- 1 - ORAL ARGUMENT NOT YET SCHEDULED IN THE UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT

________________ _______________ ) AMERICAN PETROLEUM ) INSTITUTE, ) ) Petitioner , ) Case No. 12-1405 ) (Consolidated with Nos. 12-1406, v. ) 12-14 07, 12-1408, 12-1409, 12-1410, ) 12-1411, 12-1412, and 12-1417) U.S. ENVIRONMENTAL ) PROTECTION AGENCY, ) ) Respondent . ) _______________________________)

UNOPPOSED MOTION OF RESP ONDENT EPA TO SEVER THE CHALLENGES TO THE NSPS A ND NESHAP RULES, TO HOLD LITIGATION IN ABEYANCE, AND TO GOVERN FURTHER PROCEEDINGS Respondent United States Environmenta l Protection Agency (“EPA”) and Petitioners in each of the above-captioned petitions for review have conferred and Respondent now moves that the Court sever th is case into two separate cases, hold each case temporarily in abeyance pendi ng EPA’s evaluation of and anticipated action on administrative petitions for rec onsideration, and order the schedule described in Paragraphs 4, 5 and 7 below for further proceedings in each case.

Counsel for EPA has consulted with counsel for all other Pa rties, and is authorized USCA Case #12-1405 Document #1415624 Filed: 01/16/2013 Page 1 of 11- 2 - to state that all Parties either have consen ted to this motion or do not oppose it. In further support of this motion, the EPA states as follows:

1. In these consolidated cases, Petitioners seek review of EPA’s final rule

entitled “Oil and Natural Gas Sector: New Source Performance Standards and

National Emission Standards for Hazardous Air Pollutants Reviews,” published at 77 Fed. Reg. 49,490 (Aug. 16, 2012) (Final Ru le). Several peti tioners have also filed petitions for administrative reconsidera tion of the Final Rule. The Final Rule

contains final actions on two different na tional standards promulgated by EPA: (1) new source performance standards (“NSPS ”), promulgated under section 111 of the Clean Air Act, 42 U.S.C. § 7411, a nd (2) national emission standards for hazardous air pollutants (“NESHAP”), promulgated under section 112 of the Clean Air Act, 42 U.S.C. § 7412. Because EPA ex ercised its discretion to combine these actions in the same rulemaking, the actions were finalized together.

2. Due to the differences between thes e two types of national standards, the potential for EPA to take action on th e reconsideration petitions on a different schedule for each set of standards, and to serve the interest of efficiency by narrowing the parties and issues involved in each case in the event further litigation becomes necessary, EPA moves to sever the litigation on EPA’s two actions (the NSPS and the NESHAP) into two separate cases. USCA Case #12-1405 Document #1415624 Filed: 01/16/2013 Page 2 of 11- 3 - 3. On November 14, 2012, various parties filed motions to intervene in the

consolidated cases resultin g from other parties’ petitions. No party filed an opposition to any such motion. The Court has not yet acted on those motions. In conjunction with its request to sever this action into two cases, EPA also requests that, to the extent the Court grants any pa rty’s motion to intervene, such movant be made a party to the NSPS case, the NESH AP case, or both cases depending on the nature of the underlying issues on which the movant sought intervention.

4. On December 13, 2012, EPA in formed Petitioners that EPA anticipates granting reconsideration on certa in issues raised in the administrative petitions on the NSPS and the NESHAP. On January 11, 2013, EPA further

informed Petitioners that it intends to co nduct the administrative reconsideration process for NSPS issues pursuant to the following schedule: (a) EPA presently anticipates that it will sign by March 29, 2013, a notice of proposed rulemaking addressing certain NSPS issues on an expedited basis; (b) EPA presently anticipates that it will take final action wi th respect to those issues by July 31, 2013; (c) EPA presently anticipates that, in the event it may determine that other NSPS issues require reconsideration, th e Agency will sign by December 17, 2013, a notice of proposed rulemaking addressi ng such additional NSPS issues; and (d) EPA presently anticipates it will take fina l action as to any such additional NSPS issues by November 25, 2014. EPA further informed Petitioners that it intends to USCA Case #12-1405 Document #1415624 Filed: 01/16/2013 Page 3 of 11- 4 - disclose additional information on or before July 31, 2013, regarding EPA’s progress by that date in identifying other NSPS issues as to which the Agency may

conclude that reconsideration is warranted. In light of EPA’s anticipated grant of reconsideration on certain issues, and to provide it with time to evaluate others, EPA respectfully requests that the Court, upon severing th e NSPS and NESHAP cases, hold the NSPS case in abeyance until August 30, 2013, and order the parties

in that case to file a motion or motions to govern further proceedings on or prior to

