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‖) (together, ―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 that 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 likelihood 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 currently 

operating in the United States. 76 Fed. Reg. at 15403. 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. And 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. 0154,1Eastern 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 sulfur dioxide, more than 2,300 tons of nitrogen oxides, and more than 8,500 

tons of carbon monoxide. Id.

Section 129 of the Clean Air Act requires EPA to set performance standards 

for all new and existing ―solid 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-inclusive‖ meaning of the word ―any‖) (citation omitted). EPA committed to 

finalize standards for SSIs under § 129(a)(1)(E) by November 30, 2005. See Sierra 

Club v. Whitman, No. 01-1537, Partial Consent Decree, (D.D.C.), (Ex. 1).

When EPA regulates these pollutants, standards 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, the standards for new 

units must be at least as strict as ―the emissions control that is achieved in practice 

by the best controlled similar unit...,‖ and standards for existing units must be at 

least as strict as ―the average emissions limitation achieved by the best performing 

12 percent of units in the category.‖ Id.

EPA issued the standards at issue in this case on March 21 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 

effect on existing units until the completion of one of two additional steps. The 

first requires individual states 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 submit such plans. Id. § 7429(b)(2). EPA has 180 days to approve 

plans, 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 submit 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

(Page 4 of Total)
4

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

emissions of the best-performing 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.2The 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 standards to reflect emission levels achieved by 

best performing 12 percent of sources for which EPA has emissions 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 existing 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 percent 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 emissions 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 substantially 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 three 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 great; 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

(Page 6 of Total)
6

the movant seeks to enjoin.‖ Id. Likewise, ―self-imposed costs are not properly the 

subject of inquiry on a motion for stay.‖ Cuomo, 772 F.2d at 977; see also Va. 

Petroleum Jobbers Ass’n, 259 F.2d at 927 (holding that ―hypothetical, selfinflicted losses‖ do not justify a stay). Movants must substantiate any claim that 

irreparable injury is likely to occur with ―proof that 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 likelihood of 

success factor requires movants 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. Id. 

(citation omitted). And even where movants meet the likelihood of success prong 

and show some irreparable injury, a stay must nonetheless be denied where 

movants have ―failed to demonstrate that the balance of equities or the public 

interest strongly favors 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

(Page 7 of Total)
7

Cir. 1982). In litigation involving ―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 Nken, 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 OPERATORS HAVE NOT DEMONSTRATED THAT 

ANY IRREPARABLE HARM WILL OCCUR.

A. Industry’s Arguments About Harm To the Environment Are Speculative 

and Irrelevant 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 resolved, 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

(Page 8 of Total)
8

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 does not and 

cannot substantiate even one link in this chain of speculation, nor show that a stay 

would address these complaints. Furthermore, if 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 seeks to rely on declarations from individual operators to 

argue that some may shut down their incinerators, Pet‘r‘s Mot. 15, it does not 

identify a single one that will shut down, let alone do so while the present case is 

pending. The declarations provided merely claim some incinerators ―potentially 

cannot comply‖ (Pet‘r‘s Mot. Ex. 3, ¶ 8), or they express ―uncertainty‖ as to 

whether some can. (Pet‘r‘s Mot. Ex. 5, ¶ 7). Further, even assuming that the 

challenged rules might eventually cause some incinerators to shut down, Industry

fails to demonstrate that any shutdowns will occur before the present case is 

decided—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, all incinerator operators will still have three years, if not longer, 

USCA Case #11-1131 Document #1334719 Filed: 10/11/2011 Page 9 of 22

(Page 9 of Total)
9

before the statute requires they comply with the standards.4

Industry also argues that some States are forcing operators ―to make 

immediate commitments either to take the uncertain path of retrofitting their SSIs 

or to abandon incineration and start the conversion to landfilling.‖ Pet‘r‘s Mot. 15. 

The State letters it cites, however, merely request that operators share their present 

intention with the state agency. Operators do not have to act on that intention. 

