filter 

technology could result in greater emissions reductions 

than previously thought, its final rule stated the 

self-evident proposition that fabric filter "technology 

would now be evaluated as more cost-effective than at 

proposal, since greater PM reductions will result from its 

use." 75 Fed. Reg. 54,970, 54,995 (Sept. 9, 2010) (emphasis added). To be sure, the final rule also noted that 

kilns would have to install fabric filter technology to 

comply with NESHAP, concluding that the parallel 

NSPS rule would therefore have no additional cost. Id. 

But this statement hardly means that EPA "adopted" the 

NESHAP standards, nor does it somehow invalidate 

EPA's earlier cost analysis of fabric filter technology. We 

therefore reject PCA's contention that EPA failed to consider cost when promulgating its NSPS standard. Nor do 

we find merit in PCA's novel argument--unsupported by 

any authority--that EPA was required to "reanalyze costs 

. . . [***31] in promulgating the final PM limit," and 

thus improperly relied on the cost analysis it had previously conducted in the proposed rule. PCA Reply Br. 5. 

Neither law nor logic requires EPA to spend its time and 

resources conducting a perfunctory cost analysis when 

doing so would duplicate information the agency already 

has before it.

Similarly, we have little trouble rejecting PCA's argument that EPA failed to consider the other countervailing factors required by NSPS: "nonair quality 

health[,] environmental impact and energy," 42 U.S.C. § 

7411(a)(1). EPA's final order included sections surveying the PM standard's 1) water quality impact, 2) solid 

waste impact, 3) secondary environmental impacts, 4) 

energy impacts, and 5) cost impacts. 75 Fed. Reg. 

54,970, 55,022-23 (Sept. 9, 2010). Although PCA correctly notes that these sections are commingled with 

discussion of various NESHAP regulations, nothing in 

the Clean Air Act requires a segmented discussion of 

NSPS factors. Instead, the statute requires only that EPA 

"tak[e] into account" health, environmental, and energy 

impacts. 42 U.S.C. § 7411(a)(1). The final order's discussion of these factors shows that EPA did just that. The 

fact that [***32] the final order also discussed the 

health, environmental, and energy impacts of NESHAP 

regulations is immaterial.

Next, we address PCA's claims that we should vacate the PM standards "because EPA did not give . . . 

notice of its methodology for setting the NSPS limit, and 

because [*192] [**412] the final PM limit is not a 

logical outgrowth of the one EPA proposed." PCA 

Opening Br. 29. This notice-based argument rests primarily on the premise that EPA set NSPS standards by 

"incorporat[ing] . . . the new source NESHAP limit for 

PM as the NSPS." PCA Opening Br. 26. Having already 

rejected that argument, we have little difficulty rejecting 

PCA's parallel claims that EPA "never provided notice 

that it would adopt the new source NESHAP limit for 

PM as the NSPS limit." PCA Opening Br. at 30.

But we do see merit in one of PCA's notice-based 

claims: that EPA failed to provide notice that it would 

require continuous monitoring of PM emissions from 

cement kilns. EPA proposed requiring kilns to demonstrate compliance with the PM standard by conducting 

periodic stack tests. The only mention of continuous 

monitoring in the proposed rule came when EPA proposed providing an "option" for plants to demonstrate 

compliance [***33] with the PM standard by installing 

a CEMS. 73 Fed. Reg. 34,072, 34,082 (June 16, 2008). 

In its final NSPS rule, however, EPA required plants to 

demonstrate compliance with the standard through continuous emissions monitoring. PCA contends that this 

"change in limit and fundamental approach" contravenes 

this court's directive that a proposed rule must "describe 

the range of alternatives being considered with reasonable specificity." PCA Opening Br. 29 (quoting Horsehead Res. Dev. Inc. v. Browner, 16 F.3d 1246, 1268, 305 

U.S. App. D.C. 35 (D.C. Cir. 1994) (per curiam) (quotation omitted)). We agree. The fact that EPA proposed 

providing kilns with a CEMS option hardly placed PCA 

on notice that kilns could be required to demonstrate 

NSPS compliance through continuous emissions monitoring. On this point, we find it instructive to compare 

EPA's proposed NSPS rule to its proposed NESHAP 

rule. As here, EPA's final NESHAP rule required kilns to 

demonstrate compliance with a PM standard through 

periodic stack tests. But unlike here, the proposed 

NESHAP rule expressly invited comment on whether to 

require CEMS monitoring. 74 Fed. Reg. 21,136, 21,157 

(May 6, 2009) ("[W]e are specifically soliciting comment 

on making [***34] the use of a PM CEMS a requirement.") (emphasis added).

