UNITED STATES COURT OF APPEALS FOR THE D.C. CIRCUIT


CHEM MFTR ASSN

v.

EPA


99-1236a

D.C. Cir. 2000


*	*	*


United States Court of Appeals


FOR THE DISTRICT OF COLUMBIA CIRCUIT


Argued April 3, 2000 Decided July 25, 2000 


No. 99-1236


Chemical Manufacturers Association and  Cement Kiln Recycling
Coalition,  Petitioners


v.


Environmental Protection Agency,  Respondent


Environmental Technology Council, Inc.,  Intervenor


Consolidated with  99-1514


On Petitions for Review of an Order of the  Environmental Protection
Agency


Richard G. Stoll argued the cause for petitioners. With  him on the
briefs were David F. Zoll, Ronald A. Shipley, 


Michael W. Steinberg, Joshua D. Sarnoff and David P.  Novello.


Christopher S. Vaden, Attorney, U.S. Department of Jus- tice, argued
the cause for respondent. With him on the brief  were Peter D.
Coppelman, Acting Assistant Attorney Gener- al, and Steven E.
Silverman, Attorney, Environmental Pro- tection Agency.


David R. Case was on the brief for intervenor Environmen- tal
Technology Council, Inc.


Before: Williams, Sentelle and Tatel, Circuit Judges.


Opinion for the Court filed by Circuit Judge Tatel.


Dissenting Opinion filed by Circuit Judge Sentelle.


Tatel, Circuit Judge: Petitioners challenge an Environ- mental
Protection Agency rule establishing an unusual bifur- cated schedule
for hazardous waste combustors to comply  with strict new emission
standards. To meet the new stan- dards, combustors must either modify
existing facilities and  processes to bring emission levels below the
new limits or  cease burning hazardous waste altogether. Combustors 
electing to make the necessary changes have three years to  comply,
but under EPA's "early cessation" program, combu- stors that find it
not cost-effective to make the required  modifications must cease
burning hazardous waste within two  years. Although we reject
petitioners' argument that EPA  lacks statutory authority to implement
an early cessation  program, we vacate the rule because, as the Agency
concedes,  it failed to establish that this particular early cessation
pro- gram, which imposes substantial costs on hazardous waste 
combustors, will have any environmental or health benefits.


I.


Three types of businesses burn hazardous waste. Profes- sional
hazardous waste treatment and disposal companies  operate large
commercial incinerators, charging fees to dis-


pose of hazardous wastes generated by their customers.  Some hazardous
waste producers, such as chemical manufac- turers, operate their own
on-site incinerators to dispose of  waste generated in the
manufacturing process. Cement man- ufacturers operate kilns in which
they occasionally supple- ment the fossil fuels they burn with
hazardous waste to  generate additional heat energy, to recover usable
materials  from treated waste, and to earn additional revenue from 
disposal fees. Petitioners Chemical Manufacturers Associa- tion and
Cement Kiln Recycling Coalition represent the latter  two types of
hazardous waste combustors. Environmental  Technology Council,
intervenor in support of EPA's rule,  represents commercial waste


All three types of hazardous waste combustors are regulat- ed by
Subtitle C of the Resource Conservation and Recovery  Act ("RCRA"), 42
U.S.C. ss 6901 et seq., which "establishes a  comprehensive
'cradle-to-grave' regulatory program for the  treatment, storage, and
disposal of hazardous waste." Horse- head Resource Dev. Co. v.
Browner, 16 F.3d 1246, 1252 (D.C.  Cir. 1994). Existing EPA standards,
promulgated pursuant  to RCRA and upheld for the most part in
Horsehead, require  hazardous waste combustors to operate under
conditions suf- ficient "to protect human health and the environment."