that date. 5. On December 18, 2012, EPA also informed Petitioners that it intends to sign a proposed rule on at least one NESHAP issue on which it will grant reconsideration. On January 11, 2013, EPA further informed Petitioners that it

intends to conduct the administrative process for NESHAP reconsideration pursuant to the following schedule: (a) EPA presently anticipates that it will sign a notice of proposed rulemaking by April 30, 2014; and (b) EPA presently anticipates that it will take final acti on by March 31, 2015. In light of EPA’s anticipated grant of reconsideration on at least one issue and to provide it with time to evaluate others, EPA respectfully re quests that the Court hold the NESHAP case in abeyance until May 30, 2014, and order the parties in that case to file a motion or motions to govern further proceedings on or prior to that date. USCA Case #12-1405 Document #1415624 Filed: 01/16/2013 Page 4 of 11- 5 - 6. The parties in each case will work in good faith to reach agreement, by or before the applicable filing deadlines, on a motion to govern further proceedings concerning matters held in abeyance, but re serve the right to file separate motions at the end of each applicable abeyance period if agreem ent cannot be reached. 7. EPA further requests that the Court order EPA to submit a status report in the NESHAP case every six months (begi nning six months from the date of the Court’s order on this motion) and reserve the right of all parties in that case to move to lift the abeyance before the period of time agreed upon based on a showing that the abeyance is no longe r appropriate due to new or changed

circumstances. 8. In its December 21, 2012 Order, th e Court set deadlines of January 18, 2013, for filing initial submissions not yet filed and procedural motions for all parties and February 14, 2013, for filing dispositive motions and the certified index

to the record. EPA further requests that the Court stay these filing deadlines while the cases are in abeyance a nd issue a subsequent order setting new deadlines for such filings following the completi on of the reconsideration process.

9. Petitioner American Petroleum Instit ute has confirmed through counsel that it does not object to this motion. All other Petitioners have confirmed their

consent to this motion. USCA Case #12-1405 Document #1415624 Filed: 01/16/2013 Page 5 of 11- 6 - CONCLUSION10. For the foregoing reasons, and with the express consent or nonopposition of all Parties, EPA respectfully re quests that the Court enter an order or

orders: (a) severing the Petitioners’ challenge s to EPA’s NSPS and NESHAP Final Rules into two separate judicial cases (i.e., an NSPS case and a NESHAP case); (b) providing that any party that is gran ted intervenor status shall become a party to the NSPS case, the NESHAP case, or both depending on the nature of the underlying issues on which that party moved for intervention;; (c) holding the NSPS case in abeyance until August 30, 2013, and requiring the parties in that case to file a motion or motions to govern further proceedings on or before that date; (d) holding the NESHAP case in abeyance until May 30, 2014, and requiring the parties in that case to file a motion or motions to govern further proceedings on or before that date; (e) providing that EPA shall file a st atus report in the NESHAP case every six months following the Court’s order on this motion, and reserving the rights of all parties in the NESHAP case to seek to lift the abeyance in that case prior to May 30, 2014, based on a showing that continued abeyance is no longer appropriate due to new or changed circumstances; and USCA Case #12-1405 Document #1415624 Filed: 01/16/2013 Page 6 of 11- 7 - (f) staying the filing deadlines for initia l submissions, procedural motions, dispositive motions and the certified inde x while the cases ar e in abeyance, and providing that an order setting new deadlin es for such filings shall be issued following the completion of the reconsideration process. Respectfully submitted,

IGNACIA S. MORENO Assistant Attorney General Environment & Natural Resources Division Dated: January 16, 2013 By: /s/ Brian H. Lynk

___________________ BRIAN H. LYNK, D.C. Bar. No. 459525 Environmental Defense Section United States Department of Justice P.O. Box 7611 Washington, DC 20044 (202) 514-6187 (tel.) (202) 514-8865 (fax) brian.lynk@usdoj.gov Attorney for Respondent

