National Lime Ass'n v. Environmental Protection Agency

United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued September 5, 2000 Decided December 15, 2000

No. 99-1325

National Lime Association,

Petitioner

v.

Environmental Protection Agency,

Respondent

Consolidated with

99-1326

On Petitions for Review of An Order of the

Environmental Protection Agency

Hunter L. Prillaman argued the cause for petitioner Na-

tional Lime Association. With him on the briefs were Arline

M. Seeger and Kenneth A. Rubin.

James S. Pew argued the cause for petitioner Sierra Club.

With him on the briefs was Howard I. Fox.

Daniel M. Flores, Attorney, U.S. Department of Justice,

argued the cause for respondent. With him on the brief were

Lois J. Schiffer, Assistant Attorney General, Daniel R. Dert-

ke, Attorney, and Steven E. Silverman, Attorney, Environ-

mental Protection Agency. Christopher S. Vaden and H.

Michael Semler, Attorneys, U.S. Department of Justice, en-

tered appearances.

William M. Bumpers was on the brief for amicus curiae

the American Portland Cement Alliance.

Before: Edwards, Chief Judge, Ginsburg and Tatel,

Circuit Judges.

Opinion for the Court filed by Circuit Judges Ginsburg and

Tatel.*

Ginsburg and Tatel, Circuit Judges: In this case we

consider petitions by the Sierra Club and the National Lime

Association challenging the Environmental Protection Agen-

cy's hazardous air pollutant emission regulations for cement

manufacturing. With respect to the Sierra Club petition we

(1) reject its challenge to the emission standards for hazard-

ous metals and dioxin/furan; (2) find the Agency's failure to

set standards for hydrogen chloride, mercury, and total hy-

drocarbons contrary to the Clean Air Act's plain language;

(3) direct EPA to consider the health impacts of potentially

stricter standards for hazardous metals; and (4) sustain the

regulation's monitoring requirements. Concluding that the

National Lime Association has associational standing, we (1)

reject its argument that EPA's use of particulate matter as a

surrogate for non-volatile metal hazardous air pollutants vio-

lates the Clean Air Act and is arbitrary and capricious; and

(2) reject its challenge to the testing method EPA adopted for

determining whether a manufacturer qualifies as a "major

source" of hazardous air pollutants.

__________

* Judge Tatel wrote Sections I and II. Judge Ginsburg wrote

Sections III and IV.

I. Background

The Clean Air Act requires the Environmental Protection

Agency to establish emission standards for "major sources" of

hazardous air pollutants listed in the statute. 42 U.S.C.

s 7412(d)(1). The Act directs the Agency to review the list

periodically, and, where appropriate, to revise it by rule. Id.

s 7412(b)(2). Hazardous air pollutants are known as HAPs.

A "major source" is any stationary source that emits ten

tons per year or more of any single HAP or twenty-five

tons per year or more of any combination of HAPs. Id.

s 7412(a)(1). Under section 7412(d)(2) of the statute, emis-

sion standards must require

the maximum degree of reduction in emissions [of HAPs]

... 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 ... through ap-

plication of measures, processes, methods, systems or

techniques including, but not limited to, ... process

changes, substitution of materials or other modifications.

In addition to this general guidance, the statute includes

minimum stringency requirements for emission standards

that apply without regard to either costs or the other factors

and methods listed in section 7412(d)(2). These stringency

requirements differ depending on whether a source is "new"

or "existing." New sources are defined as "stationary

source[s], the construction or modification of which is com-

menced after the publication of regulations (or, if earlier,

proposed regulations) prescribing" air pollution standards

that will be applicable to such sources. Id. s 7411(a)(2). For

new sources, the statute provides that "[t]he maximum de-

gree of reduction in emissions that is deemed achievable for

new sources ... shall not be less stringent than the emission

control that is achieved in practice by the best controlled

similar source, as determined by the Administrator." Id.

s 7412(d)(3) (emphasis added). For existing sources, defined

as all stationary sources other than new sources, id.

s 7411(a)(6), the statute provides that standards 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.

s 7412(d)(3)(A).

EPA implements these statutory requirements through a

two-step process. The Agency begins by setting the mini-

mum stringency standards required by section 7412(d)(3) for

new and existing sources. Adding confusion to this already

complex statute, EPA calls these minimum stringency re-

quirements "floors," even though they in fact establish maxi-

mum emission levels. See Sierra Club v. EPA, 167 F.3d 658,

660 (D.C. Cir. 1999) ("Sierra"). Once the Agency sets statu-

tory floors, it then determines, considering cost and the other

factors listed in section 7412(d)(2), whether stricter standards

are "achievable." 42 U.S.C. s 7412(d)(2). The Agency calls

such stricter requirements "beyond-the-floor" standards.

This case concerns emission standards for portland cement

manufacturing plants. See National Emission Standards for

Hazardous Air Pollutants from the Portland Cement Manu-

facturing Industry, 40 C.F.R. ss 63.1340-.1359. Patented in

1824 by Joseph Aspdin and named for its resemblance to

portland stone, limestone from the Isle of Portland, see 9 The

New Encyclopedia Britannica 629 (15th ed. 1998), portland

cement is a fine powder that serves as the key ingredient in

the concrete used in most construction. See National Emis-

sion Standards for Hazardous Air Pollutants; Proposed Stan-

dards for Hazardous Air Pollutants Emissions for the Port-

land Cement Manufacturing Industry, 63 Fed. Reg. 14,182,

14,185 (Mar. 24, 1998). The cement manufacturing process

begins by grinding together materials such as limestone, clay,

shale, sand, iron ore, and flyash and heating the mixture in a

kiln. See 40 C.F.R. s 63.1341; 63 Fed. Reg. at 14,194.

