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Case number 15 to 12 46 Sierra Club at L petitioners versus Environmental Protection Agency and Catherine McCabe Acting Administrator U.S.

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Environmental Protection Agency.

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Mr. Gromley for the petitioners, Ms.

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McDonough for the respondents.

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Good morning.

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Good morning.

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Neil Gormley for Petitioners Sierra Club and California Communities Against Toxics.

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May it please the Court.

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This case is a challenge to EPA's claim to have satisfied its obligations under Section 112C6 of the Clean Air Act.

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This Court considered EPA's previous claim to have satisfied its obligations under Section 112C6 in the 2012 Sierra Club decision.

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and it held there that EPA's determination was reviewable and that Sierra Club's challenge to the determination was timely.

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The only issue in this case not resolved by Sierra Club is the lawfulness of EPA's new claim to have set standards for three of the Section 112C6 pollutants through surrogates.

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Because EPA's new surrogacy claims fail the test established by decisions of this court for determining whether a surrogate is reasonable, the court should reject EPA's new surrogacy claims and vacate the determination.

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So when the original rule was promulgated, for example, where you say that

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the identification of the surrogate and its role was inadequate.

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What was your understanding of what EPA had to show with regard to setting the standard?

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In other words, I want to be clear whether your concern is really as to the standard or to the activity or the nature of the surrogate and its interrelationship with

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the other pollutants and the half in particular, the C6 half in particular.

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Our concern here is about the surrogacy relationships that EPA has identified, purported to identify for the first time in this determination.

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Our concern with the prior rules would be that they didn't even purport to set the standards.

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So give me an example, a specific example.

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Well, one example would be the prior rules for coke ovens.

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Coke ovens were regulated originally for other pollutants long ago before EPA even issued its initial inventory of the 112C6 pollutants.

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So it was not regulating at that point for any of the C6 pollutants?

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It was not regulated, not as far as I know, and it was certainly not regulated.

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That qualification is key to me here.

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Yes, I understand, Judge Rogers.

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What I mean to say is that it did not set standards.

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It did not purport to set standards for the C6 pollutants that are at issue in this case.

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What was it doing?

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It was setting standards only for other pollutants.

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In that case,

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So there's some overlap between 112A and C6 as to the pollutants, correct?

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There is some overlap.

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Certainly, other provisions of the Clean Air Act do impose obligations with respect to the same sources.

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But Section 112C6 requires standards under D2 or D4 for the seven pollutants named in Section 112C6.

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And there's no reference to any of those in the Coke Ovens rule, is your point.

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In the Kokevin's rule did not even purport to set standards for POM, PCBs, or HCB for the 112C6 pollutants at issue here.

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And that's true for all of the 17 source categories that we have identified in our opening brief.

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The prior rules for those source categories did not even purport to set standards either directly or through a surrogate for the 112C6 pollutants.

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and all of it today we're talking about is surrogacy, right?

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That's exactly right, Judge Santel.

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EPA's new surrogacy claims, which appear for the first time in the Section 112 C-6 determination under review.

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Can you tell me when the EPA first floated this concept of regulation through surrogacy, whether for C-6 or anything else?

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I know we have the National Lime case, but was that the first time the EPA itself had ever

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tried this concept of surrogacy regulation under the Clean Air Act?

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I'm not sure of the answer to that, Judge Malat.

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I don't know when the first time EPA claimed authority to set standards through surrogates.

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I do know that it did not claim to be setting standards through surrogates for POM, HCB, or PCBs, the three Section 112C6HAP, when it issued prior rules for these.

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So the first time it ever claimed surrogacy

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for these three pollutants was, I guess probably in the determination?

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Yes, that's right.

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The first time the EPA claimed to be setting standards through surrogates for these pollutants from these sources was in this determination.

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So let me just follow up on that.

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If you were to go to the Koch Ovens Rule and look at the preamble and all of the technical documents,

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Is it your point that you would simply not find anything that would support what I'll call the national Lyme analysis for a surrogacy for any of the C6 pollutants?

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If you understand what I'm saying.

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In other words, they didn't say it explicitly.

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But if you looked at the rulemaking itself, you would see, in my hypothetical, that obviously,

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that's what was happening.

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No, Judge Riders, you would not find that, that obviously that was what was happening if you looked at the prior rules.

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And if EPA... So let me just ask you, why would an agency proceed this way?

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What the agency actually did here is it articulated new surrogacy determinations in this case, in the determination under review.

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And the reason EPA proceeded that way, the reason why it didn't set standards for the C6 HAPS at the time, is because for many of these rules, it didn't have an obligation to set standards for under 112 C6 until November 15, 2000.

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And in subsequent rules, EPA should have but didn't.

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Another point I'd like to make on the timeliness issue is that this court's 2012 Sierra Club decision expressly rejected the argument that a challenge to EPA's 112C6 determination was an attack on prior rules.

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Well, but let me understand.

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In other words, if your petition is granted,

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Do you contemplate that, for instance, for Koch ovens, assume everything that you said is correct and that my hypothetical is correct, that the rulemaking doesn't itself demonstrate the obvious nexus and necessary interaction to meet the national law and test?

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Would EPA have to reopen the rule?

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or simply do a new rulemaking for purposes of this listing.

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EPA could just do a new rulemaking.

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That's what EPA may be trying to avoid.

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Is there something less than that?

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All EPA would be required to do in order to fulfill its Section 112C6 obligations would be to set standards for the 112C6 hazardous air pollutants for which it has not yet set standards, either directly or through a valid surrogate.

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Does that mean it would not as to the

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existing emission standards for the surrogates, your position is those wouldn't have to be altered, I take it.

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Those are whatever they are.

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I don't know my chemistry enough to give you the name of a surrogate, whatever surrogate they're regular chlorine or whatever that they're using.

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You're not challenging that emission standard.