But although EPA gave inadequate notice that it 

might adopt a CEMS requirement under NSPS, this error 

was harmless precisely because the proposed NESHAP 

rule put PCA on notice that EPA might require kilns to 

install CEMS systems. During NESHAP rulemaking, 

PCA commented on the propriety of requiring CEMS. In 

response, EPA made changes to the way in which CEMS 

limits were calculated from raw stack test data for both 

NESHAP and NSPS rules. 75 Fed. Reg. 54,970, 54,975 

(Sept. 9, 2010). Thus, PCA had an opportunity to com-
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2011 U.S. App. LEXIS 24577, ***; 73 ERC (BNA) 1801

ment on the potential for a required CEMS system--and 

did so. We "may invalidate [a] rule" for "alleged procedural errors" only if "there is a substantial likelihood that 

the rule would have been significantly changed if such 

errors had not been made." 42 U.S.C. § 7607(d)(8). PCA 

does not argue that repeating the comments it made in 

response to the proposed NESHAP rulemaking would 

have resulted in a "substantial likelihood" that NSPS 

standards would have "significantly changed," and we 

fail to see how this could have been the case. Given 

EPA's harmless procedural error, we thus have no basis 

for invalidating the NSPS [***35] standard.

Finally, PCA contends that having granted reconsideration on the final PM standard as applied to modified sources, EPA abused its discretion by refusing to 

stay the implementation of that standard. But because the 

fabric filter cost analysis [*193] [**413] EPA conducted--which applied to both new and modified 

kilns--was sufficient to support the 0.01 lb/ton PM 

standard, supra p. 22, we think it entirely unlikely that 

EPA will impose a different standard for modified 

sources on reconsideration. As a result, and as with the 

NESHAP standards, we see little chance that PCA will 

suffer irreparable harm. We therefore deny PCA's request for a stay. See 42 U.S.C. § 7607(d)(7)(B).

IV 

This brings us to Environmental Petitioners' challenge to EPA's failure to adopt greenhouse gas emissions 

standards as part of its portland cement NSPS. We agree 

with PCA intervenors that we lack jurisdiction to hear 

this challenge. The Clean Air Act gives us jurisdiction to 

review only "final" agency actions, 42 U.S.C. § 7607(b), 

and there was nothing "final" in EPA's decision to collect 

additional information before proposing greenhouse 

emissions standards.

EPA's final NSPS rule states that: 1) EPA did "not 

yet have adequate [***36] information about [greenhouse gas] emissions sufficient to set a standard," but 2) 

"based on our initial evaluation it appears that there are 

cost-effective control strategies . . . that would provide 

an appropriate basis for establishing a standard of performance for [greenhouse gas] emissions." 75 Fed. Reg. 

54,970, 54,996-97 (Sept. 9, 2010). EPA, the rule explains, "is working towards a proposal for [greenhouse 

gas] standards from Portland cement facilities"--a proposal it will promulgate after it receives data necessary 

"to develop proposed standards." Id. at 54,997. We fail 

to understand how explicitly tentative and conditional 

statements--which expressed certainty only as to EPA's 

decision to continue the process of studying greenhouse 

gases--could possibly be considered "final." Indeed, as 

the final rule states, "[t]his is not the end of the matter." 

Id. at 54,996.

As an alternative, Environmental Petitioners attempt 

to recast the final rule as a reviewable final decision to 

defer performance of a duty pursuant to Section 

7607(b)(2). This section provides: "Where a final decision by the Administrator defers performance of any 

nondiscretionary statutory action to a later time, any 

[***37] person may challenge the deferral . . . . " 42 

U.S.C. § 7607(b)(2) (emphasis added). As environmental 

petitioners point out, EPA undertook the instant NSPS 

rulemaking pursuant to its nondiscretionary duty to "at 

least every 8 years, review and, if appropriate, revise 

[NSPS] standards." See Environmental Pets' Reply Br. 7 

(quoting 42 U.S.C. § 7411(b)(1)(B)). Arguing that this 

same section confers upon EPA a nondiscretionary duty 

to "complete [any] revision within the same period," Environmental Petitioners contend that EPA's decision to 

collect additional data on greenhouse gas emissions constitutes a reviewable "final decision" to defer performance of that duty. Id. at 7-8.

