### ARGUMNT HELD FEBRUARY 23, 2007 IN THE UNTED STATES COURT OF APPEALS 

### FOR THE DISTRICT OF COLUMIA CIRCUIT ) 

### NATUR RESOURCES DEFENSE COUNCIL,)



# et aI., )) ) ) ) ) ) ) 

### ) , ) ) 

### Petitioners,

v. 

### C.A. No. 04-1385 (and consolidated cases) 

### U.S. ENVIRONMNTAL PROTECTION AGENCY,

### Respondent.



### REPLY IN SUPPORT OF

MOTION FOR VOLUNTARY PARTIAL V ACA TUR AND REMAND 

### AND OPPOSITION TO PETITIONERS' CROSS-MOTION 

### TO ESTABLISH DEADLINE TO GOVERN REMAND Respondent United States Environmental Protection Agency ("EP A") offers 

### the following reply in support of its motion for voluntary partial vacatur and remand and opposition to Petitioners' Cross-Motion for a Deadline to Govern

Remand. Petitioners 

### 'do not oppose a voluntary remand of the MACT standards, 

### nor do they oppose EPA's request that the Court resolve the other issues in the

case. However, Petitioners oppose EPA's request that 

### the standards be vacated,

### instead demanding a remand without vacatur, and also requesting that the Court

require EP A to complete the remand process within 2 years. 

### As stated in EPA's motion, vacatur is consistent with this Court's precedents. The equitable considerations raised in Petitioners' Opposition can 

### more appropriately be addressed in the context of a motion to stay the mandate 

### after the Court has decided all of the pending issues in the case. Petitioners' cross-motion to impose a deadline on EP A to respond to the remand is essentially 

### a petition for a writ of mandamus, and Petitioners have not justified the imposition

of

### that extraordinary remedy. Moreover, the time needed to respond to the mandate cannot be determined until the Court resolves the remaining issues 

### pending in the case. Thus, if the Court believes that some deadline may be appropriate, Petitioners' motion should be dismissed without prejudice to refiling after the Court resolves the remaining issues.

I. Vacatur Of 

### The Standards And Compliance Date Is Consistent 

### With This Court's Precedents In determining whether vacatur or remand without vacatur is appropriate,

this Court considers two factors: "the seriousness of 

### the order's deficiencies (and

thus the extent of doubt whether the agency chose correctly) and the disruptive

consequences of an interim change that may itself be changed." See

2Allied-SignaL. Inc. v. United States Nuclear Regulatory Comm'n, 988 F.2d 146,



### 150-51 (D.C. Cir. 1993). Petitioners do not address the first factor, except to note that, in some cases, the Court will remand without vacatur even if it determines that an Agency action is unlawfuL. Opp. at 5. 

### EP A recognizes that the Court has discretion to remand an agency action 

### without vacatur, even where the Court finds serious deficiencies in the rule, if it 

### finds that equitable factors weigh in favor of doing so. In this case, however,

vacatur is consistent with this Court's precedents because of the seriousness of 

### the 

### deficiencies in the MACT emissions standards in light of the Court's recent

decision in 

### Sierra Club v. EPA, No. 03-1202 (D.C. Cir. March 13,2007). As 

### explained in our motion for partial vacatur and remand, the MACT standards in 

### the Boilers rule are based on substantially the same methodology that this court 

### found unacceptable in Sierra Club. Thus, this is not a case where it is likely that the Agency will be able to keep all of the same standards w,ith further explanation 

### or support. Where a rule is unlawful, the Court typically vacates the rule, as it did 

### in Sierra Club. See also Allied-Signal, 988 F .2d at 150-51. The equitable factors regarding the potential disruptive consequences of an interim change identified by Petitioners can be more effectively addressed in the context of a motion to SÚiy the mandate after the Court has decided all of the

3

### issues in the case. The Court has suggested such an approach on previous



### occasions,~, Honeywell Intl. Inc. v. EPA, 374 F.3d 1363, 1375 (D.C. Cir. 2004) (Randolph, J., concurring); Cement Kiln Recycling Coalition v. EPA, 255 

### F.3d 855, 872 (D.C. Cir. 2001). At that stage in the proceeding, the parties will 

### know how the Court has ruled on all of the pending issues in the case. Those rulings wil allow the parties more effectively to evaluate the impact of immediate vacatur versus allowing the standards to remain in place pending remand. 

