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Case 14-1046 et al.

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Carbon Sequestration Council et al.

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Petitioners.

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The Environmental Protection Agency and Gina McCarthy, Administrator.

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Mr. Llewellyn for the petitioners.

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Ms.

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Walter for the respondents.

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Mr. Llewellyn, before we start, the Court wants to apologize for imprisoning you in our elevator.

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But you know, we do enforce these word limits very strictly here.

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I'm well aware, Your Honor.

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I thank you for that.

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And I can tell you that being stuck in an elevator when I'm due in your courtroom is maybe not my worst nightmare, but it's pretty close.

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Let me say it's the one excuse we have to honor.

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Seated with me at council table this morning is Mr. Robert Van Voorhees of the Bryan Cave firm.

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May it please the court.

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This case involves our nation's efforts to control greenhouse gases, in particular carbon dioxide.

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Carbon dioxide that is captured before emission to the atmosphere and then injected underground for purposes of long-term storage or sequestration is already subject to extensive regulation under the Safe Drinking Water Act.

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At issue here is whether that same carbon dioxide is

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or need be also subject to regulation as a solid waste and potentially a hazardous waste under the Resource Conservation Recovery Act.

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EPA's position in this matter has been, to say the least, a moving target.

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And EPA's shifting positions have resulted in at least two fatal errors.

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Before we get to the fatal errors, could we start with standing?

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Could you give us your very best arguments about why the petitioners have standing here?

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Certainly, Your Honor.

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You have before you represented by Council the companies that are going to be implementing this whole program.

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I will point in particular to the Southern Company, which is a member of the Carbon Sequestration Council.

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The Southern Company is right now capturing carbon dioxide.

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and is right now injecting it underground for purposes of sequestration.

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So the Southern Company is, in fact, subject to EPA's determination that carbon dioxide that is sequestered, captured carbon dioxide that is sequestered, is a solid waste.

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I beg your pardon?

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In Class 6 wells?

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The Southern Company – no one currently, Your Honor, is using a Class 6 well.

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That is coming.

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The Southern Company would like the opportunity in the future to use Class 6 wells and to do so – Well, I'm – in looking at the affidavit, there is nothing to suggest that that is indeed the case.

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There's nothing to indicate that Southern is intending to inject that stream into Class 6 wells for purposes of geologic sequestration.

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in your submissions and your burden to show standing.

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There's nothing to indicate that that is their intention.

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Well, Mr. Esposito suggests that... I'm talking about the Esposito... Yes, Your Honor.

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That they are considering, from the Kemper facility, contracting to have some of that carbon dioxide stream sequestered in the Class 6 well.

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That decision has not been made yet.

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EPA's determination here that that is a solid waste will plainly place burdens upon that choice that the Southern Company would like to make free of having to worry about record regulation.

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What's the burden?

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So as I understand the government's position, if it's injected into a Class VI well, regardless of whether they call it solid waste or not, there's an exclusion or exemption or conditional exemption.

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There's an exemption from hazardous waste regulation, Your Honor.

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So what's that?

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Tell us what the injury is.

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The injury is, first of all, we have to certify, we have to repair, maintain, have available and so forth a certification to compliance

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with the terms of the conditional exemption.

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That in and of itself is a burden.

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If the court found that carbon dioxide is not a solid waste or if EPA had found it was not a solid waste, we would not even bear that burden.

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Now, at the EPA, that may not be... Would you not want any kind of conditional exemption?

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Have you asked... Let me back up one step.

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Have you asked us to reverse or just to vacate their decision?

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Well, we're asking you to vacate EPA's assertion of RECRA regulatory authority.

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Then we would be left with just nothing.

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We would not have a decision that there's no RECRA authority.

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We would just have no decision at all.

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Well, I'm not sure that's true, Your Honor, and I guess the example I would give you would be what I'll call the API 2 case, 216 Fed 3rd 50.

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This was also a RECRA case, and the issue there was the agency's assertion of regulatory authority under RECRA over certain oil-bearing wastewaters at petroleum refineries.

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And the upshot of the case was the court found that EPA's lacked a – its rationale was deficient under a state farm analysis.

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and so the court vacated EPA's assertion of authority over those waste waters and specifically said, if the agency wishes to assert authority in the future, it will need to provide a rational basis, a rational explanation for doing so.

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So I think our view of the case is that if the court grants the relief we're requesting,

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We would not be subject to record at all.

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Depending on the basis.

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Depending on the basis.

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I understand.

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And you want us to assume that we go most strongly in your direction and you're entitled to that assumption because it's a standing case.

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If the court agrees with our Chevron step one argument, then the agency can't go back and redo the thing.

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If the court says, well, we're not so sure about that, but the agency here is taking a position different than the one it took in the rulemaking and we're going to vacate for that reason.

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then the agency could go back and try to do something.

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Your view under those circumstances would be you're better off without a conditional exemption at all.

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Is that right?

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You wouldn't want a conditional exemption of any kind?

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We don't need a conditional exemption if we're not dealing with a solid waste.

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I'm sorry to pursue this just a little bit more.

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You say you're not challenging the conditional exemption.

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You're only challenging the finding that the carbon stream is a solid waste, right?

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Right, which is a necessary predicate for the exemption.

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Okay.

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But if you won the first, then you don't want an exemption at all?

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Is that right?

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You would never use the ability to have it?

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That way you would... You would not need an exemption from hazardous waste regulation because you don't have hazardous waste regulation unless you have a solid waste.

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So if we don't have a solid waste, we don't have any record regulation at all.

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What we do have is extensive regulation under the Safe Drinking Water Act, which we are not challenging here.

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We have no problem with that.

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I want to go back to the standing.

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I can't see it in the affidavit, anything to suggest that you're contemplating geologic sequestration with respect to Kemper.

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looking at the affidavit.

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I don't see anything there to suggest Class 6 wells, geologic sequestration.

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Where?

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I don't see it.

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There's nothing I could find in the affidavit to suggest that you were using or considering using the Class 6 wells.

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There may be something suggesting you might send some other people who might use them, but there's nothing to suggest that Southern is

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I'm trying to find it, Your Honor.

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As was I. I mean, I'll just tell you my concern in looking at this record.

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I don't see anything with respect to petitioners.

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The Association obviously doesn't have

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standing if the underlying petitioner doesn't or the underlying member.

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I don't see anything with respect to either petitioner indicating that they are using or intend to use Class 6 wells and that they will not be affected by the rule.

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Well, we think they're affected even if they're not using Class 6 wells because the Southern Company is currently engaged in the activity that EPA says involves.

