**IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA**  SIERRA CLUB,

Plaintiff, vs. LISA JACKSON, ADMINI STRATOR, U.S. ENVIRONMENTAL PROTECTION AGENCY, Defendants. ) ) ) ) ) ) ) ) ) ) ) ) ) Case No. 1:11 - CV - 00100 - JDB

**BCCA APPEAL GROUP’S MOTION TO INTERVENE AND MEMORANDUM OF LAW IN SUPPORT THEREOF**  Pursuant to Rule 24 of the Federal Rules of Civil Procedure, BCCA Appeal Group (“BCCAAG”), by

and through counsel, hereb y moves this Court f or leave to intervene in this action in support of Defendant Environmental Protection Agency (“EPA”). This Motion is based on the below memorandum of law, the Declaration of Steven Cook (Exhibit A), and any other authorities that the Court may c onsider. BCCAAG also attaches its proposed Motion to Dismiss (Exhibit B) and proposed Answer (Exhibit C). 1 Counsel for BCCAAG has conferred with counsel for Sierra Club and EPA. C ounsel for BCCAAG has been advised that Sierra Club will “not consent” to this motion and that EPA takes no position on it.

1 T o comply

with the requirements of Rule 24(c), BCCAAG has attached its proposed Answer. However, if its Motion to Intervene is granted, BCCAAG requests that the Court first docket its Motion to Dismiss, with BCCAAG’s Answer to be filed thereafter if necessary .2 **MEMORANDUM OF LAW IN SUPPORT OF MOTION**

**INTRODUCTION** In this action, Sierra Club alleges, in part, that (i) EPA has an obligation to determine whether the Houston - Galveston - Brazoria (“HGB”) area has attained the Nati onal Ambient Air Quality S tandard (“NAAQS”) for ozone that was established by EPA in 1979 (“1 -hour ozone standard”), and (ii) EPA has failed to make that determination as required by the Clean Air Act (“CAA”). Sierra Club asks this Court to order EPA to make a statutory f inding as to whether the HGB area has attained the 1 -hour ozone standard. I f this Court grants Sierra Club’s requested relief, it will have a direct and significant impact on BCCAAG’s members, as the owners and operators of petroleum refineries, chemical manufacturing sites, and other industrial plants in the HGB area (collectivel y, “ stationary s ources”) that are subject to the rules implementing the standard. Specificall y, the requested relief will alter the regulatory s cheme that the stationary sources are subject to by

requiring EPA to appl y the 1 -hour ozone standard, which was revoked in 2005, instead of the now applicable 8 -hour ozone standard. It will rewrite EPA’s Phase I ozone implementation rule without regard to applicable administrative procedures; threaten industrial sources in the HGB area with millions of dollars in CAA Section 185 penalty fees; and interfere with HGB’s resolution of anti -backsliding Section 185 obligations through a Termination Determination now pending be fore EPA. Accordingl y, it is critical that the interests of the stationary

sources are represented in this litigation. BCCAAG is a non -profit corporation whose members own and operate stationary sources in the HGB area. BCCAAG’s purpose includes ensuring that the HGB area meets the air quality requirements of the CAA in a way that maintains the region’s economic vitality . B ecause3

BCCAAG satisfies the criteria for intervention of right or permissive intervention under Rule 24, its Motion to Intervene should be granted. **BACKGROUND** The CAA requires EPA to set a NAAQS for ozone, which is a standard for the concentration of ozone in the air that the states seek to achieve. In 1979, EPA, using 1 -hour average concentration as the measure, set the standard at 0.12 parts per million (“ppm”) (the “1 - hour ozone standard”). See 44 Fed. Reg. 8202 (Feb. 8, 1979). In1990, Congress amended the CAA to require EPA and the states to develop attainment plans for areas not in compliance with that standard. An attainment plan, or state implementation plan (“SIP”), includes the methods by which the state will work to attain the applicable ozone standard by its attainment date. EPA was also required to classify nonattainment areas as marginal, moderate, serious, severe , or extreme, depending on an area’s deviation from the 1 -hour ozone standard. The HGB area was classified as a “severe” nonattainment area and assigned an attainment date of November 15, 2007. See4 2 U.S.C. § 7511(a)(1)

