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Case 16-1021, et al.

[00:00:03] Speaker 00:
Sierra Club, et al.

[00:00:05] Speaker 00:
Petitioners.

[00:00:06] Speaker 00:
First, the Environmental Protection Agency, et al.

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Mr. Pugh, Petitioners.

[00:00:11] Speaker 00:
Mr. Rave, Respondents.

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Ms.

[00:00:14] Speaker 00:
Freeman, Intervenors.

[00:01:19] Speaker 01:
I'd like to first address EPA's emission standards for carbon monoxide, which is the agency's surrogate for all but one of the organic hazardous air pollutants that industrial boilers emit, and then turn to the agency's work practice requirements for periods of startup and shutdown.

[00:01:44] Speaker 01:
Most of the 187 hazardous air pollutants that are listed in the Clean Air Act are organic hazardous air pollutants.

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Boilers emit, as I said, boilers burn a wide variety of very dirty fuels, including not just coal, but also tires, scrap plastics, industrial sludges, and not surprisingly, they emit a wide variety of organic hazardous air pollutants.

[00:02:08] Speaker 01:
EPA's carbon monoxide emission standards are the only limit on these emissions.

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They're the only protection that communities have against these dangerous pollutants.

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In the 2013 rule, EPA replaced 13 of the 36 carbon monoxide standards that had been promulgated just two years earlier with new and far weaker ones.

[00:02:32] Speaker 01:
Previous standards, previous 13 standards and all the other 23

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carbon monoxide standards that are still in the Industrial Voilage Rule, all satisfy Section 112D3 of the Act as the floor provision, and in accordance with that provision, they reflect the emission levels actually achieved by the best performing sources.

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These 13 revised standards do not.

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EPA refused to apply Section 112D3 to these 13 standards because it claimed, quote, carbon monoxide is not a good surrogate,

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at the emission levels that the best-performing boilers undisputedly achieve.

[00:03:12] Speaker 01:
If EPA does not believe that carbon monoxide is a good surrogate, the answer... What were you just quoting from when you said it's not a good surrogate?

[00:03:20] Speaker 01:
That's the response to comments documents at page 231 of the Joint Appendix.

[00:03:25] Speaker 02:
So Ed, can I ask you to explain your view as to what remains on this issue in the wake of the decision in U.S.

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Sugar?

[00:03:36] Speaker 02:
Because in U.S.

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Sugar, the panel said that the petitioners contended the EPA's decision to use carbon monoxide as a surrogate was arbitrary because the record demonstrated breakdown at these levels.

[00:03:51] Speaker 02:
And then the court goes on to say, but the EPA explained that this apparent breakdown was most likely caused by the difficulty of measuring the regulated HAP at such extremely low emission levels, rather than by a flaw in the correlation between carbon monoxide and organic HAPs.

[00:04:06] Speaker 02:
This is precisely the sort of scientific judgment to which we must defer.

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So that's the predicate against which we take this case.

[00:04:13] Speaker 01:
Well, actually, I can mention one thing.

[00:04:15] Speaker 01:
Actually, the court had two rulings.

[00:04:17] Speaker 01:
On page 628, it actually found that EPA had not adequately justified carbon monoxide as a surrogate because there are a number of other factors that affect

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organic hazardous air pollutant emissions that don't affect carbon monoxide and vice versa.

[00:04:29] Speaker 02:
Or there could be.

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You're talking about the alternate control mechanisms?

[00:04:32] Speaker 01:
Well, not only could there be.

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The Court said that they've been raised in comments.

[00:04:35] Speaker 01:
In fact, as in the record for this case, it's shown that they're raised in EPA's own statements in the Federal Register.

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EPA agrees that at least one organic hazardous air pollutant, polycyclic organic matter, POM,

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is reduced further beyond what the standards do, reduced further by add-on post-congestion control measures, including fabric filters and wet scrubbers and activated carbon injection.

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But to get back to your question about what's left, following that reman, EPAs might have to decide whether it can or wants to retain carbon monoxide as a surrogate.

[00:05:07] Speaker 01:
And if the agency decides that it wants to do so, then the question is, you know, are its standards sufficiently stringent to satisfy Section 112B3 of the Clean Air Act and Section 112B2?

[00:05:17] Speaker 07:
So we, I think we start under U.S.

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Sugar from

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The assumption that our court has rejected the broad argument that the data fuzziness at the low end completely precluded the EPA from using carbon monoxide as a surrogate.

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That's what we start with from U.S.

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Sugar.

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And now the question is,

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Assuming it's using carbon monoxide as a surrogate, can it desist from using it at when the combustion is closer to complete because of a little bit of data fuzziness?

[00:05:51] Speaker 07:
And I take your position to be that the parent breakdown was most likely caused by the difficulty of measuring rather than by a flaw in the correlation.

[00:06:01] Speaker 07:
They're saying this is a data measurement issue,

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not a surrogate is no good issue, and therefore, under that very logic, don't they need to carry it all the way through and use it to below 130?

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Is that your argument?

[00:06:20] Speaker 01:
I think I agree with Your Honor.

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Once they've chosen carbon monoxide as a surrogate, they need to carry it all the way through and set the standards for carbon monoxide that this statute requires.

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unless it has a non-arbitrary basis for punching a hole in that reliance at low emission levels.

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And your position is that it doesn't.

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EPA, I guess, would come back and say, well, no, we don't have a basis for regulating at levels below 130 because, hey, look at the data.

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And your response to that is?

[00:06:49] Speaker 01:
I think I'm close to your honor, but I don't think that even if EPA can retain carbon monoxide as a surrogate because it has some basis, some non-arbitrary basis for doing so, even then, EPA's carbon monoxide standards have to satisfy the statute.

[00:07:04] Speaker 01:
There is no non-arbitrary basis, there's no lawful basis that EPA can simply excuse itself from compliance with the statute.

[00:07:12] Speaker 07:
Right, I think we're getting a little, I'm trying to get a little more granular than that.

[00:07:15] Speaker 07:
And one of the difficulties I'm having is that some of your briefs seems to be struggling against what I take to have been decided in US sugar, which is that carbon monoxide is not an arbitrary surrogate in general.

[00:07:30] Speaker 07:
simply because of the breakdown in the data at the low end.

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And so it may be for the other reason, which is that there are other ways of achieving benefits that might call it into question.

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That's on remand.

[00:07:49] Speaker 07:
But in terms of, if we're just looking at the world of carbon monoxide as a surrogate,

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And then what I'm referring to is the data fuzziness at the low end.

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If that doesn't indict it as a surrogate in general, then your position has to be, okay, we'll take those terms, but it has to be used as a surrogate in general, including at levels below 130.

[00:08:11] Speaker 01:
Yes, that's exactly right.

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It has to be used as a surrogate.

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Of course, it's undisputed that EPA can meet its underlying statutory obligation to limit emissions of the organic hazardous air pollutants other ways.

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EPA could use other surrogates.

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It could set direct standards for the hazardous air pollutants that boilers emit.

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And of course, it's going to have an opportunity to consider that issue when it's responding to the remand.

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What it can't do is choose carbon monoxide as a surrogate, but then refuse to apply Section 112B3 to carbon monoxide.

[00:08:49] Speaker 02:
And how is it not doing that?

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Well, there's no dispute that EPA's carbon monoxide standards are much less stringent than the emission levels that EPA determined the best sources are achieving.

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Those were the 2011 standards.

[00:08:59] Speaker 02:
But as to carbon monoxide?

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Right.

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Having chosen carbon monoxide as a surrogate, EPA has to set lawful standards for carbon monoxide.

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It's literally standard.

[00:09:08] Speaker 02:
But I guess even if it's true that EPA could, we know by virtue of its prior standards, have lower levels for carbon monoxide.

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It has, and obviously 130 isn't the lowest number.

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You could actually go all the way down to zero.

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So just it's true that there's lower levels possible.

[00:09:27] Speaker 02:
But the statute doesn't treat with carbon monoxide, co-carbon monoxide for these purposes.

[00:09:33] Speaker 02:
It's only treating with carbon monoxide insofar as it's a surrogate for some other HAP, right?

[00:09:39] Speaker 01:
Right, so EPA has chosen carbon monoxide as a surrogate, but the only way a surrogate works, and by the way, every other time EPA has issued a surrogate, the assumption is that if it's a good surrogate, and you set the standards for the surrogate, that is, in this case, the standards for carbon monoxide that are going to satisfy the statute, you also get the reduction in the underlying hazardous air pollutants that will satisfy the statute.

[00:10:02] Speaker 01:
But EPA is the one that's claiming that doesn't happen here.

[00:10:05] Speaker 01:
So EPA is claiming that it's relieved from setting the standards from Section 112, that Section 112-D3 requires for carbon monoxide because it thinks it's not appropriate.

[00:10:14] Speaker 07:
Well, I don't think that's exactly their position, to be fair.

[00:10:17] Speaker 07:
They're saying we are meeting the statutory standard because to the extent that we have reliable data, we are requiring boilers to meet the standards of the best performing.

[00:10:32] Speaker 07:
and we'll hear from them what their position actually is.

[00:10:34] Speaker 07:
What I take your position to be is that the reason they can rely on a surrogate is because they have a reliable understanding of a chemical relationship between carbon monoxide and the organic half.

[00:10:51] Speaker 07:
That's why they can use data about formaldehyde to apply to other

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organic haps without specific data on the other haps, because they have a general scientific or chemical understanding of how those things relate, and so too at the lowest level, the fact that their data has some fuzziness in it, I take you to be arguing, doesn't actually give you reason to think that that relationship as a more sort of scientific matter actually breaks down.

[00:11:19] Speaker 07:
It's just a measuring problem.

[00:11:20] Speaker 01:
Is that your position?

[00:11:21] Speaker 01:
I don't think so, Your Honor.

[00:11:23] Speaker 01:
We're happy if EPA wants to drop

[00:11:25] Speaker 07:
I understand you're happy if they want to drop it, but to the extent that there is not any other ground on which, and I know that's on remand, but to the extent that there is not any other ground indicting carbon monoxide as a standard, and therefore the EPA is committed to using it insofar as it can, I thought your position was insofar as it can includes levels below 130.

[00:11:52] Speaker 07:
because even though they may have some fuzziness in the data, they have an understanding of combustion that supports using it all the way down.

[00:12:03] Speaker 01:
I think that's close to your eye.

[00:12:04] Speaker 01:
I would say, insofar as they do, we take no position on whether EPA's rationale is correct there or not.

[00:12:10] Speaker 01:
We're simply saying, for whatever EPA's reasons are, EPA is choosing to use carbon monoxide as a surrogate.

[00:12:16] Speaker 01:
But if I can get back to your first question, I think that's a really revealing one.

[00:12:20] Speaker 01:
EPA did not actually ever claim that these spoilers, that these standards reflect the best performers for the underlying hazardous air pollutants either.

[00:12:28] Speaker 01:
And that's what is so wrong with this.

[00:12:31] Speaker 01:
What EPA, and that's a complete post-doc rationality, EPA never claimed in the record that these standards reflect what the best sources perform with respect to organic hazardous air pollutants.

[00:12:43] Speaker 01:
All EPA ever claimed was that these standards reflect what can be achieved with a single

[00:12:50] Speaker 01:
control measure, which is carbon monoxide control.

[00:12:53] Speaker 01:
Right.

[00:12:53] Speaker 07:
Their theory why that reflects the best performers is, I thought, a tool in your toolkit for the particular issue before us on carbon monoxide in this case, which is they say they're persuaded that the relationship between carbon monoxide and the organic haps is consistent and strong enough that when they control

[00:13:18] Speaker 07:
for carbon monoxide, they are effectively controlling for those other things.

[00:13:22] Speaker 07:
Therefore, they look at the best performers in terms of carbon monoxide, and they've done their job, right?

[00:13:27] Speaker 07:
That's their position, as you understand it.

[00:13:32] Speaker 01:
that's well I think their their claim is simply this you you don't get any further reductions in organic caps by lowering the CEO level further that's what they say in the in the in the record.