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Well, that's where I think there's, I mean, EPA can speak to this.

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They're pretty clear in the disclaimers and saying the things that you think are covered, it seems to me they said pretty clearly are not covered.

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You're over reading their rule and they're pretty clear in what they say about their coverage and their coverage is class six.

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And it's, you're sweeping much more broadly than they are if I'm reading the record correctly.

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Well, I don't, I guess we will see what EPA has to say.

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I don't think you are reading it correctly because

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The agency has not argued, and I don't think it reasonably can argue, that its determination that carbon dioxide that is sequestered is a solid waste does not apply to what we are doing in classified wells.

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They have not argued, I don't think they reasonably can argue that.

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We'll hear what they have to say, but you're confirming, at least by

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failure to state anything to the contrary, that you have not submitted an affidavit indicating that either of your petitioners are or have clear plans on using Class 6 Wells.

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I can find nothing.

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Your point can mean nothing.

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And so you're saying your backup position now is it doesn't matter.

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Class 5 is good enough.

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Yes, that's absolutely right, Your Honor.

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I'm going to try to find that reference.

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We'll see what EPA says.

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I didn't hear them saying that.

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I didn't read them to say that, but we'll see what they say.

[00:10:28] Speaker 02:
Can I just ask a couple more?

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If I understand correctly, your two injuries are, one, the possibility that you would use a mixed stream, that is, a stream that goes some to Class 6 and some to Class 5, and as a result, you would not be able to use the exemption.

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Is that right?

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That's one of them, yes.

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And the other is that you have to file a certificate?

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Yes.

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And those are the only two?

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No, Your Honor.

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What else do you have?

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It goes beyond that.

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The agency, there is no way for us to test to determine whether our wastes are hazardous or not.

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Maybe this goes to what Judge Edwards just said.

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Assume for the moment that the agency has said, and I think it's clear they have said, that this only applies to streams going to Class 6 wells.

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And that even though you think, and you have a reasonable basis for thinking, that's hard to make an argument about CO2 going to one kind of well and not to another.

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They've said they're not saying it for anything other than six.

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And so if you sent it to five, they could not say that was a solid waste until there's some other kind of rulemaking.

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So you're protected until they make yet another rulemaking.

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So what is the injury other than

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the combined stream problem.

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Well, assuming that what we are managing is a solid waste according to the EPA?

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It's a solid waste only if it goes into a Class 6 well.

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Class 6.

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That's all they've said.

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That's all they said.

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I'm just reading it again.

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They've said it very explicitly.

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Assume that for a moment.

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Assume it's only a solid waste if it goes to a Class 6 well.

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Then what other injury do you have other than the two I mentioned?

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filing a, having to file a certificate and what to do in a situation where it's going to two different kinds of wells.

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Well, if the rule only applies to going to a Class 6 well?

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Yes.

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Well, Your Honor, I think under a saber technology analysis, our ability, our stated desire to, and I'm going to have to find for Judge Edwards the reference and the record, but as we've argued in our brief, our stated desire

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an expectation that we would like to use Class 6 wells in the future, because that's what's going to happen.

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I mean, this whole program is very early in the very early stages.

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Nobody is using a Class 6 well right now.

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I understand.

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I'm accepting that argument for this purpose or this part.

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So that's your argument that you plan to use or expect to use or close enough to that

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use a Class 6, and if you did, you would have two kinds of injuries.

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One, having to file a certificate, and two, not knowing what to do with a mixed stream.

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Well, yes, Your Honor, and even beyond that, even if we take advantage of the exemption, okay, the exemption does impose a burden, but even if we take advantage of the exemption, we have no protection from liability.

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If someone downstream

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does not, we as a generator of the carbon dioxide stream, have no protection if someone downstream makes a mistake, has some kind of minor compliance issue with what they do with the carbon dioxide stream.

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EPA said very clearly that the hazardous waste status, the regulated, no longer exempt status, relates back to the generator.

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And that's the problem.

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We as generators, in the first instance, have to figure out

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what's going to happen with this material and, you know, how can we protect ourselves?

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There is no way to protect ourselves because there's no way to test.

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And the exemption does not provide full protection for violations that may be committed by others.

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All right.

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Go on to the merits then.

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Thank you.

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Right, Your Honor.

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The two inconsistencies that we see here, and the most important one, Your Honor, is that EPA has abandoned the position that it took in the rulemaking, that the physical form aspect of the definition of solid waste question is governed by Chevron step one.

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That's what I don't see anywhere in the record.

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I don't see them taking the position that the physical form

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is compelled that they must decide that this is a solid waste.

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Can you point me to where in the record you think supports that proposition?

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What page?

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I think the best, we've cited a few references, I think the best is probably at Joint Appendix page 154.

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I mean it's at the last paragraph there.

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EPA was responding to the Council's

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request and argument that what EPA really should do is promulgate an exclusion from the definition of solid waste, not an exemption simply from hazardous waste regulation.

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And the agency's response was, the only way we could do that is if we found that the carbon dioxide is not discarded.

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The clear implication of that is that there was no way for EPA to say, well, let's see.

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We have a supercritical fluid.

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Does that meet the definition of solid waste or not?

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You said it's a clear implication.

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That's a lot farther from other cases where we've said the agency says we're not permitted to do this.

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I mean, I don't exactly see this.

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If you're looking at JA 154, all they say is they don't agree.

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They don't agree with your conclusion.

[00:16:04] Speaker 02:
That's not the same as saying that they are compelled

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to reach the decision they've reached?

[00:16:08] Speaker 03:
Well, they also say, Your Honor, that the solid waste regulatory exclusion would need to be based upon a finding that CO2 streams sent to UIC Class 6 well for purposes of GS are not being discarded.

[00:16:19] Speaker 02:
Yeah, that's on the definition discarded, right?

[00:16:22] Speaker 02:
Right, and that's a separate... That's a separate question which you are not arguing that they thought they were compelled on.

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You're only arguing, right, your argument about that they felt compelled

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is limited.

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On the physical form.

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Physical form.

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That is correct.

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I don't even know whether this is an argument about physical form or about discarding, but in any event, all they say is they don't agree.

[00:16:43] Speaker 02:
They don't agree with you.

[00:16:45] Speaker 02:
Somebody can disagree for more than one reason, one reason being in their discretion they don't agree and one reason being that they are compelled and this doesn't tell me anything about that.

[00:16:55] Speaker 03:
Let's put it this way, Your Honor, and I would also cite JA-27, which is the final rule preamble

[00:17:01] Speaker 03:
Hold on.

[00:17:04] Speaker 02:
27.

