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 FO R STAY OF THE SSI RULE Pursuant to Fed. R. App. P. 18 and Ci rcuit 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 “Age ncy”) action entitled “Standards of Performance for New Stationary Sources and Emission Guidelines for Existing Sources: Sewage Sludge Incineration Unit s,” 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 promul gated numerous stringent emission limitations, operating conditions and othe r requirements under § 129 of the Clean USCA Case #11-1131 Document #1330427 Filed: 09/19/2011 Page 1 of 212 Air Act (“CAA”), 42 U.S.C. § 7429, appli cable to sewage sludge incinerators (“SSIs”). The SSI Rule is demonstrably unl awful and, if it remains in effect, will result in concrete and irreparable ha rm to the many communities who rely upon incineration, without concomita nt benefits to other par ties or the environment. STANDARD FOR GRANTING A STAY The Court weighs four factors in consid ering motions to stay an agency rule: (1) Has the petitioner made a strong showi ng that it is likely to prevail on the merits? (2) Has the petitioner shown that wit hout 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 wast ewater treatment facilities. By setting USCA Case #11-1131 Document #1330427 Filed: 09/19/2011 Page 2 of 213 emission standards under CAA § 129, EPA ha s 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 sche me reserved for publicly owned treatment works (“POTW”) under th e CAA and the Federa l Water Pollution Control Act (“CWA”), and EPA’s deci sion to impose standards under § 129 is contrary to that design. Even if CA A § 129 were applicable to SSIs, EPA has violated the CAA mandate to set sta ndards based on the requisite minimum number of SSIs. Finally, EPA ignored criti cal data and other information submitted during the comment period, a nd 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), Mova nts request exped ited action on this Motion. There is no specific date by wh ich 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 Ru le pending reconsideration of the rule USCA Case #11-1131 Document #1330427 Filed: 09/19/2011 Page 3 of 214 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 th e decision to regulate SSIs under CAA § 129 and will not administratively stay the rule . Therefore, EPA ha s not afforded the relief requested.
III. MOVANTS ARE LIKELY TO PREVAIL ON THE MERITS. The SSI Rule is substantively and pro cedurally unlawful in many respects. A. EPA’s Interpretation That SSIs Mu st be Regulated Under CAA § 129 Is Contrary to the Text of the CAA and Arbitrary and Capricious. EPA’s foundational claim that SSIs ar e subject to regulation under CAA § 129 fails both steps of analysis under Ch evron U.S.A. Inc. v. Natural Res. Def. Council , 467 U.S. 837 (1984). The plain langua ge 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. EP A’s decision to regulate SSIs under § 129 upsets Congress’ manda te to provide the flexibility local governments need to choose the best method of sewage sl udge management for their communities. USCA Case #11-1131 Document #1330427 Filed: 09/19/2011 Page 4 of 215 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 “pro mulgate standards pursuant to” CAA § 112(d) “applicable to public ly 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 in cludes SSIs. CWA § 212(2)(A) defines “treatment works” to include, inter alia , “any works ... used for ultimate disposal of residues resulting from such treatme nt.” 33 U.S.C. § 1292(2)(A). This definition covers SSIs, whose primary purpos e is to dispose of residues resulting from sewage treatment. EPA’s regulatory de finition of “treatment works” likewise reinforces the expansive meaning of the te rm 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 (e mphasis added). USCA Case #11-1131 Document #1330427 Filed: 09/19/2011 Page 5 of 216 The CAA § 112(e)(5) scheme placing SSIs under § 112 is consistent with the congressional plan, expressed in CW A § 405(e), for flexibility in regulating POTWs and their SSIs. CWA § 405 plays th e 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 sour ce category that EPA was to regulate. The legislative history of § 112 show s that Congress was fully aware that emissions from POTWs were covered by th e 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 regulat e an SSI differently from the rest of the POTW, much less through different authority. EPA’s own regulatory pronouncements a nd 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 “t reatment works” as defined above. See,