We are unconvinced. First, it is unclear whether 

EPA has such a duty with respect to pollutants it has not 

previously regulated, but in any event, nothing in the 

NSPS rule indicates that EPA has made a final decision 

to defer performance of its duty to "review and revise" 

standards. Quite to the contrary: EPA began the process 

of reviewing its NSPS standards for greenhouse gases, 

decided it needed further information, and is now continuing that process of review. This might be a different 

case if EPA had stated that [***38] it was deferring 

consideration of greenhouse gas emissions standards 

until its next mandatory NSPS review. But EPA did no 

such thing. Instead, it reviewed the information it had, 

decided its data was insufficient, [*194] [**414] 

and continued "working towards a proposal for [greenhouse gas] standards from Portland cement facilities." 75 

Fed. Reg. 54,970, 54,997 (Sept. 9, 2010). This court has 

never considered an agency decision to continue the 

rulemaking process to be a "final agency action," nor has 

any court held that we have jurisdiction to review such a 

decision under Section 7607(b)(2). But see Maine v. 

Thomas, 874 F.2d 883 (1st Cir. 1989) (decided prior to 

promulgation of 7607(b)(2)).

At various points in their brief, Environmental Petitioners also appear to recast their petition as a challenge 

to EPA's "refus[al] to act," see, e.g., Environmental Pets' 

Opening Br. 35, noting that since promulgation of its 

NSPS rule, EPA "has taken no steps towards either information collection or regulating cement plants' [greenhouse gas] emissions." Id. at 20. But if environmental 

petitioners are indeed challenging a "refusal to act," they 

should have brought their case in the district court. The 

Clean Air [***39] Act provides that any individual may 

file suit alleging that EPA has failed "to perform any act 

or duty . . . which is not discretionary with the Adminis-
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2011 U.S. App. LEXIS 24577, ***; 73 ERC (BNA) 1801

trator," 42 U.S.C. § 7604(a)(2), and that "[t]he district 

courts shall have jurisdiction" over these suits, id. § 

7604(a) (emphasis added).

Because we lack statutory jurisdiction over environmental petitioners' claims, we have no need to consider PCA's alternative argument that environmental petitioners lack Article III standing. See Nat'l Ass'n of 

Home Builders v. Norton, 415 F.3d 8, 12 n. 4, 367 U.S. 

App. D.C. 240 (D.C. Cir. 2005).

V 

For the aforementioned reasons, we grant PCA's petition for review with respect to EPA's denial of reconsideration of the NESHAP rule and remand the rule for 

further action, deny PCA's petition for review with respect to the NSPS rule, and dismiss Environmental Petitioners' petition for lack of jurisdiction. All of the standards will remain in place except for the NESHAP standards applicable to clinker storage piles, which are stayed 

pending reconsideration. We nonetheless urge EPA to 

act expeditiously on remand. See 42 U.S.C. § 7604(a)

("any person may commence a civil action" in district 

court "to compel . . . agency action [***40] unreasonably delayed"); NRDC v. EPA, 902 F.2d 962, 985, 284 

U.S. App. D.C. 136 (D.C. Cir. 1990) ("the Clean Air 

Act's citizen suit [provision] . . . may in appropriate circumstances provide a check against indefinite stalling by 

EPA.").

So ordered.

CONCUR BY: BROWN

CONCUR

BROWN, Circuit Judge, concurring: I fully join the 

per curiam decision, but I write separately to observe 

that there is much to be said for Petitioners' argument 

that EPA should not be permitted to base NESHAP 

standards on bare emissions data, and that EPA should 

instead isolate the effect of emissions control technology 

by controlling for input quality. Because kilns are 

co-located with raw material quarries and because there 

is significant variability in the pollutant content of those 

raw materials, a kiln may have low emissions simply 

because it happens to be blessed with good inputs, not 

because it is using a superior control technology. But 

when the CAA directs EPA to set floors based on "the 

emission control that is achieved in practice by the best 

controlled similar source," 42 U.S.C. § 7412(d)(3) (emphases added), it would seem to be specifically directing 

EPA's attention to the active steps a kiln has taken to 

"control" its emissions, not simply to [***41] the level 

of emissions itself. In addition to the text, the structure of 

the statute also suggests that the quality of inputs should 

not be permitted to affect the calculation of [*195] 

[**415] floors: the "substitution of materials"--in other 

words, the degree to which EPA can require kilns to 

switch inputs in order to comply with a standard--is 

listed as a factor to be considered in the second, beyond-the-floor determination, not in the antecedent 

floor-setting determination. Id. § 7412(d)(2)(A).

As the per curiam decision notes, however, this argument has already been rejected by the Court in Sierra 

Club v. EPA, 479 F.3d 875, 883, 375 U.S. App. D.C. 228 

(D.C. Cir. 2007), and that decision controls, Maxwell v. 

Snow, 409 F.3d 354, 358, 366 U.S. App. D.C. 84 (D.C. 