[00:17:07] Speaker 02:
Yeah, so this one, I think, really goes completely against you.

[00:17:11] Speaker 02:
This is in the middle column where it says, the RCRA definition of solid waste encompasses other discarded material and does not speak to materials such as supercritical fluids.

[00:17:24] Speaker 02:
Does not speak to is exactly what we say is what leads you to Chevron step two.

[00:17:31] Speaker 02:
Those are the words we say.

[00:17:33] Speaker 02:
When a statute doesn't speak to a particular issue, we say, well, that means we're applying Chevron 2.

[00:17:39] Speaker 02:
Why does this make you feel that they think they are stuck at Chevron 1?

[00:17:44] Speaker 03:
Well, because the agency never says, there are a couple of ways of looking at this thing.

[00:17:52] Speaker 03:
Here's one way.

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Here's the other way.

[00:17:54] Speaker 03:
Or maybe there are three different ways of looking at this thing.

[00:17:56] Speaker 03:
And here's why we are exercising our discretion in the way we are.

[00:18:01] Speaker 03:
Here's the weighing and balancing that we're doing of competing interests.

[00:18:04] Speaker 02:
We've never said they have to say that.

[00:18:06] Speaker 02:
What we've said is you have to avoid saying that you're compelled.

[00:18:10] Speaker 02:
But we haven't, we certainly haven't said that they have to say it's ambiguous in order to

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for us to think that they're exercising.

[00:18:19] Speaker 03:
Well, if the agency thought it was ambiguous, then, I mean, which is what they're saying now.

[00:18:24] Speaker 02:
They're saying they have to say that, that they have to have said below that we think it's ambiguous.

[00:18:30] Speaker 03:
Well, they have to give some indication that there is some doubt.

[00:18:33] Speaker 04:
Well, they say it does not speak.

[00:18:38] Speaker 04:
I don't know what else you would say.

[00:18:40] Speaker 03:
Then they go on to say it doesn't matter that what they're saying, Your Honor, is it's not enumerated in the definition.

[00:18:47] Speaker 02:
They're saying it's of a similar kind.

[00:18:49] Speaker 02:
That's the normal kind of Chevron 2 analysis.

[00:18:52] Speaker 02:
Now, we've said, I'm just going to give you a quote from one of our opinions, which seems to reject the argument you're making here.

[00:18:59] Speaker 02:
This is from the Brain Treaty Electric Light Department opinion.

[00:19:02] Speaker 02:
The petitioners contend that Chevron deference is unwarranted because the Commission did not expressly state that the settlement agreement it was interpreting was ambiguous.

[00:19:13] Speaker 02:
But the Chevron two-step is a dance for the Court, not for the Commission.

[00:19:18] Speaker 02:
We said that it's not enough.

[00:19:20] Speaker 02:
You can't get us into a support it only on Chevron one.

[00:19:26] Speaker 02:
simply by pointing out that the agency didn't expressly say it's ambiguous.

[00:19:30] Speaker 02:
Are those the two best that you have, the middle that we just talked about from JA-27 and the bottom of 154?

[00:19:38] Speaker 03:
I believe so, Your Honor.

[00:19:40] Speaker 03:
I mean, we cite in our brief, I think, another place or two.

[00:19:46] Speaker 02:
That's an interpretation of a regulation, the other one.

[00:19:51] Speaker 03:
Well, every time the agency responded to comments on this question, the agency said the statute, it is what it is.

[00:20:01] Speaker 02:
They may have said it is what it is, but I'm not sure of that.

[00:20:05] Speaker 02:
They didn't actually say those words.

[00:20:07] Speaker 02:
In so many words.

[00:20:07] Speaker 02:
Okay, go ahead.

[00:20:11] Speaker 03:
Additionally, many years ago, the agency adopted the position that the only gases

[00:20:19] Speaker 03:
that can be solid waste under RECRA are those that are either containerized, that is placed in individual containers, or if not containerized, that are condensed to liquid form.

[00:20:32] Speaker 03:
In contrast, and without explanation, here the agency says that carbon dioxide gas, which is neither containerized nor condensed to liquid form, but instead compressed to a supercritical state,

[00:20:47] Speaker 03:
nonetheless is a solid waste.

[00:20:49] Speaker 02:
In those cases, they didn't address the semi-state, did they?

[00:20:56] Speaker 03:
They did not specifically address supercritical.

[00:20:59] Speaker 02:
When they said it has to be condensed to a liquid form, they weren't necessarily excluding it being condensed to the form we're talking about here.

[00:21:06] Speaker 03:
Well, Your Honor, they said that the only

[00:21:10] Speaker 03:
The only gases that are subject to regulation of solid waste are those two that I just mentioned.

[00:21:16] Speaker 02:
But that was not an issue in any way.

[00:21:18] Speaker 02:
No one had said, well, what about that?

[00:21:20] Speaker 03:
What about supercritical fluids?

[00:21:21] Speaker 02:
No, that is correct, Your Honor.

[00:21:27] Speaker 02:
All right.

[00:21:27] Speaker 02:
Further questions from the bench?

[00:21:30] Speaker 02:
Thank you.

[00:21:30] Speaker 02:
Thank you.

[00:21:39] Speaker 05:
Good morning, Your Honors.

[00:21:41] Speaker 02:
Are you in the elevator, too?

[00:21:42] Speaker 05:
I was not, but I would like to say my EPA counsel is the one who did report someone being stuck in the elevator to the security guard.

[00:21:49] Speaker 02:
All right, extra credit.

[00:21:51] Speaker 05:
I told the opposing counsel they should forfeit just for that.

[00:21:54] Speaker 05:
Again, I'm Michelle Walter with the Department of Justice, and my EPA counsel from OGC is Rob Stachowiak.

[00:22:01] Speaker 05:
There are maybe five or six points that I would like to- Start with standing.

[00:22:06] Speaker 05:
Yes, I will.

[00:22:07] Speaker 05:
And I wanted to start actually with Judge Edwards' question concerning his concern that petitioners are overreading the rule.

[00:22:15] Speaker 05:
And in that regard, I'd like to provide the court with some joint appendix sites that hopefully clarify that and support that petitioners are indeed overreading the rule here.

[00:22:24] Speaker 05:
So, let me start with saying that EPA issued this conditional exclusion for a very narrow and circumscribed purpose, which was to remove any barriers specifically for the injection of

[00:22:41] Speaker 05:
one form of carbon dioxide, the supercritical form, into one type of well, the class 6, for one activity, geologic sequestration.

