ORAL ARGUMENT HELD OCTOBER 17, 2005 IN THE UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT

No. 04-1438
NATURAL RESOURCES DEFENSE COUNCIL, Petitioner,

V

. UNITED STATES ENVIRONMENTAL PROTECTION AGENCY, Respondent.
ON PETITION FOR REVIEW OF FINAL ADMIlQSTRATIVE ACTION OF THE UNITED STATES ENVIRONMENTAL PROTECTION AGENCY

SUPPLEMENTAL BRIEF FOR THE RESPONDENT

KELLY A. JOHNSON Acting Assistant Attorney General JOHN C. CRUDEN Deputy Assistant Attorney General STEVEN E. RUSAK Environmental Defense Section Environment and Natural Resources Division U.S. Department of Justice Of Counsel: P.O. Box 23986 Washington, D.C. 20026-3986 ANN R. KLEE (202) 514-9275 General Counsel DIANE E. McCONKEY Office of General Counsel U.S. Environmental Protection Agency Ariel Rios Building, 2344A 1200 Pennsylvania Avenue, N.W. Washington, D.C. 20460 November 7, 2005TABLE OF CONTENTS Page

TABLE OF AUTHORITIES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ii GLOSSARY OF ACRONYMS AND ABBREVIATIONS . . . . . . . . . . . . . . . . . . . . . . . . . . . . iv
I. Decisions IX/6 And Ex. I/3 Are Not Adjustments Or Amendments Under Article 2(9) Of The Montreal Protocol . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
II. Decisions IX/6 And Ex. I/3 Are Cognizable In Federal Court Actions Brought To Enforce The Treaty And The CAA Only To The Limited Extent That They Are Consensus Decisions Interpreting Or Applying A Term In The Protocol (As Adjusted Or Amended) Or Are Expressly Authorized In The Protocol To Fill Particular Gaps In Rights Or Obligations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5 CONCLUSION ..............................................................11TABLE OF AUTAORITIES

CASES: PAGES Baker v. Carr, 369 U.S. 186 (1962) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10 Committee of United States Citizens v. Reag_ an, 859 F.2d 929 (D.C. Cir. 1988) ............ 10 O'Connor v. United States, 479 U.S. 27 (1986) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9 Oetjen v. Cent. Leather Co., 246 U.S. 297 (1918) . . . . . . . . . . . . . . . I. . . . . . . . . . . . . . . . . . . . 11 Schneider v. Kissinger, 412 F.3d 190 (D.C. Cir. 2005) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10,11

CONSTITUTION: U.S.Const.art.Il;§2 ......................................................... 11

STATUTES: 42 U.S.C.§ 7671(9) ......................................................... 1,5 42 U.S.C.§ 7671c ............................................................ 9 42 U.S.C. § 7671c(d)(6) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5,7 42 U.S.C.§ 7671f ............................................................ 9

FEDERAL REGISTERS: 60 Fed. Reg. 24,970 (May 10, 1995) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9 69 Fed. Reg. 76,982 (Dec. 23, 2004) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6 69 Fed. Reg. 76,984 ...........................................................6 69 Fed. Reg.76,985 ...........................................................9 69 Fed. Reg. 76,988 ...........................................................8

iiMISCELLANEOUS:

Handbook for the International Treaties for the Protection of the Ozone Layer, Ozone secretariat, United Nations Ozone Programme, Sixth Ed. (2003) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4 1969 Vienna Convention on the Law of Treaties (8 Int'1 Legal Materials 679 (1969)) ........ 6

iiiGLOSSARY OF ACRONYMS AND ABBREVIATIONS

Pursuant to Circuit Rule 28(a)(3), the following is a glossary of acronyms and abbreviations used in this brief: Agency or EPA United States Environmental Protection Agency CAA or Act Clean Air Act CUE Rule EPA's final rule entitled "Protection of Stratospheric Ozone: Process for

