1 

ORAL ARGUMENT NOT YET SCHEDULED

UNITED STATES COURT OF APPEALS 

FOR THE DISTRICT OF COLUMBIA CIRCUIT 

_______________________________________ 

 ) 

NATIONAL ASSOCIATION OF CLEAN 

WATER AGENCIES, 

) 

) 

 ) 

Petitioner ) No. 11-1131 

 ) (consolidated with Nos. 

v. ) 11-1167 and 11-1185) 

 ) 

ENVIRONMENTAL PROTECTION 

AGENCY and LISA PEREZ JACKSON, 

ADMINISTRATOR, ENVIRONMENTAL 

PROTECTION AGENCY 

) 

) 

) 

) 

 ) 

Respondents ) 

_______________________________________) 

EMERGENCY JOINT MOTION FOR STAY OF THE 

SEWAGE SLUDGE INCINERATION RULE

Pursuant to Fed. R. App. P. 18 and Circuit Rule 18, the National Association 

of Clean Water Agencies (“NACWA”) and Hatfield Township Municipal 

Authority (“Hatfield Township”) (together, “Movants”) hereby move this Court for 

an order staying the effectiveness and implementation of the U.S. Environmental 

Protection Agency (“EPA” or “Agency”) action entitled “Standards of 

Performance for New Stationary Sources and Emission Guidelines for Existing 

Sources: Sewage Sludge Incineration Units,” 76 Fed. Reg. 15372 (Mar. 21, 2011) 

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(the “SSI Rule”).1

 As discussed in Section I below, Movants respectfully request 

that the Court expedite review of this Motion. 

In the SSI Rule, EPA illegally promulgated numerous stringent emission 

limitations, operating conditions and other requirements under § 129 of the Clean 

Air Act (“CAA”), 42 U.S.C. § 7429, applicable to sewage sludge incinerators 

(“SSIs”). The regulated SSIs are owned and operated by an estimated 118 

municipalities and public clean water agencies across the nation. As discussed 

below, the SSI Rule is demonstrably unlawful and, if allowed to remain in effect, 

will result in concrete and irreparable harm to the communities who rely upon 

incineration without concomitant benefits to other parties or to the environment. 

NACWA and Hatfield Township are petitioners in Nos. 11-1131 and 11-

1167, respectively; Movants have filed for leave to intervene in No. 11-1185. Per 

Fed. R. App. P. 18(a)(2)(C) and Circuit Rule 18(a)(2), Movants have coordinated 

by telephone regarding this motion with counsel for all parties in these 

consolidated cases. Counsel for EPA and for Sierra Club (petitioner in No. 11-

1185) have indicated that they oppose this motion. 

 

1

 On September 7, 2011, Movants filed a Joint Motion to Exceed the Page Limit 

for this Motion for Stay (ECF #1328130). As of the time of filing this Motion for 

Stay, the Joint Motion to Exceed the Page Limit was still pending.

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STANDARD FOR GRANTING A STAY

Per Circuit Rule 18(a), the Court weighs four factors in considering motions 

to stay an agency rule on review: (1) Has the petitioner made a strong showing 

that it is likely to prevail on the merits of its appeal? (2) Has the petitioner shown 

that without such relief, it will be irreparably harmed? (3) Would the issuance of a 

stay substantially harm other parties interested in the proceedings? (4) Where lies 

the public interest? See Virginia Petroleum Jobbers Ass’n v. FPC, 259 F.2d 921, 

925 (D.C. Cir. 1958). These factors are considered together and balanced against 

one another, such that a “stay may be granted with either a high probability of 

success and some injury, or vice versa.” Cuomo v. NRC, 772 F.2d 972, 974 (D.C. 

Cir. 1985). In this case, each of these factors weighs heavily in favor of staying the 

SSI Rule. 

ARGUMENT

EPA’s promulgation of the SSI Rule is an extreme example of Agency 

obduracy and regulatory corner-cutting with imminently harmful results for the 

communities who rely upon incineration as the only practical solution for 

managing the sewage sludge that their wastewater treatment facilities generate 

every day. By setting emission standards under § 129 of the CAA, EPA has 

circumvented the statutory mandate to regulate SSIs under § 112(d) and thereby 

upset the flexible regulatory framework that Congress expressly reserved for 

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publicly owned treatment works (“POTW”) under the CAA and the Federal Water 

Pollution Control Act (“CWA”). 

Pressed for time during the rulemaking, EPA also subverted the CAA 

mandate to collect data from the requisite minimum number of SSIs. Then, when 

the Agency ran out of time to finalize the SSI Rule under the schedule set by the 

U.S. District Court for the District of Columbia, EPA ignored data and other 

information submitted during the comment period that would have changed the 

outcome of the standards, and failed to give weight to information submitted by 

commenters showing that the standards would not be achievable even for some of 

the best performing SSIs. 

I. EXPEDITED REVIEW OF THIS MOTION IS WARRANTED 

Pursuant to Circuit Rule 27(f), any party may request expedited action on a 

motion on the ground that, to avoid irreparable harm, relief is needed in less time 

than would ordinarily be required for the Court to consider a response. Although 

there is no specific date by which Court action is necessary in this instance, 

expedited consideration of this Motion for Stay is warranted to minimize the 

imminent and irreversible harm resulting from the SSI Rule to the over 100 

communities who rely on incineration to manage the sewage sludge generated by 

their POTWs, as set forth more fully in Section IV below and in the attached 

declarations submitted by four POTWs. Movants are not seeking to expedite the 

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schedule for any responses to this Motion for Stay and any replies thereto, but 

instead are respectfully requesting that the Court expedite its own consideration of 

this Motion when briefing on the motion has concluded. 

II. MOVANTS HAVE EXHAUSTED THEIR ADMINISTRATIVE 

REMEDIES WITH EPA. 

Movants have previously sought relief from EPA by submitting a Petition 

for Reconsideration and Stay (“Petition”) (Ex. 1) on May 24, 2011. NACWA 

submitted the Petition requesting an immediate stay of the SSI Rule pending 

reconsideration of the SSI Rule and promulgation of replacement regulations. 

After receiving no response, on June 27, 2011 NACWA submitted a supplement to 

the Petition (Ex. 2) reiterating the need for an immediate stay and providing 

information on regulatory developments further illustrating the immediate impact 

that the SSI Rule is having on NACWA’s members. After obtaining two 

extensions of time to act, EPA still has not formally announced a decision on the 

petition. However, on August 31, 2011 EPA’s counsel verbally informed Movants 

that the Agency will not reconsider the decision to regulate SSIs under § 129 of the 

CAA and will not grant the request for an administrative stay. Therefore, EPA has 

not afforded the relief requested. 