Known as "clinker," the heated mixture is then cooled in a

"clinker cooler" and ground to a fine powder in a mill. See 40

C.F.R. s 63.1341.

Prior to setting cement manufacturing emission standards,

EPA estimated that portland cement plants throughout the

country emitted a total of 290 tons of HAPs per year. 63

Fed. Reg. at 14,183. EPA found that most individual cement

plants released over ten tons of hydrogen chloride ("HCl")

annually, qualifying them as major sources of HAPs for which

the Clean Air Act required the Agency to set emission

standards. See id. at 14,192-93. In addition to HCl, EPA

found that cement plants emitted significant levels of HAP

metals, dioxin/furan, mercury, and organic HAPs other than

dioxin/furan. See id. at 14,195-96. These HAPs were re-

leased by kilns, clinker coolers, and mills, as well as by

storage and transportation of materials within cement plants.

See id. at 14,183. According to EPA, the potential health

effects of these pollutants include inflammation of the respira-

tory tract, reproductive problems, cancer, nausea, blood disor-

ders, and damage to the immune system. See id. at 14,184.

Acting on this information, EPA began by considering

emission "floors" for each of the five major categories of

HAPs released by cement plants. For dioxin/furan, the

Agency set emission floors for both new and existing sources.

Considering particulate matter ("PM") to be an appropriate

surrogate for non-volatile HAP metals--components of PM

that are difficult to measure directly--EPA established emis-

sion floors for new and existing sources for PM as well. EPA

set no floors--referred to as floors of "no control"--for the

three remaining HAPs, HCl, mercury, and organic HAPs

other than dioxin/furan.

The Agency took a technology-based approach to setting

emission floors. For cement plants qualifying as new

sources, EPA identified the emission control technology used

by the best performing plant for which it had information and

called this the MACT floor technology. MACT means "maxi-

mum achievable control technology." EPA then looked at

emissions data for all plants using the MACT floor technology

for which it had information, not just data from the best

performing plant, and set the new source emission floor at the

highest emission level reported by a plant using that technol-

ogy. To set existing source emission floors, EPA followed a

similar procedure. It identified the technology used by the

median plant out of the best twelve percent of plants for

which it had information and set the existing source emission

floor at the emission level of the worst performing plant in its

database using that technology. If, as in the case of HCl,

mercury, and organic HAPs other than dioxin/furan, EPA

found an insufficient number of plants in its database (one for

new sources or twelve percent for existing sources) control-

ling a particular HAP with pollution control technology, it set

no standard at all, i.e., it determined that the emission floor

was "no control."

Proceeding to the next stage of the emission standard

setting process, EPA declined (with one exception not rele-

vant to this case) to set beyond-the-floor standards for either

new or existing sources for any of the five HAPs.

In addition to requiring EPA to set emission standards, the

Clean Air Act directs the Agency to require owners and

operators of major sources to conduct "enhanced monitoring"

of their emissions and to submit "compliance certifications"

reporting compliance with the emission standards. 42 U.S.C.

s 7414(a)(3). Acting pursuant to this requirement, EPA di-

rected cement plants to use a technique known as Fourier

transform infrared spectroscopy ("FTIR") to measure their

HCl emissions to determine whether they qualify as major

sources. See 40 C.F.R. s 63.1352(a); id. pt. 63, app. A.

Plants qualifying as major sources must conduct performance

tests that measure PM emissions every five years. See id.

s 63.1349(b)(1), (c). To test for compliance with PM stan-

dards between performance tests, cement plants must moni-

tor opacity either with a continuous opacity monitor or

through visual inspections. See id. s 63.1350(c). Cement

plants must also develop site-specific operations and mainte-

nance plans to be submitted to EPA for approval as part of

the permitting process. See id. s 63.1350(a).

Petitioners Sierra Club and National Lime Association

("NLA") challenge these regulations. The Sierra Club

mounts four specific challenges: (1) EPA's approach to set-

ting emission floors for PM and dioxin/furan both violates the

Clean Air Act and is arbitrary and capricious; (2) the Agen-

cy's refusal to set standards for HCl, mercury, and total

hydrocarbons violates the statute; (3) EPA's rejection of

beyond-the-floor standards for mercury, total hydrocarbons,

and HAP metals (for which PM is a surrogate) is arbitrary

and capricious; and (4) the monitoring requirements fail to

provide adequate assurance of compliance with the PM stan-

dard. NLA, a trade association representing lime manufac-

turers, some of which also manufacture cement, argues that

(1) EPA's decision to use PM as a surrogate for HAP metals

violates the statute and is arbitrary and capricious; and (2)

the Agency's decision to require cement plants to use the

FTIR method to determine their major source status is

arbitrary and capricious. The American Portland Cement

Alliance, a trade association representing cement manufactur-

ers and marketers, intervenes in support of EPA. We con-

sider the Sierra Club's challenges in Section II and NLA's in

Section III.

II. Sierra Club Petition

A. PM and Dioxin/Furan Floors

Relying on Chevron U.S.A. Inc. v. Natural Resources

Defense Council, Inc., 467 U.S. 837, 842-43 (1984) (establish-

ing that when Congress's intent is clear, "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"),

the Sierra Club argues that the Agency's technology-based

approach conflicts with the Clean Air Act's plain language.

According to the Sierra Club, section 7412(d)(3) requires EPA

to set new source floors at the lowest recorded emission level

for which it has data and existing source floors at the average

of the lowest twelve percent of recorded emission levels for

which it has data. Nothing in the statute, the Sierra Club

argues, permits the Agency to set floors based on the perfor-

mance of technology as opposed to the recorded performance

of plants.

In resolving this issue, we do not write on a clean slate.