–(2); 40 C.F.R. § 81.344. In addition, the 1990 amendments added a new Section 185 to the CAA to impose penalty f ees in “severe” and “extreme” areas that failed to attain the 1 -hour ozone standard by their attainment dates. I f applicable, Section 185 requires states, as part of their S IPs, to pass legislation or develop administrative rules to collect the penalty f ees from major stationary sources in the nonattainment area. 42 U.S.C. § 7511d(a). In1 997, EPA adopted a more stringent standard for ozone—the 8 -hour ozone standard, which is met when the 8 - hour average concentration of ozone in a given area is 0.08 ppm or less. See 40 C.F.R. § 50.10; 62 Fed. Reg. 38,894 (July 18, 1997). In 2004, to manage the transition from the 1 -hour ozone standard to the 8 -hour ozone standard, EPA promulgated the Phase I4

ozone implementation rule. The Phase I rule revoked the 1 -hour ozone standard and eliminated EPA’s obligation to determine whether an area had “attained” the 1 - hour standard by its attainment date. See 40 C.F.R. § 50, 51, 81 ( as eff ective June 15, 2004); 69 Fed. Reg. 23,857 (Apr. 30, 2004); 40 C.F.R. § 51.905(e)(2)(i)(A) (“Upon revocation of the 1 -hour [standard] for an area, EPA is no longer obligated . . . [t]o determinate pursuant to section 181(b)(2) or section 179(c) of the CAA whether an area attained the 1 -hour [standard] by that area’s attainment date for the 1 -hour [standard].”). Several parties, including the Sierra Club, challenged the validity o f the Phase I rule on various grounds. See South Coast Air Quality Mgmt Dis t. v. EPA , 472 F.3d 882 (D.C. Cir. 2006), modified on reh’g, 489 F.3d 1245 (D.C. Cir. 2007). The D.C. Circuit upheld nearl y all aspects of the Phase I rule, and specificall y upheld EPA’s revocation of the 1 -hour ozone standard. The court explained that:

EPA retains the authority to revoke the one -hour standard so long as adequate anti -backsliding provisions are introduced. Additionally, EPA was not, as the Environmental petitioners contend, arbitrary and capricious in withdrawing the one- hour requirement

s , having found in 1997 that the eight-hour standard was “generall y even more effective in limiting 1 -hour exposures of concern than is the current 1 -hour standard.” [ 62 Fed. Reg. at 38,863] The only remaining requirements as to the one- hour NAAQS are th e anti- backsliding limitations . 472 F.3d at 899 (emphasis added). Further, the court, by not expressly

rejecting EPA’s elimination of its obligation to make attainment findings under the 1 -hour standard as of an area’s attainment date, upheld that portion of the Phase I rule. 2

2The onl y provisions of the Phase I rule that the D.C. Circuit vacated were those that addressed the following requirements: N ew Source Review, or “NSR” (codified at 40 C.F.R. § 51.905(e)(4)(i)); Section 185 fees (codified at 40 C.F.R. § 51.905(e)(2)(ii )); Contingency p lans (codified at 40 C.F.R. § 51.905(e)(2)(iii)); and Motor Vehicle Emission Budgets (codified at 405

Although the 1 -hour ozone standard was validly revoked and replaced with the 8 -hour standard, the D.C. Circuit and EPA interpreted Section 172(e) of the CAA to require EPA to promulgate “anti -backsliding” measures that are “not less stringent than the controls” that would have been “applicable” if the 1 -hour ozone standard had remained in place. See CAA § 172(e), 42 U.S.C. § 7502(e); South Coast, 472 F.3d at 900. That is, Section 172(e) does not require Section 185 fees, only

an anti -backsliding measure that is “not less stringent” than a Section 185 fee program. And EPA, consistent with Section 172(e) and South Coast, has begun to promulgate anti backsliding measures for areas that failed to attain the 1 -hour ozone standard , without the imposition of Section 185 fees. F or example, two “severe” nonattainment areas recently s ought Termination Determinations (the Baton Rouge, Louisiana and Sacramento, California areas), and in 2011, EPA proposed administrative rules that would e stablish Section 185 “Termination Determinations” for those two areas. I f finalized, these Termination Determinations would include a finding by

EPA that the areas in question have currentlyattained the revoked 1 -hour ozone standard due to permanent and enforceable emission reductions and encompass a legal determination that the areas in question are no longer subject to anti -backsliding requirements associated with Section 185 fees. See7 6 Fed. Reg. 28,696 (May 1 8, 2011) (Sacramento Metro Area); 76 Fe d. Reg. 17,368 (Mar. 29, 2011) (Baton Rouge). Notably, EPA proposed no findings as to these areas’ status with respect to the revoked 1 -hour ozone standard as of their attainment dates , which have passed. See 40 C.F.R. § 81.305 (recognizing Sacramento asa “ severe - 15” 1 - hour ozone nonattainment area (an area with a November 15, 2005 attainment date; see 42 C.F.R. § 51.905(e)(3)). 4 72 F.3d at 900

