IN THE UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT. No (Consolidated with Nos , , )

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1 USCA Case # Document # Filed: 07/12/2013 Page 1 of 40 IN THE UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT No (Consolidated with Nos , , ) ASSOCIATION OF BATTERY RECYCLERS, INC., et al., Petitioners, -v.- ENVIRONMENTAL PROTECTION AGENCY, et al., Respondents. On Petition for Review of Final Action of the U.S. Environmental Protection Agency PETITION FOR PANEL REHEARING AND FOR REHEARING EN BANC OF CALIFORNIA COMMUNITIES AGAINST TOXICS, FRISCO UNLEADED, MISSOURI COALITION FOR THE ENVIRONMENT FOUNDATION, NATURAL RESOURCES DEFENSE COUNCIL, AND SIERRA CLUB Avinash Kar Natural Resources Defense Council 111 Sutter Street, 20th Floor San Francisco, CA (415) akar@nrdc.org Counsel for Natural Resources Defense Council July 12, 2013 Emma C. Cheuse James S. Pew Earthjustice 1625 Massachusetts Ave., N.W., Suite 702 Washington, D.C (202) echeuse@earthjustice.org jpew@earthjustice.org Counsel for Environmental Petitioners

2 USCA Case # Document # Filed: 07/12/2013 Page 2 of 40 CERTIFICATE AS TO PARTIES, RULINGS, AND RELATED CASES In accordance with Circuit Rule 35(c), Petitioners Sierra Club, California Communities Against Toxics, Frisco Unleaded, Missouri Coalition for the Environment Foundation, and Natural Resources Defense Council hereby certify as follows: (A) Parties and Amici (i) Parties, Intervenors, and Amici Who Appeared in the District Court This case is a petition for review of final agency action, not an appeal from the ruling of a district court. (ii) Parties to This Case Petitioners: Association of Battery Recyclers, Inc. in Johnson Controls Battery Group in Doe Run Resources Corporation in Sierra Club, California Communities Against Toxics, Frisco Unleaded, Missouri Coalition for the Environment Foundation, and Natural Resources Defense Council in i

3 USCA Case # Document # Filed: 07/12/2013 Page 3 of 40 Respondents: United States Environmental Protection Agency and Bob Perciasepe, Acting Administrator (collectively EPA ) (automatically substituted for former Administrator Lisa P. Jackson, pursuant to Fed. R. App. P. 43(c)(2)). Intervenors: RSR Corporation and all of the above-listed Petitioners are also participating as Intervenors. (iii) Amici in This Case Currently, there are no amici curiae. (iv) Circuit Rule 26.1 Disclosures This statement is included below. (B) Ruling Under Review Petitioners seek review of the final action (including the promulgation of regulations) taken by EPA at 77 Fed. Reg. 556 (Jan. 5, 2012), titled National Emissions Standards for Hazardous Air Pollutants from Secondary Lead Smelting; Final Rule. JA1. (C) Related Cases Environmental Petitioners are unaware of any related cases (other than those already consolidated). ii

4 USCA Case # Document # Filed: 07/12/2013 Page 4 of 40 RULE 26.1 DISCLOSURE STATEMENT Pursuant to Circuit Rules 35(c) and 26.1, Petitioners make the following disclosures: California Communities Against Toxics: No publicly held company has a 10% or greater ownership interest in California Communities Against Toxics. California Communities Against Toxics is a nonprofit organization that is a project of a nonprofit corporation (Del Amo Action Committee) that is organized and existing under the laws of the State of California. It is an environmental justice network that aims to reduce exposure to pollution, to expand knowledge about the effects of toxic chemicals on human health and the environment, and to protect the most vulnerable people from harm. Frisco Unleaded: No publicly held company has a 10% or greater ownership interest in Frisco Unleaded. Frisco Unleaded is an unincorporated nonprofit association based in Frisco, Texas that is affiliated with Downwinders At Risk (which is a nonprofit corporation that is organized and existing under the laws of the State of Texas). Frisco Unleaded aims to reduce harm to the local community related to secondary lead smelting pollution. iii

5 USCA Case # Document # Filed: 07/12/2013 Page 5 of 40 Missouri Coalition for the Environment Foundation: The Missouri Coalition for the Environment Foundation has no parent companies, and no publicly held company has a 10% or greater ownership interest in the Missouri Coalition for the Environment Foundation. Missouri Coalition for the Environment Foundation is a nonprofit corporation organized and existing under the laws of the State of Missouri, and is dedicated to preserving, protecting, and enhancing an environment that is livable, healthful, and sustainable. Natural Resources Defense Council: Natural Resources Defense Council has no parent companies, and no publicly held company has a 10% or greater ownership interest in the Natural Resources Defense Council. Natural Resources Defense Council, a corporation organized and existing under the laws of the State of New York, is a national nonprofit organization dedicated to improving the quality of the human environment and protecting the nation s endangered natural resources. Sierra Club: Sierra Club has no parent companies, and no publicly held company has a 10% or greater ownership interest in the Sierra Club. Sierra Club, a corporation organized and existing under the laws of the State of California, is a national nonprofit organization dedicated to the protection and enjoyment of the environment. iv

6 USCA Case # Document # Filed: 07/12/2013 Page 6 of 40 TABLE OF CONTENTS CERTIFICATE AS TO PARTIES, RULINGS, AND RELATED CASES... i RULE 26.1 DISCLOSURE STATEMENT... iii TABLE OF CONTENTS... v TABLE OF AUTHORITIES... vi STATEMENT OF BASIS FOR EN BANC AND PANEL REHEARING... 1 ARGUMENT... 2 I. THE PANEL DECISION CONFLICTS WITH CHEVRON AND THIS COURT S PRECEDENT REQUIRING APPLICATION OF THE WORDS ENACTED AS FEDERAL LAW II. THIS ISSUE HAS EXCEPTIONAL IMPORTANCE FOR THIS COURT S JURISPRUDENCE AND FOR THE CONTROL OF ALL MAJOR SOURCES OF TOXIC AIR POLLUTION IN THE U.S CONCLUSION... 9 CERTIFICATE OF SERVICE ADDENDUM v

