[00:00:01] Speaker 05: Case number 14-1150, Center for Regulatory Reasonableness Petitioner versus Environmental Protection Agency. [00:00:08] Speaker 05: Mr. Hall for the petitioner, Mr. Doyle for the respondent. [00:00:31] Speaker 01: Good morning. [00:00:32] Speaker 01: Good morning. [00:00:33] Speaker 01: May it please the court. [00:00:33] Speaker 01: My name is John Hall. [00:00:35] Speaker 01: I'm counsel for petitioner, Center for Regulatory Reasonableness. [00:00:39] Speaker 01: I'd like to reserve five minutes for rebuttal. [00:00:42] Speaker 01: With me today are Gary Cohn and Philip Rosen, and we're also petitioners' counsel in Iowa-Dade City, Sweet EPA. [00:00:50] Speaker 01: The prior Clean Water Act, Section 5, and our indecision, that's a focal point in this case. [00:00:55] Speaker 01: As the courts aware, that decision vacated three ad hoc NPDES rule modifications that sought to prohibit bacterial mixing zones in the practice known as blending. [00:01:06] Speaker 01: The court's finding EPA's actions irreconcilable with the adopted rules and the blending provision beyond EPA's statutory authority. [00:01:14] Speaker 01: The COR respectfully asserts that there are two reasons that our petition for review should be granted. [00:01:21] Speaker 01: The record before the court is clear. [00:01:24] Speaker 01: EPA rendered and published a final decision to non-acquiesce and to continue imposing the vacated rule prohibitions outside the Eighth Circuit, causing the same direct and immediate harm now to that regulated community, and once again without rulemaking, number two, that this decision committed to additional ultra-various acts. [00:01:46] Speaker 01: It disregarded the Act's judicial review provision, which does not allow acquiescence in this instance on Section 5 and R and B1E decisions, and created a more restrictive technology-based and minimum NPDES rule approach based on geographic region or location. [00:02:05] Speaker 01: And that's contrary to the Act's national uniformity requirement. [00:02:10] Speaker 01: Let's talk about... Yes, Your Honor. [00:02:14] Speaker 05: For us to have jurisdiction, we have to fit this into re-promulgation of an effluent limitation or other limitation, simplifying slightly. [00:02:26] Speaker 05: It's very hard for me to see how a decision, even though incredibly clear, it's not quite as clear as one might expect, but a non-acquiescence decision where it comes down straight from the top [00:02:41] Speaker 05: universal, we won't acquiesce. [00:02:43] Speaker 05: How is that a re-promulgation of an ethical limitation? [00:02:48] Speaker 05: It's a non-acquiescence decision. [00:02:50] Speaker 01: Well, Your Honor, it's a decision post-Iowa League, just like occurred, for example, Medicap, which was the recent Clean Air Act case that this court dealt with. [00:02:59] Speaker 01: In the district court? [00:03:02] Speaker 05: There was no question of satisfying 1369. [00:03:06] Speaker 01: Well, in this particular instance, post-Iowa League, [00:03:11] Speaker 01: EPA had a decision to make. [00:03:13] Speaker 01: Were they going to follow that decision nationwide and then not continue to impose the rule prohibitions that the Eighth Circuit said were illegal? [00:03:24] Speaker 01: Or would they say, no, we're going to just continue that same set of requirements? [00:03:30] Speaker 01: That's a second decision. [00:03:31] Speaker 01: We would submit to the court that that certainly would qualify as a re-promulgation, a decision to once again, after looking at the negative court ruling, [00:03:43] Speaker 01: to decide to continue going on and impose those requirements. [00:03:47] Speaker 01: These are requirements, again, that we never adopted in law. [00:03:50] Speaker 05: Let me put it another way. [00:03:53] Speaker 05: In litigation under the rule and the [00:04:01] Speaker 05: Is there any reason why any party would point to the non-acquiescence decision as contributing [00:04:18] Speaker 05: the presence of the litigation. [00:04:20] Speaker 05: In other words, I wouldn't, in litigation under the original rule and the interpretation in the Grassland letter, encapsulated in the Grassland letters, wouldn't all that just proceed as if Iowa League, of course, would be important as an interesting precedent, but no one would have to turn to [00:04:45] Speaker 05: non-acquiescence decision as something that we often have in the city. [00:04:53] Speaker 01: Well, Your Honor, I think if I understand your question, you're asking whether or not anyone else in the agency would point to its authority to not acquiesce as its ability to continue imposing the requirements. [00:05:07] Speaker 01: The agency certainly would point to that, and they would state that the Eighth Circuit decision doesn't control, which is what they've done, [00:05:17] Speaker 01: and that they can continue to impose the same. [00:05:20] Speaker 03: In the permitting process, I think the question is, this has no legal impact, I think is what we're getting at in terms of the order. [00:05:32] Speaker 01: If that's the question that's being asked, legal impact. [00:05:34] Speaker 01: Thank you. [00:05:35] Speaker 01: I'm sorry, Judge Williams, I certainly did not pick up the nuance of the question, my oversight. [00:05:41] Speaker 01: The legal consequences are certainly the same. [00:05:44] Speaker 01: We've got community after community who, just as in the Iowa League case, is in the process of trying to determine how to comply. [00:05:52] Speaker 01: What am I allowed to construct? [00:05:55] Speaker 01: How do I situate? [00:05:56] Speaker 03: But there are no additional legal consequences from the non-acquiescence. [00:06:01] Speaker 03: In other words, no one can, when there's a judicial review proceeding, say, of a denied permit, [00:06:09] Speaker 03: there's going to be EPA or the government can't rely on the non-acquiescence letter. [00:06:19] Speaker 03: It's meaningless. [00:06:20] Speaker 03: In other words, it's like, and we've had a couple cases recently that the government relies on national mining, but other cases going back before where [00:06:29] Speaker 03: It's as if it doesn't exist when the ultimate judicial review proceeding occurs. [00:06:34] Speaker 01: Well, Your Honor, to indicate that it doesn't exist would, if you will, not respect the actual reality of this situation. [00:06:45] Speaker 01: When the agency, after the Iowa League decision, sent out to the state and regional and delegated states and to the regional offices, [00:06:53] Speaker 01: the death statement, which is, you know, we finally got after a year and a half of trying to get records from the agency, which specifically said inside the Eighth Circuit we will respect the decision. [00:07:07] Speaker 01: Outside the Eighth Circuit we will continue to apply our quote, existing rule interpretation. [00:07:13] Speaker 01: The existing rule interpretation, of course, is the one that was vacated by the Eighth Circuit. [00:07:18] Speaker 01: Now we have [00:07:20] Speaker 01: states and regions telling permittees, if you do X, meaning, for example, blend, if you decide as part of your CSO treatment program that you're going to build blending to comply, after you design it and go to build it, I'm going to tell you it's illegal. [00:07:40] Speaker 01: So the cities, it's no different than the situation that caused Iowa League to occur. [00:07:45] Speaker 01: The cities are left in the spot of either [00:07:48] Speaker 01: bowing to the position that the agency has announced that it's going to continue to impose these requirements, or risking their money and then ending up in an obvious condition later on to fight the issue. [00:08:05] Speaker 01: And that is a recognized harm in numerous cases for this court. [00:08:12] Speaker 01: It's really no different. [00:08:13] Speaker 05: That's why the non-acquiescence decision. [00:08:15] Speaker 05: My question didn't have to do with standing or finality or rightness. [00:08:19] Speaker 01: I'm sorry. [00:08:20] Speaker 