[00:22:51] Speaker 05:
And EPA made very clear in the record, Judge Edwards, that the conditional exclusion was not applying beyond that.

[00:22:58] Speaker 05:
So I wanted to point the Court to, first of all, to the Joint Appendix at 27, column 1.

[00:23:07] Speaker 05:
And similar statements are also in the joint appendix on page 165.

[00:23:14] Speaker 05:
And there, EPA said that in the situation that petitioners seem to be concerned about, if carbon dioxide is used for its intended purpose to be injected into Class II wells for enhanced oil recovery, it's EPA's expectation that such injection would not be covered by this type of conditional exclusion that we have here.

[00:23:40] Speaker 05:
The Class II well is not a Class VI well.

[00:23:44] Speaker 02:
Also, I'd like to point out on... There it says would not generally be a waste management activity.

[00:23:49] Speaker 05:
Correct, correct.

[00:23:50] Speaker 05:
So that would not be subject to RCRA.

[00:23:53] Speaker 02:
The activities that... That's not only not finding that it's solid, that's finding that it's not solid.

[00:23:59] Speaker 05:
That it's not what, I'm sorry?

[00:24:01] Speaker 02:
So the way it's worded, it sounds like an express decision that it would not be a waste management rather than that we're simply not discussing the point.

[00:24:10] Speaker 05:
Yeah, correct.

[00:24:11] Speaker 05:
I wouldn't say express decision here because, again, we're not dealing with Class II, but we're trying to provide the regulated community with assurance that in that type of situation where they're conducting enhanced oil recovery, that's not something that would be covered under RCRA Subtitle C. And what does that do for their Class V wells?

[00:24:26] Speaker 02:
I think those are experimental or something.

[00:24:28] Speaker 05:
Correct.

[00:24:28] Speaker 05:
Those are experimental, and it would be the same situation.

[00:24:30] Speaker 05:
Again, we didn't – we weren't looking at classified wells in this rulemaking, and so EPA would need to make an independent determination in that situation as to what type of activity they were doing, for what purpose.

[00:24:42] Speaker 02:
What about their argument that you're not protecting them as a generator if someone downstream screws up?

[00:24:48] Speaker 05:
Yes, let me find that there were some citations I wanted to give for that also.

[00:24:54] Speaker 05:
First of all, we explain in our brief that the certification only requires the generator to certify the activities that are under their control.

[00:25:03] Speaker 05:
So in the situation that Mr. Lallen was discussing,

[00:25:07] Speaker 05:
where there could be a co-mingling situation or somebody downstream does something to the waste, those are not, first of all, if it's a co-mingling situation, that's not something that the conditional exclusion can be used for.

[00:25:20] Speaker 02:
Second... They don't seem to be arguing about that.

[00:25:21] Speaker 02:
They seem to be arguing about the stream going to two different kinds of wells.

[00:25:25] Speaker 02:
Or somebody later picking up a co-mingling.

[00:25:28] Speaker 02:
Where's the provision that you just mentioned that the generator only has to certify to things under its control?

[00:25:34] Speaker 05:
The regulatory provision?

[00:25:37] Speaker 02:
Tell me the JA page, that'll be good enough.

[00:25:40] Speaker 05:
It's actually, I can give you the actual regulatory language.

[00:25:45] Speaker 05:
The regulation itself is in the final rule.

[00:25:53] Speaker 02:
On which section?

[00:25:55] Speaker 05:
The joint appendix, page 36, is the actual regulation.

[00:26:01] Speaker 05:
And in the first, going into the second column there, it provides the language for the generator, and then in the second column it provides the language for the owner operators that they would need to certify to.

[00:26:14] Speaker 02:
Right.

[00:26:15] Speaker 02:
Just tell me, you're on little sub two, right?

[00:26:19] Speaker 02:
I'm sorry?

[00:26:20] Speaker 02:
Little sub two?

[00:26:21] Speaker 02:
261.4.

[00:26:21] Speaker 02:
261.4 H4I.

[00:26:29] Speaker 05:
So clear at the bottom of the first column, going up into the top of the second column.

[00:26:34] Speaker 02:
Where's the words about the generator?

[00:26:37] Speaker 05:
In four little i, it says any generator of a carbon dioxide stream who claims that a carbon dioxide stream is excluded under this paragraph must assign a certification as follows and gives the language.

[00:26:52] Speaker 02:
I'm just looking for the part that says only the part that I have control over.

[00:26:56] Speaker 05:
That would be, let me just read through this.

[00:27:06] Speaker 05:
And I have transferred the carbon dioxide stream in compliance with or have contracted with a pipeline operator or transporter to transport the carbon dioxide stream in compliance with the following regulations.

[00:27:19] Speaker 05:
And what EPA explained in the rulemaking is that in response to comments on the proposal, that industry was concerned that they might have to certify the activities beyond their control.

[00:27:31] Speaker 05:
That's what EPA said.

[00:27:33] Speaker 05:
Where's that?

[00:27:34] Speaker 05:
I'm sorry.

[00:27:37] Speaker 05:
One moment, Your Honor.

[00:27:43] Speaker 05:
Oh, thank you.

[00:27:44] Speaker 05:
Joint Appendix, page 29.

[00:27:47] Speaker 05:
And that is in the second column, about midway down.

[00:27:54] Speaker 05:
There's a paragraph that begins, EPA is making these revisions to better reflect.

[00:28:02] Speaker 02:
Actions over which each party has control.

[00:28:04] Speaker 05:
Yes.

[00:28:05] Speaker 05:
Does that answer your question, Your Honor?

[00:28:08] Speaker 02:
Well, is there another line that says generators who don't have control don't have to worry?

[00:28:13] Speaker 05:
Not that if they don't have control they don't have to worry, but here if a generator

[00:28:19] Speaker 05:
is not sure if their activity is going to fall under the conditional exclusion, they don't have to use the conditional exclusion.

[00:28:26] Speaker 02:
If they want to use it, they only have... Their argument is that if it's solid waste, they really don't have a choice.

[00:28:32] Speaker 02:
Now that you've decided it's solid waste and that they don't use the exclusion, they will be in trouble.

[00:28:38] Speaker 02:
They will have to go to

[00:28:40] Speaker 02:
extreme efforts to show, to determine that there's no hazardous waste, right?

[00:28:45] Speaker 02:
That's their injury claim.

[00:28:47] Speaker 05:
Which, the facts of that injury claim are not correct because, again, as the Court has pointed out, they haven't shown that they're actually going to be using these Class 6 wells.

[00:28:58] Speaker 05:
But if you look also at the declarations, they don't claim that their injury is from having to sign the certification itself.