7 USCA Case # Document # Filed: 07/12/2013 Page 7 of 40 TABLE OF AUTHORITIES CASES PAGE(S) Ass n of Battery Recyclers, Inc. v. EPA, No , Slip Op., 716 F.3d 667 (D.C. Cir. 2013) , 6-9 Cement Kiln Recycling Coal. v. EPA, 255 F.3d 855 (D.C. Cir. 2001)... 3, 8 * Chevron, U.S.A., Inc. v. NRDC, 467 U.S. 837 (1984)... 1, 2, 6, 9 City of Anaheim, Cal. v. F.E.R.C., 558 F.3d 521 (D.C. Cir. 2009)... 6 Cooper Indus., Inc. v. Aviall Servs., Inc., 543 U.S. 157 (2004) * NRDC v. EPA, 529 F.3d 1077 (D.C. Cir. 2008) , 4-7 Nat l Lime Ass n v. EPA, 233 F.3d 625 (D.C. Cir. 2000)... 3, 8 New Jersey v. EPA, 517 F.3d 574 (D.C. Cir. 2008)... 8 Sierra Club v. EPA, 353 F.3d 976 (D.C. Cir. 2004) Sierra Club v. EPA, 479 F.3d 875 (D.C. Cir. 2007)... 8 Whitman v. Am. Trucking Ass ns, 531 U.S. 457 (2001)... 6 STATUTES Clean Air Act 112(d), 42 U.S.C. 7412(d) vi

8 USCA Case # Document # Filed: 07/12/2013 Page 8 of 40 * 112(d)(2), 42 U.S.C. 7412(d)(2) * 112(d)(3), 42 U.S.C. 7412(d)(3) (d)(5), 42 U.S.C. 7412(d)(5) (d)(6), 42 U.S.C. 7412(d)(6) OTHER AUTHORITIES EPA, National Emission Standards for Hazardous Air Pollutants: Revision of Source Category List Under Section 112 of the Clean Air Act, 70 Fed. Reg. 37,819 (June 30, 2005)... 8 S. Rep. No (1989), reprinted in 1990 U.S.C.C.A.N (last viewed July 2, 2013)... 8 * Authorities upon which we chiefly rely are marked with asterisks. vii

9 USCA Case # Document # Filed: 07/12/2013 Page 9 of 40 STATEMENT OF BASIS FOR EN BANC AND PANEL REHEARING Where statutory text makes Congressional intent clear, that is the end of the matter. Chevron, U.S.A., Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837, (1984). The panel s decision conflicts with this fundamental holding. The text of Clean Air Act 112(d)(2)-(3), 42 U.S.C. 7412(d)(2)-(3), makes clear that all emission standards promulgated under 112(d) for major sources must comply with certain stringency requirements. Yet the panel s decision effectively rewrites the statute by holding that some standards need not comply. And it does so by relying in error on a prior decision of this Court that neither resolved the issue at hand nor even addressed the binding statutory text. The issue presented here is exceptionally important. The panel s decision allows EPA to bypass the stringency requirements in 112(d)(2)-(3) when the agency promulgates emission standards for hazardous air pollutants as a result of the statutorily required eight-year review. The effect will be to hollow out the core of the Act s toxics program for years to come. Absent rehearing, people living near lead smelters and more than 100 other types of major sources e.g., power plants, cement kilns, chemical plants, and hazardous waste combustors will never see the lasting protection that Congress intended the 1990 Amendments to provide. 1

10 USCA Case # Document # Filed: 07/12/2013 Page 10 of 40 ARGUMENT I. THE PANEL DECISION CONFLICTS WITH CHEVRON AND THIS COURT S PRECEDENT REQUIRING APPLICATION OF THE WORDS ENACTED AS FEDERAL LAW. The panel s decision effectively rewrites the text of Clean Air Act 112(d)(2)-(3), 42 U.S.C. 7412(d)(2)-(3). It does so not by interpreting the statute s plain language but by misconstruing and extending a previous D.C. Circuit decision that interpreted a different statutory provision in materially distinct circumstances. In particular, the panel s decision partially abrogates Clean Air Act 112(d)(2)-(3), which mandates that all emission standards promulgated under Clean Air Act 112(d) for major sources satisfy certain stringency requirements. Id. 7412(d)(2)-(3). Section 112(d)(2) provides: Emissions standards promulgated under this subsection... shall require the maximum degree of reduction in emissions of the hazardous air pollutants subject to this section... that the Administrator... determines is achievable. Id. 7412(d)(2) (emphasis added); see id. 7412(d)(3) ( Emission standards promulgated under this subsection shall not be less stringent... than the emission control or limitation achieved by the relevant best performing sources in the industry) (emphasis 2

11 USCA Case # Document # Filed: 07/12/2013 Page 11 of 40 added). 1 Although these provisions apply without limitation to all emission standards for major sources promulgated under... subsection [112(d)], 2 the panel s decision exempts a large category of 112(d) standards from meeting these requirements. Specifically, the panel s decision exempts emission standards that EPA promulgates as a result of a review pursuant to 112(d)(6), id. 7412(d)(6). That provision requires the agency to review its 112(d) standards no less often than every 8 years and to revise them as necessary (taking into account developments in practices, processes, and control technologies). Id. It is undisputed in this litigation that standards promulgated after a 112(d)(6) review are [e]missions standards promulgated under this subsection [i.e. under 112(d)], id. 7412(d)(2), and the panel did not find otherwise. Nonetheless, the panel s decision exempts all such 112(d) standards from compliance with 112(d)(2)- (3). Ass n of Battery Recyclers, Inc. v. EPA, 716 F.3d 667 (D.C. Cir. 2013), No , Slip Opinion at 8-9 ( Slip Op. ). 1 Section 112(d)(2) also incorporates the minimum stringency requirements of 112(d)(3). Id. 7412(d)(2)-(3); see Cement Kiln Recycling Coal. v. EPA, 255 F.3d 855, 861 (D.C. Cir. 2001); Nat l Lime Ass n v. EPA, 233 F.3d 625, 629 (D.C. Cir. 2000). 2 The only statutory exception is for area sources: 42 U.S.C. 7412(d)(5). 3

