ORAL ARGUMENT NOT YET SCHEDULED IN THE UNITED STATES COURT OF APPEALS FOR ...

283 Pages·2013·9.77 MB·English

USCA Case #13-1112 Document #1431242 Filed: 04/17/2013 Page 1 of 283
ORAL ARGUMENT NOT YET SCHEDULED
IN THE UNITED STATES COURT OF APPEALS FOR
THE DISTRICT OF COLUMBIA CIRCUIT

SIERRA CLUB, et al., )
Petitioners, )
v. ) No. 13-1112
)
UNITED STATES ENVIRONMENTAL )
PROTECTION AGENCY, et al., )
Respondents. )
)
MOTION FOR STAY PENDING JUDICIAL REVIEW
OR FOR EXPEDITED REVIEW
Petitioners move for a stay pending judicial review of EPA final action that
delays compliance with air toxics limits for cement plants. 78 Fed. Reg. 10,006 (Feb.
12, 2013) (“2013 Rule”), Ex.A. The 2013 Rule delays the date by which cement plants
must reduce their emissions of mercury, hydrogen chloride, organic hazardous air
pollutants, and particulate matter for two years, from September of this year until
September 2015. This delay violates the Clean Air Act and, by EPA’s own estimates,
will cause between 1,920 and 5,000 preventable premature deaths.
Petitioners’ members are exposed to cement plants’ toxic emissions where they
live, work, and recreate, and will be irreparably harmed by the delay unless a stay is
granted. Petitioners specifically seek a stay pending judicial review of EPA’s revision
of the compliance date specified in 40 C.F.R. §63.1351(c) from Sept. 9, 2013, to Sept.
9, 2015. 78 Fed. Reg. 10,053/2 (revising 40 C.F.R. §63.1351(c)); see also id. 10,024/1
(“EPA is revising the compliance date for existing sources for [particulate matter],
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[total hydrocarbons], [hydrogen chloride], and [mercury] to be September 9, 2015.”);
76 Fed. Reg. 2832, 2837/1 (Jan. 18, 2011) (direct final rule) (revising 40 C.F.R.
§63.1351(c) to have compliance date of Sept. 9, 2013). If the Court denies a stay,
Petitioners respectfully request that it grant expedited consideration of the case.1
BACKGROUND
I. FACTUAL BACKGROUND
The air pollutants cement plants emit are extremely dangerous. Particulate
matter (“PM”) causes death and cardiovascular harms, like heart attacks, that can
require emergency room visits and hospitalization. 78 Fed. Reg. 3086, 3103/2-04/1
(Jan. 15, 2013) (adding that PM may cause developmental harms and lung cancer). It
is dangerous for all, but particularly for children, seniors, and people with pre-existing
heart or lung conditions. Id. 3104/1. There is no known threshold below which PM is
not dangerous. E.g., id. 3140/1. PM also likely harms vegetation and ecosystems,
especially near cement plants. Id. 3203/2. Fine PM—particles measuring 2.5 microns
or less—is especially dangerous. EPA has estimated that reducing cement plants’ fine
PM emissions alone will prevent between 960 and 2,500 premature deaths every year.
75 Fed. Reg. 54,970, 55,026 tbl.13 (Sept. 9, 2010) (“2010 Rule”).

1 Although Petitioners do not believe EPA has authority to stay Clean Air Act rules
except for three months as provided in Clean Air Act §307(d)(7)(B), 42 U.S.C.
§7607(d)(7)(B), Petitioners filed a precautionary request with EPA for a stay pending
judicial review on Apr. 5, 2013. Ex.B. EPA has not responded. Petitioners informed
EPA by telephone on Apr. 16, 2013, of their intention to file this motion.
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Mercury is notoriously hazardous. Children’s exposure in utero can cause neuro-
developmental harms, and exposure outside the womb also harms brain development.
EPA-HQ-OAR-2002-0051-2898 (“NRDC Comments”) 2-4, Ex.C. Mercury can also
harm adults neurologically and has been linked to cardiovascular problems. Id. 4-5. It
persists in watersheds, accumulating in fish and other wildlife, and ultimately in
humans. Id. 8. Nearly every state—48 of the 50—has posted health advisories for
mercury in fish, affecting 35% of total U.S. lake acreage and about 25% of U.S. river
miles. Id. 8-9.