05: My question did not have to do with standing, finality, or rightness. [00:08:25] Speaker 05: Only with respect to satisfying the statutory standard under 1369. [00:08:30] Speaker 01: Oh, whether or not the position would be, for example, considered a promulgation. [00:08:38] Speaker 01: I mean, this 1369. [00:08:39] Speaker 01: A limitation of an effluent or other limitation. [00:08:42] Speaker 01: An effluent limitation or other limitation. [00:08:44] Speaker 01: Well, certainly a restriction on [00:08:47] Speaker 01: whether or not you're going to probably interpret the bypass rule to prohibit a certain design practice at a treatment plant is a limitation or other limitation on the operation. [00:09:15] Speaker 01: Well, yes, Your Honor. [00:09:17] Speaker 01: I mean, that certainly is – in terms of the way the Clean Water Act is structured under Section 509B1E, there's only allowed to be one circuit court decision on a particular issue before – Well, EPA's argument on this, if I say what the government's position was on the brief, is that when we're talking about illegal rulemaking, [00:09:40] Speaker 01: We don't have to follow 509b18 decisions. [00:09:45] Speaker 01: They also made an indication that if there's only a single party that's raised the challenge into 509b18, then the national applicability doesn't apply. [00:09:56] Speaker 01: The statute doesn't say that, nor does the consolidation provision of 18 U.S. [00:10:00] Speaker 01: Code 2112A. [00:10:03] Speaker 01: You consolidate, of course, to ensure there can only be one decision. [00:10:08] Speaker 01: Of course, if there's already only one petitioner regarding a particular decision or action, then there's already only one decision that can be rendered. [00:10:17] Speaker 01: Under any circumstances, you can't have two circuit courts deciding it. [00:10:22] Speaker 01: I would point out even the last... [00:10:27] Speaker 05: Suppose the validity of Grassley policy came up in the course of a permanent issue in the Second Circuit. [00:10:47] Speaker 05: Can you say that the Second Circuit can't come out differently from the Eighth Circuit in that scenario? [00:10:57] Speaker 01: Well, let me break that down into two parts, George Williams. [00:11:03] Speaker 01: If a party had never previously challenged the policy and it came up to the Second Circuit, well, then it would be a new issue. [00:11:11] Speaker 01: And if somebody was attacking it under 509B1E, [00:11:14] Speaker 01: There you have it. [00:11:15] Speaker 01: It's certainly the first decision. [00:11:17] Speaker 01: If there's an already existing decision, by the way, existing positive or negative, I mean, if the issue was raised and somebody lost that issue before a circuit court, 509B1A, then most certainly, [00:11:33] Speaker 01: the agency or whoever is litigating the issue subsequently is going to raise, you can't have a second decision. [00:11:39] Speaker 05: Well, I'm sure it's such a, and you might well make that argument, it's like the favorable decision, but... You're right, a 509 on its face doesn't allow... Well, I would suggest a 509 on its face does not allow that. [00:11:54] Speaker 01: 509 expressly says, [00:11:57] Speaker 01: that an issue that could have been raised within 120 days of the promulgation or the rule adoption cannot be raised at the time of permitting and cannot be raised in an enforcement action. [00:12:11] Speaker 01: So if in a rulemaking case the issue is decided, then the plain language of 509 precludes another party 120 days after [00:12:27] Speaker 01: the date of the decision from raising another case. [00:12:30] Speaker 01: Or else you'd have the serial, what, whether or not you win or lose a 509 decision, then you just go to another circuit court and say, well, [00:12:38] Speaker 01: I now want to challenge it now, but in a permitting context, the 128 provision precludes that on its face. [00:12:45] Speaker 01: So that's why, in fact, the Iowa League of Cities brought its case, because its permittees were being adversely affected. [00:12:53] Speaker 01: They did not want to have to deal with this permit by permit and risk money not knowing whether or not something was lawful or not. [00:13:03] Speaker 01: So they're allowed to take an illegal rulemaking challenge. [00:13:06] Speaker 01: If somebody's amending a legislative rule, amendments to legislative rules are legislative rules, as this court has ruled in many cases. [00:13:14] Speaker 01: And so they went forward on the matter, challenged it, to try to clarify it. [00:13:21] Speaker 01: in a single case and then forcing what permittees to relitigate over and over as if the case didn't occur, that would actually, at least in my view, promote legal rulemaking as opposed to rulemaking. [00:13:38] Speaker 01: Because if it was a regular rulemaking case, no one would tolerate [00:13:43] Speaker 01: ignoring a 509B1E decision. [00:13:46] Speaker 01: As a matter of fact, I think this is the only case I've ever seen in the history of the Clean Water Act where a 509B1E decision wasn't followed. [00:13:53] Speaker 03: You've mentioned a couple times the build it and then the permits denied. [00:13:58] Speaker 03: Can you [00:14:00] Speaker 03: Can you explain the timing as that usually occurs? [00:14:04] Speaker 01: Oh, certainly. [00:14:05] Speaker 01: As a matter of fact, the affidavits that we have are directly on point on that. [00:14:10] Speaker 01: One good example is Allentown, Pennsylvania, who's under a federal administrative order right now to comply with eliminating overflows occurring upstream in their system. [00:14:23] Speaker 01: One of the solutions that they could immediately implement is blending at the wastewater plant to bring more flow in so the overflows don't occur. [00:14:32] Speaker 01: So EPA has them under an order with ongoing noncompliance, and we have been asking repeatedly from the agency, will the agency authorize and allow blending to occur as a solution? [00:14:44] Speaker 01: Of course, we now know the answer is no. [00:14:47] Speaker 01: But that's causing an immediate compliance problem. [00:14:50] Speaker 01: And it's immediately affecting their ability to what? [00:14:54] Speaker 01: Do we now just go ahead and design the thing we know they're going to say is illegal, keep ourselves possibly in noncompliance longer, or do we just say, OK, we'll spend $37 million more and not blend? [00:15:11] Speaker 01: North Hudson Sewage Authority. [00:15:13] Speaker 01: And that's in New Jersey. [00:15:15] Speaker 01: They were a group of 15, 18 municipalities in New Jersey that got CSO permits last year to do what's known as long-term control planning. [00:15:26] Speaker 01: That's the basic design planning for eliminating combined sewer overflows. [00:15:31] Speaker 01: And we all live in Washington, D.C. [00:15:33] Speaker 01: We know D.C. [00:15:33] Speaker 01: just is looking to spend $2 billion to try to eliminate its combined sewer overflows. [00:15:39] Speaker 01: So the Jersey cities are in the midst of doing this. [00:15:42] Speaker 01: And during the permitting action, EPA informed the state of New Jersey, blending is still illegal. [00:15:50] Speaker 01: I am not going to allow the CSO communities to do that as part of their solution of the long-term control plan. [00:15:58] Speaker 01: So they are under a five-year schedule to get these long-term control plans in, these designs, these plans, these solutions. [00:16:05] Speaker 01: If they violate that schedule and submit a plan that is unapprovable, they're in violation of the permit, [00:16:12] Speaker 01: They now know that EPA has said this solution's illegal. [00:16:17] Speaker 01: So do they now? [00:16:20] Speaker 02: When you keep, I don't understand how this works then. [00:16:26] Speaker 02: Once EPA, you say once EPA says that or makes that statement that you can't do blending during the course of the permitting process, then why can't you formally challenge [00:16:40] Speaker 02: bring a formal challenge then to that particular