The Clean Air Act ("CAA"), 42 U.S.C. ss 7401 et seq.,  foregoing RCRA's
risk-based approach in favor of technology- based regulation, directs
EPA to establish emission standards  for hazardous air pollutants
based on the "maximum achiev- able control technology" known as MACT.
42 U.S.C.  s 7412(g)(2). The EPA Administrator must list categories 
and subcategories of hazardous air pollutant emissions  sources, then
set MACT standards for each category at a  level


requir[ing] the maximum degree of reduction in emis- sions of the
hazardous air pollutants subject to this  section (including a
prohibition on such emissions, where  achievable) that the
Administrator, taking into consider- ation the cost of achieving such
emission reduction, and  any non-air quality health and environmental
impacts  and energy requirements, determines is achievable for 


new or existing sources in the category or subcategory to  which such
emission standard applies.


42 U.S.C. s 7412(d)(2). Once EPA sets the emission stan- dards, the
Act, in language central to this case, requires the  Agency to
establish a "compliance date or dates for each  category or
subcategory of existing sources, which shall pro- vide for compliance
as expeditiously as practicable, but in no  event later than 3 years
after the effective date of such  standard." 42 U.S.C. s
7412(i)(3)(A). Sources demonstrat- ing a need for additional time to
complete installation of  pollution control equipment qualify for a
one-year extension.  42 U.S.C. s 7412(i)(3)(B).


Acting pursuant to RCRA and the Clean Air Act, EPA  promulgated revised
emission standards for hazardous waste  combustors. See Revised
Standards for Hazardous Waste  Combustors, 61 Fed. Reg. 17,358 (1996).
In the original  notice of proposed rulemaking, EPA predicted that
most  affected combustors would have to make substantial modifica-
tions to their equipment in order to reduce emissions to levels 
mandated by the new standards. In order to allow sufficient  time for
combustors to implement necessary modifications,  EPA proposed its
usual three-year compliance period. Id. at  17,416.


The Agency recognized that because certain combustors,  namely kilns
and on-site incinerators, burn hazardous waste  as an adjunct to their
primary business, they might find it  more feasible to stop burning
hazardous waste altogether  rather than invest in new pollution
controls. Cement kilns  could switch to non-hazardous fuels, and
operators of on-site  incinerators might find it more cost-effective
to contract with  commercial hazardous waste incinerators. To "ensure
that  only those facilities that plan to comply with the new regula-
tions are allowed to burn hazardous waste during the [three- year]
compliance period," id., EPA proposed an early cessa- tion program
under which kilns and on-site incinerators that  decide against making
the improvements necessary to contin- ue burning hazardous waste under
the new standards would  be required to "immediately stop burning
hazardous waste  when the owner or operator first determines that
[compliance  will not be achieved] by the applicable date." Id.


After considering public comment, EPA adopted a final  rule requiring
owners and operators of hazardous waste  combustion facilities to
submit a Notification of Intent to  Comply, known as a "NIC," within a
year of the new stan- dards' effective date. See Hazardous Waste
Combustors;  Revised Standards; Final Rule, 63 Fed. Reg. 33,782,
33,806- 09 (1998). Each combustor must indicate in the NIC whether  it
plans to comply, i.e., whether it plans to continue burning  hazardous
wastes under the new standards, and if so, what  emission-control
measures it will take to ensure timely com- pliance. Combustors
indicating an intent to comply must file  a two-year Progress Report
describing in detail all compli- ance modifications planned and
undertaken; they must com- ply with the new standards within three
years. Id. at 33,806.  Kilns and on-site incinerators that indicate an
"intent not to  comply"--the focus of this case--must cease burning
hazard- ous waste within two years of the effective date. The Agency 
explained the process as follows:


The source can use the NIC to notify either the source's  intent to
come into compliance with the new standards,  or the source's intent
not to come into compliance with  the new standards. The NIC must be
submitted to the  permitting agency within a year of the final
standards  being promulgated, and the Progress Report within two 


....


The NIC will not serve as a basis for requiring facilities  to cease
burning hazardous waste if they intend to  comply with the emission
standards of this Subpart....  EPA would like to clarify that its
intent has never been  to shut a source down completely. The source
might be  required to cease burning hazardous waste; however, it 
would not be precluded from burning non-hazardous  waste or other
alternative fuels. However, those sources  who indicate in the NIC
their intent not to comply with  the applicable emission control
requirements of this Sub- part will be required to stop burning


within two years of the effective date of the emission  control
requirements.


Id. at 33,806-07.