Of Counsel: AMY HUANG BRANNING Office of General Counsel (2344A) U.S. Environmental Protection Agency 1200 Pennsylvania Ave., NW Washington, D.C. 20460 USCA Case #12-1405 Document #1415624 Filed: 01/16/2013 Page 7 of 11- 8 - CERTIFICATE OF SERVICE I hereby certify that the foregoing Respondent EPA’s Unopposed Motion for a Second Extension of the Initial Filing Dead lines has been filed with the Clerk of the Court this 16th day of January 2013, using the CM/ECF System. True and correct copies were sent to each of the following counsel by electronic mail, in addition to service through th e appellate CM/ECF system: Kyle William Danish William L. Wehrum Jr. Michael F. McBride Elizabeth L. Horner Van Ness Feldman, PC Hunton & Williams LLP 1050 Thomas Jefferson Street, NW 2200 Pennsylvania Avenue, NW 7 th Floor Washington, DC 20037 Washington, DC 20007-3877 wwehrum@hunton.com Kwd@vnf.com ehorner@hunton.com mfm@vnf.com Attorneys for Petitioner American Attorneys for Petitioner Gas Processo rs Petroleum Institute (Case No. Association (Case No. 12-1406) 12-1405) John C. Martin James S. Crockett, Jr. Susan M. Mathiascheck Spilman Thomas & Brattle, PLLC Crowell & Moring LLP 300 Kanawha Boulevard E 1001 Pennsylvania Avenue, NW Spilman Center Washington, DC 20004-2595 Charleston, WV 25321-0000 jmartin@crowell.com jcrockett@spilmanlaw.com smathiascheck@crowell.com Attorneys for Petitioner Domestic James D. Elliott Energy Producers Alliance Spilman Thomas & Brattle, PLLC (Case No. 12-1407) 1100 Bent Creek Boulevard Suite 101 Mechanicsburg, PA 17050 jelliott@spilmanlaw.com Attorneys for Petitioners in Case No. 12-1408 USCA Case #12-1405 Document #1415624 Filed: 01/16/2013 Page 8 of 11- 9 - David D. Doniger Ann Brewster Weeks Natural Resources Defense Council Darin Schroeder 1152 15th Street, NW, Suite 300 Clean Air Task Force Washington, DC 20005 18 Tremont Street, Suite 530 ddoniger@nrdc.org Boston, MA 02108 aweeks@catf.us dschroeder@catf.us

Meleah Anne Geertsma Tomas Elias Carbonell Natural Resources Defense Council Environmental Defense Fund 2 North Riverside Plaza, Suite 2250 1875 Connecticut Avenue, NW Chicago, IL 60606 Suite 600 mgeertsma@nrdc.org Washington, DC 20009 tcarbonnell@edf.org Timothy David Ballo Earthjustice Legal Defense F und Peter Michel Zalzal 1625 Massachusetts Avenue, NW Environmental Defense Fund Suite 702 2060 Broadway, Suite 300 Washington, DC 20036-2212 Boulder, CO 80304 tballo@earthjustice.org pzalzal@edf.org Craig Holt Segall Sierra Club 50 F Street, NW, Eighth Floor Washington, DC 20001 craig.segall@sierraclub.org Joanne Marie Spalding Sierra Club 85 Second Street, Second Floor San Francisco, CA 94105-3441 joanne.spalding@sierraclub.org

David W. Marshall Clean Air Task Force 41 Liberty Hill Road Building 2, Suite 205 Henniker, NH 03242-0000 dmarshall@catf.us Attorneys for Petitioners in Case No. 12-1409 USCA Case #12-1405 Document #1415624 Filed: 01/16/2013 Page 9 of 11- 10 - Emma Cordelia Cheuse Shannon S. Broome Earthjustice Legal Defense Fund Katten Muchin Rosenman LLP 1625 Massachusetts Avenue, NW 1999 Harrison Street Suite 702 Oakl and, CA 94612-3572 Washington, DC 20036-2212 shannon.broome@kattenlaw.com echeuse@earthjustice.org Charles Howland Knauss James Samuel Pew Katten Muchin Rosenman LLP Earthjustice Legal Defense Fund 2900 K Street, NW 1625 Massachusetts Avenue, NW North Tower, Suite 200 Suite 702 Washington, DC 20007-5118 Washington, DC 20036-2212 chuck.knauss@ kattenlaw.com jpew@earthjustice.org Attorneys for Petitioner Texas Attorneys for Petitioners in Case Oil & Gas Association (Case No. No. 12-1410 12-1411)

Charles A. Breer Eric Waeckerlin John Jacus Davis, Graham & Stubbs 1550 Seventeenth Street Suite 500 Denver, CO 80202-0000 Attorneys for Petitioner Western Energy Alliance (Case No. 12-1412) USCA Case #12-1405 Document #1415624 Filed: 01/16/2013 Page 10 of 11- 11 - Greg Abbott Attorney General of Texas Daniel T. Hodge First Assistant Attorney General

John B. Scott Deputy Attorney General for Civil Litigation

Jon Niermann Chief, Environmental Protection Division

Mark L. Walters Assistant Attorney General Office of the Texas Attorney General Environmental Protection Division P.O. Box 12548, MC-066 Austin, TX 78711-2548 mark.walters@texas attorneygeneral.gov Attorneys for Petitioners the State of Texas and Texas Commission on Environmental Quality (Case No. 12-1417) Dated: January 16, 2013 /s/ Brian H. Lynk Brian H. Lynk USCA Case #12-1405 Document #1415624 Filed: 01/16/2013 Page 11 of 11