Exempting Critical Uses From the Phaseout of Methyl Bromide," 69 Fed. Reg. 76,982 (Dec. 23, 2004)
JA Joint Appendix

rwIn an Order dated October 18, 2005, the Court ordered the parties to file supplemental

briefs "addressing whether `Decisions' issued by parties to the Montreal Protocol are cognizable `Adjustments' under Article 2(9) of the Protocol and/or whether such Decisions are otherwise cognizable in federal court actions brought to enforce the Protocol and the relevant terms of the Clean Air Act" ("CAA"), given the definition of "Montreal Protocol" in the CAA. The CAA defines the term "Montreal Protocol" to mean "the Montreal Protocol on Substances that Deplete the Ozone Layer, a protocol to the Vienna Convention for the Protection of the Ozone Layer, including adjustments adopted by the Parties thereto and amendments that have entered into force." 42 U.S.C. § 7671(9). The "decisions" at issue in this action do not contain "adjustments" because they do not meet the substantive and procedural requirements for adjustments set forth in the Montreal Protocol and are not identified as containing adjustments. It is equally clear that they do not contain amendments. Thus, the provisions contained in these decisions are cognizable in federal court actions brought to enforce the Montreal Protocol only in limited circumstances. As a general matter, decision language that is per se cognizable and relevant includes language adopted by consensus by Parties to the Montreal Protocol that interprets or applies a term in the Protocol (as adjusted and amended), to the extent the interpretation or application of the term is consistent with the ordinary meaning of the Protocol, as well as language that is expressly authorized in the Protocol to fill particular gaps in rights or obligations. Thus, the provisions contained in Decisions IX/6 and Ex. U3 are cognizable in federal court actions brought to enforce the Montreal Protocol and the terms of the CAA only to the limited extent that they interpret and apply treaty language or fill gaps as authorized by the treaty to address: (1) what uses are critical and (2) the level of production and import allowed in any given year.While the Parties may set narrowly tailored conditions on the authorization of a particular level

of production and import for critical uses, any other commitments in these decisions are political commitments that are not domestically cognizable.
I. Decisions IX/6 And Ex. I/3 Are Not Adjustments Or Amendments Under Article 2(9) Of The Montreal Protocol. Article 2(9) of the Montreal Protocol narrowly defines an "adjustment" as a special type of decision that modifies the ozone-depleting potential or phase-out schedule of a controlled substance, based upon a special assessment that is done pursuant to Article 6. Montreal Protocol, arts. 2(9) and 6, JA177, 202. Article 6 requires the parties to "assess the control measures provided for in Article 2 and Articles 2A to 2I on the basis of available scientific, environmental, technical and economic information" at least every four years. Id. art. 6, JA202. As part of the assessment, the parties to the treaty are required to "convene appropriate panels of experts" at least one year before the assessment. Id. The Panels report their conclusions to the parties within one year of being convened. Id. Thus, adjustment decisions are extremely limited in scope and must be based upon an Article 6 assessment. Adjustments must also follow several additional requirements. Under Article 2, proposed adjustments must be communicated to the parties at least six months before the meeting of the parties at which they are to be proposed for adoption, and may be adopted by a two-thirds majority vote of the parties present and voting, but only if the vote also represents a majority of both the developed and the developing countries present and voting. Montreal Protocol, art. 2(9)(b) and (c), JA177. Decisions to adopt adjustments are reported in a"Report of the Meeting of the Parties" that expressly identifies the decisions as containing adjustments. See e.a., "Report

Page 2of the Ninth Meeting of the Parties to the Montreal Protocol" ("Report of the Ninth Meeting") at