decision if there's been such a decision made? [00:16:47] Speaker 01: That's a very good question Judge Wilkins. [00:16:50] Speaker 01: It comes down to part of the way the Clean Water Act program is structured with delegated states. [00:16:56] Speaker 01: When EPA delegates the program to the state agencies, the states issue the permits. [00:17:02] Speaker 01: If EPA sends a letter or tells the state during the permitting process, remember it's state permitting process now, that [00:17:10] Speaker 01: We're not going to allow that. [00:17:12] Speaker 01: You need to tell the communities that it's illegal. [00:17:16] Speaker 01: If the state does not do that, EPA formally takes the permit, objects to it, and then takes over the permit. [00:17:25] Speaker 01: But state programs get all their money from EPA to operate. [00:17:29] Speaker 01: So when they get one of these, we will object unless you do X letters, they invariably [00:17:36] Speaker 01: Just do what the agency says. [00:17:38] Speaker 01: The permittees, as of right now, do have objections raised on EPA telling the state to do this and the state saying it's illegal in the final permit. [00:17:52] Speaker 01: That is still ongoing. [00:17:54] Speaker 01: The last answer we got from the state was, we need to know from the federal government whether or not it's lawful or not. [00:18:01] Speaker 01: They're telling us what to do. [00:18:03] Speaker 01: If I'm in my state permit process in front of a state judge, the state just reports what EPA said, and the state follows it. [00:18:12] Speaker 01: So they are looking to this case, actually, for the resolution of what they are allowed to do in New Jersey. [00:18:18] Speaker 01: Because if they are allowed to blend, the communities will save literally a billion dollars on the CSO treatment for the entire area. [00:18:28] Speaker 01: If they are not allowed to blend, [00:18:30] Speaker 01: Things are going to be a lot more expensive, and we're going to have a lot more CSOs going into the water for a lot longer, because it's a more difficult solution to eliminate them one at a time, as opposed to just bring more flow into the plant and try to process it. [00:18:43] Speaker 01: But it's the way the system works. [00:18:45] Speaker 01: They put leverage on the states, force them to do what they do, and once they do it, EPA doesn't have to defend it. [00:18:51] Speaker 01: It's now in state court, so it's not an EPA defense. [00:18:54] Speaker 01: That's why we brought the Iowa League case, because the state of Iowa, if you go back and look at the record, in the case, Chuck Carell, who ran the state water program, filed an affidavit, and it was very fortunate that he did. [00:19:09] Speaker 01: Chuck put in the emails he had gotten from EPA Region 7 and headquarters, which said, if you don't object to blending and prevent it, we're going to start objecting to your permits. [00:19:22] Speaker 01: So in other words, the screws were being turned on the state agency officials. [00:19:26] Speaker 03: What's the procedure by which, I guess in the state court process you're saying, that you could get judicial review of the legality of what's being? [00:19:35] Speaker 01: Well. [00:19:36] Speaker 03: In other words, say, under the government's view, you should lose this case because there's another, and I'm going to press them on this, there's another avenue to getting judicial review of this. [00:19:49] Speaker 03: What's your response to that? [00:19:51] Speaker 01: uh... it's well that's certainly not in before you spend all the money you're talking about well first off the the amount of time that we've got to get everything done this state process is not going to be completed within that time frame so we're under a narrower time frame so it's the delay the delay is part of it it's not the building so much as the delay the building and delay allentown is not even a state process it's a federal administrative order telling them to eliminate certain overflows [00:20:20] Speaker 01: And then they're being told on the side, you can't do it via blending. [00:20:23] Speaker 03: And why can't Allentown challenge that, to follow up on Judge Wilkins' question? [00:20:29] Speaker 03: And again, maybe I should be asking EPA this, and I will. [00:20:32] Speaker 01: They are, Your Honor. [00:20:34] Speaker 01: Allentown is a member of CRR. [00:20:36] Speaker 03: So the challenge is via us. [00:20:39] Speaker 03: But in that process, can't individual permit denials, in other words, be [00:20:44] Speaker 01: There is no individual permit denial in that instance. [00:20:46] Speaker 01: They're doing it under an enforcement order. [00:20:50] Speaker 01: It's kind of like a version of Sackett and Hawks and all of that. [00:20:54] Speaker 01: You know, you get these multiple ways. [00:20:56] Speaker 03: I know you're trying to get, and I understand this, the music from the Supreme Court in recent years has been [00:21:02] Speaker 03: in your favor, but it's a different kind of situation, and I think we really need to know the details. [00:21:10] Speaker 03: Again, maybe I'll ask EPA this, of when and how. [00:21:13] Speaker 03: If you can't challenge it in this proceeding, when and how can it be challenged, and I think that's going to be an important factor in this case. [00:21:21] Speaker 01: And I realize, Your Honor, that I'm out of time. [00:21:22] Speaker 01: So I'll just reserve the rest of my, unless there's more questions, reserve the rest of my time for rebuttal. [00:21:28] Speaker 01: But I would make just one last point. [00:21:31] Speaker 01: The Clean Water Act was structured to allow these kind of challenges to be brought up front. [00:21:38] Speaker 01: So you wouldn't be doing them serially in permitting. [00:21:42] Speaker 01: You wanted to know what the nationally applicable rules are. [00:21:46] Speaker 01: If they put one out, legally or illegally, you have 120 days to render your appeal. [00:21:53] Speaker 01: And if you don't, and that decision goes final, the rulemaking action goes final, in permitting and thereafter in enforcement, you're not supposed to be able to challenge it. [00:22:03] Speaker 01: So we are here because this is the time and the place where you're supposed to be under the Clean Water Act for a nationally applicable regulatory requirement. [00:22:14] Speaker 01: Thank you. [00:22:23] Speaker 04: May it please the Court, I'm Andrew Doyle with the Department of Justice. [00:22:26] Speaker 04: With me today are Richard Witt and Mary Ellen Levine of the Office of General Counsel at EPA. [00:22:32] Speaker 04: In this case, the question is not whether judicial review will be available, but rather whether judicial review is available now. [00:22:40] Speaker 04: I borrow that phrase from this Court's decision in National Mining Association, and I think it's particularly apt here. [00:22:46] Speaker 04: In that case, the court dismissed a challenge to an EPA guidance document that advised its staff to ask state permitting authorities to assess certain environmental conditions when they're issuing NPDES permits there in the surface mining context. [00:23:02] Speaker 04: And the guidance document the court held lacked finality under the Bennett v. Spear test. [00:23:09] Speaker 04: The court found in particular that the guidance document lacked legal consequences. [00:23:15] Speaker 04: And lacking legal consequences or lacking legal effect, Judge Williams, is similar to the issue under the promulgation part of the judicial review provision. [00:23:26] Speaker 05: a bit in time to the Eighth Circuit decision where the EPA argued very staunchly that there was no jurisdiction, particularly that the requirements of 1369 were not satisfied. [00:23:43] Speaker 05: Suppose that in the process of this permitting process, [00:23:51] Speaker 05: some objects to the policy embodied in the drastic letters. [00:24:02] Speaker 05: What is the EPA going to say? [00:24:09] Speaker 04: What will EPA say? [00:24:10] Speaker 04: Well, EPA has not made a decision what