1 

ORAL ARGUMENT NOT YET SCHEDULED

UNITED STATES COURT OF APPEALS 

FOR THE DISTRICT OF COLUMBIA CIRCUIT 

 ) 

NATIONAL ASSOCIATION OF CLEAN 

WATER AGENCIES, 

) 

) 

 ) 

Petitioner ) No. 11-1131 

 ) (consolidated with Nos. 

v. ) 11-1167 and 11-1185) 

 ) 

ENVIRONMENTAL PROTECTION 

AGENCY and LISA PEREZ JACKSON, 

ADMINISTRATOR, ENVIRONMENTAL 

PROTECTION AGENCY 

) 

) 

) 

) 

 ) 

Respondents ) 

_______________________________________) 

EMERGENCY JOINT MOTION FOR STAY OF THE SSI RULE

Pursuant to Fed. R. App. P. 18 and Circuit Rule 18, the National Association 

of Clean Water Agencies (“NACWA”) and Hatfield Township Municipal 

Authority (“Movants”) hereby move for an order staying the Environmental 

Protection Agency (“EPA” or “Agency”) action entitled “Standards of 

Performance for New Stationary Sources and Emission Guidelines for Existing 

Sources: Sewage Sludge Incineration Units,” 76 Fed. Reg. 15372 (Mar. 21, 2011) 

(the “SSI Rule”). EPA and Sierra Club state that they oppose this Motion. 

In the SSI Rule, EPA illegally promulgated numerous stringent emission 

limitations, operating conditions and other requirements under § 129 of the Clean 

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Air Act (“CAA”), 42 U.S.C. § 7429, applicable to sewage sludge incinerators 

(“SSIs”). The SSI Rule is demonstrably unlawful and, if it remains in effect, will 

result in concrete and irreparable harm to the many communities who rely upon 

incineration, without concomitant benefits to other parties or the environment. 

STANDARD FOR GRANTING A STAY

The Court weighs four factors in considering motions to stay an agency rule: 

(1) Has the petitioner made a strong showing that it is likely to prevail on the 

merits? (2) Has the petitioner shown that without such relief, it will be irreparably 

harmed? (3) Would the issuance of a stay substantially harm other parties? 

(4) Where lies the public interest? Circuit R. 18(a); see also Virginia Petroleum 

Jobbers Ass’n v. FPC, 259 F.2d 921, 925 (D.C. Cir. 1958). These factors are 

considered together and balanced against one another; a “stay may be granted with 

either a high probability of success and some injury, or vice versa.” Cuomo v. 

NRC, 772 F.2d 972, 974 (D.C. Cir. 1985). In this case, each factor weighs heavily 

in favor of staying the SSI Rule. 

ARGUMENT

EPA’s promulgation of the SSI Rule is an extreme example of Agency 

obduracy and regulatory corner-cutting with imminently harmful results for the 

communities who rely upon incineration as the only practical solution for 

managing the sewage sludge from their wastewater treatment facilities. By setting 

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emission standards under CAA § 129, EPA has violated a clear statutory mandate 

to regulate SSIs under the more flexible regime in CAA § 112(d). Congress 

included SSIs under § 112(d) to enhance the flexible scheme reserved for publicly 

owned treatment works (“POTW”) under the CAA and the Federal Water Pollution 

Control Act (“CWA”), and EPA’s decision to impose standards under § 129 is 

contrary to that design. Even if CAA § 129 were applicable to SSIs, EPA has 

violated the CAA mandate to set standards based on the requisite minimum 

number of SSIs. Finally, EPA ignored critical data and other information submitted 

during the comment period, and failed to give weight to information showing that 

the standards are not achievable even for some of the best performing SSIs. 

I. EXPEDITED REVIEW OF THIS MOTION IS WARRANTED. 

Pursuant to Circuit Rule 27(f), Movants request expedited action on this 

Motion. There is no specific date by which Court action is necessary in this 

instance, but expedited consideration is warranted to minimize the imminent and 

irreparable harms being imposed now on over 100 communities who rely on 

incineration, as set forth more fully in Section IV below. 