24-25 (Decisions IX/1 through IX/3) and Annexes 

### I through III (attached as Exhibit 1). In addition, all adjustment decisions from the Ninth Meeting of the Parties to the present state formulaically that the adjustments were adopted "in accordance with the procedure laid down in paragraph 9 of Article 2 of the Montreal Protocol and on the basis of the assessments made pursuant to Article 6 of the Protocol." See id. To further clarify which decisions of the parties are adjustments, adjustments are also identified as such in the separately paginated "Annexes" at the end of the Report of the Meeting of the Parties at which the decision was adopted. See Report of the Ninth Meeting at Annexes I through III (Ex. 1). Therefore, adjustments are easily identified. Critical use exemptions for methyl bromide under Article 2H(5), reflected in Decisions IX/6 and Ex.1/3, are not adjustments because they are not adopted pursuant to an Article 6 assessment and exceed the scope of Article 2(9). Neither Decision IX/6 nor Ex. 1/3, the two decisions at issue in this case, were adopted pursuant to an Article 6 assessment for an adjustment, nor were the Parties notified that these decisions were being proposed as adjustments six months before the meeting. See Decision IX/6 and Ex. 1/3, JA223-24, 255-58; Report of the Ninth Meeting at 24, 26-27 (Ex. 1); Report of the First Extraordinary Meeting of the Parties to the Montreal Protocol on Substances that Deplete the Ozone Layer ("Report of the First Extraordinary Meeting") at 14-15 (attached as Exhibit 2). In addition, Decisions IX/6 and Ex. 1/3 do not adjust the ozone depleting potential of inethyl bromide in Annex E of the Montreal Protocol or the phase-out schedule provided in Article 2H. Decisions IX/6 and Ex. I/3, JA223- 24, 255-58. To the contrary, methyl bromide continues to be listed in Annex E of the Protocol as
Page 3a controlled substance with an ozone-depleting potential of 0.6 and remains subject to the phaseout schedule set forth in Article 2H. Montreal Protocol, art. 2H and Annex E, JA188-90, 219. Consistent with this analysis, the parties to the Montreal Protocol have not identified Decisions IX/6 and Ex. 1/3 as containing adjustments. Rather, the parties identify Decision IX/6 as "Critical-use exemptions for methyl bromide" and Decision Ex. 1/3 as "Critical-use exemptions for methyl bromide for 2005," not as containing adjustments to the treaty. Decision IX/6, JA223; Decision Ex. 1/3, JA255. The titles of these decisions contrast greatly with the titles of every other decision containing an adjustment. See Decision 11/1 (titled "Adjustments and reductions"); Decisions IV/2, IV/3, V11/1, V11/2 and V11/3 (titled "Further adjustments and reductions"); and Decisions IX/l, IX/2, IX/3, X1/2, XU3 and XT/4 (titled "Further Adjustments") See Handbook for the International Treaties for the Protection of the Ozone Layer, Ozone Secretariat, United Nations Ozone Programme, Sixth Ed. (2003) at 108-10 (attached as Exhibit 3). Even more significant, neither Decision IX/6 nor Decision Ex. 1/3 states that it was made "in accordance with the procedure laid down in paragraph 9 of Article 2 of the Montreal Protocol and on the basis of the assessments made pursuant to Article 6 of the Protocol." Decision IX/6, JA223-24; Decision Ex. 1/3, JA255-58. Likewise, neither decision is listed as containing an adjustment in the "Annexes" at the end of the Reports of the Meeting of the Parties at which each decision was adopted. Report of the Ninth Meeting at Annexes (Ex. 1); Report of the First Extraordinary Meeting at 14-15, 21-31 (Ex. 2). This is in sharp contrast to the manner in which decisions that adopt adjustments pursuant to Article 2(9) are reported. For example, Decisions IX/1, IX/2 and IX/3, which were adopted at the same meeting as Decision IX/6 and are also
Page 4reported in the Report of the Ninth Meeting, are expressly identified as adopting adjustments;

each states that the decision was made "in accordance with the procedure laid down in paragraph 9 of Article 2 of the Montreal Protocol and on the basis of the assessments made pursuant to Article 6 of the Protocol;" and each is listed in Annexes I through III at the end of the Report of the Ninth Meeting. Report of the Ninth Meeting at 24-25 and Annexes I-III (Ex. 1). Thus, it is clear that Decisions IX/6 and Ex. I/3 do not contain adjustments under Article 2(9)Y
II. Decisions IX/6 And Ex. I/3 Are Cognizable In Federal Court Actions Brought To Enforce The Treaty And The CAA Only To The Limited Extent That They Are Consenaus Decisions Interpreting Or Applying A Term In The Protocol (As Adjusted Or Amended) Or Are Expressly Authorized In The Protocol To Fill Particular Gaps In Rights Or Obligations. CAA section 604(d) allows EPA to exempt "the production, importation, and consumption of inethyl bromide for critical uses" from the 2005 phase-out "[t]o the extent consistent with the Montreal Protocol." 42 U.S.C. § 7671c(d)(6). Congress defined the Montreal Protocol to mean "the Montreal Protocol on Substances that Deplete the Ozone Layer" and "adjustments adopted by the Parties thereto and amendments that have entered into force." Id. § 7671(9). Because Decisions IX/6 and Ex. I/3 are not adjustments or amendments to the treaty, they do not fit within the CAA's definition of "Montreal Protocol." Particular provisions in Decisions IX/6 and Ex. I/3, however, are cognizable to the limited extent that they either are consensus decisions interpreting or applying a term in the