[00:13:43] Speaker 01:
On the 130 threshold.

[00:13:45] Speaker 01:
On the 130.

[00:13:45] Speaker 07:
I'm saying the more general matter they're saying you know this is a reliable correlation and then we get into this question about why are they punching a hole in it at the lower levels and you're saying their position is you don't get further reductions.

[00:13:58] Speaker 01:
They're saying they don't get further reductions.

[00:13:59] Speaker 01:
And so we have really two responses to that.

[00:14:02] Speaker 01:
One is, under the statute, it's irrelevant.

[00:14:03] Speaker 01:
Having chosen CO as a surrogate, they need to set lawful CO standards.

[00:14:06] Speaker 01:
The other is, it's just not true.

[00:14:08] Speaker 01:
And there's no basis for that in the record.

[00:14:10] Speaker 01:
In fact, the record shows that there are organic hazardous air pollutants at CO levels below 130 parts per million, which is the level of EPA standards.

[00:14:19] Speaker 01:
And that's at page 116 to 118 of the record, which shows clearly that there are organic hazardous air pollutant emissions at all CO levels.

[00:14:28] Speaker 01:
And the other, of course, is EPA's own statements that these organic hazardous air pollutants can be and are being reduced already by other control means.

[00:14:39] Speaker 01:
So these standards don't, I mean, we don't think it's the right legal test, but even if it were, these standards don't purport to reflect the best performance with respect to carbon monoxide.

[00:14:46] Speaker 02:
But we have to take as a given after US sugar that I think that, or I'll just ask for your reaction to this, that at levels below CO-130,

[00:14:58] Speaker 02:
There's, it's difficult, if not impossible, to measure the haps.

[00:15:05] Speaker 01:
I don't think that's what U.S.

[00:15:07] Speaker 01:
Sugar was holding.

[00:15:08] Speaker 02:
Okay.

[00:15:08] Speaker 01:
But there's one question that, I mean, what the record actually shows is that there are measurable... So I know you have an argument under the record.

[00:15:16] Speaker 02:
I'm just, and I'm just wondering what flexibility we have given what U.S.

[00:15:22] Speaker 02:
Sugar says, and what is it in U.S.

[00:15:24] Speaker 02:
Sugar that doesn't?

[00:15:25] Speaker 02:
approximately less.

[00:15:27] Speaker 01:
What U.S.

[00:15:27] Speaker 01:
Sugar was saying is EPA may not have fully been able to explain what was going on at levels below 130 parts per million, but we're not going to let that stop us from okaying the use of

[00:15:42] Speaker 01:
carbon monoxide is a surrogate at those levels.

[00:15:45] Speaker 01:
We're going to defer to the agency on that point.

[00:15:48] Speaker 01:
But it didn't hold that as a matter of fact there are either no organic hazards air pollutant emission levels or, you know, unmeasurable organic hazards air pollutant emission levels of those.

[00:16:01] Speaker 02:
Why didn't it say the latter?

[00:16:02] Speaker 02:
Because I thought what we said was, but the EPA explained that this apparent breakdown was most likely caused by the difficulty of measuring the regulated HAP at such extremely low emission levels, rather than by a flaw in the correlation.

[00:16:14] Speaker 02:
This is precisely this judgment being the judgment that there's a difficulty in measuring the regulated HAP at such extremely low levels.

[00:16:22] Speaker 02:
It's precisely the sort of scientific judgment to which we must defer.

[00:16:25] Speaker 01:
I think the question the court was trying to answer there is, had EPA explained itself well enough to justify CO as a surrogate against that particular argument.

[00:16:32] Speaker 01:
And it said, yes, there's enough explanation there.

[00:16:34] Speaker 01:
But it wasn't an actual finding that there simply are no emissions there.

[00:16:38] Speaker 01:
And again, that finding would be completely at odds with the record here, which is that there are.

[00:16:43] Speaker 07:
So I'm interested, Mr. Pugh, in what you think EPA is talking about when it refers to carbon monoxide as a conservative surrogate.

[00:16:54] Speaker 07:
I'm looking at J.A.

[00:16:57] Speaker 07:
16, and this is the 2013 January Federal Register, because carbon monoxide is a difficult to destroy refractory compound.

[00:17:10] Speaker 07:
It is a conservative surrogate for destruction of hydrocarbons, including organic haps.

[00:17:18] Speaker 07:
What do you take them to be meeting there about it being a conservative?

[00:17:21] Speaker 01:
Well, to begin with, they're talking about one organic half.

[00:17:25] Speaker 01:
Their entire discussion is comparing carbon monoxide to formaldehyde, which is not only just one organic hazard seriflutin that EPA never claims representative of the others, but is not even like other organic hazard seriflutins.

[00:17:41] Speaker 07:
I think you're fighting against, you're fighting an issue that I don't take to be before us.

[00:17:47] Speaker 07:
Bracket that.

[00:17:48] Speaker 07:
So what do you take them to be saying about it being a conservative surrogate?

[00:17:53] Speaker 01:
Everything they're saying in that passage on page 16 of the Joint Appendix and also in the response to comments leads to the conclusion, their conclusion, that they can't get any further reductions in organic hazardous air pollutants by lowering CO levels below 130 parts per million.

[00:18:09] Speaker 07:
Is that their position?

[00:18:09] Speaker 07:
I didn't take that to be their position, that they can't get any further reductions.

[00:18:14] Speaker 07:
I took their position to be that they can't reliably measure further reductions.

[00:18:21] Speaker 07:
And I thought that was your whole case, that they can't reliably measure.

[00:18:24] Speaker 07:
But hey, they don't need to measure.

[00:18:26] Speaker 07:
Because as with going across different organic compounds, so too going down the scale to the lower levels.

[00:18:34] Speaker 07:
They have a relationship between combustion and organic

[00:18:39] Speaker 07:
that they've embraced.

[00:18:41] Speaker 07:
If they really have embraced that, why aren't they embracing it with respect to levels lower than 130?

[00:18:48] Speaker 01:
I think that's much of our case, but I don't want to quibble with you agreeing with this.

[00:18:53] Speaker 01:
But they do say at page 16 of the Joint Appendix, and I think this is ultimately their conclusion, that their problem with the reason they want to set standards here is that they don't think reducing

[00:19:07] Speaker 01:
carbon monoxide levels below 130 parts per million will yield further reductions in organic caps.

[00:19:13] Speaker 01:
And the reason that that's wrong is that's just another iteration of the same unlawful floor approach that EPA has brought before this court unsuccessfully time and time again, where the agency claims that it can pick a particular control measure and set floors at levels that it thinks is achievable with that control measure.

[00:19:32] Speaker 02:
So suppose conceptually that, to follow up on Judge Pillers' question,

[00:19:36] Speaker 02:
If the EPA decides that carbon monoxide is a reliable surrogate, and one could say that one upshot of deciding that carbon monoxide is a reliable surrogate is that you should always try to reduce carbon monoxide as much as possible, period, because the supposition would be that that would necessarily beget at least

[00:19:57] Speaker 02:
some reductions in the HAP, if not equivalence.

[00:20:00] Speaker 02:
But then suppose there's evidence that actually when you get below 130 and you start going even lower, and I don't know the chemistry behind this, I don't understand it, but maybe it's continued combustion becomes inefficient at that point or something, but then the underlying HAP actually goes up.

[00:20:16] Speaker 02:
then that would be a situation in which it's not true that continuing to reduce the CO level necessarily is producing the desirable outcome vis-a-vis what we really care about at the end of the day, which is the underlying HAP, right?

[00:20:29] Speaker 01:
Well, that's right.

[00:20:30] Speaker 01:
And I think if EPA really determined that it is futile to set the standards the statute requires for carbon monoxide, it needs to abandon carbon monoxide as a surrogate, which it can do.

[00:20:41] Speaker 02:
So that's your answer to that?

[00:20:42] Speaker 02:
Because I thought there actually was evidence, I can't remember, I thought there was some evidence in the record to the effect that when you go below CO130, that actually it can result, was it formaldehyde, that actually it can result in some increase on the underlying HAP.

[00:20:57] Speaker 01:
You did make that claim.

[00:20:59] Speaker 01:
Our point is just that it's EPA's choice about whether it wants to use carbon monoxide as a surrogate.

[00:21:04] Speaker 01:
Having done so, if it wants to persist in using carbon monoxide as a surrogate, those standards have to satisfy the statute.

[00:21:10] Speaker 01:
But we're not insisting that EPA, you know, keep CO as a surrogate or that it ratchet, we don't, you know, we're not saying that the solution has to be ratcheting down

[00:21:20] Speaker 01:
the CO level.

[00:21:22] Speaker 01:
What we're saying is EPA's got to set lawful standards and if it's really EPA's contention that setting lawful CO standards is futile, the agency needs to look elsewhere.

[00:21:31] Speaker 02:
So your answer to the proposition that reducing CO still further might actually have

[00:21:38] Speaker 02:
an adverse effect on the level of the haphazard.

[00:21:42] Speaker 02:
Well, then that just teaches you that you shouldn't use CO as a surrogate.

[00:21:46] Speaker 01:
Yeah, I think that's an excellent reason not to use CO as a surrogate, because as the court held in your sugar, the whole point of a surrogate is that you get the reduction in the underlying organic haps that you're supposed to get by setting the law for surrogate.

[00:21:57] Speaker 01:
So before I move on to the other points, I'd like to say EPA standards also don't satisfy Section 112D2.

[00:22:03] Speaker 01:
They don't report to reflect the maximum degree of reduction that is achievable considering cost in organic hazardous air pollutants.

[00:22:10] Speaker 01:
And I'll just briefly touch on the point that EPA's claims, both about compliance with Section 112D2 and 112D3 in the agency's briefs, are post-doc rationales.

[00:22:20] Speaker 01:
There are no claims that these standards reflect either the best sources or what is achievable with the best sources.

[00:22:26] Speaker 01:
May I move on and talk about startup and shutdown?

[00:22:30] Speaker 01:
I realize we spent a lot of time on... Thank you, Your Honor.

[00:22:35] Speaker 01:
Just very quickly, the importance of these startup and shutdown standards is that these are periods of time when boilers are allowed not to operate their controls or burn clean fuels.

[00:22:47] Speaker 01:
Controls are so effective that when they're engaged, they can reduce pollution by 99% or more.

[00:22:53] Speaker 01:
So when you turn the controls off, emissions can go up 100-fold.

[00:22:57] Speaker 01:
Even a few hours, which is what we're talking about here, at those elevated emission rates, can put a lot of very dangerous pollution into people's communities.

[00:23:06] Speaker 01:
Now, the greatest problem, I think, with these work practice requirements that EPA established is that EPA set work practice standards for all boilers

[00:23:18] Speaker 01:
even though the agency admits that some boilers can engage their controls, meet emission standards, and measure their emissions during that time period.

[00:23:26] Speaker 01:
And the statute, Section 112H, makes it very clear that EPA can set work practice standards only for a particular class of sources once it needs to determine that there's a particular class of sources that cannot measure its emissions.

[00:23:40] Speaker 01:
EPA hasn't met that prerequisite

[00:23:42] Speaker 01:
for setting work practice standards instead of numeric emission standards.

[00:23:46] Speaker 01:
And this matters because Congress wanted numeric emission standards.

[00:23:49] Speaker 01:
Whenever it's feasible, for a good reason, they're much more protective.

[00:23:52] Speaker 01:
They do much more to protect people from the emissions that come out of these boilers.

[00:23:56] Speaker 01:
And here, where EPA has found that it's feasible for some boilers to measure their emissions during the extended four-hour startup period, the agency lacks authority to exclude all boilers or to exempt all boilers from meeting emission standards and to allow them to meet work practice requirements instead.

[00:24:15] Speaker 01:
Even if EPA could lawfully set work practice standards for these time periods, the standards that EPA set are not consistent with section 112D, as section 112H provides they must be.

[00:24:30] Speaker 01:
Section 112D standards have to require the maximum degree of reduction that's achievable, and to be consistent with that, work practice standards have to do that too.