12 USCA Case # Document # Filed: 07/12/2013 Page 12 of 40 The panel did not even attempt to square the exemption with the express textual requirement that all emission standards promulgated under 112(d) shall satisfy 112(d)(2)-(3). 42 U.S.C. 7412(d)(2)-(3). Indeed, it did not address this text at all. Slip Op. at 8-9. Instead, the panel held that the exemption it created is required, under the doctrine of stare decisis, by this Court s decision in NRDC v. EPA, 529 F.3d 1077 (D.C. Cir. 2008) ( NRDC ). Slip Op. at 8-9. Contrary to the panel s conclusion, however, NRDC neither compelled the panel s decision nor supports it. NRDC did not interpret or even address the text of 112(d)(2)-(3) but rather resolved the challenge in that case based solely on what 112(d)(6) requires: We do not think the words review and revise as necessary [in 112(d)(6)] can be construed reasonably as imposing... [an] obligation [to recalculate the maximum achievable control technology]. Even if the statute [i.e., the quoted text of 112(d)(6)] did impose such an obligation, petitioners have not identified any post-1994 technological innovations that EPA has overlooked. 529 F.3d at 1084 (quoting 42 U.S.C. 7412(d)(6)); id. at 1083 (resolving a challenge based on subsection 112(d)(6) ). The panel decision recognizes this point, finding that NRDC is binding precedent for the proposition that section 112(d)(6) imposes no obligation to recalculate the MACT. Slip Op. at 9 (emphasis added). 4

13 USCA Case # Document # Filed: 07/12/2013 Page 13 of 40 That NRDC addressed only 112(d)(6) is logical because of the materially different circumstances of that case; it reviewed only EPA s refusal to revise certain emission standards. 528 F.3d at 1079 ( In a rather unusual bit of rulemaking, the agency determined by rule not to change its previous rule, which gave rise to petitioners challenge. ). Because in NRDC there were no [e]missions standards promulgated under 112(d) under review, the plain text of 112(d)(2)-(3) governing [e]mission standards promulgated under that subsection was never triggered. Accordingly, the Court there had no reason to decide and did not decide whether the requirements in 112(d)(2)-(3) govern new 112(d) standards that EPA does promulgate, such as the lead smelting standards at issue in this case. Having no reason to do so, the NRDC Court did not hold or even suggest that when EPA does promulgate emission standards as a result of review under 112(d)(6), the agency may bypass the stringency provisions of 112(d)(2)-(3) that apply to all standards promulgated under [ 112(d)] for major sources. 42 U.S.C. 7412(d)(2)-(3). That is the issue presented here. Questions which merely lurk in the record... are not to be considered as having been so decided as to constitute precedents, and the issue at hand did not even lurk in NRDC. 5

14 USCA Case # Document # Filed: 07/12/2013 Page 14 of 40 Cooper Indus., Inc. v. Aviall Servs., Inc., 543 U.S. 157, 170 (2004) (citation omitted). 3 The panel provides no other reason for its decision except its conclusion that NRDC requires it to hold that EPA does not have to satisfy 112(d)(2)-(3) when it promulgates revised emission standards after a 112(d)(6) review. Slip Op. at Because NRDC does not require this result and because the panel s decision is directly at odds with clear statutory text that neither this panel nor NRDC addressed, the Court should grant rehearing. Rehearing will enable the Court to evaluate what the plain text of the Clean Air Act requires in accordance with Chevron. In doing so, the Court should conclude that [t]he precise words of the statutory text matter, City of Anaheim, Cal. v. F.E.R.C., 558 F.3d 521, 522 (D.C. Cir. 2009). 3 Contrary to the panel s suggestion, the statutory interpretation argument presented here is not a better developed version of the argument advanced in NRDC. Slip. Op. at 8. In NRDC, there were no emissions standards promulgated under [ 112(d)] to which 112(d)(2)-(3) would apply. Here, EPA undisputedly did promulgate 112(d) standards, and the statutory text of 112(d)(2)-(3) plainly governs such standards. 4 The panel also relied in part on this same error in its independent holding that EPA may choose to follow only part of 112(d)(2) in order to meet the requirement under Whitman v. Am. Trucking Ass ns, 531 U.S. 457, (2001), for an express textual commitment to consider cost. Slip Op. at 10. The panel reached this conclusion even though Whitman found that cost language elsewhere in the Clean Air Act is not enough. Id. at

15 USCA Case # Document # Filed: 07/12/2013 Page 15 of 40 Alternatively, if the panel were correct that NRDC exempts EPA from compliance with the textual requirements in 112(d)(2)-(3) when it promulgates 112(d) standards pursuant to a 112(d)(6) review, the Court should rehear this issue en banc because NRDC would be directly at odds with the plain meaning of the Act for the reasons explained above. The NRDC Court would have effectively rewritten 112(d)(2)-(3) without ever evaluating the relevant statutory text. II. THIS ISSUE HAS EXCEPTIONAL IMPORTANCE FOR THIS COURT S JURISPRUDENCE AND FOR THE CONTROL OF ALL MAJOR SOURCES OF TOXIC AIR POLLUTION IN THE U.S. This Court should grant rehearing because the panel has misapplied D.C. Circuit precedent and rewritten an important part of federal law to add an exception not enacted by Congress. And this decision undermines key provisions that Congress placed at the heart of the Clean Air Act s toxics program in 112(d)(2)-(3), 42 U.S.C. 7412(d)(2)-(3), to respond to EPA s record of false starts and failed opportunities for two decades, to force[] regulatory action, and to assure health protection. S. REP. NO (1989), reprinted in 1990 U.S.C.C.A.N. 3385, , This Court has long recognized as paramount the fundamental changes enacted by the 1990 Amendments as new 112(d), 42 U.S.C. 7412(d), with the intent to remove EPA s discretion and strengthen and expand the Clean Air Act 7

