### UNITED STATES COURT OF APPEALS FOR THE SEVENTH CIRCUIT
WISCONSIN BUILDERS ASSOCIATION, NATIONAL ASSOCIATION OF HOME BUILDERS and UTILITY WATER ACT GROUP,



### Petitioners,

v. UNITED STATES 

### ENVRONMENTAL PROTECTION AGENCY; LISA . 

### P. JACKSON, in her official 

### capacity as Administrator of the 

### United States Environmental Protection Agency, 

### No. 09-4113 (consolidated with Nos. 10-1247 and 10-1876)



### Respondents.

EPA'S UNOPPOSED MOTION FOR PARTIAL VACATURE OF THE FINAL RULE, REMAND OF THE RECORD, TO VACATE BRIEFING

SCHEDULE. AND TO HOLD CASE IN ABEYANCE Respondents United States Environmental Protection Agency, et al. (EP A), respectfully move this Court for entry of an order vacating 

### and remanding to the Agency limited portions of the final rule under review in this case, vacating all pending procedural deadlines including

### due dates for remaining briefs, and holding this case in abeyance for 18



### months, until February 15, 2012, to allow EPA to address a flaw in the 

### final rule that was first brought to the Agency's attention by way of
petitions for administrative reconsideration. In addition, EP A moves for a remand of the record for the same time period to allow the Agency an 

### opportunity to reconsider portions of the final rule based on petitioners' assertions that EP A failed to consider certain comments submitted

during the rule 

### making process. 

### All parties agree that the requested relief is appropriate.1

BACKGROUND This case involves multiple challenges to EP A's final rule entitled 

### "Effluent Limitations Guidelines and Standards for the Construction and Development Point Source Category," 74 Fed. Reg. 62,996 (Dec. 1, 2009). The rule, promulgated pursuant to the Clean Water Act (CW A), 33 U.S.C. §§ 1251-1387, establishes the first enforceable numeric 

### effluent limit on the amount of pollutants in stormwater that may be IOn May 5,2010, this Court entered an order denying the Natural Resources

Defense Council's (NRDC) intervention motion "without prejudice to renewal if the EP A ceases to defend its regulations." Id. at 2. NRDC has authorized the

undersigned to represent that it does not oppose the requested relief because EPA will take final action by February 15, 2012. 2

### discharged from certain construction and development sites. In its

current incarnation, the rule requires that discharges to our Nation's 

### waters associated with construction activity at certain sites not exceed an average turbidity for any day of 280 nephelometric turbidity units
("NTU").2 74 Fed. Reg. 63,058. The rule also requires monitoring to 

### ensure compliance with that numeric limit and implementation of various other controls. Id. 

### In December 2009, Wisconsin Builders Association and National Association of Home Builders (collectively, NAHB), filed petitions for

review of the final rule and, in April 

### 2010, the Utility Water Act Group (UW AG) filed its petition for review. This Court later consolidated the 

### three petitions. NAHB and UWAG filed separate opening briefs on July 

### 9,2010. Among the arguments that NAHB raised, it reiterated the 

### argument that it presented to the Agency a month earlier in its administrative reconsideration petition regarding deficiencies in the data EP A used to support its decision to adopt a 280-NTU effluentlimit. NAHB also alleged that EP A had failed to consider certain site

### specific characteristics, and in particular the impact of the numeric

2 Anephelometric turbidity unit is a unit that measures clarity of water. 3effluent limit on cold weather sites and small sites. For its part, UW AG



### alleged that, notwithstanding written comments it submitted to the

Agency during the rule 

### making process, EP A failed to consider certain 

### impacts of the final rule specific to linear gas and electric utility projects.

In April2010, the Small Business Administration (SBA)3 filed 

### with EP A a petition for administrative reconsideration of several
technical aspects of EP A's final rule and, in that petition, identified 

### potential deficiencies with the dataset that EP A used to support its decision to adopt the 280-NTU limit. In June 2010, less than a month 

### before it filed its opening brief in this Court, the National Association of 

### Home Builders also filed a petition for administrative reconsideration with EPA incorporating by reference SBA's argument regarding the 

### deficiencies in the data underlying the 280-NTU limit.

Based on EPA's examination of the dataset underlying the 280- 

### NTU limit it adopted, the Agency has concluded that it improperly interpreted the data and, as a result, the calculations in the existing 