it will say, first of all, but the process allows all stakeholders, including the facility, including the community affected by the operations at the wastewater treatment plant, to comment during the permit process. [00:24:27] Speaker 04: If EPA steps in under its veto rights under the Clean Water Act, [00:24:31] Speaker 04: EP will have to enunciate his views, give the state a chance to decide whether it wants a hearing, whether the state agrees with the EPA. [00:24:41] Speaker 04: If the state doesn't agree with the EPA, then the statute says that the permitting authority passes to the EPA, and then the EPA can take a more public comment, can render a decision, explain [00:24:54] Speaker 04: What the scope of acquiescence, if any, from Iowa League that it's looking at can respond to comments about blending? [00:25:02] Speaker 05: I'm asking a more particular question. [00:25:06] Speaker 04: OK. [00:25:06] Speaker 05: That is, suppose there's an attack on the, I'll call it the grassroot policy. [00:25:16] Speaker 05: Are you saying the EPA [00:25:24] Speaker 05: We will not be arguing that. [00:25:44] Speaker 04: How do I know is because those letters are vacated. [00:25:48] Speaker 04: And if EPA, EPA never relied on those letters in any proceeding to my knowledge in any event, but they certainly could not rely on those letters now that they've been vacated. [00:25:57] Speaker 04: EPA would have to defend its policy that it applies in a permit situation on its own merits. [00:26:04] Speaker 04: Under the Act, under the regulations, under the administrative record, it can't point to [00:26:10] Speaker 04: the letters it wrote to Senator Grassley. [00:26:12] Speaker 04: It can't point to the letters challenged here. [00:26:14] Speaker 04: It can't point to the death statement. [00:26:16] Speaker 03: If that is the policy that inevitably is going to be applied, just stick with me on that and I understand your point to the contrary on that. [00:26:25] Speaker 03: Their point, I think, is why should we have to spend millions of dollars now [00:26:31] Speaker 03: I mean, millions of dollars to get later judicial review wouldn't be more efficient to just get judicial review upfront of whether the policy is legal or not. [00:26:42] Speaker 03: If it is, then everyone knows what it is and goes for it. [00:26:46] Speaker 03: If it's not, then that saves everyone a lot of time as well. [00:26:49] Speaker 03: I think that's the substance of their concern is we're going to have to spend a lot of money and waste a lot of time to get the ultimate judicial review, and we should get that now. [00:27:00] Speaker 03: What's the problem with that? [00:27:02] Speaker 04: Well, the problem with that is similar to the court addressed this in national mining. [00:27:07] Speaker 04: If I might quote, the court said, well, regulated parties may feel pressured to voluntarily conform the behavior because they contend the writing is on the wall. [00:27:18] Speaker 04: about what will be needed to obtain a permit, the court said that there has been no order compelling the regulated entity to do anything. [00:27:28] Speaker 03: But again, put aside citing national mining. [00:27:30] Speaker 03: They're concerned about the real world of not ad law treatise discussion. [00:27:37] Speaker 03: They're concerned about we're going to have to spend a lot of money to get the ultimate judicial review. [00:27:43] Speaker 03: And is that true or not? [00:27:46] Speaker 03: I don't know about the amount of money that they'll have to spend, but I will say this. [00:27:50] Speaker 03: When in the permitting process is judicial review available? [00:27:55] Speaker 03: I think we could use an overview of when, under your theory, the judicial review will occur. [00:28:02] Speaker 03: Right. [00:28:03] Speaker 04: judicial review will occur before the state if the state is the one issuing the final permit the state will have to defend if it's relying on something the EPA said or EPA's rationale the state will have to defend that rationale in state court in state court and that's where those final permit decisions are reviewed there might be intermediate [00:28:24] Speaker 04: administrative law judges in the state, but ultimately the final state decision is reviewable in state court. [00:28:30] Speaker 04: And we cite that in our brief, that's clear. [00:28:33] Speaker 03: If EPA vetoes and then ultimately takes over the permitting because the state... And where is the state supreme court has the final say on that? [00:28:42] Speaker 04: Correct. [00:28:42] Speaker 04: Absent cert to the supreme court, that's correct. [00:28:45] Speaker 03: But the US Supreme Court could review to the extent they're making an interpretation of federal law. [00:28:51] Speaker 03: That's correct. [00:28:51] Speaker 03: That's correct. [00:28:52] Speaker 03: And those cases always go through state court. [00:28:55] Speaker 04: They do. [00:28:56] Speaker 04: They do. [00:28:56] Speaker 03: When the state's the permanent authority. [00:28:58] Speaker 03: Correct. [00:28:58] Speaker 04: And their administrative record will have statements from EPA. [00:29:02] Speaker 04: And like I said earlier, it will also have records for and against blending. [00:29:06] Speaker 04: There are arguments that it's good for preventing backups into buildings. [00:29:10] Speaker 04: It's good for getting rid of sanitary sewer overflows. [00:29:14] Speaker 04: But on the flip side, there's also arguments that there's no assurance that the pathogens are being treated correctly because you're going around the secondary treatment units. [00:29:24] Speaker 04: Let the community make their case before the state on those issues. [00:29:28] Speaker 04: I think the Court is also understanding that the EPA, when it makes a final permitting decision after a veto, then that is reviewable directly in the Court of Appeals under the... And what's happening in the meantime while all these things are... [00:29:42] Speaker 05: Well, the limitations of the permit are being reviewed. [00:29:48] Speaker 04: Correct. [00:29:49] Speaker 04: So most of these facilities, I think every facility in the standing affidavits here are under an existing NPDES permit. [00:29:56] Speaker 04: So they have authority to operate and have been operating. [00:30:00] Speaker 04: But until there's an issuance of a renewed NPDES permit setting a fixed effective date for compliance and imposing specific conditions on discharge, a facility need not modify any plant designs or upgrade their treatment controls to meet those conditions. [00:30:17] Speaker 04: Yeah. [00:30:18] Speaker 04: Well, I'm reading from my notes because I want to be very careful about this. [00:30:23] Speaker 04: And the notes are, frankly, from a prior brief we filed in this court back in 2003. [00:30:27] Speaker 04: What was the unless clause there? [00:30:31] Speaker 04: The unless clause is... The unless, I thought, read it again maybe. [00:30:35] Speaker 00: Yes. [00:30:36] Speaker 04: Until issuance of an NPDES permit setting a fixed effective date for compliance and opposing specific conditions on discharge, a POTW, publicly owned treatment work, need not modify plant designs or upgrade treatment controls to meet those conditions. [00:30:56] Speaker 04: It often works where, yes, you have to spend money to go through the permit process. [00:31:00] Speaker 04: We don't dispute that. [00:31:01] Speaker 04: But the FTC and other finality cases make clear that's not what the finality doctrine is concerned with. [00:31:07] Speaker 04: But before anybody is required to redo their plant, [00:31:12] Speaker 04: They have to have a final permit decision requiring that. [00:31:16] Speaker 04: Okay. [00:31:16] Speaker 04: And they will have full rights during the permit process to make their views known including their views on... So your point is they don't actually have to change anything. [00:31:25] Speaker 03: I just want to get this nailed down. [00:31:27] Speaker 03: They don't have to... Change anything in terms