II. MOVANTS EXHAUSTED THEIR ADMINISTRATIVE REMEDIES. 

Movants previously sought relief from EPA by submitting a Petition for 

Reconsideration and Stay (“Petition”) (Ex. 1) on May 24, 2011. The Petition 

requested an immediate stay of the SSI Rule pending reconsideration of the rule 

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and promulgation of replacement regulations. Receiving no response, on June 27, 

2011 NACWA submitted a supplement to the Petition (Ex. 2). After obtaining two 

extensions of time to act, EPA still has not formally announced its decision on the 

Petition. However, on August 31, 2011 EPA’s counsel orally informed Movants 

that the Agency will not reconsider the decision to regulate SSIs under CAA § 129 

and will not administratively stay the rule. Therefore, EPA has not afforded the 

relief requested. 

III. MOVANTS ARE LIKELY TO PREVAIL ON THE MERITS. 

The SSI Rule is substantively and procedurally unlawful in many respects. 

A. EPA’s Interpretation That SSIs Must be Regulated Under CAA § 129 Is 

Contrary to the Text of the CAA and Arbitrary and Capricious. 

EPA’s foundational claim that SSIs are subject to regulation under CAA 

§ 129 fails both steps of analysis under Chevron U.S.A. Inc. v. Natural Res. Def.

Council, 467 U.S. 837 (1984). The plain language of CAA § 112(e)(5) requires 

EPA to establish national emission standards for hazardous air pollutants 

(“NESHAP”) for POTWs under CAA § 112(d). Because CAA § 129(h)(2) 

provides that regulation of sources under §§ 112(d) and 129 is mutually exclusive, 

EPA cannot regulate SSIs under § 129. EPA’s decision to regulate SSIs under 

§ 129 upsets Congress’ mandate to provide the flexibility local governments need 

to choose the best method of sewage sludge management for their communities. 

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1. Congress Directed that SSIs Be Regulated Under CAA § 112(d). 

In analyzing the interplay between §§ 112(e)(5) and 129, courts are “guided 

not by ‘a single sentence or member of a sentence, but [must] look[ ] to the 

provisions of the whole law, and to its object and policy.’” John Hancock Mut.

Life Ins. Co. v. Harris Trust & Sav. Bank, 510 U.S. 86, 94-95 (1993) (quoting Pilot 

Life Ins. Co. v. Dedeaux, 481 U.S. 41, 51 (1987)). 

CAA § 112(e)(5) requires EPA to “promulgate standards pursuant to” CAA 

§ 112(d) “applicable to publicly owned treatments works as defined in title II of 

the [CWA].” The definition of “treatment works” in Title II of the CWA is 

extraordinarily broad and clearly includes SSIs. CWA § 212(2)(A) defines 

“treatment works” to include, inter alia, “any works ... used for ultimate disposal 

of residues resulting from such treatment.” 33 U.S.C. § 1292(2)(A). This 

definition covers SSIs, whose primary purpose is to dispose of residues resulting 

from sewage treatment. EPA’s regulatory definition of “treatment works” likewise 

reinforces the expansive meaning of the term and just as clearly encompasses SSIs: 

Any devices and systems for the storage, treatment, recycling, and 

reclamation of municipal sewage, domestic sewage, or liquid industrial 

wastes ... These include ... any works ... or any other method or system 

for preventing, abating, reducing, storing, treating, separating, or disposing 

of municipal waste or industrial waste ... . 

40 C.F.R. § 35.905 (emphasis added). 

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The CAA § 112(e)(5) scheme placing SSIs under § 112 is consistent with 

the congressional plan, expressed in CWA § 405(e), for flexibility in regulating 

POTWs and their SSIs. CWA § 405 plays the primary role in regulating the use 

and disposal of sewage sludge. When Congress decided in 1990 to supplement 

that CWA program by using a technology-based approach under the CAA, it 

invoked the CWA to define the POTW source category that EPA was to regulate. 

The legislative history of § 112 shows that Congress was fully aware that 

emissions from POTWs were covered by the CWA and that Congress intended to 

supplement that authority using § 112. See, e.g., S. Rep. No. 100-231, Comm. on 

Env’t and Pub. Works, 1990 CAA Legislative History, at 9436, 9668. There is no 

hint that Congress intended EPA to regulate an SSI differently from the rest of the 

POTW, much less through different authority. 

