UNITED STATES COURT OF APPEALS 

FOR THE DISTRICT OF COLUMBIA CIRCUIT 

AMERICAN PETROLEUM INSTITUTE ) 

AND NATIONAL PETROCHEMICAL ) 

AND REFINERS ASSOCIATION, ) 

 ) 

Petitioners ) 

 ) Case No. 09-1328 

 ) 

) (consolidated with cases 

v. ) 09-1325, 09-1326, 09-1329,

) 09-1331, 09-1332, 09-1333,

ENVIRONMENTAL PROTECTION ) and 09-1334) 

AGENCY, ) 

 ) 

Respondent ) 

 

PETITIONERS’ NON-BINDING 

STATEMENT OF ISSUES TO BE RAISED 

 

Pursuant to this Court’s Order of January 8, 2010 in consolidated Case No. 

09-1325, Petitioners the American Petroleum Institute and the National 

Petrochemical and Refiners Association hereby submit the following Statement of 

Issues to be Raised in this proceeding to review the Rule for Mandatory Reporting 

of Greenhouse Gases (the “Rule”) promulgated by the U.S. Environmental 

Protection Agency (“EPA”). See 74 Fed. Reg. 56,260 (Oct. 30, 2009). 

Case: 09-1325 Document: 1229681 Filed: 02/08/2010 Page: 1
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1. Whether EPA exceeded its legislative authority in promulgating the 

Rule under the Clean Air Act, 42 U.S.C. Sections 7414 and 7542, and the 

Consolidated Appropriations Act of 2008. 

2. Whether EPA acted arbitrarily and capriciously, in abuse of its 

discretion, or otherwise not in accordance with law in promulgating the Rule. 

3. Whether EPA acted arbitrarily and capriciously, in abuse of its 

discretion, or otherwise not in accordance with law in: 

a. Setting a March 31, 2010 deadline in the Rule to discontinue the use 

of Best Available Monitoring Methods; 

b. Allowing only a 30-day period after the effective date of the Rule to 

request an extension of the March 31, 2010 deadline; 

c. Requiring that annual reports mandated by the Rule be submitted by 

March 31 of each calendar year; 

d. Establishing the emission factors and high heat values for refinery still 

gas that are specified in the Rule; 

e. Setting the requirements under the Rule for calibration; 

f. Failing to provide alternative compliance methods under the Rule for 

confidential business information; 

g. Imposing certain requirements in the final Rule that were not 

proposed in the proposed Rule; 

Case: 09-1325 Document: 1229681 Filed: 02/08/2010 Page: 2
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h. Imposing requirements on industry that will require unscheduled shutdowns of facilities without regard to impacts on the nation’s 

infrastructure; 

i. Failing to adequately take into account safety and practical issues in 

design, engineering, procurement, installation, systems integration, 

calibration, and training associated with greenhouse gas monitoring 

devices; and 

j. Failing to provide a reasonable way to address de minimis sources of 

greenhouse gases within a facility. 

This is a preliminary listing of issues that Petitioners may raise. Petitioners 

reserve the right to modify the list of issues addressed, as well as to address these 

and other issues in more detail in future pleadings. 

Case: 09-1325 Document: 1229681 Filed: 02/08/2010 Page: 3
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Dated: February 8, 2010 Respectfully submitted, 

 _/s/__________________ 

 Matthew G. Paulson 

 Brian J. Faulkner 

 BAKER BOTTS L.L.P. 

 98 San Jacinto Blvd. 

 1500 San Jacinto Center 

 Austin, Texas 78701 

 (512) 322-2500 

 

 Angus Macbeth 

 Roger R. Martella, Jr. 

 Sidley Austin LLP 

 1501 K Street, N.W. 

 Washington, D.C. 20005 

 (202) 736-8000 

 

 Council for Petitioners the American 

 Petroleum Institute and the National 

 Petrochemical and Refiners Association 

Case: 09-1325 Document: 1229681 Filed: 02/08/2010 Page: 4
AUS01:572703.1 

CERTIFICATE OF SERVICE

I hereby certify that the foregoing document has been filed with the Clerk 

of Court this 8th day of February 2010 by using the CM/ECF system. 

In addition, I hereby certify that the foregoing document has been served by 

United States first-class mail this 8th day of February 2010 upon each of the following 

participants or proposed intervenors in the case who are not registered CM/ECF users: 

CHRISTOPHER GENE KING

New York City Law Department 

6-143 

100 Church Street 

New York, NY 10007 

CRAIG HOLT SEGALL

Sierra Club 

408 C Street, NE 

Washington, DC 20002 

DAVID G. BOOKBINDER

Sierra Club 

408 C Street, NE 

Washington, DC 20002 

JOSEPH P. MIKITISH

Attorney General’s Office of State of Arizona 

1275 West Washington Street 

Phoenix, AZ 85007-2926 

KRISTEN CAMPFIELD FURLAN

Pennsylvania Department of Environmental 

Protection 

400 Market Street 

Rachel Carson State Office Building 

9th Floor 

Harrisburg, PA 17105-8464 

SUSAN JANE HEDMAN

Office of the Illinois Attorney General 

100 West Randolph Street 

Chicago, IL 60601 

VALERIE MELISSA SATTERFIELD

Attorney General’s Office of State of 

Delaware 

102 West Water Street 

Third Floor 

Dover, DE 19904 

___/s/_____________________________ 

Matthew G. Paulson 

Case: 09-1325 Document: 1229681 Filed: 02/08/2010 Page: 5