Exhibit 6
ORAL ARGUMENT NOT YET SCHEDULED

UNITED STATES COURT OF APPEALS

FOR THE DISTRICT OF COLUMBIA CIRCUIT

____________________________________

)

NATIONAL ENVIRONMENTAL )

DEVELOPMENT ASSOCIATION’S )

CLEAN AIR PROJECT, )

)

Petitioner, )

)

 v. ) Docket No. 10-1252

) (and consolidated cases)

UNITED STATES ENVIRONMENTAL )

PROTECTION AGENCY, )

)

 Respondent. )

___________________________________ )

RESPONDENT’S OPPOSITION TO MOTION OF THE STATE

OF NORTH DAKOTA FOR A STAY OF EPA’S 1-HOUR SULFUR

DIOXIDE AMBIENT STANDARD RULE

Respondent United States Environmental Protection Agency (“EPA”)

submits this Opposition to the Motion of the State of North Dakota for a Stay of

EPA’s 1-Hour Sulfur Dioxide Ambient Standard Rule (“Stay Motion”). In its Stay

Motion, North Dakota seeks a stay of the rule in its entirety or, in the alternative, a

stay of the statutory directive that States submit any recommendations for

attainment/nonattainment designations no later than June 3, 2011. The motion

should be denied because North Dakota has not satisfied the stringent requirements

Case: 10-1252 Document: 1276211 Filed: 11/08/2010 Page: 1
2

for obtaining a stay of agency action. The motion fails to address any of the

elements for obtaining a stay with regard to any of the promulgated elements of the

rule, i.e., the revised sulfur dioxide (“SO2”) standard itself and the promulgated

revisions to the SO2 monitoring network. Rather, the motion is addressed solely to

an advisory discussion in the final rule preamble regarding EPA’s anticipated

approach to implementing the revised NAAQS. Thus, the motion provides no

basis to stay the rule as a whole.

The motion must also be denied with regard to the alternative relief

requested. First, North Dakota has not demonstrated a substantial likelihood of

success on the merits. It challenges only advisory statements in the final rule

preamble concerning EPA’s contemplated approach for making initial attainment

designations by the June 2012 statutory deadline, an approach the Agency will be

addressing in future actions. As the preamble makes clear, EPA has taken no final

action nor promulgated any regulatory requirements regarding designations, and, in

particular, has taken no final action on its approach to making attainment

determinations. To the contrary, the preamble specifically preserves EPA’s ability

to make those decisions solely on the basis of monitoring data. 75 Fed. Reg.

35,520, 35,552 n.22 (June 22, 2010). Because these preamble statements are not

final agency action, the Court lacks jurisdiction to review them, and North Dakota

has no substantial likelihood of prevailing on the merits. 

Case: 10-1252 Document: 1276211 Filed: 11/08/2010 Page: 2
1/

 The date can be extended to June 2013 if EPA lacks sufficient information to act

in 2012. 42 U.S.C. § 7407(d)(1)(B)(i).

3

Moreover, even if the challenged preamble statements could be read as final

agency action, the Agency has historically relied on modeling to make designations

for sulfur dioxide. To the extent the proposal preamble reflected a possible change

to that practice, it clearly left open the possibility that the Agency would choose

not to adopt the proposed change. Interested parties should have known that EPA

might retain its past practice, and had ample opportunity to comment on that

possibility. Thus, North Dakota cannot demonstrate a likelihood of success on its

claim that it lacked an opportunity to comment on the approach to initial

designations discussed in the preamble.

Second, North Dakota cannot demonstrate that it will suffer irreparable harm

from the statutory directive that it submit designation recommendations to EPA by

June 2011. North Dakota claims harm from an alleged bar to the use of monitoring

data as the sole basis for its designation recommendations. But, nothing in the SO2

Rule prevents North Dakota from basing its recommendations solely on monitoring

data, and thus the Rule does not cause the harm North Dakota claims. Id.