EPA's technology-based approach to setting new source emis-

sion standards has already faced and survived a Chevron one

challenge. In Sierra, 167 F.3d 658, we reviewed a new source

emission standard for solid waste combustion that EPA pro-

mulgated pursuant to section 7429, which establishes emission

requirements virtually identical to section 7412's. There, as

here, the Sierra Club argued that EPA's MACT technology

approach to setting emission standards is unambiguously

forbidden by the Clean Air Act. Sierra rejected that argu-

ment, holding that EPA may estimate the performance of the

best performing units and that it was not "impossible" that

EPA's methodology constituted a reasonable estimation tech-

nique. See 167 F.3d at 665. Concluding that EPA could

reasonably interpret the statutory phrase "emissions control

that is achieved in practice" to mean emissions control that is

"achieved under the worst foreseeable circumstances," see id.

(citing National Lime Ass'n v. EPA, 627 F.2d 416, 431 n.46

(D.C. Cir. 1980)), we hypothesized: "perhaps considering all

units with the same technology is justifiable because the best

way to predict the worst reasonably foreseeable performance

of the best unit with the available data is to look at other

units' performance." Id. at 665. But because EPA failed to

explain why it adopted the MACT approach, we remanded to

the Agency for further explanation, thus never needing to

determine whether the MACT approach would have survived

petitioners' Chevron two or arbitrary and capriciousness chal-

lenges.

EPA has now explained why it adopted the MACT ap-

proach. In the announcement of the regulations challenged

in this case, the Agency, citing Sierra, explains (1) that it

must ensure that emission "standards are achievable 'under

[the] most adverse circumstances which can reasonably be

expected to recur,' " 64 Fed. Reg. 31,898, 31,915 (June 14,

1999) (quoting Sierra, 167 F.3d at 665), and (2) that "evaluat-

ing how a given MACT technology performs is a permissible

means" of estimating the actual performance of the top

twelve percent of plants. Id. EPA explains further that the

emission standards it set "are based on the emission levels

achieved through the application of MACT floor technologies

and account for variation in the process and in the air

pollution control device effectiveness." Id. at 31,916.

The Sierra Club does not challenge EPA's extension of

Sierra to existing source standards. Instead, it argues that

Sierra's Chevron one analysis does not control this case

because section 7412 (at issue here) differs from section 7429

(at issue in Sierra). Although the two sections contain identi-

cal stringency requirements for new sources, section 7412, the

Sierra Club emphasizes, directs the Agency to base emission

standards for existing sources on those plants "for which the

Administrator has emissions information," 42 U.S.C.

s 7412(d)(3)(A), a limitation appearing nowhere in section

7429. See id. s 7429(a)(2). According to the Sierra Club,

section 7412's additional limitation implies that EPA must

directly calculate the average of the best twelve percent from

the data it has, thus precluding the Agency from estimating

emissions based on the use of MACT technology.

We do not agree that the difference between the two

sections requires a different result in this case. Section

7412's additional phrase says nothing about what data the

Agency should use to calculate emission standards. It says

only that standards must be based on the best performing

"sources (for which the Administrator has emissions informa-

tion)." 42 U.S.C. s 7412(d)(3)(A). Following this directive,

EPA set standards for PM and dioxin/furan at the average

emission levels it estimated the best 12 percent (for which it

had information) achieved. In doing so, the Agency simply

did not limit itself to consideration of data from the best

twelve percent of plants; instead it used data it had from

other plants that use the same technology as the best twelve

percent to estimate the performance of the best twelve per-

cent. Sierra found this approach not unambiguously forbid-

den by the statute. See 167 F.3d at 665.

Thus bound by Sierra's Chevron one analysis, we turn to

the Sierra Club's argument that the MACT approach is both

unreasonable, see Chevron, 467 U.S. at 843 ("if the statute is

silent or ambiguous with respect to the specific issue, the

question for the court is whether the agency's answer is

based on a permissible construction of the statute"), and

arbitrary and capricious. See 42 U.S.C. s 7607(d)(9)(A). Ac-

cording to the Sierra Club, EPA has never explained why

emission floors set through the MACT approach accurately

estimate the performance of the relevant best performing

plants: "The Agency provide[d] absolutely no reason to be-

lieve that an emission level that is achievable by every source

that uses a particular control technology is necessarily a

reasonable estimate of the actual performance of the best

performing twelve percent of sources." Sierra Club Br. at

23.

We agree that to comply with the statute, EPA's method of

setting emission floors must reasonably estimate the perfor-

mance of the relevant best performing plants. See 42 U.S.C.

s 7412(d)(3); Sierra, 167 F.3d at 665. Yet the Sierra Club's

brief does not explain why the emission standards EPA set

might not accurately estimate the performance of the best

performing twelve percent of plants. The brief never even

suggests that the MACT approach in fact fails to predict the

emission levels of the best performing sources. When we

asked about this at oral argument, it became clear that the

Sierra Club believes that EPA's MACT approach would not

accurately estimate emission levels of the best performing

twelve percent of plants if the best performing plants

achieved their emission levels not just by using technology,

but also by selecting cleaner manufacturing inputs. For

example, the best performing twelve percent of plants might

perform well because, in comparison to other plants having

the same technology, they use less-polluting fuels or purer

raw materials. Such plants would have predictably lower

emissions than plants using MACT floor technology alone.

Under such circumstances, the Sierra Club argues, because

technology would represent only one of the factors determin-

ing emission levels of the best performing plants, EPA could

not assume that emission levels from the worst-performing

plant using MACT floor technology predict the performance

of the best performing plants under the worst conditions.

