[00:00:01] Speaker 01:
Case number 15-1219 at L, utility solid waste activities group at L, petitioners versus environmental protection agency.

[00:00:17] Speaker 09:
Good afternoon, Your Honors.

[00:00:19] Speaker 09:
May it please the Court, my name is Douglas Green, and I'll be addressing two issues this afternoon for industry petitioners.

[00:00:26] Speaker 09:
First is whether EPA exceeded its statutory authority in this rule in regulating inactive impoundments, and those are impoundments that ceased receiving coal combustion residuals, or CCR, prior to the rule's effective date.

[00:00:39] Speaker 09:
The second issue I will be addressing is whether EPA acted arbitrary and capriciously in prohibiting owners and operators from considering cost or inconvenience and determining whether they qualify for the rules alternative closure provision.

[00:00:53] Speaker 09:
And if I may, I'd like to have two minutes for rebuttal.

[00:00:57] Speaker 09:
Let me start with inactive units and say at the outset that the question before the court is not whether inactive units can pose a risk.

[00:01:07] Speaker 09:
Some may.

[00:01:08] Speaker 09:
The question we contend is what authority did Congress provide to EPA to address inactive units?

[00:01:15] Speaker 09:
And we think when looked through the prism of the proper statutory context, the law is clear.

[00:01:21] Speaker 09:
Congress gave EPA two mechanisms, two statutory mechanisms.

[00:01:25] Speaker 09:
First, RECRA is imminent and substantial endangerment provision.

[00:01:29] Speaker 09:
And then second, CERCLA, a completely different statute.

[00:01:33] Speaker 09:
What EPA is doing here is exceeding its statutory authority under RECRA

[00:01:39] Speaker 09:
By broadening its authority over inactive units beyond the limited authority it was provided in records imminent and substantial endangerment provision.

[00:01:48] Speaker 09:
Indeed, I think the question has to be asked, if EPA has always had this authority to address contamination from inactive units, why would Congress felt the need to enact CERCLA in the first place?

[00:02:02] Speaker 09:
When you look at this imminent and substantial endangerment provision, Congress was quite clear.

[00:02:08] Speaker 09:
It gave EPA the ability and citizens to address an imminent and substantial endangerment from both the past disposal and present disposal of solid and hazardous waste.

[00:02:20] Speaker 09:
And that's the only provision in record that specifically addresses past disposal.

[00:02:25] Speaker 09:
Congress, in enacting CERCLA just four years later, recognized that.

[00:02:30] Speaker 09:
Congress recognized that EPA had limited statutory authority under RECRA to address inactive sites.

[00:02:38] Speaker 09:
The legislative history is replete with concern to legislative history to circle it.

[00:02:44] Speaker 03:
Mr. Green, we're bound by the statutory text.

[00:02:46] Speaker 03:
And the statutory text is where the waste is disposed of.

[00:02:50] Speaker 03:
And I understand that you characterize that as a present tense.

[00:02:55] Speaker 03:
But isn't the present tense where

[00:03:00] Speaker 03:
waste currently is disposed of, in other words, where it currently is abandoned.

[00:03:08] Speaker 09:
Correct.

[00:03:09] Speaker 09:
I understand the question, Judge Pillard, and I think in answering that, the term is disposed of is a present tense, active tense conduct.

[00:03:21] Speaker 09:
I think where waste

[00:03:23] Speaker 09:
has been disposed of in an active unit is the better description is it has been disposed of, it was disposed of there.

[00:03:30] Speaker 09:
And I think the reason why that's the proper statutory construct is that if you look at the statute holistically, as you must,

[00:03:39] Speaker 09:
in interpreting what is disposed of means, you also must look at it in light of the fact that Congress gave EPA, again, two specific mechanisms to address inactive units, requisimative and substantial endangerment provision, and CERCLA.

[00:03:59] Speaker 09:
So if is disposed of,

[00:04:02] Speaker 09:
can be construed as applying to a unit that hasn't received waste in 20 years, clearly inactive.

[00:04:12] Speaker 09:
The question has to be asked

[00:04:14] Speaker 09:
Why was CERCLA enacted to address those type of conditions?

[00:04:20] Speaker 09:
Congress uses verb tense intentionally.

[00:04:23] Speaker 09:
I think as this court has pointed out, as the Supreme Court has pointed out, verb tense is important in determining the temporal limits of a statute.

[00:04:34] Speaker 05:
Is the verb tense really present?

[00:04:38] Speaker 05:
Is it not a past participle is disposed?

[00:04:42] Speaker 05:
Not to be too overly grammatical, but that's your argument, so I guess I have to be.

[00:04:46] Speaker 05:
Is disposed of as something that's the continuum over time.

[00:04:50] Speaker 05:
We have happened in the past, like she is rid of him.

[00:04:54] Speaker 05:
Happened in the past, continues forward, which would seem to cover exactly what's going on here.

[00:04:59] Speaker 09:
Judge Millett, again, in looking at what is disposed of means, we also, I think, have to look at, excuse me.

[00:05:08] Speaker 09:
We also have to look at it in the context of what authority does EPA have, what authority did Congress give EPA to address inactive units?

[00:05:18] Speaker 09:
So is disposed of, is a present tense a term?

[00:05:22] Speaker 09:
And to read it differently, I think... I'm just not sure grammatically it is.

[00:05:26] Speaker 05:
I'm not sure that's accurate.

[00:05:28] Speaker 05:
But also, it's...

[00:05:31] Speaker 05:
An open dump is defined sagittorially, such as anything that's not a sanitary landfill or hazardous waste.

[00:05:36] Speaker 05:
We'll put that aside.

[00:05:37] Speaker 05:
And the sanitary landfill verb is disposal.

[00:05:41] Speaker 09:
That is correct.

[00:05:42] Speaker 05:
So I don't understand how, if you have the sort of, it's in one box or the other.

[00:05:47] Speaker 05:
You're creating a third door.

[00:05:49] Speaker 09:
No, I think they actually work as good bookends to confirm that this is a present tense activity.

[00:05:57] Speaker 09:
The definition of disposal is also comprised of terms that

[00:06:05] Speaker 09:
are in the present tense, placement, injection, leaking.

[00:06:10] Speaker 05:
Yeah, but they don't have to happen at the same time as a moment of disposal, which is your argument, right?

[00:06:15] Speaker 05:
Something that is, a company has an impoundment, they put stuff in, that one's full, we started a new impoundment, but that old one can be the one that is leaking.

[00:06:25] Speaker 05:
or is spilling, even if the disposing, under your view of that word, is no longer happening because of fall-up.

[00:06:32] Speaker 09:
Fair enough.

[00:06:33] Speaker 09:
So the disposal occurred five years ago, the active placement in that unit.

[00:06:38] Speaker 05:
Or under your theory one week ago.

[00:06:39] Speaker 09:
One week ago.

[00:06:40] Speaker 09:
That's correct.

[00:06:43] Speaker 09:
But we're talking about inactive units, Your Honor, units that didn't receive CCR.

[00:06:47] Speaker 05:
Again, it's usually the word inactive.

[00:06:49] Speaker 05:
If inactive means when they're placing stuff in there, which I think is what you're using, but if inactive means is the stuff that's in there inactive or is it leaking or spilling or still being disposed of as long as it sits there?

[00:07:04] Speaker 09:
Well, what I mean by inactive is the unit itself.

[00:07:09] Speaker 09:
So we have a surface impoundment that has stopped receiving any waste.

[00:07:14] Speaker 09:
prior to the effective date of the rule.

[00:07:15] Speaker 09:
That's what I mean by enact.

[00:07:17] Speaker 05:
I know that's how you're using it, but statutorily, I guess that's what, I get that you're saying the activity is the putting in, but statutorily, the language seems to be focused on the status of the stuff that's there, not whether more stuff is being piled on top of it.

[00:07:34] Speaker 05:
It's whether that status is sitting there, still being disposed of, because it's still in its container and being monitored and watched, I should hope, and still, say, leaking.

[00:07:48] Speaker 09:
Well, I think with respect to that,

[00:07:51] Speaker 09:
There have been, as we point out in our brief, multiple courts of appeals that have also looked at this question, albeit under the CERCLA context.

[00:08:00] Speaker 09:
But I want to address this issue, if I may, Judge Millett, because the CERCLA uses the same definition of disposal as is RECRA.

[00:08:11] Speaker 09:
It's not a shared term.

[00:08:12] Speaker 09:
Congress made clear that CERCLA's definition of disposal shall be the same as that under RECRA.

[00:08:19] Speaker 09:
And the question has come up.

[00:08:20] Speaker 05:
Doesn't CIRCLA say at the time of disposal?

[00:08:24] Speaker 09:
No.

[00:08:25] Speaker 09:
The CIRCLA cases simply are where it's true.

[00:08:27] Speaker 09:
No, the statute.

[00:08:29] Speaker 09:
Under CIRCLA?

[00:08:30] Speaker ?:
Mm-hmm.

[00:08:32] Speaker 09:
Um, it's, it certainly applies to facility owners or operators who, under this is, I think, section.

[00:08:38] Speaker 05:
The statutory, relevant statutory phrases at the time of disposal, which somehow seems different than is disposed of to me.

[00:08:44] Speaker 05:
They aren't identical phrases, so decisions from other courts wouldn't necessarily cast light on what disposed, disposal or is disposed of means here.

[00:08:52] Speaker 09:
Well, what the circle of courts were looking at was whether the definition of disposal under record, because they had to look at the definition of disposal under record, because records, Congress said,

[00:09:04] Speaker 09:
the definition shall be the same.

[00:09:07] Speaker 09:
So those courts were interpreting the definition of disposal as it's defined under RECRA to determine whether passive migration from an active unit, and that is a unit that has ceased receiving hash prior to the CCR rules effective date.

[00:09:25] Speaker 09:
Those courts have looked at the plain language of the term disposal and have said that passive migration does not constitute disposal under RECRA.

[00:09:34] Speaker 09:
Just passive migration.

[00:09:36] Speaker 05:
We have our own decision, consolidated land, that said disposal.

[00:09:39] Speaker 05:
Disposal, that term that you're now using, covers the continuing presence of waste.

[00:09:45] Speaker 05:
Absolutely.

[00:09:46] Speaker 09:
I'd like to address that.

[00:09:47] Speaker 05:
Am I not stuck with that?

[00:09:47] Speaker 09:
Yeah.

[00:09:48] Speaker 09:
I don't think you are stuck with that.

[00:09:50] Speaker 09:
I'm stuck with it.

[00:09:51] Speaker 05:
You have to tell me why it's different.

[00:09:52] Speaker 09:
Exactly.

[00:09:53] Speaker 09:
I'm going to tell you why it's different.

[00:09:56] Speaker 09:
Two things.

[00:09:58] Speaker 09:
In rate consolidated land disposal was addressing a rule where only addressed units where waste were disposed of in those units after the effective date of the rule.

[00:10:13] Speaker 09:
This court was not addressing the fundamental question we're asking you to address today, which is what is EPA's statutory jurisdiction over inactive units?

[00:10:25] Speaker 09:
In Ray Consolidated Land Disposal, the rule says on its face, and in fact, in the court's decision in In Ray Consolidated Land Disposal, the court says that disposal is defined as facilities that received waste after the effective date of that rule.

[00:10:44] Speaker 09:
I think it was authored by Judge Ginsburg.

[00:10:48] Speaker 09:
I know he didn't or the court did not have before it the question of, well, what if we had a unit that was inactive, hadn't received waste for 20 years?

[00:10:59] Speaker 09:
How would RECRA attach to that?

[00:11:02] Speaker 09:
That question, Your Honor, simply wasn't before the court and in Ray Consolidated.

[00:11:06] Speaker 05:
Well, what they really said was disposal is a continuous phenomenon rather than a discrete event.

[00:11:11] Speaker 09:
Right.

[00:11:13] Speaker 09:
But I don't think that the court was addressing the issue that we have to face today, because the court wasn't looking at inactive units.

[00:11:22] Speaker 09:
We have a completely different question.

[00:11:24] Speaker 05:
But you would have to say it is a discrete event.

[00:11:27] Speaker 05:
Well, the courts that have looked at whether... And we have to say it's a discrete event under RCRA, not CERCRA.

[00:11:34] Speaker 09:
But what I'm saying is in Ray Consolidated simply didn't address this issue.

[00:11:37] Speaker 09:
And the reason why I say that, Judge Millett, is because the court wasn't faced with this fundamental statutory question.

[00:11:44] Speaker 09:
The courts that have looked at it, the CERCLA courts, have said this is an active unit that hasn't received ways for 10 years.

[00:11:51] Speaker 09:
Just sitting there, it does contain stuff that was disposed of.

[00:11:56] Speaker 09:
They've looked at that and said,

[00:11:58] Speaker 09:
Whatever disposal is, it doesn't cover the gradual passive migration from those units.

[00:12:04] Speaker 05:
Leaking.

[00:12:06] Speaker 09:
And they expressly say it doesn't include leaking.

[00:12:09] Speaker 09:
Leaking is, I think it's ABB Industries, the Second Circuit's decision, and I think it was reflected again in the CDMG decision in the Third Circuit, that leaking is from a hole, from a crevice, and that we're really talking about a tank

[00:12:26] Speaker 09:
or some type of drum.

[00:12:28] Speaker 09:
But whatever leaking is, those courts were clear, it's not this type of gradual passive migration from inactive units.

[00:12:35] Speaker 09:
I think those cases, I would suggest, Your Honor, that in looking at this issue,

[00:12:41] Speaker 09:
I'm running out of time and I want to get to the second issue quickly, but that I think the court does have to consider those circular cases, be only because Congress tied these two statutes circling a record together as bookends.

[00:12:55] Speaker 09:
Record is prospective.

[00:12:57] Speaker 09:
And CERCLAW is designed to give EPA the ability, along with its imminent substantial endangerment provision, to address the risks from inactive units.

[00:13:06] Speaker 09:
They are bookends, and because they share the exact same definition, if this court were to find that passive migration does constitute disposal,

[00:13:16] Speaker 09:
I think, and I know this is a record case, but I would suggest it does warrant some consideration in terms of what that type of decision would do under CERCLA, where courts are looking at this definition and determining how that statute works, because they're using the same word.

[00:13:32] Speaker 03:
I don't recall you in your reply brief saying anything about EPA's argument that solid waste management

[00:13:38] Speaker 03:
It's clearly covered under, is it 6907, and then this is part of solid waste management.

[00:13:46] Speaker 09:
Yeah.

[00:13:46] Speaker 09:
I think the storage issue, Your Honor, and I think that issue fails under the Chenary Doctrine, which is they assert that we somehow waived our argument to even discuss this issue.

[00:14:00] Speaker 09:
because they're also using the concept of storage to regulate inactive units.

[00:14:07] Speaker 09:
Well, that's not, in fact, what the rule does.

[00:14:10] Speaker 09:
EPA itself conceded it didn't propose to regulate storage and it went beyond that.

[00:14:15] Speaker 03:
I mean, I take it to be a little bit

[00:14:19] Speaker 03:
broader of an argument about, you know, just as you're bringing in the CERCLA and the eminent endangerment authorities are saying, no, look at this, look at the scheme and look at, look at that management is something that one does with respect to waste that was put there previously that remains disposed of there.

[00:14:37] Speaker 09:
Sure.

[00:14:38] Speaker 09:
Yeah, I think, again, what EPA says is that,

[00:14:43] Speaker 09:
They do say that they were regulating storage.

[00:14:46] Speaker 09:
That was an alternative theory.

[00:14:49] Speaker 09:
But the record upon which this rule is actually predicated, and EPA is clear about this, is their theory on their ability to regulate passive migration from inactive units is based solely on the fact that those units are engaged in disposal.

[00:15:05] Speaker 03:
EPA says in this rule that... Well, that those units are units where the waste is disposed of.

[00:15:11] Speaker 03:
and remains disposed of.

[00:15:13] Speaker 03:
Right.

[00:15:15] Speaker 09:
But what I'm responding to, Your Honor, is the question of whether we somehow waived our ability to discuss disposal because of their alleged alternative theory of storage.

[00:15:26] Speaker 03:
I wasn't so much asking as a waiver point, but just as a point about isn't that illuminating, or what is your view about whether that management authority

[00:15:35] Speaker 03:
is illuminating about what the functions are that Congress was addressing when it enacted RECRA.

[00:15:41] Speaker 09:
Right, I understood.

[00:15:43] Speaker 09:
Two points.

[00:15:44] Speaker 09:
That provision in RECRA has nothing to do with the EPA's ability to establish the technical criteria that EPA can establish under sections 6944 and 6945, which is what they in fact

[00:15:59] Speaker 09:
did here, that provision establishes EPA's direction from Congress to establish criteria for solid waste management plans that EPA doesn't enforce.

[00:16:11] Speaker 09:
That is simply, that is an encouragement to the states to set up solid waste management plans and if they do it appropriately, they can receive funding.

[00:16:20] Speaker 09:
But the actual technical criteria, the rules statutory basis as EPA itself concedes is 42 USC 6944 and 45.

[00:16:31] Speaker 09:
And if you look at those provisions,

[00:16:34] Speaker 09:
What they are saying is that we, Congress directed EPA to establish criteria to define what type of disposal practices constitute an open dump.

[00:16:44] Speaker 09:
I don't want to cut off your question.

[00:16:48] Speaker 05:
I promise we'll let you make your second point.

[00:16:49] Speaker 05:
Thank you.

[00:16:49] Speaker 05:
I just have to ask you one more thing on this.

[00:16:53] Speaker 05:
Absolutely.

[00:16:53] Speaker 05:
I'm going to call it the WIN Act.

[00:16:54] Speaker 05:
The what?

[00:16:56] Speaker 05:
The WIN Act, the W-I-N.

[00:16:57] Speaker 02:
Sure.

[00:16:58] Speaker 05:
Because it's WIN Act.

[00:17:02] Speaker 05:
says in subsection six that a coal combustion residual unit shall be considered to be a sanitary landfill for purposes of this act, Rick Roth, only if it complies with state things if they had one, things that don't exist yet, or the applicable criteria under this regulation.

[00:17:23] Speaker 05:
So how can

[00:17:25] Speaker 05:
Since the statute now says that you have to comply with the criteria adopted in this regulation to be a sanitary landfill, doesn't that moot your challenge?

[00:17:33] Speaker 05:
Congress has now said this is the minimum criteria to be a statutory landfill.

[00:17:40] Speaker 09:
Oh, I don't think the Winn Act doesn't change the substantive criteria of the CCR rule.

[00:17:46] Speaker 09:
It gives EPA more authority.

[00:17:48] Speaker 09:
It gives us the states.

[00:17:49] Speaker 05:
It cites to this regulation.

[00:17:50] Speaker 05:
Sure.

[00:17:51] Speaker 09:
No, absolutely.