[00:24:39] Speaker 01:
EPA agrees with this.

[00:24:41] Speaker 01:
EPA standards don't do this for at least three reasons.

[00:24:43] Speaker 01:
The first reason on startup is that they don't require the use of clean fuels.

[00:24:48] Speaker 01:
Surprisingly, EPA claims they do require the use of clean fuels, but if you look at page 98 of the Joint Appendix, it states very clearly that these standards allow sources to burn fuels, quote, that are not clean during startup period.

[00:25:04] Speaker 01:
Second,

[00:25:06] Speaker 01:
These standards, with the exception of PM controls, these standards only requirement is that each source engage controls as quickly as is possible for it.

[00:25:22] Speaker 01:
And that sort of requirement for each source to do what is possible for it is exactly the same as the general duty requirement that this court found objectionable in the startup shutdown malfunction case.

[00:25:35] Speaker 01:
That is, there, there was a requirement that each source reduce emissions as much as possible.

[00:25:40] Speaker 01:
And here, EPA is telling sources that they have to engage controls as soon as possible.

[00:25:45] Speaker 01:
And its rationale is that, well, in a situation where the only thing you're doing to reduce emissions is engaging your controls as soon as possible, engaging your controls as soon as possible is reducing your emissions as much as possible.

[00:25:58] Speaker 01:
This court made clear in the startup shutdown malfunction case that that kind of general duty is not a Section 112D compliant standard.

[00:26:05] Speaker 01:
It didn't hold that EPA couldn't set work practice standards, but work practice standards have to be consistent with Section 112D, and if they aren't a standard that is not Section 112 compliant, can't really be consistent with Section 112D.

[00:26:21] Speaker 01:
At the very least, EPA had to explain why it thought that this general duty requirement was consistent with Section 112.

[00:26:27] Speaker 01:
In fact, EPA admits in the record that general duty requirements are not appropriate for practice requirements.

[00:26:34] Speaker 01:
That's page 13 of the Joint Appendix.

[00:26:37] Speaker 01:
The last problem with these startup standards is that what they require is for requiring each source to engage controls as expeditiously as possible with its current assembly of equipment and fuel and control equipment

[00:26:56] Speaker 01:
is not the maximum degree of reduction that's achievable.

[00:27:00] Speaker 01:
EPA states in the record, and again that is brief, that it wanted to ensure that it accommodated each existing combination of oil or fuel and control.

[00:27:09] Speaker 01:
But that's not the point of Section 112 maximum achievable reduction standards.

[00:27:14] Speaker 01:
The whole idea is to reduce hazardous air pollutant emissions, and that may very well require sources to install better controls or update their equipment.

[00:27:26] Speaker 01:
EPA could certainly find that that's unachievable for some reason if it wanted to do that, but that's not what happened here.

[00:27:31] Speaker 01:
Instead, EPA set itself a completely different test, which is simply what can every source do with its current collection of equipment and controls.

[00:27:41] Speaker 01:
The last point is on shutdown.

[00:27:42] Speaker 01:
The other big period when they're on control emissions are during shutdown.

[00:27:47] Speaker 01:
uh... he claimed incorrectly in the record these standards require use of clean fuels during shutdown again on page ninety eight of the joint appendix it makes very clear that they do not require the use of fuels that are not clean.

[00:28:03] Speaker 07:
Mr. Pugh, if I write that you're challenging only sort of this that there's this two part standard and you're really only challenging the extended version

[00:28:12] Speaker 01:
Yes, we're not challenging EPA standards for the startup period before boilers start supplying useful thermal energy.

[00:28:19] Speaker 01:
We're challenging the period after that and, of course, the shutdown period.

[00:28:24] Speaker 07:
As I read the record, I thought that EPA's position is that just having the standard, the single standard that I gather is a standard that you would want to have left in place, that the controls have to go on when the facility is producing useful energy, that that was not workable.

[00:28:44] Speaker 07:
And so they wanted to create sort of a

[00:28:47] Speaker 07:
a safety valve with the duty of record keeping for those facilities for which that standard wasn't workable.

[00:28:54] Speaker 07:
And I take it to be that information gathering is so that they might tighten up that standard with more information about those facilities that aren't able to meet the useful energy baseline.

[00:29:09] Speaker 01:
I think I generally agree with you, but UKIA went further than that.

[00:29:13] Speaker 01:
It's found expressly in its brief at page 38 and also in the record at page 352 to 353 that some boilers can engage their controls.

[00:29:21] Speaker 07:
some, but then they're saying maybe some can't.

[00:29:24] Speaker 01:
Right, so what it has is a situation where some can and some can't, but the statute says EPA has to determine there is a particular class of boilers that can't.

[00:29:33] Speaker 07:
So you're saying they really should have done more work in their duty to classify, that they should have had sort of in effect a sub-classification of those boilers that can't meet the useful energy baseline and then promulgate a different rule

[00:29:46] Speaker 07:
For them, a four hour?

[00:29:48] Speaker 01:
Yes, it is really true that there are some boilers that can't measure their emissions in that extended four hour period.

[00:29:53] Speaker 01:
EPA certainly could set work practice standards for them.

[00:29:55] Speaker 01:
But it can't simply say, some boilers may not be able to do it.

[00:29:59] Speaker 01:
We don't know, so we're going to set work practice standards for all boilers, even though we know that some boilers can do it.

[00:30:05] Speaker 01:
And of course, the other problem is that this rule allows each boiler to choose for itself.

[00:30:10] Speaker 01:
A boiler that can engage controls and meet emission standards as soon as it starts up,

[00:30:15] Speaker 01:
Nonetheless, has the option to elect this extended four-hour startup period when it doesn't have to?

[00:30:20] Speaker 07:
Oh, but doesn't it have just business incentives to do otherwise?

[00:30:23] Speaker 07:
It wants to get going.

[00:30:25] Speaker 07:
It wants to start producing useful energy.

[00:30:27] Speaker 01:
Oh, it would be producing useful energy and making money.

[00:30:29] Speaker 01:
What it wouldn't be doing is paying to operate its controls.

[00:30:33] Speaker 07:
So you're saying everyone's just going to choose the four-hour grace period?

[00:30:37] Speaker 02:
I don't know if they will or not, but one way or another.

[00:30:39] Speaker 02:
Because there is more of a regulatory requirement if you choose the four-hour option, right?

[00:30:44] Speaker 01:
Well, no.

[00:30:45] Speaker 01:
I mean, they don't have to meet emission standards.

[00:30:48] Speaker 02:
I thought there were extra reporting requirements.

[00:30:50] Speaker 01:
Oh, I see.

[00:30:51] Speaker 01:
There are reporting requirements.

[00:30:52] Speaker 01:
But I think that given the choice of meeting emission standards or reporting, I think sources would choose.

[00:30:59] Speaker 01:
Some sources who could actually meet emission standards would choose not to.

[00:31:03] Speaker 03:
All right.

[00:31:08] Speaker 03:
To hear from respondents.

[00:31:19] Speaker 05:
I'm Norman Ray from the Department of Justice representing the UPA.

[00:31:25] Speaker 05:
Let me talk about the 130 parts per million.

[00:31:33] Speaker 05:
I think the court pretty well understands EPA's rationale.

[00:31:36] Speaker 05:
And there is a history here, Your Honor.

[00:31:39] Speaker 05:
In the original 2011 rulemaking, EPA chose carbon monoxide as a surrogate because it believes that combustion controls are the only effective control for these types of facilities at these types of concentrations.

[00:31:57] Speaker 05:
And it found on the record that there was a strong correlation between carbon monoxide

[00:32:02] Speaker 05:
concentrations and concentrations of haps based on the data it had with, as was discussed, some breakdown at the lower levels.

[00:32:12] Speaker 05:
And that makes sense from a chemistry perspective because when you burn fuel, when you burn coal or wood or whatever, the process involves taking large organic molecules

[00:32:23] Speaker 05:
breaking them down into smaller and smaller pieces by adding oxygen to them and then the last sort of the second last step in that process and one of the most difficult ones is to create carbon monoxide and the final step is to add the final oxygen to create carbon dioxide so that

[00:32:42] Speaker 05:
that if you have low carbon monoxide levels, that means you're driving combustion as completely as possible.

[00:32:51] Speaker 05:
And that's why carbon monoxide from a chemical point of view is a good surrogate.

[00:32:56] Speaker 05:
Then in response to comments after the initial rule was promulgated, a lot of data was presented to the agency saying that because the agency

[00:33:08] Speaker 05:
When it originally set the standards, it followed the, it used the 112, it did 112.33, it listed all of the emissions of carbon monoxide, it looked at the bottom 12% and did that analysis, you know, fairly mechanistically and set varying levels of carbon monoxide based on the best performers in each of the various subcategories.

[00:33:31] Speaker 05:
But it received a number of comments saying that at these very low levels and below 130, the different levels of carbon monoxide were sort of random, that they were not associated with further reductions.

[00:33:45] Speaker 07:
Now, is that a fair reading of the data?

[00:33:47] Speaker 07:
Because I thought most of the data points were.

[00:33:52] Speaker 07:
The general analysis, which is that most of, there's sort of a spray, if you will, of data points that pop back up at the low levels late in combustion.

[00:34:02] Speaker 07:
But most of it, there are many data points that are fully consistent with EPA's general understanding of the relationship between carbon monoxide and the student impact.

[00:34:12] Speaker 05:
Well, all the data points above 130 certainly are.

[00:34:14] Speaker 05:
Below 130, they did a new analysis, and the analysis

[00:34:20] Speaker 05:
Now, this is discussed at JA 15 to 16 and elsewhere, which is the proposed, the January 13th report rule.

[00:34:29] Speaker 05:
They determined that below 130, that there wasn't any further.

[00:34:35] Speaker 05:
What they were seeing was essentially sort of random, and it was not further reductions below 130 parts per cent.

[00:34:42] Speaker 07:
No.

[00:34:43] Speaker 07:
As I read it, the agency said on page JA 16, we are aware of no reason

[00:34:50] Speaker 07:
why carbon monoxide concentrations would continue to decrease and formaldehyde concentrations would increase as combustion conditions improve.

[00:34:59] Speaker 07:
They think that the measurements, the difficulty of measuring allows for the slight increase, not a

[00:35:10] Speaker 07:
chemical difference in the relationship.

[00:35:12] Speaker 07:
That was how I understood the EPA to be saying we're having difficulty measuring and that's also the position that this court accepted in U.S.

[00:35:22] Speaker 07:
Sugar where

[00:35:25] Speaker 07:
The court said, you know, we don't think this impugns carbon monoxide as a surrogate, this data fuzziness, because the EPA has explained that it's a problem with measurement.

[00:35:42] Speaker 05:
Well, that was in 2013.

[00:35:45] Speaker 05:
In 2015, the agency has determined that there is no benefit in driving combustion.

[00:35:52] Speaker 07:
But our task is to say based on what?

[00:35:55] Speaker 05:
Based on the data in the record that shows that there is no benefit.

[00:36:03] Speaker 05:
that there is no further benefit to reducing carbon monoxide levels.

[00:36:09] Speaker 05:
It's not associated with a further reduction in half emissions.

[00:36:17] Speaker 02:
Where is that in the rule, in the proposed rule?

[00:36:23] Speaker 05:
They originally promulgated this in 2013.

[00:36:25] Speaker 05:
Yeah.

[00:36:25] Speaker 05:
And then they granted reconsideration to take notice and comment.

[00:36:36] Speaker 05:
that determination that there was no benefit, in part because of measurement, in part because they just don't believe there's any further reduction.

[00:36:42] Speaker 02:
Yeah, what is the best distillation of that point in the EPA materials?

[00:36:47] Speaker 05:
Let me find that drawer.

[00:37:13] Speaker 07:
I'm going to ask you the same questions that I asked Mr. Pugh.

[00:37:24] Speaker 07:
As I understand the agency's position, it is non-arbitrary for the agency to regulate

[00:37:33] Speaker 07:
even without specific HAP-specific data on the use of a surrogate for control of that HAP,

[00:37:44] Speaker 07:
where the agency has sufficient sort of chemical or scientific understanding of the relationship.