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You say they've got to overlay on top of that specific standards that meet MACD requirements for the C6.

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That's exactly correct.

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You're not attacking the existing emission standards.

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You're just saying there's a whole bunch of gap that needs to be filled.

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That's exactly right.

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There's a gap for the Section 112 C6 hazardous air pollutants.

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And it would follow that the time of this determination would not be based on the adoption of those standards, but on the new application concerning the C6.

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That's exactly right, Judge Santel.

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But what about, you've given a couple examples in your brief where you say that with respect to the surrogate, the standards that were used there to address the emission of that surrogate actually had the consequence of increasing release of a C6

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Now how, when you saw an old emission standard come out, regulating surrogate X, they had the consequence back then and there of increasing pollution of a C6 standard, whether they called it surrogate or not, wouldn't you have been able to argue back then that that was a violation of the Clean Air Act because they were increasing pollution of a C6 standard?

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Whether they called it a surrogate or not, you saw the consequence of what was happening.

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It's certainly possible that some of the prior rules were unlawful under other provisions of the Clean Air Act.

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But the question here today is whether those prior rules satisfied EPA's obligations under Section 112C6.

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But wouldn't you have known when you saw the C6 pollutant increasing in amount, wouldn't you have known back then that they were transgressing the clean air at C6 as well as just the sort of C1 and B1 listing process?

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Well, we wouldn't have had that information at the time.

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What we've done in this determination is we've built a record in response to EPA's claim that

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standards for other pollutants are surrogates for the 112C6 pollutants and the record in this rulemaking that that has been assembled establishes that in fact controls for the claimed surrogates may increase emissions.

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So the old record because they weren't doing surrogacy determinations in the old record they wouldn't have even

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had a record on the impact of those regulatory emission standards on the C6 pollutants.

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Is that your point?

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That's exactly right, Judge Millett.

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Although there are occasional mentions of the section 112 C6 pollutants in the prior rules, most of them do not mention the 112 C6 pollutants at all.

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And none of them purported to be setting a standard for those pollutants under 112 D2 or D4, either directly or through surrogates.

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But you leave open the possibility, as I understand it, that you might have been able to raise some of these issues early in some instances.

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I mean, if the agency mentions C6 and they've got a whole technical document talking about C6 and whatever the surrogate is, I mean, that council may not have raised it as a matter of strategy

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but the record made it plain there was a problem.

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No, Judge Rogers, none of the prior rules did what you just said.

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None of the prior rules discussed C6 or put together a technical document with respect to the C6 pollutants.

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None of the prior rules purported on their face to set standards directly or through surrogates for the C6 pollutants.

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But you see what I'm getting at.

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I mean, you're as familiar with this as I am that there are lots of technical documents associated with these rules that may discuss something and address it and explain the agency's analysis and its conclusion.

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But it doesn't actually, that conclusion doesn't actually appear on the face of the rule because it's not necessary for whatever reason.

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So I mean, you leave open the possibility that if you delve into these records,

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Maybe not everything is unlawful for purposes of this listing.

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We don't believe that the prior rules contain the kind of discussion that you're alluding to, Judge Rodgers.

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Hypothetically, it could exist.

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Hypothetically, if it could exist, and if it did exist, then EPA, in a subsequent rulemaking, could rely on that, just as EPA could have done here in this determination.

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Well, that's what I'm trying to get at.

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In my hypothetical, say in the Koch-Ubbins rule, there's a big technical document talking precisely about C6 pollutants and precisely talking about the interaction of what is now identified as the surrogate.

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And just hypothetically, from your client's position, that is all that you think was required for this C6 listing.

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It's not as though the agency would necessarily have to do a new rulemaking.

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That's what I'm trying to understand.

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Or you think that the agency, and by new rulemaking, I'm talking about the old rules.

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I'm not talking about this listing.

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What EPA would be required to do is a new Section 112C6 determination, and in that determination, it could point to where in the old rules it believed it had established surrogates.

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So your point is they haven't argued that here or done that in this rule?

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That's exactly right.

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What EPA has done is it has claimed, it has

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to establish new surrogacy relationships.

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And those new surrogacy relationships, which EPA has advanced in this rulemaking, and it has done that here, it did that extensively in the proposed rule, and we are challenging those surrogacy determinations.

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What's our standard of revealing that determination?

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It would be an arbitrary and capricious standard of review, Judge Santel.

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You say there is not sufficient record for a reasonable commission to have made this determination based on what was in the record.

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We do.

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That's right.

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But that's not our only objection to the new surrogacy determinations.

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Our primary objection is that they don't even purport to meet the test established by decisions of this court for what is a reasonable surrogate.

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As this court has made clear now on multiple occasions, a surrogate, to be reasonable, must be sufficiently well correlated with the target hazardous air pollutant to enable EPA to identify the best performers with respect to the target hazardous air pollutants and to enable EPA to determine what is the achievable reduction with respect to the hazardous air pollutants.

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EPA doesn't even claim that its surrogates meet that test.

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And the record shows that its surrogates don't meet that test.

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As you pointed out, Judge Millett, the record in fact reveals that methods to control the alleged surrogates do not control the target hazardous air pollutants and may even increase them.

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And conversely, methods to control the target hazardous air pollutants do not control the alleged surrogates and may actually increase them.

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And for that reason, EPA's new surrogacy claims should be rejected.

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I'd like to make maybe one more point on the notice and comment issue.

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EPA actually solicited comment on its new surrogacy claims.

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But then EPA refused to address comments, questioning the reasonableness of the surrogacy relationships identified for the first time in this rulemaking.

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And the comments that EPA refused to address go to the heart of the record rationale for this determination, which is, again, the new surrogacy claims.

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And one final point on that.

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Both this court and the district court have held that EPA is required to conduct notice and comment on a 112c6 determination.

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and that that notice and comment must render its legal and technical decisions more transparent and facilitate substantive review of the 112C6 determination.

