# Exhibit 1

USCA Case #11-1131 Document #1330427 Filed: 09/19/2011 Page 1 of 230NACWA 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 Radiatio n 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 rds of Performance for nd Stay of the Standards 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 an d stay of the newly promulgated emission limitations and other requirem ents under Clean Air Act § 129 applicable to sewage sludge incineration unit s. USCA Case #11-1131 Document #1330427 Filed: 09/19/2011 Page 2 of 230NACWA 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 othe r requirements affecting sewage sludge incinerators w ill have unjustified and substantial negative impac ts on the municipalities and public clean water authorities w ho rely on incineration as the most economically an d environmentally sound alternative for managing bios olids in numerous cities and towns across the Unite d States. Please contact me or Mr. Chris Hornback at (202) 83 3-9106 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 Ag ency USCA Case #11-1131 Document #1330427 Filed: 09/19/2011 Page 3 of 230

### U.S. ENVIRONMENTAL PROTECTION AGENCY

I N RE : P ETITION FOR R ECONSIDERATION AND S TAY OF THE S TANDARDS OF P ERFORMANCE FOR N EW S TATIONARY S OURCES AND E MISSION G UIDELINES FOR E XISTING S OURCES : S EWAGE S LUDGE I NCINERATION U NITS ; F INAL R ULE 76 F EDERAL R EGISTER 15372-15454 (M ARCH 21, 2011) D OCKET N O . 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 reco nsider 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 th e reconsideration proces s and promulgation of regulations replacing the SSI Rule. NACWA is a voluntary, non-prof it association whose curren t membership includes 270 municipalities and public clean water authoritie s. NACWA’s members operate nearly 1,000 of the nation’s publicly-owned treatment works (“POTW s”), which collectively serve the majority of the sewered population of the United St ates. 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 leadersh ip 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 base d, technically sound, and cost-effective environmental programs for pr otecting public and ecosystem health. NACWA and its members have long been advoc ates 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 Federa l 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 in cineration under the SSI Rule gives no attention to the st atutory factors required to be cons idered in order to balance CAA regulation with maintaining inci neration as an environmentally beneficial and economically viable option for these communities. USCA Case #11-1131 Document #1330427 Filed: 09/19/2011 Page 4 of 230As detailed in this petition, the CAA § 129 standa rds: (1) exceed EPA’s authority to regulate SSIs under the CAA, (2) fail to satisfy the f undamental achievability test under both CAA §§ 112 and 129 for establishing a maximum achie vable control technology (“MACT”) floor level of control, (3) lack a rational basis in th e rulemaking record, and (4) fail to consider and respond to numerous significant comments and critici sms 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 pollu tants without the statutory authority to require such controls;

• failing to establish subcategories recognizi ng fundamental class and use differences among SSIs, such as infrequently used backup units; and

• ignoring data showing variability in biosolids feed characteri stics that aff ect 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 influen ce the outcome of, many issues that are of central relevance to the SSI Rule, including th e Agency’s rationale for regulating SSIs under CAA § 129, the critical impact of biosolids fuel ch aracteristics 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 estab lished, the selection of SSI subcategories, and numerous other aspects of the ru le – it is impossible to carve-out and maintain segments of the SSI Rule that are not infected with serious le gal and technical errors. If EPA initiates the requested reconsideration process, it will necessarily touch on esse ntially every aspect of the SSI Rule by potentially eliminating standards for non- HAP pollutants, altering the subcategorization scheme for MACT floor calculati ons, and including significantly more and more representative data in the standard setting process. Given the magnitude of these problems, NACWA re quests reconsideration and stay of the entire SSI Rule, so that we can work with EPA to co rrect errors through an appropriate and legally defensible notice-and-comment rulemaking proce ss. NACWA also requests that EPA initiate this reconsideration process to address potentially inconsiste nt, overlapping and unnecessary requirements from and among the SSI Rule a nd Part 503 regulations. Rationalizing and streamlining the differing sets of requirements a pplying to SSIs is essential to provide regulatory clarity and reduce burdens on municipalities a nd clean water agencies and should not wait until some unspecified future rulemaking. See 76 Fed. Reg. at 15376/2-3.

Page 2 of 25 USCA Case #11-1131 Document #1330427 Filed: 09/19/2011 Page 5 of 230II. STANDARDS FOR RECONSIDERATION AND STAY OF THE SSI RULE Under CAA § 307(d)(7)(B), EPA mu st 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 fo r public comment and the “objecti on is of central relevance to the outcome of the rule.” The rulemaking requ irements under § 307(d) apply to the SSI Rule. See CAA § 307(d)(1)(C) and (D). EPA also has i ndependent and inherent authority under both §§ 129 and 112 to initiate a rulemaking to address le gal and technical errors in the SSI Rule, and to re-set the effective date to allow ti me to promulgate a corrected rule. EPA has included new provisions and new major le gal interpretations in the final SSI Rule. These changes violate administrative law princi ples of notice-and-comment rulemaking unless EPA can show that the changes are a “logi cal outgrowth” of the proposed rule – i.e. , that the public “should have anticipated th at the change was possible, a nd thus reasonably should have filed their comments on the subject du ring the notice-and-comment period.” Environmental Integrity Project v. EPA , 425 F.3d 992, 996 (D.C. Cir. 2005). In addition to initiating a recons ideration process, NACWA also requests that EPA stay the SSI Rule pending review and promulgation of re placement 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 Pr ocedure 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 ju stice so requires.” Similarly, §§ 129(a)(5) and 301(a) of the CAA give EPA authority to undertak e 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 standa rds for reconsideration a nd 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 Ru le and to initiate a new rulemaking to develop replacement regul ations 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 esta blished a series of deadlines by which EPA was to complete certain duties under CAA §§ 112(c)(3), (c )(6) and (k)(3), includ ing adopting standards for SSIs. Prior to the comment period on the SSI Rule, the deadline fo r taking action under the District Court’s order was extended to January 16, 2011 to allow EPA additional time to develop the SSI Rule.

Page 3 of 25 USCA Case #11-1131 Document #1330427 Filed: 09/19/2011 Page 6 of 230Through pre-proposal meetings a nd written submissions to EPA, NACWA and several of its members submitted a wide range of informati on on POTWs and SSIs, including, critically for this petition, information regarding the region al, seasonal and daily variability of biosolids composition as evidenced by metals concentration data available th rough the CWA Part 503 program, the effect such variability has on emissions from biosolids incineration, and information on the technical limitations of a pplying 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 improveme nts. NACWA’s comments on the proposed SSI rule totaled about 500 pages, including over 200 pa ges of narrative comments and approximately 300 pages of technical support. Several NACWA members, including the followi ng 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) Sanita tion 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 fl aws 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).

Page 4 of 25 USCA Case #11-1131 Document #1330427 Filed: 09/19/2011 Page 7 of 230Eight days later, on December 7, 2010, EPA filed a motion asking the District Court to extend the deadline for completing the SSI Rule to Ju ly 15, 2011. EPA’s initial and reply memoranda and the declarations submitted in support of EPA’s motion 2 demonstrated the Agency’s belief that it could not produce defensib le rules for SSI units any soone r 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 res pond 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 addi tional time requested in order to cons ider and respond to comments and to deal with the implicatio ns of those comments in revisions to the proposed rule. While EPA noted in its December 7 motion th at 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. Tsir igotis (“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 approx imately 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 ar e 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 requirem ents that cannot withst and judicial review. Granting NACWA’s petition would allow the additiona l time needed for EPA to develop a better understanding of this sector and the manner in which Congr ess 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).

Page 5 of 25 USCA Case #11-1131 Document #1330427 Filed: 09/19/2011 Page 8 of 230The issues that are the subject of this petition fu ndamentally 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 commen ts 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 promulga te 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 incl udes “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 integrat ed 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 SSI s as a source category are to be regulated under CAA § 112. Our comments provided refere nces 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”).

Page 6 of 25 USCA Case #11-1131 Document #1330427 Filed: 09/19/2011 Page 9 of 230In the proposed rule, the sum tota l of EPA’s statements on this t opic 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 regula te 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 pr ovision that “simply identifies the date by which EPA must issue emissions st andards for POTW,” (2) that the decision in NRDC v. EPA , 489 F.3d 1250 (D.C. Cir. 2007) “preclud es” 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 fi rst 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 wh at 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 achiev e 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 st andards under § 112(d), (2) how it implicitly reached the conclusion that SSIs are no t 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 a nd improved using CWA Title II funds, nor (4) how EPA’s new interpretation squares with the ex amples NACWA provided of previous Agency rulemakings and policy statements. EPA’s failu re 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 compe lled 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 wit hout regard to major/ar ea source distinctions, emission standards for pollutants not subject to regulation under § 112, and in other requirements ( e.g ., siting analyses and operato r training) which are manda tory under § 129 and not under § 112. EPA is obligated unde r § 307(d)(7)(B) to grant r econsideration under these circumstances, and we believe there is a substant ial likelihood that changes will be made to the SSI Rule if EPA takes the opportunity to engage these issues.

Page 7 of 25 USCA Case #11-1131 Document #1330427 Filed: 09/19/2011 Page 10 of 2302. 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. St arting with EPA’s decision to circumvent the Paperwork Reduction Act and Office of Mana gement and Budget review by limiting its information collection to only nine of the rough ly 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 inci nerators (“FBIs”) and the best 18 multiple hearth incinerators (“MHIs”). See Revised MACT Floor An alysis for the Sewage Sludge Incinerator Source Categor y (January 2011) (“Revised MACT Floor Memo”) at 6. Even after collecting additional data fr om 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 seve n 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 us ed to set the MACT st andards 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 EP A’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 lim itations 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 la nguage 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 fl oor for existing sources cannot be less stringent than “the average emission lim itation achieved by th e best performing 12 percent of the existing sources (for which the Administrator has emissions information)[.]” Section 129, however, simp ly states that the existing source floor cannot be less stringent than the averag e emission limitation achieved by the best performing 12 percent of the existing sour ces in the category. Therefore, while EPA believes Congress intended for th e 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 percen t of sources in the category . Because EPA does not have that data at this time, the sta tistical 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 adde d). 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.

Page 8 of 25 USCA Case #11-1131 Document #1330427 Filed: 09/19/2011 Page 11 of 230Instead, EPA decided not to obtai n stack test data from the re quired minimum number of SSIs based on expediency. EPA’s rush through rulema king also resulted in the Agency disregarding data provided by NACWA and its members that woul d 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 data base 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 resu lt, EPA’s database relies heavily on data from the 17 stack tests performe d 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 charac teristics 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 underg irding § 129, as explained below. a. Failure to engage in rati onal 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 anal ysis of Part 503 data into the MACT floor determinations. We pointed out th at POTWs are required to track a nd report metals data in their biosolids year-round and dur ing all periods of operation and, therefore, EPA already had all the Part 503 data it needs to examine va riability for metals. As an il lustration of the magnitude of variability encountered by PO TWs, NACWA’s comments include d the following example of monthly average metals concentrations from two facilities owned by NEORSD showing that average metal concentrations with in a single plant varied by a fact or of three or more over this 12-month period:

Page 9 of 25 USCA Case #11-1131 Document #1330427 Filed: 09/19/2011 Page 12 of 2302009 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 conc lusion that single stack tests in the winter of 2010 from nine different facilities in ni ne different states “represents sufficient variation in regions, cl imates, and populations that ade quately 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 tensio n 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 vari ability of sludge ch aracteristics. See EPA Reply Memo at 21. Mr. Tsirigotis’ supplemental declar ation elaborated that, with respect to the variability issue: [EPA] would need to make appropriat e revisions to the proposed emissions standards, including re-eva luating the regulatory imp act analysis, variability analyses, and the levels of the standards th emselves. In particular, we would plan to analyze information rega rding the variability of sludge content, determine whether that analysis warrants any revisions to the variability incorporated into the proposed standards, and calculate re vised MACT floors, as appropriate. Tsirigotis Supp. Decl. ¶34b. However, in the SS I Rule EPA does not even attempt to reconcile this conclusion with the large quan tity of Part 503 data available to it. Instead, EPA states that “there is not enough information to determine wh ether it would be appropr iate 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 EP A’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

Page 10 of 25 USCA Case #11-1131 Document #1330427 Filed: 09/19/2011 Page 13 of 230been to contact commenters to reques t 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 reconsiderati on request, NACWA enclos es 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 Auth ority, Upper Blackstone (MA) Water Pollution Abatement District, Central Contra Costa (CA) San itary District, Metropolitan District Hartford (CT), Ypsilanti (MI) Community Utilities Authority, Wayne Township (NJ) Sewer Authority, Indianapolis (IN) Sewer Aut hority, two POTWs operated by th e Metropolitan Council (MN) Environmental Services, and fi ve POTWs operated by HRSD.

Cadmium in Biosolids (mg/dry kg) (2005-2009)

POTW 25 th Percentile Minimum Median Maximum 75 th 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-h alf the detection limit was used in calculations. ND is used when over 90 percent of the data are below th e detection limit and the artificial value would significantly distort actual variability.

4 All of the enclosed data were generated pursuant to th e 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 or iginally submitted to the permitting authorities.

Page 11 of 25 USCA Case #11-1131 Document #1330427 Filed: 09/19/2011 Page 14 of 230Lead in Biosolids (mg/dry kg) (2005-2009)

POTW 25 th Percentile Minimum Median Maximum 75 th 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 25 th Percentile Minimum Median Maximum 75 th 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 th e detection limit and the artificial value would significantly distort actual variability.

Page 12 of 25 USCA Case #11-1131 Document #1330427 Filed: 09/19/2011 Page 15 of 230These data and the monthly average data summar ized in Enclosure D strongly illustrate the significant variability in metals concentrations among PO TWs and within a POTW over relatively short time periods. 5 For example, the enclosed monthly Part 503 data show:

• Average metals concentrations in biosolids f eed vary significantly at all these POTWs. The data show average Cd concentrations ra nging from a minimum of 0.2 mg/dry kg to a maximum of 46 mg/dry kg at the Seneca (M N) 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 th e Metropolitan St. Louis Sewer District Bissell Point POTW. By way of example, an FB I (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 te sting in response to EPA’s I CR were close to the lowest levels recorded over the five years of m onthly data (i.e., at or less than the 25 th percentile concentration). Yet EPA did not consider th is variability at all in its MACT floor calculations nor in setting the le vel 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 th e Upper Blackstone (M A) 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 th ese POTWs were at or below the 25 th percentile average concentration for Pb during the pe riod leading up to the ICR stack testing.

• Average Hg concentrations ranged from a lo w 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 75 th 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. Loui s Sewer District LeMay POTW.

• Biosolids characteristics are unique to a POTW even within the same geographic region – for example, the Metropolit an St. Louis LeMay plant re gistered 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 thou gh the monthly averages generated from Part 503 data necessarily mask even

more significant short term variability.

Page 13 of 25 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, th e HRSD Boat Harbor plant registered its lowest Pb value (17 mg/dry kg) over a five -year period in Octobe r 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 demonstr ating that the proposed emission limits were not supported by sound data. EPA did not use thes e data simply because commenters did not include a complete stack test re port in their comment submission. Id. at 15387/2-3. Again, the proper response from EPA would have been to contact the commenter s 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 th at some (and maybe most) of th e 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 clear ly improper for the Agency to use only the data it wants and to disregard contrasting informati on 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 undoubt edly affected the level of both the new and existing source emission standards. b. Failure to satisfy the achie vability requirement of CAA § 129. The failure to use adequate data had a profound im pact on EPA’s ability to demonstrate that the SSI standards are in fact ach ieved 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 condi tions that affect inlet biosol ids 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 fo r 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).