EPA’s own regulatory pronouncements and actions make clear the Agency’s 

understanding (prior to the SSI Rule) that SSIs are part of the POTW for purposes 

of the CWA and the CAA. First, EPA has consistently provided federal funding to 

POTWs in order to build and upgrade SSIs through its Title II grant fund, under 

which funding is specifically limited to “treatment works” as defined above. See, 

e.g., LeBlanc Decl. ¶ 4 (Ex. 3); Northeast Ohio Regional Sewer District 

(“NEORSD”) Decl. ¶ 4 (Ex. 4); Ball Decl. ¶ 4 (Ex. 5). It may be the case that 

many or all of the approximately 230 SSIs nationwide were constructed or 

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upgraded with Title II construction grants. This would have been plainly contrary 

to the CWA if EPA did not consider SSIs to be part of the “treatment works.” 

Second, EPA has stated repeatedly and unequivocally that SSIs are part of 

the POTW. For example, EPA has consistently held that sewage sludge 

incineration is an inherent part of POTW operations for which CWA Title II 

funding was made available. EPA has also made clear in the Part 503 program that 

“treatment works” include incinerators. See 58 Fed. Reg. 9248, 9359 (Feb. 19, 

1993) (App. A); 40 C.F.R. § 122.2 (treatment is expressly defined to include 

sewage sludge treatment systems). 

Third, EPA has also previously classified SSIs as Congress intended under 

CAA § 112, by identifying SSIs as source category under § 112. In 1992, EPA 

examined the categorization of SSIs under the CAA and included SSIs as a § 112 

source category. See 57 Fed. Reg. 31576 (July 16, 1992) (App. B); see also 58 

Fed. Reg. 9248, 9262, 9276-77 (Feb. 19, 1993) (same) (App. C). In 1999, EPA 

promulgated a NESHAP under § 112 for POTW treatment plants. See 64 Fed. 

Reg. 57572 (Oct. 26, 1999). Although EPA’s preamble inexplicably stated that 

EPA then believed that SSIs were subject to regulation under CAA § 129, EPA 

nowhere elaborated on the rationale for this change from its prior approach or 

justified this new interpretation of the statute. See 62 Fed. Reg. 1868 (Jan. 14, 

1997). Shortly thereafter, EPA reversed its position and expressly stated that SSIs 

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would be regulated under § 112 instead of § 129. See 65 Fed. Reg. 23460 (Apr. 

24, 2000) (App. D). EPA then acted on this by revising the list of major source 

categories under § 112 to delete SSIs, not because they were not covered by § 112, 

but because there were no major sources in that category. See 67 Fed. Reg. 6521 

(Feb. 12, 2002) (App. E). These actions are contrary to EPA’s view, newly 

expressed in the SSI Rule, that SSIs are not subject to regulation under § 112. 

Confronted in the SSI rulemaking with the language of § 112(e)(5) and clear 

indications that Congress intended SSIs to be regulated with POTWs, EPA merely 

responded that it “has taken the position in its regulation of POTW under the Clean 

Air Act that § 112(e)(5) does not apply to SSI units and for this reason did not 

regulate them in its POTW § 112(d) emission standards.” 75 Fed. Reg. 63264 

(Oct. 14, 2000). EPA nowhere in the record explains why it believes § 112(e)(5) 

does not apply to SSIs in the same manner as the rest of a POTW, how EPA’s 

position is reasonable in light of its own contrary interpretations, or how SSIs 

could have been built and improved using CWA Title II funds if they are not 

“treatment works.” The plain meaning of Congress’ invocation in § 112(e)(5) of 

the CWA definition of POTW, coupled with EPA’s many regulatory 

pronouncements and actions, makes EPA’s current position on §§ 112(e)(5) and 

129 clearly contrary to the text of the CAA; and EPA’s failure to articulate an 

explanation for its position is arbitrary and capricious. 

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2. SSIs Are Not “Solid Waste Incineration Units” and So Cannot Be 

Regulated Under CAA § 129. 

SSIs cannot be regulated under CAA § 129 because they do not fit within 

the definition of “solid waste incineration unit” under § 129(g)(1). Per 

§ 129(a)(1)(A) and (b)(1), EPA must set emission standards “for each category of 

solid waste incineration units.” Thus, the definition of solid waste incineration unit 

serves a gate-keeping function – only if a unit is a solid waste incineration unit can 

it be subject to standards under § 129. Section 129(g)(1) defines the term solid 

waste incineration unit as “a distinct operating unit of any facility which combusts 

any solid waste material from commercial or industrial establishments or the 

general public (including single and multiple residences, hotels, and motels).” By 

contrast, sewage sludge is generated in the POTW itself from the treatment of 

wastewater after several stages of filtering, chemical and physical treatment, and 

dewatering. Thus, the sewage sludge combusted in SSIs is generated within the 

POTW, a government-owned facility, and so is not a solid waste material collected 

“from commercial and industrial establishments or the general public” under 

§ 129(g)(1). EPA has itself long acknowledged that sewage sludge is generated in 

the POTW and also concluded that these sludges are not solid waste. See, e.g., 55 

Fed. Reg. 46354, 46364 (Nov. 2, 1990) (sludges generated in the POTW are 

covered under the domestic sewage exclusion) (App. F). 