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EPA's refusal to consider comments questioning the reasonableness of its new surrogates not only violated the requirement of reasoned decision making, but the judgments of both this court and the district court.

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If there are no further questions, I'll save my time for rebuttal.

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All right, thank you.

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Good morning.

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Good morning, Your Honors.

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I'm Eileen McDonough for the Respondent EPA.

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As you've no doubt gathered from the briefing, the parties take widely different positions on what is at issue before the Court in this matter.

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I'd like to start with the discussion of this Court's prior decision, where it remanded for notice and comment, where the Court discussed the timeliness argument.

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What the Court said there is that EPA is

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They recognized or described Sierra Club's argument as a claim that EPA has unlawfully shoehorned prior regulations to meet the purposes of 1C6, and that if they were correct, that argument would be timely.

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So that's the question that's before this Court, is whether the

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rule at issue did improperly shoehorn prior regulations to meet the C6 requirements.

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And what do you think we meant by shoehorn?

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I think what you meant was whether EPA was relying on regulations that would not encompass the purpose of C6.

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And I think that the primary way to look at that and to realize that it's not a valid argument is to look at Section 7412 as a whole.

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Plaintiffs looked at C6 as an independent unit without placing it in the context.

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Well, before you get there, though, I want to point you to some other language in our opinion that I'm having trouble understanding how you interpret here on the timeliness question.

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That is on page 535 of the decision.

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In response to the argument, they're talking about legislative rule or not, but what we held in the bottom of the left column

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is that this determination tread new ground by taking previous rulemakings, which EPA had promulgated, without any evident goal of satisfying its 112C6 obligation and repurposing them to satisfy 112C6.

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That manifests a new yet final agency opinion on its compliance with 112C6, and because it's legislative, you had to go through notice and comment.

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That argument to me, that reasoning there seems to me to be a pretty direct holding that what you've done here is new final agency action now done through proper legislative rulemaking procedures of notice and comment.

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That is a distinct new agency action that can be timely challenged.

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Do you disagree with that?

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It is a distinct agency action, but the question is whether

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In order to contend that EPA is improperly relying on arguments, what the court has to do is look back at the

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entire statute and how these regulations came to be.

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The argument that you are repurposing them to satisfy 112 and C6, repurposing old rules to satisfy 112, C6 seems to me, isn't that exactly their surrogacy argument?

[00:22:50] Speaker 05:
That is part of what they're saying, but then that has to be reconciled with the timeliness section of the court's session.

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And at no point did the court

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say that it could go back and reopen all of the old rule-makings.

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They just said they don't need to reopen those.

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They're perfectly fine for what they regulate.

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The problem is that there's a gaping hole there.

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The C6 determinations, the MACD determinations for C6 pollutants are nowhere to be found.

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The problem is in the timing.

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When you look at the other provisions,

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of Section 7412.

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With respect to major sources, which are the sources at issue here, Section C6 does not require or impose any new obligations with respect to the regulation of those rules.

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What it says is that in C1, EPA had to establish a list of major categories

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then in B1, they had established a list of pollutants, which includes the pollutants at issue here in C6.

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But doesn't C6 mean that we have to?

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I mean, I'm assuming it wasn't entirely redundant.

[00:24:12] Speaker 06:
If they're all major source already, then it's not adding anything.

[00:24:16] Speaker 06:
Doesn't it mean that we have to make a specific max determination for each of those C6 pollutants?

[00:24:23] Speaker 06:
We have.

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You.

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EPA has to do that on a record.

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It is reviewable through notice and comment rulemaking, and that hasn't happened here.

[00:24:32] Speaker 05:
What C6 adds is by dent of the 90% requirement, it means that EPA cannot rely on, in some instances, let me start over, in some instances, in order to hit the 90% threshold, which is the new part of C6.

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EPA is going to have to go beyond the universe of the major sources.

[00:25:00] Speaker 06:
Right, and get the area sources.

[00:25:01] Speaker 05:
And they're going to have to go down into area sources.

[00:25:04] Speaker 06:
I got that, right.

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And area sources are not normally required to be subject to max standards.

[00:25:13] Speaker 05:
There are lesser standards that they can be used.

[00:25:16] Speaker 05:
Yes.

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So the independent significance of C6 is that it broadens the universe that must be subject

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to max standards in order to ensure that the 90% threshold is reached.

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But the major sources were already supposed to be subject to max standards for all pollutants emitted by those source categories that were listed.

[00:25:49] Speaker 06:
When did you first try out this concept of surrogacy for C6?

[00:25:54] Speaker 05:
Surrogacy is simply another way of saying that as another means of setting standard.

[00:26:02] Speaker 06:
I'm going to try one more time.

[00:26:03] Speaker 06:
When?

[00:26:04] Speaker 06:
When did?

[00:26:05] Speaker 06:
Was National Lime the first one?

[00:26:10] Speaker 05:
It was in National Lime.

[00:26:12] Speaker 05:
That was in 2000.

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And it was, I believe it may have been used in rule makings prior to those challenged in National Lime.

[00:26:23] Speaker 06:
But the main point again... You don't know when exactly you first used it for C6 before.

[00:26:28] Speaker 06:
I don't.

[00:26:29] Speaker 06:
But the main point that I'm trying... Go ahead, I'm sorry.

[00:26:31] Speaker 05:
The main point that I'm trying to get at is that those standards promulgated back in the 90s and in 2000, by statute, were supposed to cover all of the C6 pollutants and was supposed to cover them for all major sources.

[00:26:50] Speaker 05:
If anyone had believed that these standards did not meet that requirement, they should have challenged back then.

[00:27:01] Speaker 05:
So to the extent that the coke ovens were considered petitioners or concerned that they didn't adequately cover C6 pollutant, they should have come to the court then.

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and argued that one of the pollutants is not listed.