Page 14 of 25 USCA Case #11-1131 Document #1330427 Filed: 09/19/2011 Page 17 of 230its 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 th e MHIs at its Virginia Initiativ e 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 be yond-the-floor standard was fl awed in several respects. However, despite EPA’s assumption that all ex isting FBIs will be able to achieve the MACT floor Hg limits without additional c ontrols, NACWA has iden tified at least two utilities that believe their units cannot ach ieve the 0.037 mg/dscm Hg standard without add-on carbon controls (carbon adsorption or activated carbon injection [“ACI”]), technologies that EPA has ag reed 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 commente rs 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 bot h standards and, if not, install NOx controls as necessary ... .” 76 Fed. Reg. at 15386/2. EPA ad mits that there are only limited data on SSIs with FGR, that no SSIs currently use SNCR or SCR, and that ther e 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 reas on why [these NOx control technologies] could not be used. Given the limited da ta available on SSI units with FGR, we could not definitely determine how e ffective the technology was on SSI units. However, we also do not know of a techni cal 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 di fficulties experienced by th e two utilities that use add-on controls for Hg, where both experi enced severe abrasion and corrosion problems shortly after installation. In a ddition, for ACI to be effective, the high exhaust gas temperatures leaving the incinerator must be cooled to roughl y 350 degrees F with heat exchangers and waste heat boilers, and a contact chamber is required to ensure sufficient time for adsorption. On the

Page 15 of 25 USCA Case #11-1131 Document #1330427 Filed: 09/19/2011 Page 18 of 230other hand, since carbon adsorption units are lo cated after the wet scr ubber, the exhaust gas temperature have high moisture content that must be dried (by incr easing the exhaust gas temperature) to ensure adsorption. We believe these same conditions present efficiency and reliability problems for other types of add-on c ontrols (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 fundame ntal principles of rational rulemaking, require EPA to demonstrate that there are methods available for well-operate d 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 de monstrated 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 fr om the standpoint of basic design ( i.e. , within each subcategory) to achieve at least the same redu ced level of emissions; and (3) preserve, protect and enhance the economic vitality of the nati onal 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 th at 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 un its in the subcategory. EPA can make such a demonstration by showing that some technically feasible means of achieving the floor is gene rally 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 fl oors only on a tiny amount of test data, without fully examining inherent variability in emission ch aracteristics and the limitations of control technologies, it could produce standards which ma ny 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 incinerati on, contrary to the congressional vision for (1) MACT-based technol ogy 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 sub category generally have some m eans of achieving as a technical matter, as demonstrated by act ual usage within the subcateg ory. 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.

Page 16 of 25 USCA Case #11-1131 Document #1330427 Filed: 09/19/2011 Page 19 of 230Similarly, § 129(a)(2) is also an expression of this mandate, in th at it requires EPA to set the floor for new units at the level re presenting the “degree of reduction in emissions” that is not less stringent than the emissions control that is “ach ieved in practice by the best controlled similar unit ... .” The phrases “degree of reduction in emissions,” “achieved in practice,” and “best controlled similar unit” all sugge st the application of control measures to pollutant-emitting equipment. For existing units the floor is to be set at the average level ac tually “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 generate d would stimulate the ap plication 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, C ongress sought to control § 129 emissions by forcing the application of pol lution control measures without upsetting the basic choice as to the design of the pollution sour ce. If EPA, however, were to base a floor only on emission data, without examining the features that drive emissi on performance of units within the subcategory and the availability of demonstr ated control technology for the types of units to be regulated, it could end up se tting a floor which would opera te 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 technol ogy-based emission standards for stationary sources, namely: § 111 (NSPS), § 112 (NESHAP), § 165 (Best Available Control Technology for certain new construction project s), § 172(c)(1) (Reasonabl y Available Control Technology for existing sources as control by St ate Implementation Plans), and § 173 (Lowest Achievable Emission Rate for certain new constr uction projects). In each case, the basic approach is to set a benchmark based on the app lication 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 diffe rently or to authorize EPA in setting § 129 standards to encroach fundamentally on that ba sic 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 a nd 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 cau se-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 square ly whether EPA may set a floor solely on the basis of emission data, without regard to the exis tence 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

Page 17 of 25 USCA Case #11-1131 Document #1330427 Filed: 09/19/2011 Page 20 of 230address that issue squarely. As characterized by EPA in its June 2010 Boiler MACT proposal, the closest the court came to a ddressing 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 ach ieve 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 EP A’s obligation to demonstrate that a proven means of control is available and th at 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 performi ng” units or “best controlled” unit over time – and failed to demonstrate that there are proven technologies av ailable 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 dete rmine 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 emissi on data it used to identify the “method [or] technology” of emissions control that expresse s 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 fact ors – in particular the composition of inlet biosolids – that determine emission pe rformance and not the av erage performance of identifiable control “methods [or] techniques.” Thus the SSI Rule floors are based on numerical happenstance at the moment one of 17 stack test s was performed, as opposed to statisticallysound averages of the actual performance of control technologies, taki ng variability of known factors into account. c. Summary and conclusion. In sum, EPA has not taken into account the la rge amount of available data showing that the limited floor database is not representative of va riations in biosolids feed characteristics and foreseeable SSI operations. A lthough 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 el evated 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 contro ls 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 fina l standards is achievable by the best performing units under all reasonably foreseeable op erating conditions.

Page 18 of 25 USCA Case #11-1131 Document #1330427 Filed: 09/19/2011 Page 21 of 2304. The SSI Rule does not consider subcat egories other than FBIs and MHIs. EPA’s proposed and final rules address emissi on 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 ty pe design that is also being us ed 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 f eed system, combustion chamber, reciprocating grates, under- and overfire air fans and ash removal system. It requi res a significantly drier biosolids – typically 90 percent solids compared to the 25-40 percent so lids 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 he at recovery system that provi des 70-80 percent of the energy necessary to operate the sludge f eed dryer and other systems. The stoker/grate type design has a nu mber of features that affect em ission 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 in corporate a drying zone in a combustion chamber. Because the stoker/grate design uses a mu ch 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 se nsitive to variations in moisture content and other fuel characteristics. Because the stoker/gr ate 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 injectio n 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 emissi ons. 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 propo sed rule does not discuss it and there are no emission data on this type of incinerator in th e 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 us ing this technology a nd 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 sub categorization 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 re sult, EPA did not calculate MACT floors or

Page 19 of 25 USCA Case #11-1131 Document #1330427 Filed: 09/19/2011 Page 22 of 230propose 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 subj ect new and modified MHIs to unachievable emission limitations. EPA reversed course in the SSI Rule and pr omulgated separate new source performance standards for MHIs and FBIs. However, in do ing 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 th e five SSIs that were used to set the MACT floors, nor was the public given the opportunity to comment on th e data and calculations EPA used to set the floors. The failure to provide adequate notice and comme nt on the new source standards is not merely objectionable as to process. Based on study by utilities since the fina l rule was published, it appears that many new/modified MHIs, particular ly 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 us e 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 agre ed that ACI is not a proven technology on MHIs and that the only known a pplications on other incinerator types have experienced serious operational and reliability problems. Here agai n, EPA’s failure to provide for public comment ( e.g. , through a notice of data ava ilability and supplemental comment period) and failure to consider data on variability has produced no know n 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 ru lemaking to establish emission standards under § 112(d) for the coal- and oil-fire d 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/fu ran organic HAP because the majority of the test measurements in EPA’s MACT floor data base 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 concl uded that it “considers it impr acticable to reliably measure emissions from these units.” 76 Fed. Reg. at 25040/1.

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

Generating Units and Standards of Performance for Foss il-Fuel-Fired Electric U tility, Industrial-CommercialInstitutional, and Small Industrial-Commercial-Institutional Steam Generating Units; Proposed Rule,” 76 Fed. Reg. 24976 (May 3, 2011) (“Utility MACT”).

Page 20 of 25 USCA Case #11-1131 Document #1330427 Filed: 09/19/2011 Page 23 of 230To support its approach EPA noted that 1,552 of th e 2,334 (67 percent) test runs for dioxin/furan organic HAP from electric utility steam genera ting 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 containe d 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 expl ained 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 set ting 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 exhibite d by the Utility MACT database. For example, data from five of the six test r uns (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 fl oor 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 percen t) 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, elevat ed sulfur-to-chlorine ra tios 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-ch lorine ratio much grea ter than 1-1, with a ratio as high a 10-1 having been reported. The el evated sulfur-to-chlorine relationship is also exhibited in the flue gases from the six MH Is 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 base d on comments that the feed rates would not be achievable for some SSIs, would artificially chan ge permitted feed rates and would force some SSIs to conduct performance tests at nearly 100 percent of the unit’s ra ted capacity. However, EPA added a new requirement that SSIs must be operated at 85 per cent of their maximum permitted capacity during each compliance test run.

Page 21 of 25 USCA Case #11-1131 Document #1330427 Filed: 09/19/2011 Page 24 of 230The new performance test specification is not achievable for POTWs that do not generate sufficient biosolids on a continuous basis and th at 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 acut e for longer test runs, such as th e 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 duratio n of tests at such a high capacity. EPA should reconsider this test requirement and allow utiliti es to select lower feed rates for performance testing. IV. GROUNDS FOR STAY The Administrator has clear aut hority under CAA § 307(d)(7)(B) to postpone the effective date of the SSI Rule for an initial three month period if reconsideration is gr anted. Such a stay is appropriate based upon the same grounds underlying EPA’s decision to grant reconsideration. In addition, EPA may further po stpone 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 th e SSI Rule; and, as detailed below, fundamental principles of justice and of sound governme nt strongly support granting a stay. Furthermore, as mentioned above, CAA §§ 129(a)(5) and 301(a) give EPA au thority at any point in time to undertake a process of co rrecting a § 129 rule and to esta blish 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 re sources 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 th e 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 s ource of stay authority, but concluding that the exercise of that authority wa s not appropriate in the case at ha nd). 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 vi able control tec hnologies exist that will allow them to incinerate in compliance w ith the rule. Other POTWs predict that they do not have the space and other facilities to retr ofit their MHIs. Wit hout 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 a nd start the conversio n to landfilling. The impacts of switching away from incineration are practically irreversible and are magnified precisely because landfilling is not an envir onmentally or economically attractive option for utilities who currently incinera te. Utilities who choose to swit ch are extremely unlikely to switch back if EPA later promulgates a defensible SSI rule because they will have eliminated

Page 22 of 25 USCA Case #11-1131 Document #1330427 Filed: 09/19/2011 Page 25 of 230their incineration systems and invested millions in new treatment equipment, biosolids storage, and truck loading facilities. See HRSD Declaration ¶8. As po inted out in NACWA’s comments, the increased diesel exhaust emissions from t housands 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 diffi cult and costly to monitor and c ontrol. The harm is magnified when one also considers the resulting methane emissions from landfills, increased consumption of fuel for transportation, additional traffic c ongestion, wear and tear on city streets and other impacts on communities. EPA failed to consid er 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 adop ted 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 a nd 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 res ponded 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 th at incinerators were forced to achieve by virtue of unlawful predecessor MACT standards that the D.C. Ci rcuit 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 no netheless sets the st age 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 possi ble at all. If ultimately EPA repeals those standards during reconsideration (o r if the D.C. Circuit vacates a nd remands the SSI Rule back to EPA), then, according to EPA’s current interpreta tion 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 a dded solely due to the previous unlawful standards is apparently i rrelevant in the Agency’s view of § 129. For example, new and modified units that were fo rced 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 ra tcheting 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 inte rpretation 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 i ssuing 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. Retr ofitting SSIs with the necessary add-on control equipment is a costly and time-consuming proc ess. Many POTWs are being forced to start planning and procurement activi ties immediately in order to identify compliance gaps, locate capital project funding sources, acqu ire the necessary engineering serv ices and equipment, and to

Page 23 of 25 USCA Case #11-1131 Document #1330427 Filed: 09/19/2011 Page 26 of 230complete the major infrastructure and control e quipment 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, co nstruction of new building space and acquisition/installation of seve ral new types of add-on control e quipment. 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 municipali ties and public authorit ies will be forced to start spending public funds and committing other scarce resources to planning, engineering and procurement of additional building space, add-on c ontrol 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 alon e to retrofit the five primary MHIs at its POTWs. See HRSD Declaration ¶7. This estimate a ssumes that all five POTWs will eliminate their current ‘backup’ MHI units because it is no t 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 ha s the authority to stay the SSI Rule pending reconsideration even after it takes effect. First, the last senten ce of § 307(d)(7)(B) assume s that EPA would first decide to reconsider and then, either simultaneous ly or subsequently, issu e a three month stay. EPA’s decision to reconsider, however, could occu r after the rule in que stion takes effect. Implicitly, therefore, EPA may issue a stay of eff ectiveness after the initial effective date. Once the stay is in place, the SSI Ru le 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/N SR 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 combinati on 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 implemente d as a direct final ru le soon after granting reconsideration to avoid the consequences discus sed above and a new effective date promulgated in the same rulemaking that adopts replacement regulations for SSIs.

Page 24 of 25 USCA Case #11-1131 Document #1330427 Filed: 09/19/2011 Page 27 of 230V. CONCLUSION For the foregoing reasons, NACWA urges EPA to rec onsider the SSI Rule a nd to stay or re-set the effective date and implementation of the SSI Rule pending completion of the reconsideration process and promulgation of replacement regulati ons. 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 ener gy 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 m eaningful reform to the SSI Rule. May 24, 2011 Respectfully submitted,

N ATIONAL A SSOCIATION OF C LEAN W ATER A GENCIES 1816 Jefferson Place, NW Washington, DC 20036 Jeffrey A. Knight Peter H. Wyckoff P ILLSBURY W INTHROP S HAW P ITTMAN LLP 2300 N Street, NW Washington, DC 20037 (202) 663-9152 jeffrey.knight@pillsburylaw.com

Page 25 of 25 USCA Case #11-1131 Document #1330427 Filed: 09/19/2011 Page 28 of 230

