[00:00:02] Speaker 01:
Good morning, Your Honours.

[00:00:02] Speaker 01:
May it please the Court.

[00:00:03] Speaker 01:
My name is Brian Orion, Council for the Appellants.

[00:00:06] Speaker 01:
I'd like to reserve five minutes for rebuttal, please.

[00:00:10] Speaker 01:
Below the District Court dismissed, Appellants complained for failure to comply with the Clean Water Act's pre-suit notice requirements.

[00:00:18] Speaker 01:
In this appeal, EPA argues for affirmance on an alternative theory that was specifically rejected by the District Court.

[00:00:25] Speaker 01:
Although the District Court dismissed the complaint, it rejected the theory advanced by EPA in this appeal.

[00:00:31] Speaker 01:
In so doing, the district court applied this court's well-settled precedent on pre-suit notice requirements.

[00:00:37] Speaker 01:
This court should likewise reject EPA's arguments.

[00:00:40] Speaker 01:
The notice here was adequate under this court's precedent.

[00:00:43] Speaker 01:
A useful starting point is this court's decision in Klamath-Siskey Wildlands.

[00:00:48] Speaker 01:
In that case, this court surveyed three prior decisions of this court.

[00:00:53] Speaker 01:
In so doing, that court made clear the following key legal rules.

[00:00:57] Speaker 01:
First, the adequacy of pre-suit notice

[00:01:00] Speaker 01:
is considered in light of the purpose of the notice process.

[00:01:03] Speaker 01:
Second, the notice letter fulfills the purpose of the notice process if it provides sufficient information for the alleged violator to identify and attempt to correct the violations, thus avoiding the need for a citizen suit.

[00:01:16] Speaker 01:
Lastly, in considering these questions, the court will take into account the defendant's knowledge of its own operations and activities and the relative access to information between the parties.

[00:01:26] Speaker 05:
You know, one thing, when I read this statute,

[00:01:30] Speaker 05:
The statute doesn't say that the EPA is to publish a list of water quality standards.

[00:01:36] Speaker 05:
It just says it's supposed to publish information.

[00:01:40] Speaker 05:
Right?

[00:01:40] Speaker 01:
That's correct.

[00:01:41] Speaker 01:
Yeah.

[00:01:44] Speaker 01:
If you look at the way EPA has published this information in the past, it's in the record.

[00:01:48] Speaker 01:
There's a 1978 report.

[00:01:49] Speaker 01:
Right.

[00:01:51] Speaker 01:
And it includes extensive tables containing water quality standards information.

[00:01:56] Speaker 05:
As well as an extraction of the pollutants the statute also couldn't EPA in light of all the technological changes that have taken place Just post that information on the on their website

[00:02:14] Speaker 01:
It's not a question as to whether or not the notice was adequate on that.

[00:02:18] Speaker 01:
That goes to the merits of whether or not EPA complied with the statutory duty through the website.

[00:02:24] Speaker 01:
That goes to the merits.

[00:02:25] Speaker 02:
But doesn't that suggest the notice was inadequate?

[00:02:28] Speaker 02:
Because you guys thought the list was this 1978, 1982 list that EPA created, and that was inadequate.

[00:02:35] Speaker 02:
EPA was thinking it's the website.

[00:02:38] Speaker 02:
So you guys were on different pages here.

[00:02:41] Speaker 02:
So that suggests that maybe the notice wasn't

[00:02:43] Speaker 02:
specific enough of what's wrong, such that you guys were looking at different documents, different sources, and each side kind of scratching their head, because you guys look at the 7882 list and say, gosh, this hasn't been updated in decades.

[00:02:57] Speaker 02:
EPA is looking at their website and says, wow, we have a wealth of information.

[00:03:00] Speaker 02:
Seems like the notice provided a little more data, everyone would have been on the same page, just as a practical matter.

[00:03:07] Speaker 01:
First, well, EPA concedes the notice letter did not need to identify EPA's own website for EPA to understand where to look to find its list.

[00:03:15] Speaker 01:
So for purposes of the notice process, the intent of the notice process to permit the alleged violator to identify and attempt to correct the violation.

