# Exhibit 10ORAL ARGUMENT NOT YET SCHEDULED
UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT

____________________________________ ) NATIONAL ENVIRONMENTAL ) DEVELOPMENT ASSOCIATION’S ) CLEAN AIR PROJECT, ) ) Petitioner, ) ) v. ) Docket No. 10-1252 ) (and consolidated cases) UNITED STATES ENVIRONMENTAL ) PROTECTION AGENCY, ) ) Respondent. ) ___________________________________ )
RESPONDENT’S OPPOSITION TO MOTION OF THE STATE OF NORTH DAKOTA FOR A STAY OF EPA’S 1-HOUR SULFUR DIOXIDE AMBIENT STANDARD RULE Respondent United States Environmental Protection Agency (“EPA”) submits this Opposition to the Motion of the State of North Dakota for a Stay of EPA’s 1-Hour Sulfur Dioxide Ambient Standard Rule (“Stay Motion”). In its Stay Motion, North Dakota seeks a stay of the rule in its entirety or, in the alternative, a stay of the statutory directive that States submit any recommendations for attainment/nonattainment designations no later than June 3, 2011. The motion should be denied because North Dakota has not satisfied the stringent requirements Case: 10-1252 Document: 1276211 Filed: 11/08/2010 Page: 12 for obtaining a stay of agency action. The motion fails to address any of the elements for obtaining a stay with regard to any of the promulgated elements of the rule, i.e. , the revised sulfur dioxide (“SO 2 ”) standard itself and the promulgated revisions to the SO 2 monitoring network. Rather, th e motion is addressed solely to an advisory discussion in the final ru le preamble regarding EPA’s anticipated approach to implementing the revise d NAAQS. Thus, the motion provides no basis to stay the rule as a whole. The motion must also be denied withregard to the alternative relief requested. First, North Dakota has not demonstrated a substantial likelihood of success on the merits. It challenges only advisory statements in the final rule preamble concerning EPA’s contemplated approach for making initial attainment designations by the June 2012 statutory dead line, an approach the Agency will be addressing in future actions. As the preamble makes clear, EPA has taken no final action nor promulgated any regulatory requi rements regarding designations, and, in particular, has taken no final action on its approach to making attainment determinations. To the contrary, the preamble specifically preserves EPA’s ability to make those decisions solely on the basis of monitoring data. 75 Fed. Reg. 35,520, 35,552 n.22 (June 22, 2010). Because these preamble statements are not final agency action, the Court lacks juri sdiction to review them, and North Dakota has no substantial likelihood of prevailing on the merits. Case: 10-1252 Document: 1276211 Filed: 11/08/2010 Page: 21/ The date can be extended to June 2013 if EPA lacks sufficient information to act in 2012. 42 U.S.C. § 7407(d)(1)(B)(i). 3 Moreover, even if the challenged preambl e statements could be read as final agency action, the Agency has historica lly relied on modeling to make designations for sulfur dioxide. To the extent the proposal preamble reflected a possible change to that practice, it clearly left open th e possibility that the Agency would choose not to adopt the proposed change. Intere sted parties should have known that EPA might retain its past practice, and had ample opportunity to comment on that possibility. Thus, North Dakota cannot demonstrate a likelihood of success on its claim that it lacked an opportunity to comment on the approach to initial designations discussed in the preamble. Second, North Dakota cannot demonstrat e that it will suffer irreparable harm from the statutory directive that it submit designation recommendations to EPA by June 2011. North Dakota claims harm from an alleged bar to the use of monitoring data as the sole basis for its designation recommendations. But, nothing in the SO 2 Rule prevents North Dakota from basing its recommendations solely on monitoring data, and thus the Rule does not cause the harm North Dakota claims. Id. Furthermore, designation recommendations have no independent legal effect. An area is not designated until EPA promul gates the designation, which EPA is required to do by June 2012 1 / (a requirement that would not be affected by a stay of Case: 10-1252 Document: 1276211 Filed: 11/08/2010 Page: 34 the 2011 recommendation submission date). Moreover, EPA is not bound by the State’s recommendations and must promulgate a designation for an area even if the State submits no recommendation at all. Finally, a stay of the SO 2 Rule will cause harm to other parties and is contrary to the public interest. The rule under review revises the primary ambient air quality standard for sulfur dioxide based on findings by EPA that the prior standards were not requisite to protect hum an health with an adequate margin of safety. A stay of the rule’s regulatory provisions promulgating the new standard would delay implementation of the measures needed to achieve attainment with the new standard, including requirements asso ciated with the permitting of new and modified major stationary sources which became effective on the effective date of the standard. A stay of the Rule would thus prolong the time during which existing air quality causes adverse impacts to public health. A stay of the 2011 deadline for States to submit recommendations to EPA would not alter EPA’s obligation to promulgate designations by 2012, but would increase the burden on EPA to develop the designations.