Although this argument may well have merit, the Sierra

Club's failure to include the argument in its opening brief

precludes us from considering it. See Corson & Gruman Co.

v. NLRB, 899 F.2d 47, 50 n.4 (D.C. Cir. 1990). Claiming only

that the Agency has "never explained" why the MACT ap-

proach accurately predicts the performance of the relevant

best performing sources falls far short of alerting EPA to the

argument we now understand the Sierra Club to be making,

thus giving the Agency no opportunity to respond. The

Sierra Club's failure is particularly serious because the

MACT approach would accurately estimate the performance

of the best performing sources of a particular HAP if pollu-

tion control technology were the only factor determining

emission levels of that HAP--in other words, if emissions

were unaffected by the use of either alternative fuels or raw

materials. To be sure, as the Sierra Club points out in a

letter submitted after oral argument pursuant to Rule 28(j) of

our rules, it did raise its multiple control factors argument

during the rulemaking in a comment regarding emission

standards for mercury. Record comments, however, cannot

cure a failure to raise a key argument here. We will there-

fore deny the Sierra Club's petition for review with respect to

emission floors for PM and dioxin/furan.

B. Failure to set floors for HCl, mercury, and total hydro-

carbons

EPA established emission floors of "no control" for HCl,

mercury, and total hydrocarbons (a surrogate for organic

HAPs other than dioxin/furan) because the Agency found no

cement plants using control technologies for these pollutants.

The Sierra Club argues that EPA's failure to set emission

limits for these HAPs violates the statute's requirement that

the Agency establish emission standards for each of "the

hazardous air pollutants listed for regulation." 42 U.S.C.

s 7412(d)(1). Defending its decision, EPA points to Sierra's

suggestion that the worst foreseeable performance of the best

performing unit might be predictable from the performance

of the worst performing unit using the same technology. See

64 Fed. Reg. at 31,915 (citing Sierra, 167 F.3d at 665).

According to EPA, if no control technology exists, then the

worst foreseeable performance "could vary day by day" and

the standard must be no control. See EPA Response to

Comments (May 7, 1999), at 190.

On this issue, we agree with the Sierra Club. 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 lists over one hundred specific

HAPs, 42 U.S.C. s 7412(b)(1), and requires EPA to "promul-

gate regulations establishing emission standards for each

category or subcategory of major sources ... of hazardous

air pollutants listed for regulation." Id. s 7412(d)(1). The

statute directs the Agency to promulgate these emission

standards by November 15, 2000. Id. s 7412(e)(1)(E). Con-

gress added the list of pollutants to be regulated, regulation

deadlines, and minimum stringency requirements to the

Clean Air Act precisely because it believed EPA had failed to

regulate enough HAPs under previous air toxics provisions.

"The [air toxics] law has worked poorly. In 18 years, EPA

has regulated only some sources of only seven chemicals....

The legislation reported by the Committee would entirely

restructure the existing law, so that toxics might be adequate-

ly regulated by the Federal Government." S. Rep. No.

101-228, at 128 (1989); see also H.R. Rep. No. 101-490, pt. 1,

at 322 (1990) ("Since 1970, EPA has listed only eight sub-

stances as hazardous air pollutants ... and has promulgated

emissions standards for seven of them.").

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.

Although we thus believe that section 7412(d)(1)'s language

disposes of this issue, we add that our reading of that section

is reinforced by section 7412(d)(2)(A). See Martini v. Feder-

al National Mortgage Association, 178 F.3d 1336, 1345-46

(D.C. Cir. 1999) ("Under Chevron's first step ... we have a

duty to conduct an independent examination of the statute in

question, looking not only to the particular statutory language

at issue but also to the language and design of the statute as

a whole.") (internal citations omitted). Section 7412(d)(2)(A)

directs the Agency, in determining the maximum degree of

achievable emission reductions, to consider pollution-reducing

measures including "process changes, substitution of materi-

als or other modifications." 42 U.S.C. s 7412(d)(2)(A). By

focusing only on technology, EPA has ignored this directive.

The Clean Air Act's legislative history confirms that Congress

wanted the Agency to consider more than just pollution

control technology:

The technologies, practices or strategies which are to be

considered in setting emission standards under this sub-

section go beyond the traditional end-of-the-stack treat-

ment or abatement system. The Administrator is to give

priority to technologies or strategies which reduce the

amount of pollution generated through process changes

or the substitution of materials less hazardous. Pollution

prevention is to be the preferred strategy wherever

possible.

S. Rep. No. 101-228, at 168.

For all of these reasons, the absence of technology-based

pollution control devices for HCl, mercury, and total hydro-

carbons did not excuse EPA from setting emission standards

for those pollutants. We thus will remand for EPA to do so.

C. Beyond-the-Floor Standards

The Sierra Club presents a number of objections to EPA's

refusal to set general beyond-the-floor emission standards for

mercury, total hydrocarbons, and HAP metals (for which PM

is a surrogate). Because EPA will now need to initiate new

rulemaking proceedings to establish emission floors for mer-

cury and total hydrocarbons, we need not consider the Agen-

cy's refusal to set beyond-the-floor standards for those two

HAPs. We address only the Sierra Club's challenge to the

Agency's refusal to set beyond-the-floor standards for HAP

metals.

When determining whether to set beyond-the-floor stan-

dards, the Clean Air Act requires EPA to consider "the cost

of achieving such emission reduction, and any non-air quality

health and environmental impacts and energy requirements."

42 U.S.C. s 7412(d)(2). The Sierra Club argues that EPA

violated the statute by failing to consider the non-air quality

health and environmental impacts of potential beyond-the-

floor standards for HAP metals. Again, we agree. Although

EPA considered costs and energy requirements, nowhere in

the record does it appear to have taken account of any non-air

quality health effects.