### Furthermore, the Court will be able then to "act with its eyes open and will have 

### the information needed to assess the consequences of granting or denying a stay." Honeywell, 374 F.3d at 1375. 

### This is particularly so in this case, where the Intervenors representing the regulated industry parties filed a response to EPA's motion that took no specific 

### position with respect to the disruptiveness of the interim relief while reserving the prerogative to address these matters in a motion to stay the mandate. Based on 

### information available at the time of its motion for partial vacatur, EP A was 

### concerned that greater disruption would result from maintaining the requirement that existing sources comply with the emissions limitations by September 2007

and 

### that newly-constructed sources comply upon startup. While Petitioners assert

that vacatur would be more disruptive due to the number of 

### new sources already in

4

### compliance with the standards and the fact that existing sources have already made



### the capital investments necessary to comply, they cite no evidence to support their 

### assertion. This issue can be more effectively addressed by both the parties and the Court after the Court resolves the remaining issues in the case and the parties are

able to evaluate the potential impact of 

### vacatur. 

### Furthermore, the environmental impacts assòciated with vacatur are less severe than supposed by Petitioners because of the requirement that the MACT standards be incorporated into the operating permits required under Title V of the 

### Clean Air Act, 42 U.S.C. § 7661a. Facilities that are subject to the Boiler standards because they have commenced operations since the rule was 

### promulgated should already have the emission standards incorporated into their operating permits. These requirements will remain in their permits, even if the

standards are vacated, unless they 

### are removed by State permitting authorities. 

### Thus, these facilities will be subject to the standards in the Rule even if it is 

### vacated. While it is true that these permits could be modified, these facilities

would be subject to the requirements of 

### Clean Air Act section 1120). EP A recognizes that vacatur of the standards will trigger the requirements

of

### Clean Air Act sections 1 12(g) for new sources and 1120) for existing sources. 

### The entities that would have to meet these requirements, i.e., the regulated entities

5

### represented by Industry Int~rvenors, have not opposed EP A's motion for vacatur,



### but have reserved the right to ask for further relief after the Court resolves all 

### issues in the case. Because of the seriousness of the legal deficiencies of the MACT emission standards and the fact that the equitable issues raised in Petitioners' Opposition can be more appropriately addressed in the context of a motion to stay the mandate, EP A's motion for partial vacatur should be granted.

II. There Is No Basis For The Court To Establish A Deadline For 

### EP A To Complete The Remand Petitioners' cross-motion to establish a deadline for EP A to complete its

remand is, in essence, a petition for mandamus to compel EP A to act. 

### Petitioners 

### have not made the showing necessary to justify such an Order. This Court has repeatedly recognized that a writ of mandamus is "an extraordinary remedy" that 

### should be issued only in "extràordinary circumstances." Bluewater Network, 234 F.3d at 1316; In re International Chemical Workers Union, 958 F.2d 1144, 1149 

### (D.C. Cir. 1992) ("in extraordinary circumstances, this court will review claims of 

### unreasonable agency delay"). In this case Petitioners seek mandamus to compel EPA to comply with the Court's yet-to-be-issued mandate. However, in such

circumstances the Court has found mandamus justified only where the agency has 

### acted inconsistently with the Court's opinion, see Atlantic City Electric Co. v.

6

### FERC, 329 F.3d 856 (D.C. Cir. 2003); Northern States Power Co. v. Dept. of

Energy, 128 F.3d 754 (D.C. Cir. 1997), and Office of Consumers' Counsel v. 

### FERC, 826 F.2d 1136 (D.C. Cir. 1987), or where the agency has unreasonably delayed responding to the remand, see Potomac Electric Power Co. v. ICC, 702

F.2d 1026 (D.C. Cir. 1983) (delay of five years warrants issuance of 

### mandamus). 

### Nothing in this case justifies such a remedy. The Court has not yet even remanded the rule to EP A, and thus EP A clearly has not acted inconsistently with 

### the Court's opinion. Nor is there any basis for the Court simply to assume that EP A will unreasonably delay its response to the remand. Although EP A missed

the original statutory deadline for the Boilers rule, EP A met the schedule established by Consent Decree. Sierra Club v. Whitman, 1:01 CVO 1537 (Dist. Ct. 