BACKGROUND The consolidated petitions in this cas e seek review of an EPA regulation revising the primary National Ambient Air Quality Standards (“NAAQS”) and associated regulatory requirements for oxides of sulfur as measured by SO 2 Case: 10-1252 Document: 1276211 Filed: 11/08/2010 Page: 45 pursuant to section 109 of the Clean Air Act, 42 U.S.C. § 7409. 75 Fed. Reg. 35,520 (June 22, 2010) (“SO 2 Rule”). Those regulatory requirements took effect on August 23, 2010, and are currently being implemented. The NAAQS provisions of the Clean Air Act establish a comprehensive scheme to protect public health and welfare from ubiquitous air pollutants. 42 U.S.C. § 7409. Primary standards must be set at levels that, inthe judgment of the Administrator, are requisite to protect public health with an adequate margin of safety. Id. § 7409(b)(1). The Act requires periodic review of the NAAQS. Id. § 7409(d).
See generallyAmerican Lung Ass’n v. EPA , 134 F.3d 388, 388-89 (D.C. Cir. 1998). EPA first promulgated a primary NAAQS for sulfur dioxide in 1971. 36 Fed. Reg. 8187 (April 30, 1971). In May 1996, after a lengthy review, EPA announced a final decision not to revise the NAAQS. 61 Fed. Reg. 25,566 (May 22, 1996). Petitions for review of that deci sion were filed in this Court, and the Court held that EPA had failed to adequately explain the basis for its conclusion that short-term SO 2 exposures to asthmatics do not constitute a public health problem. American Lung Ass’n v. EPA , 134 F.3d 388. In the rule under review here EPA has addressed that issue by replacing the prior 24-hour and annual primary standards with a new 1-hour prim ary standard. The new standard is now in effect, and is being implemented in EP A’s prevention of significant deterioration Case: 10-1252 Document: 1276211 Filed: 11/08/2010 Page: 56 permitting program for new and modified major stationary sources. See 57 Fed. Reg. at 35,580/1. Within one year after promulgation of a new or revised NAAQS (or sooner if required by EPA) States are directed to submit to EPA a list of all areas that the State recommends be designated by EPA as attainment, nonattainment, or unclassifiable for the new or revised NAAQS. 42 U.S.C. § 7407(d)(1)(A). In the case of the revised SO 2 standards, such designations are due by June 3, 2011, one year after EPA promulgated the revised NAAQS by signing and publicly disseminating the notice of final rulemaking. Within two years of promulgation (or three years if EPA lacks sufficient information), the Act requires EPA to promulgate designations. Id. § 7407(d)(1)(B)(i). EPA may modify any submitted list of designations provided by a State if it gives the State 120 days notice, and must promulgate designations as EPA d eems appropriate for any area for which no designation recommendation is provided by a State. Id. § 7407(d)(1)(B)(ii). Thus, EPA’s statutory obligation to promulgate designations is independent of whether a State submits recommendations. The SO 2 Rule, like its predecessors, includes regulatory provisions that establish the NAAQS itself, as well as regulations governing the installation and use of monitors utilized to meas ure ambient concentrations of SO 2 . See , e.g. , 40 C.F.R. §§ 50.4(e); 50.14(c)(2)(vi); 50.17; part 50 Appendices A-1 and T; part 53, Case: 10-1252 Document: 1276211 Filed: 11/08/2010 Page: 67 and part 58. Historically, to determine if an area is in attainment with the SO 2 NAAQS, EPA has used a combination of re sults from regulation-required monitors and air quality modeling, even though in the NAAQS regulations themselves EPA has not promulgated requirements that States or sources conduct modeling. Instead, at 40 C.F.R. part 51, Appendix W, EPA has promulgated guidelines on air quality models, to be used for regulatory purposes such as State Implementation Plan (“SIP”) development and new source review and prevention-of-significant-deterioration permitting actions. See , e.g. , 40 C.F.R. part 51, Appendix W, § 1.0. In the currentrule EPA has revised the regulatory requirements for the minimum number and placement of monitors and adopted a new reference method for detecting ambient SO 2 , but did not promulgate or revise any requirements regarding modeling. In the preamble to the proposed SO 2 Rule, EPA discussed the revisions to the monitoring network proposed to account for the revision of the standard, i.e. , the change from the 24-hour and annual st andards to a single one-hour standard. 