–05; 489 F.3d at 1248 (confirming that the Phase I rule was “vacated onl y to the extent that the c ourt has sustained challenges to it”).6

U.S.C. § 7511(a)(1) & tbl. 1)) 68 Fed. Reg. 20,077 (Apr. 24, 2003) (establishing November 15, 2005 as Baton Rouge’s 1 -hour ozone attainment date). In addition, a guidance memorandum issued by EPA on January

5 , 2010 points out that “once an area attains the 1997 8 -hour ozone standard, which replaced the now revoked 1 -hour standard, the purpose of retaining the section 185 fee program as an anti -backsli ding measure would also be fulfilled as the area would have attained the 8 -hour standard for which the fee program was retained as a transition measure.” M emorandum from Stephen D. Page, Director, Office of Air Quality

P lanning and Standards; regarding Guidance on Developing Fee Programs Required by

C lean Air Act Section 185 for the 1 - Hour Ozone NAAQS, at 3 (Jan. 5, 2010) (attached as Exhibit D). 3 This guidance memorandum also explained that, because the 8 -hour ozone standard is more stringent than the 1 -hour ozone standard, a Termination Determination may also be available for an area if that area has attained the 8 -hour ozone standard. See id. In the case of HGB, although currentl y designated as a “severe” nonattainment area for the 8 -hour ozone standard, see 40 C.F.R. § 81.344, available monitoring data indicate that the HGB area attained

the 8 -hour ozone NAAQS as of the 2007

–2009 measurement period. See Finding of Failure to Submit Certain State Implementation Plans Required for the 1 - Hour Ozone NAAQ S, 75 Fed. Reg. 232 (Jan. 5, 2010) (noting that current air quality data indicate that the HGB area has attained the 1997 8 -hour standard). Accordingl y, the State of Texas has submitted a request to EPA for a Termination Determination based on HGB’s attainment of the 8 -hour ozone standard to satisfy the anti -backsliding requirements of Section 172(e) with respect to Section 185 fees. Once the Termination Determination request is approved by EPA in

3 Aj udicial challenge to this guidance document is currently p ending before the D.C. Circuit. See NRDC v. EPA , No. 10 - 1056 (D.C. Cir.).7

fulfillment of Section 172(e), HGB would no longer face any risk of Section 185 fees under the 1 -hour ozone standard. 4 **ARGUMENT I.**  **BCCAAG IS ENTITLED T O INTERVENE AS A MAT**  **TER OF RIGHT.** Under Federal Rule of Civil Procedure 24(a), a movant has a right to intervene when four criteria are met: (i) the request for intervention is timely ; (ii) the movant has an interest related to the property or transaction at issue; (iii) disposition of the action may impair or impede the movant’s ability

to protect his interest; and (iv) the movant’s interest may not be adequately represented by

the existing parties. Fund for Animals, Inc. v. Norton , 322 F.3d 728, 731 (D.C. Cir. 2003). In the D.C. Circuit, the movant must also establish Article III standing to intervene as of right. H ere, BCCAAG has standing under Article III and satisfies each requirement under Rule 24(a). Therefore, BCCAAG is entitled to intervene as a matter of right. **A. BCCAAG Has Associational Standing Under Article III.**  BCCAAG is a non-profit corporation whose members include the owners and operators of industri al facilities that are major stationary s ources of air emissions in HGB. D eclaration of Steven Cook ¶¶ 2, 5 (“Cook Decl.”). A ccordingl y, BCCAAG has standing based on its membership because: (i) the interests at stake here are germane to its purpose; (ii)p articipation of individual members is not necessary ; and (iii) BCCAAG’s members would have standing in their own right. See Hunt v. W ashington State Apple Adver. Comm’n , 432 U.S. 333, 343 (1977). First, the interests at stake are clearl y germane toB CCAAG’s purpose. B CCAAG’s goals include ensuring that Texas meets the air quality requirements of the CAA in a way that