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III. MOVANTS ARE LIKELY TO PREVAIL ON THE MERITS OF 

THEIR CHALLENGES TO THE SSI RULE. 

The SSI Rule is substantively and procedurally unlawful in multiple 

respects. 

A. EPA’s Interpretation that SSIs Must be Regulated Under § 129 of the 

CAA Is Contrary to the Text of the CAA and Arbitrary and Capricious. 

EPA’s foundational claim that SSIs are subject to regulation under § 129 of 

the CAA fails both steps of analysis under Chevron U.S.A. Inc. v. Natural Res. 

Def. Council, 467 U.S. 837 (1984). The plain language of CAA § 112(e)(5) 

requires EPA to establish national emission standards for hazardous air pollutants 

(“NESHAP”) for POTWs under CAA § 112. Because regulation of sources under 

§ 112(d) and § 129 is mutually exclusive,2

 EPA lacks authority to regulate SSIs 

under CAA § 129. As discussed below, Congress placed SSIs under § 112 to 

ensure maximum flexibility in the regulation of hazardous pollutants from these 

sources. EPA’s decision to regulate SSIs under § 129 using the more stringent 

requirements applicable to “solid waste incineration units” upsets this 

Congressional vision of providing the flexibility local governments need to choose 

the best sewage sludge management method for their circumstances. 

 

2

 CAA § 129(h)(2) provides that: “no solid waste incineration units subject to 

performance standards under [§§ 129 and 111] shall be subject to standards under 

[§ 112(d)].” Thus, § 129(h) makes regulation of sources under § 129 or § 112 

Footnote continued on next page 

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1. SSIs Are an Essential and Inseparable Part of the Treatment 

Works and Congress Directed that They Be Regulated under 

§ 112(d) of the CAA. 

In analyzing the interplay between §§ 112(e)(5) and 129, courts are “guided 

not by ‘a single sentence or member of a sentence, but [must] look[ ] to the 

provisions of the whole law, and to its object and policy.’” John Hancock Mut.

Life Ins. Co. v. Harris Trust & Sav. Bank, 510 U.S. 86, 94-95 (1993) (quoting Pilot 

Life Ins. Co. v. Dedeaux, 481 U.S. 41, 51 (1987)). Section 112(e)(5) of the CAA 

states: 

The Administrator shall promulgate standards pursuant to subsection (d) of 

this section [112] applicable to publicly owned treatments works (as defined 

in title II of the Federal Water Pollution Control Act [33 U.S.C.A. § 1281 et 

seq.]) not later than 5 years after November 15, 1990. 

42 U.S.C. § 7412(e)(5). The definition of “treatment works” contained in Title II 

of the CWA is extraordinarily broad and includes SSIs. It defines treatment works 

as: 

any devices and systems used in the storage, treatment, recycling, and 

reclamation of municipal sewage or industrial wastes of a liquid nature to 

implement [section 201 of the Act], or necessary to recycle or reuse water at 

the most economical cost over the useful life of the works, including 

intercepting sewers, outfall sewers, sewage collection systems, pumping, 

power, and other equipment, and their appurtenances; extensions, 

improvements, remodeling, additions, and alterations thereof; elements 

essential to provide a reliable recycled supply such as standby treatment 

 

Footnote continued from previous page 

mutually exclusive. EPA has consistently recognized that sources regulated under 

§ 112 cannot also be regulated under § 129. 

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units and clear well facilities; and any works, including site acquisition of 

the land that will be an integral part of the treatment process (including land 

used for the storage of treated wastewater in land treatment systems prior to 

land application) or is used for ultimate disposal of residues resulting from 

such treatment. 

33 U.S.C. § 1292(2)(A) (emphasis added). 

This definition clearly encompasses the areas of a POTW used to manage 

sewage sludge resulting from the treatment of wastewater, including the SSIs that 

are “used for ultimate disposal of residues resulting from” the sewage treatment 

process. Congress’ use of this well-understood term from the CWA has no other 

meaning in Congress’ instruction for EPA to establish the emission standards 

under § 112. 

Likewise, EPA’s regulatory definition of “treatment works” at 40 C.F.R. 

§ 35.905 further reinforces the expansive meaning of the term under the CWA and 

just as clearly encompasses SSIs: 

Any devices and systems for the storage, treatment, recycling, and 

reclamation of municipal sewage, domestic sewage, or liquid industrial 

wastes used to implement section 201 of the Act, or necessary to recycle or 

reuse water at the most economical cost over the useful life of the works. 

These include intercepting sewers, outfall sewers, sewage collection 

systems, individual systems, pumping, power, and other equipment and their 

appurtenances; extensions, improvement, remodeling, additions, and 

alterations thereof; elements essential to provide a reliable recycled supply 

such as standby treatment units and clear well facilities; and any works, 

including site acquisition of the land that will be an integral part of the 

treatment process or is used for ultimate disposal of residues resulting from 

such treatment (including land for composting sludge, temporary storage of 

such compost, and land used for the storage of treated waste water in land 

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treatment systems before land application); or any other method or system 

for preventing, abating, reducing, storing, treating, separating, or disposing 

of municipal waste or industrial waste, including waste in combined storm 

water and sanitary sewer systems. 

Id. (emphasis added). 

The § 112(e)(5) scheme placing SSIs under § 112 is consistent with the 

Congressional vision – expressed in § 405 of the CWA – for flexibility in 

regulating POTWs and their SSIs. See CWA § 405(e) (“[t]he determination of the 

manner of disposal or use of sludge is a local determination”). Section 405 of the 

CWA plays the primary role in regulating the use and disposal of sewage sludge 

generated at POTWs. EPA implements § 405 through comprehensive standards in 

40 C.F.R. Part 503 that have been in place since the early 1990s, including riskbased standards regulating hazardous air pollutants from SSIs. When Congress 

decided to supplement that CWA program by using a technology-based approach 

under the CAA, it invoked the CWA to define the POTW source category that 

EPA was to regulate under § 112. The legislative history of § 112 shows that 

Congress was fully aware that emissions from POTWs were covered by the CWA 

and that Congress intended to supplement that authority using § 112. For example, 

the Senate Report stated that 

[t]he Administrator is specifically directed to include publicly owned 

treatment works (as defined in the Clean Water Act) and [certain RCRA 

facilities] among the categories of major sources pursuant to this subsection. 

