ORAL ARGUMENT NOT YET SCHEDULED

UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF

COLUMBIA CIRCUIT

____________________________________ NATIONAL ASSOCIATION OF ) CLEAN WATER AGENCIES et al. , ) ) Petitioners, ) ) v. ) No. 11

- 1131 ) (and consolidated cases) UNITED STATES ENVIRONMENTAL ) PROTECTION AGENCY, et al. , ) ) Respondents )

___________________________________ )

SIERRA CLUB’S OPPOSITION TO EMERGENCY JOINT MOTION FOR STAY OF THE SEWAGE SLUDGE INCINERATION RULE USCA Case #11-1131 Document #1334719 Filed: 10/11/2011 Page 1 of 22

(Page 1 of Total)1 INTRODUCTION
Intervenor

- defendant Sierra Club submits this opposition to the joint ―emergency motion‖ filed October 19, 2011 by the National Association of Clean Water Agencies (―NACWA‖) and Hatfield Township Municipal Authority (―Hatfield Township‖) (tog ether, ― Industry ‖) asking the Court to stay the Environmental Protection Agency (―EPA‖ or ―Agency‖) action entitled ―Standards of Performance for New Stationary Sources and Emission Guidelines for Existing Sources: Sewage Sludge Incineration Units,‖ 76 Fed . Reg. 15372 (Mar. 21, 2011) (the ―SSI Rule‖ or ―Rule‖). Each of the four factors the Court considers when reviewing stay motions weigh against staying this important public health measure that was due nearly

seven years ago . Industry assert injuries tha t are necessarily speculative and indirect, far short of the certain, imminent, and irreparable injury that this Court requires to justify a stay. In addition, Industry ‘ s arguments that the Rule is more stringent than the Clean Air Act allows have little l ikelihood of success on the merits. Finally, the impacts that a stay would have on Sierra Club members and the public weigh strongly against granting a stay

.

FACTUAL AND LEGAL BACKGROUND According to EPA, 204 sewage sludge incinerators (SSIs) are currentl y operating in the United States. 76 Fed. Reg. at 15 403. The sludge these units burn USCA Case #11-1131 Document #1334719 Filed: 10/11/2011 Page 2 of 22

(Page 2 of Total)2

includes toxic metals and other hazardous chemicals. A nd EPA has estimated that they emit, each year, nearly a ton of mercury, more than two tons of lead, and nearly a ton of cadmium . Doc. 0154, 1 Eastern Research Group, Inc. (ERG) ,

― Revised Estimation of Baseline Emissions from Existing Sewage Sludge Incineration Units ‖ ( January 2011 ), 1. They also emit, each year, more than 28 tons of hydrogen chloride, more than 300 tons of particulate matter, more than 700 tons of s ulfur dioxide, more than 2,300 tons of nitrogen oxides , and more than 8,5 00 tons of carbon monoxide. Id. Section 129 of the Clean Air Act requires EPA to set performance standards
for all new and existing ―so lid waste incineration units.‖ 42 U.S.C. § 7429(a)(1). The term ―solid waste incineration unit‖ encompass ― any facility which combusts
any solid waste material from commercial or industrial establishments or the general public ...,‖ subject to four exceptions not relevant here

. Id . § 7429(g)(1).
See NRDC v. E.P.A , 489 F.3d 1250, 1257 (D.C. Cir. 2007) (―[a]pplying the usual‖ ―all

- inclusi ve‖ meaning of the word ―any‖) (citation omitted)

. EPA committed to
finalize standards for SSIs under § 129(a)(1)(E) by Novemb er 30, 2005. See Sierra Club v. Whitman , No. 01

- 1537 , Partial Consent Decree, (D.D.C.) , (Ex. 1)

. When EPA regulates these pollutants, s tandards must ―reflect the maximum

1 Document numbers in this brief correspond to the last four digits of EPA‘s docket number for this rulemaking. Thus, Doc. 0154 can be found in EPA‘s rulemaking docket at EPA

- HQ

- OAR

- 2009

- 0559

- 0154. 2 Thus, the emission guidelines for fluidized bed and multiple hearth units both USCA Case #11-1131 Document #1334719 Filed: 10/11/2011 Page 3 of 22

(Page 3 of Total)3

degree of reduction in emissions

... that the Administrator ... determines is achievable‖ after taking into account costs and non

- air quality health and environmental impacts. Id

. § 7429(a)(2). Regardless of cost, t he standards for new units must be at least as strict as ―the emissions control that is achieved in practice by the b est controlle d similar unit...,‖ and standards for existing units must be at least as strict as ―the average emissions limitation achieved by the best performing 12 p ercent of units in the category

. ‖ Id

. EPA issued the standards at issue in this case on March 2 1 of this year. The

new source standards (referred to in § 129 as ―new source performance standards‖)
became effective six months after promulgation. 42 U.S.C. § 7429(f)(1). Existing source standards (referred to in § 129 as ― emission guidelines ‖) , though, have no

e ffect on existing units until the completion of one of two additional steps. The first requires individual state s to submit to EPA a plan that implements and enforces the standards. Id . § 7429(f)(2). States have a year from the date of promulgation to subm it such plans. Id . § 7429(b)(2). EPA has 180 days to approve plan s , and incinerators may have up to 3 additional years (4.5 years from the initial promulgation) to come into compliance with the plan‘s requirements. Id