[00:03:24] Speaker 01:
EPA being able to, regardless of what appellants subjectively believed, EPA knew where to find its list.

[00:03:31] Speaker 01:
All it had to do was check its own list.

[00:03:33] Speaker 01:
compared that list with the water quality standard information that it has, see if there are any gaps, and update the list.

[00:03:40] Speaker 02:
And then on that point, again, that website has so much information.

[00:03:44] Speaker 02:
It has charts, these links, multiple layers.

[00:03:47] Speaker 02:
The notice just says it's inadequate and complete.

[00:03:50] Speaker 02:
I mean, you don't have to do all the heavy lifting for the EPA.

[00:03:53] Speaker 02:
That's their duty.

[00:03:55] Speaker 02:
It seems like the notice should have provided a little bit more information of what's missing.

[00:03:59] Speaker 02:
Hey, this is, for example, this is missing.

[00:04:01] Speaker 02:
This is inadequate.

[00:04:02] Speaker 02:
It just seems like just saying it's incomplete or inadequate basically means that you're violating the law.

[00:04:09] Speaker 02:
And, you know, again, the point of... I'm sorry.

[00:04:14] Speaker 02:
I'm done.

[00:04:16] Speaker 00:
The hard part about this case to me is that our Children's Earth Foundation

[00:04:25] Speaker 00:
asked for what they believed was to be the information required under this particular section of this statute.

[00:04:38] Speaker 00:
And they thought it would be in the form that it had previously taken.

[00:04:43] Speaker 00:
And instead of just saying, no, we've changed how we do this, it's now on the website.

[00:04:54] Speaker 00:
we have all this litigation about whether the notice was that adequate.

[00:04:59] Speaker 00:
And it seems to me that if any party knew how they were publishing this information now, it was the EPA.

[00:05:09] Speaker 00:
And they could have just responded simply instead of creating this lawsuit by telling them, no, it's the website.

[00:05:18] Speaker 00:
And then,

[00:05:19] Speaker 00:
OCE could have simply gone to the website and said, well, this is why it's inadequate because apparently it's not been updated and isn't covering all the places it's supposed to be covering.

[00:05:31] Speaker 00:
And in fact, they have done some more work on it now since it was filed.

[00:05:36] Speaker 00:
But I don't know if this is really a question of whether the notice was adequate or inadequate.

[00:05:44] Speaker 00:
It's more that the

[00:05:47] Speaker 00:
The only party who could have understood what the responsive documents were is the EPA.

[00:05:56] Speaker 00:
And they could have just told us, look at the website.

[00:05:59] Speaker 00:
The list is there.

[00:06:02] Speaker 01:
That's exactly right, Your Honor.

[00:06:03] Speaker 01:
It would have been impossible for anyone outside of EPA to have identified the website at the time that the notice that it was issued.

[00:06:10] Speaker 01:
The website does not identify itself as a Section 304A list.

[00:06:14] Speaker 01:
It does not say that anywhere on the website.

[00:06:16] Speaker 05:
It doesn't resemble anything like the... The statute doesn't say it's supposed to be identified as a list.

[00:06:21] Speaker 05:
It's just supposed to provide information.

[00:06:25] Speaker 01:
The purpose of Section 304A, excuse me, 304A6 was to inform the regulated community about the in-effect water quality standards so that the regulated community and members of the public could identify those water quality standards.

[00:06:39] Speaker 01:
If EPA was publishing a website which has a disclaimer across every page saying, EPA has only made a reasonable attempt to ensure its accuracy, that doesn't communicate to the public that this is an authoritative list.

[00:06:51] Speaker 01:
Congress wouldn't have gone through the process

[00:06:54] Speaker 01:
and bothered to pass federal legislation telling EPA to do this if it meant for EPA to just be able to disclaim the accuracy of what it published.

[00:07:01] Speaker 05:
To take up Judge Wardlaw's point, it seems like, you know, let's say you wanted to know the water quality standards in, I don't know, here in the city, San Francisco, that EPA has

[00:07:20] Speaker 05:
made known.