Furthermore, designation recommendations have no independent legal effect. An

area is not designated until EPA promulgates the designation, which EPA is

required to do by June 20121/

 (a requirement that would not be affected by a stay of

Case: 10-1252 Document: 1276211 Filed: 11/08/2010 Page: 3
4

the 2011 recommendation submission date). Moreover, EPA is not bound by the

State’s recommendations and must promulgate a designation for an area even if the

State submits no recommendation at all.

Finally, a stay of the SO2 Rule will cause harm to other parties and is

contrary to the public interest. The rule under review revises the primary ambient

air quality standard for sulfur dioxide based on findings by EPA that the prior

standards were not requisite to protect human health with an adequate margin of

safety. A stay of the rule’s regulatory provisions promulgating the new standard

would delay implementation of the measures needed to achieve attainment with the

new standard, including requirements associated with the permitting of new and

modified major stationary sources which became effective on the effective date of

the standard. A stay of the Rule would thus prolong the time during which existing

air quality causes adverse impacts to public health. A stay of the 2011 deadline for

States to submit recommendations to EPA would not alter EPA’s obligation to

promulgate designations by 2012, but would increase the burden on EPA to

develop the designations.

BACKGROUND

The consolidated petitions in this case seek review of an EPA regulation

revising the primary National Ambient Air Quality Standards (“NAAQS”) and

associated regulatory requirements for oxides of sulfur as measured by SO2

Case: 10-1252 Document: 1276211 Filed: 11/08/2010 Page: 4
5

pursuant to section 109 of the Clean Air Act, 42 U.S.C. § 7409. 75 Fed. Reg.

35,520 (June 22, 2010) (“SO2 Rule”). Those regulatory requirements took effect

on August 23, 2010, and are currently being implemented. The NAAQS

provisions of the Clean Air Act establish a comprehensive scheme to protect public

health and welfare from ubiquitous air pollutants. 42 U.S.C. § 7409. Primary

standards must be set at levels that, in the judgment of the Administrator, are

requisite to protect public health with an adequate margin of safety. Id.

§ 7409(b)(1). The Act requires periodic review of the NAAQS. Id. § 7409(d). 

See generally American Lung Ass’n v. EPA, 134 F.3d 388, 388-89 (D.C. Cir.

1998).

EPA first promulgated a primary NAAQS for sulfur dioxide in 1971. 36

Fed. Reg. 8187 (April 30, 1971). In May 1996, after a lengthy review, EPA

announced a final decision not to revise the NAAQS. 61 Fed. Reg. 25,566 (May

22, 1996). Petitions for review of that decision were filed in this Court, and the

Court held that EPA had failed to adequately explain the basis for its conclusion

that short-term SO2 exposures to asthmatics do not constitute a public health

problem. American Lung Ass’n v. EPA, 134 F.3d 388. In the rule under review

here EPA has addressed that issue by replacing the prior 24-hour and annual

primary standards with a new 1-hour primary standard. The new standard is now

in effect, and is being implemented in EPA’s prevention of significant deterioration

Case: 10-1252 Document: 1276211 Filed: 11/08/2010 Page: 5
6

permitting program for new and modified major stationary sources. See 57 Fed.

Reg. at 35,580/1.

Within one year after promulgation of a new or revised NAAQS (or sooner

if required by EPA) States are directed to submit to EPA a list of all areas that the

State recommends be designated by EPA as attainment, nonattainment, or

unclassifiable for the new or revised NAAQS. 42 U.S.C. § 7407(d)(1)(A). In the

case of the revised SO2 standards, such designations are due by June 3, 2011, one

year after EPA promulgated the revised NAAQS by signing and publicly

disseminating the notice of final rulemaking. Within two years of promulgation

(or three years if EPA lacks sufficient information), the Act requires EPA to

promulgate designations. Id. § 7407(d)(1)(B)(i). EPA may modify any submitted

list of designations provided by a State if it gives the State 120 days notice, and

must promulgate designations as EPA deems appropriate for any area for which no

designation recommendation is provided by a State. Id. § 7407(d)(1)(B)(ii). 