16 USCA Case # Document # Filed: 07/12/2013 Page 16 of 40 through a technology-based... program. Sierra Club v. EPA, 353 F.3d 976, 979 (D.C. Cir. 2004). Congress amended the Act in 1990 to require EPA to set the most stringent standards achievable.... Cement Kiln, 255 F.3d at ; see also Sierra Club v. EPA, 479 F.3d 875, 877 (D.C. Cir. 2007). In enacting 112(d), Congress tried to ensure that all major sources of toxic air pollution e.g., power plants, cement kilns, chemical plants, and hazardous waste combustors 5 would have to follow industry leaders not just once but whenever developments have occurred showing greater emission reductions have been achieved and are achievable. Instead, the panel s decision would turn the central requirements of 112(d)(2)-(3) into provisions that EPA need not apply to any future emission standards promulgated under 112(d), after a 112(d)(6) review. The major exception the panel has written into 112(d) of the Act will have the effect of returning to the pre-1990 Amendments status quo, in which EPA did not take action needed to protect public health from hazardous air pollution. See, e.g., Nat l Lime, 233 F.3d at 634 ( Congress added... minimum stringency requirements to the Clean Air Act precisely because it believed EPA had failed to 5 See EPA, National Emission Standards for Hazardous Air Pollutants: Revision of Source Category List Under Section 112 of the Clean Air Act, 70 Fed. Reg. 37,819 (June 30, 2005); New Jersey v. EPA, 517 F.3d 574, 583 (D.C. Cir. 2008) (reversing EPA s delisting of power plants); (last viewed July 2, 2013). 8

17 USCA Case # Document # Filed: 07/12/2013 Page 17 of 40 regulate enough HAPs under previous air toxics provisions. ). The panel s decision also creates a competitive disadvantage for companies like Intervenor RSR Corporation that reduced their emissions before EPA required this in part based on the promise in the Act s text that eventually the rest of the industry and future new sources would have to follow suit. 6 Even ignoring these impacts, rehearing is necessary because of the importance of this issue for this Court s jurisprudence. In direct contravention of the Clean Air Act and Chevron, the panel s decision writes a major judicial exemption into unambiguous statutory provisions, 112(d)(2)-(3), without even addressing the plain text it abridges. CONCLUSION For the foregoing reasons, Environmental Petitioners respectfully request that the Court grant rehearing and rehearing en banc and remand the Final Rule. 6 For example, although RSR made dramatic reductions in its lead emissions, such that its California facility has emissions that are less than 1% of those at the highest emitting source, the panel allows EPA to set standards at a level much weaker than RSR has achieved. JA206, , 509; Envtl. Petrs Opening Br. at 5. 9

18 USCA Case # Document # Filed: 07/12/2013 Page 18 of 40 DATED: July 12, 2013 Avinash Kar Natural Resources Defense Council 111 Sutter Street, 20th Floor San Francisco, CA (415) Counsel for Petitioner Natural Resources Defense Council Respectfully Submitted, /s/ Emma C. Cheuse Emma C. Cheuse James S. Pew Earthjustice 1625 Massachusetts Ave., N.W., Suite 702 Washington, D.C (202) Counsel for Petitioners California Communities Against Toxics, Frisco Unleaded, Missouri Coalition for the Environment Foundation, Natural Resources Defense Council, and Sierra Club 10

19 USCA Case # Document # Filed: 07/12/2013 Page 19 of 40 CERTIFICATE OF SERVICE I hereby certify that I have served the foregoing Environmental Petitioners Petition for Panel Rehearing and for Rehearing En Banc and Addendum on all parties through the Court s electronic case filing (ECF) system. DATED: July 12, 2013 /s/ Emma C. Cheuse Emma C. Cheuse 11

20 USCA Case # Document # Filed: 07/12/2013 Page 20 of 40 ADDENDUM Opinion From Which Rehearing Is Sought: Association of Battery Recyclers, Inc. v. EPA, No , Slip Op., 713 F.3d 667 (D.C. Cir. 2013) 12

21 USCA Case # Document # # Filed: 07/12/ /28/2013 Page 21 1 of United States Court of Appeals FOR THE DISTRICT OF COLUMBIA CIRCUIT Argued April 12, 2013 Decided May 28, 2013 No ASSOCIATION OF BATTERY RECYCLERS, INC., ET AL., PETITIONERS v. ENVIRONMENTAL PROTECTION AGENCY AND LISA PEREZ JACKSON, RESPONDENTS RSR CORPORATION, ET AL., INTERVENORS Consolidated with , , On Consolidated Petitions for Review of Final Action of the United States Environmental Protection Agency Mark W. DeLaquil argued the cause for Industry- Petitioners/Industry Respondent-Intervenors. With him on the briefs were Robert N. Steinwurtzel, Thomas E. Hogan, Timothy J. Fitzgibbon, Bernard F. Hawkins Jr., Clarence Davis, Newman Jackson Smith, and Dennis Lane.

22 USCA Case # Document # # Filed: 07/12/ /28/2013 Page 22 2 of Emma C. Cheuse argued the cause for Environmental Petitioners/Environmental Respondent-Intervenors. With her on the briefs were James S. Pew and Avinash Kar. Timothy D. Backstrom argued the cause for intervenor RSR Corporation. With him on the brief was Lynn L. Bergeson. Angeline Purdy, Attorney, U.S. Department of Justice, argued the cause for respondents. With her on the brief was Steven Silverman, Attorney, U.S. Environmental Protection Agency. Before: TATEL, Circuit Judge, and SILBERMAN and SENTELLE, Senior Circuit Judges. Opinion for the Court filed PER CURIAM. Concurring opinion filed by Senior Circuit Judge SILBERMAN. PER CURIAM: In this case we consider challenges to EPA s revised emissions standards for secondary lead smelting facilities. Finding petitioners claims unpersuasive, foreclosed by Circuit precedent, or otherwise barred from review, we deny in part and dismiss in part the petitions for review. I. Section 112 of the Clean Air Act requires EPA to promulgate emissions standards for major sources of hazardous air pollutants ( HAPs ). 42 U.S.C. 7412(d)(1). To do so, EPA calculates the maximum achievable control technology or MACT, a process that occurs in two stages. First, under CAA section 112(d)(3), EPA sets what it calls the