Until this rulemaking, EPA had always set a single compli- ance date
for each category of emission source; never before  had it required
emission sources to choose between complying  or ceasing the regulated
activity. Several commenters ob- jected to the early cessation
program, arguing that EPA lacks  statutory authority to impose such an
unprecedented require- ment. The Agency responded:


EPA believes that compliance as expeditiously as practi- cable will
have numerous benefits for human health and  the environment. In
particular, for those sources that do  not intend to ultimately come
into compliance with the  emission standards of this Subpart,
expeditious compli- ance would be achieved by ceasing to burn
hazardous  waste. The Agency anticipates that numerous sources  will
choose not to come into compliance with the require- ments of this
rule, and will cease burning hazardous  waste prior to issuance of the
rule or at some later date,  but prior to the compliance date. This
section is intend- ed to expeditiously limit the burning of hazardous
waste  by those sources who do not intend to come into compli- ance
with the requirements of the emission standards of  this Subpart, but
continue to burn hazardous waste after  the effective date of the
emission standards of this  Subpart. These sources are, quite simply,
able to meet  the standards earlier than the three years allowed for 
sources which will continue to burn hazardous waste.  Thus, for this
class of facilities, EPA is creating a means  of compliance "as


Id. at 33,810.


Petitioners challenge the early cessation program, claiming  that
although it imposes substantial costs, it will produce no 
environmental benefits because hazardous waste currently  burned by
kilns and on-site incinerators will simply be shifted  to commercial
incinerators operating under the same emission 


standards. Petitioners also contend that because CAA sec- tion
112(i)(3), 42 U.S.C. s 7412(i)(3), requires EPA to set  compliance
dates based on the technical feasibility of attain- ing the MACT
standards, once EPA set a three-year dead- line, it had no authority
to require earlier cessation. Finally,  petitioners challenge the
Notice of Intent to Comply and the  two-year Progress Report filing


EPA, supported by intervenor Environmental Technology  Council,
responds that because some sources will choose to  comply by ceasing
to burn hazardous waste rather than  installing new pollution
controls, and because that method of  compliance can be achieved well
before the three-year compli- ance date, early cessation is required
by section 112(i)(3)(A)'s  "compliance as expeditiously as
practicable" mandate. EPA  defends the NIC and Progress Report
requirements as not  only critical to enforcing the early cessation
rule, but also as  an important means of increasing public
participation in  RCRA's permit modification process.


II.


We begin with Petitioners' argument that the early cessa- tion program
is arbitrary and capricious and exceeds EPA's  authority under the
Clean Air Act. According to petitioners,  CAA section 112(i)(3)(A)
requires EPA to set compliance  dates based only on "the technical
ability of facilities to attain  timely compliance with the MACT
standards." Once EPA  determined that combustors need three years to
comply,  petitioners argue, then "no provision of the CAA provides any
 support for (1) specifying early compliance dates based on 
intentions to comply or (2) forcing facilities to cease burning  waste
prior to the established compliance date."


This argument requires little discussion. Petitioners point  to nothing
in either the CAA or RCRA that requires EPA to  set a single uniform
compliance date for all combustors. In  fact, as the Agency points
out, the CAA speaks in terms of  "compliance date or dates" and
requires "compliance as expe- ditiously as practicable, but in no
event later than 3 years  after the effective date of such standard."


7412(i)(3)(A) (emphasis added). Responding to this directive,  the
Agency determined that combustors can achieve "compli- ance" not just
through installation of pollution controls, but  also through
cessation of hazardous waste combustion. The  Agency also determined
that cessation can be accomplished  more "expeditiously" than other
compliance methods such as  pollution controls. "These sources are,
quite simply, able to  meet the standards earlier than the three years
allowed for  sources which will continue to burn hazardous waste." 63 
Fed. Reg. at 33,810. Thus, the Agency argues, its early  cessation
rule is just an alternative compliance date tailored  to an individual
source's chosen method of compliance. "As a  practical matter," the
Agency explains in its brief, the early  cessation rule simply
"established two subcategories for com- pliance purposes here: sources
complying by ceasing to burn  hazardous wastes, and sources complying
by other means  (adding air pollution control devices, adopting waste
mini- mization process changes, etc.)." Because EPA determined  that
compliance by cessation requires less time than compli- ance through
installation of pollution controls, it in effect set  two different
compliance dates depending on which route a  particular combustor