Cir. 2005). I am simply puzzled as to how we arrived at 

our conclusion. First, the text and structure of the statute 

seem to me to compel the opposite result. Second, Sierra 

Club relied on our holding in National Lime Ass'n v. 

EPA, 233 F.3d 625, 640, 344 U.S. App. D.C. 97 (D.C. 

Cir. 2000), that the CAA does not require "that [the] 

achievement . . . be the product of a specific intent." But 

I do not read National Lime to have held that the 

achievement need not be the product of any intent. Instead, context reveals [***42] that the National Lime

Court was referring to emissions of one sort that are 

"controlled only incidentally by controls placed upon" 

another sort of emission. Id. The incidental control of 

one emission as the result of controlling another still 

certainly counts as an "achievement" of emission control. 

But the Court did not state--or even imply--that emissions levels determined by inputs alone count as an 

"achievement" of emission control within the meaning of 

the statute.

Senior Judge Williams concurred in Sierra Club to 

"note a paradox in the relationship between two key provisions of § 112 of the Clean Air Act":

 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.

479 F.3d at 884 (Williams, J., concurring) (emphasis 

added). He was quite right that [***43] ignoring input 

quality when determining the floors subverts the statutory scheme by allowing EPA to establish a floor that some 
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2011 U.S. App. LEXIS 24577, ***; 73 ERC (BNA) 1801

kilns simply cannot meet. The CAA permits EPA to do 

this at the "beyond-the-floor" stage as long as it considers the relevant costs, but the very existence of that secondary phase indicates that EPA should not be permitted 

to set a standard at the floor-setting stage which is 

unachievable due to input quality.

But it was our decision, not Congress's, to demand 

that EPA ignore input variability when it sets emissions 

floors. It was our decision to not only permit but to require EPA to ignore the costs of achieving those 

floors--to enact them, in other words, even if some kilns 

would never be able to meet them. Because of our decision, these "maximum achievable control technology" 

floors have little to do with achievability, controls, or 

technology, even though, as Senator Domenici stated 

during the consideration of this law, the "initial level of 

tight controls . . . is [to be] determined strictly on the 

basis of the availability of technology." 136 Cong. Rec. 

S17,120-24 (daily ed. Oct. 26, 1990) (statement of Sen. 

Pete Domenici).1

1 In fact, EPA's own website [***44] also refers to the standards as "technology-based," rather than emissions-based. Envtl. Prot. Agency, 

Summary of the Clean Air Act, 

http://www.epa.gov/lawsregs/laws/caa.html (last 

visited Nov. 7, 2011).

[*196] [**416] In contrast to our interpretation, 

the Congress that enacted the current NESHAP program 

in 1990 was quite concerned about the costs of regulation--and those costs presumably included the economic 

impact of putting going concerns out of business. The 

straightforward text and structure of the floor-setting 

provisions convey as much. Moreover, Congress included a specific requirement in the 1990 Amendments that 

EPA prepare a "comprehensive analysis" of the "costs, 

benefits and other effects associated with compliance" 

with, among other things, NESHAP standards. 42 U.S.C. 

§ 7612(a). Speaking in support of this provision and of 

cost-benefit analysis more generally, Senator Moynihan 

described the Amendments as "the first environmental 

legislation in history to require extended and intensive 

cost benefit analysis" and said, "Until now, we have too 

often feared facts. This fear has not served [us] well. 

Environmental programs that prohibit the EPA from 

taking the costs of compliance into account [***45]

have, more often than not, resulted in deadlock." 136 

Cong. Rec. S16,895-97 (daily ed. Oct. 27, 1990) (statement of Sen. Daniel Patrick Moynihan). It would be 

strange indeed if a Congress so attuned to the importance 

of cost-benefit analysis intended EPA to set emissions 

floors regardless of the cost. Congress sought to constrain the agency's discretion; we decided to set it free.

The truth is that this is no unavoidable paradox: the 

statute's use of terms like "achieved" and "controlled" at 

the floor-setting stage urges EPA to focus on what 

sources have actually done to ameliorate the pollution 

caused by their particular set of inputs. If the outcome of 

that analysis is not strong enough for EPA's satisfaction, 

the statute's "beyond-the-floor" procedures provide it 

with an outlet to set stricter standards, so long as it considers the costs of that course of action. Congress's very 

provision of this beyond-the-floor mechanism and its 

persistent attention--reflected elsewhere in the statute 

and in the legislative history--to the importance of 

cost-benefit analysis only bolster this clear reading of the 

text. Our holding in Sierra Club was a self-inflicted 

wound, and the result of a series [***46] of interpretive 

leaps that I simply cannot follow. I regret that we have 

ignored Congress's wishes and made life more difficult--for industry and its employees, for EPA, and for 

ourselves.