From: "Steinwurtzel, Robert N." <rsteinwurtzel@bakerlaw.com> 

To: Chuck French/RTP/USEPA/US@EPA 

Cc: "DeLaquil, Mark" <mdelaquil@bakerlaw.com>, Russell Kemp <rkemp@environcorp.com>, 

"Steinwurtzel, Robert N." <rsteinwurtzel@bakerlaw.com>, "adam.katz@usdoj.gov" 

<adam.katz@usdoj.gov> 

Date: 06/15/2011 02:47 PM 

Subject: FW: Sierra Club v. EPA 

Chuck, on behalf of the ABR, I am writing you to request that EPA reconsider the schedule submitted to 

the court in the Sierra Club "deadline" case. As you know, the ABR has identified significant issues with 

the proposed rule where EPA has, for example, relied upon estimates and extrapolations to set 

standards rather than relying upon actual data. Furthermore, EPA has not consider emissions from a 

secondary lead smelter located in Puerto Rico. These issues, among other substantive concerns, will be 

briefly noted in my response to your inquiry regarding additional testing that I will send to you by 

electronic mail under separate cover later today. 

I understand that EPA has been willing to extend the deadlines for other industries even after proposed 

rules have been published in those instances. Indeed, some of those extensions have been for more 

than one year. I am attaching a copy of a stipulation to the court memorializing the agency's willingness 

to extend deadlines for other industries. Hence, there is precedent to extend the deadline currently 

adopted by the agency for the secondary lead industry. 

In closing, from all parties perspective, EPA should grant the ABR's pending request to amend the 

deadline to submit comments from July 5 to September 7, and engage in discussions in the intervening 

time period about a realistic time table for EPA to promulgate a final rule as well as the possibility for 

the issuance of a supplemental proposal. I request EPA's immediate consideration of this request. 

Thank you, Robert. 

My Bio | Web site | V-card 

T 202.861.1708 

F 202.861.1783 

M www.bakerlaw.com 

Robert Steinwurtzel rsteinwurtzel@bakerl aw.com 

Baker & Hostetler LLP 

Washington Square, Suite 1100 

1050 Connecticut Avenue, N.W. 

Washington, D.C. 20036-5304 
STIPULATION TO MODIFY THE PROPOSED 

CONSENT DECREE (DOCKET NO. 65)

Case No. 09-cv-00152 SBA 

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

IGNACIA S. MORENO

Assistant Attorney General 

ADAM J. KATZ (D.C. Bar No. 502776) 

United States Department of Justice 

Environmental Defense Section 

601 D Street, NW 

Suite 8000 

Washington, DC 20004 

Tel: (202) 514-2689 

Fax: (202) 514-8865 

Email: adam.katz@usdoj.gov 

Attorneys for Defendant Lisa P. Jackson, Administrator of EPA 

EMMA C. CHEUSE (Appearing Pro Hac Vice, D.C. Bar No. 488201) 

JAMES S. PEW (Appearing Pro Hac Vice, D.C. Bar No. 448830) 

Earthjustice 

1625 Massachusetts Avenue, N.W., Suite 702 

Washington, D.C. 20036 

Tel: (202) 667-4500 ext. 220 or 214; Fax: (202) 667-2356 

Email: echeuse@earthjustice.org 

Email: jpew@earthjustice.org 

SARAH H. BURT (Cal. Bar No. 250378) 

Earthjustice 

426 17th Street, 6th Floor 

Oakland, CA 94612 

Tel: (510) 550-6700 

Email: sburt@earthjustice.org 

Attorneys for Plaintiff Sierra Club 

UNITED STATES DISTRICT COURT 

NORTHERN DISTRICT OF CALIFORNIA 

OAKLAND DIVISION 

SIERRA CLUB, 

Plaintiff, 

 v. 

LISA P. JACKSON, Administrator, United 

States Environmental Protection Agency, in her 

official capacity, 

Defendant.

) 

) 

) 

) 

) 

) 

) 

) 

) 

) 

) 

Case No. 09-cv-00152 SBA 

STIPULATION TO MODIFY THE 

PROPOSED CONSENT DECREE 

(DOCKET NO. 65) 

Case4:09-cv-00152-SBA Document88 Filed06/10/11 Page1 of 5
STIPULATION TO MODIFY THE PROPOSED 

CONSENT DECREE (DOCKET NO. 65)

1 Case No. 09-cv-00152 SBA 

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

Plaintiff Sierra Club and Defendant Lisa P. Jackson, in her capacity as Administrator of 

the United States Environmental Protection Agency (EPA), file this stipulation notifying the 

Court that the parties have agreed to extend four deadlines for EPA action set forth in the 

proposed Consent Decree (CD) that EPA and Sierra Club moved to enter in September 2010. 

(Dkt. 65). The proposed CD sets deadlines for EPA to initiate and complete rulemakings under 

the Clean Air Act for various categories of sources of hazardous air pollutants. (Dkt. 65-1). 

Although the Court has not yet entered the CD, Magistrate Judge Larson recommended in 

December 2010 that the Court do so. (Dkt. 76). 

The CD allows (at ¶ 31) for Sierra Club and EPA to extend certain deadlines for 

rulemaking action by written stipulation with notice to the Court. (Dkt. 65-1). The parties submit 

this stipulation extending certain deadlines, and request that the Court consider it to be 

incorporated with the proposed CD in conjunction with the Court’s review of the Magistrate 

Judge’s recommendation that the Court enter the proposed CD. 