[00:27:16] Speaker 06:
Well, what if EPA was saying we're not purporting to meet our C6 obligations through these?

[00:27:22] Speaker 06:
What would happen then?

[00:27:23] Speaker 05:
In 1998, EPA published the list.

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of the categories that it intended to regulate to meet its obligations under 1C6, under C6, and also identified the pollutants that they would be covering.

[00:27:40] Speaker 05:
So at that point, everybody was on notice of what EPA intended to do to meet its obligations.

[00:27:49] Speaker 05:
Petitioner Sears?

[00:27:50] Speaker 05:
It intended to do.

[00:27:51] Speaker 02:
It intended to do.

[00:27:53] Speaker 02:
You're not claiming that in the co-government regulations, they actually said we have done so before.

[00:27:59] Speaker 05:
What I'm saying is that in the coke regulations, they said they covered all of the pollutants that were listed pursuant to 74B, which would cover these as well.

[00:28:14] Speaker 02:
That would include the C6 pollutants as well?

[00:28:17] Speaker 06:
Yes, that list includes the C6.

[00:28:20] Speaker 06:
But the rule itself never mentioned the polycyclic organic matter.

[00:28:23] Speaker 06:
Didn't mention it at all.

[00:28:25] Speaker 06:
Didn't mention C6 at all.

[00:28:27] Speaker 05:
I don't know that it did not mention C6.

[00:28:30] Speaker 05:
I don't know what it said about the polycyclic.

[00:28:33] Speaker 06:
Well, I know that 89 and 93 did not mention polycyclic organic matter.

[00:28:37] Speaker 05:
If that was an issue, it should have been raised.

[00:28:40] Speaker 05:
That is on the list of the pollutants on 91.

[00:28:43] Speaker 02:
That didn't mention the question.

[00:28:44] Speaker 02:
Did it mention?

[00:28:47] Speaker 02:
you're being asked about a fact yeah and i'm as i said it may be a reference uh... i can't answer that question but again since that i think it's not i don't believe so because the question is what should have been raised by definition the question behind that one is one

[00:29:20] Speaker 02:
that they did not.

[00:29:22] Speaker 05:
For present purposes, Your Honor, we can assume that they did not.

[00:29:26] Speaker 05:
to get passed into the question.

[00:29:31] Speaker 06:
But in the municipal waste waste, you had originally even raised in a proposed rule that you were going to be getting one of the C6 elements.

[00:29:41] Speaker 06:
And then in comments, in response to that proposed rule, you said, contrary to common sense, EPA did not purport to use other pollutants emitted by the large MWC as surrogates for

[00:29:54] Speaker 06:
PCB and POM.

[00:29:55] Speaker 06:
So there, if your theory is right, your original rule there would have been covering all this, but then you have comments that are telling the world, no, no, no, we're not purporting to get these things through surrogacy.

[00:30:07] Speaker 06:
And then now you've got a determination that we got those things through surrogacy.

[00:30:11] Speaker 06:
So it seems

[00:30:12] Speaker 06:
It's a little bit of whack-a-mole going on here with what you're doing.

[00:30:16] Speaker 06:
We didn't do it.

[00:30:17] Speaker 06:
We didn't say we do it.

[00:30:17] Speaker 06:
Oh, you should have known we're doing it.

[00:30:19] Speaker 06:
But even when someone asked, we said we weren't doing it, but we mentioned it.

[00:30:22] Speaker 06:
Or maybe we didn't even mention it at all, but you should have known.

[00:30:25] Speaker 06:
And we've had all this litigation about the need for this determination about surrogacy.

[00:30:30] Speaker 06:
We have law on what you have to show to establish surrogacy to satisfy C6.

[00:30:37] Speaker 06:
And they just want to challenge that.

[00:30:38] Speaker 06:
And I just don't understand why.

[00:30:40] Speaker 06:
Well, why the hell they were supposed to do it before you even had the concept of surrogacy out there for anybody to know about?

[00:30:45] Speaker 05:
Surrogacy is simply another way of regulating or setting a standard.

[00:30:52] Speaker 05:
If you're supposed to cover all of the pollutants, then that can be done directly or by surrogacy.

[00:31:00] Speaker 05:
And if it was not done in the original rulemaking, it should have been bought up then.

[00:31:06] Speaker 06:
Unless EPA was saying, well, no, no, we're not there yet.

[00:31:08] Speaker 06:
And that's why we have litigation about you haven't done your job yet under C6.

[00:31:12] Speaker 05:
Well, that's why we have litigation.

[00:31:14] Speaker 05:
But that doesn't answer the question as to whether the purpose of the litigation is to reopen the old rules and decide whether or not they actually met the obligations under D.

[00:31:28] Speaker 06:
They say they don't have any interest in reopening the old rules.

[00:31:31] Speaker 06:
You just have another job that needs to be done here and hasn't been done.

[00:31:36] Speaker 06:
I mean, maybe you have, if you made the record to show these surrogates.

[00:31:41] Speaker 06:
I don't mean to jump ahead.

[00:31:42] Speaker 06:
Maybe you could show these surrogacy actually work.

[00:31:45] Speaker 06:
And so you actually have done the job.

[00:31:48] Speaker 06:
But you haven't done that job yet.

[00:31:50] Speaker 05:
In order to say additional work is necessary, what the court would have to say is that the original rule

[00:31:59] Speaker 05:
did not meet its obligations.

[00:32:02] Speaker 06:
No, hear what I want to say.

[00:32:04] Speaker 06:
Do you agree that to use a surrogate to satisfy C6, you have to establish the reasonableness of that surrogate under our precedent?

[00:32:14] Speaker 06:
Do you agree with that?

[00:32:16] Speaker 06:
I do.

[00:32:17] Speaker 06:
Do you agree that none of those prior rules met our standard for establishing surrogacy?

[00:32:27] Speaker 06:
Do you agree?