# ENCLOSURE A

USCA Case #11-1131 Document #1330427 Filed: 09/19/2011 Page 29 of 2301 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 Case 1:01-cv-01537-PLF Document 136-1 Filed 12/07/10 Page 1 of 23 USCA Case #11-1131 Document #1330427 Filed: 09/19/2011 Page 30 of 2302 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. Case 1:01-cv-01537-PLF Document 136-1 Filed 12/07/10 Page 2 of 23 USCA Case #11-1131 Document #1330427 Filed: 09/19/2011 Page 31 of 2303 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.); s ee 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 Case 1:01-cv-01537-PLF Document 136-1 Filed 12/07/10 Page 3 of 23 USCA Case #11-1131 Document #1330427 Filed: 09/19/2011 Page 32 of 2304 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 su ccessfully 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 Case 1:01-cv-01537-PLF Document 136-1 Filed 12/07/10 Page 4 of 23 USCA Case #11-1131 Document #1330427 Filed: 09/19/2011 Page 33 of 2302 Alkylated lead compounds, polycyclic organic matter, hexachlorobenzene, mercury, polychlorinated biphenyls, 2,3,7,8- tetrachlorodi benzofurans, 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 standa rds 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). Case 1:01-cv-01537-PLF Document 136-1 Filed 12/07/10 Page 5 of 23 USCA Case #11-1131 Document #1330427 Filed: 09/19/2011 Page 34 of 2306 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 mo re 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 Case 1:01-cv-01537-PLF Document 136-1 Filed 12/07/10 Page 6 of 23 USCA Case #11-1131 Document #1330427 Filed: 09/19/2011 Page 35 of 2303 The Court also required EPA to issue re gulations 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. Case 1:01-cv-01537-PLF Document 136-1 Filed 12/07/10 Page 7 of 23 USCA Case #11-1131 Document #1330427 Filed: 09/19/2011 Page 36 of 2304 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 diffe rent 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. Case 1:01-cv-01537-PLF Document 136-1 Filed 12/07/10 Page 8 of 23 USCA Case #11-1131 Document #1330427 Filed: 09/19/2011 Page 37 of 2305 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 Case 1:01-cv-01537-PLF Document 136-1 Filed 12/07/10 Page 9 of 23 USCA Case #11-1131 Document #1330427 Filed: 09/19/2011 Page 38 of 230why 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) Case 1:01-cv-01537-PLF Document 136-1 Filed 12/07/10 Page 10 of 23 USCA Case #11-1131 Document #1330427 Filed: 09/19/2011 Page 39 of 23011 “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 “so lid 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). Case 1:01-cv-01537-PLF Document 136-1 Filed 12/07/10 Page 11 of 23 USCA Case #11-1131 Document #1330427 Filed: 09/19/2011 Page 40 of 2307 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 Case 1:01-cv-01537-PLF Document 136-1 Filed 12/07/10 Page 12 of 23 USCA Case #11-1131 Document #1330427 Filed: 09/19/2011 Page 41 of 23013 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 Case 1:01-cv-01537-PLF Document 136-1 Filed 12/07/10 Page 13 of 23 USCA Case #11-1131 Document #1330427 Filed: 09/19/2011 Page 42 of 2308 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 ofadditional new data, the major source boilers, area source boilers, and CISWI rules will have farreaching effects. Estimates of the monetized valu e 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 Case 1:01-cv-01537-PLF Document 136-1 Filed 12/07/10 Page 14 of 23 USCA Case #11-1131 Document #1330427 Filed: 09/19/2011 Page 43 of 23015 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 Case 1:01-cv-01537-PLF Document 136-1 Filed 12/07/10 Page 15 of 23 USCA Case #11-1131 Document #1330427 Filed: 09/19/2011 Page 44 of 23016 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. Case 1:01-cv-01537-PLF Document 136-1 Filed 12/07/10 Page 16 of 23 USCA Case #11-1131 Document #1330427 Filed: 09/19/2011 Page 45 of 23017 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-PROPO SAL 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 Case 1:01-cv-01537-PLF Document 136-1 Filed 12/07/10 Page 17 of 23 USCA Case #11-1131 Document #1330427 Filed: 09/19/2011 Page 46 of 23018 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 f iled 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. Case 1:01-cv-01537-PLF Document 136-1 Filed 12/07/10 Page 18 of 23 USCA Case #11-1131 Document #1330427 Filed: 09/19/2011 Page 47 of 2309 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 wit hout 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. Case 1:01-cv-01537-PLF Document 136-1 Filed 12/07/10 Page 19 of 23 USCA Case #11-1131 Document #1330427 Filed: 09/19/2011 Page 48 of 23020Mr. 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 promulga tion, 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. Case 1:01-cv-01537-PLF Document 136-1 Filed 12/07/10 Page 20 of 23 USCA Case #11-1131 Document #1330427 Filed: 09/19/2011 Page 49 of 23021 II. IF THE COURT DECLINES TO ALLO W EPA TIME TO RE-PROPOSE THE SECTION 112(c)(6) EMISSION ST ANDARDS, 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. Case 1:01-cv-01537-PLF Document 136-1 Filed 12/07/10 Page 21 of 23 USCA Case #11-1131 Document #1330427 Filed: 09/19/2011 Page 50 of 23022 III. WITH RESPECT TO THE SECTIO N 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 Case 1:01-cv-01537-PLF Document 136-1 Filed 12/07/10 Page 22 of 23 USCA Case #11-1131 Document #1330427 Filed: 09/19/2011 Page 51 of 23023 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 Case 1:01-cv-01537-PLF Document 136-1 Filed 12/07/10 Page 23 of 23 USCA Case #11-1131 Document #1330427 Filed: 09/19/2011 Page 52 of 230

# EXHIBIT 1

Case 1:01-cv-01537-PLF Document 136-2 Filed 12/07/10 Page 1 of 50 USCA Case #11-1131 Document #1330427 Filed: 09/19/2011 Page 53 of 230

### 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. Case 1:01-cv-01537-PLF Document 136-2 Filed 12/07/10 Page 2 of 50 USCA Case #11-1131 Document #1330427 Filed: 09/19/2011 Page 54 of 230Case 1:01-cv-01537-PLF Document 80 

### Filed 03/31/2006 Page 2 of 4

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 Case 1:01-cv-01537-PLF Document 136-2 Filed 12/07/10 Page 3 of 50 USCA Case #11-1131 Document #1330427 Filed: 09/19/2011 Page 55 of 230

### Case 1 :01-cv-01537 -PLF Document 80 

### Filed 03/31/2006 Page 3 of 4

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 Case 1:01-cv-01537-PLF Document 136-2 Filed 12/07/10 Page 4 of 50 USCA Case #11-1131 Document #1330427 Filed: 09/19/2011 Page 56 of 230Case 1:01-cv-01537-PLF Document 80 

### Filed 03/31/2006 Page 4 of 4

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 Case 1:01-cv-01537-PLF Document 136-2 Filed 12/07/10 Page 5 of 50 USCA Case #11-1131 Document #1330427 Filed: 09/19/2011 Page 57 of 230

# EXHIBIT 2

Case 1:01-cv-01537-PLF Document 136-2 Filed 12/07/10 Page 6 of 50 USCA Case #11-1131 Document #1330427 Filed: 09/19/2011 Page 58 of 230Case 1:01-cv-01537-PLF Document 128 Filed 09/10/2009 Page 1 of 2 Case 1:01-cv-01537-PLF Document 136-2 Filed 12/07/10 Page 7 of 50 USCA Case #11-1131 Document #1330427 Filed: 09/19/2011 Page 59 of 230Case 1:01-cv-01537-PLF Document 128 Filed 09/10/2009 Page 2 of 2 Case 1:01-cv-01537-PLF Document 136-2 Filed 12/07/10 Page 8 of 50 USCA Case #11-1131 Document #1330427 Filed: 09/19/2011 Page 60 of 230

# EXHIBIT 3

Case 1:01-cv-01537-PLF Document 136-2 Filed 12/07/10 Page 9 of 50 USCA Case #11-1131 Document #1330427 Filed: 09/19/2011 Page 61 of 230

### Case 1:01-cv-01537-PLF Document 133 Filed 04/13/10 Page 1 of 1 

# 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. Case 1:01-cv-01537-PLF Document 136-2 Filed 12/07/10 Page 10 of 50 USCA Case #11-1131 Document #1330427 Filed: 09/19/2011 Page 62 of 230

# EXHIBIT 4

Case 1:01-cv-01537-PLF Document 136-2 Filed 12/07/10 Page 11 of 50 USCA Case #11-1131 Document #1330427 Filed: 09/19/2011 Page 63 of 230

### 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 Case 1:01-cv-01537-PLF Document 136-2 Filed 12/07/10 Page 12 of 50 USCA Case #11-1131 Document #1330427 Filed: 09/19/2011 Page 64 of 230Case 1:01-cv-01537-PLF Document 135 Filed 09/20/10 Page 2 of2

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). 

# /.((" lY 5 l i Executedthis_dayof - ~/":':7Jr,i"i.."' ,2010. 

# O ~ / 

# ~ . " ~.. I.. ., .) ('(. i.-' . ." '-~ ..~ __ HON. PAUL L. FRlEDM N UNITED STATES DISTRICT COURT JUDGE

2 Case 1:01-cv-01537-PLF Document 136-2 Filed 12/07/10 Page 13 of 50 USCA Case #11-1131 Document #1330427 Filed: 09/19/2011 Page 65 of 230

# EXHIBIT 5

Case 1:01-cv-01537-PLF Document 136-2 Filed 12/07/10 Page 14 of 50 USCA Case #11-1131 Document #1330427 Filed: 09/19/2011 Page 66 of 23046 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 toDisJISS 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, herebyORDERED 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 ofthe Clean Ai Act, seekig to compel Environmental Protection Agency (EP A) to perform a nondiscretionary duty under the Act. Mter parties entered into a partialconsent 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 proposedby 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. Case 1:01-cv-01537-PLF Document 136-2 Filed 12/07/10 Page 15 of 50 USCA Case #11-1131 Document #1330427 Filed: 09/19/2011 Page 67 of 230SIERRA 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 meetthe 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 mayafford an agency additional time for compliance where it is convinced by the offcialinvolved 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 datecertain, that intent is of utmost importance, and a court considering an agency's claim of impossibilty must not order a remedy that would completely neutralizethe mandatory nature of the statutory directive. 4. Administrative Law and Procedure ~741 When an agency has failed to meet amandatory 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 AiAct amendments to promulgate reguations governing the discharge of certainhazardous 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'sobligations 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 slightlymore 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, HaroldPatrick 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 the1990 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 Case 1:01-cv-01537-PLF Document 136-2 Filed 12/07/10 Page 16 of 50 USCA Case #11-1131 Document #1330427 Filed: 09/19/2011 Page 68 of 23048 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 forsummary judgment. This Opinion explains the reasoning underlyig that Order. 1. BACKGROUND

A. 1990 Clean Air Act AmendmentsOn 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 CleanAi 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.3d625, 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 beadequately 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 locatedwithin a contiguous area and under common control that emits ... 10 tons peryear 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 "areasource" is "any stationar source of hazardous ai pollutants that is not a major source." 42 U.S.C. § 7412(a)(2).2 The Actcalls 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 andasphalt 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 beamong the major source or area source categories listed for several HAPs. Case 1:01-cv-01537-PLF Document 136-2 Filed 12/07/10 Page 17 of 50 USCA Case #11-1131 Document #1330427 Filed: 09/19/2011 Page 69 of 230SIERRA CLUB v. JOHNSON Cite as 444 F.Supp.2d 46 (D.D.C. 2006) 49Compounds (''VOCs'' or "ozone precursors"), a major contributor to ground-levelozone pollution (smog). VOCs are a component of automobile exhaust, and also are emitted in the fumes from products likeoil-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 areaswhere 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 hazardousair 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 thecategories or subcategories of sources "accounting for 90 per centum or more of theaggregate emissions of each of the 30 identifed hazardous air pollutants" within 5years 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 ofthe 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 sourcecategories that must be regulated under Section i 12(c)(6). 5. The seven HAPs listed are alkylated leadcompounds, polycyclic organic matter, hexaof Facts ~ 2. The list has since been revised several times, but currently contains70 area source categories. EPA has promulgated emission standards for only 15 of these 70 categories. See Declaration ofSteve 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"). TheConsent 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 (mercurycell 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 categorieschlorobenzene. mercury, polychlorinated biphenyls, 2,3,7, 8-tetrachlorodibenzofurans and 2.3,7,8-tetrachlorodibenzo-p-dioxin. 42 U.S.C § 7412(c)(6). Case 1:01-cv-01537-PLF Document 136-2 Filed 12/07/10 Page 18 of 50 USCA Case #11-1131 Document #1330427 Filed: 09/19/2011 Page 70 of 23050 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 currentlist 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 distributionfacilties, 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 organiccompounds 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 onambient 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 ormore 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 registrationand labeling, self-monitoring and reporting, prohibitions, limitations, or economic incentives (including marketable perJItsand auctions of eJIssions rights) concerning the manufacture, processing, distribution, use, consumption, or disposal of the product." 42 V.S.C. § 7511b(e)(4). Forany 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 thelevel 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 themost effective equipment, measures, processes, methods, systems or techniques, including cheJIcal reformulation, product or feedstock substitution, repackaging, and Case 1:01-cv-01537-PLF Document 136-2 Filed 12/07/10 Page 19 of 50 USCA Case #11-1131 Document #1330427 Filed: 09/19/2011 Page 71 of 230SIERRA 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, especiallyin "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 controltechnology. Such information shal include such data as are avaiable on avaiable technology and alternative methodsof 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 statesto submit emission standards for stationary sources of VOCs. See Memorandum of Points and Authorities in Opposition to Plaintifs Motion for Summary Judgmentand 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 aschedule 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) onFebruary 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) byJuly 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 threegroups (Groups II-IV, remain unreguated. See Page DecL ~ 23. B. History of this litigation Staring on July 16, 2001, plaintif theSierra 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 andthen 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 ofthe 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 insupport of its dispositive motion. Defendant conceded in its briefs that it had faied to discharge its mandatory duties7. This also was accomplished only after litigation in this Court and the signing of a consentdecree. See Sierra Club v. Browner, Civil Action No. 97-1984 (D.D.C. filed Aug. 29, 1997). Case 1:01-cv-01537-PLF Document 136-2 Filed 12/07/10 Page 20 of 50 USCA Case #11-1131 Document #1330427 Filed: 09/19/2011 Page 72 of 23052 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-wasimpracticable, 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 actionsto 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 itsduty 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, theentry 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 theClean 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 anondiscretionary act, the court may exercise its equity powers "to set enforceabledeadlines both of an ultimate and an intermediate nature(.)" NRDC v. Train, 510F.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 appropriatelymay 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 Case 1:01-cv-01537-PLF Document 136-2 Filed 12/07/10 Page 21 of 50 USCA Case #11-1131 Document #1330427 Filed: 09/19/2011 Page 73 of 230SIERRA CLUB v. JOHNSON Cite as 444 F.Supp.2d 46 (D. D.C. 2006) 53dilgence in discharging his statutory re

### sponsibilties." ¡d. at 713. In other words, "(t)he sound discretion of an equity court does not embrace enforcementthrough 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 courtmust scrutinize carefully claims of impossibilty, and "separate justications grounded in the purposes of the Act from thefootdraggig effort of a delinquent agency." NRDC v. Train, 510 F.2d at 713. When Congress expresses its intent thatreguations 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 claimsof 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 hasfaied to demonstrate any dilgence whatever in dischargig its statutory duty topromulgate 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 hasfaied 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. Circuitrecognized 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 theagency's capacity or would unduly jeopardize the implementation of other essential programs. Second, EP A may be unable to conduct sufficient evaluation ofavailable 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 rejectedagency 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 justificationthat 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 Case 1:01-cv-01537-PLF Document 136-2 Filed 12/07/10 Page 22 of 50 USCA Case #11-1131 Document #1330427 Filed: 09/19/2011 Page 74 of 23054 444 FEDERAL SUPPLEMENT, 2d SERIES

favor of extensive agency informationgathering and analysis. For example, theUnited 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 Congressconcluded that prompt, though imprecise, regulations were preferable to noreguations 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 toassert 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,' butrather 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 regulatorypriorities 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. Insuch 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 claimof 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, 658F.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 thesource 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 15unti 2012, when all remaining source categories wi be reguated.

