Exhibit 1 

USCA Case #11-1131 Document #1330427 Filed: 09/19/2011 Page 1 of 230
NACWA Letter to Administrator Jackson 

May 24, 2011 

Page 1 of 2 

EXECUTIVE COMMITTEE

PRESIDENT

Jeff Theerman

Executive Director

Metropolitan St. Louis

Sewer District

Saint Louis, MO

VICE PRESIDENT

David R. Williams

Director of Wastewater

East Bay Municipal 

Utility District

Oakland, CA

TREASURER

Suzanne E. Goss

Government Relations Specialist

JEA (Electric, Water & Sewer)

Jacksonville, FL

SECRETARY

Julius Ciaccia, Jr.

Executive Director

Northeast Ohio Regional 

Sewer District

Cleveland, OH 

PAST PRESIDENT

Kevin L. Shafer

Executive Director

Milwaukee Metropolitan 

Sewerage District

Milwaukee, WI

EXECUTIVE DIRECTOR

Ken Kirk

May 24, 2011 

Honorable Lisa P. Jackson 

Administrator 

U.S. Environmental Protection Agency 

1200 Pennsylvania Avenue, N.W. 

Washington, D.C. 20460 

Ms. Gina McCarthy 

Assistant Administrator, Office of Air and Radiation 

U.S. Environmental Protection Agency 

1200 Pennsylvania Avenue, N.W. 

Washington, D.C. 20460 

Mr. Peter Tsirigotis 

Director, Sector Policies and Programs Division 

Office of Air Quality Planning and Standards 

U.S. Environmental Protection Agency 

Research Triangle Park, NC 27711 

Richard Ossias, Esq. 

Associate General Counsel for the Air and Radiation Law Office 

Office of General Counsel (Mail Code 2344A) 

U.S. Environmental Protection Agency 

1200 Pennsylvania Avenue, N.W. 

Washington, D.C. 20460 

Re:Petition for Reconsideration a Petition for Reconsideration a Petition for Reconsideration and Stay of the Standa nd Stay of the Standards of Performance for rds of Performance for 

New Stationary Sources and Emission Guidelines for Existing Sources: 

Sewage Sludge Incineration Units; Final Rule, 76 Fed. Reg. 15372- . 15372-15454 

(March 21, 2011) (March 21, 2011) 

Dear Administrator Jackson: 

Please find enclosed the above-referenced petition by the National Association of 

Clean Water Agencies (NACWA) for reconsideration and stay of the newly 

promulgated emission limitations and other requirements under Clean Air Act 

§ 129 applicable to sewage sludge incineration units. 

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NACWA Letter to Administrator Jackson 

May 24, 2011 

Page 2 of 2 

Without action by EPA to correct the flaws in these new regulations, the emission limitations and other 

requirements affecting sewage sludge incinerators will have unjustified and substantial negative impacts on the 

municipalities and public clean water authorities who rely on incineration as the most economically and 

environmentally sound alternative for managing biosolids in numerous cities and towns across the United 

States. 

Please contact me or Mr. Chris Hornback at (202) 833-9106 or chornback@nacwa.org to discuss any questions 

regarding the enclosed petition. 

Sincerely, 

Ken Kirk 

Executive Director 

Encl. 

cc: Nancy Stoner, U.S. Environmental Protection Agency 

USCA Case #11-1131 Document #1330427 Filed: 09/19/2011 Page 3 of 230
U.S. ENVIRONMENTAL PROTECTION AGENCY 

IN RE: PETITION FOR RECONSIDERATION AND STAY OF THE STANDARDS OF PERFORMANCE 

FOR NEW STATIONARY SOURCES AND EMISSION GUIDELINES FOR EXISTING SOURCES:

SEWAGE SLUDGE INCINERATION UNITS; FINAL RULE

76 FEDERAL REGISTER 15372-15454 (MARCH 21, 2011) 

DOCKET NO. EPA-HQ-OAR-2009-0559 

I. INTRODUCTION 

Pursuant to section 307(d)(7)(B) of the Clean Air Act (“CAA”), 42 U.S.C. § 7607(d)(7)(B), the 

National Association of Clean Water Agencies (“NACWA”) petitions the U.S. Environmental 

Protection Agency (“EPA” or “Agency”) to reconsider the final Agency action titled “Standards 

of Performance for New Stationary Sources and Emission Guidelines for Existing Sources: 

Sewage Sludge Incineration Units,” 76 Fed. Reg. 15372 (Mar. 21, 2011), establishing emission 

limitations and other requirements under CAA § 129 applicable to sewage sludge incinerators 

(“SSI”) (the final rule is referenced herein as the “SSI Rule”). NACWA also requests that EPA 

stay implementation of the SSI Rule pending the reconsideration process and promulgation of 

regulations replacing the SSI Rule. 

NACWA is a voluntary, non-profit association whose current membership includes 270 

municipalities and public clean water authorities. NACWA’s members operate nearly 1,000 of 

the nation’s publicly-owned treatment works (“POTWs”), which collectively serve the majority 

of the sewered population of the United States. NACWA’s members own and operate 

approximately 110 – roughly half – of the SSIs affected by the SSI Rule. 

For over 40 years, NACWA has maintained a leadership role in legal and policy issues affecting 

the public authorities responsible for cleaning the nation’s wastewater. NACWA is at the 

forefront of the development and implementation of scientifically based, technically sound, and 

cost-effective environmental programs for protecting public and ecosystem health. 

NACWA and its members have long been advocates for maintaining the flexibility local 

communities need to choose the biosolids management approaches (namely incineration, land 

application or landfilling) that work best within the economic and environmental constraints 

unique to each locality. Congress’ intention to recognize and encourage that flexibility is 

expressly embodied in § 405(e) of the Federal Water Pollution Control Act, 33 U.S.C. § 1345 

(“CWA”) (“The determination of the manner of disposal or use of sludge is a local 

determination”). However, EPA’s approach to regulating biosolids incineration under the SSI 

Rule gives no attention to the statutory factors required to be considered in order to balance CAA 

regulation with maintaining incineration as an environmentally beneficial and economically 

viable option for these communities. 

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As detailed in this petition, the CAA § 129 standards: (1) exceed EPA’s authority to regulate 

SSIs under the CAA, (2) fail to satisfy the fundamental achievability test under both CAA 

§§ 112 and 129 for establishing a maximum achievable control technology (“MACT”) floor 

level of control, (3) lack a rational basis in the rulemaking record, and (4) fail to consider and 

respond to numerous significant comments and criticisms of the standards. As a result, the final 

rule imposes numerous unlawful and unjustified standards, including: 

• imposing overly stringent MACT floors for all SSIs without regard to their major source 

or area source classification as would be required under CAA § 112; 

• imposing MACT floor controls on non-HAP pollutants without the statutory authority to 

require such controls; 

• failing to establish subcategories recognizing fundamental class and use differences 

among SSIs, such as infrequently used backup units; and 

• ignoring data showing variability in biosolids feed characteristics that affect the overall 

performance of each individual SSI – and thus affecting the overall achievability of the 

standards. 

For the reasons explained below, EPA has not given NACWA meaningful opportunity to 

comment on, and therefore opportunity to influence the outcome of, many issues that are of 

central relevance to the SSI Rule, including the Agency’s rationale for regulating SSIs under 

CAA § 129, the critical impact of biosolids fuel characteristics in determining SSI emissions, and 

revised standards that were not included in the proposed rule. Because the flaws in the SSI Rule 

are fundamental and pervasive – implicating the legal authority for the rulemaking, the selection 

of pollutants for which standards may be established, the selection of SSI subcategories, and 

numerous other aspects of the rule – it is impossible to carve-out and maintain segments of the 

SSI Rule that are not infected with serious legal and technical errors. If EPA initiates the 

requested reconsideration process, it will necessarily touch on essentially every aspect of the SSI 

Rule by potentially eliminating standards for non-HAP pollutants, altering the subcategorization 

scheme for MACT floor calculations, and including significantly more and more representative 

data in the standard setting process. 

Given the magnitude of these problems, NACWA requests reconsideration and stay of the entire 

SSI Rule, so that we can work with EPA to correct errors through an appropriate and legally 

defensible notice-and-comment rulemaking process. NACWA also requests that EPA initiate 

this reconsideration process to address potentially inconsistent, overlapping and unnecessary 

requirements from and among the SSI Rule and Part 503 regulations. Rationalizing and 

streamlining the differing sets of requirements applying to SSIs is essential to provide regulatory 

clarity and reduce burdens on municipalities and clean water agencies and should not wait until 

some unspecified future rulemaking. See 76 Fed. Reg. at 15376/2-3. 

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II. STANDARDS FOR RECONSIDERATION AND STAY OF THE SSI RULE 

Under CAA § 307(d)(7)(B), EPA must convene a proceeding for reconsideration of a final 

Agency action if a person raising an objection can demonstrate that it was “impracticable to raise 

the objection” within the period for public comment and the “objection is of central relevance to 

the outcome of the rule.” The rulemaking requirements under § 307(d) apply to the SSI Rule. 

See CAA § 307(d)(1)(C) and (D). EPA also has independent and inherent authority under both 

§§ 129 and 112 to initiate a rulemaking to address legal and technical errors in the SSI Rule, and 

to re-set the effective date to allow time to promulgate a corrected rule. 

EPA has included new provisions and new major legal interpretations in the final SSI Rule. 

These changes violate administrative law principles of notice-and-comment rulemaking unless 

EPA can show that the changes are a “logical outgrowth” of the proposed rule – i.e., that the 

public “should have anticipated that the change was possible, and thus reasonably should have 

filed their comments on the subject during the notice-and-comment period.” Environmental 

Integrity Project v. EPA, 425 F.3d 992, 996 (D.C. Cir. 2005). 

In addition to initiating a reconsideration process, NACWA also requests that EPA stay the SSI 

Rule pending review and promulgation of replacement regulations. Section 307(d)(7)(B) 

contains authority for EPA to stay the effective date of an action for up to three months during 

the reconsideration process. In addition, § 705 of the Administrative Procedure Act (“APA”), 

5 U.S.C. § 705, provides independent authority for EPA to postpone the effective date of a 

rulemaking when the Administrator “finds that justice so requires.” Similarly, §§ 129(a)(5) and 

301(a) of the CAA give EPA authority to undertake a process of correcting the SSI Rule and to 

establish a parallel stay where the stay is necessary to preserve the status quo so as to ensure that 

the correction is a complete cure, especially to keep communities from wasting scarce public 

resources attempting to comply with a defective rule. 

The issues raised in this petition meet the standards for reconsideration and stay of the SSI Rule 

under both CAA § 307(d)(7)(B) and APA § 705, as well as CAA §§ 129(a)(5) and 301(a). 

Therefore, NACWA urges EPA to take all necessary action to stay the SSI Rule and to initiate a 

new rulemaking to develop replacement regulations addressing NACWA’s objections. 

III. GROUNDS FOR RECONSIDERATION 

A. EPA’s Rulemaking Process 

Pursuant to an order entered in Sierra Club v. Johnson, 444 F. Supp. 2d 46 (D.D.C. 2006), the 

District Court for the District of Columbia established a series of deadlines by which EPA was to 

complete certain duties under CAA §§ 112(c)(3), (c)(6) and (k)(3), including adopting standards 

for SSIs. Prior to the comment period on the SSI Rule, the deadline for taking action under the 

District Court’s order was extended to January 16, 2011 to allow EPA additional time to develop 

the SSI Rule. 

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Through pre-proposal meetings and written submissions to EPA, NACWA and several of its 

members submitted a wide range of information on POTWs and SSIs, including, critically for 

this petition, information regarding the regional, seasonal and daily variability of biosolids 

composition as evidenced by metals concentration data available through the CWA Part 503 

program, the effect such variability has on emissions from biosolids incineration, and 

information on the technical limitations of applying add-on control devices to SSIs. 

After EPA issued its proposed SSI rule,1 NACWA submitted additional information during the 

comment period reinforcing its earlier submissions to the Agency and raising numerous 

objections and recommendations for improvements. NACWA’s comments on the proposed SSI 

rule totaled about 500 pages, including over 200 pages of narrative comments and approximately 

300 pages of technical support. 

Several NACWA members, including the following POTWs and municipalities, also submitted 

detailed comments and data on the proposed rule: 

• Northeast Ohio Regional Sewer District (“NEORSD”) 

• City of Palo Alto (CA) 

• Central Contra Costa (CA) Sanitary District 

• Metropolitan St. Louis (MO) Sewer District 

• City of Greensboro (NC) 

• Green Bay (WI) Metropolitan Sewerage District 

• City of Indianapolis (IN) 

• City of Columbus (OH) 

• Hampton Roads (VA) Sanitation District (“HRSD”) 

• City of Vancouver (WA) 

Together, NACWA and its members submitted over 750 pages of information and analysis 

demonstrating numerous legal, procedural and technical flaws in the proposed rule. 

 

1

 See “Proposed Standards of Performance for New Stationary Sources and Emission Guidelines for Existing 

Sources: Sewage Sludge Incineration Units,” 75 Fed. Reg. 63260 (Oct. 14, 2010). 

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Eight days later, on December 7, 2010, EPA filed a motion asking the District Court to extend 

the deadline for completing the SSI Rule to July 15, 2011. EPA’s initial and reply memoranda 

and the declarations submitted in support of EPA’s motion2

 demonstrated the Agency’s belief 

that it could not produce defensible rules for SSI units any sooner than July 15, 2011. To support 

its claim, EPA pointed to the over 80 individual substantive comments received on the SSI rule 

and the need to review and respond to all of these comments. See Declaration of Panagiotis E. 

Tsirigotis (“Tsirigotis Decl.”) ¶¶32 and 48 (Encl. A, Exh. 6). 

NACWA, as an intervenor in the Sierra Club case, supported EPA’s motion, arguing that EPA 

needed at least the additional time requested in order to consider and respond to comments and to 

deal with the implications of those comments in revisions to the proposed rule. While EPA 

noted in its December 7 motion that it did not currently plan to re-propose the SSI rule, see EPA 

Memo pp. 3-4 (Encl. A) and Tsirigotis Decl. ¶48 (Encl. A, Exh. 6), that “plan” was clearly 

formulated before any review, or at least any serious review, of all comments on the SSI Rule. 

See Supplemental Declaration of Panagiotis E. Tsirigotis (“Tsirigotis Supp. Decl.”) ¶32 (Encl. B) 

(EPA had reviewed “some” comments on the SSI Rule as of January 3, 2011, the date Mr. 

Tsirigotis’ supplemental declaration was signed). Ultimately, the District Court extended the 

deadline for action on the final SSI Rule approximately one month – to February 21, 2011. 

B. EPA’s Final SSI Rule 

Likely due in part to the fact that EPA had less than 12 weeks from the end of the comment 

period to finalize the SSI Rule, the SSI Rule and EPA’s preamble and response to comments 

document inadequately responded – and in several instances did not respond at all – to critical 

issues raised by NACWA. The preamble to the SSI Rule also contains a new and surprising 

explanation of EPA’s thinking on the central legal issue of whether SSIs are subject to regulation 

under CAA § 129. 

While we recognize that EPA might have corrected such errors given more time, the SSI Rule 

nonetheless contains demonstrably unlawful requirements that cannot withstand judicial review. 

Granting NACWA’s petition would allow the additional time needed for EPA to develop a better 

understanding of this sector and the manner in which Congress intended for biosolids 

incineration to be regulated by overlapping CAA and CWA programs. Furthermore, EPA can 

still fully and fairly meet its obligations under CAA §§ 112(c)(3) and (c)(6) by regulating SSIs 

under § 112(d). 

 

2

 See enclosed “EPA’s Memorandum in Support of Motion to Amend Order of March 31, 2006” (“EPA Memo”) 

and exhibits thereto (Encl. A), and “EPA’s Reply Memorandum in Support of Motion to Amend Order of March 

31, 2006” (“EPA Reply Memo”) and exhibits thereto (Encl. B). 

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The issues that are the subject of this petition fundamentally affect the legal defensibility and the 

implementability of the SSI Rule, as well as the impact the SSI Rule will have on NACWA’s 

members and other owners and operators of SSIs. 

NACWA has timely filed a petition for review challenging the SSI Rule.3 In addition, NACWA 

seeks EPA reconsideration of the following specific aspects of the SSI Rule: 

1. EPA’s new rationale for regulating SSIs under CAA § 129 instead of CAA § 112 

is invalid. 

In pre-proposal submissions and in comments on the proposed rule, NACWA raised a 

comprehensive set of arguments as to why EPA is required under CAA § 112(e)(5) to establish 

emission standards for SSIs under § 112 instead of § 129. These arguments can be summarized 

as follows: 

• Section 112(e)(5) requires EPA to promulgate standards under § 112(d) applicable to 

“publicly owned treatment works (as defined in title II of the Federal Water Pollution 

Control Act [33 U.S.C.A. § 1281 et seq.]).” 

• The broad definition of “treatment works” in Title II of the CWA (and in EPA’s 

implementing regulation) includes “any devices and systems used in the ... treatment, 

recycling, and reclamation of municipal sewage” and includes “any works ... used for 

ultimate disposal of residues resulting from such treatment” and, thus, encompasses SSIs 

at POTWs. 

• NACWA provided examples of SSIs constructed and upgraded using CWA Title II 

construction grants, for which federal funding would have been illegally authorized by 

EPA were SSIs not within the CWA definition of “treatment works.” 

• SSIs are physically and operationally integrated into the specific POTWs they serve and 

are an essential part of the solids treatment process. Without their SSIs, these POTWs 

could not continue to operate unless they switch to another biosolids management option, 

which is a major undertaking involving physical changes to the POTWs. 

• EPA has repeatedly taken the position that SSIs as a source category are to be regulated 

under CAA § 112. Our comments provided references to such statements (formal and 

informal) from 1992 through 2002. 

 

3

 See enclosed Petition for Review and Rule 26.1 Disclosure Statement (Encl. C) filed on May 6, 2011 with the 

U.S. Court of Appeals for the District of Columbia Circuit (“D.C. Circuit”). 

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In the proposed rule, the sum total of EPA’s statements on this topic was that it “has taken the 

position in its regulation of POTW under the Clean Air Act that section 112(e)(5) does not apply 

to SSI units and for this reason did not regulate them in its POTW section 112(d) emission 

standards.” 75 Fed. Reg. at 63264. EPA offered nothing more than this single conclusory 

sentence, and similarly failed to provide any elaboration on the issue when it promulgated 

regulations under § 112(d) for POTWs. Thus, it goes without saying that nothing in the 

proposed rule fairly put NACWA or other interested parties on notice that EPA was developing a 

new legal interpretation – to be unveiled with the final SSI Rule – for why it believes SSIs must 

be regulated under § 129. 

In the final SSI Rule, EPA for the first time grounded regulation of SSIs under § 129 on a 

reading of the CAA that: (1) § 112(e)(5) is merely a scheduling provision that “simply identifies 

the date by which EPA must issue emissions standards for POTW,” (2) that the decision in 

NRDC v. EPA, 489 F.3d 1250 (D.C. Cir. 2007) “precludes” EPA from regulating SSIs under 

§ 112(d), and (3) that EPA “does not have the discretion” to regulate SSIs except under § 129. 

See 76 Fed. Reg. at 15383/2-3. This rationale is fundamentally different from the rationale 

suggested by EPA’s statement at the proposal stage that it “has taken the position” that 

§ 112(e)(5) “does not apply” to SSIs and that EPA is proposing a § 129 based rule “for this 

reason.” The final SSI Rule is apparently the first time EPA has asserted such an interpretation 

of the statute, and EPA certainly failed to put the interested public on notice of this novel reading 

in the proposed rule. EPA’s failure to explain what it believed to be the legal basis for its 

proposed standards deprived commenters of the ability to engage the Agency on its faulty 

reading of § 112(e)(5) and of the NRDC decision in order to achieve a different outcome in this 

rulemaking. 

Furthermore, EPA nowhere explains (1) how its new interpretation squares with the clear 

directive in § 112(e)(5) for the Administrator to set emission standards under § 112(d), (2) how it 

implicitly reached the conclusion that SSIs are not covered by the expansive CWA definition of 

“treatment works” incorporated into CAA § 112(e)(5), (3) how its new interpretation is legally 

possible in light of the numerous SSIs built and improved using CWA Title II funds, nor (4) how 

EPA’s new interpretation squares with the examples NACWA provided of previous Agency 

rulemakings and policy statements. EPA’s failure to address these and many other comments 

also violates the requirement under CAA § 307(d)(6)(B) to include in the SSI Rule “a response 

to each of the significant comments, criticisms, and new data submitted” in order to establish a 

complete record on judicial review. 

EPA’s view that it was compelled to promulgate standards for SSIs under § 129 is undoubtedly 

of central relevance to the outcome of the SSI Rule. It resulted in, for example, imposition of 

MACT floor level standards for all SSIs without regard to major/area source distinctions, 

emission standards for pollutants not subject to regulation under § 112, and in other requirements 

(e.g., siting analyses and operator training) which are mandatory under § 129 and not under 

§ 112. EPA is obligated under § 307(d)(7)(B) to grant reconsideration under these 

circumstances, and we believe there is a substantial likelihood that changes will be made to the 

SSI Rule if EPA takes the opportunity to engage these issues. 

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2. EPA failed to collect sufficient data to reliably determine the MACT floors. 

NACWA submitted comments pointing out several ways in which EPA’s rulemaking process 

was fundamentally flawed from the outset. Starting with EPA’s decision to circumvent the 

Paperwork Reduction Act and Office of Management and Budget review by limiting its 

information collection to only nine of the roughly 118 POTWs operating SSIs, the Agency’s fast 

track approach to rulemaking ensured that EPA would not have sufficient data for its 

rulemaking. The sizes of the SSI subcategories dictate that the existing source MACT floors 

would reflect the performance of the best eight fluidized bed incinerators (“FBIs”) and the best 

18 multiple hearth incinerators (“MHIs”). See Revised MACT Floor Analysis for the Sewage 

Sludge Incinerator Source Category (January 2011) (“Revised MACT Floor Memo”) at 6. Even 

after collecting additional data from state agencies, EPA had data from only six FBIs and some 

of those units were not tested for all pollutants. The MHI database also lacked data from 12 

percent of the MHI units for seven of the nine pollutants to be regulated. Thus, even assuming 

the improbable, that all of the data collected came from the top performing 12 percent of the 

subcategory, EPA’s truncated data collection effort fell short of generating the emissions 

information necessary to calculate the MACT floors. 

The quality and quantity of the data that EPA used to set the MACT standards are of central 

relevance to the development of the final SSI Rule. NACWA commented on the inadequate 

database and provided significant additional data for EPA to consider during the rulemaking 

process. Thus, NACWA was surprised when EPA’s Revised MACT Floor Memo indicated in 

January 2011 after the close of the public comment period that the final emission standards were 

established based on data from as few as four and no more than six of the 60 FBIs identified by 

EPA. MHI units had emission limitations based on data from less than 4 percent of the 144 units 

in that subcategory. Section 129 of the CAA does not allow EPA to stop short of collecting 

sufficient emissions information. As EPA acknowledges: 

While Congress adopted identical language describing the MACT floor 

calculation in section 129(a)(2) as it did in section 112(d)(3), the latter section 

includes a provision stating that the floor for existing sources cannot be less 

stringent than “the average emission limitation achieved by the best performing 

12 percent of the existing sources (for which the Administrator has emissions 

information)[.]” Section 129, however, simply states that the existing source floor 

cannot be less stringent than the average emission limitation achieved by the best 

performing 12 percent of the existing sources in the category. Therefore, while 

EPA believes Congress intended for the MACT floor calculation under each 

section of the Act to be the same, this difference in the text of the two provisions 

requires us to establish the MACT floor for section 129 source categories based 

on the best performing 12 percent of sources in the category. Because EPA does 

not have that data at this time, the statistical technique described below is the only 

manner in which we can establish the existing source floor on that basis. 

See Revised MACT Floor Memo at 8 (emphasis added). In view of this critical difference in 

statutory language, EPA must take the additional time necessary to collect sufficient data to set 

MACT standards. This is not a case where EPA tried and failed to collect the requisite data. 

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Instead, EPA decided not to obtain stack test data from the required minimum number of SSIs 

based on expediency. EPA’s rush through rulemaking also resulted in the Agency disregarding 

data provided by NACWA and its members that would have helped fill some of these data gaps 

if the Agency had taken the time to evaluate the data and made reasonable requests for 

supporting information. This is a violation not only of the database requirements established by 

§ 129 for making MACT floor determinations, as acknowledged by EPA, but also of the 

fundamental requirement underlying § 129 for rational decisionmaking. See CAA § 307(d)(9), 

42 U.S.C. § 7607(d)(9); Cement Kiln Recycling Coalition v. EPA, 255 F.3d 855, 861-62 (D.C. 

Cir. 2001). See generally NRDC v. EPA, 194 F.3d 130, 136 (D.C. Cir. 1999). Reconsideration 

is an appropriate administrative step to facilitate the collection and review of all available data to 

fill the gaps in EPA’s database. 

3. EPA failed to use data from EPA’s 40 C.F.R. Part 503 program and from stack 

tests outside of the limited data gathered from only nine POTWs in early 2010. 

EPA has additional data in its possession that should be used to determine the emission rates 

achieved by the best performing sources under the full range of operating conditions. EPA relies 

solely on stack test data to set standards for a source category that does not have a significant 

amount of historic stack test data for the relevant pollutants. As a result, EPA’s database relies 

heavily on data from the 17 stack tests performed over a few months in early 2010 in response to 

its information collection request to nine SSI facilities. These data cannot represent the emission 

profiles of the large population of SSIs – or even the profiles of the tested units themselves – 

over time since a handful of stack tests from a single time period do not reflect the intense 

geographic variability in biosolids characteristics among POTWs nor do they account for 

seasonal and daily variability of biosolids characteristics within a POTW. Thus, EPA’s approach 

fails both the test of rationality, see Cement Kiln Recycling Coalition, 255 F.3d at 861-62, and 

the test of achievability undergirding § 129, as explained below. 

a. Failure to engage in rational decisionmaking. 

NACWA in its comments urged EPA to look at all of the available data – particularly biosolids 

concentration data available for all POTWs under EPA’s Part 503 regulations – to understand 

that variability and to incorporate an analysis of Part 503 data into the MACT floor 

determinations. We pointed out that POTWs are required to track and report metals data in their 

biosolids year-round and during all periods of operation and, therefore, EPA already had all the 

Part 503 data it needs to examine variability for metals. As an illustration of the magnitude of 

variability encountered by POTWs, NACWA’s comments included the following example of 

monthly average metals concentrations from two facilities owned by NEORSD showing that 

average metal concentrations within a single plant varied by a factor of three or more over this 

12-month period: 

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2009 Monthly Average Biosolids Concentrations (mg/dry kg) 

(NEORSD Southerly and Westerly POTWs)

Cadmium Lead Mercury 

Southerly Westerly Southerly Westerly Southerly Westerly 

January 7.95 13.25 62.23 97.00 0.68 0.44 

February 8.45 11.95 75.60 123.10 0.77 0.41 

March 8.90 14.46 84.94 141.20 0.69 0.34 

April 9.11 14.96 67.93 123.00 0.84 0.37 

May 10.40 12.97 87.16 145.95 0.78 0.36 

June 4.60 7.94 99.54 204.30 1.24 0.77 

July 4.46 7.92 123.15 218.55 1.24 0.92 

August 4.78 9.08 114.10 188.23 3.12 0.59 

September 5.13 8.12 103.41 183.93 2.08 0.87 

October 3.99 7.19 94.33 129.27 0.98 0.63 

November 4.14 6.22 82.78 104.81 0.91 0.58 

December 3.80 5.97 74.66 97.55 1.38 0.40 

In response to these concerns, EPA reached the utterly implausible conclusion that single stack 

tests in the winter of 2010 from nine different facilities in nine different states “represents 

sufficient variation in regions, climates, and populations that adequately incorporates variability 

in wastewater treatment systems across the U.S.” 76 Fed. Reg. at 15391/2-3. This conclusion is 

indefensible on its face, and is in obvious tension with representations EPA made to the District 

Court in the Sierra Club case. In its memoranda supporting its motion for additional time, EPA 

stated that in order to complete the SSI rulemaking it must address several new issues raised 

during the comment period, including variability of sludge characteristics. See EPA Reply 

Memo at 21. Mr. Tsirigotis’ supplemental declaration elaborated that, with respect to the 

variability issue: 

[EPA] would need to make appropriate revisions to the proposed emissions 

standards, including re-evaluating the regulatory impact analysis, variability 

analyses, and the levels of the standards themselves. In particular, we would plan 

to analyze information regarding the variability of sludge content, determine 

whether that analysis warrants any revisions to the variability incorporated into 

the proposed standards, and calculate revised MACT floors, as appropriate. 

Tsirigotis Supp. Decl. ¶34b. However, in the SSI Rule EPA does not even attempt to reconcile 

this conclusion with the large quantity of Part 503 data available to it. Instead, EPA states that 

“there is not enough information to determine whether it would be appropriate to incorporate 

variability in sludge feed into the rule,” and attempts to defend its failure to analyze Part 503 data 

by saying that EPA requested additional data “but did not receive adequate sampling data from 

the best performing sources.” Id. at 15391/3. 

If EPA was claiming that it did not receive sludge metals concentration data from the POTWs it 

contends are the best performing sources, then EPA’s claim simply is not true. If, instead, EPA 

was merely claiming that commenters did not enclose their Part 503 data in their comments, 

then the obvious explanation is that POTWs already routinely submit these data to EPA and so 

commenters did not reasonably expect to have to resubmit data already in EPA’s possession. If 

EPA tried and had difficulty retrieving data from Agency files, the proper response would have 

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been to contact commenters to request additional copies of these data. See Tsirigotis Supp. Decl. 

¶34a (justifying an extension until July 15, 2011 because, among other things, EPA needs to 

contact commenters to get additional information on data submitted during the comment period). 

That did not happen. 

As part of this reconsideration request, NACWA encloses a summary and analysis of data from 

January 2005 to as late as December 2010 showing monthly biosolids metals (Cd, Pb and Hg) 

characteristics from 25 POTWs using SSIs.4 Fifteen of these POTWs operate SSIs that EPA 

considers to be among the best performing units – including the City of Greensboro (NCTZ 

Osborne), Allegheny County (PA) Sanitary Authority, Upper Blackstone (MA) Water Pollution 

Abatement District, Central Contra Costa (CA) Sanitary District, Metropolitan District Hartford 

(CT), Ypsilanti (MI) Community Utilities Authority, Wayne Township (NJ) Sewer Authority, 

Indianapolis (IN) Sewer Authority, two POTWs operated by the Metropolitan Council (MN) 

Environmental Services, and five POTWs operated by HRSD. 

Cadmium in Biosolids (mg/dry kg) 

(2005-2009)

POTW 

25th

Percentile Minimum Median Maximum 

75th

Percentile 

CCCSD (CA) ND ND ND ND ND 

Wayne Twp. (NJ) 1.6 1.1 2.2` 17.3 2.8 

Hartford (CT) 2.0 0.3 2.6 8.0 3.1 

Greensboro (NC) 2.4 1.3 5.6 22.1 7.7 

Upper Blackstone (MA) 5.3 3.2 6.0 11.0 6.8 

ALCOSAN (PA) 0.5 0.0 0.7 19.1 1.3 

St. Paul Metro MCES (MN) 1.2 0.8 1.5 32.2 2.7 

Williamsburg HRSD (VA) 1.0 0.5 1.5 5.0 3.0 

Army Base HRSD (VA) 2.8 1.0 4.0 8.0 5.0 

Boat Harbor HRSD (VA) 3.0 1.0 3.0 9.0 4.0 

Chesapeake Elizabeth HRSD (VA) 1.5 0.5 2.0 5.0 3.0 

Virginia Initiative HRSD (VA) 1.5 0.5 3.0 5.0 3.0 

Seneca MCES (MN) 0.4 0.2 0.7 46.0 1.3 

Belmont Indianapolis (IN) 1.4 1.0 1.8 4.1 2.4 

Ypsilanti (MI) 3.5 2.0 5.3 15.0 6.1 

NOTE: For monthly data below the detection limit, one-half the detection limit was used in calculations. 

ND is used when over 90 percent of the data are below the detection limit and the artificial value would significantly 

distort actual variability. 

 

4

 All of the enclosed data were generated pursuant to the Part 503 regulations and were previously submitted to the 

POTWs’ respective permitting authorities. Enclosure D contains example Part 503 reports for NEORSD’s 

Southerly and Westerly POTWs in the same form as originally submitted to the permitting authorities. 

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USCA Case #11-1131 Document #1330427 Filed: 09/19/2011 Page 14 of 230
Lead in Biosolids (mg/dry kg) 

(2005-2009) 

POTW 

25th

Percentile Minimum Median Maximum 

75th

Percentile 

CCCSD (CA) 0.8 0.3 8.6 54.9 15.1 

Wayne Twp. (NJ) 31.9 25.8 39.0 82.4 45.6 

Hartford (CT) 57.6 30.0 69.2 194.0 80.6 

Greensboro (NC) 17.9 6.4 24.5 39.1 30.6 

Upper Blackstone (MA) 48.0 31.0 58.0 160.0 70.0 

ALCOSAN (PA) 52.0 15.0 66.2 233.0 79.1 

St. Paul Metro MCES (MN) 27.3 19.2 30.4 97.1 37.4 

Williamsburg HRSD (VA) 15.0 6.0 18.5 49.0 23.3 

Army Base HRSD (VA) 36.8 22.0 46.0 130.0 67.8 

Boat Harbor HRSD (VA) 37.0 17.0 42.0 184.0 49.3 

Chesapeake Elizabeth HRSD (VA) 19.0 11.0 26.0 137.0 36.3 

Virginia Initiative HRSD (VA) 39.5 12.0 45.0 84.0 54.0 

Seneca MCES (MN) 4.0 3.0 4.8 20.0 5.7 

Ypsilanti (MI) 9.2 0.0 15.9 73.6 23.8 

NOTE: For monthly data below the detection limit, one-half the detection limit was used in calculations. 

Mercury in Biosolids (mg/dry kg) 

(2005-2009) 

POTW 

25th

Percentile Minimum Median Maximum 

75th

Percentile 

CCCSD (CA) 0.61 0.40 0.75 14.65 1.09 

Wayne Twp. (NJ) 0.40 0.05 0.71 3.40 0.96 

Hartford (CT) ND ND ND ND ND 

Greensboro (NC) 0.20 0.03 0.36 1.70 0.68 

Upper Blackstone (MA) 0.71 0.60 0.87 1.80 1.37 

ALCOSAN (PA) 1.00 0.74 1.13 2.31 1.42 

St. Paul Metro MCES (MN) 0.35 0.19 0.50 3.49 0.64 

Williamsburg HRSD (VA) 0.30 0.10 0.30 0.70 0.50 

Army Base HRSD (VA) 0.60 0.30 0.70 6.40 0.90 

Boat Harbor HRSD (VA) 0.40 0.20 0.50 0.90 0.60 

Chesapeake Elizabeth HRSD (VA) 0.70 0.30 0.85 1.90 1.00 

Virginia Initiative HRSD (VA) 0.40 0.30 0.50 1.90 0.63 

Belmont Indianapolis (IN) 0.03 0.01 0.04 0.60 0.05 

Ypsilanti (MI) 0.43 0.03 0.59 1.80 0.78 

NOTE: For monthly data below the detection limit, one-half the detection limit was used in calculations. 

ND is used when over 90 percent of the data are below the detection limit and the artificial value would significantly 

distort actual variability. 

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These data and the monthly average data summarized in Enclosure D strongly illustrate the 

significant variability in metals concentrations among POTWs and within a POTW over 

relatively short time periods.5

 For example, the enclosed monthly Part 503 data show: 

• Average metals concentrations in biosolids feed vary significantly at all these POTWs. 

The data show average Cd concentrations ranging from a minimum of 0.2 mg/dry kg to a 

maximum of 46 mg/dry kg at the Seneca (MN) POTW, from 1.3 up to 22.1 mg/dry kg at 

the Greensboro (NC) POTW, and from 0.1 up to 33.1 mg/dry kg at the Metropolitan St. 

Louis Sewer District Bissell Point POTW. By way of example, an FBI (Unit ID ES-1) at 

the Greensboro POTW was selected by EPA as the best performing unit to set the NSPS 

MACT floor for Cd and was among the units used in calculating the MACT floor for 

existing sources. Yet this POTW experienced among the most significant variability in 

Cd concentrations in biosolids during the period 2005-2009, as demonstrated by the 

enclosed Part 503 data. Furthermore, Cd concentrations nearest the time when 

Greensboro performed its stack testing in response to EPA’s ICR were close to the lowest 

levels recorded over the five years of monthly data (i.e., at or less than the 25th percentile 

concentration). Yet EPA did not consider this variability at all in its MACT floor 

calculations nor in setting the level of the final standards. 

• Average Pb concentrations ranged from 6.4 up to 39.1 mg/dry kg at the Greensboro 

POTW and from 31 up to 160 mg/dry kg at the Upper Blackstone (MA) POTW, both of 

which operate the SSIs used by EPA to set the NSPS MACT floor for Pb. Yet based on 

the available Part 503 data both of these POTWs were at or below the 25th percentile 

average concentration for Pb during the period leading up to the ICR stack testing. 

• Average Hg concentrations ranged from a low of 0.4 up to 14.65 mg/dry kg at the Central 

Contra Costa (CA) POTW, which was used to set both the new and existing source 

MACT floors for Hg. Yet again, the average Hg concentrations were approaching the 

five-year minimum and were less than one-half of the 75th percentile average in the 

period before stack testing took place. Looking at other POTWs, average Hg 

concentrations vary by a factor of 56 at the Greensboro POTW and by more than 90 

times at the Metropolitan St. Louis Sewer District LeMay POTW. 

• Biosolids characteristics are unique to a POTW even within the same geographic region – 

for example, the Metropolitan St. Louis LeMay plant registered its highest Cd 

concentration over a five-year period (2005-2009) in the same month (April 2008) that 

the Metropolitan St. Louis Bissell Point plant registered its lowest Cd value over the 

same five-year period. 

 

5

 This variability is evident even though the monthly averages generated from Part 503 data necessarily mask even 

more significant short term variability. 

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USCA Case #11-1131 Document #1330427 Filed: 09/19/2011 Page 16 of 230
• Biosolids characteristics vary significantly based on seasonal events and even day-to-day 

activities within the POTW – by example, the HRSD Boat Harbor plant registered its 

lowest Pb value (17 mg/dry kg) over a five-year period in October 2009 and its highest 

value (184 mg/dry kg) one month later. 

As with the Part 503 data, EPA also refused to consider stack test data submitted by commenters 

who provided summaries of test results demonstrating that the proposed emission limits were not 

supported by sound data. EPA did not use these data simply because commenters did not 

include a complete stack test report in their comment submission. Id. at 15387/2-3. Again, the 

proper response from EPA would have been to contact the commenters to obtain the backup 

report information so EPA could verify the data that was submitted. See Tsirigotis Supp. Decl. 

¶34a. Taking this step is even more important under circumstances such as these where EPA is 

attempting to set MACT floors using such an inadequate database. 

Moreover, NACWA has verified that some (and maybe most) of the nine facilities targeted by 

EPA’s ICR submitted their stack test results using EPA’s electronic reporting system, and thus 

never submitted the stack test reports. It is clearly improper for the Agency to use only the data 

it wants and to disregard contrasting information by selectively applying more stringent data 

validation requirements. 

We request that EPA use all available data to expand the MACT floor dataset to include the 

statutorily mandated minimum number of units within each subcategory and to account for the 

inherent variability in biosolids characteristics as revealed in the Part 503 data. EPA’s failure to 

use such a significant amount of data showing the variability and the likely impact on SSI 

emissions is irrational and undoubtedly affected the level of both the new and existing source 

emission standards. 

b. Failure to satisfy the achievability requirement of CAA § 129. 

The failure to use adequate data had a profound impact on EPA’s ability to demonstrate that the 

SSI standards are in fact achieved by the best performing units over all expected operating 

conditions. For example: 

• It appears that all of the MHIs operated by HRSD will not achieve one or more existing 

source standards, despite being selected as among the top performing units for several 

pollutants, due to variable conditions that affect inlet biosolids concentrations and similar 

factors not accounted for in EPA’s database. These problems include trying to achieve 

the NOx emission limitations for existing sources without add-on pollution control 

devices, which have never been demonstrated as effective for MHIs.6 HRSD observes 

that the need to find a workable solution for controlling NOx emissions for the MHIs at 

 

6

 See Declaration of Mr. Norman E. LeBlanc, Director of the Department of Water Quality for the Hampton Roads 

Sanitation District, Para. 5 (“HRSD Declaration”) (Encl. E). 