[00:37:51] Speaker 07:
And so here, the data is data about formaldehyde.

[00:37:56] Speaker 05:
That's not the only data, Your Honor.

[00:37:58] Speaker 05:
Formaldehyde happens to be the chemical on which they have the most data.

[00:38:02] Speaker 05:
But there is additional data.

[00:38:04] Speaker 05:
And all this is mostly discussed in the 2011 rule for the court.

[00:38:08] Speaker 05:
So there is data concerning a wide range of paths.

[00:38:11] Speaker 05:
Right, so there's data and there's an understanding of that data.

[00:38:18] Speaker 05:
Both things are correct.

[00:38:19] Speaker 07:
That derives from an understanding of combustion and what it produces and when there's carbon monoxide and when there's carbon dioxide and how the presence of those two carbon forms

[00:38:35] Speaker 07:
associates with the destruction of organic hops, right?

[00:38:42] Speaker 07:
And so the agency has taken a general position about the relationship between the carbon monoxide and the organic hops that it has a duty to regulate, right?

[00:38:52] Speaker 07:
And the agency, a general relationship between carbon monoxide and the HAPS subject to regulation, which is the less carbon monoxide, the less HAPS.

[00:39:04] Speaker 07:
Level of carbon monoxide, a good surrogate for HAPS.

[00:39:11] Speaker 07:
Then it turns around in 2013 and says, actually, we

[00:39:17] Speaker 07:
are not going to rely on that relationship.

[00:39:20] Speaker 07:
We're not going to carry that relationship all the way down below the 130 parts per million level.

[00:39:26] Speaker 05:
That's right.

[00:39:27] Speaker 07:
And my question to you is, why not?

[00:39:30] Speaker 05:
It's because they determined that below levels of 130 parts per million, there really is no further combustion of organic caps occurring.

[00:39:40] Speaker 05:
You're not getting any further reductions in organic caps.

[00:39:43] Speaker 07:
Although we have data showing that in many cases, there was.

[00:39:48] Speaker 05:
Well, the data is erratic.

[00:39:49] Speaker 05:
There's some that's higher, some of it's lower.

[00:39:51] Speaker 05:
There isn't a relationship.

[00:39:53] Speaker 07:
But there was a lot of data showing that there were lower levels achieved.

[00:39:58] Speaker 05:
lower levels of carbon dioxide.

[00:40:00] Speaker 07:
At further combustion.

[00:40:02] Speaker 05:
In some cases, it's not.

[00:40:04] Speaker 05:
Some part of it is a data measurement problem, but also it just appears to be a chemistry problem.

[00:40:08] Speaker 07:
So that's the question.

[00:40:10] Speaker 07:
Extremely low levels.

[00:40:11] Speaker 07:
I don't see anything in the record explaining what you refer to, and it's helpful to me, refer to as the chemistry problem.

[00:40:18] Speaker 07:
In fact, the only thing relating to that that I see is on the first column of JA16, we are aware of no reason

[00:40:28] Speaker 07:
why CO concentrations would continue to decrease and formaldehyde concentrations would increase as combustion conditions improve.

[00:40:39] Speaker 07:
And so it just seems like you have a general understanding of the chemistry and then you have what the EPA in many aspects of this case has described as a data blip, not a functional chemical change, but a data problem.

[00:40:58] Speaker 07:
And then it's saying, but we're going to treat it as a chemistry problem.

[00:41:01] Speaker 07:
And that's where I find the hole to be.

[00:41:05] Speaker 07:
And I'd love your help in giving me the chemistry answer to that, or pointing me to it in the record.

[00:41:22] Speaker 02:
I think that would be looking for the same thing that I was asking about, which is where's the explanation that

[00:41:28] Speaker 05:
It actually dis-serves the objectives to push carbon monoxide still lower.

[00:41:51] Speaker 07:
Your appendix 208?

[00:41:52] Speaker 05:
J208, where it discusses this value of why carbon monoxide is not a good surrogate.

[00:42:08] Speaker 07:
I see exactly, and I have marked and I have questioned in my margin, because what it says is a trend can be seen.

[00:42:20] Speaker 07:
And we're talking about the same data that the rulemaking is talking about.

[00:42:24] Speaker 07:
At levels lower than 150 parts per million, the mean levels of formaldehyde appear to increase.

[00:42:34] Speaker 07:
Suggesting a similar breakdown in the carbon monoxide formaldehyde relationship.

[00:42:38] Speaker 07:
I don't take that to be giving us any kind of insight

[00:42:43] Speaker 07:
into whether that is a measurement problem or whether there might in fact be some kind of chemical phenomenon going on there.

[00:42:55] Speaker 07:
And as I think Judge Shrivastava's question suggested, if there is, then not only should you not push the

[00:43:04] Speaker 07:
bottom levels of CO down, you would be forbidden from doing that because you would be acquiring the generation of more haps, no?

[00:43:13] Speaker 07:
So it just seems like this black box is

[00:43:17] Speaker 05:
needs an explanation.

[00:43:19] Speaker 05:
It doesn't, and I can't come up with the record set for right at the moment.

[00:43:23] Speaker 05:
This wasn't really an issue that I think was very well addressed.

[00:43:25] Speaker 05:
That was really the focus of Petitioner's argument, so I don't think we really addressed it in our briefing.

[00:43:30] Speaker 05:
But that is certainly my understanding that that is the agency's position, is that there's simply no benefit to having levels below 130 embarrassing with it.

[00:43:41] Speaker 02:
Can I ask a broader question, which is,

[00:43:44] Speaker 02:
Would you agree or would the EPA agree that the goal is to get to the lowest level of the hat possible?

[00:43:53] Speaker 02:
And the reason I ask that is because on page 22 of your brief, there's the point that even if the lowest emitting was the measure of best performing, which the agency did not agree with, the 130 ppm threshold met that standard.

[00:44:13] Speaker 02:
which was page 22 of your brief in the middle of the page.

[00:44:19] Speaker 02:
And maybe I'm reading this out of context, but it says in the middle of a sentence almost exactly in the middle of the page.

[00:44:25] Speaker 05:
Yeah, you are reading that out of context.

[00:44:27] Speaker 02:
OK, what am I missing in that?

[00:44:28] Speaker 02:
Because it makes it sound like you don't necessarily subscribe to the notion that getting the lowest would mean getting the best.

[00:44:35] Speaker 05:
No, because what they're saying, this is in response to comments or an argument that petitioners made that the EPA had

[00:44:46] Speaker 05:
There had been comments pointing out that EPA should look at the lowest level of the carbon dioxide that's associated with the lowest level of formaldehyde emissions, which is the one they have data.

[00:45:01] Speaker 05:
And what EPA is saying here is they didn't believe that looking at the lowest level of half emissions associated with carbon monoxide was an appropriate measure.

[00:45:12] Speaker 05:
If they had in fact taken that approach, they would have set the standard at 240 parts per gallon.

[00:45:17] Speaker 05:
Rather, BPA believes that the relationship of cap reductions and carbon monoxide reductions goes down as far as 130 parts per gallon.

[00:45:27] Speaker 05:
a response to, in the brief, is a response to an argument by petitioners that we think mischaracterized statements at EPA.

[00:45:36] Speaker 07:
But this is, I think, further driving me toward the question that I find to be central and that I'm still struggling to answer, which is EPA is not saying that when we get down to these

[00:45:49] Speaker 07:
you know, further along in the combustion process, we're going to jump the tracks and not rely on carbon monoxide, instead rely directly on formaldehyde.

[00:46:00] Speaker 07:
This is saying we're not doing that.

[00:46:01] Speaker 05:
No, what we're saying is these are the best performing sources, and this is the best anyone can do.

[00:46:07] Speaker 07:
And you're defining best performing sources by adhering to your surrogate choice, which is carbon monoxide.

[00:46:15] Speaker ?:
Right.

[00:46:15] Speaker 05:
But there's no other way to measure it.

[00:46:17] Speaker 05:
Right.

[00:46:18] Speaker 07:
And so when you say, indeed, had we jumped away from surrogate and directly measured, it would be a higher number.

[00:46:27] Speaker 07:
It wouldn't be 130.

[00:46:27] Speaker 05:
That's right.

[00:46:28] Speaker 05:
Right?

[00:46:29] Speaker 05:
It would be 240.

[00:46:30] Speaker 05:
That's what the response to the comment was saying, yes.

[00:46:33] Speaker 07:
But that seems like you're kind of trying to have it both ways.

[00:46:36] Speaker 07:
If the reason you've abandoned a surrogate for which there is a strong chemical case, which has to do with combustion and the completeness of combustion, it strikes me that without some

[00:46:49] Speaker 07:
Affirmative reason to do so you need to stick with that all the way down not withstanding a bit of fuzzy data Maybe by the end of the argument you'll come up with something but

[00:47:07] Speaker 05:
But EPA's rationale here is, in fact, that there simply is no, the best performers are represented by the level of 130 parts per million.

[00:47:18] Speaker 05:
That is the level at which you achieve the lowest emissions of hazardous air pollutants, which is what the statute says.

[00:47:27] Speaker 05:
What is EPA supposed to do?

[00:47:29] Speaker 05:
Section 112b2 specifically states that

[00:47:34] Speaker 05:
You know, emissions standards shall require the maximum degree of reduction in emissions of the hazardous air pollutants subject to this section.

[00:47:42] Speaker 05:
I mean, that's the flaw in petitioner's argument that we should have that 112b3 requires EPA to go to a set

[00:47:52] Speaker 05:
carbon monoxide standards at levels below 130, because what EPA statutes, 112d2 is the overarching standard for how you set these standards.

[00:48:02] Speaker 05:
112d3 just fleshes out what it means by maximum degree of reduction.

[00:48:08] Speaker 05:
But the goal here is to set the standard at the level that achieves the maximum degree of reduction of the hazardous air pollutant.

[00:48:16] Speaker 05:
And the hazardous air pollutant here is

[00:48:19] Speaker 05:
the organic halves, and EPA has determined that the maximum level is achieved at 130 parts per billion.

[00:48:24] Speaker 07:
So based on this data, could EPA have said that as combustion progresses, once the emissions of carbon monoxide reach 130 parts per million, the boiler is obligated to maintain that?

[00:48:43] Speaker 07:
out of concern that if it falls lower, that could be producing unnecessarily high levels of organic haps.

[00:48:54] Speaker 05:
I don't know that the data would support that or not, but I think what EPA determined is that there's simply no, there's a lot of the data, it bounces around, it seems to be very sort of context specific, and they don't have the data.

[00:49:08] Speaker 05:
Is there any sun?

[00:49:09] Speaker 05:
They certainly have no data to show that there's any benefit to going on.

[00:49:12] Speaker 07:
I just have one more question, which is about, it's the same question that I asked Mr. Pugh, which is what does the EPA mean when it refers to carbon monoxide as a conservative surrogate?

[00:49:26] Speaker 07:
And I'm trying to get here whether there is some kind of, again, chemical reason for this phenomenon.

[00:49:33] Speaker 07:
And this is in the very middle of page 16 of the Joint Appendix.

[00:49:38] Speaker 07:
Because carbon monoxide is difficult to destroy, refractory compound is a conservative surrogate.

[00:49:43] Speaker 07:
Does that mean that the level of destruction of carbon monoxide lags behind the level of destruction of the organic half?

[00:49:53] Speaker 05:
Exactly, you're right.

[00:49:54] Speaker 07:
Why?

[00:49:56] Speaker 05:
Because it's a tougher reaction to drive that carbon monoxide to carbon dioxide requires more energy, requires more

[00:50:07] Speaker 05:
It's just a tougher chemical reaction.

[00:50:10] Speaker 05:
How fast a chemical reaction takes place depends on a lot of different factors.

[00:50:14] Speaker 03:
So that might be in one of the technical reports.

[00:50:18] Speaker 03:
Judge Pillard is looking for some explanation.