[00:07:20] Speaker 05:
So I guess you go to their website and it has a little, maybe it has a find, you know, find with a magnifying glass, find, type in water quality standards of San Francisco.

[00:07:33] Speaker 05:
I gather you might get something, right?

[00:07:38] Speaker 01:
Yes, you will get something.

[00:07:39] Speaker 01:
You will get information through the website.

[00:07:41] Speaker 05:
About the water quality standards.

[00:07:43] Speaker 01:
Oh, yes.

[00:07:43] Speaker 05:
Okay, let's say that what's there is 10 years old.

[00:07:49] Speaker 05:
So why wouldn't, and maybe you check a few other places, it's outdated.

[00:07:54] Speaker 05:
So then as Judge Lee said, it seems like what the notice should have been is, hey, the information on water quality standards under the statute is inaccurate and incomplete.

[00:08:07] Speaker 01:
That's exactly what the notice that are asserted on.

[00:08:09] Speaker 01:
No, on the website.

[00:08:11] Speaker 01:
There was no way for anybody outside of EPA to refer to the website.

[00:08:15] Speaker 01:
There would have been no reason.

[00:08:17] Speaker 01:
The notice was to allege violations of the statute.

[00:08:23] Speaker 01:
And the website itself doesn't communicate in any way that it is a website that is informing the public pursuant to that duty, and it doesn't resemble in any way

[00:08:32] Speaker 01:
the published reports that were formal EPA reports that it had published in the past.

[00:08:36] Speaker 01:
Moreover, it doesn't include the extraction.

[00:08:38] Speaker 01:
I mean, it doesn't resemble it in many ways.

[00:08:41] Speaker 05:
I'm going to say one last thing on this.

[00:08:44] Speaker 05:
And that is that I don't consider myself at all an expert in the internet.

[00:08:51] Speaker 05:
But a lot of people usually think, well, let's go to the website and let's just check.

[00:08:57] Speaker 05:
And in your organization, I'm sure people do that.

[00:09:03] Speaker 01:
And that goes to the merits of whether or not EPA has complied with its duty through the website.

[00:09:07] Speaker 01:
It does not go to the issue presented in this appeal.

[00:09:10] Speaker 01:
That issue is solely whether EPA understood the notice letter and could have avoided litigation through bringing itself into compliance with the statute.

[00:09:19] Speaker 01:
And that is a key case.

[00:09:22] Speaker 01:
The key case, I would point this court to two key cases that are closely analogous.

[00:09:27] Speaker 01:
San Francisco Baykeeper versus Tosco Corp is the first.

[00:09:30] Speaker 01:
It's a Clean Water Act case.

[00:09:33] Speaker 01:
The notice regulation issue there required the notice to include dates of violation.

[00:09:38] Speaker 01:
It's very analogous to what EPA is alleging here with respect to specific water quality standards not being identified as missing from the list.

[00:09:47] Speaker 01:
The notice center in that case alleged two types of violations.

[00:09:52] Speaker 01:
For one violation, it listed dates for some but not all of the violations.

[00:09:56] Speaker 01:
For the other type, it listed no dates of violation at all, including a narrative description of what the alleged defendant had done wrong.

[00:10:03] Speaker 01:
In that case, the narrative was, on windy days, you're allowing piles of dust, coke, to be blown into the slough.

[00:10:12] Speaker 01:
That's it.

[00:10:13] Speaker 01:
No dates.

[00:10:15] Speaker 01:
The court held that was adequate.

[00:10:17] Speaker 01:
Why?

[00:10:18] Speaker 01:
Because the purpose of the notice letter process was satisfied.

[00:10:22] Speaker 01:
the alleged violator could piece together from the information in the notice letter and its knowledge of its own operations both what it had done wrong at a general level and nature of the problem that the notice letter was relating to and how to correct the violation.

[00:10:39] Speaker 01:
So that goes to kind of the second issue of whether or not the notice letter needed to list examples of the water quality standards that were missing.

[00:10:48] Speaker 01:
The other key case I'll just note for the record if the court would like

[00:10:51] Speaker 01:
Waterkeepers versus AG Industries Manufacturing.

[00:10:55] Speaker 05:
I do have another question.