74 Fed. Reg. 64,810, 64,846-55 (Dec. 8, 2009). In the proposal EPA did not discuss its historic and current uses of modeling in implementing the then-effective annual and 24-hour SO 2 standards. In public comments on the proposal, numerous parties suggested that the proposed m onitoring network was both inadequate in scope and overly burdensome to administer, and some commenters suggested that Case: 10-1252 Document: 1276211 Filed: 11/08/2010 Page: 78 modeling should be used to relieve the administrative burden that a more extensive monitoring regime would otherwise impose. 75 Fed. Reg. at 35,551/1. In the preamble to the final rule, EP A explained in response to comments that the Agency anticipated in subsequent actions to continue its historic practice of relying on both modeling and monitoring for determining whether an area is in attainment with the SO 2 NAAQS and adopted rules for a smaller monitoring network than initially proposed. 75 Fe d. Reg. at 35,550-51. However, the preamble makes clear that, except for the promulgated requirements relating to the scope of the monitoring network and detection method, the Agency is still developing its policy for such future actions as designations and SIP approvals/disapprovals and intends to issu e further guidance in the future through a notice-and-comment process. Id. The preamble also stat es EPA’s expectation that any decisions about whether to base an attainment designation or determination on monitoring alone, without reliance on modeling, would be made on a case-by-case basis. Id. at 35,552 n.22. Following promulgation of the rule, numerous parties filed petitions for review with this Court, and each of those parties also submitted to EPA administrative petitions for reconsiderati on of the rule under section 307(d)(7)(B) of the Act, 42 U.S.C. § 7607(d)(7)(B). The petitions for reconsideration objected to EPA’s final rulemaking preamble discussion explaining EPA’s anticipated Case: 10-1252 Document: 1276211 Filed: 11/08/2010 Page: 89 approaches in future designations and SIP actions. In addition, each requested that EPA administratively stay the final rule pending such reconsideration. EPA is currently evaluating the petitions for r econsideration and has not yet formally responded to them, but, as the Agency stated in its pending motion filed with the Court seeking a short-term abeyance of the instant litigation, EPA intends to provide initial responses to the petitions fo r reconsideration, including the requests for a stay of the rule, by January 8, 2011.
STANDARD OF REVIEW A stay is a disfavored remedy. “On a motion for stay, it is the movant’s obligation to justify the court’s exercise of such an extraordinary remedy.” Cuomo v. United States Nuclear Regulatory Comm’n , 772 F.2d 972, 978 (D.C. Cir. 1985). The factors for determining whether a st ay is warranted are: (1) whether the movant has demonstrated a substantial lik elihood that it will prevail on the merits; (2) the prospect of irreparable injury to the moving party if relief is withheld; (3) the possibility of harm to other parties if relief is granted; and (4) the public interest. Nken v. Holder , 129 S. Ct. 1749, 1761 (2009). These four prongs of the stay standard are to be applied stringe ntly. Aberdeen & Ro ckfish R.R. Co. v. Students Challenging Regulatory Agency Procedures , 409 U.S. 1207, 1218 (1972). “A stay is not a matter of right, even if irreparable injury might otherwise result.” Nken , 129 S. Ct. at 1760 (citation omitted). Case: 10-1252 Document: 1276211 Filed: 11/08/2010 Page: 910 To demonstrate a substantial likelihood of success on the merits, a petitioner must show that it is likely to persuade this Court that EPA’s action is “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.” 42 U.S.C. § 7607(d)(9)(A). This narrow, defere ntial standard prohibits a court from substituting its judgment for that of the ag ency and presumes the validity of agency actions. Motor Vehicle Mfrs. Ass’n v. State Farm Mut. Auto. Ins. Co. , 463 U.S. 29, 43-44 (1983). Judicial deference al so typically extends to an agency’s interpretation of a statute it administ ers, United States v. Mead Corp. , 533 U.S. 218, 227-31 (2001); Chevron, U.S.A., Inc. v. Natural Res. Def. Council, Inc. , 467 U.S. 837, 842-45 (1984), and of its own regulations. Auer v. Robbins , 519 U.S. 452, 457 (1997). To establish irreparable harm, a petitioner must demonstrate an injury that is “both certain and great; it must be actual and not theoretical.” Wisconsin Gas Co.