2. Section 183(e) Products EP A promulgated its list of consumerand 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 Case 1:01-cv-01537-PLF Document 136-2 Filed 12/07/10 Page 23 of 50 USCA Case #11-1131 Document #1330427 Filed: 09/19/2011 Page 75 of 230SIERRA CLUB v. JOHNSON Cite as 444 F.Supp.2d 46 (D.D.C. 2006) 5523, 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' ArgumentsDefendant'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 inthis position since 2002. OAQPS sets national eiissions standards, monitors and reports on air qualty and emissions of airpollutants, 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 ofreguatory actions taken by the EP A under the statute. It describes what EP Asees 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 inissuing 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, butthat 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-monthschedule 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 USCA Case #11-1131 Document #1330427 Filed: 09/19/2011 Page 76 of 23056 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 EPAelects, however, to promulgate CTGs instead of standards based on "best availablecontrols" 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 deficientrules. First, Mr. Page's 50-month proposed timelines for regulations under Sections 112 and 183 represent only his retrospective estimate of the average amount oftime 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 majorand 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 adequatereguations. 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 Administratorshould be commended for striving to develop the fulest possible statistical basis for any regulations she promulgates, thatquest 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 radionuclideemission problem and the concomitant increased use of EPA resources, the EPAenvisions a level of thoroughness and scientifc certainty not within the contemplation of Congress at the time it mandatedthe regulation of hazardous air pollutants."). The four-phase regulatory process described in the Page declaration, see Page Dec!. ~~ 33-41, is indicative of "alevel 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 Courtdefers to agency expertise about appropriate rulemaking procedures, such deferenceis 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 (theCERCLA Hazard Ranking System) be revised no later than October 17, 1988, itwould 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, sothat information gathered in one rulemaking wi not usually expedite another. See Def. Opp. at 16. Second, area sourcespose dificulties not encountered when regulatig major sources. For example, areasources constitute a larger and more diCase 1:01-cv-01537-PLF Document 136-2 Filed 12/07/10 Page 25 of 50 USCA Case #11-1131 Document #1330427 Filed: 09/19/2011 Page 77 of 230SIERRA CLUB v. JOHNSON Cite as 444 F.Supp.2d 46 (D.D.C. 2006) 57 verse group of smaller entities than majorsources; 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 tendnot to have personnel dedicated to envionmental compliance. See id. at 21; Page Decl. ,¡ 36. This is an insufficient basis for the Courtto 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 ofthese 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, assought by EP A should come from the Congress-not from the Court." Sierra Club v. Gorsuch, 551 F.Supp. at 789. TheCour 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 thePage 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 werenot 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. SeeReply 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 someof 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 deadlinesshould 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 Case 1:01-cv-01537-PLF Document 136-2 Filed 12/07/10 Page 26 of 50 USCA Case #11-1131 Document #1330427 Filed: 09/19/2011 Page 78 of 23058 tltltl FEDERAL SUPPLEMENT, 2d SERIES 554 F.Supp. at 1066 ("While in the normal instance I would defer to the wisdom ofthe Administrator, I cannot when Congress has so clearly spoken on the issue. If the Administrator disagrees with the burden Congress has imposed upon herAgency, 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 withplaintiffs 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 factthat 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 beginexecuting these tasks on a specifc schedule set by statute. EP A has been grossly delinquent in making serious efforts tocomply. And far from making the requied showing that it has exercised its "utmost dilgence" in its effort to comply with the statutory deadlines, Sierra Clubv. 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 limitedresources 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 "thefootdraggig efforts of a delinquent agency," NRDC v. Train, 510 F.2d at 713, or anattempt by EPA to prioritize its own regulatory agenda over that set by Congress in the 1990 Clean Ai Act amendments. It isemphatically 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 justificationsfor 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 toafford any reasonable possibilty of compliance. See NRDC v. New York, 700F.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 itsfootdraggig 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 regulationsremain unpromulgated, years after the statutory deadlines have passed. Case 1:01-cv-01537-PLF Document 136-2 Filed 12/07/10 Page 27 of 50 USCA Case #11-1131 Document #1330427 Filed: 09/19/2011 Page 79 of 230SIERRA 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 findsit 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 opposedto issuing standards for ten source categories by June 15, 2006, and then ten moreevery 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 everysix months unti June 15, 2009. With respect to reguations under Section 183(b), EP A must promulgate reguations orCTGs 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 areasources and consumer and commercial products based on the current lists published by EPA." Def. Rep. at 4. Defendant argues thatgranting the proposed order would "impermissibly strip" EPA of it statutory authority tomodify 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 theaggregate 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 categoriesunder 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 topromulgate standards directly under Section 112(c)(6), because reguations it promulgates under other sections of the Actmay 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 noticestating 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'smotion, 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. Case 1:01-cv-01537-PLF Document 136-2 Filed 12/07/10 Page 28 of 50 USCA Case #11-1131 Document #1330427 Filed: 09/19/2011 Page 80 of 23060 444 FEDERAL SUPPLEMENT, 2d SERIESPlaintiff 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 apronouncement, subject only to review after the fact by the D.C. Circuit, "is no substitute for an order from this Courtordering EP A to complete its nondiscretionary duty by a date certain deadline." PI. Opp. at 14. Plaintiff argues that thedelay 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 Circuitis the exclusive forum for substantive review of EPA reguations promulgated under Section 112 of the Clean Air Act. See42 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 reguationof 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 onlyorder 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, especiallysince doing so would necessarily embroil the Court in an assessment of thesubstance 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, theCourt wil not order EP A to issue standards for the specifc source categoriesEP A has identied as accounting for ninety percent of PCB emissions.

III. PLAINTIFF'S MOTION TO STRIKEAs 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 mighttake; (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 onlywhat Mr. Page personally believes, unsupported by any facts. Although (as has already been discussed) the Court finds the Page declaration to be of limited valuein 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 Case 1:01-cv-01537-PLF Document 136-2 Filed 12/07/10 Page 29 of 50 USCA Case #11-1131 Document #1330427 Filed: 09/19/2011 Page 81 of 230HOLLINGSWORTH v. DUFF Cite as 444 F.Supp.2d 61 (D.D.C. 2006) 61 material fact and that plaintif is entitledto 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 Courtfurther 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, EPAshall promulgate emission standards assuring that source categories accountingfor 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 underSection 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 orcontrol 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 homebut 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, wasnot 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). Case 1:01-cv-01537-PLF Document 136-2 Filed 12/07/10 Page 30 of 50 USCA Case #11-1131 Document #1330427 Filed: 09/19/2011 Page 82 of 230EXHIBIT 

# 6

Case 1:01-cv-01537-PLF Document 136-2 Filed 12/07/10 Page 31 of 50 USCA Case #11-1131 Document #1330427 Filed: 09/19/2011 Page 83 of 2301 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 a nd are based on my own personal knowledge or on information contai ned 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 Polici es and Programs Division (SPPD) within the Office of Air Quality Planning and Standards (OAQPS), Office of Air an d 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, deve loping regulations under s ection 112 of the Clean Air Act (CAA), the national emission standard s for hazardous air pollu tants (NESHAP) program. 2. In my current capacity as Director of SPPD, I am respons ible for overseeing EPA’s promulgation of significant re gulations related to the NESHAP program. In this capacity, Case 1:01-cv-01537-PLF Document 136-2 Filed 12/07/10 Page 32 of 50 USCA Case #11-1131 Document #1330427 Filed: 09/19/2011 Page 84 of 2302 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) oblig ations 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 believe s that the deadlines in Paragraphs 1(i)

and 3 of the Court’s Order should be extende d from January 16, 2011, to April 13, 2012, to allow the Agency time to re-propose for further pub lic 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-p ropose are the ones that appl y to major source industrial, commercial and institutional boilers and pr ocess heaters (“major source boilers”), 1 area source industrial, commercial and inst itutional boilers (“area source boilers”), and commercial and

industrial solid waste in cinerators (“CISWI units”). EPA wi shes 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 additi on 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 a llow EPA to re-propose the standards at issue, EPA believes that it needs until June 15, 2011 to comp lete the final rules. EPA currently cannot respond in full to all of the comments receiv ed on the proposed rules by the January 16, 2011 deadline. I estimate that it would take approxima tely five more months to review and prepare

1 A “major source” is a stationary source that emits or ha s the potential to emit 10 tons per year or more of any one hazardous air pollutant or 25 tons per ye ar or more of a combination of hazardou s air pollutants. An area source is any stationary source that is not a major source. Case 1:01-cv-01537-PLF Document 136-2 Filed 12/07/10 Page 33 of 50 USCA Case #11-1131 Document #1330427 Filed: 09/19/2011 Page 85 of 2303 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 th is short extension will not allow EPA to solicit further public comment, it will enable the Agen cy to reduce the legal vulnerabilities of the standards at issue and greatly incr ease the likelihood that the rules wi ll withstand judicial review.

6. EPA also needs an additional six m onths to complete its section 112(c)(3) obligations for sewage sludge incinerators. Specif ically, 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 th e Court were to accept the proposed extension described in Paragraph 4 abov e, the deadline for completing the remaining section 112(c)(3) standards under Para graph 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 th e 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 secti on 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 Orde r, and then discuss the additional time needed to meet its obligations under Paragraph 1(i).

Actions Taken to Date Pursuant to Par agraphs 1(i) and 3 of the Court Order 8. Paragraph 1(i) of the Court’s Septembe r 20, 2010 Order requires the Agency to issue emission standards under CAA section 112(d) or section 129, assuri ng 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 Case 1:01-cv-01537-PLF Document 136-2 Filed 12/07/10 Page 34 of 50 USCA Case #11-1131 Document #1330427 Filed: 09/19/2011 Page 86 of 2304 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 h azardous air pollutants enumerated in Section 112(c)(6) are subject to emi ssion standards under Section 11 2(d)(2) or (d)(4). 9. To date, EPA has issued final emissi on standards for 48 area source categories pursuant to Paragraph 1(i) of the Order and C AA section 112(c)(3) and (k)(3). EPA proposed

emission standards for three other area source categories in 2010, pursuan t 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 categorie s as “area source boilers.” On September 30, 2010, EPA proposed emission standards for sewage sludge inci nerators. 10. To date, EPA has issued final emissi on 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 st andards 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, 201 0 Order, the EPA Administrator signed proposed rules setting “emission standards for industrial, commercial and instit utional boilers under section 112(d)” and “standards for commercial a nd industrial solid waste incineration units under section 129.” Order dated Apr il 13, 2010, ¶ 3(b). Those rules in clude: (1) National Emission

Standards for Hazardous Air Pollutants for Ma jor 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 Standa rds for Hazardous Air Pollutants for Area Case 1:01-cv-01537-PLF Document 136-2 Filed 12/07/10 Page 35 of 50 USCA Case #11-1131 Document #1330427 Filed: 09/19/2011 Page 87 of 2305 Sources: Industrial, Commercial, and Institutiona l Boilers (the “area sour ce boilers rule”), id. at 31,896-935; and (3) Standards of Performance fo r New Stationary Sources and Emission Guidelines for Existing Sources: Commercial and Industrial Solid Waste In cineration Units (the “CISWI rule”), id. at 31,938-32,004. 11. In the proposed rules identified in Para graph 10, EPA indicated that it believed

that it needed to establish emission standards fo r 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 es tablish emission standards for cert ain emissions from area source

boilers to meet its sec tion 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 Or der 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 emi ssions of each of the hazardous air pollutants enumerated in Section 112(c)(6 ) are subject to emission stan dards 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 polluta nts” that EPA concludes are achievable

based on consideration of factors identified in the statute. Thes e are referred to as “maximum achievable control technology” or “MACT” standards. Section 112(d)(4) allows the Administrator, with respect to po llutants for which a health threshold has been established, to set

a standard that considers su ch 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 pollu tants 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. Case 1:01-cv-01537-PLF Document 136-2 Filed 12/07/10 Page 36 of 50 USCA Case #11-1131 Document #1330427 Filed: 09/19/2011 Page 88 of 2306 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 th e MACT standards for major source industrial, commercial, and institutional boilers and process heaters (“major source boilers”). Natural Resour ces 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) ob ligations. At the same time the D.C. Circuit vacated the major source boilers MACT, it vacated a rela ted rule called the Commercial and Industrial Solid Waste Incineration Units (CISWI) Definitions Rule, 70 Fed. Reg. 55,568 (Sept. 22, 2005), which EPA issued pur suant 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 identif ied the universe of sources subject to each rule. Specifically, the Court rejected EPA’s inte rpretation of the term “solid waste incineration unit” in section 129(g)(1) and held that such term “ plainly an d 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 multi ple 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 Administrato r under the Resource Conservation and Recovery Act (“RCRA”). In sum, the Court vacated the Boilers MACT rule in 2007, because EPA had Case 1:01-cv-01537-PLF Document 136-2 Filed 12/07/10 Page 37 of 50 USCA Case #11-1131 Document #1330427 Filed: 09/19/2011 Page 89 of 2307 improperly included in that rule sources that co mbusted 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, th e 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 “Plyw ood MACT decision”). This trilogy of decisions substantially impacted how the Agen cy 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, co mmercial and institutional boilers and process

heaters and CISWI units in order to set defens ible MACT emission sta ndards pursuant to CAA section 112(d) and se ction 129(a)(1)(D). 3 As a result, the Agency prepared an information collection request. Because the requ est would be sent to “ten or mo re 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 Bu dget (“OMB”), as provided in 5 C.F.R. § 1320.5, prior to sending the request to the affected facilitie s. As required by regulation, EPA published two Federal Register notices, soliciting comment on th e 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 collecti on 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 se t MACT standards. As such, the D.C. Circuit’s Brick and Plywood MACT decisions cited above are also releva nt to the Agency’s section 129 standards. Case 1:01-cv-01537-PLF Document 136-2 Filed 12/07/10 Page 38 of 50 USCA Case #11-1131 Document #1330427 Filed: 09/19/2011 Page 90 of 2308 comment on the draft information collection requ est. The regulations governing this process require this amount of p ublic comment opportunity. 17. The draft information collection request c onsisted of two phases. The first phase required the submission of existing information, a nd the second phase required certain facilities

to conduct a suite of stack tests to evaluate their emissions of h azardous air pollutants and certain other pollutants, such as particul ate 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 impact ed by the flooding that occurred in Texas, Louisiana and the

Midwest due to Hurricanes Gustav and Ike in Se ptember 2008. EPA, therefore, did not receive the data and information required by the first pha se of the information collection request until mid-December 2008, which is two m onths 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. Case 1:01-cv-01537-PLF Document 136-2 Filed 12/07/10 Page 39 of 50 USCA Case #11-1131 Document #1330427 Filed: 09/19/2011 Page 91 of 2309 22. The Agency received numerous requests for extension of the phase two testing deadline, and EPA granted several of those reques ts. 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 la boratories available to analyze the required dioxin/furan samples. Other requestors, with units located in Alaska, cite d weather issues that impeded completion of the testing on the schedule required by the informa tion collection request. Finally, we had to identify some additional sour ces for testing because certain sources had shutdown or were in the process of shutting down. Th is 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 “emi ssion 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 ru le, and the CISWI rule. See supra ¶ 9. 24. In addition, on April 29, 2010, the EPA Admi nistrator signed the “Identification of Non-Hazardous Secondary Materials That Ar e 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 i ndustrial, 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 “so lid 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. Case 1:01-cv-01537-PLF Document 136-2 Filed 12/07/10 Page 40 of 50 USCA Case #11-1131 Document #1330427 Filed: 09/19/2011 Page 92 of 23010 section 129. Thus, if the industr ial, commercial, or institutional boilers or process heaters combust secondary materials that are “solid wa ste” within the meaning of RCRA, those units would be subject to CAA secti on 129, and EPA would need to acc ount 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 subj ect to the applic able 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 Regist er. The rules were published in the Federal Register on June 4, 2010. 26. Taken together, the rules impact a substa ntial 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 locate d at about 1,600 facilities. As a result of the proposed emission standards for major source boilers and process heat ers, 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 f acilities in the United States. Industrial boilers are used in manufacturing, processi ng, 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 in clude boilers used in medical centers (e.g. , hospitals and nursing homes), educati onal and religious facilities (e.g., schools, universities and Case 1:01-cv-01537-PLF Document 136-2 Filed 12/07/10 Page 41 of 50 USCA Case #11-1131 Document #1330427 Filed: 09/19/2011 Page 93 of 23011 churches), and muni cipal buildings (e.g., courthouses and prisons). EPA estimated that the proposed area source boiler standards would result in health bene fits 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 fo r the rulemaking for existing and new area source boilers, as proposed, to be approximately $2.5 billi on, with an annualized cost of $1 billion. 28. In the proposed CISWI rule, EPA estima ted that the rule would cover 176 solid

waste incineration units. EPA estimated that if a ll affected units used ad d-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 regulat ory 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 no tices 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 substant ial number of sources potentially affected by these rules, on June 9, 2010, EPA issued a notice of public heari ng and extension of the comment period. The notice explained that EPA would hold three public h earings 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 Arli ngton, 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. Case 1:01-cv-01537-PLF Document 136-2 Filed 12/07/10 Page 42 of 50 USCA Case #11-1131 Document #1330427 Filed: 09/19/2011 Page 94 of 23012 31. EPA received several requests for add itional 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 comme nts on the major source boilers rule, 2,200 individual comments on the area source bo ilers 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 commen ts. 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 em ails from concerned citizens, in addition

to a host of comments it receiv ed in response to the January 2009 Non-Hazardous Solid Waste ANPRM. See supra n.4. Case 1:01-cv-01537-PLF Document 136-2 Filed 12/07/10 Page 43 of 50 USCA Case #11-1131 Document #1330427 Filed: 09/19/2011 Page 95 of 23013 34. The Agency has spent considerable time reviewing the over 4,800 individual

comments received on the three air rules. Thes e comments raise several significant issues and provide new information and data. After reviewi ng the comments, we have a different and better understanding of the facts and co mplexities associated with th e emissions of certain hazardous air pollutants from industrial, commercial a nd institutional boilers and process heaters and

