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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. ) 12-1407, 12-1408, 12-1409, 12-1410, 

 ) 12-1411, 12-1412, and 12-1417) 

U.S. ENVIRONMENTAL ) 

PROTECTION AGENCY, ) 

 ) 

Respondent. ) 

_______________________________) 

UNOPPOSED MOTION OF RESPONDENT EPA TO SEVER THE 

CHALLENGES TO THE NSPS AND NESHAP RULES, TO HOLD 

LITIGATION IN ABEYANCE, AND TO GOVERN 

FURTHER PROCEEDINGS 

Respondent United States Environmental Protection Agency (“EPA”) and 

Petitioners in each of the above-captioned petitions for review have conferred and 

Respondent now moves that the Court sever this case into two separate cases, hold 

each case temporarily in abeyance pending EPA’s evaluation of and anticipated 

action on administrative petitions for reconsideration, 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 Parties, and is authorized 

USCA Case #12-1405 Document #1415624 Filed: 01/16/2013 Page 1 of 11
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to state that all Parties either have consented 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 Rule). Several petitioners have also 

filed petitions for administrative reconsideration of the Final Rule. The Final Rule 

contains final actions on two different national standards promulgated by EPA: (1) 

new source performance standards (“NSPS”), promulgated under section 111 of 

the Clean Air Act, 42 U.S.C. § 7411, and (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 exercised its discretion to combine these 

actions in the same rulemaking, the actions were finalized together. 

2. Due to the differences between these two types of national standards, 

the potential for EPA to take action on the 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. 

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3. On November 14, 2012, various parties filed motions to intervene in the 

consolidated cases resulting 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 party’s motion to intervene, such movant be 

made a party to the NSPS case, the NESHAP case, or both cases depending on the 

nature of the underlying issues on which the movant sought intervention. 

4. On December 13, 2012, EPA informed Petitioners that EPA 

anticipates granting reconsideration on certain issues raised in the administrative 

petitions on the NSPS and the NESHAP. On January 11, 2013, EPA further 

informed Petitioners that it intends to conduct 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 with 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, the Agency will sign by December 17, 2013, 

a notice of proposed rulemaking addressing such additional NSPS issues; and (d) 

EPA presently anticipates it will take final action as to any such additional NSPS 

issues by November 25, 2014. EPA further informed Petitioners that it intends to 

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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 the 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 action 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 requests 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. 

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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 reserve the right to file separate motions 

at the end of each applicable abeyance period if agreement cannot be reached. 

7. EPA further requests that the Court order EPA to submit a status report in 

the NESHAP case every six months (beginning 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 longer appropriate due to new or changed 

circumstances. 

8. In its December 21, 2012 Order, the 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 and issue a subsequent order setting new deadlines for 

such filings following the completion of the reconsideration process. 

9. Petitioner American Petroleum Institute has confirmed through counsel 

that it does not object to this motion. All other Petitioners have confirmed their 

consent to this motion. 

 

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CONCLUSION 

10. For the foregoing reasons, and with the express consent or nonopposition of all Parties, EPA respectfully requests that the Court enter an order or 

orders: 

(a) severing the Petitioners’ challenges 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 granted 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 status 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 

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(f) staying the filing deadlines for initial submissions, procedural motions, 

dispositive motions and the certified index while the cases are in abeyance, and 

providing that an order setting new deadlines 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 

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CERTIFICATE OF SERVICE

I hereby certify that the foregoing Respondent EPA’s Unopposed Motion for 

a Second Extension of the Initial Filing Deadlines 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 the 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 

7th 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 Processors 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 

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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 Fund 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 

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Emma Cordelia Cheuse Shannon S. Broome 

Earthjustice Legal Defense Fund Katten Muchin Rosenman LLP 

1625 Massachusetts Avenue, NW 1999 Harrison Street 

Suite 702 Oakland, 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) 

 

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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@texasattorneygeneral.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 

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