# Appendix — Util. Air Regulatory Grp. v. Envtl. Prot. Agency, 135 S. Ct. 702 (2014) (No. 14-47) > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385016_0332%3A03 ## Record - **Collection:** Supreme Court brief - **Document type:** Appendix - **Published:** January 1, 2014 ## Text 14-47% No. IN THE Supreme Court of the United States ee UTILITY AIR REGULATORY GROUP, Petitioner, Vv. UNITED STATES ENVIRONMENTAL PROTECTION AGENCY, Respondent. ——— — - EE — On Petition for a Writ of Certiorari to the United States Court of Appeals for the District of Columbia Circuit APPENDIX VOLUME I OF II F. WILLIAM BROWNELL (Counsel of Record) HENRY V. NICKEL LEE B. ZEUGIN LAUREN E. FREEMAN ELIZABETH L. HORNER HUNTON & WILLIAMS LLP 2200 PENNSYLVANIA AVE., NW WASHINGTON, D.C. 20037 (202) 955-1500 bbrownell@hunton.com duly 14, 2014 Counsel for Petitioner OT ——— Wasdetres PrwtnwGCo inc - (202) 789-0096 -— WASHINGTION.D C 20002 TABLE OF CONTENTS VOLUME I: APPENDIX A: Order of the U.S. Court of Appeals for the District of Columbia Circuit Denying All Petitions for Review, Except the Petition for Review in No. 12-1174, and Dis- missing That Petition APPENDIX B: Opinion of the U.S. Court of Appeals for the District of Columbia Circuit APPENDIX C: U.S. Environmental Protec- tion Agency, National Emission Standards for Hazardous Air Pollutants From Coal- and Oil-Fired Electric Utility Steam Generating Units and Standards of Performance for Fos- sil-Fuel-Fired Electric Utility, Industrial- Commercial-Institutional, and Small Indus- trial-Commercial-Institutional Steam Gen- erating Units; Final Rule, 77 Fed. Reg. 9304 (Feb. 16, 2012) (excerpts) VOLUME IT: APPENDIX D: Federal Statutes Clean Air Act § 112, 42 U.S.C. § 7412 (ex- eT Re CCCP Pewee eee eee ee ee Page APPENDIX E: EPA’s Responses to Public Comments on EPA’s National Emission Standards for Hazardous Air Pollutants from Coal- and Oil-Fired Electric Utility Steam Generating Units, Vol. 1 (Dec. 2011), Docket No. EPA-HQ-OAR-2009-0234-20126 (ex- I ciaces crease succinic hcincatainglnie sedis elinabntaadgsemniaels APPENDIX F: Utility Air Regulatory Group, Comments on National Emission Standards for Hazardous Air Pollutants From Coal- and Oil-Fired Electric Utility Steam Generating Units: Proposed Rule (Aug. 4, 2011), Docket No. EPA-HQ-OAR-2009-0234-17775 (ex- SIE sdiedutctbdaienmeeniiiadiemubathiembenncunaiiddiespiaissumwckiniicin APPENDIX G: U.S. Environmental Protec- tion Agency, National Emission Standards for Hazardous Air Pollutants From Coal- and Oil-Fired Electric Utility Steam Generating Units and Standards of Performance for Fos- sil-Fuel-Fired Electric Utility, Industrial- Commercial-Institutional, and Small Indus- trial-Commercial-Institutional Steam Gen- erating Units;.Proposed Rule, 76 Fed. Reg. 24,976 (May 3, 2011) (excerpts).......................... ll APPENDIX H: U.S. Environmental Protec- tion Agency, Revision of December 2000 Regulatory Finding on the Emissions of Hazardous Air Pollutants From Electric Util- ity Steam Generating Units and the Removal of Coa]- and Oil-Fired Electric Utility Steam Generating Units From the Section 112(c) List; Final Rule, 70 Fed. Reg. 15,994 (Mar. 29, 2005) (excerpt) APPENDIX I: U.S. Environmental Protec- tion Agency, Regulatory Finding on the Emissions of Hazardous Air Pollutants From Electric Utility Steam Generating Units; No- tice of Regulatory Finding, 65 Fed. Reg. 79,825 (Dec. 20, 2000) APPENDIX J: U.S. Environmental Protec- tion Agency, EPA-453/R-98-004a, Study of Hazardous Air Pollutant Emissions from Electric Utility Steam Generating Units -- Final Report to Congress, Vol. 1 (Feb. 1998), Docket No. EPA-HQ-OAR-2009-0234-3052 (excerpts) i SETTER EEE EERE RRO eee oe SCPE eRe RRR eR CPP e ee eee la APPENDIX A UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT No. 12-1100 September Term, 2013 FILED ON: APRIL 15, 2014 WHITE STALLION ENERGY CENTER, LLC, PETITIONER V. ENVIRONMENTAL PROTECTION AGENCY, RESPONDENT AMERICAN ACADEMY OF PEDIATRICS, ET AL., INTERVENORS Consolidated with 12-1101, 12-1102, 12-1147, 12- 1172, 12-1173, 12-1174, 12-1175, 12-1176, 12-1177, 12-1178, 12-1180, 12-1181, 12-1182, 12-1183, 12- 1184, 12-1185, 12-1186, 12-1187, 12-1188, 12-1189, 12-1190, 12-1191, 12-1192, 12-1193, 12-1194, 12- 1195, 12-1196 On Petitions for Review of Final Rule of the United States Environmental Protection Agency BEFORE: Garland, Chief Judge, and Rogers and Kavanaugh, Circuit Judges 2a JUDGMENT These causes came on to be heard on the petitions for review of a Final Rule of the United States Envi- ronmental! Protection Agency and were argued by counsel. On consideration thereof, it is ORDERED and ADJUDGED that the petitions for review be denied except that the petition for re- view in No. 12-1174, Julander Energy Co. v. EPA, be dismissed for lack of standing, in accordance with the opinion of the court filed herein this date. Per Curiam FOR THE COURT: Mark J. Langer, Clerk BY: /s/ Jennifer M. Clark Deputy Clerk Date: April 15, 2014 Opinion Per Curiam. Opinion concurring in part and dissenting in part filed by Circuit Judge Kavanaugh. 3a APPENDIX B UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT Argued December 10, 2013 Decided April 15, 2014 No. 12-1100 WHITE STALLION ENERGY CENTER, LLC, PETITIONER Vv. ENVIRONMENTAL PROTECTION AGENCY, RESPONDENT AMERICAN ACADEMY OF PEDIATRICS, ET AL., INTERVENORS Consolidated with 12-1101, 12-1102, 12-1147, 12- 1172, 12-1173, 12-1174, 12-1175, 12-1176, 12- 1177, 12-1178, 12-1180, 12-1181, 12-1182, 12- 1183, 12-1184, 12-1185, 12-1186, 12-1187, 12- 1188, 12-1189, 12-1190, 12-1191, 12-1192, 12- 1193, 12-1194, 12-1195, 12-1196 On Petitions for Review of Final Rule of the United States Environmental Protection Agency Lee B. Zeugin and Neil D. Gordon, Assistant At- torney General, Office of the Attorney General for the State of Michigan, argued the causes for State, In- 4a dustry, and Labor Petitioners. With them on the joint briefs were F. William Brownell, Lauren E. Freeman, Elizabeth L. Horner, Bill Schuette, Attorney General, Office of the Attorney General for the State of Michi- gan, John J. Bursch, Solicitor General, S. Peter Man- ning, Assistant Attorney General, Luther Strange, Attorney General, Office of the Attorney Genera! for the State of Alabama, Michael C. Geraghty, Attorney General, Office of the Attorney General for the State of Alaska, Steven E. Mulder, Attorney, Peter S. Gla- ser, George Y. Sugiyama, Michael H. Higgins, David B. Rifkin, Jr., Lee A. Casey, Mark W. DeLaquil, An- drew M. Grossman, David Flannery, Gale Lea Ru- brecht, Kathy G. Beckett, Edward L. Kropp, Leslie Sue Ritts, Thomas Horne, Attorney General, Office of the Attorney General for the State of Arizona, Joseph P. Mikitish and James T. Skardon, Assistant Attor- neys General, Dustin McDaniel, Attorney General, Office of the Attorney General for the State of Arkan- sas, Kendra Akin Jones, Assistant Attorney General, Charles L. Moulton, Senior Assistant Attorney Gen- eral, Pamela Jo Bondi, Attorney General, Office of the Attorney General for the State of Florida, Jona- than A. Glogau, Attorney, Lawrence G. Wasden, At- torney General, Office of the Attorney General for the State of Idaho, Grant Crandall, Arthur Traynor, III, Eugene M. Trisko, Gregory F. Zoeller, Attorney Gen- eral, Office of the Attorney General for the State of Indiana, Valerie Tachtiris, Deputy Attorney General, Dennis Lane, Derek Schmidt, Attorney General, Of- fice of the Attorney General for the State of Kansas, Jeffrey A. Chanay, Deputy Attorney General, Henry V. Nickel, George P. Sibley HI, Eric A. Groten, Jeremy C. Marwell, John A. Riley, Christopher C. Thiele, Harold E. Pizzetta III, Assistant Attorney General, 5a Office of the Attorney General for the State of Missis- sippi, Chris Koster, Attorney General, Office of the Attorney General for the State of Missouri, James R. Layton and John J. McManus, Attorneys, Paul D. Clement, Nathan A. Sales, Lisa Marie Jaeger, Jon Bruning, Attorney General, Office of the Attorney General for the State of Nebraska, Katherine J. Spohn, Special Counsel to the Attorney General, Wayne Stenehjem, Attorney General, Office of the At- torney General for the State of North Dakota, Mar- garet I. Olson, Steven C. Kohl, Eugene E. Smary, Sa- rah C. Lindsey, E. Scott Pruitt, Attorney General, Of- fice of the Attorney General for the State of Oklaho- ma, P. Clayton Eubanks, Assistant Attorney General, Michael DeWine, Attorney General, Office of the At- torney General for the State of Ohio, Dale T. Vitale and Gregg H. Bachmann, Assistant Attorneys Gen- eral, Robert M. Wolff, Special Counsel, Alan Wilson, Attorney General, Office of the Attorney General for the State of South Carolina, James Emory Smith, -Jr., Assistant Deputy Attorney General, Mark L. Shurtleff, Attorney General, Office of the Attorney General for the State of Utah, Greg Abbott, Attorney General, Office of the Attorney General for the State of Texas, Jon Niermann, Chief, Mark Walters and Mary E. Smith, Assistant Attorneys General, Ken- neth T. Cuccinelli, IJ, Attorney General, Office of the Attorney General for the Commonwealth of Virginia, Patrick Morrisey, Attorney General, Office of the At- torney General for the State of West Virginia, Silas B. Taylor, Senior Deputy Attorney General, Jeffrey R. Holmstead, Sandra Y. Snyder, Gregory A. Phillips, Attorney General, Office of the Attorney General for the State of Wyoming, Jay A. Jerde, Deputy Attorney General, Jack Conway, Attorney General, Office of 6a the Attorney General for the State of Kentucky, Bart E. Cassidy, and Katherine L. Vaccaro. Bill Cobb argued the cause for Industry Petition- ers’ Specific Issues. With him on the briefs were Mi- chael Nasi, Leslie Sue Ritts, Jeffrey R. Holmstead, Sandra Y. Snyder, Paul D. Clement, Nathan A. Sales, Steven C. Kohl, Eugene E. Smary, Sarah C. Lindsay, Bart E. Cassidy, Katherine L. Vaccaro, John C. Hayes, Jr., Dennis Lane, John A. Riley, Christopher C. Thiele, C. Grady Moore, III, P. Stephen Gidiere, III, and Thomas Lee Casey, III. | Sanjay Narayan and Eric Schaeffer argued the causes for Environmental Petitioners. With them on the briefs were Whitney Farrell, James S. Pew, Neil Gormley, Ann Brewster Weeks, and Darin Schroeder. David Bookbinder argued the cause and filed the briefs for petitioner Julander Energy Company. Michael B. Wigmore, Sandra P. Franco, Robin S. Conrad, Rachel Brand, and Sheldon Gilbert were on the brief for amicus curiae The Chamber of Com- merce of the United States of America in support of Industry Petitioners. Eric G. Hostetler, Matthew R. Oakes, and Amanda S. Berman, Attorneys, U.S. Department of Justice, argued the causes for respondent. With them on the brief was Wendy L. Blake, Attorney, U.S. Environ- mental Protection Agency. Melissa Hoffer, Assistant Attorney General, Office of the Attorney General for the Commonwealth of Massachusetts, argued the cause for State and Local Government Intervenors in support of Respondent. With her on the brief were Martha Coakley, Attorney 7a General, Office of the Attorney General for the State of Massachusetts, Tracy Triplett and Carol A. Jancu, Assistant Attorneys General, Kamala D. Harris, At- torney General, Office of the Attorney General for the State of California, Janill L. Richards, Supervising Deputy Attorney General, Susan L. Durbin, Deputy Attorney General, Joseph R. Biden, III, Attorney General, Office of the Attorney General for the State of Delaware, Valerie M. Satterfield, Deputy Attorney General, Thomas L. Miller, Attorney General, Office of the Attorney General for the State of Iowa, David R. Sheridan, Assistant Attorney General, George Jepsen, Attorney General, Office of the Attorney General for the State of Connecticut, Kimberly P. Massicotte and Matthew I. Levine, Assistant Attor- neys General, Lisa Madigan, Attorney General, Of- fice of the Attorney General for the State of Illinois, Matthew J. Dunn and Gerald T. Karr, Assistant At- torneys General, Douglas F. Gansler, Attorney Gen- eral, Office of the Attorney General for the State of Maryland, Roberta R. James, Assistant Attorney General, Michael A. Delaney, Attorney General, Of- fice of the Attorney General for the State of New Hampshire, K. Allen Brooks, Senior Assistant Attor- ney General, Janet T. Mills, Attorney General, Office of the Attorney General for the State of Maine, Ger- ald D. Reid, Assistant Attorney General, Lori Swan- son, Attorney General, Office of the Attorney General for the State of Minnesota, Max Kieley, Assistant At- torney General, Eric T. Schneiderman, Attorney General, Office of the Attorney General for the State of New York, Michael J. Myers and Kevin P. Do- novan, Assistant Attorneys General, Ellen F. Rosen- baum, Attorney General, Office of the Attorney Gen- eral for the State of Oregon, Paul A. Garrahan, As- 8a sistant Attorney-in-Charge, Gary K. King, Attorney General, Office of the Attorney General for the State of New Mexico, Stephen R. Farris, Assistant Attorney General, Roy Cooper, Attorney General, Office of the Attorney General for the State of North Carolina, James C. Gulick, Senior Deputy Attorney General, /J/. Allen Jernigan, Marc Bernstein, and Amy L. Bircher, Special Deputy Attorneys General, William H. Sor- rell, Attorney General, Office of the Attorney General for the State of Vermont, Thea J. Schwartz, Assistant Attorney General, George A. Nilson, William R. Phe- lan, Jr., Peter F. Kilmartin, Attorney General, Office of the Attorney General for the State of Rhode Island, George S. Schultz, Special Assistant Attorney Gen- eral, Irvin B. Nathan, Attorney General, Office of the Attorney General for the District of Columbia, Amy E. McDonnell, Deputy General Counsel, Christopher King, Benna Ruth Solomon, and Jeremy Toth. Sean H. Donahue argued the cause for Public Health, Environmental, and Environmental Justice Group Respondent Intervenors. With him on the brief were Pamela A. Campos, Tomas Carbonell, Ann Brewster Weeks, Darin T. Schroeder, James S. Pew, Neil E. Gormley, Sanjay Narayan, John D. Walke, and John Suttles. Vickie L. Patton entered an ap- pearance. Brendan K. Collins argued the cause for Industry Respondent Intervenors. With him on the brief were Robert B. McKinstry Jr., Lorene L. Boudreau, and Erik S. Jaffe. Peter S. Glaser, George Y. Sugiyama, F. William Brownell, Lauren E. Freeman, Lee B. Zeugin, Eliza- beth L. Horner, David B. Rivkin Jr., Lee A. Casey, Mark W. DeLaquil, Andrew M. Grossman, Jeremy C. 9a Marwell, Eric A. Groton, Jeffrey R. Holmstead, and Sandra Y. Snyder were on the brief for Industry In- tervenors in response to Environmental] Petitioners. Henry V. Nickel entered an appearance. Peter S. Glaser, George Y. Sugiyama, Hahnah Williams, F. William Brownell, Lauren E. Freeman, Lee B. Zeugin, Elizabeth L. Horner, Jeremy C. Mar- well, Eric A. Groton, Jeffrey R. Holmstead, Sandra Y. Snyder, Bill Cobb, Michael Nasi, David B. Rivkin Jr., Lee