WHEREAS, Sierra Club filed its Complaint in this Clean Air Act deadline suit on 

January 13, 2009 (Dkt. 1); 

WHEREAS, EPA filed its Answer on January 29, 2010 (Dkt. 43); 

WHEREAS, EPA lodged a proposed consent decree on July 6, 2010 (Dkt. 58); 

WHEREAS, during July and August 2010, EPA completed the public notice-andcomment procedure for settlements required by section 113(g) of the Clean Air Act, 42 U.S.C. 

§ 7413(g); 

WHEREAS, the public comment period closed on August 13, 2010, Notice of Proposed 

Consent Decree, Clean Air Act Citizen Suit, 75 Fed. Reg. 40,827 (July 14, 2010); 

WHEREAS, in response to some of the comments received and other considerations, 

EPA, with Sierra Club’s consent, modified the proposed consent decree originally lodged with 

the Court; 

Case4:09-cv-00152-SBA Document88 Filed06/10/11 Page2 of 5
STIPULATION TO MODIFY THE PROPOSED 

CONSENT DECREE (DOCKET NO. 65)

2 Case No. 09-cv-00152 SBA 

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

WHEREAS, Sierra Club and EPA filed a joint motion to enter the proposed CD on 

September 27, 2010 that will, if approved and entered, fully resolve the merits of this case (Dkt. 

65); 

WHEREAS, on December 22, 2010, Magistrate Judge Larson entered a Report and 

Recommendation (R&R) describing the proposed CD (Dkt. 65-1) as the product of “a complex, 

year-and-a-half long negotiation process carried out in good faith and at arms length between 

well-informed parties,” and recommending that this Court enter it based on his finding that the 

CD is “fair, reasonable, in the public interest, and consistent with the purposes of the [Clean Air 

Act].” R&R at 6 (Dkt. 76); 

WHEREAS, Defendant-Intervenors filed Statements of Non-Opposition to the Motion to 

Enter (Dkts. 69 and 70), and did not object to the Report and Recommendation;1

WHEREAS, on September 14, 2010, EPA signed proposed actions for the Hard and 

Decorative Chromium Electroplating and Chromium Anodizing Tanks source category 

(HDCECAT) and for the Steel Pickling-HCL Process Facilities and Hydrochloric Acid 

Regeneration Plants source category (Steel Pickling), as required by Paragraphs 4(a) and 5(a) of 

the CD; 

WHEREAS, based on its review of the public comments on the HDCECAT and Steel 

Pickling proposals, EPA intends to issue supplemental proposals for those two source categories 

no later than January 20, 2012; 

WHEREAS, Paragraph 31 of the proposed CD provides, inter alia, that “[t]he deadlines 

established in Paragraphs 1 through 28 may be extended . . . by written stipulation of Plaintiff 

and EPA with notice to the Court” (Dkt. 65-1); 

NOW THEREFORE, Sierra Club and EPA hereby stipulate as follows: 

 

1

 On May 19, 2011, the Doe Run Company filed a motion to intervene “to address the limited 

issue concerning the final rule scheduled for primary lead smelting.” Dkt. 83-1. The present 

stipulation has no effect on the primary lead smelting rule. 

Case4:09-cv-00152-SBA Document88 Filed06/10/11 Page3 of 5
STIPULATION TO MODIFY THE PROPOSED 

CONSENT DECREE (DOCKET NO. 65)

3 Case No. 09-cv-00152 SBA 

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

1. EPA’s deadline to perform the actions discussed in paragraph 4(b) of the CD 

(Dkt. 65-1) is extended to August 15, 2012. 

2. EPA’s deadline to perform the actions discussed in paragraph 5(b) of the CD 

(Dkt. 65-1) is extended to August 15, 2012. 

3. EPA’s deadline to perform the actions discussed in paragraph 11(a) of the CD 

(Dkt. 65-1) is extended to December 15, 2011. 

4. EPA’s deadline to perform the actions discussed in paragraph 11(b) of the CD 

(Dkt. 65-1) is extended to July 31, 2012. 

5. The deadlines set forth above in paragraphs 1 through 4 are incorporated with the 

proposed CD (Dkt. 65-1). 

COUNSEL FOR PLAINTIFF: 

Dated: June 10, 2011 

/s/ Emma C. Cheuse 

EMMA C. CHEUSE 

JAMES S. PEW 

Earthjustice 

1625 Massachusetts Avenue, NW, Suite 702 

Washington, D.C. 20036 

Tel: (202) 667-4500 

Email: echeuse@earthjustice.org 

Email: jpew@earthjustice.org 

SARAH H. BURT 

Earthjustice 

426 17th Street, 6th Floor 

Oakland, CA 94612 

Tel: (510) 550-6700 

Email: sburt@earthjustice.org 

COUNSEL FOR DEFENDANT: 

Dated: June 10, 2011 

IGNACIA S. MORENO 

Assistant Attorney General 

Environment & Natural Resources Division 

/s/ Adam J. Katz 

ADAM J. KATZ 

United States Department of Justice 

Environmental Defense Section 

Case4:09-cv-00152-SBA Document88 Filed06/10/11 Page4 of 5
STIPULATION TO MODIFY THE PROPOSED 

CONSENT DECREE (DOCKET NO. 65)

4 Case No. 09-cv-00152 SBA 

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

601 D Street, NW, Suite 8000 

Washington, DC 20004 

Tel: (202) 514-2689 

Fax: (202) 514-8865 

Email: adam.katz@usdoj.gov 

CERTIFICATE OF SERVICE 

 I certify that on June 10, 2011, a true and correct copy of the foregoing STIPULATION 

TO MODIFY THE PROPOSED CONSENT DECREE was served by electronic transmission on 

parties and counsel who are registered ECF Users in this case. 

 /s/ Adam J. Katz 

Case4:09-cv-00152-SBA Document88 Filed06/10/11 Page5 of 5