23 USCA Case # Document # # Filed: 07/12/ /28/2013 Page 23 3 of MACT floor certain minimum stringency requirements based on the amount of emissions reduction achieved in practice by the best performing sources. Id. 7412(d)(3). Second, under section 112(d)(2), EPA determines whether stricter standards, known as beyond-the-floor limits, are achievable in light of the factors listed in [that provision]. Cement Kiln Recycling Coalition v. EPA, 255 F.3d 855, 858 (D.C. Cir. 2001) (per curiam); see 42 U.S.C. 7412(d)(2). Section 112(d)(6) requires EPA to review, and revise as necessary (taking into account developments in practices, processes, and control technologies) the emissions standards promulgated under section U.S.C. 7412(d)(6). Section 112(f)(2) also requires EPA to review emissions standards to consider whether residual risks [to public health or the environment] remain that warrant more stringent standards than achieved through MACT. Sierra Club v. EPA, 353 F.3d 976, 980 (D.C. Cir. 2004); see 42 U.S.C. 7412(f)(2)(A). In 2012, acting pursuant to sections 112(d)(6) and 112(f)(2), EPA revised the 1995 emissions standards for secondary lead smelting facilities, reducing allowable emissions by 90% from the 2.0 milligrams per dry standard cubic meter (mg/dscm) previously permitted to 0.2 mg/dscm and requiring smelters to totally enclose certain fugitive emission sources. See National Emissions Standards for Hazardous Air Pollutants from Secondary Lead Smelting ( Secondary Lead Rule ), 77 Fed. Reg. 556, 559, 564 (Jan. 5, 2012). Several industry groups and environmental groups filed petitions for review. Environmental and industry petitioners intervened as respondents in one another s cases, and RSR Corporation intervened both as a petitioner and as a respondent.

24 USCA Case # Document # # Filed: 07/12/ /28/2013 Page 24 4 of II. Industry petitioners first argue that the Secondary Lead Rule impermissibly regulates elemental lead as a HAP. Although EPA must regulate lead compounds as a HAP, see 42 U.S.C. 7412(b)(1), the Clean Air Act prohibits EPA from listing or in effect treat[ing] elemental lead or any criteria pollutant for which national ambient air quality standards ( NAAQS ) are promulgated as a HAP under section 112, National Lime Association v. EPA, 233 F.3d 625, 638 (D.C. Cir. 2000); see also 42 U.S.C. 7412(b)(2) ( No [criteria pollutant] may be added to the list under this section.... ); id. 7412(b)(7) ( The Administrator may not list elemental lead as a hazardous air pollutant under this subsection. ). Petitioners claim that the Rule violates this prohibition by (1) specifying a testing method that measures the mass of elemental lead (rather than the mass of lead compounds) in a source s emissions; and (2) setting HAP emissions standards at levels designed to attain the primary lead NAAQS. As counsel for industry petitioners conceded at oral argument, see Oral Arg. Rec. 1:07:17 1:07:53, the first contention is time-barred because the 1995 emissions standards employed an identical testing method (Method 12) and that approach was not challenged in court at that time. See National Emission Standards for Hazardous Air Pollutants from Secondary Lead Smelting, 60 Fed. Reg. 32,587, 32,589 (June 23, 1995); 42 U.S.C. 7607(b)(1) (requiring that any petition for review be filed within sixty days of publication in the Federal Register). The second contention also fails because the Rule sets HAP emissions standards at levels designed to attain the primary lead NAAQS, not the converse. The Rule in no way alters the NAAQS itself: it does not change the NAAQS level, impose an earlier NAAQS attainment date, or modify state implementation plans.

25 USCA Case # Document # # Filed: 07/12/ /28/2013 Page 25 5 of Industry petitioners next make a related argument that because the Secondary Lead Rule measure[s] lead compounds by reference to their elemental lead content and toxicity the same methodology they claim is used to measure elemental lead in the prevention of significant deterioration ( PSD ) program regulation of these substances under the PSD program is duplicative and unlawful. Industry Petitioners Br. 30; see 42 U.S.C. 7412(b)(6) (providing that PSD program shall not apply to HAPs listed under section 112). But we lack jurisdiction to consider this argument because EPA took no action with respect to the PSD program in this rulemaking. Next, industry petitioners challenge EPA s methodology for estimating fugitive emissions at secondary lead smelting facilities and EPA s reliance on these estimates to conclude that total enclosure of fugitive emission sources was warranted. As EPA points out, however, industry petitioners suggested in comments that any error in EPA s methodology resulted in an underestimation of emissions from completely unenclosed facilities. Respondents Br. 52. Thus, even if industry petitioners were correct, given that emissions from such facilities drove EPA s finding of unacceptable risk, they would have done no more than show that the record even more fully supports the enclosure standard. Respondents Br. 53. Accordingly, petitioners lack standing to press this claim because they have failed to show that, absent the alleged methodological error, there is a substantial probability that they would not be injured and that, if the court affords the relief requested, the injury will be removed. Coalition for Responsible Regulation, Inc. v. EPA, 684 F.3d 102, 146 (D.C. Cir. 2012) (per curiam) (quoting Chamber of Commerce v. EPA, 642 F.3d 192, 201 (D.C. Cir. 2011)).