A. Casey, Mark W. DeLaquil, and Andrew M. Grossman were on the brief for Intervenor Respond- ents in Opposition to Brief of Petitioner Julander En- ergy Company. Wendy B. Jacobs, Adam Babich, and Michael A. Livermore were on the brief for amici curiae Institute for Policy Integrity, et al. in support of respondent. Before: GARLAND, Chief Judge, and ROGERS and KAVANAUGH, Circuit Judges. PER CURIAM: In 2012, the Environmental Protec- tion Agency promulgated emission standards for a number of listed hazardous air pollutants emitted by coal- and oil-fired electric utility steam generating units. See National Emission Standards for Hazard- ous Air Pollutants From Coal- and Oil-Fired Electric Utility Steam Generating Units and Standards of Performance for Fossil-Fuel-Fired Electric Utility, In- dustrial-Commercial- Institutional, and Small Indus- ' Parts I, Il, and IV are written by Judge Rogers. Part lil is written by Judge Kavanaugh, as are his dissenting opinion in Part II.B.2 and his concurring opinion in Part IV. 10a trial-Commercial-Institutional Steam Generating Units, Final Rule, 77 Fed. Reg. 9304 (Feb. 16, 2012). In this complex case, we address the challenges to the Final Rule by State, Industry, and Labor petitioners, by Industry petitioners to specific aspects of the Final Rule, by Environmental petitioners, and by Julander Energy Company. For the following reasons, we deny the petitions challenging the Final Rule. I. In 1970, Congress enacted § 112 of the Clean Air Act, Pub. L. No. 91-604, § 4(a), 84 Stat. 1676, 1685 (1970), to reduce hazardous air pollutants (“HAPs’). See Sierra Club v. EPA, 353 F.3d 976, 979 (D.C. Cir. 2004); H. R. REP. No. 101-490, at 150 (1990). The statute defined HAPs as “air pollutant{s] . . . whicl. in the judgment of the Administrator [of the Environ- mental Protection Agency (“EPA”)] cause, or contrib- ute to, air pollution which may reasonably be antici- pated to result in an increase in mortality or an in- crease in serious irreversible, or incapacitating re- versible, illness.” § 112(a)(1), 84 Stat. at 1685. In its original form, § 112 required EPA to publish a list containing “each hazardous air pollutant for which {it} intends to establish an emission standard.” § 112(b)(1)(A), 84 Stat. at 1685. EPA then was to promulgate, within 360 days, emission standards “provid[ing] an ample margin of safety to protect the public health” for each listed HAP, unless EPA found that a particular listed substance was in fact not hazardous. § 112(b)(1)(B), 84 Stat. at 1685. Over the next eighteen years, EPA listed only eight HAPs, es- tablished standards for only seven, and as to these seven addressed only a limited selection of possible pollution sources. See New Jersey v. EPA, 517 F.3d lla 574, 578 (D.C. Cir. 2008); S. REP. No. 101-228, at 131 (1989). To remedy the slow pace of EPA’s regulation of HAPs, Congress amended the Clean Air Act in 1990, see Pub. L. No. 101-549, 104 Stat. 2531 (1990) (“CAA”), by eliminating much of EPA’s discretion in the process. See New Jersey, 517 F.3d at 578. In the amended § 112, Congress itself listed 189 HAPs that were to be regulated, see CAA § 112(b), 42 U.S.C. § 7412(b), and directed EPA to publish a list of “cate- gories and subcategories” of “major sources” and cer- tain “area sources” that emit these pollutants, CAA § 112(c), 42 U.S.C. § 7412(c). Once listed, a source category may only be delisted (with one exception not relevant here) if EPA determines that “no source” in that category emits HAPs in quantities exceeding specified thresholds. CAA § 112(c)(9)(B), 42 U.S.C. § 7412(c)(9)(B). For each listed “category or subcate- gory of major sources and area sources” of HAPs, EPA must promulgate emission standards. CAA § 112(d)(1), 42 U.S.C. § 7412(d)(1). Section 112(d) provides, as relevant, that emission standards shall require the maximum degree of reduction in emissions of the hazardous air pollutants subject to this section (including a prohibition on such emissions, where achievable) 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[.| CAA § 112(d)(2), 42 U.S.C. § 7412(d)(2) (emphasis added). For existing sources, these “maximum achievable control technology” (““MACT”) standards 12a may not be less stringent —regardless of cost or other considerations — “than [] the average emission limi- tation achieved by the best performing [] sources” in the relevant category or subcategory. CAA § 112(d)(3)(A)4B), 42 U.S.C. § 7412(d)(3)(A)H4B); see Nat? Lime Ass’n v. EPA, 233 F.3d 625, 629 (D.C. Cir. 2000). EPA refers to minimum-stringency MACT standards as “floors.” Standards more stringent than the floors, determined pursuant to § 112(d)(2), are called “beyond-the-floor” limits. For electric utility steam generating units (“EGUs”), however, Congress directed that prior to any listing EPA conduct a study of “the hazards to public health reasonably anticipated to occur as a re- sult of [EGU HAP emissions] after imposition of the requirements of this Chapter [i.e., Chapter 85 Air Pollution Prevention and _ Controlj.”. CAA § 112(n)(1)(A), 42 U.S.C. § 7412(n)(1)(A) (emphasis added). The results of this “Utility Study” were to be reported to Congress within three yea:s. Jd. Further, Congress directed that: The Administrator shall regulate [EGUs] un- der this section, if the Administrator finds such regulation is appropriate and necessary after considering the results of the study re- quired by this subparagraph. Id. (emphasis added). Congress also directed EPA to conduct two other studies on mercury emissions: the “Mercury Study” on “the rate and mass of such emis- sions, the health and environmental effects of such emissions, technologies which are available to control such emissions, and the costs of such technologies,” to be reported to Congress in four years, and the Na- tional Institute of Environmental Health Sciences l3a “study to determine the threshold level of mercury exposure below which adverse human health effects are not expected to occur,” to be reported to Congress in three years. See CAA § 112(n)(1)(A}{C), 42 U.S.C. § 7412(n)(1)(A)X{C). In December 2000, on the basis of the Utility Study and other data subsequently gathered, EPA issued a notice of regulatory finding “that regulation of HAP emissions from coaland oil-fired electric utili- ty steam generating units under section 112 of the CAA is appropriate and necessary.” Regulatory Find- ing on the Emissions of Hazardous Air Pollutants From Electric Utility Steam Generating Units, 65 Fed. Reg. 79,825, 79,826 (Dec. 20, 2000) (“2000 Find- ing”). EPA found that EGUs “are the largest source of mercury emissions in the U.S.” and that “[m]ercury is highly toxic, persistent, and bioaccumulates in food chains.” 65 Fed. Reg. at 79,827. Specifically, “[mjercury emitted from [EGUs]...is transported through the atmosphere and eventually deposits onto land or water bodies” where it then changes into “a highly toxic” substance called methylmercury. Jd. Methylmercury “biomagnifies in the aquatic food chain,” id., meaning that it becomes concentrated in the bodies of predatory fish which absorb the methylmercury their food sources contained. When humans eat these contaminated fish, they also are exposed; the methylmercury from the fish is absorbed into the bloodstream and “distributed to all tissues including the brain.” Jd. at 79,829. The risks are greatest for women of childbearing age, EPA ex- plained, because methylmercury “readily pass- es...to the fetus and fetal brain,” id., and “the de- veloping fetus is most sensitive to the effects of methylmercury,” id. at 79,827. Children born to l4a women who were exposed to methylmercury during pregnancy have exhibited neurological abnormalities and developmental delays. Jd. at 79,829. EPA concluded that “the available information in- dicate[d] that mercury emissions from [EGUs] .. . are a threat to public health and the environment,” not- withstanding “uncertainties regarding the extent of the risks due to electric utility mercury emissions.” Id. (emphasis added). EPA also identified several other metal and acid gas emissions from EGUs that were “of potential concern,” namely arsenic, chromi- um, nickel, cadmium, dioxins, hydrogen chloride, and hydrogen fluoride. Jd. EPA therefore determined that it was “appropriate” to regulate coal- and oil- fired EGUs under § 112 because of the health and environmental hazards posed by mercury emissions from EGUs, and the availability of a number of con- trol options to effectively reduce such emissions. Id. at 79,830. EPA further determined that it was “nec- essary to regulate EGUs under § 112 because im- plementation of other provisions of the CAA would “not adequately address” the public health and envi- ronmental hazards found. Jd. Therefore, EPA added “coal- and oil-fired electric utility steam generating units to the list of source categories under section 112(c) of the CAA.” Td. In 2005, EPA reversed its 2000 Finding and re- moved coal- and oil-fired EGUs from the list of source categories under § 112(c). See Revision of December 2000 Regulatory Finding on the Emissions of Haz- ardous Air Pollutants From Electric Utility Steam Generating Units and the Removal of Coal- and Oil- Fired Electric Utility Steam Generating Units From the Section 112(c) List, 70 Fed. Reg. 15,994, 15,994 15a (Mar. 29, 2005) (“2005 Delisting Decision”). This change was based on EPA’s revised interpretation of § 112(n)(1)(A) and, to some extent, on a revised as- sessment of the results of the Utility Study. EPA con- cluded that it lacked authority under § 112(n)(1)(A) to regulate on the basis of non-health hazards (e.g., environmental harms), and should “focus solely” on the health effects directly attributable to EGU emis- sions, rather than on EGUs’ contribution to overall pollutant levels. Id. at 15,998. Further, EPA decided it could consider other relevant, “situation-specific factors, including cost” that may affect whether regu- lation under § 112 is “appropriate.” Id. at 16,000—01. Critically, EPA determined that it must make its “appropriate and necessary” finding by reference to health hazards that will remain “after imposition of the requirements of” the CAA. Id. at 15,998 (empha- sis added) (quoting CAA § 112(n)(1)(A), 42 U.S.C. § 7412(n)(1)(A)). EPA interpreted these other “re- quirements” to include “not only those requirements already imposed and in effect, but also those re- quirements that EPA reasonably anticipates will be implemented” and which “could either directly or in- directly result in reductions of utility HAP emis- sions.” Id. at 15,999. Concluding that regulation un- der other provisions of the CAA would adequately address EGU emissions of mercury and other HAPs, EPA determined that regulation under § 112 was nei- ther “appropriate” nor “necessary.” Id. at 16,002—08. In responding to comments, EPA stated that if it were to regulate EGU emissions, then it would regu- late only those substances for which it had made a specific “appropriate and necessary” determination. States and other groups petitioned for review and this court vacated the 2005 Listing Decision, New 16a Jersey, 517 F.3d at 583, holding that EPA’s attempt to reverse its December 2000 listing decision was un- lawful because Congress had “unambiguously lim- ited] EPA’s discretion to remove sources, including EGUs, from the section 112(c)(1) list once they have been added to it.” In 2012, after notice and comment, EPA “con- firm[ed]” its 2000 Finding that regulation of EGU emissions under § 112 is “appropriate and necessary.” Final Rule, 77 Fed. Reg. 9304, 9310-11. In the pro- posed rule, EPA stated that “the December 2000 Finding was valid at the time it was made based on the information available to the Agency at that time.” Proposed Rule, 76 Fed. Reg. 24,976, 24,986, 24,994-— 97 (May 3, 2011) (“NPRM”). Although of the view that no further evidence was required to affirm the 2000 Finding, EPA had conducted additional quanti- tative and qualitative analyses “confirm[ing] that it remains appropriate and necessary today to regulate EGUs under CAA section 112.” Jd. at 24,986; see id. at 24,999-25,020. With respect to the term “appro- priate,” EPA explained that it was “chang[ing] the position taken in 2005 that the appropriate finding could not be based on environmental effects alone”; “revisiting the 2005 interpretation that required the Agency to consider HAP emissions from EGUs with- out considering the cumulative impacts of all sources of HAP emissions”; “revising the 2005 interpretation that required the Agency to evaluate the hazards to public health after imposition of the requirements of the CAA”; and “rejecting the 2005 interpretation that authorizes the Agency to consider other factors (e.z., cost), even if the agency determines that HAP emit- ted by EGUs pose a hazard to public health (or the environment).” Jd. at 24,989. With respect to the 17a term “necessary,” EPA rejected as “unreasonable” its interpretation in 2005 that regulation under § 112 was “necessary” only if no other provision in the CAA — whether implemented or only anticipated — could “directly or indirectly” reduce HAP emissions to ac- ceptable levels. Id. at 24,992. EPA explained that it interpreted § 112(n)(1)(A) to require the Agency to find it appropriate to regulate EGUs under CAA section 112 if the Agency determines that the emissions of one or more HAP emitted from EGUs pose an identi- fied or potential hazard to public health or the environment at the time the finding is made. If the Agency finds that it is appropriate to regu- late, it must find it necessary to regulate EGUs under section 112 if the identified or potential hazards to public health or the environment will not be adequately addressed by the impo- sition of the requirements of the CAA. Moreo- ver, it may be necessary to regulate utilities under section 112 for a number of other rea- sons, including, for example, that section 112 standards will assure permanent reductions in EGU HAP emissions, which cannot be assured based on other requirements of the CAA. Id. at 24,987-88. EPA also affirmed that coal- and oil-fired EGUs were properly listed as a source cate- gory under § 112(c). See id. at 24,986. EPA adhered to these interpretations in the Final Rule, 77 Fed. Reg. at 9311. Accordingly, on February 16, 2012, EPA promulgated emission standards for a number of listed HAPs emitted by coal- and oil-fired EGUs. See id. at 9487-93. 