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EPA incorrectly claims that this Court’s decision in Natural Res. Def. 

Council v. EPA, 489 F.3d 1250 (D.C. Cir. 2007) (“NRDC”), “precludes” EPA 

from regulating SSIs under § 112 and mandates regulation under § 129. See 76 

Fed. Reg. 15383. The issue of how to regulate SSIs simply was not before the 

Court in that case. NRDC invalidated EPA’s attempt to carve out new exceptions 

from the definition of “solid waste incineration units,” which exceptions have no 

bearing on or application to SSIs. The panel in that case did not address or rule on 

the proper application of § 112(e)(5), nor did it address or rule on the regulation of 

POTWs or SSIs or the issue of whether SSIs must be regulated as part of POTWs 

under § 112(d). 

Even if EPA had independently decided that SSIs can be covered by the 

general definition of a solid waste incineration unit, instead of justifying the SSI 

Rule on an incorrect reading of NRDC, such an interpretation is not supportable 

for the reasons discussed above. Further, it is axiomatic that the specific direction 

of Congress contained in § 112(e)(5) is controlling over the general provisions of 

§ 129 dealing with solid waste incineration. See Fourco Glass Co. v. Transmirra 

Prods. Corp., 353 U.S. 222, 228 (1957). 

B. The Standards Are Based Upon an Impermissibly Small Number of 

Sources, and EPA Failed to Use Critical Data. 

Assuming arguendo that SSIs may be regulated under CAA § 129, the 

standards EPA has created are unlawful because (1) the database used to set the 

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maximum achievable control technology (“MACT”) floors does not contain data 

from the statutorily mandated number of SSIs, and (2) EPA failed to consider and 

use all relevant available data. 

1. EPA’s SSI Database Is Inadequate. 

In performing MACT floor calculations, § 129(a)(2) provides that the floor 

for existing sources cannot be less stringent than “the average emission limitation 

achieved by the best performing 12 percent of units in the category.” Unlike 

similar language in § 112(d), § 129(a)(2) does not permit EPA to use a smaller 

number of sources in the calculation where data from the best performing 12% are 

not available. 

The SSI Rule contains two subcategories of sources – fluidized bed 

incinerators (“FBIs”) and multiple hearth incinerators (“MHIs”). Because EPA 

identified 60 existing FBIs and 144 existing MHIs, § 129(a)(2) requires MACT 

floors to be based on data from no less than eight FBIs and 18 MHIs. See “Revised 

MACT Floor Analysis for the Sewage Sludge Incinerator Source Category,” (Jan. 

2011) (“Memo”) at 6 (App. G). Instead, EPA set the floors for FBIs using as few 

as four units (6.7%) for some pollutants and no more than six units (10%) for any 

pollutant. EPA set the floors for MHIs using fewer than 4% of the 144 units in that 

subcategory. By EPA’s own admission, § 129 does not permit it to stop short of 

collecting sufficient emissions information from the required number of SSIs: 

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[W]hile EPA believes Congress intended for the MACT floor calculation 

under [§§ 112 and 129] to be the same, this difference in the text of the two 

provisions requires us to establish the MACT floor for section 129 source 

categories based on the best performing 12 percent of sources in the 

category. Because EPA does not have that data at this time, the statistical 

technique described below is the only manner in which we can establish the 

existing source floor on that basis. 

Memo at 8. Statistical manipulations of an undersized database do not increase the 

number of “units” to meet the minimum specified in § 129(a)(2).1

From the outset, EPA decided not to obtain data from the required minimum 

number of SSIs. By limiting its information collection to only nine of the roughly 

118 POTWs with SSIs, EPA avoided Paperwork Reduction Act and Office of 

Management and Budget review and thereby gained several weeks under its 

rulemaking schedule. See Tsirigotis Decl. ¶ 43, Ex. 6 to Enclosure A of NACWA 

Petition (Ex. 1). By cutting corners, EPA guaranteed that it would not collect 

adequate emissions data from the requisite number of SSIs. 