[00:50:22] Speaker 05:
Again, that goes back.

[00:50:23] Speaker 05:
There's explanations of that back in the record for the 2011 rule.

[00:50:28] Speaker 03:
Right, I understand.

[00:50:29] Speaker 03:
But I'm just saying that type of thing.

[00:50:31] Speaker 05:
Yeah, no, certainly that explanation is there.

[00:50:36] Speaker 05:
the chemical reaction that breaking apart these larger chemicals is easier energetically and easier in the system of combustion than it is to form carbon dioxide from carbon monoxide.

[00:50:51] Speaker 05:
It's just these things happen in steps, depending on which bonds have to be broken, which chemicals have to be added to what, and carbon monoxide

[00:51:01] Speaker 05:
If combustion was 100% complete, all you'd have left would be carbon dioxide and water, assuming you start off with just fuel that was pure carbon and hydrogen.

[00:51:13] Speaker 02:
Can I switch gears just slightly for a second, which is there's usually, as I understand it, when EPA develops a standard, there's a question of developing the floor, and then there's the possibility of doing something beyond the floor.

[00:51:23] Speaker 05:
Yes, sir.

[00:51:24] Speaker 02:
And in this situation,

[00:51:27] Speaker 02:
I didn't see much in the record explaining why there wasn't an effort beyond the floor.

[00:51:33] Speaker 05:
So it was beyond the floor, not even within the scope of the severance?

[00:51:49] Speaker 05:
No, Your Honor.

[00:51:49] Speaker 05:
The only issue that was beyond the floor was the setting of the 130 parts per million floor.

[00:51:54] Speaker 05:
That was the only issue that was set.

[00:51:57] Speaker 02:
And then you don't view the part to be severed to be not just the 130 floor, but whether it was possible to do something beyond the floor.

[00:52:06] Speaker 05:
Well, Your Honor, the question of whether it was possible to put a Beyond the Floor standard for a house was considered in the 2011 rule and should have been raised there if they were going to argue that there was something else that could be done.

[00:52:18] Speaker 05:
I mean, the answer is no.

[00:52:19] Speaker 05:
There isn't any other technology or any other way to set it up.

[00:52:23] Speaker 02:
Well, I don't know that we know that yet, because isn't that part of the remand?

[00:52:26] Speaker 05:
That is part of the remand, Your Honor, is whether

[00:52:31] Speaker 05:
is whether there is some effect.

[00:52:34] Speaker 05:
Certainly, EPA's assumption and EPA's belief based on its expertise in setting the carbon monoxide standard is no, there's not.

[00:52:41] Speaker 05:
With these types of systems, with these levels of air pollutants, that combustion, if you achieve these levels of combustion control, 130%.

[00:52:49] Speaker 02:
But the whole point of the remand, I thought, was that supposed to assess whether there's other technologies that would further serve the cause.

[00:52:57] Speaker 05:
Well, the remand is to explain why EPA decided that there wasn't.

[00:53:03] Speaker 02:
Yeah, you're right.

[00:53:03] Speaker 02:
So in theory, it could just be an explanation.

[00:53:06] Speaker 05:
And so the question is, what EPA has is a data set that shows half emissions and carbon monoxide emissions.

[00:53:15] Speaker 05:
And they correlate well, down to 130 parts per million.

[00:53:21] Speaker 05:
And EPA set the standard.

[00:53:22] Speaker 05:
So the question is,

[00:53:24] Speaker 05:
Is somewhere buried in that correlation, is there also some effect from other types of pollution control equipment, which the agency sort of unspoken assumption in the original rulemaking was that it's not.

[00:53:40] Speaker 05:
But that's the issue that's been failed to be examined.

[00:53:43] Speaker 07:
If it's okay with my panel members, I'd like to request that if there is somewhere that you could identify, you said in the 2011 letter there was more explanation of the notion of this being a conservative surrogate that you thought might actually help

[00:54:00] Speaker 07:
explain why the EPA thinks that there are no further control benefits to be gained below the 130 points provided.

[00:54:12] Speaker 05:
The issue that was addressed in 2011 was just a general... I know, but then it's alluded to.

[00:54:17] Speaker 07:
I thought you were saying, in response to my question, that why is that a response in the 2013 rulemaking?

[00:54:26] Speaker 07:
Maybe it's not.

[00:54:28] Speaker 07:
Why is that a response to the notion

[00:54:30] Speaker 07:
that

[00:54:34] Speaker 07:
There's no reason why carbon monoxide concentrations would continue to decrease and formaldehyde concentrations increase.

[00:54:41] Speaker 07:
I don't see anything in the record that explains that, and yet the EPA is acting as if that's a fact.

[00:54:45] Speaker 05:
OK, I believe there might be.

[00:54:47] Speaker 05:
There's certainly something on the general principles of what the agency base is.

[00:54:50] Speaker 07:
This would help.

[00:54:52] Speaker 07:
I didn't see it in this joint appendix, but this is just excerpts.

[00:54:55] Speaker 05:
And there may be, I believe, the whole issue of the appropriateness of carbon monoxide would litigate it.

[00:55:01] Speaker 05:
That I understand.

[00:55:02] Speaker 07:
But I think you understand where we're focusing now and what the problem is, if there's anything that you think would be helpful.

[00:55:08] Speaker 07:
And of course, if there's anything Sarah Club would like to say in response, just a letter.

[00:55:12] Speaker 07:
I'm just talking about pointing to the record.

[00:55:13] Speaker 07:
Not briefing, but just what you think illuminates that.

[00:55:20] Speaker 03:
But I want to be clear what the question is that we're asking you to respond to as distinct from what's being addressed in US sugar.

[00:55:30] Speaker 05:
I'm sorry?

[00:55:34] Speaker 03:
to what question you were being asked to respond to.

[00:55:39] Speaker 05:
My understanding is what Judge Pollard is looking for is some explanation of why we referred to carbon monoxide as a conservative surrogate.

[00:55:50] Speaker 07:
That would be relevant to whether the relationship between it and the organic haps would break down below 130.

[00:56:04] Speaker 07:
Because as I take your general position, there's a chemical relationship that makes it a good surrogate.

[00:56:09] Speaker 07:
Cross, haps, end.

[00:56:12] Speaker 07:
at different stages of firing.

[00:56:15] Speaker 07:
And then this feels inconsistent that the EPA has taken this different position.

[00:56:19] Speaker 07:
And I want to understand if there's a cross-cutting chemical principle that the EPA has invoked that explains it.

[00:56:26] Speaker 05:
No, not why there's 130.

[00:56:28] Speaker 05:
Not in the earlier rulemaking.

[00:56:29] Speaker 05:
We will see if there's anything else in this rulemaking.

[00:56:31] Speaker 05:
Then forget it.

[00:56:32] Speaker 03:
No, I mean, I'm serious.

[00:56:36] Speaker 03:
I don't know this for a fact, but this is the type of thing that would be in a technical report that's part of the administrative record describing this chemical reaction, et cetera.

[00:56:47] Speaker 03:
And if the petitioners haven't raised it in this case as such, then there would be no reason for EPA to put it here.

[00:56:53] Speaker 03:
But it may be in the 2011 administrative record.

[00:56:58] Speaker 03:
But somebody would have to do some searching.

[00:57:00] Speaker 05:
We will see if there's anything that's responsible.

[00:57:03] Speaker 02:
But you don't have anything in the rule itself?

[00:57:05] Speaker 02:
that addresses this point, which is that when you go below 130, it's not just a measurement problem.

[00:57:11] Speaker 02:
Because if it's just a measurement problem, it could be that the chemistry still continues to work, that actually the levels of the HAP continue to go down as the levels go up.

[00:57:20] Speaker 05:
I think there is extensive comments on that issue as well as other documents.

[00:57:25] Speaker 03:
Right.

[00:57:25] Speaker 03:
And other than the sort of summary statement on JA16 in terms of column one.

[00:57:31] Speaker 05:
This wasn't really the focus of any of the briefing in this case.

[00:57:33] Speaker 05:
So I don't really have it off the top of my head.

[00:57:38] Speaker 03:
But what I'm trying to understand is, I thought in US Sugar, one of the things the court was focusing on, some comments were made, some data was submitted about additional controls.

[00:57:50] Speaker 03:
So on remand, that's what the agency is supposed to be addressing.

[00:57:53] Speaker 04:
That is the remand draw.

[00:57:54] Speaker 04:
But that's a totally separate issue.

[00:57:56] Speaker 03:
That's right, but presumably this type of issue might come up in that context, so we might get some further information.

[00:58:02] Speaker 03:
That's all I'm trying to understand.

[00:58:05] Speaker 03:
Let's see, where are you, Mr. Ray?

[00:58:06] Speaker 05:
All right, are there any other questions on sort of the legal arguments about the 130 parts per million?

[00:58:13] Speaker 05:
If not, I'd like to talk about startup and shutdown.

[00:58:15] Speaker 05:
First of all, one thing that I think I would like to make clear is that a startup process

[00:58:26] Speaker 05:
has two purposes.

[00:58:28] Speaker 05:
One of the purposes is to bring the temperature of the boiler up, which has to be brought up fairly slowly because of expansion and contraction of the metal pieces.

[00:58:39] Speaker 05:
It's like the start of a radiator and banging, clanging, because the metal moves at different rates, the water boils.

[00:58:44] Speaker 05:
And that has to be done over a period of time.

[00:58:47] Speaker 05:
But the other part of startup,

[00:58:49] Speaker 05:
And the reason why the petitioner's emphasis on clean fuels is misplaced is an integral part of the startup process is to convert from some initial startup fuel, which is required to be clean.

[00:59:05] Speaker 05:
to the actual operating fuel, whether it's wood or coal or something else.

[00:59:11] Speaker 05:
It's like starting a fire.

[00:59:12] Speaker 05:
You can't just take a big log and light a match and hold it under it and get the fire started.

[00:59:18] Speaker 05:
You have to start something else.

[00:59:20] Speaker 05:
By the closest analogy, it's a fireplace that has a gas jet.

[00:59:24] Speaker 07:
I think you also heard, Mr. Pugh had a question about whether, and you just said it is required to use clean fuel during startup.

[00:59:31] Speaker 07:
Mr. Pugh said that's what the EPA said in the spring, but that's not how he reads the rule.

[00:59:36] Speaker 07:
Can you clarify your position on that?

[00:59:39] Speaker 05:
Certainly, Your Honor.

[00:59:40] Speaker 05:
And again, this has to do with these two phases.

[00:59:44] Speaker 05:
And the actual regulation is in page 98 of the Joint Appendix.

[00:59:49] Speaker 05:
That's the word, practice, stand.

[00:59:52] Speaker 05:
And if it's up to the top, it's five.

[00:59:56] Speaker 05:
It says these are the standards when you start up a boiler.

[00:59:59] Speaker 05:
And the first one is you have to operate all of your CMSs, which are your continuous monitoring systems.

[01:00:07] Speaker 05:
And then it says for startup, in other words, when you're first getting the thing going, you must use a clean fuel for the initial part of startup.

[01:00:18] Speaker 05:
And then, but at some point, inherent in the process of starting up means at some point you have to start feeding in the fuel you're actually going to burn.

[01:00:30] Speaker 05:
because you're going to, you might start with natural gas or some sort of oil, just like you're starting a fire in a fireplace that has a gas jet.

[01:00:36] Speaker 05:
You might light the gas jet and start feeding the logs and at some point you turn off the, but it's still, it takes a while to get going.

[01:00:43] Speaker 05:
And there is a period when you are getting the, part of the startup period is getting the working fuel up to a self-sustaining temperature and getting it going and then gradually increasing

[01:00:55] Speaker 05:
it up to the point where you get the working temperature of the boiler, which has to be done over a period of time to avoid damage to the boiler itself as different parts of it warm up and expand at different temperatures.

[01:01:09] Speaker 05:
And so there is a period when you are first getting it going and then you use gas or some other liquid fuel to get your main fuel started.

[01:01:20] Speaker 05:
And then you gradually get that fire going.