. Alternatively, if a state fails to su bmit an acceptable plan, EPA must develop its own plan, which may delay compliance for up to 5 years from the date of initial promulgation. Id . § 7429(b)(3). USCA Case #11-1131 Document #1334719 Filed: 10/11/2011 Page 4 of 22

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In setting standards for existing SSIs , EPA first calculated the average emissions of the best

- pe rforming 12 percent of units in a given category (i.e. fluidized bed or multiple hearth) for each pollutant. EPA then adjusted that figure upward, often by a factor of three or more, allegedly to account for the variability of the data it had collected

. It made further upward adjustments before finalizing
the standards. 2 The resulting standards are so lenient that EPA estimates more than three quarters of all existing units already meet them . 76 Fed. Reg. at 15386. Cf. 42 U.S.C. § 7412(d)(3) (requiring stan dards to reflect emission levels achieved by best performing 12 percent of sources for which EPA has emis sions information). Similar upward adjustments led to new source standards that allow three times

more emissions than the top

- performing unit emits. In some cases, the standards allow new units to emit more than the top 12 percent of e xisting units average . 3

2 Thus, the emission guidelines for fluidized bed and multiple hearth units both allow dioxin and dibenzofuran concentrations more than six times greater than the top 12 perce nt of existing units already achieve. Mercury emissions for the top 12 percent of existing fluidized bed incinerators averaged 0.01 milligrams per dry standard cubic meter. By comparison, the emission guidelines allow for emissions of 0.037 mg/dscm. Lead e missions from the top 12 percent of existing multiple hearth units averaged 0.082 mg/dscm, while the emission guideline allows concentrations of 0.30 mg/dscm. Doc. 0157, ERG, ―Revised MACT Floor Analysis for the Sewage Sludge Incinerator Source Category‖ ( Jan. 2011), 19. 3 The top 12 percent of existing fluidized bed incinerators emit an average of 0.00049 mg/dscm of cadmium. The new source performance standards for fluidized bed units allow for cadmium emissions of 0.0011 mg/dscm, more than twice as much. Id

. at 19. USCA Case #11-1131 Document #1334719 Filed: 10/11/2011 Page 5 of 22

(Page 5 of Total)5 STANDARD FOR GRANTING A STAY A stay is an ―extraordinary remedy,‖ Cuomo v. U.S. Nuclear Reg. Comm’n , 772 F.2d 972, 978 (D.C. Cir. 1985), amounting to ―an  ̳intrusion into the ordinary processes of administration and judicial review.‘‖ Nken v. Holder , 129 S. Ct. 1749, 1757 (2009) (quoting Va. Petroleum Jobbers Ass’n v. FPC , 259 F.2d 921, 925 (D.C. Cir. 1958)). In considering whether to grant a stay, a court will examine four factors: ―(1) whether the stay applicant has made a strong showing that he is likely to succeed on the merits; (2) whether the applicant will be irreparably injured absent a stay; (3) whether issuance of the stay will substantiall y injure the other parties interested in the proceeding; and (4) where the public interest lies.‖ Nken , 129 S. Ct. at 1761 (citation and internal quotations omitted). Movants who fail to demonstrate irreparable harm will be denied a stay even
if all thre e other factors weigh heavily in their favor. Wis. Gas Co. v. FERC , 758 F.2d 669, 674 (D.C. Cir. 1985); see also Chaplaincy of Full Gospel Churches v. England , 454 F.3d 290, 297 (D.C. Cir. 2006). A showing of irreparable harm must be ―both certain and grea t; it must be actual and not theoretical.‖ Wis. Gas Co. , 758 F.2d at 674. The claimed injury must be ―of such imminence that there is a clear and present need for equitable relief to prevent irreparable harm.‖ Id . (citation and internal quotations omitted) . ―Speculative‖ injuries are insufficient to establish irreparable harm, as are injuries that do not ―directly result from the action which USCA Case #11-1131 Document #1334719 Filed: 10/11/2011 Page 6 of 22

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the movant seeks to enjoin.‖ Id . Likewise, ―self

- imposed costs are not properly the subject of inquiry on a motion f or stay.‖ Cuomo , 772 F.2d at 977 ; see also Va. Petroleum Jobbers Ass’n , 259 F.2d at 927 (holding that ―h ypothetical, self

inflicted losses‖ do not justify a stay). Movants must substantiate any claim that irreparable injury is likely to occur with ― proof t hat the harm has occurred in the past and is likely to occur again, or proof indicating that the harm is certain to occur in the near future.‖ Id . at 674; see also Winter v. NRDC , 129 S. Ct. 365, 375 (2008). ―Bare allegations of what is likely to occur are of no value since the court must decide whether the harm will in fact occur.‖ Wis. Gas Co. , 758 F.2d at 674. However, a stay ―is not a matter of right, even if irreparable injury might otherwise result‖ to the proponent. Nken , 129 S. Ct. at 1757. The lik elih ood of success factor requires m ovants to make a ―strong‖ showing.‖ Nken , 129 S. Ct. at
1761 (citation omitted)

. A ―mere  ̳possibility‘ of relief‖ is insufficient to justify a stay regardless of Movants‘ showings with respect to the remaining factors. I d

