ORAL ARGUMENT NOT YET SCHEDULED 

IN THE UNITED STATES COURT OF APPEALS 

FOR THE DISTRICT OF COLUMBIA CIRCUIT 

ARKEMA INC., et al, 

Petitioners, 

v. 

UNITED STATES ENVIRONMENTAL 

PROTECTION AGENCY, 

Respondent. 

Nos. 09-1318 and 09-1335 

(Consolidated) 

Petitions for Review of Final Administrative Action 

Of The United States Environmental Protection Agency 

PETITION FOR REHEARING 

OR REHEARING EN BANC 

OF COUNSEL: 

DIANE MCCONKEY 

Office of General Counsel 

U.S. Environmental Protection Agency 

Ariel Rios Building 

1200 Pennsylvania Avenue, N. W. 

Mail Code: 2344A 

Washington, DC 20460 

IGNACIA S. MORENO 

Assistant Attorney General 

MATTHEW R. OAKES 

PERRY M. ROSEN 

United States Department of Justice 

Environment & Natural Resources Div. 

Environmental Defense Section 

P.O. Box 23986 

Washington D.C. 20026-3986 

Tel: (202) 514-2686 
1 

 The United States Environmental Protection Agency (“EPA”) requests en banc

or, alternatively, panel rehearing of the panel’s divided Opinion, Arkema Inc. v. EPA, 

618 F.3d 1, 7 (D.C. Cir. Aug. 27, 2010), holding that EPA impermissibly and 

retroactively deprived petitioners Arkema Inc., Solvay Fluorides, LLC, and Solvay 

Solexis, Inc. (collectively “Petitioners”) of “vested rights” in baseline allowances for 

ozone-depleting substances known as hydrochlorofluorocarbons (“HCFCs”). 

The decision involves a question of exceptional importance regarding 

retroactivity of agency action. The Clean Air Act (“CAA”) and the Montreal Protocol 

on Substances that Deplete the Ozone Layer (“Montreal Protocol”) require that 

production of HCFCs be phased out. By finding “vested rights” where there were 

none, the decision requires that EPA continue to recognize HCFC allowances that 

were never intended to be permanent. See Arkema, 618 F.3d at 10 (“EPA never stated, 

not once, that a company’s inter-pollutant transfers would permanently and forever 

alter the company’s baseline for these pollutants.”) (Randolph, J., dissenting). The 

decision thus seriously undermines the statutorily-prescribed HCFC phase-out 

process. Moreover, en banc review is necessary to ensure uniformity of the Court’s 

decisions, as the panel decision conflicts squarely with precedent, including DirecTV, 

Inc. v. FCC, 110 F.3d 816, 826 (D.C. Cir. 1997), where this Court found no 

retroactivity in very similar circumstances. 

Finally, the panel’s decision may inadvertently create a vested right for all 

entities previously issued HCFC allowances, a situation that complicates 
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implementation of the decision. In the Final Rule, EPA established a total amount of 

authorized production as a percentage of baseline allowances. The panel majority held 

that Petitioners have “vested rights” in their HCFC baseline allowances, but EPA 

cannot give Petitioners additional baseline allowances without decreasing the percentage 

of baseline that each company – including petitioners’ numerous competitiors – will 

be allowed to produce. Indeed, other HCFC producers recently filed petitions for 

review of the very allowance transfer approvals that, per the panel majority’s decision, 

gave rise to Petitioners’ “vested rights.” Those petitions argue that, in light of the panel 

decision, EPA’s actions deprived Petitioners’ competitors of the value and benefit of 

their own HCFC allowances without due process of law. See Honeywell Int’l v. EPA, 

Case Nos. 10-1347, 10-1348, 10-1349, 10-1350 (D.C. Cir. filed Oct. 26, 2010). 