of how the plan operates until... [00:31:33] Speaker 03: the permit has been denied, I suppose it would be. [00:31:38] Speaker 03: Denied or granted on conditions that they would contend agree with them. [00:31:41] Speaker 03: And when that permit, let's say, I'll use the word denied as shorthand for what you just said, when that permit's denied, [00:31:49] Speaker 03: They have two options then. [00:31:51] Speaker 03: They can sue in state court, assuming it's a state permitting process, or they can comply. [00:31:57] Speaker 04: That's correct. [00:31:59] Speaker 03: And the timing, I guess it's the timing they're concerned about. [00:32:03] Speaker 03: They'll have to either shut down the plant or spend the money unless the state permitting process moves along with some expedition. [00:32:12] Speaker 03: And I guess your response to that is, that's tough. [00:32:16] Speaker 03: I don't mean that pejoratively, but that's basically what you're saying. [00:32:19] Speaker 03: I think there's some element to that, that's correct. [00:32:21] Speaker 03: And they're saying that puts us in a position that the Supreme Court in recent years [00:32:28] Speaker 03: The music of Sackett and other cases has said people shouldn't be put in that position of spending millions of dollars to alter their plants or land, or the Sacketts were obviously an unusual case, but to get the judicial review of whether what you're telling them is legal or not. [00:32:46] Speaker 03: In other words, when you deny the permit or the state permitting authorities deny the permit, [00:32:50] Speaker 03: They're saying you're doing that on the basis of an illegal interpretation of the statute and regs, etc. [00:32:56] Speaker 03: And they're saying, but we're not going to be able to get a court to say that before we actually have to spend the millions of dollars to do that. [00:33:03] Speaker 03: And that's the problem. [00:33:04] Speaker 04: Well, that's the tension between when is judicial review appropriate and what point in the process. [00:33:09] Speaker 04: We would contend if you step in now. [00:33:12] Speaker 03: And in a permitting process where it all moves quickly, OK, I apply for the permit. [00:33:17] Speaker 03: You can't get it. [00:33:18] Speaker 03: You get judicial review. [00:33:19] Speaker 03: And it all happens. [00:33:20] Speaker 03: I mean, you can understand why you'd say, let's just wait for judicial review in the permitting process. [00:33:25] Speaker 03: But where there's this lag, and in the lag time, you're going to have to spend a lot of money. [00:33:33] Speaker 03: That should cut. [00:33:33] Speaker 03: I mean, it doesn't fit neatly into the doctor. [00:33:36] Speaker 03: And I realize that that should cut the other way. [00:33:38] Speaker 04: I do see where the court is coming from. [00:33:40] Speaker 04: But I will say that there is give and take in the permit process. [00:33:45] Speaker 04: I mean, the state and the law take. [00:33:50] Speaker 04: Well, they will have judicial review before any sledgehammer comes down in the sense of, again, the permitting authorities are making their views known, but there's also an opportunity for pushback from both the applicant, certainly during the public comment process, [00:34:10] Speaker 04: Again, outside stakeholders affected by these treatment plants. [00:34:14] Speaker 03: But there's another option I didn't mention, which is they could just continue on doing what they were doing without altering the plant and without having the permit. [00:34:23] Speaker 03: And then you all would, or someone would take an enforcement action against them. [00:34:27] Speaker 04: And judicial review is available there. [00:34:30] Speaker 03: Right. [00:34:30] Speaker 03: But that's the bet the farm thing that the Chief Justice and Justice Alito have talked about. [00:34:34] Speaker 03: You shouldn't have to bet the farm on your view of the law. [00:34:39] Speaker 04: necessarily. [00:34:40] Speaker 04: I understand the court's point, but I will point out in Sackett, we had the EPA communicating through an order with real legal effect. [00:34:47] Speaker 04: I mean, the statute said if you do something contrary to this order, it alone subjects you to penalties. [00:34:54] Speaker 03: And that's the good legal, I mean, that's ultimately what you're going back to, which is this is just a letter. [00:35:00] Speaker 03: We may come out differently down the road in the permitting process. [00:35:03] Speaker 03: And they're saying, come on, that's not going to happen. [00:35:06] Speaker 03: And I think [00:35:07] Speaker 05: The facility has a permit. [00:35:16] Speaker 05: And then a new permit is required, right? [00:35:19] Speaker 04: It expires after five years, generally. [00:35:22] Speaker 05: The EPA has taken the position that a new permit is required. [00:35:24] Speaker 04: Correct. [00:35:25] Speaker 04: But the old one continues until the new one is finalized and ready to take its place. [00:35:30] Speaker 05: So they can continue beyond the expiration date as long as a timely... Suppose it's finalized in a form that requires the expenditure of millions and billions of dollars to meet a higher standard than prevailed under the previous permit. [00:35:48] Speaker 04: Well, again, they could get the final permit decision stayed so they can continue to operate under the existing permit where they don't have to spend the money for redesign until there's... They would be under the APA. [00:36:01] Speaker 04: There may be specific NPDES regulations on that. [00:36:05] Speaker 04: I'm told that that's standard. [00:36:08] Speaker 04: Until judicial review of the permit is completed, the old permit stays in effect. [00:36:13] Speaker 04: until there's a final agency action on the new permit and in the immediate judicial review of that. [00:36:21] Speaker 04: That's either as a matter of course or it's covered by the regulations. [00:36:24] Speaker 03: I'm not sure which. [00:36:25] Speaker 03: I understand why if you're confident in the legality of what you're doing, you don't want the judicial review sooner rather than later. [00:36:32] Speaker 04: Well, let me try to expand on the court's question on that, because I think the court may be concerned that there's a binary choice here. [00:36:40] Speaker 04: You either follow Iowa League or you don't. [00:36:43] Speaker 04: And that, I think, is not what's in reality here. [00:36:46] Speaker 04: The bypass provision, the regulation that this court upheld in 1987, has, as the court itself noted, broad and sensible exceptions. [00:36:57] Speaker 04: So it's all about how is the bypass regulation being applied to the facility? [00:37:01] Speaker 04: And to what extent is blending allowed and under what circumstances? [00:37:06] Speaker 04: That's a highly fact-intensive, highly technical determination, and it should be allowed to be worked out in the permit process. [00:37:13] Speaker 02: So you're saying that blending could be allowed, that it's possible that the EPA could take the position that blending's allowed in some circumstances but not others? [00:37:25] Speaker 04: Correct. [00:37:26] Speaker 04: Correct. [00:37:26] Speaker 04: It depends. [00:37:27] Speaker 04: I mean, even under Iowa League, blending is some, the EP is allowed to regulate some blending because that case dealt with blending where you were still meeting effluent limitations at the end of the pipe. [00:37:40] Speaker 04: What if you blend and you don't meet them? [00:37:42] Speaker 04: Certainly the permit can say you can't blend and then have the end of the pipe being out of compliance with the limitations. [00:37:51] Speaker 05: There's no dispute, whatever, about that. [00:37:53] Speaker 04: But my point is that there's a broad range of how much blending can be allowed in a permit. [00:37:59] Speaker 04: And even under Iowa League, some blending can be regulated by that permit. [00:38:03] Speaker 04: And it's true that outside the Eighth Circuit, EPA has reserved its right to look at this in an adjudicatory