... The Agency has also indicated that air emission standards for POTWs 

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may be promulgated under the Clean Water Act. There is no standard of 

protection of either human health or the environment from releases to air 

under that Act. It is more likely that appropriate standards would survive a 

legal test, if established pursuant to these new authorities of § 112 of the 

Clean Air Act. 

Sen. Rep. No. 100-231, Committee on Environment and Public Works, 1990 CAA 

Legislative History, at 9436, 9668. There is no hint that Congress intended EPA to 

regulate an SSI differently from the rest of the POTW, much less through different 

authority under CAA § 129. 

EPA’s own regulatory pronouncements and actions make clear the Agency’s 

understanding (prior to EPA’s departure in the SSI Rule) that SSIs are part of the 

POTW for purposes of the CWA and the CAA. First, EPA has long viewed SSIs 

as included within the CWA “treatment works” definition through its 

implementation of the CWA Title II construction grant program. EPA has 

consistently and repeatedly provided federal funding to build and upgrade SSIs 

through its Title II grant fund, under which funding is specifically limited to 

“treatment works” as defined above. Examples include: (1) 10 SSIs owned by the 

Hampton Roads Sanitation District in southeast Virginia (N. LeBlanc Decl. ¶ 4 

[Ex. 3]), (2) seven SSIs owned by the Northeast Ohio Regional Sewer District 

(“NEORSD”) (NEORSD Decl. ¶ 4 [Ex. 4]), and (3) one SSI owned by the City of 

Cedar Rapids, Iowa (P. Ball Decl. ¶ 4 [Ex. 5]). Indeed, it may well be the case that 

many or all of the approximately 230 SSIs nationwide were constructed or 

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upgraded with EPA’s Title II construction grants. This would have been contrary 

to the CWA – and EPA would have illegally approved the use of many millions of 

dollars in federal funds – if the Agency did not consider SSIs to be part of the 

“treatment works.” 

Second, in numerous prior pronouncements over many years EPA has stated 

unequivocally that SSIs are part of the POTW. For example, EPA has consistently 

held that sewage sludge management, including incineration, is an inherent part of 

POTW operations for which CWA Title II funding was made available, and this 

position is also reflected in the Part 503 program. EPA has stated in the context of 

the Part 503 program that: “Treatment works treating domestic sewage, as noted 

above, include facilities dedicated to the disposal of sewage sludge (i.e., surface 

disposal sites and incinerators).” 58 Fed. Reg. 9248, 9359 (Feb. 19, 1993) 

(App. A) (emphasis added); see also 40 C.F.R. § 122.2 (treatment is expressly 

defined to include sewage sludge treatment systems). 

Third, EPA has previously classified SSIs as Congress intended under CAA 

§ 112, by identifying SSIs as an area source category under CAA § 112. In 1992, 

when EPA issued the initial list of major and area source categories under § 112, 

the Agency examined the categorization of SSIs under the CAA. See 57 Fed. Reg. 

31576 (July 16, 1992) (App. B). That initial list of source categories included SSIs 

as a § 112 source category. In the related Federal Register notice, EPA expressly 

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states that “the Agency does not consider sewage sludge incineration units to be 

covered under § 129 so it has authority to list and set standards for these units 

under § 112.” See also 58 Fed. Reg. 9248, 9262, 9276-77 (Feb. 19, 1993) (noting 

that SSIs are regulated under § 112 of the CAA) (App. C). 

In 1999, EPA promulgated a NESHAP under § 112 for POTW treatment 

plants. See 64 Fed. Reg. 57572 (Oct. 26, 1999). Significantly, although the 

definition of “POTW treatment plant” is appropriately focused on the wastewater 

treatment part of a POTW, the definition of POTW in that rule is much broader 

and encompasses everything that is eligible to receive grant assistance under Title 

II of the CWA. See 40 C.F.R. § 63.1595. Although EPA’s rulemaking preamble 

inexplicably stated that EPA then believed that SSIs were subject to regulation 

under CAA § 129, EPA nowhere elaborated on the rationale for this change from 

its prior approach or justified this new interpretation of the statute. See 62 Fed. 

Reg. 1868 (Jan. 14, 1997). In fact, shortly after EPA promulgated the POTW 

NESHAP, EPA reversed its position and expressly stated that SSIs would be 

regulated under § 112 instead of § 129. See Unified Agenda 65 Fed. Reg. 23460 

(Apr. 24, 2000) (App. D). Then, in February 2002, EPA acted on this by revising 

its list of source categories under § 112 to delete SSIs, not because they were not 

covered by § 112, but because there were no major sources in that category. See

67 Fed. Reg. 6521 (Feb. 12, 2002) (App. E). EPA then added SSIs to the list of 

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area (i.e., non-major) source categories under §§ 112(c) and 112(k) of the CAA. 

See 67 Fed. Reg. 43112 (Jun. 26, 2002) (App. F); 67 Fed. Reg. 70427 (Nov. 22, 

2002) (App. G). These actions are entirely consistent with EPA’s earlier view that 

SSIs are subject to regulation under § 112 of the CAA; and they are inconsistent 

with EPA’s new view in the SSI Rule that SSIs are subject to regulation under 

§ 129 – for example, there is no major source/area source distinction for sources 

subject to § 129, so basing these listing and delisting decisions on this distinction is 

incongruous with the Agency’s current view that SSIs are subject to § 129. 

2. SSIs Are Not “Solid Waste Incineration Units” and Therefore 

Cannot Be Regulated Under § 129 of the CAA. 

Notwithstanding the clear language of § 112(e)(5) and evidence that 

Congress intends SSIs to be regulated as part of POTWs, EPA’s preamble to the 

SSI Rule responded to commenters’ arguments in conclusory fashion, stating that 

it “has taken the position in its regulation of POTW under the Clean Air Act that 

§ 112(e)(5) does not apply to SSI units and for this reason did not regulate them in 

its POTW § 112(d) emission standards.” 75 Fed. Reg. 63264 (Oct. 14, 2000). 

EPA nowhere justifies how it reaches the conclusion that SSIs are not covered by 

the expansive CWA definition of “treatment works” incorporated into CAA 

§ 112(e)(5), how its position is reasonable in light of the integral role SSIs play in 

the management of sewage sludge, or how SSIs could have been built and 

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improved using CWA Title II funds if they are not part of the CWA definition of 

“treatment works.” 