Were there nothing more to this case, we would agree with  EPA that
section 112(i)(3)(A)'s requirement of "compliance as  expeditiously as
practicable" can be read to provide authority  for an early cessation
program. Indeed, at oral argument  petitioners conceded that even
under their reading of the  CAA, EPA could accomplish precisely the
same result by  setting the compliance date for all combustors at two
years  rather than three and then granting one-year extensions to 
combustors electing to comply by installing emission control  devices.
See 42 U.S.C. Sec. 7412(i)(3)(B) (authorizing the Admin- istrator to
issue extension permits to sources "if such addi- tional period is
necessary for the installation of controls.")


But this case is not so simple. EPA claimed in the  rulemaking that its
early cessation requirement would have  "numerous benefits for human
health and the environment." 


63 Fed. Reg. at 33,810. Yet as the Agency now acknowl- edges, it
neither pointed out what those benefits would be nor  explained how
any such benefits might result from the early  cessation program. In
issuing the rule, moreover, EPA  expressly recognized that the early
cessation program would  result in hazardous waste being shifted away
from kilns and  on-site incinerators that comply with existing RCRA
stan- dards but elect to cease burning hazardous waste rather than 
meet the new MACT standards. During the year between  the early
cessation and compliance dates, hazardous waste  will simply be
redirected to other facilities to be burned under  essentially the


Combustion systems that can no longer cover costs ...  are projected to
stop burning hazardous waste. Hazard- ous wastes from these systems
will likely be reallocated  to other viable combustion systems at the
same facility if  there is sufficient capacity, alternative combustion
facili- ties that continue burning, or waste management alterna- tives
(e.g., solvent reclamation). Because combustion is  likely to remain
the lowest cost option, we expect most  reallocated wastes will
continue to be managed at com- bustion facilities.


NESHAPS: Final Standards for Hazardous Air Pollutants  for Hazardous
Waste Combustors, 64 Fed. Reg. 52,828,  53,017 (1999). In other words,
the early cessation rule will  not significantly reduce the amount of
hazardous waste pro- duced, the amount of hazardous waste burned, or
the levels of  hazardous air pollutant emissions. It will instead
merely  reallocate which combustion facilities process the same haz-
ardous waste under the same conditions. At oral argument,  EPA counsel
candidly conceded that we must resolve this  case on the assumption
that the early cessation program may  have no environmental benefits
at all. Indeed, as petitioners  point out, to the extent that
transporting hazardous waste to  commercial incinerators increases the
risk of leakage, spills,  or contamination, early cessation might even
result in net  environmental damage.


In view of the state of this record and EPA's concessions,  we think
that the Agency's action represents a classic case of  arbitrary and
capricious rulemaking. Not only did the Agen- cy fail to "articulate a
satisfactory explanation for its action  including a rational
connection between the facts found and  the choice made," Motor
Vehicle Mfr. Ass'n v. State Farm  Mut. Auto. Ins. Co., 463 U.S. 29, 43
(1983) (internal quotation  marks omitted), but by claiming "numerous
benefits for hu- man health and the environment," 63 Fed. Reg. at
33,810,  where none were found, EPA "offered an explanation for its 
decision that runs counter to the evidence before the agency,"  State
Farm, 463 U.S. at 43.


According to EPA, however, petitioners' arguments based  on the absence
of health or environmental benefits "miss the  point." The point, the
Environmental Protection Agency tells  us, is not environmental
protection. Instead, the Agency  argues, it must implement the early
cessation program re- gardless of environmental impact because CAA
section  112(i)(3)(A) requires "compliance as expeditiously as
practica- ble" and that phrase "appears to mandate EPA's selection of 
a two-year compliance date for sources choosing the compli- ance
option of ceasing to burn hazardous wastes." EPA's  argument goes like
this: (1) "Compliance" with an emission  standard must include
"virtually any means of avoiding non- compliance." (2) "Compliance
date" can thus be interpreted  to include "the date that a source,
subject to the rule because  it burns hazardous waste, ceases air
emissions attributable to  burning those wastes." (3) Since
"compliance" means cessa- tion as well as installation of pollution
controls, then "compli- ance as expeditiously as practicable" must
require early ces- sation because cessation can be accomplished sooner
than  installation of emission-control equipment. (4) Allowing com-
bustors intending to cease burning hazardous waste a full  three years
to continue burning would violate the statute's  command to "provide
for compliance as expeditiously as  practicable" regardless of the