. (cita tion omitted). And even where m ovants meet the likelihood of success prong and show some irreparable injury, a stay mu st nonetheless be denied where

m ovants have ―failed to demonstrate that the balance of equities or the public interest strongly fa vors the granting of a stay.‖ Cuomo , 772 F.2d at 978. For example, irreparable harm does not warrant a stay where ―its prevention will visit similar harm on other interested parties.‖ Ambach v. Bell , 686 F.2d 974, 979 (D.C. USCA Case #11-1131 Document #1334719 Filed: 10/11/2011 Page 7 of 22

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Cir. 1982). In litigation involv ing ―the administration of regulatory statutes designed to promote the public interest, [the public interest factor] necessarily becomes crucial. The interests of private litigants must give way to the realization of public purposes.‖ Va. Petroleum Jobbers Ass’n , 259 F.2d at 925. Applying the public interest prong requires respecting the choices of ―Congress, the elected representatives of the entire nation,‖ as ―decreed‖ by statute, Cuomo , 772 F.2d at 978, as well as ―the decision of the [Administrator] as reflecting the best interests of the public in h[er] expert judgment,‖ Ambach , 686 F.2d at 987. Movants must make strong, independent showings on all four of the factors

— especially with respect to the first two factors

— to justify issuance of a stay. See N ken , 129 S. Ct. at 1761; see also Davis v. PBGC , 571 F.3d 1288, 1296 (D.C. Cir. 2009) (Kavanaugh, J., concurring). ARGUMENT
I. INCINERATOR OPERATOR S HAVE NOT DEMONSTRATED THAT ANY IRREPARABLE HARM WILL OCCUR. A. Industry ’ s Arguments About Harm To the Environment Are Speculative a nd Ir relevant To Their Request For a Stay. Industry claim that: (1) some incinerator operators may choose to permanently shut down their incinerators rather than comply with the challenged standards, even before the present case is resol ved, and (2) shutdowns could harm the environment because (a) sewage sludge currently being incinerated could be USCA Case #11-1131 Document #1334719 Filed: 10/11/2011 Page 8 of 22

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landfilled, and (b) (in Industry ‘ s view) landfilling sewage sludge is worse for the environment than burning it without the required controls. Pet ‘r‘s Emergency Joint Mot. For Stay of the SSI Rule, 14

- 17 (―Pet‘r‘s Mot.‖)

. Industry do es not and cannot substantiate even one link in this chain of speculation, nor show that a stay would address these complaints. Furthermore, i f these allegations were true, such harm would not constitute irreparable injury to Industry , but would be relevant only in assessing the public interest

. Although Industry seek s to rely on declarations from individual operators to argue that some may shut down their incinerator s, Pet ‘r‘s Mot . 15 , it do es not identify a single one that will shut down, let alone do so while the present case is pending. T he declarations provided merely claim some incinerators ―potentially cannot comply‖ ( Pet‘r‘s Mot. Ex. 3 , ¶ 8) , or they express ―u ncertainty‖ as to
whether some can . ( Pet‘r‘s Mot. Ex. 5 , ¶ 7). Further, e ven assuming that the challenged rule s might eventually cause some incinerators to shut down, Industry fail s to demonstrate that any shutdowns will occur before the present case is
de cided

— i.e. in the absence of a stay. The Clean Air Act does not require any existing incinerator to comply with the Rule before September 21, 2015 at the earliest. See 42 U.S.C. § 7429(f)(2). Even if the present case is not decided until September 2012, al l incinerator operators will still have three y ears, if not longer, USCA Case #11-1131 Document #1334719 Filed: 10/11/2011 Page 9 of 22

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before the statute requires they comply with the standards. 4 Industry also a rgue s that some States are forcing operators ― to make immediate commitments either to take the uncertain path o f retrofitting their SSIs or to abandon incineration and star t the conversion to landfilling. ‖ Pet‘r‘s Mot. 15

. T he S tate letters it cite s , however, merely request that operators share their present intention with the state agency. Operators do not have to act on that intention.
In deed , they don‘t even have to state that intention: the letters advise operators to indicate whether they need additional time to respond. 5 Pet‘r‘s Mot. Ex. 2, at 4

. Industry provide s nothing but speculation that some operators ma y choose to shut down before a decision is reached in this case. In any case , neither the letter nor the operator‘s decision would directly result from the absence of a stay

. See Wisc. Gas , 758 F.2d at 674. Industry also suggest s that some SSIs may switch to landfilling

. It do es not identify a single SSI that will do so, however, let alone any that will be forced to as a result of the absence of a stay

. For instance, although Industry seek s to rely on a

4 EPA notes in the preamble that it ―anticipates that states may choose to provide the 3

- year compliance period allowed by CAA section 129(f)(2).‖ 76 Fe d. Reg. at 15 379. Industry do es not identify a single instance when a State has provided less than the full statutory compliance time, far less demonstrate that any State is certain to do so here. 5 The similar allegation that the State of Virginia says it plans to ―move quickly‖ to implement the Rule, see Pet‘r‘s Mot. Ex. 3, ¶ 8, would also fail to support a finding of irreparable harm even if it were not vague hearsay. USCA Case #11-1131 Document #1334719 Filed: 10/11/2011 Page 10 of 22

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declaration from the Northeast Ohio Regional Sewer Di strict , Pet‘r‘s Mot. 16 , that entity does not allege that it will switch to landfilling , but merely speculates about the harms it imagines wou ld occur ―if‖ it were to switch