[00:17:51] Speaker 09:
But I don't think the Winn Act answers the legal question, Your Honor.

[00:17:54] Speaker 05:
How can it not?

[00:17:55] Speaker 05:
It says this is at a minimum to be a statutory landfill.

[00:17:58] Speaker 05:
You've got to satisfy the criteria in this regulation right now.

[00:18:03] Speaker 09:
Absolutely.

[00:18:04] Speaker 09:
And maybe I'm missing your point.

[00:18:07] Speaker 05:
That seems to be an endorsement of what EPA has done here.

[00:18:11] Speaker 05:
So doesn't that just overcome your argument that they didn't have the ability to do it?

[00:18:15] Speaker 05:
Because EPA has said in this regulation, you've got to comply.

[00:18:20] Speaker 05:
As you call them, your inactive units have got to comply.

[00:18:23] Speaker 09:
No, I don't read it that way, Your Honor.

[00:18:26] Speaker 09:
I don't think that's a fair way to read it.

[00:18:28] Speaker 09:
And that's because, I think, as everybody has contended in their briefs on the WIN Act,

[00:18:34] Speaker 09:
The Winn Act doesn't expand the scope of the CCR rule, nor does it decrease it.

[00:18:39] Speaker 05:
The question that we have before... No, it takes it as it is, but that's your problem, as it is.

[00:18:45] Speaker 05:
Regulates your inactive units.

[00:18:46] Speaker 09:
No, our question is...

[00:18:49] Speaker 09:
I don't think it doesn't move it because it doesn't answer the question as to whether, the legal question, as to whether EPA had the ability to regulate inactive units.

[00:19:01] Speaker 05:
Why doesn't it?

[00:19:02] Speaker 05:
It says, it's, Congress passed a statute when this regulation was sitting out there and was being actively litigated.

[00:19:08] Speaker 05:
It was less than a year ago.

[00:19:11] Speaker 05:
in the midst of all this briefing, and they said to be a sanitary landfill, apart from those permit things that aren't in place yet, you've got to satisfy the criteria of 40 CEFR part 257, which includes complying with the regulatory imposition on inactive units.

[00:19:31] Speaker 05:
Congress adopted the regulation.

[00:19:33] Speaker 09:
I don't think that was the intent behind it.

[00:19:36] Speaker 05:
Tell me how the statutory language doesn't take care of that.

[00:19:40] Speaker 09:
I think the statutory language means that

[00:19:43] Speaker 09:
you are a sanitary landfill only if you comply with the regulations.

[00:19:52] Speaker 09:
I don't think the WIN Act was an attempt to expand or really eliminate or expand EPA's jurisdiction over inactive units.

[00:20:00] Speaker 05:
The question of expanding, they looked at the regulation as it existed and said if you want to be a sanitary landfill you've got to comply with what that regulation says which includes regulations

[00:20:11] Speaker 05:
of inactive compounds.

[00:20:12] Speaker 05:
So that you cannot be, if you don't comply with their regulations of what you call inactive compounds, you're an open dump.

[00:20:19] Speaker 05:
You can't be a sanitary landfill.

[00:20:22] Speaker 09:
Again, I don't believe that the Winn Act was addressing this fundamental legal question.

[00:20:29] Speaker 09:
I understand your point.

[00:20:32] Speaker 09:
But the threshold question when Congress was enacting that was simply to give

[00:20:37] Speaker 09:
the states the ability to implement the rule, but Congress wasn't determining the legal issue with respect to inactive units.

[00:20:49] Speaker 05:
I'm just telling you about the plain text.

[00:20:50] Speaker 05:
As I read it, I would really, I guess, when you get up on rebuttal, if you could tell me how the plain text, whatever folks might have been thinking and whatever the arguments might have been before Congress passed the Winn Act,

[00:21:03] Speaker 05:
I'm having trouble understanding how this is not Congress and this isn't just saying comply with regulations, it defines, it gives us a new definition of sanitary landfill that did not exist before this act.

[00:21:13] Speaker 09:
Well I think what was going on there was Congress was saying

[00:21:17] Speaker 09:
To be a sanitary landfill, you either have to be regulated under a state permit program, under an EPA permit program, or remain, or meet the criteria.

[00:21:28] Speaker 05:
I don't think Congress... Meet the criteria of this regulation.

[00:21:30] Speaker 09:
Right, I don't think Congress was addressing this legal issue at all.

[00:21:34] Speaker 09:
It was, in terms of EPA's authority, to regulate inactive units that have been active, haven't received waste for 10 or 20 years.

[00:21:43] Speaker 09:
I just don't believe that was Congress's intent.

[00:21:45] Speaker 09:
I don't think it's... Again, I'm talking about...

[00:21:47] Speaker 09:
Congress doesn't hide, you know, elements of mouse holes.

[00:21:50] Speaker 05:
This is not a mouse hole, this is the plain text of the statute, and so, and it's an extra provision, zone subsection B, and so if Congress passed other statutes, it said there was a fight about regulation, and they said that regulation that's on the books means X statutory term.

[00:22:08] Speaker 05:
To fall with an X statutory term, you gotta comply with that regulation.

[00:22:12] Speaker 05:
I think anywhere else we would say that's a congressional endorsement and legislation of that regulation.

[00:22:18] Speaker 09:
Again, I think that that would be such a fundamental shift in Congress's alluded

[00:22:27] Speaker 09:
grant of authority to EPA to address inactive units that I don't believe that's what Congress was doing in that statement, Your Honor.

[00:22:35] Speaker 05:
I think it was trying to... How else would Congress say it if that's what it wanted to do?

[00:22:38] Speaker 05:
Because Congress was trying to make clear... How would they say it if that's what they wanted to do?

[00:22:41] Speaker 05:
Let's assume they wanted to embrace this rule as the new definition of sanitary landfill.

[00:22:48] Speaker 05:
How would they say it?

[00:22:49] Speaker 09:
I think what Congress was doing in that provision was acknowledging that there were going to be state permit programs, there were going to be EPA permit programs, and that if you didn't comply with either one, you had to continue to comply with the current rule.

[00:23:04] Speaker 09:
Exactly.

[00:23:05] Speaker 09:
But I don't think it was addressing the issue, the legal issue.

[00:23:08] Speaker 09:
It just wasn't before Congress of what EPA's authority is to address an act of units.

[00:23:12] Speaker 09:
It was trying to tie the various ways together

[00:23:17] Speaker 09:
that the WIN Act gave EPA the ability to regulate CCR units going forward, either under a state permit program, an EPA permit program, but those aren't in effect, and you've got to continue to comply with the CCR rule.

[00:23:30] Speaker 09:
I just don't think it was addressing this fundamental issue.

[00:23:33] Speaker 09:
of what is, I don't think it was looking at the issue of we have now changed EPA's ability to regulate inactive units under RECRA and have expanded it.

[00:23:44] Speaker 05:
Maybe not changed, maybe they just endorsed what it always been, what the EPA would say has always been there all along.

[00:23:49] Speaker 09:
I don't think, again, Congress would have done that in such an abbreviated fashion, Your Honor.

[00:23:56] Speaker 09:
And I think, again, what they were doing was simply making certain that you remain subject to the rule,

[00:24:03] Speaker 09:
realizing it was subject to litigation, and then the rule could change, or you remain subject to the estate permit program or EPA permit program.

[00:24:12] Speaker 01:
All right.

[00:24:12] Speaker 01:
Move on.

[00:24:13] Speaker 01:
Just for two minutes to go.

[00:24:13] Speaker 01:
All right.

[00:24:14] Speaker 01:
Just very quickly.

[00:24:14] Speaker 09:
Thank you.

[00:24:16] Speaker 09:
With alternative closure, that's a provision, as you know, where EPA was trying to do the right thing.

[00:24:22] Speaker 09:
And when we enforce the rule in terms of concept, where the agency recognizes

[00:24:27] Speaker 09:
that in certain situations CCR units may be compelled to close, but if there's no alternative disposal capacity for that unit, the power plant may have to close.

[00:24:38] Speaker 09:
So EPA recognized in those instances there would be more harm to the general public in the loss of power than for the limited period of time to allow that impoundment to continue to operate.

[00:24:48] Speaker 09:
The problem we have with that rule is that EPA said in determining whether there's alternative disposal capacity and you can remain open, an owner and operator can't consider cost or inconvenience.

[00:25:02] Speaker 09:
And the problem with that is that we think that prohibition swallows the rule.

[00:25:08] Speaker 09:
The example that EPA itself gives as to when this rule could be available, I think, is a case in point.

[00:25:15] Speaker 09:
EPA says, look, at the preamble, a situation where you may not be feasible to send a material off site is wet ash.

[00:25:25] Speaker 09:
And we will acknowledge that's incredibly difficult.

[00:25:28] Speaker 09:
But if cost or inconvenience cannot be considered in determining

[00:25:33] Speaker 09:
whether you have alternative disposal capacity for that wet ash, then I would suggest you'll always be able to find capacity to do something if costs can't be considered.

[00:25:42] Speaker 05:
You could have hundreds of vac trucks or even thousands come up and... Given the DPA has interpreted it in a way that acknowledges that there can be some real practical impossibility, I don't know why you're arguing against their position here.

[00:25:56] Speaker 09:
Well, what we're concerned about, Your Honor, is that the plain language of the rule doesn't say what EPA is interpreting it to mean.

[00:26:05] Speaker 09:
And this is a rule, as you know, right now is still self-implementing and enforced through citizen suits in federal district courts.

[00:26:12] Speaker 09:
So we are very concerned that entities are going to be availing themselves of the alternative closure provision.

[00:26:19] Speaker 09:
And let's use the case of wet ash, and we could see how somebody would argue to a federal district court judge

[00:26:25] Speaker 09:
You know, company X, of course you can take that material and send it off site.

[00:26:32] Speaker 09:
You can't consider cost.

[00:26:34] Speaker 09:
You can't consider inconvenience.

[00:26:36] Speaker 09:
Bring in the trucks.

[00:26:37] Speaker 09:
We don't really care what EPA said.

[00:26:40] Speaker 09:
This is what the rule says.

[00:26:41] Speaker 09:
So that's our concern.

[00:26:43] Speaker 09:
We think EPA

[00:26:45] Speaker 09:
can set reasonable conditions that would make this rule workable.

[00:26:50] Speaker 09:
But right now, we do see the prohibition as swallowing really the allowance that EPA was trying to provide.

[00:26:57] Speaker 03:
Right.

[00:26:57] Speaker 03:
The difficulty is the way the statute is written.

[00:27:04] Speaker 03:
You haven't pointed us to anything that seems to invite consideration of costs.

[00:27:10] Speaker 03:
I understand your argument, and it seems like it is obviously a factor.

[00:27:16] Speaker 03:
This is stuff that's very difficult to move once it's placed.

[00:27:23] Speaker 03:
Most of what the agency's requiring is upfront measures, prophylactic measures with new sites.

[00:27:31] Speaker 03:
But where's the authority?

[00:27:34] Speaker 09:
I think an ERECRA doesn't, whatever EPA develops with respect to responding to this issue, it has to meet the statute's protectiveness standard.

[00:27:45] Speaker 09:
It has to ensure that the rule that allows for the qualification for the alternative closure provision ensures that there's no unreasonable probability of risk to human health in the environment.

[00:28:00] Speaker 09:
But nothing in record flat out prohibits EPA from considering costs.

[00:28:05] Speaker 09:
But what EPA ultimately has to do is ensure whatever factor it comes up with, whatever equation it comes up with, it meets that protectiveness standard.

[00:28:15] Speaker 09:
So for instance, one concern is, what if it would cost $100 to bring in the trucks and send all that material offsite?

[00:28:26] Speaker 09:
But if you incurred that amount of money, the power plant was going to close down, because it's too much money to allow a facility to operate.

[00:28:37] Speaker 09:
So I think EPA could come up with some type of test that would ultimately have to achieve the protectiveness standard.

[00:28:48] Speaker 09:
I agree.

[00:28:48] Speaker 09:
You could say, look.

[00:28:50] Speaker 09:
During this limited period of time, if the costs of sending that material off site are so great as to cause the power plant to shut down.

[00:28:59] Speaker 03:
As compared with, let's say, really careful monitoring and emergency readiness.

[00:29:06] Speaker 03:
There probably is an answer to this that you have and I don't.

[00:29:13] Speaker 03:
But under the statutory authority for coming up with the federal guidelines for state plans, 6942C, there is an element there of cost.

[00:29:27] Speaker 03:
6942C-9

[00:29:31] Speaker 03:
consider the political economic, organizational, financial, and management problems.

[00:29:43] Speaker 03:
But that's not something that you cited.

[00:29:45] Speaker 09:
No, no.

[00:29:46] Speaker 09:
And I think the here, because again, this rule is promulgated under 69-44 and 69-45.

[00:29:55] Speaker 09:
And all we're saying is that as written, the prohibition, notwithstanding what EPA says in the preamble, which we appreciate, but if read literally,

[00:30:11] Speaker 09:
If you can't consider costs or inconvenience, you're always going to be able to find off-site options.

[00:30:16] Speaker 05:
So should a court... Are you saying you're worried that courts won't defer to the agency interpretation of its own regulation?

[00:30:22] Speaker 09:
Your Honor, I don't know how district courts are going to defer to that.

[00:30:28] Speaker 05:
There may be instances... Do you think the plain language of the regulation would foreclose deferring to that, or do you think the plain language of the regulation would allow, as ambiguous enough, that a court could defer to it?

[00:30:38] Speaker 09:
I think it's going to be a fact-specific situation.

[00:30:41] Speaker 05:
It's not fact-specific.

[00:30:42] Speaker 05:
The regulation says what it says.

[00:30:44] Speaker 09:
The regulation says that you cannot consider cost or inconvenience.

[00:30:49] Speaker 05:
So your view is the plain language just wouldn't even allow a court to find ambiguity to defer to the preamble statement?

[00:30:54] Speaker 09:
I'm concerned that a court might find that, yes.

[00:30:56] Speaker 05:
That's your position, though, is what I'm asking.

[00:30:58] Speaker 09:
Yes.

[00:31:00] Speaker 09:
We would, courts generally defer to EPA's interpretation, but with the plain language of the regulation is plain, we are concerned that courts would say, you know, with all due respect, Company X, we know this is going to cost a lot of money.

[00:31:13] Speaker 09:
We know it may cost so much money that... Well, I'm asking concerned.

[00:31:16] Speaker 05:
I get concerned.

[00:31:17] Speaker 05:
I'm just asking whether you think that argument will even be available to you.

[00:31:21] Speaker 05:
in such litigation.

[00:31:22] Speaker 09:
If the text stays the way it is, we're going to have to make that argument.

[00:31:26] Speaker 09:
But we are concerned that there will be courts that disagree with us.

[00:31:32] Speaker 01:
All right.

[00:31:33] Speaker 01:
Thank you.

[00:31:33] Speaker 09:
Thank you very much.

[00:31:34] Speaker 01:
Mr. Rosen.

[00:31:49] Speaker 08:
Good afternoon.

[00:31:50] Speaker 08:
Perry Rosen for the United States.

[00:31:52] Speaker 08:
With me is Laurel Celeste from EPA.

[00:31:55] Speaker 08:
I'd like to start off with the last issue that Council raised, which is the on-site storage exception.

[00:32:02] Speaker 08:
This is an accommodation that's necessitated by a lack of alternative storage space and the need for avoiding disruptions in electricity.

[00:32:12] Speaker 08:
It's a reprieve from the closure requirements.

[00:32:15] Speaker 08:
And it's limited, as it should be, because these are facilities that are out of compliance.

[00:32:20] Speaker 08:
These are facilities where contamination is occurring and will continue to occur for up to the five-year reprieve that they are able to get.

[00:32:28] Speaker 08:
The provision that council talked about is that in establishing the lack of availability of an alternative site, an increase in costs or the inconvenience is not sufficient.

[00:32:42] Speaker 08:
EPA is not permitted under the statute to consider costs, because this is a health-based standard.

[00:32:49] Speaker 08:
There is no provision, unlike a lot of other environmental statutes, where there is some provision for assessing costs.

[00:32:56] Speaker 08:
In fact, under the Bevel Amendment here, there's provision for doing that.

[00:32:59] Speaker 08:
But EPA cannot consider costs, so this provision should stand on its own for that.

[00:33:04] Speaker 05:
But even if EPA... How do you interpret your preamble language, then?

[00:33:08] Speaker 05:
Is that just actual impossibility that even...

[00:33:11] Speaker 05:
No money could buy the ability to handle that kind of wet ash?

[00:33:20] Speaker 08:
It has to go to impractability.

[00:33:24] Speaker 08:
Obviously, costs are an issue, whatever you do.

[00:33:28] Speaker 08:
But the important point here is if you flip this around, if costs and inconvenience are a factor,

[00:33:35] Speaker 08:
then increased costs and increased convenience will always, in 100% of the cases, be able to be established.

[00:33:42] Speaker 05:
I just want to get back and understand your point in the preamble, though, about impracticability.

[00:33:47] Speaker 05:
I don't know the science of this.

[00:33:49] Speaker 05:
Are you just telling me that, in fact, no amount of money could move that wet ash?

[00:33:57] Speaker 08:
No, that's not.

[00:33:58] Speaker 08:
I'm not.

[00:33:59] Speaker 05:
I understand what impacted, but impracticability captures.

[00:34:03] Speaker 08:
Some amount of money could do it in a practical way.

[00:34:05] Speaker 08:
For instance, if there's another space on site for another impoundment, then you can lay some pipes and you can use some reasonable funds and get that done.

[00:34:16] Speaker 08:
But under petitioner's interpretation,

[00:34:19] Speaker 08:
That's going to cost more money.

[00:34:20] Speaker 08:
And therefore, they get to say, that's off the table.

[00:34:24] Speaker 08:
Every alternative will be off the table.

[00:34:25] Speaker 08:
It will be an automatic five-year exception.

[00:34:27] Speaker 08:
And the problem is, under the PRE-WIN Act structure, there is no way for EPA to have oversight on that.

[00:34:34] Speaker 08:
There is no way for EPA to enforce that.

[00:34:36] Speaker 08:
The regulation sets out, this is a process.

[00:34:39] Speaker 08:
They not only have to make a determination initially that there's no alternative site, but they have to keep doing it.

[00:34:44] Speaker 08:
And they have to keep working towards finding an alternative.

[00:34:47] Speaker 03:
And the risk that EPA is avoiding and even allowing this accommodation at all is the risk that the power goes offline?

[00:34:55] Speaker 08:
Yes, that is the risk that EPA cited.

[00:34:58] Speaker 08:
That is a significant risk.

[00:35:00] Speaker 08:
And that's harm to the health and the environment.

[00:35:03] Speaker 03:
And there's no inquiry about whether another power source is available.

