UNI TED STATES DI STRI CT COURT FOR THE DI STRI CT OF COLUMBIA

____________________________________ ) SI ERRA CL UB , ) ) Civil Action No. 01-1537 ( PL F) Plaintiff, ) (consolidated w ith ) Civil Action No. 01-1548 v. ) Civil Action No. 01-1558 ) Civil Action No. 01-1569 L I SA P. J ACKSON, Administrator, ) Civil Action No. 01-1578 United States Environmental ) Civil Action No. 01-1582 Protection Ag ency , ) Civil Action No. 01-1597) 1 ) Def endant. ) ____________________________________)
OPI NI ON “This ca se conc erns de fenda nt EPA’s failure to discharg e fully its duty under the 1990 Clean Air Ac t amendments to promulg ate r egulations gove rningthe dischar g e of c erta in hazardous air

pollutants.” Sierra Club v. J ohnson, 444 F. Supp. 2d 46, 47 (D.D.C. 2006). B y Orde r of Ma

rch 31, 2006, this Court enter ed judg ment for plaintiff, f inding that EPA’s a dmitted failure to promulgate emission standards pursua nt to the Clean Air Ac t constituted “a fa ilure of the Administrator to perf

orm any act or duty under this cha

pter that is not discretionar y with the Administrator” within the mea ning of Section 304(a) (2) of

the Clean Air A ct, 42 U.S.C. § 7604(a) (2). See Orde r at 1, Mar . 31, 2006. The Court orde red EPA to fulfill its statutory duties reg ardingthe promulg ation of emission standards unde r Sections 112(c )(3) and (k) (3)( B) , Section 112(c) (6), a

nd Section 183(e) on a pre scribed sc hedule. See id. at 1-3. The Court explained the rea soning unde rlying its Mar ch 31, 2006 Or der in its August 2, 2006 Opinion. S ee Sierra Club v. Johns on, 444 F. Supp. at 46.

Under Rule 25(d)(1) of the F eder al Rules of Civil P roce dure, EPA Administrator 1 L isa P. J ackson ha s been substituted as the de fenda nt for for mer Administrator Stephen L
. J ohnson. Case 1:01-cv-01537-PLF Document 150 Filed 01/20/11 Page 1 of 26Pursuant to the schedule established by the Court’s Orde r, EPA was to have fully discharg ed all of its statutory duties by J une 15, 2009. See O rder at 3, Mar. 31, 2006; Sierr a Club v. J ohnson, 444 F. Supp. 2d at 48. Since 2006, howe ver, the Court has g rante d a number of EPA’s motions to ex tend the dea dlines in its M arc h 31, 2006 Orde r, all without opposition from plaintiff. Thus, as amended, the Court’ s Marc h 31, 2006 Orde r now re quires, in re levant par t, that EPA fully

discharg e its statutory

duties under Sec tions 112(c)(3) and (k) (3)( B) , and Section 112(c) (6) of

the Clean Air A ct by

J anuar y 21, 2011. See Or der at 1-2, Sept. 20, 2010; Order at 1, J an. 12, 2011. EPA now re quests an extension of this J anuar y 21, 2011 deadline — but this time its request is opposed. 2

This matter is befor e the Court on EPA’s motion to amend par ag raphs 1( i) and 3 of the Court’s Mar ch 31, 2006 Or der to a llow EPA additional tim e to promulg ate r egulations g overningemission standards for cer tain hazardous air

pollutants. S ix intervenor s have collectively

filed a r esponse in support of EPA’ s motion. P laintiff opposes the motion. Upon consideration of the parties’ and interve nors’ a rguments, the applica

ble leg al standar ds, and the entire r ecor d in this case, the Court will deny in part and grant in par

t EPA’s motion. 3 The pa rties’ pa pers r efe r to a de adline of January 16, 2011. Be cause that date wa s 2 a Sunday and January

17, 2011 was a

fede ral holiday , the Court, with the ag ree ment of the parties, e x tended this J anuar y 16, 2011 deadline to January 21, 2011, pendinga dec ision on EPA’s motion. S ee O rder at 1, J an. 21, 2011. The Court thus refe rs throug hout this Opini on to J anuar y 21, 2011 as the a

pplicable de adline. The pa pers r eviewe d in connec tion with the pending motion include the 3 following : EPA’s corr ecte d motion to amend Order of Mar ch 31, 2006 (“ Mot.”); Exhi bits 1 throug h 6 to Mot., including the De clar ation of Panag iotis E. Tsirigotis (attac hed as Exhibit 6 t o Mot.) (“Tsirig otis Decl.”) ; plaintiff’s opposition to EP A’s motion to amend Orde r of Ma rch 31, 2006 (“O pp.”); Exhibit s A throug h I to Opp.; response by

intervenor s to EPA’s motion t o amend Orde r of Ma

rch 31, 2006 ( “I

nterve nors’ Response” ); the six Dec larations attached to Interve nors’ Response; plaintiff’s re ply to response by

intervenor s (“Pl.’s Reply to Interve nors”) ; EPA’s reply (“Reply”); the Supplementa l Decla ration of Pana g iotis E. Tsirigotis (attac hed to Reply ) (“Tsirig otis S upp. Dec l.”); and pla intiff’s surre ply (“Surr eply”). The Court also review ed the parties’ summary

judgme nt paper s. 2 Case 1:01-cv-01537-PLF Document 150 Filed 01/20/11 Page 2 of 26I . BA CKGROUND A. The Clean Air Act and the 1990 Ame ndments The Clean A ir Act (“ CAA” or “ the Act” ) re gulates hazardous a ir pollutants (“H APs”). The first fede ral attempt to regulate these HAPs, enac ted in 1970, “wor ked poorly .” See S. RE P . N O . 101-228, at 128 (1989) . Indeed, f rom 1970 until 1990, “EPA . . . list ed only eig ht substances a s hazardous air pollutants . . . and . . . pr omulgated emissions standards for seven of them.” See H .R. R E P . N O . 101-490, pt. 1, at 322 (1990) . Acc ording ly , on November 15, 1990, Congr ess ena cted swe epingrevisions to the Act. See P U B . L
. N O . 101-549, 104 S T A T . 2399. The purpose of these r evisions was to “e ntirely restruc ture the e x isting law, so that toxics might be a dequate ly

regulated by

the Fe dera l Governme nt.” S. R E P . N O . 101-228, at 128 (1989)
. In place of the prior

“risk-ba sed appr oach,” Congr ess imposed a tec hnology-base d emissioncontrol sche me that limited EPA’s discretion and that set strict r equire ments and dea dlines for the promulg ation of emission standards. See NRDC v. EPA (“NRDC I I ”), 489 F .3d 1364, 1368 (D.C. Cir. 2007).

As the Court previously

descr ibed: Title I I Iof the re vised statute cr eate d a complex scheme f or the regulation of 189 specif

ied [HAPs] , and dire cted EPA to identify the source s of those pollutants and to promulg ate r egulations g overningthe emission of HAPs from those sourc es. Cong ress by statute adde d to the Clean Air Ac t the list of pollut ants to be regulated, minimum st ring ency require ments, and (

most important for this case) regulation deadlines . I t did so because it believed that EPA had fa iled to regulate enough HAPs under pr evious air tox ics provisions.