The reason for these failures is apparent: There is no justification for EPA’s 

position. The plain meaning of Congress’ invocation in § 112(e)(5) of the CWA 

definition of POTW, coupled with EPA’s many regulatory pronouncements and 

actions, makes EPA’s current position on §§ 112(e)(5) and 129 clearly contrary to 

the text of the CAA and arbitrary and capricious. Section 112(e)(5) specifically 

compels regulation of POTWs under § 112(d), and nothing in the language of 

§ 129 suggests that SSIs are not to be treated as part of the POTW to be regulated 

under § 112. The legislative history of § 129 is also silent as to SSIs. 

SSIs also cannot be regulated under § 129 because they do not fit within the 

definition of “solid waste incineration unit” under § 129(g)(1). Per § 129(a)(1)(A) 

and (b)(1), EPA must set emission standards “for each category of solid waste 

incineration units.” Section 129(b) commands EPA to establish emission 

guidelines for existing solid waste incineration units. Thus, the definition of solid 

waste incineration unit serves a gate-keeping function – if the unit at issue is a 

solid waste incineration unit, then it is subject to standards under § 129. Section 

129(g)(1) defines the term solid waste incineration unit as “a distinct operating unit 

of any facility which combusts any solid waste material from commercial or 

industrial establishments or the general public (including single and multiple 

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residences, hotels, and motels).”3

 By contrast, sewage sludge is generated in the 

POTW from the treatment of wastewater after several stages of filtering, chemical 

and physical treatment, and dewatering. Thus, the sewage sludge combusted in 

SSIs is generated within the POTW itself, a local government-owned facility, and 

so is not a solid waste material collected “from commercial and industrial 

establishments or the general public” as defined under § 129(g)(1). EPA has itself 

long acknowledged that sewage sludge is generated in the POTW and also 

concluded that these sludges are not solid waste. See, e.g., 55 Fed. Reg. 46354, 

46364 (Nov. 2, 1990) (sludges generated in the POTW are covered under the 

domestic sewage exclusion) (App. H).4

 

Instead of addressing these central issues of statutory interpretation on the 

merits, EPA incorrectly claims that this Court’s decision in Natural Res. Def. 

Council v. EPA, 489 F.3d 1250 (D.C. Cir. 2007) (“NRDC”), “precludes” EPA 

from regulating SSIs under § 112 and that promulgation of the SSI Rule is 

 

3

 The section goes on to create exceptions for certain types of units used for metals 

recovery, energy production and disposal of wood and yard wastes. 

4

 NACWA also contends in its separate challenge to EPA’s rule that defines NonHazardous Secondary Materials That Are Solid Waste, 76 Fed. Reg. 15456 (Mar. 

21, 2011) (“NHSM”), that sewage sludge is excluded from “solid waste” under the 

RCRA domestic sewage exclusion (42 U.S.C. § 6903(27)), and thus SSIs cannot 

be solid waste incineration units for this reason as well. However, the reasons that 

SSIs do not fall under § 129 as set forth in this motion are independent of EPA’s 

NHSM rule. 

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necessary in order “to comply with the Clean Air Act and the court decision in 

NRDC v. EPA.” 76 Fed. Reg. 15383. Based on this view that NRDC is 

controlling, EPA discounts all of its earlier pronouncements regarding regulation 

of SSIs under § 112 as nullified by the NRDC decision. Id. 

However, EPA’s reliance on the NRDC case is clearly erroneous. The 

NRDC decision invalidated EPA’s attempt to carve out new exceptions from the 

definition of “solid waste incineration units” based on energy recovery and other 

criteria that have nothing to do with SSIs. Thus, the decision has no bearing on the 

proper regulation of SSIs. The panel in that case did not address or rule on the 

proper application of § 112(e)(5), nor did it address or rule on the regulation of 

POTWs or SSIs or the issue of whether SSIs must be regulated as part of POTWs 

under § 112(d).5

 NRDC cannot “preclude” EPA from performing its fundamental 

obligation to interpret and apply the CAA properly in regulating SSIs. 

Even if EPA had independently decided that SSIs can be covered by the 

general definition of a solid waste incineration unit, instead of justifying the SSI 

 

5

 EPA’s preamble accurately claims that the NRDC decision rejected EPA’s claim 

of discretion to “create” additional exemptions from regulation under § 129, 

beyond those already contained in § 129(g). See 76 Fed. Reg. 15383. But this 

argument is not at all pertinent to EPA’s obligation to honor the scheme created by 

Congress for SSIs under § 112(e)(5). Indeed, if anything in the spirit of the NRDC

decision is important here, it is this Court’s admonition to EPA to apply the CAA 

as written. 

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Rule on an incorrect reading of NRDC, such an interpretation is not supportable 

for the reasons discussed above. Further, it is axiomatic that the specific direction 

of Congress contained in § 112(e)(5) is controlling over the general provisions of 

§ 129 dealing with solid waste incineration. “However inclusive may be the 

general language of a statute, it will not be held to apply to a matter specifically 

dealt with in another part of the same enactment.” Fourco Glass Co. v. Transmirra 

Prods. Corp., 353 U.S. 222, 228 (1957). 

CAA § 112(e)(5) unambiguously directs EPA to set emission standards for 

SSIs under CAA § 112(d), and this section does not contain language permitting 

EPA discretion to regulate SSIs under § 129. Although Congress under 

§ 112(d)(1) allows EPA to promulgate differing standards for major and area 

sources at POTWs and for differing categories and subcategories of sources at 

POTWs, the Agency does not have authority to set standards under § 129 for 

POTWs or parts of POTWs, including SSIs. Indeed, EPA has previously held the 

very same interpretation of the proper way to regulate SSI. EPA can change its 

mind on policy issues if the Agency develops a reasoned analysis to support the 

change, Motor Vehicle Mfrs. Ass’n v. State Farm Mut., 463 U.S. 29 (1983); 

however, it cannot act contrary to a statutory directive that compels a singular 

outcome, as the CAA does here. 

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However, even if Congress had left some room in § 112(e)(5) for 

interpretation on the issue, EPA’s current position fails under Chevron’s “step 

two” analysis. EPA’s position that it is compelled to regulate SSIs under § 129 is 

not an expression of the Agency’s interpretation of the CAA, but rather an 

(incorrect) reading of this Court’s decision in NRDC. Therefore, EPA’s position is 

not entitled to any administrative deference under Chevron. EPA’s rationale for 

using § 129 is grounded in and so tainted by its incorrect reading of NRDC that the 

Agency has essentially abdicated its role in interpreting the CAA. The Agency’s 

reading of the NRDC decision does not bring to bear any special technical 

expertise, Agency political accountability or Congressionally delegated 

policymaking that justify judicial deference under Chevron. 