[00:35:09] Speaker 03:
It surprised me if that's the risk that this five-year

[00:35:14] Speaker 03:
abatement of the rule is contemplating.

[00:35:21] Speaker 03:
Why is there no inquiry about whether other power sources would be available that would not be continuing to use this dangerous?

[00:35:30] Speaker 08:
There may be an inquiry as to that.

[00:35:32] Speaker 08:
I think that's part of showing, that's part of the facility showing the impracticality of it.

[00:35:38] Speaker 03:
But it seems like it's facility-based rather than system-based.

[00:35:42] Speaker 03:
I mean, as we know, the power grid is integrated, and power can come from all kinds of different places that the facility might not be eager to see.

[00:35:50] Speaker 03:
Yes, that is true.

[00:35:51] Speaker 08:
But the jurisdiction is over the facility, and more specifically, over the unit.

[00:35:55] Speaker 08:
The jurisdiction of the statute is not more expansive, and I think that's set out in the preamble where EPA could not, for instance, set broader rules to control states because the record doesn't provide that statutory ability to do that.

[00:36:13] Speaker 08:
This is, as I say, a narrow exception, and as it should be, because the contamination is continuing.

[00:36:22] Speaker 08:
And to do otherwise, to allow this, and again, this may change, this is one of the many examples that could change under the WIN Act, where analysis and oversight and enforcement can be implemented for individual sites.

[00:36:35] Speaker 08:
But as we stand here today, or at least under the pre-WIN Act, that's not the case.

[00:36:42] Speaker 08:
And to do otherwise,

[00:36:43] Speaker 08:
To do otherwise would essentially violate EPA's fundamental obligation here, which is to ensure that there's no reasonable probability of adverse health effects or environmental effects, because we know that these sites are contaminating.

[00:37:02] Speaker 05:
On the WIN Act point, I just had a couple factual questions.

[00:37:06] Speaker 05:
There was a reference that two states have applied these permits.

[00:37:09] Speaker 05:
Is that still the status?

[00:37:11] Speaker 05:
Have more states applied?

[00:37:12] Speaker 08:
That is my understanding.

[00:37:14] Speaker 08:
Two states.

[00:37:16] Speaker 05:
And do you slash EPA have a sense of how long it would take to process?

[00:37:24] Speaker 05:
for those states to actually get authorized under this whole system?

[00:37:27] Speaker 08:
It sort of depends on the application.

[00:37:29] Speaker 08:
The EPA has put out its guidance as to what's expected.

[00:37:33] Speaker 08:
It depends on the application.

[00:37:34] Speaker 08:
Some states have communicated that they may just adopt whole hog all of the EPA regulations and just put them into a permit system.

[00:37:42] Speaker 08:
not take advantage of some of the site-specific requirements.

[00:37:46] Speaker 08:
Perhaps they should, or at least have certain areas where they take advantage of more site-specific requirements, but states can do it pretty quickly.

[00:37:55] Speaker 08:
But there's an important point.

[00:37:56] Speaker 05:
But as of now, you've only got two, and it's not even clear whether any of them are going to be interested in site-specific analysis in the foreseeable future.

[00:38:04] Speaker 07:
Okay.

[00:38:05] Speaker 05:
And the EPA

[00:38:09] Speaker 05:
Has money been appropriated for EPA to implement a permit program for 2018?

[00:38:15] Speaker 08:
No, it hasn't.

[00:38:16] Speaker 08:
And the statute, let me say something about the statute.

[00:38:18] Speaker 08:
You are right.

[00:38:19] Speaker 08:
I think you're applying that if the states don't do it, have an accepted plan, EPA is required to do it, but only if they have the appropriation to do it.

[00:38:26] Speaker 08:
But there's another provision in there.

[00:38:28] Speaker 08:
There's two ways to enforce this.

[00:38:30] Speaker 08:
EPA today has enforcement authority without states getting their permits approved.

[00:38:36] Speaker 08:
That's in the WIN Act.

[00:38:38] Speaker 08:
Those are right now non-participating states, which is only defined... Without an appropriation?

[00:38:44] Speaker 05:
A dedicated appropriation?

[00:38:44] Speaker 08:
Without an appropriation.

[00:38:45] Speaker 08:
EPA can walk in itself and enforce any provision.

[00:38:49] Speaker 08:
So, for instance, if these site-specific types of requirements, which we talk about in our brief and we'll talk about today, were available, were in the regulation, EPA itself could enforce it.

[00:39:02] Speaker 08:
If you'd like, I can cite the provisions for that.

[00:39:11] Speaker 05:
So it's only appropriation to have a permitting scheme?

[00:39:14] Speaker 08:
Yes.

[00:39:15] Speaker 08:
Yes.

[00:39:17] Speaker 08:
It's 645 D1 and D2 is the implementation.

[00:39:23] Speaker 08:
And then 645 D4B and D4A, they talk about for non-participating states and for participating states.

[00:39:32] Speaker 08:
And for non-participating states, the reference goes to A, the inspection provisions,

[00:39:40] Speaker 08:
that typically apply under Subtitle C and the enforcement provisions that typically apply under Subtitle C. But in the WIN Act, Congress said this now applies to COLEC.

[00:39:59] Speaker 08:
And for instance, under, it refers to, I think, 308 and 309, I think it is, but it's 42 USC, 6927, which is inspections, incorporates that provision, and 6928, which incorporates enforcement.

[00:40:13] Speaker 08:
And it says, whenever the administrator determines that any person is violated or in violation of any requirement as subject, EPA can step in and enforce.

[00:40:24] Speaker 03:
Ms.

[00:40:24] Speaker 03:
Rosen, do you have any sense of, I mean, I know this is a new act, but do you have any sense of how long it will take before we kind of know what the lay of the land is after when, in other words, when it will be clear what the states have decided to do and how many are going to be?

[00:40:41] Speaker 03:
going under the federal regime?

[00:40:45] Speaker 08:
I think, for the most part, states are waiting for some clarification from this case.

[00:40:50] Speaker 08:
But that is in the process.

[00:40:53] Speaker 08:
There have been discussions with states about applying.

[00:40:55] Speaker 08:
And as I said, it's through those discussions where some states have implied they may, for the most part, to get it done quickly, pretty much adopt EPA regulations in their permit system.

[00:41:07] Speaker 08:
But I don't have a more definitive answer.

[00:41:08] Speaker 03:
No, but that's why I'm asking, because I assume that you're in discussions with the states.

[00:41:12] Speaker 03:
And then you also, I mean, this is a triennial review process for these guidelines.

[00:41:18] Speaker 03:
And the last review is this rule 2015, right?

[00:41:23] Speaker 03:
So there will be another review presumably 2018?

[00:41:27] Speaker 08:
That's what's required under the statute.

[00:41:29] Speaker 08:
It's taken us longer.

[00:41:31] Speaker 08:
We certainly admit that, but that's what's required.

[00:41:34] Speaker 03:
For example, if the terrain settles as a result of wind and there is this robust, more site-specific

[00:41:43] Speaker 03:
enforcement mechanism then EPA would not be locked in.

[00:41:47] Speaker 08:
That's right and we set out in our status report the schedule for promulgating new regulations or the reconsideration process and part of that process and part of the two-phase process that we laid out was inferred a lot of conversations with the states

[00:42:07] Speaker 08:
to figure out what the states were doing and figure out then how the provisions could be changed to make site-specific determinations where appropriate.

[00:42:16] Speaker 08:
Great.

[00:42:18] Speaker 08:
Thank you.

[00:42:19] Speaker 05:
Can I ask you about the regulatory framework that you outlined?

[00:42:26] Speaker 05:
You just said to do a new regulation, but in fact, there's no commitment by EPA.

[00:42:29] Speaker 05:
My understanding of your brief, at least, was that you haven't made any substantive determination one way or the other.

[00:42:33] Speaker 05:
You just wanted to have a second look at the identified issues.

[00:42:37] Speaker 05:
Is that correct?

[00:42:38] Speaker 08:
On the remand, that's correct.

[00:42:39] Speaker 08:
I don't think that an agency is permitted to make substantive determinations before they go through a new rulemaking process.

[00:42:46] Speaker 08:
I'm sure they've certainly had ideas, and we can discuss some of those ideas.

[00:42:51] Speaker 08:
Again, what the Winn Act really brings is site-specific enforcement.

[00:42:55] Speaker 08:
And there are issues in this case which cry out for site-specific enforcement.

[00:43:00] Speaker 08:
One is in the next section I can get to you, but it's the CCR piles.

[00:43:05] Speaker 08:
Another is one that we're not arguing today, but is being decided by the court.

[00:43:11] Speaker 08:
It's the engineer determination of what the standard should be in the absence of an MCL level, which EPA had proposed in its rule, but then after receiving comment and determining that it had no oversight ability on these very technical determinations, it said,

[00:43:29] Speaker 08:
you know, essentially, our hands are tied.

[00:43:30] Speaker 08:
It might make sense not to just apply background levels where determinations could actually be made with the right information at the site, but our hands are tied.

[00:43:42] Speaker 08:
Now, that is something that could really change under the WIN Act, because you could put in oversight, you could put in enforcement, you could put in a power.

[00:43:48] Speaker 05:
Yeah, I guess I'm just trying to figure out what the point of a remand is.

[00:43:50] Speaker 05:
You have the ability with a statutory obligation to revisit these regulations.

[00:43:56] Speaker 05:
since now, or within a few months, as it is, and you've agreed that this regulation's gonna remain in effect while you're doing it, and agencies always have the ability to reconsider and revisit, and we would be perpetually remanded if every time an agency, set up to the EPA with a statutory duty to revisit, said, hey, we're looking at this again, send it back.

[00:44:18] Speaker 05:
And if that's all you seem to say here, we're looking at it again, send it back, but you have to look at it again under the statute,

[00:44:25] Speaker 05:
Nothing will ever get decided, because you'll always, under that statutory obligation, be looking at it again before it can get decided the first time.

[00:44:33] Speaker 08:
And this gets a little into the remand issue, but let me try and answer that as directly as I can.

[00:44:38] Speaker 08:
I think I answer that question with a question.

[00:44:41] Speaker 08:
Why decide the issue?

[00:44:43] Speaker 08:
If we just put aside the one environmental issue that we asked to remand, which is the legacy pond, the rest are industry issues.

[00:44:50] Speaker 08:
Industry is the challenger to those provisions.

[00:44:54] Speaker 08:
Industry has now agreed not to object to remand.

[00:44:57] Speaker 08:
If you issue an order remanding those provisions, they stay in place.

[00:45:01] Speaker 08:
They are not vacated.

[00:45:03] Speaker 08:
They apply in less than until, whether through remand or a three-year process, they're changed.

[00:45:09] Speaker 08:
There's really no case for controversy.

[00:45:11] Speaker 05:
Well, they could just dismiss their petition.

[00:45:13] Speaker 05:
I assume they haven't dismissed their petition for

[00:45:15] Speaker 05:
a reason, right?

[00:45:16] Speaker 05:
They don't need us to do that.

[00:45:17] Speaker 05:
If they think there's no point to challenging this anymore, they can just dismiss the petition as to those issues.

[00:45:22] Speaker 08:
Well, I think they haven't in case you don't order remand.

[00:45:27] Speaker 05:
We don't need to order remand if they dismiss their petition.

[00:45:29] Speaker 05:
Those issues aren't before us.

[00:45:30] Speaker 05:
We won't decide them.

[00:45:32] Speaker 08:
That's true, and they have the option to do that.

[00:45:34] Speaker 08:
But having not objected, those provisions can be enforced tomorrow by even environmental petitioners or now under the WIN Act by ourselves.

[00:45:44] Speaker 05:
But they can't even under a remand.

[00:45:45] Speaker 08:
But they what?

[00:45:46] Speaker 05:
They can't even under a remand.

[00:45:47] Speaker 05:
That doesn't change anything either because the rule remains in effect and citizens can be brought.

[00:45:51] Speaker 08:
Yes, that's true.

[00:45:52] Speaker 08:
So the question is then why decide those issues?

[00:45:55] Speaker 08:
Wouldn't that just be an advisory?

[00:45:56] Speaker 05:
Why about the fact that the WIN Act says that state permit programs that you're going to be looking at have to be at least as protective as this current regulation to be approved?

[00:46:07] Speaker 05:
So don't we need to know the status of this regulation?

[00:46:10] Speaker 05:
The Wynn Act makes it a very live issue.

[00:46:13] Speaker 08:
I think you're right.

[00:46:14] Speaker 08:
I agree with that.

[00:46:15] Speaker 08:
But I think we do know what those provisions say and apply.

[00:46:19] Speaker 08:
It would be no different than if we had... This is a massive regulation.

[00:46:23] Speaker 05:
I'm not sure I understand that answer.

[00:46:25] Speaker 05:
They've got legal challenges to it.

[00:46:27] Speaker 05:
But the win-out makes it very relevant what the status of that regulation is because it is not the protective criteria.

[00:46:34] Speaker 08:
Okay, but they are giving up those challenges.

[00:46:37] Speaker 08:
They are relinquishing those challenges and they cannot bring them again.

[00:46:41] Speaker 08:
It is a 90-day requirement for challenging those provisions.

[00:46:44] Speaker 08:
The only thing that they'll be able to challenge in the future is a different provision that EPA promulgates.

[00:46:52] Speaker 08:
So these are really

[00:46:53] Speaker 08:
dead issues, they will apply.

[00:46:55] Speaker 08:
EPA can always change any regulation it wants, but this court typically doesn't go ahead and decide issues where there's no case or controversy before it.

[00:47:04] Speaker 08:
It would be an advisory opinion, for the most part, and one that's not very targeted to begin with, because it would be an advisory opinion on the pre-win regulation, when the whole purpose of the remand and the reconsideration is to take a whole different statutory

[00:47:23] Speaker 08:
approach a whole different look at it from a whole different structure and so issuing an opinion on You know a specific provision just as the as the as the one we just talked about and What's the what's the breast your position is they don't have standing industry petitioners at least on the things that they have agreed to have remanded and

[00:47:42] Speaker 08:
I'm not sure if standing is the technical.

[00:47:45] Speaker 05:
Case or controversy?

[00:47:46] Speaker 05:
Which one?

[00:47:47] Speaker 08:
You said there's no controversy.

[00:47:48] Speaker 08:
I think by agreeing to remand without vacatur, there's no locational controversy left before the court on industry petitioner issues.

[00:47:57] Speaker 03:
I'm puzzled by that.

[00:47:58] Speaker 03:
I mean, I take it very seriously, the notion that we won't be deciding something where there's no case or controversy.

[00:48:06] Speaker 03:
But we do have challenges before us.

[00:48:11] Speaker 08:
Yes, you do.

[00:48:13] Speaker 08:
You technically do.

[00:48:16] Speaker 08:
But again, if they're not objecting to remand without vacatur and you remand, there's nothing left before the court on that issue.

[00:48:25] Speaker 08:
There's nothing left on inactive impoundments.

[00:48:28] Speaker 08:
There's nothing left on CCR piles.

[00:48:31] Speaker 08:
There's nothing left on any of those issues.

[00:48:33] Speaker 03:
But it's in their hands to drop their challenges.

[00:48:38] Speaker 08:
I'm sorry?

[00:48:39] Speaker 03:
It's in their hands to drop their challenges, but they, for some good reasons, are pressing them.

[00:48:46] Speaker 03:
Because who knows?

[00:48:47] Speaker 03:
As you said, the agency can't pre-commit.

[00:48:50] Speaker 03:
It's not clear, given a new record, what latitude the agency would have to come up with a better solution.

[00:48:57] Speaker 03:
We take seriously that the agency came up with the best solution it could.

[00:49:02] Speaker 03:
you know, for that you're being challenged on both sides.

[00:49:05] Speaker 03:
But I don't see this as a case in which we don't have a

[00:49:12] Speaker 03:
a constitutionally right case of controversy before us.

[00:49:17] Speaker 08:
Maybe I stated it too strongly.

[00:49:19] Speaker 08:
I hope so.

[00:49:21] Speaker 08:
You do have the ability to decide these issues.

[00:49:24] Speaker 08:
I'm not saying you're either constitutionally or statutorily precluded from doing that.

[00:49:29] Speaker 03:
I think I understand your position, that you would prefer, and the industry would prefer, that we not pass on these issues and that they would roll the dice and hope for something better.

[00:49:41] Speaker 08:
Yeah, that's right.

[00:49:43] Speaker 05:
But it's the legacy ponds that whole argument falls apart because that's not a voluntary remand.

[00:49:48] Speaker 08:
The legacy ponds is a different issue because environmental petitioners are objecting to that.

[00:49:55] Speaker 08:
Now, they're objecting to remand of all the issues, but that's the only one that has potential prejudice to them.

[00:50:04] Speaker 03:
Because it's where they have made a challenge.

[00:50:06] Speaker 08:
It's because where they have made a challenge.

[00:50:08] Speaker 08:
But we would argue that there is no prejudice there, because legacy ponds, and again, that's a later issue, but let me get into it just briefly here.

[00:50:19] Speaker 08:
Legacy ponds, first of all, it is intertwined with the inactive issue, with the inactive impoundments.

[00:50:24] Speaker 08:
It's just sort of the, it's the next step.

[00:50:26] Speaker 08:
It's the extension.

[00:50:27] Speaker 03:
Can we, we have, I think, more time to argue

[00:50:31] Speaker 03:
I did want to ask you about the first argument that opposing counsel raised about the EPA's authority to regulate and whether you had anything at all beyond what's in your brief to say about that.

[00:50:47] Speaker 08:
I think we stand on our briefs.

[00:50:50] Speaker 08:
There are two bases, as the Court pointed out.

[00:50:53] Speaker 08:
There's storage provision, the disposal provision.

[00:50:55] Speaker 08:
We say in re-consolidated makes it clear on the disposal provision, the storage provision.

[00:51:03] Speaker 08:
Our argument is not that they are, we did make an argument that they don't raise it.

[00:51:07] Speaker 08:
But beyond that, the argument is that's also a clear alternative statutory basis.

[00:51:12] Speaker 08:
EPA stated that in the preamble.

[00:51:15] Speaker 08:
So beyond that, I'm happy to try and answer questions that you have about either of those provisions.

[00:51:22] Speaker 03:
And isn't, I mean, the idea that CIRCLA is the answer here because, you know, CIRCLA was enacted by the Congress that recognized that there was a gap where there were old and abandoned dumps, I mean, there's a gap either way.

[00:51:38] Speaker 03:
However, under your reading or under the petitioner's reading here, that CERCLA is dealing with problems where there's no solvent priority or there would be a lot of litigation before somebody would take action and try to facilitate the prompt action.

[00:51:54] Speaker 03:
It's focused on hazardous waste.

[00:51:56] Speaker 03:
And here, EPA hasn't characterized this as hazardous waste.