18a Several petitions for review challenge the Final Rule. We first address, in Part II, the challenges of the State, Industry, and Labor petitioners. In Part III, we address Industry petitioners’ specific issues. In Part IV.A, we address the challenges by the Envi- ronmental petitioners, and in Part IV.B, Julander Energy Company’s standing. In addressing the sub- stantive challenges to the Final Rule, this court must determine under the CAA whether the Final Rule was promulgated in a manner that was arbitrary or capricious, an abuse of discretion, or otherwise not in accordance with law. See CAA § 307(d)(9){A), 42 U.S.C. § 7607(d)(9)(A). “The ‘arbitrary and capricious’ standard deems the agency action presumptively val- id provided the action meets a minimum rationality standard.” Sierra Club, 353 F.3d at 978~-79 (quoting Natural Res. Def. Council v. EPA, 194 F.3d 130, 136 (D.C. Cir. 1999)). That is, “[iJf EPA acted within its delegated statutory authority, considered all of the relevant factors, and demonstrated a reasonable con- nection between the facts on the record and its deci- sion, we will uphold its determination.” Ethyl Corp. v. EPA, 51 F.3d 1053, 1064 (D.C. Cir. 1995). The court will show particular deference “where the agency's decision rests on an evaluation of complex scientific data within the agency's technical expertise.” Troy Corp. v. Browner, 120 F.3d 277, 283 (D.C. Cir. 1997); see also Marsh v. Or. Natural Res. Council, 490 U.S. 360, 377 (1989). II. State, Industry, and Labor petitioners challenge EPA’s interpretation and application of the “appro- priate and necessary” requirement in § 112(n)(1)(A). 19a A. As a threshold matter, petitioners contend that the 2000 Finding was unlawful because EPA did not allow notice and comment on the finding, did not quantify the relevant mercury emissions and associ- ated health risks, and did not describe “alternative contro] strategies” as required under § 112(n)(1)(A). Because the December 2000 notice was “fundamen- tally flawed,” they contend it “could have no legal consequences” and “could not provide the basis for a § 112(c) listing decision.” State, Industry & Labor Pet’rs’ Br. (hereinafter “SIL Br.”) 27—28. Without a proper listing under § 112(c), they contend, EPA has no authority to regulate EGUs under § 112(d). The court need not decide whether EPA’s Decem- ber 2000 “appropriate and necessary” finding was procedurally or substantively valid because EPA re- considered and “confirm[ed]” that determination in the Final Rule. See NPRM, 76 Fed. Reg. at 24,977; Final Rule, 77 Fed. Reg. at 9310-11, 9320. For the reasons we will discuss, we hold that EPA’s finding in the Final Rule was substantively and procedurally valid, and consequently any purported defects in the 2000 Finding have been cured, rendering petitioners’ challenge to December 2000 “appropriate and neces- sary” finding moot. Cf. Fund for Animals, Inc. v. Ho- gan, 428 F.3d 1059, 1063—64 (D.C. Cir. 2005). B. The crux of petitioners’ challenge to the Final Rule focuses on EPA’s interpretation of the phrase “appropriate and necessary” in § 112(n)(1){A), 42 U.S.C. § 7412(n)(1)(A). The context of this phrase is as follows. In a special subsection on EGUs, Congress 20a first directed: “The Administrator shall perform a study of the hazards to public health reasonably an- ticipated to occur as a result of emissions by electric utility steam generating units of pollutants listed under subsection (f) after imposition of the require- ments of this Act.” CAA § 112(n)(1)(A), 42 U.S.C. § 7412(n)(1)(A) (emphasis added). Congress then di- rected: “The Administrator shall regulate electric utility steam generating units under this section, if the Administrator finds such regulation is appropri- ate and necessary after considering the results of the study required by this subparagraph.” Jd. (emphasis added). Apart from the instruction to “consider[] the results of the [Utility Study]” on public health haz- ards from EGU emissions, the statute offers no ex- press guidance regarding what factors EPA is re- quired or permitted to consider in deciding whether regulation under § 112 is “appropriate and neces- sary.” Neither does it define the words “appropriate” or “necessary.” See NPRM, 76 Fed. Reg. at 24,986; 2005 Listing Decision, 70 Fed. Reg. at 15,997. Peti- tioners object to how EPA chose to fill these gaps. In matters of statutory interpretation, the court applies the familiar two part test under Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 842-43 (1984). First, the court employs traditional tools of statutory construction to determine de novo “whether Congress has directly spoken to the precise question at issue.” Jd. at 842, 843 n.9. If the court “ascertains that Congress had an intention on the precise question at issue,” id. at 843 n.9, “that is the end of the matter” and the court “must give effect to the unambiguously expressed in- tent of Congress,” id. at 842—43. If, however, “the statute is silent or ambiguous with respect to the 2la specific issue,” the court will uphold the agency’s in- terpretation so long as it constitutes “a permissible construction of the statute.” Jd. at 843. “In such case, a court may not substitute its own construction of a statutory provision for a reasonable interpretation made by the administrator of an agency.” Jd. at 844. To the extent petitioners’ challenge concerns EPA’s change in interpretation from that in 2005, our approach is the same because “[{a]gency inconsistency is not a basis for declining to analyze the agency’s in- terpretation under the Chevron framework.” Nati? Cable & Telecomms. Ass’n v. Brand X Internet Servs., 545 U.S. 967, 981 (2005). That is, “if the agency ade- quately explains the reasons for a reversal of policy, change is not invalidating, since the whole point of Chevron is to leave the discretion provided by the ambiguities of a statute with the implementing agen- cy.” Id. (internal quotation marks omitted). And while “[u]nexplained inconsistency” may be “a reason for holding an interpretation to be an arbitrary and capricious change from agency practice,” id., our re- view of a change in agency policy is no stricter than our review of an initial agency action, see FCC v. Fox Television Stations, Inc., 556 U.S. 502, 514-16 (2009). — Thus, although an agency may not “depart from a prior policy sub silentio or simply disregard rules that are still on the books,” the agency “need not demon- strate to a court’s satisfaction that the reasons for the new policy are better than the reasons for the old one.” Jd. at 515. Rather, “it suffices that the new pol- icy is permissible under the statute, that there are good reasons for it, and that the agency believes it to be better.” Id. 22a 1. Reliance on delisting criteria. In the Final Rule, EPA concluded that it is “appropriate and nec- essary” to regulate HAP emissions on the basis, inter alia, that EGU emissions of certain HAPs pose a can- cer risk higher than the standard set forth in the § 112(c)(9) delisting criteria (i.e., greater than one in a million for the most exposed individual). See Final Rule, 77 Fed. Reg. at 9311; NPRM, 76 Fed. Reg. at 24,998. Petitioners contend that by so doing EPA wrongly conflated the delisting criteria with the “ap- propriate and necessary” determination. “By applying the delisting provisions of § 112(c)(9) in making the initial, pre-listing determination whether it is ‘appro- priate and necessary’ to regulate EGUs, EPA has un- lawfully imposed requirements on itself the Congress chose not to impose at the listing stage.” SIL Br. 35. They maintain that EPA's approach “would treat EGUs the same as all other major source categories— as a category that must be listed unless the delisting criteria are met.” Id. EPA explained that it was relying upon the delist- ing criteria to interpret an ambiguous term in § 112(n)(1)(A), namely, “hazards to public health,” see Final Rule, 77 Fed. Reg. at 9333-34; NPRM, 76 Fed. Reg. at 24,992-93, because the phrase “hazards to public health” is nowhere defined in the CAA. EPA looked to the delisting criteria, which specify the risk thresholds below which a source category need not be regulated, as evidence of congressional judgment as to what degree of risk constitutes a health hazard. See id. EPA explained: Although Congress provided no definition of hazard to public health, section 112(c)(9)(B) is instructi\e. In that section, Congress set forth 23a a test for removing source categories from the section 112(c) source category list. That test is relevant because it reflects Congress’ view as to the level of health effects associated with HAP emissions that Congress thought war- ranted continued regulation under section 112. NPRM, 76 Fed. Reg. at 24,993 (emphasis added); see Final Rule, 77 Fed. Reg. at 9333-34. EPA concluded that it had discretion also to consider various other factors in evaluating hazards to public health, includ- ing the nature and severity of the health effects associated with exposure to HAP emissions; the degree of confidence in our knowledge of those health effects; the size and characteris- tics of the populations affected by exposures to HAP emissions; [and] the magnitude and breadth of the exposures and risks posed by HAP emissions from a particular source cate- gory, including how those exposures contribute to risk in populations with additional expo- sures to HAP from other sources{[.] NPRM, 76 Fed. Reg. at 24,992; see Final Rule, 77 Fed. Reg. at 9334. EPA reasonably relied on the § 112(c)(9) delisting criteria to inform its interpretation of the undefined statutory term “hazard to public health.” Congress did not specify what types or levels of public health risks should be deemed a “hazard” for purposes of § 112(n)(1)(A). By leaving this gap in the statute, Congress delegated to EPA the authority to give rea- sonable meaning to the term. Cf. Chevron, 467 U.S. at 843-44. EPA’s approach does not, as petitioners 24a contend, “treat EGUs the same as all other major source categories.” SIL Br. 35. Other major source categories must be listed unless the delisting criteria are satisfied; EPA’s approach treats EGUs quite dif- ferently. For EGUs, EPA reasonably determined that it may look at a broad range of factors — only one of which concerned the § 112(c)(9) benchmark levels — in assessing the health hazards posed by EGU HAPs. Nowhere does EPA state or imply that the delisting criteria provide the sole basis for determining wheth- er it is “appropriate and necessary” to regulate EGUs under § 112. Because EPA’s approach is based on a permissible construction of § 112(n)(1)(A), it is enti- tled to deference and must be upheld. 2. Costs of regulation. Noting that in 2005 EPA construed § 112(n)(1)(A) to allow consideration of costs in determining whether regulation of EGU HAP emissions is “appropriate,” petitioners contend that EPA’s new interpretation to “preclude consideration of costs,” SIL Br. 42, “unreasonably constrains the language of § 112(n)(1)(A),” SIL Br. 39. They point to the dictionary definition of “appropriate” and to the differences between regulation of EGUs_ under § 112(m)(1)(A) and regulating other sources under § 112(c), and to this court’s precedent that “only where there is ‘clear congressional intent to preclude consideration of cost’ [do] we find agencies barred from considering costs.” SIL Br. 40 (quoting Michigan v. EPA, 213 F.3d 663, 678 (D.C. Cir. 2000), cert. de- nied, 532 U.S. 904 (2001)). They contend that EPA’s new interpretation “is also unlawful because it elimi- nates the discretion that Congress intended EPA to exercise after completing the Utility Study.” SIL Br. 41. As they see it, if the statutory term “appropriate” imposes any limit whatsoever, it must at least limit 25a regulation to “risks [that] are worth the cost of elimi- nation.” SIL Reply Br. 14 (quoting Michigan v. EPA, 213 F.3d at 667 (addressing the term “significant”)). In the Final Rule, EPA stated that “it is reasona- ble to make the listing decision, including the appro- priate determination, without considering costs.” Fi- nal Rule, 77 Fed. Reg. at 9327. EPA reasoned that § 112(m)(1)(A) would have included an “express statu- tory requirement that the Agency consider costs in making the appropriate determination” if Congress wanted to require EPA to do so. Jd. EPA also noted that “[t]o the extent [its] interpretation differs from the one set forth in 2005,” it had “fully explained the basis for such changes.” Jd. at 9323 (citing NPRM, 76 Fed. Reg. at 24,986—93). (Even in 2005, EPA noted only that “[nJothing precludes EPA from considering costs in assessing whether regulation of [EGUs] un- der section 112 is appropriate in light of all the facts and circumstances presented.” 2005 Delisting Deci- sion, 70 Fed. Reg. at 16,001 n.19.) In responding to comments reacting to its position that “the better reading of the term ‘appropriate’ is that it does not allow for the consideration of costs in assessing whether hazards to public health or the environment are reasonably anticipated to occur based on EGU emissions,» NPRM, 76 Fed. Reg. at 24,989, EPA ob- served that the dictionary definition of “appropriate” does not require consideration of costs and that com- menters had failed to identify an express statutory requirement to that effect. EPA also stated that it was reasonable to decline to consider costs in the ab- sence of an express statutory requirement to do so because Congress, in enacting § 112, was principally concerned with mitigating hazards to public health and the environment from HAP emissions. See Final 26a Rule, 77 Fed. Reg. at 9327. Inasmuch as Congress had treated the regulation of HAP emissions differ- ently in the 1990 Amendments because EPA was not acting quickly enough, EPA concluded it was reason- able to make a listing decision without considering costs. See id. On its face, § 112(n)(1)(A) neither requires EPA to consider costs nor prohibits EPA from doing so. In- deed, the word “costs” appears nowhere in subpara- graph A. In the absence of any express statutory in- struction regarding costs, petitioners rely on the dic- tionary definition of “appropriate” — meaning “espe- cially suitable or compatible” or “suitable or proper in the circumstances” — to argue that EPA was re- quired “to take into account costs to the nation’s elec- tricity generators when deciding whether to regulate EGUs.” SIL Br. 39 (citing MERRIAM-WEBSTER’S ONLINE DICTIONARY; NEW OXFORD AMERICAN DICTIONARY (2d ed. 2005)). Yet these definitions, which do not mention costs, merely underscore that the term “appropriate” is “open-ended,” “ambiguous,” and “inherently context-dependent.” Sossamon v. Texas, 131 S. Ct. 1651, 1659 (2011); cf. Natl Ass’n of Clean Air Agencies v. EPA, 489 F.3d 1221, 1229 (D.C. Cir. 2007). Even if the word “appropriate” might require cost consideration in some contexts, such a reading of “appropriate” is unwarranted here, where Congress directed EPA’s attention to the conclusions of the study regarding public health hazards from EGU emissions. Throughout § 112, Congress mentioned costs explicitly where it intended EPA to consider them. Cf. CAA §112(d)(2), 112(d)(8)(A)(i), 112(f)(1)(B), 112(f)(2)(A), 112(n)(1)(B), 112(s)(2), 42 27a U.S.C. § 7412(d)(2), 7412(d)(8)(A)(i), 7412(f(1)(B), 7412(f)(2)(A), 7412(n)(1)(B), 7412(s)(2). Indeed, in the immediately following subparagraph of § 112(n), Congress expressly required costs to be considered. CAA § 112(n)(1)(B), 42 U.S.C. § 7412(n)(1)(B). The contrast with subparagraph A could not be more stark. “Where Congress includes particular language in one section of a statute but omits it in another sec- tion of the same Act, it is generally presumed that Congress acts intentionally ...in the disparate in- clusion or exclusion.” Russello v. United States, 464 U.S. 16, 23 (1983) (alterations omitted); cf. Catawba Cnty., N.C. v. EPA, 571 F.3d 20, 36 (D.C. Cir. 2009). Petitioners offer no compelling reason why Congress, by using only the broad term “appropriate,” would have intended the same result — that costs be con- sidered— in § 112(n)(1)(A). The legislative history the dissent claims “establishes” the point, Dissent at 13, consists of a Floor statement by a single Congress- man that at best is ambiguous.? For these reasons, we conclude that the statute does not evince unam- biguous congressional intent on the specific issue of whether EPA was required to consider costs in mak- 2 See 1 A LEGISLATIVE HISTORY OF THE CLEAN AIR ACT AMENDMENTS OF 1990, at 1416-17 (1993) (statement by Rep. Oxley) (indicating that the provision authorizing regulation of EGUs would “avoid[] the imposition of exces- sive and unnecessary costs” by ensuring that EPA can regulate “only if the studies described in section 112(n) clearly establish that emissions .. . from such units cause a significant risk of serious adverse effects on public health”). 