3 Case 1:01-cv-01537-PLF Document 150 Filed 01/20/11 Page 3 of 26Sierra Club v. Johns on, 444 F. Supp. 2d at 48 (e mphasis added) . Title I I Irec og nizes and directs

EPA to identify

and re gulate two basic kinds of source s of air pollutants: (1) major source s; and (2) a rea source s. I d. These two ty pes of sourc es ar e distinguished by the amount of their respe ctive HAP emissions. See id.; see a lso 42 U.S.C. §§ 7412(a)(1), ( 2). At issue in this case
are the followingtwo require ments reg ardingboth are a sourc es and ma jor source s: 1. Regulate area sourc es of the thirty most dangerous HAPs: Sections 112(c) (3) and (k) (3)( B) of the Ac t, 42 U.S.C. §§ 7412(c)(3) and (k) (3)( B) , require EPA (1) to “ide ntify not less than 30 hazardous a ir pollutants which, as the re sult of emissions from area source s, prese nt the g reatest threat to public hea lth in the larg est number of urban a rea s”; (2) to identify

the cate g ories or subc ateg ories of sour ces “ acc ounting f or 90 per centum or more of the a g g reg ate emissions of eac h of the 30 identified ha zardous air pollutants” by November

15, 1995; and (3) to issue emission standards f or those ar ea sour ce c ateg ories by November

15, 2000. Sierra Club v. J ohnson, 444 F. Supp. 2d at 49. The e mission s tandar ds must be based on one of three ty pes of pollution control mecha nisms: (1) max imum achievable control tec hnologie s (“MACTs” ); (2) he alth-base d standards; or ( 3) g ener ally available control tec hnologie s. See 42 U.S.C.§§ 7412(d)(2) , (d)( 4), and ( d)(5) . As of 2006, EPA had f ulfilled the first two of its duties under Sec tions 112(c)(3) and (k) (3)( B) . EPA had fa iled, howeve r, to fulfill its thi rd duty : by 2006, it had promulg ated e mission s tandar ds for only fiftee n of seve nty

are a sourc e categ ories. Sierra Club v. Johns on, 444 F. Supp. 2d at 49.

2. Regulate source

s of seven statutorily-spec ified HAPs: Section 112(c) (6) of the Act ca lls for EPA to reg

ulate the sourc es of se ven spec ific HAPs, without reg ard to whe ther those source s are major sourc es or a rea source s and without reg ard to their inc lusion on EPA’s
4 Case 1:01-cv-01537-PLF Document 150 Filed 01/20/11 Page 4 of 26list of sources of the thirty most dang erous HA Ps. S ee 42 U .S.C. § 7412(c)(6) ; Sierra Club v. J ohnson, 444 F. Supp. 2d at 49. EPA’s duties and de adlines with respe ct to Section 112(c) (6) a re identical to its duties with respect to the thirty most dang erous HA Ps under Sections 112(c) (3) and (k) (3)( B) . See 42 U.S.C. § 7412(c) (6). The only differ ence is that EPA emission s tandar ds promulg ated pur suant to Section 112(c) (6) c annot be ba sed on g ener ally available control technolog ies. Rather, the emission standards must be either (1) MACTs or ( 2) hea lth-based standards. See 42 U.S.C. §§ 7412(d)(2) a nd (d)( 4). As the Court explained in Si err a Club v. J ohnson, beca use one sour ce ma

y emit numerous pollutants, there is the pote ntial for EPA to satisfy its S ection 112(c )(3) and (k) (3)( B) require ments and its Section 112(c)( 6) re quirements simultaneously . See Sierra Club v. J ohnson, 444 F. Supp. 2d at 48 n.3. In other wor ds, EPA may not need to promulg ate r egulations directly under Sec tion 112(c)( 6), bec ause r egulations it promulgates unde r other se ctions of the Ac t may suffice to “ac count[] for 90 pe r ce ntum or more of the ag g reg ate e missions ” of the pollutants listed in that section. I d. at 59. Neve rtheless, a s of 2006, EPA had fa iled to promulgate emission standards unde r Section 112(c )(6) for f ive source cate g ories. I d. at 49. These five sourc e cate g ories we re a lso amongthe fifty source cate g ories that we re r equire d to be re gulated under Sections 112(c) (3) a

nd (k)( 3)(B ). I d. at 50.

B. History of This L itigati on In 2001, plaintiff filed seve n differ ent complaints ag ainst EPA, eac h seekingrelief for EPA’s f

ailure to discha

rg e a dif fer ent aspe ct of its regulatory duties under the A ct. These
case s were consolidated, a nd the par ties entere d into a partial c onsent dec ree on May 22, 2003.

5 Case 1:01-cv-01537-PLF Document 150 Filed 01/20/11 Page 5 of 26Other issues c ould not be resolved, how ever , and the pa rties eve ntually

filed cr oss-motions for summary judgme nt. EPA did not contest the issue of liability : it admitt ed that it had fa iled to promulg ate r egulations by the statutory

deadline of

November

15, 2000. Acc ording ly , the only matter be fore the Court was to fa shion an appropr iate equitable reme dy
.

On Marc h 31, 2006, the Court issued its Order de nying E PA’s motion for summary judgme nt and g rantingsummary judgme nt in favor of

plaintiff. The Court orde red EPA to fulfill it s statutory duties under Sec tions 112(c)(3) and (k) (3)( B) , Section 112(c) (6), a nd Section 183(e) on a pre scribed sc hedule that would “ best prese rve the intent of Congr ess in
enac ting the 1990 Clea

n Air Ac t Amendments, without callingupon defe ndants to do the impossibl e.” See Sierra Club v. Johns on, 444 F. Supp. 2d at 61. That Order require d, in releva

nt part, that EPA “pr omulgate standar ds under CAA Sec tion 112(d) for those are a sourc e categ ories listed by EPA pursuant to CAA Section 112(c )(3) and (k) (3)( B) as sourc e categ ories that ar e
nece ssary to meet the 90 per cent statutory threshold identified in Section 112(c )(3) and (k) (3)( B) , and for which it has not y et issued standar ds” on a se t schedule to be completed in full by J une 15, 2009. See Or der at 2, Mar. 31, 2006; Sierra Club v. J ohnson, 444 F. Supp. 2d at 48, 61. That Orde r fur ther re quired that “ [n] o later tha n Dec ember

15, 2007, EPA shall promulga te emission standards a ssuringthat source cate g ories ac countingfor not less than ninety perc ent of the ag g reg ate e missions of ea ch of the hazardous air pollutants enumerate d in Section 112(c)( 6) ar e subject to emission standards under Section 112(d)( 2) or ( d)(4) .” Or der at 3, Mar. 31, 2006; Sierra Club v. Johns on, 444 F. Supp. 2d at 48, 61.