Thus, EPA’s statutory obligation to promulgate designations is independent of

whether a State submits recommendations.

The SO2 Rule, like its predecessors, includes regulatory provisions that

establish the NAAQS itself, as well as regulations governing the installation and

use of monitors utilized to measure ambient concentrations of SO2. See, e.g., 40

C.F.R. §§ 50.4(e); 50.14(c)(2)(vi); 50.17; part 50 Appendices A-1 and T; part 53,

Case: 10-1252 Document: 1276211 Filed: 11/08/2010 Page: 6
7

and part 58. Historically, to determine if an area is in attainment with the SO2

NAAQS, EPA has used a combination of results from regulation-required monitors

and air quality modeling, even though in the NAAQS regulations themselves EPA

has not promulgated requirements that States or sources conduct modeling. 

Instead, at 40 C.F.R. part 51, Appendix W, EPA has promulgated guidelines on air

quality models, to be used for regulatory purposes such as State Implementation

Plan (“SIP”) development and new source review and

prevention-of-significant-deterioration permitting actions. See, e.g., 40 C.F.R. part

51, Appendix W, § 1.0. In the current rule EPA has revised the regulatory

requirements for the minimum number and placement of monitors and adopted a

new reference method for detecting ambient SO2, but did not promulgate or revise

any requirements regarding modeling.

In the preamble to the proposed SO2 Rule, EPA discussed the revisions to

the monitoring network proposed to account for the revision of the standard, i.e.,

the change from the 24-hour and annual standards to a single one-hour standard. 

74 Fed. Reg. 64,810, 64,846-55 (Dec. 8, 2009). In the proposal EPA did not

discuss its historic and current uses of modeling in implementing the then-effective

annual and 24-hour SO2 standards. In public comments on the proposal, numerous

parties suggested that the proposed monitoring network was both inadequate in

scope and overly burdensome to administer, and some commenters suggested that

Case: 10-1252 Document: 1276211 Filed: 11/08/2010 Page: 7
8

modeling should be used to relieve the administrative burden that a more extensive

monitoring regime would otherwise impose. 75 Fed. Reg. at 35,551/1. 

In the preamble to the final rule, EPA explained in response to comments

that the Agency anticipated in subsequent actions to continue its historic practice of

relying on both modeling and monitoring for determining whether an area is in

attainment with the SO2 NAAQS and adopted rules for a smaller monitoring

network than initially proposed. 75 Fed. Reg. at 35,550-51. However, the

preamble makes clear that, except for the promulgated requirements relating to the

scope of the monitoring network and detection method, the Agency is still

developing its policy for such future actions as designations and SIP

approvals/disapprovals and intends to issue further guidance in the future through a

notice-and-comment process. Id. The preamble also states EPA’s expectation that

any decisions about whether to base an attainment designation or determination on

monitoring alone, without reliance on modeling, would be made on a case-by-case

basis. Id. at 35,552 n.22.

Following promulgation of the rule, numerous parties filed petitions for

review with this Court, and each of those parties also submitted to EPA

administrative petitions for reconsideration of the rule under section 307(d)(7)(B)

of the Act, 42 U.S.C. § 7607(d)(7)(B). The petitions for reconsideration objected

to EPA’s final rulemaking preamble discussion explaining EPA’s anticipated

Case: 10-1252 Document: 1276211 Filed: 11/08/2010 Page: 8
9

approaches in future designations and SIP actions. In addition, each requested that

EPA administratively stay the final rule pending such reconsideration. EPA is

currently evaluating the petitions for reconsideration and has not yet formally

responded to them, but, as the Agency stated in its pending motion filed with the

Court seeking a short-term abeyance of the instant litigation, EPA intends to

provide initial responses to the petitions for reconsideration, including the requests

for a stay of the rule, by January 8, 2011. 