[01:01:22] Speaker 05:
And during all this early period, the system is very unstable.

[01:01:27] Speaker 05:
You don't have consistent flow up through the draft.

[01:01:31] Speaker 05:
It's not at the operating temperatures that many of the control equipment and treatment measures.

[01:01:37] Speaker 07:
So just on the narrow issue, what you're saying is any fuel other than the running fuel has to be a clean fuel.

[01:01:43] Speaker 07:
In other words, the kindling.

[01:01:44] Speaker 07:
The kindling has to be a clean fuel.

[01:01:47] Speaker 07:
And then so you're saying, well, during the entire starter process, there are going to be some tires or some wood or some pellets or something else.

[01:01:55] Speaker 07:
But the kindling type fuel does have to be.

[01:01:59] Speaker 05:
Does have to be.

[01:02:00] Speaker 05:
And so then in EPA, that's why EPA decided that it had to do a work practice, because the conditions during startup, when you're bringing the temperature up, when you're gradually increasing the amount of fuel, you know, your working fuel, the conditions are unstable and you can't measure emissions reliably.

[01:02:19] Speaker 05:
You can't do a stack test, you don't have the right conditions or the right time.

[01:02:23] Speaker 05:
and even continuous emission monitors aren't designed to work under it.

[01:02:26] Speaker 05:
So the EPA made the determination for the entire class, for the category, that it was not possible to measure emissions, and therefore a work practice standard is necessary.

[01:02:39] Speaker 07:
What about Mr. Pugh's argument that I take to be, in effect, the category, which is something that EPA defines, right?

[01:02:47] Speaker 07:
Yes.

[01:02:48] Speaker 07:
Why needn't it have

[01:02:51] Speaker 07:
created a subcategory of those boilers that needed the four-hour grace period to get rid of what he sees as a moral hazard problem of everybody's going to want to use the four hours.

[01:03:00] Speaker 05:
First of all, that assumption is probably incorrect because, in fact, the extra monitoring and record-keeping requirements associated with the four-hour period are pretty burdensome.

[01:03:13] Speaker 02:
Do you know?

[01:03:13] Speaker 02:
Do people have boilers exercise the first option?

[01:03:17] Speaker 05:
Yes, sir.

[01:03:17] Speaker 05:
I can't tell you what numbers, but some

[01:03:20] Speaker 05:
And EPA, the four hour period is based on an analysis of both electric utility boiler data set, because they had that data available, and it also confirmed by looking at industrial boilers, several hundred and something, showing that the best performing 12% of sources

[01:03:40] Speaker 05:
achieve stable conditions that allow them to engage their sources within four hours of when they started to produce usable energy.

[01:03:51] Speaker 05:
There's some period before that when they're still burning.

[01:03:54] Speaker 05:
the clean fuel, the startup fuel, and then the parties.

[01:03:58] Speaker 05:
But the boilers, the best-performing sources, had a period of about four hours for when they were able to reliably produce enough energy to run whatever industrial process they're using the boilers to run, and had sufficiently stable combustion conditions to enable them to.

[01:04:18] Speaker 02:
Is there a substantive reason to allow a boiler that could comply with the first option to nonetheless have a second option?

[01:04:25] Speaker 05:
But it's more a matter of, first of all, EPA, and this is in the response to the comments, actually, did express some skepticism as to whether boilers at that, immediately upon starting to fill, could reliably.

[01:04:40] Speaker 05:
But also, they just have no information as to what falls into one category or another, what types of characteristics.

[01:04:47] Speaker 05:
They have no way to promulgate a rule.

[01:04:50] Speaker 07:
So this is kind of an interim measure saying we're going to get that information through the record keeping requirements.

[01:04:57] Speaker 05:
That's exactly right.

[01:04:58] Speaker 05:
These rules have to be reviewed every eight years under the statute, and that's the purpose of requiring the extra

[01:05:05] Speaker 05:
monitoring and reporting requirements to enable, they decide if, whereas it's the right time, if there are other things that can be done and if there are some, but they don't, you know, these, these employers are a very heterogeneous group.

[01:05:19] Speaker 05:
I mean, yeah, I think

[01:05:22] Speaker 05:
of a dozen subcategories just based on fuel types.

[01:05:25] Speaker 05:
They have different designs, they have different abilities to utilize gas or other fuels, they're different sizes, they're hooked up to different kinds of equipment, they're in different parts of the country.

[01:05:35] Speaker 05:
There's just no, it had no basis on which to say, you know, this category.

[01:05:41] Speaker 05:
And remember the,

[01:05:42] Speaker 05:
The determination that the starter period is much longer than this four-hour period after they start having neutral energy.

[01:05:50] Speaker 05:
There is the initial period of starting with the clean fuel, then there's the whole process of gradually feeding in the operating fuel to bring it up to temperature.

[01:06:00] Speaker 05:
So an EPA's decision that

[01:06:03] Speaker 05:
that the work practice standard is looking at this process as a whole.

[01:06:07] Speaker 05:
And there's no reason to divide it up between this last hour.

[01:06:11] Speaker 05:
It's a process that can take half a day or a day.

[01:06:13] Speaker 05:
It's a lengthy process overall.

[01:06:15] Speaker 05:
And there was no basis for dividing it up along those periods.

[01:06:26] Speaker 05:
And your Honor, expeditiously as possible, is number one, it's only part, one part of the suite of standards.

[01:06:34] Speaker 05:
In this case, it's readily distinguishable from Sierra Club, where there was no regulation, all of it was a pure exemption.

[01:06:40] Speaker 05:
It was clearly a word practice standard.

[01:06:43] Speaker 05:
It involves a number of requirements.

[01:06:46] Speaker 05:
If we look at the four hour one, which is C2, they have to, there is a hard limit of four hours.

[01:06:58] Speaker 05:
Excuse me.

[01:06:58] Speaker 05:
Particulate matter controls must be engaged one hour after they first start putting in their operating fuel or non-fuel fuel.

[01:07:06] Speaker 05:
So that can be well before they start, that could be before they start providing usable energy.

[01:07:13] Speaker 05:
There are monitoring requirements.

[01:07:14] Speaker 05:
They have to have a startup plan.

[01:07:16] Speaker 05:
This is not just to do whatever you want.

[01:07:20] Speaker 05:
expeditious as possible is in order because again every system is different and you have to it's based when they can implement their controls is based on when they achieve stable operation and when they achieve certain levels of low pressure and temperature.

[01:07:35] Speaker 07:
In your view could EPA have had the four-hour definition without the shorter option at all?

[01:07:44] Speaker 07:
Yes it could have.

[01:07:45] Speaker 07:
And so one way to look at this is that's the rule and then

[01:07:50] Speaker 07:
you have an incentive of relieving people of record keeping requirements if they can start to come into compliance as soon as they are producing useful food.

[01:08:03] Speaker 05:
Right, and I think that's actually probably the better way to look at it.

[01:08:05] Speaker 05:
But that's certainly how the analysis works.

[01:08:08] Speaker 05:
And in some of this discourse, we started with the first one and then added the second one.

[01:08:13] Speaker 07:
But just in terms of conceptually, whether we think of this as you have a rule that you've then punched a big hole in, you could flip it and just say, well, you have a rule that you've then also tightened up for certain.

[01:08:27] Speaker 05:
And I think that the better way to look at it because that the four hours is based on doing a Mac for analysis of looking at the data they had available and how long it took facilities.

[01:08:40] Speaker 05:
Some of them were some of the data was from electric utility boilers, but they are.

[01:08:45] Speaker 05:
is the best data EPA had, and it is consistent with the data that they have from.

[01:08:50] Speaker 05:
So anyways, that showed that the best performing sources, the 12% of best performing sources, which is what the statute requires, could get their controls on in four hours.

[01:08:59] Speaker 05:
So I think you're right, Your Honor.

[01:09:00] Speaker 05:
That is probably the better way to look at the goal.

[01:09:06] Speaker 05:
And the issues regarding shutdown are really just

[01:09:09] Speaker 05:
the corollary to the issues involving startup.

[01:09:12] Speaker 05:
You have to slowly bring the system down.

[01:09:15] Speaker 05:
You have to put the fire out.

[01:09:16] Speaker 05:
You can't just do it abruptly.

[01:09:18] Speaker 05:
Because again, you have the same issues of contraction and expansion.

[01:09:21] Speaker 07:
Although I gather the issues are a little different because you don't have this four-hour extension period.

[01:09:25] Speaker 07:
It must be more stable than the shutdown.

[01:09:28] Speaker 05:
Well, there's nothing to really measure from.

[01:09:29] Speaker 05:
Shutdown is just shut down.

[01:09:31] Speaker 05:
You obviously have an incentive to stop burning fuel economically, but at the same time,

[01:09:36] Speaker 05:
You don't want to keep burning fuel just to burn fuel.

[01:09:38] Speaker 05:
You want to bring the boiler down as fast as you can in order to save money.

[01:09:42] Speaker 05:
But you have to bring it down relatively slowly.

[01:09:45] Speaker 05:
And I think usually it's sort of the reverse process.

[01:09:48] Speaker 05:
You stop leaving in or you do less of the regular fuel.

[01:09:50] Speaker 05:
In the end, you may use additional clean fuel to smooth out the process of bringing the temperature down.

[01:09:58] Speaker 05:
So it's the same issue, Your Honor.

[01:09:59] Speaker 05:
There's no way to reliably measure emissions.

[01:10:02] Speaker 05:
There's no, there's no time for stack tests.

[01:10:04] Speaker 05:
There's no, the conditions are too unstable to use CDMs.

[01:10:08] Speaker 05:
And it's, again, a highly variable process, and there's no way to specify anything beyond, you know, what's been done, which includes, you know, limits and requirements on what you have to run with.

[01:10:23] Speaker 03:
Anything further?

[01:10:26] Speaker 05:
Any further questions, Your Honor?

[01:10:27] Speaker 03:
Thank you.

[01:10:30] Speaker 03:
Council for Interviews.

[01:10:45] Speaker 06:
Good afternoon.

[01:10:46] Speaker 06:
May it please the Court, I'm Lauren Freeman on behalf of the Intervene of Respondents and at Council's table is my co-counsel Felicia Barnes.

[01:10:54] Speaker 06:
I want to spend my five minutes or however much time I have focusing on the clean fuel issue and the sort of shutdown work practice standard, but before I get that with your indulgence, I'd like to just

[01:11:06] Speaker 06:
add a couple of points on the two prior issues.

[01:11:09] Speaker 06:
On CO, I understand that you'll get some information from the government to clear up where in the record that combustion calculation is reflected, but I would point

[01:11:24] Speaker 06:
you to a couple of places where, in intervening respondents brief, we cite to the comments, which I think provides the basis for the more summary statements EPA makes in the preamble.

[01:11:35] Speaker 06:
And that's on, I think it's pages 7 to 10, but I focus on probably the last paragraph of that section on page 10, where we cite to the technical reports as you anticipated

[01:11:50] Speaker 06:
And on the petitioner's argument, as I understand it, they're not taking issue in this rulemaking with the surrogacy.

[01:12:00] Speaker 06:
That was the U.S.

[01:12:01] Speaker 06:
Sugar case.

[01:12:02] Speaker 06:
Their issue is a very simple issue, and I think it's incorrect assumption that the statute itself requires EPA

[01:12:11] Speaker 06:
that once they choose a surrogate that they follow the strict language of the provision that says you have to maximize that.

[01:12:24] Speaker 06:
And we think that's an incorrect reading of the statute, that the maximization

[01:12:29] Speaker 06:
requirement clearly refers to the HAP and not to a surrogate.

[01:12:33] Speaker 06:
The surrogacy is really a court and EPA made concept that has been accepted by the court and not one that Congress probably anticipated in the language.

[01:12:44] Speaker 06:
So I think that their issue is completely different.

[01:12:48] Speaker 07:
Well, it's right at the heart of what we've been struggling over, which is if the rationale for using something as a surrogate is not shown to be inapplicable, then you'd have to use it consistently.