[00:32:28] Speaker 05:
Many of them did not.

[00:32:30] Speaker 06:
Can you tell me which of them did?

[00:32:31] Speaker 05:
Well, what I will say is that this is limited to a specific number of rules identified.

[00:32:37] Speaker 05:
So which of these rules do you think met our national LIME standard?

[00:32:40] Speaker 05:
We'll say for this argument, and I understand that this is binding for the opinion, that they did not.

[00:32:46] Speaker 05:
But again, what you would have to do.

[00:32:49] Speaker 06:
No, no, I just want to go through this.

[00:32:50] Speaker 06:
We have a standard for surrogacy.

[00:32:52] Speaker 06:
None of your rules met that surrogacy.

[00:32:57] Speaker 06:
None of them told anybody that surrogacy, they were meant to do the job of satisfying C6 via surrogacy until the determination came out.

[00:33:12] Speaker 06:
Then the public was on notice that, oh,

[00:33:17] Speaker 06:
You thought those satisfied C6, even though they didn't mention the HAP.

[00:33:22] Speaker 06:
You thought they did it via surrogacy.

[00:33:24] Speaker 06:
We didn't know that.

[00:33:26] Speaker 06:
But now that you've made this determination, we're on notice of what you've done.

[00:33:30] Speaker 06:
And we're challenging that surrogacy determination.

[00:33:33] Speaker 06:
We're not challenging your direct regulations.

[00:33:35] Speaker 06:
We're challenging that your surrogacy was a proper use of surrogacy, where you admit you aren't directly regulating.

[00:33:43] Speaker 05:
But what

[00:33:45] Speaker 05:
happened in the past rules was that EPA concluded that all of the listed pollutants, which include the C6, were adequately regulated.

[00:34:02] Speaker 05:
EPA could not have met its obligation under those portions of Section 112 unless it had

[00:34:14] Speaker 05:
adequately regulated all of the pollutants, including the 1C6.

[00:34:19] Speaker 05:
Now, at that point, they could have come forward and said to the court, they haven't regulated POM or HCB or whatever, even though they were required to because it's a listed pollutant.

[00:34:35] Speaker 05:
And at that point, the court could have said, you don't meet the standard.

[00:34:42] Speaker 06:
Do you take that position for emission standards that were established even before you listed your C6 sources?

[00:34:48] Speaker 05:
We are because what could have happened and what did happen, to the extent that people believe the 1998 notice listing what sources they were going to do, that was answered when that federal register notice was published.

[00:35:07] Speaker 05:
Now, Sierra Club,

[00:35:08] Speaker 05:
then filed a positional, a HOTO position, saying that EPA should reopen the prior rule-making so that they could address 112C6 issues.

[00:35:23] Speaker 05:
The administrator answered that petition.

[00:35:26] Speaker 05:
Petitioners or Sierra Club then filed a petition for review, which was dismissed voluntarily.

[00:35:34] Speaker 05:
The court never considered it.

[00:35:36] Speaker 05:
So yes, it is possible that the 1998 notice could have been viewed as a new condition or a new event, warranting reopening of the old rules.

[00:35:47] Speaker 05:
But that would have happened many years ago.

[00:35:50] Speaker 05:
that this debate over surrogacy is no more an argument over whether the original rules their obligation to me we don't agree well agency has in the final rule

[00:36:18] Speaker 05:
not made that determination, specifically in the final rule, which petitioners talked a great deal about the proposed rule.

[00:36:26] Speaker 05:
But of course, what's in front of the court is the final rule.

[00:36:30] Speaker 05:
And in the final rule, EPA said that the information in the proposed determination described the prior rulemakings and explained how the surrogate standards work.

[00:36:43] Speaker 05:
But the proposed determination did not reopen those prior standards.

[00:36:48] Speaker 05:
Thus, EPA did not take final action on determining whether or not a surrogate was viable, but instead adhered to the position that the question of whether these pollutants were regulated, be it by surrogacy or any other mechanism, was answered when the standards were promulgated and petitions for review were either not filed or not followed through.

[00:37:17] Speaker 05:
It's clear from the Sierra Club petition under Al Hato, which is cited in the brief and in the record, that petitioners were aware of this issue a long time ago and could have and didn't pursue it.

[00:37:32] Speaker 05:
And so for that reason, we think that the court has to look not only at the obligations under 7412, but also has to keep in mind

[00:37:44] Speaker 05:
the general provision for timing in 7607.

[00:37:48] Speaker 05:
And it has a specific provision in it for reopening based on new information.

[00:37:55] Speaker 05:
Here, petitioners are arguing that a discussion of surrogacy in the proposal is a new event.

[00:38:03] Speaker 05:
My argument is that it is not a new event because... My more recent question is, suppose we disagree with you on that

[00:38:12] Speaker 02:
The agency did not take final action on the surrogacy question.

[00:38:24] Speaker 05:
And so what it would have to do is go back and reopen the rule makings based on records that are not.

[00:38:34] Speaker 06:
I guess I'll just confess to you I'm a bit baffled about how

[00:38:38] Speaker 06:
They were supposed, if you haven't, you still haven't even made a final determination on surrogacy, and yet they were supposed to have five, 10, 15 years ago have challenged your emission standards via surrogacy.

[00:38:55] Speaker 06:
No.

[00:38:56] Speaker 05:
I'm sorry, Your Honor.

[00:38:56] Speaker 06:
If I could just... So if they had challenged those back then when you say they should have,

[00:39:05] Speaker 06:
How are they supposed to challenge the insufficiency of the surrogate when you never announced that's what you were doing?

[00:39:10] Speaker 05:
Because with EPA, surrogacy is another means.

[00:39:15] Speaker 05:
of setting a standard.

[00:39:17] Speaker 05:
So you have the requirement that a standard be set.

[00:39:20] Speaker 05:
In some instances, they may do surrogacy.