CISWI units. Based on the comments and new info rmation and data, I belie ve a re-proposal of the major source boilers, area source boilers a nd CISWI rules would si gnificantly bolster the strength of the final rules. As explained further below, there we re 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 proposal s 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 becaus e we have not yet pres ented the Administrator with options for her approval, I can discuss genera lly the kinds of issues that have emerged. a. For example, commenters have raised legitimate issues concerning the proposed subcategorization scheme in the thr ee air rules. Some commenters argued that

we failed to establish a sufficient number of subcategories, while ot hers argued that the proposed subcategorization scheme was not su pported 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 significan tly change the proposed emission limits. Case 1:01-cv-01537-PLF Document 136-2 Filed 12/07/10 Page 44 of 50 USCA Case #11-1131 Document #1330427 Filed: 09/19/2011 Page 96 of 23014 b. Another issue that emerged during the comment period is the scope of coverage of the proposed rules. Some comme nters argue that the proposed boilers rules improperly fail to cover boilers that combus t solely non-hazardous secondary materials that are not solid waste. We agree that the proposed boilers rules di d not set standards for

such boilers. If a decision is made to se t standards for such bo ilers, we believe that providing the public an appropr iate 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 CI SWI rule. For example, we estimated that

there were 36 burn-off ovens in the United St ates. 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 MA CT standards. Anot her 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 un its 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 a nd other CISWI units on which it currently

lacks data or information to meet its section 112(c)(6 ) obligation.

36. Based on our current unders tanding 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 Ja nuary 16, 2011, various interested parties will allege in proceedings for judicial review th at we did not provide meaningful notice and opportunity for public comment. In addition, I do not believe that we can adequately respond by Case 1:01-cv-01537-PLF Document 136-2 Filed 12/07/10 Page 45 of 50 USCA Case #11-1131 Document #1330427 Filed: 09/19/2011 Page 97 of 23015 January 16, 2011, to the over 4,800 i ndividual comments received on the major and area source boilers and CISWI rules. Although we have been working diligently to re view 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 Paragra ph 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 effectivel y 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 no tice 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 response s 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 ha ve significant enviro nmental benefits, but they also have significant costs. See supra ¶¶ 26-28 (noting that the proposed major source boilers rule covers about 13,555 boi lers and the proposed area sour ce boilers rule covers about 183,000 boilers). As a matter of public policy, on ru les 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 identif ied the need for additional public input prior to issuing the final rules. I also believe that the re-proposal appro ach will result in standards that are more defensible and will yield environmental be nefits earlier, because the final standards will more likely withstand su bstantive review. Case 1:01-cv-01537-PLF Document 136-2 Filed 12/07/10 Page 46 of 50 USCA Case #11-1131 Document #1330427 Filed: 09/19/2011 Page 98 of 23016 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 d eadline to April 13, 2012, I estima te that we would need at

least 4 and one half months to de velop re-proposals for the three ru les. In addition to developing the re-proposals, we would need to prepare appropriate suppor ting documentation, including any revised calculations supporting the re-proposed em ission standards and the costs associated with

such standards. 39. Under the schedule proposed in Paragr aph 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-proposa ls, 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 th e signature of the re-p roposed and final rules provides sufficient time to review, consider, a nd 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 allo w 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 Admi nistrator’s signature that is consistent with those comments by January 16, 2011. While such an extension would not eliminate the Case 1:01-cv-01537-PLF Document 136-2 Filed 12/07/10 Page 47 of 50 USCA Case #11-1131 Document #1330427 Filed: 09/19/2011 Page 99 of 23017 likelihood that opponents of the ru les will allege the Agency pr ovided 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 fort h in Paragraph 37, Paragraph 1(i) of the September 20, 2010 Order would need to be ex tended 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) obligatio ns. 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 th e deadline in Paragraph 3 is extended, the deadline in Paragraph 1(i) sh ould 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 reque st 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 a nd required the facilities to test for certain Case 1:01-cv-01537-PLF Document 136-2 Filed 12/07/10 Page 48 of 50 USCA Case #11-1131 Document #1330427 Filed: 09/19/2011 Page 100 of 23018 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 certa in 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 an d to adhere to any relevant local government procedures for securing contractors to complete th e 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 consumi ng. 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 inco mplete information and data. It took a few

additional weeks to resolve the data di screpancies that we had identified. 46. Finally, during the rule development pro cess, 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 la ndfilling it. It took a few week s to obtain this information and complete the cost assessment for th e proposed emission standards. 47. As noted above, the Administrator si gned 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 he aring, as required by the CAA. Case 1:01-cv-01537-PLF Document 136-2 Filed 12/07/10 Page 49 of 50 USCA Case #11-1131 Document #1330427 Filed: 09/19/2011 Page 101 of 23019 48. To date, we have received over 80 in dividual comments on the proposed rule.

Based on the comments we have reviewed to da te, we do not currently intend to re-propose the rule. The Agency cannot, howev er, 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, 20 11 to finalize the emission standards for sewage sludge incinerators. The additi onal time would enable the Ag ency 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 co mments 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 Paragra ph 1(i) be modified to allow EPA to complete standards for one additional source categor y under section 112(c)(3) by July 15, 2011.

SO DECLARED:

/s/ PANAGIOTIS E. TSIRIGOTIS

Dated: December 6, 2010 Case 1:01-cv-01537-PLF Document 136-2 Filed 12/07/10 Page 50 of 50 USCA Case #11-1131 Document #1330427 Filed: 09/19/2011 Page 102 of 230

# ENCLOSURE B

USCA Case #11-1131 Document #1330427 Filed: 09/19/2011 Page 103 of 230IN 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 Case 1:01-cv-01537-PLF Document 144 Filed 01/03/11 Page 1 of 22 USCA Case #11-1131 Document #1330427 Filed: 09/19/2011 Page 104 of 2302 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 signifi cant 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 Case 1:01-cv-01537-PLF Document 144 Filed 01/03/11 Page 2 of 22 USCA Case #11-1131 Document #1330427 Filed: 09/19/2011 Page 105 of 2301 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 , Case 1:01-cv-01537-PLF Document 144 Filed 01/03/11 Page 3 of 22 USCA Case #11-1131 Document #1330427 Filed: 09/19/2011 Page 106 of 2301 (...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, th e 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 Case 1:01-cv-01537-PLF Document 144 Filed 01/03/11 Page 4 of 22 USCA Case #11-1131 Document #1330427 Filed: 09/19/2011 Page 107 of 2302 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 imme diate 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 promulgati on 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 Case 1:01-cv-01537-PLF Document 144 Filed 01/03/11 Page 5 of 22 USCA Case #11-1131 Document #1330427 Filed: 09/19/2011 Page 108 of 2303 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 Ma terials 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 cont ained new emissions data; critiques of EPA’s existing data and analytical approaches; and obj ections 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 Case 1:01-cv-01537-PLF Document 144 Filed 01/03/11 Page 6 of 22 USCA Case #11-1131 Document #1330427 Filed: 09/19/2011 Page 109 of 2307 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 calculati ons 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, reeval uation 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 sta ndards affect primarily a single industry. Id . Many diverse industries use the boilers, process heaters and CISWI units that must be addressed in Case 1:01-cv-01537-PLF Document 144 Filed 01/03/11 Page 7 of 22 USCA Case #11-1131 Document #1330427 Filed: 09/19/2011 Page 110 of 2304 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 met hods. 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 emi ssion standards. EPA Memo 18. Re-proposal will ensure that the public, including Sierra Club and the regulated entities, will have an opportunity Case 1:01-cv-01537-PLF Document 144 Filed 01/03/11 Page 8 of 22 USCA Case #11-1131 Document #1330427 Filed: 09/19/2011 Page 111 of 2309 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 finalaction 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 s upporting 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 Case 1:01-cv-01537-PLF Document 144 Filed 01/03/11 Page 9 of 22 USCA Case #11-1131 Document #1330427 Filed: 09/19/2011 Page 112 of 23010 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-pro posal 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. Case 1:01-cv-01537-PLF Document 144 Filed 01/03/11 Page 10 of 22 USCA Case #11-1131 Document #1330427 Filed: 09/19/2011 Page 113 of 23011 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). EP A 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 COMME NTS 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 Case 1:01-cv-01537-PLF Document 144 Filed 01/03/11 Page 11 of 22 USCA Case #11-1131 Document #1330427 Filed: 09/19/2011 Page 114 of 2305 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-setti ng 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. Case 1:01-cv-01537-PLF Document 144 Filed 01/03/11 Page 12 of 22 USCA Case #11-1131 Document #1330427 Filed: 09/19/2011 Page 115 of 23013 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, Case 1:01-cv-01537-PLF Document 144 Filed 01/03/11 Page 13 of 22 USCA Case #11-1131 Document #1330427 Filed: 09/19/2011 Page 116 of 23014 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 Case 1:01-cv-01537-PLF Document 144 Filed 01/03/11 Page 14 of 22 USCA Case #11-1131 Document #1330427 Filed: 09/19/2011 Page 117 of 2307 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 Case 1:01-cv-01537-PLF Document 144 Filed 01/03/11 Page 15 of 22 USCA Case #11-1131 Document #1330427 Filed: 09/19/2011 Page 118 of 2308 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 Case 1:01-cv-01537-PLF Document 144 Filed 01/03/11 Page 16 of 22 USCA Case #11-1131 Document #1330427 Filed: 09/19/2011 Page 119 of 23017 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 Case 1:01-cv-01537-PLF Document 144 Filed 01/03/11 Page 17 of 22 USCA Case #11-1131 Document #1330427 Filed: 09/19/2011 Page 120 of 2309 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 pa rties, 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 Re duction 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 Case 1:01-cv-01537-PLF Document 144 Filed 01/03/11 Page 18 of 22 USCA Case #11-1131 Document #1330427 Filed: 09/19/2011 Page 121 of 23019 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 Sie rra 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. Case 1:01-cv-01537-PLF Document 144 Filed 01/03/11 Page 19 of 22 USCA Case #11-1131 Document #1330427 Filed: 09/19/2011 Page 122 of 23020 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 Case 1:01-cv-01537-PLF Document 144 Filed 01/03/11 Page 20 of 22 USCA Case #11-1131 Document #1330427 Filed: 09/19/2011 Page 123 of 23021 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 calculati ng 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

. Case 1:01-cv-01537-PLF Document 144 Filed 01/03/11 Page 21 of 22 USCA Case #11-1131 Document #1330427 Filed: 09/19/2011 Page 124 of 23022 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 Case 1:01-cv-01537-PLF Document 144 Filed 01/03/11 Page 22 of 22 USCA Case #11-1131 Document #1330427 Filed: 09/19/2011 Page 125 of 2301 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 a nd are based on my own personal knowledge or on information contai ned 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 Polici es and Programs Division (SPPD) within the Office of Air Quality Planning and Standards (OAQPS), Office of Air an d 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 emi ssion standards for hazardous air pollutants (NESHAP) program and the solid wast e combustion program, respectively. 2. In my current capacity as Director of SPPD, I am respons ible for overseeing EPA’s promulgation of significant regulations related to the NESHAP and solid waste Case 1:01-cv-01537-PLF Document 144-1 Filed 01/03/11 Page 1 of 16 USCA Case #11-1131 Document #1330427 Filed: 09/19/2011 Page 126 of 2302 combustion programs. In this capacity, I am fa miliar 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 declara tion in support of EPA’s “Motion to Amend Order of March 31, 2006.” This supplemen tal declaration provides further support for

that motion. 4. On December 16, 2010, consistent with Pa ragraph 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 a nd 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 cat egories, 48 of which have been issued under Paragraph 1(i) and two of which ha ve been issued under Paragraph 3. See Declaration of Panagiotis E. Tsirigotis, dated December 6, 2010 (“ Decl.”) ¶¶ 9-10. In i ssuing 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 co mment 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 additiona l background concerning the information collection request that the Agency conducted with respect to major industrial, commercial and institutional boilers and proce ss heaters (“major source boilers”) and commercial and industrial solid waste incinerators (“CISWI units”). The re mainder 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 sour ce boilers”), and CISWI units u nder Paragraph 3 of the Court’s Order, and to complete standards for ar ea source boilers under Paragraph 1(i). See Decl. ¶ 11. Case 1:01-cv-01537-PLF Document 144-1 Filed 01/03/11 Page 2 of 16 USCA Case #11-1131 Document #1330427 Filed: 09/19/2011 Page 127 of 2303 The second part addresses the Agency’s need for additional time to complete emission standards for sewage sludge incinerators under Para graph 1(i) of the Court’s Order.

