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. ) ) ) ) ) ) ) ) ) ) ) ) Case No. 10-1358 and Consolidated Cases

) Portland Cement Association, Petitioner,

v. Environmental Protection Agency and Lisa Perez Jackson, Respondents. ) ) ) ) ) ) ) ) ) ) ) Case No. 10-1359 and Consolidated Cases

JOINT MOTION OF INDUST RY PETITIONERS AND RESPONDENTS TO HOLD THE CASES IN ABEYANCE

Petitioners Portland Cement Associat ion, 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 Pr otection 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 82 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 wi thout 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 reso urces, 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 co ntacted counsel for Petitioner the Tile Council and Respondent-Intervenors. Petitione r 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 fo r review filed by the Industry Petitioners (Nos. 10-1358, 1359, 1361, 1 363-70, 1372, 1373, 1374, 1375, 11-1012, 11-1244 & 11- 1245) and does not address the petitions f iled 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 petition er-intervenors in those cases is not required. USCA Case #10-1358 Document #1369132 Filed: 04/16/2012 Page 2 of 83 2. Industry Petitioners and EPA have negotiated and agreed to a Settlement Agreement that provides for EP A 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 f ile a petition for rehearing and/or rehearing

en banc if this Court holds the cases in abeyan ce and EPA takes the actions specified in Paragraphs 1 through 3 of the Settlemen t 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); Settlem ent 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 “‘immediat e and significant’” as to “‘outweigh USCA Case #10-1358 Document #1369132 Filed: 04/16/2012 Page 3 of 84 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 cr itical 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 te rms of the Settlement Agreement, EPA will act to address this Court’s remand and other pending reconsideration issues raised by Industry Petitioners by specific da tes 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 a ddress the Court’s remand of certain issues and EPA and the Industry Peti tioners will only be required to comply with the agreed upon terms of the Settlemen t Agreement. These agreed terms, which merely provide a process and schedule for further rulemaking proceedings but do not determine the outcome of such proceeding s, 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 sign ificant” hardship to any parties. 7. The Industry Petitioners and Res pondents 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 de adline for any party to file a petition for rehearing and/or rehearing en banc . The Settlement Agreement allows the Industry USCA Case #10-1358 Document #1369132 Filed: 04/16/2012 Page 4 of 85 Petitioners to file their petiti on 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 re quire it to take rulemaking actions by specific dates. Id. ¶ 5.

CONCLUSION For the foregoing reasons, Industry Pe titioners 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 pr oceedings the earlier of January 15, 2013, or 15 days after EPA signs the final rule re quired 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 86 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 USCA Case #10-1358 Document #1369132 Filed: 04/16/2012 Page 6 of 87 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. USCA Case #10-1358 Document #1369132 Filed: 04/16/2012 Page 7 of 88 CERTIFICATE OF SERVICE

I hereby certify that a copy of the foregoing was, on this 16 th day of April 2012, served electronically through the Court’s CM /ECF system on all registered counsel. /s/ Daniel R. Dertke USCA Case #10-1358 Document #1369132 Filed: 04/16/2012 Page 8 of 8