26 USCA Case # Document # # Filed: 07/12/ /28/2013 Page 26 6 of Industry petitioners challenge to the Rule s requirement of lead continuous emissions monitoring systems ( CEMS ) fares no better. To begin with, any claim that the CEMS requirement is arbitrary and capricious is premature. EPA has yet to promulgate performance specifications for CEMS and, until it does, smelters have no obligation to install CEMS. See 40 C.F.R (l)(1) (requiring sources to install a lead CEMS within 180 days of promulgation of performance specifications). As petitioners themselves recognize, without a [performance] specification it is impossible to determine whether lead CEMS will function appropriately in secondary lead smelters or to ascertain accurate cost information for the installation and operation of lead CEMS. Industry Petitioners Br. 22, 23. This court would thus clearly benefit from further factual development of the issues in connection with the performance specification rulemaking. Ohio Forestry Association, Inc. v. Sierra Club, 523 U.S. 726, 733 (1998). With respect to petitioners procedural claim that the proposed rule referred to no data in the record supporting the feasibility and cost-effectiveness of lead CEMS that would allow for meaningful public comment, Industry Petitioners Br. 23; see 42 U.S.C. 7607(d)(3), EPA counsel assured us at oral argument that stakeholders will have the opportunity to challenge and that EPA will reconsider imposing the CEMS requirement itself in connection with the performance specification rulemaking, and counsel for industry petitioners agreed that this resolves their concern, see Oral Arg. Rec. 47:41 48:48, 1:06:45 1:06:55. We also reject industry petitioners contention that EPA s refusal to consider granting existing sources up to three years to comply with the revised emissions standards under CAA section 112(i)(3) was arbitrary and capricious. See 42 U.S.C. 7412(i)(3) (authorizing the Administrator to grant existing sources up to three years for compliance with emissions

27 USCA Case # Document # # Filed: 07/12/ /28/2013 Page 27 7 of standards). EPA concluded that section 112(f)(4), which permits it to grant a waiver of no more than two years for compliance, see id. 7412(f)(4), instead provided the governing framework for emissions standards promulgated under section 112(f), like those at issue here. This interpretation comports with the statute s unambiguous language. Although section 112(i)(3) s three-year maximum compliance period applies generally to any emissions standard... promulgated under [section 112], id. 7412(i)(3), section 112(f)(4) s two-year maximum applies more specifically to standards under this subsection, i.e., section 112(f), id. 7412(f)(4). It is a well-established principle of statutory construction that [g]eneral language of a statutory provision, although broad enough to include it, will not be held to apply to a matter specifically dealt with in another part of the same enactment. RadLAX Gateway Hotel, LLC v. Amalgamated Bank, 132 S. Ct. 2065, 2071 (2012) (alteration in original) (quoting D. Ginsberg & Sons, Inc. v. Popkin, 285 U.S. 204, 208 (1932)). Because Congress clearly intended to grant existing sources no more than two years to comply with standards promulgated under section 112(f), that is the end of the matter. See Chevron U.S.A. Inc. v. NRDC, 467 U.S. 837, 842 (1984). Equally without merit is industry petitioners claim that EPA s decision to revise emissions standards under section 112(d)(6) was arbitrary and capricious. Although petitioners contend that EPA failed to consider public health objectives or other controls imposed on emissions sources in determining whether more stringent standards were necessary, nothing in section 112(d)(6) s text suggests that EPA must consider such factors. To the contrary, the statute directs EPA to tak[e] into account developments in practices, processes, and control technologies, 42 U.S.C. 7412(d)(6),

28 USCA Case # Document # # Filed: 07/12/ /28/2013 Page 28 8 of not public health objectives or risk reduction achieved by additional controls. III. We turn next to environmental petitioners challenge and begin with Article III standing. Contrary to industry intervenors claim, environmental petitioners have shown that their members would have standing under Article III to sue in [their] own right, as required to establish associational standing. NRDC v. EPA, 489 F.3d 1364, 1370 (D.C. Cir. 2007). Several members aver that they live or work in close proximity to smelters and have reduced their time outdoors in response to concerns about pollution precisely the kinds of harms the Supreme Court has deemed sufficient to show injury in fact. See Friends of the Earth, Inc. v. Laidlaw Environmental Services (TOC), Inc., 528 U.S. 167, 183 (2000) ( [E]nvironmental plaintiffs adequately allege injury in fact when they aver that they use the affected area and are persons for whom the aesthetic and recreational values of the area will be lessened by the challenged activity. (quoting Sierra Club v. Morton, 405 U.S. 727, 735 (1972))); Theresa Cano Decl. 3, 13 15; Michael Mullen Decl. 3, 5 7; Thad Carlson Decl. 3 4, 6 7; Jennifer McLellan Decl Moreover, were we to require EPA to regulate the HAPs to which [their] members are exposed more stringently than the agency has already purported to do, as petitioners ask, this alleged injury would likely be redressed. Sierra Club v. EPA, 699 F.3d 530, 533 (D.C. Cir. 2012). Environmental petitioners challenge, however, fails on the merits. Their primary argument is that, when EPA revises emissions standards under section 112(d)(6), it must recalculate the maximum achievable control technology in accordance with sections 112(d)(2) and (d)(3). This argument, although far better developed than the identical claim in

29 USCA Case # Document # # Filed: 07/12/ /28/2013 Page 29 9 of NRDC v. EPA, 529 F.3d 1077 (D.C. Cir. 2008), is barred by that decision. There, we explained that section 112(d)(6) could not be construed reasonably as imposing an obligation on EPA to completely recalculate the maximum achievable control technology when it revises standards under that provision. Id. at Seeking to dismiss that statement as dictum, environmental petitioners argue that the NRDC panel had no occasion to decide the legal test applicable to a section 112(d)(6) revision because EPA, having found no significant developments in practices, processes, and control technologies, never promulgated revised standards in that rulemaking. Id. (quoting National Emission Standards for Organic Hazardous Air Pollutants From the Synthetic Organic Chemical Manufacturing Industry, 71 Fed. Reg. 76,603, 76,605 (Dec. 21, 2006)). But the panel rested its decision on two independent conclusions: that section 112(d)(6) imposes no obligation to recalculate the MACT and that [e]ven if the statute did impose such an obligation, petitioners have not identified any post-1994 technological innovations that EPA has overlooked. Id. Where, as in that case, there are two grounds, upon either of which an appellate court may rest its decision, and it adopts both, the ruling on neither is obiter [dictum], but each is the judgment of the court, and of equal validity with the other. United States v. Title Insurance & Trust Co., 265 U.S. 472, 486 (1924) (quoting Union Pacific Railroad Co. v. Mason City & Fort Dodge Railroad Co., 199 U.S. 160, 166 (1905)). Environmental petitioners next argue that EPA impermissibly considered cost in revising emissions standards under section 112(d)(6). But the statute only bars cost consideration in setting MACT floors under section 112(d)(3), see National Lime, 233 F.3d at 640; section 112(d)(2) in contrast expressly directs EPA to consider costs when setting beyond-the-floor standards, see 42 U.S.C. 7412(d)(2)