e.g. , LeBlanc Decl. ¶ 4 (Ex. 3); North east 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 USCA Case #11-1131 Document #1330427 Filed: 09/19/2011 Page 6 of 217 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 un equivocally 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 (treatme nt is expressly defined to include sewage sludge treatment systems). Third , EPA has also previously classi fied SSIs as Congress intended under CAA § 112, by identifying SSIs as source category under § 112. In 1992, EPA examined the categorization of SSIs unde r 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 fo r POTW treatment plants. See 64 Fed. Reg. 57572 (Oct. 26, 1999). Although EPA’s preamble inexplicably stated that EPA then believed that SSIs were subj ect to regulation under CAA § 129, EPA nowhere elaborated on the ra tionale 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 it s position and expressly stated that SSIs USCA Case #11-1131 Document #1330427 Filed: 09/19/2011 Page 7 of 218 would be regulated under § 112 instead of § 129. See 65 Fed. Reg. 23460 (Apr. 24, 2000) (App. D). EPA then acted on th is 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 s ources 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) em ission standards.” 75 Fed. Reg. 63264 (Oct. 14, 2000). EPA nowhere in the re cord explains why it believes § 112(e)(5) does not apply to SSIs in the same manne r as the rest of a POTW, how EPA’s position is reasonable in light of its ow n contrary interpretations, or how SSIs could have been built and improved usi ng CWA Title II funds if they are not “treatment works.” The pl ain meaning of Congress’ invocation in § 112(e)(5) of the CWA definition of POTW, coupl ed 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. USCA Case #11-1131 Document #1330427 Filed: 09/19/2011 Page 8 of 219 2. SSIs Are Not “Solid Waste Incin eration Units” and So Cannot Be Regulated Under CAA § 129. SSIs cannot be regulated under CAA § 12 9 because they do not fit within the definition of “solid waste inci neration unit” under § 129(g)(1). Per § 129(a)(1)(A) and (b)(1), EPA must set em ission 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 ope rating unit of any facility which combusts any solid waste material from commercial or industria l establishments or the general public (including singl e and multiple residences, hotels, and motels).” By contrast, sewage sludge is generated in the POTW its elf from the treatment of wastewater after several stages of filteri ng, chemical and physical treatment, and dewatering. Thus, the sewage sludge com busted in SSIs is generated within the POTW, a government-owned facility, and so is not a solid waste material collected “from commercial and indus trial establishments or the general public” under § 129(g)(1). EPA has itself long acknowledge d 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 (N ov. 2, 1990) (sludges gene rated in the POTW are covered under the domestic sewa ge exclusion) (App. F). USCA Case #11-1131 Document #1330427 Filed: 09/19/2011 Page 9 of 2110 EPA incorrectly claims th at 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 regul ation under § 129. See 76 Fed. Reg. 15383. The issu e 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 inci neration units,” which exceptions have no bearing on or application to SSIs. The pa nel 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 deci ded that SSIs can be covered by the general definition of a solid waste incine ration 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 c ontrolling 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 beca use (1) the database used to set the USCA Case #11-1131 Document #1330427 Filed: 09/19/2011 Page 10 of 2111 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 stringen t than “the average emission limitation achieved by the best perfo rming 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 wher e 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 exis ting MHIs, § 129(a)(2) requires MACT floors to be based on da ta from no less than eight FBIs and 18 MHIs. See “Revised MACT Floor Analysis for the Sewage Sl udge Incinerator Sour ce Category,” (Jan. 2011) (“Memo”) at 6 (App. G). Instead, EP A 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 usi ng 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 informa tion from the required number of SSIs: USCA Case #11-1131 Document #1330427 Filed: 09/19/2011 Page 11 of 2112 [W]hile EPA believes Congress intende d for the MACT floor calculation under [§§ 112 and 129] to be the same, th is difference in the text of the two provisions requires us to establish the MACT floor for section 129 source categories based on the best perfor ming 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 ob tain 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 Pape rwork Reduction Act and Office of Management and Budget review and th ereby gained several weeks under its rulemaking schedule. See Tsirigotis Decl. ¶ 43, Ex. 6 to Enclosure A of NACWA Petition (Ex. 1). By cutting corners, EP A guaranteed that it would not collect adequate emissions data from th e requisite number of SSIs. 2. EPA Provided No Rational Expl anation for Ignoring Data Demonstrating Variability in Emission Characteristics. EPA disregarded critical data in its f iles and timely comments. These data, in particular many years of data generated by POTWs th rough compliance with the Part 503 rules, show the high variability of emissions of pollutants from SSIs.

