ORAL ARGUMENT HELD ON OCTOBER 11, 2011 

UNITED STATES COURT OF APPEALS 

DISTRICT OF COLUMBIA CIRCUIT 

Portland Cement Association, 

Petitioner, 

v. 

Environmental Protection Agency and Lisa 

Perez Jackson, 

Respondents. 

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Case No. 10-1358 and 

Consolidated Cases 

) Portland Cement Association, 

 Petitioner, 

 v. 

Environmental Protection Agency and Lisa 

Perez Jackson, 

 Respondents. 

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Case No. 10-1359 and 

Consolidated Cases

JOINT MOTION OF INDUSTRY PETITIONERS AND 

RESPONDENTS TO HOLD THE CASES IN ABEYANCE 

Petitioners Portland Cement Association, Ash Grove Cement Co., CEMEX, 

Inc., Eagle Materials Inc., Holcim (US) Inc., Lafarge North America Inc., Lafarge 

Midwest, Inc., Lafarge Building Materials Inc., Lehigh Cement Company, Riverside 

Cement Company, and TXI Operations, LP (“Industry Petitioners”) jointly with 

Respondents the U.S. Environmental Protection Agency and Lisa Perez Jackson 

(collectively “EPA”) respectfully move this Court to hold the above captioned cases 

USCA Case #10-1358 Document #1369132 Filed: 04/16/2012 Page 1 of 8
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in abeyance. Industry Petitioners and EPA have negotiated and agreed to a 

Settlement Agreement, attached as Exhibit 1, that is intended to result in the 

conclusion of the issues in these cases without further proceedings in this Court, 

including the need for the Court to consider a petition for rehearing and/or rehearing 

en banc. As described more fully below, holding these cases in abeyance would 

promote judicial efficiency, conserve resources, and avoid unnecessary litigation. See

Basardh v. Gates, 545 F.3d 1068, 1069 (D.C. Cir. 2008) (finding cause for abeyance 

when other pending proceedings may affect the outcome of the case). Counsel for 

Industry Petitioners and/or EPA have contacted counsel for Petitioner the Tile 

Council and Respondent-Intervenors. Petitioner the Tile Council does not object to 

this motion; Respondent-Intervenors have not had an opportunity to take a position 

on this motion yet.1

1. The panel issued its decision on December 9, 2011. The decision, 

among other things, remanded to EPA for further consideration EPA’s denial of 

Industry Petitioners’ administrative petition to reconsider an EPA rule, National 

Emissions Standards for Hazardous Air Pollutants From the Portland Cement 

Manufacturing Industry, 75 Fed. Reg. 54970 (Sept. 9, 2010). 

 

1

 This request only applies to the petitions for review filed by the Industry Petitioners 

(Nos. 10-1358, 1359, 1361, 1363-70, 1372, 1373, 1374, 1375, 11-1012, 11-1244 & 11-

1245) and does not address the petitions filed by others (Nos.10-1376, 1377 & 1379). 

Because Industry Petitioners and EPA do not seek abeyance with respect to Nos. 10-

1376, 1377 & 1379, consent of the petitioner-intervenors in those cases is not 

required. 

USCA Case #10-1358 Document #1369132 Filed: 04/16/2012 Page 2 of 8
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2. Industry Petitioners and EPA have negotiated and agreed to a 

Settlement Agreement that provides for EPA to take rulemaking actions by specific 

dates to address this Court’s remand and other pending reconsideration issues. 

Settlement Agreement ¶¶ 1-3. Subject to the terms of the Settlement Agreement, 

Industry Petitioners have agreed not to file a petition for rehearing and/or rehearing 

en banc if this Court holds the cases in abeyance and EPA takes the actions specified in 

Paragraphs 1 through 3 of the Settlement Agreement by the identified dates. Id. ¶¶ 5-

7. If EPA takes all such actions, then the petitions can be concluded without any 

further proceedings. 

3. The Settlement Agreement is subject to a statutory 30-day public noticeand-comment period. See 42 U.S.C. § 7413(g); Settlement Agreement ¶ 11. In the 

event that EPA determines to withdraw from the Settlement Agreement based on 

comments received during that period, Industry Petitioners can then move to lift the 

abeyance and file their petition for rehearing and/or rehearing en banc. Id. The 

abeyance may also be lifted for other reasons specified in the Settlement Agreement. 

Id. ¶¶ 6, 7. 

4. In determining whether to hold a petition in abeyance, this Court 

typically considers whether doing so would promote judicial economy, Basardh v. 

Gates, 545 F.3d at 1069, and whether any parties would suffer hardship from holding 

the case in abeyance. Devia v. Nuclear Reg. Comm’n, 492 F.3d 421, 427 (D.C. Cir. 2007). 

Such a hardship must be so “‘immediate and significant’” as to “‘outweigh 

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institutional interests in the deferral of review[.]’” Id. (quoting Citizens of Greater 

Philadelphia v. Heckler, 789 F.2d 931, 940 (D.C. Cir. 1986)). 

5. Holding this case in abeyance is critical to the Settlement Agreement and 

would promote judicial economy. If this Court grants the motion to hold the cases in 

abeyance, the implementation of the Settlement Agreement could obviate the need 

for the Court to consider an Industry Petitioners’ petition for rehearing and/or 

rehearing en banc. In addition, pursuant to the terms of the Settlement Agreement, 

EPA will act to address this Court’s remand and other pending reconsideration issues 

raised by Industry Petitioners by specific dates while the cases are held in abeyance. 