[00:29:05] Speaker 05:
All the declaration, I believe it's Mr. Esposito's declaration says, is that they are concerned about activities down the pipeline, and those types of activities would be out of their control, so they wouldn't sign the certification in the first instance.

[00:29:23] Speaker 05:
And even if they did sign it and something happened down the pipeline, if you look in the Joint Appendix at page 152,

[00:29:31] Speaker 05:
EPA addressed the situation where something might happen, I don't know if it was this specific situation, but for example, if something might happen down the pipeline, that the supercritical stream is mixed with the hazardous stream, so the conditional exclusion would be lost.

[00:29:47] Speaker 05:
EPA addressed Mr. Llewellyn's enforcement concern.

[00:29:52] Speaker 05:
And there, EPA said they can appreciate the commenter's concern over the loss of the conditional exclusion,

[00:29:58] Speaker 05:
due to the action of subsequent handlers of the CO2 stream.

[00:30:02] Speaker 05:
EPA's Office of Enforcement and Compliance Assurance is unable to provide definitive assurances outside the context of a formal enforcement proceeding that the government will not proceed with an enforcement response to a specific individual violation.

[00:30:17] Speaker 05:
It goes on and then it says, however, EPA can, and has previously done so for other RCRA rules, exercise discretion to decide when and how to respond or not to respond to a given violation based on the agencies.

[00:30:30] Speaker 02:
Not much comfort.

[00:30:32] Speaker 05:
It's as much comfort as the government can obviously give without having a factual context.

[00:30:35] Speaker 02:
It's a different issue.

[00:30:36] Speaker 02:
So now we're not talking about whether the government's doing the right thing or the wrong thing.

[00:30:39] Speaker 02:
We're just discussing a standing question.

[00:30:42] Speaker 02:
And I thought you were going to tell me that EPA's position is that if the generator certifies and then something out of its control screws up, I thought you were going to say, well, that's no problem.

[00:30:59] Speaker 02:
EPA has agreed it's out of your control, so you're OK.

[00:31:02] Speaker 02:
But actually what you're telling me is it's out of your control and now it's within our control and it's our discretion.

[00:31:10] Speaker 02:
And that's not the same thing at all.

[00:31:13] Speaker 05:
You're right, it's not the same thing.

[00:31:14] Speaker 05:
But EPA did as much as they could do in this situation, looking forward to a hypothetical situation like that, to try to provide industry as much assurance as they could that they would look at several factors.

[00:31:25] Speaker 05:
And if somebody signed a certification in good faith to the activities that they could control,

[00:31:31] Speaker 05:
and something happens downstream out of their control, that may remove the conditional exclusion, but doesn't necessarily mean that EPA is going to decide in that particular factual context to initiate an enforcement action.

[00:31:43] Speaker 02:
And that's purely speculative.

[00:31:44] Speaker 02:
They would surely be better off in those circumstances if this carbon stream were not a solid waste, right?

[00:31:51] Speaker 02:
Under those circumstances, you would have no discretion.

[00:31:55] Speaker 05:
I lost you on the last part of that.

[00:31:56] Speaker 02:
If, for example, we were to hold your wrong on the merits, which we assume for purposes of standing, then under those circumstances, they would be better off because then enforcement would not be in the EPA's discretion.

[00:32:11] Speaker 02:
It would be barred, correct?

[00:32:13] Speaker 04:
In that situation, yes, but again, their declarations... What your answer would be, they're not proposing to use Class 6 Wells.

[00:32:20] Speaker 04:
Exactly.

[00:32:20] Speaker 04:
Their declarations... They're no better or worse off.

[00:32:22] Speaker 04:
They're not covered.

[00:32:23] Speaker 05:
Right.

[00:32:23] Speaker 05:
Their declarations don't support that specific type of injury.

[00:32:26] Speaker 04:
They're not asserting that they're in this class.

[00:32:28] Speaker 04:
I'm looking at it again.

[00:32:29] Speaker 04:
They're just not making that assertion.

[00:32:31] Speaker 04:
And the best counsel has said is that, well, but we might think about it.

[00:32:36] Speaker 04:
But I don't know that that can support standing.

[00:32:39] Speaker 04:
We might think about it.

[00:32:40] Speaker 04:
Anybody can think about anything, anytime.

[00:32:42] Speaker 02:
Correct.

[00:32:42] Speaker 02:
Just trying to disentangle the two arguments.

[00:32:44] Speaker 02:
So if you assume for the moment they had said, tomorrow we're going to start with Class 6 Wells, then you agree there is a potential injury that could be rectified by the court.

[00:32:55] Speaker 05:
Not based on these declarations.

[00:32:56] Speaker 05:
Again, their declarations haven't specifically said that.

[00:32:58] Speaker 02:
I'm saying, assuming the declarations said, we are going to start Class 6 Wells tomorrow, then there could be a problem here, right?

[00:33:07] Speaker 05:
If the declaration then also went on to say we are burdened by simply having to sign this declaration, and as the declaration then says, we think there could be situations where the waste stream might get commingled downstream.

[00:33:22] Speaker 05:
But again, that's purely speculative.

[00:33:24] Speaker 02:
You're establishing a rule for Class 6 wells, right?

[00:33:28] Speaker 02:
I'm sorry?

[00:33:28] Speaker 02:
EPA has established

[00:33:32] Speaker 02:
a rule to govern Class 6 wells.

[00:33:35] Speaker 02:
That's what this is all about, right?

[00:33:36] Speaker 02:
Class 6 wells.

[00:33:36] Speaker 05:
The prior Class 6 rulemaking under the Safe Drinking Water Act.

[00:33:41] Speaker 02:
And you're saying there's no one has yet started using Class 6 wells, is that right?

[00:33:45] Speaker 05:
Correct.

[00:33:46] Speaker 02:
And now you're working on a conditional exemption for Class 6 wells, right?

[00:33:51] Speaker 05:
Right, because there are some that are in the process of being constructed or potentially permitted, so we want to facilitate that.

[00:33:58] Speaker 02:
But none who are members of these entities, is that what you're saying?

[00:34:03] Speaker 05:
Correct.

[00:34:04] Speaker 02:
So these people could challenge this as soon as they indicate that they are going to start trying Class 6 well, is that right?

[00:34:13] Speaker 05:
I question whether they would be out of time at that point.

[00:34:15] Speaker 02:
Well, it can't be that they don't have standing now because they haven't done it yet and then don't have it standing later because they waited too long.

[00:34:22] Speaker 02:
That can't be, can it?