[00:52:00] Speaker 03:
So either way, there would be

[00:52:03] Speaker 03:
a gap.

[00:52:04] Speaker 03:
I don't see that, and I think you're the environmental experts, but I don't see that as a particularly compelling indication that this provision should be read more broadly or narrowly.

[00:52:14] Speaker 08:
Well, I think as this court pointed out, it's prospective in nature.

[00:52:19] Speaker 08:
The way it is disposed of is interpreted.

[00:52:22] Speaker 08:
But that's just the beginning.

[00:52:23] Speaker 08:
First of all, their argument is and has to be that that phrase is unambiguous congressional intent.

[00:52:31] Speaker 08:
that EPA should not regulate this coal ash once it's in there.

[00:52:37] Speaker 08:
Storage of the coal ash occurs only after it's already been disposed of.

[00:52:42] Speaker 08:
And 6907 and the

[00:52:46] Speaker 08:
the plans that are required, sets forth the criteria, requires EPA to set forth criteria and sets out that it should, must regulate storage.

[00:52:59] Speaker 08:
Beyond that, disposal is the other provision that EPA

[00:53:04] Speaker 08:
relies upon.

[00:53:06] Speaker 08:
And that very clearly includes leaking.

[00:53:09] Speaker 08:
And this court very clearly said leaking is part of disposal and is subject to regulation by EPA.

[00:53:21] Speaker 05:
Well, if they're making a plain text Chevron step one argument, if they're right, we don't have to decide that because if they're right,

[00:53:31] Speaker 05:
There's nothing to remand.

[00:53:32] Speaker 05:
You don't have any discussion over the issue.

[00:53:34] Speaker 05:
And nothing in the Winn Act changes that.

[00:53:39] Speaker 08:
Sure, if someone's right under the Chevron 1 standard, then it's clear and unambiguous.

[00:53:44] Speaker 08:
But it's not.

[00:53:45] Speaker 05:
I get that.

[00:53:46] Speaker 05:
You're fine.

[00:53:46] Speaker 05:
I'm just asking whether remand is warranted if there's a plain tax answer to the question.

[00:53:54] Speaker 05:
I'm not saying that you have to say there is, or that we have to decide that.

[00:54:02] Speaker 08:
I'm not sure how EPA would interpret the regulation, again, on remand.

[00:54:09] Speaker 04:
Doesn't matter.

[00:54:10] Speaker 08:
You're probably right.

[00:54:11] Speaker 08:
If it's clear and unambiguous that EPA has no right to regulate coal ash under either the storage provision or the disposal provision.

[00:54:21] Speaker 05:
Or clear and ambiguous either way.

[00:54:24] Speaker 08:
Well, that's probably true too.

[00:54:29] Speaker 08:
Unless there are any other questions on these issues, I'm going to let the Council come up.

[00:54:35] Speaker 01:
Let's see.

[00:54:36] Speaker 01:
Mr. Green, I know you don't have your time.

[00:54:40] Speaker 01:
Why don't you take three minutes?

[00:54:45] Speaker 09:
Thank you very much.

[00:54:46] Speaker 09:
Appreciate it.

[00:54:47] Speaker 09:
Judge Millard, I want to get back to you on the WIN Act and whether it could be deemed as codifying the fact that inactive units are regulated.

[00:54:55] Speaker 09:
I would point you to the section right underneath what you pointed to, Section 7, effective subsection.

[00:55:02] Speaker 09:
It says nothing in the subsection affects any authority, regulatory determination or other law or legal

[00:55:11] Speaker 09:
obligation in effect on the day before December 16th, 2016.

[00:55:15] Speaker 09:
And I think that was in place not to codify the regulation of inactive units.

[00:55:20] Speaker 09:
It leaves open.

[00:55:22] Speaker 09:
It's just if inactive units can't be regulated under RECRA, the WIN Act doesn't change that.

[00:55:26] Speaker 09:
It's still a threshold legal issue.

[00:55:28] Speaker 09:
So I don't think the Winn Act was codifying or changing the law with respect to whether EPA now magically has the authority over inactive units.

[00:55:38] Speaker 09:
The Winn Act did not change substantive law.

[00:55:41] Speaker 09:
And whatever it is, whatever this Court, what we're litigating today,

[00:55:44] Speaker 09:
We take the position EPA does not have the authority to regulate inactive units.

[00:55:49] Speaker 09:
The Winn Act doesn't codify that.

[00:55:50] Speaker 09:
It simply doesn't speak to it.

[00:55:52] Speaker 09:
And very quickly, Judge Pillard, to your question about CERCLA, CERCLA covers hazardous substances.

[00:55:58] Speaker 09:
That includes hazardous far greater than hazardous wastes.

[00:56:02] Speaker 09:
And finally, I'd like to point out, again,

[00:56:05] Speaker 09:
that includes that includes the mercury and the arsenic solid waste solid waste other waste that are involved in the coal ash in this case absolutely and in fact coal ash sites have been listed on the npl the other point i want to make out and and i have to emphasize this is that the technical criteria

[00:56:21] Speaker 09:
The problem that EPA relies on in this rule in developing these disposal regulations are 6944 and 6945.

[00:56:29] Speaker 09:
That's what they, that's the rule.

[00:56:32] Speaker 09:
And that rule doesn't, those provisions don't talk to store, excuse me, storage.

[00:56:36] Speaker 09:
They talk to establish criteria that define when disposal constitutes an open dump.

[00:56:43] Speaker 09:
The provision they're referring to is the provision that state, that they are able to establish state plans

[00:56:50] Speaker 09:
But that's not what they're enforcing.

[00:56:52] Speaker 09:
And the final thing I would point to is if you look at where Congress did provide EPA the authority, the regulatory authority in RCRA to address inactive units, they only did it in one place.

[00:57:02] Speaker 09:
And that is in that subtitle C permitting provision we referenced in our brief that as a condition of getting a hazardous waste permit,

[00:57:09] Speaker 09:
Facility owners and operators have to clean up inactive units.

[00:57:13] Speaker 09:
Congress used the term release there, not disposal, because disposal is not occurring in inactive units.

[00:57:18] Speaker 09:
And so Congress uses terms on purpose.

[00:57:22] Speaker 09:
But more important, I think it's worth looking at this court's decision in United Technologies versus EPA, where that provision was challenged.

[00:57:31] Speaker 09:
And the purpose behind that provision was to relieve the burden on REGPRA.

[00:57:38] Speaker 09:
leave the burden on CERCLA.

[00:57:41] Speaker 09:
Congress recognized that record doesn't address inactive units except through the imminent and substantial endangering provision.

[00:57:47] Speaker 09:
And in this one instance, with facilities getting hazardous waste permits, Congress said, we're going to make you go get those, regulate or clean up those inactive units, and we're going to do it because we've got to reduce the burden on CERCLA, which I think just affirms the fact

[00:58:02] Speaker 09:
That record is, it didn't give EPA, it does not give EPA the ability to regulate an active unit, except in that limited circumstance.

[00:58:10] Speaker 04:
To be clear, do you want us to decide these issues or not?

[00:58:13] Speaker 09:
Well, we've asked for an abeyance because we think that, we want to see what EPA does.

[00:58:19] Speaker 09:
We think we have good arguments, but EPA has now indicated that it's going to reconsider this in a way that we are hopeful will negate it.

[00:58:29] Speaker 09:
You don't want to remand.

[00:58:31] Speaker 09:
And in a remand, if EPA comes out with a rule... Do you want a remand?

[00:58:35] Speaker 09:
We haven't opposed the remand.

[00:58:37] Speaker 04:
Do you agree to remand?

[00:58:38] Speaker 09:
Well, we want to keep our petition present.

[00:58:43] Speaker 09:
But if EPA gets a remand, and we will say this, if they issue a new rule where they continue to regulate inactive impoundments, we'll be right back here.

[00:58:54] Speaker 05:
I'm trying to figure out on this, if you think remand would be okay, then why you don't just dismiss your petition on these issues?

[00:59:04] Speaker 09:
Because as Judge Pillard said, we want to keep this issue before the agency.

[00:59:11] Speaker 09:
And on a remand, then the petition is dismissed as a practical matter.

[00:59:16] Speaker 09:
But we don't know.

[00:59:17] Speaker 09:
The court may remand it as it has it.

[00:59:21] Speaker 05:
I didn't understand that.

[00:59:22] Speaker 05:
I'm trying to figure out if we have a case of controversy here, because you could just dismiss your petition, and I assume you haven't, because of the citizen suit threat.

[00:59:29] Speaker 05:
So you need these decided or not.

[00:59:31] Speaker 05:
I'm very confused about your status because their regulatory timeline blows past every remaining compliance date under this regulation.

[00:59:39] Speaker 09:
Well, we are hopeful they're going to be, what they've said in their schedule is that no later than, I think, April or June.

[00:59:48] Speaker 05:
They're going to 2019, and your latest compliance dates, as I understand it, are 2018.

[00:59:52] Speaker 05:
So you're way past it.

[00:59:53] Speaker 09:
Well, they said no later than.

[00:59:55] Speaker 09:
We are hopeful that EPA is going to be much quicker than that.

[00:59:59] Speaker 09:
And again, if they... On what basis are you hopeful?

[01:00:04] Speaker 09:
Well, I think we will continue to work with EPA to urge them to get out some of these rules we think have to be corrected on a quicker timeline than others.

[01:00:14] Speaker 09:
Inactive units aren't subject to groundwater monitoring until June or April of 2019.

[01:00:21] Speaker 09:
So there's time there.

[01:00:22] Speaker 09:
The correction with respect to risk-based groundwater monitoring standards... Sorry, the inactive units do not have to comply until 2019?

[01:00:29] Speaker 09:
They have the most significant deadline for inactive units because the earlier courts remand on inactive units.

[01:00:37] Speaker 09:
EPA extended the compliance deadlines for inactive units.

[01:00:42] Speaker 09:
and by 18 months.

[01:00:44] Speaker 09:
So some of those are still in the future.

[01:00:47] Speaker 09:
Some have passed, but the most significant the groundwater monitoring and corrective action rules are take effect in 2019 in june 2019 center april or something.

[01:00:57] Speaker 09:
I'd have to double check, but around the same time period when they would get this rule corrected.

[01:01:04] Speaker 05:
You think we have a case of controversy right now?

[01:01:06] Speaker 09:
You do?

[01:01:06] Speaker 09:
Absolutely.

[01:01:09] Speaker 09:
Thank you.

[01:01:09] Speaker 09:
Thank you.

[01:01:11] Speaker 01:
Mr Zivicki.

[01:01:27] Speaker 06:
May it please the Court, my name is Paul Zedlicki, and I too am appearing on behalf of the industry petitioners.

[01:01:32] Speaker 06:
I'd like to reserve two minutes for rebuttal.

[01:01:35] Speaker 06:
I'd like to address two issues.

[01:01:37] Speaker 06:
First, the adequacy of EPA's notice with regard to the defined term CCR piles.

[01:01:42] Speaker 06:
And second, whether EPA's regulation of CCR piles was arbitrary and capricious.

[01:01:47] Speaker 06:
And those are issues 3A and 4B in the briefing.

[01:01:51] Speaker 06:
With regard to notice, our position is EPA failed to provide adequate notice that intended to regulate CCRs located at generation facilities that are destined for beneficial use as if they were destined for permanent disposal.

[01:02:06] Speaker 06:
EPA's Subtitle D proposal and its proposed rulemaking

[01:02:10] Speaker 06:
drew a distinction between CCRs that, quote, were, quote, destined for disposal and CCRs that are beneficially used.

[01:02:17] Speaker 06:
Further, EPA defined CCR landfill, which includes the term pile, as an area of land, and, quote, in which CCRs are placed for permanent disposal, and that's at JA 170.

[01:02:29] Speaker 06:
The final rule eliminates that distinction by regulating CCRs that are destined for beneficial use as if they were CCRs that were destined for permanent disposal.

[01:02:39] Speaker 06:
As a result, the impact of that was that commenters, the interested parties, did not have meaningful notice that EPA would regulate temporary storage of CCRs destined for beneficial use or that CCRs stored off-site would be treated differently than CCRs stored on-site.

[01:03:00] Speaker 06:
Rather, they were told that the relevant issue was where the regulation of CCRs placed on land for permanent disposal.

[01:03:08] Speaker 06:
And so we think, because of that violation, that the appropriate remedy is for this to be sent back to the agency and for it to have EPA consider further rulemaking.

[01:03:20] Speaker 05:
As the Court has noted... Who did say they were including CCR piles in their request for comment?

[01:03:28] Speaker 06:
I'm sorry?

[01:03:28] Speaker 05:
They did say they're including CCR piles as disposal facilities in their request for comments.

[01:03:33] Speaker 05:
And they got comments back on this very issue.

[01:03:36] Speaker 05:
Why doesn't that show that there was in fact notice?

[01:03:38] Speaker 06:
Well, I think, Your Honor, in their preamble to the proposed rule, they identified what a CCR landfill was.

[01:03:45] Speaker 06:
There wasn't a definition of a CCR pile, which is what they adopted in the final rule.

[01:03:49] Speaker 06:
But in their definition of a CCR landfill in the proposed rule, they said that a CCR landfill is, one, is an area of land where CCRs are positive for permanent disposal.

[01:04:00] Speaker 05:
A CCR pile, which isn't a statutory term, is that just kind of a term of art in the industry?

[01:04:05] Speaker 06:
Well, no, CCR pile is now a regulatory term as a result of the final rule.

[01:04:11] Speaker 05:
It wasn't a regulatory... Before that, did people, when they used that phrase in the notice, was it an industry term?

[01:04:19] Speaker 06:
They did use the word... Term of art, I guess, is what I mean.

[01:04:21] Speaker 06:
You're right.

[01:04:21] Speaker 06:
They did use the word pile, but the rule that they came out with regarding what a CCR pile is under the regulation is not the term that it was understood in the industry.

[01:04:30] Speaker 05:
Now, what was it understood to be at the time of the notice?

[01:04:33] Speaker 06:
I think it was properly reviewed as CCRs being stored for future disposal.

[01:04:40] Speaker 05:
Were they usually considered on the, should I say the co-operate, our energy operators ground, or was it considered a pile when it was on the beneficial users grounds?

[01:04:50] Speaker 06:
Well, I think in terms of this, the thought was that the CCR Pile was being considered as what it was on the generating facilities property.

[01:05:02] Speaker 05:
And the question is.

[01:05:03] Speaker 05:
So why then wasn't the CCR Pile referenced in the notice?

[01:05:05] Speaker 05:
I'm sorry?

[01:05:06] Speaker 05:
Notice.

[01:05:07] Speaker 05:
Why wasn't the use of that phrase CCR Pile's notice if people knew or understood what that phrase meant to at least include the deposits of this on the energy regulators?

[01:05:19] Speaker 06:
Well, I think the problem with the notice, Your Honor, is that it went further.

[01:05:22] Speaker 06:
The definition of CCR landfill, which is where the word pile was included in the proposal, is that in the preamble, it was described as the CCR landfill is land in which CCR is going to be deposited for permanent disposal.

[01:05:39] Speaker 06:
So the question was, is adoption of a rule in which the CCRs have been placed on the land, but they are destined for beneficial

[01:05:49] Speaker 06:
use, whether that was properly noticed.

[01:05:51] Speaker 06:
And that's the question that we have.

[01:05:54] Speaker 06:
The criticism we have of the notice was that it defines CCR landfill in terms of permanent disposal.

[01:06:07] Speaker 05:
It was also asking for comments on how to distinguish between beneficial operations and inappropriate operations.

[01:06:15] Speaker 05:
And they got comments because the final will responded to one precisely about how long stuff can stay without becoming a CCR landfill.

[01:06:24] Speaker 05:
So I'm just trying to figure out why that wasn't enough.

[01:06:26] Speaker 05:
And the fact that they were getting comments sort of shows that others were understanding what was going on here.

[01:06:31] Speaker 06:
Well, I think there are three comments that identify EPA in its brief, and none of those comments are addressing the question of whether CCRs are destined for beneficial use.

[01:06:42] Speaker 06:
There's a reference to gypsum, which doesn't address it, and then two other references that aren't addressing CCRs for beneficial use.

[01:06:50] Speaker 05:
The intent doesn't matter, right?

[01:06:52] Speaker 05:
You've got a pile sitting there.

[01:06:53] Speaker 05:
They said, how long can it sit there before it becomes a landfill?

[01:06:56] Speaker 05:
Whether you're moving it off because you've got some other place to send it and get rid of it, or whether you're moving it off because it's going for beneficial use.

[01:07:02] Speaker 05:
But when they're asking how long it can sit there before it becomes a landfill, that seems to be precisely the question that you're saying there wasn't notice for.

[01:07:10] Speaker 06:
Well, I don't think that the... I don't think, one, I don't think the comments that EPA has identified in its brief reflect that that notice was provided.

[01:07:18] Speaker 06:
And two, even if one or more comments that aren't cited in the brief would suggest that people were concerned about the breadth of the definition of CCR landfill, the actual

[01:07:34] Speaker 06:
Lack of notice can't be can't be remedied by the comments.

[01:07:37] Speaker 06:
You can't bootstrap notice through the comments.

[01:07:40] Speaker 06:
I think that was sort of that's the response.

[01:07:45] Speaker 06:
Initially, what we were told is that what was being looked at was there was a line that was going to be drawn between CCRs that are destined for disposal and CCRs that are beneficial to use.

[01:08:02] Speaker 06:
And it turns out that that distinction was eliminated without proper notice to it.

[01:08:10] Speaker 06:
Your Honor, if I could go on to the second issue.

[01:08:15] Speaker 06:
And again, this becomes a little bit of an academic exercise if this is going to be considered again by EPA, and they're going to take notice and comment on these questions.

[01:08:25] Speaker 06:
With regard to the question of whether it's arbitrating capricious to do so, the core question is,

[01:08:33] Speaker 06:
whether EPA has justified the difference between treatment of CCR piles that are on site and CCR piles that have been moved off site to another facility like a cement manufacturer.

[01:08:48] Speaker 06:
And on that question, the EPA's ruling doesn't justify it.

[01:08:55] Speaker 06:
There are arguments that are included in EPA's brief, but those arguments aren't justified by the final rule.

[01:09:03] Speaker 03:
It wasn't the concern that a generator might well want the coal ash to be used for beneficial use, but it also might be overly optimistic about how quickly it's going to be able to sell into that market.

[01:09:26] Speaker 03:
You know, even if you grant that it was a crude distinction, there is a distinction between the beneficial user that has bothered to go and pick it up and the generator that is just accumulating it in back law.

[01:09:40] Speaker 03:
Well, Your Honor... In terms of the likelihood that it's actually going to be turned over and put into beneficial use.