v. FERC , 758 F.2d 669, 674 (D.C. Cir. 1985). A movant for injunctive relief must show that “[t]he injury complained of [i s] of such imminence that there is a clear and present need for equitable relief to prevent irreparable harm.” Id. (citation omitted). The movant must “substantiate the claim that irreparable injury is 'likely' to occur,” and “show that the alleged harm will directly result from the action which the movant seeks to enjoin.” Id ; see also Nken , 129 S. Ct. at 1761 (more than a “mere possibility” of success on the me rits is required, and the standard for Case: 10-1252 Document: 1276211 Filed: 11/08/2010 Page: 1011 irreparable harm is more than showing the “possibility” of harm); Winter v.
NRDC , 129 S. Ct. 365, 375-76 (2008) (holding that in a preliminary injunction case, plaintiffs must demonstrate that irreparable injury is “likely,” not just “possible”).
ARGUMENT
I. THE MOTION IS PREMATURE Fed. R. App. Proc. 18(a) requires that a petitioner must ordinarily move first before the agency for a stay of its orde r before seeking a stay in the Court of Appeals, or else show that moving before the agency would be impracticable. In this case, although North Dakota (and other Petitioners) have sought a stay of the
SO 2 Rule from EPA, EPA has not yet acted on that request, and North Dakota has not demonstrated that it is impracticable to wait for EPA to act on those requests before seeking a stay from this Court. As described in EPA’s Motion to Hold Case in Abeyance, EPA intends to act on the pending administrative petitions for reconsideration by January 8, 2011. At that time EPA will also act on the included requests for a stay, as the Agency previous ly informed Petitioners. Implicit in Rule 18's requirements is that a petitioner must receive a response to its request for a stay from the agency before seeking a judicial stay. North Dakota has neither waited for that response, nor demonstrat ed why doing so would be impracticable for submitting a recommendation that is not due until June 2011. Because North Case: 10-1252 Document: 1276211 Filed: 11/08/2010 Page: 1112 Dakota’s request for a stay is still pending before the Agency and the Agency has committed to responding in a timely fashion, North Dakota’s motion for stay in this Court is premature and should be denied.
II. NORTH DAKOTA HAS PRESENTED NO BASIS FOR STAYING THE ENTIRE SO 2 RULE In its motion, North Dakota asks the Court to stay the SO 2 Rule in its entirety (including the standard itself and the associated monitoring provisions) or, in the alternative, to stay the June 3, 2011 statutory deadline by which States may submit recommended designations to EPA. North Dakota, however, identifies no grounds for staying the entire rule. Withregard to the merits, North Dakota advances no objection to the promulgated standard or the promulgated requirements related to monitoring. Nor does it present any claim that it will suffer irreparable harm from either the revise d standard or the revised requirements related to monitoring. In fact, North Dakota does not address any aspect of the Rule except the non-binding preamble discussion concerning how EPA expects to use modeling in future area designations and SIP actions. Thus, North Dakota has not met the stringent standard for obtaining a stay of the Rule as a whole, and that request must be denied. Case: 10-1252 Document: 1276211 Filed: 11/08/2010 Page: 1213 III. NORTH DAKOTA CANNOT DEMONSTRATE A SUBSTANTIAL LIKELIHOOD OF SUCCESS ON THE MERITS The sole claim on the merits presente d in the Stay Motion is that the preamble of the final rule allegedly re quires the use of air quality modeling for determining whether an area is in attainment with the revised SO 2 NAAQS, that this approach differs from the approach discussed in the preamble to the proposal, and that the public did not have an opportunity to comment on the approach discussed in the final rule. This claim lacks merit for two reasons. First, North Dakota is not challenging any provision of the promulgated regulations, but rather a discussion in the preamble, i.e. , 75 Fed. Reg. at 35,550-54. Although some preamble discussions may constitute final agency action, it is clear that this particular discussion does not. Rather, the challenged discussion regarding the potential use of modeling is, at most, non-binding guidance that the Court lacks jurisdiction to review. The preamble specifically states: In many respects, both the overview discussion below and the subsequent more detailed discussions