### administrative record are no longer :;dequate to support the 280-NTU 3 The SBA is not a party to this case. 4

### effluent limit. EP A therefore wishes to re-examine that number through

a narrowly-tailored notice-and-comment rule 

### making and, if necessary, 

### revise that portion of the limit before proceeding with its defense of the

rule. EPA also believes that a remand of the record to consider and
respond to UW AG' s comments would aid both the parties and the Court 

### and would potentially narrow or eliminate the issues ultimately remaining for review by this Court. An order vacating and remanding the 280-NTU limit and remanding the record to allow EPA an opportunity to consider and respond to UW AG's comments, with the

remainder of the case being held in abeyance pending EPA's completion of these actions, would be in the interests of justice, judicial economy, 

### and the parties. EP A's opening brief is currently due October 4, 2010.



### ARGUMENT 

### A. Abeyance And Partial Vacature And Remand Are Appropriate So That EP A May Consider The Potential Data Error 

### Identified In The Administrative Reconsideration Petitions. EP A has determined that it will begin proceedings on the two 

### pending administrative petitions so that the Agency may reconsider the 280-NTU limit in light of an error identified in those petitions. Given
5this, EP A requests that the Court vacate and remand the numeric



### effluent limitation to the Agency and hold this case in abeyance until
EP A completes the administrative reconsideration process. 

### The process of administrative reconsideration of a rule of this 

### magnitude involves a number of administrative tasks, including: review

of technical material in the rule making record, gathering and reviewing 

### additional material and documents (as appropriate), drafting a

proposed action for publication in the Federal Register, taking public 

### comment on any proposed action, considering and responding to public comments, preparing a notice of EPA's final action for publication in the 

### Federal Register, and taking that final action. In addition, the process

will require interagency review of any proposed and final rule 

### making
notices pursuant to Executive Order 12866, 58 Fed. Reg. 51,735 (Sept.
30, 1993). Given the technical nature of the issue that EP A will reconsider 

### and the number of steps EP A is required to take as part of this
administrative determination, EP A requests that the Court hold the case in abeyance for 18 months, until February 15, 2012, to allow EP A 

### sufficient time to complete the reconsideration process. See, e.g., Anchor
6

### Line Ltd. v. Federal Maritime Comm'n, 299 F.2d 124, 125 (D.C. Cir.



### 1962) ("when an agency seeks to reconsider its action, it should move 

### the court to remand or to hold the case in abeyance pending
reconsideration by the agency"). EP A also proposes to submit a status 

### report to the Court every 180 days while the case is held in abeyance to

keep the Court informed of EPA's progress.4 Within 30 days after the abeyance period ends, EP A proposes that the parties submit a report 

### advising the Court on how the parties wish to proceed with the litigation in light of the action on remand. Good cause exists to hold the case in abeyance while EPA 

### reconsiders the issues regarding the numeric limit identified in the 

### administrative reconsideration petitions. First, petitioners have already 

### represented that the administrative reconsideration process may resolve at least some of their principal concerns with the final rule, thus 

### potentially making it unnecessary for this Court to address these highly technical issues. See NAHB Br. at 14 ("If EP A grants either Petition for 

### Reconsideration by changing the current rule or promulgating a new 4 Petitioners have indicated that they wish to reserve their right to file separate status reports in case they disagree with EP A's characterization in its reports of the status of the Agency's administrative reconsideration process.
7rule, EP A could potentially moot certain issues raised in this appeaL.");

UWAG Br. at 6 (same). Second, the petitioners and others may elect to seek judicial review of EP A's final action on remand. Given the nature 

### of reconsideration that EP A proposes to grant here, such challenges
would likely overlap substantially with the issues presented here and, 

### therefore, would be appropriate for consolidation with this action. Thus, granting abeyance while EP A reconsiders the numeric limit will promote judicial efficiency and conserve the Court's and the parties' resources by allowing all of the issues raised in this case and by any 

### challenges to EPA's actions on remand (if any) to be briefed and decided 

### in a single, consolidated lawsuit. 

### B. This Court Should Remand The Record To EP A To Allow The 

### Agency To More Fully Explain Its Rationale Regarding 

### Certain Issues Identified By Petitioners. EPA also asks that the Court remand the record to the Agency so 

### that, in conjunction with its review of the issues raised in the petitions for administrative reconsideration concerning the numeric limit, the

Agency may address (and, if necessary, take further regulatory 

### action 

### on) certain impacts of the final rule specific to linear gas and electric utility projects. EP A also agrees to solicit site-specific information
8

### regarding the applicability of a numeric effluent limit to cold weather



### sites, as well as on the applicability of a numeric limit to small sites that are part of a larger project subject to the numeric limit. The Agency will also address any other issues that reveal themselves to the Agency on remand. 