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USCA Case #11-1131 Document #1330427 Filed: 09/19/2011 Page 17 of 230
its Boat Harbor POTW is anomalous since this SSI is considered by EPA to be among the 

best performing sources for both NOx and CO. HRSD Declaration ¶5. In addition, 

HRSD predicts that the MHIs at its Virginia Initiative POTW cannot reliably achieve the 

standards for Cd, Pb, and dioxins/furans. Id. 

• Four FBIs among the “best performing” units used to set the NSPS MACT floors either 

do not achieve or barely achieve the existing source standard for dioxins/furans. These 

include an FBI operated by the City of Greensboro and three FBIs operated by 

Metropolitan Council Environmental Services. The achievability of the existing source 

standard is highly suspect since these units do not employ controls for dioxin/furan 

emissions. 

• EPA adopted a significantly revised MACT floor standard for Hg after correctly 

concluding that the proposed beyond-the-floor standard was flawed in several respects. 

However, despite EPA’s assumption that all existing FBIs will be able to achieve the 

MACT floor Hg limits without additional controls, NACWA has identified at least two 

utilities that believe their units cannot achieve the 0.037 mg/dscm Hg standard without 

add-on carbon controls (carbon adsorption or activated carbon injection [“ACI”]), 

technologies that EPA has agreed are unproven on SSIs and present serious operational 

problems such as corrosion and plugging/fouling. See 76 Fed. Reg. at 15393/2-3. 

NACWA and several other commenters objected to EPA’s stringent pollutant-by-pollutant floor 

setting approach. We explained that the flaws in EPA’s approach are most evident when 

considering the inverse relationship between CO and NOx emissions. EPA’s only response to 

this issue was to observe that “... it is incumbent upon the SSI facility to determine whether 

combustion conditions can be adjusted to meet both standards and, if not, install NOx controls as 

necessary ... .” 76 Fed. Reg. at 15386/2. EPA admits that there are only limited data on SSIs 

with FGR, that no SSIs currently use SNCR or SCR, and that there are reasons to believe that 

such controls may not be effective or reliable for SSIs. However, EPA never attempts to deal 

with this issue and merely concludes that the Agency: 

... [does] not know of [a] technical reason why [these NOx control technologies] 

could not be used. Given the limited data available on SSI units with FGR, we 

could not definitely determine how effective the technology was on SSI units. 

However, we also do not know of a technical reason why they could not be used, 

if necessary, to meet NOx limits, and commenters did not provide any reasons 

they could not be used. 

Id. To the contrary, NACWA commented on the difficulties experienced by the two utilities that 

use add-on controls for Hg, where both experienced severe abrasion and corrosion problems 

shortly after installation. In addition, for ACI to be effective, the high exhaust gas temperatures 

leaving the incinerator must be cooled to roughly 350 degrees F with heat exchangers and waste 

heat boilers, and a contact chamber is required to ensure sufficient time for adsorption. On the 

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USCA Case #11-1131 Document #1330427 Filed: 09/19/2011 Page 18 of 230
other hand, since carbon adsorption units are located after the wet scrubber, the exhaust gas 

temperature have high moisture content that must be dried (by increasing the exhaust gas 

temperature) to ensure adsorption. We believe these same conditions present efficiency and 

reliability problems for other types of add-on controls (including NOx controls) and EPA should 

fairly consider whether such controls have been demonstrated for SSIs. The “achievability” 

mandate in both CAA §§ 112 and 129, and fundamental principles of rational rulemaking, 

require EPA to demonstrate that there are methods available for well-operated SSIs to achieve all 

applicable standards simultaneously and under the full range of normal operating conditions. 

This is clear from an examination of the text and purpose of CAA § 129. 

Congress intended the regulatory mandate of § 129(a) to operate so as to: (1) identify those 

forms of emission control that have been demonstrated to produce maximum reductions in 

emissions of HAPs and other § 129 pollutants when applied to particular units; (2) press all new 

and existing units of the same type from the standpoint of basic design (i.e., within each 

subcategory) to achieve at least the same reduced level of emissions; and (3) preserve, protect 

and enhance the economic vitality of the national economy. To carry out that mandate, EPA 

must calculate MACT floors based on emission test data from the requisite number of best 

performing units and also reasonably determine that the resulting MACT floor is not merely 

indicative of some inherent emission feature of the units deemed best performing, which feature 

cannot be replicated by other units in the subcategory. EPA can make such a demonstration by 

showing that some technically feasible means of achieving the floor is generally available to the 

units within the subcategory, as demonstrated by actual use within the subcategory. Otherwise, 

if as is the case here EPA were to base the floors only on a tiny amount of test data, without fully 

examining inherent variability in emission characteristics and the limitations of control 

technologies, it could produce standards which many units in the subcategory – even the units 

used to set the MACT floors – have no hope of achieving with in-use demonstrated control 

technology. This approach may pressure POTWs to abandon incineration, contrary to the 

congressional vision for (1) MACT-based technology standards, which is to identify and spread 

the use of best controls within a category or subcategory, not to interfere with fundamental 

design choices, and (2) maximizing the prerogatives of local communities to choose the form of 

sludge disposal best suited to their local circumstances, as required by CWA § 405(e). 

Section 129 provides strong textual evidence that Congress authorized EPA to set a floor only at 

a level which units within a subcategory generally have some means of achieving as a technical 

matter, as demonstrated by actual usage within the subcategory. In implementing § 129, EPA 

must give full effect to that textual evidence. See Whitman v. American Trucking Association, 

Inc., 531 U.S. 457, 485 (2001) (“EPA may not construe the statute in a way that completely 

nullifies textually applicable provisions meant to limit its discretion”). A key piece of such 

evidence is § 129(a)(3), which in relevant part requires EPA to base standards on “methods and 

technologies for removal or destruction of pollutants before, during or after combustion ... .” 

Not mentioned, or even suggested, are changes to the basic design of the “unit” in question. 

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Similarly, § 129(a)(2) is also an expression of this mandate, in that it requires EPA to set the 

floor for new units at the level representing the “degree of reduction in emissions” that is not less 

stringent than the emissions control that is “achieved in practice by the best controlled similar 

unit ... .” The phrases “degree of reduction in emissions,” “achieved in practice,” and “best 

controlled similar unit” all suggest the application of control measures to pollutant-emitting 

equipment. For existing units the floor is to be set at the average level actually “achieved” by the 

“best performing” 12 percent of “units.” 

In crafting the § 129 standard-setting process, Congress took sources, such as SSIs, as a given 

and envisioned that the standards EPA generated would stimulate the application of “methods 

and technologies for removal or destruction of pollutants” from such sources, without mandating 

changes to the fundamental design of the “unit.” In other words, Congress sought to control 

§ 129 emissions by forcing the application of pollution control measures without upsetting the 

basic choice as to the design of the pollution source. If EPA, however, were to base a floor only 

on emission data, without examining the features that drive emission performance of units within 

the subcategory and the availability of demonstrated control technology for the types of units to 

be regulated, it could end up setting a floor which would operate to force changes in the 

fundamental design of equipment and the systems of which they are a part. That would be 

contrary to the textual thrust of § 129(a). 

Section 129(a) follows a fundamental conceptual orientation on the part of Congress which is 

universal to all of the technology-based standard-setting processes dictated by the CAA. Several 

provisions other than § 129 call for the establishment of technology-based emission standards for 

stationary sources, namely: § 111 (NSPS), § 112 (NESHAP), § 165 (Best Available Control 

Technology for certain new construction projects), § 172(c)(1) (Reasonably Available Control 

Technology for existing sources as control by State Implementation Plans), and § 173 (Lowest 

Achievable Emission Rate for certain new construction projects). In each case, the basic 

approach is to set a benchmark based on the application of available and “demonstrated” control 

technology, without fundamentally compromising the freedom to choose the basic design of their 

purpose-serving equipment – here incinerators for biosolids management. There is no sign in the 

CAA that Congress intended § 129 to operate differently or to authorize EPA in setting § 129 

standards to encroach fundamentally on that basic freedom. Furthermore, § 101(b)(1) declares 

that an overarching purpose of the entire CAA is “to protect and enhance the quality of the 

Nation’s air resources so as to promote the public health and welfare and the productive capacity 

of its population.” If EPA were to set floors under § 129 solely on the basis of limited emissions 

data, without regard to the cause-and-effect relationship between available proven controls and 

emission rates, inevitably that approach would defeat that purpose by compromising the Nation’s 

productive capacity. 

Finally, no court decision has addressed squarely whether EPA may set a floor solely on the 

basis of emission data, without regard to the existence of a proven means of achieving the floor. 

The D.C. Circuit in Sierra Club v. EPA, 479 F.3d 875 (D.C. Cir. 2007) (“Brick MACT”), did not 

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address that issue squarely. As characterized by EPA in its June 2010 Boiler MACT proposal, 

the closest the court came to addressing that issue was to rule that “[f]loors for existing sources 

must reflect the average emission limitation achieved by the best-performing 12 percent of 

existing sources, not levels EPA considers to be achievable by all sources.” 75 Fed. Reg. at 

32009-10 (emphasis added). That is a different issue. An individual source within a particular 

subcategory may not be able to achieve a floor, for cost or other reasons not directly germane to 

setting the floor, even when a proven means of control is available to it from a technological 

standpoint. The Brick MACT case does not call into question EPA’s obligation to demonstrate 

that a proven means of control is available and that the floor is a reasonable expression of the 

performance of that means of control. 

In the SSI Rule, EPA set the floors on such a limited snapshot of data – data that do not even 

represent the performance of the “best performing” units or “best controlled” unit over time – 

and failed to demonstrate that there are proven technologies available to SSIs for achieving the 

floors. This does not inevitably lead, as EPA claims, to setting standards based on a lowest 

common denominator. Rather, if EPA were to determine that there are no such means of control, 

it would have to subcategorize further in order to group units with similar biosolids 

characteristics or, if that is not practicable, base the standard on an engineering or work practice. 

Here, EPA failed to look beyond the scanty emission data it used to identify the “method [or] 

technology” of emissions control that expresses the true emission performance of the best 

performing units. As the Part 503 data reveal, the emission limitations in the SSI Rule reflect 

snapshots of particular points in the oscillations of all the factors – in particular the composition 

of inlet biosolids – that determine emission performance and not the average performance of 

identifiable control “methods [or] techniques.” Thus the SSI Rule floors are based on numerical 

happenstance at the moment one of 17 stack tests was performed, as opposed to statisticallysound averages of the actual performance of control technologies, taking variability of known 

factors into account. 

c. Summary and conclusion. 

In sum, EPA has not taken into account the large amount of available data showing that the 

limited floor database is not representative of variations in biosolids feed characteristics and 

foreseeable SSI operations. Although NACWA pointed out inherent difficulties of using add-on 

controls on SSIs, EPA has failed to identify any demonstrated path to compliance for the utilities 

that must treat wastewater flows containing elevated metals and for utilities that cannot 

simultaneously achieve the CO and NOx standards through combustion adjustments alone. 

NACWA and its members are still studying these issues and fully expect to identify additional 

SSIs that cannot achieve the standards using controls that have been demonstrated for SSIs. 

EPA is obligated to grant reconsideration in order to consider all of the available data and to 

ensure that each of the final standards is achievable by the best performing units under all 

reasonably foreseeable operating conditions. 

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4. The SSI Rule does not consider subcategories other than FBIs and MHIs. 

EPA’s proposed and final rules address emission limits for only two subcategories of SSIs – 

FBIs and MHIs – based on incinerator design. After the public comment period closed, 

NACWA learned of a stoker/grate type design that is also being used at some POTWs. Based on 

the information NACWA has gathered, this type of design has previously been used in Europe 

and has recently been selected at a limited number of POTWs in the United States. This type of 

unit consists of a stoker bin feed system, combustion chamber, reciprocating grates, under- and 

overfire air fans and ash removal system. It requires a significantly drier biosolids – typically 90 

percent solids compared to the 25-40 percent solids combusted in MHIs and FBIs. A convection 

belt dryer is used to dry the dewatered biosolids feed. At least one application of this 

stoker/grate design also has a heat recovery system that provides 70-80 percent of the energy 

necessary to operate the sludge feed dryer and other systems. 

The stoker/grate type design has a number of features that affect emission characteristics and that 

differ significantly from the MHI and FBI designs. Unlike MHIs, the stoker/grate type design 

has under- and overfire systems and does not incorporate a drying zone in a combustion 

chamber. Because the stoker/grate design uses a much drier biosolids material, it is likely that 

these designs require less auxiliary fuel than MHIs and that operating temperatures would be 

more stable making the stoker/grate design less sensitive to variations in moisture content and 

other fuel characteristics. Because the stoker/grate applications of which we are aware include a 

biosolids drying process, there would also be significantly less moisture in the exhaust gas 

stream. FBIs, on the other hand, have air injection zones that increase combustion efficiencies 

and reduce particulate emissions, and many have internal afterburning zones that increase 

residence time to reduce CO, HC, and PM emissions. Stoker/grate designs do not share these 

characteristics. 

NACWA was not aware of the stoker/grate design at the proposal stage. EPA also apparently 

was not aware of this technology, since the proposed rule does not discuss it and there are no 

emission data on this type of incinerator in the rulemaking docket. Absent EPA’s consideration 

of this design, there is considerable uncertainty as to whether stoker/grate designs are or will 

become subject to emission limitations under the SSI Rule. This uncertainty creates a difficult 

environment for the POTWs who are already using this technology and for many more POTWs 

who may wish to evaluate this technology for future use. 

5. EPA’s new source standards for MHIs were neither proposed nor subject to 

public review and comment, and may not be achievable using proven 

technology. 

As discussed above, EPA’s proposed rule recognized two subcategories based on incinerator 

design. However, EPA initially abandoned all subcategorization in proposing emission limits for 

new SSIs. Instead, EPA proposed that the MACT floor for all new and modified SSIs would be 

based on the top performing FBI unit. As a result, EPA did not calculate MACT floors or 

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propose standards based on the best performing MHI. NACWA and other commenters objected, 

pointing out that EPA’s approach failed to recognize differences in emission performance that 

are inherent in the design of MHIs and would effectively subject new and modified MHIs to 

unachievable emission limitations. 

EPA reversed course in the SSI Rule and promulgated separate new source performance 

standards for MHIs and FBIs. However, in doing so EPA never made the suite of emission 

limits for new MHIs available for public review and comment. This means that public review 

and input was not available for EPA’s choice of the five SSIs that were used to set the MACT 

floors, nor was the public given the opportunity to comment on the data and calculations EPA 

used to set the floors. 

The failure to provide adequate notice and comment on the new source standards is not merely 

objectionable as to process. Based on study by utilities since the final rule was published, it 

appears that many new/modified MHIs, particularly those with elevated and variable metals 

concentrations in biosolids, will have trouble achieving the NSPS for some pollutants without 

add-on controls that are not demonstrated for use on MHIs. For example, NEORSD predicts that 

its existing MHIs, if modified as defined under the SSI Rule, could not achieve the new source 

Hg limits without employing ACI. EPA has agreed that ACI is not a proven technology on 

MHIs and that the only known applications on other incinerator types have experienced serious 

operational and reliability problems. Here again, EPA’s failure to provide for public comment 

(e.g., through a notice of data availability and supplemental comment period) and failure to 

consider data on variability has produced no known means for these SSIs to comply with the SSI 

Rule. 

6. The MACT floor database for dioxin/furan emissions is dominated by stack test 

measurements that are too low for EPA to establish defensible numerical 

standards. 

After the SSI Rule was promulgated, EPA issued its notice of proposed rulemaking to establish 

emission standards under § 112(d) for the coal- and oil-fired utility sectors.7

 In its preamble to 

the Utility MACT proposal, EPA proposes to use work practice standards, instead of numeric 

emission limits, for non-dioxin/furan and dioxin/furan organic HAP because the majority of the 

test measurements in EPA’s MACT floor database were at or below the EPA test method 

detection limit (“MDL”). Due to the uncertainty obtaining accurate measurements of emissions 

at such low levels, EPA concluded that it “considers it impracticable to reliably measure 

emissions from these units.” 76 Fed. Reg. at 25040/1. 

 

7

 See “National Emission Standards for Hazardous Air Pollutants From Coal- and Oil-Fired Electric Utility Steam 

Generating Units and Standards of Performance for Fossil-Fuel-Fired Electric Utility, Industrial-CommercialInstitutional, and Small Industrial-Commercial-Institutional Steam Generating Units; Proposed Rule,” 76 Fed. 

Reg. 24976 (May 3, 2011) (“Utility MACT”). 

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To support its approach EPA noted that 1,552 of the 2,334 (67 percent) test runs for dioxin/furan 

organic HAP from electric utility steam generating units (“EGUs”) contained data below the 

MDL for one or more congeners. For the non-dioxin/furan organic HAP, EPA noted that 

between 57-89 percent of the test data contained values below the MDL. Finally, EPA pointed 

out that in several cases, all of the data for a test run were below the MDL and in only a few 

instances were all the data above the MDL. Id. at 25040/1-2. EPA also looked at whether the 

low dioxin/furan test measurements can be explained by the presence of sulfur, noting that 

formation of dioxins/furans may be inhibited when the sulfur-to-chlorine ratio in flue gas is 

greater than 1.0. Id. at 25023/3. 

EPA’s approach to standard setting in the Utility MACT context raises important new reasons to 

reconsider the dioxin/furan limits in the SSI Rule. EPA established numeric dioxin/furan 

emission limitations for SSIs based on a dramatically less robust dataset, with significantly 

greater measurement uncertainty than is exhibited by the Utility MACT database. For example, 

data from five of the six test runs (83 percent) in the database used to set the dioxin/furan floor 

for new SSIs were below the MDL. Thus, in light of EPA’s recent response in the Utility MACT 

to data below detection limits, the MACT floor database for new MHIs does not contain any data 

that are not obscured by unacceptable measurement uncertainty, while the database for new FBIs 

contains at most one test run that produced usable data. The database backing the existing 

source standards is nearly equally flawed. Data from 20 of the 30 (66.7 percent) test runs in the 

existing source MACT floor database were below the MDL, including 11 of the 15 (73 percent) 

FBI test runs for FBIs and 9 of the 15 (60 percent) test runs for MHIs, resulting in a grand total 

of 10 test runs producing data above the MDL. 

It also appears that, as with utility EGUs, elevated sulfur-to-chlorine ratios may explain the very 

low levels of dioxin/furan emissions from SSIs. For example, biosolids managed at the POTWs 

owned by NEORSD typically exhibit a sulfur-to-chlorine ratio much greater than 1-1, with a 

ratio as high a 10-1 having been reported. The elevated sulfur-to-chlorine relationship is also 

exhibited in the flue gases from the six MHIs serving these POTWs, with SO2 emissions 

generally exceeding HCl emissions from these SSIs by several orders of magnitude. 

Based on the foregoing, EPA should reconsider the dioxin/furan standards to address the 

acknowledged measurement error and should consider using a work practice standard in lieu of 

numerical emission limits. 

7. The SSI Rule contains new performance test specifications that likely cannot be 

achieved by some SSIs. 

EPA originally proposed operational requirements related to sludge feed rates but eliminated 

those requirements in the final SSI Rule based on comments that the feed rates would not be 

achievable for some SSIs, would artificially change permitted feed rates and would force some 

SSIs to conduct performance tests at nearly 100 percent of the unit’s rated capacity. However, 

EPA added a new requirement that SSIs must be operated at 85 percent of their maximum 

permitted capacity during each compliance test run. 

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The new performance test specification is not achievable for POTWs that do not generate 

sufficient biosolids on a continuous basis and that do not have adequate storage capacity to 

maintain a sufficient quantity of biosolids to meet the 85 percent permitted capacity requirement. 

This problem is particularly acute for longer test runs, such as the four hour tests required under 

the dioxin/furan standards. If EPA were to maintain the 85 percent capacity requirement, 

utilities will have to extend their performance testing over multiple days, at greater costs, in 

order to conduct the required number and duration of tests at such a high capacity. EPA should 

reconsider this test requirement and allow utilities to select lower feed rates for performance 

testing. 

IV. GROUNDS FOR STAY 

The Administrator has clear authority under CAA § 307(d)(7)(B) to postpone the effective date 

of the SSI Rule for an initial three month period if reconsideration is granted. Such a stay is 

appropriate based upon the same grounds underlying EPA’s decision to grant reconsideration. 

In addition, EPA may further postpone the effective date of the SSI Rule under APA § 705 

where “justice so requires” to allow for judicial review. NACWA has timely filed a petition for 

review with the D. C. Circuit challenging the SSI Rule; and, as detailed below, fundamental 

principles of justice and of sound government strongly support granting a stay. 

Furthermore, as mentioned above, CAA §§ 129(a)(5) and 301(a) give EPA authority at any point 

in time to undertake a process of correcting a § 129 rule and to establish a parallel stay where the 

stay is necessary to preserve the status quo so as to ensure that the correction is a complete cure, 

especially to keep communities from wasting resources in complying with a legally defective 

rule. Section 301(a) authorizes EPA to issue such rules as are necessary to carry out its CAA 

functions, one of which is to ensure that the standards are lawful and that the regulated 

community is not forced to comply with unlawful requirements. See, e.g., 76 Fed. Reg. 4780, 

4800/3 (Jan. 26, 2011) (implying that § 301(a) is a source of stay authority, but concluding that 

the exercise of that authority was not appropriate in the case at hand). Here, a stay is necessary 

to assure a complete correction of the legal defects in the SSI rulemaking and to avoid the 

potential for irreversible impacts on POTWs that incinerate biosolids. 

First, there is a very real risk that refusal to stay the SSI Rule will lead to significant 

environmental harm. Because several of the emission limitations (e.g., the NSPS/EG for Hg and 

dioxins/furans) are so stringent and EPA has so far failed to account for the inherent variability 

of biosolids characteristics, some municipalities predict that no viable control technologies exist 

that will allow them to incinerate in compliance with the rule. Other POTWs predict that they do 

not have the space and other facilities to retrofit their MHIs. Without an assurance of 

reconsideration and a stay of the SSI Rule, these municipalities may be forced to make a choice 

now whether to abandon incineration and start the conversion to landfilling. 

The impacts of switching away from incineration are practically irreversible and are magnified 

precisely because landfilling is not an environmentally or economically attractive option for 

utilities who currently incinerate. Utilities who choose to switch are extremely unlikely to 

switch back if EPA later promulgates a defensible SSI rule because they will have eliminated 

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their incineration systems and invested millions in new treatment equipment, biosolids storage, 

and truck loading facilities. See HRSD Declaration ¶8. As pointed out in NACWA’s comments, 

the increased diesel exhaust emissions from thousands of new daily truck trips travelling, in 

some cases, more than 100 miles one-way to the nearest landfill will exceed emissions from 

incineration and are far more difficult and costly to monitor and control. The harm is magnified 

when one also considers the resulting methane emissions from landfills, increased consumption 

of fuel for transportation, additional traffic congestion, wear and tear on city streets and other 

impacts on communities. EPA failed to consider these impacts during the rulemaking, and 

failure now to grant a stay may irretrievably commit some communities to higher costs for less 

environmentally beneficial biosolids management options. 

Second, absent a stay, a legal interpretation adopted and defended recently by EPA will operate 

to cause additional irreparable and unjustifiable harm, even if EPA or the D.C. Circuit ultimately 

agrees with NACWA that the SSI Rule is legally defective. At the same time that EPA signed 

and published the SSI Rule, it also signed and published § 129 standards for commercial and 

industrial solid waste incineration units (“CISWI”). See 76 Fed. Reg. 15704 (Mar. 21, 2011). In 

the preamble to its CISWI rule, EPA responded to comments on the so-called “MACT-onMACT” issue – i.e., whether EPA may lawfully include in newly promulgated MACT floor 

calculations the emission levels that incinerators were forced to achieve by virtue of unlawful 

predecessor MACT standards that the D.C. Circuit had remanded in response to EPA’s 

confession of error. In the CISWI preamble, EPA contended that it must use the MACT-onMACT approach by virtue of the literal language of § 129. Id. at 15721-22. While NACWA 

disagrees with EPA’s position, that position nonetheless sets the stage for a profound and 

irreversible impact on POTWs with SSIs. If EPA refuses to stay the SSI Rule, inevitably some 

POTWs will install the add-on control technology necessary to come into compliance with the 

SSI Rule standards, assuming compliance is possible at all. If ultimately EPA repeals those 

standards during reconsideration (or if the D.C. Circuit vacates and remands the SSI Rule back to 

EPA), then, according to EPA’s current interpretation of § 129, the performance of SSIs that 

installed new controls will be part of the MACT floor database when it comes time to reestablish the MACT standards. The fact that these controls were added solely due to the 

previous unlawful standards is apparently irrelevant in the Agency’s view of § 129. For 

example, new and modified units that were forced to install controls to achieve illegal new

source standards could become the factual predicate for setting the floors for existing sources. 

There is an obvious irreversible impact arising from the ratcheting down of future MACT 

standards by virtue of a prior unlawful rulemaking. Aside from the question of whether the text 

of the CAA supports EPA’s MACT-on-MACT interpretation or whether Congress intended such 

an unjust outcome, EPA plainly has the power under APA § 705 and CAA §§ 129(a)(5) and 

301(a) to keep it from happening by issuing a stay pending reconsideration. 

Third, a large number of municipalities and public clean water authorities will suffer significant 

economic harm unless a stay is granted. Retrofitting SSIs with the necessary add-on control 

equipment is a costly and time-consuming process. Many POTWs are being forced to start 

planning and procurement activities immediately in order to identify compliance gaps, locate 

capital project funding sources, acquire the necessary engineering services and equipment, and to 

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complete the major infrastructure and control equipment installations required for most FBIs and 

many MHIs. New sources must comply with the SSI Rule essentially upon startup, and existing 

sources have up to five years to complete capital planning, construction of new building space 

and acquisition/installation of several new types of add-on control equipment. Municipalities, as 

governmental entities, face the added challenge of longer-term financial planning requirements 

and uncertain financing options as state and local budgets and jobs are cut in the current 

economic environment. 

Even by EPA’s own estimation, dozens of municipalities and public authorities will be forced to 

start spending public funds and committing other scarce resources to planning, engineering and 

procurement of additional building space, add-on control devices and other equipment in order to 

try to meet the present emission standards. Like many others, HRSD has already started 

incurring significant costs in an effort to comply with the SSI Rule. They have estimated that it 

will cost at least $60 million in capital costs alone to retrofit the five primary MHIs at its 

POTWs. See HRSD Declaration ¶7. This estimate assumes that all five POTWs will eliminate 

their current ‘backup’ MHI units because it is not possible to upgrade these units given space and 

financial constraints. 

As the other examples provided throughout this petition illustrate, we believe EPA has greatly 

overestimated the number of SSIs that can comply with the SSI Rule without substantial new 

investments, and therefore has greatly underestimated the economic impact of the SSI Rule. 

It is indisputable that EPA has the authority to stay the SSI Rule pending reconsideration even 

after it takes effect. First, the last sentence of § 307(d)(7)(B) assumes that EPA would first 

decide to reconsider and then, either simultaneously or subsequently, issue a three month stay. 

EPA’s decision to reconsider, however, could occur after the rule in question takes effect. 

Implicitly, therefore, EPA may issue a stay of effectiveness after the initial effective date. Once 

the stay is in place, the SSI Rule would no longer be in effect, and then EPA could use its powers 

under APA § 705 and under CAA §§ 129(a)(5) and 301(a), individually or collectively, to 

postpone the new effective date. Indeed, EPA has had no trouble following this procedure in 

recent years in situations where the initial effective date has passed. See, e.g., 76 Fed. Reg. 

17548 (Mar. 30, 2011) (see also several Federal Register notices cited therein all related to rules 

for inclusion of fugitive emissions in PSD/NSR applicability determinations for plant 

modifications); 76 Fed. Reg. 13514 (Mar. 14, 2011) (relating to CAA § 112 standards for 

chemical manufacturing area sources). 

Alternatively or in combination with the statutory authority above, EPA has the authority upon 

reconsideration to re-set the initial effective date of the SSI Rule as improvidently established in 

the first place. This could be implemented as a direct final rule soon after granting 

reconsideration to avoid the consequences discussed above and a new effective date promulgated 

in the same rulemaking that adopts replacement regulations for SSIs. 

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V. CONCLUSION 

For the foregoing reasons, NACWA urges EPA to reconsider the SSI Rule and to stay or re-set 

the effective date and implementation of the SSI Rule pending completion of the reconsideration 

process and promulgation of replacement regulations. If the issues raised by NACWA are not 

addressed in changes to the SSI Rule, it will lead to very significant unintended and unjustifiable 

impacts on the cities and towns that rely upon incineration as the most viable means for 

managing biosolids and on those municipalities that have invested in energy recovery using this 

important renewable energy source. 

NACWA and its members appreciate EPA’s serious reconsideration of these issues, and we look 

forward to assisting the Agency in meaningful reform to the SSI Rule. 

May 24, 2011 

Respectfully submitted, 

NATIONAL ASSOCIATION OF CLEAN WATER AGENCIES

1816 Jefferson Place, NW 

Washington, DC 20036 

Jeffrey A. Knight 

Peter H. Wyckoff 

PILLSBURY WINTHROP SHAW PITTMAN LLP 

2300 N Street, NW 

Washington, DC 20037 

(202) 663-9152 

jeffrey.knight@pillsburylaw.com

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ENCLOSURE A 

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1 For the Court’s convenience, EPA has attached the 2006 Order and the amendments

dated September 10, 2009, April 13, 2010, and September 20, 2010, as Exhibits 1 to 4 hereto. 

The Court’s opinion dated August 2, 2006, Sierra Club v. Johnson, 444 F. Supp. 2d 46 (D.D.C.

2006), is attached as Exhibit 5. 

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

__________________________________________

) Case No. 1:01CV01537

SIERRA CLUB, ) and Consolidated Cases

)

Plaintiff, ) 

) Judge Paul L. Friedman

v. )

)

LISA P. JACKSON, Administrator, )

U.S. Environmental Protection Agency, )

)

Defendant. )

__________________________________________)

EPA’S MEMORANDUM IN SUPPORT OF 

MOTION TO AMEND ORDER OF MARCH 31, 2006

Defendant, Lisa P. Jackson, Administrator, United States Environmental Protection

Agency (“EPA”), moves the Court to further amend Paragraphs 1(i) and 3 of the Order of March

31, 2006 (“2006 Order”), as amended on September 20, 2010, to allow EPA additional time to

complete its obligations.1

 Plaintiff Sierra Club opposes this motion. 

In these Paragraphs, the Court established a schedule for EPA to complete the duties

mandated by section 112(c)(3) and (k)(3) and 112(c)(6) of the Clean Air Act (“CAA”), 42

U.S.C. § 7412(c)(3) and (k)(3), and (c)(6). Paragraph 1(i), which addresses the obligations under

section 112(c)(3) and (k)(3), requires EPA to “promulgate emission standards under [CAA]

section 112(d) or section 129 assuring that area sources representing ninety percent of the area

source emissions of the 30 urban hazardous air pollutants are subject to emissions standards by

January 16, 2011.” Order (Sept. 20, 2010). Paragraph 3, in relevant part, requires that “[n]o

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2

later than January 16, 2011, the Agency shall promulgate emission standards assuring that

sources accounting for not less than ninety percent of the aggregate emissions of each of the

hazardous air pollutants enumerated in Section 112(c)(6) are subject to emission standards under

Section 112(d)(2) or (d)(4).” Id.

For each of these obligations, the key is reaching the ninety percent threshold. Since

2006, EPA has promulgated final rules establishing emission standards for 48 source categories

pursuant to Paragraph 1. Declaration of Panagiotis E. Tsirigotis, Director of the Sector Policies

and Programs Division, Office of Air Quality Planning and Standards, Office of Air and

Radiation, EPA, ¶ 9 (Dec. 6, 2010) (“Decl.”). Exhibit 6. Pursuant to Paragraph 3, EPA has

promulgated one rule. Id. ¶ 10. As required by Paragraph 3 of the September 20, 2010 Order,

EPA expects to issue emission standards for one additional category by December 16, 2010. Id. 

With regard to Paragraph 3 of the Order, in order to reach the ninety percent threshold, 

EPA needs to complete additional emission standards for certain hazardous air pollutants emitted

by major source boilers and certain area source boilers and commercial and institutional solid

waste incineration (“CISWI”) units. Decl. ¶¶ 11, 41-42 and n.2. On April 29, 2010, EPA

published proposed emission standards for these sources. It received over 4,800 individual

comments in response to the proposed standards. Decl. ¶ 34. The comments raise issues that

EPA had not fully considered and also provided substantial additional data that raise questions

about some of the Agency’s initial conclusions. See id. Based on its initial review of the

significant comments, EPA’s preliminary assessment is that the comments may materially affect

important decisions relating to source categorizations and coverage for the final emission

standards. Decl. ¶ 34-35. 

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3

As explained more fully below, EPA believes that the purpose of section 112(c)(6) and

the public interest will be best served if the Agency’s deadline in Paragraph 3 is extended from

January 16, 2011, to April 13, 2012, so that EPA can re-propose the rules for further public

comment to ensure that the final rules are logical outgrowths of the proposals. See Small Refiner

Lead Phase-Down Task Force v. EPA, 705 F.2d 506, 549 (D.C. Cir. 1983) (EPA cannot

promulgate a final rule that materially differs from the proposal unless the changes are a “logical

outgrowth” of the proposal.); see Decl. ¶ 36. EPA anticipates that, if the Court grants the

requested modification, it will publish the revised proposals for these three rules no later than

June 1, 2011, and promulgate the final emission standards no later than April 13, 2012. Decl. ¶

37. This is an achievable, but very aggressive schedule for a re-proposal. The requested

extension will also provide EPA the opportunity to respond fully to all of the significant

comments received from the public on the proposed emission standards. Decl. ¶ 36-37. These

steps would significantly bolster the strength of the final rules and would enable the Agency to

obtain additional input from the public on three complex, inter-related rules that impact almost

200,000 boilers and 176 CISWI units across the United States. Id. ¶¶ 26-27. 

Because the standards for certain area source boilers are necessary for EPA to complete

its obligations under section 112(c)(3) and (k)(3) and 112(c)(6), the deadline for EPA to

complete all the emission standards required under Paragraph 1(i) and 3 should be extended to

the same date. To meet its obligations under Paragraph 1 and section 112(c)(3) and (k)(3), EPA

must also issue emission standards for sewage sludge incineration units (“SSI”). Decl. ¶¶ 9-11. 

EPA should be able to complete the SSI rule before April 13, 2012 because the Agency currently

does not plan to re-propose the SSI standards. Decl. ¶ 48. The Agency, however, must address

the more than 80 individual comments received in response to the SSI proposal before the

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4

comment period closed on November 29, 2010. Id. ¶¶ 47-48. In order to fully meet its

obligation to respond to these comments, EPA requests that it be allowed until July 15, 2011, to

take final action on the SSI standards. Id. ¶ 49. This will enable EPA to reduce the risk that a

party later seeking judicial review could successfully contend that EPA did not adequately

respond to a particular comment. See North Carolina v. EPA, 531 F.3d 896, 928 (D.C. 2008). 

EPA therefore requests that Paragraph 1(i) be amended to require EPA to promulgate standards

for one additional area source category by July 15, 2011. EPA requests that Paragraph 1(i) be

further amended to require the Agency to promulgate emission standards under CAA section

112(d) or section 129 assuring that area sources representing ninety percent of the area source

emissions of the 30 urban hazardous air pollutants are subject to emissions standards by April

13, 2012. 

In the alternative, should the Court deny EPA time to re-propose the standards for major

source boilers and certain area source boilers and CISWI units, EPA requests that the deadline

for completing its obligations under Paragraph 3 be extended until June 15, 2011, to allow the

Agency time to fully respond to the 4,800 individual comments received in response to the

proposals, and that Paragraph 1(i) be similarly extended. The Agency also seeks to extend the

deadline for completing obligations under Paragraph 1(i) to July 15, 2011, so that EPA can fully

respond to the comments on the proposed SSI standards. 

BACKGROUND

A. Statutory Background

The purpose of section 112 as a whole is to regulate emissions of hazardous air pollutants

(“HAP”). To meet this goal, Congress established a complex process for standard-setting set

forth in section 112(a)-(k). The statute addresses standards for both major and area sources of

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2 Alkylated lead compounds, polycyclic organic matter, hexachlorobenzene, mercury,

polychlorinated biphenyls, 2,3,7,8- tetrachlorodibenzofurans, and 2,3,7,8-tetrachlorodibenzo-pdioxin. 42 U.S.C. § 7412(c)(6).

5

HAP emissions. A “major source” is a stationary source or group of stationary sources that

emits 10 tons per year or more of any HAP or 25 tons per year or more of any combination of

HAPs. 42 U.S.C. § 7412(a)(1). An area source is a stationary source that emits HAPs, but that

does not qualify as a major source. Id. § 7412(a)(2).

Section 112 establishes a comprehensive program for regulating source categories that

emit HAP. The first step requires the listing of major and area source categories for regulation

under section 112, and the next step concerns the promulgation of section 112(d) emission

standards for listed source categories. The listing of a source category is a condition precedent

to the requirement to promulgate emission standards under section 112(d). Paragraphs 1(i) and 3

of the 2006 Order address the second step of regulation under section 112(d) – the establishment

of emission standards for source categories listed pursuant to section 112(c)(3) and (k)(3)(B) and

112(c)(6).

1. Section 112(c)(6)

Section 112(c)(6) requires EPA to take action with respect to seven specific HAPs.2

 42

U.S.C. § 7412(c)(6). The statute establishes two distinct obligations. First, by November 15,

1995, EPA shall list sufficient source categories to ensure that sources accounting for at least

ninety percent of the aggregate emissions of each of these specific pollutants are subject to

regulation. The list can include both major and areas sources. Second, by November 15, 2000,

EPA shall publish emission standards applicable to these sources pursuant to section 112(d)(2)

or (d)(4). 

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6

 Under section 112(d)(2), EPA imposes emission standards that require “the maximum

degree of reduction in emissions of [HAPs]” that EPA concludes are achievable based on a

consideration of factors identified in the statute. These are referred to as “maximum achievable

control technology” or “MACT.” Setting a MACT standard is a complex, multi-step process. 

The MACT standards for existing sources must be at least as stringent as the average emissions

limitation achieved by the best performing 12 percent of existing sources (for which the

Administrator has emissions information) or the best performing 5 sources for source categories

with less than 30 sources (CAA section 112(d)(3)(A) and (B)). This level of minimum

stringency is called the MACT floor. For new sources, MACT standards must be at least as

stringent as the control level achieved in practice by the best controlled similar source (CAA

section 112(d)(3)). EPA also must consider more stringent ‘‘beyond-the-floor'' control options. 

When considering beyond-the-floor options, EPA must consider not only the maximum degree

of reduction in emissions of HAP, but must take into account costs, energy, and nonair

environmental impacts when doing so. See Cement Kiln Recycling Coal. v. EPA, 255 F.3d 855,

857-58 (D.C. Cir. 2001). Section 112(d)(4) authorizes EPA to set a health-based standard for a

limited set of hazardous air pollutants for which a health threshold has been established, and that

standard must provide for “an ample margin for safety.” 42 U.S.C. § 7412(d)(4). 

2. Section 112(c)(3) and (k)(3)(B)

Section 112(c)(3) and (k)(3)(B), 42 U.S.C § 7412(c)(3), (k)(3)(B), govern the listing and

regulation of area sources. Section 112(k)(3)(B), which requires EPA to publish a strategy to

control emissions of HAPs from area sources in urban areas, provides, in pertinent part, that:

a. EPA shall identify not less than 30 HAPs which, as the result of emissions from area

sources, present the greatest threat to public health in the largest number of urban areas;

and 

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3 The Court also required EPA to issue regulations required by CAA section 183(e), 42

U.S.C. § 7511b(e). 2006 Order ¶ 4. Because EPA has met this obligation, the requirement is not

relevant to the instant motion. 

7

b. EPA shall list area source categories emitting these 30 HAPs and shall assure that the

“sources accounting for 90 per centum or more of the aggregate emissions of each of the

30 identified [HAPs]” are regulated. 