28a ing its “appropriate and necessary” determination under § 112(n)(1)(A). Turning to EPA’s approach, its position that “nothing about the definition of [‘appropriate’] com- pels a consideration of costs,” Final Rule, 77 Fed. Reg. at 9327, is clearly permissible. In Whitman v. American Trucking Ass’ns, 531 U.S. 457 (2001), Jus- tice Scalia, writing for a unanimous Court, noted that the Supreme Court has “refused to find implicit in ambiguous sections of the CAA an authorization to consider costs that has elsewhere, and so often, been expressly granted.” Id. at 467; see also Natural Res. Def. Council v. U.S. EPA, 824 F.2d 1146, 1163-65 (D.C. Cir. 1987) (en banc). EPA’s interpretation is consistent with that instruction. Just as in Whitman, EPA declines to find in an ambiguous section what in so many other CAA sections Congress has mentioned expressly. And even assuming Whitman might be dis- tinguished on grounds it concerned a different provi- sion of the CAA, the question remains only whether EPA’s interpretation is permissible. Petitioners can- not point to a single case in which this court has re- quired EPA to consider costs where the CAA does not expressly so instruct. In Michigan v. EPA, this court merely held that “the agency was free to consid- er...costs” under CAA § 110(a)(2)(D), 42 U.S.C. § 7410(a)(2)(D), as EPA had urged in that case. 213 F.3d at 679 (emphasis added). EPA’s interpretation is also consistent with the purpose of the 1990 Amendments, which were aimed at remedying “the slow pace of EPA’s regulation of HAPs” following the initial passage of the CAA. New Jersey, 517 F.3d at 578. To ensure that HAP emis- sions would be reduced to at least minimallyaccepta- 29a ble levels, Congress, among other things, listed 189 HAP substances for regulation and “restrict[ed} the opportunities for EPA and others to intervene in the regulation of HAP sources.” Jd. The overall purpose of the 1990 Amendments was to spur EPA to action. Although Congress gave EGUs a three-year pass when it instructed EPA to conduct a further study before regulating EGUs, see CAA § 112(n)(1)(A), 42 U.S.C. § 7412(n)(1)(A), there is no indication that Congress did not intend EPA to regulate EGUs if and when their public health hazards were confirmed by the study, as they were here. Petitioners, and our dissenting colleague, suggest that EPA’s interpretation is unreasonable because the notion that Congress would have authurized EPA to regulate without any consideration of regulatory costs is implausible. But this argument rests on a false premise. Here, as in Whitman, interpreting one isolated provision not to require cost consideration does not indicate that Congress was unconcerned with costs altogether, because Congress accounted for costs elsewhere in the statute. Section 112(d)(2) ex- pressly requires EPA to “tak[e] into consideration the cost of achieving . . . emission reduction[s}” when set- ting the level of regulation under §112. CAA § 112(d)(2), 42 U.S.C. § 7412(d)(2). It is true that this cost consideration requirement does not apply with respect to MACT floors. Yet even for MACT floors, costs are reflected to some extent because the floors correspond (by definition) to standards that better- performing EGUs have already achieved, presumably in a cost efficient manner. See CAA § 112(d)(3)(A), 42 U.S.C. § 7412(d)(3)(A). Moreover, Industry respond- ent intervenors point out that petitioners’ proposed approach would lead to an improbable “all-or- 30a nothing” scheme in which EPA could “choose not to regulate EGUs at all under Section 112 based on cost, even though EPA could not consider cost to jus- tify a less stringent emission standard than the MACT floor.” Indus. Resp’t Intvn’rs’ Br. 8. Contrary to petitioners’ claims, the word “appro- priate” is not rendered meaningless unless interpret- ed to include cost consideration. Petitioners contend that § 112(n)(1)(A) mandates a two-step inquiry: EPA must “first identify ‘a health hazard’ from HAPs emitted from EGUs, and then determine whether regulation of that health hazard is ‘appropriate and necessary.” SIL Br. 41 (emphasis added). If the ex- istence of a health hazard automatically means regu- lation is appropriate, they contend, then EPA has un- lawfully abdicated the exercise of discretion Congress delegated to it. This argument, too, is unpersuasive. First, the rulemaking record reflects that EPA did not focus exclusively on health hazards in considering whether regulation would be “appropriate”; EPA also considered “the availability of controls to address HAP emissions from EGUs.” NPRM, 76 Fed. Reg. at 24,989; see id. at 24,997; see also Final Rule, 77 Fed. Reg. at 9311. The factual premise of petitioners’ ar- gument is therefore incorrect. Second, even if EPA had focused exclusively on health hazards, the word “appropriate” would still have meaning in § 112(n)(1)(A) because the provision does not assume, as petitioners seem to suggest, that EPA would in fact “identify ‘a health hazard” from EGUs. SIL Br. 41. Rather, the statute directs EPA to “perform a study of the hazards to public health reasonably an- ticipated to occur” and then to “regulate [EGUs] . . . if the Administrator finds such regulation is appropri- ate and necessary after considering the results of the 3la study.” CAA § 112(n)(1)(A), 42 U.S.C. § 7412(n)(1)(A) (emphasis added). At the time Congress enacted the 1990 Amendments, it was possible that the Utility Study would fail to identify significant health haz- ards from EGU HAP emissions. (Indeed, petitioners argue that it did fail to do so. See SIL Br. 13, 48-54.) Therefore, EPA had to “consider[] the results of the study” in order to determine whether regulation would be “appropriate” based on its assessment of the existence and severity of such health hazards. The term “appropriate” plainly plays a role: it requires EPA to apply its judgment in evaluating the results of the study. Basically, petitioners and our dissenting colleague seek to impose a requirement that Congress did not. What they ignore is that Congress sought, as a threshold matter, to have EPA confirm the nature of public health hazards from EGU emissions. That is the clear focus of § 112(n)(1)(A). After that, Congress left it to the expertise and judgment of EPA whether or not to regulate. For EPA to focus its “appropriate and necessary” determination on factors relating to public health hazards, and not industry's objections that emission controls are costly, properly puts the horse before the cart, and not the other way around as petitioners and our dissenting colleague urge. Given Congress’s efforts in the 1990 Amendments to promote regulation of hazardous peliutants, EPA’s interpretation of § 112(n)(1)(A) appears consistent with Congress's intent. Recall that only EGUs’ haz- ardous emissions were relieved of regulation until completion of a study, and once the study confirmed the serious public health effects of hazardous pollu- tants from EGUs, Congress gave no signal that the matter should end if remediation would be costly. 32a Our dissenting colleague has written a powerful- sounding dissent. It sounds powerful, however, only because it elides the distinction between EPA’s initial decision regarding whether to list EGUs as sources of hazardous air pollutants, and its subsequent decision regarding whether to issue stringent beyond-the-floor standards for such sources. The dissent refers to both together as the MACT “program.” Dissent at 3. But the “program” in fact proceeds in two stages, as the dissent acknowledges. It is only as to the first, listing stage that EPA has determined it should not consider costs. That stage leads only to the setting of the stat- utory MACT floor which, as the dissent notes, is a “minimum stringency level.” Jd. The second stage leads to beyond-the-floor standards, which are more restrictive. When setting those, EPA does consider costs. The dissent contends that “[m]Jeeting that [MACT] floor will be prohibitively expensive, particularly for many coal-fired utilities,” forcing them “out of busi- ness.” Dissent at 10-11. But in the Final Rule EPA rejected this contention, concluding that “the esti- mated number of early retirements,” of EGUs “that may result from this rule is . . . less than 2 percent of all U.S. coalfired capacity” in 2015. Final Rule, 77 Fed. Reg. at 9416; see also id. at 9408 (rejecting the claim that the Final Rule “will result in substantial power plant retirements”). Petitioners have not chal- lenged that conclusion. Industry respondent interve- nors further observe that continuing to exempt EGUs from HAP regulation penalizes those plants that have made investments in clean air technology, and that “(t]he Rule merely requires owners of uncontrolled plants to install and operate control technology al- ready operating at their competitors’ plants, both lev- 33a eling the playing field and improving health and the environment.” Indus. Resp’t Intv’nrs’ Br. 7. The Final Rule, which, as the dissent notes, EPA has calculated will cost $9.6 billion a year, includes the cost of both stages. EPA also has concluded under Executive Or- der 13563 that the annualized benefits are $37 to $90 billion. See Final Rule, 77 Fed. Reg. at 9306. (The dissent questions this conclusion, notwithstanding its promise that agency cost-benefit analyses should be reviewed deferentially.) That’s “billion with a b,” in the dissent’s catchy phrase. Dissent at 1. In short, “the benefits of this rule outweigh its costs by be- tween 3 to 1 or 9 to 1.” Final Rule, 77 Fed. Reg. at 9306. As the agency noted, “[u]nder section 112(n)(1)(A), EPA is evaluating whether to regulate HAP emis- sions from EGUs at all.” NPRM, 76 Fed. Reg. at 24,989 (emphasis added). And there was nothing un- reasonable about its conclusion that costs should not be considered in determining “whether HAP emis- sions trom EGUs pose a hazard to public health or the environment.” Jd. at 24,988; see id. at 24,990. That is especially so when “Congress did not author- ize the consideration of costs in listing any [other] source categories for regulation under section 112... [and] did not permit the consideration of costs in evaluating whether a source category could be del- isted pursuant to the provisions of section 112(c)(9).” Id. at 24,989. And while the dissent insists on “the centrality of cost consideration to proper regulatory decisionmaking,” Dissent at 6, Whitman makes clear the Supreme Court believes that Congress does not necessarily agree. Nor is Whitman the only case in 34a which courts have found that Congress legislated in a way the dissent would find irrational.* Academic generalities, see Dissent at 6-8, do not demonstrate that EPA could not reasonably proceed as it did in interpreting congressional intent — espe- cially not generalities by academics who are criticiz- ing the Supreme Court for failing to read congres- sional statutes as they do. The same is true of ut- 3 See Am. Textile Mfrs. Inst. v. Donovan, 452 U.S. 490, 511—12 (1981) (holding that OSHA is not required to con- duct a costbenefit analysis in promulgating a standard under section 6(b)(5) of the Occupational Safety and Health Act because “Congress uses specific language when intending that an agency engage in costbenefit analysis’); Tenn. Valley Auth. v. Hill, 437 U.S. 153, 184 (1978) (“The plain intent of Congress in enacting [the Endangered Spe- cies Act] was to halt and reverse the trend towards species extinction, whatever the cost.”); Union Elec. Co. v. EPA, 427 U.S. 246, 257—58 (1976) (holding that EPA may not consider claims of economic infeasibility in evaluating a state requirement that primary ambient air quality standards be met by a certain deadline); Lead Indus. Ass'n v. EPA, 647 F.2d 1130, 1150 (D.C. Cir. 1980) (“We are un- able to discern here any congressional intent to require, or even permit, [EPA] to consider economic... factors in promulgating air quality standards [under the CAA].”). 4 See Cass R. Sunstein, Interpreting Statutes in the Reg- ulatory State, 103 HARV. L. REV. 405, 492—93 (1989) (criti- cizing American Textile Manufacturers Institute, 452 U.S. 490, for “contributing to the irrationality of the Occupa- tional Safety and Health Act” by “refusing to read the statute” as the author would); Cass R. Sunstein, Cost- Benefit Default Principles, 99 MICH. L. REV. 1651, 1671 (2001) (same); Richard J. Pierce, Jr., The Appropriate Role 35a terances by single Justices — especially a separate statement by one Justice concurring in Whitman and a question by another during oral argument about a different statutory section. See Dissent at 6-7. Nor do the different approaches of the Bush and Obama Administrations on the role of costs in implementing the CAA do more than demonstrate that administra- tions may differ and can change positions without le- gal jeopardy, so long as an adequate explanation is provided as was done here. See Chevron, 467 U.S. at 865-66. The question before the court is not “Should EPA have considered costs in making its threshold determination under § 112(n)(1)(A)?” but rather “Was EPA required to do so at that point in its regulatory evaluation” EPA has explained why it concluded costs were not part of the “appropriate and neces- sary” determination, and given Congress’s choice to leave the factors entering into that determination to EPA, petitioners, and our dissenting colleague, fail to demonstrate that EPA’s considered judgment about the factors to be considered was unlawful as an im- permissible and unreasonable interpretation of § 112(n)(1)(A). Congress left to EPA “the accommoda- tion of manifestly competing interests,” id. at 865, and EPA did all that Congress required of it. Exactly how and when EGU emissions are to be regulated is a different question. For these reasons, we hold that EPA reasonably concluded it need not consider .osts in making its of Costs in Environmental Regulation, 54 ADMIN L. REV. 1237, 1253 (2002) (criticizing the Whitman Court for rely- ing on an “anti-cost canon”). 