1 EPA’s SSI count also is arbitrary. Co mmenters pointed out that a 2009 survey counted 234 active SSIs, and EPA did not c onfirm its inventory. By undercounting 30 SSIs, EPA’s database is an additional four units short of the statutory minimum. USCA Case #11-1131 Document #1330427 Filed: 09/19/2011 Page 12 of 2113 Commenters urged EPA to use Part 503 da ta to determine the emission rates achieved by the best performing sour ces under the full range of operating conditions. However, EPA ignored these da ta 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 charac teristics within a POTW. EPA explained its refusal to use th e 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 appropria te 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 concentra tion data from all of the POTW s it contends are the best performing sources. Under the Part 503 ru les, 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 USCA Case #11-1131 Document #1330427 Filed: 09/19/2011 Page 13 of 2114 that the proposed emission limits are not achievable. EPA did so only because these commenters did not includ e a complete stack test report with their comments. Id. at 15387. Again, there is nothing in th e record to suggest that EPA tried to obtain the backup information to verify th e data that were s ubmitted. Moreover, complete test reports were not submitte d for many of the 17 stack tests EPA did use. It is clearly arbitrary for the Ag ency to use only the data it wants and to disregard contrasting information by sel ectively applying more stringent data validation requirements. EP A’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 fund amental 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 IR REPARABLE HARM. A stay is necessary to ensure complete correction of the legal defects in the SSI Rule and to avoid irreversible impact s to the environment and to the over 100 municipalities who rely upon se wage sludge incineration. First , as demonstrated by the attached declarations submitted by four POTWs, immediate implementation of the SSI Rule is causing significant envi ronmental harm. Beca use several of the emission limitations in the SSI Rule are so stringent, some POTWs – even those USCA Case #11-1131 Document #1330427 Filed: 09/19/2011 Page 14 of 2115 that operate SSIs EPA deemed to be amo ng 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 for ced to make immediate commitments either to take the uncertain path of retr ofitting 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 loca l 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 envir onmentally attractive option for many communities. Communities that are forced to switch are extremely unlikely to switch back if EPA later promulgates a de fensible SSI rule beca use they will have

2 See LeBlanc Decl. ¶¶ 5-6 (NOx contro l 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 physi cal space and other necessary facilities to retrofit their SSIs to comply wi th the new standards. See LeBlanc Decl. ¶ 7 (Ex. 3); Ball Decl. ¶ 7 (Ex. 5). 3 For example, New York re gulators set a deadline of June 30, 2011 by which POTWs were to certify whether they will re trofit 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 burde ns and increased costs” and increase pollution from trucking and landfills) (Ex. 3). USCA Case #11-1131 Document #1330427 Filed: 09/19/2011 Page 15 of 2116 eliminated their SSIs and i nvested 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 em issions from trucking and from landfill emissions, one POTW estimates that th e “carbon footprint” resulting from the SSI Rule forcing them to switc h to landfilling would be more than 35,000 metric tons CO2 equivalent greater than thei r 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 le ss environmentally beneficial options, resulting in irreversible advers e environmental consequences. The SSI Rule is also having an immedi ate chilling effect on environmentally beneficial projects. For example, Alba ny predicts that the SSI Rule will cause it and other POTWs to stop undertaking en ergy recovery and other beneficial projects because the projects may trigge r 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 wi th 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). USCA Case #11-1131 Document #1330427 Filed: 09/19/2011 Page 16 of 2117 Rule may postpone or eliminate this beneficial upgrade. See Ball Decl. ¶ 5. Second , absent a stay, EPA’s current inte rpretation of its standard-setting authority under the CAA will operate to cause additiona l irreparable and unjustifiable harm to municipalities w ho 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 comment s on the so-called “MACT-on-MACT” issue – that is, whether EPA may lawfu lly include in newly promulgated MACT floors the emission levels that incinerators were forced to achieve by virtue of unlawful predecessor MACT standa rds. 