[01:09:46] Speaker 06:
The EPA doesn't actually cite anything in its final rule to draw that distinction that you're making about

[01:09:54] Speaker 06:
it uses the word temporary pile when it's referring to CCRs that have been transferred to a cement plant.

[01:10:01] Speaker 06:
But the rule itself doesn't have any kind of limitation on timing.

[01:10:06] Speaker 06:
And we think it was appropriate for them to say that with regard to CCRs that are moved onto the beneficial user, that that's an appropriate regulation.

[01:10:18] Speaker 06:
But we don't think that they drew any kind of meaningful distinction

[01:10:22] Speaker 06:
between the very same CCRs that are destined for beneficial use at the cement plant and the CCRs that are likewise destined for beneficial use.

[01:10:31] Speaker 06:
They just haven't been transported yet.

[01:10:33] Speaker 03:
Well, I think that is exactly it.

[01:10:34] Speaker 03:
As I read their comments, that's exactly the distinction they were making.

[01:10:38] Speaker 03:
It's like the junk I have in my attic versus

[01:10:40] Speaker 03:
the junk that's for sale in an antique store.

[01:10:43] Speaker 03:
The junk that's for sale in an antique store is more likely actually to be sold as antiques.

[01:10:49] Speaker 03:
And I can thank the junk in my attic.

[01:10:51] Speaker 03:
It's like I'm not getting rid of it because really, really it's all precious and somebody's going to want it.

[01:10:57] Speaker 03:
Maybe nobody should really rely on my judgment about that.

[01:11:00] Speaker 03:
Maybe it's still going to be up there in decades.

[01:11:02] Speaker 03:
And I think that's what I took from their comment, that they're more confident that the piles are going to be temporary, where somebody's gone to the trouble of taking it on board, as opposed to somebody who's just generating it and it's piling up.

[01:11:18] Speaker 06:
I think I got that more from the EPA's brief than I got from the comments, and that's certainly something that EPA will be open to when it considers this question in light of the WIN Act, which gives EPA different kinds of, you know, investigatory and enforcement authority than it had previously.

[01:11:36] Speaker 03:
I think you're right that it was concerned about the sort of blunderbuss authority versus something more nuanced.

[01:11:42] Speaker 03:
And we may see a different regulatory landscape when those more nuanced tools are in place.

[01:11:47] Speaker 06:
Right.

[01:11:47] Speaker 06:
I mean, I do think that there was an expressed concern regarding what the enforcement

[01:11:56] Speaker 06:
provisions that they have, and I think that's different now.

[01:11:59] Speaker 06:
I think, you know, that's something that can be considered by EPA on remand in light of the WIN Act.

[01:12:04] Speaker 06:
But, you know, what's before the court now is whether the justification that you've identified, whether that one was made in the EPA's comments.

[01:12:13] Speaker 06:
We don't think it's there, we think it's more in the brief, but even so... I think it's right there in the comments.

[01:12:17] Speaker 06:
But even so, under the definition of CCR pile, there is no sort of timetable with regard to it.

[01:12:25] Speaker 06:
So we're looking at a situation where you could have at the generating facility a pile that we know is just about to go off the truck.

[01:12:35] Speaker 03:
No, I get that.

[01:12:36] Speaker 03:
I get that.

[01:12:38] Speaker 06:
Your Honors, are there any further questions?

[01:12:40] Speaker 06:
No.

[01:12:42] Speaker 01:
Thank you.

[01:12:44] Speaker 01:
Mr. Rosen?

[01:12:52] Speaker 08:
As I intimated before, this issue, the CCR piles, is an issue that cries out for application under the WIN Act for a site-specific resolution to this.

[01:13:04] Speaker 08:
Encapsulated beneficial uses make up about 40 percent.

[01:13:08] Speaker 05:
I'm going to cry out for that, but that's the thing that you're not – you have no foreseeable prospect of getting in the next year or so, right?

[01:13:16] Speaker 05:
because you're not going to have your program, states are not going to have programs.

[01:13:21] Speaker 07:
That's correct.

[01:13:22] Speaker 05:
It may cry out for it, but I guess I'm not sure what we're supposed to do with that because what's the point of remanding if you don't have states lined up to do this and you certainly don't have their

[01:13:33] Speaker 05:
mechanism for approving all their permits in place, and as you've told me, as far as you can tell, a fair number of states don't want to do site-specific stuff, they just want to adopt this, and you don't have the funding to do it yourself, so I don't understand the remand.

[01:13:44] Speaker 05:
If Congress had said, go forth and do it right now, unconditionally I would get it, but I don't get it now.

[01:13:50] Speaker 08:
Well, again, with this remand, that regulation stays in place.

[01:13:56] Speaker 08:
The industry has to comply with that.

[01:13:57] Speaker 05:
I'm responding to your cries out for a remand point, or cries out for a site-specific regulation, which I had implied, and maybe wrongly, that you meant by that, the remand.

[01:14:06] Speaker 08:
This is a good regulation.

[01:14:09] Speaker 08:
This is a comprehensive regulation for the first time of college.

[01:14:12] Speaker 08:
And it's a regulation that, for the most part, industry and environmental petitioners agree with.

[01:14:17] Speaker 08:
There are some things that need to be fixed.

[01:14:20] Speaker 08:
So what do you do?

[01:14:21] Speaker 08:
How do you fix that?

[01:14:22] Speaker 08:
You go back, you get the comments, you do the analysis, and you make, in this case,

[01:14:27] Speaker 08:
perhaps, a more site-specific resolution, the same kind that EPA lamented that it couldn't do because its hands were tied.

[01:14:35] Speaker 08:
But while that's done, this regulation stays in place.

[01:14:39] Speaker 05:
That's what I want to ask is, how could, say you go back on your time frame, how could you have even a notice of a rule in 2018 if there's no prospect of EPA having site-specific authority in 2018?

[01:14:55] Speaker 05:
And there's no prospect of states yet having site-specific authority or even wanting it in 2018.

[01:15:02] Speaker 05:
Am I misunderstanding?

[01:15:06] Speaker 05:
No.

[01:15:06] Speaker 05:
You're understanding of the state of the world right now?

[01:15:08] Speaker 08:
No.

[01:15:09] Speaker 08:
Again, you can decide this issue, even though EPA is likely to change it upon remit.

[01:15:17] Speaker 05:
You can change it even if there aren't states lined up to do site specific and you don't have the funding to do it.

[01:15:25] Speaker 07:
Absolutely.

[01:15:26] Speaker 05:
Even though you said we can't adopt site, your explanation here is we can't adopt site specific because we can't adopt different rules because we don't have site specific authority.

[01:15:34] Speaker 08:
If EPA, through the remand process, issues site-specific authority, it basically comes in and says, okay, we're going to put in some checks on you.

[01:15:44] Speaker 08:
We're going to make a time period, and we're going to make it enforceable.

[01:15:47] Speaker 08:
We're going to have some requirements about where you – maybe you'll put that ash on concrete or something like that to make it more protective until it's transported.

[01:15:55] Speaker 08:
There are all kinds of site-specific requirements that can be put in there.

[01:15:58] Speaker 08:
And EPA does not have to wait for state plans.

[01:16:01] Speaker 08:
It does not have to wait for putting in its own permit process.

[01:16:04] Speaker 08:
Once those provisions are put in place, EPA can enforce it under these two provisions I cited earlier.

[01:16:09] Speaker 05:
So here's what I'm not understanding on the WIN Act.

[01:16:11] Speaker 05:
So I appreciate the explanation.

[01:16:13] Speaker 05:
So your view of the enforcement authority that you get under the WIN Act

[01:16:17] Speaker 05:
is that it would include allowing you right now, even without any congressional appropriation, to adopt site-specific regulations, monitor, investigate those yourself, and then bring an enforcement action if you need to.

[01:16:32] Speaker 08:
What the WIN Act specifically does is give us the oversight and enforcement authority.

[01:16:37] Speaker 08:
What's absent now is the provisions that would help us enforce on a site-specific basis, because we have not put in

[01:16:45] Speaker 08:
Because this was issued promulgated before the WIN Act, we didn't put in time periods, we didn't put in checks.

[01:16:52] Speaker 08:
If we put them in, we don't have to wait for state permit process.

[01:16:59] Speaker 05:
What is the EPA permitting process that's contingent on congressional appropriation?

[01:17:03] Speaker 05:
What is that supposed to do that's distinct from what you have now described?

[01:17:07] Speaker 08:
Well, I think the best process is to have a full state permit process that allows even more site-specific types of

[01:17:18] Speaker 08:
approaches here that can recognize that sites are different and therefore permits may be different.

[01:17:25] Speaker 08:
And as long as it's compliant with the requirements of the existing regulation, that may be allowed.

[01:17:31] Speaker 08:
There may be different circumstances.

[01:17:33] Speaker 05:
I'm sorry, I get that that's what you think would be best, but you've told me there's no reasonable prospect of that happening in the next

[01:17:40] Speaker 05:
year or so.

[01:17:41] Speaker 05:
That's right.

[01:17:43] Speaker 05:
And are you saying, I'm trying to understand a very technical question here, and that is you have some new enforcement authority under the WIN Act.

[01:17:49] Speaker 07:
Yes.

[01:17:50] Speaker 05:
And you also have a provision that says if the states don't do it, you can set up the permit program yourself in states that don't set one up.

[01:17:57] Speaker 07:
That's correct.

[01:17:58] Speaker 05:
But as to that step, you can only do it if you get funds which you don't have.

[01:18:01] Speaker 07:
That's right.

[01:18:02] Speaker 05:
So when you talk about new regulation with site-specific

[01:18:07] Speaker 05:
terms monitoring and enforcing it.

[01:18:11] Speaker 05:
Is that assuming you can do this permit program or is that distinct from it?

[01:18:15] Speaker 08:
It's either or.

[01:18:18] Speaker 05:
Why does Congress have this permit program provision for EPA at all if you can do everything you would do in a permit program over under this new grant of enforcement authority?

[01:18:29] Speaker 08:
I think because like most environmental statutes

[01:18:32] Speaker 08:
We would be issuing a national requirement, and let's say it's a six-month requirement, and I don't know what the provisions would be for review and checking on that requirement, but that college has to be gone in, let's say, six months, has to be transported in six months with no remnants left over.

[01:18:48] Speaker 08:
Well, maybe there are different circumstances that can be applied in individual situations.

[01:18:53] Speaker 08:
Maybe each site is different.

[01:18:55] Speaker 08:
Each site has different space to do it.

[01:18:57] Speaker 08:
One site might have a concrete platform that I can place them on.

[01:19:01] Speaker 08:
So the permit may say, okay, in that case, you have longer than six months.

[01:19:06] Speaker 05:
But part of your rationale here was that, look, there's a pile there.

[01:19:09] Speaker 05:
And as best I can tell, coal ash is not distinct in its appearance.

[01:19:16] Speaker 05:
And so you said in your current explanation, unless we have somebody watching them 24 hours a day, which I don't think anyone proposes, we're not going to know if that coal ash that's sitting there on Monday is the same coal ash that was there

[01:19:32] Speaker 05:
the week before, or whether a new one has been put in its place, it's just infeasible to monitor how long something's sitting on the land.

[01:19:40] Speaker 05:
And that's not going to change no matter who's doing the monitoring, especially if states say we don't want to be doing that stuff.

[01:19:47] Speaker 05:
We don't want to spend our resources on that.

[01:19:49] Speaker 08:
I agree with that.

[01:19:50] Speaker 08:
That's the position in our brief, and all of that is completely accurate.

[01:19:53] Speaker 05:
Well, then that wouldn't change, even if you had permitting authorities for all 50 states.

[01:20:00] Speaker 05:
You can't tell when it's the same old coal ash sitting there for six months, or they'll say, no, no, no, that's a new pile.

[01:20:06] Speaker 05:
You can't tell.

[01:20:08] Speaker 05:
So what's the point of remand?

[01:20:08] Speaker 05:
You can't change that enforcement problem.

[01:20:12] Speaker 08:
Well, maybe I'm misunderstanding the question, but I think we can change that by issuing very site-specific requirements.

[01:20:20] Speaker 08:
Right now, we simply, for instance, it was getting a little bit to the notice issue.

[01:20:27] Speaker 08:
Suggestions were raised about putting it in a time period.

[01:20:29] Speaker 08:
And EPA said there's no way to enforce that time period.

[01:20:33] Speaker 08:
So we can't do it.

[01:20:34] Speaker 08:
So we have to make these more gross rules that says at the manufacturer, there's indicia that it's going to be beneficial use.

[01:20:43] Speaker 08:
And at the utility, we don't see that indicia.

[01:20:46] Speaker 08:
One pile looks no different than the other pile.

[01:20:48] Speaker 08:
And in fact, our factual determinations are some of those piles never disappear.

[01:20:53] Speaker 08:
But through a new rulemaking process, through a remand process, EPA can propose a rule that sets forth enforcement that, for instance, if it's through a permit, the state would go in, do inspections, and ensure that the time period, whatever time period is created, is fully enforced, and if it's not... That's my point, is how can you enforce a time period if you can't tell whether that's the same old one that's been there too long or it's a new one?

[01:21:18] Speaker 05:
The whole point that we can't tell which is which.

[01:21:21] Speaker 08:
I don't know.

[01:21:21] Speaker 08:
Those are technical questions.

[01:21:22] Speaker 05:
It's not technical.

[01:21:23] Speaker 05:
You've already made determinations.

[01:21:24] Speaker 05:
We can't tell which is which.

[01:21:25] Speaker 05:
That's why we can't do time things.

[01:21:27] Speaker 05:
And the laws of physics aren't going to change on remand.

[01:21:30] Speaker 08:
Well, but if the pile disappears, wouldn't that comply with the time requirement?

[01:21:36] Speaker 05:
Well then that would have been right now.

[01:21:37] Speaker 05:
You wouldn't need a regulation.

[01:21:38] Speaker 05:
You wouldn't have needed a remand for that.

[01:21:40] Speaker 05:
They don't leave, a new one goes and another one shows up and you can't tell unless you're watching 24-7.

[01:21:46] Speaker 08:
That's right, and that's the problem.

[01:21:49] Speaker 08:
EPA can't tell now.

[01:21:52] Speaker 05:
But I think it's gonna be the same problem even if you have state inspectors.

[01:21:57] Speaker 05:
Unless they're watching it 24-7 with security cameras, they're not going to know if actually it went down and a new one came, or if it's the same old one sitting there the whole time.

[01:22:05] Speaker 05:
Which is exactly the problem you pointed out before.

[01:22:07] Speaker 08:
I don't disagree that could be a significant problem.

[01:22:12] Speaker 05:
The same problem you identified before can continue.

[01:22:14] Speaker 08:
Yes, but there may be ways around that.

[01:22:17] Speaker 08:
I don't know.

[01:22:18] Speaker 08:
I don't know whether it's a weekly inspection, whether it's sworn attestations.

[01:22:25] Speaker 08:
I don't know what EPA is contemplating now, what the comments will say, and how it might work.

[01:22:31] Speaker 08:
But at least given the opportunity here to make more site-specific determinations, I mean ultimately

[01:22:39] Speaker 08:
One could agree that it doesn't make sense that the exact same pile, if it in fact is the exact same pile, is treated differently at the manufacturer as it is at the utility.

[01:22:52] Speaker 08:
The problem is you can't right now establish that it's the exact same pile.

[01:22:56] Speaker 08:
You can't establish that it's going to be transported.

[01:22:58] Speaker 08:
You can't establish that it has objective indicia that it's going to be put to a beneficial use.

[01:23:04] Speaker 08:
If that can be done on a case-by-case basis, and maybe EPA may determine it's impossible to do,

[01:23:09] Speaker 08:
that it just requires too many resources.

[01:23:12] Speaker 08:
It would require somebody on site permanently.

[01:23:15] Speaker 08:
It would require moving the pile from one to another.

[01:23:18] Speaker 08:
It might require, as I say, not a full liner system, but maybe a concrete platform to put this on, which then has to disappear in a certain number of times.

[01:23:28] Speaker 08:
I mean, that's what EPA has to determine on remit.

[01:23:31] Speaker 08:
But at least it can consider some of these site-specific

[01:23:35] Speaker 08:
potential amenities to address an issue from a logical standpoint, other than the lack of enforcement and other than the lack of oversight, you know, may not seem so so fair and logical.

[01:23:49] Speaker 08:
On the notice issue, I think Your Honor pointed out that EPA did provide notice that a pile is a CCR pile, that EPA got comments on it, EPA got comments on the timing, and maybe that's a solution.

[01:24:05] Speaker 08:
And EPA said, again, the very basis that it issued the rule the way it did, we just don't have the oversight to do it.

[01:24:13] Speaker 08:
So I think there was more than adequate notice on that.

[01:24:17] Speaker 01:
All right, thank you.

[01:24:19] Speaker 01:
Does Mr. Zietlicki have any time?

[01:24:23] Speaker 01:
All right, why don't you take two minutes.

[01:24:32] Speaker 06:
Just very briefly, Your Honor, on Judge Milano, the point that you made with regard to what EPA could determine, I mean, EPA, when it decided how it was going to regulate CCR piles, it did point to, and it did reject proposals about timetable, and it pointed out that the lack of federal enforcement under Subtitle D presents challenges.

[01:24:53] Speaker 06:
That was part and parcel of what it was doing.

[01:24:56] Speaker 05:
You can just tell me as a practical matter how this, I get that they talked about that a lot, which is certainly a point in the favor of Breman, but then they also identified this fundamental problem of this, you can't tell one from the other or if half of it's moved and more's been put on, and so to the extent they talked about that problem, that you just can't tell if it's new stuff or old stuff, that

[01:25:21] Speaker 05:
is something, whether it comes before something's changed in technology, has that answered?

[01:25:24] Speaker 06:
Well, the pile is no longer there, of course that's an answer.

[01:25:27] Speaker 06:
And then if the pile has been... But it's a practical matter.

[01:25:29] Speaker 05:
I'm sorry?

[01:25:30] Speaker 05:
It's a practical matter.

[01:25:31] Speaker 05:
Their storage area is probably getting filled up with stuff.

[01:25:34] Speaker 05:
You all tell us there's tons of the stuff getting produced.

[01:25:36] Speaker 06:
And that's fair, Your Honor.

[01:25:37] Speaker 06:
There are practical issues about it, but if the pile is gone...

[01:25:43] Speaker 05:
Well, if the pile's gone, that would have worked last time, too.

[01:25:45] Speaker 05:
You don't need the WIN Act for that to be verifiable.

[01:25:48] Speaker 05:
So that just didn't seem to be a viable answer before, and that doesn't change now.

[01:25:51] Speaker 06:
Well, the reason that EPA rejected those kinds of arguments was that it rejected an argument about timetables of what is a temporary pile.

[01:25:58] Speaker 06:
And certainly there were certification requirements.

[01:26:00] Speaker 06:
There were obligations that can be imposed.

