USCA Case #15-1056 Document #1726769 Filed: 04/16/2018 Page 1 of 6 ORAL ARGUMENT NOT YET SCHEDULED IN THE UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT Hearth, Patio & Barbecue Association, et al., Petitioners, v. No. 15-1056 (Consolidated with 15-1140) United States Environmental Protection Agency, Respondent. UNOPPOSED MOTION TO EXTEND BRIEFING DEADLINES Respondent United States Environmental Protection Agency ( EPA ) moves to extend the briefing schedule by 150 days, during which time EPA will propose administrative actions regarding the regulation at issue in these consolidated cases. Petitioner Hearth, Patio & Barbecue Association ( HPBA ) (No. 15-1056) and Petitioner Pellet Fuels Institute ( PFI ) (No. 15-1140) support this motion. Respondent-Intervenors American Lung Association, Clean Air Council, and Environmental and Human Health, Inc. do not oppose this motion. In support of this motion, EPA states as follows: 1. Petitioners challenge various aspects of EPA s final rule entitled Standards of Performance for New Residential Wood Heaters, New Residential (Page 1 of Total) 1
USCA Case #15-1056 Document #1726769 Filed: 04/16/2018 Page 2 of 6 Hydronic Heaters and Forced-Air Furnaces. 80 Fed. Reg. 13,672 (Mar. 16, 2015) (the Rule ) 2. Petitioners have discussed the issues that they are likely to raise in litigation with EPA, and the Court granted multiple unopposed extensions of the briefing schedule to permit time for the parties to engage in these discussions. Under the current briefing schedule, Petitioners Brief(s) are due April 23, 2018; Respondent s Brief is due July 24, 2018; Intervenors Brief is due August 20, 2018; Petitioners Reply Brief(s) are due September 10, 2018; the Deferred Appendix is due September 17, 2018; and Final Briefs are due September 24, 2018. 3. EPA has now determined that certain issues concerning the Rule warrant an opportunity for public comment, which may lead to revisions of the Rule. See Ex. 1, Declaration of Peter Tsirigotis, 3. 4. EPA intends to issue a series of Federal Register notices concerning the Rule. Id. 4. Specifically, EPA expects to issue the first proposed rule regarding issues raised by the existing Rule this spring, and EPA intends to take final action on this first proposed rule by this fall. Id. Concurrently with or shortly after the first proposed rule, EPA expects to issue an advanced notice of proposed rulemaking to take comment on additional issues. Id. EPA intends to develop a second proposed rule, based in part of comments received on the advanced notice of proposed rulemaking. Id. EPA intends 2 (Page 2 of Total)
USCA Case #15-1056 Document #1726769 Filed: 04/16/2018 Page 3 of 6 to issue this second proposed rule this fall and to take final action on the second proposed rule by spring 2019. Id. 5. It is possible that EPA s anticipated proposed rules will result in final actions on the Rule that may affect the issues in this litigation. 6. EPA therefore requests a 150-day extension of the briefing schedule to allow the Agency time to issue the proposed rules. 7. EPA does not anticipate that any party would be prejudiced by the requested extension, which is supported by Petitioners, and is not opposed by Respondent-Intervenors. No merits briefs have been filed, and oral argument is not yet scheduled. For the foregoing reasons, EPA respectfully requests that the Court grant this motion to extend the briefing schedule by 150 days and enter the following briefing schedule: Petitioners Brief(s) September 20, 2018 Respondent s Brief December 21, 2018 Respondent-Intervenors Brief January 17, 2019 Petitioners Reply Brief February 7, 2019 Deferred Appendix February 14, 2019 Final Briefs February 21, 2019 (Page 3 of Total) 3
USCA Case #15-1056 Document #1726769 Filed: 04/16/2018 Page 4 of 6 Dated: April 16, 2018 Respectfully submitted, JEFFREY H. WOOD Acting Assistant Attorney General /s/ Simi Bhat SIMI BHAT U.S. Department of Justice Environment & Natural Resources Division Environmental Defense Section P.O. Box 7611 Washington, D.C. 20044 (202) 532-5563 (202) 514-8865 (fax) simi.bhat@usdoj.gov Counsel for Respondent EPA (Page 4 of Total) 4
USCA Case #15-1056 Document #1726769 Filed: 04/16/2018 Page 5 of 6 CERTIFICATE OF COMPLIANCE WITH TYPE-VOLUME LIMIT, TYPEFACE REQUIREMENTS, AND TYPE-STYLE REQUIREMENTS I hereby certify that this motion complies with the type-volume limitation of Fed. R. App. P. 27(d)(2) because it contains 739 words, excluding the parts of the brief exempted under Rule 27(a)(2)(B), according to the count of Microsoft Word. I further certify that this motion complies with the requirements of Fed. R. App. P. 32(a)(5) and (6) because it has been prepared in Microsoft Word using 14- point Garamond, a proportionally spaced font. /s/ Simi Bhat Simi Bhat Counsel for Respondent EPA Dated: December 16, 2016 (Page 5 of Total) 5
USCA Case #15-1056 Document #1726769 Filed: 04/16/2018 Page 6 of 6 CERTIFICATE OF SERVICE I hereby certify that I electronically filed the foregoing document using the Electronic Case Filing ( ECF ) system of this Court. The ECF system will send a Notice of Electronic Filing to the attorneys of record. /s/ Simi Bhat Simi Bhat Counsel for Respondent EPA Dated: April 16, 2018 (Page 6 of Total) 6
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