[01:13:04] Speaker 07:
And so then the question becomes,

[01:13:06] Speaker 07:
what counts as showing it to be inapplicable or bounded in some way or, you know, cross cut by some other factor.

[01:13:15] Speaker 07:
And so I think that's really where, at least what my thinking is focusing.

[01:13:19] Speaker 06:
And one thing I would point to, actually in their brief, I think it's a footnote five where they talk about what the court has said about the use of surrogates and pointed out that it's not necessarily a direct linear correlation between two things.

[01:13:34] Speaker 06:
In fact, what I think ETA has determined is that it is not, in the case of CO, one of those linear determinations where you keep going down with CO, you keep going down with organic caps.

[01:13:45] Speaker 06:
They say that relationship stops at 130 because you have complete combustion of the half at that point.

[01:13:52] Speaker 07:
Well, they haven't quite said that.

[01:13:54] Speaker 07:
They haven't quite said you have complete combustion.

[01:13:56] Speaker 07:
And if there were record information to that effect, I think our case would be much simpler.

[01:14:00] Speaker 07:
I'll move on then.

[01:14:02] Speaker 06:
Go ahead.

[01:14:04] Speaker 06:
I was going to move on to start up and shut down.

[01:14:06] Speaker 06:
Yeah, my question for you is on that, so go ahead.

[01:14:08] Speaker 06:
Okay.

[01:14:10] Speaker 06:
Happy to take your question first or unless you want to go right to clean fuel?

[01:14:13] Speaker 07:
I just had a question about this relationship between the two standards, you know, as early as possible when producing useful energy versus four hours.

[01:14:25] Speaker 07:
I think that you in your brief said that there would be incentives to use the earlier time because the boiler owners are subject to pollution capping regimes that give them incentives to minimize.

[01:14:39] Speaker 06:
Your question is in the rationality.

[01:14:42] Speaker 07:
Can you explain why a boiler owner would have an incentive to engage controls as early as possible even when faced with the option of delaying for four hours?

[01:14:54] Speaker 07:
Any incentives in addition to avoiding the record keeping that the rule additionally imposes?

[01:15:01] Speaker 06:
I think I hear a couple of things and I'm not entirely sure which you're, the section in our brief I think you're referring to was in response to a criticism of EPA's use of the power plant data as a metric to determine when the best performing

[01:15:15] Speaker 06:
sources had stable controls such that that was an appropriate time to end the startup period because they then could accurately measure emissions and comply with emission limits.

[01:15:29] Speaker 06:
So they criticized that because they said these power plants don't have any incentive to put their controls in place as fast as possible and therefore relying on data from those

[01:15:41] Speaker 06:
sources does not get at that question of when they can do it but when they act when they happen to do it and we responded I think EPA probably didn't address this because they thought it was obvious but these power plants are highly regulated entities and they have every incentive both under the program

[01:16:02] Speaker 06:
That EPA collected that data under, for SO2 and NOx, the acid rain program, CASPER and CARE, if you're familiar with any of those.

[01:16:11] Speaker 07:
The cross-state air pollution rule and the acid rain rule.

[01:16:16] Speaker 07:
Are all of the facilities that we're talking about, all these boilers under those, or just those that are generating electricity?

[01:16:23] Speaker 06:
So those are the power plants that were in the study that EPA used in lieu of

[01:16:30] Speaker 06:
data for industrial boilers because it didn't have the same robust database for industrial boilers.

[01:16:35] Speaker 06:
So they used the power plant data because they're similar types of boiler type, similar types of boilers and similar control devices.

[01:16:42] Speaker 06:
So they used that data, which is all they had, frankly.

[01:16:46] Speaker 07:
But I may be missing something.

[01:16:48] Speaker 07:
It's quite likely.

[01:16:52] Speaker 07:
Electric generating units in the study are a distinct class of energy producers from the boilers that we're talking about here.

[01:17:02] Speaker 07:
The boilers we're talking about here are not part of the grid.

[01:17:06] Speaker 07:
They're standalone institutional units, right?

[01:17:11] Speaker 07:
I think the question you're asking- So they wouldn't have that same incentive because they're not also subject, are they, to the acid rain program and the cross-state air pollution law?

[01:17:19] Speaker 06:
Some are, but they're not in the database EPA looked at.

[01:17:22] Speaker 06:
I think the question you're asking goes to the second question about the reasonableness of the work practice standard to engage certain controls as expeditiously as possible and whether they actually have some other incentive other than that to engage their controls.

[01:17:40] Speaker 06:
Is that-

[01:17:40] Speaker 07:
Yes, or would everybody just go for the four hours, assuming they can stomach the record keeping?

[01:17:46] Speaker 06:
Well, the first thing I'd like to point out, and it's not obvious from probably from any of our briefs, but you really have to focus on the work ethic standard itself, but that criterion, the as expeditiously as possible, only applies to

[01:18:00] Speaker 06:
three types of emission controls.

[01:18:03] Speaker 06:
I think as the government pointed out, the PM controls, which are wet scrubbers, fabric filters, ESPs, all are subject to a one hour after combusting your primary fuel standard.

[01:18:16] Speaker 06:
So we're really just talking about a couple of different, a couple of types of controls.

[01:18:21] Speaker 02:
But on the first option, the other controls you need to do right away.

[01:18:25] Speaker 06:
Under the startup definition, too, it's within one hour of combusting your primary fuel.

[01:18:32] Speaker 02:
Under option one.

[01:18:34] Speaker 06:
Under option one it is right away.

[01:18:35] Speaker 06:
The original standard EPA, work practice standard EPA set was right away except for those ones.

[01:18:42] Speaker 02:
And do boilers actually choose the first option, the original one?

[01:18:48] Speaker 06:
Some could, and I'll try to explain.

[01:18:51] Speaker 02:
I'm sorry, I don't mean to quibble, but there's a difference between could and would.

[01:18:54] Speaker 02:
Everybody could.

[01:18:56] Speaker 02:
But do boilers actually choose the first one instead of the second one, even though they have the option of the four-hour one?

[01:19:03] Speaker 06:
I think they would choose if they fell into that category of units that does better than the best performing.

[01:19:15] Speaker 06:
So when EPA, initially they chose that definition of startup, the startup definition one, but they didn't solicit comment on it.

[01:19:23] Speaker 06:
That was in the final rule.

[01:19:24] Speaker 06:
They went through reconsideration.

[01:19:25] Speaker 06:
They did this additional analysis of the best performing units.

[01:19:28] Speaker 06:
discovered that they were too stringent on the definition one.

[01:19:33] Speaker 06:
So they adopted the definition two with the four hour, additional four hours.

[01:19:37] Speaker 06:
But again, that's an average of the best performing 12%.

[01:19:42] Speaker 06:
Some people are better than average.

[01:19:44] Speaker 06:
And so they could have, as I think Judge Blard was suggesting, maybe the four hour is the better definition.

[01:19:51] Speaker 06:
Could they have just done that?

[01:19:52] Speaker 06:
perhaps they could have, but understanding that some boilers could do better, why on earth would you take away that option?

[01:20:01] Speaker 06:
Because you want an incentive to get controls up and operating earlier.

[01:20:06] Speaker 06:
And in fact, the petitioners don't challenge start of definition one, they would prefer that.

[01:20:11] Speaker 06:
And so EPA left that option in place, so some could do better.

[01:20:15] Speaker 06:
And I think people would choose that if they

[01:20:18] Speaker 06:
their mix of controls or margin of compliance could do better because, in part, they don't have to comply with all the additional record keeping.

[01:20:27] Speaker 02:
And that would be the main incentive, the avoidance of the record keeping.

[01:20:30] Speaker 02:
Otherwise, is there any reason to pick the first one instead of the second one?

[01:20:34] Speaker 02:
That may be enough.

[01:20:35] Speaker 02:
I'm not saying it's not, but I've just

[01:20:37] Speaker 06:
curious as to whether there would be a... I mean there certainly could be other incentives.

[01:20:41] Speaker 06:
I mean obviously you want to get your... One thing I think is underlying all this is the assumption that people want to delay engagement of controls as long as possible because it costs money.

[01:20:49] Speaker 06:
The reality is that they're facing the end of this

[01:20:53] Speaker 06:
work practice period, and then they have to comply with emission limitations.

[01:20:57] Speaker 06:
So in fact, they want to get their controls operating as soon as they can, because they don't want to take the chance they're going to slop over into the emission limitation period, because that can be a compliance issue.

[01:21:10] Speaker 06:
So they have every incentive to try as hard as they can.

[01:21:15] Speaker 06:
Um, you know, if you're talking about, you know, a four-hour period, I don't think that's a major, um, you know, consideration.

[01:21:23] Speaker 06:
But honestly, there's nothing in the record on that, so I'm just giving, you know, my... Yeah.

[01:21:27] Speaker 03:
I was even thinking about the burden of reckoning.

[01:21:30] Speaker 03:
You know, you punch a button.

[01:21:32] Speaker 06:
Well, it's actually not that, it's not that easy, because what they're doing, I mean,

[01:21:36] Speaker 06:
They have to keep temperature and pressure and parameters for ESP.

[01:21:41] Speaker 03:
That's all I'm getting.

[01:21:44] Speaker 03:
What an additional burden.

[01:21:46] Speaker 06:
Anyway, moving right along.

[01:21:52] Speaker 06:
I'd like to just say a couple of things about the clean fuel issue, because I do think there has been a misunderstanding that maybe has now been cleared up that the rule does require the use of clean fuel, both on startup and on shutdown.

[01:22:06] Speaker 06:
It just doesn't require it exclusively.

[01:22:08] Speaker 03:
So do you agree with EPA's explanation this morning?

[01:22:13] Speaker 03:
on page 98, number 5.

[01:22:15] Speaker 06:
And the reason they cannot or did not find it reasonable and I don't think could under the statute require exclusive use of clean fuel during startup and shutdown is because the way these boilers are

[01:22:29] Speaker 06:
designed to run is on primary fuel and they only have, you know, burners and things like that and fuel supplies that are sufficient to do the things they have to do with something other than primary fuel, warm the boiler and ignite the primary fuel.

[01:22:42] Speaker 03:
All right, anything else though?

[01:22:44] Speaker 03:
Because your brief is fairly thorough on this.

[01:22:47] Speaker 03:
Thank you very much.

[01:22:48] Speaker 03:
Good.

[01:22:50] Speaker 03:
All right, Council for Petitioners.

[01:22:57] Speaker 01:
I'd like to make a few points on carbon monoxide first.

[01:23:02] Speaker 01:
Your Honor asked whether the beyond the floor standards, the maximum achievable reduction was part of the case.

[01:23:10] Speaker 01:
It is part of the case.

[01:23:12] Speaker 01:
EPA promulgated 13 brand new emission standards, and those standards are very much subject to review in this case.

[01:23:19] Speaker 01:
We commented that they're not consistent with the maximum requirements and raised that point in our brief.

[01:23:27] Speaker 01:
The notion that the other argument, I think, Mr. Raypoint, what it made was that Section 112D2 somehow overrides Section 112D3, so these standards compliance with Section 112D3 doesn't matter.

[01:23:40] Speaker 01:
That's an argument that this Court has already considered and rejected.

[01:23:43] Speaker 01:
This met killed recycling case, again, Mr. Ruffalo.

[01:23:46] Speaker 01:
A third point, I think, is that the idea that, and I think this gets to your question about the combustion question and the use of CO being a conservative surrogate.

[01:23:59] Speaker 01:
All of that goes to the pollutants that are in fact destroyed in the combustion process.

[01:24:05] Speaker 01:
The record shows that polycyclic organic matter is actually created after the combustion process or during the combustion process.

[01:24:11] Speaker 01:
So that whole technical rationale doesn't apply.

[01:24:14] Speaker 01:
to polycyclic organic matter, which behaves differently, much more like dioxins.

[01:24:20] Speaker 01:
Another point on CO I'd like to make is I think that what you heard from Council for EPA was agreeing with us that EPA's actual rationale for setting these standards at 130 parts per million was a very simple one, that they thought there was no further benefit to reducing CO levels further.