STANDARD OF REVIEW

A stay is a disfavored remedy. “On a motion for stay, it is the movant’s

obligation to justify the court’s exercise of such an extraordinary remedy.” Cuomo

v. United States Nuclear Regulatory Comm’n, 772 F.2d 972, 978 (D.C. Cir. 1985). 

The factors for determining whether a stay is warranted are: (1) whether the

movant has demonstrated a substantial likelihood that it will prevail on the merits;

(2) the prospect of irreparable injury to the moving party if relief is withheld; (3)

the possibility of harm to other parties if relief is granted; and (4) the public

interest. Nken v. Holder, 129 S. Ct. 1749, 1761 (2009). These four prongs of the

stay standard are to be applied stringently. Aberdeen & Rockfish R.R. Co. v.

Students Challenging Regulatory Agency Procedures, 409 U.S. 1207, 1218 (1972). 

“A stay is not a matter of right, even if irreparable injury might otherwise result.” 

Nken, 129 S. Ct. at 1760 (citation omitted).

Case: 10-1252 Document: 1276211 Filed: 11/08/2010 Page: 9
10

To demonstrate a substantial likelihood of success on the merits, a petitioner

must show that it is likely to persuade this Court that EPA’s action is “arbitrary,

capricious, an abuse of discretion, or otherwise not in accordance with law.” 42

U.S.C. § 7607(d)(9)(A). This narrow, deferential standard prohibits a court from

substituting its judgment for that of the agency and presumes the validity of agency

actions. Motor Vehicle Mfrs. Ass’n v. State Farm Mut. Auto. Ins. Co., 463 U.S.

29, 43-44 (1983). Judicial deference also typically extends to an agency’s

interpretation of a statute it administers, United States v. Mead Corp., 533 U.S.

218, 227-31 (2001); Chevron, U.S.A., Inc. v. Natural Res. Def. Council, Inc., 467

U.S. 837, 842-45 (1984), and of its own regulations. Auer v. Robbins, 519 U.S.

452, 457 (1997).

To establish irreparable harm, a petitioner must demonstrate an injury that is

“both certain and great; it must be actual and not theoretical.” Wisconsin Gas Co.

v. FERC, 758 F.2d 669, 674 (D.C. Cir. 1985). A movant for injunctive relief must

show that “[t]he injury complained of [is] of such imminence that there is a clear

and present need for equitable relief to prevent irreparable harm.” Id. (citation

omitted). The movant must “substantiate the claim that irreparable injury is 'likely'

to occur,” and “show that the alleged harm will directly result from the action

which the movant seeks to enjoin.” Id; see also Nken, 129 S. Ct. at 1761 (more

than a “mere possibility” of success on the merits is required, and the standard for

Case: 10-1252 Document: 1276211 Filed: 11/08/2010 Page: 10
11

irreparable harm is more than showing the “possibility” of harm); Winter v.

NRDC, 129 S. Ct. 365, 375-76 (2008) (holding that in a preliminary injunction

case, plaintiffs must demonstrate that irreparable injury is “likely,” not just

“possible”). 

ARGUMENT

I. THE MOTION IS PREMATURE

Fed. R. App. Proc. 18(a) requires that a petitioner must ordinarily move first

before the agency for a stay of its order before seeking a stay in the Court of

Appeals, or else show that moving before the agency would be impracticable. In

this case, although North Dakota (and other Petitioners) have sought a stay of the

SO2 Rule from EPA, EPA has not yet acted on that request, and North Dakota has

not demonstrated that it is impracticable to wait for EPA to act on those requests

before seeking a stay from this Court. As described in EPA’s Motion to Hold Case

in Abeyance, EPA intends to act on the pending administrative petitions for

reconsideration by January 8, 2011. At that time EPA will also act on the included

requests for a stay, as the Agency previously informed Petitioners. Implicit in Rule

18's requirements is that a petitioner must receive a response to its request for a

stay from the agency before seeking a judicial stay. North Dakota has neither

waited for that response, nor demonstrated why doing so would be impracticable

for submitting a recommendation that is not due until June 2011. Because North

Case: 10-1252 Document: 1276211 Filed: 11/08/2010 Page: 11
12

Dakota’s request for a stay is still pending before the Agency and the Agency has

committed to responding in a timely fashion, North Dakota’s motion for stay in

this Court is premature and should be denied.