After Marc h 31, 2006, EPA moved for a number of unoppose d extensions of ti me to complete its obligations. S ee O rder at 1-2, Nov. 13, 2008; Or der at 1-2, J une 30, 2009; Orde r 6 Case 1:01-cv-01537-PLF Document 150 Filed 01/20/11 Page 6 of 26at 1-2, Sept. 10, 2009; Orde r at 1, Apr . 13, 2010. On August 31, 2010, EPA requested, w ithout

opposition from plaintiff, that the Court amend pa ragraphs 1( i) and 3 so as to e x tend its deadline from De cembe r 16, 2010 to J anuar y 16, 2011. See Unoppose d Mot. to Amend Order at 1, Aug
. 31, 2010. On September

20, 2010, the Court g rante d EPA’s reque st, and the Court has since extended the dea dline to J anuar y 21, 2011. See supra

n.2. Acc ording ly , as ame nded, the Ma rch 31, 2006 Orde r provides, in re levant par t: 1. EPA shall promulgate emission standards unde r sec tion 112(d) a ssuringthat are a sourc es re prese nting ninety perc ent of the a

rea source emissions of the 30 urban hazardous air

pollutants identified pursuant to section 112(k)( 3) ar e subjec t to emissions standards a s follows:

* * * * (i) EPA shall promulgate emission standards unde r section 112(d) or sec tion 129 assuringthat are a source s repr esentingninety perc ent of the a

rea source emissions of the 30 urban ha zardous air pollutants are subjec t to emissions standards by J anuar y 21, 2011.

* * * * 3. No later

than Dec ember

16, 2010, the Ag ency

shall promulg ate e mission s tandar ds for one additional cate g ory pursuant to sec tion 112(c)( 6). No late r than January 21, 2011, the Ag ency

shall promulgate emission standards assuringthat source s acc ounting f or not less than ninety perc ent of the a g g reg ate e missions of ea ch of the hazardous air pollutants enumer ated in Section 112(c )(6) are subject to emission st andar ds under Sec tion 112(d)(2) or (d)( 4). See Or der at 1-2, Sept. 20, 2010; Order at 1, J an. 12, 2011. As re quired by para g raph 3, on Dec ember

16, 2010, EPA signe d the final rule “Na tional Emissi on Standards for Hazardous Air Pollut ants: Gold Mine Ore Processingand Production Are a Source Categ ory ; and Addition to
7 Case 1:01-cv-01537-PLF Document 150 Filed 01/20/11 Page 7 of 26Source Cate g ory L ist for Standards.” See De f.’s Notice of Subsequent Eve nt, Dec. 21, 2010. Stil l at issue, howeve r, is the J anuar y 21, 2011 deadline in both par ag raph 1( i) and pa ragraph 3. EPA now reque sts that this deadline be extended. See Mot. at 1-4. C. EPA’s Proposed Sc hedule As EPA explains, t he key for e ach of

its remainingobliga

tions “is reac hing the ninety perc ent threshold.” Mot. at 2. Since 2006, EPA has promulg ated f inal rules esta

blishing emission standards for

forty -eight are a sourc e categ ories pursua nt to paragraph 1, a

nd EPA has promulg ated e mission s tandar ds for two sourc e categ ories pursua nt to paragraph 3. See Tsirig otis Decl. ¶¶

9, 10. Wit h respe ct to para graph 3, in orde r to rea ch the r equire d ninety perc ent threshold, EPA asse rts that it needs to complete a dditional emission s tandar ds for (1) c erta in are a sourc e boilers, ( 2) major sourc e boilers, a nd (3) c ommercia l and institut ional solid waste inciner ation (“CI SW I ”) units (c ollectively , “the Thr ee A ir Rules”). I d. ¶¶ 11 & n.2, 41. Wit h respe ct to para g raph 1, in orde r to rea ch the r equire d ninety perc ent threshold, EPA
asser ts that it needs to complete additional emission standards f or (1) are a sourc e boilers, a nd (2) se wag e sludg e inciner ation (“SSI ”) units. I d. ¶¶ 9, 42.

Paragraph 3: On April 29, 2010, the EPA Administrator sig ned propose d emission standards for

the Thre e Air Rules. Tsirig otis Decl. ¶ 23. The se propose d rules we re then published in the Fe dera l Reg ister on J une 4, 2010. I d. ¶ 25. Althoug h the public comment period wa s orig inally

to close on Jul y

19, 2010, g iven the sig nificant public intere st in these rules, EPA g rante d extensions unt il August 23, 2010. I d. ¶¶ 29, 30. EPA re ceive d over 4,800 individual comments in response to those propose d rules. I d. ¶¶ 32- 34. EPA now asser ts that

8 Case 1:01-cv-01537-PLF Document 150 Filed 01/20/11 Page 8 of 26those comments “may materia lly

aff ect important de cisions relatingto source c ateg orizations and
cover ag e for

the final e mission s tandar ds.” Mot. at 2. Thus, “EPA be lieves that the purpose of section 112(c )(6) and the public inter est will be best serve d if the Ag ency ’s dea dline in [p] ara g raph 3 is extended . . . to April 13, 2012, so that EPA ca n re- propose the r

ules for f urther public comment to ensure that the final rule s are logic al outg rowths of the pr oposals.” I d. at 3; see Tsirig otis Decl. ¶¶

4, 34-37. In the alter

native, EPA re quests an extension until J une 15, 2011 to allow EPA time to fully respond to the 4,800 individual comments it rec eived. Mot. at 4; Tsirig otis Decl. ¶¶

5, 40. Paragraph 1: Be cause the standar ds for c erta in are a sourc e boilers a re ne cessa

ry for EPA to complete its obli g ations under both par ag raphs 1( i) and 3, EPA re quests that the deadline f or it to complete all emission standards r equire d under both pa ragraphs 1( i) and 3 be extended to the same date — April 13, 2012. As to the one r emainingare a sourc e categ ory rele vant to para g raph 1( i), SSIunits, the EPA Adminis trator sig ned a pr oposed rule on September 30, 2010. Tsirig otis Decl. ¶ 47. The public comment per iod closed on Nove mber 29, 2010. I d. EPA rec eived ove r eighty individual comments in response to its SS Iproposal. I d. ¶ 48. EPA does not re quest an e x tension of time to re-pr opose this rule; rathe r, EPA re quests an extension unt il J uly

15, 2011, so that it can fully respond to the individual comments it rec eived. Mot. at 4; Tsirigotis Dec l. ¶¶ 6, 49.

9 Case 1:01-cv-01537-PLF Document 150 Filed 01/20/11 Page 9 of 26I I . DI SCUS SI ON A. Standard of Review Despite the c omplex ity

of the statutory

scheme at issue, the Court is ag ain prese nted with a sing le question for r eview: whe ther EPA has me t the “hea vy burden” of demonstratingthat it would be impossibl e to comply with the curr ent J anuar

y 21, 2011 deadline for the pr omulgation of the rema ining e mission s tandar ds. See Sierra Club v. J ohnson, 444 F. Supp. 2d at 53, 58. The principles discusse d in Sierra Club v. J ohnson g uide the Court’s decision on the matter

befor e it now. See NRDC v. Tra in, 510 F.2d 692, 713 (D .C. Cir. 1974) (“Similar consider ations apply afte r the issuanc e of a

n order when the de fenda

nt petitions for modification or the c ourt consider s the proprie ty of re sorting to c ontempt to coerc e compliance .”). The Court, however , elabor ates on seve ral points.

