Case: 15-60821
Document: 00513959224
Page: 1
Date Filed: 04/19/2017
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
______________________
No. 15-60821
_______________________
SOUTHWESTERN ELECTRIC POWER COMPANY, et al.,
Petitioners,
v.
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY, et al.,
Respondents.
OPPOSITION OF PETITIONERS AMERICAN WATER WORKS
ASSOCIATION AND NATIONAL ASSOCIATION OF WATER
COMPANIES TO RESPONDENT’S MOTION TO HOLD
ALL PROCEEDINGS IN ABEYANCE
Petitioners American Water Works Association (“AWWA”) and the
National Association of Water Companies (“NAWC”) oppose the motion by
Respondents to hold all proceedings in abeyance for 120 days. In response to
EPA’s motion, AWWA and NAWC state as follows:
1. As explained in AWWA and NAWC’s opening brief, statutory and
regulatory requirements established since the passage of the Clean Air Act in 1990,
have resulted in electric utilities installing air pollution control technologies such
as flue gas desulphurization (FGD) that increase discharges of bromide into
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drinking water source water. Opening Brief at 4-9. In the course of this
rulemaking, EPA recognized that bromide in source water led to the formation of
carcinogenic disinfection by-products in drinking water supplies, creating adverse
effects on public health. (80 Fed. Reg. 67,886).
2. In the final rule challenged in this case, EPA is acting under its authority
in the Clean Water Act, 42 U.S.C. § 1311, et. seq., to address the increased
discharges to surface water in the last two decades from new pollution control
technologies required by the Clean Air Act and the implementing regulations.
3. EPA’s request to reconsider this rule will not change the fact that
pollution control technologies have already been installed at facilities and have
been operating for some time and that the result is an increase the amount of
bromide in drinking water sources. These pollution control technologies continue
to be installed at steam electric power plants.
4. Neither the petition by the Utility Water Action Group nor the letter
from EPA Administrator E. Scott Pruitt address this issue.
5. EPA argues in its motion that in response to a change in administrations
governing our country, it is entitled to reconsider its “interpretations of statutes”
and conduct “a reevaluation …of policy” and suggests that it would promote
judicial economy to hold the entire rule in abeyance since EPA’s reconsideration
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Case: 15-60821
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of the rule might “obviate the need for judicial resolution of some or all of the
issues raised in the parties’ briefs.” EPA motion, p. 4-5.
6. Providing safe drinking water to the public is not a policy issue and
when a serious threat to the public’s drinking water supply is identified, it is EPA’s
duty to protect the public health regardless of its interpretation of statutes,
regardless of what administration is in power. Protection of public health also
outweighs any arguments about what might be the most effective way to judicially
resolve a challenge to a rulemaking.
7. EPA has had since December 5, 2016 when AWWA and NAWC filed
their opening brief to prepare its explanation to why it did not take more forceful
action to protect the nation’s drinking water supply after it recognized a serious
threat. EPA’s decision-making was arbitrary and capricious and no policy change
by a new administration can change that.
8. Halting judicial review of final regulations at this advanced stage of the
case based on the argument that the agency would like time to reconsider its
validly promulgated rulemaking would only disrupt and impede the orderly
administration of law.
9. AWWA and NAWC seek an expeditious resolution of the issues they
raised in this case and, therefore, oppose the request for another 120 days, after
which EPA is only committing to file a motion to govern further proceedings.
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Document: 00513959224
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Date Filed: 04/19/2017
EPA should be ordered to file its brief in accordance with the schedule agreed to
by the parties and approved by the Court on September 28, 2016.1
Respectfully submitted,
__/s/ John A. Sheehan___
John A. Sheehan
Michael Best & Friedrich
601 Pennsylvania Ave, N.W.
Suite 700 South
Washington, D.C. 20004
Ph: 202-844-3808
[email protected]
Dated: April 19, 2017
EPA’s brief was first set to be due on April 5, 2017. That date was extended until May 4,
2017 at the request of EPA due to a change in counsel responsible for the case.
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CERTIFICATE OF SERVICE
I hereby certify that on the 19th day of April, 2017, I electronically file the
foregoing Opposition of Petitioners American Water Works Association and
National Association of Water Companies to Respondent’s Motion to Hold All
Proceedings in Abeyance using the CM/ECF system which will send notifications
of this filing to the attorneys of record.
April 19, 2017
Respectfully submitted,
__/s/ John A. Sheehan___
John A. Sheehan
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