4The Texas Commission on Environmental Quality ( “TCEQ”) estimated in 2009, in connection with a proposed rule to implement Section 185 fees, that the annual cost for HGB major sources “could be between $73,134,000 and $124,269,292.” 3 4 Tex. Reg. 8644, 8651 (Dec. 4, 2009). The proposed rule was not finalized.8

maintains the economic vitality of the state. C ook Decl. ¶ 2. B CCAAG’s ability to achieve that goal is necessaril y impacted by changes to federal ozone regulations and the SIP provisions that govern stationary

s ources. That is why B CCAAG has been heavil y involved in Texas’s development of SIPs over the last decade. In fact, BCCAAG was formed in 2001 by members of the Business Coalition for Clean Air in connection with the development of the now - approved HGB SIP for the 1 -hour ozone standard. Id. ¶¶ 3

–4. For those reasons, courts have often found that BCCAAG has standing in litigation involving the regulation of ozone in Texas. F or example, BCCAAG challenged aspects of the attainment plan that was adopted for HGB when the 1 -hour ozone standard was applicable. The Fifth Circuit affirmed that BCCAAG had standing to assert the challenge:

BCCA has suffered an injury in fact in the form of the costs of compliance with the Houston SIP’s control measures, along with the added risk that its members will be responsible for any penalties assessed for the Houston SIP’s failure to attain the ozone standard by

the statutory

deadline. B CCA’s injury i s fairly traceable to EPA because, if BCCA’s claims are true, EPA unlawfully

a pproved a SIP that failed to meet minimum statutory requirements. F inall y, BCCA’s injury i s redressable by

a decision in its favor because EPA would be forced to disapprove the portions of the Houston SIP the court finds incompatible with the CAA. In addition, the approved SIP is federally enforceable against BCCA’s members, so that a favorable decision would redress that threat of injury a s well. Accordingly, the court finds that BCCA has established its right to sue the EPA under Article III. BCCA Appeal Grp v. EPA , 355 F.3d 817, 826 (5th Cir. 2003) (internal citations omitted). Subsequently, when Texas revised its attainment plan, BCCAAG sought, and was granted, leav e to intervene in support of EPA in response to a challenge to the revised attainment plan brought by an environmental organization. See Galveston -Houston Ass’n for Smog Prevention v. EPA , 289 F. App’x 745 (5th Cir. 2008). B CCAAG also played a key role in the entry

o f a 2004 mid-9

course review SIP that substituted more effective control measures for those in the previous SIP. Cook Decl. ¶¶ 3

–4. Because Sierra Club is attempting to force EPA to take action that effectively rewrites federal ozone regulati ons, and because BCCAAG’s interests involve ensuring that ozone regulations applicable in HGB are consistent with the region’s economic vitality, BCCAAG easily satisfies the first associational standing factor. Second, there is plainly no need for any of BCCAAG’s members to participate individually

in this action. The issues raised by S ierra Club, and the defenses to be raised by BCCAAG, concern only statutory and regulatory interpretation and other questions of law. The participation of an individual member is not necessary, nor would it aid the parties or the Court in resolving this case. Third, BCCAAG’s members have standing to intervene themselves. T o establish standing under Article III, a party must show (i) an injury- in- fact, (ii) causation, and (iii) redressibility . Fund for Animals , 322 F.3d at 732

–33. B CCAAG can satisfy the injury- in - fact prong, and it necessaril y follows that such injury would be caused by S ierra Club’s requested relief and that not awarding Sierra Club its requested relief would redress the identified injury by preventing it from occurring in the first place. See, e.g. , id.; County of San Miguel Colo. v. MacDonald, 244 F.R.D. 36, 45 (D.D.C. 2007). 5 I f granted, Sierra Club’s requested relief would prevent BCCAAG from exerci sing important procedural rights in addition to causing significant substantive injuries.

5 Although BCCAAG is acting on behalf of its members, for simplicity ’s sake, BCCAAG refers to itself as the relevant party .10 1. BCCAAG is threatened with an injury- in - fact because the requested relief will effectivel y require EPA to vacate valid regulations and to impose a new regulatory

scheme without notice and comment . As discussed above, EPA revoked the 1 -hour ozone standard in 2005, and that revocation was upheld in 2006. Therefore, for the last five years, stationary sources have operated under the reasonable expectation that the 8 -hour o zone standard was the onl y governing standard. Strikingly, in its Complaint, Sierra Club suggests that the 1 -hour ozone standard was not revoked, and asks this Court to force EPA to apply it as though it remained in force. C ompl. ¶¶ 42