. Pet‘r‘s Mot. Ex. 4, ¶ 12. In any event, Industry fail s to show that the environme ntal impacts of landfilling are worse than those from incineration without the required controls

. Industry
focus es on potential increases in greenhouse gas emissions resulting from landf illing, but entirely ignore s reductions in mercury and other hazardous air pollutants from shutting down incinerators. This is especially important because those reductions are precisely the concern of the statute and the subject of the Rule. They are also more localized

— and thus more likely to impact the communities who use incinerators

— than greenhouse gases. In addition, Industry exaggerate s the increase in greenhouse gas emissions from landfilling by crediting incinerators for potential energy recovery projects while ignoring the possibility of similar projects at landfill s. 6 Industry‘s final complaint of environmental harm is that the absence of a stay is ―chilling beneficial projects‖ like potential retrofits and energy recovery. But these projects are speculative to begin with, as movants have not identified any

6 Record evidence also suggests that other environmental impacts (e.g. water consumption and dust) would decrease if some units were to switch to landfilling. Doc. 0007, ERG, ―Seco ndary Impacts of Control Options f or the Sewage Sludge Incineration Source Category‖ (June 2010), 3. USCA Case #11-1131 Document #1334719 Filed: 10/11/2011 Page 11 of 22

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that ce rtainly would occur but for the absence of a stay. See, e.g., Pet‘r‘s Mot. Ex. 5, ¶ 5 (― [T] he City of Cedar Rapids may be forced to postpone or eliminate otherwise beneficial upgrades...‖ ) (emphasis added). Regardless, dampened enthusiasm for such projects is hardly the ―certain and great‖ harm necessary for a stay. B. The Impact That D enying a Stay Will Have On Potential Future MACT Standards Is Speculative At Best . Industry also speculate s that it will suffer harm in the absence of a stay as a result of the fo llowing hypothetical chain of events: (1) though the statute does n ot require compliance with the R ule for four years, some SSIs will reduce their
emissions by installing control equipment even before this case is resolved, (2) despite the Rule ‘s laxity , t hose SSIs will reduce their emissions enough to be among the lowest

- emitting 12 percent of facilities when EPA next sets (or resets) MACT standards for existing units, and (3) EPA will rely on data from those SSIs
in setting future MACT standards stringent enough to require other SSIs to install more expensive control technologies. Pet‘r‘s Mot. 17

- 18.
T he speculative nature of this claimed harm is apparent at every step

. It begins by again ignoring the extended time period for compliance with the Rule. Alt hough Industry claim s that some SSIs will ―inevitably ... install new control equipment ,‖ it fail s to identify a single one that will do so while this case is USCA Case #11-1131 Document #1334719 Filed: 10/11/2011 Page 12 of 22

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pending, or explain why that is even likely to happen. Id. at 17 Even if some SSIs do take steps t o comply with the Rule this far in advance, it is speculative to assume that they will reduce their emissions so much as to place among the cleanest 12 percent of SSIs at some indefinite point in the future. If the Rule is ultimately upheld, other SSIs wil l likely install additional controls and reduce their emissions. If it is not, it is still possible that SSIs will voluntarily shut down or otherwise reduce their emissions , 7 thus raising the standard for what it takes to be among the 12 percent of best

- pe rforming units. Even being among the top 12 percent may not be enough to affect a future standard, as the Agency can always set future MACT standards tighter than the statutory floor . In any event, the challenged standards

— so lax that more than 75 percent of existing SSIs already meet them

— do not guarantee that a plan t that meets them will be in the top 12 percent of performers in a future rulemaking. And should it somehow come to pass that these newly compliant SSIs factor into a future standard

- setting pr ocess, it is still speculative to assume that the resulting standards will necessarily constitute an injury to Industry

.

7 SSIs could accomplish this either by installing controls or changing the composition of the slud ge they burn, see, e.g., Doc. 00 85, Comment by City of Pa lo Alto, Nov. 29, 2010, p. 82

- 86 (describing efforts to reduce mercury from dental amalgam before it enters sewer system). USCA Case #11-1131 Document #1334719 Filed: 10/11/2011 Page 13 of 22

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C. The Absence Of A Stay Will Not Result In Increased Compliance Costs . Industry ‘ s claim that ―many municipalities have already been for ced to incur irretrievable costs‖ due to the absence of a stay has similar weaknesses and overstates the declarations Movants provide in support. The Northeast Ohio Regional Sewer District, for exam ple, does not declare that the R ule

— let alone the
absence of a stay

— is responsible for actual or imminent cost increases , but only that it ―could‖ be. Pet‘r‘s Mot

. Ex. 4, ¶ 15 . While the district claims it may face ―an enormous economic loss,‖ that is only ―[if] NEORSD is forced to abandon incineration.‖ Id. See also Id

. at ¶ 10 (― Were the above

- described capital improvements made....‖) (emphasis added), ¶ 12 (―If NEORSD were to shut down its incinerator and utilize another method...‖). As noted above, Industry do es not claim, far less demonstrate, that any unit will be forced to shut down. Industry also complain s that the aforementioned letter from the New York State Department of Environmental Conservation is forcing the district to increase debt service ―for capital improvements, engineering and other compliance
b urdens.‖ Pet‘r‘s Mot. Ex. 6, ¶ 9. As described above, the letter in question does not force SSIs to do anything, but merely requests a response. In any event, New York‘s decision to sen d such a letter was not a result of the SSI Rule , which does not requi re state plans to be submitted until next March