Additional Information Related to the Bo ilers/CISWI Information Collection Request 6. In my prior declaration, I explaine d 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 Ag ency 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 sect ion 112(d) and section 129(a)(1)(D). See Decl. ¶16. I also described in my prior declaration the inform ation collection request process that the Agency followed in obtaining the data and information from major s ource boilers and CISWI units. Id. ¶¶ 16-21. 7. Following the issuance of the Bric k 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 Orde r, it thought the revise d 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 aff ected 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. Case 1:01-cv-01537-PLF Document 144-1 Filed 01/03/11 Page 3 of 16 USCA Case #11-1131 Document #1330427 Filed: 09/19/2011 Page 128 of 2304 8. As explained in my prior declaratio n, 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, includ ing, but not limited to, the format of that request and the type of information requested. See id. ¶ 16. This public comment proce ss provided critic al information, and as a result the Agency made a number of changes to the information collection request, including changes that significan tly improved the questionnaire and testing requirements. For example, as a result of comments received on th e draft information collection request, we revised questions related to the design of the units, th e 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 collec tion 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 a nd CISWI units represent a broad spectrum of different industries, including, for example, pul p and paper mills, refineries, chemical plants, steel manufacturing processes, sugar produc tion, 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 sour ces at issue here affect multiple industries because multiple industries use combustion devi ces for different purposes and the combustion

devices combust different materi als. Universities and munici palities 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 f acilities to conduct a Case 1:01-cv-01537-PLF Document 144-1 Filed 01/03/11 Page 4 of 16 USCA Case #11-1131 Document #1330427 Filed: 09/19/2011 Page 129 of 2305 series of stack tests to measure their emissions of hazardous air pollutants (“HAP”) and certain other pollutants, such as partic ulate matter and carbon monoxide. Id. The primary purpose of Phase II was to fill data gaps identified from the Ph ase 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 info rmation collection request, it asked EPA to provide, following submission of the Phase I in formation, a proposed list of facilities for testing and the specific testing that would be re quired. OMB did not approve Phase II of the information collection request until it had review ed 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 a ffected 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 anal ytical laboratories, as well as weather related

issues that affected certa in facilities’ ability to complete the required test ing). Thus, we had up Case 1:01-cv-01537-PLF Document 144-1 Filed 01/03/11 Page 5 of 16 USCA Case #11-1131 Document #1330427 Filed: 09/19/2011 Page 130 of 2306 to a six month delay in obtaining the required info rmation, and that delay affected our ability to meet the July 15, 2010 deadline identif ied 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 Re duction 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. s ection 3507(j)(1) are rare ly granted. EPA would have had to make this request in the fa ll of 2007 when it was preparing the information collection request. At that poi nt, EPA could not have reasonab ly 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 th e 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 informa tion collection process, it thought it was acting appropriately by followi ng the requirements of the Paperwork Reduction Act and affording affected sources, which represent a broa d variety of industries, and other stakeholders the opportunity to provide significa nt input to the Agency on how be st to obtain the information needed to set the required emission standard s under sections 112 and 129 of the CAA. Case 1:01-cv-01537-PLF Document 144-1 Filed 01/03/11 Page 6 of 16 USCA Case #11-1131 Document #1330427 Filed: 09/19/2011 Page 131 of 2307 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 co rrections, 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 totale d 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 thes e three air rules far exceeds that which we typically receive in a rule making setting section 112 or 129 emission standards for a source category. Id. ¶ 32. As noted above, major and area sour ce 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 ru les together cover almost 200,000 boilers). 18. It is important to understand how the co mments, 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 ma jor sources, under CAA section 112(d)(2), EPA must set emission standards that require the ma ximum degree of reduction in emissions of HAP

that EPA concludes is achievable based on a consid eration of certain statut ory 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 emi ssion control that is achieved in practice by the best controlled similar sour ce. The MACT floor for existing sources can be Case 1:01-cv-01537-PLF Document 144-1 Filed 01/03/11 Page 7 of 16 USCA Case #11-1131 Document #1330427 Filed: 09/19/2011 Page 132 of 2308 less stringent than standards for new sources, but cannot be less stringe nt than the average emission limitation achieved by the best-perform ing 12 percent of existing sources (for which the Administrator has emissions information) in the category or sub category or the best performing 5 sources for source categories or subcategories w ith 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 string ent “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 ta ke into account costs, energy, and nonair environmental impacts when doing so. This proc ess requires the review and assimilation of a

substantial amount of da ta 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 methodolog ies for assessing variability are all directly re levant to the floor-setting process. EPA’s proposed subcategoriza tion scheme is also dire ctly relevant to the floor analysis. Where, as here, the Agency has received substantial information directly relevant to the floors, it must re-evaluate whether ther e are beyond the floor cont rol options, which would tighten the standard further, if appropriate, cons idering cost and other factors. The substantial amount of cost information that the Agency rece ived in response to the proposed rules is also relevant to the beyond the floor analysis. 20. Finally, the broad di versity of industries ( e.g., wood products, petroleum refineries, chemical manufacturing, food manufacturing) a nd 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 bo iler to generate steam for various processes Case 1:01-cv-01537-PLF Document 144-1 Filed 01/03/11 Page 8 of 16 USCA Case #11-1131 Document #1330427 Filed: 09/19/2011 Page 133 of 2309 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 im mediately 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 pr eviously anticipated, a nd those issues required

additional review and discussi on within the Agency. Decl. ¶¶ 34-35

. For example, several commenters attacked the proposed MACT floors, a sserting that even the best performing boilers and CISWI units burning a combination of fuels (suc h as coal and biomass), would not be able to meet the proposed numerical limits. The comment ers 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 d eclaration where, as the result of comments, we have a different and better understa nding of the facts and co mplexities 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 pr ocess has required us to reevaluate the proposed subcategorization scheme, and a different subcateg orization 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 invent ories, and much of that data served as the basis for the

1 We did commence review of the comments submitted prio r to the close of the commen t period as those comments were submitted to the Agency. The majority of the comm ents were submitted, however, on the last day of the comment period. Case 1:01-cv-01537-PLF Document 144-1 Filed 01/03/11 Page 9 of 16 USCA Case #11-1131 Document #1330427 Filed: 09/19/2011 Page 134 of 23010 proposed floor calculations. For example, we re ceived several significan t comments relating to

our treatment of non-detect data and other measur ements that were close to the detection level. 2 Based on those comments, we have been working to re-evaluate the non-de tect data and other

measurements that are close to the detection leve l to ensure that the levels that were reported, and used in the proposed floor cal culations, are reliable measurements of the sources’ actual performance. 23. Further, we have been reviewing and ev aluating the new data received in response to the proposed rules. This is a time-intensive pro cess. 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 wh en the test was conducted, we examine the data for statistical outliers, and if th e test report does not provide information on the processes, controls and operati ons occurring at the time the test was conducted, we follow up with the facility that co nducted the test to obtain that inform ation, 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 EP A 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. Case 1:01-cv-01537-PLF Document 144-1 Filed 01/03/11 Page 10 of 16 USCA Case #11-1131 Document #1330427 Filed: 09/19/2011 Page 135 of 23011 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 re sponses 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 issu es, the Office of Air and Radiat ion 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 ha s also recommended re-propos al of the three rules. Id. In the

weeks since EPA filed its “Mo tion to Amend Order of Marc h 31, 2006,” our ongoing review of the issues raised by comments only re inforces that recommendation. 27. Furthermore, as noted in my prior decl aration, and as further substantiated by our ongoing review in the weeks since my first decl aration of the issues raised by comments, I

believe that if we issue final rules for the ma jor source boilers, area source boilers and CISWI units without a re-p roposal, various interested parties will allege in proceedings for judicial review that we did not provi de 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 Case 1:01-cv-01537-PLF Document 144-1 Filed 01/03/11 Page 11 of 16 USCA Case #11-1131 Document #1330427 Filed: 09/19/2011 Page 136 of 23012 final major source boilers, area source boilers and CISWI standards and to develop workable rules that can be implemented effectiv ely and withstand ju dicial review. Id. ¶ 37. With such an extension, we would intend to have the Administ rator sign the major source, area source, and CISWI re-proposals by June 1, 2011. Id. 28. If we were to re-propose, the followi ng activities would need to be conducted by June 1, 2011:

a. We would need to review the 4,800 comment s, including all attachments to those comments, to ensure that we have fu lly 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 possibl e to date, this additional period for reproposal would allow us time to confirm cer tain information as to the instrument calibration range used during carbon m onoxide emissions testing, including, as necessary, reaching out for additional informa tion. Finally, we would use this period to confirm that all of the alleged data e rrors 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 asse ss further any other da ta 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 tec hnical support documents, including economic analyses. We would also plan to include in the pr eamble 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 comme nt period on the re-proposals, which would include time for one public hearing. Decl. ¶ 39. If the rules are p ublished in the Federal Case 1:01-cv-01537-PLF Document 144-1 Filed 01/03/11 Page 12 of 16 USCA Case #11-1131 Document #1330427 Filed: 09/19/2011 Page 137 of 23013 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-r un any floor, variability and beyond the floor analyses. Finally, we woul d need to prepare all final rule documents, including the preamble, regulatory text, commen t-response document, a nd 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 w ith OMB would occur at

the same time. EPA would then take final acti on 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 th e 4,800 comments, includi ng all attachments to those comments, to ensure that we ha ve 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 da ta 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 revi ew 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. Case 1:01-cv-01537-PLF Document 144-1 Filed 01/03/11 Page 13 of 16 USCA Case #11-1131 Document #1330427 Filed: 09/19/2011 Page 138 of 23014 testing. Also, we would use this period to confirm that all of the alleged data errors in the emissions in ventories have been resolv ed, to the extent such errors exist. We would also use this time to assess further any other data issues identified in the comments, incl uding the non-detect issue noted above.

c. We would then need to prepare al l final rule documents, including the preamble, regulatory text, comment-r esponse 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 attachme nts, 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, a sserting 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, add itional 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 regulati ons. Finally, there is new information in the comments that compare EPA’s estimates for facility emissions to the resu lts of certain recent testing. Upon our initial review, it appears that we cannot fully ev aluate these comments without Case 1:01-cv-01537-PLF Document 144-1 Filed 01/03/11 Page 14 of 16 USCA Case #11-1131 Document #1330427 Filed: 09/19/2011 Page 139 of 23015 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 de termine 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 th is 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. Specifica lly, 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 comme nters 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 th e data and information they submitted related to both emissions and sewage sl udge 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 commenter s to determine whether the data can and should be used to establish the fi nal SSI emissions standards. b. We would need to make appropriate revisions to the proposed emissions standards, including re-eva luating the regulatory imp act analysis, variability analyses, and the levels of the standards th emselves. In particular, we would plan to analyze information rega rding the variability of sludge content, determine whether that analysis warrants any revisions to the variability incorporated into the proposed standards, and calculate revi sed MACT floors, as appropriate. If revisions to the floor are made, we w ould then re-evaluate our beyond the floor analysis and the regulatory impact anal ysis to reflect any revisions to the standards, including our an alysis of costs and bene fits 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 23016 c. We would then need to prepare the fi nal rule documents, including the preamble, regulatory text, comment-response do cument, 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 230UNITEQ ilAliG

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# 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.



### \ 

## \ Case: 11-1131 Document: 1307124 Filed: 05/06/2011 Page: 1 USCA Case #11-1131 Document #1330427 Filed: 09/19/2011 Page 143 of 230Dated: 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 Case: 11-1131 Document: 1307124 Filed: 05/06/2011 Page: 2 USCA Case #11-1131 Document #1330427 Filed: 09/19/2011 Page 144 of 230UNllli\:l

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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. Case: 11-1131 Document: 1307124 Filed: 05/06/2011 Page: 3 USCA Case #11-1131 Document #1330427 Filed: 09/19/2011 Page 145 of 2304. 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 Case: 11-1131 Document: 1307124 Filed: 05/06/2011 Page: 4 USCA Case #11-1131 Document #1330427 Filed: 09/19/2011 Page 146 of 230CERTIFICATE 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 Case: 11-1131 Document: 1307124 Filed: 05/06/2011 Page: 5 USCA Case #11-1131 Document #1330427 Filed: 09/19/2011 Page 147 of 230

# ENCLOSURE D

USCA Case #11-1131 Document #1330427 Filed: 09/19/2011 Page 148 of 230B 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 USCA Case #11-1131 Document #1330427 Filed: 09/19/2011 Page 149 of 230Variability in Biosolids Cadmium Concentrations at POTWs on whichthe MACT Standards are based, 2005 - 20090510152025B C D N O P Q R S T X Y Z AA ABPublicly Owned Treatment Works

Cadmium Concentration, mg/kgmax = 32.2max=46.0USCA Case #11-1131 Document #1330427 Filed: 09/19/2011 Page 150 of 230BCDNOPQRSTXYZAAABJan-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 1.8 3.5Feb-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 0.13 3.6Mar-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 <1.4 1.3Apr-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 2 3.2May-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 3.4 5.9 3.9Jun-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 <1.4 7.5 6.2Jul-05 0.1 5.7 2.9 3.0 7.0 9.0 5.0 3.0 1.2 3.09.4 <1.4 19Aug-05 0.1 10.0 3.2 3.0 5.0 5.0 4.0 3.0 1.6 5.98.9 <1.4 21Sep-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 1.3 46Oct-05 0.14.2 3.0 6.0 4.0 3.0 3.0 1.5 2.96.3 2.7 2.2Nov-05 0.1 1.5 3.4 4.0 7.0 4.0 5.0 5.0 1.4 2.86.2 19.1 2.7Dec-05 0.1 2.8 2.3 3.0 6.0 5.0 4.0 3.0 1.5 5.014.3 0.73Jan-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 0 0.7Feb-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 <1.4 0.8Mar-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 0.5 0.7Apr-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 0.4 0.6 2May-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 0.708 5.1Jun-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 0.39 0.7 3Jul-06 0.24.2 0.5 1.0 2.0 0.5 0.5 1.2 2.6 1.9 6.0 0.78 0.7 2Aug-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 3.9 0.8Sep-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 0.4 0.8 11Oct-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 <0.80 0.4 15Nov-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 2.06 0.3 6.7Dec-06 0.23.0 0.5 3.0 3.0 2.0 3.0 1.8 2.8 2.5 4.2 2.74 0.5 3.4Jan-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 1.87 0.6Feb-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 <0.29 0.2Mar-07 0.2 13.8 1.8 1.0 4.0 3.0 2.0 2.02.2 1.4 3.8 1.17 0.2Apr-07 0.2 5.6 1.2 3.0 3.0 3.0 3.0 4.02.0 1.3 5.3 1.59 0.2May-07 0.2 7.6 2.1 1.5 1.5 1.5 1.5 1.52.2 1.7 5.6 1.2 0.3Jun-07 0.2 6.1 2.7 3.0 4.0 3.0 1.8 1.62.6 2.9 6.2 1.22 0.2Jul-07 0.2 8.9 2.0 1.5 4.0 3.0 1.5 1.52.1 1.0 4.0 <1.4 0.2Aug-07 0.2 8.9 0.3 1.0 5.0 3.0 2.0 1.51.5 2.4 5.1 1.02 0.3Sep-07 0.2 9.2 2.4 4.0 4.0 1.5 4.0 1.51.4 2.6 5.0 <0.24 0.4Oct-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 0.46 1.2Nov-07 0.2 9.4 1.5 1.5 3.0 1.5 2.0 4.01.4 1.9 9.0 <1.4 0.8Dec-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 ND 0.5USCA Case #11-1131 Document #1330427 Filed: 09/19/2011 Page 151 of 230Jan-08 0.1 7.7 1.7 1.5 3.0 5.0 1.5 3.01.4 1.5 5.2 0.937 0.3 4.8Feb-08 0.1 9.8 4.7 1.5 1.5 1.5 1.5 1.51.5 1.9 6.6 <1.4 0.3 5.5Mar-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 2.692 0.4 4Apr-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 1.04 0.4 3.7May-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 <0.753 0.7Jun-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 0.715 0.4 2.1Jul-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 0.689 0.3 5.9Aug-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 4.167 0.3 5.5Sep-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 0.902 0.4 6.4Oct-08 0.1 2.4 2.6 1.0 4.0 3.0 2.0 3.01.9 1.4 4.2 <0.972 3.6 5.9Nov-08 0.1 1.6 2.5 1.0 3.0 4.0 2.0 3.01.5 1.6 4.9 <0.650 0.9Dec-08 0.1 1.5 1.9 1.0 1.0 3.0 2.0 2.01.6 1.4 7.3 <5.49 0.7 9.8Jan-090.32.5 3.1 1.0 1.0 3.0 1.0 3.01.4 2.5 9.4 <0.832 0.9 6.4Feb-090.32.9 3.6 1.5 1.5 2.0 2.0 3.01.7 1.5 9.1 <0.685 1.2 5.6Mar-090.32.1 3.1 1.5 2.0 3.0 1.5 4.01.4 2.1 ND <0.997 1 5.3Apr-090.31.3 2.7 1.5 4.0 4.0 1.5 1.51.7 1.9 4.4 0.935 0.7 6.6May-090.31.9 2.7 1.0 3.0 3.0 1.0 1.02.1 1.7 5.5 1.27 0.8 4.9Jun-090.31.6 3.6 1.0 1.0 3.0 1.0 1.02.3 3.1 6.0 1.07 1.4 6Jul-090.31.5 2.0 1.0 1.0 1.0 1.0 1.02.3 3.3 5.6 0.917 0.7 5.6Aug-090.31.8 2.2 1.0 1.0 1.0 1.0 1.01.2 2.3 5.5 1.33 1.6 3.4Sep-090.31.9 2.9 1.0 1.0 3.0 1.0 1.01.7 1.8 4.6 <0.887 0.9 2.2Oct-090.31.8 2.7 1.0 1.5 1.0 1.0 1.01.1 4.1 5.9 <0.809 1.3 3.6Nov-090.31.8 3.2 1.0 1.0 1.0 1.0 1.01.1 3.0 7.3 <0.935 0.8 3.5Dec-090.32.4 3.0 2.0 7.0 5.0 3.0 3.03.2 1.10 0.773 3.5BCDNOPQRSTXYZAAAB25th Percentile0.1 2.4 2.0 1.0 2.8 3.0 1.5 1.5 1.2 1.6 1.4 5.2 0.7 0.4 3.5Minimum0.1 1.3 0.3 0.5 1.0 1.0 0.5 0.5 0.8 1.1 1.0 3.2 0.0 0.2 2.0Median0.2 5.6 2.6 1.5 4.0 3.0 2.0 3.0 1.5 2.2 1.8 6.0 1.1 0.7 5.3Maximum0.3 22.1 8.0 5.0 8.0 9.0 5.0 5.0 32.2 17.3 4.1 11.0 19.1 46.0 15.075th Percentile0.2 7.7 3.1 3.0 5.0 4.0 3.0 3.0 2.7 2.8 2.4 6.7 2.0 1.3 6.1USCA Case #11-1131 Document #1330427 Filed: 09/19/2011 Page 152 of 230B 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 USCA Case #11-1131 Document #1330427 Filed: 09/19/2011 Page 153 of 230Variability in Biosolids Lead Concentrations at POTWs on whichthe MACT Standards are based, 2005 - 2009050100150200250300B C D N O P Q R S T X Y Z AA ABPublicly Owned Treatment Works