[00:39:23] Speaker 06:
As to the things you're claiming, surrogacy, that's just an admission that you didn't directly regulate those pollutants in the prior standards.

[00:39:31] Speaker 05:
I disagree with that, respectfully.

[00:39:34] Speaker 05:
And also, more importantly, what I'm saying, Your Honor, is whether they use a surrogacy decision is part of setting the standards

[00:39:45] Speaker 05:
under D2.

[00:39:49] Speaker 05:
And if under D2 EPA promulgates a regulation that petitioners believe does not adequately meet all the obligations, which include the obligation to regulate the listed pollutants, which include the C6, at that point they should have come to the court

[00:40:15] Speaker 05:
and said you didn't regulate these pollutants.

[00:40:20] Speaker 06:
And to be clear, you're saying that even before you identified that the source you're regulating is a source of the C6 pollutants.

[00:40:27] Speaker 06:
To be clear, that's your position.

[00:40:28] Speaker 05:
No.

[00:40:30] Speaker 06:
That's your pre-1998 standards?

[00:40:32] Speaker 05:
No.

[00:40:33] Speaker 05:
The standard by the statute is it has to regulate all pollutants that are listed.

[00:40:39] Speaker 06:
Regulate sources, emissions of pollutants.

[00:40:42] Speaker 05:
Under C6.

[00:40:44] Speaker 05:
But if you look, and that's part of my argument.

[00:40:48] Speaker 06:
D1, D2 regulates sources, emissions.

[00:40:51] Speaker 06:
And so before EPA had even said that something was a source of polycyclic organic matter, you hadn't even done your list yet.

[00:41:00] Speaker 06:
What the sources are for that particular pollutant, they were supposed to know that even though you didn't mention it, you hadn't identified the source, and you didn't claim surrogacy, they were still supposed to know that they were going to challenge that.

[00:41:12] Speaker 05:
No, what I'm saying is that even if you look that what plaintiffs are doing is divorcing C6 from the remainder of the statute.

[00:41:25] Speaker 05:
And the remainder of the statute establishes very specific obligations.

[00:41:32] Speaker 05:
Sources are listed.

[00:41:34] Speaker 05:
This list included the ones identified by petitioners in their brief.

[00:41:40] Speaker 05:
EPA,

[00:41:42] Speaker 05:
lists, well Congress listed a lot of them, as to the pollutants that should be regulated.

[00:41:48] Speaker 05:
So at that point, you had a category and you had the pollutants.

[00:41:53] Speaker 05:
All of this had to be regulated through D2 standards.

[00:41:59] Speaker 05:
Regardless of whether it is one of the C6 pollutants, you have the same obligation.

[00:42:06] Speaker 05:
all the hats submitted by the source category must be listed.

[00:42:11] Speaker 05:
That's what happened in the original rules.

[00:42:15] Speaker 05:
At that point, if petitioners believed that those standards did not adequately govern POM or whatever pollutant is of issue, they could have come back to EPA and said,

[00:42:34] Speaker 05:
You didn't meet your obligations because you didn't cover this one thing, one pollutant.

[00:42:40] Speaker 05:
At that point, EPA would have had to demonstrate to the court that it did meet that criteria or establish a D2 standard.

[00:42:52] Speaker 05:
If EPA could not make that showing, the court would send it back.

[00:42:57] Speaker 05:
EPA at that point could have done it through surrogate

[00:43:00] Speaker 05:
They could have explained a more direct regulation.

[00:43:03] Speaker 05:
They could have done essentially what plaintiffs or petitioners are saying they should be doing now.

[00:43:10] Speaker 05:
And again, the best illustration of that is in the petition, the administrative AHADA petition that Sierra Club filed.

[00:43:21] Speaker 05:
That raises many of these same arguments, and again, that

[00:43:27] Speaker 05:
There was a petition for review filed with this court, which was dismissed.

[00:43:33] Speaker 05:
So our argument is that the underlying standards had to meet the obligation of establishing D2 standards for the pollutants listed in C6, which overlap with all the other pollutants listed.

[00:43:55] Speaker 05:
and for the same source categories, which again were subject to the prior requirements.

[00:44:02] Speaker 05:
And that if petitioners were dissatisfied with the scope of those, they could have brought it to the court.

[00:44:11] Speaker 05:
And at that juncture, if the court agreed with them, EPA would have had to go back and do further rulemaking to address

[00:44:23] Speaker 05:
whether through surrogacy or some other method, depending on the technology, the question of whether POM was adequately regulated, for example.

[00:44:35] Speaker 05:
It's the fact that C6 did not require, did not impose additional requirements on the regulation of a specific pollutant emitted from a specific major source.

[00:44:53] Speaker 05:
than was done under subpart C, the other parts of C and D. So by doing that, any shortcomings could have been raised and presented to the court.

[00:45:06] Speaker 05:
EPA could have resulted in an explanation, could have resulted in a surrogacy determination, whatever.

[00:45:13] Speaker 05:
But it would have happened back in the time frame when the rules were published.

[00:45:18] Speaker 05:
There's nothing in the statute that suggests C6 was intended as an avenue to reopen the standards that had been promulgated over the supposed to have been 10-year period ahead of time.

[00:45:34] Speaker 05:
It's what petitioners, although they describe it as surrogacy, what they are trying to do is use C6, which is supposed to be a summation and to include area sources where necessary to reach the threshold.

[00:45:51] Speaker 05:
They're trying to use that as an avenue to go back and investigate the adequacy of the underlying standards and whether they meet the statutory criteria.

[00:46:04] Speaker 05:
And we believe that that is contradicting to 7607, the jurisdictional limit on timing, which, of course, the court has to take into consideration.

[00:46:16] Speaker 05:
The surrogacy determinations that they refer to were not determinations.