. Other alleged costs are ir relevant to a stay, as they are also self

- imposed and USCA Case #11-1131 Document #1334719 Filed: 10/11/2011 Page 14 of 22

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will not be incurred before challenges to this petition are resolved. See , e.g. , Pet‘r‘s Mot. Ex. 3, ¶¶ 7 (―Should HRSD conti nue to operate our MHIs, we estimate that it will cost....‖), 9 (referring to ―cost estimates that HRSD has prepared should it

c hoose to abandon incineration‖) (Ex. 3) ; See also Pet‘r‘s Mot. Ex. 5, ¶¶ 5

– 6.
II. INDUSTRY IS UNLIKELY TO SUCCEED ON THE MERITS OF IT S CLAIMS . A. SSIs Must Be Regulated Under § 129, Because They Are S olid Waste Incineration Units and Not POTWs. Industry argue s that standards for solid waste incineration units required by § 129 can not apply to SSIs , because SSIs are part of p ublic l y owned treatment works (POTWs) , which are sources of hazardous air pollutants that must be regulat ed under § 112. Spec ifically, Industry claim s that because § 112(e)(5) sets a deadline for EPA to issue standards for POTWs as defined by the Clean Water Act, and be cause that definition can be read to include SSIs, SSIs must be regulated
under § 112(d). Pet. Mot. 5 . But § 112(e)(5) is a scheduling provision, not a hidden exemption for SSIs from § 129‘s incinerator requirements. And Clean Water Act‘s
definition of POT W does not cover SSIs

. Section 129(a)(1) requires EPA to set performance standards for ―each category‖ of new and existing ―solid waste incineration units.‖ 42 U.S.C. § 7429(a)(1) . As described infra , SSIs are covered by the statutory definition of

― solid waste incineration unit‖ because they combust ―solid waste material from USCA Case #11-1131 Document #1334719 Filed: 10/11/2011 Page 15 of 22

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commercial or industrial establishments or the general public. ‖ Id . § 7429(g)(1). The structure of § 112 demonstrates that § 112(e)(5) does not exempt SSIs
from § 129

. Section 112 is organized by function. Subsection (a) provides definitions. Subsection (b) lists the pollutants to be covered. Subsection (c) establishes source categories to be regulated. Subsection (d) describes minimum requirements for standards EPA must set. Finall y, subs ection 112(e)

— captioned ―Schedule for standards and review ‖

— sets deadlines for these standards. 8 Section 112(d)(1) reinforces the importance of this structure, directing EPA to look to paragraph (c) to determine whic h source categories to regulate a nd to paragraph (e) only for the deadlines by which to do so

. Id . § 7412(d)(1).
I f Congress had wanted to ensure that SSIs were regulated as POTWs and not as solid waste incinerators, it would have done so explicitly rather than by hinting obliquel y at th e issue in a scheduling provision. See Whitman v. Am

. Trucking Ass’n s , 121 S.Ct. 903 , 910 (2001) (―Congress ... does not alter the fundamental details of a regulatory scheme in vague terms or ancillary provisions

—

it does not, one might say, hide elephants in mouseholes.‖); See also

8 Section 112(e)(5) reads in full: The Administrator shall promulgate standards pursuant to subsection (d) of this section applicabl e to publicly owned treatment works ( as defined in title II of the Federal Water Pollution Control Act [33 U.S.C. § 1281 et seq.]) not later than 5 years after November 15, 1990. 42 U.S.C. § 7412(e)(5). USCA Case #11-1131 Document #1334719 Filed: 10/11/2011 Page 16 of 22

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Roeder v. Islamic Republic , 646 F.3d 56 , 61 (D.C. Cir. 2011) (― If Congress had meant to embrace more than just pending cases, it might have

... placed § 1083(c)(3) outside of a section entitled  ̳Application to Pending Cases.‘‖ ) . Th at is especially true in § 112 of the Clean Air Act, which Congress drafted precisely and prescriptively to eliminate agency discretion. New Jersey v. EPA , 517 F. 3d 574 , 578

- 79 (D.C. Cir. 2008). The few mentions of 112(e) in the legislative history likewi se indicate that it is simply a scheduling provision. The Senate Committee on Environment and Public Works described § 112(e) as containing ―exceptions to the general rules for scheduling standard

- setting.‖ S. Rep. No. 101

- 228, p. 174 (December 20, 1989), 1990 U.S.C.C.A.N. 3385 , 3559 and made clear that the purpose of § 112(e)(5) is to give EPA additional time to set POTW standards, not to define a source category

or limit the reach of § 129. Id

. at 175, 198 (―[B]ecause the emissions and control technologie s for POTWs are not well

- characterized presently, [the provision] 9 delays the promulgation of any MACT emission standard applicable to POTWs to the date five years after enactment of the legislation.‖)

. Even if § 112(e)(5) were relevant to the scope of 12 9 , the Clean Water Act definition of ―treatment works‖ does not do what Industry claim it does.