[01:26:03] Speaker 06:
And what it said was, but we don't have the enforcement authority.

[01:26:07] Speaker 06:
And as a result, we have to have a one-size-fits-all approach, and that's the approach that they adopted.

[01:26:12] Speaker 06:
I mean, we think the way that they addressed it with regard to the way the EPA addressed this issue with regard to piles at the cement factory is the proper way to also address it at the generation facility, but at least it was open to it.

[01:26:28] Speaker 05:
How do they do it at the cement factory?

[01:26:29] Speaker 06:
Well, you had to satisfy the four criteria for what is being beneficially used.

[01:26:34] Speaker 06:
So the fourth criteria identified, well, is whatever is being beneficially used, the material that's being beneficially used, is it no different than the other materials that might be used in its place, and or any kind of releases at a level that is below what we're concerned about.

[01:26:51] Speaker 06:
Now, that's open to the cement factory, but it's not open under the existing rule.

[01:26:58] Speaker 06:
That's not open to the generating facility.

[01:27:02] Speaker 05:
They didn't explain why the two... Are there time limits on how long it can sit at the ground at the cement factory?

[01:27:06] Speaker 05:
No.

[01:27:09] Speaker 06:
No.

[01:27:10] Speaker 06:
They don't limit it at all.

[01:27:11] Speaker 06:
No.

[01:27:12] Speaker 06:
The definition is, again, if you satisfy all the four criteria, that makes sense.

[01:27:16] Speaker 06:
It makes sense from EPA's perspective.

[01:27:18] Speaker 06:
But why wouldn't the same rule apply to where the CCRs are being generated?

[01:27:23] Speaker 06:
And in fact, CCRs generated at the electric plants also can be beneficially used at the plant sometimes.

[01:27:30] Speaker 06:
And so even that's another arbiter and capricious matter.

[01:27:35] Speaker 03:
But industry positions are also seeking to vacate that fourth criterion.

[01:27:40] Speaker 03:
right that's right but that's that that's right that's right uh... it's not that that's a card not present that's a card absent without that criteria but that's a great thing to look at uh... what uh... beneficial user has a burden to show how they're treating the waste in a way that wouldn't be dangerous

[01:28:06] Speaker 03:
That burden goes away.

[01:28:07] Speaker 06:
Well, I mean, right now that requirement is applied.

[01:28:14] Speaker 03:
Unless you win that issue in this case, right?

[01:28:18] Speaker 06:
Or if that issue gets resolved by EPA in a different way on remand.

[01:28:21] Speaker 05:
It doesn't seem like much of an answer to the concern.

[01:28:23] Speaker 05:
If you're saying that's invalid, too.

[01:28:25] Speaker 05:
The protection that you're invoking is when you say is legally invalid as well.

[01:28:29] Speaker 06:
Well, we think the first, I mean, I think that's being challenged.

[01:28:33] Speaker 06:
I mean, one of the challenges to that is the 12,400.

[01:28:35] Speaker 06:
And I'm not, you know, that's not my issue.

[01:28:39] Speaker 06:
But I understand that that's really a mathematical challenge that's being made to it.

[01:28:42] Speaker 06:
I don't know if that answers your question, Your Honor.

[01:28:47] Speaker 03:
Yes and no.

[01:28:48] Speaker 03:
OK.

[01:28:50] Speaker 06:
Thank you.

[01:28:52] Speaker 01:
All right, and we'll switch to the environmentalist challenges.

[01:30:14] Speaker 00:
Good afternoon, Your Honors.

[01:30:15] Speaker 00:
May it please the Court.

[01:30:16] Speaker 00:
My name is Thomas Smarr, and I'm appearing on behalf of the Environmental Petitioners, speaking now on behalf of our first three issues from our opening brief.

[01:30:26] Speaker 05:
Before we do that, can I just ask you for your view of the Wynn Act and its definition of sanitary landfill?

[01:30:31] Speaker 05:
Do you think it says they have to comply with this rule to be a sanitary landfill now?

[01:30:37] Speaker 00:
We agree with the premise I heard in your question, Judge Millett, that the WIN Act is an endorsement of the rule that was issued in 2015.

[01:30:45] Speaker 05:
But we also feel, Your Honor, that... That takes care of your arguments as well.

[01:30:51] Speaker 00:
In what sense, Your Honor?

[01:30:52] Speaker 05:
If they've said compliance with these rules makes you a sanitary landfill, then this is a new addition.

[01:30:58] Speaker 05:
If they've complied with this, then it would mean it's good for the goose, good for the gander.

[01:31:02] Speaker 05:
It would also mean your challenges go away, because they've said this is what is protective enough.

[01:31:08] Speaker 00:
I would not agree with that, Your Honor.

[01:31:10] Speaker 05:
So it only goes against them, but not against you.

[01:31:12] Speaker 05:
They've either endorsed the regulation as a standard, unless and until a new regulation comes in.

[01:31:17] Speaker 05:
It does say that, but as of now, that's the regulation that's there.

[01:31:20] Speaker 05:
They said it has to be as protective as that.

[01:31:23] Speaker 05:
And to be a sanitary landfill, you've got to comply with that regulation, which would seem to be trouble for your argument that they have to do more than that regulation to be a sanitary landfill.

[01:31:35] Speaker 00:
Well, I guess I wouldn't agree with that formulation of it, Your Honor.

[01:31:38] Speaker 00:
We do see it as the Wynn Act as endorsing that there is a coal ash rule that was issued in 2015, but not necessarily in all aspects of it.

[01:31:50] Speaker 00:
There's no qualifications on the statutory.

[01:31:52] Speaker 00:
I'm sorry, Your Honor.

[01:31:52] Speaker 05:
There's no qualification of a statutory tax.

[01:31:55] Speaker 05:
I don't know how we could pick and choose and say Congress endorsed those provisions that are adverse to the industry, but didn't endorse those provisions that are adverse to the environmental petitioners in this case.

[01:32:09] Speaker 05:
It's just a wholesale congressional, one could say, adoption of that regulation as a new statutory standard for being a statutory landfill.

[01:32:21] Speaker 00:
That's not how we read it, Your Honor.

[01:32:23] Speaker 00:
So how do you read it?

[01:32:24] Speaker 00:
We would read it as still needing to be consistent with, according to the issues that have been raised in this case, still needing to be consistent with 6,944 and the no reasonable probability of adverse effects standards.

[01:32:36] Speaker 05:
And that same argument would be made by the industry.

[01:32:38] Speaker 05:
I couldn't figure out how you would say it forecloses the industry challenges, that it's a congressional endorsement for them but not for you.

[01:32:45] Speaker 00:
I guess then I misspoke then, Your Honor, because... You don't think it's congressional endorsement of the regulation at all?

[01:32:51] Speaker 00:
We think that it's a clear sign that Congress wants there to be a coal ash rule and that any future rulemaking is predicated on the rule that's been issued now being the floor against which all future development must be measured.

[01:33:06] Speaker 00:
But I would not go so far as to say that... The floor, is it a lawful floor?

[01:33:11] Speaker 00:
I would not go so far as to say that that language in the Winn Act was a sufficiently clear endorsement as to indicate that Congress intended to resolve all of the issues in this case, Your Honor.

[01:33:26] Speaker 05:
What else does it mean?

[01:33:27] Speaker 05:
I'm trying to understand how you read it then.

[01:33:29] Speaker 05:
Simply is whatever regulations on the book has got to be complied with.

[01:33:32] Speaker 05:
But regulations, even as we're looking at it, even though the statute embraced the regulation in its current form,

[01:33:41] Speaker 05:
it doesn't have anything to do with whether that regulation is immune from judicial challenge.

[01:33:48] Speaker 00:
That would be consistent with how I would read it, Your Honor, that Congress was not, by incorporating by reference what was in the Code of Federal Register at the time that the Winn Act was passed, that did not, we don't see that as being an explicit endorsement in the respect that it was meant to decide all of the issues in this case, and it was that Congress was somehow interpreting the no reasonable probability of adverse effect standard.

[01:34:16] Speaker 03:
So on the three challenges that you briefed, the unlined and the inadequately lined and the legacy ponds issue, I wondered if you had anything you wanted to address to us.

[01:34:31] Speaker 00:
Yes, please.

[01:34:32] Speaker 00:
Thank you, Your Honor.

[01:34:33] Speaker 00:
I think the critical element that sweeps across all of these claims is that the statute says no reasonable probability of adverse effects.

[01:34:40] Speaker 00:
And this court in Environmental Defense Fund versus EPA in 1988

[01:34:45] Speaker 00:
found that this language means that EPA must ensure, quote, no possibility of danger to health or environment from deposits, unquote, of waste at sites subject to subtitle D criteria.

[01:34:57] Speaker 00:
That's 852 at second at 1310.

[01:35:00] Speaker 00:
In other words, the statute requires criteria to be established that, if implemented,

[01:35:05] Speaker 00:
would reduce the probability of harm to a de minimis level approaching zero.

[01:35:10] Speaker 00:
And with respect to each of these claims, the provisions of the rule don't satisfy that.

[01:35:14] Speaker 05:
Where do you get de minimis approaching zero when the statute says reasonable probability?

[01:35:18] Speaker 00:
I'm reading that into this court's interpretation of that language in the Environmental Defense Fund, where they say no possibility of danger, Your Honor.

[01:35:26] Speaker 05:
And as EPA... Assuming we meant a reasonable possibility.

[01:35:31] Speaker 05:
That seems to be more than de minimis or zero.

[01:35:35] Speaker 05:
That right?

[01:35:35] Speaker 05:
You don't think it meant reasonable?

[01:35:37] Speaker 05:
You mean you think we meant to substitute our own language for the statutory test of reasonable probability?

[01:35:44] Speaker 00:
It meant that it means that consistent with the RCRA mandate, the goal of these regulations is to eliminate harm.

[01:35:50] Speaker 03:
But that case wasn't a case about 6944.

[01:35:53] Speaker 03:
That was sort of sketching in the background.

[01:35:56] Speaker 03:
What does RCRA do?

[01:36:00] Speaker 03:
And I think it's not the kind of case where I would see that as trumping the clear statutory language.

[01:36:09] Speaker 03:
But anyway, whether it's under a standard that Environmental Defense Fund tweaks to be higher, or as you point out, the reasonable possibility standard that's articulated in the statute, your concern is that

[01:36:24] Speaker 03:
he pays on record shows that unlined or inadequately lines uh... impoundments our risk that there has significant risk given the data that he came acting on which shows that about a third of these fail at some point or another and uh...

[01:36:45] Speaker 03:
and that there just isn't a rationale for leaving in place these inadequately lined landfills while at the same time in a prospective move requiring all new landfills to have a geothermal membrane and an earthen membrane.

[01:37:01] Speaker 03:
And I guess the obvious response to that is, well, building a new one properly is

[01:37:09] Speaker 03:
a heck of a lot easier than going and retrofitting an existing one.

[01:37:14] Speaker 03:
It's just really, really difficult to do that.

[01:37:18] Speaker 03:
And it seems like that is the elephant in the room here.

[01:37:21] Speaker 03:
It's really, this is stuff that cannot easily be put into a bowl on the side while we recreate the

[01:37:29] Speaker 03:
the landfill and then poured back in.

[01:37:31] Speaker 03:
Isn't that the case?

[01:37:33] Speaker 00:
But Your Honor, I agree with everything you just said, Your Honor, but with respect to subtitle D, the EPA, as itself acknowledges, is not allowed to consider costs.

[01:37:45] Speaker 00:
This is a statute that is, as EPA itself says in its brief on pages 60 to 61, it's a statute that, consistent with Supreme Court precedents such as Whitman v. American Trucking Association, it's a statute where health and environmental criteria are the sole basis of the decision.

[01:38:04] Speaker 05:
And here, with the—

[01:38:07] Speaker 05:
You know, if you've got to pick all this stuff up, relocate it while you re-line or line, I guess line the landfill or the impoundment, then isn't there not just expense, but environmental and health risks involved in that process of moving everything out and then moving it back in?

[01:38:27] Speaker 00:
That is certainly true that there would be some risk involved there that would need to be managed, but in light of the record that is in front of the agency.

[01:38:35] Speaker 05:
So they're balancing different risks.

[01:38:36] Speaker 05:
So there's the environmental health risk of doing the move and everything out and put a new liar in, and the environmental health risk of monitoring aggressively.

[01:38:46] Speaker 00:
Certainly there is that sort of calculus that would need to be made in order to implement a requirement that all impoundments in order to continue operating must be lined, but EPA itself in the record has found that only the- Sorry, are we talking about inactive impoundments right now, right?

[01:39:03] Speaker 05:
Are we talking, is there a difference between inactive for this purpose, for unlined purpose between inactive and active?

[01:39:09] Speaker 00:
Oh, no, if I said inactive, I missed both.

[01:39:13] Speaker 00:
Both EPA has found that with respect to both inactive and active impoundments, the risks and harms are the same.

[01:39:21] Speaker 00:
And the same is true with existing versus new impoundments.

[01:39:25] Speaker 00:
It's the same risks of harm, risks of both contamination and structural failure that have to be evaluated with both.

[01:39:32] Speaker 00:
And with respect to the new impoundments, EPA found that they were the only technology option that was effective.

[01:39:41] Speaker 00:
In its response to comments, volume 5 at page 12, EPA says that the need for effective liners, namely composite liners, is acute to very significantly reduce the probability of adverse effects.

[01:39:55] Speaker 00:
having gone and built that record around composite liners and the need for them in the context of new impoundments and not having offered any rational basis to distinguish between composite liners at new impoundments versus existing impoundments, that is the crux of our claim here, both with respect to the unlined.

[01:40:15] Speaker 05:
I think the point is that, as Judge Pillard was saying, when you're building something in the first instance,

[01:40:20] Speaker 05:
It's one thing, and we're gonna require the Rolls Royce of liners.

[01:40:26] Speaker 05:
But for things that are already there, there are real issues about trying to line something that's unlined and is already filled with coal ash and all these other residuals.

[01:40:37] Speaker 05:
There's just real problems, health problems, mechanical problems, logistical problems with doing that.

[01:40:43] Speaker 05:
And so as to those, we're not gonna go with the Rolls Royce standard.

[01:40:47] Speaker 05:
we're gonna go with a lower standard.

[01:40:50] Speaker 05:
But that lower standard doesn't mean, the fact that it's lower than the Rolls-Royce standard doesn't mean that it's below a reasonable probability, that it's more than a reasonable probability.

[01:40:58] Speaker 05:
You could have the optimal standard and you could have something less that would still not be a reasonable probability of health.

[01:41:05] Speaker 05:
And as I understand their argument, that's what's going on here.

[01:41:09] Speaker 05:
Because it's just, we can't get to Rolls-Royce.

[01:41:12] Speaker 00:
Yara, that may be true in theory, but it doesn't match with the record of this case where EPA found that, the risk assessment found that there's a 57% chance that an unlined impoundment will cause exceedance of drinking water standards for arsenic within one meter over the course of their lifetime.

[01:41:28] Speaker 00:
And with the very clear, across multiple pollutants, excesses of the level of concern, which is the regulatory acceptable level for cancer risk.

[01:41:38] Speaker 05:
If industry just says,

[01:41:42] Speaker 05:
honestly retrofitting is just not a viable option for all kinds of reasons that we've acknowledged.

[01:41:49] Speaker 05:
If they close it, can you just tell me what that means?

[01:41:52] Speaker 05:
What does it mean to close it?

[01:41:55] Speaker 00:
There are different ways to close an impoundment, Your Honor.

[01:41:59] Speaker 00:
Under the rule as issued by EPA in 2015, there's both so-called clean closure, which involves removal of the ash, there's also capping.

[01:42:06] Speaker 05:
Right, so if we cap it.

[01:42:09] Speaker 05:
Don't you still have a risk of leaking?

[01:42:10] Speaker 05:
Maybe I just don't know how capping works, but it's still sitting there in the unlined impoundment.

[01:42:17] Speaker 05:
maybe a cap on it, but how does that help prevent leaking?

[01:42:20] Speaker 05:
Does capping prevent leaking?

[01:42:21] Speaker 00:
Not in and of itself, no, Your Honor.

[01:42:23] Speaker 00:
The cap does prevent water infiltrating into the ash, but other measures need to be taken, and under the rule there's also the closure performance standard that has to be met in order to ensure that groundwater resources are protected.

[01:42:36] Speaker 00:
So there's a range of requirements that aren't issued in this case.

[01:42:39] Speaker 05:
How does that work?

[01:42:39] Speaker 05:
Do they just cap it and then they monitor it?

[01:42:42] Speaker 00:
With respect to the capping method of closure, that is the core element of it.

[01:42:49] Speaker 00:
Yes, Your Honor.

[01:42:49] Speaker 03:
My understanding is that there is also some drying that takes place, that if there's this watered ash that is held as a thick liquid, that one of the aspects of closure that helps it not leach is that it's

[01:43:11] Speaker 03:
covered so it doesn't continue to get re-moistened and that if it's dry, it's closer to the state that's used in bricks and the like.

[01:43:21] Speaker 00:
Yes, Your Honor, that's part of the closure performance standard.

[01:43:24] Speaker 03:
So they do, there is a way to take it and dry it out in C2.

[01:43:28] Speaker 00:
And the rule requires removal of what's called free liquid.

[01:43:31] Speaker 00:
So essentially, if you put a mound of ash on concrete, if liquid doesn't drain out of it, then there are no free liquids within the ash.

[01:43:39] Speaker 00:
And that is part of the closure process, part of the closure performance standard that has to be met in order to close under the rule.

[01:43:44] Speaker 03:
So basically, your argument is that all three of these types of landfills, the legacy, the only earth in line, and the unlined

[01:43:56] Speaker 03:
Basically, as an economic proposition, they need to be closed.

[01:44:02] Speaker 00:
Yes, Your Honor.

[01:44:03] Speaker 00:
At its core, I know legacy impoundments present a slightly different issue in that with respect to the legacy impoundments, EPA, in its rule, went through and made findings that inactive units need to be covered in addition to active units.

[01:44:17] Speaker 00:
In the course of making those findings and finding that the same types of risks are present with both,

[01:44:22] Speaker 00:
In the preamble, EPA repeatedly cites to power plants that under the rule, and in terms of the risk of harm, power plants such as the Dan River Plan in North Carolina, that under the rule are not regulated.

[01:44:34] Speaker 00:
And EPA did not offer any rational basis for why, if inactive units,

[01:44:40] Speaker 00:
are posing the same risks and probabilities of harm as active units, why the presence or absence of an operating power plant should make a difference in terms of whether they're regulated.

[01:44:52] Speaker 00:
There is some post hoc rationalization that's been offered by EPA relating to the potential practical difficulties of implementing the rule at these sites, but there's nothing in the record on which that is based.