Indeed, they don‘t even have to state that intention: the letters advise operators to 

indicate whether they need additional time to respond.5Pet‘r‘s Mot. Ex. 2, at 4.

Industry provides nothing but speculation that some operators may 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 suggests that some SSIs may switch to landfilling. It does 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 seeks 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 Fed. Reg. at 

15379. Industry does 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

(Page 10 of Total)
10

declaration from the Northeast Ohio Regional Sewer District, Pet‘r‘s Mot. 16, that 

entity does not allege that it will switch to landfilling, but merely speculates about 

the harms it imagines would occur ―if‖ it were to switch. Pet‘r‘s Mot. Ex. 4, ¶ 12.

In any event, Industry fails to show that the environmental impacts of landfilling 

are worse than those from incineration without the required controls. Industry

focuses on potential increases in greenhouse gas emissions resulting from 

landfilling, but entirely ignores 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 exaggerates the 

increase in greenhouse gas emissions from landfilling by crediting incinerators for 

potential energy recovery projects while ignoring the possibility of similar projects 

at landfills.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, ―Secondary Impacts of Control Options for the Sewage Sludge 

Incineration Source Category‖ (June 2010), 3.

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

(Page 11 of Total)
11

that certainly 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 Denying a Stay Will Have On Potential Future MACT 

Standards Is Speculative At Best.

Industry also speculates that it will suffer harm in the absence of a stay as a 

result of the following hypothetical chain of events: (1) though the statute does not 

require compliance with the Rule 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, those 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.

The 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.

Although Industry claims that some SSIs will ―inevitably ... install new control 

equipment,‖ it fails 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

(Page 12 of Total)
12

pending, or explain why that is even likely to happen. Id. at 17

Even if some SSIs do take steps to 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 will 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-performing 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 plant 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 process, 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 sludge they burn, see, e.g., Doc. 0085, Comment by City of 

Palo 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

(Page 13 of Total)
13

C. The Absence Of A Stay Will Not Result In Increased Compliance Costs.

Industry‘s claim that ―many municipalities have already been forced 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 example, does not declare that the Rule—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 does not

claim, far less demonstrate, that any unit will be forced to shut down. 

Industry also complains 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 

burdens.‖ 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 send such a letter was not a result of the SSI Rule, which does 

not require state plans to be submitted until next March. 

Other alleged costs are irrelevant to a stay, as they are also self-imposed and 

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

(Page 14 of Total)
14

will not be incurred before challenges to this petition are resolved. See, e.g., Pet‘r‘s 

Mot. Ex. 3, ¶¶ 7 (―Should HRSD continue to operate our MHIs, we estimate that it 

will cost....‖), 9 (referring to ―cost estimates that HRSD has prepared should it 

choose 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 ITS

CLAIMS.

A. SSIs Must Be Regulated Under § 129, Because They Are Solid Waste 

Incineration Units and Not POTWs.

Industry argues that standards for solid waste incineration units required by 

§ 129 cannot apply to SSIs, because SSIs are part of publicly owned treatment 

works (POTWs), which are sources of hazardous air pollutants that must be 

regulated under § 112. Specifically, Industry claims that because § 112(e)(5) sets a 

deadline for EPA to issue standards for POTWs as defined by the Clean Water Act, 

and because 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 POTW 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

(Page 15 of Total)
15

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. Finally, subsection 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 which source categories to regulate and to paragraph (e) 

only for the deadlines by which to do so. Id. § 7412(d)(1).

If 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 obliquely at the issue in a scheduling provision. See Whitman v. Am.

Trucking Ass’ns, 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 applicable 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

(Page 16 of Total)
16

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.‘‖). That 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 likewise 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 

technologies 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 129, 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 section 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

(Page 17 of Total)
17

Specifically, the definition does not include ―any works ... used for ultimate 

disposal of residues resulting from such treatment.‖ But see Pet. Mot. 5. Rather, it 

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 

disposal of residues resulting from such treatment.