–46. 6Further, S ierra Club asserts that, despite the plain language of its rules, EPA must determine whether HGB attained the 1 -hour ozone standard and that Section 185 fees are directl y triggered b y such a determination. Id. ¶¶ 39

–40. Sierra Club’s attempt to force EPA to appl y the 1 -hour standard as it requests is nothing but an end run around the administrative procedures that EPA must follow when making significant changes, such as as switching from one NAAQS to another. Those procedures require, in part, that EPAgive interested parties an opportunity to notice and comment. See 42 U.S.C. § 7607(d); 5 U.S.C. § 553. Given that BCCAAG is directly impacted by

changes to the ozone NAAQS and associated regulations, it would turn the concept of notice and comment on it s head if BCCAAG were precluded from having any role in the process that amends the Phase I

6P aragraph 44 of Sierra Club’s complaint mischaracterizes the South Coast decision on rehearing as “clarifying the vacatur of the Phase I Rule is limited to issues on which the Court granted petitions for review, which includes EPA’s revocation of the 1 - Hour Ozone standard.” In fact, the relevant South Coast l anguage is as follows: “We also grant their [EPA’s and the Environmental Petitioners’] request that the 2004 Rule [the Phase I rule] be vacated onl y to the extent that the court has sustained challenges to it .” 489 F.3d at 1248 (emphasis added). Simply put, South Coast did not “sustain” a challenge to EPA’s revocation of the 1 -hour ozone standard.11

rule, and such a result would “injure” BCCAAG. 7 Cf. American Horse Prot. Ass’n v. Veneman , 200 F.R.D. 153, 158 (D.D.C. 2001) (granting motion to intervene and expl aining that “the participation of the persons most directl y affected by the Operating Plan is utterly consistent with the notice and opportunity to be heard concerns that lie at the heart of the due process clause”). Just as BCCAAG would have the opportunity to comment in an administrative proceeding, it should have the opportunity to participate in this action. Infact, BCCAAG’s posture in this litigation is analogous to an industry group that sought to intervene in South Coast . There, the D.C. Circuitreversed the district court’s denial of intervention, explaining that:

Inorder for NPRA [the National Petrochemical and Refiners Association] to have standing, there must be a substantial probability

that [EPA’s] action created a demonstrable risk, or ca used a demonstrable increase in an existing risk, of injury to the particularized interests of NPRA. W e have little difficulty concluding that NPRA has met this threshold. It is inconceivable that EPA’s comprehensive reworking of an Act that specifically controls the requirements for industrial pollution would fail to affect the requirements of even a single NPRA member . South Coast, 472 F.3d at 895

–96 (emphasis added; internal quotations and citations omitted). The same conclusion should be reached here. Given that Sierra Club seeks to rewrite the Phase I rule, the parties that will be affected by the proposed rewriting have a vested interest in participating in the process that accomplishes that result. The facts of this case are also similar to tho se in County of San Miguel . There, the United States Fish and Wildlife Service (“FWS”) made a determination that a certain species of bird did not warrant classification as an endangered species. County of San Miguel, 244 F.R.D. at 41.

7BCCAAG does not concede that this Court has jurisdiction to grant the relief requested. To the contrary, as explained in BCCAAG’s proposed Motion to Dismiss, this Court lacks jurisdiction to entertain Sierra Club’s claims.12

The plaintiffs challenged the “not warranted” classification, and several associations sought to intervene. Id. at 44. The court held that, because the plaintiffs sought to set aside FWS’s classification, and because the members of the associations benefitted from the current classification, the associations had established an injury- in- fact, even though the requested relief would have not resulted in a finding that the bird was endangered. Id. at 45. Likewise, in American Horse Protection Association v. Veneman , the court found that intervenors had standing because the plaintiffs sought to invalidate a plan adopted by the U.S. Department of Agriculture relating to the soring of horses. 200 F.R.D. at 157. Inthis case, because Sierra Club seeks to invalidate the Phas e I rule under which BCCAAG currently

operates and has relied on for the last several ye ars in conducting its affairs, BCCAAG would suffer if it is not allowed to participate in this action.