[00:46:22] Speaker 05:
In the preamble to the final rule, EPA specifically disclaimed any intent to go back and reopen whether those final rules met

[00:46:33] Speaker 05:
the statutory requirements.

[00:46:37] Speaker 05:
The debate is now to somewhat extent over-format.

[00:46:43] Speaker 05:
But the statutory question of whether the thresholds were met was answered back when the original rules were filed and was, of course, I mean, let's say answered.

[00:46:55] Speaker 05:
I mean, answered by EPA.

[00:46:56] Speaker 05:
Anybody could have brought it to this court where they may have gotten a different answer.

[00:47:02] Speaker 05:
But it would have been years ago.

[00:47:04] Speaker 05:
The 112C6 simply does not give them a basis to ignore that statutory requirement.

[00:47:13] Speaker 05:
So they had an ample opportunity to raise these.

[00:47:17] Speaker 05:
They did not.

[00:47:19] Speaker 05:
And when the statute is considered as a whole, I believe it shows that these are questions that should have been raised, that could have been raised.

[00:47:29] Speaker 05:
The administrative petition illustrates that Sierra Club

[00:47:33] Speaker 05:
was certainly well aware of enough of what was going on to present the question, which an El Hato petition is reviewable by this court.

[00:47:44] Speaker 05:
They sought review and then dismissed the petition.

[00:47:47] Speaker 05:
So even though I still have

[00:47:51] Speaker 05:
much time, excuse me, time left.

[00:47:55] Speaker 02:
Oh, I'm sorry.

[00:47:59] Speaker 05:
I'm sorry, Your Honor.

[00:48:01] Speaker 05:
I apologize.

[00:48:02] Speaker 05:
I meant to be answering the questions.

[00:48:04] Speaker 03:
Yes, we asked a lot of questions.

[00:48:07] Speaker 03:
That's fine.

[00:48:07] Speaker 03:
We're trying to get your assistance.

[00:48:09] Speaker 05:
Sure.

[00:48:10] Speaker 05:
So I was getting confused by the clock.

[00:48:13] Speaker 05:
I'm sorry.

[00:48:13] Speaker 03:
Thank you, Your Honor.

[00:48:14] Speaker 03:
Thank you.

[00:48:16] Speaker 03:
All right, Council on 4.

[00:48:24] Speaker 00:
Just very quickly, I'd like to respond to opposing counsel's claim that EPA concluded in prior rules that the prior rules covered all of the 187 hazardous air pollutants listed.

[00:48:37] Speaker 03:
That's not quite what she said.

[00:48:40] Speaker 00:
Well, I believe.

[00:48:42] Speaker 03:
That there was overlap between the seven listed in C6, and they're also in A. And so when EPA did these prior rules,

[00:48:53] Speaker 03:
it met, at least as far as EPA was concerned, whatever 112 required.

[00:49:00] Speaker 00:
Well, the first point I'd like to make in response is that EPA's record rationale in this determination was not that the prior rules themselves purported to set standards for the C6 pollutants.

[00:49:12] Speaker 00:
EPA's rationale in this determination in the final rule was reliance on surrogate claims.

[00:49:20] Speaker 00:
And that's on page 28 of the JA.

[00:49:24] Speaker 00:
where EPA says the emission standards that collectively satisfy the 90% requirement under Clean Air Act section 112C6 were set by the EPA under two approaches.

[00:49:34] Speaker 00:
And the second approach is through standards that set emission limits for another HAP or compound, which serves as a surrogate for the Clean Air Act section 112C6 HAP.

[00:49:46] Speaker 03:
So what's the first?

[00:49:48] Speaker 00:
through standards that directly regulated the Clean Air Act, Section 112C6.

[00:49:53] Speaker 03:
So that's the argument that's being made.

[00:49:57] Speaker 00:
EPA did not claim as to the 17 rules at issue that it set direct D2 standards for the 112C6 pollutants, and they claim they do not.

[00:50:09] Speaker 06:
There are some they said direct, and you're not challenging those, correct?

[00:50:11] Speaker 00:
That's correct.

[00:50:12] Speaker 00:
For the 17 source categories that we are challenging, EPA claimed that it had set standards for another pollutant that it now claims is a surrogate for the 112C6 pollutants.

[00:50:25] Speaker 06:
When those old standards came out, you should have looked at them and said, wow, this isn't getting POM.

[00:50:35] Speaker 06:
What's your answer?

[00:50:39] Speaker 00:
that the prior standards failed to set standards just shows that the prior rules failed to set standards for the 112C6HAP just shows that they failed to set standards.

[00:50:51] Speaker 00:
It doesn't establish that EPA's determination is correct, that EPA's claim that it sets standards through surrogates is correct.

[00:50:59] Speaker 06:
Does EPA have to identify, when it sets a standard, does it have to identify in that standard which pollutants it's getting?

[00:51:08] Speaker 00:
EPA has an obligation, EPA agrees it has an obligation to set D2 standards for all of the 112C6 pollutants.

[00:51:17] Speaker 00:
Yes.

[00:51:18] Speaker 06:
That's a different question than saying does the rule itself have to put people on notice that this rule is getting these, this area source for these pollutants that it emits?

[00:51:29] Speaker 06:
Does it have to say which ones it thinks the standard is getting?

[00:51:32] Speaker 00:
Well, in this determination, at the very least, EPA has to explain how the previous rules on which it's relying regulate the 112C6 HAP.

[00:51:44] Speaker 00:
And certainly, if the prior rules didn't even mention the 112C6 HAP, EPA needs to explain.

[00:51:50] Speaker 06:
Well, they just said we're getting hazardous air pollutants.

[00:51:53] Speaker 06:
And so is your position that wasn't sufficient that they had to?

[00:51:59] Speaker 06:
because they talked about specific pollutants in those prior rules, which did not happen to include any discussion of things like POM.

[00:52:07] Speaker 06:
And so they say, even though we didn't mention POM, you should have looked at that rule and said, oh, they're getting hazardous air pollutants.