First, it is established that wher e, as he re, “ an ag ency has fa iled to meet a statutory deadline f or a nondiscr etionary

act, the [C] ourt may

exercise its equity

power s ‘to set enfor cea

ble deadlines both of a

n ultimate and an inter

mediate nature[.] ’” Sierr a Club v. J ohnson, 444 F. Supp. 2d at 52 (quoting N RDC v. Train, 510 F.2d at 705). Althoug h a cour t may appropr iately decline to impose a

deadline that would call on an a g ency to do the impossibl e, the “ heavy burden” of provingsuch an impossibilit y rests squar ely

on the ag ency . I d. at 52-53 (quoting Alabama Power Co. v. Costle, 636 F.2d 323, 359 (D .C. Cir. 1979)). As a g ener al rule, “ [f] lexi bility rathe r than rig idity

has distinguished e quity jurisprudenc e.” N RDC v. Train, 510 F.2d a t 713 (internal quotations and c itation omit ted). Neve rtheless, the c ourt of appe als has ca utioned that a district cour t must scrutiniz e ca

ref ully claims of impossibili ty , and must “sepa rate justifications gr ounded in the purpose s of the Ac t
10 Case 1:01-cv-01537-PLF Document 150 Filed 01/20/11 Page 10 of 26from the f ootdrag g ing e ffor

ts of a delinquent a g ency .” I d. “When Cong ress e x presse s its int ent that regulations be promulg ated by a date cer

tain” — in this case, N ovember 15, 2000, more than ten y ear s ag o — “that intent is of utmost im portanc e; a c ourt consider ing a claim of impossibili ty must not ‘order a

reme dy that would . . . completely neutra liz e the mandatory nature of the statutory direc tive.’” Sierr a Club v. J ohnson, 444 S. S upp. 2d at 53 (quotingSierra Club v. Br owner , 130 F. Supp. 2d 78, 95 (D.D .C. 2001)).

To prove impossibility , “it is insufficient for the ag ency to demonstrate only

that it has proc eede d in good f

aith; it also mustdemonstrate ‘ utmost di lige nce’ in its efforts to comply with the statute.” See Sierra Club v. Johns on, 444 F. Supp. 2d at 53. B eca use a “ court’s injunction should serve like adr enalin, to heig hten the re sponse and to stimulate the fullest use of
resour ces,” NRDC v. Train, 510 F .2d at 712, it is of course not the c ase tha n an ag ency

can f ail to act with “the fullest use of r esourc es” a nd then claim, at the la st minut e, that complianc e is impossibl e. Instead, a lthough a n ag ency ’s cur

rent position may

be re levant to a c ourt’s ultimate conclusion on whe ther a ction is imposs ible, a cour t will ex amine all of the ag ency ’s ac tions and inactions followingthe initial injunction or other court orde r in deter mining whe ther a

n extension of a de adline is appropr iate. See id. at 712-13; Sierra Club v. J ohnson, 444 F. Supp. 2d at 52-53. Her e, the statutory

mandates a

nd court-or dere d deadline at issue relate to the promulg ation of emission standards for

cer tain HAPs by

a date cer

tain. Thus, in order f

or EPA to demonstrate the exis tence of an impossibility for pur poses of its pendingmotion, EP A must prove to the Court that it has in good f

aith exercised utmost diligenc e in its effor ts to promulgate the re quired emission standards pursua nt to paragraphs 1( i) and 3 by the Court’s dea dline of January 21, 2011.
11 Case 1:01-cv-01537-PLF Document 150 Filed 01/20/11 Page 11 of 26One f inal point requires discussion. Althoug h EPA, like all ag encie s, should alway s strive to develop the most ef fec tive and sound re gulations, “that quest must give g round in favor of

expedition where Cong ress e x pressly direc ts the Administrator to establish standards promptly .” See State v. G orsuch, 554 F . Supp. 1060, 1065 (S.D.N.Y. 1983). In light of Congr ess’ e x press dire ctive on the de adline for the promulg ation of HAP re gulations, the focus must be on “substantively adequate re gulations” — not perf ect r egulations. See Sierra Club v. J ohnson, 444 F. Supp. 2d at 56 (“ [C ]ourts evaluatingclaims of impossibili ty when a n ag ency has failed to mee t a mandator y deadline g ener ally

have r ejec ted claims that additional time is neede d to ensure substantively

adequate re gulations.”); see also NRDC v. Train, 510 F .2d at 712 (desc ribingthe nec essar

y “for mulation of adequa

te guidelines”); Sierr a Club v. Thomas, 658 F. Supp. 165, 175 (N.D. Cal. 1987) (“ [T] he Court would extend EPA’s time to compensate f or its footdrag g ing if

it were convince d that doing so w as nec essar y for the pr omulgation of workable regulations.”). So the question rema ins: has EPA met its “heavy burden” of demonstrating that it would be impossible to promulgate “substantively adequate re gulations” pursuant to par ag raphs 1(i) and 3 of

the Court’s Marc h 31, 2006 Orde r by J anuar y 21, 2011? Answer ing this question pre sents a complication for this Court: t he Clean A ir Act “‘doe s not allow district courts to addre ss the content of EPA’ s conduct’” or “‘ issue substantive deter minations of its own’” on promulg ated r egulations. Si err a Club v. J ohnson, 444 F. Supp. 2d at 60 (quotingSierra Club v. B rowne r, 130 F . Supp. 2d at 90). “[S] uch substantive judicial revie w is expressly

rese rved f

or the a ppropriate court of a

ppeals.” Sierra Club v. B rowne r, 130 F. Supp. 2d at 90. Since the Court c annot “e mbroil [ itself] i n an asse ssment of the substance of EPA’s ac tions or omissi ons,” id. at 90, the Court must be ca utious where, a s here , EPA’s motion
12 Case 1:01-cv-01537-PLF Document 150 Filed 01/20/11 Page 12 of 26for a

n extension of tim e foc uses, in part, on the substantive qua lity of its rules. The only

way for this Court si multaneously to comply

with 42 U.S.C. § 7607(b) and the c ourt of appe als’ guidelines in NRDC v. Train is to give defe renc e to EPA’s ultimate conc lusion on the substantive merit of its rules. As discussed be low, howeve r, eve n g rantingsuch def ere nce, the Court finds that EPA has not met its heavy burden of

provingimpossibi lity
. B. The Substantive Concern — Re -Proposing the Three Air Rules EPA reque sts an extension of tim e to re -propose the Thre e Air Rules. The se rules relate to EPA’s requir ements under both Section 112(c)( 6), and Sec tions 112(c)(3) and (k) (3)( B)
. In light of the comments rec eived a fter E PA proposed these rules on Apr il 29, 2010, EPA contends that “ [a] re- proposal would re sult in st andar ds that are more de fensible a nd will yield environmenta l benef

its earlier , beca

use the fina l standards will more likely withstand substantive revie w.” Mot. at 20-21; se e Tsirig otis Decl. ¶¶ 34, 37. Acc ordingto EPA: “On balanc e, g iven the broa d impact these r

ules will have, EPA believe s that the overa ll public interest is best served by allowingEPA to re-pr opose the rule s so that [ it] will be able to issue emission standards that
are based upon a

thoroug h consideration of all available data a nd reduc e potential litigation risks.” Mot. at 14; see Tsirig otis Decl. ¶¶ 34, 37. In support of its motion, EP A filed a decla ration fr om Panag iotis E. Tsirigotis, the Direc tor of the Sec tor Policies and Prog rams Division within the Office of Air Qua lity Planning and Standar ds, Offic e of A ir and Radiation at EPA. Mr. Tsirig otis provides background on the rulemakingproce ss for the Thr ee A ir Rules and explains why EPA only

proposed these rules on April 29, 2010, just nine months short of the court-or dere d deadline at the time, Dece mber 16,