Had the panel majority given appropriate deference to EPA’s interpretation of 

its own regulations and allowance transfer application forms – or given any weight to 

correspondence showing that even Solvay understood that the allowance transfers 

were not permanent – it would have found no “vested right” to any allowances, and 

this conundrum could easily have been avoided. 

BACKGROUND

Title VI of the Clean Air Act, 42 U.S.C. §§ 7671-7671q, requires EPA to phase 

out production and consumption of HCFCs and other ozone-depleting substances. 

The Montreal Protocol used a 1989 assessment to determine baseline HCFC import, 

production and consumption levels (for ease of reference, we refer only to 
3 

“production” in this petition); it requires the United States to reduce its HCFC 

production 35% from those baseline levels by 2004, and production 75% by 2010, 

90% by 2015, 99.5% by 2020, and eliminate it entirely by 2030. Congress thus directed 

EPA to promulgate rules that would establish HCFC “allowances”; permit the 

transfer of such allowances between companies, or from one HCFC to another, in 

certain circumstances; and ensure that any such transfers “will result in greater total 

reductions in the production in each year of [ozone-depleting] substances” than 

would occur absent such transactions. 42 U.S.C. § 7671f. The Act allows two distinct 

types of transfers: “inter-pollutant transfers,” in which allowances for the production 

of one ozone-depleting substance may be exchanged for allowances for the 

production of a different substance during the same year, 42 U.S.C. § 7671f(b)(1); and 

“inter-company transfers,” in which allowances for the production of an ozonedepleting substance may be transferred from one company to another. Id. § 7671f(c). 

“Inter-company transfers” are not limited to production within the same year. 

In 2003, EPA established an allowance system that addressed the required 35% 

reduction of HCFC consumption by 2004. 68 Fed. Reg. 2831-33 (Jan. 21, 2003) (the 

“2003 Rule”). The 2003 Rule expressly applied only to the regulatory period from 2004 

through 2009. 40 C.F.R. § 82.16(a); see also 68 Fed. Reg. at 2823. It prohibited 

production of HCFCs without allowances for that calendar year, 68 Fed. Reg at 2848, 

and also contained provisions permitting inter-pollutant and inter-company allowance 

transfers. The Rule gave no indication that inter-pollutant transfers of allowances 
4 

were “permanent,” but instead required that a company conducting an inter-pollutant 

transfer submit to EPA a transfer claim identifying, among other things, “the control 

period(s) for which the allowances are being converted . . . .” 40 C.F.R. § 

82.23(b)(3)(vii). Each calendar year from 2003 to 2009 was identified as a separate 

“control period.” See, e.g., 68 Fed. Reg. at 2823. No reference was made to years 

following 2009. Permanent inter-company transfers, on the other hand, were expressly 

recognized by EPA. Id. at 2835 (“The permanent transfer of baseline allowances is a lasting 

shift of some quantity of a company’s allowances to another company.”) (emphasis added). 

To effectuate transfers, EPA developed a form that allowed a company to identify the 

HCFC allowances being transferred and whether the allowances transferred were 

“current year allowances” or “baseline year allowances.” See Transfer Form (Att. A). 

In 2008, EPA proposed a rule to govern the 2010-2014 step-down period. 73 

Fed. Reg. 78,680 (Dec. 23, 2008). EPA expressly noted that, “[a]bsent a grant of 

calendar-year allowances for these HCFCs, [40 C.F.R.] § 82.15 would prohibit their 

production and import after December 31, 2009.” Id. at 78,686. Thus, in order to 

produce, a company must hold calendar-year allowances, the baseline allowances being 

a mere distribution plan, not an authorization to produce. In the proposal, EPA 

identified at least five options for allocating HCFC allowances after 2009, including 

allocating a percentage of the baselines established in the 2003 Rule either “with or 

without considering any permanent baseline transfers and/or inter-pollutant 

transfers.” Id. at 78,687. On December 15, 2009, EPA issued the Final Rule that 
5 

Petitioners challenge. See “Adjustments to the Allowance System for Controlling 

HCFC Production, Import, and Export,” 74 Fed. Reg. 66,412. After considering 

comments, EPA decided not to reflect inter-pollutant transfers from the prior stepdown period in setting the baselines for the 2010-2014 step-down period, because 

“reflecting such transfers in this rule would disrupt the entire market in 2010” and 

“could create incentives for future manipulation of the allocation system.” 74 Fed. 