Lead Concentration, mg/kgUSCA Case #11-1131 Document #1330427 Filed: 09/19/2011 Page 154 of 230BCDNOPQRSTXYZAAABJan-05 8.6 16.2 55.4 27.0 130.0 106.0 52.0 50.0 26.3 37.8 23.2 65 66 4.2 30Feb-05 11.9 21.8 163.0 16.0 80.0 51.0 90.0 57.0 97.1 31.0 17.1 51 54 6.2Mar-05 10.0 13.3 73.8 18.0 104.0 43.0 119.0 50.0 27.7 31.9 10.1 58 50 6.2 44Apr-05 12.1 6.7 63.7 24.0 70.0 70.0 137.0 54.0 28.8 57.0 10.2 75 86 5.5May-05 12.0 14.5 73.3 22.0 79.0 65.0 96.0 64.0 22.9 37.4 13.4 69 90 6.7 13Jun-05 20.2 19.0 63.4 13.0 80.0 102.0 133.0 51.0 24.2 46.6 12.4 70 63 6.1 16Jul-05 25.9 17.0 92.1 12.0 95.0 166.0 61.0 41.0 30.1 46.394 83 6.5Aug-05 19.9 30.6 107.0 15.0 52.0 51.0 35.0 71.0 39.0 59.783 47 7.9Sep-05 12.9 34.2 106.0 18.0 73.0 44.0 26.0 30.0 28.9 45.6 13.5 66 95 9.1 73.6Oct-05 9.077.5 13.0 73.0 34.0 24.0 31.0 36.9 82.475 77 6.5Nov-05 9.5 12.0 87.4 13.0 76.0 76.0 33.0 45.0 31.8 46.592 113 10 1Dec-05 10.1 18.8 64.9 12.0 74.0 50.0 25.0 40.0 32.3 59.1140 93 4.7Jan-06 8.7 18.0 72.8 10.0 77.0 46.0 30.0 76.0 29.6 29.0 11.0 59 73 20 4Feb-06 8.6 37.0 59.6 22.0 84.0 57.0 96.0 56.0 45.5 39.0 11.4 63 46 5 38Mar-06 0.5 25.5 43.0 49.0 91.0 38.0 27.0 38.0 27.3 29.9 14.0 50 76 5.5 23Apr-06 4.5 23.4 73.3 25.0 76.0 33.0 89.0 36.0 28.6 41.0 18.7 50 77 5 4May-06 10.0 23.6 55.9 20.0 67.0 41.0 22.0 40.0 43.8 39.0 15.8 73 75.97 5.1Jun-06 0.8 38.8 97.7 23.0 56.0 36.0 38.0 43.0 44.3 46.7 19.2 85 78.4 5.2 9Jul-06 0.897.4 18.0 54.0 44.0 48.0 41.0 34.6 45.5 22.1 70 99.1 5.8 2Aug-06 0.8 35.8 83.5 17.0 58.0 48.0 39.0 42.0 36.9 51.8 18.0 94 60 5.7Sep-06 0.8 39.1 80.9 21.0 53.0 40.0 38.0 84.0 37.9 45.5 25.3 59 62 4.6 49Oct-06 0.8 33.5 59.5 24.0 42.0 52.0 35.0 84.0 27.4 44.8 27.7 41 50.9 4 45Nov-06 0.8 31.6 194.0 20.0 35.0 42.0 19.0 32.0 23.5 31.9 33.1 55 53.9 3.5 16Dec-06 0.879.7 14.0 32.0 41.0 32.0 37.0 27.0 34.0 18.0 54 77.2 4.5 28Jan-07 0.8 38.2 51.9 15.0 25.0 38.0 11.0 25.0 30.4 41.8 13.0 48 63.9 3.5Feb-07 0.8 33.9 42.8 17.0 30.0 37.0 23.0 12.0 27.4 25.8 13.2 43 15 3.7Mar-07 0.8 28.2 57.9 12.0 34.0 25.0 18.0 30.032.1 15.8 42 75.7 3.8Apr-07 0.8 34.4 48.1 22.0 22.0 22.0 13.0 12.039.2 15.6 160 80.4 3.6May-07 10.8 28.6 60.3 23.0 22.0 24.0 20.0 15.037.2 17.3 60 53.1 3.5Jun-07 0.8 17.9 80.5 15.0 44.0 50.0 26.0 46.042.5 21.5 87 84.4 3.2Jul-07 0.8 28.1 74.1 16.0 29.0 37.0 30.0 40.043.1 7.4 83 85.1 3.7Aug-07 0.8 24.6 61.2 17.0 39.0 46.0 29.0 54.031.2 44.0 61 106 4.2Sep-07 0.8 24.5 65.7 15.0 37.0 49.0 22.0 38.031.0 26.4 46 18.8 4.4Oct-07 0.8 18.8 67.4 26.0 38.0 48.0 37.0 38.0 38.1 48.3 30.1 52 69.2 5.1Nov-07 0.8 22.5 53.1 27.0 44.0 44.0 15.0 41.034.4 14.1 63 18.3 5.7Dec-07 0.8 6.43 56.8 25.0 35.0 40.0 26.0 42.0 41.7 26.4 15.7 43 ND 3.8USCA Case #11-1131 Document #1330427 Filed: 09/19/2011 Page 155 of 230Jan-08 22.7 10.0 56.5 20.0 34.0 35.0 23.0 46.041.0 25.1 52 70.36 4 14Feb-08 22.1 22.1 86.8 16.0 43.0 24.0 25.0 54.032.0 17.8 54 71.55 4.4 24.5Mar-08 25.6 27.2 68.6 21.0 46.0 38.0 19.0 64.0 30.5 28.4 27.8 54 79.85 3.2 16.5Apr-08 24.6 36.9 78.4 18.0 30.0 21.0 13.0 43.0 23.5 26.8 14.5 56 66.2 3.6 15.7May-08 0.3 25.5 55.9 19.0 43.0 38.0 22.0 56.0 19.2 27.5 19.6 36 60.2 4.5Jun-08 0.3 28.4 60.1 20.0 52.0 42.0 31.0 45.0 26.0 34.6 17.6 42 65.3 5.1 13Jul-08 0.3 34.7 72.1 27.0 54.0 38.0 36.0 46.0 38.8 42.2 17.1 56 101.7 4.4 19Aug-08 5.3 23.9 30.0 25.0 67.0 45.0 42.0 42.0 32.6 52.8 25.4 87 71.6 5 20Sep-08 0.3 34.6 72.4 26.0 50.0 48.0 29.0 58.0 30.8 40.2 21.8 66 71.3 5.4 29Oct-08 0.3 30.0 77.1 26.0 55.0 57.0 24.0 46.047.3 10.3 31 57.2 5.7 24Nov-08 0.3 27.5 60.4 30.0 46.0 53.0 29.0 41.038.1 13.9 39 29.8 5.8Dec-08 14.5 28.9 56.8 23.0 40.0 46.0 15.0 59.037.7 10.2 48 30.9 5.2 19Jan-0914.417.3 49.5 26.0 41.0 39.0 21.0 45.030.6 15.7 60 38.2 4.8 5.8Feb-0929.520.6 67.3 17.0 42.0 39.0 17.0 49.029.8 10.7 42 39.9 3.2 5.7Mar-0912.227.6 69.8 13.0 29.0 37.0 19.0 41.030.0 9.9233 3.3 6.9Apr-0929.916.0 99.7 16.0 46.0 46.0 21.0 54.029.3 13.9 36 47.9 3.4 18May-0919.317.2 79.9 12.0 36.0 21.0 15.0 56.033.7 10.5 43 65.2 3 16Jun-0916.825.5 105.0 6.0 26.0 22.0 17.0 35.048.8 16.4 61 57.6 4.4 10.8Jul-0926.119.1 82.7 13.0 29.0 23.0 17.0 46.047.6 15.2 58 70.6 4.5 12.4Aug-0922.522.9 83.7 31.0 62.0 44.0 36.0 67.042.7 17.3 86 82.7 4.5 0Sep-090.732.2 66.5 23.0 61.0 38.0 36.0 52.038.4 15.5 38 49.5 8.2 1Oct-090.715.8 56.8 12.0 43.0 17.0 12.0 38.044.9 18.6 48 43.0 5.6 9.7Nov-0954.915.0 55.7 13.0 45.0 184.0 12.0 52.037.4 13.4 52 39.5 5.2 12.5Dec-0935.117.4 76.0 22.0 55.0 28.0 18.0 52.039 58.6 4.75 13.4BCDNOPQRSTXYZAAAB25th Percentile0.8 17.9 57.6 15.0 36.8 37.0 19.0 39.5 27.3 31.9 13.4 48.0 52.0 4.0 9.2Minimum0.3 6.4 30.0 6.0 22.0 17.0 11.0 12.0 19.2 25.8 7.4 31.0 15.0 3.0 0.0Median8.6 24.5 69.2 18.5 46.0 42.0 26.0 45.0 30.4 39.0 15.8 58.0 66.2 4.8 15.9Maximum54.9 39.1 194.0 49.0 130.0 184.0 137.0 84.0 97.1 82.4 44.0 160.0 233.0 20.0 73.675th Percentile15.1 30.6 80.6 23.3 67.8 49.3 36.3 54.0 37.4 45.6 19.5 70.0 79.1 5.7 23.8USCA Case #11-1131 Document #1330427 Filed: 09/19/2011 Page 156 of 230B 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 USCA Case #11-1131 Document #1330427 Filed: 09/19/2011 Page 157 of 230Variability in Biosolids Mercury Concentrations at POTWs on whichthe MACT Standards are based, 2005 - 2009012345B C D N O P Q R S T X Y Z AA ABPublicly Owned Treatment Works