9 The report‘s reference to ―paragraph (6) of sectio n 112(e)‖ appears to be a typo. The bill under consideration, like that ultimately enacted, contained only five paragraphs in that section. USCA Case #11-1131 Document #1334719 Filed: 10/11/2011 Page 17 of 22

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Specifically, the definition does not include ―any works ... used for ultimate disposal of residues resulting from such treatment.‖ But see Pet. Mot. 5. Rather, i t includes any works, including site acquisition of the land that will be an integral part of the treatment process (including land used for the storage of treated wastewater in land treatment systems prior to land application) or is used for ultimate dis posal of residues resulting from such treatment

. 33 U.S.C. § 1290(a)(2) (emphasis added).
A fter reinserting the section Industry elided, it is apparent t he phrase ―used for ultimate disposal of residues res ulting from such treatment‖ modifies ―land,‖

rat her than ―works.‖ See Sacramento Regional County Sanitation Dist. v. Reilly , 905 F.2d 1262, 1268 (9th Cir. 1990) (―[T]he statute, properly construed, only permits  ̳site acquisition of land that will be an integral part of the treatment process ... or is us ed for ultimate disposal of residues resulting from such treatment.‘‖) (quoting 33 U.S.C. § 1292(2)(A))

. The term ―w orks‖ is included as part of a list defined as ―any devices and systems used in the storage, treatment , recycling, and reclamation of munici pal sewage or industrial wastes of a liquid
nature

.... ‖ SSIs, of course, are not land. And the sludge they incinerate is neither ―sewage‖ nor ―industrial wastes of a liquid nature

. ‖ Accordingly, neither this definition , n or the scheduling provision that inco rporates it , can exempt SSIs from § 129‘s incinerator requirements

. USCA Case #11-1131 Document #1334719 Filed: 10/11/2011 Page 18 of 22

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B. SSIs Are “Solid Waste Incineration Units” Because They Receive Waste From The General Public Or Commercial And Industrial Establishments. Industry also argue s that SSIs are not ―solid was te incineration units‖ as defined in § 129 , because they receive waste from POTWs rather than ― from the general public or commercial or industrial establishments

. ‖ Section 129(g) (1) defines ―solid waste incineration unit‖ as a ―distinct operating unit of any facility which combusts any solid waste material from commercial or industrial estab lishments or the general public ‖ subject to fou r exceptions not relevant here. Id § 7429(g)(1). The statute‘s use of t he word ―any‖ is ―all inclusive, ‖ and the definiti on ―unambiguously include[s] ... any facility that combusts any commercial or industrial solid waste material at all

- subject t o the four statutory exceptions....‖ NRDC , 489 F.3d at 1257

- 58. Though sewage plainly fits the definition of ―solid waste material fr om commercial or industrial establishments or the general public,‖ Industry argue s that § 129 ceases to apply once that waste is treated in a POTW

. Pet. Mot. 9. But the
statute nowhere distinguishes between waste that is delivered to an incinerator
directl y from the public and waste that is delivered from the public through an intermediary

. And the NRDC v. E.P.A. decision prohibits the creation of any addition al exceptions to the definition of incinerator

. NRDC , 489 F.3d at 1257

- 58. Moreover, the term ―sol id waste incineration units‖ appears in the USCA Case #11-1131 Document #1334719 Filed: 10/11/2011 Page 19 of 22

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description of each category for which § 129(a)(1) requires standards. These categories include ―solid waste incineration units combusting hospital waste, medical waste and infectious waste.‖ 7429(a)(1)(C)

. Many hospital and medical waste incinerators burn waste that comes from publicly owned facilities. Industry ‘ s argument requires the absurd assumption that Congress expressly required
standards for this category of incinerators while failing to mention that many or most such incinerators would not be covered. In any case, SSIs would qualify as solid waste incineration units because POTWs are ―commercial or industrial establishments.‖ 42 U.S.C. § 7429(g)(1). They are ―commercial establishments‖ because they charg e money to receive and
treat waste and are engage d in commerce . And they are not only large ―industrial ‖ plants , but are also widely referred to as an ―industry‖ in Congress and by the very trade associations that represent POTWs. For example, a Senate Rep ort on proposed legislation known as the Wastewater Treatment Security Act of 2003, refers to the ―wastewater industries.‖ S. Rep. 149, 108 th Cong., 1 st Sess. (2003). In testimony to the House Subcommit t ee on Water Resources and the Environment, the Associ ation of Metropolitan Sewerage Agencies (AMSA) stated, ―[t]he events of the past month have revealed how little our industry knows about the unique risks posed by terrorist threats....‖ ―Testimony of the Association of Metropolitan USCA Case #11-1131 Document #1334719 Filed: 10/11/2011 Page 20 of 22

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Sewerage Agencies ,‖ (Octob er 10, 2001), 1 (Ex. 2) (emphasis added )

. 10
III. A STAY WOULD HARM OTHER PARTIES AND THE PUBLIC INTEREST A stay is manifestly contrary to the public interest and would harm other parties for the reasons stated by EPA in its opposition to Industry‘s motion

. It b ears emphasis that this Rule was due nearly seven years ago , and the additional delay urged by Industry would prolong and increase the harm this existing delay already has caused

. CONCLUSION For these reasons, Intervenor

- defendant respectfully requests th at the Court deny Incinerators‘ Operators motion for a stay of the SSI Rule.
DATED: October 11, 2011 Respectfully submitted,
/s/ James S. Pew James S. Pew Earthjustice 1625 Massachusetts Avenue, NW, Suite 702 Washington, D.C. 20036 Phone: (202) 667