EPA's analysis of potential beyond-the-floor standards for

HAP metals suffers from a second defect. As the Sierra

Club points out, EPA, responding to a comment in the

rulemaking suggesting that stricter emission standards for

HAP metals could be achieved if cement kilns switched to

natural gas, asserted that "[t]here are no data available to

EPA that indicate that [fuel switching] can or has achieved

metals emission reductions." 64 Fed. Reg 31,917. Yet a

study in the record contains just such information, demon-

strating that switching to natural gas would in fact reduce

metal emissions. See Office of Air Quality Planning and

Standards, U.S. EPA, Study of Hazardous Air Pollutants

Emissions from Electric Utility Steam Generating Units

13-2 (1998). EPA now tells us that fuel switching is not a

viable alternative because of inadequate supplies of natural

gas. In support of this proposition, the Agency points to a

handwritten notation on a report in the administrative record.

But that note, supposedly written by an EPA employee, is

virtually illegible--even the Agency's counsel was unable to

decipher it at oral argument. Therefore, the note cannot

supply a basis for EPA's decision. Although the Agency's

brief cites one other study in support of its assertion that the

supply of natural gas is inadequate, nothing in the rulemaking

indicates that EPA relied on it. "[A]n agency's action must

be upheld, if at all, on the basis articulated by the agency."

Motor Vehicle Mfrs. Ass'n v. State Farm Mut. Auto. Ins. Co.,

463 U.S. 29, 50 (1983).

Thus, because EPA failed to consider non-air quality health

and environmental impacts of potential beyond-the-floor stan-

dards for HAP metals, and because it relied on a factually

incorrect assertion in rejecting such standards, we will re-

mand the beyond-the-floor determination for HAP metals for

further consideration consistent with this opinion. In view of

the Sierra Club's request that we not vacate the EPA's

regulations, because "to do so would at least temporarily

defeat [Sierra Club's] purpose, the enhanced protection" of

the environment, Environmental Defense Fund, Inc. v.

Adm'r of the EPA, 898 F.2d 183, 190 (D.C. Cir. 1990), we will

leave the current PM regulations in place during remand.

D. Monitoring

In its final challenge, the Sierra Club argues that the

regulation's monitoring requirements fail to provide reason-

able assurance of compliance with the emission standards.

Specifically, it argues that the opacity monitoring required by

the regulation will not guarantee compliance with the PM

standard. EPA responds that opacity monitoring promotes

good operation and maintenance, which in turn reasonably

ensure compliance with the PM standard. Because the Sier-

ra Club has given us no basis for doubting this assertion, and

because analysis of this issue "requires a high level of techni-

cal expertise, we must defer to the informed discretion" of the

Agency. Marsh v. Oregon Natural Resources Council, 490

U.S. 360, 377 (1989) (internal quotation marks omitted).

III. Petition of the National Lime Association

Petitioner National Lime Association (NLA) claims that

two additional aspects of the portland cement rule are con-

trary to law and arbitrary and capricious: the EPA's use of

PM as a surrogate for HAP metals, and its requirement that

cement kilns use a specified technique to measure their HCl

emissions under certain circumstances. We consider these

arguments only after concluding that the NLA has standing

to raise them.

A. Standing of the NLA

The EPA argues that the NLA lacks standing to object to

the portland cement rule because it is a trade association of

lime and not of cement manufacturers. Although the EPA

recognizes that some NLA members manufacture both ce-

ment and lime, the agency asserts that the NLA made no

mention of its cement members during proceedings before

the agency, "suggesting only that [the portland cement rule]

could establish adverse precedents ... for the commercial

lime industry." The EPA also emphasizes that NLA mem-

bers that manufacture both lime and cement are also mem-

bers of the American Portland Cement Association (APCA),

which--in the view of the agency--adequately represents

their cement interests. The APCA, as mentioned above, has

intervened in this case in defense of the portland cement rule.

The EPA cites no authority--and we know of none--

suggesting that the position taken by one association affects

the right of another to seek judicial review; and although the

possibility of an adverse precedent is clearly insufficient to

establish the injury necessary for standing under Article III,

an association anxious to avoid an adverse precedent may still

bring a petition if it otherwise meets the requirements for

standing. Those requirements are straightforward:

[A]n association has standing to bring suit on behalf of its

members when: (a) its members would otherwise have

standing to sue in their own right; (b) the interests it

seeks to protect are germane to the organization's pur-

pose; and (c) neither the claim asserted nor the relief

requested requires the participation of individual mem-

bers in the lawsuit.

Hunt v. Washington State Apple Advertising Comm'n, 432

U.S. 333, 343 (1977). That the NLA meets requirement (c) is

unquestioned. In order to prevail on the standing question,

then, the EPA must show that the NLA fails to meet

requirement (a) or (b).

Requirement (a) is met if "any one" of the association's

members can "make out a justiciable case." Warth v. Seldin,

422 U.S. 490, 511 (1975). The member must show (i) that it

was injured in fact, (ii) that its injury was caused by the

challenged rule, and (iii) that its injury would likely be

redressed by a favorable decision of the court. Lujan v.

Defenders of Wildlife, 504 U.S. 555, 560-61 (1992). The NLA

submits an affidavit from the "Environmental Director" of

Blue Circle, Inc. affirming that Blue Circle is an NLA mem-

ber, stating that it operates both cement and lime manufac-

turing plants, and asserting facts indicating that it meets all

three elements of requirement (a). Blue Circle asserts both

that the use of PM as a surrogate and the HCl measurement

requirement impose "significant" monitoring and compliance

costs upon its cement operations, which would be avoided by

this court's favorable decision. Blue Circle's specific asser-

tions as to harm, causation, and redressability are neither

"general" nor "conclusory," as the EPA suggests. We con-

clude, therefore, that the NLA has at least one member that

could assert a justiciable claim in its own right.