33 U.S.C. § 1290(a)(2) (emphasis added).

After reinserting the section Industry elided, it is apparent the phrase ―used 

for ultimate disposal of residues resulting from such treatment‖ modifies ―land,‖ 

rather 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 used for ultimate disposal of residues resulting from such 

treatment.‘‖) (quoting 33 U.S.C. § 1292(2)(A)). The term ―works‖ is included as 

part of a list defined as ―any devices and systems used in the storage, treatment, 

recycling, and reclamation of municipal 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, nor the scheduling provision that incorporates it, can exempt SSIs from 

§ 129‘s incinerator requirements.

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

(Page 18 of Total)
18

B. SSIs Are “Solid Waste Incineration Units” Because They Receive Waste 

From The General Public Or Commercial And Industrial Establishments.

Industry also argues that SSIs are not ―solid waste 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 establishments or the general public‖ subject to four 

exceptions not relevant here. Id § 7429(g)(1). The statute‘s use of the word ―any‖ 

is ―all inclusive,‖ and the definition ―unambiguously include[s] ... any facility that 

combusts any commercial or industrial solid waste material at all-subject to the 

four statutory exceptions....‖ NRDC, 489 F.3d at 1257-58.

Though sewage plainly fits the definition of ―solid waste material from 

commercial or industrial establishments or the general public,‖ Industry argues 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 

directly 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 

additional exceptions to the definition of incinerator. NRDC, 489 F.3d at 1257-58.

Moreover, the term ―solid waste incineration units‖ appears in the 

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

(Page 19 of Total)
19

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 charge money to receive and 

treat waste and are engaged 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 Report on 

proposed legislation known as the Wastewater Treatment Security Act of 2003, 

refers to the ―wastewater industries.‖ S. Rep. 149, 108th Cong., 1st Sess. (2003). In 

testimony to the House Subcommittee on Water Resources and the Environment, 

the Association 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

(Page 20 of Total)
20

Sewerage Agencies,‖ (October 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 bears 

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 that 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 regulate 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 11th day of October, 2011 I have served the 

foregoing Sierra Club’s Opposition To Emergency Joint Motion For Stay Of 

The Sewage 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

(Page 22 of Total)
Exhibit 1

USCA Case #11-1131 Document #1334719 Filed: 10/11/2011 Page 1 of 13

(Page 23 of Total)
USCA Case #11-1131 Document #1334719 Filed: 10/11/2011 Page 2 of 13

(Page 24 of Total)
USCA Case #11-1131 Document #1334719 Filed: 10/11/2011 Page 3 of 13

(Page 25 of Total)
USCA Case #11-1131 Document #1334719 Filed: 10/11/2011 Page 4 of 13

(Page 26 of Total)
USCA Case #11-1131 Document #1334719 Filed: 10/11/2011 Page 5 of 13

(Page 27 of Total)
USCA Case #11-1131 Document #1334719 Filed: 10/11/2011 Page 6 of 13

(Page 28 of Total)
USCA Case #11-1131 Document #1334719 Filed: 10/11/2011 Page 7 of 13

(Page 29 of Total)
USCA Case #11-1131 Document #1334719 Filed: 10/11/2011 Page 8 of 13

(Page 30 of Total)
USCA Case #11-1131 Document #1334719 Filed: 10/11/2011 Page 9 of 13

(Page 31 of Total)
USCA Case #11-1131 Document #1334719 Filed: 10/11/2011 Page 10 of 13

(Page 32 of Total)
USCA Case #11-1131 Document #1334719 Filed: 10/11/2011 Page 11 of 13

(Page 33 of Total)
USCA Case #11-1131 Document #1334719 Filed: 10/11/2011 Page 12 of 13

(Page 34 of Total)
USCA Case #11-1131 Document #1334719 Filed: 10/11/2011 Page 13 of 13

(Page 35 of Total)
Exhibit 2

USCA Case #11-1131 Document #1334719 Filed: 10/11/2011 Page 1 of 6

(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 of

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 25th 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 11th. 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 to 

key 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

(Page 41 of Total)