[00:52:15] Speaker 06:
We should challenge it now for not discussing or capturing polycyclic organic matter to the standards we think apply.

[00:52:24] Speaker 00:
Our position is that to set a standard for a 112C6 pollutant, EPA must at the very least claim to be setting a standard for the 112C6 pollutant.

[00:52:37] Speaker 03:
Even if it says we've met all the requirements under 112.

[00:52:42] Speaker 03:
That's what I need to be clear on.

[00:52:47] Speaker 00:
Well, first of all, EPA did not say that in the prior rules.

[00:52:51] Speaker 00:
EPA did not claim to be setting standards for all of the 112 C6 pollutants or claim to satisfy the entire statute, or all of Section 112.

[00:53:00] Speaker 00:
EPA did not make that claim.

[00:53:02] Speaker 03:
Second of all- You know, you understand the qualification I put when you made that statement in your first comment on the panel.

[00:53:11] Speaker 03:
And you're saying in response to me that it didn't even

[00:53:16] Speaker 03:
indicate that for the seven pollutants listed in C6, that somehow those rules, the old rules, address the C6.

[00:53:31] Speaker 03:
And EPA says, look, in the old rules, we said we've done everything that 112 requires as to the pollutant we are now regulating.

[00:53:44] Speaker 03:
And EPA says, look at your

[00:53:46] Speaker 03:
Your client's own petition earlier was perfectly clear.

[00:53:52] Speaker 03:
They understood, your client understood this and sought review by the administrator.

[00:53:58] Speaker 03:
It was turned down.

[00:54:00] Speaker 03:
Your client filed an appeal and withdrew it.

[00:54:03] Speaker 03:
So by those actions, you've indicated, your client has indicated it knew precisely what it needed to do

[00:54:16] Speaker 03:
in order to make the argument that you're making today.

[00:54:20] Speaker 00:
Judge Riders, we knew that EPA, we knew as of around 2000, that EPA had failed to set the standards it was required to set under 112C6.

[00:54:30] Speaker 03:
And so you filed a petition with the Administrator.

[00:54:34] Speaker 00:
As to?

[00:54:34] Speaker 03:
You turned it down, in that one, all right, and then you withdrew your appeal.

[00:54:40] Speaker 03:
But I mean, my only point is, I thought we were just examining the notice issue, because now, getting to whatever it is, Chapter 7, 7, 7607, that's what I'm trying to be clear about.

[00:54:55] Speaker 00:
What we were on notice of, and this was after the issuance of those prior rules, was that EPA had failed to comply with Section 112C6.

[00:55:03] Speaker 00:
EPA had failed to set standards for pollutants that EPA now agrees it was required to set standards for.

[00:55:10] Speaker 00:
And that's why we filed a deadline suit to compel EPA to take that

[00:55:14] Speaker 00:
mandatory action and that's why EPA, EPA itself represented to the district court because it didn't want the district court to inquire whether EPA had actually set standards for the 112C6 HAP, that it was going to issue this determination and that this determination would be judicially reviewable and that this was the place for this court to determine whether EPA had actually set the standards required by section 112C6.

[00:55:43] Speaker 03:
So under the language of our first appeal, we would have to conclude that this is doing something new that no one had any notice about at the time the original rules were promulgated?

[00:56:00] Speaker 00:
Well, it would be sufficient, Judge Rogers, for this Court to conclude that EPA has done something new here.

[00:56:06] Speaker 03:
I guess, I mean I'm just trying to make this as simple as possible.

[00:56:10] Speaker 03:
If an agency says we have all these obligations under 112, we're regulating for pollutant A. If you read 112, pollutant A is both in subsection A and it's in subsection C6.

[00:56:23] Speaker 03:
And it says we've done everything that's required under 112.

[00:56:28] Speaker 03:
And nobody challenges it.

[00:56:32] Speaker 00:
Well, first of all, EPA did not say that it had done everything that was required under 112A in your hypothetical example.

[00:56:40] Speaker 03:
No, no, no.

[00:56:40] Speaker 03:
I understand it didn't say it in those words, but it said, we're regulating pollutant A. And in my hypothetical, pollutant A is listed in subsection A, and it's also listed in subsection C6.

[00:56:56] Speaker 03:
And so EPA says, pursuant to our obligations under 112,

[00:57:01] Speaker 03:
we're regulating pollutant A. Nobody challenges it.

[00:57:06] Speaker 03:
And then so years later, when it has to show this 90% achievement, it lists its regulation of pollutant A.

[00:57:19] Speaker 03:
If EPA had said in the prior rules that it was setting D2 standards for pollutant A, then it could... But 112 required it to do that for A. In my hypothetical, just deal with my hypothetical if you will, and I understand you can make some distinctions here, but I'm just trying to respond to what I understand EPA's argument today.

[00:57:40] Speaker 00:
As I understand your hypothetical, EPA said in the prior rule that it was setting a standard for pollutant A, and pollutant A is also listed under Section 112C6.

[00:57:51] Speaker 00:
Then in this determination, EPA could point to that rule and say, and count it, we have set a D2 standard for pollutant A, here's where we did it, and we are taking credit for it under Section 112C6.

[00:58:05] Speaker 03:
And that's all it should have said.

[00:58:06] Speaker 03:
But instead it said, is this your argument?

[00:58:10] Speaker 03:
We're relying on a surrogate?

[00:58:12] Speaker 00:
Our argument is that EPA did not say in the prior rules that it was setting standards for pollutant A. Either directly or through surrogates.

[00:58:30] Speaker 03:
Anything further?

[00:58:33] Speaker 00:
Nothing further.

[00:58:33] Speaker 00:
We would respectfully request the court to vacate the determination.

[00:58:38] Speaker 03:
Thank you.

[00:58:39] Speaker 03:
We'll take the case under advisement.