13 Case 1:01-cv-01537-PLF Document 150 Filed 01/20/11 Page 13 of 262010. See Tsirig otis Decl. ¶¶ 12-24. In short, duringthe springand summer of 2007, the cour

t of appe als issued three decisions that “substantially impacted how [EPA] sets MAC T emission standards” under the Act. I d. ¶¶ 13, 15; see Sierra Club v. EPA, 479 F.3d 875, 882- 83 (D.C. Cir. 2007); NRDC v. EPA (“NRDC I ”), 489 F .3d 1250, 1257-61 (D.C. Cir. 2007); NRDC I I , 489 F.3d at 1374-75. Althoug h EPA asserts that a ll three de cisions had an impac t on EPA’s MACT methodology , EPA expl ains that NRDC Idirec tly related to EPA’s requir ements for purposes of satisfying Sec tion 112(c)( 6), bec ause in that c ase the court of a ppeals va cate d emission standards for major source boilers and va cate d a rule reg ardingthe def inition of CI SW Iunits. S ee Tsirig otis Decl. ¶ 14.

Followingthese thre e dec isions, EP A “de termined that it nee ded additional information from data and major industrial, commerc ial and instituti onal boilers and pr ocess heate rs and CI SW Iunits in order to set def ensible MACT emission standards” under the Act. Tsirig otis Decl. ¶ 16. EPA pre pare d an information collection reque st, which trig g ere d a complicated but, EPA c ontends, nec essar y set of time-c onsuming proc esses, involving(1) Of fice of Mana g ement and B udg et (“ OMB” ) appr oval for its information collection reque st, (2) public comment on its information collection re quest, and (3) a two-pha sed information collection proce ss. See id. ¶¶ 16- 23. The fir st phase re quired fa cilities to submi t exi sting infor mation, and the sec ond phase r equire d cer tain fac iliti es “to c onduct a suite of sta ck tests to evaluate their emissions of hazardous air pollutants and c erta in other pollutants, such as par ticulate matter

and
car bon diox ide.” I d. ¶ 17.

After this entire proc ess was c omplete, on April 29, 2010, the EPA Administrator signe d the proposed T hree Air Rules. Tsirig otis Decl. ¶ 23. The se rules w ere published in the
14 Case 1:01-cv-01537-PLF Document 150 Filed 01/20/11 Page 14 of 26Fe dera l Reg ister on J une 4, 2010. I d. ¶ 25. Althoug h the comment period was orig inally to close on J uly 19, 2010, g iven the sig nificant public intere st in these rules, EPA g rante d extensions unt il August 23, 2010. I d. ¶¶ 29, 30.

EPA expl ains that it rece ived a sig nificant number of public comments in response . Mot. at 2; Tsirigotis Dec l. ¶¶ 32-34. Spec ifically , EPA rec eived ove r 4,800 individual comments, and Mr. Tsirig otis now asserts that “[t] hese c omments raise seve ral sig nificant issues and provide new infor

mation and data.” Tsirig otis Decl. ¶ 34. Mr. T sirigotis explains that “there
wer e a numbe r of significant issues ra ised in the comments that may result in cer

tain chang es to the proposed r

ules that, [EP A] believe[s] , could cha ng e the dire ction from the pr oposals sufficie ntly

to make additional notice a nd comment advisable .” I d. ¶ 34. Thus, ac cordingto Mr. Tsirig otis: “Base d on the comments and ne w information and data, . . . a r e-pr oposal of the major
source boilers, ar ea sour ce boiler s and CI SW Irules would sig nificantly bolster the streng th of the final rules.” I d. “[T] he re -proposa l approa ch will result in standards that are more de fensible and will yield environmenta l benef its earlier , beca

use the fina l standards will more likely withstand substantive review .” I d. ¶ 37. EPA there fore provides wha t it contends is “an achie vable, but ver

y ag g ressive sc hedule f

or a r e-pr oposal,” Mot. at 3, and r equests that its deadline be extended until April 13, 2012. 4

In response , plaintiff ar gues that EPA fa ils to m eet the sta ndard f or impossibil ity , and that the Court ther efor e should deny EPA’s reque sted extension. Among other things,
Interve nors’ re sponse in support of EPA’s motion larg ely mirrors EPA’s brie fing , 4 except that intervenor s’ position goe s beyond what EPA ar gues, conte nding that the Three Air Rules are “funda

mentally flawe d . . . . hence re- proposals ar e in orde r.” I nterve nors’ Response at 3. The Court’s foc us, howeve r, is on EPA’s view of its rules — not interve nors, who ar e fr ee to seek substantive r eview of the rules in the c ourt of appe als. See 42 U.S.C. § 7607(b).

15 Case 1:01-cv-01537-PLF Document 150 Filed 01/20/11 Page 15 of 26plaintiff contends that EPA “adopted a rulemakingapproa ch involving e x tensive discre tionary delay .” Opp. at 9. Accor ding to plaintiff, E PA’s decision to collec t information in two separate phases wa s a wholly

discretionar

y decision that ca

used the infor

mation collection proc ess to g o on for more than two y ear s. I d. Moreove r, plaintiff c ontends, EPA failed to a sk OMB to expedite its review of EPA’ s information collec tion request pursua nt to 44 U.S.C
. § 3507(j)(1) (B )(iii), which is per mitted when the norma l reviewproce ss “is rea sonably likely to
cause a statutory

or cour t-order ed dea dline to be missed.” Opp. at 9; see 44 U.S.C. § 3507(j)(1) (B )(iii). Plaintiff then notes that EPA fa iled to provide any discussion of how it has allocate d its resource s for purpose s of attemptingto comply with the Court’s Orde r: “Ne ither EPA nor Mr. Tsirig otis indi cate s how many employ ees or

contra ctors ar e wor

king on the job and whether more c ould be deployed.” O pp. at 11. Finally , plaintiff asser

ts that EPA’s centra l argument is one the Court clea rly reje cted in Sierra

Club v. J ohnson: that additional tim e will result in more de fensible r ules. See Opp. at 14 (c iting Sierra

Club v. J ohnson, 44 F. Supp. 2d at 53, 57). Plaintiff points out that EPA has mere ly

sug g ested that “ it might choose to make chang es to the final r ule that might not be logic al outg rowths from the pr oposal.” I d. EPA does not, howeve r, “c laim that it needs to make such cha ng es or will make the m.” I d. And EPA has fa iled to consider Sec tion 307(d)(7)( B) of the Act, a provision that provides for a dminist rative r econside ration of a rule without nec essar ily postponing the e ffe ctiveness of that rule. I d. at 15; see 42 U .S.C. § 7607(d)(7)(B ). Thus, plaintiff contends, EPA’ s conce rns about the mer its of its rules could be addr essed unde r Section 307(d)( 7)(B ), obviatingany purported ne ed for

re- proposal and f

urther de lay . See Opp. at 15.