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 contro l 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 be st performing units and used to set the future MACT floor. If ultimately the C ourt vacates the SSI Rule, then, according to EPA’s interpretation of § 129, SSIs that installed new controls during the USCA Case #11-1131 Document #1330427 Filed: 09/19/2011 Page 17 of 2118 litigation will be used to se t the new MACT floors. Finally , as illustrated by the submitted de clarations, many municipalities are suffering significant economic harm, and th ere is no prospect of compensatory relief for the costs these communities are incurring. Retrofitting SSIs with add-on control equipment is costly and time-c onsuming; 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 w ill be forced to start spending public funds and committing other scarce public re sources to planning, engineering and procurement of additional building sp ace, 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 th e necessary engineering services and equipment, and to complete the majo r infrastructure and control equipment installations required for many SSIs. See NEORSD Decl. ¶ 15 (Ex. 4); Lyons Decl. ¶ 9 (Ex. 6). These economic impact s on taxpayers have already started and will increase in magnitude without a stay.
V. A STAY WILL NOT H ARM ANY OTHER PARTY. There is no foreseeable prospect that others will be harmed by staying the USCA Case #11-1131 Document #1330427 Filed: 09/19/2011 Page 18 of 2119 SSI Rule. Emissions regulations are al ready 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 re ducing 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 th e environment and developed the Part 503 rules to protect human health and the e nvironment 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 cl early show, by demonstrating compliance with the Part 503 rules, that emission s 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 intere st 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 adopti on of unlawful requirements in the SSI USCA Case #11-1131 Document #1330427 Filed: 09/19/2011 Page 19 of 2120 Rule. See, e.g. , Cobell v. Kempthorne , 455 F.3d 301, 314 (D.C. Cir. 2006). The public interest is best served by preser ving the viability of the essential public services that these POTWs provide a nd preventing wasteful use of taxpayer resources for less environmentally beneficial alternatives. Second , granting relief from immediate im plementation will help preserve meaningful judicial review and ensure th e 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 respons ibly fulfill their role in the judicial process.” Nken v. Holder , 129 S. Ct. 1749, 1757 (2009). CONCLUSION Movants respectfully request expedite d consideration and a stay of the effectiveness and implementation of the SSI Rule until final resolution of their petitions for review be fore this Court. Dated: September 19, 2011
/s/ Steven A. Hann . H AMBURG , R UBIN , M ULLIN , M AXWELL & L UPIN 375 Morris Road Lansdale, PA 19446 (215) 661-0400 shann@hrmml.com Respectfully submitted, /s/ Jeffrey A. Knight . P ILLSBURY W INTHROP S HAW P ITTMAN LLP 2300 N Street, NW Washington, DC 20037-1128 (202) 663-9152 jeffrey.knight@pi llsburylaw.com USCA Case #11-1131 Document #1330427 Filed: 09/19/2011 Page 20 of 21CERTIFICATE 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 thr ough the Court’s CM/ECF system on all registered counsel. /s/ Jeffrey A. Knight . P ILLSBURY W INTHROP S HAW P ITTMAN LLP 2300 N Street, NW Washington, DC 20037-1128 (202) 663-9152 jeffrey.knight@pi llsburylaw.com USCA Case #11-1131 Document #1330427 Filed: 09/19/2011 Page 21 of 21