Reg. at 66,421. EPA also concluded that CAA section 7671f “is best read as 

permitting only year-by-year inter-pollutant transfers.” Id.

Two HCFCs are relevant here: HCFC-22, for which there is a robust market; 

and HCFC-142b, for which there is not. Both Petitioners held plentiful HCFC-142b 

allowances, and in 2008 both transferred their allowances for low-demand HCFC142b to allowances for high-demand HCFC-22. By way of example, one of the two 

Petitioners here used inter-pollutant transfers of the now nearly worthless HCFC141b to increase its allowances for the desirable HCFC-22 by over 900%, a result that 

the panel’s decision requires the agency to perpetuate. Each of Solvay's 2008 transfer 

requests acknowledges: “[T]his transfer is for Baseline Year Allowances and therefore 

is being done on a permanent basis (i.e. multi-year transfer for 2008 and 2009).” Arkema, 

618 F.3d at 11 (Randolph, J., dissenting) (emphasis in opinion). Solvay’s statement is 

consistent with EPA’s interpretation of its own regulations and transfer application 

form: that, notwithstanding Solvay’s characterizations of those inter-pollutant 

transfers as “permanent,” the transferred allowances were only valid for “control 
6 

periods” (i.e., calendar years) within the 2004-2009 step-down period and had no value 

beyond that step-down period. See id. 

Petitioners challenged the Final Rule, and moved for a stay pending review. 

The motions panel (Judges Ginsburg, Henderson and Rogers) denied the motion, see 

Order, Jan. 21, 2010, allowing the industry to operate through most of 2010 on the 

assumption that EPA’s allowance allocations would control. Indeed, the merits panel 

concluded that, in the Final Rule, EPA reasonably interpreted the statute to “limit 

inter-pollutant trades to a single year and [EPA] can prohibit inter-pollutant baseline 

transfers.” 618 F.3d at 10 (emphasis added). The panel majority went on to hold, 

however, that EPA could only apply this interpretation prospectively, because “EPA’s 

practice under the 2003 Rule was to allow Petitioners’ baseline transfers of interpollutant allowances,” id. at 8 (emphasis added), thereby giving Petitioners permanent 

“vested rights” in those transferred allowances, id. at 7. 

Judge Randolph dissented, noting that nothing in the 2003 Rule, its preamble, or 

the record supported the panel majority’s conclusions regarding retroactive effects or 

vested rights. Per express language of the preamble, the only “permanent” transfers 

permitted by the 2003 Rule were inter-company transfers. Id. at 10. As Judge Randolph 

stated, this “should have alerted all affected parties that there was no similar option 

for [permanent] transfers within one company, a position reflected in the regulations 

themselves.” Id. (citing 40 C.F.R. § 82.23(d)). Moreover, he noted, EPA’s proposal in 

2008 to allocate allowances for the 2010-2014 regulatory period “‘with or without’ 
7 

considering [prior inter-pollutant] transfers would be nonsensical” if EPA had 

previously authorized “permanent” inter-pollutant transfers. 618 F.3d at 10-11. 

Similarly, he noted, “The only correspondence to use the word ‘permanent’ in 

connection with these trades specifically noted that it ‘should not be interpreted to 

signal a particular course of action for development of HCFC allowances for 2010-

2014.” Id. at 11. Finally, Judge Randolph rejected the panel majority’s holding that 

Petitioners had “vested rights” in the transferred allowances, explaining that EPA 

regulations governing future production of HCFCs cannot be retroactive because such 

regulations did not upset expectations based in prior law. Id. at 12 (“EPA’s 2010 

regulations impose no new liability or duty on petitioners.”). 