Section 112(c)(3) similarly provides that EPA shall list sufficient categories to ensure that “area

sources representing 90 percent of the area source emissions of the 30 [identified HAPs]” are

regulated. In addition, section 112(c)(3) requires that EPA promulgate the emission standards by

November 15, 2000. These standards may be set under section 112(d)(2) or (d)(4), as described

above, or under section 112(d)(5), which authorizes EPA to establish emission standards for area

sources that reflect “generally available control technologies” or management practices.

B. Litigation Background

These consolidated cases were filed in 2001. A number of claims were resolved in a

partial consent decree entered in 2003. The decree required EPA to take a number of actions,

including, but not limited to, the promulgation of emission standards for specified source

categories listed under section 112(c)(3) and (k)(3)(B) and 112(c)(6). Despite continued

negotiations, the parties were unable to settle the remaining claims and filed cross-motions for

summary judgment. The only issue presented was remedy, that is, how much time should EPA

be allowed to complete the required regulations. 2006 Order at 1. 

The Court established a schedule in the 2006 Order. In relevant part,3

 the Court required

EPA to promulgate emission standards for source categories listed under section 112(c)(3) and

(k)(3)(B) by issuing a set number of standards every six months between December 15, 2006,

and December 15, 2008, and issuing standards for any remaining categories by June 15, 2009. 

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4 Because the motions to extend the deadlines were unopposed, EPA did not provide an

explanation of the reasons that the additional time was necessary. The difficulties encountered

in the administrative process that required the Agency to seek additional time are set forth in the

following section of this brief. 

8

Id. ¶ 1(a)-(f). In Paragraph 3, the Court required EPA to complete its obligation under section

112(c)(6) by December 15, 2007. 

As explained further below, EPA has completed a substantial amount of work to date

pursuant to the Order. Specifically, EPA has completed its obligations with respect to section

183(e), issued emission standards for over 48 different source categories pursuant to Paragraph

1(i) and section 112(c)(3) and (k)(3), and issued standards for one source category under section

112(c)(6). Decl. ¶¶ 9-10. Since 2006, the Court has granted a number of unopposed motions to

extend the deadlines in the Order.4

 The most recent extensions were granted on September 10,

2009, April 13, 2010, and September 20, 2010. Exh. 2-4. On September 10, 2009, the Court

amended Paragraph 3 to require EPA to complete its section 112(c)(6) obligations by April 30,

2010, unless, no later than April 15, 2010, EPA signed notices of proposed rulemaking for

emission standards for (1) gold mining production processes; (2) industrial, commercial and

institutional boilers and process heaters; and (3) CISWI units. If the proposed rules were signed

on schedule, the deadline for EPA to complete all its obligations under Paragraph 3 would be

advanced to December 16, 2010. This same Order also amended Paragraph 1 to require EPA to

promulgate standards for fourteen area source categories pursuant to section 112(c)(3) and (k)(3)

by December 16, 2009. Order, ¶ 1(f)-(h). Finally, the Court also amended Paragraph 1 to add

subparagraph (i), which allowed EPA to promulgate any additional standards necessary to fully

discharge its obligations under section 112(c)(3) and (k)(3) by December 16, 2010, if EPA

timely promulgated the proposals identified in Paragraph 3. 

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5 The extensions granted by the Court in ruling on the unopposed motions for extensions of

time provided most of the time necessary for EPA to complete the unexpected additional work

necessary to comply with the D.C. Circuit’s instructions during the rulemakings required by the

Order. This background information is important, however, so that the Court can understand

9

On April 13, 2010, the Court amended Paragraph 3 to provide that EPA could still secure

the benefit of the December 16, 2010, deadline if the proposed standards for industrial,

commercial and institutional boilers and process heaters, and CISWI units were signed by April

29, 2010. Finally, on September 20, 2010, the Court extended the final deadlines under

Paragraphs 1(i) and 3 from December 16, 2010 to January 16, 2011. 

C. Administrative Background

To date, EPA has issued final emission standards for 48 area source categories pursuant

to Paragraph 1(i) of the Order and CAA section 112(c)(3) and (k)(3). Decl. ¶¶ 9. EPA will

complete its remaining obligations under Paragraph 1(i) by establishing emission standards for

certain emissions from area source boilers and for SSI units. Id. Under Paragraph 3 and section

112(c)(6), EPA has issued emission standards for one source category and will take final action

on emission standards for a second category by December 16, 2010. Decl. ¶ 10. To meet its

obligations under Paragraph 3 and section 112(c)(6), EPA must establish emission standards for

certain emissions from major source boilers, area source boilers, and CISWI units. Decl. ¶ 11. 

1. The Major Source Boilers, Area Source Boilers, and CISWI Rules

The development of the proposed emission standards took much longer than EPA had

anticipated during the 2006 proceedings before this Court in large part because the D.C. Circuit

issued three decisions in 2007 that required EPA to substantially modify its methodology for

developing MACT emission standards. Sierra Club v. EPA, 479 F.3d 875 (D.C. Cir. 2007);

Natural Resources Def. Council v. EPA, 489 F.3d 1250 (D.C. Cir. 2007) (“NRDC I”); Natural

Resources Def. Council v. EPA, 489 F.3d 1364 (D.C. Cir. 2007) (“NRDC II”).5

 EPA explains

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why the proposals were not published until 2010, several years after the final rules under section

112(c)(6) should have been completed under the 2006 Order. 

6 The standards for setting MACT for sources regulated under sections 112 and 129 are the

same and thus the Court’s decisions in Sierra Club and NRDC II are also relevant to the

Agency’s section 129 standards.

10

the consequences of these decisions for future MACT rulemakings at greater length in the

preamble to the proposed rule for emission standards for major source industrial, institutional,

and commercial boilers and process heaters. 75 Fed. Reg. 32,006, 32,008-10 (June 4, 2010). 

See also Decl. ¶¶ 13-15.

In NRDC I, the D.C. Circuit vacated the MACT standards that EPA had promulgated for

major source industrial, institutional, and commercial boilers and process heaters, which is one

of the source categories needed to fulfill the Agency's section 112(c)(6) obligation. Decl. ¶ 14.

Because the 2006 Order was issued before NRDC I, this Court, in formulating its remedy, had

not considered the time and effort that would be required for EPA to redo the emission standards

vacated by the D.C. Circuit. Furthermore, NRDC I also vacated a rule that EPA had

promulgated to define the types of CISWI units that would be subject to emission standards

under CAA section 129(a)(1)(D) (“CISWI Definitions Rule”). All solid waste incineration units,

including CISWI units, are regulated under section CAA section 129.6

 

Under the CISWI Definitions Rule, only those units that combusted commercial or

industrial solid waste and were either not designed to, or did not operate to, recover thermal

energy from combustion would be subject to standards under section 129(a)(1)(D). The D.C.

Circuit, however, rejected EPA’s effort to exclude units that combust solid waste from the scope

of section 129. The Court held that section 129(g)(1) unambiguously applies to “solid waste

incineration units” and specifically to “solid waste incineration units combusting commercial or

industrial waste.” In vacating the CISWI Definitions Rule, the Court held that section 129(g)(1)

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11

“defines ‘[t]he term 'solid waste incineration unit' plainly and broadly to include ‘a distinct

operating unit of any facility which combusts any solid waste material from commercial or

industrial establishments or the general public (including single and multiple residences, hotels,

and motels).’” NRDC I, 489 F.3d at 1257. CAA section 129(g)(6), in turn, defines “solid waste”

to have the meaning provided by the EPA Administrator under the Resource Conservation and

Recovery Act (“RCRA”). 

The D.C. Circuit concluded that, because EPA had used an invalid definition of “solid

waste incineration unit,” EPA’s determination as to which boilers and process heaters would be

regulated as boilers, rather than CISWI units, was also invalid. The D.C. Circuit further

concluded that, once EPA properly defined “solid waste incineration unit,”the Boilers MACT

standards will need to be revised as well because the universe of sources subject to its standards

will change. Id. at 1261.

In order to redo the major source boilers rule and to proceed with the standards for

certain emissions from area source boilers and the CISWI units, EPA is working on a rule called

the Non-Hazardous Solid Waste Rule, see Decl. 24, to define “solid waste” under RCRA. With

this rule, the Agency can establish the universe of industrial, institutional, and commercial

boilers and process heaters that will be regulated as boilers under section 112 and the universe

that will be regulated as CISWI units under section 129. 

NRDC II and Sierra Club did not vacate standards that would have counted towards

EPA’s obligations under the 2006 Order. However, the principles laid down in these decisions,

as well as NRDC I, required EPA to substantially modify its methodology for setting emission

standards pursuant to section 112(c)(3) and (k)(3) and 112(c)(6). See 75 Fed. Reg. at 32,009-10

(discussing effect of decisions on all MACT rulemakings). 

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7 EPA did not seek additional information regarding area source boilers. The Agency did

not proceed separately with that rulemaking because, given its close connection to the major

source boiler and CISWI rulemakings, EPA concluded that the three rules should be kept on the

same track so that the public would be able to consider both in formulating their comments.

12

As a result of these decisions, EPA determined that it needed to gather substantial

additional information from many facilities regarding the major industrial, commercial and

institutional boilers and process heaters and CISWI units in order to proceed to set MACT

standards.7

 To do so, the Agency had to comply with the requirements of the Paperwork

Reduction Act (“PRA”), 44 U.S.C. §§ 3501-21. The main requirements of the PRA are that the

agency seeking to collect information must publish notice of the proposed collection in the

Federal Register and allow 60 days for the public to submit comments on the proposal. Id. §

3506(c)(2)(A). After the comments are received and reviewed, the agency must submit its

proposed information collection request (“ICR”) to the Director of the Office of Management

and Budget (“OMB”) for review. Id. § 3507(c)(3). After submission, the agency must publish a

second Federal Register notice to inform the public that the submission has been made and that

comments may be submitted to OMB. Id. § 3507(a)(1)(D). OMB must allow at least 30 days

for public comment, id. § 3507(b), but must approve or disapprove the ICR within 60 days of the

later of publication in the Federal Register or receipt of the ICR from the Agency. Id. §

3507(c)(2). 

Thus, under the PRA, collecting information is a time-consuming process by design. 

After drafting the ICR, EPA published the first Federal Register notice on December 7, 2007,

and after considering the comments received and revising the draft, EPA published the second

Federal Register notice on May 14, 2008. OMB approved the first phase of the ICR, which

required submission of existing information for major industrial, commercial and institutional

boilers and process heaters and CISWI units, on August 8, 2008. By the end of that month, EPA

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13

had sent the ICR out to over 3,000 facilities. The facilities were given 60 days to respond, but

this deadline was later extended for facilities located in areas hit by hurricanes. The responses

were all completed by mid-December 2008. After EPA and OMB reviewed these responses,

OMB issued its approval of Phase 2 of the ICR, which required 200 facilities to conduct specific

emissions testing, on May 21, 2009. On June 1, 2009, EPA sent out the testing surveys. 

Although the responses were originally due on October 31, 2009, EPA did not receive all the

data until February 2010, because a number of facilities encountered difficulties in getting

contractors to complete the tests and produce the analytical results. 

After reviewing the information, the Agency completed the proposed rules for the major

source boilers, area source boilers, and CISWI (as well as the Non-Hazardous Solid Waste

Rule). The four proposals were signed on April 29, 2010. Although the notices were promptly

sent to the Office of the Federal Register, the notices were not published until June 4, 2010. The

citations are:

“National Emission Standards for Hazardous Air Pollutants for Major Sources:

Industrial, Commercial, and Institutional Boilers and Process Heaters,” 75 Fed. Reg.

32,006-73 (June 4, 2010) (“major source boilers rule”); 

“National Emission Standards for Hazardous Air Pollutants for Area Sources: Industrial,

Commercial, and Institutional Boilers,” 75 Fed. Reg. 31,896-935 (June 4, 2010) (“area

source boilers rule”); 

“Standards of Performance for New Stationary Sources and Emission Guidelines for

Existing Sources: Commercial and Industrial Solid Waste Incineration Units,” 75 Fed.

Reg. 31,938-32,004 (June 4, 2010) (“CISWI rule”); and 

“Identification of Non-Hazardous Secondary Materials That Are Solid Waste,” 75 Fed.

Reg. 31,844 (June 4, 2010) (“Non-Hazardous Solid Waste Rule”). 

Because of intense public interest in the proposed rules, EPA held three public hearings

on the proposed emission standards and allowed the public until August 23, 2010, to comment

on these complicated and interconnected rules. EPA received over 4,800 individual comments

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8 The number of facilities was too small to trigger the PRA requirements. 

14

on the proposed emission (discounting mass mailings). Some of these comments exceed 300

pages. As evidenced by the number of comments, which include a substantial amount of

additional new data, the major source boilers, area source boilers, and CISWI rules will have farreaching effects. Estimates of the monetized value of the public health benefits for all three

rules combined range from $18 billion and $44 billion. The economic impacts of 

implementation of these standards will also be significant and vary by rule. For example, the

nation-wide capital cost for the proposed major source boilers rule was estimated to be $9.5

billion in the year 2013, with a total national annual cost of $2.9 billion in the year 2013. The

major source and area source boilers rules are expected to apply at almost 200,000 boilers at

over 90,000 facilities. On balance, given the broad impact these rules will have, EPA believes

that the overall public interest is best served by allowing EPA to re-propose the rules so that the

Agency will be able to issue emission standards that are based upon a thorough consideration of

all available data and reduce potential litigation risks. 

2. The SSI Rule

The proposed SSI standards were published in the Federal Register on October 14, 2010.

“Standards of Performance for New Stationary Sources and Emission Guidelines for Existing

Sources: Sewage Sludge Incineration Units,” 75 Fed. Reg. 63,260-344 (Oct. 14, 2010) (“SSI

rule”). EPA's signature of the proposal had been delayed by several factors. In October 2009, 

EPA sent an information collection survey to a small number of facilities. That survey asked for

existing information and required facilities to test for certain pollutants.8

 The survey required

sources to submit existing information by December 19, 2009, and the test data by February 17,

2010. The Agency provided extensions for many facilities for the submission of test data. See

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15

Decl. In large part, the extensions were needed so that the sewage sludge incinerator units,

which are owned almost exclusively by municipalities, could secure the necessary funding and

resources to complete the testing. The Agency received all of the information and test data by

March 31, 2010, but there were some shortcomings that took several weeks to resolve. Finally,

while developing the proposed standards, EPA recognized that it was missing some necessary

cost information. A few additional weeks were required to gather this information and complete

the cost assessment for the proposed standards. 

The Administrator signed the proposed SSI emission standards on September 30, 2010. 

EPA received a request for a public hearing, and that hearing was held on October 29, 2010. 

The comment period closed on November 29, 2010, thirty days after the public hearing as

required by CAA section 307(d)(5). EPA received over 80 comments on the proposed rule. 

Based on its review to date of the comments, EPA does not currently intend to re-propose the

rule. The Agency cannot, however, currently respond in full to all of the significant comments

submitted on the proposed rule by January 14, 2011. An extension until July 15, 2011, would

allow EPA to fully consider the information presented in the significant comments and prepare

an appropriate response. 

STANDARD OF REVIEW

In its 2006 decision, this Court held that, when EPA fails to meet a statutory deadline for

an action mandated by Congress, the appropriate remedy is for the Court to exercise its “equity

powers” to establish a schedule for EPA to complete its obligations. Sierra Club, 444 F. Supp.

2d at 49-50. The Court’s authority to modify the 2006 Order is not open to question. Natural

Resources Def. Council, Inc. v. Train, 510 F.2d 692, 713 n.106 (D.C. Cir. 1974) (quoting System

Fed’n No. 91, Ry. Employees v. Wright, 364 U.S. 642, 647 (1961) (“There is also no dispute but

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16

that a sound judicial discretion may call for the modification of the terms of an injunctive decree

if the circumstances . . . have changed, or new ones have since arisen.”) and United States v.

Swift & Co., 286 U.S. 106, 114 (1932) (“A continuing decree of injunction directed to events to

come is subject always to adaptation as events may shape the need.”)).

In determining whether EPA has established that a modification is appropriate, the Court

should rely on the same principles as it did in issuing the Order. In 2006, the Court recognized

that “the sound discretion of an equity court does not embrace enforcement through contempt of

a party's duty to comply with an order that calls him to do an impossibility.” 444 F. Supp. 2d at

52 (internal quotations omitted). The Court explained that it would not “order a remedy that

would . . . completely neutralize the mandatory nature of the statutory directive.” Id. (internal

quotations omitted). The Court also declined to impose a schedule that did not “afford any

reasonable possibility of compliance.” Id. at 58. The Court ultimately applied these principles

to “order a regulatory schedule that is slightly more relaxed than that proposed by plaintiff, but

significantly more expedited than that sought by the defendant.” Id. at 59. 

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17

ARGUMENT

In the four and a half years since the 2006 Order, EPA has made substantial progress

towards completing its obligations under that Order, as amended, and has completed its

obligations under the Partial Consent Decree. The Agency is now working on the last actions

necessary to discharge its obligations and bring this matter to a close, but has encountered

unanticipated complexities that could create a risk that these rules will not survive judicial

review unless the current deadline of January 16, 2011, is extended. On August 31, 2010, when

EPA submitted its unopposed motion seeking a one-month extension to the existing deadline of

December 16, 2010, in Paragraphs 1(i) and 3, the Agency had not yet reviewed the 4,800

individual comments received on the proposed boilers and CISWI rules and thus had not

recognized the complexity of the issues raised in the many submissions. Importantly, certain

submissions identified data that called into question the accuracy of data previously relied upon

by the Agency in its proposal. The Agency has now completed its initial review of the

comments and is in the process of reevaluating the substance of some aspects of its proposals, as

well as the procedural steps necessary for completing the rulemakings under CAA section

307(d), which sets the requirements for promulgating the rules at issue here. EPA respectfully

requests that the Court, consistent with Natural Resources Defense Council, Inc. v. Train, 510

F.2d at 713, consider the current posture of these rulemakings and grant EPA the relief it seeks. 

I. ALLOWING TIME FOR RE-PROPOSAL COULD AVOID DELAY IN THE

ACTUAL IMPLEMENTATION OF THE SECTION 112(c)(6) EMISSION

STANDARDS 

Congress’ purpose in setting deadlines for the promulgation of emission standards was to

timely achieve the improvements in air quality that would result from the implementation of the

standards. The three rules establishing standards for certain emissions from major source boilers

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18

and area source boilers, and CISWI units, along with the Non-Hazardous Solid Waste Rule, are

complicated and interconnecting rulemakings. The three air rules are expected to cover almost 

200,000 boilers and 176 CISWI units. As demonstrated by the 4,800 comments received, there

is a strong public interest in the outcome of these rulemakings. The interests of public policy

require that EPA proceed with due care in these circumstances.

In this case, EPA’s preliminary assessment is that the comments may materially affect

important decisions relating to source categorizations and coverage for the final emission

standards. If EPA re-proposes the rules, the interested parties will have the opportunity to

identify and propose corrections to any weaknesses in the revisions that EPA is contemplating. 

This process is particularly valuable in complex and far-reaching rulemakings such as these

standards. In light of the anticipated public health benefits and the significant costs associated

with the implementation of the standards at the many facilities that will be regulated, it is

important that EPA be able to formulate the final standards based on careful consideration of all

relevant data and upon full consideration of comments on the anticipated changes to the

proposed standards. 

Furthermore, under the CAA, where the Agency makes changes between the proposed

and final rules, the public must be given the opportunity to comment on the changes unless the

changes are a logical outgrowth of the proposal. The D.C. Circuit has explained that “a rule is

deemed a logical outgrowth if interested parties ‘should have anticipated’ that the change was

possible, and thus reasonably should have filed their comments on the subject during the

notice-and-comment period.” Ne. Md. Waste Disposal Auth. v. EPA, 358 F.3d 936, 952 (D.C.

Cir. 2004). Those dissatisfied with the final rules will likely allege that the changes from the

proposed standards are too significant to be deemed logical outgrowths. 

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9 In 2006, the Court criticized EPA for relying on a declaration that presented a “template”

schedule, based on the Agency’s experience in the past and not what was in fact needed to

complete the actual rules at issue. 644 F. Supp. 2d at 55-56. In contrast, Mr. Tsirigotis

Declaration is based on an analysis of the development of particular rules and the issues that

have been raised by the public. Accordingly, this Declaration has the specificity that the Court

found lacking in EPA’s prior submission. 

19

If EPA is allowed time to re-propose the standards, the Agency will be able to avoid any

potential claims that the Agency made changes to the proposed rules that exceed the scope

allowed under the logical outgrowth rule without providing an opportunity for public comment. 

A successful petition could undo the standards and so delay realization of the intended air quality

improvements pending further administrative action. Thus, while the requested extension would

add fifteen and a half months to the rulemaking process, maintaining the current deadline could

result in a far longer delay. 

As explained by Mr. Tsirigotis, this extension is necessary for EPA to re-propose the

rules and complete the rulemakings.9

 In reaching this conclusion, Mr. Tsirigotis considered the

reality that these are complex and interconnected rules. The Non-Hazardous Solid Waste Rule,

defining “solid waste,” will be significant in distinguishing which industrial, commercial, or

institutional units are regulated as boilers and which are subject to the standards adopted for

CISWI units. If such units combust secondary materials that are “solid waste,” as that term is

ultimately defined when EPA promulgates the Non-Hazardous Solid Waste Rule, the unit will be

subject to the CISWI standards. If not, the unit may be subject to the emission standards

established for major source boilers or area source boilers, as appropriate. See 75 Fed. Reg. at

32,008-09. Until the boundaries of the different standards are defined, many of the regulated

entities, as well as members of the public, will have an equal interest in the three air emission

rulemaking, as well as the Non-Hazardous Solid Waste Rule. Therefore, it is necessary that

these rules be kept on the same schedule. 

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20

Mr. Tsirigotis estimates that EPA would need about five months to develop the reproposals, including the necessary supporting documentation, such as revised calculations

regarding the standards, the health benefits, and the costs associated with the standards. EPA

also expects that a public hearing on the proposed changes will be requested, and, of course,

would have to allow time for the submission of public comments. Before taking final action,

EPA would have to respond to all significant comments on the re-proposal, as well as

completing its responses to the significant comments already received that are not mooted by the

re-proposal. Mr. Tsirigotis estimates that this process can be completed in ten and a half months. 

EPA recognizes that section 307(d)(5)(B), which establishes a process for judicial

reconsideration of regulations after promulgation, could provide a path for remedying some of

the issues that are causing EPA to conclude that re-proposal is advisable. This process, however,

is time-consuming and prolongs uncertainty as to what the final standards will be even as

regulated entities are planning the actions necessary to come into compliance. While

reconsideration can be an effective means of resolving issues, EPA does not believe it is the

appropriate path to pursue here. In this case, EPA has identified the need for additional public

input prior to issuing the final rules, the rules affect almost 200,000 boilers and 176 CISWI units

across the United States, and are complex and inter-related. Under these circumstances, EPA 

believes it is appropriate to seek to avoid any risk of procedural error and provide the public

another opportunity to comment on the new information and data received in response to the

proposals. A re-proposal would result

in standards that are more defensible and will yield environmental benefits earlier, because the

final standards will more likely withstand substantive review. For this reason, the Court should

grant EPA the requested extension until April 13, 2012.

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21

II. IF THE COURT DECLINES TO ALLOW EPA TIME TO RE-PROPOSE THE

SECTION 112(c)(6) EMISSION STANDARDS, THE COURT SHOULD ALLOW

EPA SIX MONTHS TO COMPLETE THE PROCESS OF RESPONDING TO

THE PUBLIC COMMENTS

CAA section 307(d)(6)(B) requires that EPA must respond to the significant public

comments before promulgating the final rules. 42 U.S.C. § 7607(d)(6)(B) (“The promulgated

rule shall also be accompanied by a response to each of the significant comments, criticisms, and

new data submitted in written or oral presentations during the comment period.”). Because of

the unanticipated number and complexity of the comments received, EPA is concerned that it

may not be able to adequately complete this duty by January 16, 2011. Mr. Tsirigotis has

concluded that the Agency will require until June 15, 2011, to fully complete this important task. 

Decl. ¶ 49. This conclusion is not an approximation based on the Agency’s experience in other

rules, but is grounded in Mr. Tsirigotis’s knowledge regarding the actual number and complexity

of the comments that must be addressed here. 

Allowing the Agency the additional time will reduce the risk that a petition for review

would be granted on the ground that EPA failed to adequately respond to comments, as

happened in North Carolina v. EPA, 531 F.3d at 928. See also Appalachian Power Co. v. EPA,

249 F.3d 1032, 1051 (D.C. 2001) (“While we generally uphold the EPA's authority to make

emission projections and set emission limitations accordingly, we do so only where the EPA

adequately responded to comments and explained the basis for its decisions.”). Thus, although

this shorter extension would not address the likelihood that opponents of the rule will allege that

EPA failed to allow for sufficient public comment, it would enhance the defensibility of the final

emission standards. Accordingly, EPA requests that, if the Court declines to allow the Agency

time to re-propose the rules at issue, the Court instead extend the deadline to June 15, 2011, so

that EPA can prepare the responses required under the Clean Air Act. 

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22

III. WITH RESPECT TO THE SECTION 112(c)(3) AND (k)(3) STANDARDS, THE

COURT SHOULD SET TWO NEW DEADLINES

EPA must establish standards for certain emissions from area source boilers to meet its

obligations under Paragraph 1 of the Order of September 20, 2010. Because standards for

certain area source boilers are needed under both Paragraph 1(i) and Paragraph 3, EPA requests

that the Court establish the same final deadline for both Paragraphs. Because EPA currently

does not expect to re-propose the SSI standards, this rulemaking can be completed more

expeditiously. EPA has serious concerns, however, as to whether it can fully respond to the over

80 significant comments received unless the January 16, 2011, deadline is extended. The

comment period closed on November 29, 2010, only forty-five days before the deadline. The

Agency requests that it be allowed until July 15, 2011, to promulgate the final SSI rule so that

the Agency can ensure that it has fully responded to all significant comments, as required by

section 307(d), thereby improving the defensibility of the rule. 

CONCLUSION

For these reasons, the Court should amend Paragraph 1(i) to require EPA to promulgate

standards for one additional area source category by July 15, 2011. The final deadlines in

Paragraphs 1 and 3 of the Order of September 20, 2010, should be amended to allow EPA to

complete its obligations by April 13, 2012. 

Respectfully submitted, 

IGNACIA S. MORENO

Assistant Attorney General

Environment and Natural

 Resources Division

/s/ EILEEN T. McDONOUGH

Environmental Defense Section

U.S. Department of Justice

P.O. Box 23986

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23

Washington, D.C. 20026-3986

(202) 514-3126

Of Counsel:

Wendy Blake

Air and Radiation Law Office

Office of General Counsel

U.S. Environmental Protection Agency

1200 Pennsylvania Ave., N.W.

Washington, D.C. 20460

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EXHIBIT 1

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Case 1 :01-cv-01537 -PLF Document 80 Filed 03/31/2006 Page 1 of 4

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

SIERR CLUB,

Plaintiff,

v.

STEPHEN L. JOHNSON, Administrator,

United States Environmental

Protection Agency, i

Defendant.

ORDER

)

)

)

)

)

)

)

)

)

)

)

)

)

Civil Action No. 01-1537 (PLF)

(consolidated with

Civil Action No. 01-1548

Civil Action No. 01-1558

Civil Action No. 01-1569

Civil Action No. 01-1578

Civil Action No. 01-1582

Civil Action No. 01-1597)

This matter is before the Court on the parties' cross-motions for summary

judgment on the issue ofremedy. The Court heard argument on the motions on November 22,

2005. Upon consideration of the arguments raised by the parties in their briefs and in open cour,

it is clear that there are no genuine issues of material fact, and that plaintiffs are entitled to

judgment as a matter oflaw. Accordingly, it is hereby

DECLARED that the failure of defendant Steven L. Johnson to take the following

actions constitutes "a failure of the Administrator to perform any act or duty under this chapter

that is not discretionary with the Administrator" within the meaning of Section 304(a)(2) of the

Clean Air Act ("CAA"), 42 U.S.C. § 7604(a)(2):

Under Rule 25(d)(1) of the Federal Rules of Civil Procedure, EPA Administrator

Stephen L. Johnson has been automatically substituted as a defendant for former Administrator

Michael O. Leavitt.

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1. Promulgate area source air toxics standards, as required by CAA Section

1 12(c)(3) and l12(k)(3)(B), 42 U.S.C. § 7412(c)(3), (k)(3)(B);

2. Assure that sources accounting for ninety percent of the aggregate

emissions of certain persistent and bioaccumulative hazardous air pollutants are subject to

emission standards with respect to such pollutants, as required by CAA Section 112(c)(6), 42

U.S.c. § 7412(c)(6); and

3. Promulgate emission standards for smog-causing consumer and

commercial products, as required by CAA Section l83(e), 42 U.S.C. § 751lb(e). It is therefore

ORDERED that (63) plaintiffs motion for summary judgment is GRANTED in

part; it is

FURTHER ORDERED that (67) defendant's cross-motion for summary judgment

is DENIED; it is

FURTHER ORDERED that:

1. EP A shall promulgate standards under CAA Section l12( d) for those area

source categories listed by EPA pursuant to CAA Section 112(c)(3) and (k)(3)(B) as source

categories that are necessary to meet the 90 percent statutory threshold identified in Section

112(c)(3) and (k)(3)(B), and for which it has not yet issued standards, as follows:

a. EP A shall promulgate standards for 4 of the listed area source

categories by December 15,2006.

b. EP A shall promulgate standards for 6 additional area source

categories by June 15, 2007.

2

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c. EP A shall promulgate standards for 10 additional area source

categories by December 15,2007.

d. EP A shall promulgate standards for 10 additional area source

categories by June 15,2008.

e. EP A shall promulgate standards for 10 additional area source

categories by December 15, 2008.

f. EP A shall promulgate standards for all remaining listed area source

categories by June 15,2009.

2. This Order shall not restrict EP A's authority to revise the list of area

source categories under CAA Section 112(c)(3) and (k)(3)(B).

3. No later than December 15,2007, EPA shall promulgate emission

standards assuring that source categories accounting for not less than ninety percent of the

aggregate emissions of each of the hazardous air pollutants enumerated in Section 112( c)( 6) are

subject to emission standards under Section 112(d)(2) or (d)(4).

4. For the three remaining Groups of categories of consumer or commercial

products ("product categories") listed by EP A pursuant to Section 183( e), EP A shall promulgate

regulations or control techniques guidelines under CAA Section 183(e), 42 U.S.C. § 7511b(e), to

meet the 80 percent statutory threshold identified in that section, as follows:

a. EP A shall promulgate regulations for Group II by September 30,

2006.

b. EP A shall promulgate regulations for Group II by September 30,

2007.

3

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c. EP A shall promulgate regulations for Group IV by September 30,

2008.

5. This Order shall not restrict EPA's authority under Section 183(e) to

revise the product category list or product category groups.

6. For purposes of this Order, a regulation is "promulgated" on the date on

which the Administrator (or other relevant EP A offcial) signs the relevant final agency action. It

is

FURTHER ORDERED that (70) plaintiffs motion to strike the declaration of

Steve Page is DENIED; it is

FURTHER ORDERED that judgment in this case is entered for plaintiff; and it is

FURTHER ORDERED that this Order and Judgment shall constitute a FINAL

JUDGMENT in this case. This is a final appealable order. See FED. R. App. P. 4(a). The Court

wil retain jurisdiction of this action to supervise compliance with its Order and to receive any

applications for costs and attorneys' fees that may be fied.

An Opinion explaining the reasoning underlying this Order wil issue shortly.

SO ORDERED.

/s/

PAUL L. FRIEDMAN

United States District Judge

DATE: March 31, 2006

4

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EXHIBIT 2

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EXHIBIT 3

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FILED

APR 1 3 2010

IN THE UNITED STATES DISTRICT COURT l'erk, U.S. DIstrict & Bankrupt

FOR THE DISTRICT OF COLUMBIA OUTts for 

the Distrctot Co'um~ra

SIERRA CLUB.

Case No. 1:0ICYOIS37

and Consolidated Cases

)

)

)

)

)

)

)

)

)

)

)

)

Judge Paul L. Friedman

Plaintiff,

v.

LISA P. JACKSON, Administrator,

U.S. Environmental Protection Agency,

Defendant.

ORDER

Upon consideration of the Unopposed Motion to Amend Order of March 3 I, 2006. as

amended on September 9,2009, it is hereby ordered that the motion is granted. Paragraph 3 of

the Order is amended as follows:

No later than May 14.2010, EPA shall promulgate emission standards

assuring that sources accounting for not less than ninety percent of the aggregate

emissions of each of the hazardous air pollutants enumerated in Section I I 2( c )(6)

are subject to emission standards under section i 12(d)(2) or (d)(4). This deadline

shall be extended until December 16,2010 if:

a. no later than April 15, 20 10, the Agency signs a notice of proposed

rulemaking proposing emission standards for gold mining production processes

and;

b. no later than April 29, 20 i O. the Agency signs a notice(s) of

proposed rulemaking proposing (I) emission standards for industrial, commercial

and institutional boilers and process heaters under section ll2(d); and (2)

emission standards for commercial and industrial solid waste incineration units

under section i 29.

Executed this I J ~ay of 4/: I

HO~ FR~l:P-~

UNITED STATES DISTRICT COURT JUDGE

,2010.

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EXHIBIT 4

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Case 1 :01-cv-01537 -PLF Document 135 Filed 09/20/10 Page 1 of 2

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

SIERR CLUB,

Case No. I:01CYOI537

and Consolidated Cases

Plaintiff,

)

)

)

)

)

)

)

)

)

)

)

)

Judge Paul L. Friedman

v.

LISA P. JACKSON, Administrator,

U.S. Environmental Protection Agency,

FILED

SEP 2 0 2010

Clerk, U.S. District & Bankruptcy

Courts for the District of Columbia Defendant.

ORDER

Upon consideration of the Unopposed Motion to Amend Order of March 31, 2006, as

amended on September 9,2009, and Apri113, 2010, it is hereby ordered that the motion is

granted.

Paragraph 1 (i) of the Order is amended as follows:

1. EP A shall promulgate emission standards under section 1I2( d)

assuring that area sources representing ninety percent of the area source emissions

of the 30 urban hazardous air pollutants identified pursuant to section l12(k)(3)

are subject to emissions standards as follows:

'" '" '"

(i) EPA shall promulgate emission standards under section 112(d)

or section 129 assuring that area sources representing ninety percent of the area

source emissions of the 30 urban hazardous air pollutants are subject to emissions

standards by January i 6, 2011.

Paragraph 3 of the Order is amended as follows:

No later than December 16,2010, the Agency shall promulgate emission

standards for one additional category pursuant to section 1I2(c)(6). No later than

January 16, 2011, the Agency shall promulgate emission standards assuring that

sources accounting for not less than ninety percent of the aggregate

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emissions of each of the hazardous air pollutants enumerated in Section 112(c)(6)

are subject to emission standards under Section 112(d)(2) or (d)(4).

Executedthis_dayof - ~/":':7Jr,i"i.."' ,2010. /.((" lY 5 l iO ~/

~ .

" ~.. I.. ., .) ('(. i.-' . ." '-~ ..~ __

HON. PAUL L. FRlEDM N

UNITED STATES DISTRICT COURT JUDGE

2

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EXHIBIT 5

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46 444 FEDERAL SUPPLEMENT, 2d SERIES

and 15, Plaintiffs present formulation of

the "claims lost" followig any deception

(1) has already been rejected by the Supreme Court, and (2) would also have to be

rejected for the reasons expressed above

in this Opinion. As such, the Cour rejects

Plaintifs attempted reformulation of her

"denial of access" claims at this time, and

notes that disJIssal of all remaining

counts is both complete and finaL.

IV: CONCLUSION

For the reasons set forth above, the

Court shall grant Defendant's Motion to

DisJISS and shall disJISS all counts remaining in Plaintifs action for lack of

subject matter jurisdiction pursuant to

Federal Rule of Civil Procedure 12(b)(I).

An appropriate Order accompanies this

Memorandum Opinion.

ORDER

For the reasons set forth in the accompanying Memorandum Opinion, it is, this 1

st day of August, 2006, hereby

ORDERED that (199) Defendant's Motion to Dismiss Al Remaining Counts of

the Complaint Pursuant to Federal Rule of

Civi Procedure 12(h)(3) is GRANTED; it

is further

ORDERED that this case is closed.

This is a final, appealable Order.

SO ORDERED.

1. Under Rule 25(d)(1) of the Federal Rules of

Civil Procedure, EPA Administrator Stephen

SIERRA CLUB, Plaintiff,

v.

Stephen L. JOHNSON, Administrator,

United States Environmental Protection Agency, t Defendant.

Civil Action Nos. 01-1537(PLF), 01-

1548, 01-1558, 01-1569, 01-1578,

01-1582, 01-1597.

United States District Court,

District of Columbia.

Aug. 2, 2006.

Background: Envionmental organization

fied action under citizen suit provision of

the Clean Ai Act, seekig to compel Environmental Protection Agency (EP A) to

perform a nondiscretionary duty under the

Act. Mter parties entered into a partial

consent decree regarding liabilty and setting a schedule for the promulgation of

some of the regulations at issue, parties

fied cross-motions for summary judgment

as to remedy for EP A's noncompliance.

Holding: The District Cour, Paul L.

Friedman, J., held that EPA did not demonstrate that it would be impossible to

comply with plaintifs proposed schedule

for the enactment of remainng standards,

however, it was appropriate for cour to

order a regulatory schedule that was

slightly more relaxed than that proposed

by plainti, but signifcantly more expedited than that sought by the agency.

Order in accordance with opinion.

1. Environmental Law ~695

When Envionmental Protection

Agency (EPA) has failed to discharge a

nondiscretionary duty under the Clean Ai

Act, a district court has jursdiction to

compel the EPA AdJInistrator to fulfil it.

L. Johnson has been substituted as defendant

for fonner Administrator Michael O. Leavitt.

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SIERRA CLUB v. JOHNSON

Cite as 444 F.Supp.2d 46 (D.D.C. 2006)

47

Clean Ai Act, § 304(a), 42 U.S.CA

§ 7604(a).

2. Administrative Law and Procedure

~811

When an agency has failed to meet

the statutory deadline for a nondiscretionary act, the court may exercise its equity

powers to set enforceable deadlines both of

an ultimate and an intermediate nature;

court appropriately may decline to impose

an immediate deadline, however, and may

afford an agency additional time for compliance where it is convinced by the offcial

involved that he has in good faith employed the utmost dilgence in discharging

his statutory responsibilties.

3. Administrative Law and Procedure

~811

When Congress expresses its intent

that regulations be promulgated by a date

certain, that intent is of utmost importance, and a court considering an agency's

claim of impossibilty must not order a

remedy that would completely neutralize

the mandatory nature of the statutory directive.

4. Administrative Law and Procedure

~741

When an agency has failed to meet a

mandatory statutory deadline, it is insuffcient for the agency to demonstrate only

that it has proceeded in good faith; it also

must demonstrate that it has exercised

utmost dilgence in its efforts to comply

with the statute.

5. Environmental Law ~695

Envionmental Protection Agency

(EP A), which failed to discharge fuly its

nondiscretionary duty under the Clean Ai

Act amendments to promulgate reguations governing the discharge of certain

hazardous air pollutants, did not demonstrate that it would be impossible to comply with plaintiff envionmental organization's proposed schedule for the enactment

of the remaining standards where EP A's

only justifcations for seeking huge

amounts of additional time, 12 years in the

case of certai standards and more than

eight years for other standards, were the

asserted complexity of the regulatory

tasks before it and the fact that other

reguatory priorities demanded resources

that could be devoted to meeting EP A's

obligations under the Clean Ai Act; however, in view of the diffculties of compliance, it was appropriate for court to order

a regulatory schedule that was slightly

more relaxed than that proposed by plaintif, but signifcantly more expedited than

that sought by the agency. Clean Ai Act,

§ 182(b)(2), 42 U.S.CA § 7511a(b)(2).

6. Environmental Law ~695

Clean Ai Act (CAA) does not allow

district courts to address the content of

Envionmental Protection Agency's

(EP A's) conduct, issue substantive determinations of its own, or grant other forms

of declaratory relief. Clean Ai Act,

§ 307(b), 42 U.S.CA § 7607(b).