[00:10:58] Speaker 05:
You know, I think the district court said, why don't you just refile?

[00:11:04] Speaker 05:
So when the district court tossed out the case, they tossed it out on a jurisdictional basis.

[00:11:09] Speaker 05:
So that's not a ruling on the merits at all.

[00:11:12] Speaker 05:
I mean, I gather you could just give another notice, sue them again.

[00:11:17] Speaker 05:
Is that right?

[00:11:19] Speaker 01:
We may very well be able to do that your honor, but it's just simply the district courts rationale Just does not comport with this court's precedent.

[00:11:28] Speaker 01:
There's no there's no reason for us to go through the process of refiling this case EPA's assertion seems like it might have been a little easier than

[00:11:38] Speaker 05:
than doing a Ninth Circuit brief and waiting.

[00:11:41] Speaker 05:
It may well have been.

[00:11:43] Speaker 05:
I'm sorry, Judge Wardlaw.

[00:11:48] Speaker 00:
I mean, the district court dismissed the case without prejudice.

[00:11:54] Speaker 00:
I mean, you could have even just, I don't know, without prejudice to your bringing another action.

[00:12:00] Speaker 00:
Now that you know it's the website is what they considered the 304 compliance

[00:12:07] Speaker 00:
item and you also know that it's not accurate given that they guessed where you were from and checked California and found many inaccuracies and had to update it.

[00:12:24] Speaker 00:
I think it'd be fairly easy to reformulate the list, the notice.

[00:12:30] Speaker 01:
Your honor, it's just not required by this course of precedent and it would be highly ironic

[00:12:36] Speaker 01:
for EPA to rely on the fact that it has failed to undertake its mandatory duty, publish a list that identifies itself at a minimum as a list in question, and then be able to dismiss a citizen suit.

[00:12:50] Speaker 01:
Did you want to save some time on pointing my finger at the clock?

[00:12:52] Speaker 01:
Yes, Your Honor.

[00:12:53] Speaker 01:
Thank you.

[00:13:05] Speaker 03:
Good morning.

[00:13:06] Speaker 03:
May it please the court.

[00:13:07] Speaker 03:
I'm Kevin McCardell on behalf of the Environmental Protection Agency.

[00:13:10] Speaker 03:
The plaintiff's notice was deficient and defeated the purpose of the statutory notice requirement for three reasons.

[00:13:16] Speaker 03:
First, it didn't identify the quote last published list that was the subject of the grievance as the district court correctly held.

[00:13:25] Speaker 03:
Second, it didn't provide any information, either in narrative form or by way of example or otherwise, why the plaintiffs believed the unidentified list

[00:13:35] Speaker 03:
was outdated or incomplete.

[00:13:37] Speaker 03:
And third, it most definitely didn't put EPA on notice as to the deficiencies in the website that were first alleged in the amended complaint.

[00:13:46] Speaker 03:
Any one of those deficiencies justifies the district court's dismissal.

[00:13:50] Speaker 03:
And for that reason, the court's judgment should be affirmed.

[00:13:53] Speaker 03:
Now, the first point, they had to tell us what they thought was the last published list.

[00:14:00] Speaker 03:
just as the subject of their grievance, just as the district court correctly held.

[00:14:05] Speaker 03:
And we never conceded otherwise.

[00:14:07] Speaker 03:
We made that point on pages one through two of our brief, page nine, 15, 16, 18, 26, 27, 35, 36, 37, and 38.

[00:14:15] Speaker 00:
That's a key point because- Council, may I ask you a question on that point?

[00:14:22] Speaker 00:
How would they identify the last list if you didn't put wrote 304 information

[00:14:30] Speaker 00:
on the website or on any subsequent list following the 78 list.

[00:14:36] Speaker 00:
How would they know which one was the last?

[00:14:37] Speaker 03:
Well, that's why it's so critically important, Your Honor, for them to identify what they thought was the list.

[00:14:43] Speaker 03:
So, for example, they say on page 17 of their reply brief, they come clean and they say, we thought then and we think now that the last published list was two reports issued in 1978 and 82.

[00:14:54] Speaker 03:
Why they didn't put that in their notice, no one knows.