Beyond injury in fact, causation, and redressability, re-

quirement (b) of Hunt demands that the interest an associa-

tion seeks to protect be "germane to the organization's pur-

pose." 432 U.S. at 343. This requirement of germaneness is

"undemanding"; "mere pertinence between litigation subject

and organizational purpose" is sufficient. Humane Soc'y v.

Hodel, 840 F.2d 45, 58 (D.C. Cir. 1988). The subject of this

litigation is the regulation of portland cement manufacturing;

that is certainly "pertinent" to the NLA as a trade association

of manufacturers of lime. Not only do some companies

manufacture both cement and lime, but both industries share

a critical raw material--limestone--and lime itself is some-

times used as an ingredient in portland cement. See 63 Fed.

Reg. at 14,194/2; J.A.H. Oates, Lime and Limestone 81, 124

(1998). The processes underlying the two types of manufac-

ture are also similar, as is made abundantly clear by the

NLA's efforts to introduce into the record in this case data

from the EPA's administrative record regarding the manufac-

ture of lime. Ct. Op. at 24-25 below. The two manufactur-

ing processes also emit some of the same pollutants. The

regulation of portland cement thus falls well within the "spe-

cialized expertise and research resources" of the NLA. Hu-

mane Soc'y, 840 F.2d at 56.

Our analysis of germaneness is unaffected by the EPA's

argument that the NLA, in advancing its lime interests, has

taken a position on the cement rule adverse to the interests of

cement manufacturers. The NLA is entitled to be an advo-

cate for a subgroup of cement manufacturers whose interests

diverge from those of the run of cement producers--for

example, companies such as Blue Circle that manufacture

both cement and lime. Cf. National Maritime Union v.

Commander, Military Sealift Command, 824 F.2d 1228, 1234

(D.C. Cir. 1987) (quoted in Humane Soc'y, 840 F.2d at 59

n.25) ("mere fact of conflicting interests among members of

an association does not of itself defeat the association's stand-

ing to urge the interests of some members in litigation, even

though success may harm the legal interests of some mem-

bers").

Because the NLA has at least one member that could have

pressed the same claims in its own right, and because those

claims are germane to the organizational purpose of the NLA,

we conclude that the association has standing to petition for

review of the portland cement rule.

B. The Use of PM as a Surrogate

The NLA's primary objection to the portland cement rule

is that it limits PM emissions from cement kilns instead of

regulating emissions of HAP metals individually. The EPA

justifies its decision to regulate PM as "a surrogate for non-

volatile HAP metals" by noting first that PM generated by

cement kilns invariably contains HAP metals, so that prevent-

ing the emission of a unit of PM necessarily prevents the

emission of some quantum of HAP metals. Using PM as a

surrogate thus "achieves exactly the same level of HAP metal

emissions limitation" as would be reached were the metals to

be regulated directly. The agency also states that "the

MACT floor equipment and level of control for HAP metals

... is identical to that for PM." Finally, the agency notes

that the use of a surrogate "eliminates the cost of perfor-

mance testing to comply with numerous standards for individ-

ual metals." 64 Fed. Reg. at 31,916/3.

The EPA may use a surrogate to regulate hazardous

pollutants if it is "reasonable" to do so. See Dithiocarbamate

Task Force v. EPA, 98 F.3d 1394, 1399 (D.C. Cir. 1996) (EPA

may attribute characteristics of a subclass of substances to an

entire class of substances if doing so is scientifically reason-

able); NRDC v. EPA, 822 F.2d 104, 125 (D.C. Cir. 1987)

(EPA may regulate pollutant indirectly when its emissions

are controllable by regulation of other pollutants). Even a

reasonable surrogate, of course, may not be used where doing

so would be otherwise contrary to law. The NLA does not

challenge the legality of surrogacy in general, but does main-

tain that in this case the use of PM as a surrogate is both

contrary to law and unreasonable.

1. Legality of using a criteria pollutant as a surrogate

The NLA argues first that the EPA may not use PM as a

surrogate for HAP metals because PM is a criteria pollu-

tant--one of several ubiquitous pollutants that the EPA

regulates by establishing national ambient air quality stan-

dards (NAAQS) under ss 108-09 of the Clean Air Act. 42

U.S.C. ss 7408-09. The provision authorizing the EPA to

regulate HAPs in the Clean Air Act is limited by the qualifi-

cation that "no [criteria] air pollutant ... may be added to

the list [of regulable HAPs]." Id. s 7412(b)(2). The NLA

argues that although surrogates for HAPs are permissible in

general, using a criteria pollutant as such a surrogate has the

effect of regulating that pollutant as a HAP "through the

back door" and thus illicitly supplementing (or even supplant-

ing) the NAAQS applicable to that pollutant.

The EPA suggests first that the NLA's interpretation is

inconsistent with the stated expectation of the Congress that

HAP metals might be regulated under the Clean Air Act by

way of a PM surrogate, but the agency's point is not well-

taken. The EPA relies principally upon a report accompany-

ing Senate Bill 1630, a version of which would ultimately

become the Clean Air Act Amendments of 1990. The report,

in a discussion of the EPA's discretionary authority to lower

the level of emissions that qualifies a facility as a "major

source" of HAPs, see 42 U.S.C. s 7412(a)(1), notes that the

agency may find this power "especially useful in the control of

particulate emissions including metals for some source cate-

gories." S. Rep. No. 101-228, at 151. The authors of the

report thus appear to have contemplated that the regulation

of "metals" could be subsumed by controls placed upon

"particulate emissions."

The report, however, was issued in conjunction with Senate

Bill 1630 as it went to the floor of the Senate on December 20,

1989. In that version of the bill, the passage that would have

become s 7412(b)(2) authorized the Administrator to add to

the list of hazardous air pollutants any additional pollutants

which present, or may present, ... a threat of adverse

human health effects (including, but not limited to, sub-

stances which are known to be, ... carcinogenic [etc.,]

but not including effects for which a pollutant has been

listed pursuant to section 108 of [the Clean Air] Act).