James S. Pew, Earth Justice, Harold

Patrick Quinn, Jr., National Mining Association, Washington, DC, for Plaintif.

Eileen T. McDonough, U.S.DOJ-EnvIronmental Defense Section, Washington,

DC, for Defendant.

OPINION

PAUL L. FRIEDMA, District Judge.

This case concerns defendant EP A's faiure to discharge fully its duty under the

1990 Clean Ai Act amendments to promulgate reguations governing the discharge of certain hazardous air pollutants.

EP A does not deny that it has faied in its

duty to promulgate these regulations by

the deadlines set in the statute; the only

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48 444 FEDERAL SUPPLEMENT, 2d SERIES

dispute concerns the schedule under which

the Court should order EP A to discharge

its statutory duty. On March 31, 2006, the

court issued an Order denyig defendant's

motion for summary judgment; granting

plaintiffs motion for summary judgment;

declaring that defendant Steven L. Johnson's failure to take certain reguatory actions constituted "a faiure of the Administrator to perform any act or duty under

this chapter that is not discretionary with

the Administrator" within the meaning of

Section 304(a)(2) of the Clean Ai Act, 42

U.S.C. § 7604(a)(2); and ordering the

EP A to fulfi its statutory duties under

Sections 112(c)(3), 112(k)(3)(B), 112(c)(6),

and 183(e) on a prescribed schedule. The

Court also denied plaintifs motion to

strike the declaration of Steve Page fùed

by defendant in support of its motion for

summary judgment. This Opinion explains the reasoning underlyig that Order.

1. BACKGROUND

A. 1990 Clean Air Act Amendments

On November 15, 1990, Congress enacted sweeping revisions to the Clean Ai Act.

See Pub.L. No. 101-549, 104 Stat. 2399

("the Act"). Title III of the revised statute created a complex scheme for the regulation of 189 specifed hazardous air pollutants ("HAPs"), and directed EP A to

identif the sources of those pollutants and

to promulgate reguations governing the

emission of HAPs from those sources.

Congress by statute added to the Clean

Ai Act the list of pollutants to be regulated, minimum stringency requiements, and

(most important for this case) regulation

deadlines. It did so because it believed

that EP A had failed to reguate enough

HAPs under previous air toxics provisions.

2. Mobile sources of air pollutants (i.e. vehicles) are regulated by Title II of the Clean Air

Act.

See Natl Lime Ass'n v. EPA, 233 F.3d

625, 634 (D.C.Cir.2000). The Senate Committee Report states: "The (air toxics) law

has worked poorly. In 18 years, EP A has

reguated only some sources of only seven

chemicals. . .. The legislation reported by

the Committee would entirely restructure

the existing law, so that toxics might be

adequately reguated by the Federal Government." S. REP. NO. 101-228, at 128

(1989); see also H.R. REP. NO. 101-490, pt.

1, at 322 (1990) ("Since 1970, EPA has

listed only eight substances as hazardous

air pollutants ... and has promulgated

emissions standards for seven of them.").

Title III of the Clean Ai Act recognizes

two basic kinds of air pollution "sources."

A "major source" is "any stationary source

or group of stationary sources located

within a contiguous area and under common control that emits ... 10 tons per

year or more of any hazardous air pollutant or 25 tons per year or more of any

combination of hazardous ai pollutants."

42 U.S.C. § 7412(a)(1). Major sources are

subject to reguation under Section 112(d)

of the Act, 42 U.S.C. § 7412(d). An "area

source" is "any stationar source of hazardous ai pollutants that is not a major

source." 42 U.S.C. § 7412(a)(2).2 The Act

calls upon EP A to list the "source categories" most responsible for emissions of

each HAP listed in the statute. Source

categories include, for example, steel

foundres, industrial boilers, clay ceraiics

manufacturg, and asphalt processing and

asphalt roofing manufacturing.3 Mter listing these source categories, EP A is requied to promulgate reguations governing their emission of HAPs.

The Act also enacted new provisions regarding the eiission of Volatile Organic

3. Because one source may emit numerous

pollutants, a single source category may be

among the major source or area source categories listed for several HAPs.

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SIERRA CLUB v. JOHNSON

Cite as 444 F.Supp.2d 46 (D.D.C. 2006)

49

Compounds (''VOCs'' or "ozone precursors"), a major contributor to ground-level

ozone pollution (smog). VOCs are a component of automobile exhaust, and also are

emitted in the fumes from products like

oil-based paints and solvents. Among other things, the Act calls upon EP A to promulgate reguations or "control techniques

gudelines" for VOC-emittng consumer

and commercial products that determined

to contribute to ozone pollution in areas

where ground-level ozone exceeds reguatory limits.

At issue in this case are three mandatory duties imposed on EPA by the 1990

Clean Ai Act amendments, which the

agency admits it has failed to discharge

fuly. These duties are to:

1. Regulate area sources of 30 most

dangerous HAPs: Sections 112(c)(3) and

(k)(3)(B) of the Clean Ai Act, 42 D.S.C.

§ 7412(c)(3) & (k)(3)(B), requie the EPA

to: (1) "identif not less than 30 hazardous

air pollutants which, as the reswt of emissions from area sources, present the greatest threat to public health in the largest

number of urban areas"; (2) identify the

categories or subcategories of sources "accounting for 90 per centum or more of the

aggregate emissions of each of the 30 identifed hazardous air pollutants" within 5

years from the date of the statute's enactment (i.e. by November 15, 1995); and (3)

issue emissions standards for those source

categories within 10 years from the date of

the enactment of the amendment (by November 15, 2000).

EP A has fulfIlled the fist two of these

duties. It issued the list of area source

categories in 1999. See 64 Fed.Reg. 38,-

706 (July 9, 1999); Defendant's Statement

4. Two of these six categories are also source

categories that must be regulated under Section i 12(c)(6).

5. The seven HAPs listed are alkylated lead

compounds, polycyclic organic matter, hexaof Facts ~ 2. The list has since been revised several times, but currently contains

70 area source categories. EPA has promulgated emission standards for only 15 of

these 70 categories. See Declaration of

Steve Page ("Page Decl.") ~ 15; Defendant's Statement of Facts ~ 2.

Afer lodging a draft consent decree

with the Court for solicitation of public

comment, the parties executed and filed a

Revised Partial Consent Decree May 22,

2003. See Revised Parial Consent Decree

(May 22, 2003) ("Consent Decree"). The

Consent Decree requies EP A to promwgate standards for six further categories

under Section 112(c)(3) and (k)(3)(B). See

Page Decl. ~ 19.4 EPA has taken final

action on one of these categories (mercury

cell chlor-alkali plants); the deadlines under the Consent Decree for the remaining

five sources range from November 30,

2005 to December 20, 2007. See id.

Accordingly, EP A must issue reguations for 55 remaining source categories

under Section 112(c)(3) and (k)(3)(B), five

of which are accounted for in the Consent

Decree. See Page Decl. ~ 24; Statement

of Sierra Club of Material Facts as to

Which There is no Genuine Dispute ~ 1.

2. Regulate areas sources of statutorily-specified HAPs: Section 112(c)(6) of the

Act also cals for the reguation of area

sources of seven specifc HAPs, without

regard to their inclusion on EP A's list of

the 30 most dangerous HAPs.s EPA's

duties with respect to HAPs listed under

this provision are identical to its duties

with respect to the 30 most dangerous

HAPs under Sections 112(c)(3) and

112(k)(3)(B): to (1) identify the categories

chlorobenzene. mercury, polychlorinated biphenyls, 2,3,7, 8-tetrachlorodibenzofurans

and 2.3,7,8-tetrachlorodibenzo-p-dioxin. 42

U.S.C § 7412(c)(6).

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50 444 FEDERAL SUPPLEMENT, 2d SERIES

or subcategories of sources "accounting for

90 per centum or more of the aggregate

emissions of each such (listed) pollutant"

by November 15, 1995; and (2) issue emissions standards for those source categories

by November 15, 2000. 42 V.S.C.

§ 7412(c)(6).

EP A issued the list of source categories

under Section 112(c)(6) in 1998, see 63

Fed.Reg. 17,838 (Apri 10, 1998), but later

modifed the list to remove five source

categories. See 67 Fed.Reg. 68,124 (Nov.

8,2002); Page Dec!. ~ 16-17. The current

list contains 50 source categories. Between 1990 and 2003, EP A promulgated

emissions standards for about 30 of these

source categories, because those source

categories were "major sources" of HAPs

also subject to reguation under Section

112(d). See id. ~ 18.

Vnder the Consent Decree, EP A agreed

to promulgate standards for two further

source categories under Section 112(c)(6).

EP A has taken final action on emissions

standards for mercury cell chlor-alkali

plants (also a source category regulated

under Section 112(c)(3) and (k)(3)(B)); it

must promulgate a final rule with regard

to the last category, gasoline distribution

facilties, by December 20, 2007. See Consent Decree at 5-6.

EP A therefore must regulate four Section 112(c)(6) source categories beyond the

one it already is bound by the Consent

Decree to reguate before a date certain.

See Page Dec!. ~ 25. These five source

categories, however, are also among the 50

source categories that must be reguated

under Section 112(c)(3) and (k)(3)(B). See

Page Dec!. ~ 28.

3. Regulate products that emit VOCs:

Section 183(e) of the Act, 42 V.S.C.

§ 7511b(e), calls on EPA to "conduct a

study of the eJIssions of volatile organic

compounds into the ambient air from consumer and commercial products" in order

to "determine their potential to contribute

to ozone levels" that violate EP A liJIts on

ambient ozone levels, and to "establish criteria for reguating consumer and commercial products . . . which shall be subject to

control under this subsection." 42 V.S.C.

§ 7511b(e)(2)(A). After completing the

study, EP A is to: (1) list the categories of

products that account for 80 percent or

more of vac emissions in areas that violate EP A ambient standards for ozone; (2)

divide the list into four priority categories,

based on specifed criteria; and (3) every

two years after the list is promulgated,

reguate one group of categories, unti all

four categories are reguated. 42 V.S.C.

§ 7511b(e)(3)(A).

Vnder Section 183(e), EPA may enact

"any system or systems of regulation as

the Administrator may deem appropriate,

including requiements for registration

and labeling, self-monitoring and reporting, prohibitions, limitations, or economic

incentives (including marketable perJIts

and auctions of eJIssions rights) concerning the manufacture, processing, distribution, use, consumption, or disposal of the

product." 42 V.S.C. § 7511b(e)(4). For

any given product category EP A may either issue a national rue requing the

"best avaiable controls," or instead issue

"control techniques guidelines" ("CTGs")

"if the Administrator determes that such

gudance wi be substantially as effective

as regulations in reducing emissions." 42

V.S.C. § 7511b(e)(3)(A), (C).

"Best avaiable controls" is a technologybased eJIssions standard defined as the

level of eJIssions reduction "that the AdJInistrator deterJInes, on the basis of

technological and economic feasibility,

health, envionmental, and energy impacts,

is achievable through the application of the

most effective equipment, measures, processes, methods, systems or techniques,

including cheJIcal reformulation, product

or feedstock substitution, repackaging, and

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SIERRA CLUB v. JOHNSON

Cite as 444 F.Supp.2d 46 (D.D.C. 2006)

51

directions for use, consumption, storage, or

disposaL" 42 U.S.C. § 751lb(e)(1)(A).

CTGs, by contrast, are not binding regulations but merely "information on air pollution control techniques" provided by EP A

to the states to aid in their own regulation

of air pollution under the Clean Ai Act.

States bear substantial responsibilty for

the implementation of the Act, especially

in "non-attainment areas" where reguations under Section 183(e) would take effect. The information provided under

CTGs includes:

data relating to the cost of instalation

and operation, energy requiements,

emission reduction benefits, and environmental impact of the emission control

technology. Such information shal include such data as are avaiable on avaiable technology and alternative methods

of prevention and control of ai pollution. Such information shall also include

data on alternative fuels, processes, and

operating methods which wi result in

elimination or signifcant reduction of

emissions.

42 U.S.C. § 7408(b)(1). EPA's issuance of

a CTG triggers a responsibilty for states

to submit emission standards for stationary sources of VOCs. See Memorandum of

Points and Authorities in Opposition to

Plaintifs Motion for Summary Judgment

and in Support of Defendant's Cross-motion for Summary Judgment on Remedy

("Def.Opp.") at 8; Page Dec!. ~ 49; 42

U.S.C. § 751la(b)(2).

In March 1995, EPA completed its study

of VOC emissions and published an initial

listing of product categories, as well as a

schedule for the reguation of each category. See Page Dec!. ~~ 20-21; 60 Fed.Reg.

6. EPA completed the study only after being

sued by the Sierra Club and entering into a

consent decree (approved by this Court) on

February 27, 1995. See Sierra Club v. Brower, Civil Action No. 94-553 (D.D.C. filed

Mar. i 7, 1994).

15,267 (March 23, 1995).6 EPA had promulgated reguations or CTGs for each

category in the first group (Group I) by

July 1999. See Page Dec!. ~ 22.7 Accordingly, EP A was to have promulgated regulations for the four priority groups by

March 23, 1997, March 23, 1999, March 23,

2001, and March 23, 2003, respectively.

EP A last revised its list of product categories and groupings under Section 183(e) on

November 17, 2005. See 70 Fed.Reg. 69,-

759. Fifeen categories, divided into three

groups (Groups II-IV, remain unreguated. See Page DecL ~ 23.

B. History of this litigation

Staring on July 16, 2001, plaintif the

Sierra Club fied seven different complaints against EP A, each seeking relief

for EP A's aleged failure to discharge a

diferent aspect of its reguatory duties

under the 1990 Clean Ai Act. The cases

were consolidated on June 20, 2002 and

then stayed while the parties sought mediation. On May 22, 2003, the parties entered into a partial consent decree setting

a schedule for the promulgation of some of

the reguations at issue. See Revised Partial Consent Decree.

The parties engaged in further settlement discussions unti early 2005, during

which time they provided periodic status

updates to the Court. Unfortunately, they

were unable to resolve the remaining

claims, but instead fied cross-motions for

summar judgment. Plaintif also fied a

motion to strike the declaration of Steve

Page that had been fied by defendant in

support of its dispositive motion. Defendant conceded in its briefs that it had

faied to discharge its mandatory duties

7. This also was accomplished only after litigation in this Court and the signing of a consent

decree. See Sierra Club v. Browner, Civil Action No. 97-1984 (D.D.C. filed Aug. 29, 1997).

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52 444 FEDERAL SUPPLEMENT, 2d SERIES

under the Clean Ai Act, but argued that

plaintiff's proposed remedy-a schedule

for the promulgation of the rest of the

regulations requied by the statute-was

impracticable, and proposed a more generous alternative schedule.

Argument was heard on the motions on

November 22, 2005. On March 31, 2006,

the Cour issued an Order denying defendant's motion for summary judgment,

granting summary judgment in favor of

plaintiff and denying plaintiff's motion to

strike.

II. DISCUSSION

Plaintif fied these consolidated actions

to compel EP A to perform a nondiscretionary duty under the citizen suit provision of

the Clean Ai Act, 42 U.S.C. § 7604(a)(2).

There is no question as to liabilty; EP A

does not contest its failure to discharge its

duty under the statute. The only controversy concerns what schedule the Court, in

the exercise of its equitable discretion,

should order defendants to comply with in

promulgating the requied regulations.

A. Standard of Review

1. Summary Judgment Standard

Summary judgment is to be granted if

there is no genuine issue of material fact.

FED.R.Civ.P. 56(c). Once the moving party

carries its burden of demonstrating the

absence of any genuine issue of material

fact, the nonmoving party must present

"specifc facts showing that there is a genuine issue for triaL." FED. R. Civ. R. 56 (e).

The nonmovant must show that he can

satisfy the burden of proof that wi be put

on him in the trial to support his claim.

See Celotex Cor. v. Catrett, 477 U.S. 317,

106 S.Ct. 2548, 91 L.Ed.2d 265 (1986);

Anderson v. Liberty Lobby, Inc., 477 U.S.

242, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986);

Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 106 S.Ct. 1348, 89

L.Ed.2d 538 (1986); Brees v. Hampton,

877 F.2d 111, 117 (D.C.Cir.1989), cert. denied, 493 U.S. 1057, 110 S.Ct. 867, 107

L.Ed.2d 951 (1990). Because defendant

does not contest the issue of liability, the

entry of summary judgment is appropriate, and it remains only for the Court to

fashion an appropriate equitable remedy.

See NRDC v. Train, 510 F.2d 692, 705

(D.C.Cir.1974) ("The authority to set enforceable deadlines both of an ultimate and

an intermediate nature is an appropriate

procedure for exercise of the court's equity

powers to vindicate the public interest.");

see also Amer. Lung Ass'n v. Brower,

884 F.Supp. 345, 349 (D.Arz.1994) (where

liability is uncontested and "it remains

only for the Court, acting in its discretion,

to fashion an equitable remedy," summary

judgment is appropriate); Sierra Club v.

Ruckelshaus, 602 F.Supp. 892, 898 & n. 9

(N.D.Ca1.984) (summary judgment appropriate regarding purely equitable issue of

how the court, exercising its discretionary

power, should fashion a remedy).

2. Failure to Perform Nondiscretionary

Duty

(1, 2) When EP A has failed to discharge a nondiscretionary duty under the

Clean Ai Act, a district court has jursdiction to compel the Administrator to fulil

it. See 42 U.S.C. § 7604(a); Sierra Club

v. Brower, 130 F.Supp.2d 78, 82, 89

(D.D.C.200l); Sierra Club v. Ruckelshaus,

602 F.Supp. at 898. When an agency has

faied to meet the statutory deadline for a

nondiscretionary act, the court may exercise its equity powers "to set enforceable

deadlines both of an ultimate and an intermediate nature(.)" NRDC v. Train, 510

F.2d at 705 (citing Porter v. Warner Holding Co., 328 U.S. 395, 398, 66 S.Ct. 1086, 90

L.Ed. 1332 (1946)). A court appropriately

may decline to impose an immediate deadline, however, and may afford an agency

additional time for compliance, ''where it is

convinced by the offcial involved that he

has in good faith employed the utmost

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53

dilgence in discharging his statutory responsibilties." ¡d. at 713. In other

words, "(t)he sound discretion of an equity

court does not embrace enforcement

through contempt of a party's duty to comply with an order that calls him 'to do an

impossibilty.'" ¡d. (quoting Maggio v.

Zeitz, 333 U.S. 56, 68 S.Ct. 401, 92 L.Ed.

476 (1948)).

(3) Nonetheless, the district court

must scrutinize carefully claims of impossibilty, and "separate justications grounded in the purposes of the Act from the

footdraggig effort of a delinquent agency." NRDC v. Train, 510 F.2d at 713.

When Congress expresses its intent that

reguations be promulgated by a date certain, that intent is of utmost importance; a

court considering a claim of impossibilty

must not "order a remedy that would ...

completely neutralize the mandatory nature of the statutory directive." Sierra

Club v. Browner, 130 F.Supp.2d at 95.

"An equity court can never exclude claims

of inabilty to render absolute performance, but it must scrutinize such claims

carefully since officials may seize on a

remedy made avaiable for extreme illness

and promote it into the daily bread of

convenience." NRDC v. Train, 510 F.2d

at 713.

(4) An agency thus bears "a heavy

burden to demonstrate the existence of an

impossibilty." Alabama Power Co. v.

Castle, 636 F.2d 323, 359 (D.C.Cir.1979)

(citing NRDC v. Train, 510 F.2d at 713);

see also NRDC v. Reilly, 797 F.Supp. 194,

197 (E.D.N.Y.1992); Sierra Club v. Ruckelshaus, 602 F.Supp. at 898. That burden

is especially heavy where "the agency has

faied to demonstrate any dilgence whatever in dischargig its statutory duty to

promulgate reguations and has in fact ignored that duty for several years." Sierra

Club v. Thomas, 658 F.Supp. 165, 172

(N.D.Cal.1987). When an agency has

faied to meet a mandatory statutory deadline, it is insuffcient for the agency to

demonstrate only that it has proceeded in

good faith; it also must demonstrate that

it has exercised "utmost dilgence" in its

efforts to comply with the statute. See id.

at 171 n. 5 (reviewing cases); State v.

Gorsuch, 554 F.Supp. 1060, 1065 n. 4

(S.D.N.Y.1983) ("If the administrator could

possibly have complied with the statutory

mandate, but did not because of competing

concerns or other decisions on his part,

then . he is not acting in 'good faith' ").

In NRDC v. Train, the D.C. Circuit

recognized two possible legitimate constraints on the agency's abilty to meet a

statutory deadline:

First, it is possible that budgetary commitments and manpower demands requied to complete the guidelines by

(the existing deadline) are beyond the

agency's capacity or would unduly jeopardize the implementation of other essential programs. Second, EP A may be

unable to conduct sufficient evaluation of

available control technology to determine which is the best practicable or

may confront problems in determning

the components of particular industrial

discharges.

NRDC v. Train, 510 F.2d at 712; see also

Alabama Power Co. v. Castle, 636 F.2d at

359; Sierra Club v. Thomas, 658 F.Supp.

at 170-71; Sierra Club v. Ruckelshaus,

602 F.Supp. at 898; State v. Gorsuch, 554

F.Supp. at 1064.

The courts, however, have rejected

agency claims that additional time is needed simply to improve the quality or soundness of the reguations to be enacted. See

Sierra Club v. Ruckelshaus, 602 F.Supp.

at 899 (rejecting defendant's justification

that reguations would be improved by further study). Courts also tend to reject as

contrary to the relevant statute agency

approaches to rulemaking that sacrifice

the timely implementation of the statute in

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54 444 FEDERAL SUPPLEMENT, 2d SERIES

favor of extensive agency informationgathering and analysis. For example, the

United States District Court for the Southern District of New York, in rejecting

EPA's defense of its faiure to promulgate

reguations requied by the 1977 Clean Ai

Act on grounds of impossibilty, stated:

The deadlines imposed (under the 1977

Clean Ai Act amendments), when

viewed against the various statements of

purpose, show simply that Congress

concluded that prompt, though imprecise, regulations were preferable to no

reguations during the period while further studies were being conducted to

provide the Aduunistrator with more

complete information. Against this

clear articulation of legislative intent, it

is unseemly for the Administrator to

assert that she is vested with the discretion to balance the need for prompt regulation against the need for informed

standards.

State v. Gorsuch, 554 F.Supp. at 1064; see

id. at 1065 ("I suggest that this evidence

does not demonstrate 'impossibilty,' but

rather a difference in rulemaking philosophy from that eviced by Congress."); see

also Sierra Club v. Gorsuch, 551 F.Supp.

785, 788-89 (N.D.Cal.1982) (lithe EPA envisions a level of thoroughness and scientific certainty not within the contemplation

of Congress at the time it mandated the

reguation of hazardous air pollutants.").

Courts also turn a skeptical eye towards

agency claims that competing regulatory

priorities preclude compliance with statutoriy-mandated deadlines. "If Congress

formulates policies and programs to meet

specifc problems, it may also establish

their relative priority for the Nation. In

such a situation, the court's role is to enforce the legislative wil when caled upon

to do so." State v. Gorsuch, 554 F.Supp.

at 1062-63 (citing TV A v. HilL, 437 U.S.

153, 194, 98 S.Ct. 2279, 57 L.Ed.2d 117

(1978)). liEPA's generalized complaints

. .. that there are competing demands on

their resources, do not amount to a claim

of impossibilty suffcient to justify a departure from a Congressional mandate

. . .. 'shifing resources in response to

statutory requiements and court orders is

commonplace for EP A.' " N RDC v. Reilly,

797 F.Supp. at 197 (citations ouutted)

(quoting Sierra Club v. Thomas, 658

F.Supp. at 174). To accept such an argument in the face of a congressional direction "would effectively amount to condoning a fuly discretionary approach to a

nondiscretionary duty." Sierra Club v.

Browner, 130 F.Supp.2d at 95.

B. The Parties' Proposed Schedules

1. Section 112 Source Categories

(5) Under the 1990 Amendments to

the Clean Ai Act, EP A was to have issued

emissions standards for all of the Section

112(c)(3) and 112(c)(6) source categories by

November 15, 2000. Plaitiff proposes a

schedule callng for EP A to promulgate

reguations for ten source categories every

six months, from June 15, 2006 to June 15,

2008. Under plaintifs proposal, EP A

must promulgate reguations for the

source categories subject to reguation under Section 112(c)(6) by December 15,

2007. EP A proposes a far more leisurely

schedule, calling for it to regulate four

source categories by December 15, 2007,

six more by December 15, 2008, and ten

more source categories every December 15

unti 2012, when all remaining source categories wi be reguated.

2. Section 183(e) Products

EP A promulgated its list of consumer

and commercial products subject to Section 183(e) reguation, dividing them into

four priority groups, on March 23, 1997.

See 60 Fed.Reg. 15,267 (March 23, 1997).

Accordingly, EP A was to promulgate regulations for Group I by March 23, 1997;

Group II by March 23, 1999; Group III by

March 23, 2001; and Group IV by March

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55

23, 2003. EP A had promulgated reguations or CTGs for Group I by July 1999.

See Page Dec!. ,¡ 22. Groups II through

IV remain unreguated.

Plaintifs proposed schedule would requie defendants to: (1) reguate one specifed category of products (flexible package

printing materials) by June 15, 2006; (2)

reguate four specifed categories of products by December 15, 2006; and (3) regulate the ten remaining specifed categories

of products by June 15, 2007. Defendant's

proposed schedule calls for defendant to

reguate the remaining product categories

in three groups of five each, in two-year

intervals. Under this schedule EP A would

be requied to promulgate reguations or

CTGs for Group II by September 30, 2007;

Group III by September 30, 2009; and

Group IV by September 30, 2011.

e. The Parties' Arguments

Defendant's fist argument that plaintifs proposed schedule is "impracticable"

is that compellng EP A to promulgate regulations on that timeline would result in

"rules that fall short of meeting the substantive requirements of section 112(c)(6),

112(c)(3) and (k)(3)(B), and 183(e) or the

applicable procedural requiements." Def.

Opp. at 12, 19 (faster schedule would requie "procedural or analytical shortcuts"

which "could seriously jeopardize both the

soundness of the reguatory action and its

legal defensibility."). Defendant claims

that it "is of paramount importance" that it

be afforded sufficient time to promulgate

"sound reguations that wi surve judicial review." ¡d. at 13 (quoting Sierra

Club v. Thomas, 658 F.Supp. at 172).

EP A claims that its proposed schedule

"represents the reasonable minimum time

in which EP A can complete the obligations

at issue (.)" Def. Opp. at 12.

In support of its motion for summary

judgment, EPA filed a declaration from

Steve Page, Director of the Offce of Ai

Qualiy Planning and Standards

("OAQPS"), Office of Ai and Radiation

("OAR") at EPA. Mr. Page has served in

this position since 2002. OAQPS sets national eiissions standards, monitors and

reports on air qualty and emissions of air

pollutants, and is responsible for implementing several programs under the Act.

See Page Dec!. ,¡ 1. The Page Declaration

discusses the components of the Act at

issue here, and canvasses the history of

reguatory actions taken by the EP A under the statute. It describes what EP A

sees as its remaining obligations and explains EP A's proposed schedule. See

Page Dec!. n7. EPA claims that the

Page declaration establishes two facts:

fist, that it takes, on average, approximately 50 months to promulgate a reguation governing a single category under

Section 112 or 183(e); and second, that

OAQPS's competing reguatory priorities

preclude adherence to a faster schedule.

With respect to Section 112(c) standards, Page sets forth a "template schedule" for the promulgation of each standard.

The schedule allows 50 months for the

promulgation of a standard for a single

source category-a figue Page claims is

"based on ESD's practical experience in

issuing eiission standards reguations under CAA (Clean Ai Act) section 112."

Page Dec!. ,¡,¡ 33-34. The schedule is divided into four phases: (1) general industry characteriation/surey (9 months); (2)

information collection and analysis (17

months); (3) rule proposal (12 months);

and (4) rue promulgation (12 months).

See id. ,- 35. EPA states that, between

1990 and 2003, OAQPS worked on about

five area source categories each year, but

that it currently is workig on 30 categories and that by 2008 it wi have commenced work on all the remaining source

categories. See Def. Opp. at 16; Page

Dec!. ,¡ 57. Page assert that a 50-month

schedule also is appropriate for the promulgation of Section 183(e) standards, proCase 1:01-cv-01537-PLF Document 136-2 Filed 12/07/10 Page 24 of 50

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56 444 FEDERAL SUPPLEMENT, 2d SERIES

posing a "template schedule" simiar to the

one he proposes for Section 112 standards.

See Page Dec!. ,m 45-7. If the EPA

elects, however, to promulgate CTGs instead of standards based on "best available

controls" under Section 183(e), Page asserts that a 24-month regulatory time

frame would be adequate. See id. ~~ 49-

52.

As it made plain in its March 31, 2006

Order, the Court rejects these proposed

reguatory timelines, as well as defendant's

argument that anything faster would yield

substantively or procedurally deficient

rules. First, Mr. Page's 50-month proposed timelines for regulations under Sections 112 and 183 represent only his retrospective estimate of the average amount of

time needed by EP A to promulgate a single standard. See Page Dec!. ~ 33 ("This

schedule ... is based on ESD's actual

reguatory experience issuing both major

and area source emissions standards regulations under Section 112 over the past 15

years."). The Court's primary concern

here is not what EPA has (or has not)

achieved in the past, but what it can reasonably be expected to accomplish going

forward.

Moreover, courts evaluating claims of

impossibility when an agency has failed to

meet a mandatory deadline generally have

rejected claims that additional time is

needed to ensure substantively adequate

reguations. See Sierra Club v. Ruckelshaus, 602 F.Supp. at 899 (not enough for

agency to say "further study always makes

everything better"); State v. Gorsuch, 554

F.Supp. at 1065 (''Wile the Administrator

should be commended for striving to develop the fulest possible statistical basis for

any regulations she promulgates, that

quest must give ground in favor of expedition where Congress expressly directs the

Administrator to establish standards

promptly."); see Sierra Club v. Gorsuch,

551 F.Supp. at 788-9 ("by callng for further elaborate study of the radionuclide

emission problem and the concomitant increased use of EPA resources, the EPA

envisions a level of thoroughness and scientifc certainty not within the contemplation of Congress at the time it mandated

the regulation of hazardous air pollutants."). The four-phase regulatory process described in the Page declaration, see

Page Dec!. ~~ 33-41, is indicative of "a

level of thoroughness and scientifc certainty not within the contemplation of Congress at the time it mandated the reguation of hazardous air pollutants." Sierra

Club v. Gorsuch, 551 F.Supp. at 788-9.

Although in most circumstances the Court

defers to agency expertise about appropriate rulemaking procedures, such deference

is inappropriate where Congress has unambiguously expressed its intent that

these reguations be promulgated by a

date certain and the agency manifestly has

faied to fufil this statutory obligation.

See Linemaster Switch Corp. v. EPA, 938

F.2d 1299, 1303 (D.C.Cir.1991) ("given the

clarty of Congress' instruction that (the

CERCLA Hazard Ranking System) be revised no later than October 17, 1988, it

would indeed be odd to conclude that Congress implicitly entrusted a laggard agency with the authority to devise a remedy

for its own untimeliness.").

Defendant also argues that the regulatory tasks at issue here present unique challenges that justify the allowance of additional time. With respectto the regulation

of area source categories under Section

112(c) and 112(k)(3)(B), defendant argues

that area source category standards are

especially difficult to set rationally, for two

primary reasons: First, the relevant data

for each source category are unique, so

that information gathered in one rulemaking wi not usually expedite another. See

Def. Opp. at 16. Second, area sources

pose dificulties not encountered when regulatig major sources. For example, area

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verse group of smaller entities than major

sources; existing research focuses on major sources, so that less information about

area sources currently exists; and it is

harder for smaller entities to respond to

information requests, because they tend

not to have personnel dedicated to envionmental compliance. See id. at 21; Page

Decl. ,¡ 36.

This is an insufficient basis for the Court

to release EP A from its statutoriy requied duty to promulgate these reguations by a date certain. If the schedule set

by the Clean Ai Act for the reguation of

these sources is unreasonable, EP A's remedy lies with Congress, not with the

courts. Amer. Lung Ass'n v. Browner,

884 F.Supp. at 348 n. 9 ("The EPA's relief

is with Congress, not with the courts.");

NRDC v. Reilly, 797 F.Supp. at 198

("Short of this showing (of impossibilty),

EP A's proper recourse is to persuade Congress to amend the statute, not to defy the

statute and seek relief with this Cour.");

Sierra Club v. Thomas, 658 F.Supp. at 175

("In the absence of a showing of impossibilty, EPA must look to Congress, not this

Cour, for an extension of time."). "(T)o

grant an extension such as required by the

EP A, would involve the Court, rather than

Congress, in changing, qualiying or

amending ... the unqualifed, mandatory

provisions of Section 7412. Such relief, as

sought by EP A should come from the Congress-not from the Court." Sierra Club

v. Gorsuch, 551 F.Supp. at 789. The

Cour wi not second-guess Congress's determination that it would be (or would

have been) possible to reguate these

sources within the time frame set by the

statute.

Finally, EP A argues that "other mandatory obligations" preclude its compliance

with plaintiffs proposed schedule. See

8. The Court notes that many of the mandatory

regulatory duties cited by defendants in the

Page Declaration involve reviewing and revisDef. Opp. at 16; Page Decl ,¡ 30. Page

names several regulatory tasks for which

his office is responsible under Section 112

and other provisions of the Clean Ai Act.

See id. As plaintiff notes, however, EPA

(including OAR) curently devotes substantial resources to discretionary rulemakings, many of which make existing

reguations more congenial to industry,

and several of which since have been found

unlawfL. See Sierra Club's Memorandum

of Points and Authorities in Opposition to

Defendant's Cross-motion for Summary

Judgment on Remedy ("Pl.pp.") at 12-13.

Defendant's only response is that at least

some of those reguatory activities were

not discretionary because they were undertaken in response to petitions to modify

the list of HAPs under 42 D.S.C. § 7412,

to which EP A must respond within 18

months under the terms of the Act. See

Reply Memorandum of Points and Authorities in Support of Defendant's Cross-motion for Summary Judgment on Remedy

("Def.Rep.") at 13 & n. 10 (citing 42 D.S.C.

§ 7412(b)(3)).

This response is insufficient. That some

of the regulatory activities that EP A currently is engaged in are nondiscretionary

comes as no surrise, and does litle to

undermne plaintifs basic point-that it is

inappropriate for an agency to divert to

purely discretionary ruemaking resources

that conceivably could go towards fulfng

obligations clearly mandated by Congress.

The wil of Congress, as expressed in the

Act, is that the promulgation of standards

according to these mandatory deadlines

should take precedence over all other rulemaking that EP A has not been expressly

ordered to complete by Congress, as well

as (arguably) over mandatory ruemaking

for which the authoriing statute does not

set a date certain.s See State v. Gorsuch,

ing existing regulations, either on a regular

schedule or in response to petitions. See

Page Decl. ~ 30. Although both tasks might

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58 tltltl FEDERAL SUPPLEMENT, 2d SERIES

554 F.Supp. at 1066 ("While in the normal

instance I would defer to the wisdom of

the Administrator, I cannot when Congress has so clearly spoken on the issue.

If the Administrator disagrees with the

burden Congress has imposed upon her

Agency, her proper recourse is to persuade Congress to amend the statute, not

to defy the statute and seek relief from the

courts.").

Despite the complexity of the reguatory

scheme involved, this case devolves to a

single issue: whether defendant has met

the "heavy burden" of demonstrating that

it would be impossible to comply with

plaintiffs proposed schedule for the enactment of the remaining standards. Alabama Power Co. v. Costle, 636 F.2d at 359.

The Court finds that it has not. EP A's

only justifcations for seeking huge

amounts of additional time-12 years in

the case of Section 112(c)(3) standards;

more than eight years for Section 183(e)

standards-are the asserted complexity of

the reguatory tasks before it and the fact

that other reguatory priorities demand resources that might be devoted to meeting

EP A's obligations under the Clean Ai Act.

Aß the Court has discussed, neither of

these arguments is sufficient to excuse

EP A from expeditious compliance.

Congress directed EPA in 1990 to begin

executing these tasks on a specifc schedule set by statute. EP A has been grossly

delinquent in making serious efforts to

comply. And far from making the requied showing that it has exercised its

"utmost dilgence" in its effort to comply

with the statutory deadlines, Sierra Club

v. Thomas, 658 F.Supp. at 171 n. 5, defendant has not even attempted to justif its

delinquency up to this point. The history

of regulation under Sections 112(c) and

183(e) of the Clean Ai Act shows that

be mandated by statute, the Court finds if

unreasonable for EPA to devote its limited

resources to the revision of existing regulaEP A has fufiled its statutory duties only

when forced by litigation to do so. By all

appearances, EPA's faiure to promulgate

the required standards owes less to the

magnitude of the task at hand than to "the

footdraggig efforts of a delinquent agency," NRDC v. Train, 510 F.2d at 713, or an

attempt by EPA to prioritize its own regulatory agenda over that set by Congress in

the 1990 Clean Ai Act amendments. It is

emphatically not within an agency's authority to set regulatory priorities that

clearly conflct with those established by

Congress. See State v. Gorsuch, 554

F.Supp. at 1062-63. EPA's justifications

for seeking additional delay cannot override the clear intent of Congress (as expressed in the statute) that these duties

should be fulfiled by a date certain.

Al of this notwthstanding, the Court

does find that plaintifs proposed schedule

is simply too compressed at this stage to

afford any reasonable possibilty of compliance. See NRDC v. New York, 700

F.Supp. 173, 181 (S.D.N.Y.1988) (recognizing "the necessity of dealing with the issues on a pragmatic basis," court allowed

EP A admiistrator "a reasonable period of

time" to comply with mandatory statutory

duty); Sierra Club v. Thomas, 658 F.Supp.

at 175 ("Nevertheless, since the purpose of

this order is to protect the public interest

and not to punish EP A, the Cour would

extend EP A's time to compensate for its

footdraggig if it were convinced that doing so was necessary for the promulgation

of workable reguations."). In particular,

plaintiffs proposal that defendant be required to promulgate reguations for the

fist sets of source categories and product

categories by June 2006 does not afford

sufficient time for EP A to shif resources

to reguation under Sections 112 and 183.

tions while so many mandatory regulations

remain unpromulgated, years after the statutory deadlines have passed.

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SIERRA CLUB v. JOHNSON

Cite as 444 F.Supp.2d 46 (D.D.C. 2006)

59

Rather than order the defendant to do

what is likely an impossibilty, see NRDC

v. Train, 510 F.2d at 713, the Court finds

it appropriate to order a reguatory schedule that is slightly more relaxed than that

proposed by plaintiff, but signifcantly

more expedited than that sought by the

defendant.

Specifcally, with respect to defendant's

Section 112(c)(3) and (k)(3)(b) duties, the

Court on March 31, 2006 ordered EP A to

increase more gradually the number of

rulemakings due at one time: as opposed

to issuing standards for ten source categories by June 15, 2006, and then ten more

every six months unti June 2008 (as plaintif requests), the Court directed defendant

to issue standards for four categories by

December 15, 2006; six more by June 15,

2007; and then ten more categories every

six months unti June 15, 2009. With respect to reguations under Section 183(b),

EP A must promulgate reguations or

CTGs for Groups II, III, and IV by September 30, 2006; September 30, 2007; and

September 30, 2008, respectively.9

D. Promulgation of Standards

Under Section 112(c)(6)

As the Court has discussed, EP A's mandatory duties under Section 112(c)(6) are

to identify the categories or subcategories

of sources "accounting for 90 per centum

or more of the aggregate emissions of each

such pollutant (listed in Section 112(c)(6) )"

and to issue emissions standards for those

source categories. 42 U.S.C. § 7412(c)(6).

EP A has faied to issue those standards,

9. Defendant argues that, by requiring it to set

standards for specifìc source categories and

product categories by dates certain, plaintiff's

proposal "would improperly compel EPA to

take action on specific categories of area

sources and consumer and commercial products based on the current lists published by

EPA." Def. Rep. at 4. Defendant argues that

granting the proposed order would "impermissibly strip" EPA of it statutory authority to

modify the list of source categories and prodand the Court (by its Order of March 31,

2006) directed EP A to promulgate, no later than December 15, 2007, eITssion standards assuring that source categories accounting for not less than 90 percent of the

aggregate emissions of each of the hazardous air pollutants enumerated in Section

112(c)(6) are subject to eITssion standards

under Section 112(d)(2) or (d)(4).