16 Case 1:01-cv-01537-PLF Document 150 Filed 01/20/11 Page 16 of 26The Court agree s with plaintiff. First, althoug h much of the time-c onsuming

rulemakingproce ss for the Thr ee A ir Rules may have be en appr opriate unde r normal circ umstances, the Court c oncludes that EPA eng ag ed in discre tionary delay in the fac e of a cong ressional dire ctive. As a n example, it appear s to the Court that the OMB r eview pr ocess took betwee n six and eight months. S ee T sirigotis De cl. ¶¶ 16- 21; Surreply at 5 n.3. EPA could have r equeste d expedited OMB a uthorization for its information collection reque st; such expedited authorization is ex pressly permitted whe n “the use of normal c lear ance proce dures is
. . . rea sonably

likely to cause a statutory or court ordered deadlineto be missed.” 44 U.S.C. § 3507(j)(1) (B )(iii) (e mphasis added) . EPA asserts that, in the fa ll of 2007, at the time it was prepa ringthe information collec tion request, it “could not have rea sonably anticipated how prolong ed the . . . pr ocess would be come.” Reply at 17-18; see Tsirig otis S uppl Decl. ¶ 14. By statute, howeve r, EPA’s emission standards w ere alre ady seven year s overdue — and EPA’s court-or dere d deadline w as soon appr oaching . Given these deadlines, it should have be en cle ar to EPA that procee ding thr oug h the normal OMB proce ss was “r easona bly likely to cause a statutory or cour t ordere d deadline to be missed.” See 44 U.S.C. § 3507(j)(1) (B )(iii). Def endingits information collection proce ss, EPA also contends that, “[g ]i ven the public interest in the rule s and the number and var iety

of fa cilities that would be regulated, it was important to secure public input . . . to ensure that the ne cessa ry information would be obtaine d.” Reply at 18. B ut like the four- phase r egulatory proce ss proposed and r ejec ted at the summary judgme nt stag e, EPA’s de termination was “ indicative of ‘ a leve l of thoroug hness and sc ientific
cer tainty not within the contemplation of Congr ess at the time it mandated the regulation of hazardous air

pollutants.’” Sierra

Club v. J ohnson, 444 F. Supp. 2d at 56 (quotingSierra Club v.

17 Case 1:01-cv-01537-PLF Document 150 Filed 01/20/11 Page 17 of 26Gorsuch, 551 F . Supp. 785, 788-89 (N.D. Cal. 1982)) . “Although in most circumstance s the

Court defe rs to ag ency

expertise about appr opriate r ulemakingproce dures, suc h defe renc e is inappropriate wher e Cong ress ha s unambiguously expressed its intent that these regulations be promulg ated by

a date cer

tain and the a g ency

manifestly

has fa iled to fulfill this statutory obligation.” I d.

EPA’s past ac tions aside, what is most important is t hat EPA has fa iled to establish that it would be impossibl e to promulg ate substantively adequate rules by

J anuar y 21, 2011. As stated in Sierra Club v. J ohnson, “cour

ts evaluatingclaims of impossibili ty when a n ag ency has fa iled to meet a mandatory deadline [established by

Congr ess] ge nera lly

have r ejec ted claims that additional time is needed to e nsure substantively adequate re gulations.” Sierra Club v. J ohnson, 444 F. Supp. 2d at 56 (c iting Sierra Club v. Ruckelshaus, 602 F. Supp. 892, 899 (N.D. Cal. 1984) ; State v. Gorsuch, 554 F . Supp. at 1065). Althoug h EPA urg es the Court to “ca ref ully consider the time neede d for EPA to ensur e that standa rds ar e not seriously

flawe d befor e fina l rules ar e issued,” Re ply at 5, EPA itself has not ac tually asser ted that its proposed rules ar e fla

wed or inadequa te. Instead, EPA has simply expressed the c oncer

n that there is a risk these rule s will be challeng ed. Mr. Tsirig otis states: “[T] here wer e a numbe r of sig nificant issues raised in the c omments that may re sult in cer tain chang es to the propose d rules that, [EPA] believe[s], could change

the direc tion from the proposals sufficiently to make additional notice and comment advisable .” Tsirig otis Decl. ¶ 34 ( emphasis adde d); see a lso Tsirigotis Suppl. Dec l. ¶ 26 (The Offic e of A ir and Radiation has “ rec ommended cha ng es” to the A dminist rator “that could sig nificantly

chang e the dire ction of the proposa ls . . . .”). The se conc erns, e x presse d

18 Case 1:01-cv-01537-PLF Document 150 Filed 01/20/11 Page 18 of 26in conditional languag e, do not ca st doubt on the conclusion that EPA will be able to promulg ate

substantively

adequate rules by

J anuar y 21, 2011. Finally , EPA sugg ests that beca use the rule s at issue “a ffe ct almost 200,000 boilers and 176 CI SW Iunits across the United States, a nd are complex and inter-re lated,” it is appropr iate to avoid any

risk of er ror. Mot. at 20. “ On balanc e, g iven the broa d impact these rules will have, E PA believes that the ove rall public intere st is best served by allowingEPA to
re- propose the r

ules so that the Ag ency

will be able to issue emission standards that are based upon a thoroug h consideration of all available data a nd reduc e potential litigation risks.” I d. at 14. EPA acknow ledg es that Section 307(d) (7)( B) “would provide an ave nue for addre ssing some of the c omplications that have de veloped a s these rule making s have pr ocee ded,” but c ontends that “[i] n these pa

rticular c ircumstance s . . . rec onsideration is not as ef fec tive as a r e-pr oposal in addre ssing the pr oblems prese nted.” Reply at 11; see Mot. at 20 ( Although Sec tion 307(d)(7)( B) “could pr ovide a path for re medying some of the issues that ar e ca using EPA to conc lude that re

proposal is advisable, . . . . E PA does not believe it is the appr opriate path to pursue her e.”)
.