36a “appropriate and necessary” determination under § 112(n)(1)(A). 3. Environmental harms. Petitioners also contend that EPA was constrained to consider only public health hazards, not environmental or other harms, in making its “appropriate and necessary” determina- tion. In their view, § 112(n)(1)(A) unambiguously forecloses the consideration of non-health effects be- cause the statute requires EPA to make i‘* “appro- priate and necessary” determination after consider- ing the results of the Utility Study, which is focused exclusively on identifying “hazards to public health” caused by EGU HAP emissions. See SIL Br. 44. Peti- tioners insist that in 2005 EPA followed the health- only approach. EPA reasoned that “nothing in the statute sug- gests that the [EPA] should ignore adverse environ- mental effects in determining whether to regulate EGUs under section 112.”. NPRM, 76 Fed. Reg. at 24,988; see Final Rule, 77 Fed. Reg. at 9325. To the contrary, EPA concluded that the purpose of the CAA and the statute’s express instruction to assess envi- ronmental! effects in the Mercury Study suggest “it is reasonable to consider environmental] effects in eval- uating the hazards posed by HAP emitted from EGUs.” NPRM, 76 Fed. Reg. at 24,988; see Final Rule, 77 Fed. Reg. at 9325. EPA explained in re- sponse to comments that restricting it from consider- ing environmental harms would “incorrectly con- flate[]Jthe requirements for the Utility Study with the requirement to regulate EGUs under CAA section 112 if EPA determines it is appropriate and neces- sary to do so.” Final Rule, 77 Fed. Reg. at 9325. 37a EPA did not err in considering environmental ef- fects alongside health effects for purposes of the “ap- propriate and necessary” determination. Although petitioners’ interpretation of § 112(n)(1)(A) is plausi- ble, the statute could also be read to treat considera- tion of the Utility Study as a mere condition prece- dent to the “appropriate and necessary” determina- tion. EPA has consistently adopted this latter inter- pretation, including in 2005. See 2005 Delisting Deci- sion, 70 Fed. Reg. at 16,002. In the absence of any limiting text, and considering the context (including § 112(n)(1)(B)) and purpose of the CAA, EPA reason- ably concluded that it could consider environmental] harms in making its “appropriate and necessary” de- termination. The court need not decide whether en- vironmental effects alone would allow EPA to regu- late EGUs under § 112, because EPA did not base its determination solely on environmental effects. As we explain, infra Part I1.B.5, EPA’s decision to list EGUs can be sustained on the basis of its findings regarding health hazards posed by EGU HAP emissions. 4. Cumulative impacts of HAP emissions. On the grounds that § 112(n)(1)(A) directs EPA to study haz- ards reasonably anticipated to occur “as a result of” EGU HAP emissions, petitioners contend that EPA was required to base its “appropriate and necessary” determination on public health hazards that occur exclusively due to EGU HAPs. Thus, they contend, EPA erred in considering EGU HAP emissions that merely “contribute to” or exacerbate otherwise- occurring health hazards. Petitioners point out that EPA’s interpretation conflicts with its approach in 2005, when it read § 112(n)(1)(A) to authorize regula- tion only upon a showing that EGU emissions alone would cause harm. 38a EPA explained that it could reasonably consider the cumulative impacts of HAP emissions because focusing on HAP emissions from EGUs alone when making the appropriate finding ignores the manner in which public health and the en- vironment are affected by air pollution. An in- dividual that suffers adverse health effects as the result of the combined HAP emissions from EGUs and other sources is harmed, irrespec- tive of whether HAP emissions from EGUs alone would cause the harm. NPRM, 76 Fed. Reg. at 24,988; see Final Rule, 77 Fed. Reg. at 9325. EPA acknowledged it was depart- ing from its 2005 approach, see NPRM, 76 Fed. Reg. at 24,989, but justified the departure on grounds that the 2005 approach had been “flawed” and “non- scientific” to the extent that “EPA [had] incorrectly determined that U.S. EGU emissions of [mercury] did not constitute a hazard to public health,” id. at 25,019; cf. Final Rule, 77 Fed. Reg. at 9322-23. EPA’s interpretation in the Final Rule is entitled to deference. Section 112(n)(1)(A)’s reference to haz- ards occurring “as a result of EGU HAP emissions could connote hazards caused solely by EGU emis- sions, but it could also connote hazards exacerbated by EGU emissions. EPA’s commonsense approach to this statutory ambiguity was well within the bounds of its discretion, and it adequately explained its re- versal from 2005. Petitioners’ contention that EPA erred in considering the effects of HAPs emitted by non-EGU sources is therefore unavailing. In any event, EPA concluded in the Mercury Study that “even if there were no other sources of [mercury] ex- posure, exposures associated with deposition at- 39a tributable to U.S. EGUs” would place the most sus- ceptible populations above the methylmercury refer- ence dose. NPRM, 76 Fed. Reg. at 25,010. Thus, EPA did find, as petitioners contend it was required to do, that EGU emissions alone would cause health haz- ards. 5. Regulation under § 112(d). Petitioners contend that even if it is “appropriate and necessary” to regu- late EGU HAP emissions, such regulation should be effected under § 112(n)(1)(A) to the degree appropri- ate and necessary — not under § 112(d) through the imposition of MACT standards. They maintain that regulation of EGU HAPs that do not pose health haz- ards, or regulation at a level higher than needed to eliminate such hazards, is not regulation that is “ap- propriate and necessary.” Petitioners contend that § 112(n)(1)(A)’s instruction to “regulate electric steam generating units under this section” (emphasis added) — rather than “under § 112(d)” — evinces congres- sional intent that EGU HAPs should be regulated dif- ferently than other sources. SIL Br. 36. EPA expressly considered and dismissed petition- ers’ proposed interpretation. EPA concluded that the phrase “under this section” presumptively refers to regulation under section 112, not to regulation under subparagraph 112(n)(1)(A). See Final Rule, 77 Fed. Reg. at 9330; NPRM, 76 Fed. Reg. at 24,993. Thus, the plain statutory language suggests “EGUs should be regulated in the same manner as other categories for which the statute requires regulation.” Final Rule, 77 Fed. Reg. at 9330. EPA explained: CAA section 112 establishes a mechanism to list and regulate stationary sources of HAP emissions. Regulation under CAA section 112 40a generally requires listing under CAA section 112(c)[] [and] regulation under CAA section 112(d)[.}...A determination that EGUs should be listed once the prerequisite appro- priate and necessary finding is made is wholly consistent with the language of section 112(n)(1)(A), and listed sources must be regu- lated under CAA section 112(d). Id.; see also id. at 9326. EPA acted properly in regulating EGUs under § 112(d). Section 112(n)({1)(A) directs the Administra- tor to “regulate electric steam generating units under this section, if the Administrator finds such regula- tion iS appropriate and _ . necessary.” CAA § 112(m)(1)(A), 42 U.S.C. § 7412(n)(1)(A). EPA rea- sonably interprets the phrase “under this section” to refer to the entirety of section 112. See Desert Citi- zens Against Pollution v. EPA, 66 F.3d 524, 527 (D.C. Cir. 2012). Under section 112, the statutory frame- work for regulating HAP sources appears in § 112(c), which covers listing, and § 112(d), which covers standard-setting. See CAA § 112(c), 112(d), 42 U.S.C. § 7412(c), 7412(d). This court has previously noted that “where Congress wished to exempt EGUs from specific requirements of section 112, it said so explic- itly.” New Jersey, 517 F.3d at 583. EPA reasonably concluded that the framework set forth in § 112(c) and § 112(d) — rather than another, hypothetical framework not elaborated in the statute — provided the appropriate mechanism for regulating EGUs un- der § 112 after the “appropriate and necessary” de- termination was made. Therefore, EPA’s interpreta- tion is entitled to deference and must be upheld. 4la 6. Regulation of all HAP emissions. In the Final Rule, EPA claimed authority to promulgate stand- ards for all listed HAPs emitted by EGUs, not merely for those HAPs it has expressly determined to cause health or environmental hazards. See, e.g., 77 Fed. Reg. at 9325-26. Petitioners challenge this approach, maintaining that § 112(n)(1)(A) limits regulation to those individual HAPs that are “appropriate and nec- essary” to regulate. Petitioners also object that EPA’s interpretation contradicts its 2005 rulemaking when it supported a substance-by-substance approach to regulation. EPA explained its disagreement with petitioners’ proposed approach. First, EPA reiterated its view that once an “appropriate and necessary” determina- tion is properly made, “EGUs should be regulated under section 112 in the same manner as other cate- gories for which the statute requires regulation.” Fi- nal Rule, 77 Fed. Reg. at 9326. EPA then reasoned that this court’s decision in National Lime, 233 F.3d at 633, “requires [EPA] to regulate all HAP from ma- jor sources of HAP emissions once a source category is added to the list of categories under CAA section 112(c).” Id. (emphasis added). In other words, EPA concluded that if EGUs are to be regulated in the same manner as other source categories, then all HAPs emitted by EGUs should be subject to regula- tion. See id. EPA did not err by concluding that it may regu- late all HAP substances emitted by EGUs. In Na- tional Lime, 233 F.3d at 633, this court considered whether § 112(d)(1) permitted EPA “to set emission levels only for those listed HAPs” that could be con- trolled with existing technology. Concluding that 42a EPA had a “clear statutory obligation to set emission standards for each listed HAP,” the court held that “the absence of technology-based pollution control de- vices for HCl, mercury, and total hydrocarbons did not excuse EPA from setting emission standards for those pollutants.” Jd. at 634. Although petitioners at- tempt to distinguish National Lime on grounds that it concerned “major sources” rather than EGUs, they have not provided any compelling reason why EGUs should not be regulated the same way as other sources once EPA has determined that regulation under § 112 is “appropriate and necessary.” It also bears emphasis that the plain text of § 112(n)(1)(A) directs the Administrator to “regulate electric utility steam generating units”’—not to regulate their emis- sions, as petitioners suggest. This source-based ap- proach to regulating EGU HAPs was affirmed in New Jersey, 517 F.3d at 582, which held that EGUs could not be delisted without demonstrating that EGUs, as a category, satisfied the delisting criteria set forth in § 112(c)(9). The notion that EPA must “pick and choose” among HAPs in order to regulate only those substances it deems most harmful is at odds with the court’s precedent. To the extent EPA’s interpretation differs from its 2005 approach, it adequately explained its decision. See Final Rule, 77 Fed. Reg. at 9325-26. Although petitioners suggest otherwise, the 2005 Delisting De- cision did not address whether EPA could regulate all listed EGU HAPs following an “appropriate and nec- essary’ determination. Here, EPA offered a reasoned explanation for its approach; no more is required. See Fox Television Stations, 556 U.S. at 515; Nat7 Cable & Telecomms. Ass’n, 545 U.S. at 981. 43a In view of the above, EPA’s conclusion that it may regulate all HAP emissions from EGUs must be up- held. ITI. A. Petitioners assert that even if EPA has correctly interpreted § 112(n)(1)(A), the emission standards that EPA promulgated in the Final Rule are flawed in several respects. 1. Appropriate and necessary determination. Peti- tioners first contend that the agency’s determination that it was “appropriate and necessary” to regulate EGUs is arbitrary and capricious. Consistent with their position on the proper interpretation of § 112(n)(1)(A), petitioners take a HAP-by-HAP ap- proach to criticizing EPA’s Finding. But, as we ex- plained above, EPA reasonably interprets the CAA as allowing it to regulate all EGU HAP emissions pur- suant to the usual MACT program once it makes the threshold “appropriate and necessary” determination. The question then is whether EPA reasonably found it appropriate and necessary to regulate EGUs based on all the record evidence before it. EPA’s “appropriate and necessary” determination in 2000, and its reaffirmation of that determination in 2012, are amply supported by EPA's findings re- garding the health effects of mercury exposure. Mer- cury exposure has adverse effects on human health, primarily through consumption of fish in which mer- cury has bioaccumulated. See Final Rule, 77 Fed. Reg. at 9310. And EGUs are the largest domestic source of mercury emissions. /d. Petitioners do not dispute these basic facts, but instead take issue with 44a whether EPA has sufficiently quantified the contri- bution of EGU mercury emissions to overall mercury exposure. Our case law makes clear, however, that EPA is not obligated to conclusively resolve every sci- entific uncertainty before it issues regulation. See Coal. for Responsible Regulation v. EPA, 684 F.3d 102, 121 (D.C Cir. 2012) (“If a statute is precaution- ary in nature and designed to protect the public health, and the relevant evidence is difficult to come by, uncertain, or conflicting because it is on the fron- tiers of scientific knowledge, EPA need not provide rigorous step-by-step proof of cause and effect to sup- port an endangerment finding.”) (internal quotation marks omitted). Instead, “[w]hen EPA evaluates sci- entific evidence in its bailiwick, we ask only that it take the scientific record into account in a rational manner.” Jd. at 122 (internal quotation marks omit- ted). EPA did so here. As explained in the technical support document (TSD) accompanying the Final Rule, EPA determined that mercury emissions