With regard to discharging its duty to

reguate the remaining source categories

under Section 112(c)(6), defendant proposes to do the followig:

(OJnce EPA completes emission standards for the remaining source categories under section 112(c)(6), it intends to

issue a notice that explains how it has

satisfied the requirements of section

112(c)(6) in terms of issuing eITssion

standards for the source categories that

account for the statutory thresholds

identified in section 112(c)(6).

Def. Opp. at 19 n. 16. In other words,

defendant suggests that it may elect not to

promulgate standards directly under Section 112(c)(6), because reguations it promulgates under other sections of the Act

may sufce to "account( J for 90 per centum or more of the aggregate emissions"

of the pollutants listed in that section.

Instead, EP A simply may issue a notice

stating how the standards it has promulgated under other sections account for 90

percent of the eITssions of the pollutants

specifed in Section 112(c)(6).

uct categories to be regulated under Sections

112(c)(3) and (k)(3)(B), Section 112(c)(6), and

Section 183(e). See id.; Def. Opp. at 17.

Defendant is correct-the Act does afford it

discretion to modify the lists in question;

however, this warrants not denial of plaintiff's

motion, but merely a modification of its proposal so that EPA may decide in what order it

wishes to regulate the source and product

categories in question.

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60 444 FEDERAL SUPPLEMENT, 2d SERIES

Plaintiff argues that this proposed remedy is unlawful "(b)ecause Clean Ai Act

§ 112(c)(6) required 'standards' by November 15, 2000, not an EPA pronouncement(.)" PI. Opp. at 14. According to

plaintiff, allowing EP A to make such a

pronouncement, subject only to review after the fact by the D.C. Circuit, "is no

substitute for an order from this Court

ordering EP A to complete its nondiscretionary duty by a date certain deadline."

PI. Opp. at 14. Plaintiff argues that the

delay involved in an appeal to (and, potentially, a remand from) the D.C. Circuit

creates the potential for "serious harm."

¡d. at 15.

(6) It is, however, within EPA's authority to use surogates to reguate hazardous pollutants "if it is reasonable to do

so(.)" Mossville Envtl Action Now v.

Whitman, 370 F.3d 1232, 1242 (D.C.Cir.

2004) (quoting Natl Lime Ass'n v. EPA,

233 F.3d at 637). Plaintif appears to challenge implicitly the reasonableness of

EP A's potential surrogates, see Plaintiff

Sierra Club's Reply in Support of Motion

for Summary Judgment ("PI.Rep.") at 10;

however, the United States Court of Appeals for the District of Columbia Circuit

is the exclusive forum for substantive review of EPA reguations promulgated under Section 112 of the Clean Air Act. See

42 U.S.C. § 7607(b), (d)(l)(C), (e). Although the Court recognizes plaintifs legitimate concerns about furher delayand the potentially grave health consequences of deficient or delayed reguation

of Section 112(c)(6) pollutants-it is beyond this Court's authority to tell EPA

how (as opposed to when) it must fulfil its

duties under Section 112(c)(6). As Judge

Kotelly stated in Sierra Club v. Browner:

Under the CAA, the Court can only

order EP A to take nondiscretionary actions requied by the statute itself. . . .

Notably, the CAA does not allow district

court to address the content of EP A's

conduct, issue substantive determinations of its own, or grant other forms of

declaratory relief.... Accordingly, the

Court shall not grant the declaratory

relief that Sierra Club seeks, especially

since doing so would necessarily embroil the Court in an assessment of the

substance of EPA's actions or omissions. Under 42 U.S.C. § 7607(b), such

substantive judicial review is expressly

reserved for the appropriate court of

appeals.

130 F.Supp.2d at 90. Accordingly, the

Court wil not order EP A to issue standards for the specifc source categories

EP A has identied as accounting for ninety percent of PCB emissions.

III. PLAINTIFF'S MOTION

TO STRIKE

As noted, plaintif moved to strike portions of the Page declaration pertaining to

Mr. Page's estimates of the amount of time

required to promulgate regulations under

Section 112(c). Plaintiff argues that: (1)

the declaration does not state facts within

Mr. Page's personal knowledge, but only

opinions about how long rulemaking might

take; (2) Mr. Page's estimates are admissible neither as expert testimony under

Rule 702 of the Federal Rules of Evidence

nor as lay opinion testimony under Rule

701; and (3) parts of the declaration are

"purely conclusory," in that they state only

what Mr. Page personally believes, unsupported by any facts. Although (as has

already been discussed) the Court finds

the Page declaration to be of limited value

in determining what an appropriate timetable for reguation might be, this does not

justif striking the affidavit. The Court

therefore denied the motion to strike on

March 31, 2006.

IV. CONCLUSION

For the foregoing reasons, the Court

finds that there are no genuine issues of

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HOLLINGSWORTH v. DUFF

Cite as 444 F.Supp.2d 61 (D.D.C. 2006)

61

material fact and that plaintif is entitled

to judgment as a matter of law. Accordingly, the Court denied defendant's motion

for summary judgment, granted plaintifs

motion, and entered summary judgment

for plaintif on March 31, 2006. The Court

further concluded that ordering the defendant to promulgate reguations under the

following timetable, as set forth in the

March 31, 2006 Order, wi best preserve

the intent of Congress in enacting the 1990

Clean Ai Act amendments, without calng

upon defendants to do the impossible.

EP A shal promulgate standards under

Section 112(d) of the Clean Ai Act for

those area source categories listed by EP A

pursuant to Section 112(c)(3) and

112(k)(3)(B) as source categories that are

necessary to meet the 90 percent statutory

threshold identifed in Section 112(c)(3)

and 112(k)(3)(B), and for which it has not

yet issued standards, as follows:

12/15/06 4 listed categ-ories

6/15/07 6 listed categ-ories

12/15/07 10 listed categ-ories

6/15/08 10 listed categ-ories

12/15/08 10 listed categ-ories

6/15/09 10 listed categ-ories

No later than December 15, 2007, EPA

shall promulgate emission standards assuring that source categories accounting

for not less than 90 percent of the aggregate emissions of each of the hazardous air

pollutants enumerated in Section 112(c)(6)

are subject to emission standards under

Section 112(d)(2) or (d)(4). EPA shall retain its statutory authority to revise the

list of area source categories under Section

112(c)(3) and 112(k)(3)(B).

For the three remaining Group~ of categories of consumer or commercial products

("product categories") listed by EP A pursuant to Section 183(e) of the Clean Ai

Act, EP A shal promulgate reguations or

control techniques gudelines under Sec1. James C. Duff is substituted for his predecessor, Leonidas Ralph Mecham, as Director

tion 183(e), to meet the 80 percent statutory threshold identifed in that section, as

follows:

9/30/06

9/30/07

9/30/08

Group II

Group III

Group iv

EP A shall retain its statutory authority

under Section 183(e) to revise the product

category list or product category groups.

An Order consistent with this Opinion

issued on March 31, 2006.

Sharon HOLLINGSWORTH, Plaintiff,

v.

James C. DUFF,l Director, Administrative Office of the U.S.

Courts, Defendant.

Civil Action No. 04-2209 (RMC).

United States District Court,

District of Columbia.

Aug. 2, 2006.

Background: Federal employee, a computer programmer for Administrative Office of the U.S. Courts (AOUSC) who developed sick-buiding syndrome while

working in federal judicial buiding and

was irutially permtted to work from home

but was ultimately terminated, sued Director of AOUSC under Rehabiltation

Act. Director moved to dismiss for lack of

subject matter jurisdiction.

Holdings: The District Court, Collyer, J.,

held that:

(1) AOUSC, as judicial branch agency, was

not within purew of the Rehabilitation Act, and

of the Administrative Office of the u.s.

Courts, pursuant to Fed.R.Civ.P. 25(d)(I).

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EXHIBIT 6

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1 

UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF COLUMBIA 

 

__________________________________________ 

 ) 

SIERRA CLUB, ) 

 ) 

Plaintiff, ) Case No. 1:01CV01537 (PLF) 

 ) and Consolidated Cases 

v. ) 

) 

LISA JACKSON, in her official capacity ) 

as Administrator, United States ) 

Environmental Protection Agency, ) 

 ) 

Defendant. ) 

__________________________________________) 

DECLARATION OF PANAGIOTIS E. TSIRIGOTIS 

I, Panagiotis E. Tsirigotis, under penalty of perjury, affirm and declare that the following 

statements are true and correct to the best of my knowledge and belief and are based on my own 

personal knowledge or on information contained in the records of the United States 

Environmental Protection Agency (EPA) or supplied to me by EPA employees under my 

supervision. 

1. I am the Director of the Sector Policies and Programs Division (SPPD) within the 

Office of Air Quality Planning and Standards (OAQPS), Office of Air and Radiation (OAR) at 

EPA; a position I have held since February 6, 2006. SPPD is the division within OAQPS that 

has responsibility for, among other things, developing regulations under section 112 of the Clean 

Air Act (CAA), the national emission standards for hazardous air pollutants (NESHAP) program. 

2. In my current capacity as Director of SPPD, I am responsible for overseeing 

EPA’s promulgation of significant regulations related to the NESHAP program. In this capacity, 

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2 

I am familiar with the process and time periods required for developing and promulgating major 

EPA regulations under the CAA. 

3. This declaration is filed in support of EPA’s “Motion to Amend Order of March 

31, 2006.” EPA needs additional time to promulgate certain emission standards that are needed 

to fulfill its CAA section 112(c)(3) and (k)(3) obligations under Paragraph 1(i) of the Court’s 

Order of September 20, 2010, and its section 112(c)(6) obligations under Paragraph 3 of the 

Order. 

4. As explained more fully below, EPA believes that the deadlines in Paragraphs 1(i) 

and 3 of the Court’s Order should be extended from January 16, 2011, to April 13, 2012, to allow 

the Agency time to re-propose for further public comment and take final action on certain 

standards that are needed to meet the Agency’s obligations under the Court’s order. The 

standards that EPA needs to re-propose are the ones that apply to major source industrial, 

commercial and institutional boilers and process heaters (“major source boilers”), 1

 area source 

industrial, commercial and institutional boilers (“area source boilers”), and commercial and 

industrial solid waste incinerators (“CISWI units”). EPA wishes to re-propose the rules for 

further public comment in order to ensure that the final rules are logical outgrowths of the 

original proposals. In addition to re-proposing, EPA would use the additional time to respond to 

the over 4,800 comments received on the original proposals. See infra ¶¶ 32, 36-40. 

5. If the Court does not allow EPA to re-propose the standards at issue, EPA 

believes that it needs until June 15, 2011 to complete the final rules. EPA currently cannot 

respond in full to all of the comments received on the proposed rules by the January 16, 2011 

deadline. I estimate that it would take approximately five more months to review and prepare 

 

1

 A “major source” is a stationary source that emits or has the potential to emit 10 tons per year or more of any one 

hazardous air pollutant or 25 tons per year or more of a combination of hazardous air pollutants. An area source is 

any stationary source that is not a major source. 

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3 

complete responses to the over 4,800 public comments received on the proposed major source 

boilers, area source boilers and CISWI rules and to prepare a final rule for the Administrator’s 

signature consistent with the comments. While this short extension will not allow EPA to solicit 

further public comment, it will enable the Agency to reduce the legal vulnerabilities of the 

standards at issue and greatly increase the likelihood that the rules will withstand judicial review. 

 6. EPA also needs an additional six months to complete its section 112(c)(3) 

obligations for sewage sludge incinerators. Specifically, EPA requests that Paragraph 1(i) of the 

Court’s September 20, 2010 Order be modified to allow EPA to complete one additional 

category pursuant to section 112(c)(3) by July 15, 2011. If the Court were to accept the 

proposed extension described in Paragraph 4 above, the deadline for completing the remaining 

section 112(c)(3) standards under Paragraph 1(i) would be April 13, 2012. 

7. Below, I first provide some background on the actions that the Agency has taken 

to date to meet the requirements of Paragraphs 1(i) and 3 of the Court’s Order. I then provide 

background concerning actions and events that have impacted the Agency’s development of the 

remaining standards needed to meet our section 112(c)(6) obligations. After providing this 

background information, I first explain the Agency’s need for additional time to meet its 

obligations under paragraph 3 of the Court’s Order, and then discuss the additional time needed 

to meet its obligations under Paragraph 1(i). 

Actions Taken to Date Pursuant to Paragraphs 1(i) and 3 of the Court Order

8. Paragraph 1(i) of the Court’s September 20, 2010 Order requires the Agency to 

issue emission standards under CAA section 112(d) or section 129, assuring that area sources 

representing ninety percent of the area source emissions of the 30 of the thirty urban hazardous 

air pollutants identified pursuant to section 112(k)(3) are subject to emission standards by 

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4 

January 16, 2011. Paragraph 3 of that Order requires the Agency to promulgate emissions 

standards by January 16, 2011, assuring that sources accounting for not less than ninety percent 

of the aggregate emissions of each of the hazardous air pollutants enumerated in Section 

112(c)(6) are subject to emission standards under Section 112(d)(2) or (d)(4). 

9. To date, EPA has issued final emission standards for 48 area source categories 

pursuant to Paragraph 1(i) of the Order and CAA section 112(c)(3) and (k)(3). EPA proposed 

emission standards for three other area source categories in 2010, pursuant to section 112(c)(3) 

and (k)(3). Specifically, on April 29, 2010, EPA proposed emission standards for area source 

Industrial Boilers and area source Commercial and Institutional Boilers. In this declaration, I 

refer collectively to these two source categories as “area source boilers.” On September 30, 

2010, EPA proposed emission standards for sewage sludge incinerators. 

10. To date, EPA has issued final emission standards for one source category under 

Paragraph 3 of the Order and section 112(c)(6). On April 15, 2010, consistent with Paragraph 

3(a) of the April 13, 2010 Order, EPA proposed emission standards for gold mining production 

processes. EPA intends to issue final standards for this category by December 16, 2010, 

consistent with the Court’s September 20, 2010 Order. Finally, on April 29, 2010, consistent 

with paragraph 3(b) of the Court’s April 13, 2010 Order, the EPA Administrator signed proposed 

rules setting “emission standards for industrial, commercial and institutional boilers under 

section 112(d)” and “standards for commercial and industrial solid waste incineration units under 

section 129.” Order dated April 13, 2010, ¶ 3(b). Those rules include: (1) National Emission 

Standards for Hazardous Air Pollutants for Major Sources: Industrial, Commercial, and 

Institutional Boilers and Process Heaters (the “major source boilers rule”), 75 Fed. Reg. 32,006-

73 (June 4, 2010); (2) National Emission Standards for Hazardous Air Pollutants for Area 

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5 

Sources: Industrial, Commercial, and Institutional Boilers (the “area source boilers rule”), id. at 

31,896-935; and (3) Standards of Performance for New Stationary Sources and Emission 

Guidelines for Existing Sources: Commercial and Industrial Solid Waste Incineration Units (the 

“CISWI rule”), id. at 31,938-32,004. 

11. In the proposed rules identified in Paragraph 10, EPA indicated that it believed 

that it needed to establish emission standards for certain emissions from major source boilers, 

CISWI units, and area source boilers to meet its section 112(c)(6) obligations.2 EPA also 

indicated that it needed to establish emission standards for certain emissions from area source 

boilers to meet its section 112(c)(3) obligations. 

General Background Relating to the Agency’s Section 112(c)(6) and Section 112(c)(3) and 

(k)(3) Obligations

12. Paragraph 3 of the September 20, 2010 Order provides that the Agency must 

promulgate emissions standards by January 16, 2011, assuring that sources accounting for not 

less than ninety percent of the aggregate emissions of each of the hazardous air pollutants 

enumerated in Section 112(c)(6) are subject to emission standards under Section 112(d)(2) or 

(d)(4). Under section 112(d)(2), EPA imposes emission standards that require “the maximum 

degree of reduction in emissions of hazardous air pollutants” that EPA concludes are achievable 

based on consideration of factors identified in the statute. These are referred to as “maximum 

achievable control technology” or “MACT” standards. Section 112(d)(4) allows the 

Administrator, with respect to pollutants for which a health threshold has been established, to set 

a standard that considers such threshold and provides an “ample margin of safety.” 

 

2

 In the proposed area source boilers rule, EPA indicated that it needed to set emission standards under section 

112(c)(6) for certain hazardous air pollutants emitted by certain area source boilers. Based on the comments 

received on the proposed rules, the Agency is re-evaluating which area source boilers and CISWI units are needed to 

meet its section 112(c)(6) obligations. 

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6 

 13. In March 2007, the United States Court of Appeals for the District of Columbia 

Circuit vacated EPA’s section 112(d)(2) MACT emission standards for the Brick and Structural 

Clay Ceramics source categories. Sierra Club v. EPA, 479 F. 3d 875, 882-83 (D.C. Cir. 2007) 

(the Brick MACT decision). In its opinion, the court identified several significant deficiencies 

with EPA’s MACT standard-setting methodology. 

 14. Shortly thereafter, in June 2007, the Court vacated the MACT standards for major 

source industrial, commercial, and institutional boilers and process heaters (“major source 

boilers”). Natural Resources Defense Council v. EPA, 489 F. 3d 1250, 1257-61 (D.C. Cir. 2007) 

(“NRDC I”). As noted above, the Agency believes that it needs to establish standards for certain 

emissions from major source boilers to meet its section 112(c)(6) obligations. At the same time 

the D.C. Circuit vacated the major source boilers MACT, it vacated a related rule called the 

Commercial and Industrial Solid Waste Incineration Units (CISWI) Definitions Rule, 70 Fed. 

Reg. 55,568 (Sept. 22, 2005), which EPA issued pursuant to CAA section 129(a)(1)(D). NRDC 

I, 489 F. 3d at 1250. The D.C. Circuit vacated both the boiler MACT rule and the CISWI 

Definitions rule because EPA had improperly identified the universe of sources subject to each 

rule. Specifically, the Court rejected EPA’s interpretation of the term “solid waste incineration 

unit” in section 129(g)(1) and held that such term “ plainly and broadly includes ‘a distinct 

operating unit of any facility which combusts any solid waste material from commercial or 

industrial establishments or the general public (including single and multiple residences, hotels, 

and motels).’” 489 F.3d at 1257. CAA section 129(g)(6), in turn, defines “solid waste” to have 

the meaning provided by the EPA Administrator under the Resource Conservation and Recovery 

Act (“RCRA”). In sum, the Court vacated the Boilers MACT rule in 2007, because EPA had 

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7 

improperly included in that rule sources that combusted solid waste and therefore should have 

been subject to standards under the CAA section 129 CISWI rule. 

 15. Finally, also in the summer of 2007, the D.C. Circuit vacated, in part, another 

section 112(d) MACT standard for the plywood industry. Natural Resources Defense Council v. 

EPA, 489 F. 3d 1364 (D.C. Cir. 2007) (the “Plywood MACT decision”). This trilogy of 

decisions substantially impacted how the Agency sets MACT emission standards under CAA 

section 112 and section 129. 

16. In light of these decisions, the Agency determined that it needed additional 

information and data from major industrial, commercial and institutional boilers and process 

heaters and CISWI units in order to set defensible MACT emission standards pursuant to CAA 

section 112(d) and section 129(a)(1)(D).3

 As a result, the Agency prepared an information 

collection request. Because the request would be sent to “ten or more persons,” as that phrase is 

defined in the Paperwork Reduction Act of 1995, 44 U.S.C. § 3502(3), the Agency had to obtain 

approval from the Office of Management and Budget (“OMB”), as provided in 5 C.F.R. § 

1320.5, prior to sending the request to the affected facilities. As required by regulation, EPA 

published two Federal Register notices, soliciting comment on the draft information collection 

request. See 5 C.F.R. § 1320 (8), (10). EPA issued the first Federal Register notice on 

December 7, 2007, on which the public had 60 days to comment. EPA reviewed the comments 

received, revised the draft information collection request based on those comments, and issued 

the second Federal Register notice on May 14, 2008, providing the public 30 days to comment 

on the revised draft information collection request. In total, the public had 90 days in which to 

 

3

 Like CAA section 112, section 129 requires that EPA set MACT standards. As such, the D.C. Circuit’s Brick and 

Plywood MACT decisions cited above are also relevant to the Agency’s section 129 standards. 

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8 

comment on the draft information collection request. The regulations governing this process 

require this amount of public comment opportunity. 

17. The draft information collection request consisted of two phases. The first phase 

required the submission of existing information, and the second phase required certain facilities 

to conduct a suite of stack tests to evaluate their emissions of hazardous air pollutants and certain 

other pollutants, such as particulate matter and carbon monoxide. 

18. On August 1, 2008, OMB approved phase one of the information collection 

request, 5 C.F.R. § 1320.5, and the request was sent to about 3,000 facilities in late August 2008. 

19. The facilities had until October 16, 2008 to complete phase one of the information 

collection request. We provided several facilities a 60-day extension because operations at the 

facilities were adversely impacted by the flooding that occurred in Texas, Louisiana and the 

Midwest due to Hurricanes Gustav and Ike in September 2008. EPA, therefore, did not receive 

the data and information required by the first phase of the information collection request until 

mid-December 2008, which is two months later than anticipated. 

20. Once EPA obtained and reviewed the information submitted under phase one of 

the information collection request, it identified about 300 facilities (including both boilers and 

incinerators) for additional testing. EPA then submitted its list of proposed facilities for testing 

to OMB for review and requested approval of the second phase of the information collection 

request. 

21. On May 21, 2009, OMB approved the second phase of the information collection 

request. Shortly thereafter, EPA, on June 1, 2009, sent the phase two testing survey to the 

affected facilities, and requested that all data be submitted to the Agency by October 15, 2009. 

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9 

22. The Agency received numerous requests for extension of the phase two testing 

deadline, and EPA granted several of those requests. The requestors stated that the additional 

time was needed largely because of the lack of available testing contractors to perform the 

testing and the limited number of analytical laboratories available to analyze the required 

dioxin/furan samples. Other requestors, with units located in Alaska, cited weather issues that 

impeded completion of the testing on the schedule required by the information collection request. 

Finally, we had to identify some additional sources for testing because certain sources had shutdown or were in the process of shutting down. This resulted in additional delays in obtaining 

testing data. The Agency received most of the test data by December 31, 2009, and the 

remaining data in February 2010. 

23. Consistent with the Court’s Order, on April 29, 2010, the EPA Administrator 

signed proposed rules setting “emission standards for industrial, commercial and institutional 

boilers under section 112(d)” and “standards for commercial and industrial solid waste 

incineration units under section 129.” Order ¶ 3(b). Those rules include the major source boilers 

rule, the area source boilers rule, and the CISWI rule. See supra ¶ 9. 

24. In addition, on April 29, 2010, the EPA Administrator signed the “Identification 

of Non-Hazardous Secondary Materials That Are Solid Waste” proposed rule pursuant to RCRA 

(“Non-Hazardous Solid Waste Rule”).4

 This rule is intricately tied to the three air rules 

identified in the prior paragraph because some industrial, commercial, or institutional boilers or 

process heaters combust secondary materials as alternative fuels. The proposed Non-Hazardous 

Solid Waste Rule describes which secondary materials constitute “solid waste” within the 

meaning of RCRA. Consistent with NRDC I, units that combust solid waste are subject to CAA 

 

4

 In January 2009, EPA issued an Advanced Notice of Proposed Rulemaking (“ANPRM”) on the Identification of 

Non-Hazardous Secondary Materials that are Solid Waste. The April 2010 proposal considered the comments 

received on the ANPRM. 

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10 

section 129. Thus, if the industrial, commercial, or institutional boilers or process heaters 

combust secondary materials that are “solid waste” within the meaning of RCRA, those units 

would be subject to CAA section 129, and EPA would need to account for those units in setting 

MACT standards under section 129. By contrast, if the secondary materials combusted by a 

particular boiler are not solid waste, that source would be subject to the applicable section 112 

boiler rule. 

25. Following signature, the Agency promptly submitted the proposed major source 

boilers, area source boilers, and CISWI rules (the “three air rules”) and the Non-Hazardous Solid 

Waste rule to the Office of the Federal Register. The rules were published in the Federal 

Register on June 4, 2010. 

26. Taken together, the rules impact a substantial number of sources. Specifically, in 

the proposed major source boilers rule, EPA estimated that the rule would cover about 13,555 

boilers and process heaters located at about 1,600 facilities. As a result of the proposed emission 

standards for major source boilers and process heaters, EPA estimated significant annual health 

benefits, which EPA quantified to range from $17 billion to $41 billion in 2013. The total 

nation-wide capital cost for the proposed rule was estimated to be $9.5 billion in the year 2013, 

with a total national annual cost of $2.9 billion in the year 2013. 

27. In the proposed area source boilers rule, EPA estimated that the rule would cover 

183,000 existing area source boilers at about 92,000 facilities in the United States. Industrial 

boilers are used in manufacturing, processing, mining, refining, or any other industry. 

Commercial area source boilers include those used, for example, in malls, restaurants, hotels, and 

apartments. Institutional area source boilers include boilers used in medical centers (e.g., 

hospitals and nursing homes), educational and religious facilities (e.g., schools, universities and 

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11 

churches), and municipal buildings (e.g., courthouses and prisons). EPA estimated that the 

proposed area source boiler standards would result in health benefits ranging from $1 billion to 

$2.4 billion, and $900 million to $2.2 billion, at 3% and 7% discount rates, respectively. EPA 

estimated the total nationwide capital cost for the rulemaking for existing and new area source 

boilers, as proposed, to be approximately $2.5 billion, with an annualized cost of $1 billion. 

 28. In the proposed CISWI rule, EPA estimated that the rule would cover 176 solid 

waste incineration units. EPA estimated that if all affected units used add-on controls, the total 

nationwide cost for complying with the rule would be approximately $244 million per year. 

EPA further estimated the monetized benefits of the proposed regulatory action to be $240 

million to $580 million (assuming 2008 dollars and a 3 percent discount rate) in the 

implementation year (2015). 

 29. In the June 4, 2010 Federal Register notices for the three air rules and the NonHazardous Solid Waste rule, EPA stated that one public hearing would be held, and that the 

comment period on the rules would close on July 19, 2010 (45 days following publication in the 

Federal Register). 

 30. Given the significant public interest in the 3 air rules and related Non-Hazardous 

Solid Waste rule and the substantial number of sources potentially affected by these rules, on 

June 9, 2010, EPA issued a notice of public hearing and extension of the comment period. The 

notice explained that EPA would hold three public hearings on the four related rules, as opposed 

to one hearing. 75 Fed. Reg. 32,682 (June 9, 2010). The notice further explained that the 

hearings would be held on June 15, 2010 in Arlington, Virginia, June 22, 2010 in Los Angeles, 

California, and June 22, 2010 in Houston, Texas. Finally, the notice extended the comment 

period to August 3, 2010. 

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12 

 31. EPA received several requests for additional extensions of the comment period. 

Generally, the requestors argued that additional time was needed for the public to provide 

meaningful feedback on the four complex and inter-related rules. Among other things, the 

requestors cited the need for additional time to review the calculations supporting EPA’s 

proposed CAA emission standards and EPA’s cost estimates. On July 22, 2010, EPA extended 

the comment period for the three air rules from August 3, to August 23, 2010. 75 Fed. Reg. 

42676 (July 22, 2010). With the second extension of the comment period, the public had 80 days 

to comment on the three related air rules, and 60 days to comment on the Non-Hazardous Solid 

Waste rule.

Section 112(c)(6): Need for Additional Time To Complete Standards

32. EPA received about 2,360 individual comments on the major source boilers rule, 

2,200 individual comments on the area source boilers rule, and over 250 individual comments on 

the CISWI rule. If each mass mailing received were also counted, the total number of comments 

received on the rules would exceed 30,000 comments. The volume of comments received on 

these three air rules is significant, as compared to the number received on other similar rules. 

Indeed, several of the comment letters submitted spanned hundreds of pages.

33. EPA received about 1,150 individual comments on the Non-Hazardous Solid 

Waste Rule. If each mass mailing received were also counted, the total number of comments 

received on the rule would exceed 20,000 comments. In addition, prior to issuance of the 

proposed rule, EPA received approximately 21,000 emails from concerned citizens, in addition 

to a host of comments it received in response to the January 2009 Non-Hazardous Solid Waste 

ANPRM. See supra n.4. 

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13 

 34. The Agency has spent considerable time reviewing the over 4,800 individual 

comments received on the three air rules. These comments raise several significant issues and 

provide new information and data. After reviewing the comments, we have a different and better 

understanding of the facts and complexities associated with the emissions of certain hazardous 

air pollutants from industrial, commercial and institutional boilers and process heaters and 

CISWI units. Based on the comments and new information and data, I believe a re-proposal of 

the major source boilers, area source boilers and CISWI rules would significantly bolster the 

strength of the final rules. As explained further below, there were a number of significant issues 

raised in the comments that may result in certain changes to the proposed rules that, we believe, 

could change the direction from the proposals sufficiently to make additional notice and 

comment advisable. 

 35. Although I cannot speak with specificity at this time as to the precise details of 

what we would include in a re-proposal because we have not yet presented the Administrator 

with options for her approval, I can discuss generally the kinds of issues that have emerged. 

a. For example, commenters have raised legitimate issues concerning the 

proposed subcategorization scheme in the three air rules. Some commenters argued that 

we failed to establish a sufficient number of subcategories, while others argued that the 

proposed subcategorization scheme was not supported by the record. In addition to the 

new information and data we received on the sources at issue, these comments have made 

us recognize that, at proposal, we failed to understand fully certain issues associated with 

the affected sources that are relevant to subcategorization decisions. A different 

subcategorization decision could significantly change the proposed emission limits. 

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14 

b. Another issue that emerged during the comment period is the scope of 

coverage of the proposed rules. Some commenters argue that the proposed boilers rules 

improperly fail to cover boilers that combust solely non-hazardous secondary materials 

that are not solid waste. We agree that the proposed boilers rules did not set standards for 

such boilers. If a decision is made to set standards for such boilers, we believe that 

providing the public an appropriate opportunity to comment on those standards would 

significantly reduce the risk that a reviewing court might later find that EPA had failed to 

provide sufficient notice to the regulated community. 

c. Some commenters argued that we significantly under-estimated the 

number and types of certain units in the CISWI rule. For example, we estimated that 

there were 36 burn-off ovens in the United States. Commenters assert that there are 

between 10,000 and 15,000 of these ovens in the United States and that we lack data on 

these units and thus cannot set defensible MACT standards. Another commenter argued 

that we rushed to set standards for CISWI units that are not in the inventory supporting 

EPA’s section 112(c)(6) listing and that such units are therefore not needed to meet the 

Agency’s 112(c)(6) obligations. EPA is carefully evaluating these comments and 

assessing whether it needs burn off ovens and other CISWI units on which it currently 

lacks data or information to meet its section 112(c)(6) obligation. 

 36. Based on our current understanding of the facts about the sources at issue here 

and the issues that have emerged during the comment period, I believe that if we issue final rules 

for the three categories described above by January 16, 2011, various interested parties will 

allege in proceedings for judicial review that we did not provide meaningful notice and 

opportunity for public comment. In addition, I do not believe that we can adequately respond by 

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January 16, 2011, to the over 4,800 individual comments received on the major and area source 

boilers and CISWI rules. Although we have been working diligently to review and evaluate the 

comments since late August, we simply cannot fully respond by January 16, 2011, given the 

sheer volume and complexity of the issues presented. 

37. EPA believes the deadline in Paragraph 3 of the September 20, 2010 Order should 

be extended from January 16, 2011, to April 13, 2012, to allow the Agency time to develop 

workable rules that can be implemented effectively and that can withstand judicial review. With 

such an extension, we would intend to re-propose the major source, area source, and CISWI rules 

by June 1, 2011. Following an opportunity for notice and comment on the re-proposals, EPA 

would take final action on the emission standards needed to meet the requirements of Paragraph 

3 by April 13, 2012. See infra. In addition to issuing the re-proposals, EPA would use the 

extension of time to develop complete responses to all of the comments received on both the 

proposals and re-proposals. As explained above, the rules at issue cover almost two hundred 

thousand boilers and about 175 CISWI units and have significant environmental benefits, but 

they also have significant costs. See supra ¶¶ 26-28 (noting that the proposed major source 

boilers rule covers about 13,555 boilers and the proposed area source boilers rule covers about 

183,000 boilers). As a matter of public policy, on rules of this significance that affect such a 

substantial number of sources, we believe it is appropriate to seek to avoid any risk of procedural 

error especially where, as here, we have identified the need for additional public input prior to 

issuing the final rules. I also believe that the re-proposal approach will result in standards that 

are more defensible and will yield environmental benefits earlier, because the final standards will 

more likely withstand substantive review. 

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16 

38. EPA continues to work to complete final emission standards for those major 

source boilers, area source boilers and CISWI units that are needed to meet the requirements of 

Paragraph 3 of the Court’s Order and section 112(c)(6). Were the Court to grant our request to 

extend the current January 16, 2011 deadline to April 13, 2012, I estimate that we would need at 

least 4 and one half months to develop re-proposals for the three rules. In addition to developing 

the re-proposals, we would need to prepare appropriate supporting documentation, including any 

revised calculations supporting the re-proposed emission standards and the costs associated with 

such standards. 

39. Under the schedule proposed in Paragraph 37, there would be ten and one half 

months between signature of the re-proposed rule and signature of the final rule. I believe that 

this period of time is sufficient to promulgate the final standards. EPA currently intends to 

provide a 60-day comment period on the re-proposals, given the significant public interest in the 

original proposals. EPA also intends to hold a public hearing after the re-proposals are published 

in the Federal Register. We recognize that we will likely receive many additional comments, but 

we believe that the proposed period between the signature of the re-proposed and final rules 

provides sufficient time to review, consider, and respond to comments. We are prepared to 

commit the necessary resources to meet the schedule proposed in Paragraph 37. 

40. If the Court does not allow EPA time to re-propose the standards at issue, EPA 

believes that the January 16, 2011 deadline in Paragraph 3 of the September 20, 2010 Order 

should, at a minimum, be extended to June 15, 2011. The Agency cannot currently respond in 

full to all of the significant comments submitted on the major source, area source, and CISWI 

proposed rules and prepare a final rule for the Administrator’s signature that is consistent with 

those comments by January 16, 2011. While such an extension would not eliminate the 

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17 

likelihood that opponents of the rules will allege the Agency provided insufficient notice and 

opportunity for comment, it would enable the Agency to develop responses to all significant 

comments received and to prepare fuller and more defensible response to those comments, which 

would enhance the defensibility of the final standards. 

Section 112(c)(3): Need for Additional Time To Complete Standards

 41. Consistent with the proposal set forth in Paragraph 37, Paragraph 1(i) of the 

September 20, 2010 Order would need to be extended to April 13, 2012, because the Agency 

believes that it needs to set standards for certain emissions from certain area source boilers to 

meet its section 112(c)(3) obligations. The deadline in Paragraph 1(i) must be consistent with 

the deadline in Paragraph 3, because certain area source boilers are needed to meet the 

requirements of both section 112(c)(3) and (c)(6). Thus, to the extent the deadline in Paragraph 

3 is extended, the deadline in Paragraph 1(i) should be extended by the same amount of time. 

 42. As noted above, on September 30, 2010, EPA proposed emission standards for 

sewage sludge incinerators to meet its section 112(c)(3) obligations. EPA had hoped to be in a 

position to propose this rule earlier in 2010, but it encountered some unexpected delays, as 

explained below. 

 43. The Agency determined in 2009 that it needed additional information concerning 

the emissions of certain pollutants from sewage sludge incinerators. On October 23, 2009, EPA 

sent a CAA section 114 information collection request to a small number of facilities. Because 

of the small universe of sources targeted for information, the requirements of the Paperwork 

Reduction Act did not apply to this collection. In the information request, the Agency asked 

facilities to submit certain existing information and required the facilities to test for certain 

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18 

pollutants. The information request required sources to submit the existing information by 

December 19, 2009, and the test data by February 17, 2010. 

44. The Agency provided extensions for certain sources to submit their test data. 

Most of the sources requested these extensions because the units needed additional time to secure 

the necessary funding to complete the testing and to adhere to any relevant local government 

procedures for securing contractors to complete the testing. Sewage sludge incinerator units are 

owned almost exclusively by municipalities and the process for securing the funding and 

resources necessary to complete the testing was time consuming. Another source requested an 

extension of time to complete the testing due to weather-related issues. The Agency received all 

of the information and test data by March 31, 2010. 

45. Once EPA reviewed and evaluated the information and data submitted in response 

to the survey, it identified some missing or incomplete information and data. It took a few 

additional weeks to resolve the data discrepancies that we had identified. 

46. Finally, during the rule development process, we recognized that we were missing 

certain information relevant to our cost analysis of the proposed emission standards. In our cost 

analysis, we examined alternative disposal methods, one of which was landfilling sewage sludge. 

To complete our cost analysis, we needed the cost for small entities to transition from 

incinerating sewage sludge to landfilling it. It took a few weeks to obtain this information and 

complete the cost assessment for the proposed emission standards. 

47. As noted above, the Administrator signed the proposed emission standards for 

sewage sludge incinerators on September 30, 2010. We received a request for a public hearing, 

and that hearing was held on October 29, 2010. The comment period closed on November 29, 

2010, thirty days after the public hearing, as required by the CAA. 

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19 

48. To date, we have received over 80 individual comments on the proposed rule. 

Based on the comments we have reviewed to date, we do not currently intend to re-propose the 

rule. The Agency cannot, however, currently respond in full to all of the significant comments 

submitted on the proposed sewage sludge incinerators rule by January 16, 2011. 

49. Based on the comments reviewed to date and the information and data submitted, 

we estimate that we would need until July 15, 2011 to finalize the emission standards for sewage 

sludge incinerators. The additional time would enable the Agency to fully assess the new 

information submitted, including emissions and cost information, and to determine what, if any, 

changes to the proposed standards are needed. The additional time would also enable the 

Agency to develop responses to all significant comments received and to prepare fuller and more 

defensible responses to those comments, which would enhance the defensibility of the final 

standards. We therefore request that Paragraph 1(i) be modified to allow EPA to complete 

standards for one additional source category under section 112(c)(3) by July 15, 2011. 

 SO DECLARED: 

 /s/ PANAGIOTIS E. TSIRIGOTIS 

Dated: December 6, 2010

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ENCLOSURE B 

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IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

__________________________________________

) Case No. 1:01CV01537

SIERRA CLUB, ) and Consolidated Cases

)

Plaintiff, ) 

) Judge Paul L. Friedman

v. )

)

LISA P. JACKSON, Administrator, )

U.S. Environmental Protection Agency, )

)

Defendant. )

__________________________________________)

EPA’S REPLY MEMORANDUM IN SUPPORT OF 

MOTION TO AMEND ORDER OF MARCH 31, 2006

Defendant, Lisa P. Jackson, Administrator, United States Environmental Protection

Agency (“EPA”), has moved the Court to further amend Paragraphs 1(i) and 3 of the Order of

March 31, 2006 (“2006 Order”), as amended on September 20, 2010 (“September Amendment”),

to allow EPA additional time to complete its obligations. See EPA’s Corrected Memorandum in

Support of Motion to Amend Order of March 31, 2006 (Dec. 7, 2010) (“EPA Memo”). Plaintiff

Sierra Club has opposed this motion. Sierra Club’s Memorandum of Points and Authorities in

Opposition to Defendant’s Motion to Amend Order of March 31, 2006 (Dec. 24, 2010) (“SC

Opp.”). 

The Agency has worked diligently to complete its obligations under Paragraphs 1 and 3

of the 2006 Order. To date, EPA has established emission standards for 50 source categories –

48 pursuant to Paragraph 1 of the Court’s Order and two pursuant to Paragraph 3. Supplemental

Declaration of Panagiotis E. Tsirigotis ¶ 4 (Jan. 3, 2011) (“Supp. Decl.”) (Attached hereto). As

EPA has explained, the Agency needs additional time to complete the four rulemakings

necessary to fully discharge its obligations under the Order. Paragraphs 1(i) and 3 of the

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2

September Amendment require EPA to complete its obligations under section 112(c)(3) and

(k)(3), and (c)(6) of the Clean Air Act, 42 U.S.C. § 7412(c)(3) and (k)(3), and (c)(6), by January

16, 2011. EPA expects to satisfy its obligations under Paragraph 1(i) by promulgating emission

standards for sewage sludge incineration units (“SSI”) and certain area source boilers. EPA

Memo 3. The obligations under Paragraph 3 are expected to be satisfied by promulgating

standards for certain hazardous air pollutants emitted by major source boilers and certain area

source boilers and commercial and institutional solid waste incineration (“CISWI”) units. Id. 2. 