explain our expected and intended future action in implementing the 1-hour NAAQS – in other words, they constitute guidance, rather than final agency action – and it is possible that our approaches may continue to evolve as we, States, and other stakeholders pro ceed with actual implementation. In other respects, such as in the final regulatory provisions regarding the promulgated monitoring network, we are explaining EPA’s final conclusions regarding what is requi red by this rule. We expect to issue further guidance regarding implementation . . . . EPA intends to solicit public comment prior to finalizing this guidance. Id. at 35,550/3 (emphasis added). Case: 10-1252 Document: 1276211 Filed: 11/08/2010 Page: 1314 Moreover, nowhere in the preambl e (much less in any promulgated regulation) does EPA state that modeling must be used for designating areas as attainment, nonattainment or unclassifiable . Thus, the alleged requirement North Dakota seeks to challenge does not exist. Rather, the preamble states: “We expect that EPA’s final area designation decisions in 2012 would be based principally on data reported from SO 2 monitors currently in pl ace today, and any refined modeling the State chooses to conduct specifically for initial designations.” Id. at 35,552/1 (emphasis added). The preamble then goes on to say “EPA anticipates making the determination of when monitoring alone is ‘appropriate’ for a specific area on a case-by-case basis, informed by the area’s factual record, as part of the designation process.” Id. at 35,552 n.22. In short, EPA has simply not taken th e final agency action alleged by North Dakota and there is no such action for the Court to review or to stay. To the contrary, the preamble states that EPA be lieves that its historic approach to SO 2 designations continues to appear to be appropriate, while at the same time giving States the flexibility to recommend the appropriate mix of data to rely on, including the possibility of relying entirely on monitoring if supportable. Second, even if the preamble could be construed as final agency action, North Dakota’s claim that the public lack ed notice of the possibility that EPA might continue to use modeling when making designations is without merit. As Case: 10-1252 Document: 1276211 Filed: 11/08/2010 Page: 1415 EPA has frequently explained, because of the nature of SO 2 pollution, EPA has historically relied on air quality modeling (in addition to any required monitoring) to determine whether an area is violating the SO 2 NAAQS. 75 Fed. Reg. at 35,551/2-3, 35,559/2-3; see SO 2 Guideline Document (available at www.epa.gov/ttn/oarpg/t1/memoranda/so2_guide_092109.pdf) at 2-5 (“For SO 2 attainment demonstrations, monitoring data alone will generally not be adequate.”) and at 2-1 (“Attainment determinations for SO 2will generally not rely on ambient monitoring data alone, but instead will be supported by an acceptable modeling analysis which quantifies that the SIP strategy is sound and that enforceable emission limits are responsible for attainment.”) As a State responsible for recommending whether an area should be designated attainment or nonattainment, North Dakota certainly should have beenaware of the Agency’s historical approach. Thus, to the extent the approach to designations described in the proposal preamble was limited to monitoring, in de -emphasizing the role modeling has long played in SO 2 implementation it represented a departure from the Agency’s prior practice. In such circumst ances, affected parties are surely aware that not adopting the proposed change is a possibility. American Iron & Steel Inst. v. EPA , 886 F.2d 390, 400 (D.C. Cir. 1989) (“One logical outgr owth of a proposal is surely, as EPA says, to refrain from taking the proposed st ep.”) In fact, the Agency did receive Case: 10-1252 Document: 1276211 Filed: 11/08/2010 Page: 152 / If EPA were to determine that the monito ring data was not sufficient to determine an area’s attainment status, and thus thatthe area would have to be categorized as unclassifiable until sufficient monitoring data or modeling results were available, (continued...) 16 comments urging the Agency to retain its historic approach. 75 Fed. Reg. at 35,551/1. Accordingly, there is no basis for North Dakota’s claim that it lacked notice that the Agency might choose notto adopt a more monitoring-focused approach as discussed in the proposal preamble, but instead to expect to retain its historic approach in which modeling is generally, though not always, utilized.