context and see how much blending should we allow under the regulations. [00:38:14] Speaker 04: But it's not a binary choice if it's Iowa League or Bust. [00:38:19] Speaker 04: And I think that goes back to what Judge Williams was saying about the alleged non-acquiescence decision by itself doesn't determine anything in terms of how it affects a facility. [00:38:35] Speaker 05: This goes back to my first question, really, because I haven't focused on the preclusion provisions of 1569, which are [00:38:50] Speaker 05: Suppose... [00:39:16] Speaker 05: That seems to, the court believes the Eighth Circuit was correct in its jurisdictional determination. [00:39:30] Speaker 05: It seemed to have to say, well, [00:39:38] Speaker 04: The only thing it would borrow, Your Honor, is if somebody wanted to challenge those grass-lead letters anew today. [00:39:48] Speaker 04: The time for that has expired. [00:39:51] Speaker 04: Now we obviously took the position before the Eighth Circuit. [00:39:53] Speaker 04: There was no reason to run to court in 120 days to sue on the grass-lead letters because they didn't promulgate anything. [00:40:00] Speaker 04: The Eighth Circuit rejected that, but [00:40:04] Speaker 04: But in terms of the EPA applying any policy and including a policy that someone might contend mirrors the policy they were articulated in the Grassley letters, the time has not run. [00:40:16] Speaker 04: The time hasn't even begun to run. [00:40:18] Speaker 03: But on the Grassley letters, if someone had tried to sue in another circuit at the same time, [00:40:24] Speaker 03: on that quote policy, what would have happened? [00:40:29] Speaker 04: Well, you'd have to select a circuit to take it exclusively, and that 2012 would govern that, 28 U.S.E. [00:40:35] Speaker 04: 2012. [00:40:36] Speaker 03: Yeah, but the point of that provision was to get a national determination [00:40:43] Speaker 03: upfront except EPA saying whatever circuit it goes to, we're not going to abide by it outside that circuit unless I'm missing something. [00:40:52] Speaker 04: We will abide by certainly the vacancy of the letters. [00:40:54] Speaker 04: The letters don't exist anywhere. [00:40:56] Speaker 04: But we're saying if the underlying policy comes up in another matter, another agency action, [00:41:02] Speaker 04: then we have a right, the EPA has a right not to acquiesce and there's a scope of non-acquiescence that goes into it. [00:41:09] Speaker 03: I agree with that as a general proposition, but when there's a funneling of all of the cases to one circuit, [00:41:18] Speaker 03: Suppose the Grassley letter policy had been challenged in every circuit, and it gets funneled to the eighth circuit. [00:41:26] Speaker 03: The eighth circuit rules the way it does, and all the other cases can't go forward. [00:41:30] Speaker 03: And then EPA says, guess what? [00:41:32] Speaker 03: For all of you outside the eighth circuit, too bad. [00:41:36] Speaker 03: That seems inconsistent with the, at a minimum, the spirit, if not the structure, of the provision funneling the cases to one circuit. [00:41:44] Speaker 04: Well, there I think you would have, because your honor posits there would be a broad swath of interested parties that felt like EPA's publication of the Grassley letter affected them, then it might be a tougher case for the agency to invoke its non-acquiescence rights in that circumstance. [00:42:02] Speaker 03: But there are entities outside the Eighth Circuit, obviously, that are all over the country that are affected by the policy that was enunciated in those letters, correct? [00:42:13] Speaker 03: Well, they didn't feel like it was a promulgation of a rule, apparently, and didn't sue on it, but in any event, that's why I think it's important that EPA have the ability... Well, they didn't sue on it because they knew that you all, why waste the money filing a suit when they know there's only one place where you can sue. [00:42:28] Speaker 04: Well, they would risk their rights being adjudicated, potentially, if the non-acquiescent view you're articulating were the law of the land on that. [00:42:36] Speaker 04: I think that's why it's important to look at the default rule and see whether Congress has altered it in a particular setting. [00:42:45] Speaker 03: What are you referring to as the default rule? [00:42:47] Speaker 04: The default rule, I would say, is that an agency generally has a right of non-acquiescence outside of the circuit in which the decision was made. [00:42:54] Speaker 03: Yeah, I agree with that, generally. [00:42:57] Speaker 03: tricky issue when the cases are all funneled to one circuit. [00:43:01] Speaker 04: Well, when it's all funneled to one circuit and it's a, at least where EPA is making it obvious that this is something of national applicability, EPA has a full record of being, you know, of respecting that decision throughout the nation. [00:43:13] Speaker 04: Obviously, in the Clean Air Act setting, it's quite easy, right? [00:43:15] Speaker 04: This court has exclusive jurisdiction over nationally applicable regulations. [00:43:20] Speaker 04: The Clean Water Act's a little different in the sense that if you have a single petitioner that's contending, especially in the alleged illegal rule context, that this is affecting me, but no one else is saying that. [00:43:31] Speaker 04: It could be very analogous to a regional permit decision, like under the Clean Air Act, which only goes to a regional court of appeals. [00:43:40] Speaker 04: Again, I don't want to speak for the EPA, because in our view, they haven't made a non-acquiescence decision here. [00:43:46] Speaker 04: We're laying out in our brief what their rights are. [00:43:50] Speaker 05: In the brief, you expressed that argument in the form of saying that they were just going to do things case by case. [00:43:57] Speaker 05: But that's what the policy originally was anyway. [00:44:01] Speaker 05: That didn't seem to me to remove its non-acquiescence characteristics. [00:44:10] Speaker 04: The Eighth Circuit found that EPA was not doing it case by case, that they were setting down something legally enforceable through the Grassley letters. [00:44:21] Speaker 04: The EPA took a different view. [00:44:23] Speaker 04: It did not prevail on that. [00:44:24] Speaker 04: Here, even if you were to compare what EPA wrote to the Grassley letters versus the challenged letters here, or even the death statement, there's nothing that they lack comparable. [00:44:37] Speaker 04: I mean, there's even the letters state even less. [00:44:40] Speaker 04: The letters state even less than in the guidance document that this court reviewed in national mining and found that it didn't command anybody to do anything or refrain from doing anything. [00:44:52] Speaker 03: But it seems like I'm going to be repeating myself here, but I'll give you another chance to comment on it. [00:44:57] Speaker 03: The North Star for us, the Supreme Court seems to have said, should be, are people being forced to spend a lot of money [00:45:07] Speaker 03: before they obtain the judicial review of the legality of the agency decision. [00:45:13] Speaker 03: And in some permitting processes, the answer to that will be no, because you just don't get the permit, you get judicial review, and you haven't actually tried to build the thing that you would otherwise build if you get the permit. [00:45:24] Speaker 03: Think of a classic building permit situation. [00:45:27] Speaker 03: In this situation, I think they're saying it doesn't work that way necessarily because of the timing of the existing permits and the other permits. [00:45:37] Speaker 03: I think I'm repeating myself, but I'm just trying to work my way through the facts because I don't want to be on the receiving end of a Supreme Court lesson that they've already given. [00:45:58] Speaker 05: how frequent stays are granted. [00:46:00] Speaker 04: I would be happy to follow up on a short letter to the court if you wish on that. [00:46:05] Speaker 04: I just don't have