Based on its review to date of the over 4,800 individual comments received in response

to the proposed emission standards under section 112(c)(6), EPA’s preliminary assessment is

that the comments may materially affect important decisions relating to the level of the emission

standards at issue. Specifically, as EPA explained, the comments raise a number of complex and

significant issues, several of which could not have been previously anticipated. These issues

relate, for example, to source categorizations and the appropriate scope of coverage of the final

emission standards. As a result of these significant issues, the Office of Air and Radiation has

recommended to the Administrator certain changes to the major source boilers, area source

boilers and CISWI rules and has further recommended that the rules be re-proposed because the

recommended changes would change the direction from the proposals sufficiently to make

additional notice and comment advisable. Supp. Decl. ¶ 26.

Under these circumstances, the purpose of section 112(c)(6) and the public interest will

be best served if the Agency’s deadline in Paragraph 3 is extended from January 16, 2011, to

April 13, 2012, so that EPA can re-propose the rules for further public comment. Because the

standards for area source boilers are necessary to satisfy the requirements of Paragraph 1(i) as

well, that final deadline should also be extended to April 13, 2012. The Agency does not believe

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1 The Court also held that the Agency must demonstrate that it “has exercised ‘utmost

diligence’” to fulfill its obligations. 444 F. Supp. at 53 (internal citation omitted). Contrary to

Sierra Club’s assertions, the Agency has indeed acted with such diligence in meeting the

(continued...)

3

that it is necessary to re-propose the SSI standards, but it does need additional time (until July

15, 2011) to complete the final standards. 

Accordingly, EPA requests that the Court amend Paragraph 1(i) of the amended Order to

require EPA to promulgate standards for one additional area source category by July 15, 2011

and amend the final deadlines in Paragraphs 1 and 3 to allow EPA to complete its obligations by

April 13, 2012. EPA also requests that, if the Court should deny EPA time to re-propose the

standards for major source boilers and certain area source boilers and CISWI units, the deadline

for completing its obligations under Paragraph 3 should be extended until June 15, 2011. Even

without a re-proposal, EPA cannot complete the rules at issue by January 16, 2011. Finally,

EPA requests that the deadline in Paragraph 1(i) should be extended to July 15, 2011, so that

EPA can complete the SSI standards. 

ARGUMENT

I. THE PUBLIC INTEREST WILL BE BEST SERVED IF EPA IS GIVEN

SUFFICIENT ADDITIONAL TIME TO DEVELOP WORKABLE RULES THAT

WILL SURVIVE JUDICIAL REVIEW

The Agency’s goal is to issue final rules that meet the substantive requirements of CAA

sections 112 and 129, as well as the procedural requirements for rulemaking in CAA section

307(d), 42 U.S.C. § 7607(d). Rules that fall short of these requirements will not withstand

judicial review. Sierra Club maintains that the soundness of the rules is of no concern here; the

only goal is to get rules signed by January 16, 2011. SC Opp. 14-15. 

This Court previously held that, to secure an extension of a statutory deadline, the

Agency must demonstrate that it is impossible to meet the deadline.1 Sierra Club v. Johnson,

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1

(...continued)

requirements of the 2006 Order. See infra 15-16. 

4

444 F. Supp. 2d 46, 53 (D.D.C. 2006). However, even where Congress has established a

deadline for EPA to act, the courts, in developing remedies in deadline cases, have given

consideration to the amount of time needed to establish rules that will be workable and survive

judicial review. See id. at 58 quoting Sierra Club v. Thomas, 658 F. Supp. 165, 175 (N.D. Cal.

1987) (“Nevertheless, since the purpose of this order is to protect the public interest and not to

punish EPA, the Court would extend EPA’s time to compensate for its footdragging if it were

convinced that doing so was necessary for the promulgation of workable regulations.”). Absent

such consideration, the test of impossibility would be pro forma; it is difficult to imagine a

circumstance where an agency could not sign some sort of a flawed rule by any particular date. 

Promulgating a flawed rule does nothing, however, to advance the goals of Congress. 

Such an action can ultimately delay implementation of effective standards. As indicated in the

Supplemental Declaration of Mr. Tsirigotis, the Office of Air and Radiation has recommended to

the Administrator certain changes to the rules “that could significantly change the direction from

the proposals,” Supp. Decl. ¶ 26, and this recommendation makes clear that EPA is seeking to

avoid issuing flawed rules. In this case, the three air rules at issue, taken together, will set

emission standards for over 200,000 units in multiple different industries, and those standards

will affect State and municipality-owned institutions. Declaration of Panagiotis E. Tsirigotis ¶¶

26-28 (Dec. 6, 2010) (“Decl.”) (EPA Memo Exhibit 6). No one disputes the significance of the

rules from both a health and cost perspective. See EPA Memo 14; SC Opp. 5-6 (discussing

emissions and health impacts of emissions from industrial and commercial boilers). The issue

for resolution is whether the Agency should be required to issue final rules on January 16, 2011,

when the Agency has acknowledged that the significant and complex issues raised in the

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2 Sierra Club argues that Congress has established that rulemakings to promulgate MACT

standards should be completed in two years. SC Opp. 8-9. Sierra Club raised this same

argument in the summary judgment proceedings that culminated in the 2006 Order. EPA

responded to the argument in its Reply Memorandum of Points and Authorities in Support of

Defendant’s Cross-motion for Summary Judgment on Remedy (Oct. 8, 2005). The Court did not

find it necessary to reach Sierra Club's claim in deciding the summary judgment motions. For

this reason, EPA will not respond again, but will incorporate its prior response by reference.

5

comments may result in certain changes to the proposed rules that could result in interested

parties alleging in judicial review that the Agency did not provide meaningful notice and

opportunity to comment on these important rules and the Agency cannot currently respond to all

significant comments. See Supp. Decl. ¶ 27.

Sierra Club’s approach of insisting on immediate action on the standards, despite EPA’s

explanation of the remaining work to be done and the outstanding issues to be resolved is likely

to do nothing more than delay realization of the benefits, while increasing the costs.2

 Even

Sierra Club appears to recognize that promulgation of a flawed rule can, as a practical matter,

delay the actual implementation of emission standards. As Sierra Club notes, SC Opp. 3, EPA

promulgated standards for boilers in 2004. “National Emission Standards for Hazardous Air

Pollutants for Industrial, Commercial, and Institutional Boilers and Process Heaters,” 69 Fed.

Reg. 55,218 (Sept. 13, 2004). In 2007, the D.C. Circuit vacated these standards. Natural

Resources Def. Council v. EPA, 489 F.3d 1250, 1261-62 (D.C. Cir. 2007). This delay did not

benefit the public interest. 

In evaluating EPA’s claim for relief, the Court should carefully consider the time needed

for EPA to ensure that standards are not seriously flawed before final rules are issued. The

public interest will be best served by the promulgation of workable standards that meet the

statutory requirements and are based on a full and accurate assessment of all the data and

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3 To complete these rules, EPA will also have to take final action on the proposed rule

defining solid waste, which is necessary to define the universe of industrial, institutional, and

commercial boilers and process heaters that will be regulated as boilers under section 112 and

the universe that will be regulated as CISWI units under section 129. EPA Memo 11, 13 (citing 

“Identification of Non-Hazardous Secondary Materials That Are Solid Waste,” 75 Fed. Reg.

31,844 (June 4, 2010)) (“Non-Hazardous Solid Waste Rule”). 

6

information involved, even if that requires additional time to complete the standards for the over

200,000 units that will be subject to the rules once finalized. 

II. RE-PROPOSAL IS THE MOST EFFECTIVE MEANS OF DEALING WITH THE

UNANTICIPATED ISSUES RAISED IN THE COMMENTS IN RESPONSE TO

THE PROPOSED SECTION 112(c)(6) RULES 

A. Re-proposal Will Enable EPA to Resolve Many of the Issues Raised in

Response to the Proposed Standards.

EPA has requested an extension of 15 months (until April 13, 2012) to complete the

emission standards for certain hazardous air pollutants emitted by major source boilers and

certain area source boilers and CISWI units.3

 This would allow the Agency sufficient time to

propose revised standards and to secure additional comment from the public before taking final

action. See infra 9-10. The Agency has received over 4,800 individual comments on the

proposed section 112(c)(6) rules, and the comments with associated attachment total thousands

of pages. Supp. Decl. ¶ 16. Many comments contained new emissions data; critiques of EPA’s

existing data and analytical approaches; and objections to EPA’s method of categorizing sources. 

Id. ¶¶ 19, 21-22. Such input goes to the basic underpinnings of EPA’s calculations of emission

standards, which are premised on mathematical calculations based on data gathered from

existing sources. 

The standards at issue are referred to as “maximum achievable control technology” or

“MACT standards.” Under CAA section 112(d)(3)(A) and (B), MACT standards for existing

sources must be at least as stringent as the average emissions limitation achieved by the best

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7

performing 12 percent of existing sources in the category (for which the Administrator has

emissions information) or the best performing 5 sources for source categories with less than 30

sources. This level of minimum stringency is called the MACT floor. For new sources, MACT

standards must be at least as stringent as the control level achieved in practice by the best

controlled similar source (CAA section 112(d)(3)). EPA also must consider more stringent

“beyond the floor” control options. When considering beyond the floor options, EPA must

consider not only the maximum degree of reduction in emissions of HAP, but must take into

account costs, energy, and nonair environmental impacts when doing so. See Cement Kiln

Recycling Coal. v. EPA, 255 F.3d 855, 857-59 (D.C. Cir. 2001).

If, during the comment period on a proposed rule, commenters submit data from

additional sources or show, to EPA’s satisfaction, that the emissions information underlying the

floors is incorrect, EPA would revise its calculations of the MACT floor for the relevant source

category, which would make it necessary to reevaluate the beyond the floor control options. 

Such a reevaluation could also be necessary if commenters identify additional control options or

provide new information regarding the other factors that EPA must consider in evaluating the

beyond the floor control options. Finally, reevaluation of the floor and beyond the floor would

be necessary if EPA determined that it erred in any of its proposed subcategorization decisions. 

Thus, a change in data or analytical approach can require extensive recalculations and

change the final emission standards for the different subcategories ultimately defined. For the

112(c)(6) rules, the collection and analysis of data and the development of subcategories has

been more complicated than in most MACT rulemakings because of the diversity of sources

involved. Supp. Decl. ¶ 9. Most MACT standards affect primarily a single industry. Id. Many

diverse industries use the boilers, process heaters and CISWI units that must be addressed in

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4 The Intervenors have also provided examples of comments that they believe raise

substantial issues requiring significant changes to the proposed emission standards. Response by

Intervenors to EPA’s Motion to Amend Order of March 31, 2006 (Dec. 27, 2010). 

8

these rulemakings, including, for example, pulp and paper mills, refineries, chemical plants, steel

manufacturing processes, sugar production, wood furniture manufacturing, and food processing. 

In addition, they are used by non-industrial entities such as universities, churches, and

municipalities. Decl. ¶ 27; Supp. Decl. ¶¶ 9, 17. 

Mr. Tsirigotis’s Supplemental Declaration provides additional explanation concerning

the new information received during the comment period and how it will affect the Agency’s

conclusions in setting emission standards. The submissions included information challenging

the accuracy of the emissions inventories used by EPA in calculating the proposed standards,

including the Agency’s treatment of emissions that are at or close to the minimum level that can

be detected using EPA-approved test methods. Supp. Decl. ¶¶ 21-22. Another example of

significant new information provided in the comments concerns boilers and CISWI units burning

a combination of fuels, such as coal and biomass. Id. ¶ 21. These comments have given EPA a

better understanding of the facts pertaining to the use of combination fuels and raise questions as

to whether the Agency properly considered the emissions of boilers and CISWI units burning a

combination of fuels in setting the proposed MACT floors. As Mr. Tsirigotis notes in his

Supplemental Declaration, this new information has caused the Agency to re-evaluate its

proposed subcategorization scheme decision.4

 Id. 

As EPA previously explained, re-proposal is advisable in order to deal with the new data

and information received that may materially affect some important decisions relating to source

categorizations and coverage for the final emission standards. EPA Memo 18. Re-proposal will

ensure that the public, including Sierra Club and the regulated entities, will have an opportunity

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to comment on the data and new information and on changes made to the proposed standards. 

The additional public comment could improve the accuracy of the standards, which would

facilitate effective implementation. Furthermore, ensuring full public participation will

strengthen the rule for the purpose of judicial review by eliminating issues as to whether the final

rules can be considered “logical outgrowths” of the proposed standards. See EPA Memo 18-19. 

B. The Supplemental Tsirigotis Declaration Establishes That the Requested

Extension to April 13, 2012, Will Provide for an Expeditious Process for

Completing Re-proposal and Final Action on the Emission Standards. 

Mr. Tsirigotis has explained the steps necessary to prepare the re-proposal and take final

action on the rules. Supp. Decl. ¶¶ 28-29. By June 1, 2011, EPA would sign the notices of reproposal. Id. ¶ 28. To reach this point, EPA would have to (1) complete its review of the

comments to ensure that all issues have been considered; (2) identify alternative options for

proposal, and conduct additional analyses supporting each proposed option, including, floor,

beyond the floor, and cost analyses; (3) prepare the proposed rule documents, including the

preamble, regulatory text, and all technical support documents, including economic analyses;

and (4) concurrently complete EPA senior management and inter-agency review. Id. 

EPA would then allow an opportunity for a public hearing and a 60-day period for public

comment, which would commence when the notice was published in the Federal Register. Id. ¶

29. After the comment period closes, EPA will have to (1) review the comments; (2) assess the

data, correct any data issues, and re-run the MACT analyses; (3) prepare all final rule

documents, including the preamble, regulatory text, comment-response document, and all

technical support documents, including economic analyses; and (4) concurrently complete EPA

senior management and inter-agency review. EPA would then take final action on the emission

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standards needed to meet the requirements of Paragraphs 1(i) and 3 by April 13, 2012. Id. This

is an achievable, but very aggressive schedule for a re-proposal. See Decl. ¶ 38. 

C. Sierra Club’s Argument that Re-proposal Is Not Appropriate Lacks Merit.

In opposing the Agency’s request for sufficient time to re-propose the rules, Sierra Club

complains that EPA has neither made a definitive statement that it will re-propose the rules nor

identified the specific issues that will be reproposed. SC Opp. 14-15. Mr. Tsirigotis’

Supplemental Declaration provides additional information on the type of issues that the Agency

is confronting, but the final decisions must be made by the Administrator. As explained by Mr.

Tsirigotis: 

As explained in my prior declaration, there were a number of significant issues

raised in the comments, including, for example, the combination fuel issue

discussed above, and many of those issues directly impact the level of the

emission standards at issue. Decl. ¶ 34. In light of these significant issues, the

Office of Air and Radiation has recommended to the EPA Administrator that we

make certain changes to the major source boilers, area source boilers and CISWI

rules based on our analysis to date of the comments received. Id. ¶¶ 34-37. In

view of these recommended changes that could significantly change the direction

from the proposals, the Office of Air and Radiation has also recommended

re-proposal of the three rules. Id. In the weeks since EPA filed its “Motion to

Amend Order of March 31, 2006,” our ongoing review of the issues raised by

comments only reinforces that recommendation. 

Supp. Decl. ¶ 26. The fact that the process necessary for the Administrator to make a final

decision on the Air Office’s recommendation has not been completed does not undermine the

seriousness of the difficulties caused by the submission of the information received in response

to the proposed rules. EPA could not delay the current motion to permit a final decision by the

Administrator. Once EPA determined that it needed additional time to complete the standards, it

came to the Court seeking relief. Supp. Decl. ¶ 24. Given the current deadline of January 16,

2011, it was not in a position to delay. 

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Sierra Club also contends that the CAA’s process for reconsideration of rules offers an

effective alternative to re-proposal. SC Opp. 15-16. Section 307(d)(7)(B) provides that a party

may petition EPA to reconsider a rule based on objections that arise after the close of the

comment period. 42 U.S.C. § 7607(d)(7)(B). EPA has recognized that this provision would

provide an avenue for addressing some of the complications that have developed as these

rulemakings have proceeded. EPA Memo 20-21. In these particular circumstances, however,

reconsideration is not as effective as a re-proposal in addressing the problems presented. There

are four interrelated rules at issue (including the Non-Hazardous Solid Waste Rule); EPA has

identified significant issues concerning the standards proposed in April 2010; and the final

standards will apply to a large and diverse group of entities. Re-proposal is the best method of

ensuring that the final standards will be suitable for immediate implementation. EPA Memo 20-

21. 

III. IN THE ALTERNATIVE, EPA SHOULD BE ALLOWED UNTIL JUNE 15, 2011,

TO COMPLETE THE SECTION 112(c)(6) RULES SO THAT THE AGENCY

CAN RESPOND TO THE COMMENTS AND COMPLETE THE RULES

A. EPA Requires The Additional Time to Comply with the Requirements of

CAA Section 307(d) for Rulemaking.

Section 307(d)(6)(B) of the CAA requires that EPA must respond to the significant

public comments before promulgating a final rule. 42 U.S.C. § 7607(d)(6)(B) (“The

promulgated rule shall also be accompanied by a response to each of the significant comments,

criticisms, and new data submitted in written or oral presentations during the comment period.”). 

Failure to meet this requirement is grounds for a remand. See Appalachian Power Co. v. EPA,

249 F.3d 1032, 1051 (D.C. 2001) (“While we generally uphold the EPA's authority to make

emission projections and set emission limitations accordingly, we do so only where the EPA

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5 When new data are received, those data are subjected to a quality review to determine

whether they are acceptable for use. Supp. Decl. ¶ 24 (describing data quality review). 

6 Sierra Club improperly seeks to minimize the importance of Mr. Tsirigotis’s statement by

drawing distinctions between language in EPA’s memorandum of law and the Declaration. SC

Opp. 10. To the extent that such differences exist, with respect to factual issues, the Declaration

is dispositive. Statements by counsel in a brief are not evidence. Wood ex rel. United States v.

Am. Inst. in Taiwan, 286 F.3d 526, 534 (D.C. Cir. 2002). 

12

adequately responded to comments and explained the basis for its decisions.”). Depending on

the nature of the comment, the Agency’s response may require changes to the rule, as well as a

written response. The failure to make such changes, where warranted, could lead to a judicial

determination that the emission standards are arbitrary and capricious.5

As EPA has explained, the Agency has received over 4,800 individual comments, which,

in total, amount to thousands of pages of information to review. That information includes legal

and technical comments, new data, data corrections, and cost information, much of which is

directly relevant to the emission standards-setting process and could directly affect the outcome

of the final rules. See Supp. Decl. ¶ 16-25. In his initial Declaration, Mr. Tsirigotis stated: “the

Agency cannot currently respond in full to all of the significant comments submitted on the

major source, area source, and CISWI proposed rules by January 16, 2011.” Decl. ¶ 40. This is

a statement of fact by the Director of the office responsible for the rules at issue here.6

 See id. ¶

4. In his Supplemental Declaration, Mr. Tsirigotis provides a more detailed appraisal that

includes the Agency’s efforts in the several weeks since his initial declaration. 

Based on recent discussions with my staff, I have concluded that we now cannot

respond to all of the significant comments submitted on the major source boilers,

area source boilers, and CISWI rules by January 16, 2011. In addition, as to those

comments that we have not yet had an opportunity to consider fully, we will not

be able to determine by January 16, 2011, whether some of these comments

warrant additional changes to the floor, variability, beyond the floor, or cost

analyses. As to the significant comments we have considered, we are not in a

position to provide complete responses to those comments by January 16, 2011.

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Id. ¶ 25. Thus, if EPA signs final emission standards on January 16, 2011, EPA will not have

met its obligation under section 307(d)(6)(B) of the CAA to respond to all significant comments. 

EPA will also not have considered all of the comments for the purpose of determining whether

they warrant further modifications to the emission standards or whether they require revisions to

any of the documentation and analyses supporting the final standards, including the cost

analyses. Finally, EPA will not have completed the response to comments document. See Supp.

Decl. ¶ 25. 

This Court has expressly recognized that it is not appropriate to require an agency to

meet a schedule that does not “afford any reasonable possibility of compliance.” See Sierra

Club v. Johnson, 444 F. Supp. 2d at 58 (emphasis added) (citing Natural Resources Def. Council

v. New York, 700 F. Supp. 173, 181 (S.D.N.Y. 1988) (recognizing “the necessity of dealing with

the issues on a pragmatic basis,” court allowed EPA administrator “a reasonable period of time”

to comply with mandatory statutory duty). As demonstrated above, the Agency needs additional

time to complete its section 112(c)(6) obligations. 

Sierra Club suggests that the Agency’s current inability to meet the deadline is

immaterial and that the focus should instead be on the Agency’s past conduct. SC Opp. 7-8. 

Contrary to Sierra Club’s assertions, and as demonstrated below, the Agency has acted with

utmost diligence since the issuance of the Court’s March 2006 Order. See infra at 15-16.

Moreover, judicial discretion should consider the concrete circumstances as they exist at the time

the Agency requests additional time. See Natural Resources Def. Council, Inc. v. Train, 510

F.2d 692, 713 n.106 (D.C. Cir. 1974) (quoting System Fed’n No. 91, Ry. Employees v. Wright,

364 U.S. 642, 647 (1961) (“There is also no dispute but that a sound judicial discretion may call

for the modification of the terms of an injunctive decree if the circumstances . . . have changed,

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or new ones have since arisen.”) and United States v. Swift & Co., 286 U.S. 106, 114 (1932) (“A

continuing decree of injunction directed to events to come is subject always to adaptation as

events may shape the need.”)). Otherwise, the Court’s inquiry would be restricted to considering

the Agency’s past decisions, with the benefit of hind-sight, as opposed to addressing the

remaining work actually required to complete the rules at issue. The Court has rejected this

approach. See Sierra Club v. Johnson, 444 F. Supp.2d at 58. 

As shown below, EPA has demonstrated that it has employed utmost diligence in

meeting the requirements of the Court’s March 2006 Order, and the issue for resolution now is

whether EPA has met its burden of demonstrating that it needs additional time to complete the

final rules at issue. Mr. Tsirigotis’ Supplemental Declaration confirms that the Agency cannot

promulgate the standards needed to fulfill its obligations under Paragraph (3) by January 16,

2011. EPA therefore respectfully requests that, even if the Court declines to provide the time

necessary for re-proposal of the rules, the deadline in Paragraph (3) of the Court’s Order be

extended from January 16, 2011 to June 15, 2011. 

B. EPA Has Proceeded Diligently To Meet its Obligations Under the 2006

Order.

 Since the Court’s issuance of the March 31, 2006 Order, EPA has worked diligently and

accomplished a significant amount of work pursuant to the Court’s March 31, 2006 Order. 

Sierra Club argues to the contrary, however, making a blanket assertion that the Agency

“adopted a rulemaking approach involving extensive discretionary delay.” SC Opp. at 9. This

assertion lacks foundation. First, Sierra Club wholly ignores that EPA has established emission

standards for over 50 different source categories – 48 pursuant to Paragraph 1 and two pursuant

to Paragraph 3 of the Order. Supp. Decl. ¶ 4. In addition, EPA has issued control techniques

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7 Sierra Club mistakenly suggests that EPA is relying on the consequences of these

decisions as grounds for its current motion. SC Opp. 4 n.5. EPA expressly stated that the

previous extensions had provided most of the time needed to respond to these decisions, but that

it was discussing the cases because they were relevant background information so that the Court

could understand the delay in proposing the emission standards at issue. EPA Memo 10 n.5. 

15

guidelines and/or established regulations pursuant to section 183(e) of the Act, as required by

Paragraph 4 of the Order and has completed its obligations in this regard. Finally, EPA has

completed its obligations under the Consent Decree entered by the Court in 2003. 

Moreover, even with respect to the pending rulemakings that form the basis of this

motion, the Agency has proceeded with great diligence. As explained previously, EPA had to

account for unfavorable decisions by the D.C. Circuit, particularly the vacatur of the Brick

MACT rule, the Boilers MACT rule, and the CISWI Definitions rule, which greatly increased

the scope of work required for the Agency to establish MACT standards for the sources at issue

pursuant to CAA section 112 and 129.7

 Supp. Decl. ¶ 10. Among other things, the Agency

needed information on the specific materials burned by the sources at issue. The Agency also

needed emissions data and information on the sources at issue so that it could evaluate which

sources were the best performing sources and would thus form the basis for the MACT floor

calculation. In this regard, EPA conducted a comprehensive information collection request

(“ICR”). The first phase of the ICR required the submission of existing information regarding

more than 3,000 major industrial, commercial and institutional boilers and process heaters and

CISWI facilities. Decl. ¶ 18; Supp. Decl. ¶ 9. The second phase required about 300 facilities to

conduct tests to evaluate their emissions of hazardous air pollutants and certain other pollutants,

such as particulate matter and carbon monoxide. Decl. ¶ 20-21; Supp. Decl. ¶ 10. 

Finally, after obtaining the necessary information, on April 29, 2010, the EPA

Administrator signed four interrelated proposed rules, and those rules were published in the

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8 As explained previously, because EPA needed information from ten or more persons,

ICR was subject to the requirements of the PRA, which imposes specific requirements for public

participation. The PRA also requires that OMB review and approve information collection

requests to ten or more persons. See EPA Memo 12. 

16

Federal Register on June 4, 2010. EPA Memo 13-14. EPA held three public hearings and

allowed the public until August 23, 2010, to comment on these rules. Id. In response, EPA

received over 4,800 individual comments. Id. Since that time, EPA has been engaged in the

process of analyzing the comments, reviewing and assessing the quality of new data, evaluating

alleged data errors in EPA’s existing emissions inventories, reevaluating calculations, and

working on developing written responses to the comments. Supp. Decl. ¶¶ 21-23. 

Thus, contrary to Sierra Club’s claim, EPA has been proceeding diligently to meet all of

its obligations under the Order. The fact that EPA is unable to issue the remaining standards at

issue does not connote a lack of diligence; rather it reflects that unexpected difficulties and

issues were encountered. 

C. Sierra Club’s Claim that EPA Engaged in Discretionary Delay Lacks Merit.

The sole support Sierra Club provides for its assertion that the Agency engaged in

“extensive discretionary delay” is that the Agency “chose to collect” information from the

sources at issue in two phases and that EPA could have asked for a waiver of the relevant

requirements of the Paperwork Reduction Act, 44 U.S.C. § 3501-21.8

 SC Opp. at 9. These

assertions are meritless. 

As an initial point, Sierra Club’s attack on the two-phased ICR comes too late. As of

December 2007, Sierra Club was fully aware of the two-phased ICR approach, as EPA, pursuant

to the PRA, issued the first Federal Register notice, explaining, in detail, the Agency’s proposed

information collection. Sierra Club had a full and fair opportunity to comment on that notice and

the second notice the Agency issued in May 2008. Decl. ¶ 16. Sierra Club was also among the

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entities that EPA consulted regarding the drafts of the second phase of the ICR. Supp. Decl. ¶

12. Thus, Sierra Club was fully aware of the Agency’s approach to information gathering when

it agreed to extensions of the deadline in Paragraph 3 in 2008 and 2009. Having consented to the

prior extensions, it is now too late for Sierra Club to complain that the Agency’s action was

improper. 

More importantly, the Agency did not engage in “discretionary delay” in collecting the

information needed for these rules. EPA’s decision to proceed in two phases was the appropriate

approach in the circumstances. The information from the first phase, which included the

identification of the types of material burned in the different units, enabled EPA to determine

which units should be tested and which pollutants should be addressed for each unit. Supp.

Decl. ¶ 10. Thus, by proceeding in two steps, EPA was able to focus the testing on obtaining the

information that it needed to address specific gaps in the data. Id. 

Sierra Club’s complaint that EPA should have asked OMB to waive the requirements of

the PRA is equally unfounded. See SC Opp. 9 & n.7 (citing 44 U.S.C. § 3507(j)(2)). The PRA

provides that the head of an agency may request OMB to authorize an ICR where “the use of

normal clearance procedures is reasonably likely to cause a court-ordered deadline to be

missed.” 44 U.S.C. § 3507(j)(1)(B)(iii). If authorized, the collection may be conducted for no

more than 180 days after OMB received the request. Id. § 3507(j)(2). Thus, the process referred

by Sierra Club is not actually a waiver of the PRA, but a temporary authority to proceed without

the normal process. See 40 C.F.R. § 1320.13 (“Emergency Processing”).

EPA would have had to request emergency processing in the fall of 2007, when it was

preparing the ICR. Supp. Decl. ¶ 14. At that point, EPA could not have reasonably anticipated

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9 Up to six months of delay was caused by events outside the control of either EPA or the

sources. Specifically, there was a two month delay in obtaining Phase I information due to

several facilities’ operations being impacted by hurricanes, and there was up to a four month

delay in obtaining the Phase II information due to a shortage of testing contractors and

analytical laboratories qualified to perform the required testing. Weather-related conditions also

caused some delays in the submission of the Phase II data. Supp. Decl. ¶ 13. 

10 Moreover, the public process significantly improved the draft information collection

request. EPA received input from interested parties, including Sierra Club, regarding the types

of information that should be collected and the testing that should be required, which resulted in

a better data set for setting the emission standards. Supp. Decl. ¶ 8. Moreover, the Agency was

able to reduce the total estimated cost of the ICR’s testing phase from almost $38 million to

about $19 million. Id.

18

how prolonged the ICR process would become.9 Id. Given the public interest in the rules and

the number and variety of facilities that would be regulated, it was important to secure public

input on the ICR to ensure that the necessary information would be obtained. Finally, the

reasonableness of one’s past actions cannot be judged against today’s knowledge. At the time

EPA embarked on the information collection process, it thought it was acting appropriately by

following the requirements of the Paperwork Reduction Act and providing affected sources the

opportunity to provide input to the Agency on the draft ICR. It also thought it had sufficient

time to do so.10 Id. ¶ 15. 

D. EPA Has Demonstrated that It Requires Until June 15, 2011, to Complete

the Emission Standards.

In response to Sierra Club’s claim that EPA did not provide a sufficient explanation as to

why the Agency required an additional five months to complete these standards, Mr. Tsirigotis

has provided additional information as to the necessary tasks to be finished and the time

required. Supp. Decl. ¶ 30. EPA must complete its review of the comments to ensure that the

final rules are supported by the administrative record and adequately account for all the new

information and data received. The Agency must also verify the accuracy of its emissions data

base by confirming that it has resolved the allegations of inaccuracies in the comments. For

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example, Mr. Tsirigotis explained that, as a result of the comments, EPA has identified a key

piece of information that is relevant to assessing carbon monoxide data. If the Agency had

additional time, it could confirm certain information as to the instrument calibration range used

during those emissions tests. Id. Finally, EPA must prepare all final rule documents, including

the preamble, regulatory text, comment-response document, and all technical support documents,

including economic analyses; and concurrently obtain senior EPA management and inter-agency

review. Id. When this is all complete, the Administrator will be able to sign the final rules. 

Sierra Club argues that the Agency does not need additional time to finalize the emission

standards at issue because EPA has, in the past, in other rulemakings responded to a substantial

number of comments - more than 4,800 - in a four to five month period. SC Opp. 12. Sierra

Club wholly ignores that there can be significant variations in the complexities and analyses

required for different rules. Contrary to Sierra Club's assertion, there is no single, defined

time-period for responding to comments received on a rule. This period varies significantly

depending on the nature of the comments received, the number and complexity of issues raised

in the proposed rule, and the amount of new information and data received in response to

comments.

The rules on which Sierra Club relies for the proposition that the Agency can complete

responses to comments in four to five months involved completely separate issues than what are

presented by the rules at issue here. For example, Sierra Club points to the fact that the

Agency responded to comments on the Greenhouse Gas Endangerment final rule in a matter of

five and a half months between the close of the comment period and promulgation. SC Opp. at

12. The Greenhouse Gas Endangerment final rule found that greenhouse gas emissions from

motor vehicles contribute to greenhouse gas pollution that endangers public health and welfare. 

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20

Significantly, Sierra Club fails to mention that EPA had issued an Advanced Notice of Proposed

Rulemaking (“ANPR”) one year prior to issuing the Greenhouse Gas Endangerment proposal. 

As a result the Agency had been reviewing the central comments on endangerment since

November 2008 when the comment period on the ANPR closed. Sierra Club also cites the

Agency's Tailoring final rule and the 2008 NAAQS. These rules involved very different

decisions. The establishment of a MACT standard is calculated based on an extensive body of

factual information. Every bit of data can be relevant to the outcome, and failure to properly

consider data can render the final rule legally vulnerable, as has happened in prior regulations. 

The data and information that the Agency received on the major source boilers, area source

boilers and CISWI rules was of such a magnitude and raised such complex and significant

issues, that the Agency could not respond to the over 4,800 comments (and thousands of pages

of information submitted), in four and a half months, which is the time period from the close of

the comment period to the current court-ordered deadline.

IV. AN EXTENSION UNTIL JULY 15, 2011, IS NECESSARY FOR EPA TO

COMPLETE ITS OBLIGATIONS UNDER SECTION 112(c)(3) AND (k)(3)

To satisfy its obligations under section 112(c)(3) and (k)(3), EPA must establish emission

standards for area source boilers and SSI units. The area source boilers standards are also

needed to complete the Agency’s obligations under section 112(c)(6) and will be completed in

accord with the schedule discussed above.

EPA requires an additional six months to complete emission standards for SSI units.

Supp. Decl. ¶¶ 31-34. At the time EPA filed the instant motion, the comment period for the SSI

standards had been closed for only a week. Id. ¶ 31. Mr. Tsirigotis and his staff have now been

able to assess some of the comments (which, including attachments, total over 1600 pages) and

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have identified a number of central issues that must be addressed. Id. ¶¶ 32-33. These include

claims that EPA failed to properly consider the impact of sludge content on emissions in

designating the best performers and calculating the MACT floors; additional information on

sludge content; information allegedly contradicting EPA’s estimates for facility emissions; and

new information regarding the costs of emission controls and the effectiveness of control

devices. Id. ¶ 33. 

Mr. Tsirigotis has stated that “EPA cannot respond to all of the significant comments

submitted on the proposed [SSI] rule by January 16, 2011.” Supp. Decl. ¶ 32. In order that this

rulemaking can be completed, EPA must fully review the comments and, on some issues, contact

commenters regarding the data and information they submitted related to emissions because it

appears that the submitted information does not include certain information the Agency needs to

evaluate the utility of that new information in the standard-setting process. Id. ¶ 34. EPA must

also make any appropriate revisions to the proposed standards, and the necessary analyses of

costs and other impacts. Id. In particular, EPA must analyze information regarding the

variability of sludge content, determine whether that analysis warrants any revisions to the

variability incorporated into the proposed standards, and calculate revised MACT floors, as

appropriate. Id. ¶¶ 32-33. If revisions to the floor are made, EPA would then re-evaluate the

beyond the floor analysis and the regulatory impact analysis to reflect any revisions to the

standards, including the analysis of costs and benefits of the regulation. Id. Finally, EPA must

prepare all final rule documents, including the preamble, regulatory text, comment-response

document, and all technical support documents, including economic analyses; and concurrently

obtain EPA senior management and inter-agency review. Id. ¶ 34. When this is all complete,

the Administrator will be able to sign the final rule on July 15, 2011. Id. 

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CONCLUSION

For the reasons above and in EPA’s opening brief, the Court should amend Paragraph

1(i) to require EPA to promulgate standards for one additional area source category by July 15,

2011. The final deadlines in Paragraphs 1 and 3 of the Order of September 20, 2010, should be

amended to allow EPA to complete its obligations by April 13, 2012. 

Respectfully submitted, 

IGNACIA S. MORENO

Assistant Attorney General

Environment and Natural

 Resources Division

/s/ EILEEN T. McDONOUGH

Environmental Defense Section

U.S. Department of Justice

P.O. Box 23986

Washington, D.C. 20026-3986

(202) 514-3126

Of Counsel:

Wendy Blake

Air and Radiation Law Office

Office of General Counsel

U.S. Environmental Protection Agency

1200 Pennsylvania Ave., N.W.

Washington, D.C. 20460

 

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1 

UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF COLUMBIA 

 

__________________________________________ 

 ) 

SIERRA CLUB, ) 

 ) 

Plaintiff, ) Case No. 1:01CV01537 (PLF) 

 ) and Consolidated Cases 

v. ) 

) 

LISA JACKSON, in her official capacity ) 

as Administrator, United States ) 

Environmental Protection Agency, ) 

 ) 

 Defendant. ) 

__________________________________________) 

SUPPLEMENTAL DECLARATION OF PANAGIOTIS E. TSIRIGOTIS 

I, Panagiotis E. Tsirigotis, under penalty of perjury, affirm and declare that the following 

statements are true and correct to the best of my knowledge and belief and are based on my own 

personal knowledge or on information contained in the records of the United States 

Environmental Protection Agency (EPA) or supplied to me by EPA employees under my 

supervision. 

1. I am the Director of the Sector Policies and Programs Division (SPPD) within the 

Office of Air Quality Planning and Standards (OAQPS), Office of Air and Radiation (OAR) at 

EPA, a position I have held since February 6, 2006. SPPD is the division within OAQPS that 

has responsibility for, among other things, developing regulations under sections 112 and 129 of 

the Clean Air Act (CAA), the national emission standards for hazardous air pollutants 

(NESHAP) program and the solid waste combustion program, respectively. 

2. In my current capacity as Director of SPPD, I am responsible for overseeing 

EPA’s promulgation of significant regulations related to the NESHAP and solid waste 

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2 

combustion programs. In this capacity, I am familiar with the process and time periods required 

for developing and promulgating major EPA regulations under the CAA. 

3. On December 6, 2010, I signed a declaration in support of EPA’s “Motion to 

Amend Order of March 31, 2006.” This supplemental declaration provides further support for 

that motion. 

4. On December 16, 2010, consistent with Paragraph 3 of the Court’s Order, the 

EPA Administrator signed a final rule, entitled: “National Emission Standards for Hazardous 

Air Pollutants: Gold Mine Ore Processing and Production Area Source Category; and Addition 

to Source Category List for Standards.” Thus, to date, under the Court’s Order, EPA has issued 

final emission standards for a total of 50 source categories, 48 of which have been issued under 

Paragraph 1(i) and two of which have been issued under Paragraph 3. See Declaration of 

Panagiotis E. Tsirigotis, dated December 6, 2010 (“Decl.”) ¶¶ 9-10. In issuing these rules, EPA 

has followed the requirements of CAA section 307(d), which, among other things, requires the 

Agency to provide an opportunity for public comment and a hearing on the proposed standards, 

and to leave the rulemaking record open for 30 days after any such hearing. 

5. Below, I first provide some additional background concerning the information 

collection request that the Agency conducted with respect to major industrial, commercial and 

institutional boilers and process heaters (“major source boilers”) and commercial and industrial 

solid waste incinerators (“CISWI units”). The remainder of the declaration is divided into two 

parts. The first part provides additional information concerning the Agency’s need for more time 

to complete emission standards for major source boilers, area source industrial, commercial and 

institutional boilers (“area source boilers”), and CISWI units under Paragraph 3 of the Court’s 

Order, and to complete standards for area source boilers under Paragraph 1(i). See Decl. ¶ 11. 

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The second part addresses the Agency’s need for additional time to complete emission standards 

for sewage sludge incinerators under Paragraph 1(i) of the Court’s Order. 

Additional Information Related to the Boilers/CISWI Information Collection Request

6. In my prior declaration, I explained that following the issuance of Sierra Club v. 

EPA, 479 F. 3d 875, 882-83 (D.C. Cir. 2007) (the “Brick MACT decision”), Natural Resources 

Defense Council v. EPA, 489 F. 3d 1250, 1257-61 (D.C. Cir. 2007) (the “Boiler MACT 

decision”), and Natural Resources Defense Council v. EPA, 489 F. 3d 1364 (D.C. Cir. 2007) (the 

“Plywood MACT decision”), the Agency determined that it needed additional information and 

data from major source boilers and CISWI units in order for the Agency to set defensible MACT 

emission standards pursuant to CAA section 112(d) and section 129(a)(1)(D). See Decl. ¶16. I 

also described in my prior declaration the information collection request process that the Agency 

followed in obtaining the data and information from major source boilers and CISWI units. Id.