IV. NORTH DAKOTA CANNOT DEMONSTRATE AN IMMINENT THREAT OF IRREPARABLE HARM There is no merit to North Dakota’s claim that it will suffer irreparable harm if the SO 2 Rule or the statutory deadline to submit designation recommendations is not stayed. North Dakota first claims that it will be harmed because the SO 2 Rule “casts a cloud” over its ability to use its monitoring data and “deprive[s] the state of its right to manage its air resources.” Stay Motion at 17. As demonstrated above, there is no factual basis for this claim because neither the SO 2Rule itself nor the preamble discussion prohibits North Dakota from basing its recommended designations on its monitoring data alone. 75 Fed. Reg. at 35,552 n.22. Nor does anything in the Rule or preamble prohibit EPA from basing its designations for North Dakota on monitoring data alone if EPA determines that the monitoring data is sufficient to determine North Dakota’s attainment status. 2 / Case: 10-1252 Document: 1276211 Filed: 11/08/2010 Page: 162 / (...continued) that designation would be result of the insufficiencies in the data, not of anything that EPA has done in the Rule.

3 / While it might seem at first blush as if actual monitoring should be inherently more accurate than modeling, this is not nece ssarily the case. In fact, “[i]n the past, EPA used a combination of modeling and monitoring for SO 2 during permitting, designations and re-designations in recognition of the fact that a single monitoring site is generally not adequate to fu lly characterize ambi ent concentrations, including the maximum ground level concentrations, which exist around stationary SO 2 sources.” 75 Fed. Reg. at 35,559. This is especially important because “[t]he 1-hour NAAQS is intended to provide protection against short-term (5 minute to 24 hour) peak exposures”. Id. See American Lung Ass’n v. EPA , 134 F. 3d at 392-93 (remanding EPA’s determination that such exposures do not constitute a threat to public health) and 75 Fed. Reg. at 35,536 (5-10 minute SO 2 exposures can result in adverse health effects to asthmatics). 17 Moreover, the State’s recommended designations, which are due June 3, 2011, have no legal effect on sources. Not until EPA promulgates the actual designations, which the statute requires it do by June 3, 2012 (or 2013 if extended), will there be a designation in place that has legal effect. Thus, North Dakota can suffer no actual harm from submitting its recommended designations. North Dakota’s second claim of harm, that the use of modeling will result in more areas being designated as nonattainment because modeling is more “conservative,” Stay Motion at 17-18, is purely speculative. North Dakota presents no evidence at all to support its assertion that modeling will necessarily result in areas of the State being designated as nonattainment inappropriately, and thus there is no basis on which the Court could find that North Dakota could suffer injury. 3 / Furthermore, as the preamble states, th e modeling guidance that EPA intends to Case: 10-1252 Document: 1276211 Filed: 11/08/2010 Page: 1718 provide States for use in determining attainment of the revised SO 2standard is still under development. 75 Fed. Reg. at 35, 552-54. Thus, any statements about how the use of modeling affects the designation process for the revised SO 2 standard are necessarily speculative. Finally, the actual designations will be made by EPA, an action that EPA expects to take by June 3, 2012. Stat es have an opportunity under the Act to provide input on the designations before they are made, and EPA’s designations are subject to judicial review. Any clai m that modeling is inappropriately used by EPA for a particular designation can and should be raised in that process.