[00:34:24] Speaker 02:
Is that your position?

[00:34:25] Speaker 05:
No, no, it's not.

[00:34:26] Speaker 05:
I was just thinking procedurally whether they would actually be able to.

[00:34:29] Speaker 05:
But again, they would have to make sure that they met their burden of providing the precise facts to show what their injury is.

[00:34:37] Speaker 02:
Isn't the idea of having a conditional exemption that you're trying to encourage

[00:34:42] Speaker 02:
people to do this and particularly people who haven't done it yet.

[00:34:46] Speaker 02:
So wouldn't this be the right time to be, that is before you've started, to know what the situation is and to challenge the rule if you think that the rule is incorrect?

[00:35:02] Speaker 05:
Yeah, I don't think we've said that this isn't the right time for them.

[00:35:05] Speaker 05:
What we are struggling with trying to understand is

[00:35:11] Speaker 05:
what their real injury is, especially when you take a step back and look at the fact that, again, EPA was removing the barriers of the RCRA Subtitle C regulations, and they were trying to make this simpler for industry so that these types of carbon sequestration activities can get off the ground without industry having to worry about

[00:35:34] Speaker 05:
complying with Subtitle C. And the fact that this conditional exclusion, and we mentioned this in our brief, EPA analyzed could save industry each year close to $5 million to over $7 million.

[00:35:47] Speaker 05:
So the fact that they haven't tackled the cost savings of this, they also haven't said that just the certification itself, just signing the certification itself is a burden.

[00:36:00] Speaker 05:
and instead they're relying on purely speculative situations that have not happened, that were not before the agency, and that's not sufficient.

[00:36:08] Speaker 01:
Is it necessary for the agency to find that this supercritical fluid is a solid waste before it could actually

[00:36:22] Speaker 01:
have an exemption or a conditional flow.

[00:36:24] Speaker 01:
In other words, the agency has made that finding, that this is a solid waste that would be regulatable under RCRA.

[00:36:33] Speaker 05:
in this particular circumstance, not as a general matter.

[00:36:36] Speaker 05:
So the solid waste finding that EPA made, which, yes, they have to make as a predicate to issuing a conditional exclusion, that solid waste finding only applies to supercritical injected into a classics well for geological sequestration.

[00:36:52] Speaker 05:
It does not apply to any other wells, to any other forms or any other types of activities.

[00:36:58] Speaker 04:
So going back to... My understanding of that is, in part,

[00:37:03] Speaker 04:
If I understand the agency correctly, part of the rationale is that in these other circumstances, you don't consider it discarded, because it isn't clear whether it will be, in fact, discarded or otherwise used.

[00:37:15] Speaker 01:
Correct.

[00:37:15] Speaker 04:
I mean, that's the agency's thinking, and so the class six in the agency's mind makes sense.

[00:37:20] Speaker 04:
That's all we're doing.

[00:37:21] Speaker 04:
It was saying class six, because we know for sure that's discarded, so the definitions are all met.

[00:37:27] Speaker 04:
They are over-reading the rule, at least the way you, the brief, the regulation and your assertions now say.

[00:37:34] Speaker 04:
They want it, and I think it's because they otherwise have serious standing problems.

[00:37:39] Speaker 04:
They're over-reading the rule to be included, but they're not otherwise folks who are interested in class six, then they don't assert it.

[00:37:47] Speaker 04:
Right.

[00:37:47] Speaker 04:
I just can't find it.

[00:37:51] Speaker 02:
Can I ask how will it be possible, if you rule now that it's, and you have that this is solid, how will it be possible to argue that in a class five or a class two well, it's not solid?

[00:38:04] Speaker 02:
I get the part about the discarded, but what about the solid?

[00:38:09] Speaker 05:
Let me give you a couple of joint appendix sites that explain that and try to explain it to the best of my layman's understanding.

[00:38:17] Speaker 05:
In different well situations,

[00:38:22] Speaker 05:
and different carbon dioxide forms, whether those forms and that situation can support a determination that it's discarded and that's solid waste is going to depend on a number of factors, including what the constituents were in the carbon dioxide that was released, what type of capture technology was used, what type of facility was emitting the substance.

[00:38:52] Speaker 05:
All of those technical determinations are factored in, in addition to what is the purpose of the activity.

[00:38:58] Speaker 05:
So when you're looking at another well, like Class 2 or Class 5, EPA would have to look at is that activity intended to abandon, dispose, describe?

[00:39:09] Speaker 02:
I understand that.

[00:39:09] Speaker 02:
I'm asking to exclude that argument for the moment.

[00:39:11] Speaker 02:
I'm only asking you to think about the why is supercritical carbon dioxide

[00:39:17] Speaker 02:
in Class 6 different as a matter of physical form from supercritical carbon dioxide in Class 2?

[00:39:26] Speaker 05:
I don't know that the supercritical form is different, but that's where you get into what I was mentioning about the activity being different.

[00:39:36] Speaker 05:
So if the activity is for enhanced oil recovery, that's not an activity that's intended for abandonment or discarding.

[00:39:41] Speaker 02:
I know.

[00:39:42] Speaker 02:
So what they're saying is any decision you make now about whether it's solid is something that's going to hold with respect to other classes.

[00:39:52] Speaker 02:
Now, there'll still be an argument that it's not discarded, but the first argument that it's solid will have been decided.

[00:39:59] Speaker 05:
No, Your Honor, because the determination as to whether it's discarded is part of determining whether it's a solid waste.

[00:40:06] Speaker 02:
This is the part I'm not understanding.

[00:40:10] Speaker 02:
Why does the use to which it's going to be put make any difference as to whether it's solid or not?

[00:40:16] Speaker 05:
If you look at the definition of solid waste, which is in 42 USC 6903 paragraph 27.

[00:40:27] Speaker 05:
So I'll kind of go through the definition here.

[00:40:33] Speaker 05:
When you say, it says, means any garbage refuge sludge, et cetera, from a waste treatment plant, et cetera, or other discarded material, including solid, liquid, semi-solid.

[00:40:45] Speaker 05:
In looking at that definition, the court in the AMC-1 decision

[00:40:50] Speaker 05:
said that when you're looking at other discarded material, you look at the plain meaning, and that means abandoned, disposed of.

[00:40:57] Speaker 05:
So that's why in order to determine if something is a solid waste, EPA has to look at is the activity abandoning, disposing, et cetera, of that particular material.

[00:41:11] Speaker 02:
Yeah.

[00:41:12] Speaker 02:
I think I understand all of that, but I don't think you're sort of accepting the parameters of my question.