II. NORTH DAKOTA HAS PRESENTED NO BASIS FOR STAYING

THE ENTIRE SO2 RULE

In its motion, North Dakota asks the Court to stay the SO2 Rule in its

entirety (including the standard itself and the associated monitoring provisions) or,

in the alternative, to stay the June 3, 2011 statutory deadline by which States may

submit recommended designations to EPA. North Dakota, however, identifies no

grounds for staying the entire rule. With regard to the merits, North Dakota

advances no objection to the promulgated standard or the promulgated

requirements related to monitoring. Nor does it present any claim that it will suffer

irreparable harm from either the revised standard or the revised requirements

related to monitoring. In fact, North Dakota does not address any aspect of the

Rule except the non-binding preamble discussion concerning how EPA expects to

use modeling in future area designations and SIP actions. Thus, North Dakota has

not met the stringent standard for obtaining a stay of the Rule as a whole, and that

request must be denied.

Case: 10-1252 Document: 1276211 Filed: 11/08/2010 Page: 12
13

III. NORTH DAKOTA CANNOT DEMONSTRATE A SUBSTANTIAL

LIKELIHOOD OF SUCCESS ON THE MERITS

The sole claim on the merits presented in the Stay Motion is that the

preamble of the final rule allegedly requires the use of air quality modeling for

determining whether an area is in attainment with the revised SO2 NAAQS, that

this approach differs from the approach discussed in the preamble to the proposal,

and that the public did not have an opportunity to comment on the approach

discussed in the final rule. This claim lacks merit for two reasons.

First, North Dakota is not challenging any provision of the promulgated

regulations, but rather a discussion in the preamble, i.e., 75 Fed. Reg. at 35,550-54. 

Although some preamble discussions may constitute final agency action, it is clear

that this particular discussion does not. Rather, the challenged discussion

regarding the potential use of modeling is, at most, non-binding guidance that the

Court lacks jurisdiction to review. The preamble specifically states:

In many respects, both the overview discussion below and the

subsequent more detailed discussions explain our expected and

intended future action in implementing the 1-hour NAAQS – in

other words, they constitute guidance, rather than final agency action

– and it is possible that our approaches may continue to evolve as we,

States, and other stakeholders proceed with actual implementation. In

other respects, such as in the final regulatory provisions regarding the

promulgated monitoring network, we are explaining EPA’s final

conclusions regarding what is required by this rule. We expect to

issue further guidance regarding implementation . . . . EPA intends to

solicit public comment prior to finalizing this guidance.

 Id. at 35,550/3 (emphasis added). 

Case: 10-1252 Document: 1276211 Filed: 11/08/2010 Page: 13
14

Moreover, nowhere in the preamble (much less in any promulgated

regulation) does EPA state that modeling must be used for designating areas as

attainment, nonattainment or unclassifiable. Thus, the alleged requirement North

Dakota seeks to challenge does not exist. Rather, the preamble states: “We expect

that EPA’s final area designation decisions in 2012 would be based principally on

data reported from SO2 monitors currently in place today, and any refined

modeling the State chooses to conduct specifically for initial designations.” Id. at

35,552/1 (emphasis added). The preamble then goes on to say “EPA anticipates

making the determination of when monitoring alone is ‘appropriate’ for a specific

area on a case-by-case basis, informed by the area’s factual record, as part of the

designation process.” Id. at 35,552 n.22.