Finally, for the several reasons discussed above, EPA’s position is so 

fundamentally at odds with the inclusive definition of “treatment works” under 

Title II of the CWA and EPA’s consistent interpretation of the term as including 

SSIs that it cannot be a permissible reading of the use of the same term within the 

context of § 112(e)(5). 

B. The SSI Rule Emission Standards are Based Upon Data from an 

Impermissibly Small Number of Sources, and EPA Failed to Use 

Representative Data to Set the Standards. 

Assuming arguendo that SSIs may be regulated under CAA § 129, the 

standards EPA has created are unlawful because (1) the database EPA used to set 

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the maximum achievable control technology (“MACT”) floors does not contain 

data from the statutorily mandated number of SSIs, and (2) EPA failed to consider 

and use available data showing the inherent variability of sewage sludge 

combusted in the best performing SSIs. 

1. EPA’s SSI Database Is Inadequate. 

In performing MACT floor calculations, § 129(a)(2) provides that the floor 

for existing sources cannot be less stringent than “the average emission limitation 

achieved by the best performing 12 percent of units in the category.” Unlike the 

MACT floor calculation provision in § 112(d), § 129(a)(2) does not permit the 

Agency to use a smaller number of sources in the calculation where data from the 

best performing 12 percent are not available. 

The SSI Rule contains two subcategories of sources – fluidized bed 

incinerators (“FBIs”) and multiple hearth incinerators (“MHIs”) – based on the 

design of the incinerator technology. Because EPA identified 60 existing FBIs and 

144 existing MHIs, § 129(a)(2) requires the Agency to derive the floor based on 

data from eight FBIs and 18 MHIs. See “Revised MACT Floor Analysis for the 

Sewage Sludge Incinerator Source Category,” EPA Docket No. EPA-HQ-OAR2009-0559-01571 (Jan. 2011) (“Revised MACT Floor Memo”) at 6 (App. I). 

Instead, EPA set the MACT floor standards for FBIs based on data from as few as 

four (6.7 percent) and no more than six (10 percent) of the 60 FBIs identified by 

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EPA. EPA set the floors for MHIs based on data from less than 4 percent of the 

144 units in that subcategory.6

 

By EPA’s own admission, § 129 does not permit the Agency to stop short of 

collecting sufficient emissions information from the required number of SSIs. As 

EPA acknowledges: 

While Congress adopted identical language describing the MACT floor 

calculation in section 129(a)(2) as it did in section 112(d)(3), the latter 

section includes a provision stating that the floor for existing sources cannot 

be less stringent than “the average emission limitation achieved by the best 

performing 12 percent of the existing sources (for which the Administrator 

has emissions information)[.]” Section 129, however, simply states that the 

existing source floor cannot be less stringent than the average emission 

limitation achieved by the best performing 12 percent of the existing sources 

in the category. Therefore, while EPA believes Congress intended for the 

MACT floor calculation under each section of the Act to be the same, this 

difference in the text of the two provisions requires us to establish the 

MACT floor for section 129 source categories based on the best 

performing 12 percent of sources in the category. Because EPA does 

not have that data at this time, the statistical technique described below 

is the only manner in which we can establish the existing source floor on 

that basis. 

See Revised MACT Floor Memo at 8 (emphasis added). Statistical manipulations 

of an undersized database do not meet the mandate of § 129(a)(2) to base the 

emission standards on 12 percent of “units” in the category. 

 

6

 EPA’s SSI count also appears erroneous. Commenters pointed out that a 2009 

survey counted 234 active SSIs. EPA did not confirm its initial inventory of SSIs. 

The consequence of undercounting 30 SSIs means that EPA’s MACT floor 

database is an additional four SSIs short of the statutory minimum. 

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21 

Furthermore, this is not a case where EPA tried and failed to collect the 

requisite data. From the outset, EPA consciously decided not to obtain data from 

the required minimum number of SSIs. By limiting its information collection to 

only nine of the roughly 118 POTWs with SSIs, EPA circumvented the Paperwork 

Reduction Act, 44 U.S.C. § 3501, and Office of Management and Budget review 

and thereby gained several weeks under its District Court scheduling order. See P. 

Tsirigotis Decl. ¶ 43, Ex. 6 to Enclosure A of NACWA Petition (Ex. 1). By 

cutting corners, EPA guaranteed that it would not collect adequate emissions data 

from the requisite number of SSIs. Even after collecting additional data from state 

agencies (after proposal), EPA had data from only six FBIs and some of those units 

were not tested for all of the CAA § 129 pollutants. The MHI database also lacked 

data from 12 percent of the MHI units for seven of the nine pollutants to be 

regulated. Thus, even assuming the improbable – that all of the data EPA collected 

came from the top performing 12 percent of units within the subcategory – EPA’s 

database still falls far short of generating the minimum emissions information 

necessary to set the MACT floors. 

2. EPA Failed to Use Other Available Data Demonstrating 

Significant Variability in Emission Characteristics Among 

POTWs and Within a POTW Over Time. 

EPA’s rush through rulemaking also resulted in the Agency disregarding 

data provided by NACWA and other commenters that would have helped fill some 

USCA Case #11-1131 Document #1328708 Filed: 09/09/2011 Page 21 of 36
22 

of these data gaps if the Agency had taken the time to evaluate the data and made 

reasonable requests for supporting information. 

EPA had data – particularly data showing the concentration of metals and 

other pollutants in sludge combusted in SSIs for all POTWs under the Part 503 

regulations – available to it prior to publishing the proposed SSI rule. Because 

these data show the high variability of emissions of these pollutants from SSIs, 

commenters urged EPA to use the data to determine the emission rates achieved by 

the best performing sources under the full range of operating conditions. However, 

perhaps pressed for time under the District Court’s scheduling order, EPA ignored 

these data and ended up relying on the original 17 stack tests from the nine 

informational collection request POTWs. As emphasized in the comments, these 

data do not represent the emission profiles of the large population of SSIs – or even 

the profiles of the tested units themselves over time – because they do not account 

for geographic variability in sludge characteristics among POTWs nor do they 

account for seasonal and daily variability of sludge characteristics within a POTW. 