6. No party will suffer a hardship if these cases were held in abeyance. 

During the term of abeyance, EPA will take actions to address the Court’s remand of 

certain issues and EPA and the Industry Petitioners will only be required to comply 

with the agreed upon terms of the Settlement Agreement. These agreed terms, which 

merely provide a process and schedule for further rulemaking proceedings but do not 

determine the outcome of such proceedings, do not constitute a hardship for the 

parties and there should be no other result of holding the cases in abeyance that 

would otherwise cause “immediate and significant” hardship to any parties. 

7. The Industry Petitioners and Respondents respectfully request that the 

Court act on this motion by 5 p.m. on April 23, 2012. After extensions granted by 

this Court, April 23, 2012 is the current deadline for any party to file a petition for 

rehearing and/or rehearing en banc. The Settlement Agreement allows the Industry 

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Petitioners to file their petition for rehearing and/or rehearing en banc, in order to 

preserve their rights, if the Court has not acted by 5 p.m. on that date in order to 

preserve their rights. But if so, EPA may elect to withdraw from the Settlement 

Agreement, including the provisions that require it to take rulemaking actions by 

specific dates. Id. ¶ 5. 

CONCLUSION 

For the foregoing reasons, Industry Petitioners and Respondents respectfully 

request that the Court hold the cases in abeyance pending completion of the actions 

identified in Paragraphs 1 through 3 of the Settlement Agreement, and suggest that 

the Court order motions to govern further proceedings the earlier of January 15, 2013, 

or 15 days after EPA signs the final rule required by paragraph 3 of the Settlement 

Agreement. Furthermore, they request that the Court act on this motion by April 23, 

2012 at 5 p.m. 

Dated: April 16, 2012 

FOR RESPONDENTS: 

IGNACIA S. MORENO 

Assistant Attorney General 

/s/ Daniel R. Dertke

DANIEL R. DERTKE, Attorney 

MONIQUE PEOPLES, Attorney 

U.S. Department of Justice 

Environment & Natural Resources Div. 

Environmental Defense Section 

Respectfully submitted, 

FOR INDUSTRY PETITIONERS: 

/s/ Timothy K. Webster 

Carter G. Phillips 

Roger R. Martella, Jr. 

Timothy K. Webster 

R. Juge Gregg 

SIDLEY AUSTIN LLP 

1501 K Street, NW 

Washington, DC 20005 

(202) 736-8000 

USCA Case #10-1358 Document #1369132 Filed: 04/16/2012 Page 5 of 8
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P.O. Box 23986 

Washington, D.C. 20026-3986 

(202) 514-0994 

Of Counsel: 

STEVEN E. SILVERMAN 

Office of General Counsel, U.S. EPA 

1200 Pennsylvania Ave., N.W. 

Washington, D.C. 20460 

Counsel for Respondents U.S. 

Environmental Protection Agency and 

Lisa Perez Jackson 

twebster@sidley.com 

Counsel for Petitioner 

Portland Cement Association 

/s/ Richard G. Stoll 

Richard G. Stoll 

Foley & Lardner LLP 

3000 K St. NW, Suite 600 

Washington DC, 20007-5109 

Telephone: (202) 672-4021 

Facsimile: (202) 672-5399 

rstoll@foley.com 

Counsel for Petitioners 

Lafarge North America Inc. 

Lafarge Midwest, Inc. 

Lafarge Building Materials Inc. 

/s/ Beth S. Ginsberg 

Beth S. Ginsberg 

Jason T. Morgan 

Stoel Rives LLP 

600 University Street, Suite 3600 

Seattle, WA 98101 

(206) 624-0900 

Counsel for Petitioner 

Ash Grove Cement Company 

/s/ Ashley C. Parrish 

Ashley C. Parrish 

Cynthia A.M. Stroman 

KING & SPALDING LLP 

1700 Pennsylvania Avenue, N.W. 

Washington, D.C. 20006 

Telephone: (202) 737-0500 

Facsimile: (202) 626-3737 

Email: aparrish@kslaw.com 

Counsel for Petitioners 

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Riverside Cement Company and 

TXI Operations, LP 

/s/ Chet M. Thompson

Chet M. Thompson 

CROWELL & MORING LLP 

1001 Pennsylvania Ave., N.W. 

Washington, DC 20004 

Telephone: (202) 624-2500 

Facsimile: (202) 628-5116 

Counsel for Petitioner 

CEMEX, Inc. 

/s/ Deborah E. Jennings

Deborah E. Jennings 

Bar No. 46020 

Catherine B. Campbell 

DLA PIPER LLP (US) 

500 Eighth Street, NW 

Washington, DC 20004 

Telephone: (202) 799-4357 

Facsimile: (410) 580-4180 

Deborah.jennings@dlapiper.com 

Counsel for Petitioner 

Lehigh Cement Company 

/s/ William M. Bumpers

William M. Bumpers 

Debra J. Jezouit 

Baker Botts L.L.P. 

1299 Pennsylvania Ave, NW 

Washington, DC 20004 

Telephone: (202) 639-7718 

Facsimile: (202) 585-1008 

william.bumpers@bakerbotts.com 

debra.jezouit@bakerbotts.com 

Counsel for Petitioners 

Eagle Materials Inc. and Holcim (US) Inc.

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CERTIFICATE OF SERVICE

I hereby certify that a copy of the foregoing was, on this 16th day of April 2012, 

served electronically through the Court’s CM/ECF system on all registered counsel. 

/s/ Daniel R. Dertke

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