2. EPA Provided No Rational Explanation for Ignoring Data 

Demonstrating Variability in Emission Characteristics. 

EPA disregarded critical data in its files and timely comments. These data, 

in particular many years of data generated by POTWs through compliance with the 

Part 503 rules, show the high variability of emissions of pollutants from SSIs. 

 

1

 EPA’s SSI count also is arbitrary. Commenters pointed out that a 2009 survey 

counted 234 active SSIs, and EPA did not confirm its inventory. By undercounting 

30 SSIs, EPA’s database is an additional four units short of the statutory minimum. 

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Commenters urged EPA to use Part 503 data to determine the emission rates 

achieved by the best performing sources under the full range of operating 

conditions. However, EPA ignored these data and relied on the original 17 stack 

tests from just nine POTWs. These stack test data do not represent the emission 

profiles of the large population of SSIs – or even the profiles of the tested units 

themselves over time – because they do not account for geographic variability in 

sludge characteristics among POTWs, nor do they account for seasonal and daily 

variability of sludge characteristics within a POTW. 

EPA explained its refusal to use the data in its files and comments by 

claiming that it “did not receive adequate sampling data from the best performing 

sources” and, thus, concluded that “there is not enough information to determine 

whether it would be appropriate to incorporate variability in sludge feed into the 

rule.” 76 Fed. Reg. 15391. This claim is patently untrue; EPA had access to years 

of sludge metals concentration data from all of the POTWs it contends are the best 

performing sources. Under the Part 503 rules, all POTWs are required to collect 

and submit these data directly to EPA or (in some instances) to the state permitting 

authorities that have primacy for the Part 503 program. There is no indication in 

the preamble or the rulemaking docket that EPA tried to retrieve these data from its 

files or contacted a single commenter to obtain new copies of the data. 

EPA also refused to use stack test data submitted by commenters showing 

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that the proposed emission limits are not achievable. EPA did so only because 

these commenters did not include a complete stack test report with their comments. 

Id. at 15387. Again, there is nothing in the record to suggest that EPA tried to 

obtain the backup information to verify the data that were submitted. Moreover, 

complete test reports were not submitted for many of the 17 stack tests EPA did 

use. It is clearly arbitrary for the Agency to use only the data it wants and to 

disregard contrasting information by selectively applying more stringent data 

validation requirements. EPA’s failure to use the Part 503 data and test data 

submitted by commenters violates the § 129 database requirements for making 

MACT floor determinations and the fundamental requirement underlying § 129 for 

rational decisionmaking. See CAA § 307(d)(9); Cement Kiln Recycling Coal. v. 

EPA, 255 F.3d 855, 861-62 (D.C. Cir. 2001). See generally NRDC v. EPA, 194 

F.3d 130, 136 (D.C. Cir. 1999). 

IV. ABSENT A STAY, THE SSI RULE WILL CONTINUE TO CAUSE 

SUBSTANTIAL AND IRREPARABLE HARM. 

A stay is necessary to ensure complete correction of the legal defects in the 

SSI Rule and to avoid irreversible impacts to the environment and to the over 100 

municipalities who rely upon sewage sludge incineration. First, as demonstrated 

by the attached declarations submitted by four POTWs, immediate implementation 

of the SSI Rule is causing significant environmental harm. Because several of the 

emission limitations in the SSI Rule are so stringent, some POTWs – even those 

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that operate SSIs EPA deemed to be among the “best performers” – predict that no 

viable control technologies exist that will allow them to operate in compliance with 

the rule.2

 Municipalities are already being forced to make immediate commitments 

either to take the uncertain path of retrofitting their SSIs or to abandon incineration 

and start the conversion to landfilling.3

 Making such significant changes to a 

POTW takes many months, so these local governments are being forced now to 

make these irretrievable commitments. 

The environmental impacts cascading from municipalities being forced to 

switch to landfilling are irreversible as a practical matter and are magnified 

because landfilling is not an environmentally attractive option for many 

communities. Communities that are forced to switch are extremely unlikely to 

switch back if EPA later promulgates a defensible SSI rule because they will have 

 

2

 See LeBlanc Decl. ¶¶ 5-6 (NOx control technologies never demonstrated) 

(Ex. 3); Ball Decl. ¶ 7 (no reliable method to control mercury) (Ex. 5); Lyons Decl. 