The policy

arg uments EPA raises have no plac e in a c ase where Congr ess has mandated e x pedition, and its statutorily -mandated dea dlines have longsince pa ssed. Unfortunately

for EPA, the impossibilit y test is not concer

ned with whethe r — as a

matter of policy — re- proposal will produce more e ffe ctive rule s and thus is prefe rable to rec onsideration under Sec tion 307(d)(7)( B) . “It is emphatically not within an ag ency ’s authority to set regulatory priorities that clea

rly conflict with those esta

blished by

Congr ess.” Sierr a Club v. J ohnson, 444 F. Supp. 2d at 58. While EPA’s view on the importanc e of its rules a nd the pre fer able c ourse of conduct may

have me rit, at this stage EPA’s (and inter venors’ ) “r emedy

lies with Congre ss, not
19 Case 1:01-cv-01537-PLF Document 150 Filed 01/20/11 Page 19 of 26the cour

ts.” I d. at 57. “‘ [T] he [C] ourt’s role is to enf orce the leg islative will when ca lled upon to do so.’” I d. at 54 (quotingState v. Gorsuch, 554 F . Supp. at 1062-63). B eca use EPA has not met its heavy burden of

demonstratingthat it would be impossibl e to promulg ate substantively adequate re gulations pursuant to para g raphs 1( i) and 3 of the Court’s Marc h 31, 2006 Orde r by J anuar y 21, 2011, the Court denies EPA’s r equest for an extension of time until April 13, 2012 so that EPA can r e-pr opose the Thr ee A ir Rules.
C. The Procedural Concern — Re sponding to “Significant” Public Comments Under Section 307(d)( 6)(B ) of the A ct, a pr omulgated rule “ shall . . . be
acc ompanied by

a re sponse to eac h of the significant c omments, criticisms, and new data submitt ed in written or or al pre sentations duringthe comment per iod.” 42 U.S.C. § 7607(d)( 6)(B ). EPA thus prese nts to the Court an alternative reque st: “[S ]houl d the Court deny EPA time to re-propose ” the e mission s tandar ds for the Thr ee A ir Rules, “EPA re quests that the deadline f or completingits obli g ations under [p]arag raph 3 [and par ag raph 1( i)] be ext ended until J une 15, 2011, to allow the Ag ency time to fully

respond to the 4,800 individual comments
rec eived in re sponse to the proposals . . . .” Mot. at 4. EPA also reque sts that the Court ex tend the dea dline for c ompleting its obligations under par ag raph 1( i) as to the SSIunits rule to J uly 15, 2011, “so that EPA ca n fully respond” to the comments to that proposed rule . I d. As noted, EPA re ceive d over 4,800 individual comments conc erning the proposed Three Air Rules. EPA explains t hat it is “conce rned that it may not be able to a dequate ly ” respond to these comments by J anuar y 16, 2011 — now J anuar

y 21, 2011. Mot. at 21. Mr. Tsirig otis’ declar ation is more def initive: “The Ag ency

cannot c urre ntly

respond in full to all of

20 Case 1:01-cv-01537-PLF Document 150 Filed 01/20/11 Page 20 of 26the sig nificant c omments submit ted on the major sour ce, a rea source , and CI SW Iproposed r ules and pre pare a fina l rule for the Administrator’s signature that is consistent with those comments by J anuar y 16, 2011.” Tsirig otis Decl. ¶ 40; see Tsirig otis S uppl. Decl. ¶ 25. Mr. Tsirig otis contends that a

n extension unt il J une 15, 2011 will “ena ble the Ag ency

to develop re sponses to all signific ant comments re ceive d and to pre pare fuller a nd more de fensible r esponse to those comments, which would e nhance the def ensibility of the fina l standards.” Tsirig otis Decl. ¶ 40. Wit h respe ct to the SSIunit rule, EPA rec eived ove r eighty individual comments in response. Mot. at 22. EPA e x plains that the comment per iod closed on Nove mber 29, 2010, only forty -five da

y s befor e the c urre nt deadline. I d. EPA expresses “ser ious conce rns” whe ther the ag ency

could fully

respond to these comments — all of which E PA in its motion papers descr ibes as “significant” — by J anuar y 21, 2011. See Mot. at 22. Ag ain, Mr. Tsirig otis’ decla ration is more de finitive, though he expresses no such c laim that all eighty comments are in fac t significa

nt: “The Ag ency

cannot . . . c urre ntly

respond in full to all of the sig nificant comments submitted on the proposed sew ag e sludg e inciner ators by J anuar y 16, 2011.” Tsirig otis Decl. ¶ 48; see Tsirig otis S uppl. Decl. ¶ 32. EPA contends that an e x tension until J uly 15, 2011 would “ensur e that it has fully responde d to all significa nt comments . . . thereby improving the defe nsibili ty of the rule .” Mot. at 22; see T sirigotis De cl. ¶ 49; Tsirig otis S uppl. Dec l. ¶ 34. Plaintiff responds that Mr. Tsirig otis’ declar ation “provide s only the unexplained and unsupported a ssertion that the ag ency needs more time to complete its response to comments.” Opp. at 10. Plainti ff c ontends that Mr. Tsirig otis “does not say how much of the response to comments proce ss is sti ll unfinished and provides no r eason to be lieve that proc ess 21 Case 1:01-cv-01537-PLF Document 150 Filed 01/20/11 Page 21 of 26cannot be completed by J anuar y 16.” I d. Plaintiff also points out t hat neither EPA nor Mr. Tsirig otis addresses the question of re source allocation — ther e is no discussion of how many employ ees or

contra ctors ar e wor

king on the response s or whethe r more c ould be deployed. I d. at 11. Then, de scribingEPA’s response s with respec t to other rules a nd finding s, plaintiff asser ts that completingthe comment proc ess by the Court’s dea dline is well within EPA’s capability
. I d. at 11-12. Finally , plaintiff asser ts that EPA has provided no information as to why it would 5 take a pproxi mately

five more months to respond to an undefine d number of the 4,800 individual comments on the Thre e Air Rules that EPA conside rs “sig nificant,” and six more months to respond to an unde fined number of the e ighty

individual comments on the SS Iunit rule that are “sig nificant.” I d. at 12-13. I n sum, plaintiff contends that EPA has f ailed to demonstrate that it is imposs ible for EPA to comply with the J anuar

y 21, 2011 deadline. In Sierra Club v. Johns on, the Court stressed the importa nce of resour ce a llocation and re jected E PA’s argument that “‘othe r mandatory obliga tions’ prec lude its compliance w ith plaintiff’s propose d schedule .” Sierra Club v. J ohnson, 444 F. Supp. 2d at 57. The Court state d that “[t] he will of Cong ress, a s expressed in the Act, is that the promulg ation of standar ds
acc ordingto . . . mandatory deadlines should take prec edenc e over all other rule -makingthat

For example, plaintiff notes that “EPA re sponded to more than 400,000 c omments 5 including a

pproxi mately

19,000 individual comments on its gre enhouse g ases tailoring rule in four a nd one half

months between the close of its comment pe riod on Dec ember 28, 2009 and the signature of its final r

ule on May

13, 2010.” Opp. at 12. “Simil arly , EPA responde d to more than 380,000 comments including11,000 individual comments on its gre enhouse g ases endang erme nt finding in a period of f

ive and one half months betwee n the close of the comment period on June 23, 2009 and promulg ation on Dec ember 6, 2009.” I d. 22 Case 1:01-cv-01537-PLF Document 150 Filed 01/20/11 Page 22 of 26EPA has not been e x pressly order ed to complete by

Congr ess, as we ll as (ar guably ) over mandatory

rulemakingfor whic h the authorizing statute doe s not set a date c erta in.” I d. The
same a naly sis necessa

rily must also apply

to the less substantive responsibility of the a g ency

to respond in wr iting to “sig nificant c omments.” Althoug h “‘[a]n equity court c an neve r exclude claims of inability

to rende r absolute pe rfor mance ,’” suc h claims must be supported with fa cts and the Court “‘ must scrutiniz e such c laims care fully . . . .’” I d. at 53 (quotingNRDC v. Train, 510 F.2d at 713).