As with any question of statutory interpretation, we first  ask
"whether Congress has directly spoken to the precise  question at
issue." Chevron, U.S.A., Inc. v. Natural Re- sources Defense Council,
Inc., 467 U.S. 837, 842 (1984). In  this case, the answer is no.
Nothing in the Clean Air Act  addresses whether "compliance as
expeditiously as practica- ble" requires early cessation. Indeed, as
the Agency con- cedes, neither the Act nor its legislative history
suggests that  Congress ever considered early cessation or the
possibility  that if EPA imposes a cessation deadline before a
compliance  deadline, sources not subject to early cessation but which
 burn no cleaner would take up the slack during the interim  and


Since the Clean Air Act is "silent or ambiguous with  respect to the
specific issue," id. at 843, we ask whether the  Agency's
interpretation of section 112(i)(3)(A) to mandate  early cessation
absent environmental benefit is "a permissible  construction of the
statute," id., i.e., whether it is "reasonable  and consistent with
the statute's purpose." Independent Ins.  Agents of Am., Inc. v.
Hawke, 211 F.3d 638, 643 (D.C. Cir.  2000). The Clean Air Act's
purpose is "to protect and  enhance the quality of the Nation's air
resources so as to  promote the public health and welfare and the
productive  capacity of its population," 42 U.S.C. s 7401(b)(1),
constrained  of course by section 112(i)(3)'s explicit concern over
practica- bility. In its rulemaking, EPA, apparently recognizing that 
its regulations must be consistent with the Clean Air Act's  goals,
claimed that early cessation "will have numerous bene- fits for human
health and the environment." 63 Fed. Reg. at  33,810. But having
realized it had made no findings to  support this claim, the Agency
simply abandoned any attempt  to reconcile its reading of section
112(i)(3)(A) with the stat- ute's objectives. Indeed, nothing in the
record suggests the  early cessation program will, directly or


We think it unreasonable for the Agency to have interpret- ed the
phrase "compliance as expeditiously as practicable" as 


requiring it to impose costly obligations on regulated entities 
without regard to the Clean Air Act's purpose. See, e.g.,  United
States Nat'l Bank of Oregon v. Independent Ins.  Agents of Am., Inc.,
508 U.S. 439, 455 (1993) ("Over and over  we have stressed that '[i]n
expounding a statute, we must not  be guided by a single sentence or
member of a sentence, but  look to the provisions of the whole law,
and to its object and  policy.' ") (quoting United States v. Heirs of
Boisdore, 49 U.S.  (8 How.) 113, 122 (1849)). As we said in
Continental Air  Lines, Inc. v. DOT, "the critical point is whether
the agency  has advanced what the Chevron Court called 'a reasonable 
explanation for its conclusion that the regulations serve the  ...
objectives [in question].' " 843 F.2d 1444, 1452 (D.C. Cir.  1988)
(quoting Chevron, 467 U.S. at 863) (alteration in origi- nal). Here,
EPA has failed to do so. See also, e.g., Dole v.  United Steelworkers
of America, 494 U.S. 26, 37 (1990)  (rejecting agency's interpretation
of a statute where "none of  Congress' enumerated purposes would be