¶ 6 (activated carbon absorption not shown to work) (Ex. 6). Municipalities also 

predict that they do not have the physical space and other necessary facilities to 

retrofit their SSIs to comply with the new standards. See LeBlanc Decl. ¶ 7 

(Ex. 3); Ball Decl. ¶ 7 (Ex. 5). 

3

 For example, New York regulators set a deadline of June 30, 2011 by which 

POTWs were to certify whether they will retrofit to comply with the SSI Rule or 

commit to permanently shut down their SSIs by March 21, 2012. See Supplement 

to Petition (Ex. 2); Lyons Decl. ¶ 9 (Ex. 6). Virginia is likewise moving quickly to 

implement the SSI Rule, forcing HRSD to make its decision on shutting down four 

SSIs with tremendous resulting impacts. See LeBlanc Decl. ¶ 8 (loss of SSIs “will 

potentially result in greater landfilling burdens and increased costs” and increase 

pollution from trucking and landfills) (Ex. 3). 

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eliminated their SSIs and invested millions elsewhere.4

 Thus, the environmental 

impacts would be permanent. Increased diesel exhaust emissions from literally 

thousands of new truck trips travelling, in some cases, more than 260 miles round 

trip to the nearest landfill will greatly exceed emissions from incineration. See

NEORSD Decl. ¶ 12 (Ex. 4); Ball Decl. ¶ 8 (170 miles round trip to nearest 

landfill) (Ex. 5). Due to increased emissions from trucking and from landfill 

emissions, one POTW estimates that the “carbon footprint” resulting from the SSI 

Rule forcing them to switch to landfilling would be more than 35,000 metric tons 

CO2 equivalent greater than their current energy recovery project. See NEORSD 

Decl. ¶¶ 12-13 (Ex. 4). Absent a stay, communities that are forced into landfilling 

would be irretrievably committed to less environmentally beneficial options, 

resulting in irreversible adverse environmental consequences. 

The SSI Rule is also having an immediate chilling effect on environmentally 

beneficial projects. For example, Albany predicts that the SSI Rule will cause it 

and other POTWs to stop undertaking energy recovery and other beneficial 

projects because the projects may trigger expensive and possibly unachievable 

regulation. See Lyons Decl. ¶¶ 5-7 (Ex. 6). The City of Cedar Rapids is evaluating 

replacing its flood damaged older MHI with a new lower emitting FBI, but the SSI 

 

4

 See LeBlanc Decl. ¶ 9 (capital costs of $200 million and net present value of total 

costs equals $546 million) (Ex. 3). 

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Rule may postpone or eliminate this beneficial upgrade. See Ball Decl. ¶ 5. 

Second, absent a stay, EPA’s current interpretation of its standard-setting 

authority under the CAA will operate to cause additional irreparable and 

unjustifiable harm to municipalities who have no practical alternative to 

incineration. This harm will occur even if this Court ultimately agrees that the SSI 

Rule is legally flawed. When EPA published the SSI Rule, it also published 

another set of CAA § 129 standards for commercial and industrial solid waste 

incineration units (“CISWI”). See 76 Fed. Reg. 15704. In the preamble to the 

CISWI rule, EPA responded to comments on the so-called “MACT-on-MACT” 

issue – that is, whether EPA may lawfully include in newly promulgated MACT 

floors the emission levels that incinerators were forced to achieve by virtue of 

unlawful predecessor MACT standards. EPA contended that it must use the 

MACT-on-MACT approach by virtue of the literal language of CAA § 129. Id. at 

15721-22. Although Movants contest EPA’s legal position, it nonetheless sets the 

stage for a profound and irreversible impact on SSIs. If the SSI Rule is not stayed, 

inevitably some POTWs will install new control equipment in an effort to comply. 

The effect will be to lower emissions to some degree and, thereby, to lower 

emission rates of SSIs selected as the best performing units and used to set the 

future MACT floor. If ultimately the Court vacates the SSI Rule, then, according 

to EPA’s interpretation of § 129, SSIs that installed new controls during the 

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litigation will be used to set the new MACT floors. 