Mercury Concentration, mg/kgmax = 14.65max = 6.40USCA Case #11-1131 Document #1330427 Filed: 09/19/2011 Page 158 of 230BCDNOPQRSTXYZAAACJan-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 ND 0.1 0.27Feb-05 2.1 0.3 0.2 0.6 0.7 0.6 1.2 1.2 0.5 0.5 0.038 ND ND 0.1Mar-05 0.9 0.5 0.2 0.4 3.7 0.7 1.1 0.7 0.2 1.1 0.071 ND ND 0.06 0.32Apr-05 1.8 0.8 0.05 0.3 0.3 0.6 0.6 0.5 0.2 0.4 0.048 ND ND 0.07May-05 0.8 1.4 0.1 0.3 1.4 0.4 0.8 0.9 3.5 0.6 0.030 ND ND 0.09 0.58Jun-05 1.2 0.7 0.05 0.5 0.9 0.5 0.8 0.9 0.4 0.8 0.028 ND ND <0.06 1.80Jul-05 14.6 0.4 0.05 0.3 1.2 0.7 1.2 0.5 0.6 0.41.8 ND <0.06 0.69Aug-05 12.2 0.5 0.05 0.6 1.1 0.6 1.1 1.1 1.2 0.9ND ND <0.06Sep-05 14.7 0.9 0.05 0.2 0.8 0.7 0.9 0.4 0.6 0.7ND ND 0.11 0.43Oct-05 1.30.05 0.5 0.9 0.5 0.7 0.4 0.5 0.7ND ND 0.07Nov-05 1.9 0.8 0.05 0.5 0.9 0.5 0.7 0.6 1.8 1.2ND ND 0.13Dec-05 1.2 0.9 0.05 0.5 0.8 0.5 0.6 0.7 0.6 0.3ND ND <0.06Jan-06 0.7 0.6 0.3 0.4 0.5 0.4 0.4 0.3 0.4 0.40.86 ND <0.06 0.26Feb-06 0.4 0.8 0.05 0.6 0.5 0.4 0.7 0.7 0.6 0.4ND ND <0.06 <0.05Mar-06 1.0 1.7 0.05 0.3 1.1 0.9 1.0 0.4 0.7 0.7 0.041 ND ND 0.12 0.36Apr-06 0.7 1.6 0.05 0.4 0.6 0.4 1.0 0.5 0.7 0.8ND ND 0.12May-06 0.8 1.3 0.05 0.3 0.8 0.6 1.0 0.4 0.3 0.2ND ND <0.06Jun-06 0.7 0.3 0.05 0.3 0.7 0.6 1.2 0.5 0.4 0.8ND ND <0.06Jul-06 1.00.05 0.1 0.5 0.7 1.0 0.4 0.4 0.70.71 ND 0.06Aug-06 1.2 0.4 0.05 0.3 1.0 0.6 1.2 0.6 0.6 0.9ND ND <0.06Sep-06 1.3 0.6 0.05 0.3 1.5 0.4 1.1 1.1 0.6 0.4ND ND 0.07Oct-06 1.6 0.8 0.05 0.3 0.9 0.8 1.1 0.4 0.8 0.1ND ND <0.06Nov-06 1.1 0.069 0.05 0.3 0.6 0.3 0.8 0.4 0.2 2.0ND ND 0.26Dec-06 0.70.05 0.3 0.6 0.4 0.9 0.3 0.4 0.7ND ND 0.14Jan-07 0.4 0.0 0.05 0.2 0.5 0.2 0.6 0.3 0.3 0.10.64 ND <0.06Feb-07 6.4 0.2 0.05 0.7 0.7 0.3 0.6 0.4 0.5 1.2ND ND <0.06Mar-07 0.9 0.2 0.05 0.3 0.8 0.5 1.2 0.40.8ND ND 0.1Apr-07 0.5 0.6 0.05 0.3 0.6 0.7 0.8 0.60.9ND ND 0.18May-07 0.8 0.3 0.05 0.3 0.9 0.7 0.9 0.51.1 0.03 ND ND <0.06Jun-07 0.7 0.6 0.05 0.4 0.9 0.6 0.9 0.60.4 0.03 ND ND <0.06Jul-07 1.2 0.2 0.05 0.4 1.1 0.8 1.9 0.60.4 0.03 0.87 ND 0.08Aug-07 1.1 0.4 0.05 0.6 0.8 0.5 1.1 0.73.4 0.05 ND ND <0.06Sep-07 0.9 0.7 0.05 0.2 0.7 0.4 0.9 0.50.1 0.04 ND ND <0.06Oct-07 0.6 0.3 0.05 0.3 0.8 0.6 0.7 0.3 0.8 0.2 0.04 ND ND 0.07Nov-07 0.7 0.6 0.05 0.2 0.6 0.3 0.6 0.51.0 0.04 ND ND 0.18Dec-07 0.7 1.5 0.05 0.2 0.6 0.5 0.9 0.7 0.4 0.1 0.03 ND ND 0.11USCA Case #11-1131 Document #1330427 Filed: 09/19/2011 Page 159 of 230Jan-08 0.5 0.1 0.05 0.2 0.5 0.4 0.4 0.50.9 0.04 0.6 1.089 <0.06 0.44Feb-08 0.5 0.7 0.05 0.4 0.8 0.4 0.5 0.50.3 0.03 ND 0.993 0.11Mar-08 0.6 0.4 0.05 0.3 0.6 0.4 0.7 0.5 0.6 0.3 0.04 ND 0.83 0.1 0.72Apr-08 0.4 0.8 0.05 0.3 0.5 0.6 0.7 0.4 0.6 0.3 0.06 ND 0.85 0.04 0.59May-08 0.7 0.2 0.05 0.3 0.8 0.4 0.8 0.5 0.2 0.6 0.60 ND 1.14 <0.06Jun-08 0.8 0.2 0.05 0.4 1.3 0.5 0.9 0.5 0.2 0.5 0.03 ND 1.08 0.06 0.80Jul-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 1.159 <0.06 0.82Aug-08 0.6 0.1 0.05 0.3 1.2 0.5 0.8 0.4 0.5 0.3 0.03 ND 1.50 0.29 0.88Sep-08 0.6 0.2 0.05 0.2 1.4 0.3 1.0 0.3 0.4 0.3 0.03 ND 1.58 <0.06 0.62Oct-08 0.6 0.1 0.05 0.3 1.1 0.4 0.6 0.40.8 0.03 ND 1.00 <0.06Nov-08 0.4 0.2 0.05 0.3 0.6 0.4 0.7 0.4 0.2 0.4 0.05 ND 0.90 <0.06Dec-08 0.4 0.2 0.05 0.4 0.5 0.4 0.3 0.8 0.3 2.2 0.07 ND 0.74 0.09 0.50Jan-090.60.2 0.05 0.4 0.4 0.2 0.4 0.60.7 0.05 0.71 1.01 <0.06 0.62Feb-090.70.3 0.05 0.6 0.4 0.3 0.7 0.31.5 0.05 ND 2.13 <0.06Mar-090.70.2 0.05 0.4 0.4 0.6 0.9 0.31.8 0.03 ND 1.65 0.09Apr-090.50.2 0.05 0.2 0.6 0.5 1.0 1.93.4 0.03 ND 1.35 <0.06 0.42May-090.50.1 0.05 0.3 0.6 0.4 0.9 0.60.8 0.03 ND 1.23 0.06 0.55Jun-090.70.4 0.05 0.2 0.7 0.4 0.7 0.31.7 0.05 ND 1.15 <0.06 0.78Jul-090.80.4 0.05 0.3 0.6 0.6 0.6 0.41.4 0.05 1.7 2.31 0.06 0.98Aug-090.90.2 0.05 0.3 0.7 0.6 1.5 0.51.1 0.03 ND 1.46 <0.06Sep-090.80.3 0.05 0.7 0.8 0.5 1.0 0.70.8 0.03 ND 1.06 0.17Oct-090.60.2 0.05 0.5 0.6 0.7 0.7 0.43.3 0.05 ND 1.00 0.11 0.52Nov-090.70.4 0.05 0.5 0.6 0.4 1.5 0.30.4 0.01 ND 1.11 <0.06 0.67Dec-090.50.3 0.05 0.5 0.5 0.4 0.4 0.5ND 1.40 <0.06 0.89BCDNOPQRSTXYZAAAB25th Percentile0.61 0.20 0.05 0.30 0.60 0.40 0.70 0.40 0.35 0.40 0.03 0.71 1.00 0.07 0.44Minimum0.40 0.03 0.05 0.10 0.30 0.20 0.30 0.30 0.00 0.05 0.01 0.00 0.00 0.00 0.26Median0.75 0.36 0.05 0.30 0.70 0.50 0.85 0.50 0.50 0.71 0.04 0.87 1.13 0.10 0.61Maximum14.65 1.70 0.25 0.70 6.40 0.90 1.90 1.90 3.49 3.40 0.60 1.80 2.31 0.29 1.8075th Percentile1.09 0.68 0.05 0.50 0.90 0.60 1.00 0.63 0.64 0.96 0.05 1.37 1.42 0.12 0.79USCA Case #11-1131 Document #1330427 Filed: 09/19/2011 Page 160 of 230Cadmium 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 230Variability in Biosolids Cadmium Concentrations at POTWs, 2005 - 20090510152025A E FGH I J UVWPublicly Owned Treatment Works

Cadmium Concentration, mg/kgmax = 33.1max = 44.4USCA Case #11-1131 Document #1330427 Filed: 09/19/2011 Page 162 of 230Monthly Average Cadmium in Biosolids at Non-MACT Floor POTWs (mg/dry kg)(2005-2009)AEFGH I JUVWJan-05 4.8 0.0 8.4 2.5 3.1 11.9 13.22.75 3.185Feb-051.5 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 13.06.25 3.998Apr-052.4 20.6 3.0 2.5 14.8 13.6 2.0 2.8 0.4May-05 2.7 1.2 22.8 4.0 2.3 12.1 15.1 2.0 3.0Jun-052.3 13.5 3.1 1.5 18.8 13.8 2.0 2.5 3.8Jul-05 5.1 1.3 13.5 3.3 1.9 11.7 13.72.0 3.8Aug-051.7 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 11.76.0 2.0Oct-051.3 23.5 3.0 2.6 19.83.0 4.0 4.6Nov-05 3.2 0.8 7.9 2.9 3.0 12.93.0 4.0Dec-051.0 16.5 2.8 1.2 14.52.0 1.8 3.8Jan-06 12.9 0.8 7.0 2.615.3 12.31.0 2.8Feb-061.4 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 19.53.5 2.0Apr-06 4.8 0.8 11.2 3.0 2.8 16.6 10.7 3.0 2.5 3.0May-06 4.7 0.0 7.2 2.8 2.0 11.0 12.42.5 3.5Jun-06 6.7 0.0 16.9 3.2 3.0 11.4 13.9 2.4 2.0 3.8Jul-06 7.3 1.7 25.4 3.2 3.2 12.4 15.32.9 5.0Aug-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 13.62.6 4.8Oct-06 3.7 1.4 18.0 3.4 1.7 15.5 13.7 1.5 1.1 3.8Nov-06 0.9 1.0 16.6 2.8 2.2 12.3 12.42.5 4.0Dec-06 3.6 1.6 6.2 2.8 1.4 13.9 13.0 1.2 0.0 7.6Jan-07 4.2 0.0 5.8 2.7 2.4 11.4 12.82.0 4.0Feb-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 14.02.0 3.6Apr-07 3.2 2.7 12.5 2.9 2.1 11.2 14.7 1.5 3.0 3.4May-07 3.5 1.3 6.7 2.9 1.8 14.5 15.22.6 3.6Jun-07 2.6 1.6 10.8 3.2 2.0 14.1 15.2 0.8 2.7 4.4Jul-07 2.6 1.5 8.0 3.9 2.0 14.3 13.92.7 5.1Aug-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 20.32.0 4.2Oct-07 2.6 3.4 14.7 2.6 1.9 17.1 17.1 2.4 1.8 3.6Nov-07 3.9 1.5 13.6 2.5 2.6 9.8 13.72.5 3.7Dec-07 2.6 1.2 13.6 2.4 3.2 11.0 15.4 1.4 2.7 3.3USCA Case #11-1131 Document #1330427 Filed: 09/19/2011 Page 163 of 230Monthly 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 14.61.5 4.2Feb-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 16.72.2 3.5Apr-08 2.6 18.3 0.1 2.5 2.7 14.0 19.4 1.4 3.0 3.8May-08 2.7 1.6 12.5 3.1 3.9 12.7 14.83.2 3.7Jun-08 2.8 5.2 5.3 3.3 2.5 13.6 12.9 1.34 2.7 5.3Jul-08 3.3 0.0 1.9 3.1 2.9 10.5 20.12.3 3.2Aug-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 12.62.5 4.3Oct-08 4.2 4.3 16.8 3.7 2.4 7.7 9.41.7 14.4Nov-08 2.0 1.0 14.3 3.4 2.4 8.4 9.4 1.0 2.1 3.9Dec-08 2.7 6.3 14.8 3.1 2.0 7.7 9.6 1.1 7.8 3.7Jan-09 3.4 0.6 15.7 2.7 2.4 8.0 13.35.0 3.1Feb-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 14.52.7 3.7Apr-09 4.3 0.7 15.1 3.5 2.2 9.1 15.0 1.0 2.8 2.5May-09 0.4 0.9 7.6 3.7 3.1 10.4 13.0 0.8 2.9 3.2Jun-09 3.3 2.2 11.1 3.6 2.4 4.6 7.9 0.7 2.6 3.2Jul-09 4.9 3.8 13.3 2.7 2.0 4.5 7.9 1.3 2.2 4.2Aug-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 8.12.7 3.3Oct-09 3.8 3.0 22.72.3 4.0 7.2 1.5 3.1 3.5Nov-09 3.8 2.9 17.02.8 4.1 6.2 1.0 3.4 5.8Dec-09 3.32.6 3.8 6.01.8 2.4AEFGH I JUVW25th Percentile2.7 0.9 10.5 2.6 2.0 9.5 12.0 1.0 2.1 3.2Minimum0.3 0.0 0.1 2.1 1.2 3.8 6.0 0.7 0.0 0.4Median3.3 1.5 13.6 3.0 2.4 12.4 13.6 1.5 2.6 3.7Maximum12.9 18.3 33.1 4.0 4.4 44.4 20.3 3.0 8.5 14.475th Percentile4.2 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 230Lead 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 230Variability in Biosolids Lead Concentrations at POTWs, 2005 - 2009050100150200250300A E F GH I J UWXPublicly Owned Treatment Works

Lead Concentration, mg/kgUSCA Case #11-1131 Document #1330427 Filed: 09/19/2011 Page 166 of 230Monthly 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 230Monthly 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 230Mercury 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 230Variability in Biosolids Mercury Concentrations at POTWs, 2005 - 2009012345A E F GH I J U VWPublicly Owned Treatment Works

Mercury Concentration, mg/kgmax = 6.1USCA Case #11-1131 Document #1330427 Filed: 09/19/2011 Page 170 of 230Monthly 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 USCA Case #11-1131 Document #1330427 Filed: 09/19/2011 Page 171 of 230Monthly 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" USCA Case #11-1131 Document #1330427 Filed: 09/19/2011 Page 172 of 230USCA Case #11-1131 Document #1330427 Filed: 09/19/2011 Page 173 of 230USCA Case #11-1131 Document #1330427 Filed: 09/19/2011 Page 174 of 230USCA Case #11-1131 Document #1330427 Filed: 09/19/2011 Page 175 of 230USCA Case #11-1131 Document #1330427 Filed: 09/19/2011 Page 176 of 230USCA Case #11-1131 Document #1330427 Filed: 09/19/2011 Page 177 of 230USCA Case #11-1131 Document #1330427 Filed: 09/19/2011 Page 178 of 230USCA Case #11-1131 Document #1330427 Filed: 09/19/2011 Page 179 of 230USCA Case #11-1131 Document #1330427 Filed: 09/19/2011 Page 180 of 230USCA Case #11-1131 Document #1330427 Filed: 09/19/2011 Page 181 of 230USCA Case #11-1131 Document #1330427 Filed: 09/19/2011 Page 182 of 230USCA Case #11-1131 Document #1330427 Filed: 09/19/2011 Page 183 of 230USCA Case #11-1131 Document #1330427 Filed: 09/19/2011 Page 184 of 230USCA Case #11-1131 Document #1330427 Filed: 09/19/2011 Page 185 of 230USCA Case #11-1131 Document #1330427 Filed: 09/19/2011 Page 186 of 230USCA Case #11-1131 Document #1330427 Filed: 09/19/2011 Page 187 of 230USCA Case #11-1131 Document #1330427 Filed: 09/19/2011 Page 188 of 230USCA Case #11-1131 Document #1330427 Filed: 09/19/2011 Page 189 of 230USCA Case #11-1131 Document #1330427 Filed: 09/19/2011 Page 190 of 230USCA Case #11-1131 Document #1330427 Filed: 09/19/2011 Page 191 of 230USCA Case #11-1131 Document #1330427 Filed: 09/19/2011 Page 192 of 230USCA Case #11-1131 Document #1330427 Filed: 09/19/2011 Page 193 of 230USCA Case #11-1131 Document #1330427 Filed: 09/19/2011 Page 194 of 230USCA Case #11-1131 Document #1330427 Filed: 09/19/2011 Page 195 of 230USCA Case #11-1131 Document #1330427 Filed: 09/19/2011 Page 196 of 230USCA Case #11-1131 Document #1330427 Filed: 09/19/2011 Page 197 of 230USCA Case #11-1131 Document #1330427 Filed: 09/19/2011 Page 198 of 230USCA Case #11-1131 Document #1330427 Filed: 09/19/2011 Page 199 of 230USCA Case #11-1131 Document #1330427 Filed: 09/19/2011 Page 200 of 230USCA Case #11-1131 Document #1330427 Filed: 09/19/2011 Page 201 of 230USCA Case #11-1131 Document #1330427 Filed: 09/19/2011 Page 202 of 230USCA Case #11-1131 Document #1330427 Filed: 09/19/2011 Page 203 of 230USCA Case #11-1131 Document #1330427 Filed: 09/19/2011 Page 204 of 230USCA Case #11-1131 Document #1330427 Filed: 09/19/2011 Page 205 of 230USCA Case #11-1131 Document #1330427 Filed: 09/19/2011 Page 206 of 230USCA Case #11-1131 Document #1330427 Filed: 09/19/2011 Page 207 of 230USCA Case #11-1131 Document #1330427 Filed: 09/19/2011 Page 208 of 230USCA Case #11-1131 Document #1330427 Filed: 09/19/2011 Page 209 of 230USCA Case #11-1131 Document #1330427 Filed: 09/19/2011 Page 210 of 230USCA Case #11-1131 Document #1330427 Filed: 09/19/2011 Page 211 of 230USCA Case #11-1131 Document #1330427 Filed: 09/19/2011 Page 212 of 230USCA Case #11-1131 Document #1330427 Filed: 09/19/2011 Page 213 of 230USCA Case #11-1131 Document #1330427 Filed: 09/19/2011 Page 214 of 230USCA Case #11-1131 Document #1330427 Filed: 09/19/2011 Page 215 of 230USCA Case #11-1131 Document #1330427 Filed: 09/19/2011 Page 216 of 230USCA Case #11-1131 Document #1330427 Filed: 09/19/2011 Page 217 of 230USCA Case #11-1131 Document #1330427 Filed: 09/19/2011 Page 218 of 230USCA Case #11-1131 Document #1330427 Filed: 09/19/2011 Page 219 of 230USCA Case #11-1131 Document #1330427 Filed: 09/19/2011 Page 220 of 230USCA Case #11-1131 Document #1330427 Filed: 09/19/2011 Page 221 of 230USCA Case #11-1131 Document #1330427 Filed: 09/19/2011 Page 222 of 230

# ENCLOSURE E

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