2. BCCAAG is threatened with an injury- in - fact because the requested relief allegedl y requires Section 185 fees for HGB . Sierra Club requests that this Court order EPA to determine whether HGB has attained the 1 -hour ozone standard, and asserts that this determination will require Section 185 fees if HGB did not attain the 1 -hour standard by its attainment date. See Compl. ¶¶ 39

–40; Prayer for Relief. The imposition of Section 185 fees is of great importance to HGB given that the TCEQ has estimated that Section 185 fees could be between $73 and $124 million dollars per year f or HGB major sources. 8 See 34 Tex. Reg. at 8646, 8651. M embers of BCCAAG who own or operate major sources in HGB would be subject to any such fees. C ook Decl. ¶¶ 5

–7.

8“Major sources” or “major stationary sources” are a subset of “stationary s ources” that have air emission in ex cess of specified numerical thresholds. See 42 U.S.C. § 7602(j). As tationary source’s status as a major source is relevant to various requirements under the CAA and assoc iated regulations, including whether that stationary s ource would be subject to Section 185 fees. See, e.g. , 42 U.S.C. § 7511d(a).13

Consequently, members of BCCAAG are threatened with a concrete, financial injury i f this Court grants the relief sought b y Sierra Club.

3. BCCAAG is threatened with an injury- in - fact because the requested relief will interfere with HGB’s resolution of anti -backsliding obligations through a Termination Determination from EPA . EPA recently

proposed to make Termination Determinations for the Baton Rouge and Sacramento areas, based on findings that those areas have now attained the 1 -hour ozone standard by

p ermanent and enforceable emissions reductions. See 76 Fed. Reg. 28,696; 76 Fed. Re g. 17,368. EPA’s Section 185 guidance indicates that EPA can also make a Termination Determination based on attainment of the 8 -hour ozone standard. EPA Memorandum, s upraat 3. These actions are consistent with Section 172(e) and the South Coast court’scharge that EPA develop “equivalent” measures to Section 185, in light of the revocation and replacement of the 1 -hour ozone standard b y the more stringent 8 -hour ozone standard. On May 1 4, 2010, the TCEQ submitted a Termination Determination request for the HGB area based on HGB’s attainment of the 8 - hour ozone standard. See TCEQ, Request for Determination Regarding Termination of the One-Hour Ozone Section 185 Fee Obligation . 9 EPA has not yet proposed any action on this request. H owever, favorable action by EPA would confirm that anti -backsliding obligations have been met, and thus that Section 185 fees are not owed b y major sources in HGB, including members of BCCAAG. Sierra Club’s lawsuit threatens to undermine EPA action on the Termination Determination Request, thereb y injuring BCCAAG members who would directly b enefit from

9Ac opy

o f TCEQ’s Termination Determination request is available at http://www.tceq.texas.gov/airquality /point- source/psei/ sipsection185.html, by f ollowing the link titled “The Texas Commission on Environmental Quality Request For Section 185 Fee Program Termination Determination for Houston - Galveston - Brazoria (HGB) One - Hour Ozone Standard Nonattainment Area, May 14, 2010.”14

approval of a Termination Determination

—once a Termination Determination is approved that is consistent with Section 172(e), Section 185 fees will not be required. Indeed, acc ording to Sierra Club, Section 185 fees would be owed when EPA makes a finding that HGB failed to attain the 1 -hour ozone NAAQS, apparentl y even if EPA later determines that HGB has an equivalent program that fulfills Section 172(e)’s anti -backsliding requirements, i.e. , a substitute for Section 185 fees. Thus, Sierra Club’s effort to force 1 -hour ozone attainment status findings, and Section 185 fees, amounts to an effort to foreclose the Termination Determination process. In this way, Sierra Club’s lawsuit threatens to impair HGB’s effort to resolve anti -backsliding obligations through a Termination Determination.

4. BCCAAG’s injuries - in- fact are caused by Sierra Club’s requested relief . As explained above, Sierra Club’s requested relief is an order from this Court that EPA take actions that would injure BCCAAG. Without Sierra Club’s lawsuit, this Court would not have the occasion to enter such an order. Thus, Sierra Club’s request for relief is clearl y the cause of the three injuries - in- fact

— vacating of valid regulations without notice and comment, imposition of Section 185 fees, and interference with HGB’s Termination Determination

— with which BCCAAG is threatened.