S. 1630, 101st Cong. s 301, at 324 (1989) (emphasis added).

The italicized clause in the reported version of Senate Bill

1630 does not appear in the statute as enacted. The sentence

that appears in the legislation that the Congress ultimately

passed, and upon which the NLA bases its statutory claim,

provides: "No air pollutant which is listed under section

7408(a) of this title [i.e., s 108 of the Clean Air Act,] may be

added to the list [of HAPs] under this section." 42 U.S.C.

s 7412(b)(2).

The italicized clause in the unenacted bill is materially

different from the statutory provision upon which the NLA

bases its claim. The earlier version would have prohibited

the regulation of a criteria pollutant as a HAP only if such

regulation was based upon the same reason for which the

pollutant was listed as a criteria pollutant under s 108. The

final statute, by contrast, unqualifiedly prohibits listing a

criteria pollutant as a HAP, that is, regardless of the reason.

Because the comment in the Senate Report regarding PM

and metals was made before the blanket prohibition upon

regulating PM as a HAP was added to the statute, the report

is irrelevant to our construction of s 7412(b)(2) as enacted.

The enacted statute, to which we now turn, prohibits the

addition of any criteria pollutant to "the list" of HAPs, with a

single exception for certain precursor pollutants not relevant

to this case. See id. This prohibition extends of necessity

not only to rules that literally list a criteria pollutant as a

HAP but also to any rule that in effect treats a criteria

pollutant as a HAP. As the EPA shows, however, the

portland cement rule does not treat PM as a HAP generally;

it regulates only PM that is emitted from cement kilns. The

rule does not treat PM, unlike a HAP metal, as a pollutant

the emissions of which determine whether a cement plant is a

"major source" of emissions. See id. s 7412(a)(1). Nor does

the EPA suggest in any way that it contemplates broad

regulation of PM pursuant to s 7412. To the contrary, all of

the evidence upon which the agency relies to justify its use of

PM as a surrogate is particular to the cement industry. See

Memorandum from Elizabeth Heath, Research Triangle In-

stitute, to Joseph Wood, EPA 2-8 (Feb. 21, 1996); Memoran-

dum from Michael Benson, Research Triangle Institute, to

Mary Johnson, EPA 1 (June 21, 1993); Portland Cement

Ass'n, An Analysis of Selected Trace Metals in Cement and

Kiln Dust at 3-4 (1992). We therefore conclude that the use

of PM as a surrogate for HAP metals is not contrary to law.

2. Reasonableness of the PM surrogate

The NLA also contends that PM is an unreasonable surro-

gate for HAP metals because HAP metals make up a "very

small and variable" portion of cement kiln PM emissions.

The NLA faults the EPA both because it did not demonstrate

and quantify a consistent correlation between PM stack emis-

sions and their HAP metal content, and because it selected a

surrogate of which HAP metals make up only "about one

tenth of one percent."

The EPA acknowledges both points. The closest the agen-

cy comes to making a numerical estimate of the correlation

between PM and the HAP metals it contains is the statement

that "the total average HAP metal content of kiln exhaust

PM is approximately one weight percent." 63 Fed. Reg. at

14,195/2. The EPA thus admits that the ratio of HAP metals

to total particulates is small; and the agency nowhere dis-

cusses the variance associated with its estimated average.

The EPA contends, however, that it justified the surrogacy

adequately by demonstrating that "where there is cement kiln

PM, HAP metals are always in it, and when cement kiln PM

is removed from emissions, HAP metals are always removed

with it." According to the EPA, as long as it demonstrates

that there is a correlation between HAP metals and PM, it

need not quantify that correlation or assess its variability

because PM control technology is such that each unit of PM

emissions avoided "carries" within it some quantum of HAP

metals.

The agency's analysis is not unreasonable. If HAP metals

are invariably present in cement kiln PM, then even if the

ratio of metals to PM is small and variable, or simply

unknown, PM is a reasonable surrogate for the metals--

assuming, as both the EPA and the NLA appear to do, that

PM control technology indiscriminately captures HAP metals

along with other particulates, an assumption about which we

say more in the next paragraph. The EPA is under no

obligation to achieve a particular numerical reduction in HAP

metal emissions; it must reduce their emission only to the

level "achieved" by the best performing facility or, for exist-

ing sources, to the level achieved by the median of the best-

performing 12 percent of facilities. 42 U.S.C. s 7412(d)(3).

If PM control is the only means by which facilities "achieve"

reductions in HAP metal emissions, then the EPA may

require PM control without quantifying the reduction in HAP

metals thus achieved.

We should add, however, that the EPA may need to

reconsider whether PM is an appropriate surrogate for HAP

metals when, upon remand, it considers whether to establish

beyond-the-floor standards for HAP metals (for which PM is

a proxy). We held above, see Ct. Op. at 14, that the EPA

must consider the potential impact upon emissions of changes

in inputs to the cement manufacturing process, especially the

possibility of fuel switching. The EPA decided to use PM as

a surrogate for HAP metals because PM control technology

traps HAP metal particles and other particulates indiscrimi-

nately. In considering the role of inputs, the EPA must also

assure itself that fuels and other inputs affect HAP metal

emissions in the same fashion that they affect the other

components of PM. For example, PM might not be an

appropriate surrogate for HAP metals if switching fuels

would decrease HAP metal emissions without causing a corre-

sponding reduction in total PM emissions.