EPA explained its refusal to use the data in its files and submitted by 

commenters by claiming that it “did not receive adequate sampling data from the 

best performing sources” and, thus, concluded that “there is not enough 

information to determine whether it would be appropriate to incorporate variability 

in sludge feed into the rule.” 76 Fed. Reg. 15391. 

USCA Case #11-1131 Document #1328708 Filed: 09/09/2011 Page 22 of 36
23 

This claim is patently untrue and highlights the Agency’s refusal to abide by 

the CAA’s substantive mandates and rulemaking procedures. EPA had available 

to it years of sludge metals concentration data from all of the POTWs it contends 

are the best performing sources, from as recently as late 2010 and dating back to 

the early 1990s. Under the Part 503 regulations, all POTWs are required to collect 

and submit these data directly to EPA or to the state permitting authorities in some 

states that have assumed primacy for the Part 503 program. There is no indication 

in the preamble or the rulemaking docket that EPA tried to retrieve these data from 

its files or contacted a single commenter to obtain new copies of the data.7

 

As with the Part 503 data, EPA also refused to consider stack test data 

submitted by commenters who provided test results demonstrating that the 

proposed emission limits were not supported by sound data. EPA did not use these 

data simply because commenters did not include a complete stack test report in 

their comment submission. Id. at 15387. Again, there is nothing in the record to 

suggest that EPA tried to obtain the backup report information so EPA could verify 

the data that was submitted. Moreover, some of the nine POTWs targeted by 

 

7

 NACWA’s Petition (Ex. 1) requested that EPA revisit its failure to consider the 

Part 503 and other data. NACWA included with its Petition a summary and 

analysis of monthly Part 503 data from January 2005 to as late as December 2010 

from 25 POTWs using SSIs, including 15 POTWs operating SSIs that EPA 

considers to be among the best performing units. 

USCA Case #11-1131 Document #1328708 Filed: 09/09/2011 Page 23 of 36
24 

EPA’s information collection request submitted their stack test results using EPA’s 

electronic reporting system, and thus never submitted their stack test reports. Yet 

EPA relies upon these test data – and only these test data – without independently 

reviewing the test reports to verify the accuracy of the information submitted. It is 

clearly arbitrary for the Agency to use only the data it wants and to disregard 

contrasting information by selectively applying more stringent data validation 

requirements. 

EPA’s failure to use the Part 503 data and test data submitted by 

commenters is a violation not only of the database requirements established by 

§ 129 for making MACT floor determinations, as acknowledged by EPA, but also 

of the fundamental requirement underlying § 129 for rational decisionmaking. See

CAA § 307(d)(9), 42 U.S.C. § 7607(d)(9); Cement Kiln Recycling Coal. v. EPA, 

255 F.3d 855, 861-62 (D.C. Cir. 2001). See generally NRDC v. EPA, 194 F.3d 

130, 136 (D.C. Cir. 1999). 

IV. ABSENT A STAY, THE SSI RULE WILL CAUSE SUBSTANTIAL 

AND IRREPARABLE HARM TO THE MUNICIPALITIES WHO 

RELY UPON INCINERATION AS AN ESSENTIAL PUBLIC 

SERVICE. 

A stay is necessary to ensure a complete correction of the legal defects in the 

SSI rulemaking and to avoid the potential for irreversible impacts to the 

environment and on the municipalities that rely upon sewage sludge incineration. 

USCA Case #11-1131 Document #1328708 Filed: 09/09/2011 Page 24 of 36
25 

First, there is a substantial risk that the SSI Rule will result in significant 

environmental harm. Because several of the emission limitations in the SSI Rule 

are so stringent, and EPA has so far failed to account for the inherent variability of 

sludge characteristics, some municipalities – even those that operate SSIs EPA 

deemed to be among the “best performers” – predict that no viable control 

technologies exist that will allow them to operate in compliance with the rule. See

N. LeBlanc Decl. ¶¶ 5-6 (NOx control technologies never demonstrated for SSIs) 

(Ex. 3); P. Ball Decl. ¶ 7 (no reliable method for controlling mercury) (Ex. 5); R. 

Lyons Decl. ¶ 6 (activated carbon absorption not shown to work on SSIs) (Ex. 6). 

Municipalities also predict that they do not have the physical space and other 

necessary facilities to retrofit their SSIs to comply with the new standards. See N. 

LeBlanc Decl. ¶ 7 (Ex. 3); P. Ball Decl. ¶ 7 (Ex. 5). 

Municipalities are already being forced to make immediate commitments 

either to go down the uncertain path of retrofitting their SSIs or abandon 

incineration and start the conversion to landfilling. For example, New York State 

regulators set June 30, 2011 as the date by which POTWs were to certify whether 

they will retrofit their SSIs to comply with the SSI Rule or commit to permanently 

shut down their SSIs by March 21, 2012. See Supplement to Petition (Ex. 2); R. 

Lyons Decl. ¶ 9 (Ex. 6). The Commonwealth of Virginia is likewise moving 

quickly to implement the SSI Rule, which is forcing the Hampton Roads Sanitation 

USCA Case #11-1131 Document #1328708 Filed: 09/09/2011 Page 25 of 36
26 

District to make a decision on shutting down four of its SSIs. See N. LeBlanc 

Decl. ¶ 8 (loss of these SSIs “will potentially result in greater landfilling burdens 

and increased costs” and also increase pollution from truck tailpipe emissions and 

from landfill emissions) (Ex. 3). Making such significant changes to sludge 

management at a POTW takes many months to implement, so the point of no 

return is now for these local governments. There is no prospect of a ruling on the 

merits in these cases before these and many other POTWs are forced to make that 

decision. 

The SSI Rule is also having an immediate chilling effect on environmentally 

beneficial projects. For example, Albany predicts that the SSI Rule will cause it 

and other POTWs to avoid undertaking energy recovery and other beneficial 

projects because the projects may trigger expensive and possibly unachievable 

regulation. See R. Lyons Decl. ¶¶ 5-7 (Ex. 6). The City of Cedar Rapids is 

evaluating replacing its flood damaged older MHI with a new FBI, but the timing 

of the effective date of the SSI Rule may postpone or eliminate such an 

environmentally beneficial upgrade. See P. Ball Decl. ¶ 5. 