Also highly dangerous and persistent in the environment are cement plants’
emissions of non-mercury metals, such as arsenic, chromium, and lead, for which
EPA uses PM as a surrogate. These hazardous substances cause a range of harms that
include cancer, skin and lung irritation, neurological effects, cardiovascular effects,
and reproductive and developmental effects. 68 Fed. Reg. 26,690, 26,692-94 (May 16,
2003); 63 Fed. Reg. 14,182, 14,184/3 (Mar. 24, 1998). See generally EPA, Deposition of
Air Pollutants to the Great Waters, First Report to Congress (1994), Executive Summary, at
ix-x, Ex.D; NRDC Comments 21-25.
Total hydrocarbons (“THC”) is EPA’s surrogate for non-dioxin organic
hazardous air pollutants, which include acetaldehyde, benzene, formaldehyde, and
polycyclic organic matter (“POM”). 63 Fed. Reg. 14,184/3, 14,187/3. These
pollutants cause cancer, as well as neurological, blood, gastrointestinal, developmental,
and liver harms. Id. 14,184/3-85/1. A persistent bioaccumulative toxic, 42 U.S.C.
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§7412(c)(6), POM consists of a range of chemical compounds, including polycyclic
aromatic hydrocarbons such as naphthalene that are at least probable carcinogens. 76
Fed. Reg. 57,106, 57,308/3-09/1 (Sept. 15, 2011). POM can also cause skin problems
and may affect reproduction and child development. Id. 57,308/3; EPA, Polycyclic
Organic Matter (POM), last updated Nov. 6, 2007,
epa.gov/ttn/atw/hlthef/polycycl.html.
Hydrogen chloride (“HCl”) “can cause damage to eyes, nose, throat, and the
upper respiratory tract as well as pulmonary edema, bronchitis, gastritis, and
dermatitis.” 75 Fed. Reg. 54,985/3. “Exposure to HCl can lead to RADS, a
chemically- or irritant-induced type of asthma.” 78 Fed. Reg. 10,028/3. Children may
be more vulnerable to HCl pollution than adults. Id.
II. REGULATORY BACKGROUND
More than a decade ago, this Court ordered EPA to set emission standards
under Clean Air Act §112 for cement plants’ emissions of mercury, HCl, and THC.
National Lime Ass’n v. EPA, 233 F.3d 625, 634 (D.C. Cir. 2000). EPA did not issue
these standards until 2010. 75 Fed. Reg. 54,970.
The 2010 Rule established first-time limits on cement plants’ emissions of
mercury, HCl, and THC. It also strengthened PM limits that were less stringent than
the Act required. Id. 54,987/3. The 2010 Rule granted existing cement plants the
statutory maximum of three years to comply. Id. 54,993/2 (citing 42 U.S.C.
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§7412(i)(3)(A)). Thus, the standards would have begun reducing cement plants’
pollution in September of this year.
Cement companies and their umbrella organization, the Portland Cement
Association (“PCA”), petitioned for review of the 2010 Rule. This Court remanded
for EPA to provide reconsideration on one issue, whether the agency should include
cement kilns that burn waste (“CISWI kilns”) when it calculates the stringency of the
emission standards. PCA v. EPA, 665 F.3d 177, 189 (D.C. Cir. 2011). It otherwise
rejected PCA’s claims, and denied PCA’s request to stay the 2010 Rule pending EPA’s
reconsideration process. Id. 185, 188-189.2
EPA has indicated that removing the CISWI kilns from its database had no
effect on any of the emission standards except the PM standard for existing kilns,
which EPA increased from .04 pounds per ton of clinker (lb/ton) to .05 lb/ton. 78
Fed. Reg. 10,010/2-3, 10,017/1, 10,021/1-2. The agency described this as a “minimal”
change that would leave kilns’ compliance strategy “unaltered.” 76 Fed. Reg. 28,318,
28,322/3 (May 17, 2011); see also EPA Supp. Br. 8, in PCA (describing PM standards
after removing CISWI kilns as “virtually identical”), Ex.E.