### D.C., May 22,2003); 69 Fed. Reg. 55218, 55252 (Sept. 13,2004) (signed by Administrator on Feb. 26, 2004). 

### In none of the cases cited by Petitioners did the Court impose a deadline based simply on unsubstantiated speculation that EP A would unreasonably delay 

### after remand. Moreover, in each case the amount of delay was far more egregious

than anything present in this case. In one case, EP A missed the original statutory 

### deadline and also failed to comply with a court-ordered schedule. Environmental 

### Defense Fund v. EPA, 852, F.2d 1316,1331 (D.C. Cir. 1988). In the other case,

7

### the time taken by the Agency exceeded the amount provided by the statute by



### more than 12-fold. Sierra Club v. EPA,719 F.2d 436,469-70 (D.C. Cir. 1983). In addition, the two-year time frame Congress established for EP A to

promulgate section 112 standards for the first 40 categories of 

### major sources is not dispositive as to the amount of time necessary for EP A to complete action on 

### remand for this rule. First, when Congress established the two year deadline for those categories it knew that the rulemaking to address them was already well underway. Conference Report, No. 101-952, at 338 (1990), reprinted in 1 A

Legislative History of the Clean Air Act Amendments of 1990, at 1788. For other 

### source categories, Congress allowed longer deadlines. The Act establishes a

four-year deadline for 25 percent of 

### the listed categories, a seven-year deadline for an additional 25-percent of listed categories, and a ten-year deadline to complete 

### standards for all the remaining categories. 42 U.S.C. 7412(e)(1). Thus, while the statute directs EP A to complete standards for the first 40 categories in two years, 

### Congress plainly contemplated that some categories might take longer and provided EP A the discretion to determine which categories could be completed in two years and which categories would require more time to address. Thus, in 

### contrast to the EDF and Sierra Club cases, Petitioners can point to no specific

8

### congressional finding that EP A could promulgate rules for industrial, commercial,



### and institutional boilers and process heaters within 2 years. Furthermore, EP A currently has a considerable number of competing 

### obligations under Clean Air Act section 1 12 that did not exist at the time the

provision was 

### enacted in 1990. The Act requires that already promulgated emission standards be reviewed no less often than every eight years to determine if 

### "developments in practices, processes, and control technologies" require a change 

### in the standard. 42 U.S.C. § 7412(d)(6). In addition, the statute requires EPA to conduct a review eight years after promulgation of the MACT standards to 

### determine if additional requirements are necessary to protect public health with an ample margin of safety and to prevent adverse environmental effects. Id.

§ 7412(f)(2). The Agency is currently performing many of 

### these reviews, and the appropriate time for EP A to respond to the remand in this case must take into 

### account these additional responsibilities that the Agency did not have when Congress set the two-year deadline for the initial 40 categories. 

### Moreover, EPA cannot effectively respond to Petitioners' argument that two 

### years is an appropriate schedule until the Court resolves the remaining issues in 

### the case, including Petitioners' consolidated challenge to EPA's definition ofa commercial and industrial solid waste incinerator under section 129 of the Act.

9

### Until the Court rules on those issues, which will have significant impacts on

EPA's determination of 

### the MACT standards, the uncertainty about the proper scope of the boiler category on remand prevents EP A from providing a reasoned 

### estimate of how much time it will take to determine which facilities are included within the boiler category, to identify whether EP A needs additional data for those 

### sources remaining the category, and then to gather the necessary data and 

### determine the appropriate standard for such sources. In addition, dueto the

Municipal Petitioners', 

### challenge, EPA is currently reconsidering whether it is necessary to convene a panel under the Regulatory Flexibility Act, 5 U.S.C.

§§ 601-12, and this determination may also be affected by the scope of 

### the 

### category on remand. . If a panel is required, that would likely add several months to

the time required to promulgate a rule. Accordingly, if 

### the Court believes that imposition of a deadline on EP A might be appropriate, Petitioners' motion should 

### be denied with leave to renew it after the Court resolves the remaining issues in

the case. 

### CONCLUSION EP A's motion for partial remand and vacatur should be granted and 

### Petitioners' cross-motion to impose a deadline for EPA to respond to the Court's remand should be denied.

10Respectfully submitted, 

### MATTHEW J. McKEOWN 

# ~szeYGenerai

NORMN L. RAVE, JR. 