[00:14:58] Speaker 03:
If they had,

[00:14:59] Speaker 03:
We could have resolved the grievance in a two-sentence email by saying, you're looking at the wrong thing.

[00:15:04] Speaker 03:
We don't rely on those 40-year-old documents.

[00:15:06] Speaker 03:
We use the website.

[00:15:08] Speaker 03:
And the second point is, they sent a FOIA request seven days after, I believe, they sent the notice.

[00:15:15] Speaker 03:
And it said, give us everything you've issued in part one of their request.

[00:15:19] Speaker 03:
This is SCR 13, I believe.

[00:15:22] Speaker 03:
Give us everything you've issued under Section 304A6.

[00:15:26] Speaker 03:
And in response, we said,

[00:15:28] Speaker 03:
The website contains the information requested.

[00:15:31] Speaker 03:
So at that point, the proper course of action would have been, take a look at the website.

[00:15:37] Speaker 03:
If you think it's deficient in some way, send us an updated notice, and we'll take a look and see if we need to change it.

[00:15:43] Speaker 03:
But you can't just go file a lawsuit based on a vague letter that vaguely referencing reports issued 50 years ago, and then move the goal post and say, now we're going to amend our complaint and challenge the website.

[00:15:58] Speaker 03:
They had an opportunity right then when we told them that the website contains the information to send us a notice.

[00:16:04] Speaker 02:
Is there anything in the record that shows any interaction between EPA's FOIA unit and the litigation unit that addresses the pre-suit notice?

[00:16:14] Speaker 03:
I don't think there is, Your Honor.

[00:16:16] Speaker 03:
Everything on the FOIA request that I'm aware of right now is around SER 10 to 13.

[00:16:22] Speaker 03:
With the exchange I just described, where we said in response to part one of their request,

[00:16:27] Speaker 03:
that the website contains the information request.

[00:16:31] Speaker 02:
The reason why I'm asking is, you know, they also submit this FOIA request, and the FOIA request, they do mention this 1978-1982 list, I believe.

[00:16:40] Speaker 02:
And if there's interaction between the two, maybe the EPA unit that handles pre-suit notices would have been put on notice that they're thinking of the 78-82 list.

[00:16:50] Speaker 03:
Yeah, I think it was only a FOIA matter at that point.

[00:16:57] Speaker 03:
because the notice was sent to a different component.

[00:17:00] Speaker 03:
It was sent to the EPA administrator.

[00:17:02] Speaker 03:
So I don't think, and the FOIA request came in only seven days later after the notice was sent, I believe.

[00:17:09] Speaker 03:
Or it may have been, I apologize.

[00:17:10] Speaker 03:
I think it was, the FOIA request was sent first, then seven days later they sent the notice before we responded to the FOIA request.

[00:17:18] Speaker 03:
And that's outlined in our brief as well.

[00:17:22] Speaker 03:
And the second major deficiency,

[00:17:25] Speaker 03:
is that they didn't tell us, as I said, what the problem was with the unidentified list.

[00:17:31] Speaker 03:
They said it's outdated or flawed, but they didn't provide any information explaining why.

[00:17:36] Speaker 03:
And instead, they say, well, EPA, you could go figure it out.

[00:17:40] Speaker 03:
It's your list.

[00:17:41] Speaker 03:
You could figure out what's wrong.

[00:17:43] Speaker 03:
But that's not sufficient.

[00:17:44] Speaker 03:
And no court has ever said that an agency's control over its own subject matter discharges the plaintiff

[00:17:52] Speaker 03:
from describing its notice with reasonable specificity.

[00:17:55] Speaker 03:
And I think the cases council mentioned are really helpful, like Tosco Corp.

[00:18:00] Speaker 03:
I mean, there, the plaintiff said, that's the case that involved the Coke storage facility.

[00:18:05] Speaker 03:
And the plaintiff's notice said, look, you're violating the Clean Water Act in two ways.

[00:18:09] Speaker 03:
First, when you load Coke onto boats, it spills into a slough and flows into San Francisco Bay.