30 USCA Case # Document # # Filed: 05/28/ /12/2013 Page of (directing the Administrator to tak[e] into consideration the cost of achieving... emission reduction ). Petitioners are correct that section 112(d)(6) itself makes no reference to cost and that the Supreme Court has refused to find implicit in ambiguous sections of the [Clean Air Act] an authorization to consider costs that has elsewhere, and so often, been expressly granted. Whitman v. American Trucking Associations, Inc., 531 U.S. 457, 467 (2001). But given that EPA has no obligation to recalculate the MACT floor when revising standards, see supra at 8 9, and given that section 112(d)(2) expressly authorizes cost consideration in other aspects of the standard-setting process, we believe this clear statement rule is satisfied. Finally, environmental petitioners have failed to show that EPA acted arbitrarily and capriciously when it decided not to impose more stringent emissions standards based on certain technological developments namely, high efficiency particulate air ( HEPA ) filters and wet electrostatic precipitators ( WESP ). EPA reasonably explained that further reductions were unwarranted due to concerns about the feasibility, utility, cost-effectiveness, and adverse collateral environmental impacts associated with this technology, and petitioners point to no clear error of judgment reflected in this reasoning. Defenders of Wildlife v. Salazar, 651 F.3d 112, 116 (D.C. Cir. 2011). IV. With the exception of RSR s challenge to the CEMS requirement, which we reject for the same reasons as industry petitioners identical claim, see supra at 6, RSR challenges only EPA s failure to require that more stringent standards be imposed on the company s competitors. According to industry intervenors, RSR lacks prudential standing to bring those claims. See In re Vitamins Antitrust Class Actions, 215 F.3d

31 USCA Case # Document # # Filed: 05/28/ /12/2013 Page of , 29 (D.C. Cir. 2000) (explaining that potential intervenors must demonstrate prudential standing). Because this Circuit treats prudential standing as a jurisdictional issue which cannot be waived or conceded, Animal Legal Defense Fund, Inc. v. Espy, 29 F.3d 720, 723 n.2 (D.C. Cir. 1994); see also Grocery Manufacturers Association v. EPA, 693 F.3d 169, 174, 179 (D.C. Cir. 2012), we must consider this argument even though it was raised only by industry intervenors, see U.S. Telephone Association v. FCC, 188 F.3d 521, 531 (D.C. Cir. 1999) (explaining the general rule against consideration of issues raised by intervenors and not by petitioners ). Under our case law, RSR lacks prudential standing because an industry group s interest in increasing the regulatory burden on others falls outside the zone of interests protected by the Clean Air Act. Cement Kiln, 255 F.3d at RSR nonetheless insists that it has prudential standing because it is regulated by the very standards it is challenging. RSR Petitioner-Intervenor Reply Br. 5. But apart from the CEMS requirement, RSR objects not to any regulatory burden imposed on it but instead to the absence of regulatory burdens imposed on its competitors. V. For the foregoing reasons, the petitions for review are denied in part and dismissed in part. So ordered.

32 USCA Case # Document # # Filed: 05/28/ /12/2013 Page of SILBERMAN, Senior Circuit Judge, concurring: I concur fully in the Court s opinion. I write separately to explain more completely why it is appropriate for us to hold that intervenor RSR Corporation lacks prudential standing. Though RSR is in the unusual position of intervening as both a petitioner and respondent, nearly all of its substantive arguments overlap with those made by the environmental petitioners. But unlike the environmental petitioners, RSR s only interest in this dispute is increasing the regulatory burden on its competitors, and as the Court explains, Op. at 10-11, it is well-established that such an interest does not suffice to show prudential standing. Cement Kiln Recycling Coal. v. EPA, 255 F.3d 855, 871 (D.C. Cir. 2001). The EPA has not itself argued that RSR lacks prudential standing, and while the industry group has raised the issue, they did so only in their brief as respondent-intervenors, not as petitioners. The general rule in this circuit is that [i]ntervenors may only argue issues that have been raised by the principal parties. Nat l Ass n of Regulatory Util. Comm rs v. ICC, 41 F.3d 721, 729 (D.C. Cir. 1994). Were our consideration of prudential standing dependent on the parties themselves having raised this issue, we might face the thorny question of how to apply our general rule where an issue is raised by the same entity that is a party, but only in that entity s separate capacity as intervenor. We were not required to address that question here, however, because we treat prudential standing as a jurisdictional limit that cannot be waived. See Grocery Mfrs. Ass n v. EPA, 693 F.3d 169, 174, 179 (D.C. Cir. 2012) (considering prudential 1 standing where not raised by the parties); Animal Legal Def. 1 The industry group characterizes the rule from Grocery Manufacturers as stating that [t]his Court considers prudential standing arguments raised by Respondent-Intervenors, even where

33 USCA Case # Document # # Filed: 05/28/ /12/2013 Page of Fund, Inc. v. Espy, 29 F.3d 720, 723 n.2 (D.C. Cir. 1994) ( Standing, whether constitutional or prudential, is a jurisdictional issue which cannot be waived or conceded. ). That would normally be the end of the matter, except that the validity of our precedent on this point was recently called into question by a thoughtful dissent in Grocery Manufacturers. See 693 F.3d at (Kavanaugh, J., dissenting). Judge Kavanaugh acknowledged that older cases from this Court said that prudential standing was jurisdictional. Id. at 185 n.4 (citing Animal Legal Def. Fund, 29 F.3d at 723 n.2); see also Steffan v. Perry, 41 F.3d 677, 697 (D.C. Cir. 1994) (en banc). But he argued that these decisions were inconsistent with more recent Supreme Court decisions that have significantly tightened and focused the analysis governing when a statutory requirement is jurisdictional. Grocery Mfrs., 693 F.3d at (Kavanaugh, J., dissenting) (citing Reed Elsevier, Inc. v. Muchnick, 130 S. Ct. 1237, 1243 (2010)). He further observed that other circuits have found prudential standing to be nonjurisdictional (and therefore waivable), id. at (collecting cases), and he also cited post-1994 cases in this circuit at least suggesting that prudential standing is not jurisdictional, id. at 185 n.4 (collecting cases). [respondent] does not raise the objection. But Grocery Manufacturers does not say that prudential standing has any special relationship to the rule about arguments raised only by intervenors. Rather, it stands for the general principle that the zone-of-interests test is jurisdictional, and therefore must be considered by the court even when not raised by the parties.