Unlike Chevron, see dissenting op. at 2-3, this case does  not involve
a policy disagreement between this court and  EPA over which of two
possible interpretations would best  achieve the Clean Air Act's
goals. Here, the Agency readily  concedes it has no evidence to
suggest the challenged pro- gram is consistent with the Act's aims.
See Continental Air  Lines, 843 F.2d at 1453 ("A judicial decision to
the effect that  an agency's interpretation frustrates the policies of
Congress  (or is inconsistent with the statutory mandate) is a far cry
 from a decision that the agency's approach fails best to  promote
Congress' purposes."). Given the absence of envi- ronmental
benefits--indeed, the possibility of environmental  harm--EPA violated
the basic requirement that its actions  must "not deviate from or
ignore the ascertainable legislative  intent." Small Refiner Lead
Phase-Down Task Force v.  EPA, 705 F.2d 506, 520 (D.C. Cir. 1983)


In reaching this conclusion, we emphasize that we do not  question
EPA's authority under the Clean Air Act to imple-


ment an early cessation program if it determines through  reasoned
decisionmaking that the program would produce  environmental or health
benefits. For example, if hazardous  waste combustors who elect to
comply with the MACT stan- dards by modifying their processes or
equipment, phase in  their new controls gradually over the three-year
compliance  period, it may well be that during the third year, these 
sources would be burning under much cleaner conditions. In  that case,
the hazardous waste that would have been burned  by kilns and on-site
incinerators would be redirected to  facilities that are closer to
compliance with the new stan- dards, thus producing real environmental
benefits. As the  Agency concedes, however, the record contains no
evidence of  such benefits.


III.


We turn finally to petitioners' challenge to the NIC and  Progress
Report requirements. EPA asserts that although  these requirements
were implemented primarily as means of  enforcing the early cessation
rule, they serve the independent  purpose of increasing public
participation in the RCRA per- mit modification process which this
rule streamlined. Peti- tioners disagree, claiming not only that the
reporting require- ments are integrally related to the early cessation
rule, but  that they go far beyond the level of disclosure and public 
participation required under previous RCRA regulations.


Because it is impossible for us to determine from this  record that EPA
would have promulgated the NIC and  Progress Report requirements
absent the early cessation  rule, we must vacate these provisions as
well. See, e.g., Davis  County Solid Waste Management v. E.P.A., 108
F.3d 1454,  1459 (D.C. Cir. 1997) ("Severance and affirmance of a
portion  of an administrative regulation is improper if there is sub-
stantial doubt that the agency would have adopted the sev- ered
portion on its own." (internal quotation marks omitted)).  Of course,
this leaves EPA free to promulgate new reporting  requirements if it
has some independent basis for doing so,  consistent with the


The petition for review is granted and the rule is vacated.


So ordered.


Sentelle, Circuit Judge, dissenting: While the majority  correctly
describes EPA's bifurcated compliance program as  "unusual," EPA sees
the compliance mechanism as an innova- tive approach to implementing a
congressional command.  However it is styled, as judges, we cannot
second guess  EPA's approach as long as the agency acted pursuant to 
statutory authority and did so reasonably. Here, EPA de- vised a
reasonable approach to implement a reasonable inter- pretation of a
congressional mandate to achieve "compliance  as expeditiously as
practicable." Therefore, I would uphold  the early cessation program
as permissible under Chevron  U.S.A. Inc. v. Natural Resources Defense
Council, Inc., 467  U.S. 837 (1984), and as a reasonable, lawful


I agree with the majority that section 112(i)(3)(A) vests  EPA with the
statutory authority to implement a bifurcated  early cessation
program. See Maj. Op. at 7-8. I also agree  that EPA failed to
substantiate its claim of health and envi- ronmental benefit
associated with the implementation of the  program. See id. at 9. I
part company with the majority  when it reads section 112(i)(3)(A) to
require EPA to conduct  an environmental impact analysis before
ordering "compli- ance as expeditiously as practicable." I accept the
majority's  general premise that Congress intended the Clean Air Act,
42  U.S.C. s 7401 et seq. (1994), to further the goals of achieving 
environmental and health benefits. However, nowhere in  section
112(i)(3)(A) does Congress order EPA to consider  separately
environmental or health benefits in carrying out  the command to
implement "compliance as expeditiously as  practicable." It thus would
appear at least reasonable to  conclude that Congress itself
determined that the statutorily  mandated action by EPA of requiring
such compliance is in  furtherance of the general goal of the statute,
without the  agency's considering anew whether its specific acts also