In short, EPA has simply not taken the final agency action alleged by North

Dakota and there is no such action for the Court to review or to stay. To the

contrary, the preamble states that EPA believes that its historic approach to SO2

designations continues to appear to be appropriate, while at the same time giving

States the flexibility to recommend the appropriate mix of data to rely on,

including the possibility of relying entirely on monitoring if supportable.

Second, even if the preamble could be construed as final agency action,

North Dakota’s claim that the public lacked notice of the possibility that EPA

might continue to use modeling when making designations is without merit. As

Case: 10-1252 Document: 1276211 Filed: 11/08/2010 Page: 14
15

EPA has frequently explained, because of the nature of SO2 pollution, EPA has

historically relied on air quality modeling (in addition to any required monitoring)

to determine whether an area is violating the SO2 NAAQS. 75 Fed. Reg. at

35,551/2-3, 35,559/2-3; see SO2 Guideline Document (available at

www.epa.gov/ttn/oarpg/t1/memoranda/so2_guide_092109.pdf) at 2-5 (“For SO2

attainment demonstrations, monitoring data alone will generally not be adequate.”)

and at 2-1 (“Attainment determinations for SO2 will generally not rely on ambient

monitoring data alone, but instead will be supported by an acceptable modeling

analysis which quantifies that the SIP strategy is sound and that enforceable

emission limits are responsible for attainment.”) As a State responsible for

recommending whether an area should be designated attainment or nonattainment,

North Dakota certainly should have been aware of the Agency’s historical

approach. 

Thus, to the extent the approach to designations described in the proposal

preamble was limited to monitoring, in de-emphasizing the role modeling has long

played in SO2 implementation it represented a departure from the Agency’s prior

practice. In such circumstances, affected parties are surely aware that not adopting

the proposed change is a possibility. American Iron & Steel Inst. v. EPA, 886 F.2d

390, 400 (D.C. Cir. 1989) (“One logical outgrowth of a proposal is surely, as EPA

says, to refrain from taking the proposed step.”) In fact, the Agency did receive

Case: 10-1252 Document: 1276211 Filed: 11/08/2010 Page: 15
2/

 If EPA were to determine that the monitoring data was not sufficient to determine

an area’s attainment status, and thus that the area would have to be categorized as

unclassifiable until sufficient monitoring data or modeling results were available,

(continued...)

16

comments urging the Agency to retain its historic approach. 75 Fed. Reg. at

35,551/1. Accordingly, there is no basis for North Dakota’s claim that it lacked

notice that the Agency might choose not to adopt a more monitoring-focused

approach as discussed in the proposal preamble, but instead to expect to retain its

historic approach in which modeling is generally, though not always, utilized.

IV. NORTH DAKOTA CANNOT DEMONSTRATE AN IMMINENT

THREAT OF IRREPARABLE HARM

There is no merit to North Dakota’s claim that it will suffer irreparable harm

if the SO2 Rule or the statutory deadline to submit designation recommendations is

not stayed. North Dakota first claims that it will be harmed because the SO2 Rule

“casts a cloud” over its ability to use its monitoring data and “deprive[s] the state

of its right to manage its air resources.” Stay Motion at 17. As demonstrated

above, there is no factual basis for this claim because neither the SO2 Rule itself

nor the preamble discussion prohibits North Dakota from basing its recommended

designations on its monitoring data alone. 75 Fed. Reg. at 35,552 n.22. Nor does

anything in the Rule or preamble prohibit EPA from basing its designations for

North Dakota on monitoring data alone if EPA determines that the monitoring data

is sufficient to determine North Dakota’s attainment status.2/

 

Case: 10-1252 Document: 1276211 Filed: 11/08/2010 Page: 16
2/

(...continued)

that designation would be result of the insufficiencies in the data, not of anything

that EPA has done in the Rule.