3. The NLA's other arguments against PM as a surrogate

The NLA offers several other reasons for thinking the

EPA's use of PM as a surrogate for HAP metals might be

unreasonable or contrary to law, but each of them is without

merit. First, the NLA claims that the use of PM as a

surrogate is incompatible with the agency's own methodology

for setting MACT floors. According to the NLA, this meth-

odology requires the agency to set a floor of "no control" for

HAP metals because no cement plant intentionally controls

HAP metals; metal emissions are controlled only incidentally

by controls placed upon PM. The EPA's response is the

correct one: "cement plants actually are controlling HAP

metals[,] [i]ntentionally or not." The Clean Air Act requires

the EPA to set MACT floors based upon the "average

emission limitation[s] achieved," 42 U.S.C. s 7412(d)(3); it

nowhere suggests that this achievement must be the product

of a specific intent. Moreover, as we have seen, the EPA's

floor-setting methodology does not permit the agency to set a

MACT floor of "no control" simply because no controls are in

place, see Ct. Op. at 12 above; a fortiori, the EPA may not

set such a floor when the controls are in place but the cement

kilns have not intentionally deployed them for that purpose.

Second, the NLA claims that the EPA, in limiting PM

emissions, failed to meet the statutory requirement to "tak[e]

into consideration the cost of achieving ... emissions reduc-

tion[s]" for the underlying HAP metals. 42 U.S.C.

s 7412(d)(2). According to the NLA, the per unit cost of

preventing HAP metal emissions is prohibitively high. Cost,

however, may be taken into account only in considering

beyond-the-floor emissions limitations, which in the case of

PM we have remanded to the agency; cost may not influence

the determination of a MACT floor, which depends exclusive-

ly upon the emissions reductions achieved by the best-

performing sources. See id. s 7412(d)(3). Relatedly, the

NLA also claims that in light of both the high costs and the

low quantities of HAP metals to be controlled, the EPA

should read a de minimis exception into the requirement that

it regulate all hazardous air pollutants emitted by major

sources. The EPA reasonably rejected this argument on the

ground that the statute "does not provide for exceptions from

emissions standards based on de minimis principles where a

MACT floor exists." Response to Comments at 211.

C. Measurement of HCl Emissions

HCl is emitted in sufficient quantity from most cement

kilns to qualify each kiln as a "major source," that is, a source

that "emits or has the potential to emit considering controls,

in the aggregate, 10 tons per year or more of any [HAP]," 42

U.S.C. s 7412 (a)(1). See 63 Fed. Reg. at 14,192-93. The

challenged rule allows a single technique for measuring HCl

emissions from a cement kiln--Fourier Transform Infrared

Spectroscopy (FTIR)-if the kiln "wishes to claim it is not a

major source." 64 Fed. Reg. at 31,907/2. The EPA refused

to allow kilns to use two other methods--so-called Method 26

and its variant, Method 26A--to support such a claim be-

cause, in the agency's view, these methods "may underesti-

mate HCl emissions by a factor of 2 to 25." 63 Fed. Reg. at

14,193/1. The NLA claims that this determination was un-

lawful and arbitrary and capricious. It also asserts that the

EPA acted unlawfully when it refused to consider NLA's

comments suggesting potential improvements in Method

26/26A.

The NLA bases its claim upon data regarding Method

26/26A that it submitted to the EPA but the agency did not

consider. The EPA was under no obligation to do so, howev-

er, because the materials the NLA cites were not part of the

administrative record. All but one of the letters from the

NLA transmitting the disputed information to the EPA are

dated after June 26, 1998, the close of the comment period.

64 Fed. Reg. at 31,900/1. Information submitted to the

agency out of time is incorporated into the administrative

record only if the Administrator of the EPA determines that

it is "of central relevance to the rulemaking." 42 U.S.C.

s 7607(d)(4)(B)(i). Because she did not so determine, the

NLA may not present arguments based upon that informa-

tion.

The one document the NLA proffers that was submitted

within the comment period is a letter dated June 22, 1998,

transmitting a summary of a conference call that day between

officials of the NLA and of the EPA. See Letter from Arlene

Seeger, Executive Director, NLA, to Joseph P. Wood, EPA 1.

The June 22 letter nowhere suggests, however, that it is

being submitted in connection with the proposed portland

cement rule. Instead, as is also implied in later correspon-

dence between the EPA and the NLA, the conference call

appears to have been part of an ongoing dialogue between the

agency and the NLA regarding a proposed rule affecting the

lime industry. The EPA is not required to consider in its

deliberations here information apparently submitted in con-

nection with a different rulemaking proceeding when no one

timely asked it to do so.

The NLA also suggests that the EPA unlawfully failed to

consider several pages of handwritten calculations that pur-

port to test whether another approach to measuring HCl

emissions--gas filter correlation infrared spectroscopy

(GFCIR)--generates biased results relative to FTIR. The

EPA concedes that this test should have been, but was not,

included in the administrative record. As the EPA points

out, however, the omission is immaterial because the agency

used the calculations only to determine that GFCIR was too

biased to be a usable testing method--and the NLA does not

challenge that determination. We therefore conclude that the

EPA was not required to consider the data the NLA cites in

deciding that Method 26/26A could not be used to challenge

"major source" determinations.

Separately, the EPA concedes that it failed to consider the

NLA's properly submitted comments regarding possible im-

provements to Method 26/26A. We therefore remand this

matter to the agency so that it may respond to those com-

ments.

IV. Conclusion

In summary, we remand the rule to the EPA to allow the

agency to (1) set "MACT floor" standards for HCl, mercury,

and total hydrocarbons; (2) consider setting "beyond-the-

floor" standards for HAP metals; and (3) respond to com-

ments suggesting improvements to Method 26/26A for meas-

uring HCl emissions. With respect to all other issues dis-

cussed herein, the petitions are denied.

So ordered.