The environmental impacts of switching away from incineration are 

practically irreversible and are magnified precisely because landfilling is not an 

environmentally or economically attractive option for those communities who rely 

on incineration. Communities that are forced to switch are extremely unlikely to 

USCA Case #11-1131 Document #1328708 Filed: 09/09/2011 Page 26 of 36
27 

switch back if EPA later promulgates a defensible SSI rule because they will have 

eliminated their incineration systems and invested millions in new treatment 

equipment, sludge storage, and truck loading facilities. See N. LeBlanc Decl. ¶ 9 

(capital costs of $200 million and net present value of total costs equals $546 

million) (Ex. 3). 

EPA never gave weight to the environmental impacts that would cascade 

from municipalities being forced to switch to landfilling. However, these impacts 

would be serious and many of them permanent. Increased diesel exhaust emissions 

from literally thousands of new truck trips travelling, in some cases, more than 260 

miles round trip to the nearest landfill will greatly exceed emissions from 

incineration. See NEORSD Decl. ¶ 12 (Ex. 4); P. Ball Decl. ¶ 8 (170 miles round 

trip to nearest landfill) (Ex. 5). Emissions from trucks and landfills are far more 

difficult and costly to monitor and control. Landfilling sludge increases methane 

emissions (a powerful greenhouse gas) from the decomposition of organic 

materials, which does not occur during incineration. Landfilling also increases 

energy impacts due to increased consumption of fossil fuel for trucking, and other 

impacts to communities due to additional traffic congestion. Due to the combined 

effect of increased emissions from trucking and from landfill emissions, NEORSD 

estimates that the “carbon footprint” resulting from the SSI Rule forcing a switch 

to landfilling would be more than 35,000 metric tons CO2 equivalent greater than 

USCA Case #11-1131 Document #1328708 Filed: 09/09/2011 Page 27 of 36
28 

their current energy recovery project. See NEORSD Decl. ¶¶ 12-13 (Ex. 4). 

Absent a stay, communities that are forced into landfilling would be irretrievably 

committed to less environmentally beneficial sewage sludge management options. 

Second, absent a stay, EPA’s interpretation of its standard-setting authority 

under the CAA will operate to cause additional irreparable and unjustifiable harm 

to municipalities who have no practical alternative to incineration. Ironically, this 

harm will occur even if this Court ultimately agrees that the SSI Rule is legally 

flawed. When EPA published the SSI Rule, it also published another set of CAA 

§ 129 standards for commercial and industrial solid waste incineration units 

(“CISWI”). See 76 Fed. Reg. 15704. In the preamble to the CISWI rule, EPA 

responded to comments on the so-called “MACT-on-MACT” issue – that is, 

whether EPA may lawfully include in newly promulgated MACT floor 

calculations the emission levels that incinerators were forced to achieve by virtue 

of unlawful predecessor MACT standards that this Court had remanded to EPA. In 

the CISWI preamble, EPA contended that it must use the MACT-on-MACT 

approach by virtue of the literal language of CAA § 129. Id. at 15721-22. 

Although Movants contend that EPA’s legal position is erroneous, that position 

nonetheless sets the stage for a potentially profound and irreversible impact on 

POTWs with SSIs. If the SSI Rule is not stayed, inevitably some POTWs will 

install new control technologies and equipment in an effort to comply with the SSI 

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29 

Rule. The effect will be to lower emissions to some degree and, thereby, to lower 

emission rates of SSIs selected as the best performing units and used to set the 

future MACT floor. If ultimately the Court vacates and remands the SSI Rule back 

to EPA, then, according to EPA’s interpretation of § 129, the performance of these 

SSIs that installed new controls during the litigation will be part of the MACT 

floor database when it comes time to re-establish the MACT standards. The fact 

that these controls were added solely due to the previous unlawful standards is 

apparently irrelevant in the Agency’s view of § 129. 

To illustrate the magnitude of this harm, it is possible that new and modified 

units that were forced to install controls immediately upon startup in order to meet 

illegal new source standards could become the factual predicate for setting the 

floors for existing sources in a future SSI rulemaking. There is an obvious 

irreversible impact arising from the ratcheting down of future MACT standards by 

virtue of a prior unlawful rulemaking. A stay avoids this harm by postponing the 

compliance date and thereby removing the immediate need to install new controls 

required by an illegal rule. 

Third, and finally, a large number of municipalities will suffer significant 

economic harm unless a stay is granted, and there is no prospect of compensatory 

relief for the costs these communities and their rate payers are incurring. 

Retrofitting SSIs with the necessary add-on control equipment is a costly and timeUSCA Case #11-1131 Document #1328708 Filed: 09/09/2011 Page 29 of 36
30 

consuming process. Even by EPA’s own estimation, dozens of municipalities will 

be forced to start spending public funds and committing other scarce public 

resources to planning, engineering and procurement of additional building space, 

add-on control devices and other equipment in order to try to meet the present 

emission standards. 

New sources must comply with the SSI Rule upon startup. Existing sources 

may be subject to the rule as early as September 2013, depending upon when states 

adopt regulations implementing the rule. Depending upon how much an existing 

unit has spent in upgrading or improving its SSI prior to the effective date of the 

rule, the existing unit may be subject to the new source standards should it need to 

make additional improvements or changes in operation to the unit after the 

effective date. Municipalities, as governmental entities, face the added challenge 

of longer-term financial planning requirements and uncertain financing options as 

state and local budgets and jobs are cut in the current economic environment. See

R. Lyons Decl. ¶ 9 (ramifications “can be devastating”) (Ex. 6). Many 

municipalities have already been forced to incur irretrievable costs for planning 

and procurement activities in order to identify compliance gaps, to locate capital 

project funding sources, to acquire the necessary engineering services and 

equipment, and to complete the major infrastructure and control equipment 

installations required for many SSIs. These impacts have already started occurring 

USCA Case #11-1131 Document #1328708 Filed: 09/09/2011 Page 30 of 36
31 

and will increase in magnitude without a stay. See NEORSD Decl. ¶ 15 (Ex. 4); R. 

Lyons Decl. ¶ 9 (Ex. 6). 

V. A STAY WILL NOT HARM ANY OTHER PARTY. 

There is no foreseeable prospect that others will be harmed by staying the 

SSI Rule. Emissions reducing regulations are already in place under the Part 503 

program – and will continue to remain in place – that control emissions from SSIs 

in order to protect public health. 