### This additional analysis will provide the Court with a more complete rationale for the Agency's decision on important regulatory 

### issues and may ultimately resolve (or substantially narrow) the issues for judicial review. Although EP A is confident that there is sufficient 

### information in the record such that its decisionmaking path "may reasonably be discerned," Bowman Transp., Inc. v. Arkansas-Best Freight Sys., Inc., 419 U.S. 281, 286 (1974), it nevertheless believes that

the public and this Court will 

### benefit from a full explanation by the Agency of these issues and other related issues that may arise on 

### remand. EP A acknowledges that it could have provided a more direct response to' UW AG's comments during the regulatory process, but believes that it would be a disservice to the Court, the parties to this 

### lawsuit and to the public for that explanation to be excluded from the

record on review. Accordingly, EPA seeks a remand of the record
9

### running concurrently with the reconsideration period, to articulate

more fully its rationale for these issues. See, e.g., Public Service Comm'n of Kentucky v. FERC, Case No. 03-1092, 2004 WL 222900 (D.C. Cir. 

### Jan. 21, 2004) (granting motion to remand the record and to hold case in abeyance so that FERC could provide further explanation of the basis for its decision). Courts of appeals "commonly grant such motions, preferring to 

### allow agencies to cure their own mistakes rather than wasting the courts' and the parties' resources reviewing a record that both sides acknowledge to be incorrect or incomplete." Ethyl Corp. v. Browner, 989 F.2d 522, 524 (D.C. Cir. 1993). Here, the Court must weigh the value of
proceeding now (when EP A concedes that its administrative record 

### would benefit from further development) and possibly remanding the 

### rule back to the Agency for further explanation after full merits briefing and oral argument, against the value of providing EP A with an 

### opportunity to fully articulate its position so that the Court can make an informed decision on the merits in the first instance. Finally, as noted above, all parties agree that the requested relief 

### is appropriate.
10

### CONCLUSION

WHEREFORE, EP A respectfully requests that the Court: (1) vacate the deadlines set in its June 22, 2010 order (Doc. 22) for EPA 

### to file its opening brief and for petitioners to file their reply briefs; 

### (2) vacate and remand the 280-NTU numeric limit to EPA for further 

### proceedings as outlined in this motion; (3) remand the administrative
record to EP A for further explanation; (4) order the case held in abeyance for 18 months (i.e., until February 15, 2012), by which date

EP A will take final action to address the issues identified in this motion; (5) order EP A to file a report on the status of the administrative 

### proceedings every 180 days during the abeyance period; and (6) order the parties to file a report advising the Court of their views on how the 

### litigation should proceed, including proposed briefing deadlines, within 

### 30 days after the abeyance period expires.

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### August 12, 2010 Respectfully Submitted, IGNACIA S. MORENO 

# A~nerai

ADAM J. KATZ MATTHEW OAKES 

### United States Department of Justice Environment & Natural Resources Division Environmental Defense Section P.O. Box 23986 Washington, DC 20026-3986 202-514-2686

OF COUNSEL: 

### MAY ELLEN LEVINE SAMUEL BROWN Office of General Counsel Water Law Office (2355A) United States Environmental Protection Agency

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### CERTIFICATE OF SERVICE

I hereby certif that on this 12th day of August, 2010, a copy of 

### EPA'S UNOPPOSED MOTION FOR PARTIAL.VACATURE OF THE FINAL RULE, REMAND OF THE RECORD, TO VACATE BRIEFING SCHEDULE, AND TO HOLD CASE IN ABEYANCE, 

### was sent, via first class U.S. mail, to the following parties and proposed intervenors: Michael J. ModI Robert C.Procter Axley Brynelson 

### 2 East Mifflin Street, Ste. 200 P.O. Box 1767 Madison, WI 53701-1767 

### James N. Christman Hunton & Williams LLP 951 E. Byrd Street 

### Riverfront Plaza East Tower Richmond, VA 23219
Jeffrey Longsworth David Ballard Barnes & Thornburg LLP 750 17th Street, N.W. Suite 900 Washington, D.C. 20006-4675 Colin O'Brien Jon Devine N at'l Resources Defense Counsel 1200 New York Avenue, NW 

### Suite 400 Washington, DC 20005

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