[01:24:35] Speaker 01:
That's a policy argument.

[01:24:37] Speaker 01:
it has absolutely nothing to do with the statute.

[01:24:39] Speaker 01:
If EPA doesn't think that the statute is good policy, the entity needs to go to Congress.

[01:24:43] Speaker 01:
This isn't something that's subject to an arbitrary and capricious standard.

[01:24:46] Speaker 01:
EPA is simply arguing that if it doesn't think it's good policy to follow the statute, it doesn't need to.

[01:24:51] Speaker 01:
And that gets to the point that there are, I think that you've heard claims about it.

[01:24:54] Speaker 01:
I don't think that's quite what they're saying.

[01:24:56] Speaker 07:
I take them to be saying that they actually believe that the correlation breaks down, that the surrogate relationship no longer functions as such.

[01:25:05] Speaker 07:
at the level of below 130 and then the question is then why is it not arbitrary not to have required it to be maintained at that level and or where's the evidence?

[01:25:17] Speaker 01:
I think that there I think I agree with the beginning of that premise that that is what EPA is saying but because I think their conclusion is wrong their conclusion is that it doesn't work at that level

[01:25:27] Speaker 01:
It doesn't mean they get to not set the standards that the statute requires.

[01:25:32] Speaker 01:
It simply means that that surrogate doesn't work very well at that level.

[01:25:35] Speaker 01:
I think this is sort of an interesting thought exercise because let's just say that carbon monoxide works as a surrogate all the way down to 130 parts per million and then it doesn't work for the surrogate.

[01:25:43] Speaker 01:
If that's what EPA is saying, there's a boundary there, EPA needs to set some other standards for that.

[01:25:49] Speaker 01:
everything below that boundary.

[01:25:50] Speaker 07:
Or as industry just suggested, they need to show that there's nothing.

[01:25:55] Speaker 01:
Or they need to show that it's completely composite.

[01:25:57] Speaker 01:
Right, and obviously they can't do that.

[01:25:59] Speaker 02:
Or it's the best they can do.

[01:26:01] Speaker 01:
Yeah.

[01:26:01] Speaker 01:
No, it's not good enough to show that it's the best they can do.

[01:26:03] Speaker 02:
If there's nothing else that can possibly be done, then I'm not sure how the statute could require them to do the impossible.

[01:26:09] Speaker 01:
Well, correct.

[01:26:09] Speaker 01:
I mean, this is not a situation where there's nothing else that can actually be done.

[01:26:12] Speaker 01:
I mean, EPA itself says in the record that there are things that can be done.

[01:26:15] Speaker 01:
They can use add-on controls, post-combustion controls.

[01:26:18] Speaker 02:
So that's on revamp, the efficacy of the post-combustion controls.

[01:26:22] Speaker 01:
But it's also relevant to the stringency of the standards, because it shows that more can be done.

[01:26:32] Speaker 01:
And the last point is just that the claims that somehow these are the best performers or reflect the maximum degree of reduction is simply missing from the record.

[01:26:39] Speaker 01:
I would say that EPA doesn't cite any part of the record because there isn't such part of the record.

[01:26:44] Speaker 01:
On the startup and shutdown points,

[01:26:47] Speaker 01:
EPA is essentially saying it didn't have enough information to draw a line between the sources that can actually meet emission standards and the ones that can't meet emission standards.

[01:26:57] Speaker 07:
Or that need the extra four hours.

[01:26:59] Speaker 01:
Right.

[01:27:00] Speaker 01:
This is just dealing with the extra four hours.

[01:27:02] Speaker 01:
And the first point I'd like to make, because it's a simple factual one, is about whether there's clean fuels required.

[01:27:07] Speaker 01:
I'm jumping around a little bit, but I think this one is important.

[01:27:09] Speaker 01:
On the same page, on 98, and this is a couple paragraphs down, it says, if you choose to comply using definition two, once you start to feed fuels not clean, you will spend emissions to the stack and so forth.

[01:27:24] Speaker 01:
So plainly, yes, it does allow sources to burn fuels, but they're not clean.

[01:27:28] Speaker 01:
And the same is true for shutdown.

[01:27:30] Speaker 07:
But I understood that to be

[01:27:35] Speaker 07:
the case argument that the whole point of startup is that you're getting to a point where you're operating as you normally do, which is not with clean fuel.

[01:27:44] Speaker 07:
So it's like making a fire in my fireplace.

[01:27:46] Speaker 07:
I start with kindling.

[01:27:48] Speaker 07:
Let's say kindling's clean, which it's not, but let's say that's the clean fuel and the logs are dirty.

[01:27:53] Speaker 07:
I use only kiddling rather than some dirty fuel to start my fire.

[01:27:58] Speaker 07:
But the point of my project is to start my fire.

[01:28:01] Speaker 07:
So I'm going to put logs on there.

[01:28:02] Speaker 07:
And I'm going to have a period when I have both.

[01:28:05] Speaker 07:
And then when I'm fully started up, I only have logs.

[01:28:08] Speaker 07:
And so why is that not the fair understanding of what this is talking about, that the sort of?

[01:28:13] Speaker 01:
Well, under this rule, that would apply to the period before the startup shutdown definition too.

[01:28:20] Speaker 01:
During the up until the time that they're supplying useful thermal energy, they're actually at that point they're powering whatever it is they're supposed to be powering.

[01:28:28] Speaker 01:
Maybe they're burning clean fuels.

[01:28:30] Speaker 01:
But going back to the fireplace analogy, at that point they empty the trash bin into the fireplace as they can.

[01:28:35] Speaker 01:
Nothing in this rule stops them from doing that.

[01:28:37] Speaker 01:
In fact, the rule expressly makes clear that they can do that, which

[01:28:41] Speaker 01:
completely undercuts the rule rationale that EPA offered, which is not that burning clean fuels is impossible during that time period or that it's unachievable, but that they actually claim they were, that the only argument is that they were actually requiring it, which is a good thing.

[01:28:55] Speaker 07:
I'm missing, I think I'm missing something.

[01:28:56] Speaker 07:
So if they burn generally on the contents of the trash bin, they put in some clean fuels, they start putting trash on the fire,

[01:29:09] Speaker 07:
during startup because they want to get their equipment into 100% burning trash.

[01:29:18] Speaker 07:
You can't do the whole startup with only your kindling.

[01:29:24] Speaker 07:
throw the kindling out and put the log in.

[01:29:26] Speaker 07:
There's going to be some duck tailing, I thought.

[01:29:29] Speaker 01:
Now I understand your argument.

[01:29:30] Speaker 01:
If that's their argument, it's not in the record.

[01:29:32] Speaker 01:
At no point did they say it's infeasible to burn clean fuels all the way up to the end of the startup period.

[01:29:40] Speaker 01:
I didn't even see it in their brief.

[01:29:41] Speaker 01:
I think it's a post-postdoc rationale.

[01:29:42] Speaker 01:
But that's not the argument that they need.

[01:29:45] Speaker 01:
Getting back to the legality of setting work practice standards in the first place, EPA's argument that it was uncertain about where to draw the line simply doesn't work under this statute.

[01:29:55] Speaker 01:
The statute couldn't be more prescriptive on this point.

[01:29:57] Speaker 01:
The definition of what it takes to show that it's not feasible to set emission standards, and EPA is entitled to set work practice standards, is a highly prescriptive provision in what this Court has already held to be a highly prescriptive part of the statute.

[01:30:11] Speaker 01:
And it says that EPA has to make a determination about a particular class of sources.

[01:30:15] Speaker 01:
This is not something that's subject to arbitrary and capricious review.

[01:30:18] Speaker 01:
There simply is no determination about any particular class of sources.

[01:30:22] Speaker 01:
This is a statutory problem.

[01:30:27] Speaker 07:
What about the EPA's position that had they wanted to, assuming that they do have a predicate for work practice standards, and I appreciate that that's not something you've conceded, but if they are in the realm of setting a work practice standard, you also have this objection to the two tiers.

[01:30:43] Speaker 07:
What if they had framed the rule as everybody has to put full controls on within four hours of startup?

[01:30:49] Speaker 07:
If you exceed that and put them on as soon as you begin producing useful energy, we'll give you a pass on the record here.

[01:30:57] Speaker 01:
I think that's a very useful question.

[01:30:59] Speaker 01:
If EPA had actually claimed that all boilers are incapable of meeting emission standards during the startup period, this would be a very simple arbitrary and capricious case.

[01:31:07] Speaker 01:
We would be saying that claim is contrary to what's in the record.

[01:31:10] Speaker 01:
Therefore, it's arbitrary.

[01:31:11] Speaker 01:
But EPA didn't make that claim.

[01:31:13] Speaker 01:
Instead, it made this different claim that some can, some can't.

[01:31:16] Speaker 01:
We don't know which they are.

[01:31:18] Speaker 01:
And as a result, this problem is a statutory problem because it hasn't identified any particular class of sources that's unable to meet the standards.

[01:31:25] Speaker 07:
So you would say everybody has to meet the, as soon as you start producing useful fuel, and that EPA should have kind of a case-by-case waiver analysis for those that can't, that they should have to come to the EPA and say, I can't meet that, and here's why, and then EPA does a waiver analysis for them?

[01:31:41] Speaker 01:
No, no, we're not advocating that, Your Honor.

[01:31:42] Speaker 01:
EPA has plenty of discretion to exercise its line-drawing ability.

[01:31:46] Speaker 01:
EPA needs to identify, if it's EPA's contention that there are really some sources that can't meet emission standards when they start supplying thermal energy,

[01:31:54] Speaker 01:
And all EPA has said so far is that may be the case.

[01:31:56] Speaker 01:
But if EPA really believes that's true, then the EPA needs to draw a non-arbitrary line between the ones that can read it and the ones that can't.

[01:32:05] Speaker 01:
And no one has ever suggested that that's an impossible task.

[01:32:08] Speaker 07:
Not that EPA more or less just did that.

[01:32:09] Speaker 07:
They said this is a very heterogeneous group of plants, and we really just can't subclass.

[01:32:19] Speaker 07:
We don't know enough.

[01:32:21] Speaker 01:
That I would suggest is different than drawing a line.

[01:32:23] Speaker 01:
That's an excuse for not drawing a line.

[01:32:25] Speaker 07:
Which is what I think they've done.

[01:32:26] Speaker 07:
They haven't drawn a line.

[01:32:27] Speaker 07:
They've said, you guys sort yourselves out and come back and tell us.

[01:32:30] Speaker 01:
Right, but that's not good enough.

[01:32:31] Speaker 01:
These standards have to comply with the Clean Air Act.

[01:32:33] Speaker 01:
EPA lacks statutory authority to set work practice standards without drawing that line.

[01:32:38] Speaker 01:
And we're not saying that the line had to be perfect, but EPA did have to draw a line in a situation like this, where it's undisputed that some boilers can and do meet emission standards as soon as they start up.

[01:32:49] Speaker 01:
This is not something that's subject to arbitrary and capricious review, because here you have an express statutory limit meant to limit EPA's discretion.

[01:32:59] Speaker 01:
EPA can't simply go through that limit and say, well, we lack information to make the statutory finding.

[01:33:07] Speaker 01:
EPA is a creature of statute.

[01:33:09] Speaker 01:
If it hasn't made the necessary binding, it doesn't have authority to set work practice standards.

[01:33:15] Speaker 01:
There's a reason that Congress was so strict about this.

[01:33:17] Speaker 01:
Commission standards protect people much, much better than work practice standards.

[01:33:22] Speaker 01:
It didn't want EPA setting work practice standards, except in the rare instance where the agency demonstrated that it was impractical to meet admission standards, and EPA just hasn't done that here.

[01:33:34] Speaker 01:
And the last point I'd like to make, Your Honor, is that Council for Interveners have supplied a rationale for some of UPA's actions.

[01:33:41] Speaker 01:
I would simply point that they aren't UPA's rationale, and they aren't in the record, and they can't support the agency's decision.