Since 1993, SSIs have been subject to a comprehensive regulatory program 

for reducing the potential environmental risks of sewage sludge pursuant to CWA 

§ 405 and EPA’s implementing regulations set forth in 40 C.F.R. Part 503. Section 

405(d) of the CWA required EPA to establish numeric limits and management 

practices that protect public health and the environment from the adverse effects of 

toxic pollutants in sewage sludge. Section 405(e) prohibits any person from 

disposing of sewage sludge from a POTW or other treatment works treating 

domestic sewage through any use or disposal practice for which regulations have 

been established pursuant to § 405, except in compliance with the Part 503 

regulations. 

In the Part 503 regulations, EPA has identified the pollutants in sewage 

sludge that may adversely affect public health or the environment and has specified 

the management practices for the utilization and disposal of sewage sludge that are 

USCA Case #11-1131 Document #1328708 Filed: 09/09/2011 Page 31 of 36
32 

protective of public health and the environment. For SSIs the Part 503 regulations 

require, among other things: 

(1) risk-based emission limits for emissions of arsenic, cadmium, chromium, 

lead and nickel; 

(2) compliance with the CAA NESHAP for mercury and beryllium; 

(3) operational technology-based emission limits for total hydrocarbons or an 

alternative emission limit for carbon monoxide; and 

(4) numerous management practices and monitoring, recordkeeping and 

reporting requirements. 

See 40 C.F.R. Part 503, Subpart E. The Part 503 emission limits and management 

practices were promulgated by EPA based on studies of the potential risks to 

human health and the environment which could be posed by the incineration of 

sewage sludge. The regulation of SSIs under the Part 503 regulations is through 

risk-based standards that were developed by EPA to protect human health and the 

environment from any reasonably anticipated adverse effects from pollutants that 

may be present in sewage sludge. As a result, SSIs can clearly demonstrate that 

the emissions from their operations are not adversely impacting human health and 

the environment by demonstrating compliance with the Part 503 requirements. 

Additionally, since 1975, EPA has imposed, pursuant to the CAA, 

NESHAPs for mercury and beryllium emissions that apply to certain SSIs. See 40 

C.F.R. Part 61, Subparts E and C. The mercury NESHAP, which applies to any 

source that incinerates sludges from wastewater treatment plants, imposes emission 

USCA Case #11-1131 Document #1328708 Filed: 09/09/2011 Page 32 of 36
33 

limits for mercury, as well as stack testing, sampling and monitoring requirements. 

The beryllium NESHAP, which applies to any incinerator that processes 

beryllium-containing waste, imposes emission limits for beryllium, as well as 

sampling requirements. These NESHAPs are expressly incorporated into the Part 

503 requirements applicable to SSIs. 

Thus, emissions from SSIs are already regulated by other congressionallymandated, comprehensive regulations that, in EPA’s view, are adequately 

protective of human health and the environment. These regulations would be 

unaffected by stay of the SSI Rule. Therefore, staying the SSI Rule during this 

litigation will not result in any harm to public health or the environment. 

Although the emission standards in the SSI Rule are significantly more 

stringent than many of the Part 503 standards, the SSI Rule standards are 

technology-based standards that (are supposed to) reflect the emission performance 

achieved by the best performing units in each category or subcategory. EPA does 

not base the SSI Rule on any finding or demonstration that additional control of 

emissions from SSI is necessary to protect public health. Nor could it, given that 

the Part 503 regulations already ensure such protection. 

Finally, EPA cannot seriously contend that it (or any other party) would be 

harmed by a stay of demonstrably unlawful regulations that impose costly and, in 

some cases, unachievable requirements on municipalities which the Agency has no 

USCA Case #11-1131 Document #1328708 Filed: 09/09/2011 Page 33 of 36
34 

authority to regulate as it wishes under the CAA. To continue implementing the 

SSI Rule during this Court’s review would amount to administrative fiat, upsetting 

the more flexible regulatory scheme that Congress mandated for SSIs under the 

CWA. 

VI. A STAY WILL ADVANCE THE PUBLIC INTEREST. 

A stay will serve the public interest for at least two reasons. First, a stay 

will allow this appeal to proceed while maintaining the regulatory and economic 

status quo ante – i.e., the conditions existing prior to EPA’s adoption of unlawful 

requirements in the SSI Rule. See, e.g., Cobell v. Kempthorne, 455 F.3d 301, 314 

(D.C. Cir. 2006). The public interest is best served by preserving the viability of 

the essential public services that these POTWs provide and preventing wasteful use 

of taxpayer resources for less environmentally beneficial sewage sludge 

management alternatives. 

Second, granting relief from immediate implementation of the rule will help 

preserve meaningful judicial review and ensure the Court’s power to fashion an 

appropriate remedy to unlawful agency action. A stay is “not simply ‘[a]n historic 

procedure for preserving rights during the pendency of an appeal,’ but also a 

means of ensuring that appellate courts can responsibly fulfill their role in the 

judicial process.” Nken v. Holder, 129 S. Ct. 1749, 1757 (2009). 

USCA Case #11-1131 Document #1328708 Filed: 09/09/2011 Page 34 of 36
35 

CONCLUSION

For the foregoing reasons, Movants respectfully request that the Court stay 

the effectiveness and implementation of the SSI Rule until final resolution of their 

petitions for review before this Court. 

Dated: September 9, 2011 

Of counsel: 

Nathan Gardner-Andrews 

General Counsel 

NATIONAL ASSOCIATION OF CLEAN 

WATER AGENCIES

1816 Jefferson Place, NW 

Washington, DC 20036-2505 

(202) 833-3692 

ngardner-andrews@nacwa.org

Respectfully submitted, 

 /s/ Jeffrey A. Knight .

Jeffrey A. Knight 

PILLSBURY WINTHROP SHAW PITTMAN LLP 

2300 N Street, NW 

Washington, DC 20037-1128 

(202) 663-9152 

jeffrey.knight@pillsburylaw.com

USCA Case #11-1131 Document #1328708 Filed: 09/09/2011 Page 35 of 36
CERTIFICATE OF SERVICE

I hereby certify that on this 9th day of September 2011 copies of the 

foregoing Emergency Joint Motion for Stay of the Sewage Sludge Incineration 

Rule were served electronically through the Court’s CM/ECF system on all 

registered counsel. 

 /s/ Jeffrey A. Knight .

PILLSBURY WINTHROP SHAW PITTMAN LLP 

2300 N Street, NW 

Washington, DC 20037-1128 

(202) 663-9152 

jeffrey.knight@pillsburylaw.com

USCA Case #11-1131 Document #1328708 Filed: 09/09/2011 Page 36 of 36