- 4500 Fax: (202) 667

- 2356 Email: jpew@earthjustice.org Counsel for Sierra Club

10 Contrary to Incinerator Operators‘ claim, Pet Mot. 8, EPA did justify its decision that it had authority to regula te SSIs under Section 129 , pointing to Section 129(g) and NRDC v. EPA , and explaining why its prior statements do not control. 76 Fed. Reg. at 15382. USCA Case #11-1131 Document #1334719 Filed: 10/11/2011 Page 21 of 22

(Page 21 of Total)21 CERTIFICATE OF SERVICE I hereby certify that on this 11 th day of October , 2011 I have served the foregoing Sierra Club’s Opposition To Emergency Joint Motion For Stay Of The Sewag e Sludge Incineration Rule on all registered counsel through the Court‘s electronic filing system (ECF).

/s/ James S. Pew James S. Pew USCA Case #11-1131 Document #1334719 Filed: 10/11/2011 Page 22 of 22

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# Exhibit 1

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# Exhibit 2

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(Page 36 of Total)TESTIMONY OF THE ASSOCIATION OF METROPOLITAN SEWERAGE AGENCIES (AMSA) October 10, 2001

on

TERRORISM: ARE AMERICA’S WATER RESOURCES AND ENVIRONMENT AT RISK?

Presented by PATRICK T. KARNEY, P.E., DEE Director Metropolitan Sewer District of Greater Cincinnati Cincinnati, Ohio

Submitted to The
SUBCOMMITTEE ON WATER RESOURCES AND ENVIRONMENT HOUSE COMMITTEE ON TRANSPORTATION AND INFRASTRUCTURE U.S. HOUSE OF REPRESENTATIVES

1816 Jefferson Place, NW Washington, DC 20036-2505 202.833.AMSA 202.833.4657 Fax info@amsa-cleanwater.org Association o f Metropolitan Sewerage Agencies USCA Case #11-1131 Document #1334719 Filed: 10/11/2011 Page 2 of 6

(Page 37 of Total)1 Testimony of Patrick T. Karney Director, Metropolitan Sewer District of Greater Cincinnati on behalf of the Association of Metropolitan Sewerage Agencies
Introduction Good morning Chairman Duncan, Representative DeFazio and members of the Subcommittee, my name is Pat Karney. I am Director of the Metropolitan Sewer District (MSD) of Greater Cincinnati and serve as a member of the Association of Metropolitan Sewerage Agencies (AMSA) Wastewater Infrastructure Security Task Force . MSD employs 650 environmental professionals who serve 800,000 users in Hamilton County. AMSA represents the interests of more than 260 publicly owned treatment works (POTWs). AMSA's members treat 18 billion gallons of wastewater every day and provide service to the majority of the United States' sewered population. On behalf of AMSA and the Metropolitan Sewer District of Greater Cincinnati, thank you for your support of the wastewater community by calling today’s hearing and inviting us to testify on infrastructure security. To answer the question posed by the title of this hearing

― yes, America’s wastewater utilities, water resources and the environment are at risk from future terrorist attacks. The events of the past month have revealed how little our industry knows about the unique risks posed by terrorist threats and how we can better prepare ourselves for an uncertain future. MSD has been reviewing and strengthening the effectiveness of its security procedures over the past two years. We now realize that we will have to plan for the unimaginable if we are to fully protect the city’s citizens, MSD employees and our public assets from a broader, and more serious, array of risks. Perhaps most disturbing to the majority of public wastewater utility managers is the scarcity of resources to assist us in conducting vulnerability assessments and the rarity of security expertise in the wastewater infrastructure sector. Mr. Chairman, I will begin my testimony with a review of how Cincinnati conducted readiness exercises prior to September 11, followed by a brief look at our response since the terrorist attack on our country. I will close my remarks with an overview of what AMSA is doing to assist the wastewater treatment industry to prepare for the future. Review of MSD Preparedness Cincinnati officials felt they were well prepared for an emergency following the completion of two annual exercises focused on weapons of mass destruction, which was funded, in part, by the federal government. Our first responders spent several days in training and in practice drills during each week’s program. To conclude the week, city department heads along with hospital, military, law enforcement (local, state and the FBI), FEMA (state and federal), and associated volunteer organization personnel participated in a daylong tabletop scenario. The USCA Case #11-1131 Document #1334719 Filed: 10/11/2011 Page 3 of 6