[00:18:17] Speaker 03:
And we talked to the Coast Guard, they indicated that you're

[00:18:20] Speaker 03:
been engaged in loading on these dates.

[00:18:23] Speaker 03:
And then they added a few more dates in their complaint.

[00:18:25] Speaker 03:
And then they said, you're also violating the Clean Water Act because you store coke on uncovered piles.

[00:18:32] Speaker 03:
And when the wind blows, it blows into the slough, flows into San Francisco Bay.

[00:18:37] Speaker 03:
So that gave the target a lot of specificity about what it was doing wrong and how to take corrective action, cover up the piles.

[00:18:45] Speaker 03:
Now compare that to the notice here, which has a few sentences on page ER-59.

[00:18:50] Speaker 03:
that purport to describe the factual basis for the claim.

[00:18:54] Speaker 03:
It says, your last published list is outdated and incomplete, which is worse than having no list at all, period.

[00:19:01] Speaker 03:
That's not even remotely comparable to the level of detail provided in Tosco Corp and Klamath Siskiyou.

[00:19:07] Speaker 03:
So those are additional reasons why the notice was deficient, but the district court was absolutely correct in holding that.

[00:19:15] Speaker 03:
It was deficient because the plaintiffs didn't identify the subject list

[00:19:19] Speaker 03:
that they believed was deficient, because that's an essential piece of information that we needed to know in order to address their grievance, which is the whole point of the notice requirement.

[00:19:30] Speaker 05:
So let me ask you this.

[00:19:31] Speaker 05:
If somebody was just randomly concerned for whatever reason about water quality standards, then they said, hmm, maybe I should go to the EPA's website.

[00:19:44] Speaker 05:
Maybe I'll have some information.

[00:19:49] Speaker 05:
listing notice or any kind of statement on the website the section what is it thirteen fourteen that the one requires the information thirteen fourteen yeah that that information can be found here if you just or do you have to use you know like i said you get on a website they have to usually have a fine

[00:20:19] Speaker 05:
inquiry and you have to punch in water quality standards.

[00:20:24] Speaker 05:
What would one see or how would one get the information?

[00:20:27] Speaker 03:
Right.

[00:20:28] Speaker 03:
Okay, well the statute says publish information about the water quality standards in effect.

[00:20:33] Speaker 03:
If you do a Google search that says water quality standards in effect under the Clean Water Act, the first thing that comes up is the website.

[00:20:40] Speaker 03:
If you look at the website, it has a menu of the United States and you can click on each state and it takes you to that state

[00:20:48] Speaker 03:
where the water quality standards are reproduced.

[00:20:51] Speaker 03:
Now, there's nothing in there that's specific that says this is specific to 304A6, 1314A6.

[00:20:58] Speaker 03:
It says this is being provided as a convenience to users, but that's all users because water quality standards serve many different purposes.

[00:21:09] Speaker 03:
But the point is that if you're interested in figuring out what water quality standards are in effect in a particular state,

[00:21:17] Speaker 03:
You would get to this website immediately by doing a Google search, and then you can click on the appropriate state.

[00:21:22] Speaker 03:
And if you think something's missing, you can send us a notice, and then we'll try to correct it, just as we did when plaintiffs finally divulged that the basis that their claim was focused on California and Hawaii.

[00:21:35] Speaker 03:
That was the first time we actually got some facts about their claim.

[00:21:39] Speaker 03:
And we went and we took corrective action.

[00:21:42] Speaker 03:
And as the district court said, that's the entire point of this notice requirement.

[00:21:46] Speaker 03:
But they had to provide that information in the notice, not for the first time in the complaint.

[00:21:51] Speaker 03:
And it didn't even contain that level of detail.

[00:21:54] Speaker 03:
The most basic fact that the focus of their complaint was California.

[00:21:59] Speaker 03:
So there's no question that this notice was deficient.

[00:22:01] Speaker 03:
And for that reason, the district court's judgment should be affirmed.

[00:22:04] Speaker 03:
The last thing I'll say is, yes, they can send a new notice and file a new complaint.

[00:22:13] Speaker 03:
They have to, if they want to challenge the website, they have to send us an notice first detailing the deficiency with reasonable specificity so that we can try to correct it in the 60 day waiting period.