ARGUMENT 

I. The Final Rule Is Not Impermissibly Retroactive. 

 The panel majority’s determination that the Final Rule is impermissibly 

retroactive is inconsistent with this Court’s precedent, and is based on a flawed 

conclusion that petitioners have “vested rights” to prior inter-pollutant transfers. 

Moreover, the panel majority arrived at its conclusion because it failed to give the 

requisite deference to EPA’s interpretation of its own regulations. This decision has 

already led to four D.C. Circuit petitions by other members of the regulated industry 

asserting conflicting “vested rights” of their own, and if allowed to stand will lead to 

regulatory confusion. In such a setting, it will be difficult, if not impossible, to ensure 

sufficient HCFC reductions to attain the goals of the CAA and Montreal Protocol. 
8 

A. The Decision Conflicts with Circuit Law on Retroactivity. 

The Final Rule is forward-looking and establishes HCFC allocations for 2010-

2014. It does not render any past action by Arkema or Solvay either illegal or 

otherwise sanctionable and does not attach new legal consequences to events 

completed before its promulgation. An agency order that “alters the future effect, not 

the past legal consequences” of an action, Sinclair Broad. Group v. FCC, 284 F.3d 148, 

166 (D.C. Cir. 2002), or that “ ‘upsets expectations based on prior law,’ ” DirecTV, Inc. 

v. FCC, 110 F.3d 816, 826 (D.C. Cir. 1997) (citation omitted), is not retroactive. 

In this case, EPA was planning the future distribution of a limited resource – 

calendar-year allowances for the production of HCFCs – and, through the rulemaking 

process, assessed the appropriateness of its prior regulatory approach and determined 

how to best implement the next mandatory HCFC step-down. The panel majority 

recognized that an agency is entitled to change its regulatory approach prospectively, 

as long as that change is adequately explained. Arkema, 618 F.3d at 6. For HCFCs, the 

allowance distribution regime created in the 2003 Rule ended by its terms in 2009; 

through the Final Rule, EPA determined how calendar-year allowances would be 

distributed in an entirely new regulatory period. See 40 C.F.R. § 82.16(a). See also 68 Fed. 

Reg. at 2823. In DirecTV this Court faced an analogous situation, in which the Federal 

Communications Commission (“FCC”) was redistributing reclaimed satellite channels, 

after originally stating that channels would be awarded in equal numbers to each 

applicant. 110 F.3d at 821-22. The channels had previously been permitted on this pro 
9 

rata basis, but the FCC subsequently reversed course and established an alternative, 

auction-based system. Id. DirecTV argued that the FCC’s change in course was 

impermissibly retroactive because it divested the company of a “right to a pro-rata 

share of the . . . channels.” Id. at 825. This Court disagreed, holding that the FCC’s 

action was not retroactive because the FCC’s prior, pro rata approach did not 

establish that any company had a right to any channels; it merely set out a plan for 

distribution of those channels among the companies. Id. at 826. That some companies 

may have acted or invested based on their expectation that pro rata distribution of 

channels would continue, did not make the FCC’s change in position impermissibly 

retroactive. Id. The reasoning in DirecTV applies with even greater force here, where 

the 2004-2009 regulatory period had ended, leaving in place an absolute regulatory 

ban on HCFC production that could be lifted only through the issuance of new 

regulations. In short, prior to promulgating the Final Rule, EPA had not established 

any right to specific calendar-year allowances for the years 2010-2014. 