¶¶ 16-21. 

7. Following the issuance of the Brick MACT, Boiler MACT, and Plywood MACT 

decisions, EPA determined that it needed additional time to meet the requirements of Paragraphs 

1(i) and 3 of the Court’s March 31, 2006 Order. Id. ¶ 16. As such, the Agency filed unopposed 

motions to extend the deadlines in Paragraphs 1(i) and 3. Id. ¶¶ 4-6. At the time EPA filed the 

motion resulting in the Court’s November 2008 Order, it thought the revised deadline of July 15, 

2010 (which would apply if EPA proposed certain rules by specific dates), afforded the Agency 

sufficient time to obtain information from the affected sources consistent with the requirements 

of the Paperwork Reduction Act, see Decl. ¶¶ 16-22, to process that information, and to finalize 

the emission standards at issue. 

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 8. As explained in my prior declaration, the Agency, as required by regulation, 

provided 90 days for the public to comment on all aspects of the Agency’s proposed information 

collection request, including, but not limited to, the format of that request and the type of 

information requested. See id. ¶ 16. This public comment process provided critical information, 

and as a result the Agency made a number of changes to the information collection request, 

including changes that significantly improved the questionnaire and testing requirements. For 

example, as a result of comments received on the draft information collection request, we revised 

questions related to the design of the units, the materials combusted, test methods, and other 

issues. Among other things, the Agency was able to reduce the total estimated cost of the testing 

phase of the information collection request from almost $38 million to about $19 million. 

 9. Preparing the information collection request was challenging given that the 

request sought information from over 3,000 major source boilers and CISWI facilities. Id. ¶ 18. 

Significantly, these boilers, process heaters and CISWI units represent a broad spectrum of 

different industries, including, for example, pulp and paper mills, refineries, chemical plants, 

steel manufacturing processes, sugar production, wood furniture manufacturing, and food 

processing. By contrast, other section 112 and 129 source categories are not so diverse. Rather, 

they generally affect a single industry. The sources at issue here affect multiple industries 

because multiple industries use combustion devices for different purposes and the combustion 

devices combust different materials. Universities and municipalities are also impacted. See also 

Decl. ¶ 27. 

 10. As explained in my prior declaration, the information collection request consisted 

of two phases. See id. ¶ 17. The first phase (“Phase I”) of the request required the submission of 

existing information, and the second phase (“Phase II”) required certain facilities to conduct a 

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series of stack tests to measure their emissions of hazardous air pollutants (“HAP”) and certain 

other pollutants, such as particulate matter and carbon monoxide. Id. The primary purpose of 

Phase II was to fill data gaps identified from the Phase I assessment. In addition, as the result of 

Phase I, we received important information on the type of materials burned by each unit. This 

information, in turn, was critical, as it helped the Agency determine which units to test and 

whether to require such units to test solely for HAP, regulated under section 112 of the CAA, or 

to test for the nine pollutants identified in section 129(a)(4) of the CAA, which include both 

HAP and non-HAP. 

11. When OMB approved Phase I of the information collection request, it asked EPA 

to provide, following submission of the Phase I information, a proposed list of facilities for 

testing and the specific testing that would be required. OMB did not approve Phase II of the 

information collection request until it had reviewed the Agency’s summary of the data submitted 

in response to Phase I and EPA’s proposed list of facilities for testing. See Id. ¶¶ 18, 20-21 

12. Prior to obtaining OMB approval of Phase II of the information collection 

request, EPA worked with affected stakeholders, including industry representatives and Sierra 

Club, concerning the content of the draft Phase II testing request. 

 13. As explained in my prior declaration, there were several unanticipated delays 

once the information collection request was sent to the affected facilities, and these delays were 

beyond the Agency’s and the affected sources’ control. See Decl. ¶¶ 19, 22 (noting two month 

delay in obtaining Phase I information due to several facilities’ operations impacted by 

Hurricanes Gustav and Ike, and up to four month delay in obtaining the Phase II information due 

to lack of available testing contractors and analytical laboratories, as well as weather related 

issues that affected certain facilities’ ability to complete the required testing). Thus, we had up 

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to a six month delay in obtaining the required information, and that delay affected our ability to 

meet the July 15, 2010 deadline identified in the November 2008 order. Id.

 14. Although the Agency could have asked OMB to waive the 3 months of public 

participation requirements of the Paperwork Reduction Act for this particular information 

collection request, it did not. In my experience, requests to waive the requirements of the 

Paperwork Reduction Act pursuant to 42 U.S.C. section 3507(j)(1) are rarely granted. EPA 

would have had to make this request in the fall of 2007 when it was preparing the information 

collection request. At that point, EPA could not have reasonably expected how prolonged the 

process would become. Even assuming that we could have made the demonstration required by 

42 U.S.C. section 3507(j)(1) and obtained a waiver from OMB, that would not have prevented 

the delays described above that occurred once the information collection request was sent to 

industry, which were beyond EPA’s and the sources’ control. See Decl. ¶¶ 19, 22 

15. At the time EPA embarked on its information collection process, it thought it was 

acting appropriately by following the requirements of the Paperwork Reduction Act and 

affording affected sources, which represent a broad variety of industries, and other stakeholders 

the opportunity to provide significant input to the Agency on how best to obtain the information 

needed to set the required emission standards under sections 112 and 129 of the CAA. 

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Need for Additional Time to Establish Standards: Major Source Boilers, Area Source 

Boilers, and CISWI Units 

16. The comments that EPA received on the proposed major source boilers, area 

source boilers, and CISWI rules were substantial. See id. ¶¶ 32, 34. These comments include 

not only legal and technical comments, but also new data, data corrections, and cost information 

which could materially affect the outcome of the rulemaking. The over 4,800 individual 

comments and associated attachments received on these three rules total thousands of pages. 

One commenter submitted comments that totaled almost 1,000 pages. In addition, EPA received 

significant data on certain pollutants for certain types of units. 

17. The volume of comments received on these three air rules far exceeds that which 

we typically receive in a rulemaking setting section 112 or 129 emission standards for a source 

category. Id. ¶ 32. As noted above, major and area source boilers and CISWI units exist in 

multiple different industries and thus multiple industries are affected by these rules. See Id. ¶¶ 

26-27, 37 (proposed major and area source boilers rules together cover almost 200,000 boilers). 

18. It is important to understand how the comments, data, data correction information, 

and cost information factor into the standard setting process under sections 112 and 129. The 

process is not a simple one. For existing major sources, under CAA section 112(d)(2), EPA 

must set emission standards that require the maximum degree of reduction in emissions of HAP 

that EPA concludes is achievable based on a consideration of certain statutory factors. These are 

referred to as “maximum achievable control technology” or “MACT” standards. Setting a 

MACT standard is a complex, multi-step process. The first step is to set the MACT floor. For 

new sources, the MACT floor cannot be less stringent than the emission control that is achieved 

in practice by the best controlled similar source. The MACT floor for existing sources can be 

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less stringent than standards for new sources, but cannot be less stringent than the average 

emission limitation achieved by the best-performing 12 percent of existing sources (for which 

the Administrator has emissions information) in the category or subcategory or the best 

performing 5 sources for source categories or subcategories with less than 30 sources (CAA 

section 112(d)(3)(A) and (B)). In setting floors, EPA accounts for sources’ operating variability. 

The second step is to consider more stringent “beyond-the-floor” control options. When 

considering beyond-the-floor options, EPA must consider not only the maximum degree of 

reduction in emissions of HAP, but must take into account costs, energy, and nonair 

environmental impacts when doing so. This process requires the review and assimilation of a 

substantial amount of data and information. 

19. The significant new emissions data received during the comment period, the 

various submissions identifying allegedly incorrect data in EPA’s emissions inventories, and the 

information on statistical methodologies for assessing variability are all directly relevant to the 

floor-setting process. EPA’s proposed subcategorization scheme is also directly relevant to the 

floor analysis. Where, as here, the Agency has received substantial information directly relevant 

to the floors, it must re-evaluate whether there are beyond the floor control options, which would 

tighten the standard further, if appropriate, considering cost and other factors. The substantial 

amount of cost information that the Agency received in response to the proposed rules is also 

relevant to the beyond the floor analysis. 

20. Finally, the broad diversity of industries (e.g.,wood products, petroleum 

refineries, chemical manufacturing, food manufacturing) and other entities (e.g., universities, 

prisons, military bases) affected by the proposed rules at issue complicates standard setting. For 

example, a wood manufacturing facility may use a boiler to generate steam for various processes 

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and electricity for sale to the grid, whereas a petroleum refinery may use a boiler to heat 

carefully integrated petrochemical processes or to control organic HAP emissions from a 

petrochemical process, and a university may use a boiler to provide heat for buildings. The 

different end-uses of the boiler can affect boiler efficiencies and load swings, which can impact 

the emissions of the boilers. The same is true for solid waste combustion units. 

21. Once the comment period closed, we immediately began reviewing the comments 

and other information, including the data.1

 These comments presented complex and significant 

issues, several of which could not have been previously anticipated, and those issues required 

additional review and discussion within the Agency. Decl. ¶¶ 34-35. For example, several 

commenters attacked the proposed MACT floors, asserting that even the best performing boilers 

and CISWI units burning a combination of fuels (such as coal and biomass), would not be able to 

meet the proposed numerical limits. The commenters asserted that the performance of units 

burning combinations of fuels was not adequately considered in the development of the floors. 

This is one example of an issue that I alluded to in my prior declaration where, as the result of 

comments, we have a different and better understanding of the facts and complexities associated 

with the emissions of boilers and CISWI units that burn combination fuels. These comments 

also relate to the Agency’s proposed subcategorization scheme. The kind of information we 

obtained concerning combination boilers through the comment process has required us to reevaluate the proposed subcategorization scheme, and a different subcategorization decision could 

significantly change the proposed emission limits. Id. ¶¶ 34-37. 

22. During our review, we also found many comments that questioned certain data 

included in EPA’s emission inventories, and much of that data served as the basis for the 

 

1

 We did commence review of the comments submitted prior to the close of the comment period as those comments 

were submitted to the Agency. The majority of the comments were submitted, however, on the last day of the 

comment period. 

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proposed floor calculations. For example, we received several significant comments relating to 

our treatment of non-detect data and other measurements that were close to the detection level.2

 

Based on those comments, we have been working to re-evaluate the non-detect data and other 

measurements that are close to the detection level to ensure that the levels that were reported, 

and used in the proposed floor calculations, are reliable measurements of the sources’ actual 

performance. 

23. Further, we have been reviewing and evaluating the new data received in response 

to the proposed rules. This is a time-intensive process. When we receive data, that data must be 

subjected to a quality review to determine whether the data are acceptable for use. Specifically, 

we determine whether the correct test methods were followed when the test was conducted, we 

examine the data for statistical outliers, and if the test report does not provide information on the 

processes, controls and operations occurring at the time the test was conducted, we follow up 

with the facility that conducted the test to obtain that information, as it is necessary to assess 

whether the data are reliable and acceptable for use in our analyses. In this regard, since the 

close of the comment period, we have reviewed multiple test reports and other relevant 

information to assess the data submitted. 

24. The above provides a small snapshot of the significant amount of work that has 

occurred since receipt of the over 4,800 comments on the proposed rules. The Agency has been 

fully embroiled in working on the final standards at issue in this matter since the close of the 

comment period. We requested an extension of the deadlines from the Court after the Agency 

determined that it needed more time to complete the standards. 

25. It has been almost one month since EPA filed its “Motion to Amend Order of 

March 31, 2006.” Based on recent discussions with my staff, I have concluded that we now 

 

2

 A detection level is the minimum level that can be detected by the EPA-approved test method. 

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cannot respond to all of the significant comments submitted on the major source boilers, area 

source boilers, and CISWI rules by January 16, 2011. In addition, as to those comments that we 

have not yet had an opportunity to consider fully, we will not be able to determine by January 16, 

2011, whether some of these comments warrant additional changes to the floor, variability, 

beyond the floor, or cost analyses. As to the significant comments we have considered, we are 

not in a position to provide complete responses to those comments by January 16, 2011. 

26. As explained in my prior declaration, there were a number of significant issues 

raised in the comments, including, for example, the combination fuel issue discussed above, and 

many of those issues directly impact the level of the emission standards at issue. Decl. ¶ 34. In 

light of these significant issues, the Office of Air and Radiation has recommended to the EPA 

Administrator that we make certain changes to the major source boilers, area source boilers and 

CISWI rules based on our analysis to date of the comments received. Id. ¶¶ 34-37. In view of 

these recommended changes that could significantly change the direction from the proposals, the 

Office of Air and Radiation has also recommended re-proposal of the three rules. Id. In the 

weeks since EPA filed its “Motion to Amend Order of March 31, 2006,” our ongoing review of 

the issues raised by comments only reinforces that recommendation. 

27. Furthermore, as noted in my prior declaration, and as further substantiated by our 

ongoing review in the weeks since my first declaration of the issues raised by comments, I 

believe that if we issue final rules for the major source boilers, area source boilers and CISWI 

units without a re-proposal, various interested parties will allege in proceedings for judicial 

review that we did not provide meaningful notice and opportunity for public comment. Id. ¶ 36. 

We therefore requested that the deadline in Paragraph 3 of the September 20, 2010 Order be 

extended from January 16, 2011, to April 13, 2012, to allow the Agency time to complete the 

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final major source boilers, area source boilers and CISWI standards and to develop workable 

rules that can be implemented effectively and withstand judicial review. Id. ¶ 37. With such an 

extension, we would intend to have the Administrator sign the major source, area source, and 

CISWI re-proposals by June 1, 2011. Id. 

28. If we were to re-propose, the following activities would need to be conducted by 

June 1, 2011: 

a. We would need to review the 4,800 comments, including all attachments to those 

comments, to ensure that we have fully considered all of the issues. 

b. We would need to identify alternative options for proposal, and we would need time 

to conduct additional data and other analyses supporting each proposed option, 

including, floor, beyond the floor, and cost analyses. One example of additional 

analyses that would be completed relates to emissions data on carbon monoxide. As 

the result of the comments, we have identified a key piece of information that is 

relevant to assessing carbon monoxide data. While we have tried to review and 

consider as much information as possible to date, this additional period for reproposal would allow us time to confirm certain information as to the instrument 

calibration range used during carbon monoxide emissions testing, including, as 

necessary, reaching out for additional information. Finally, we would use this period 

to confirm that all of the alleged data errors in the emission inventories have been 

resolved, to the extent such errors exist. The comments concerning data corrections 

are very time consuming to address, because they require a thorough analysis of the 

information submitted and often require additional follow-up with the source to the 

extent a test report or other piece of information relevant to the alleged data error is 

missing. We would also use this time to assess further any other data issues identified 

in the comments, including the non-detect issue noted above. 

 

c. We would need to prepare the proposed rule documents, including the preamble, 

regulatory text, and all technical support documents, including economic analyses. 

We would also plan to include in the preamble to the proposed rule our preliminary 

responses to those issues that we believe are central to our analysis. Further, we 

would need to provide time for senior EPA management review. Inter-agency review 

would occur concurrently with senior EPA management review. 

29. We would then provide a 60-day comment period on the re-proposals, which 

would include time for one public hearing. Decl. ¶ 39. If the rules are published in the Federal 

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Register by late June 2011,3

 the comment period would close in late August 2011. We would 

then have seven and a half months to finalize the rule. During this time, we would need to 

review the comments and assess the data, correct any data issues, and re-run any floor, variability 

and beyond the floor analyses. Finally, we would need to prepare all final rule documents, 

including the preamble, regulatory text, comment-response document, and all technical support 

documents, including economic analyses. We would also need to circulate the draft final rule 

packages for internal EPA management review. Inter-agency review with OMB would occur at 

the same time. EPA would then take final action on the emission standards needed to meet the 

requirements of Paragraphs 1(i) and 3 by April 13, 2012. 

30. Separate from the need to re-propose these rules, I believe that we need until June 

15, 2011, to finalize emissions standards for major source boilers and those area source boilers 

and CISWI units needed for the Agency to complete its obligations under Paragraph 1(i) and 3 of 

the Court’s order. Specifically, I estimate that the following activities would occur during this 

time frame: 

a. We would need to review all of the 4,800 comments, including all attachments 

to those comments, to ensure that we have fully considered all of the issues. 

Until we have the time to evaluate fully and carefully all of the comments, we 

will not know whether, in fact, the rules we are currently preparing for final 

are the correct rules, or whether additional changes are needed. 

b. We would need to conduct additional data and other analyses, including, as 

necessary, floor, beyond the floor and cost analyses. This would include some 

of the same issues enumerated above in Paragraph 28b, above. In particular, 

while we have tried to review and consider as much information as possible to 

date, the additional time would allow us time to confirm certain information 

as to the instrument calibration range used during carbon monoxide emissions 

 

3

 It took approximately five weeks for the proposed major source boilers, area source boilers, and CISWI rules to 

be published in the Federal Register following signature of the rules by the Administrator. This delay was due 

largely to the length of the rules, and the fact that the rules were published with the related Non-Hazardous Solid 

Waste Rule. I can only estimate when the re-proposals may be published in the Federal Register by the Office of the 

Federal Register. EPA does not control that process. We would, however, plan to ask for expedited publication of 

the re-proposals, as we did with the original proposals. 

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testing. Also, we would use this period to confirm that all of the alleged data 

errors in the emissions inventories have been resolved, to the extent such 

errors exist. We would also use this time to assess further any other data 

issues identified in the comments, including the non-detect issue noted above. 

c. We would then need to prepare all final rule documents, including the 

preamble, regulatory text, comment-response document, and all technical 

support documents, including economic analyses. This time-frame includes 

time for senior EPA management review. Inter-agency review would occur 

concurrently with senior EPA management review. 

 

Need for Additional Time: Sewage Sludge Incinerators

31. At the time EPA filed its Motion to Amend Order of March 31, 2006, the 

comment period on the Sewage Sludge Incinerators rule had been closed for only one week. Id.

¶ 47. 

32. Based on recent discussions with my staff, who have now had a better opportunity 

to assess some of the comments, I have concluded that we cannot respond to all of the significant 

comments submitted on the proposed Sewage Sludge Incinerators rule by January 16, 2011. The 

comments received, including attachments, total over 1,600 pages. 

33. While we have not fully evaluated the submitted comments, we have identified 

some central issues that we need additional time to consider. For example, we have received 

many comments challenging the proposed floors, asserting that we failed to assess variability 

appropriately because we failed to consider the impact of the sludge content on the level 

achieved by the best performers. Specifically, additional time is needed to evaluate information 

on sludge content that was submitted in the comments and previously submitted to EPA pursuant 

to certain Clean Water Act sewage sludge regulations. Finally, there is new information in the 

comments that compare EPA’s estimates for facility emissions to the results of certain recent 

testing. Upon our initial review, it appears that we cannot fully evaluate these comments without 

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an opportunity to follow-up with the commenters concerning the emissions testing results. We 

do not, under the current schedule, have sufficient time to conduct this additional evaluation. 

We also received new information regarding the costs of emissions control and the effectiveness 

and application of emissions control devices at sewage sludge incineration units, given the 

uniquely high moisture content of their emissions stream. We have not had an opportunity to 

evaluate fully all of this new information and determine whether and what revisions to the cost 

and regulatory impact analysis are needed. 

34. I believe we need until July 15, 2011, to finalize emission standards for sewage 

sludge incinerators. Decl. ¶¶ 48-49. The comment period for this rule closed on November 29, 

2010. Id. ¶ 47. EPA has had only 30 days to review the over 1,600 pages of comments, which 

include many pages of technical information. This is an insufficient period of time to review and 

evaluate fully the submitted comments. Specifically, I estimate that the following activities 

would occur during this time-frame: 

a. We would need to review fully the submitted comments and contact, where 

necessary, individual commenters regarding the technical information they 

submitted. Based on our review of the information to date, we expect that we will 

need to contact commenters regarding the data and information they submitted 

related to both emissions and sewage sludge content. For example, many of the 

comment letters provided data comparing EPA’s estimated emissions to specific 

facility test data, which EPA did not have at the time it proposed the rule. EPA 

would need to obtain additional information regarding the newly-submitted 

facility test data from some commenters to determine whether the data can and 

should be used to establish the final SSI emissions standards. 

b. We would need to make appropriate revisions to the proposed emissions 

standards, including re-evaluating the regulatory impact analysis, variability 

analyses, and the levels of the standards themselves. In particular, we would plan 

to analyze information regarding the variability of sludge content, determine 

whether that analysis warrants any revisions to the variability incorporated into 

the proposed standards, and calculate revised MACT floors, as appropriate. If 

revisions to the floor are made, we would then re-evaluate our beyond the floor 

analysis and the regulatory impact analysis to reflect any revisions to the 

standards, including our analysis of costs and benefits of the regulation. 

Case 1:01-cv-01537-PLF Document 144-1 Filed 01/03/11 Page 15 of 16

USCA Case #11-1131 Document #1330427 Filed: 09/19/2011 Page 140 of 230
16 

c. We would then need to prepare the final rule documents, including the preamble, 

regulatory text, comment-response document, and all technical support 

documents, including economic analyses. We would also need to provide time 

for senior EPA management review. Inter-agency review would occur 

concurrently with senior EPA management review. 

 SO DECLARED: 

 /s/ 

PANAGIOTIS E. TSIRIGOTIS 

Dated: January 3, 2011

Case 1:01-cv-01537-PLF Document 144-1 Filed 01/03/11 Page 16 of 16

USCA Case #11-1131 Document #1330427 Filed: 09/19/2011 Page 141 of 230
ENCLOSURE C 

USCA Case #11-1131 Document #1330427 Filed: 09/19/2011 Page 142 of 230
UNITEQ ilAliG QQU~t QF A~~iALS FOR DISTRIOT Of eO~UMa\A CKlCUIT 

MAY ~ c to" 

BECE1VED 

UNITED STATES COURT OF APPE ··l8N'TEO,.1'(~~U~~~Cu\eU£1f FOR THE DISTRICT OF COLUMBIA CI CHJ1tiDtS"m\tl\W~.::.~ '-

NATIONAL ASSOCIATION OF CLEAN WATER 

AGENCIES, 

Petitioner 

v. 

U.S. ENVIRONMENTAL PROTECTION AGENCY 

and LISA M. JACKSON, ADMINISTRATOR, U.S. 

ENVIRONMENTAL PROTECTION AGEN.CY 

Respondents 

) 

) 

) 

) 

) 

) 

) 

) 

) 

) 

) 

) 

) 

------------------------------------) 

PETITION FOR REVIEW 

. $~ .. 

Case No. -----

Pursuant to the Clean Air Act § 307(b)(1), 42 U.S.C. § 7607(b)(1), the National 

Association of Clean Water Agencies hereby petitions this Court for review of the U.S. 

Environmental Protection Agency final agency action entitled "Standards of Performance for 

New Stationary Sources and Emission Guidelines for Existing Sources: Sewage Sludge 

Incineration Units; Final Rule," 76 Fed. Reg. 15372-15454 (Mar. 21, 2011). The challenged 

action, a copy of which is attached to this Petition, amends certain provisions of 40 C.F.R. Part 

60.17 and promulgates 40 C.F.R. Part 60 Subpart LLLL and Subpart MMMM containing new 

source performance standards and emission guidelines applicable to sewage sludge 

incinerators at publicly-owned treatment works. 

\ 

\ 

USCA Case #11-1131 Document #1330427 Filed: 09/19/2011 Page 143 of 230 Case: 11-1131 Document: 1307124 Filed: 05/06/2011 Page: 1
Dated: May 6, 2011 Respectfully submitted, . 

Nathan Gardner-Andrews 

General Counsel 

NATIONAL ASSOCIATION OF CLEAN WATER 

AGENCIES 

1816 Jefferson Place, NW 

Washington, DC 20036-2505 

(202) 833-3692 

ngardner-andrews@nacwa.org 

USCA Case #11-1131 Document #1330427 Filed: 09/19/2011 Page 144 of 230 Case: 11-1131 Document: 1307124 Filed: 05/06/2011 Page: 2
UNllli\:l §W~i \;QUR+ Ott J.\F~EALS FOR O\$'fR\Ol Q~ OOLUM8\A C\RCU1T UNITED STATES COURT OF APPEALS 

FOR THE DISTRICT OF COLUMBIA CIRCUI 

Petitioner 

v. 

U.S. ENVIRONMENTAL PROTECTION AGENCY 

and LISA M. JACKSON, ADMINISTRATOR, U.S. 

ENVIRONMENTAL PROTECTION AGENCY 

Respondents 

) 

) 

) 

) 

) 

) 

) 

) 

) 

) 

) 

) 

) 

-----------------------------------) 

Case No. 

RULE 26.1 DISCLOSURE STATEMENT 

CLERK 

11-1131 

-----

Pursuant to Federal Rule of Appellate Procedure 26.1 and D.C. Circuit Rule 26.1, 

Petitioner the National Association of Clean Water Agencies (NACWA) makes the following 

disclosures: 

1. NACWA is a voluntary not-for-profit trade association of the nation's publicly-owned sewage 

treatment authorities and municipal clean water agencies. NACWA's members operate 

nearly 300 of the nation's publicly-owned treatment works which collectively serve the 

majority of the sewered population of the United States. 

2. NACWA's purpose and general nature is to provide a forum for collaboratively addressing 

issues affecting publicly-owned sewage treatment authorities and to advocate on behalf of 

its members regarding legislative, regulatory and legal matters. 

3. NACWA has no parent company, and no publicly held company has a 10 percent or greater 

ownership interest in NACWA. 

USCA Case #11-1131 Document #1330427 Filed: 09/19/2011 Page 145 of 230 Case: 11-1131 Document: 1307124 Filed: 05/06/2011 Page: 3
4. NACWA has no outstanding shares or debt securities in the hands of the public and has no 

parent, subsidiary or affiliate that has issued shares or debt securities to the public. 

Dated: May 6, 2011 Respectfully submitted, 

Jeffre A. ni 

PILLSB Y W HROP SHAW PITTMAN LLP 

2300 N Street, NW 

Washington, DC 20037-1128 

(202) 663-9152 

jeffrey.knight@pillsburylaw.com 

Nathan Gardner-Andrews 

General Counsel 

NATIONAL ASSOCIATION OF CLEAN WATER 

AGENCIES 

1816 Jefferson Place, NW 

Washington, DC 20036-2505 

(202) 833-3692 

ngard ner -and rews@nacwa.org 

USCA Case #11-1131 Document #1330427 Filed: 09/19/2011 Page 146 of 230 Case: 11-1131 Document: 1307124 Filed: 05/06/2011 Page: 4
CERTIFICATE OF SERVICE 

I hereby certify that the foregoing Petition for Review and Rule 26.1 Disclosure Statement have 

been served by United States first-class mail this 6th day of May 2011 upon each of the 

following: 

U.S. ENVIRONMENTAL PROTECTION AGENCY 

Correspondence Control Unit 

Hon. LISA P. JACKSON 

Administrator 

Office of General Counsel (2311) 

1200 Pennsylvania Avenue, NW 

Washington, DC 20460 

ERIC H. HOLDER, JR. 

Attorney General 

U.S. Department of Justice 

950 Pennsylvania Avenue, NW 

Washington, DC 20530-0001 

U.S. Environmental Protection Agency 

Ariel Rios Building (AR), 1101A 

1200 Pennsylvania Avenue, NW 

Washington, DC 20004 

Je y. Knight 

PI LSBUR WINTHROP SHAW PITTMAN LLP 

23 eet, NW 

Washington, DC 20037-1128 

(202) 663-9152 

ieffrey.knight@pillsburvlaw.com 

USCA Case #11-1131 Document #1330427 Filed: 09/19/2011 Page 147 of 230 Case: 11-1131 Document: 1307124 Filed: 05/06/2011 Page: 5
ENCLOSURE D 

USCA Case #11-1131 Document #1330427 Filed: 09/19/2011 Page 148 of 230
B CCCSD

C Greensboro

D Hartford

N HRSD_Williamsburg

O HRSD_ArmyBase

P HRSD_BoatHarbor

Q HRSD_Elizabeth

R HRSD_Virginia Initiative

S St. Paul Metro

T Wayne Township

X Indianapolis

Y Upper Blackstone

Z Alcosan

AA St. Paul Seneca

AB Ypsilanti

Cadmium in Biosolids at MACT Floor POTWs 

(Key)

USCA Case #11-1131 Document #1330427 Filed: 09/19/2011 Page 149 of 230
Variability in Biosolids Cadmium Concentrations at POTWs on which 

the MACT Standards are based, 2005 - 2009

05

10152025

B C D N O P Q R S T X Y 

Publicly Owned Treatment Works

Cadmium Concentration, mg/kg

max = 32.2 

USCA Case #11-1131 Document #1330427 Filed: 09/19/2011 Page 150 of 2
BCDNOPQRST

X

Y

Jan-05 0.1 6.2 2.3 3.0 4.0 3.0 2.0 3.0 1.3 2.8 1.15 5.3 

Feb-05 0.1 8.0 5.4 3.0 5.0 4.0 4.0 4.0 1.4 2.6 1.3 5.4 0Mar-05 0.1 22.1 3.0 2.0 6.0 4.0 3.0 4.0 1.5 2.5 1.36 5.6 <

Apr-05 0.1 14.4 1.9 2.0 5.0 4.0 4.0 4.0 1.8 2.9 1.2 6.2 

May-05 0.1 7.4 2.0 3.0 6.0 5.0 3.0 4.0 1.1 3.2 1.5 6.1 

Jun-05 0.1 6.2 2.5 5.0 8.0 5.0 3.0 4.0 1.0 3.5 1.5 8.6 <

Jul-05 0.1 5.7 2.9 3.0 7.0 9.0 5.0 3.0 1.2 3.0 9.4 <

Aug-05 0.1 10.0 3.2 3.0 5.0 5.0 4.0 3.0 1.6 5.9 8.9 <Sep-05 0.1 3.3 4.2 3.0 6.0 5.0 3.0 3.0 1.0 2.9 1.1 6.8 

Oct-05 0.1 4.2 3.0 6.0 4.0 3.0 3.0 1.5 2.9 6.3 

Nov-05 0.1 1.5 3.4 4.0 7.0 4.0 5.0 5.0 1.4 2.8 6.2 1

Dec-05 0.1 2.8 2.3 3.0 6.0 5.0 4.0 3.0 1.5 5.0 1

Jan-06 0.2 1.7 3.2 3.0 5.0 4.0 3.0 4.0 1.2 2.0 1.3 6.4 

Feb-06 0.2 3.6 0.3 2.0 5.0 3.0 2.0 3.0 1.1 3.0 1.1 7.2 <Mar-06 0.2 4.4 1.9 1.0 3.0 2.0 2.0 2.0 0.8 2.2 1.4 6.7 

Apr-06 0.2 2.7 2.3 3.0 5.0 3.0 3.0 3.0 1.1 3.3 1.8 6.2 

May-06 0.2 2.4 2.1 2.0 4.0 3.0 2.0 3.0 2.0 2.0 2.1 5.8 0

Jun-06 0.2 6.4 3.0 1.0 3.0 3.0 2.0 2.0 1.5 2.6 2.2 6.2 0

Jul-06 0.2 4.2 0.5 1.0 2.0 0.5 0.5 1.2 2.6 1.9 6.0 0

Aug-06 0.2 16.2 2.3 0.5 4.0 5.0 2.0 0.5 1.4 3.0 2.3 6.6 Sep-06 0.2 6.6 3.1 2.0 4.0 2.0 2.0 3.0 2.7 2.8 3.9 4.0 

Oct-06 0.2 5.7 2.5 2.0 3.0 5.0 2.0 3.0 1.7 4.8 3.4 3.9 <

Nov-06 0.2 3.0 8.0 1.0 4.0 3.0 2.0 4.0 1.5 2.2 3.1 4.1 2

Dec-06 0.2 3.0 0.5 3.0 3.0 2.0 3.0 1.8 2.8 2.5 4.2 2

Jan-07 0.2 4.4 2.2 0.5 3.0 3.0 1.0 2.0 1.2 2.4 1.5 6.0 1

Feb-07 0.2 7.2 2.2 1.0 3.0 3.0 2.0 2.0 1.2 1.5 2.3 5.8 <Mar-07 0.2 13.8 1.8 1.0 4.0 3.0 2.0 2.0 2.2 1.4 3.8 1

Apr-07 0.2 5.6 1.2 3.0 3.0 3.0 3.0 4.0 2.0 1.3 5.3 1

May-07 0.2 7.6 2.1 1.5 1.5 1.5 1.5 1.5 2.2 1.7 5.6 

Jun-07 0.2 6.1 2.7 3.0 4.0 3.0 1.8 1.6 2.6 2.9 6.2 1

Jul-07 0.2 8.9 2.0 1.5 4.0 3.0 1.5 1.5 2.1 1.0 4.0 <

Aug-07 0.2 8.9 0.3 1.0 5.0 3.0 2.0 1.5 1.5 2.4 5.1 1Sep-07 0.2 9.2 2.4 4.0 4.0 1.5 4.0 1.5 1.4 2.6 5.0 <

Oct-07 0.2 6.4 2.9 1.0 4.0 4.0 1.5 4.0 2.8 1.8 3.0 5.2 0

Nov-07 0.2 9.4 1.5 1.5 3.0 1.5 2.0 4.0 1.4 1.9 9.0 <

Dec-07 0.2 5.6 0.3 4.0 4.0 4.0 2.0 1.5 32.2 1.2 1.7 5.9 

Monthly Average Cadmium in Biosolids at MACT Floor POTWs (mg/dry kg) USCA Case #11-1131 Document #1330427 Filed: 09/19/2011 Page 151 of 2(2005-2009)
Jan-08 0.1 7.7 1.7 1.5 3.0 5.0 1.5 3.0 1.4 1.5 5.2 0

Feb-08 0.1 9.8 4.7 1.5 1.5 1.5 1.5 1.5 1.5 1.9 6.6 <Mar-08 0.1 12.1 2.8 1.5 1.5 1.5 1.5 4.0 15.8 1.7 1.9 7.7 2

Apr-08 0.1 6.1 2.7 1.5 4.0 4.0 2.0 3.0 16.3 1.4 1.3 11.0 1

May-08 0.1 13.4 1.9 1.5 1.5 4.0 1.5 1.5 5.8 1.4 2.2 6.7 <0

Jun-08 0.1 9.9 3.2 1.0 3.0 4.0 2.0 1.0 4.6 2.0 1.2 5.6 0

Jul-08 0.1 6.7 2.6 1.0 6.0 3.0 3.0 2.0 17.2 17.3 1.8 6.8 0

Aug-08 0.1 4.9 1.9 1.0 4.0 5.0 2.0 1.0 21.6 2.3 1.9 5.5 4Sep-08 0.1 3.6 2.2 1.0 3.0 3.0 1.0 2.0 14.3 1.7 2.8 7.0 0

Oct-08 0.1 2.4 2.6 1.0 4.0 3.0 2.0 3.0 1.9 1.4 4.2 <0

Nov-08 0.1 1.6 2.5 1.0 3.0 4.0 2.0 3.0 1.5 1.6 4.9 <0

Dec-08 0.1 1.5 1.9 1.0 1.0 3.0 2.0 2.0 1.6 1.4 7.3 <

Jan-09 0.3 2.5 3.1 1.0 1.0 3.0 1.0 3.0 1.4 2.5 9.4 <0

Feb-09 0.3 2.9 3.6 1.5 1.5 2.0 2.0 3.0 1.7 1.5 9.1 <0

Mar-09 0.3 2.1 3.1 1.5 2.0 3.0 1.5 4.0 1.4 2.1 ND <0

Apr-09 0.3 1.3 2.7 1.5 4.0 4.0 1.5 1.5 1.7 1.9 4.4 0

May-09 0.3 1.9 2.7 1.0 3.0 3.0 1.0 1.0 2.1 1.7 5.5 1

Jun-09 0.3 1.6 3.6 1.0 1.0 3.0 1.0 1.0 2.3 3.1 6.0 1

Jul-09 0.3 1.5 2.0 1.0 1.0 1.0 1.0 1.0 2.3 3.3 5.6 0

Aug-09 0.3 1.8 2.2 1.0 1.0 1.0 1.0 1.0 1.2 2.3 5.5 1

Sep-09 0.3 1.9 2.9 1.0 1.0 3.0 1.0 1.0 1.7 1.8 4.6 <0

Oct-09 0.3 1.8 2.7 1.0 1.5 1.0 1.0 1.0 1.1 4.1 5.9 <0

Nov-09 0.3 1.8 3.2 1.0 1.0 1.0 1.0 1.0 1.1 3.0 7.3 <0

Dec-09 0.3 2.4 3.0 2.0 7.0 5.0 3.0 3.0 3.2 1

BCDNOPQRST

X

Y

25th Percentile 0.1 2.4 2.0 1.0 2.8 3.0 1.5 1.5 1.2 1.6 1.4 5.2 Minimum 0.1 1.3 0.3 0.5 1.0 1.0 0.5 0.5 0.8 1.1 1.0 3.2 Median 0.2 5.6 2.6 1.5 4.0 3.0 2.0 3.0 1.5 2.2 1.8 6.0 Maximum 0.3 22.1 8.0 5.0 8.0 9.0 5.0 5.0 32.2 17.3 4.1 11.0 175th Percentile 0.2 7.7 3.1 3.0 5.0 4.0 3.0 3.0 2.7 2.8 2.4 6.7 

Monthly Average Cadmium in Biosolids at MACT Floor POTWs (mg/dry kg) USCA Case #11-1131 Document #1330427 Filed: 09/19/2011 Page 152 of 2(2005-2009)
B CCCSD

C Greensboro

D Hartford

N HRSD_Williamsburg

O HRSD_ArmyBase

P HRSD_BoatHarbor

Q HRSD_Elizabeth

R HRSD_Virginia Initiative

S St. Paul

T Wayne Township

X Indianapolis

Y Upper Blackstone

Z Alcosan

AA St. Paul Seneca

AB Ypsilanti

Lead in Biosolids at MACT Floor POTWs 

(Key)

USCA Case #11-1131 Document #1330427 Filed: 09/19/2011 Page 153 of 230
Variability in Biosolids Lead Concentrations at POTWs on which 

the MACT Standards are based, 2005 - 2009

0

50

100150200250300

B C D N O P Q R S T X Y 

Publicly Owned Treatment Works

Lead Concentration, mg/kg

USCA Case #11-1131 Document #1330427 Filed: 09/19/2011 Page 154 of 2
BCDNOPQRST

X

Y

Jan-05 8.6 16.2 55.4 27.0 130.0 106.0 52.0 50.0 26.3 37.8 23.2 65 

Feb-05 11.9 21.8 163.0 16.0 80.0 51.0 90.0 57.0 97.1 31.0 17.1 51 Mar-05 10.0 13.3 73.8 18.0 104.0 43.0 119.0 50.0 27.7 31.9 10.1 58 

Apr-05 12.1 6.7 63.7 24.0 70.0 70.0 137.0 54.0 28.8 57.0 10.2 75 

May-05 12.0 14.5 73.3 22.0 79.0 65.0 96.0 64.0 22.9 37.4 13.4 69 

Jun-05 20.2 19.0 63.4 13.0 80.0 102.0 133.0 51.0 24.2 46.6 12.4 70 

Jul-05 25.9 17.0 92.1 12.0 95.0 166.0 61.0 41.0 30.1 46.3 94 

Aug-05 19.9 30.6 107.0 15.0 52.0 51.0 35.0 71.0 39.0 59.7 83 Sep-05 12.9 34.2 106.0 18.0 73.0 44.0 26.0 30.0 28.9 45.6 13.5 66 

Oct-05 9.0 77.5 13.0 73.0 34.0 24.0 31.0 36.9 82.4 75 

Nov-05 9.5 12.0 87.4 13.0 76.0 76.0 33.0 45.0 31.8 46.5 92 

Dec-05 10.1 18.8 64.9 12.0 74.0 50.0 25.0 40.0 32.3 59.1 140 

Jan-06 8.7 18.0 72.8 10.0 77.0 46.0 30.0 76.0 29.6 29.0 11.0 59 

Feb-06 8.6 37.0 59.6 22.0 84.0 57.0 96.0 56.0 45.5 39.0 11.4 63 Mar-06 0.5 25.5 43.0 49.0 91.0 38.0 27.0 38.0 27.3 29.9 14.0 50 