[00:22:23] Speaker 03:
That's the point.

[00:22:24] Speaker 04:
Does the statute require current information or, you know?

[00:22:29] Speaker 03:
Well, it says we have to publish and revise as appropriate.

[00:22:36] Speaker 03:
And so water quality standards from the state are modified, updated periodically, and when they are,

[00:22:43] Speaker 03:
We update the website.

[00:22:46] Speaker 03:
Unless the court has any further questions, the district court's dismissal should be affirmed.

[00:22:50] Speaker 04:
Okay, thank you.

[00:22:54] Speaker 01:
You had a few minutes, counsel.

[00:22:55] Speaker 01:
Thank you, your honors.

[00:22:57] Speaker 01:
In response to your honor's question about the record, whether or not the FOIA request contains a reference to the 1978 and 1982 lists, it does.

[00:23:06] Speaker 01:
So supplemental excerpts of record 10.

[00:23:10] Speaker 01:
is a copy of the FOIA request.

[00:23:11] Speaker 01:
It explicitly identifies, it says, note, we are aware of such lists published in 1978 and 1982.

[00:23:17] Speaker 01:
This is in the FOIA request and even provides the title.

[00:23:22] Speaker 01:
In addition, in supplemental excerpts of record 12 is email correspondence between Council for Appellants and the FOIA officers

[00:23:31] Speaker 01:
which once again refers to EPA's 1978 list, so that is in the record.

[00:23:40] Speaker 01:
The statute does require current information, Your Honor.

[00:23:43] Speaker 01:
The statute requires EPA to annually publish the list, so it does have a duty to essentially maintain the current set of water quality standards on at least an annual basis.

[00:23:58] Speaker 01:
Council for EPA said,

[00:24:00] Speaker 01:
referred to the California situation and that once they were made aware of California, all of a sudden they were able to find seven missing water quality standards for the California webpage.

[00:24:11] Speaker 01:
There's no reason that EPA needed our Children's Earth Foundation to tell them what was missing from their website.

[00:24:18] Speaker 01:
It's EPA's duty to do that under the statute.

[00:24:20] Speaker 01:
There's no reason they had to wait for that level of specificity in the notice letter to fill the basic

[00:24:27] Speaker 01:
purpose of the notice statute.

[00:24:28] Speaker 01:
It needed two pieces of information, both of which it had, it's undisputed that they had this.

[00:24:33] Speaker 01:
The list and the water quality standards.

[00:24:35] Speaker 01:
The states have to submit water quality standards to the EPA.

[00:24:39] Speaker 01:
EPA has a statutory duty to review and approve them or reject them within a set time period.

[00:24:44] Speaker 01:
So this is not information that goes into a black hole.

[00:24:46] Speaker 01:
This is reviewed, compiled, monitored.

[00:24:49] Speaker 01:
Water quality standards are a core input

[00:24:51] Speaker 01:
to major programs on the Clean Water Act.

[00:24:53] Speaker 01:
So this is not just sort of a random set of information.

[00:24:56] Speaker 01:
EPA knows where to find this information.

[00:24:58] Speaker 01:
It just simply chose not to do that investigation, and I don't know why it didn't do so here.

[00:25:04] Speaker 01:
Lastly, nine seconds.

[00:25:07] Speaker 01:
We didn't need to send a new notice letter after the FOIA exchange.

[00:25:11] Speaker 01:
That would have served no meaningful purpose here.

[00:25:14] Speaker 01:
For purposes of notice letter, it would have just elevated form over substance and all.

[00:25:18] Speaker 01:
I'm out of time, Your Honor.

[00:25:19] Speaker 01:
Thank you very much.

[00:25:20] Speaker 05:
Thank you very much, Council.

[00:25:21] Speaker 05:
We appreciate your arguments this morning.

[00:25:23] Speaker 05:
And that concludes our calendar for today.

[00:25:26] Speaker 05:
So we will be in recess until tomorrow.

[00:25:28] Speaker 05:
Thank you all very much.

[00:25:31] Speaker 00:
All rise.