Following the 2011 PCA decision, however, PCA and EPA entered into a
private “settlement” of the already-decided case, in which the agency agreed to
propose an extension of the 2013 existing source compliance date “[i]f supported by

2 The PCA decision did stay one part of the 2010 Rule, its work practice requirements
for clinker storage piles. Id. 189. Those requirements are not at issue here.
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the administrative record.” 77 Fed. Reg. 27,055, 27,056/2 (May 8, 2012). For reasons
unrelated to the PCA decision or its reconsideration process, EPA then purported to
discover a technical problem with its method for demonstrating compliance with the
PM standard that neither the agency nor any commenter had noticed before. 77 Fed.
Reg. 42,368, 42,374/1 & n.8 (July 18, 2012). Citing this newly discovered glitch, EPA
doubled the new source standard from .01 lb/ton to .02 lb/ton, 78 Fed. Reg.
10,026/2, and increased the existing source standard from .05 lb/ton to .07 lb/ton, id.
10,017/1. Although EPA maintains that the new standards are essentially the same as
the old standards, id., it also asserts that they “open up different compliance
alternatives from those under the 2010 rule,” id. 10,023/1. PCA agreed that the new
standards would allow plants to continue using technology that “cannot achieve the
[2010 Rule’s PM standard].” EPA-HQ-OAR-2011-0817-0505 at 8 (emphasis in
original), Ex.F. Individual plants reported that they would be able to do less to comply
with the standards. Id. app.D 10 (describing changes to existing filter that would have
been necessary to comply with 2010 Rule but no longer are); id. 21, 23, 25, 27, 29
(existing PM control devices may be retained under new standard, but would have
been replaced under 2010 Rule). EPA delayed the compliance date in the 2010 Rule
by two years—from September 2013 to September 2015—so that cement companies
could deploy different and less effective control measures than the ones they would
have used to meet the 2010 Rule. 78 Fed. Reg. 10,023-24, 10,025/3. And, in that time,
plants will be allowed to emit more pollution than they otherwise would.
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ARGUMENT
A stay’s issuance depends on balancing four factors: (1) the likelihood of
success on the merits of the petitioners’ claims; (2) whether the petitioners will suffer
irreparable harm without a stay; (3) whether a stay will substantially harm other
parties; and (4) the public interest. D.C. Cir. R.18(a)(1); see, e.g., Davis v. Pension Ben.
Guar. Corp., 571 F.3d 1288, 1291 (D.C. Cir. 2009); Wash. Metro. Area Transit Comm’n v.
Holiday Tours, 559 F.2d 841, 843 (D.C. Cir. 1977). All favor Petitioners.
I. PETITIONERS ARE LIKELY TO SUCCEED ON THE MERITS.
A. EPA’s Delayed Compliance Date Violates Clean Air Act §112(i)(3)(A).
1. EPA’s Delayed Compliance Date Is Not As Expeditious As
Practicable.
Clean Air Act §112(i)(3)(A) requires existing sources to come into compliance
with emission standards “as expeditiously as practicable, but in no event later than 3
years after the effective date of such standard,” subject to limited exceptions. 42
U.S.C. §7412(i)(3)(A); see also id. §7412(i)(3)(B), (i)(4)-(6) (exceptions relevant to
existing cement plants). One such exception is a case-by-case extension for plants that
need additional time to install controls. Id. §7412(i)(3)(B). Congress thus made clear its
conclusion that plants can comply within three years or less and that any extensions of
the compliance date beyond three years should be granted only on a case-by-case
basis and only where the permitting authority concludes that such time is “necessary
for the installation of controls.” Id. §7412(i)(3), (i)(3)(B).
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Since its promulgation, the 2010 Rule has not been changed in any way that
would prevent plants from meeting the 2013 compliance deadline. The PCA decision
left the 2010 Rule in place and denied PCA’s request for a stay of the entire 2010
Rule, meaning that the rule’s compliance date has remained applicable for plants
continuously since its promulgation over two-and-a-half years ago. 665 F.3d at 189.