[01:45:02] Speaker 00:
And there's no particular reason to think that there would be practical difficulties.

[01:45:07] Speaker 00:
EPA found in the rulemaking that three quarters of

[01:45:19] Speaker 00:
in the last four years.

[01:45:25] Speaker 00:
And even with that other quarter that's not within that within that that category there would still there would still.

[01:45:34] Speaker 00:
be a likelihood that the power plants are still, those sites are still in the ownership of utilities who are capable of implementing the rule at those sites.

[01:45:45] Speaker 00:
Typically these sites still have some active facilities such as transmission lines or substations.

[01:45:50] Speaker 00:
In the absence of any record evidence to support this exemption, there's simply no basis for it to be upheld.

[01:45:58] Speaker 05:
Is there evidence on the record of what the risk of leak is from a closed, risk of leaking is from

[01:46:04] Speaker 05:
a closed impoundment?

[01:46:10] Speaker 05:
We've got all the risks on other things.

[01:46:12] Speaker 00:
There are leakage rates in the risk assessment that are assumed, Your Honor.

[01:46:16] Speaker 05:
What's a leakage rate for a closed, unlined impoundment?

[01:46:23] Speaker 00:
Your Honor, do you mean an unlined impoundment that is closed consistent with the closure performance standard in the rule?

[01:46:30] Speaker 00:
They assume they have to.

[01:46:31] Speaker 05:
Can they close it without doing that?

[01:46:36] Speaker 00:
I don't know the exact answer to that question, Your Honor.

[01:46:41] Speaker 05:
Okay, so if they comply with the standards, do we know what the leakage rate is?

[01:46:47] Speaker 05:
You said if they comply with the performance standards and closed cap it.

[01:46:52] Speaker 05:
Do we know?

[01:46:52] Speaker 05:
Or is that not in the record?

[01:46:53] Speaker 00:
That is something that was considered by EPA as part of its risk assessment, yes, Your Honor.

[01:46:58] Speaker 05:
What is the risk of leaking?

[01:47:00] Speaker 05:
then do we know?

[01:47:01] Speaker 05:
Does it go away, or we don't know?

[01:47:04] Speaker 00:
There is certainly still a risk of leaking, Your Honor.

[01:47:06] Speaker 00:
As I stand here today, I don't know that.

[01:47:08] Speaker 05:
It's not a risk that you would qualify as a reasonable probability, or if they were to do that, you would still challenge even that?

[01:47:16] Speaker 05:
as posing a reasonable probability of harm.

[01:47:19] Speaker 00:
We have not challenged the closure performance standard in this case, and EPA found with respect to retrofit.

[01:47:26] Speaker 00:
So under the rule, as issued in 2015, if there are exceedances of

[01:47:31] Speaker 00:
groundwater standards, then the option for the owner and operator is either to close or retrofit with a composite liner.

[01:47:41] Speaker 00:
And there's clear evidence in the record that composite liners take those risks very significantly down below the risk thresholds.

[01:47:49] Speaker 03:
Why is the regulation of legacy ponds under, is it subtitled G, imminent endangerment, why is that inadequate?

[01:47:57] Speaker 00:
Imminent substantial endangerment is inherently a site specific.

[01:48:01] Speaker 00:
It's sort of the same reason why enforcement more broadly, it would be inadequate in this area.

[01:48:07] Speaker 00:
Imminent substantial endangerment is inherently site specific.

[01:48:09] Speaker 00:
It requires a lot of resources, a very high standard of proof in order to develop the evidence for a particular site.

[01:48:15] Speaker 00:
And it's simply not the same thing as across the board standards that prevent harm before it happens.

[01:48:22] Speaker 00:
That's what Subtitle D requires.

[01:48:25] Speaker 00:
And here, with respect to legacy sites, there's reason to think that at a number of these sites,

[01:48:34] Speaker 00:
the risks are even more acute than at the active sites.

[01:48:37] Speaker 00:
EPA found in the rulemaking record that inactive sites are more likely to be older, more likely to have more issues associated with their engineering, and for EPA to look away from that evidence when exempting those sites is problematic.

[01:48:53] Speaker 03:
Well, it's a triage.

[01:48:54] Speaker 03:
I mean, they're trying to figure out where to put resources.

[01:48:57] Speaker 03:
And I guess they're saying, we're going to look at these, and if there's some reason to think there is a problem, we're going to bring out the SWAT team.

[01:49:05] Speaker 03:
But if there isn't, we're going to have to just leave those sleeping dogs lie.

[01:49:09] Speaker 03:
And your view on that is?

[01:49:10] Speaker 03:
no reason to think that they're any less risky.

[01:49:13] Speaker 03:
Indeed, they might even be more risky, given the record in this case, than the unlined ponds that are not legacy ponds or than the earth and lime ponds without a geothermal layer that are not legacy ponds.

[01:49:28] Speaker 03:
And so in your view, subtitle G inappropriate for all of them.

[01:49:32] Speaker 03:
Our case law, I mean, tell me if you read it differently, but

[01:49:36] Speaker 03:
For example, Environmental Defense Fund seems to say that there's a lot of deference to the agency to choose which regulatory title to regulate under.

[01:49:47] Speaker 03:
And here they've chosen the legacy ponds.

[01:49:49] Speaker 03:
We're going to deal with that under Subtitle G. And we're going to deal with these others under D. Can you help me see that I'm misreading that, that we have more authority to second-guess that than I'm proposing?

[01:50:05] Speaker 00:
My response to that, Your Honor, is that EPA does not have discretion to ignore the facts and the record that it itself has created.

[01:50:11] Speaker 00:
It doesn't have the discretion to take arbitrary and capricious actions.

[01:50:15] Speaker 00:
And here, where they haven't justified the decision to treat new impoundments differently from existing impoundments, where they haven't justified the decision to exempt legacy sites if there isn't an operating power plant while finding a necessity

[01:50:31] Speaker 00:
for regulation of inactive impoundment sites where there is an operating power plant.

[01:50:37] Speaker 00:
It's worth noting again, Your Honor, that in that section of the preamble where EPA justifies its decision to regulate inactive impoundments, they repeatedly cite to the Dan River plant and other plants that do not have operating power plants.

[01:50:53] Speaker 00:
They're using examples

[01:50:55] Speaker 00:
that ultimately the rule they issued do not regulate, and that is the hallmark of arbitrary action, to not, actions that simply just don't make sense on their face.

[01:51:05] Speaker 03:
In other words, the Dan River Plan, when it had the failure, that was already what under the rule would be characterized as a legacy pond.

[01:51:13] Speaker 00:
Yes, Your Honor.

[01:51:14] Speaker 00:
In 2014, when it spilled 39,000 tons of coal ash, it was no longer an operating power plant at that time.

[01:51:20] Speaker 05:
And was there an identifiable company available to close that?

[01:51:24] Speaker 00:
Yes, Your Honor.

[01:51:25] Speaker 00:
Duke Energy owned the site and has been responsible for addressing the problems there after they were discovered.

[01:51:33] Speaker 00:
If there are no further questions, Your Honor, I'd like to reserve time for rebuttal.

[01:51:38] Speaker 01:
Mr. Rosen?

[01:51:48] Speaker 08:
Mr. Smart started out with two points, which are completely accurate.

[01:51:54] Speaker 08:
This is a health-based statute, a health-based regulation.

[01:51:58] Speaker 08:
It's not a technology-based regulation.

[01:52:00] Speaker 08:
And the standard is that EPA has to ensure that there's, quote, no reasonable probability of adverse effects on human health and the environment.

[01:52:08] Speaker 08:
EPA does not quarrel with the fact that there's greater risk in unlined impoundments.

[01:52:13] Speaker 08:
That's quite clear.

[01:52:14] Speaker 08:
But that's not the issue in this case.

[01:52:17] Speaker 08:
There are only two issues.

[01:52:18] Speaker 08:
The first one is what I just said.

[01:52:20] Speaker 08:
With any type of facility, like an unlined impoundment or we'll get to the two-foot impound – the two-foot liner, is there a reasonable probability of adverse effects on human health and the environment?

[01:52:30] Speaker 08:
And if present, if that determination is made, are the actions required by EPA to avert that reasonable probability arbitrary and capricious?

[01:52:40] Speaker 08:
So you have to look at both sides of the issue.

[01:52:44] Speaker 08:
Here, EPA says that there's no reasonable probability of adverse effects from online impoundments unless they're actually leaking.

[01:52:55] Speaker 08:
And that's based on there.

[01:52:58] Speaker 05:
Can you disagree with the 57% risk of leaking?

[01:53:00] Speaker 08:
Absolutely.

[01:53:01] Speaker 08:
I'm sorry.

[01:53:03] Speaker 08:
Absolutely would disagree.

[01:53:04] Speaker 08:
It's 36%.

[01:53:05] Speaker 05:
That's 36% from a mile out.

[01:53:08] Speaker 05:
And they say less than a mile out.

[01:53:10] Speaker 05:
Closer in, 57%.

[01:53:12] Speaker 05:
What do you say the percentage is closer in, under a mile?

[01:53:16] Speaker 08:
Based on the regulatory impact analysis, which was not the health assessment, but based on the regulatory impact analysis, it did use 57%.

[01:53:26] Speaker 08:
This is measuring reasonable probability of health and environmental impacts.

[01:53:34] Speaker 08:
There has to be people to be impacted.

[01:53:36] Speaker 08:
The one meter from the edge.

[01:53:37] Speaker 05:
Wait, wait, wait, it's not just health effects, it's also environmental effects.

[01:53:40] Speaker 08:
It's also environmental effects, you're right.

[01:53:42] Speaker 05:
Okay, how do you define environmental effects?

[01:53:43] Speaker 08:
But there has to be people and there have to be environmental effects.

[01:53:45] Speaker 08:
Okay.

[01:53:45] Speaker 08:
And those don't occur one meter from the facility.

[01:53:48] Speaker 08:
They just don't.

[01:53:49] Speaker 05:
How can, how do you define, wait, stop, please.

[01:53:51] Speaker 05:
So, if there's no people standing there.

[01:53:53] Speaker 05:
But there's environment right there, one meter, one inch, and certainly there's a lot of distance between a mile and a meter.

[01:54:01] Speaker 05:
All that area.

[01:54:03] Speaker 07:
Right.

[01:54:03] Speaker 05:
It's environmental at a minimum.

[01:54:05] Speaker 05:
Why isn't that, once there's leaking into that system, why isn't that an environmental effect, adverse environmental effect?

[01:54:11] Speaker 08:
If there were surface water one meter from that impoundment, then there would be environmental effects.

[01:54:17] Speaker 08:
Do you have a measure of that?

[01:54:18] Speaker 05:
So as to that, there's a 57%.

[01:54:19] Speaker 08:
EPA did go and look at this, and they looked at where people lived, and they looked at the environmental impacts, and they looked at the groundwater.

[01:54:28] Speaker 08:
and they determine that the one meter is not an accurate measurement.

[01:54:33] Speaker 05:
There's a lot of distance between one meter and one mile.

[01:54:35] Speaker 05:
So for that entire area, from where this is deposited to a mile out, so up to your 36, so before we get to your 36 percentile, which we can address separately, up to that, what is the percentage risk of adverse environmental effects from unlined impoundments?

[01:54:56] Speaker 08:
OK, part of that is that an online empowerment has a useful life of about 40 to 70 years.

[01:55:05] Speaker 08:
The chart that found 57% was based on 100 years.

[01:55:10] Speaker 08:
So it's way beyond the useful life.

[01:55:12] Speaker 08:
So that's not an accurate measurement to begin with.

[01:55:15] Speaker 08:
Secondly, from the one meter, it clearly dissipates as it goes through, because it has to leach through the system.

[01:55:23] Speaker 08:
If you're looking at one meter, there has to be groundwater there.

[01:55:26] Speaker 05:
And EPA did this technical... Can there be adverse environmental effects that don't involve groundwater?

[01:55:32] Speaker 08:
Yeah, EPA didn't find those.

[01:55:34] Speaker 08:
Did you look at that?

[01:55:37] Speaker 08:
EPA did its analysis based on, for the most part, groundwater.

[01:55:41] Speaker 08:
It's based on surface water, and it's based on human impacts.

[01:55:47] Speaker 05:
Have you defined adverse environmental impact for purposes of the statute to mean exclusively impacts on groundwater or surface water?

[01:55:54] Speaker 08:
I'm not sure how it's defined, but no one's... Well, don't we have to know that?

[01:55:58] Speaker 05:
It's a statutory term.

[01:55:59] Speaker 05:
You can't have adverse environmental effects.

[01:56:04] Speaker 08:
That's right.

[01:56:04] Speaker 08:
It is a statutory term.

[01:56:07] Speaker 08:
And it's a technical analysis that EPA gets a lot of difference for.

[01:56:11] Speaker 05:
A lot of difference if it doesn't.

[01:56:12] Speaker 05:
If you're telling me all they looked at was water effects.

[01:56:15] Speaker 05:
They didn't look at effects on plant life, animals, animals that eat the plants that have been contaminated with this and then are eaten by humans.

[01:56:21] Speaker 05:
You didn't look at any of that.

[01:56:22] Speaker 08:
But I'm not aware of anything in the record which shows that there were any such impacts.

[01:56:27] Speaker 05:
I'm not aware of any... There's not anything in the record because you didn't look.

[01:56:30] Speaker 08:
Well, not necessarily.

[01:56:31] Speaker 08:
I'm not aware of any comments that laid out that there were environmental impacts within that one meter.

[01:56:37] Speaker 03:
I think that nobody in this room disagrees that in upwards of 30% of cases there is going to be some kind of failure or leakage.

[01:56:49] Speaker 03:
Indeed, I think that in both the Kingston and the Dan River failures, they were considered major failures.

[01:57:01] Speaker 03:
I think in neither of those cases did the breakage go beyond a mile.

[01:57:06] Speaker 03:
So it was actually within that less than a mile distance, but it was quite a lot of damage.

[01:57:17] Speaker 03:
I do think the agency has a really challenging regulatory task here, and I'm just trying to make sense of how you can fulfill the mandate of the statute without taking cost into account.

[01:57:32] Speaker 03:
It seems to me that

[01:57:35] Speaker 03:
all these three, that, you know, and this is the environmental practitioners argument, this is nothing new to you, that they've pointed out that there are substantial risks of leakage and that these are very dangerous substances, the mercuries and the arsenics.

[01:57:53] Speaker 03:
And therefore, if you've acknowledged that and acknowledged, I mean, in the upwards of 30%, that's a high leakage percent.

[01:58:04] Speaker 03:
How can these continue to operate online?

[01:58:09] Speaker 08:
Okay, first, the 36% is the chance, not the probability, the chance that these will lead to a level above the threshold, and it was only found potentially for arsenic.

[01:58:22] Speaker 08:
There was some question about that.

[01:58:25] Speaker 08:
Taking that as it is, it's still arsenic and it's still potentially there.

[01:58:30] Speaker 08:
It's the second part of the issue.

[01:58:32] Speaker 08:
It's the question, what does EPA require to ensure that there will not be a probable impact?

[01:58:39] Speaker 08:
And what did EPA do here?

[01:58:40] Speaker 08:
EPA's regulations require groundwater monitoring.

[01:58:44] Speaker 08:
They're visualing groundwater monitoring at several different levels.

[01:58:48] Speaker 08:
And once a leak is detected in an online impoundment, that facility must take immediate action to stop that leak and redress that leak.

[01:58:59] Speaker 08:
And then, with online impoundments, it must close.

[01:59:04] Speaker 08:
And based on that, EPA determined that in the long run and in total, it would not be a reasonable probability.

[01:59:12] Speaker 08:
So even if you take the first part and say, OK, EPA is wrong with all the deference it gets, with all the discretion that 36% is, in your view, a reasonable probability, getting to the second part of the question, they put in exactly the procedures

[01:59:27] Speaker 08:
that would address that to ensure that it will not, in fact, be a reasonable probability.

[01:59:32] Speaker 08:
And these are measures that environmental petitioners said in their brief will work.

[01:59:38] Speaker 08:
And their concern, and I've got their quote somewhere, here it is on page seven to eight of their brief.

[01:59:46] Speaker 08:
Leaching coal ash constituents for empowerment can be mitigated when effective groundwater monitoring systems are in place and when the monitoring can trigger remedial action.

[01:59:55] Speaker 08:
That's exactly what EPA put

[01:59:57] Speaker 03:
But I think they're referring to where the impoundment is lined and when there's a leak, given that there's a liner, it's easier to fix than when you realize that the sieve is

[02:00:15] Speaker 03:
has sprung leaks, one can assume that there's a broader problem.

[02:00:20] Speaker 08:
EPA made the determination that these are resolvable.

[02:00:23] Speaker 08:
You are right.

[02:00:24] Speaker 08:
When there's a two-foot liner, it's different.

[02:00:26] Speaker 08:
And then the long-term remedy is different.

[02:00:29] Speaker 08:
With a two-foot liner, what EPA says, those are often localized.

[02:00:34] Speaker 08:
So you can take steps to address that local issue.

[02:00:37] Speaker 08:
With an online impoundment,

[02:00:39] Speaker 08:
They say, you can still take steps to address that issue.

[02:00:44] Speaker 08:
Pump and Treat is used at virtually every contaminated facility in the country.

[02:00:50] Speaker 08:
And it treats the groundwater.

[02:00:53] Speaker 08:
It takes the contaminants out of the groundwater.

[02:00:55] Speaker 08:
But EPA recognized that there's a qualitative difference between the two-foot liner and an unlined impoundment.

[02:01:03] Speaker 08:
And it said, you know what?

[02:01:05] Speaker 08:
Even though we can fix that leak,

[02:01:09] Speaker 08:
that that's just probably evidence that more leaks are going to occur in an online empowerment, and therefore they are required to close.

[02:01:16] Speaker 08:
So first, take those immediate actions to address that leak.

[02:01:19] Speaker 08:
And secondly, close.

[02:01:21] Speaker 08:
You have no option at that point for an online empowerment.

[02:01:24] Speaker 05:
What evidence is there in the record about how accurate

[02:01:29] Speaker 05:
monitoring is in finding these leaks, how soon it finds it, how fast they can react on what are now presumably not localized leaks because they're not lined, and how thorough the remediation can be.

[02:01:45] Speaker 05:
Where are those record findings?

[02:01:47] Speaker 05:
to prevent environmental effect.

[02:01:50] Speaker 08:
I'm not sure there's a great deal of findings on that.

[02:01:54] Speaker 04:
Are there any?

[02:01:55] Speaker 08:
Well, this is a new regulation which was put in based on the scientific data and the scientific analysis where groundwater monitoring was designed to actually test and find these leaks and then deal with them immediately.