Petitioners’ past HCFC transfers are not rendered illegal by the Final Rule, and 

no adverse legal consequences flow from those transfers. Instead, when writing rules 

for the next step-down period, EPA simply chose not to carry over inter-pollutant 

transfers from one step-down period to the next, and to clarify its statutory 

interpretation in this regard. Regulations that impair the future value of past bargains, 

but that do not render those past actions illegal or otherwise sanctionable, are not 

impermissibly retroactive. See Nat’l Cable & Telecomms. Ass'n v. FCC, 567 F.3d 659, 670 
10 

(D.C. Cir. 2009) (“ ‘It is often the case that a business will undertake a certain course 

of conduct based on the current law, and will then find its expectations frustrated 

when the law changes’. . . . Such expectations, however legitimate, cannot furnish a 

sufficient basis for identifying impermissibly retroactive rules.”) (citations omitted). 

Indeed, where a regulatory decision affects the financial expectations of regulated 

entities, those expectations alone cannot form the basis for a retroactivity finding. See

Mobile Relay Assocs. v. F.C.C., 457 F.3d 1, 11 (D.C. Cir. 2006). 

The panel majority nonetheless relied on Arkema and Solvay’s business 

expectations, as set out in their appellate briefs, as the basis for concluding that both 

had “vested rights” in the transferred allowances. See Arkema, 618 F.3d at 7-8. 

However, even if such business expectations could form the basis for Petitioners’ claim 

that the 2003 Rule is impermissibly retroactive, Petitioner Solvay’s correspondence 

with EPA demonstrates that Solvay, at least, had no such expectation: each 2008 

transfer request Solvay submitted stated explicitly that “[t]his transfer is for Baseline 

Year Allowances and therefore is being done on a permanent basis (i.e. multi-year 

transfer for 2008 and 2009).” Id. at 11 (Randolph, J., dissenting) (emphasis in opinion). 

In short, this correspondence demonstrates that, when Solvay used the terms 

“permanent” and “Baseline Year Allowances” to refer to these transfers, it meant only 

that they were effective for the remaining two years of the 2004-2009 step-down 

period. The panel majority dismissed this correspondence, id. at 9-10, but the fact that 

EPA or Solvay or both treated such allowance transfers as carrying over from one 
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year (or “control period,” as the regulations define each year) to the next within the 

same step-down period says nothing about whether those allowances would carry over 

from one step-down period to the next and would be reflected in the new baseline. 

The panel majority claimed that “[t]he Agency’s approval and acknowledgment 

of Petitioners’ actions distinguishes this case,” id. at 8, but EPA never stated that its 

approval of Petitioners’ transfers constrained the Agency’s options for the next 

regulatory period. See Arkema, 618 F.3d at 12 (J. Randolph, dissenting). Indeed, EPA 

made clear at the outset that its 2003 Rule governed production only during 2004-

2009, with a new regulation required for later periods. As the majority recognized, 

EPA is entitled to revise its plan for distributing allowances for ozone-depleting 

substances. Id. at 6. See DirecTV, 110 F.3d at 826; Black Citizens for a Fair Media v. FCC, 

719 F.2d 407, 411 (D.C. Cir. 1983). The majority’s decision is seriously flawed, and 

significantly affects EPA’s efforts to make allocations under Title VI of the CAA. 

B. Petitioners Have No Vested Right to Inter-Pollutant Transfers. 

Arkema and Solvay have no “vested” right to a permanent inter-pollutant 

transfer. Until the Final Rule was issued, there had never been a transition from one 

regulatory period to another for the HCFC program. EPA’s prior “practice” regarding 

approval of inter-pollutant transfers during a step-down period could not establish a 

practice regarding what would happen to those transfers across step-down periods. The 

majority’s contrary conclusion is not based on EPA’s regulations at all; rather, the 

decision is based on the “apparent[]” implications of an EPA form, Arkema 618 F.3d 
12 

at 7; on an EPA letter, id. at 7-8, which itself cautioned that it was not authoritative, see

Att. B at 3; and on EPA’s inclusion in its notice of proposed rulemaking of figures 

that would have reflected inter-pollutant transfers in baselines for the Final Rule, 