For its part, EPA only made the rule weaker. Thus, nothing has occurred since the
2010 Rule’s promulgation either to lift its applicability or to make it more difficult for
cement plants to come into compliance. It was practicable for cement plants to meet
the 2013 compliance deadline when EPA promulgated the 2010 Rule, and it is
practicable for cement plants to meet it now.
EPA does not claim otherwise, but argues that its decision to weaken the PM
standard “open[s] up different compliance alternatives from those under the 2010”
Rule and that cement companies need more time if they wish to deploy these
alternatives. 78 Fed. Reg. 10,023/1, 10,024/1 & n.14. The Act, however, requires
compliance “as expeditiously as practicable”—not “as long as it takes to deploy the
cheapest possible compliance alternative.” It is “practicable” for cement companies to
meet the weakened PM standard in the 2013 Rule using the same control strategies
they chose to meet the 2010 standards. Thus, it is still “practicable” to meet the
September 2013 deadline. See Black’s Law Dictionary 1172 (6th ed. 1990) (“practicable”
means “that which may be done, practiced, or accomplished; that which is
performable, feasible, possible”). Congress’s unambiguously expressed intent to
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provide long-overdue protection against hazardous air pollutants “as expeditiously as
practicable” must be respected even if it conflicts with EPA’s policy goal of allowing
cement plants to use cheaper controls.
EPA also argues that if it does not delay compliance, sources would have to
“install one technology and rip it out in short order to install another.” Id. 10,024/3.
That claim is nonsensical. Because any technology cement plants would install to meet
the 2010 Rule will also allow them to meet the weakened PM standard in the 2013
Rule, it would not need to be replaced.
2. EPA Lacks Authority To Delay The 2013 Compliance Date.
Citing this Court’s holding that “only the effective date of Section 112
emissions standards matters when determining the maximum compliance date” for
§112 standards, EPA argues that §112(i)(3)(A) allows it to extend compliance dates by
three years any time it elects to amend emission standards. 78 Fed. Reg. 10,024/2
(quoting NRDC v. EPA, 489 F.3d 1364, 1373 (D.C. Cir. 2007)). Whether EPA has
such authority is irrelevant here. It is “practicable” for cement plants to meet the
existing 2013 deadline, and §112(i)(3)(A) requires compliance as “expeditiously as
practicable.” 42 U.S.C. §7412(i)(3)(A). If the Court reaches the issue of EPA’s
authority, however, it should find that EPA may not defeat §112(i)(3)(A)’s 3-year
outside limit on compliance deadlines just by electing to weaken emission standards
before their compliance date arrives.
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As discussed above, weakening standards does not make it less “practicable” to
meet an existing deadline. Thus, the text of §112(i)(3)(A) itself precludes such
gamesmanship.
Further, if EPA could reset compliance dates just by electing to weaken
emission standards, it could put off compliance with emission standards forever. The
Supreme Court has categorically rejected EPA interpretations that nullify objective
limits on its authority, and this Court has specifically rejected as “absurd” the notion
that EPA can defeat and effectively nullify deadlines just by continually amending its
standards.3 S. Coast Air Quality Mgmt. Dist. v. EPA, 489 F.3d 1245, 1248 (D.C. Cir.
2007) (on reh’g) (refusing to read such a “glaring loophole” into the Act); see Whitman
v. Am. Trucking Ass’ns, 531 U.S. 457, 485 (2001) (“EPA may not construe the statute in
a way that completely nullifies textually applicable provisions meant to limit its
discretion.”).
Contrary to EPA’s claim (at 78 Fed. Reg. 10,024/2), NRDC does not support
its position. Although the NRDC Court rejected EPA’s claim there that it could delay
compliance deadlines by changing other parts of a regulation, it did not consider—far
less endorse—the notion that EPA can delay compliance dates at will just by electing
to weaken standards before the compliance dates arrive.
Nor does PCA help EPA on this point. EPA implies that because a court can

3 There, EPA strengthened the relevant standards. S. Coast, 489 F.3d at 1248. It would
make even less sense to allow EPA to nullify deadlines by weakening standards.
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