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.

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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 effluent

limit. NAHB also alleged that EP A had failed to consider certain sitespecific characteristics, and in particular the impact of the numeric

2 A nephelometric turbidity unit is a unit that measures clarity of water.

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effluent 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 April 2010, 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.

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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

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this, 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

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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.

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rule, 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

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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

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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.

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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,

A~nerai IGNACIA S. MORENO

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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