34 USCA Case # Document # # Filed: 05/28/ /12/2013 Page of But a majority of the Grocery Manufacturers panel concluded that one of the petitioners in that case lacked prudential standing (even though the EPA had not raised the issue), and a petition for rehearing en banc was subsequently denied without any published rebuttal from active judges to Judge Kavanaugh s dissent from the order denying rehearing. 704 F.3d 1005 (D.C. Cir. 2013). I take this opportunity to respond. First, it should be noted that the term prudential standing is a misnomer at least in the context of whether a plaintiff (or petitioner) in an APA cause of action is within the zone of interests of the relevant substantive statute. There are other kinds of standing issues, like third-party standing, that do spring from concepts of jurisdictional prudence. See Phillips Petroleum Co. v. Shutts, 472 U.S. 797, 804 (1985). But as the Supreme Court has recognized, what is involved in the zone-of-interest analysis is more properly described as statutory standing. Steel Co. v. Citizens for a Better Env t, 523 U.S. 83, 92, 97 (1998). That characterization is sensible because this test unlike other prudential standing inquiries is a gloss on the APA s right of review for [a] person... adversely affected or aggrieved by agency action within the meaning of a relevant statute. 5 U.S.C See Air Courier Conference of Am. v. Am. Postal Workers Union AFL-CIO, 498 U.S. 517, (1991) ( [T]he plaintiff must establish that the injury he 2 Judge Tatel, writing separately, noted his agreement with those other circuits that found prudential standing non-jurisdictional, but also stated that [t]his Circuit... has directly held to the contrary, and found that the language in Supreme Court decisions collected by the dissent was insufficient to permit this panel to depart from our clear prior holdings. Grocery Mfrs. Ass n v. EPA, 693 F.3d 169, 180 (D.C. Cir. 2012) (Tatel, J., concurring).

35 USCA Case # Document # # Filed: 05/28/ /12/2013 Page of complains of (his aggrievement, or the adverse effect upon him), falls within the zone of interests sought to be protected by the statutory provision whose violation forms the legal basis for his complaint. (quoting Lujan v. Nat l Wildlife Fed n, 497 U.S. 871, 883 (1990)) (internal quotation marks omitted)); Ass n of Data Processing Serv. Orgs., Inc. v. Camp, 397 U.S. 150, (1970) (connecting the zone-of-interests concept to the specific language of the APA). This particular type of prudential standing is thus typically tied to at least two statutes the organic statute underlying a complaint and the APA 3 itself. The question of whether a plaintiff has statutory standing therefore depends on Congressional intent does Congress intend that this particular class of persons have a right to sue under this substantive statute? In that respect, statutory standing is similar to subject-matter jurisdiction, and this Court has even described it as such in a past case. See Mallick v. Int l Bhd. of Elec. Workers, 749 F.2d 771, 772 n.1 (D.C. Cir. 1984) (finding that the plaintiff fell within the zone of interests, and therefore that we have subject matter jurisdiction to decide this case ). In one instance, Congress is implicitly deciding who can sue, and in the other, what kind of cases can be brought. And of 3 I recognize that the Supreme Court has applied the zone-ofinterests test to at least one non-statutory cause of action. See Bos. Stock Exch. v. State Tax Comm n, 429 U.S. 318, 320 (1977) (noting that plaintiffs suffer[ed] an actual injury within the zone of interests protected by the Commerce Clause ). Perhaps the test is of a more prudential character in the constitutional context, or perhaps that decision was simply anomalous. Either way, when the zone-ofinterests is applied for statutory causes of action (as is almost always the case), then it may properly be characterized as a question of statutory standing, for the reasons given above.

36 USCA Case # Document # # Filed: 05/28/ /12/2013 Page of course, in both situations (unlike with Article III barriers) Congress can always change the law. The significance as to whether statutory standing is labeled jurisdictional relates to two other questions. First, is a court obliged to consider statutory standing where the parties have not raised it, and second, can a court rely on statutory standing prior to consideration of an Article III issue? As to the first question, Supreme Court case law is unclear. But on the second question the order in which issues may be considered the Court has treated statutory standing like other jurisdictional thresholds. Normally a federal court must confront an Article III question at the outset of a case, but the Supreme Court has noted that a federal court may decide a statutory standing issue before reaching an Article III question, as would be true of a subjectmatter jurisdiction issue. Steel Co., 523 U.S. at 97 n.2 (defending the proposition that a statutory standing question can be given priority over an Article III question ); see also Block v. Cmty. Nutrition Inst., 467 U.S. 340, 353 n.4 (1984) (analyzing the interrelated concepts of preclusion of judicial review and statutory standing); Grand Council of the Crees (of Quebec) v. FERC, 198 F.3d 950, 954 (D.C. Cir. 2000) ( [I]t is entirely proper to consider whether there is prudential standing while leaving the question of constitutional standing in doubt, as there is no mandated sequencing of jurisdictional issues. (quoting Ruhrgas AG v. Marathon Oil Co., 526 U.S. 574, 584 (1999))). That suggests that the Court sees statutory standing as different from other species of what is generally called prudential standing indeed having a characteristic of a jurisdictional issue. 4 4 To be sure, Steel Co. indicates that a merits question could be decided before a statutory standing issue because they are interrelated (i.e, is the plaintiff arguably within its zone of interest?), 523 U.S. at 97 n.2 (discussing [t]he reasons for allowing merits questions to be