## PAMLA TONGLAO 

## CA THERI WANNAMR Environmental Defense Section Environment & Natural Resources Division United States Department of Justice P.O. Box 23986 

### Washington, D.C. 20026-3986 (202) 616-7568 

### Counsel for Respondent Of Counsel: 

### BRIAN L. DOSTER 

### Office of General Counsel (2344-A) 

### U.S. Environmental Protection Agency 1200 Pennsylvania Ave., NW 

### Washington, DC 20460
May 4, 2007

11CERTIFICATE OF SERVICE

I hereby certify that on this 4th day of May, 2007, I caused a true and correct copy of the foregoing Reply in Support of Motion for Voluntar Parial Vacatur and Remand and Opposition to Petitioners' Cross-Motion to Establish Deadline to Govern Remand to be served by first-class mail on the counsel listed below: James S. Pew Earhjustice 1625 Massachusetts Ave., NW Suite 702 Washington, DC 20036-2212 (202) 667-4500 Counsel for Petitioners NRDC, Sierra Club, and Environmental Integrity Project in 04- 1386,05-1302, and 06-1065, and Counsel for Petitioners Louisiana Environmental Action Network and Sierra Club in 05-1434 Amanda Leiter John D. Walke Natual Resources Defense Council 1200 New York Ave., NW Suite 400 Washington, DC 20005 (202) 289-2426 Counsel for Petitioner NRDC in 04-1386, 05-1302 and 06-1065 Allen Kacenjar Douglas McWiliams Squire, Sanders and Dempsey LLP 4900 Key Tower 127 Public Square Cleveland, Ohio 44114-1304 (216) 479-8500 Counsel for Petitioners in 04-1386 and Intervenor-Respondents in 04-1385: American Municipal Power-Ohio, Inc.; City of Dover, Ohio; City of Orrvile, Ohio; City of Painesvile, Ohio; City of Shelby, Ohio; and City of St. Mary's, Ohio Wiliam F. Lane Kilpatrick Stockton 3737 Glenwood Ave., Suite 400 Raleigh, N.C. 27612~2519 (919) 420-1794 Counscl for Intervenor-Respondent in 04-1385 American Home Furnishings Allance, Inc.Claudia O'Brien

Cassandra Sturkie Latham & Watkins LLP 555 Eleventh Street, NW Suite 1000 Washington, DC 20004-1304 (202) 637-1067 Counsel for Intervenors-Respondents in 04-1385: Council of Industrial Boiler Owners, American Forest and Paper Association, Inc., American Chemistry Council, National Petrochemical & Refiners Association, American Petroleum Institute, National Oilseed Processors Association, and Coke Oven Environmental Task Force, Allance of Automobile 

### Manufacturers Ronald A. Shipley Law Office of Ronald A. Shipley 10229 Crosscut Way Damascus, MD 20872-2912 (301) 540-0315 Counsel for Intervenor-Respondent in 04-1385 Coalition for Responsible Waste Incineration Craig S. Harison Lee B. Zeugin Hunton & Wiliams LLP 1900 K Street N.W. Washington, D.C. 20006 (202) 955-1500 Counsel for Intervenor-Respondent in 04-1385 Utilty Air Regulatory Group Maurice Griffin

Attorney General's Offce of State of New Jersey Division of Law 25 Market Street P.O. Box 093, Richard!. Hughes Justice Complex Trenton, NJ 08625-0093 (609) 984-4863 Counsel for Amicus Curiae State of New Jersey Gerald D. Reid Attorney General's Office of State of Maine 6 State House Station 111 Sewall Street Augusta, ME 04333-0006 (207) 626-8545 Counsel for Amicus Curiae State of Maine1. Jared Snyder

Attorney General's Offce of State of New York The Capitol

New York State Department of Law Albany, NY 12224-0341 (518) 474-8010

Counsel for Amicus Curiae State of New York Donna M. Murasky Office of Attorney General for the District of Columbia 441 4th Street N.W. Sixth floor Washington, D.C. 20001-2714 (202) 727-6252 Counsel for Amicus Curiae District of Columbia 

### Mar An McGrail Kellogg, Huber, Hansen, Todd, Evans & Figel, P.L.L.C. 1615 M Street, N.W. Suite 400 Washington, D.C. 20036-3209 (202) 326-7900 Counsel for Amici Curiae State and Territorial Air Pollution Program Administrators, and the Association of Local Air Pollution Control Officials Douglas H. Green Aaron J. Wallisch DLAPiper Rudnick Gray Car US LLP 1200 19th St., N.W.

Washington, D.C.' 20036 (202) 861-3900 Counsel for Intervenors-Respondents in 05-1434 American Forest & Paper Association and Utilty Solid Waste Activities Group, Edison Electric Institute, National Rural Electric Cooperativè Association, American Public Power Association Marc D. Machlin Wiliam J . Walsh Charles H. Carenter Pepper Hamilton LLP 600 14th St., N.W., Suite 500 Washington, D.C. 20005 Counsel for Amicus Curiae in 05-1434 Rubber Manufacturers Association 

# ~L

No an L. Rave, Jr.