Mr. Tsirig otis’ first decla ration cla ims that EPA cannot respond in full to the comments on the Thre e Air Rules a nd the SSIunit rule by

J anuar y 21, 2011 without providing any information conc erning(1) wha t EPA has been doingsince it rec eived the c omments; (2) how muc h of the re sponse proc ess is still unfinished; (3) how E PA has chosen to a llocate its
resour ces so a s to attempt to comply with the court-or dere d deadline; or (4) whic h of the 4,800 comments on the Thre e Air Rules or the eighty comments on the SSIunit rule g enuinely are “sig nificant.” See L ead I ndus. Ass’n v. EPA, 647 F.2d 1130, 1167 ( D.C. Cir. 1980) (notingthat it “border s on the ludicrous” to sug g est that all comments “r ise to the level of a comment which require d a re sponse from the A dminist rator” ). Althoug h EPA and Mr. Tsirig otis assert that EPA has re ceive d over 4,800 individual comments in re sponse to the Thre e Air Rules a nd over e ighty comments in response to the SSIunit rule, there is no discussion whatsoever of how many

of these c omments EPA in fact consider s “sig nificant.” Wit h respe ct to the 4,800 comments to the Three Air Rules, the Court finds EPA’s lack of discussion on the matter espe cially telling, g iven that EPA asserts that it has per formed a n “initial reviewof the sig nificant c omments.” See Mot. at 2; see a lso Tsirigotis Dec l. ¶ 34 (“T he Ag ency has spent conside rable time review ing the over 23 Case 1:01-cv-01537-PLF Document 150 Filed 01/20/11 Page 23 of 264,800 individual comments rece ived . . . .”) . By now, EPA surely

must know how many

are “sig nificant” if the ag ency has bee n workingas dilige ntly as it say s it has been. With respec t to the eig hty comments to the SSIunit rule, althoug h EPA in its m otion papers de scribes the m all as signific ant, tellingly

Mr. Tsirig otis, on penalty of per jury , makes no such c laim. Compare Mot. at 2 (“ EPA has serious c oncer ns . . . as to whether

it can fully

respond to the ove r 80 sig nificant comments . . . .”), w ith Tsirigotis Dec l. ¶ 48 (“[W] e have rec eived ove r 80 individual comments . . . . The Ag ency

cannot, howe ver, c urre ntly respond in full to all of the sig nificant c omments submitt ed . . . .”)
.

Plaintiff pointed out some of these fla ws in its opposi tion, and Mr. Tsirig otis then submitt ed a supple mental dec laration in reply . This supplemental dec laration sti ll lacks specific ity

on the most crucia l issues. Mr. Tsirigotis now states that, once the c omment period closed, EPA “immediate ly beg an re viewingthe comments and othe r information, including the data.” Tsirig otis S upp. Dec l. ¶ 21. Mr. Tsirig otis provides more deta il on the work left to be done and a sserts that EPA “ha s been f ully embroiled in the wor

king on the final standar ds at issue in this m atter since the close of the comment per iod.” I d. ¶¶ 24, 30- 34. Both EPA and Mr
. Tsirig otis remain silent, howeve r, on whe ther EPA is ac ting with “the fullest use of [its]
resour ces.” See NRDC v. Tra in, 510 F.2d at 712. And ne ither EPA nor Mr. Tsirig otis makes any attempt to segreg ate f

or the Court the sig nificant c omments from the insignif icant. F inally , there is no discussion as to why EPA needs until J une 15, 2011 to re spond to the Three Air Rules comments that are signific ant and until J uly 15, 2011 to respond to the sig nificant SSIunit rule comments.

24 Case 1:01-cv-01537-PLF Document 150 Filed 01/20/11 Page 24 of 26Whil e ther e is no support for EPA’ s reque sts for extensions unti l J une 15, 2011

and Jul y 15, 2011, respe ctively , the Court has no re ason to doubt Mr. Tsirig otis’ unequivocal statements that EPA “c annot cur rently respond in full to all of the sig nificant c omments” — howeve r many

there may

be — to the Thre e Air Rules a nd the SSIunit rule by

J anuar y 21, 2011. See Tsirig otis Decl. ¶¶

40, 48. The Court there fore finds that there is no reasona ble possibilit y that EPA will be able to comply with its m andator

y duty under Sec tion 307(d)(6)( B) of the Ac t to respond “ to eac h of the sig nificant c omments, criticisms, and new da ta submitted in written or oral pre sentations duringthe comment per iod” by J anuar y 21, 2011. 42 U.S.C. § 7607(d)(6)( B)
. “Rather than orde r the de fenda

nt to do what is likely

an impossibili ty ,” Sierra

Club v. J ohnson, 444 F. Supp. 2d at 59, the Court ther efor e will extend sli g htly the dea dline for EPA to re spond to the sig nificant c omments reg ardingthe Thre e Air Rules a nd the SSIunit rule. EPA has not justified its request for a

n extension unt il J une 15 and July 15, 2011. Nor ha s EPA even attempted to show that a more expeditious schedule would be impossible. Indeed, E PA’s own paper s make c lear

to the Court that its requested e x tensions would not reflec t a sche dule of “utmost dili g ence .” Acc ording ly , the Court reje cts EPA’s proposed sc hedule a nd presc ribes a 6
more e x peditious one. See Sierr a Club v. J ohnson, 444 F. Supp. 2d at 52-53. The J anuar y 21, 2011 deadlines in pa

ragraphs 1( i) and 3 a

re e x tended to F ebrua

ry 21, 2011.

In fac t, some of the wor

k contemplated a

ppear s duplicative: althoug h EPA asserts 6 that it has alrea dy

perf ormed a n “initial reviewof the sig nificant c omments” to the Thre e Air Rules, Mot. at 2, Mr. Tsirigotis indicate s that EPA is appare ntly planningon revie wingag ain “a ll of the 4,800 c omments . . . to ensure that [EPA] ha[s] fully considere d all of the issues,” Tsirig otis S upp. Dec l. ¶ 30(a)
. 25 Case 1:01-cv-01537-PLF Document 150 Filed 01/20/11 Page 25 of 26CONCLUSI ON For the fore g oing r easons, de fenda nt EPA’s motion t o amend the Court’ s Marc h 31, 2006 Orde r [Dkt. No. 136] is DENI ED in part a nd GRANTED in pa

rt. An Orde r consistent with this Opinion shall i ssue this same day
. SO ORDERED. /s/ PAULL . FRI EDMAN DATE: January

20, 2011 United States District J udg e

26 Case 1:01-cv-01537-PLF Document 150 Filed 01/20/11 Page 26 of 26