V. A STAY WOULD HARM THIRD PARTIES AND IS CONTRARY TO THE PUBLIC INTEREST A stay of the SO 2 Rule, whether in whole or in part, would cause harm to third parties and is contrary to the public interest because it would delay achievement of the public health benefits of the revised standard, which is now in effect and being used for the Act’ s New Source Review and Prevention of Significant Deterioration permitting programs. After an exhaustive review of the existing data, EPA determined that the prior SO 2 standard was not adequately protective of human health and required revision, a conclusion amply supported by the record. EPA’s statutorily mandated science review committee, the Clean Air Scientific Advisory Committee, recommended unanimously that the current standard be revised because the current st andards are not adequate to protect the Case: 10-1252 Document: 1276211 Filed: 11/08/2010 Page: 1819 public health, and that EPA should adopt a one-hour standard in their place. 75 Fed. Reg. at 35,530, 35,538. Short-term exposure to SO 2 results in adverse respiratory effects such as bronchoconstr iction (narrowing of the airways) and increased asthma symptoms. Id. at 35,525-26. Studies also show an association between short-term SO 2 exposure and increased emergency department visits and hospital admissions for respiratory illness, particularly among children, the elderly, and asthmatics. Id. at 35,547. Importantly, the data demonstrate that these adverse health effects can occur at concentration levels that are allowed by the prior SO 2 NAAQS. Id. at 35,535-36. Thus, implementation of the revi sed standard is necessary to reduce the adverse health effects associated withthese exposures. North Dakota’s motion does not address this issue at all, and thus fails to address two of the elements needed for a stay of agency action. A stay of the SO 2 Rule, either in whole or in part, is likely to delay attainment of the revised standard. A delay of the SO 2 Rule as a whole will delay States’ implementation of th e control measures needed to achieve compliance with the revised standard and the requirementfor new or modified major stationary sources to implement necessary controls pursuant to the Clean Air Act’s New Source Review and Prevention of Signifi cant Deterioration permit requirements. Case: 10-1252 Document: 1276211 Filed: 11/08/2010 Page: 1920 A stay of the date for States to recommend designations for areas as attainment, nonattainment, or unclassifi able will not delay EPA’s independent obligation to promulgate designations. However, it could complicate the process of establishing area designations and impose additional burdens on EPA if States do not submit designation recommendations because EPA would not have the States’ recommended designations as a starting point. Thus, a stay of the SO 2Rule will harm third parties and be adverse to the public interest by delaying the public health benefits of the revised standard.
CONCLUSION For the reasons stated above, North Dakota’s motion for a stay of the SO 2 Rule should be denied. Respectfully submitted,
IGNACIA S. MORENO Assistant Attorney General /S/ Norman L. Rave, Jr. NORMAN L. RAVE, JR. 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 Case: 10-1252 Document: 1276211 Filed: 11/08/2010 Page: 2021 Of Counsel:
STEVEN SILVERMAN MICHAEL THRIFT Office of General Counsel U. S. Environmental Protection Agency 1200 Pennsylvania Ave., NW Washington, DC 20460

November 8, 2010 Case: 10-1252 Document: 1276211 Filed: 11/08/2010 Page: 21CERTIFICATE OF SERVICE I hereby certify that on this 8th day of November, 2010, I caused a copy of the foregoing document to be served by the Court’s CM/ECF system on: Andrea Bear Field Lucinda Minton Langworthy Hunton & Williams LLP 1900 K Street, N.W. Washington, DC 20006 Leslie Sue Ritts Ritts Law Group, PLLC 620 Fort Williams Parkway Carriage House Alexandria, Virginia 22304 Donald Trahan State of Louisiana Dept. of Environmental Quality P.O. Box 82282 Legal Affairs Division Baton Rouge, Louisiana 70884-2282 David S. Baron Seth Lee Johnson Earthjustice Legal Defense Fund 1625 Massachusetts Ave., NW Suite 702 Washington, DC 20036-2212 Roxanne Giedd Office of the Attorney General, State of South Dakota 1302 East Highway 14 Suite 1 Pierre, South Dakota 57501-8501 Nhu Q. Nguyen Office of the Attorney General, State of Nevada 100 North Carson Street Carson, Nevada 89701-4717 Case: 10-1252 Document: 1276211 Filed: 11/08/2010 Page: 222 Sandra Patricia Franco Robert N. Steinwurtzel Bingham McCutchen LLP 2020 K Street, NW Washington, DC 20006-1806 Margaret I. Olson Assistant Attorney General Office of the Attorney General State of North Dakota Solicitor General 500 North 9th Street Bismark, North Dakota 58501-4509 Paul M. Seby Marian C. Larsen Moye White, LLP 1400 16th Street 6th Floor Denver, Colorado 80202-1486 Nancy Elizabeth Olinger Assistant Attorney General Environmental Protection and Administrative Law Division P.O. Box 12548 (MC-018) Austin, Texas 78711-2548 Benjamin Joseph Alke Goetz, Gallik & Baldwin, PC 35 North Grand P.O. Box 6580 Bozeman, Montana 59771-6580

/S/ Norman L. Rave, Jr. Norman L. Rave, Jr. Case: 10-1252 Document: 1276211 Filed: 11/08/2010 Page: 23