[00:41:17] Speaker 02:
So my question is,

[00:41:19] Speaker 02:
They've made two arguments here.

[00:41:21] Speaker 02:
One is that it's not really discarded, right?

[00:41:24] Speaker 02:
And the other is that it's not really solid, right?

[00:41:29] Speaker 02:
Or liquid, or semi-solid.

[00:41:31] Speaker 02:
It's something else altogether, and therefore can't be included.

[00:41:35] Speaker 02:
It's not an included.

[00:41:37] Speaker 02:
Whether it's discarded or not, it couldn't be included.

[00:41:39] Speaker 05:
I see.

[00:41:39] Speaker 05:
So you refer, yeah, I misunderstood when you said solid.

[00:41:42] Speaker 05:
I thought you were referring to the solid waste.

[00:41:44] Speaker 05:
You're referring to the including phrase that has those other forms.

[00:41:47] Speaker 05:
I apologize for not understanding.

[00:41:49] Speaker 05:
EPA did not need to conclude or look at whether these were contained or uncontained gases.

[00:41:59] Speaker 05:
And the supercritical form, and again, let me point you to some places in the record that explain what the supercritical form is.

[00:42:07] Speaker 05:
It's something that has the properties of a liquid and a gas.

[00:42:12] Speaker 02:
I got it.

[00:42:12] Speaker 02:
I took physics.

[00:42:12] Speaker 02:
I actually got that point.

[00:42:14] Speaker 02:
You give it more than I do.

[00:42:15] Speaker 02:
The question I'm asking is, assuming what they're complaining about is,

[00:42:19] Speaker 02:
that at least part of what you're deciding here necessarily has to bleed over into decisions about other kinds of wells.

[00:42:28] Speaker 02:
Now, of course, you can say, and you have, that this only applies to Class 6, so we're going to have to start over again with Class 2.

[00:42:35] Speaker 02:
So even if we're going to come to the same place, it's only by precedent, and that's not enough for standing.

[00:42:40] Speaker 02:
I understand that.

[00:42:41] Speaker 02:
But I'm just wondering how it would be possible to say that a supercritical

[00:42:48] Speaker 02:
in a class II well is solid, liquid, semi-solid, or contained gaseous, something like that.

[00:43:02] Speaker 02:
How you could say it is not in a class II well, but is in a class VI well.

[00:43:09] Speaker 05:
That you're correct.

[00:43:11] Speaker 05:
I think that although we don't EPA hasn't looked specifically at that situation, the super critical form, if it's the same, it would be the same in a class two versus a class six.

[00:43:21] Speaker 05:
But you still then have to get to the other part of the solid waste determination, which is whether that is actually discarded.

[00:43:28] Speaker 04:
whether it's reusable in some form.

[00:43:30] Speaker 04:
And if it's not, then it's not going to be the same in class too well as it is in the classroom.

[00:43:35] Speaker 01:
But if that were the... If it turns on being discarded, then does just the mere fact of geological sequestration mean that it's permanently discarded?

[00:43:46] Speaker 01:
I thought I understood Mr. Llewellyn to be saying that it could be removed from even

[00:43:53] Speaker 01:
a class four well and reused.

[00:43:56] Speaker 01:
So is the agency saying that once discarded in this class six well, it cannot be reused?

[00:44:02] Speaker 05:
That is the, not that it can't be reused.

[00:44:05] Speaker 05:
EPA did say it could be, there's nothing in the conditional exclusion that precludes the carbon dioxide from later being withdrawn.

[00:44:13] Speaker 05:
But that isn't relevant to whether it's discarded in the first instance, because the entire purpose of geological sequestration is to isolate something

[00:44:23] Speaker 05:
at least permanently, if not semi-permanently, and the Esposito declaration in Petitioner's briefing even acknowledges that in paragraph six.

[00:44:31] Speaker 05:
It says geologic sequestration is to isolate the carbon dioxide permanently from the atmosphere.

[00:44:39] Speaker 05:
And these Class VI wells, where this carbon dioxide is injected, goes up to half a mile below the Earth's surface.

[00:44:46] Speaker 05:
It's intended to prevent these emissions from reaching an underground source of drinking water.

[00:44:51] Speaker 05:
So the fact that that is the epitome of abandonment, that's why EPA very clearly in the record kept saying that these types of waste in these types of wells, or excuse me, these types of streams in these types of wells,

[00:45:05] Speaker 05:
are in fact discarded because they are abandoned.

[00:45:08] Speaker 05:
And the fact that they could potentially be withdrawn, which again there weren't any facts during the rulemaking to actually support that, isn't relevant to that determination of whether it's discarded in the first instance.

[00:45:19] Speaker 05:
And I believe that the AMC 2 court and the API court rejected the argument that potential reuse or beneficial reuse would prevent a material from being classified as discarded.

[00:45:35] Speaker 05:
Thank you, Your Honor.

[00:45:38] Speaker 05:
We'd ask that the petition be dismissed, of course.

[00:45:40] Speaker 05:
Thank you.

[00:45:42] Speaker 02:
Any time left?

[00:45:44] Speaker 02:
All right, we'll give you just another couple minutes, but just to discuss the standing issue again that's been raised.

[00:45:52] Speaker 02:
So they say two things.

[00:45:54] Speaker 02:
One is, as Judge Edwards was asking, that there didn't seem to be a place in Mr. Esposito's declaration where he talked about any kind of plan to use Class 6.

[00:46:05] Speaker 02:
And now the government points out there doesn't seem to be any place where Mr. Esposito mentions any harm from merely having to certify.

[00:46:14] Speaker 02:
So if you could address both of those, that would be helpful.

[00:46:18] Speaker 03:
Well, on page 10 of Mr. Esposito's declaration, I guess it's the last sentence, it says that SES Southern

[00:46:30] Speaker 03:
will be injured by being put in a position of not being able to comply with the certification requirement of the final rule if it decides to contract for the geological sequestration by a third-party recipient of some of the supercritical carbon dioxide sent from the Kemper County Energy Facility through the commingled pipeline.

[00:46:46] Speaker 03:
It does not specifically say class six.

[00:46:49] Speaker 03:
But that's, in the future, that's what it's going to be.

[00:46:52] Speaker 04:
Right now, its only demonstration will... You mean a third party might be subject to the regulation?

[00:46:56] Speaker 04:
Is that what you're saying?

[00:46:58] Speaker 04:
Well, I'm saying that in the future – Is that what Esposito was saying, that a third party might – if they contract with a third party, they might be subject to the regulation?

[00:47:06] Speaker 03:
Well, they would be as well as Southern.