Finally, as illustrated by the submitted declarations, many municipalities are 

suffering significant economic harm, and there is no prospect of compensatory 

relief for the costs these communities are incurring. Retrofitting SSIs with add-on 

control equipment is costly and time-consuming; and, unlike private sector 

companies, local governments must begin incurring costs and making 

commitments much sooner in order to meet compliance deadlines. Even by EPA’s 

own estimation, dozens of municipalities will be forced to start spending public 

funds and committing other scarce public resources to planning, engineering and 

procurement of additional building space, add-on control devices and other 

equipment in order to try to meet the present emission standards. Many 

municipalities have already been forced to incur irretrievable costs for planning 

and procurement activities in order to identify compliance gaps, to locate capital 

project funding sources, to acquire the necessary engineering services and 

equipment, and to complete the major infrastructure and control equipment 

installations required for many SSIs. See NEORSD Decl. ¶ 15 (Ex. 4); Lyons 

Decl. ¶ 9 (Ex. 6). These economic impacts on taxpayers have already started and 

will increase in magnitude without a stay. 

V. A STAY WILL NOT HARM ANY OTHER PARTY. 

There is no foreseeable prospect that others will be harmed by staying the 

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SSI Rule. Emissions regulations are already in place under the Part 503 program 

that control emissions from SSIs in order to protect public health, and they will 

continue to remain in place during a stay. Since 1993, SSIs have been subject to a 

comprehensive regulatory program for reducing the potential environmental risks 

of sewage sludge pursuant to CWA § 405 and EPA’s implementing rules in 40 

C.F.R. Part 503. CWA § 405(d) required EPA to establish numeric limits and 

management practices that protect public health and the environment from the 

adverse effects of pollutants in sewage sludge. Section 405(e) prohibits any person 

from disposing of sewage sludge except in compliance with the Part 503 rules. 

In the Part 503 rules, EPA identified the pollutants in sewage sludge that 

may adversely affect public health or the environment and developed the Part 503 

rules to protect human health and the environment from any reasonably anticipated 

adverse effects from those pollutants. See 40 C.F.R. Part 503, Subpart E. Thus, 

from EPA’s own standpoint, SSIs can clearly show, by demonstrating compliance 

with the Part 503 rules, that emissions from their operations are not adversely 

impacting human health or the environment. 

VI. A STAY WILL ADVANCE THE PUBLIC INTEREST. 

A stay will serve the public interest for at least two reasons. First, a stay 

will allow this appeal to proceed while maintaining the regulatory and economic 

conditions existing prior to EPA’s adoption of unlawful requirements in the SSI 

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Rule. See, e.g., Cobell v. Kempthorne, 455 F.3d 301, 314 (D.C. Cir. 2006). The 

public interest is best served by preserving the viability of the essential public 

services that these POTWs provide and preventing wasteful use of taxpayer 

resources for less environmentally beneficial alternatives. 

Second, granting relief from immediate implementation will help preserve 

meaningful judicial review and ensure the Court’s power to fashion an appropriate 

remedy to unlawful agency action. A stay is “not simply ‘[a]n historic procedure 

for preserving rights during the pendency of an appeal,’ but also a means of 

ensuring that appellate courts can responsibly fulfill their role in the judicial 

process.” Nken v. Holder, 129 S. Ct. 1749, 1757 (2009). 

CONCLUSION

Movants respectfully request expedited consideration and a stay of the 

effectiveness and implementation of the SSI Rule until final resolution of their 

petitions for review before this Court. 

Dated: September 19, 2011 

 /s/ Steven A. Hann .

HAMBURG, RUBIN, MULLIN, MAXWELL 

& LUPIN

375 Morris Road 

Lansdale, PA 19446 

(215) 661-0400 

shann@hrmml.com

Respectfully submitted, 

 /s/ Jeffrey A. Knight .

PILLSBURY WINTHROP SHAW PITTMAN LLP 

2300 N Street, NW 

Washington, DC 20037-1128 

(202) 663-9152 

jeffrey.knight@pillsburylaw.com

USCA Case #11-1131 Document #1330427 Filed: 09/19/2011 Page 20 of 21
CERTIFICATE OF SERVICE

I hereby certify that on this 19th day of September 2011 copies of the 

foregoing Emergency Joint Motion for Stay of the Sewage Sludge Incineration 

Rule were served electronically through the Court’s CM/ECF system on all 

registered counsel. 

 /s/ Jeffrey A. Knight .

PILLSBURY WINTHROP SHAW PITTMAN LLP 

2300 N Street, NW 

Washington, DC 20037-1128 

(202) 663-9152 

jeffrey.knight@pillsburylaw.com

USCA Case #11-1131 Document #1330427 Filed: 09/19/2011 Page 21 of 21