a clear answer for that. [00:46:07] Speaker 05: I would like that. [00:46:09] Speaker 04: Well, I'm going to have to take your invitation, because I'm not. [00:46:15] Speaker 00: Clearly, it's not. [00:46:16] Speaker 00: Maybe not. [00:46:17] Speaker 00: So I'm sorry. [00:46:18] Speaker 04: I looked down, and I missed what you were saying. [00:46:22] Speaker 04: A short letter? [00:46:24] Speaker 04: Okay. [00:46:26] Speaker 04: Let me follow briefly up on your comment. [00:46:28] Speaker 04: Yeah, just anything to comfort me on that because I think the Supreme Court has been really strong and it's been unanimous, too. [00:46:34] Speaker 04: And the court needs to follow its North Star. [00:46:36] Speaker 04: I totally get that. [00:46:37] Speaker 04: But you said forced. [00:46:39] Speaker 04: And so the issue in Sackett, yes, they were being forced. [00:46:42] Speaker 04: It was an order with legal consequences. [00:46:46] Speaker 04: In Hawks, it was a jurisdictional determination with legal consequences. [00:46:50] Speaker 04: You were either granting or denying what the court called a safe harbor from prosecution. [00:46:56] Speaker 03: So it's still, yes, it's the... Right, it's a different context, I grant it, than the permitting context, and that's why the permitting context often comes out the other way, but they're saying this is a different kind of permitting process. [00:47:09] Speaker 04: Now, again, if you have some comfort in the word forced, if EPA had issued a national, quote, guidance document that did have commanding, like, [00:47:20] Speaker 04: But from beginning to end was a command to state permitting authorities and facilities. [00:47:25] Speaker 04: You'd have a case closer to Appalachian Power where the court did take review before the permit process had completed to review the alleged guidance document. [00:47:36] Speaker 03: Well, and the whole concern in that line of cases, as you're well aware, is that agencies kind of sub-silentio [00:47:43] Speaker 03: make law, using that word in quotes, that forces, again, using that word, to people to do things, but evades judicial review. [00:47:54] Speaker 03: I mean, that was the whole line of cases is about agencies evading judicial review. [00:47:59] Speaker 03: And that's what we've got to be careful about. [00:48:02] Speaker 04: And at the risk of repeating myself, I think this court waded through the thicket of all of that well in the national mining case. [00:48:09] Speaker 05: Can we just go back again to your elaboration of the process? [00:48:14] Speaker 05: Because your first account sounded quite innocent, and the later account involving where we came to the possibility of a stay did not hold. [00:48:27] Speaker 05: So you have the issuance of a permit [00:48:32] Speaker 05: is by the EPA when it takes over the process. [00:48:35] Speaker 05: Let's use that avenue. [00:48:38] Speaker 05: And the permit requires vast new expenditures, right? [00:48:45] Speaker 05: And that takes effect, I take it, within some period of time set forth in the permit. [00:48:53] Speaker 04: Right, I have a little bit of clarity for that, with your honor. [00:48:56] Speaker 04: So in terms of when the permit proffered by EPA takes effect, and in terms of when [00:49:02] Speaker 04: It is automatically stayed when there's a petition for review filed in the Administrative Appeals Board. [00:49:11] Speaker 04: So that no expenditures to redesign need to be spent until that, at a minimum, until the... That's all within the EPA. [00:49:17] Speaker 04: Right. [00:49:18] Speaker 04: Is there an equivalent for the state process? [00:49:20] Speaker 04: I don't know that. [00:49:21] Speaker 04: I don't know that. [00:49:22] Speaker 04: I assume it would vary state by state, but I don't know that. [00:49:25] Speaker 05: Okay, so it would work out the EPA. [00:49:30] Speaker 04: So what we're unsure of, and my note is consistent with that, we're not sure whether, so you get a final decision from the Administrative Appeals Board, or Environmental Appeals Board, is it automatically stayed through judicial review before our Court of Appeals or not? [00:49:43] Speaker 04: That I'm not sure on. [00:49:44] Speaker 04: You may have to fall back on the motion for state practice on that question. [00:49:49] Speaker 04: But we will follow up with a short letter on that. [00:49:52] Speaker 04: Does Your Honor want information on the state process? [00:49:55] Speaker 04: I'm not sure how I. [00:49:56] Speaker 03: If you haven't, we welcome it, because I think these details are potentially, I'm not sure yet, but potentially important to how we might approach deciding this. [00:50:06] Speaker 03: So that would be helpful. [00:50:07] Speaker 04: Unless the Court has any further questions, we submit that the petition should be dismissed for want of jurisdiction or in the alternative, denied on the merits. [00:50:15] Speaker 04: Thank you. [00:50:23] Speaker 01: Thank you. [00:50:24] Speaker 01: I'll try to keep my rebuttal short on a few key points. [00:50:27] Speaker 01: Number one, stays are not automatically granted in state court. [00:50:31] Speaker 01: Under the New Jersey cases that we've personally presently got under appeal, stays are not in place. [00:50:38] Speaker 05: With regard to the... That's a view of the New Jersey court. [00:50:45] Speaker 01: Well, it's the administrative law process that they have before you even get to it into a court, so they... Is that appealable to an actual court? [00:50:55] Speaker 01: If you can actually get them to render a decision on the stay, it would be appealable, which is... But that's... [00:51:04] Speaker 01: I would go more to the point, Your Honor, that this entire time of permitting and all of these concerns about time of permitting, this has been expressly rejected more time by this Court than I can care to think of. [00:51:20] Speaker 01: Nita Cap, Appalachian Power, most recently Hawks and the Supreme Court did it. [00:51:26] Speaker 01: The reason you don't wait for the time of permitting is there are no permit-specific facts that have any relevance to this case. [00:51:34] Speaker 01: None. [00:51:35] Speaker 01: That was the same exact thing that the Eighth Circuit concluded, and I will read you, for example, Exhibit 86, the briefing sheet for the Assistant Administrator of War at the agency. [00:51:47] Speaker 01: EPA's position is blending is a bypass and can only be justified upon a demonstration of no feasible alternatives. [00:51:55] Speaker 01: Outside the Eighth Circuit, EPA will continue to apply the bypass rule consistent with its existing interpretation. [00:52:02] Speaker 01: Blending is illegal under EPAs. [00:52:05] Speaker 01: There are no facts that one presents upfront. [00:52:09] Speaker 01: You have to show an extensive, no feasible alternatives analysis, which is very costly to develop. [00:52:15] Speaker 01: And even when you develop that, blending is still illegal and must be eliminated over time. [00:52:21] Speaker 01: So in short, there are no permit-specific facts, and that's precisely what the Eighth Circuit concluded also. [00:52:27] Speaker 02: So this entire time of permitting... If it's dependent upon no feasible alternatives, that's not a permit-specific fact. [00:52:38] Speaker 01: Oh, well, Your Honor, you have to take it in two pieces. [00:52:41] Speaker 01: The first question is, is the act prohibited by the bypass rule? [00:52:46] Speaker 01: Answer, yes, in EPA's position. [00:52:49] Speaker 01: Next one, are there factors where EPA, if you could show them, they might temporarily allow you to do this if you make some extensive analysis and show, for example, [00:53:02] Speaker 01: Let me give you an example. [00:53:03] Speaker 01: I want to blend 10 million gallons and that will save me a huge amount of money for the treatment plant. [00:53:09] Speaker 01: Well, are you telling me there is no feasible alternative to that? [00:53:13] Speaker 01: Well, I could build another five million gallon holding basin, like Allentown