3/

 While it might seem at first blush as if actual monitoring should be inherently

more accurate than modeling, this is not necessarily the case. In fact, “[i]n the past,

EPA used a combination of modeling and monitoring for SO2 during permitting,

designations and re-designations in recognition of the fact that a single monitoring

site is generally not adequate to fully characterize ambient concentrations,

including the maximum ground level concentrations, which exist around stationary

SO2 sources.” 75 Fed. Reg. at 35,559. This is especially important because “[t]he

1-hour NAAQS is intended to provide protection against short-term (5 minute to

24 hour) peak exposures”. Id. See American Lung Ass’n v. EPA, 134 F. 3d at

392-93 (remanding EPA’s determination that such exposures do not constitute a

threat to public health) and 75 Fed. Reg. at 35,536 (5-10 minute SO2 exposures can

result in adverse health effects to asthmatics). 

17

Moreover, the State’s recommended designations, which are due June 3,

2011, have no legal effect on sources. Not until EPA promulgates the actual

designations, which the statute requires it do by June 3, 2012 (or 2013 if extended),

will there be a designation in place that has legal effect. Thus, North Dakota can

suffer no actual harm from submitting its recommended designations.

North Dakota’s second claim of harm, that the use of modeling will result in

more areas being designated as nonattainment because modeling is more

“conservative,” Stay Motion at 17-18, is purely speculative. North Dakota presents

no evidence at all to support its assertion that modeling will necessarily result in

areas of the State being designated as nonattainment inappropriately, and thus there

is no basis on which the Court could find that North Dakota could suffer injury.3/

Furthermore, as the preamble states, the modeling guidance that EPA intends to

Case: 10-1252 Document: 1276211 Filed: 11/08/2010 Page: 17
18

provide States for use in determining attainment of the revised SO2 standard is still

under development. 75 Fed. Reg. at 35,552-54. Thus, any statements about how

the use of modeling affects the designation process for the revised SO2 standard are

necessarily speculative.

Finally, the actual designations will be made by EPA, an action that EPA

expects to take by June 3, 2012. States have an opportunity under the Act to

provide input on the designations before they are made, and EPA’s designations

are subject to judicial review. Any claim that modeling is inappropriately used by

EPA for a particular designation can and should be raised in that process.

V. A STAY WOULD HARM THIRD PARTIES AND IS CONTRARY TO

THE PUBLIC INTEREST

A stay of the SO2 Rule, whether in whole or in part, would cause harm to

third parties and is contrary to the public interest because it would delay

achievement of the public health benefits of the revised standard, which is now in

effect and being used for the Act’s New Source Review and Prevention of

Significant Deterioration permitting programs. After an exhaustive review of the

existing data, EPA determined that the prior SO2 standard was not adequately

protective of human health and required revision, a conclusion amply supported by

the record. EPA’s statutorily mandated science review committee, the Clean Air

Scientific Advisory Committee, recommended unanimously that the current

standard be revised because the current standards are not adequate to protect the

Case: 10-1252 Document: 1276211 Filed: 11/08/2010 Page: 18
19

public health, and that EPA should adopt a one-hour standard in their place. 75

Fed. Reg. at 35,530, 35,538. Short-term exposure to SO2 results in adverse

respiratory effects such as bronchoconstriction (narrowing of the airways) and

increased asthma symptoms. Id. at 35,525-26. Studies also show an association

between short-term SO2 exposure and increased emergency department visits and

hospital admissions for respiratory illness, particularly among children, the elderly,

and asthmatics. Id. at 35,547.

Importantly, the data demonstrate that these adverse health effects can occur

at concentration levels that are allowed by the prior SO2 NAAQS. Id. at

35,535-36. Thus, implementation of the revised standard is necessary to reduce the

adverse health effects associated with these exposures. North Dakota’s motion

does not address this issue at all, and thus fails to address two of the elements

needed for a stay of agency action.