Apr-06 4.5 23.4 73.3 25.0 76.0 33.0 89.0 36.0 28.6 41.0 18.7 50 

May-06 10.0 23.6 55.9 20.0 67.0 41.0 22.0 40.0 43.8 39.0 15.8 73 7

Jun-06 0.8 38.8 97.7 23.0 56.0 36.0 38.0 43.0 44.3 46.7 19.2 85 7

Jul-06 0.8 97.4 18.0 54.0 44.0 48.0 41.0 34.6 45.5 22.1 70 9

Aug-06 0.8 35.8 83.5 17.0 58.0 48.0 39.0 42.0 36.9 51.8 18.0 94 Sep-06 0.8 39.1 80.9 21.0 53.0 40.0 38.0 84.0 37.9 45.5 25.3 59 

Oct-06 0.8 33.5 59.5 24.0 42.0 52.0 35.0 84.0 27.4 44.8 27.7 41 5

Nov-06 0.8 31.6 194.0 20.0 35.0 42.0 19.0 32.0 23.5 31.9 33.1 55 5

Dec-06 0.8 79.7 14.0 32.0 41.0 32.0 37.0 27.0 34.0 18.0 54 7

Jan-07 0.8 38.2 51.9 15.0 25.0 38.0 11.0 25.0 30.4 41.8 13.0 48 6

Feb-07 0.8 33.9 42.8 17.0 30.0 37.0 23.0 12.0 27.4 25.8 13.2 43 Mar-07 0.8 28.2 57.9 12.0 34.0 25.0 18.0 30.0 32.1 15.8 42 7

Apr-07 0.8 34.4 48.1 22.0 22.0 22.0 13.0 12.0 39.2 15.6 160 8

May-07 10.8 28.6 60.3 23.0 22.0 24.0 20.0 15.0 37.2 17.3 60 5

Jun-07 0.8 17.9 80.5 15.0 44.0 50.0 26.0 46.0 42.5 21.5 87 8

Jul-07 0.8 28.1 74.1 16.0 29.0 37.0 30.0 40.0 43.1 7.4 83 8

Aug-07 0.8 24.6 61.2 17.0 39.0 46.0 29.0 54.0 31.2 44.0 61 Sep-07 0.8 24.5 65.7 15.0 37.0 49.0 22.0 38.0 31.0 26.4 46 1

Oct-07 0.8 18.8 67.4 26.0 38.0 48.0 37.0 38.0 38.1 48.3 30.1 52 6

Nov-07 0.8 22.5 53.1 27.0 44.0 44.0 15.0 41.0 34.4 14.1 63 1

Dec-07 0.8 6.43 56.8 25.0 35.0 40.0 26.0 42.0 41.7 26.4 15.7 43 

Monthly Average Lead in Biosolids at MACT Floor POTWs (mg/dry kg) 

(2005-2009) USCA Case #11-1131 Document #1330427 Filed: 09/19/2011 Page 155 of 2
Jan-08 22.7 10.0 56.5 20.0 34.0 35.0 23.0 46.0 41.0 25.1 52 7

Feb-08 22.1 22.1 86.8 16.0 43.0 24.0 25.0 54.0 32.0 17.8 54 7Mar-08 25.6 27.2 68.6 21.0 46.0 38.0 19.0 64.0 30.5 28.4 27.8 54 7

Apr-08 24.6 36.9 78.4 18.0 30.0 21.0 13.0 43.0 23.5 26.8 14.5 56 6

May-08 0.3 25.5 55.9 19.0 43.0 38.0 22.0 56.0 19.2 27.5 19.6 36 6

Jun-08 0.3 28.4 60.1 20.0 52.0 42.0 31.0 45.0 26.0 34.6 17.6 42 6

Jul-08 0.3 34.7 72.1 27.0 54.0 38.0 36.0 46.0 38.8 42.2 17.1 56 1

Aug-08 5.3 23.9 30.0 25.0 67.0 45.0 42.0 42.0 32.6 52.8 25.4 87 7Sep-08 0.3 34.6 72.4 26.0 50.0 48.0 29.0 58.0 30.8 40.2 21.8 66 7

Oct-08 0.3 30.0 77.1 26.0 55.0 57.0 24.0 46.0 47.3 10.3 31 5

Nov-08 0.3 27.5 60.4 30.0 46.0 53.0 29.0 41.0 38.1 13.9 39 2

Dec-08 14.5 28.9 56.8 23.0 40.0 46.0 15.0 59.0 37.7 10.2 48 3

Jan-09 14.4 17.3 49.5 26.0 41.0 39.0 21.0 45.0 30.6 15.7 60 3

Feb-09 29.5 20.6 67.3 17.0 42.0 39.0 17.0 49.0 29.8 10.7 42 3Mar-09 12.2 27.6 69.8 13.0 29.0 37.0 19.0 41.0 30.0 9.9 2

Apr-09 29.9 16.0 99.7 16.0 46.0 46.0 21.0 54.0 29.3 13.9 36 4

May-09 19.3 17.2 79.9 12.0 36.0 21.0 15.0 56.0 33.7 10.5 43 6

Jun-09 16.8 25.5 105.0 6.0 26.0 22.0 17.0 35.0 48.8 16.4 61 5

Jul-09 26.1 19.1 82.7 13.0 29.0 23.0 17.0 46.0 47.6 15.2 58 7

Aug-09 22.5 22.9 83.7 31.0 62.0 44.0 36.0 67.0 42.7 17.3 86 8

Sep-09 0.7 32.2 66.5 23.0 61.0 38.0 36.0 52.0 38.4 15.5 38 4

Oct-09 0.7 15.8 56.8 12.0 43.0 17.0 12.0 38.0 44.9 18.6 48 4

Nov-09 54.9 15.0 55.7 13.0 45.0 184.0 12.0 52.0 37.4 13.4 52 3

Dec-09 35.1 17.4 76.0 22.0 55.0 28.0 18.0 52.0 39 5

BCDNOPQRST

X

Y

25th Percentile 0.8 17.9 57.6 15.0 36.8 37.0 19.0 39.5 27.3 31.9 13.4 48.0 5Minimum 0.3 6.4 30.0 6.0 22.0 17.0 11.0 12.0 19.2 25.8 7.4 31.0 1Median 8.6 24.5 69.2 18.5 46.0 42.0 26.0 45.0 30.4 39.0 15.8 58.0 6Maximum 54.9 39.1 194.0 49.0 130.0 184.0 137.0 84.0 97.1 82.4 44.0 160.0 275th Percentile 15.1 30.6 80.6 23.3 67.8 49.3 36.3 54.0 37.4 45.6 19.5 70.0 7

Monthly Average Lead in Biosolids at MACT Floor POTWs (mg/dry kg) 

(2005-2009) USCA Case #11-1131 Document #1330427 Filed: 09/19/2011 Page 156 of 2
B CCCSD

C Greensboro

D Hartford

N HRSD_Williamsburg

O HRSD_ArmyBase

P HRSD_BoatHarbor

Q HRSD_Elizabeth

R HRSD_Virginia Initiative

S St. Paul

T Wayne Township

X Indianapolis

Y Upper Blackstone

Z Alcosan

AA St. Paul Seneca

AB Ypsilanti

Mercury in Biosolids at MACT Floor POTWs 

(Key)

USCA Case #11-1131 Document #1330427 Filed: 09/19/2011 Page 157 of 230
Variability in Biosolids Mercury Concentrations at POTWs on which 

the MACT Standards are based, 2005 - 2009

012345

B C D N O P Q R S T X Y 

Publicly Owned Treatment Works

Mercury Concentration, mg/kg

max = 14.65

max = 6.40 

USCA Case #11-1131 Document #1330427 Filed: 09/19/2011 Page 158 of 2
BCDNOPQRST

X

Y 

Jan-05 0.8 0.4 0.05 0.5 2.1 0.5 0.5 1.1 1.7 0.6 0.062 1.5 

Feb-05 2.1 0.3 0.2 0.6 0.7 0.6 1.2 1.2 0.5 0.5 0.038 ND Mar-05 0.9 0.5 0.2 0.4 3.7 0.7 1.1 0.7 0.2 1.1 0.071 ND 

Apr-05 1.8 0.8 0.05 0.3 0.3 0.6 0.6 0.5 0.2 0.4 0.048 ND 

May-05 0.8 1.4 0.1 0.3 1.4 0.4 0.8 0.9 3.5 0.6 0.030 ND 

Jun-05 1.2 0.7 0.05 0.5 0.9 0.5 0.8 0.9 0.4 0.8 0.028 ND 

Jul-05 14.6 0.4 0.05 0.3 1.2 0.7 1.2 0.5 0.6 0.4 1.8 

Aug-05 12.2 0.5 0.05 0.6 1.1 0.6 1.1 1.1 1.2 0.9 ND Sep-05 14.7 0.9 0.05 0.2 0.8 0.7 0.9 0.4 0.6 0.7 ND 

Oct-05 1.3 0.05 0.5 0.9 0.5 0.7 0.4 0.5 0.7 ND 

Nov-05 1.9 0.8 0.05 0.5 0.9 0.5 0.7 0.6 1.8 1.2 ND 

Dec-05 1.2 0.9 0.05 0.5 0.8 0.5 0.6 0.7 0.6 0.3 ND 

Jan-06 0.7 0.6 0.3 0.4 0.5 0.4 0.4 0.3 0.4 0.4 0.86 

Feb-06 0.4 0.8 0.05 0.6 0.5 0.4 0.7 0.7 0.6 0.4 ND Mar-06 1.0 1.7 0.05 0.3 1.1 0.9 1.0 0.4 0.7 0.7 0.041 ND 

Apr-06 0.7 1.6 0.05 0.4 0.6 0.4 1.0 0.5 0.7 0.8 ND 

May-06 0.8 1.3 0.05 0.3 0.8 0.6 1.0 0.4 0.3 0.2 ND 

Jun-06 0.7 0.3 0.05 0.3 0.7 0.6 1.2 0.5 0.4 0.8 ND 

Jul-06 1.0 0.05 0.1 0.5 0.7 1.0 0.4 0.4 0.7 0.71 

Aug-06 1.2 0.4 0.05 0.3 1.0 0.6 1.2 0.6 0.6 0.9 ND Sep-06 1.3 0.6 0.05 0.3 1.5 0.4 1.1 1.1 0.6 0.4 ND 

Oct-06 1.6 0.8 0.05 0.3 0.9 0.8 1.1 0.4 0.8 0.1 ND 

Nov-06 1.1 0.069 0.05 0.3 0.6 0.3 0.8 0.4 0.2 2.0 ND 

Dec-06 0.7 0.05 0.3 0.6 0.4 0.9 0.3 0.4 0.7 ND 

Jan-07 0.4 0.0 0.05 0.2 0.5 0.2 0.6 0.3 0.3 0.1 0.64 

Feb-07 6.4 0.2 0.05 0.7 0.7 0.3 0.6 0.4 0.5 1.2 ND Mar-07 0.9 0.2 0.05 0.3 0.8 0.5 1.2 0.4 0.8 ND 

Apr-07 0.5 0.6 0.05 0.3 0.6 0.7 0.8 0.6 0.9 ND 

May-07 0.8 0.3 0.05 0.3 0.9 0.7 0.9 0.5 1.1 0.03 ND 

Jun-07 0.7 0.6 0.05 0.4 0.9 0.6 0.9 0.6 0.4 0.03 ND 

Jul-07 1.2 0.2 0.05 0.4 1.1 0.8 1.9 0.6 0.4 0.03 0.87 

Aug-07 1.1 0.4 0.05 0.6 0.8 0.5 1.1 0.7 3.4 0.05 ND Sep-07 0.9 0.7 0.05 0.2 0.7 0.4 0.9 0.5 0.1 0.04 ND 

Oct-07 0.6 0.3 0.05 0.3 0.8 0.6 0.7 0.3 0.8 0.2 0.04 ND 

Nov-07 0.7 0.6 0.05 0.2 0.6 0.3 0.6 0.5 1.0 0.04 ND 

Dec-07 0.7 1.5 0.05 0.2 0.6 0.5 0.9 0.7 0.4 0.1 0.03 ND 

Monthly Average Mercury in Biosolids at MACT Floor POTWs (mg/dry kg) 

(2005-2009) USCA Case #11-1131 Document #1330427 Filed: 09/19/2011 Page 159 of 2
Jan-08 0.5 0.1 0.05 0.2 0.5 0.4 0.4 0.5 0.9 0.04 0.6 1

Feb-08 0.5 0.7 0.05 0.4 0.8 0.4 0.5 0.5 0.3 0.03 ND 0Mar-08 0.6 0.4 0.05 0.3 0.6 0.4 0.7 0.5 0.6 0.3 0.04 ND 0

Apr-08 0.4 0.8 0.05 0.3 0.5 0.6 0.7 0.4 0.6 0.3 0.06 ND 0

May-08 0.7 0.2 0.05 0.3 0.8 0.4 0.8 0.5 0.2 0.6 0.60 ND 1

Jun-08 0.8 0.2 0.05 0.4 1.3 0.5 0.9 0.5 0.2 0.5 0.03 ND 1

Jul-08 1.0 0.2 0.05 0.5 6.4 0.7 1.2 0.7 0.4 1.0 0.04 0.96 1

Aug-08 0.6 0.1 0.05 0.3 1.2 0.5 0.8 0.4 0.5 0.3 0.03 ND 1Sep-08 0.6 0.2 0.05 0.2 1.4 0.3 1.0 0.3 0.4 0.3 0.03 ND 1

Oct-08 0.6 0.1 0.05 0.3 1.1 0.4 0.6 0.4 0.8 0.03 ND 1

Nov-08 0.4 0.2 0.05 0.3 0.6 0.4 0.7 0.4 0.2 0.4 0.05 ND 0

Dec-08 0.4 0.2 0.05 0.4 0.5 0.4 0.3 0.8 0.3 2.2 0.07 ND 0

Jan-09 0.6 0.2 0.05 0.4 0.4 0.2 0.4 0.6 0.7 0.05 0.71 1

Feb-09 0.7 0.3 0.05 0.6 0.4 0.3 0.7 0.3 1.5 0.05 ND 2

Mar-09 0.7 0.2 0.05 0.4 0.4 0.6 0.9 0.3 1.8 0.03 ND 1

Apr-09 0.5 0.2 0.05 0.2 0.6 0.5 1.0 1.9 3.4 0.03 ND 1

May-09 0.5 0.1 0.05 0.3 0.6 0.4 0.9 0.6 0.8 0.03 ND 1

Jun-09 0.7 0.4 0.05 0.2 0.7 0.4 0.7 0.3 1.7 0.05 ND 1

Jul-09 0.8 0.4 0.05 0.3 0.6 0.6 0.6 0.4 1.4 0.05 1.7 2

Aug-09 0.9 0.2 0.05 0.3 0.7 0.6 1.5 0.5 1.1 0.03 ND 1

Sep-09 0.8 0.3 0.05 0.7 0.8 0.5 1.0 0.7 0.8 0.03 ND 1

Oct-09 0.6 0.2 0.05 0.5 0.6 0.7 0.7 0.4 3.3 0.05 ND 1

Nov-09 0.7 0.4 0.05 0.5 0.6 0.4 1.5 0.3 0.4 0.01 ND 1

Dec-09 0.5 0.3 0.05 0.5 0.5 0.4 0.4 0.5 ND 1

BCDNOPQRST

X

Y 

25th Percentile 0.61 0.20 0.05 0.30 0.60 0.40 0.70 0.40 0.35 0.40 0.03 0.71 1Minimum 0.40 0.03 0.05 0.10 0.30 0.20 0.30 0.30 0.00 0.05 0.01 0.00 0Median 0.75 0.36 0.05 0.30 0.70 0.50 0.85 0.50 0.50 0.71 0.04 0.87 1Maximum 14.65 1.70 0.25 0.70 6.40 0.90 1.90 1.90 3.49 3.40 0.60 1.80 275th Percentile 1.09 0.68 0.05 0.50 0.90 0.60 1.00 0.63 0.64 0.96 0.05 1.37 1

Monthly Average Mercury in Biosolids at MACT Floor POTWs (mg/dry kg) 

(2005-2009) USCA Case #11-1131 Document #1330427 Filed: 09/19/2011 Page 160 of 2
Cadmium in Biosolids at Non-MACT Floor POTWs

(Key)

A Canton

E MSD St. Louis_Lerney

F MSD St. Louis_Bissell

G Palo Alto

H Columbus

I NEORSD_Southerly

J NEORSD_Westerly

U Anchorage

V Cincinnati_Little Miami

W Cincinnati_Mill Creek

USCA Case #11-1131 Document #1330427 Filed: 09/19/2011 Page 161 of 230
Variability in Biosolids Cadmium Concentrations at POTWs, 2005 - 2009

05

10152025

A E FGH I J U

Publicly Owned Treatment Works

Cadmium Concentration, mg/kg

max = 33.1 max = 44.4

USCA Case #11-1131 Document #1330427 Filed: 09/19/2011 Page 162 of 2
Monthly Average Cadmium in Biosolids at Non-MACT Floor POTWs (mg/dry kg)

(2005-2009)

A EFGH I JU

V

W

Jan-05 4.8 0.0 8.4 2.5 3.1 11.9 13.2 2.75 3.185

Feb-05 1.5 13.0 2.6 2.6 13.0 12.8 2.0 5.5 3.1Mar-05 3.8 1.9 13.1 3.5 2.1 13.5 13.0 6.25 3.998

Apr-05 2.4 20.6 3.0 2.5 14.8 13.6 2.0 2.8 0.4

May-05 2.7 1.2 22.8 4.0 2.3 12.1 15.1 2.0 3.0

Jun-05 2.3 13.5 3.1 1.5 18.8 13.8 2.0 2.5 3.8

Jul-05 5.1 1.3 13.5 3.3 1.9 11.7 13.7 2.0 3.8

Aug-05 1.7 33.1 3.0 2.5 19.2 11.2 1.6 8.5 4.0Sep-05 0.9 1.3 16.8 2.9 2.5 44.4 11.7 6.0 2.0

Oct-05 1.3 23.5 3.0 2.6 19.8 3.0 4.0 4.6

Nov-05 3.2 0.8 7.9 2.9 3.0 12.9 3.0 4.0

Dec-05 1.0 16.5 2.8 1.2 14.5 2.0 1.8 3.8

Jan-06 12.9 0.8 7.0 2.6 15.3 12.3 1.0 2.8

Feb-06 1.4 32.2 3.0 2.1 16.0 10.6 3.0 2.0 2.0Mar-06 6.0 0.5 13.0 2.5 1.9 31.8 19.5 3.5 2.0

Apr-06 4.8 0.8 11.2 3.0 2.8 16.6 10.7 3.0 2.5 3.0

May-06 4.7 0.0 7.2 2.8 2.0 11.0 12.4 2.5 3.5

Jun-06 6.7 0.0 16.9 3.2 3.0 11.4 13.9 2.4 2.0 3.8

Jul-06 7.3 1.7 25.4 3.2 3.2 12.4 15.3 2.9 5.0

Aug-06 0.3 3.5 7.8 3.4 2.3 14.1 15.2 1.6 2.8 5.6Sep-06 3.2 2.4 14.2 3.3 2.3 17.8 13.6 2.6 4.8

Oct-06 3.7 1.4 18.0 3.4 1.7 15.5 13.7 1.5 1.1 3.8

Nov-06 0.9 1.0 16.6 2.8 2.2 12.3 12.4 2.5 4.0

Dec-06 3.6 1.6 6.2 2.8 1.4 13.9 13.0 1.2 0.0 7.6

Jan-07 4.2 0.0 5.8 2.7 2.4 11.4 12.8 2.0 4.0

Feb-07 2.9 0.6 13.6 2.2 2.5 17.8 12.8 1.0 1.8 3.7Mar-07 2.6 2.1 10.4 2.8 1.7 12.9 14.0 2.0 3.6

Apr-07 3.2 2.7 12.5 2.9 2.1 11.2 14.7 1.5 3.0 3.4

May-07 3.5 1.3 6.7 2.9 1.8 14.5 15.2 2.6 3.6

Jun-07 2.6 1.6 10.8 3.2 2.0 14.1 15.2 0.8 2.7 4.4

Jul-07 2.6 1.5 8.0 3.9 2.0 14.3 13.9 2.7 5.1

Aug-07 3.5 1.8 20.8 3.4 1.7 15.1 14.3 0.7 5.4 4.8Sep-07 2.2 1.2 8.3 2.6 1.2 18.9 20.3 2.0 4.2

Oct-07 2.6 3.4 14.7 2.6 1.9 17.1 17.1 2.4 1.8 3.6

Nov-07 3.9 1.5 13.6 2.5 2.6 9.8 13.7 2.5 3.7

Dec-07 2.6 1.2 13.6 2.4 3.2 11.0 15.4 1.4 2.7 3.3

USCA Case #11-1131 Document #1330427 Filed: 09/19/2011 Page 163 of 2
Monthly Average Cadmium in Biosolids at Non-MACT Floor POTWs (mg/dry kg)

(2005-2009)

Jan-08 5.7 0.3 17.7 2.2 3.0 9.8 14.6 1.5 4.2

Feb-08 3.2 0.0 11.0 2.7 3.3 9.2 15.9 1.4 2.6 3.6Mar-08 2.9 0.6 21.5 2.3 4.4 15.5 16.7 2.2 3.5

Apr-08 2.6 18.3 0.1 2.5 2.7 14.0 19.4 1.4 3.0 3.8

May-08 2.7 1.6 12.5 3.1 3.9 12.7 14.8 3.2 3.7

Jun-08 2.8 5.2 5.3 3.3 2.5 13.6 12.9 1.34 2.7 5.3

Jul-08 3.3 0.0 1.9 3.1 2.9 10.5 20.1 2.3 3.2

Aug-08 3.1 2.4 10.7 2.5 2.8 9.6 15.9 1.8 2.4 5.3Sep-08 2.7 2.5 14.7 3.3 2.6 11.3 12.6 2.5 4.3

Oct-08 4.2 4.3 16.8 3.7 2.4 7.7 9.4 1.7 14.4

Nov-08 2.0 1.0 14.3 3.4 2.4 8.4 9.4 1.0 2.1 3.9

Dec-08 2.7 6.3 14.8 3.1 2.0 7.7 9.6 1.1 7.8 3.7

Jan-09 3.4 0.6 15.7 2.7 2.4 8.0 13.3 5.0 3.1

Feb-09 2.3 1.8 31.2 3.7 1.7 8.5 12.0 0.9 3.3 3.4Mar-09 3.4 1.3 30.0 3.0 2.6 8.9 14.5 2.7 3.7

Apr-09 4.3 0.7 15.1 3.5 2.2 9.1 15.0 1.0 2.8 2.5

May-09 0.4 0.9 7.6 3.7 3.1 10.4 13.0 0.8 2.9 3.2

Jun-09 3.3 2.2 11.1 3.6 2.4 4.6 7.9 0.7 2.6 3.2

Jul-09 4.9 3.8 13.3 2.7 2.0 4.5 7.9 1.3 2.2 4.2

Aug-09 5.6 2.5 17.6 2.5 2.2 4.8 9.1 1.8 2.7 2.8Sep-09 3.9 3.6 23.8 2.1 2.1 5.1 8.1 2.7 3.3

Oct-09 3.8 3.0 22.7 2.3 4.0 7.2 1.5 3.1 3.5

Nov-09 3.8 2.9 17.0 2.8 4.1 6.2 1.0 3.4 5.8

Dec-09 3.3 2.6 3.8 6.0 1.8 2.4

A EFGH I JU

V

W

25th Percentile 2.7 0.9 10.5 2.6 2.0 9.5 12.0 1.0 2.1 3.2Minimum 0.3 0.0 0.1 2.1 1.2 3.8 6.0 0.7 0.0 0.4Median 3.3 1.5 13.6 3.0 2.4 12.4 13.6 1.5 2.6 3.7Maximum 12.9 18.3 33.1 4.0 4.4 44.4 20.3 3.0 8.5 14.475th Percentile 4.2 2.4 17.3 3.3 2.7 14.8 15.0 2.0 3.0 4.2

*Grab samples were removed from POTW "A"

USCA Case #11-1131 Document #1330427 Filed: 09/19/2011 Page 164 of 2
Lead in Biosolids at Non-MACT Floor POTWs

(Key)

A Canton

E MSD St. Louis_Lemay

F MSD St. Louis_Bissell

G Palo Alto

H Columbus

I NEORSD_Southerly

J NEORSD_Westerly

U Anchorage

V Cincinnati_Little Miami

W Cincinnati_Mill Creek

USCA Case #11-1131 Document #1330427 Filed: 09/19/2011 Page 165 of 230
Variability in Biosolids Lead Concentrations at POTWs, 2005 - 2009

0

50

100150200250300

A E F GH I J U

Publicly Owned Treatment Works

Lead Concentration, mg/kg

USCA Case #11-1131 Document #1330427 Filed: 09/19/2011 Page 166 of 2
Monthly Average Lead in Biosolids at Non-MACT Floor POTWs (mg/ dry kg)

(2005-2009)

A E F GH I J UW X

Jan-05 87.0 92.4 109.6 54.7 58.7 133.3 202.3 33.988 23.2

Feb-05 52.7 60.2 50.8 56.2 87.0 136.2 26.6 21.8 17.1

Mar-05 36.0 74.4 75.9 26.0 36.8 103.5 145.8 34.083 10.1

Apr-05 53.5 70.0 30.3 25.1 126.6 198.3 32.5 2.0 10.2

May-05 14.9 66.6 67.6 49.6 26.6 128.8 225.8 30.5 13.4

Jun-05 88.8 77.9 35.2 23.9 125.4 195.7 29.2 31.0 12.4

Jul-05 292.0 102.4 133.3 39.0 30.9 148.3 179.4 30.3

Aug-05 57.2 41.0 26.2 46.1 169.9 176.6 23.9 24.7

Sep-05 26.6 48.2 45.3 35.2 55.5 239.3 180.1 24.0 13.5

Oct-05 62.6 83.7 28.4 43.8 243.8 145.7 19.5 16.4

Nov-05 61.4 93.1 115.8 27.6 53.1 122.1 130.9 54.8

Dec-05 48.8 71.2 24.3 15.4 93.3 116.3 10.3 28.8

Jan-06 69.6 77.6 94.9 32.2 23.8 79.4 129.5 26.3 11.0

Feb-06 54.9 67.9 25.6 29.9 107.5 188.7 39.2 19.0 11.4

Mar-06 45.3 62.1 79.3 33.7 22.8 123.5 203.8 10.8 14.0

Apr-06 56.8 72.1 91.5 27.9 30.6 125.6 213.5 32.3 21.5 18.7

May-06 63.5 101.4 85.2 29.5 29.0 122.0 168.0 25.0 15.8

Jun-06 66.8 85.4 77.9 25.1 44.0 122.3 231.6 21.7 30.0 19.2

Jul-06 62.4 88.2 77.2 31.1 42.7 140.2 273.5 26.5 22.1

Aug-06 65.7 82.1 71.1 30.1 24.3 125.9 213.3 25.0 27.0 18.0

Sep-06 55.4 73.7 83.6 26.1 27.2 107.3 171.5 33.5 25.3

Oct-06 61.4 79.7 57.8 30.3 40.0 120.1 265.3 25.9 13.0 27.7

Nov-06 15.5 85.3 70.9 22.5 29.0 89.3 158.3 9.8 33.1

Dec-06 43.2 58.7 57.0 21.7 17.8 83.6 172.0 18.2 22.6 18.0

Jan-07 87.3 65.2 86.0 22.6 47.8 105.9 204.0 19.7 13.0

Feb-07 60.1 41.9 41.7 16.1 50.1 68.0 101.2 18.3 11.4 13.2

Mar-07 70.0 53.4 49.8 20.9 37.5 110.1 218.3 14.7 15.8

Apr-07 74.6 71.9 121.2 26.9 28.9 93.6 204.4 22.9 24.4 15.6

May-07 82.4 35.0 34.9 21.1 39.6 97.4 167.3 15.9 17.3

Jun-07 48.3 84.0 90.8 30.4 44.5 88.1 172.5 9.8 29.1 21.5

Jul-07 59.6 75.7 112.7 39.6 50.0 97.1 181.5 37.6 7.4

Aug-07 140.0 46.8 66.6 37.1 54.6 149.3 233.3 18.9 20.5 44.0

Sep-07 48.9 45.2 62.5 24.8 46.2 107.8 179.3 20.9 26.4

Oct-07 51.2 42.0 64.0 24.9 48.5 95.2 157.0 25.1 21.1 30.1

Nov-07 62.2 53.2 61.0 20.0 37.0 80.8 187.0 17.0 14.1

Dec-07 50.9 68.0 76.3 18.6 59.3 89.9 203.3 18.7 24.0 15.7

Jan-08 42.6 70.2 74.2 20.6 44.0 80.4 184.7 35.3 25.1

Feb-08 115.0 70.9 89.8 19.4 55.1 111.0 245.3 23.5 83.2 17.8

Mar-08 64.2 69.5 110.0 17.4 56.8 116.5 232.0 19.8 27.8

Apr-08 58.2 45.9 47.4 22.1 40.4 113.5 247.3 23.8 11.2 14.5

May-08 95.3 34.8 46.2 22.5 50.3 106.1 167.8 25.5 19.6

Jun-08 53.2 68.0 44.0 22.7 45.0 117.5 192.3 25.0 44.5 17.6

Jul-08 79.4 39.9 21.4 25.1 44.5 131.8 210.5 42.8 17.1

Aug-08 85.3 50.2 51.1 27.2 57.9 108.6 141.0 20.0 70.7 25.4

Sep-08 59.4 55.4 27.8 29.9 60.2 109.0 185.8 22.2 21.8

Oct-08 76.5 65.5 73.6 30.8 49.9 96.6 184.0 69.0 10.3

Nov-08 58.2 39.2 49.8 30.1 43.0 92.6 169.5 18.0 18.8 13.9

Dec-08 49.7 32.8 35.6 25.7 35.0 85.7 125.5 15.4 31.3 10.2

Jan-09 48.5 54.0 52.0 19.8 47.6 62.2 97.0 22.6 15.7

Feb-09 36.8 71.1 43.1 23.0 29.0 75.6 126.1 11.0 34.0 10.7

Mar-09 68.4 63.8 73.5 20.3 48.9 84.9 141.2 45.3 9.9

USCA Case #11-1131 Document #1330427 Filed: 09/19/2011 Page 167 of 230
Monthly Average Lead in Biosolids at Non-MACT Floor POTWs (mg/ dry kg)

(2005-2009)

Apr-09 55.3 43.2 41.7 25.8 53.1 67.9 123.0 16.4 28.7 13.9

May-09 33.0 53.3 30.9 20.9 60.0 87.2 146.0 11.0 27.3 10.5

Jun-09 47.8 61.1 78.4 26.1 53.7 99.5 204.3 19.4 53.2 16.4

Jul-09 58.6 62.4 75.4 18.0 56.0 123.2 218.6 19.2 53.3 15.2

Aug-09 55.4 77.4 100.7 18.9 51.0 114.0 188.3 25.8 70.9 17.3

Sep-09 47.3 52.2 31.4 17.0 49.4 103.4 183.9 31.7 15.5

Oct-09 46.6 84.9 78.1 24.9 56.5 94.3 129.3 21.5 39.5 18.6

Nov-09 37.1 47.66 61.908 56.6 82.8 104.8 17.7 65.2 13.4

Dec-09 35.7 52.6 74.7 97.6 22.1

A E F GH I J UW X

25th Percentile 47.8 51.2 49.8 21.8 30.8 89.0 145.7 18.2 20.7 13.4

Minimum 14.9 32.8 21.4 16.1 15.4 62.2 97.0 9.8 2.0 7.4

Median 58.2 62.6 70.9 25.7 44.7 106.7 180.8 21.5 26.3 15.8

Maximum 292.0 102.4 133.3 54.7 60.2 243.8 273.5 39.2 83.2 44.0

75th Percentile 68.4 75.0 81.5 30.2 53.1 122.5 204.1 25.1 34.1 19.5

*Grab samples were removed from POTW "A"

*One-half of the detection limit was used anytime a result was reported as <.

USCA Case #11-1131 Document #1330427 Filed: 09/19/2011 Page 168 of 230
Mercury in Biosolids at Non-MACT Floor POTWs

(Key)

A Canton

B CCCSD

C Greensboro

D Hartford

E MSD St. Louis_Lerney

F MSD St. Louis_Bissell

G Palo Alto

H Columbus

I NEORSD_Southerly

J NEORSD_Westerly

K HRSD_York River

L HRSD_James River

M HRSD_Nansemond

N HRSD_Williamsburg

O HRSD_ArmyBase

P HRSD_BoatHarbor

Q HRSD_Elizabeth

R HRSD_Virginia Initiative

S St. Paul

T Wayne Township

U Anchorage

V Cincinnati_Little Miami

W Cincinnati_Mill Creek

X Indianapolis

USCA Case #11-1131 Document #1330427 Filed: 09/19/2011 Page 169 of 230
Variability in Biosolids Mercury Concentrations at POTWs, 2005 - 2009

012345

A E F GH I J U 

Publicly Owned Treatment Works

Mercury Concentration, mg/kg

max = 6.1

USCA Case #11-1131 Document #1330427 Filed: 09/19/2011 Page 170 of 2
Monthly Average Mercury in Biosolids at Non-MACT Floor POTWs (mg/dry kg)

(2005-2009)

A EFGH I JU V W

Jan-05 1.2 0.9 0.125 1.2 1.2 0.9 0.5 0.3 0.199

Feb-05 0.9 0.3 1.4 0.6 0.8 0.5 1.0 0.3 0.4

Mar-05 0.9 0.3 0.3 1.3 1.3 1.1 0.5 0.8 0.506

Apr-05 0.4 0.125 1.1 0.5 0.9 0.4 0.6 1.3 0.5

May-05 0.6 0.6 0.3 2.1 1.0 1.1 0.5 1.2 0.4

Jun-05 0.6 0.4 1.5 1.1 2.2 0.8 0.0 0.9 0.3

Jul-05 6.1 0.7 0.3 1.7 1.2 1.5 0.9 0.6 0.6

Aug-05 0.5 0.125 1.3 1.2 2.1 0.9 1.4 0.7 0.3

Sep-05 3.0 0.3 0.125 1.6 0.8 4.3 0.8 1.1 0.4

Oct-05 0.4 0.3 2.0 1.1 3.3 1.1 3.1 0.5 0.7

Nov-05 0.7 0.8 0.7 1.2 1.1 1.3 0.6 1.0 0.9

Dec-05 0.4 0.6 1.2 1.0 1.0 0.5 3.0 1.7 1.3

Jan-06 0.8 0.4 0.5 1.4 1.2 0.7 0.6 0.5 0.3

Feb-06 0.5 0.3 1.8 0.7 1.3 0.8 0.8 0.3 0.3

Mar-06 1.6 0.6 0.125 1.1 0.6 1.9 0.5 0.8 0.5

Apr-06 2.5 0.5 0.3 1.3 0.8 1.0 0.7 0.6 0.7 0.6

May-06 3.2 0.5 0.3 1.4 1.9 0.8 0.6 1.1 0.7

Jun-06 1.9 0.6 0.3 0.9 0.8 1.2 2.1 1.4 0.7 0.6

Jul-06 1.9 0.7 0.5 1.1 1.3 1.1 1.0 0.8 0.9

Aug-06 1.0 0.6 0.3 1.1 0.8 1.1 1.3 0.9 0.7 0.6

Sep-06 0.4 0.5 0.4 1.1 1.2 1.3 0.9 1.0

Oct-06 0.4 0.4 0.125 1.2 2.3 1.0 1.7 0.5 0.9 0.6

Nov-06 3.1 0.4 0.3 0.7 0.6 1.0 0.9 1.0 0.5

Dec-06 1.0 0.3 0.125 1.1 0.7 0.9 1.0 0.4 1.2 0.5

Jan-07 1.0 0.4 0.3 0.9 0.2 1.0 1.5 0.7 0.6

Feb-07 1.2 0.0 0.3 0.7 0.9 1.2 0.8 0.6 0.6 0.4

Mar-07 1.0 0.3 0.3 0.9 1.8 0.7 0.9 0.6 0.5

Apr-07 0.9 0.4 0.125 0.8 0.3 1.2 0.7 0.6 0.6 0.6

May-07 0.6 0.4 0.125 0.9 1.6 0.8 1.3 0.9 0.6

Jun-07 0.7 0.5 0.3 0.8 0.8 1.4 1.5 1.0 0.8 0.5

Jul-07 0.4 0.4 0.125 1.2 0.3 1.7 2.0 0.7 0.6

Aug-07 0.9 0.6 0.3 1.0 0.4 2.2 1.4 1.0 0.9 0.8

Sep-07 2.7 0.4 0.4 1.3 0.5 1.3 0.7 0.7 0.6

Oct-07 1.8 0.5 0.4 1.0 0.9 1.0 1.0 1.0 1.3 0.5

Nov-07 1.8 0.5 0.125 0.9 0.4 0.8 0.9 0.7 1.3

Dec-07 0.9 0.5 0.3 0.7 0.5 0.8 0.6 0.7 0.9 0.4

Jan-08 0.8 0.5 0.4 0.9 0.5 0.9 0.6 0.6 0.4

Feb-08 1.4 0.3 0.125 1.0 0.7 0.8 0.7 1.9 0.6 0.5

Mar-08 0.9 0.4 0.125 1.0 1.6 1.0 0.9 0.6 0.4

Apr-08 0.4 0.3 0.4 1.0 0.2 0.9 0.5 0.8 0.6 0.3

May-08 0.4 0.3 0.125 1.2 0.2 0.8 0.5 0.7 0.5

Jun-08 0.1 0.0 0.3 0.9 0.5 0.8 0.8 0.9 0.6 0.4

Jul-08 0.3 0.3 0.125 0.9 0.4 0.8 0.6 1.1 0.5

Aug-08 0.2 0.6 0.4 0.8 0.4 1.5 0.6 0.5 0.6 0.5

Sep-08 0.2 0.5 0.4 0.8 0.3 1.1 0.7 0.8 0.4

Oct-08 0.2 0.5 0.3 0.7 1.4 0.8 0.6 0.8 0.6

Nov-08 0.1 0.3 0.125 0.7 0.8 0.8 0.7 0.6 0.7 0.5

Dec-08 0.1 0.3 0.125 0.6 0.3 0.8 0.4 0.4 0.8 0.6

Jan-09 0.2 0.5 0.3 0.9 0.2 0.6 0.4 0.7 0.5

Feb-09 0.2 0.3 0.1 0.8 0.4 0.9 0.4 0.4 0.5 0.6

Mar-09 0.3 0.4 0.1 0.7 0.5 0.7 0.3 0.7 0.6

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Monthly Average Mercury in Biosolids at Non-MACT Floor POTWs (mg/dry kg)

(2005-2009)

Apr-09 0.4 0.3 0.2 0.9 0.4 0.7 0.4 0.7 0.8 0.4

May-09 0.3 0.3 0.1 0.6 0.4 0.8 0.4 0.2 0.7 0.5

Jun-09 0.5 0.3 0.3 0.7 0.5 0.9 0.8 0.7 0.6

Jul-09 0.6 0.3 0.3 0.7 0.7 1.5 0.9 0.7 0.4

Aug-09 0.6 0.4 0.2 0.6 0.7 2.8 0.6 0.5 0.8 0.5

Sep-09 0.2 0.3 0.1 0.6 0.6 2.1 0.9 0.8 0.5

Oct-09 1.2 0.6 0.2 1.0 0.5 1.0 0.6 0.9 0.9 0.8

Nov-09 0.6 0.3 0.5 0.8 0.8 0.9 0.6 0.6 0.7 0.8

Dec-09 0.7 0.8 0.6 1.4 0.4 0.7 0.9

A EFGH I JU V W

25th Percentile 0.37 0.34 0.13 0.80 0.45 0.83 0.54 0.55 0.60 0.44

Minimum 0.08 0.00 0.10 0.59 0.15 0.61 0.34 0.01 0.30 0.20

Median 0.74 0.44 0.27 0.96 0.72 1.00 0.70 0.67 0.70 0.54

Maximum 6.10 0.91 0.66 2.07 2.25 4.34 2.11 3.07 1.70 1.33

75th Percentile 1.22 0.54 0.34 1.20 1.05 1.34 0.93 1.01 0.90 0.62

*Grab samples were removed from POTW "A"

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ENCLOSURE E 

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