J It is equally clear that Decisions IX/6 and Ex. I/3 do not contain amendments to the Montreal Protocol because they are not identified by the Parties as containing amendments and have not been ratified by the United States. Vienna Convention for the Protection of the Ozone Layer, art. 9(attached as Exhibit 4); Decision IX/6, JA223-24; Report of the Ninth Meeting at 26-27 (Decision IX/6) and Annexes I through VII (Ex. 1); Decision Ex. 1/3, JA255-58; Report of the First Extraordinary Meeting at 14-15 (Decision Ex. I/3) and 21-31 (Annexes) (Ex. 2). Page 5Protocol (as adjusted and amended), assuming the interpretation or application of the term is

consistent with the ordinary meaning and context of the Protocol,y or are expressly authorized in the Protocol to fill particular gaps in rights or obligations. In the first case, they would be viewed as "subsequent consensus agreements among the Parties to the Montreal Protocol, including the United States, regarding the interpretation and application of the Protocol." 69 Fed. Reg. 76,982, 76,984, JA042. In the second case, they could, depending upon the language and context, be an integral element of a United States' right or obligation under the Protocol. In neither case above (i.e., whether one focuses on interpretation/application of terms or on expressly authorized gap-filling) would the entirety of the relevant Decisions become legally cognizable. In Article 2H(5) of the Montreal Protocol, the United States and the other parties to the treaty agreed to allow the production and consumption of inethyl bromide after the 2005 phase-out "[t]o the extent that the Parties decide to permit the level of production or consumption that is necessary to satisfy uses agreed by them to be critical uses." Montreal Protocol, art. 211(5), JA190. This provision is significant because the United States agreed to accept future decisions of the parties on only two narrow issues: (1) what uses are critical and (2) the amount of inethyl bromide that could be produced and imported after the 2005 phase-out to satisfy those uses. Id. This language was added to the Montreal Protocol at the Parties' Ninth Meeting in 1997, replacing an earlier version agreed to at the Seventh Meeting in 1995. Report of the Ninth

2 ! See 1969 Vienna Convention on the Law of Treaties (8 Int'1 Legal Materials 679 (1969)), art. 31(3) ("[a] treaty shall be interpreted in good faith in accordance with the ordinary meaning to be given to the terms of the treaty in their context and in light of its object and purpose .... There shall be taken into account, together with the context: (a) Any subsequent agreement between the parties regarding the interpretation of the treaty or the application of its provisions."); 69 Fed. Reg. 76,984, JA 042. Page 6Meeting at 25 and Annex III (Ex. 1); Report of the Seventh Meeting of the Parties to the

Montreal Protocol at 25, 60-61 (attached as Exhibit 5). In 1998, Congress amended the CAA to bring the United States' phase-out of inethyl bromide into line with the schedule specified under the Montreal Protocol, and to authorize EPA to provide exemptions from the phase-out for critical uses "[t]o the extent consistent with the Montreal Protocol." 1999 Omnibus Consolidated and Emergency Supplemental Appropriations Act, Pub. L. No. 105-277, § 764, Oct. 21, 1998, codified at 42 U.S.C. § 7671c(d)(6). At the time this authority for a critical use exemption was added to the CAA, the treaty itself already contained the critical use exemption language that appears in Article 2H today. The 1998 amendment to the CAA, therefore, provides that the United States may take advantage of the critical use exemptions under the Montreal Protocol, provided the regulatory actions are "consistent" with the treaty, and also with provisions in the subsequent decisions of the Parties that provide additional context on two narrow issues: (1) what uses are critical and (2) the amount of inethyl bromide that could be produced and imported after the 2005 phase-out to satisfy those uses. These are the only two decisions that are specifically called for by the Montreal Protocol itself. To the extent Decisions IX/6 and Ex. U3 address these two points, they also interpret and apply the phrase "the level ... necessary to satisfy ... critical uses" as it appears in Article 2H(5). There are no other terms in the relevant part of Article 2H(5) that are susceptible to such interpretation and application. Thus, the only provisions of Decisions IX/6 and Ex. U3 that are domestically cognizable in federal court actions brought to enforce the treaty and relevant provisions of the CAA are those called for on the face of the Montreal Protocol,