posed a significant threat to public health based on an analysis of women of child-bearing age who consumed large amounts of freshwater fish. See Mercury TSD; NPRM, 76 Fed. Reg. at 25,007; Final Rule, 77 Fed. Reg. at 9311-17. The design of EPA’s TSD was nei- ther arbitrary nor capricious; the study was reviewed by EPA’s independent Science Advisory Board, which stated that it “support[ed] the overall design of and approach to the risk assessment” and found “that it should provide an objective, reasonable, and credible determination of the potential for a public health hazard from mercury emitted from U.S. EGUs.” SAB Letter to EPA Administrator Jackson at 2 (Sept. 29, 2011), EPA-SAB-11-017. In addition, EPA revised 45a the final TSD to address SAB’s remaining concerns regarding EPA’s data collection practices. See Final Rule, 77 Fed. Reg. at 9313—16.5 Petitioners’ remaining objections center on the change in EPA’s position between 2005 and 2012. Although petitioners are correct that EPA weighed certain pieces of evidence differently at different times, the agency reasonably and adequately ex- plained its basis for changing its position on whether mercury emissions posed a sufficient risk to consti- tute a public health hazard. See EPA Br. 40; NPRM, 76 Fed. Reg. at 25,019-20. EPA identified and ana- lyzed what it viewed as technical flaws in the scien- tific analysis supporting the 2005 Delisting Decision, including a failure to evaluate the cumulative health hazard from EGU emissions when combined with other sources of mercury, NPRM, 76 Fed. Reg. at 25,019, and health hazards from methylmercury ex- posure above the reference dose, id. at 25,020. Those 5 For the reasons explained in UARG v. EPA, Nos. 12- 1166, 12-1366, 12-1420, 2014 WL 928230 (D.C. Cir. Mar. 11, 2014), we do not address petitioners’ claims that SAB’s final report on the Mercury TSD was submitted too late to allow public comment and that EPA unreasonably refused SAB’s request to review the final TSD. Petitioners did not raise those issues in comments, and reconsideration is still pending before the agency. Even if these arguments had been properly presented to the agency, petitioners would have forfeited them by raising them only in a cursory footnote in their opening brief before this court. See Hutchins v. Dist. of Columbia, 188 F.3d 531, 539 n.3 (D.C. Cir. 1999) (en banc) (“We need not consider cursory argu- ments made only in a footnote”). 46a explanations are sufficient to meet the agency’s bur- den. See Fox Television Stations, 556 U.S. at 514-16. 2. Major source classification. Petitioners contend that in setting emission standards for EGUs, EPA was required to distinguish between “major sources” and “area sources.” As relevant here, major sources are automatically subject to MACT controls, while area sources may, in EPA’s discretion, be regulated under alternative standards. See CAA § 112(a)(1), 112(a)(2), 112(d)(5), 42 US.C. § 7412(a)(1), 7412(a)(2), 7412(d)(5). Petitioners assert that EPA’s failure to segregate the different types of sources fa- tally compromises the Final Rule because the EGU emission standards should have been based exclu- sively on data from major source EGUs. But § 112(d) does not require EPA to regulate EGUs as “major sources’ and “area sources’; it merely says that, if EPA lists major and area sources, it must then regu- late them according to the separate provisions. See CAA § 112(d)(1), 42 U.S.C. § 7412(d)(1). EPA’s decision not to draw such a distinction here is a reasonable one. As EPA emphasizes, distinguish- ing between major source and area source EGUs runs counter to the separate statutory provisions govern- ing EGUs. While other sources are classified as major or area sources depending on the quantity of emis- sions they emit, § 112 specifically defines EGUs in terms of their electrical output. Compare CAA § 112(a)(8), with CAA § 112(a)(1}(2). Consistent with ordinary rules of statutory construction, EPA reason- ably relied on the more specific definition in § 112(a)(8) rather than the general definitions appli- cable to all other sources. See RadLAX Gateway Ho- tel, LLC v. Amalgamated Bank, 132 S. Ct. 2065, 47a 2070-72 (2012). Requiring EPA to classify EGUs as major or area sources would also create redundancy in the source-category listing criteria. Section 112(c)(3) of the CAA requires EPA to list area sources for regulation if EPA determines that they “war- rant[jregulation.” CAA §112(c)(3), 42 U.S.C. § 7412(c)(3). That finding is arguably unnecessary as applied to EGUs_ given the requirement in § 112(n)(1)(A) that EPA make a finding that regula. tion of all EGUs is “appropriate and necessary.” EPA also did not err in declining to exercise its discretionary authority to require less stringent “generally available control technology,” or GACT, standards, rather than MACT standards. dd. § 112(d)(5), 42 U.S.C. § 7412(d)(5). In the Final Rule, EPA expressly and reasonably determined that set- ting separate GACT standards for area source EGUs was unnecessary. See Final Rule, 77 Fed. Reg. at 9404, 9438 (“[S]imilar HAP emissions and control technologies are found on both major and area sources” such that “there is no essential difference between area source and major source EGUs with re- spect to emissions of HAP.”). For these reasons, EPA reasonably declined to in- terpret § 112 as mandating classification of EGUs as major sources and area sources. 3. Mercury MACT floor. Petitioners next chal- lenge EPA’s standards for mercury emissions from existing coal-fired EGUs. Petitioners maintain that in calculating the MACT floor for those units, EPA collected emissions data from only those EGUs that were best-performing for mercury emissions. Conse- quently, petitioners insist, the mercury MACT stand- ard reflects the results achieved by the “best of the 48a best” EGUs, and not the results of the best 12% of all EGUs, as required by statute. Petitioners’ assertions of a biased or irrational da- ta collection process are not supported by a review of the record. “EPA typically has wide latitude in de- termining the extent of data-gathering necessary to solve a problem.” Sierra Club v. EPA, 167 F.3d 658, 662 (D.C. Cir. 1999). Here, EPA determined that a three-pronged approach was appropriate for develop- ing the mercury MACT standard. First, EPA asked all EGUs for all of their data from 2005-10; it re- ceived data from 168 units. Information Collection Request (“ICR”) Supporting Statement Part A at 9; see generally MACT Floor Analysis Spreadsheets. Second, EPA requested and received data from 50 randomly selected EGUs. ICR Supporting Statement Part B at 2, 7-8. Finally, EPA requested and received data from 170 of the best-performing units for non- mercury emissions. Jd. EPA initially thought that third group would also be the bestperforming for mercury emissions, but it discovered that was not the case after examining the data. See Responses to Comments, Dec. 2011, v.1, at 573—76 (“RTC”). Based on the results of its ICR, covering a total of 388 EGUs, EPA chose “the average emission limita- tion achieved by the best performing 12 percent” of all existing sources “for which [it] ha[d] emissions in- formation,” as authorized by CAA § 112(d)(3)(A). See NPRM, 76 Fed. Reg. at 25,022—23. Although, as EPA acknowledges, it would be arbitrary and capricious for EPA to set a MACT floor based on intentionally skewed data, the facts indicate that EPA did not do so here. Nor does the record suggest that EPA’s data collection efforts resulted in unintentional bias. As 49a previously noted, EPA collected data from a wide range of EGUs because the agency concluded that it could not identify units representing the best- performing 12 percent of mercury emitters. That con- clusion is borne out by the data in the record, which showed that some of the best-performing units for particulate matter control were among the worst per- forming units for mercury control. See generally MACT Floor Analysis Spreadsheets. Similarly, many of the mercury best performers (32 of the best per- forming 126 units) were not drawn from the pool of units that EPA targeted as best performers for par- ticulate matter. See RTC v. 1 at 575. In short, EPA’s data-collection process was reasonable, even if it may not have resulied in a perfect dataset. 4. Acid gas HAP. EPA did not conclusively de- termine that emissions of acid gases such as hydro- gen chloride from EGUs pose a health hazard. See NPRM, 76 Fed. Reg. at 25,016 (“our case studies did not identify significant chronic non-cancer risks from acid gas emissions”). Petitioners say that given that conclusion, EPA should have established a less strin- gent, healthbased emission standard for acid gases under § 112(d)(4). That provision states: “With re- spect to pollutants for which a health threshold has been established, the Administrator may consider such threshold level, with an ample margin of safety, when establishing emission standards under this subsection.” CAA § 112(d)(4), 42 U.S.C. § 7412(d)(4). Section 112(d)(4) makes clear, however, that EPA’s authority to set alternate standards is discretionary. See id. (“the Administrator may consider such threshold level”) (emphasis added). Here, EPA con- cluded that it lacked enough evidence to determine whether an alternative standard would protect 50a health “with an ample margin of safety.” See Final Rule, 77 Fed. Reg. at 9405-06. Petitio ispute EPA’s weighing of the evidence, but pte offer no compelling basis for second-guessing E PA's analy- sis. Petitioners also suggest that regulation of EGU acid gas emissions to address ecosystem acidification conflicts with Congress’s decision in the 1990 CAA amendments to address such acidification in Title [V of the CAA. See SIL Reply Br. 5. But petitioners failed to raise that argument before the agency, and did not raise it in this court until their reply brief. We therefore deem the argument forfeited. See Bd. of Re- gents of Univ. of Washington v. EPA, 86 F.3d 1214, 1221 (D.C. Cir. 1996). 5. UARG delisting petition. The Utility Air Regu- latory Group (UARG) filed a petition with EPA seek- ing to remove coal-fired EGUs from the list of sources regulated under § 112. EPA denied the petition. Pe- titioners now argue that that denial was arbitrary and capricious for the same reasons they assert that the agency’s determination that it is “appropriate and necessary” to regulate EGUs was incorrect. Assum- ing, without deciding, that EPA can delist only a sub- set of the EGU source category, we reject petitioners’ argument on this point. As EPA explained in the Fi- nal Rule, UARG’s delisting petition did not demon- strate that EPA could make either of the two predi- cate findings required for delisting under § 112(c)(9)(B): (1) that no source in the category emits HAP “in quantities which may cause a lifetime risk of cancer greater than one in one million to the individ- ual in the population who is most exposed” and (2) that emissions from no source in the category “exceed 5la a level which is adequate to protect public health with an ample margin of safety.” CAA § 112(c)(9)(B), 42 U.S.C. § 7412(c)(9)(B); see also Final Rule, 77 Fed. Reg. at 9364-65 (discussing technical flaws in UARG’s risk analysis). 6. Chromium emissions data. Vinally, petitioners question the validity of EPA’s case study regarding risks from nonmercury EGU emissions. As relevant here, that study found that at 6 of 16 tested facilities, emissions of HAP posed a lifetime cancer risk of more than one in a million to the most exposed individuals. See Final Rule, 77 Fed. Reg. at 9319. Petitioners con- tend that EPA's cancer-risk finding was the product of contaminated emissions samples, and that EPA has refused to correct the emissions data it used. In making this argument, they rely on their own inde- pendent “subsequent resampling” of the facilities that EPA examined in conducting its inhalation risk as- sessment. SIL Br. 52 n.58; UARG, Petition for Recon- sideration of MATS Rule at 6-7 (Apr. 16, 2012), EPAHQ- OAR-2009-0234-20179 (J.A. 2493-94). EPA did not act arbitrarily or capriciously in rely- ing on the chromium emissions data to which peti- tioners object. As EPA explained in its responses to comments, the data came from source representa- tives themselves. RTC v.1 at 187. EPA reasonably be- lieved that these representatives — given their “con- cern[] about data accuracy” — would review “all data before certifying their accuracy and submitting them to the EPA.” Jd. EPA did not err in relying on this certified data. We cannot consider the data from peti- tioners’ independent resampling, which was conduct- ed after the Final Rule issued and was not part of the 52a administrative record. See CAA § 307(d)(7){(A), 42 U.S.C. § 7607(d)(7)(A). B. A group of electric utilities and industry groups have filed a separate petition raising issues specific to industry. Many of industry petitioners’ arguments concern circulating fluidized bed EGUs, or CFBs. As relevant here, CFBs differ from conventional pulver- ized coal units in that CFBs inject air and additional materials, such as limestone, into the combustion zone in order to achieve lower-temperature combus- tion. At that lower temperature, fuel breaks down to a lesser degree, thus enabling CFBs to control emis- sions without using add-on controls. Industry petitioners argue that these design dif- ferences required EPA to create a separately regulat- ed subcategory for CFBs. They emphasize that EPA recognized the need for a CFB subcategory in a dif- ferent rulemaking proceeding, the “Boiler MACT” Rule. Industry petitioners’ CFB-related arguments are unavailing. Contrary to industry petitioners’ asser- tions, nothing in the Clean Air Act “requires” EPA to create a CFB subcategory. Rather, the statute gives EPA substantial discretion in determining whether subcategorization is appropriate. See CAA § 112(d)(1), 42 U.S.C. § 7412(d)(1) (EPA “may distin- guish among classes, types, and sizes of sources”) (emphasis added); see also Nat? Ass'n of Clean Water Agencies v. EPA, 734 F.3d 1115, 1159 (D.C. Cir. 2013) (“EPA’s subcategorization authority under § 112 in- volves an expert determination, placing a heavy bur- den on a challenger to overcome deference to EPA’s 53a articulated rational connection between the facts found and the choice made.”) (internal quotation marks omitted). EPA’s decision not to create a CFB subcategory in the Final Rule is reasonable and well- supported by the record. Among other things, EPA noted that CFBs were among the best and worst per- formers for various pollutants, indicating that CFBs have emissions profiles similar to other coal-fired units despite their operational differences. See Final Rule, 77 Fed. Reg. at 9397. The record similarly supports EPA’s determina- tion that the 0.002 Ilb/MMBtu hydrogen chloride limit for CFBs is achievable. As noted above, some