5. BCCAAG’s injuries - in- fact likely would be redressed by

a decision from this Court favorableto BCCAAG . BCCAAG’s injuries - in- fact are clearly redressable by

adecision from this Court that is favorable to BCCAAG. Indeed, as explained above, Sierra Club’s requested relief is an order from this Court that EPA take actions to injure BCCAAG. It fo llows logically that this Court’s refusal to issue such an order would prevent the injuries that the issuance of such an order would cause. Further, the very fact that Sierra Club sought the EPA actions in question by f iling this lawsuit demonstrates Sier ra Club’s belief that EPA would not have taken such actions absent15

judicial compulsion to do so. Thus, BCCAAG’s injuries at stake in this lawsuit would be redressed b y a judgment against Sierra Club. **B. BCCAAG’s Motion To Intervene Is Timely.**  “‘Timeliness i s to be judged in consideration of all the circumstances, especially weighing the factors of time elapsed since the inception of the suit, the purpose for which intervention is sought, the need for intervention as a means of preserving the applicant’s rights, and the probability

o f prejudice to those already parties in the case.’” Akiachak Native Cmty. v. U.S. Dep’t of Interior, 584 F. Supp. 2d 1, 5 (D.D.C. 2008) (quoting United States v. Am. Tel. & Tel. Co. , 642 F.2d 1285, 1295 (1980)). “ The critical factor is whether any delay in moving for intervention will prejudice the existing parties to the case.” Id. (concluding no prejudice would result where intervention was sought prior to the filing of dispositive motions). BCCAAG’s motion is timely . S ierraC lub filed its complaint less than six months ago, and in the intervening time, the parties have engaged in no motions practice or discovery . Further, because this Court has not yet set a briefing schedule and BCCAAG has attached its proposed Motion to D ismiss, BCCAAG’s participation will not delay resolution of this case or prejudice any existing party . **C. BCCAAG Has An Interest In This Action.**  BCCAAG will suffer an injury- in - fact if Sierra Club receives its requested relief. S ee infraat 8

– 11. A s such, BCCAAG has also demonstrated as a matter of law a sufficient interest in the subject of the action. See Fund for Animals , 322 F.3d at 735 (“Our conclusion that the [intervenor] has constitutional standing is alone sufficient to establish that the [intervenor] has an interest relating to the property or transaction which is the subject of the action.”).16

**D. Disposition**  **Of This**  **Action Will**  **Impair BCCAAG’s**  **Ability To**  **Protect Its**  **Interests.** In assessing whether the movant’s interests will be impaired, courts focu s on the “practical consequences” of denying intervention. American Horse Prot. , 200 F.R.D. at 158. In cases involving administrative law, like this one, courts also consider “the convenience to the movant of permitting intervention in the present suit a s opposed to denying intervention merel y because future challenges remain available.” Id. T o meet its burden, the movant only h as to show that reestablishing the status quo , presuming the movant’s interests are impaired, would be “difficult,” not impossible. See Fund for Animals , 322 F.3d at 735 (movant’s interests impaired “[r]egardless of whether [movant] could reverse unfavorable ruling by bringing a separate lawsuit”); Akiachuk Native Cmty. , 584 F. Supp. 2d at 8 (movant’s interests impaired despite a bility to challenge agency

action in future proceeding); County of San Miguel, 244 F.R.D. at 47 (movant’s interest impaired even though movant could participate in subsequent rulemaking that would determine whether to list species as endangered). Sierra C lub’s requested relief will make it more difficult for BCCAAG to protect its interests for at least two reasons. F irst, Sierra Club plainly s eeks judicially- ordered statutory findings with respect to the revoked 1 -hour standard in contravention of EPA’s r ules. S econd, BCCAAG would have to take other actions to attempt to prevent the imposition of Section 185 fees in HGB despite its clean air. **E. BCCAAG’s**  **Interest May**  **Not Be**  **Adequately Represented**  **By The**  **Current Parties.**  The party seeking to intervene need onl y show that the existing parties “may not” adequatel y represent its interests, and need not establish that the representation “will in fact be inadequate.” Hardin v. Jackson , 600 F. Supp. 2d 13, 16 (D.D.C. 2009). This burden is “minimal” and “not onerous.” Fund for Animals , 322 F.3d at 735. Therefore, intervention17

“should” be granted “unless it is clear that the existing party will provide adequate representation for the absentee.” Hardin , 600 F. Supp. 2d at 16 (quoting Amer. Tel. & Tel. Co. , 642 F.2 d at 1293). Further, adequate representation is not guaranteed merel y because there is “some overlap” or “partial congruence” of interests. Fund for Animals , 322 F.3d at 736