For the reasons set forth by the majority, tempered by  Congress's
decision not to impose a regulation-specific re- quirement concerning
environmental and health benefits, I  agree that "section
112(i)(3)(A)'s requirement of 'compliance  as expeditiously as
practicable' can be read to provide author- ity for an early cessation
program." Maj. Op. at 8. Once  that is said, I do not see that we have
any other choice than  to deny the petition for review and uphold the
interpretation  of EPA. This is precisely the teaching of Chevron. In 
Chevron itself, the Supreme Court reviewed a decision of this  court
setting aside an interpretation by EPA of a Clean Air  Act provision
in a fashion that did not in the view of this court  advance the
overall goals of the statutorily established pro- gram that EPA was
administering. See Natural Resources  Defense Council, Inc. v.
Gorsuch, 685 F.2d 718, 727 (D.C. Cir.  1982). In the landmark Chevron
decision, the Supreme Court  reversed, and established the overriding
principle to which  the majority pays lip service. In Chevron, the
High Court  emphasized that the sort of policy considerations inherent
in  decisions as to means of implementation "are more properly 
addressed to legislators or administrators, not to judges."  Chevron,
467 U.S. at 864. Just so here. Where the interpre- tation by the
agency otherwise survives the two-step analysis  under Chevron, I do
not see how this court can strike that  interpretation as unreasonable
merely on the basis that it  does not in our view advance the


True, Congress passed the Clean Air Act "to protect and  enhance the
quality of the Nation's air resources so as to  promote the public
health and welfare and the productive  capacity of its population." 42
U.S.C. s 7401(b)(1); see Maj.  Op. at 11. However, the Clean Air Act
contains hundreds of  specific commands to EPA from Congress. Some
directives  explicitly tell EPA to consider, inter alia, environmental
 impact, cost considerations, or technological feasibility. Oth- ers
direct EPA to engage in managerial functions pursuant to  the
environmental, cost, technological, or other factors which 


prompted Congress to move EPA to action. Here, EPA  created a rule to
execute a managerial function established by  statute. EPA did nothing
to frustrate the Clean Air Act's  broader goal of promoting the
health, welfare, or productivity  of the public. We can ask no more.


Nor is American Petroleum Institute v. EPA, 52 F.3d 1113  (D.C. Cir.
1995), relied upon by petitioners to the contrary.  Indeed, that
decision supports the position of EPA, not that  of the petitioners.
In API, we considered a petition seeking  review of EPA regulations
promulgated pursuant to 42 U.S.C.  s 7545(k)(1). That section, also
part of the Clean Air Act,  empowered EPA to "establish[ ]
requirements for reformulat- ed gasoline to be used in gasoline-fueled
vehicles in specified  nonattainment areas." 42 U.S.C. s 7545(k)(1).
The statute  mandated that the regulations were to be directed toward 
"the greatest reduction in emissions of ozone forming volatile 
organic compounds ... and emissions of toxic air pollutants  ...
achievable through the reformulation of conventional  gasoline...."
Id. EPA issued regulations directed toward  achieving not only the
specified statutory goals, but also  toward an increase in the use of
renewable resources--no  doubt a laudable goal, but not one specified
by Congress in  the empowering Act. We granted the petition for
review, and  struck down the regulations, precisely because EPA had
used  its regulatory proceeding to pursue goals beyond those set 
forth in the empowering statute. Today, the majority vacates  another
set of EPA regulations because EPA did not pursue  goals not specified
by Congress in the empowering sections  under which EPA operated in
the promulgation of the regula- tions. I am not suggesting that it
would have been unreason- able for EPA to have considered the overall
goals as urged by  the majority, but I do not see how under Chevron
analysis it  is within our jurisdiction to demand that EPA pursue the 
general statutory goals. The majority embarks on a danger- ous course
by using 42 U.S.C. s 7401(b)(1) as the means for a  court to act as a
superlegislator and rewrite the Clean Air Act  to impose substantive
requirements on EPA--a course forbid- den by the Supreme Court in


Finding nothing illegal in EPA's choice of means to imple- ment
"compliance as expeditiously as practicable," I dissent.