Page 7specifically those that address what uses are critical and the level of production and import

allowed in any given year. In the preamble to the final Critical Use Exemption ("CUE") Rule, EPA addressed the issue of whether the Parties could condition the authorization of production and import for critical uses by requiring limits on the use of stocks for those same uses. 69 Fed. Reg. at 76,988, JA046. EPA interpreted the relevant decision language to mean that "the burden of the stock restriction is coextensive with the benefit of the new production and import." Id. EPA noted that "the Parties could reasonably set related conditions on agreeing to production and consumption at a particular level" and that "the stock restrictions are an integral part of the Parties' decision regarding the level of production and consumption necessary to satisfy critical uses." Id. Thus, in the CUE Rule, EPA imposed "narrowly tailored use restrictions as a condition of obtaining new production and import." 69 Fed. Reg. at 76,988, JA046. But that does not imply that gny condition the Parties might seek to impose would fall within the scope of Article 2H(5). For example, assuming ar,. p-;uendo that Decision Ex. I/3 contains an implicit prohibition on the use of stocks for noncritical uses, such a prohibition would fall outside the scope of the language in Article 2H(5) and the treaty in general. The Montreal Protocol addresses stratospheric ozone depletion by phasing out production and import, not by controlling use. "Controlled substances," including methyl bromide, are subject to controls on production and consumption (defined as production plus imports minus exports). Montreal Protocol, art. 2("Control Measures") and art. 1("Definitions"), JA174-191. Instructions for calculating control levels appear in Article 3: while there are formulas for calculating production, imports and exports, and consumption, there is no formula for calculating
Page 8use. ~ Id., art. 3("Calculation of Control Levels"), JA191-92. Article 2H of the Montreal

Protocol, which contains the "control measures" for methyl bromide, includes a schedule for phasing out production and consumption; it does not include a schedule for phasing out use. The word "use" appears in Article 2H only in the context of exemptions from the production and consumption phase-out for particular types of uses. Thus, a use restriction that was not directly linked to the level of exempted production and consumption would be a radical departure ffrom the treaty text.J To the extent Decisions IX/6 and Ex. I/3 contain other commitments that are not directly related to the language of Article 2H(5), they are political commitments among the Parties. Such political commitments are not domestically cognizable in federal court actions against the Executive Branch under the CAA. In developing the CUE Rule, EPA "intended to follow the terms of' the relevant decisions and stated that this approach "would ensure consistency with the Montreal Protocol." Id. at 76,985, JA043. "The course of conduct of parties to an international agreement, like the course of conduct of parties to any contract, is evidence of its meaning." O'Connor v. United States, 479 U.S. 27,33 (1986). By taking Decisions IX/6 and Ex. U3 into

J Similarly, the CAA generally permits use of an ozone-depleting substance to continue following the production and consumption phase-out. Compare 42 U.S.C. § 7671c (requiring termination of production and consumption) with 42 U.S.C. § 7671 f(requiring regulation of use to reduce emissions and maximize recapture and recycling). Consistent with this approach, EPA stated, in regard to the CFC phase-out, that "[c]ontrolled substances produced or imported through the use of allowances prior to [the phase-out] can continue to be used by industry and the public after the phase-out." 60 Fed. Reg. 24,970, 24,970 (May 10, 1995). J The United States is not the only country that has interpreted Decision Ex. I/3 as lacking a use restriction for non-critical uses. The European Community allows "the placing on the market and the use of inethyl bromide" stocks during 2005. Regulation (EC) No. 2037/2000 Art. 4(2)(ii) (attached as Exhibit 6). Page 9account in promulgating the CUE Rule, EPA intended to honor both political and legal

commitmentOl Under the Political Question Doctrine, "courts lack jurisdiction over political decisions that are by their nature `committed to the political branches to the exclusion of the judiciary."'Schneider v. Kissinger, 412 F.3d 190, 193 (D.C. Cir. 2005) (internal citation omitted). It is wellsettled that a case involves a political question if there is a"textually demonstrable constitutional commitment of the issue to a coordinate political department"-J and that "foreign policy decisions are the subject of just such a textual commitment." 7 J There is no question that "[t]he conduct of the foreign relations of our Government is committed by the Constitution to the Executive and legislative —`the political' — Departments of the Government, and the propriety of what may be