–37. S imilarly, “interests need not be wholly adverse before there is a basis for concluding that existing representation of a different interest may b e inadequate.” Id. at 737 (citations and quotations omitted). Accordingl y, “the D.C. Circuit has repeatedl y held that private companies can intervene on the side of the government, even if some of their interests converge.” Hardin , 600 F. Supp. 2d at 16. That is because “government entities are usuall y charged with representing the interests of the American people, whereas aspiring intervenors, like the intervenor- applicants here, are dedicated to representing their personal interests or the interests of their members or members’ businesses.” County of San Miguel, 244 F.R.D. at 48; accord Fund for Animals , 322 F.3d at 737 (movant satisfied its burden where it sought to protect interests that were “more narrow and parochial” than the government’s interests); American Horse Protection , 200 F.R.D. at 159 (granting intervention of right where intervenors had “more narrow interests and concerns” than the government entity); Southern Utah Wi lderness v. Norton , No. Civ. A. 01 - 2518 (CKK), 2002 WL3 2617198, at *5 (D.D.C. June 28, 2002) (concluding that government entity may not adequately

represent specific interests of private entity). Here, BCCAAG has much more narrow interests than EPA, and it is not only p ossible but likely that EPA will not adequatel y represent those interests. F or example, although EPA is generall y interested in regulating air quality, it has no specific interest in ensuring that BCCAAG can participate in any process th at rewrites the Phase I rule. N or does EPA have a specific18

interest in protecting HGB’s interest in seeking a prompt Termination Determination. In fact, EPA’s own conduct illustrates that its litigation strategy may b e governed by

p olicy considerations outside the merits of Sierra Club’s claims. SeeMot. for Extension of Time to Set Briefing Schedule (Dkt. # 9) (explaining that EPA is working towards a settlement with Sierra Club); see also Kleissler v. United States Forest Serv. , 157 F.3d 964, 974 (3d C ir. 1998) (“Although it is unlikely

that the intervenors’ economic interests will change, it is not realistic to assume that the agency’s programs will remain static or unaffected by unanticipated policy shifts.”); American Horse Prot. , 200 F.R.D. at 159 (representation may be inadequate where “budgetary

and manpower demands may drive how much time the USDA can devote to this litigation and whether it can settle this case with plaintiffs”). N otabl y, the threat of Section 185 fees (an injury

to BCCAAG's members) is not shared b y EPA or Sierra Club. **II. BCCAAG SHOULD BE PER** **MITTED TO INTERVENE.** BCCAAG also satisfies the standard for permissive intervention. F ederal Rule of Civil Procedure 24(b)(1) provides that a court may allow intervention when the movant “shares with the main action a common question of law or fact.” C ourts should also consider whether the requested intervention will “unduly delay or prejudice the adjudication of the original parties’ rights.” Fed. R. Civ. P. 24(b)(3). Inthis case, the c laims or defenses of BCCAAG focus on the same key questions of law at issue in the main action, i.e ., whether EPA is obligated to make the findings sought by S ierra Club and whether those findings would automatically l ead to the imposition of Section 185 f ees. And, as discussed above, BCCAAG’s intervention will not delay resolution of this action or prejudice any existing parties. Therefore, in the interests of fairness, BCCAAG should be permitted to intervene.19 **CONCLUSION** For the foregoing reasons, the C ourt should grant BCCAAG’s Motion to Intervene. Respectfully

submitted, /s/ Richard P. Sobiecki Richard P. Sobiecki (D.C. Bar # 500163) Baker Botts L.L.P. 1299 Pennsylvania Ave., N.W. Washington, D.C. 20004 (202) 639 - 7906 rich.sobiecki@bakerbotts.com Zachary L . Craft Baker Botts L.L.P. One Shell Plaza 910 Louisiana Houston, Texas 77002 (713) 229 - 1133 zachary .craft@bakerbotts.com Attorneys for BCCA Appeal Group20 **CERTIFICATE OF SERVICE** I hereb y certify

that on June 8, 2011, the foregoing Motion toIntervene and all attachments were sent via electronic mail and Federal Express to the following counsel of record: Eric G. Hostetler UNITED STATES DEPARTMENT OF JUSTICE Environment & Natural Resources Division 601 D St. NW Washington, DC 20004 (202 ) 305 - 2326 (202) 514 - 8865 (fax) eric.hostetler@usdoj.gov Robert Steven Ukeiley 435 R Chestnut Street Suite 1 Berea, KY 40403 (859) 986 - 5402 (866) 618 - 1017 (fax) rukeiley@igc.org

/s/ Richard P. Sobiecki Richard P. Sobiecki