CFB units were among the top performers for each of the regulated pollutants, including hydrogen chloride. See id. The record thus demonstrates that at least some CFB units are in fact able to achieve the hydro- gen chloride limit. In any event, the fact that the Fi- nal Rule may not be cost effective for all CFBs does not necessarily mean EPA erred in declining to create a CFB subcategory or in setting emission standards applicable to those units. EPA’s decision to subcategorize CFBs in the Boil- er MACT Rule is not to the contrary. There, EPA concluded that CFBs presented relevant differences with respect to carbon monoxide— not mercury, acid gases, or particulates (the pollutants at issue in this rulemaking). See National Emission Standards for Hazardous Air Pollutants for Major Sources: Indus- trial, Commercial, and Institutional Boilers and Pro- cess Heaters, 76 Fed. Reg. 15,608, 15,617-18 (Mar. 21, 2011). Industry petitioners further argue that at a min- imum, EPA should have set separate acid gas stand- 54a ards for coal-refuse-fired CFBs. Those units burn waste coal from other coal-mining operations and use the resulting ashes in mine reclamation projects. In- dustry petitioners maintain that these fuel-ash reuse efforts would be imperiled by the stringency of the _acid gas standards in the Final Rule. We conclude that EPA reasonably decided that separate standards for coal-refuse-fired CFBs were not warranted. Industry petitioners’ assertion that the hydrogen chloride standards are unattainable for coal-refuse-fired CFBs is undermined by the fact that some of those units were among the best performers for hydrogen chloride. See RTC v.1 at 587. EPA also suggested alternative compliance methods that it says would permit coal-refuse-fired CFBs to continue participating ih reclamation efforts. See Final Rule, 77 Fed. Reg. at 9412. Regardless, nothing in the CAA obligates EPA to set standards in a way that always allows the re-use of fuel ash, even if doing so might be a more desirable outcome for some EGU op- erators. C. In contrast to its decision on CFBs, EPA did cre- ate a subcategory for lignite-fired EGUs. (Lignite coal] is also referred to as “low rank” coal due to its low heat content.) Industry petitioners argue that the emission standard for the lignite subcategory is based on an improperly calculated minimum stringency level, or MACT floor. Industry petitioners also con- tend that the emission standard set by EPA is not achievable. We consider these arguments in turn. 1. MACT floor. Industry petitioners insist that EPA incorrectly calculated the MACT floor for lignite 55a units, rendering that standard arbitrary and capri- cious. They assert that EPA used “cherry picked” da- ta from the top 6% of units, instead of the top 12% as required by § 112(d)(3)(A). Finally, industry petition- ers argue that EPA did not properly account for vari- ability in lignite coal. Industry petitioners’ data-bias argument is simi- lar to the argument made by the State, Industry & Labor petitioners regarding the mercury MACT floor, supra Part III.A.3. And, as with that argument, peti- tioners’ assertions regarding the lignite MACT floor find no support in the record. EPA has offered a rea- sonable, non-biased explanation of its data-collection and analysis process. See MACT Floor Memo at 10; RTC v.1 at 559-60. Industry petitioners’ objections regarding the var- iability of lignite coal likewise fail. EPA accounted for variability due to differing chemical compositions of coal by applying its Upper Prediction Limit analysis. See NPRM, 76 Fed. Reg. at 25,041. Industry peti- tioners do not challenge that analysis itself. They do suggest in passing that EPA’s results are flawed, see Industry Pet’rs’ Br. 10, but offer no explanation as to why that is so. Such cursory treatment is inadequate to place their challenge to EPA's variability analysis before the court, because “it is not enough merely to mention a possible argument in the most skeletal way, leaving the court to do counsel’s work, create the ossature for the argument, and put flesh on its bones.” Davis v. Pension Benefit Guar. Corp., 734 F.3d 1161, 1166-67 (D.C. Cir. 2013) (internal quota- tion marks and alterations omitted). While EPA acknowledged that it could not account for all opera- tional variability, it concluded that its variability 56a analysis “is an appropriate method of addressing the concern that these standards must be met at all times.” RTC v.1 at 458. EPA’s explanation is suffi- cient to withstand our “extremely deferential” review of this kind of technical judgment. New York v. Reilly, 969 F.2d 1147, 1152 (D.C. Cir. 1992). 2. Beyond-the-floor limit. EPA is permitted to set a more restrictive, “beyond-the-floor” emission stand- ard if the agency determines that such a standard is “achievable” considering costs, energy requirements, and applicable control technologies. CAA § 112(d)(2), 42 U.S.C. § 7412(d)(2). To be “achievable,” a standard “must be capable of being met under most adverse conditions which can reasonably be expected to re- cur.” Nat? Lime Ass’n v. EPA, 627 F.2d 416, 431 n.46 (D.C. Cir. 1980). In this case, industry petitioners ar- gue that EPA failed to consider the limitations of ap- plicable control technologies. As a result, petitioners contend, EPA’s beyond-the-floor standard for lignite- fired EGUs is not achievable because the standard mandates unrealistically high levels of mercury re- duction. We reject petitioners’ challenge to the beyond-the- floor standard. EPA concluded during the rulemaking process that the standard for lignite units is achieva- ble if sources increase their use of a particular control technology, activated carbon injection. See Beyond- the-Floor Memo at 1-4. According to EPA, increased carbon injection can reduce emissions by up to 90%, well in excess of the reductions necessary to reach beyond-the-floor levels. Jd. at 1—2. Ultimately, the dispute on this issue amounts to a factual disagree- ment between EPA and petitioners over the effec- tiveness of activated carbon injection. Because the 57a record contains no data inconsistent with EPA’s posi- tion on the efficacy of activated carbon injection, we defer to the agency’s determination that the beyond- the-floor emission standard for lignite-fired EGUs is achievable. D. Public utility companies are subject to certain state-law contracting requirements that may length- en the process of installing upgraded controls. That added time, industry petitioners argue, requires EPA to grant a blanket, one-year extension of the compli- ance deadline to public power companies. We disa- gree. Once again, petitioners’ argument amounts to a claim that a decision the Clean Air Act leaves to EPA’s discretion should instead be mandatory. See CAA § 112(i)(3)(B), 42 U.S.C. § 7412(i)(3)(B) (EPA “may issue” an extension under certain circumstanc- es). EPA explained at length why such a blanket ex- tension was inappropriate. See Final Rule, 77 Fed. Reg. at 9407, 9409-11. Most importantly, industry petitioners did not show — and likely could not show— that an extension is necessary for the instal- lation of controls at every public power company. On the contrary, EPA’s data indicated that “most units will be able to fully comply” within the three-year pe- riod established by EPA. Final Rule, 77 Fed. Reg. at 9410. EPA’s decision not to issue a blanket extension therefore was not arbitrary or capricious.® ® To the extent that petitioners object to EPA's alleged failure to respond to comments on this issue made by pub- lic power companies on the ground that this failure vio- lates CAA § 307(d)(6)(B), 42 U.S.C. § 7607(d)(6)(B), we do 58a IV. We turn to the challenges by Environmental! peti- tioners and Julander Energy Company. A. Environmental petitioners challenge the provi- sions of the Final Rule that ailow compliance with emission standards to be demonstrated through (1) emissions averaging and (2) options for non-mercury metal HAP emissions monitoring. Chesapeake Clh- mate Action Network, Conservation Law Foundation, Environmental Integrity Project, and Sierra Club ob- ject to averaging as unlawful; Chesapeake Climate Action Network and Environmental Integrity Project object to the monitoring options as failing to provide reasonable assurance of compliance. They presented their objections (save one) during the comment period and EPA has responded to them. Although the chal- lenges to emissions averaging are also pending before EPA in a petition for reconsideration, and usually would be incurably premature, see, e.g., Clifton Power Corp. v. FERC, 294 F.3d 108, 112 (D.C. Cir. 2002), the text and legislative history of the Clean Air Act make clear this usual approach is inapplicable, see UARG v. EPA, Nos. 12-1166, 12-1366, 12-1420, 2014 WL 928230, at *3 (D.C. Cir. Mar. 11, 2014); CAA not address that objection because it was first raised in a pending petition for reconsideration. See UARG, 2014 WL 928230, at *4. We also do not address industry petitioners’ arguments concerning the standards for petroleum-coke- fired EGUs and liquid oil-fired non-continental EGUs be- cause those arguments were likewise first raised in a pending petition for reconsideration. 59a § 307(b)(1), 42 U.S.C. § 7607(b)(1); S. Rep. No. 101- 228, at 3755 (1989). 1. Averaging. Under the Final Rule, existing con- tiguous, commonly-controlled EGUs in the same sub- category can demonstrate compliance by averaging their emissions as an alternative to meeting certain requirements on an individual basis. Final Rule, 77 Fed. Reg. at 9384, 9473-76 (codified at 40 C.F.R. § 63.10009). Averaging is permissible only between the same types of pollutants, individual EGUs that are part of the same affected source, EGUs subject to the same emission standard, and existing (not new) EGUs. Id. at 9385. Each facility intending to use emissions averaging must develop an emissions av- eraging plan identifying “(1) [aJil units in the averag- ing group; (2) the control technology installed; (3) the process parameter that will be monitored; (4) the spe- cific control technology or pollution prevention meas- ure to be used; (5) the test plan for the measurement of the HAP being averaged; and (6) the operating pa- rameters to be monitored.” Jd. at 9385—86. Environmental petitioners contend the averaging alternative is unlawful because it relaxes the strin- gency of the MACT floor standards. With one excep- tion, EPA set the MACT floor standards based on a thirty-boiler operating day averaging period. Jd. at 9385, 9479-80. Allowing multiple EGUs to average their emissions data effectively extends, petitioners maintain, the standards’ averaging period to sixty days (for two units), ninety days (for three units), or more. In their view, a longer averaging period per- mits longer and larger pollution spikes because high measurements can be averaged over more hours of normal, lower-pollution operations. 60a Section 112(d)(3), 42 U.S.C. § 7412(d)(3), provides that emission standards for existing sources “shall not be less stringent” than “the average emission lim- itation achieved by the best performing 12 percent” of such sources. The subsection (d)(2) “beyond-the-floor” requirement provides that emission standards for new or existing sources “shal! require the maximum degree of reduction in emissions of the hazardous air pollutants subject to this section .. . that the Admin- istrator...determines is achievable.” CAA § 112(d)(2), 42 U.S.C. § 7412(d)(2). EPA permissibly interpreted § 112(d) to allow emissions averaging as provided for in the Final Rule. See Chevron, 467 U.S. at 843. That section nei- ther expressly allows nor disallows emissions averag- ing among multiple units. In the Final Rule, EPA stated: Averaging across affected units is permitted only if it can be demonstrated that the total quantity of any particular HAP that may be emitted by that portion of a contiguous major source that is subject to the same standards in the [Final Rule] will not be greater under the averaging mechanism than it could be if each individual affected EGU in the subcategory complied separately with the applicable stand- ard. Under this test, the practical outcome of averaging is equivalent to compliance with the MACT floor limits by each discrete EGU, and the statutory requirement that the MACT standard reflect the maximum achievable emissions reductions is, therefore, fully effec- tuated. 6la 77 Fed. Reg. at 9385. Viewing averaging as “an equivalent, more flexible, and less costly alternative” to requiring units to demonstrate compliance indi- vidually, EPA explained that permitting averaging is part of its “general policy of encouraging the use of flexible compliance approaches where they can be properly monitored and enforced.” Id. Environmental petitioners concede the averaging alternative will not result in an increase in a source’s total emissions beyond the level permitted under the applicable standard, see Envtl. Pet's’ Br. 18, and while theoretically averaging could allow an individ- ual unit’s emissions to exceed the standard, under the Final Rule that exceedance must be offset by oth- er, better-performing units to demonstrate compli- ance. They have not challenged EPA’s interpretation of the ambiguous term “source,” which EPA defined as referring to “the collection of coal- or oil-fired EGUs... within a single contiguous area and under common control,” Final Rule, 77 Fed. Reg. at 9366, rather than a single EGU. Because § 112(d)(3), 42 U.S.C. § 7412(d)(3), requires EPA to prescribe emis- sions limitations fo. “sources,” not units, EPA could permissibly establish a standard that allows averag- ing within a single source. Cf. Chevron, 467 U.S. at 866. Although this may allow individual] units to ex- ceed the emissions limitation, the statute does not require EPA to regulate emissions on a unit level. As EPA has observed, Environmental petitioners’ main objection appears to be that the Final Rule does not include a “discount factor” whereby emission rates are reduced for sources using an averaging al- ternative. Petitioners point, for example, to the dis- count factor included in the Hazardous Organic 62a NESHAP rule, Envtl. Pet’rs’ Br. 9-10, in which EPA determined that “to carry out the mandate of section 112(d)(2), some portion of these cost savings {from averaging] should be shared with the environment by requiring sources using averaging to achieve more emission reductions than they would otherwise.”’ To the extent petitioners’ objection is that EPA failed to explain why it did not include a discount fac- tor, EPA, in fact, offered a reasonable and adequate explanation. In the Final Rule, EPA explained that “Igliven the homogeneity of fuels within the rules subcategories, along with other emissions averaging criteria, the Agency believes use of a discount factor to be unwarranted for this rule.” Final Rule, 77 Fed. Reg. at 9386. Further, in responding to comments, EPA explained that unlike the Hazardous Organic rule, “which covers a broad number of unit types, products, and processes,” EGUs subject to the Final Rule “differ generally only in the fuel used to produce electricity,” a difference, EPA concluded, “accounted for... by prohibiting units from differing subcatego- ries — which are fuel based — from participating in emissions averaging.” RTC v.2 at 361-62. EPA noted as well its agreement that “other safety factors in the rule obviate the need for a discount factor,” id. at 363, including the requirement averaging start within three years of promulgation of the Final Rule. ’ National Emission Standards for Hazardous Air Pollu- tants for Source Categories; Organic Hazardous Air Pollu- tants from the Synthetic Organic Chemical Manufacturing Industry and Other Processes Subject to the Negotiated Regulation for Equipment Leaks, 59 Fed. Reg. 19,402, 19,430 (Apr. 22, 1994). 63a The suggestion by Environmental petitioners that EPA improperly relied on its Upper Prediction Limit (“UPL”) analysis to mitigate the effect of averaging on the stringency of emission standards fares no bet- ter. The UPL analysis in the MACT floor calculation is designed to “assess variability of the best perform- ers.” NPRM, 76 Fed. Reg. at 25,041. To the extent pe- titioners point to EPA’s statement in responding to comments, they ignore its context. EPA stated that it “disagrees with the suggestion that another variabil- ity component need be considered for those EGU owners or operators who choose to engage in emis- sions averaging; the current UPL analyses was [sic] developed to take factors such as those mentioned by the commenter into account.” RTC v.2 at 363. Accord- ing to Environmental petitioners, “the UPL analyses contain nothing that would eliminate (or even miti- gate) the Averaging Alternative’s additional relaxa- tion of the standards,” and it was therefore inappro- priate for EPA to rely on this analysis in support of the Final Rule’s emissions averaging provisions. En- vtl. Pet’rs’ Br. 20. But there is nothing to indicate this is what EPA did. In its statement, EPA was respond- ing to industry comments arguing that because EPA had accounted for individual-unit variability in the UPL analysis in setting MACT floors, it was inappro- priate to allow a multi-unit facility to further reduce variability by averaging, without applying a discount factor. It is far too great a stretch to read EPA’s re- sponse as an admission that EPA relied on its UPL analysis to support emissions averaging. 2. Monitoring. The Final Rule provides three al- ternatives to continuous emissions monitoring to demonstrate compliance with the non-mercury metal HAP standards. They are: (1) use of a continuous 64a parametric monitoring system (“CPMS’”), (2) quarter- ly performance testing, and (3) performance testing once every three years for qualifying low emitting EGUs. See Final Rule, 77 Fed. Reg. at 9466 (codified at 40 C.F.R. § 63.10000(c)(1)({iii-iv)). Environmental petitioners first challenged CPMS in a pending peti- tion for reconsideration, and therefore that challenge is not properly before the court for decision now. See UARG, 2014 WL 928230, at *4, *5 n.4. Any EGU may demonstrate compliance with the nonmercury metal standards through quarterly per- formance tests. Final Rule, 77 Fed. Reg. at 9372, 9384, 9466. If a unit’s emission results for all re- quired tests are less than 50 percent of the applicable emission limit for a three-year period, the EGU may qualify as a low emitting EGU for non-mercury metal HAPs and is then required to conduct performance testing only once every three years, so long as it maintains compliance. Jd. at 9371, 9466, 9471. Environmental petitioners maintain that stack testing conducted quarterly or once every three years cannot provide reasonable assurance of compliance with a standard set as a thirty-day emissions rate, given EPA’s determination that stack test results are highly variable, and that EPA has failed to explain how compliance options involving long intervals be- tween performance tests and lacking any control of operating conditions between tests can provide suffi- ciently timely or reliable information to assure com- plhance. EPA has provided a reasonable explanation for its determination that each of these monitoring options complies with the statutory requirements of CAA §§ 114 and 504. 65a Section 504(b), 42 U.S.C. § 7661c(b), provides that “continuous emissions monitoring need not be re- quired if alternative methods are available that pro- vide sufficiently reliable and timely information for determining compliance.” Although § 114(a)(3), 42 U.S.C. § 7414(a)(3), “require[s] enhanced monitoring” for major stationary sources, there is “no presump- tion in favor of any particular type of monitoring.” Sierra Club, 353 F.3d at 991. EPA has “broad discre- tion in selecting a monitoring regime that ensures compliance,” and as long as it “reasonably articu- late[s] the basis for its decision,” id., the court will “defer to the informed discretion of the Agency,” rec- ognizing that “analysis of this issue requires a high level of expertise,” id. (quoting Nat7 Lime, 233 F.3d at 635). EPA explained that, in its judgment, “[t]he quar- terly stack testing period, coupled with underlying monitoring of control devices or the additional moni- toring for liquid oil-fired units, is expected to be fre- quent enough to ensure that a unit’s emissions con- trol devices and processes continue to operate in the same manner as during the previous stack test.” RTC v.2 at 93. “If there are significant changes to the op- eration of the unit or the fuel, then a retest is re- quired to reconfirm that the source remains in com- pliance under the new operating circumstances.” Id. EPA acknowledged, with .espect to the low emitting EGU option, that the available data “shows an EGU’s potential variability,” but reasoned that “well- operated EGUs — such as those qualifying for [low emitting EGU] status — are expected to have much less variable emissions” and that “the requirement to revert to the original monitoring frequency should subsequent emissions testing show the EGUs no 66a longer meet [low emitting EGU] status will keep source owners or operators interested in maintaining [that] status.” Jd. at 244. EPA has provided a reason- able explanation for its determinations that these two monitoring options provide sufficient assurance of compliance with the applicable emission stand- ards. B. Julander Energy Company, an oil and natural gas development, exploration, and production company, challenges EPA’s decision not to adopt stricter emis- sion standards by requiring “fuel switching” by EGUs from coal to natural gas. It contends that EPA unlaw- fully relied on a non-statutory factor (prohibition of construction of new coal-fired EGUs), failed to con- sider a required statutory factor (§ 112’s requirement that EPA consider collateral benefits of control op- tions), and reached arbitrary and capricious conclu- sions about natural gas supply and infrastructure and costs. As a threshold matter, the court must address Ju- lander’s standing. Industry intervenor-respondents contend Julander lacks standing under Article III of the Constitution. In fact, Julander’s “injury in fact,” causation, and redressability under Article III, see Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61 (1992), are self-evident, see Sierra Club v. EPA, 292 F.3d 895, 899—900 (D.C. Cir. 2002), insofar as the Fi- nal Rule does not require EGUs to switch to natural gas, to the detriment of Julander’s stated interests, and on remand EPA could require fuel switching. EPA, however, contends Julander lacks “prudential standing” because its interests do not come within the zone-of-interests test articulated in Association of 67a Data Processing Service Organizations, Inc. v. Camp, 397 U.S. 150 (1970). The Supreme Court recently clarified that “prudential standing is a misnomer’ as applied to the zone-of-interests analysis,” Lexmark Int7T, Inc. v. Static Control Components, Inc., No. 12- 873, 2014 WL 1168967, at *6 (U.S. Mar. 25, 2014) (quoting Ass’n of Battery Recyclers, Inc. v. EPA, 716 F.3d 667, 675-76 (D.C. Cir. 2013) (Silberman, J., con- curring)). The question remains whether Julander’s interest is “arguably within the zone of interests to be protected or regulated by the statute.” Match-E-Be- Nash-She-Wish Band of Pottawatomi Indians v. Patchak, 132 S. Ct. 2199, 2210 (2012) (quoting Ass’n of Data Processing, 397 U.S. at 153). Although the zone-of-interests test “is not meant to be especially demanding,” Clarke v. Secs. Indus. Ass'n, 479 U.S. 388, 399 (1987), we conclude that Ju- lander falls outside the zone of interests protected by § 112 of the CAA. Notwithstanding our concurring colleague’s suggestion, this conclusion is not the re- sult of a “coin flip” to decide which of our precedents to follow. Concurring Op. at 17, 29. The Supreme Court has instructed that “the breadth of the zone of interests varies according to the provisions of law at issue.” Lexmark, 2014 WL 1168967, at *8 (citation omitted). Accordingly, this court must be guided by those of our precedents that have interpreted § 112, and not those applying other statutory provisions, in- cluding the APA. Those cases hold in the context of challenges to emission standards that competitors of regulated parties fall outside the zone of interests protected by § 112. In Association of Battery Recyclers, 716 F.3d at 674, the court held that a corporation could not chal- 68a lenge EPA’s failure to impose more stringent emis- sion standards on its competitors because that inter- est fell outside the zone of interests protected by § 112. In Cement Kiln Recycling Coalition v. EPA, 255 F.3d 855, 871 (D.C. Cir. 2001), the court similarly held that the purely commercial interests of manu- facturers of pollution control equipment seeking more rigorous regulation of their competitors under § 112 were not within the zone of interests that Congress intended to be relied upon to challenge EPA’s claimed disregard of the CAA. This was so even though their pecuniary interests in increasing demand for their products were aligned with the goals of the CAA. The court explained that Congress’s evident purpose in enacting the CAA was not to compel those sources with less-than-best pollution contro] to invest in up- graded equipment, but only to meet the standards, as distinct from adopting the methods of emission con- trol, of the best performing sources. Jd. This court has not read the Supreme Court’s decision in Match-E- Be-Nash-She-Wish Band of Pottawatomi Indians, 132 S. Ct. 2199, to change the zone-of-interests standard, and the court is bound to follow its own precedent. See Grocery Mfrs. Ass’n v. EPA, 693 F.3d 169, 179 (D.C. Cir. 2012); id. at 180 (Tatel, J., concurring). Julander disputes that it is seeking a competitive advantage by increasing the regulatory burden on its competitors, pointing out that as an oil and natural gas development company it is not a direct competi- tor of the regulated coal- and oil-fired EGUs. It main- tains that it is properly characterized as a vendor to, and not a competitor of, the regulated entities. None- theless, the reasoning of our binding precedent en- compasses Julander’s situation. As the court ob- served in Hazardous Waste Treatment Council v. 69a EPA, 861 F.2d 277, 282 (D.C. Cir. 1988), where the Treatment Council, much like Julander, claimed its interests, although pecuniary, were “in sync” with those sought to be served by the Resource Conserva- tion and Recovery Act, the Supreme Court’s standard in Clarke “leaves the status of this sort of incidental benefit somewhat unclear.” In “find[ing] operational meaning for a test that demands less than a showing of congressional intent to benefit but more than a ‘marginal[Jrela[tionship]’ to the statutory purposes,” id. at 283 (quoting Clarke, 479 U.S. at 399), this court acknowledged that even absent an apparent congres- sional intent to benefit there may still be “some indi- cator that the plaintiff is a peculiarly suitable chal- lenger of administrative neglect [to] support[] an in- ference that Congress would have intended eligibil- ity,” id. But the court rejected the notion that the pe- titioner’s “in sync” interests were more than “mar- ginally related” to Congress’s environmental purpos- es. Id, Whenever Congress pursues some goal, it is inevitable that firms capable of advancing that goal may benefit. If Congress authorized bank regulators to mandate physical security measures for banks, for example, a shoal of se- curity services firms might enjoy a profit po- tential — detective and guard agencies, manu- facturers of safes, detection devices and smal] arms, experts on entrance control, etc. But in the absence of either some explicit evidence of an intent to benefit such firms, or some reason to believe that such firms would be unusually suitable champions of Congress’s ultimate goals, no one would suppose them to have standing to attack regulatory laxity. And of 70a course a rule that gave any such plaintiff standing merely because it happened to be dis- advantaged by a particular agency decision would destroy the requirement of prudential standing; any party with constitutional stand- ing could sue. Id. (emphasis added). In Cement Kiln, 255 F.3d at 871, the court embraced this analysis as no less ap- plicable to the CAA. The court has further observed that “judicial intervention may defeat statutory goals if it proceeds at the behest of interests that coincide only accidentally with those goals,” Hazardous Waste, 861 F.2d at 283, and that “open-ended emissions standards” are particularly susceptible to such “ma- nipulation,” Honeywell Intl Inc. v. EPA, 374 F.3d 1363, 1371 (D.C. Cir. 2004). Ethyl Corp. v. EPA, 306 F.3d 1144 (D.C. Cir. 2002), is of no aid to Julander. In that case, the court held that a manufacturer of fuel additives seeking information (through an open process for testing emissions control systems) in order to comply with its own regulatory obligations fell within the zone of in- terests protected or regulated by the CAA. See id. at 1148. Ethyl had an interest that “appear[ed] congru- ent with those of the [CAA], i.e., the development of products that will reduce harmful air pollutants,” id., without the potential for distortion of the regulatory process of concern to the court in Hazardous Waste, 861 F.2d at 285, and Cement Kiln, 255 F.3d at 871. Unlike petitioners seeking to increase the regulatory burden on others in order to advance their own com- mercial interests, Ethyl sought access to information to “improve its products with an eye to conformity to emissions needs” and [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385016_0332%3A03. Public record. Not legal advice.