[00:47:09] Speaker 03:
I mean, because Southern is the generator.

[00:47:11] Speaker 03:
Right.

[00:47:11] Speaker 03:
And as the generator – the generator has responsibilities that attach from the point of generation through management in – or through sequestration.

[00:47:21] Speaker 04:
What I'm saying is – I'm sorry that I'm

[00:47:24] Speaker 04:
sounding ignorant here, but I'm not understanding what the asserted injury is with respect to this connection to a third-party contractor?

[00:47:34] Speaker 04:
In other words, what is Esposito suggesting is the injury?

[00:47:38] Speaker 03:
What he's suggesting, Your Honor, is, look, this is what we would like to have the opportunity to do free of record regulation.

[00:47:48] Speaker 03:
And if we do decide to do this,

[00:47:53] Speaker 03:
We will not, if we send it to a commingled pipeline where there is gas going, CO2 going to various types of wells, we will not be able to take advantage of the exemption because we cannot certify as to exactly where our CO2 went because it goes into a commingled pipeline.

[00:48:16] Speaker 03:
So now, as Southern Company is in a position of saying, well,

[00:48:21] Speaker 03:
We can't go that route, so we need to figure out if we're managing a hazardous waste or not.

[00:48:26] Speaker 03:
So we have to test, but there's no way for us to test.

[00:48:29] Speaker 03:
And even if we do test and it turns out that it's hazardous and we send it to, first of all, we can't take advantage of the exemption, but even if we could take advantage of the exemption, we're not protected from violations that may occur downstream.

[00:48:51] Speaker 03:
I note that EPA has not identified any difference whatsoever between either the discard issue or the form issue between sequestration in a Class V well and sequestration in a Class VI well.

[00:49:04] Speaker 03:
But putting that issue aside, in the future, what are we going to use?

[00:49:09] Speaker 03:
What is Southern Company, if they're going to do sequestration, is going to be in a Class VI well.

[00:49:15] Speaker 03:
We are very concerned about the effects of 42 U.S.

[00:49:20] Speaker 03:
Code, Section 6976A.

[00:49:22] Speaker 03:
If we can't challenge this now, we may very well not be able to.

[00:49:27] Speaker 03:
be able to challenge it in the future because of 6976A1 statute of limitations.

[00:49:32] Speaker 03:
I know that the Court has generally relied on that in ripeness cases, but it really ought to be a factor in the Court's deliberations here on the standing question as well, it seems to me.

[00:49:42] Speaker 03:
Is there a ripeness question?

[00:49:44] Speaker 03:
I don't believe there is, Your Honor.

[00:49:47] Speaker 02:
Maybe the question is whether this is ripe in a situation where you're not

[00:49:52] Speaker 02:
indicating yet any interest in doing this.

[00:49:54] Speaker 02:
I'm looking for this as a way to protect you from the statute of limitations problem.

[00:49:58] Speaker 02:
Is there an argument that's not right?

[00:50:00] Speaker 03:
I don't believe there's a right in this problem here, Your Honor.

[00:50:06] Speaker 03:
We only have to show that there is a substantial likelihood, a substantial probability that EPA's action created a demonstrable risk of injury to our particularized interests.

[00:50:17] Speaker 03:
I think we've done that here.

[00:50:19] Speaker 03:
We are the folks that are capturing this material.

[00:50:23] Speaker 03:
We would like the opportunity to use Class 6 wells free of record regulation.

[00:50:29] Speaker 03:
That means that EPA also has shaped the competitive environment in which we're operating, and I'll rely on the Saber Inc.

[00:50:35] Speaker 03:
BDOT case for the proposition that to the extent the rule shapes the competitive environment and will affect our business decisions in the future,

[00:50:46] Speaker 03:
we've shown standing.

[00:50:47] Speaker 03:
There's also an opportunity injury that the court has recently recognized in Sierra Club VEPA 755, 5th or 968 at 975 to 76.

[00:50:58] Speaker 03:
That involved a case where the Association could not identify specific refineries that were taking advantage of an exclusion at that particular time, but had expressed a very definite interest in wanting to be able to do so

[00:51:15] Speaker 03:
in the future.

[00:51:17] Speaker 03:
And the court found that the interveners had standing on the basis of a so-called opportunity injury.

[00:51:23] Speaker 03:
I think we're talking about a very similar thing here.

[00:51:28] Speaker 03:
May I have one moment on the merits, Your Honor?

[00:51:38] Speaker 02:
Yes, go ahead.

[00:51:42] Speaker 02:
Actually, still on standing.

[00:51:44] Speaker 02:
Well, then I have a question about standing.

[00:51:45] Speaker 02:
All right.

[00:51:45] Speaker 02:
So it seems to me I have a better place than the government pointed to with respect to its argument about generators.

[00:51:52] Speaker 02:
In the final rule that are registered, notice that JA26, it says, under the final rule, the certification statement that the generator would sign is specific to the activities within the generator's control.

[00:52:07] Speaker 02:
Right.

[00:52:07] Speaker 02:
That sounds like you're protected with respect to things outside your control.

[00:52:12] Speaker 03:
That's only as to what we are certifying as to what is under our control.

[00:52:17] Speaker 03:
Your Honor, you also need to look at JA 29, 79, FedReg 357, JA 29.

[00:52:25] Speaker 03:
Here's what the agency said.

[00:52:27] Speaker 03:
A violation of a condition, condition of the

[00:52:30] Speaker 03:
exemption at any point in the management of a CO2 stream that is otherwise hazardous would result in that CO2 stream being subject to all applicable subtitle C regulatory requirements from the point of generation.

[00:52:45] Speaker 03:
So it's fine that we only have to certify to our compliance with certain things, but we are still liable for violations that may occur downstream from us because if someone violates doesn't

[00:52:59] Speaker 03:
cross a T or dot an I downstream from us, then we have been managing a hazardous waste from the point of generation, and we as the generators are on the hook and in a world of hurt.

[00:53:15] Speaker 02:
Very briefly, may I, Your Honor?

[00:53:17] Speaker 02:
Well, I'll tell you what, let me just ask whether anybody on the Court has a question about the merits in that case.

[00:53:24] Speaker 02:
Let you sit down.

[00:53:25] Speaker 02:
Thank you very much.

[00:53:25] Speaker 02:
Thank you, Your Honor.

[00:53:26] Speaker 02:
All right.

[00:53:27] Speaker 02:
We'll take the matter under submission.

[00:53:28] Speaker 02:
Thank you both.

[00:54:04] Speaker ?:
.

[00:54:26] Speaker ?:
.