Arkema 618 F.3d at 8, a proposal that EPA did not adopt. The panel majority 

concluded that these actions, combined, established EPA’s “clear practice” of 

allowing inter-pollutant transfers to change a company’s baseline permanently, an 

incorrect conclusion central to the majority’s decision. Id. at 6, 8. As the dissent 

recognized, however, EPA never said that inter-pollutant transfers would forever alter 

a company’s baseline. Id. at 10. EPA’s 2003 Rule does not imply that result, the Final 

Rule expressly reached a contrary conclusion, and EPA practice during the prior 

regulatory period was consistent with EPA’s interpretation. See id. at 11 (“The 

interpretive choice reflected in the 2003 regulations and the one EPA expressly 

adopted in the latest regulations was utterly predictable.”) (Randolph, J., dissenting). 

The 2003 Rule set allowances “from control period to control period (one 

calendar year to the next).” 68 Fed. Reg. at 2823. Specifically, the 2003 rule only 

contained HCFC-22 and HCFC-142b allocations for the years 2004-2009. See 68 Fed. 

Reg. 2849. This structure is consistent with the requirements of the CAA, which 

permits allowances to be transferred between pollutants during the same calendar 

year, but not between regulatory periods. 42 U.S.C. § 7671f(b)(1). No rights to 

produce the two relevant substances were created for any year beyond 2009 in the 

2003 Rule. EPA, in the Final Rule, declined to set new HCFC baselines that reflected 
13 

prior inter-pollutant transfers because that approach would create incentives to 

manipulate the system, undermine EPA’s strategy of eliminating the worst HCFC’s 

first, and reduce market flexibility. 74 Fed. Reg. at 66,420-21. This interpretation was 

not unexpected – even Solvay understood that “permanent” in the context of an 

inter-pollutant transfer merely referred to a transfer that survived for the remainder of 

the current step-down period. See Arkema, 618 F.3d at 11 (Randolph, J., dissenting). 

EPA never referred to permanent inter-pollutant transfers in the 2003 Rule or 

in approving the transfers. Only in later characterizing the transfers in the context of 

considering different regulatory proposals did EPA refer to a “permanent” trade of a 

baseline allowance. See Aug. 14, 2008 Letter at 2 (Att. B). The purpose of EPA’s 

August 2008 letter was to develop a rulemaking proposal which would “seek 

comment on several options for allocating allowances,” id. at 1, and EPA made clear 

that “this letter should not be interpreted to signal a particular course of action for 

development of HCFC allowances for 2010-2014,” id. at 2. EPA clearly stated that the 

letter was intended to, inter alia, request that each recipient confirm information 

“including its current baseline allowances” to be used in development of a new 

proposed rule that would, in turn, “[r]equest comment on establishing production and 

consumption baselines . . . for the 2010-2014 control periods.” Id. at 1. In sum, 

though an EPA letter did refer to a “permanent” trade of baseline allowances, it did 

so only in the context of confirming the current status of allowance trading, a baseline 

number that might or might not be utilized during the next regulatory period. There is 
14 

no indication that EPA guaranteed a particular baseline going forward. To the contrary, 

EPA stressed that “several options for allocating allowances” would be considered. Id. 

at 1. As Judge Randolph recognized in his dissent, EPA did not have an established 

policy of “permanently” recognizing inter-pollutant transfers, because if such a policy 

did exist, EPA’s proposal to allocate allowances “with or without” considering prior 

inter-pollutant transfers would have been nonsensical. Arkema, 618 F.3d at 11. Thus, 

there is no “vested” right to a permanent inter-pollutant transfer. 