, With respect to the treaty's own non-compliance procedures, the Parties have not reached agreement on whether to treat action that is at variance with a decision as non-compliance withthe treaty. The Parties assigned an ad hoc working group to list possible situations of noncompliance with the Protocol; however, participants in the working group disagreed on several points, including whether action at variance with a decision belonged on the list. Report of the Third Meeting of the Ad Hoc Working Group of Legal Experts on Non-Compliance with the Montreal Protocol at 5-6, 10. (Attached as Exhibit 7). The Parties' subsequent decisionregarding non-compliance procedures omitted any mention of possible situations of noncompliance. Decision IV/5 (attached as Exhibit 8). In that decision, the Parties agreed "to adopt the view that the responsibility for legal interpretation of the Protocol rests ultimately with the Parties themselves." Id. At oral argument, the Court requested the United States to submit a copy of the non-compliance procedure. The current non-compliance procedure is attached as Exhibit 9. J Baker v. Carr, 369 U.S. 186, 217 (1962). J Schneider, 412 F.3d at 194 (quoting Committee of United States Citizens v. Reagan, 859 F.2d 929, 934-35 (D.C. Cir. 1988)). Page 10done in the exercise of this political power is not subject to judicial inquiry or decision."

Schneider, 412 F.3d at 194 (quoting Oetjen v. Cent. Leather Co., 246 U.S. 297, 302 (1918))fi' Thus, to the extent Petitioner is challenging the CUE Rule based upon political commitments among parties to the Protocol in Decisions IX/6 and Ex. 1/3, the petition presents nonjusticiable political questions over which this Court lacks jurisdiction. CONCLUSION Decisions IX/6 and Ex. I/3 do not contain adjustments or amendments to the Montreal Protocol. Therefore, the only provisions of Decisions IX/6 and Ex. I/3 that are domestically cognizable in federal court actions are those that the President and Congress agreed to accept in Article 2H(5) of the Montreal Protocol, and that interpret or apply certain terms in Article 2H(5), specifically those provisions that address (1) what uses are critical and (2) the level of production and import allowed in any given year. While, as discussed above, the Parties may in some circumstances impose narrowly tailored conditions on the authorization of a particular production and import level for critical uses, any other commitments in those decisions are political commitments that not domestically cognizable. For the foregoing reasons, and the reasons set forth in the United States' Final Brief and at oral argument, the petition for review should be denied.

J This Court has held that Article I, Section 8 of the Constitution, which enumerates the powers of the legislature, "is richly laden with delegation of foreign policy and national security powers." Schneider, 412 F.3d at 194. Likewise, Article II, Section 2, which enumerates the power of the Executive, provides that the President "shall have Power, by and with the Advice and Consent of the Senate, to make Treaties ... and by and with the Advice and Consent of the Senate, shall appoint Ambassadors, other public Ministers and Consuls." U.S. Const. art. II, § 2. Page 11Respectfully submitted, KELLY A. JOHNSON Acting Assistant Attorney General Environment and Natural Resources Division JOHN C. CRUDEN Deputy Assistant Attorney General 

# e. R STEVEN E. RUSAK United States Department of Justice Environment & Natural Resources Division Environmental Defense Section P.O. Box 23986 Washington D.C. 20026-3986 Tel: (202) 514-9275 Counsel for Respondents Of Counsel: ANN R. KLEE General Counsel DIANE E. McCONKEY Office of General Counsel U.S. Environmental Protection Agency Ariel Rios Building, 2344A 1200 Pennsylvania Avenue, N. W. Washington, D.C. 20460 November 7, 2005

Page 12CERTIFICATE OF SERVICE

I hereby certify that on this 7 t '' day of November, 2005, I caused a true copy of the foregoing "Supplemental Final Brief for the Respondent" to be served as indicated on the following:
David D. Doniger Amanda Leiter Natural Resources Defense Council 1200 New York Avenue, N.W. Suite 400 Washington, D.C. 20005 Tel: (202) 289-6868 e-mail: ddoniger@nrdc.org e-mail: aleiter@nrdc.org Tracy A. Heinzman Wiley Rein & Fielding LLP 1776 K Street, N.W. Washington, DC 20006 e-mail: theinzman(a),wrf.com [ ] U.S. Mail [ ] Overnight Mail [X] Hand Delivery [ ] Telefacsimile [X] E-mail

[ ] U.S. Mail [ ] Overnight Mail [X] Hand Delivery [ ] Telefacsimile [X] E-mail


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