A stay of the SO2 Rule, either in whole or in part, is likely to delay

attainment of the revised standard. A delay of the SO2 Rule as a whole will delay

States’ implementation of the control measures needed to achieve compliance with

the revised standard and the requirement for new or modified major stationary

sources to implement necessary controls pursuant to the Clean Air Act’s New

Source Review and Prevention of Significant Deterioration permit requirements.

Case: 10-1252 Document: 1276211 Filed: 11/08/2010 Page: 19
20

A stay of the date for States to recommend designations for areas as

attainment, nonattainment, or unclassifiable will not delay EPA’s independent

obligation to promulgate designations. However, it could complicate the process

of establishing area designations and impose additional burdens on EPA if States

do not submit designation recommendations because EPA would not have the

States’ recommended designations as a starting point. Thus, a stay of the SO2 Rule

will harm third parties and be adverse to the public interest by delaying the public

health benefits of the revised standard.

CONCLUSION

For the reasons stated above, North Dakota’s motion for a stay of the SO2

Rule should be denied.

 Respectfully submitted, 

IGNACIA S. MORENO

Assistant Attorney General

/S/ Norman L. Rave, Jr. 

NORMAN L. RAVE, JR. 

Environmental Defense Section

Environment & Natural Resources Division

United States Department of Justice

P.O. Box 23986

Washington, D.C. 20026-3986

(202) 616-7568

Counsel for Respondent

Case: 10-1252 Document: 1276211 Filed: 11/08/2010 Page: 20
21

Of Counsel:

STEVEN SILVERMAN

MICHAEL THRIFT

Office of General Counsel

U. S. Environmental Protection Agency

1200 Pennsylvania Ave., NW

Washington, DC 20460

November 8, 2010

Case: 10-1252 Document: 1276211 Filed: 11/08/2010 Page: 21
CERTIFICATE OF SERVICE

I hereby certify that on this 8th day of November, 2010, I caused a copy of

the foregoing document to be served by the Court’s CM/ECF system on:

Andrea Bear Field

Lucinda Minton Langworthy

Hunton & Williams LLP

1900 K Street, N.W.

Washington, DC 20006

Leslie Sue Ritts

Ritts Law Group, PLLC

620 Fort Williams Parkway

Carriage House

Alexandria, Virginia 22304

Donald Trahan

State of Louisiana Dept. of Environmental Quality

P.O. Box 82282

Legal Affairs Division

Baton Rouge, Louisiana 70884-2282

David S. Baron

Seth Lee Johnson

Earthjustice Legal Defense Fund

1625 Massachusetts Ave., NW

Suite 702

Washington, DC 20036-2212

Roxanne Giedd

Office of the Attorney General, 

 State of South Dakota

1302 East Highway 14

Suite 1

Pierre, South Dakota 57501-8501

Nhu Q. Nguyen

Office of the Attorney General,

 State of Nevada

100 North Carson Street

Carson, Nevada 89701-4717

Case: 10-1252 Document: 1276211 Filed: 11/08/2010 Page: 22
2

Sandra Patricia Franco

Robert N. Steinwurtzel

Bingham McCutchen LLP

2020 K Street, NW

Washington, DC 20006-1806

Margaret I. Olson

Assistant Attorney General

Office of the Attorney General

 State of North Dakota

Solicitor General

500 North 9th Street

Bismark, North Dakota 58501-4509

Paul M. Seby

Marian C. Larsen

Moye White, LLP

1400 16th Street

6th Floor

Denver, Colorado 80202-1486

Nancy Elizabeth Olinger

Assistant Attorney General

Environmental Protection and 

 Administrative Law Division

P.O. Box 12548 (MC-018)

Austin, Texas 78711-2548

Benjamin Joseph Alke

Goetz, Gallik & Baldwin, PC

35 North Grand

P.O. Box 6580

Bozeman, Montana 59771-6580

/S/ Norman L. Rave, Jr.

Norman L. Rave, Jr.

Case: 10-1252 Document: 1276211 Filed: 11/08/2010 Page: 23