(Page 38 of Total)2 first year we participated in the exercise revealed a lack of coordination between agencies and, in many cases, a complete ignorance as to which agencies participate in preparedness, response and recovery from disasters. Most of the deficiencies were addressed through personal interaction between the participants before the session ended. The second year helped to focus us on enhancing our communications and coordination of efforts.The last of these annual events was a full-scale mock chemical attack, sniper and bombplanting exercise conducted at MSD’s Mill Creek Water Reclamation Facility. Fire, police, SWAT, and medical first responders all were involved. The day included the set-up of a National Guard decontamination tent, and treatment of exposed “victims”. Cincinnati has long maintained its own Emergency Operations Center (EOC) in the city. This center is wired for multiple phone and computer communications lines, and is equipped with emergency power backup in the event of a sustained power outage. The city manager activates the EOC in the event of an imminent emergency situation or in response to an incident such as the 1997 flooding of the Ohio River. MSD historically has played a major role in chemical spill response and investigation, whether accidental or intentional in origin. This role has increased MSD’s visibility and the frequency of communications with emergency and law enforcement personnel. I am proud of the respect given to us by local fire, police, and HAZMAT agencies, as well as by state and federal law enforcement officials. In addition to the recognition that MSD receives as an organization, two of the District’s Division of Industrial Waste supervisors received award citations from Ohio’s 25 th Annual Inland Spills Conference this past month. MSD has gained valuable experience in prevention, investigation, and cleanup through its participation in these successful joint operations. MSD’s recently-formed Security Task Force has included the following incidents on a list of major security threats: violence in the workplace, civil unrest, service interruption to associated utilities and infrastructure, vandalism, theft, irate customers, weather related emergencies and terrorist attacks. Aside from physical plant damage, these threats can cause a disruption of operations and service at the water reclamation facilities, pump stations, service garages and with the underground collection system. Cyber interference could affect MSD’s computers, management information, and customer service systems. The loss of electricity or natural gas supplies would adversely impact our service delivery. The Task Force also discussed the use of the physical facilities and collection system for negative purposes. On September 10, we were reasonably comfortable with the level of our knowledge and secure in our readiness and response capabilities. MSD’s Response Since September 11 As with all City of Cincinnati government departments, MSD went into an immediate “lock down” condition before noon on September 11 th . We doubled security personnel at all USCA Case #11-1131 Document #1334719 Filed: 10/11/2011 Page 4 of 6

(Page 39 of Total)3 staffed facilities throughout the County. All persons passing through our gates were questioned and had to state the purpose for their presence at the facility. This information was recorded. These heightened security conditions remain in effect today. We also have changed our procedures for the swipe-card locks on all exterior-building doors. They no longer are turned off during the workday but remain in an active mode. Perimeter security has been tightened, with some “hardening” of access points now in effect. We immediately reviewed all process controls and chemical feed systems to ensure their safety and eliminate any possible risks, including the removal of some chemicals from various MSD sites. An advisory was issued to all MSD environmental professionals regarding our heightened state of awareness, and requested their cooperation during this time of shifting procedures and other changes. MSD employees have accepted these changes readily and have made a few of their own by decorating every one of our facilities with numerous small American flags and red, white and blue decorations. We have changed the way we conduct our business, and will continually add new security and process measures as we gain the knowledge to identify additional risks and weaknesses. MSD’s preparedness has provided Cincinnati with more experience perhaps, than other wastewater utilities, but we still have a lot to learn. AMSA Prepares to Help POTWs Nationwide AMSA members comply with federal, state and local regulations that require the development of safety, health and emergency preparedness plans in response to chemical spills, natural disasters and other emergencies. Now, however, wastewater utilities need to perform comprehensive vulnerability assessments and prepare emergency response and recovery plans in response to potential terrorist activities. As you know, the water supply sector was included as critical infrastructure under the May 1998 Presidential Decision Directive 63. Our colleagues in the drinking water sector have been engaged since then in a variety of information sharing and risk identification programs to help ensure the safety of the public drinking water supply. Until about a month ago, wastewater treatment plants and collection systems were viewed merely as a subcategory of water supply, and received little attention as security threats were assessed. Today, law enforcement agencies, the U.S. Environmental Protection Agency (EPA), and others clearly consider wastewater treatment plants and collection systems as possible targets for terrorist activities. Immediately following the events of September 11, AMSA’s Board of Directors took decisive action to support wastewater utilities nationwide as they strengthened their systems against terrorist threats. An AMSA Wastewater Infrastructure Security Task Force was formed; funds were allocated to immediately begin exploration of publicly owned treatment works (POTW) security needs and to identify tools and initiatives to support enhanced security; the Association established itself as a link between the FBI and its members for the USCA Case #11-1131 Document #1334719 Filed: 10/11/2011 Page 5 of 6

(Page 40 of Total)4 distribution of advisories; and, Managing & Protecting Water Infrastructure Assets was identified as the theme for AMSA’s February 2002 conference. Our efforts have also included outreach to the U.S. EPA, the Federal Emergency Management Agency, the U.S. Army Corps of Engineers, and the National Infrastructure Protection Center in an effort to pinpoint programs or experts in the area of wastewater infrastructure security. In the short-term we plan to develop a wastewater utility “checklist,” directing attention tokey areas of concern and vulnerability. We have also identified the need for an industryspecific, asset-focused, risk-based, self-assessment tool with the goal of fully protecting the assets of the nation’s wastewater utilities. Once vulnerabilities are assessed, our efforts and resources must be expeditiously focused on upgrading and enhancing wastewater infrastructure security – as well as ensuring continuity of service. Such essential undertakings to ensure the security of our nation’s aging infrastructure will clearly require federal support. As the sole representative of public wastewater treatment agencies, AMSA is uniquely qualified to gather information, communicate with the industry, and develop the necessary materials, programs and initiatives to support POTWs across the country. AMSA and its members will need your help to secure our future and protect not only our infrastructure assets, but also public safety, public health and our environment. Mr. Chairman, AMSA looks forward to working with you and the Subcommittee to address this important need. Thank you for this opportunity to testify today. I will be happy to answer any questions. USCA Case #11-1131 Document #1334719 Filed: 10/11/2011 Page 6 of 6

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