The majority’s leap to impose upon EPA a policy recognizing inter-pollutant 

transfers across regulatory periods is inconsistent with not only the Final Rule, where 

EPA declined to recognize prior inter-pollutant transfers when establishing a baseline, 

see 74 Fed. Reg. at 66,421, but also with the 2003 Rule, in which EPA expressly 

recognized permanent transfers only between companies, see 68 Fed. Reg. at 2835, and 

with EPA’s interpretation of its own rules and forms. This Court accords an agency’s 

interpretation of its own regulations a “high level of deference,” accepting it “unless it 

is plainly wrong.” Gen. Elec. Co. v. EPA, 53 F.3d 1324, 1327 (D.C. Cir. 1995) (citation 

omitted); see also Exportal Ltda. v. United States, 902 F.2d 45, 50 (D.C. Cir. 1990) (“It is 

well established that a reviewing court owes deference to an agency’s construction of 

its own regulations.”). Thus, EPA's interpretation is entitled to deference as long as it 

is “logically consistent with the language of the regulation[s] and . . . serves a 

permissible regulatory function.” Gen. Elec., 53 F.3d at 1327. 

EPA has interpreted its own regulations, as well as its form and letter, as not 
15 

creating a right to carry over inter-pollutant transfers between different regulatory 

step-down periods. “The majority owes EPA deference for its interpretation of its 

form, but it gives the agency none.” Arkema, 618 F.3d at 11 (Randolph, J., dissenting) 

citing Global Crossing Telecomms., Inc. v. FCC, 259 F.3d 740, 746 (D.C. Cir. 2001); 

Wyoming Outdoor Council v. U.S. Forest Serv., 165 F.3d 43, 53 (D.C. Cir. 1999). Rather 

than deferring to EPA’s statement of its own policy, the majority decision creates a 

prior policy for the Agency, relying on inferences drawn from the Court’s own 

interpretation of EPA letters, an EPA form, and statements in a proposed rulemaking. 

This interpretation is contrary to the statute, which limits inter-pollutant transfers to 

production that occurs within the same year; and contrary to the 2003 Rule, the 

preamble of which states that the only “permanent” transfers are those between 

companies. EPA’s interpretation of its own regulation was entitled to the highest level 

of deference under Auer v. Robbins, 519 U.S. 452, 461 (1997) (agency’s interpretation 

of its own regulation is “controlling unless ‘plainly erroneous or inconsistent with the 

regulation’”) (citation omitted), but no such deference was extended here. 

The majority improperly recognized a “vested” right and failed to afford EPA’s 

interpretation any deference. These errors, combined with the majority’s improper 

application of D.C. Circuit caselaw on retroactivity, require rehearing in this case. 

CONCLUSION

For the reasons stated above, en banc rehearing or, in the alternative, panel 

rehearing should be granted. 
16 

 Respectfully submitted, 

DATE: November 12, 2010 

OF COUNSEL: 

DIANE MCCONKEY 

Office of General Counsel 

U.S. Environmental Protection Agency 

Ariel Rios Building 

1200 Pennsylvania Avenue, N. W. 

Mail Code: 2344A 

Washington, DC 20460 

IGNACIA S. MORENO 

Assistant Attorney General 

Environment & Natural Resources Div. 

/s/ Matthew R. Oakes . 

MATTHEW R. OAKES 

PERRY M. ROSEN 

United States Department of Justice 

Environment & Natural Resources Div. 

Environmental Defense Section 

P.O. Box 23986 

Washington D.C. 20026-3986 

Tel: (202) 514-2686 

Fax: (202) 514-8865 

matthew.oakes@usdoj.gov

Counsel for Respondent EPA 

 
17 

CERTIFICATE OF SERVICE

 I hereby certify that the foregoing PETITION FOR REHEARING OR 

REHEARING EN BANC was electronically filed with the Clerk of the Court using 

the CM/ECF system, which will send notification of said filing to the attorneys of 

record for Petitioners, who have registered with the Court’s CM/ECF system. 

Date: November 12, 2010 /s/ Matthew R. Oakes . 

 Matthew R. Oakes 

 Counsel for Respondent EPA