could, but then I would still need to blend the last percentage of the flow. [00:53:23] Speaker 01: So then in order to get the blending approval, they have to spend the extra five million and do the extra study, and then over time show that they still can't eliminate it anyway. [00:53:34] Speaker 01: So there's no [00:53:35] Speaker 01: There were no case-specific facts on the prohibition, which, by the way, was the key part in the NMA case. [00:53:41] Speaker 01: The NMA case expressly said, we are not addressing prohibitions or obligations imposed on the regulatory community. [00:53:48] Speaker 01: I cannot think of anything that more directly imposes an obligation and a prohibition than declaring blending and illegal bypass and then saying the obligation is to do it, to be allowed to do it, as you have to show me all of these extra steps. [00:54:03] Speaker 05: That, I believe, is a talking point. [00:54:07] Speaker 01: Oh, actually, the talking point was for how to respond if they were asked about the incoming letter from five national organizations complaining about EPA's announced position that it would not follow the Iowa League case. [00:54:25] Speaker 01: That's the talking point up front. [00:54:26] Speaker 01: The rest of this document is simply what the agency's established position is. [00:54:32] Speaker 01: And that, by the way, it's the same position. [00:54:35] Speaker 01: that's in the published death statement, which went out to all the regional offices three weeks before this briefing sheet was given to the assistant administrator. [00:54:44] Speaker 01: So this entire time of permitting, all of that, I mean, it really is just a sham. [00:54:50] Speaker 01: There are no case-specific facts. [00:54:51] Speaker 01: This is a regulatory interpretation that's adopted, which, by the way, is also why it's not stayed. [00:54:58] Speaker 01: What we have is EPA saying there's an adopted bypass rule. [00:55:04] Speaker 01: And that's on the books, and you must follow it, which is true. [00:55:08] Speaker 01: There's an adopted bypass rule on the books that everybody in the country must follow. [00:55:13] Speaker 01: What they're then saying is, and now our interpretation of this is, it prohibits A, B, C, and D. [00:55:19] Speaker 01: I can't stay the bypass rule in my permit. [00:55:22] Speaker 01: It's an adopted rule. [00:55:23] Speaker 01: As a matter of fact, this court upheld the rule on the express principle that this position violates. [00:55:30] Speaker 01: When this challenge came to the bypass rule in 1987, the main challenge was the bypass rule was trying to dictate how I could design a treatment plant. [00:55:41] Speaker 01: EPA filed briefs, which, by the way, we gave to the Eighth Circuit, and this court's decision expressly said, EPA has told us, [00:55:49] Speaker 01: They are not telling you how to design your treatment plant. [00:55:52] Speaker 01: They are telling you once you design it that way, you must continue to operate it that way. [00:55:58] Speaker 01: It's called design operation. [00:56:00] Speaker 01: The other thing the court said was the bypass rule and properly does. [00:56:05] Speaker 01: does not allow you to shut down treatment units. [00:56:09] Speaker 01: Like suppose you're running along and half your production goes down. [00:56:13] Speaker 01: You're at the John Deere factory. [00:56:14] Speaker 01: You lay half your folks off. [00:56:16] Speaker 01: You still have an MPDS permit. [00:56:18] Speaker 01: It's based on a certain amount of production. [00:56:20] Speaker 01: And then you go, hmm, I could turn off half the units in the plant and still meet those permit numbers. [00:56:27] Speaker 01: because I've now had a downturn in the economy. [00:56:31] Speaker 01: The bypass rule says no, you can't turn off treatment processes. [00:56:35] Speaker 01: Blending has nothing to do with turning off treatment processes. [00:56:39] Speaker 01: It's a separate wet weather treatment train that's used for a specific [00:56:44] Speaker 01: dire circumstance of peak flows that come into the plant. [00:56:47] Speaker 01: So this court's decision said what they're doing was improper too, and EPA said it wasn't going to do it. [00:56:53] Speaker 01: I would just suggest if anybody is, and I know the court of course will do this, EPA recently stated to the DC district court in the FOIA case dealing with these same records, [00:57:06] Speaker 01: The documents speak for themselves and they are the best evidence of their content. [00:57:11] Speaker 01: Yes, they are. [00:57:12] Speaker 01: On their face, they say, [00:57:15] Speaker 01: They express a non-acquiescence decision and they're going to continue to apply the rules that were vacated. [00:57:21] Speaker 01: And matter of fact, the language is virtually identical to the language the court reviewed in NIDACAP. [00:57:27] Speaker 01: But you know what it's missing? [00:57:29] Speaker 01: The words case by case. [00:57:30] Speaker 01: This whole case by case statement nowhere appears in any of the record documents. [00:57:37] Speaker 01: What, where case-by-case came from, interestingly enough, is a reporter when they were, she was characterizing EPA's verbal announcement, said, oh, sounds like some kind of case-by-case approach. [00:57:51] Speaker 01: And then EPA seized on that. [00:57:53] Speaker 01: Ah, we haven't made a decision. [00:57:54] Speaker 01: We're operating case-by-case. [00:57:56] Speaker 01: Look at the documents. [00:57:57] Speaker 01: The words case-by-case appear nowhere in them. [00:58:00] Speaker 01: And I would just leave the court one last thought because we have been [00:58:05] Speaker 01: arguing for 30 years on illegal rulemaking cases. [00:58:09] Speaker 01: It's all my firm does is clean water act cases and [00:58:14] Speaker 01: EPA's adamant refusal to provide a record to this court, or even disclose the records behind its decision making, in this case is an issue of great concern that we hope the court will address. [00:58:28] Speaker 01: The EPA justified that action by this following statement. [00:58:32] Speaker 01: Because EPA never regarded the letters to reflect any substantive decision, it did not contemporaneously maintain a record. [00:58:42] Speaker 01: That means whenever EPA disagrees that it's undertaken illegal rulemaking, you'll get no records. [00:58:48] Speaker 01: They always disagree. [00:58:51] Speaker 03: I don't think they're quite saying that. [00:58:53] Speaker 01: Well, there's no contemporaneous record. [00:58:57] Speaker 01: We said, where are the records? [00:58:59] Speaker 01: They said, we have nothing. [00:59:00] Speaker 01: And in fact, we know the, if you will, the hide the bodies approach didn't quite work out as well as it might have when all the other documents got released. [00:59:08] Speaker 01: And you could clearly see the entire sequence of their decision. [00:59:11] Speaker 01: So I guess we would just suggest that [00:59:15] Speaker 01: illegal rulemaking cases are probably the hardest cases among the hardest cases this court ever deals with from an administrative regulatory perspective. [00:59:25] Speaker 01: When the agency holds all the documents and that doesn't provide any of them to explain what's going on, even the ones that are relevant to the decision, we can't get due process. [00:59:36] Speaker 01: You can't conduct a proper review. [00:59:38] Speaker 01: And that really needs to not be the case. [00:59:41] Speaker 01: I mean, I realize these are one-off and unusual circumstances, but it's a problem, and it's increasing in our view. [00:59:50] Speaker 01: Thank you. [00:59:52] Speaker 03: Thank you. [00:59:52] Speaker 03: I think we've said when a case is reviewable is one of the hardest issues in administrative law. [00:59:57] Speaker 03: And this case is a fine example. [00:59:59] Speaker 03: So we'll try to figure it out. [01:00:00] Speaker 01: It's a real disagreement, yes. [01:00:02] Speaker 03: OK. [01:00:02] Speaker 03: Thank you both. [01:00:03] Speaker 03: Case is submitted.