[02:02:12] Speaker 05:
Even if we're only looking at water, where are the findings as to how quickly

[02:02:18] Speaker 05:
leaks are found, how quickly in unlined impoundments they can be completely contained, how long they can be contained during the entire closure process, and how much environmental damage is gonna happen during this whole process.

[02:02:33] Speaker 08:
Well, again, you know, to some extent, you're right, they're somewhat different in online empowerment, but a leak is a leak.

[02:02:41] Speaker 08:
And with effective, as petitioners themselves say, with effective groundwater monitoring and effective application of the remedial actions that are in the regulation,

[02:02:54] Speaker 08:
Probable adverse impacts can be avoided.

[02:02:57] Speaker 08:
And their concern was that the state won't implement those actions.

[02:03:04] Speaker 08:
But that's not about whether these regulatory requirements are adequate.

[02:03:08] Speaker 08:
The regulatory requirements, if enforced, are adequate.

[02:03:11] Speaker 08:
And now with the WIN Act, there's lots of different opportunities, either EPA itself or the state through a permitting system, who will implement that.

[02:03:19] Speaker 08:
They cited to, petitioners cited to I think a 48% figure of the states not having adequate procedures.

[02:03:27] Speaker 08:
That has nothing to do with this regulation.

[02:03:30] Speaker 08:
Those are state procedures and that's the reason.

[02:03:33] Speaker 05:
I just want to know your findings, your factual findings about how this monitoring and remediation works in a way to prevent a reasonable probability of any adverse environmental impact.

[02:03:46] Speaker 08:
At this point, as I stand here today, I cannot cite to you where in the record that is.

[02:03:51] Speaker 05:
But do you think they're there and you just can't cite them, or are you not sure they're there at all?

[02:03:55] Speaker 08:
I can't answer that either.

[02:03:58] Speaker 08:
I'm not sure what type of analysis was done.

[02:04:00] Speaker 08:
But groundwater monitoring, as I say, is used at NPL sites.

[02:04:05] Speaker 08:
It's used at all kinds of sites.

[02:04:07] Speaker 08:
Groundwater monitoring determines the leak.

[02:04:10] Speaker 08:
It's determined whether, the next part of the termination is whether it's over the threshold level for covered constituents.

[02:04:17] Speaker 08:
And the next part of the termination is you put in a remedy, in this case if you have 90 days to put in a remedy, and you put in a remedy, which is often pump and treat, and it gets it out of the system.

[02:04:29] Speaker 08:
6945 allows EPA, specifically allows EPA to set a timetable to do this.

[02:04:34] Speaker 08:
There's nothing that says it has to be done absolutely immediately.

[02:04:38] Speaker 08:
It gives the administrator discretion.

[02:04:40] Speaker 05:
That's a problem too, right?

[02:04:44] Speaker 05:
I know the numbers are high, but I'm not that good at math, so let's assume there's 100 of these out there.

[02:04:48] Speaker 05:
And you said, statistically, 36% of them are going to leak.

[02:04:53] Speaker 07:
Have a chance to, yeah.

[02:04:55] Speaker 05:
Well, I think 36% is the chance, right?

[02:04:58] Speaker 05:
Right.

[02:04:58] Speaker 05:
And that is leaking so bad it's detected a mile out, even higher, less than a mile out.

[02:05:03] Speaker 05:
Right.

[02:05:04] Speaker 05:
Right?

[02:05:04] Speaker 05:
That's going to be there.

[02:05:05] Speaker 05:
And if it's not stopped, then even if we're only looking at water,

[02:05:08] Speaker 05:
that water's gonna be going out, even if it's, by the time it's detected, it's not detected and stopped instantaneously, it's gonna keep going, right, as it's detected, and then someone's gonna follow the alert, and then someone's gonna call the truck, and they're gonna schedule a truck and get it in, and how is that not a reasonable probability of harm, even if we'll stop the harm eventually?

[02:05:28] Speaker 05:
It's like saying, you know, there's an oil spill, and we'll throw down the buoys, and we'll do the cleaning that we can, but there's environmental harm by the time we discover it and get the remedies in place.

[02:05:38] Speaker 08:
Well, you know, environmental harm sometimes occurs under all environmental statutes until it's addressed.

[02:05:47] Speaker 08:
Again, there's this timetable provision right in the statute.

[02:05:50] Speaker 08:
I mean, an analogy is we all bring our cartas in to have emissions tested.

[02:05:54] Speaker 08:
And you can say, old cars clearly have a propensity to exceed emissions requirements rather than new cars.

[02:06:03] Speaker 08:
And it comes in every year or it comes in every two years for an inspection.

[02:06:07] Speaker 08:
And if it fails that inspection,

[02:06:10] Speaker 08:
it's been emitting contaminants.

[02:06:14] Speaker 08:
But, you know, under a reasonable approach, you have to do some testing and determine... Well, the reasonable approach is to stop it.

[02:06:20] Speaker 05:
Don't let it happen in the first place.

[02:06:22] Speaker 05:
Then just say we'll test... Well, the answer... If the standard is stop it from happening in the first place, then I think a comment every two years for testing would clearly be arbitrary and capricious, would it not?

[02:06:35] Speaker 08:
Yes, but I don't think there's a requirement that says stop it from happening in the first place.

[02:06:41] Speaker 08:
It looks at probable adverse impacts.

[02:06:43] Speaker 08:
It gives EPA time to address those impacts in a reasonable manner.

[02:06:49] Speaker 08:
Now, you could challenge, I guess, that it would take too long.

[02:06:52] Speaker 08:
But under your premise, I think, Your Honor, wouldn't every

[02:06:56] Speaker 08:
Empowerment and landfill have to close.

[02:06:59] Speaker 08:
Even composite, even ones with composite, why does that have a chance to release?

[02:07:02] Speaker 05:
Well, I assume your position would be that the very small percentage there is not a reasonable probability of environmental or human harm, but when we've got 36% a mile out, 57, I haven't heard you give me another number within that.

[02:07:18] Speaker 05:
And you've got endless findings about how online impoundments are the greatest risk there is out there, and it's going to happen.

[02:07:27] Speaker 05:
And that does seem to me a material difference.

[02:07:31] Speaker 05:
You don't have to have nothing.

[02:07:32] Speaker 05:
You don't have to stop everything to stop reasonable probabilities of harm.

[02:07:36] Speaker 08:
And then based on the 36% chance that some of these facilities may leak.

[02:07:45] Speaker 05:
What about 57%?

[02:07:46] Speaker 08:
I'm sorry?

[02:07:48] Speaker 05:
Unless you've got a number for under a mile, I don't know what else to use other than their 57%.

[02:07:53] Speaker 08:
Well, again, if you look at the chart that's cited there along with it, and I don't think they put that in the appendix, but the chart that's referred to on that page, I think it's JA 1111, the annual

[02:08:12] Speaker 08:
percentage of chance goes down remarkably after the first couple of years.

[02:08:18] Speaker 08:
And after 20 or 30 years, it goes down to 0%, essentially.

[02:08:23] Speaker 08:
So I think that 57% over a 100-year lifetime, which none of these have, is a bit of a misnomer.

[02:08:30] Speaker 05:
I'm happy to take whatever number you have.

[02:08:33] Speaker 08:
Well, our numbers are 36%.

[02:08:35] Speaker 05:
That means you're ignoring the environment for a mile out, up to a mile out.

[02:08:39] Speaker 08:
I don't think we're ignoring it.

[02:08:40] Speaker 08:
I don't think that these are within a mile.

[02:08:44] Speaker 08:
So they may be 100 yards from the facility.

[02:08:47] Speaker 08:
But it's up to a mile.

[02:08:49] Speaker 08:
it's based on census-like data that EPA looked at, and it's based on geographic GIS data that EPA looked at to try and assess as best it could from a technical standpoint what those impacts would be.

[02:09:10] Speaker 08:
If we go to

[02:09:13] Speaker 08:
the two-foot liners.

[02:09:17] Speaker 08:
Now, again, under their theory, they want two-foot liners defined as no liners.

[02:09:22] Speaker 08:
And therefore, if you put that issue along with their first issue, they want all impoundments with two-foot liners closed immediately.

[02:09:29] Speaker 03:
Wasn't that also the way EPA studied the issue?

[02:09:31] Speaker 03:
I mean, the data looks at the issue

[02:09:38] Speaker 03:
the premier liner, the geomembrane, and the two-foot.

[02:09:45] Speaker 03:
You don't actually have data that breaks down those three separate subcategories.

[02:09:50] Speaker 03:
No liner, earthen only, and earthen and geomembrane?

[02:09:54] Speaker 08:
At JA 1112, there are the percentages in a chart of the different types of liners, both for impoundments and landfills.

[02:10:03] Speaker 08:
impoundments with two-foot liners have one quarter of the chance, one quarter of the propensity or the chance to leak that online impoundments do.

[02:10:15] Speaker 08:
It's 9% versus the 36%.

[02:10:17] Speaker 08:
In fact, online impoundments have a one quarter lower propensity to leak than even online landfills.

[02:10:28] Speaker 08:
So we would say that that is not

[02:10:31] Speaker 08:
in any way, or at least EPA's determination that that doesn't lead to a reasonable chance of

[02:10:40] Speaker 08:
negative adverse impacts is clearly supportable, given the deference that EPA has on these technical determinations.

[02:10:48] Speaker 08:
But again, also, and I think as we started this conversation, EPA also determined that those types of facilities, it's often a localized problem, and a localized problem can be dealt with.

[02:11:00] Speaker 08:
And those are exactly the requirements that EPA has put in for facilities with two-foot liners.

[02:11:06] Speaker 05:
Yet, under their arguments... Have you defined reasonable probability somewhere?

[02:11:09] Speaker 05:
Because it looked like, and I could be wrong, it looked to me like in the seismic impact area, 2% was your reasonable probability, and then you've got a 9% and a 36%, and I'm just trying to figure out

[02:11:23] Speaker 05:
what that means.

[02:11:25] Speaker 08:
I don't believe EPA came up with a pure definition for what is reasonable probability.

[02:11:30] Speaker 08:
I mean, you could arguably start with 50 percent, you know, if it's under 50 percent.

[02:11:35] Speaker 05:
You could arguably, but that's not EPA's position.

[02:11:37] Speaker 08:
That's not EPA's position.

[02:11:38] Speaker 08:
It's case by case, and it's also what the impacts are.

[02:11:43] Speaker 08:
The seismic regulations have the potential impact of the entire impoundment collapse to a catastrophic type of event.

[02:11:51] Speaker 08:
So that, arguably and supportably, is a lower toleration percentage.

[02:11:58] Speaker 05:
I was going to ask, so it could be water.

[02:12:00] Speaker 08:
The difference also, surface water is different than groundwater.

[02:12:03] Speaker 08:
An event that releases coal ash to surface water is a bigger deal than groundwater.

[02:12:09] Speaker 08:
Because groundwater takes a lot more time.

[02:12:11] Speaker 08:
It's a lot slower.

[02:12:13] Speaker 08:
And there's a lot of people, if you have to look at the particular facility, to see if people are actually affected by groundwater.

[02:12:20] Speaker 08:
Surface water people are typically always, always affected.

[02:12:25] Speaker 08:
So it depends on the situation.

[02:12:30] Speaker 08:
As to the two-foot liner, there's no evidence in the record that I'm aware of that by dealing, by applying these immediate remedial measures, which again petitioners agree will address the problem, that in fact they won't address the problem and therefore there won't be a reasonable probability of adverse impacts.

[02:12:53] Speaker 08:
There's no evidence that a single leak will lead to more leaks.

[02:13:00] Speaker 08:
The congressional objective, as stated in section 6902A3, is the conversion of existing dumps to facilities which do not pose a danger to the environment or health.

[02:13:13] Speaker 08:
So again, I'm talking about the second part.

[02:13:16] Speaker 08:
What actions has EPA required to convert those facilities to something that does not threaten public health or the environment?

[02:13:24] Speaker 05:
Can I ask you something about the legacy funds?

[02:13:26] Speaker 05:
Yes.

[02:13:27] Speaker 05:
Who's monitoring that?

[02:13:29] Speaker 05:
Who monitors those to see if they're leaking?

[02:13:32] Speaker 08:
I'm not sure who monitors those.

[02:13:35] Speaker 08:
Nobody does?

[02:13:37] Speaker 08:
To a large extent, under Pre-WIN Act, it's like every other type of facility, it's monitored by the public, it's monitored by the states, through all of the public notice requirements, the website requirements, the submissions to states, and that type of thing.

[02:13:56] Speaker 05:
EPA doesn't require any monitoring.

[02:13:58] Speaker 08:
EPA, I don't believe, does not require any monitoring.

[02:14:07] Speaker 08:
On legacy impoundments, that arguably is a different animal.

[02:14:11] Speaker 08:
It's one of the reasons we wanted to remand with the inactive, because it makes sense.

[02:14:16] Speaker 08:
But I think, Judge Pillard, as you were intimating, this was an area where EPA has effectively said,

[02:14:25] Speaker 08:
pre-win, that it's going to regulate that on a site-specific basis.

[02:14:30] Speaker 08:
It's a lot harder.

[02:14:31] Speaker 08:
It's a lot more resources.

[02:14:32] Speaker 08:
You have to come in, EPA itself, and take these enforcement actions.

[02:14:36] Speaker 08:
It would clearly be easier under the WIN Act to set up some process that would regulate legacy impoundments, just like inactive impoundments.

[02:14:46] Speaker 08:
But EPA has made that determination.

[02:14:48] Speaker 08:
I don't think there's any

[02:14:50] Speaker 08:
significant evidence in the record that that process using 6973, the imminent hazard, and using CERCLA has failed.

[02:14:59] Speaker 03:
Why?

[02:15:00] Speaker 03:
Just looking at the record, I mean I understand it's stepping back and thinking about it in a sort of common sense way, but looking at it on the record, I don't understand why under that argument you wouldn't just look at everything under subtitle G. Is that permissible in your view?

[02:15:20] Speaker 03:
For EPA to look at the unlined active impoundments just under the eminent

[02:15:30] Speaker 08:
I think if ultimately it established – if it had thousands and thousands of employees to apply this beyond this limited subset of facilities, and that established that there was no reasonable probability of adverse impacts because of this army of people to enforce it,

[02:15:52] Speaker 08:
I think the answer would be yes, that's not realistic, and that's why that remedy has been limited in that situation, where again, it's sort of difficult to apply a lot of these standards, which are applied on a regular basis.

[02:16:05] Speaker 08:
I mean, there are weekly inspections that are required on some of the locations, seismic types of requirements, and there's often nobody there at these sites to apply that.

[02:16:13] Speaker 08:
So EPA took a different approach on that.

[02:16:16] Speaker 05:
If you don't have the resources to do the investigating and monitoring,

[02:16:22] Speaker 05:
Well, what's the point of saying you can remand the WIN Act because now you have this authority if you don't have the resources to do it?

[02:16:28] Speaker 08:
Well, that's why the hope is to do most of it through the permit process, through the state permit process, where states would presumably want to... So far states don't have any interest in doing, and you said they certainly don't have an interest in the site, thus far don't have an interest in the site-specific approach.

[02:16:42] Speaker 08:
Well, the states haven't had an interest in applying – in enacting their own regulations to government, yes.

[02:16:51] Speaker 05:
I think they – Well, I thought you said the inquiries from a number of states were just to adopt this rule.

[02:16:55] Speaker 05:
They weren't interested in the site-specific approach.

[02:16:57] Speaker 05:
Did I mishear you?

[02:16:58] Speaker 08:
Those are some of the initial inquiries to get something done quickly.

[02:17:01] Speaker 08:
But I think if –

[02:17:03] Speaker 08:
Mr. Green's clients go to them and say, hey, we can deal with this CCR pile issue pretty easily if you just, you know, cooperate and put in a permit that we have to make certain certifications that this pile will only be here so long, and then we can, which is good for everybody, use more of this coal ash to encapsulate the beneficial uses, which is probably the safest way to deal with

[02:17:29] Speaker 05:
Well, and the statute, though, does say that those state requirements have to be at least as protective as this rule.

[02:17:36] Speaker 05:
Absolutely.

[02:17:38] Speaker 05:
You're not assuming right away that any, if you all agree to come check now and then, that that would be at least as protective as this rule.

[02:17:44] Speaker 08:
I would think that the folks at EPA are certainly smart enough to figure out a way that a pile that's sitting on your manufacturer

[02:17:51] Speaker 08:
and then you go regulate the pile sitting at the utility, that there is a way to figure out that that pile at the utility will be just as safe as the pile at the manufacturer, which would then lead to the benefit that we put this to the safest, disposal is the wrong word because it's not technically disposal, but the safest use of this material, this coal ash, which is encapsulated uses.

[02:18:17] Speaker 03:
Do you see a basis in, is it 6907, to take cost into account?

[02:18:26] Speaker 03:
I mean, I'm just, we really don't.

[02:18:28] Speaker 03:
I don't see a statutory authority for it.

[02:18:31] Speaker 03:
We don't, Your Honor.

[02:18:32] Speaker 03:
I mean, cost is obviously very significant.

[02:18:36] Speaker 03:
Resources are very significant.

[02:18:37] Speaker 03:
I just don't see it.

[02:18:39] Speaker 03:
And you don't either.

[02:18:40] Speaker 08:
No.

[02:18:45] Speaker 08:
Thank you.

[02:18:48] Speaker 01:
Does Mr. Seymour have it?

[02:18:49] Speaker 01:
Okay, why don't you take three minutes?

[02:18:51] Speaker 01:
Thank you, Your Honor.

[02:18:53] Speaker 00:
Your Honor, I'd like to start just by returning to the question that Judge Millett asked me about the leakage rates from... Millett.

[02:19:00] Speaker 02:
Millett, I'm sorry.

[02:19:02] Speaker 00:
I don't care.

[02:19:03] Speaker 00:
Thank you, though.

[02:19:04] Speaker 00:
About the leakage rates from capped facilities.

[02:19:09] Speaker 00:
Having reviewed this further during the break, it's my understanding that

[02:19:14] Speaker 00:
The assumption would be that because there are no free liquids in the facility per the closure performance standard, that there would not be leakage.

[02:19:24] Speaker 00:
The reason I was initially confused by your question, Your Honor, is because I do look at a lot of these sites in the field that have been capped, and I've never seen one that doesn't leak.

[02:19:30] Speaker 00:
So there's a difference between what the rule requires in theory and what's actually happening in practice in the field.

[02:19:37] Speaker 00:
In terms of the issue of whether groundwater pollution is an adverse effect, EPA itself found in the preamble to the rulemaking that groundwater pollution consistent with a, quote, long-standing and consistent policy is an adverse effect whether or not it has actually reached any receptors, any drinking water wells or surface water.

[02:20:01] Speaker 00:
even that notwithstanding.

[02:20:02] Speaker 00:
So those percentages in the record concerning harm from groundwater pollution are significant in and of themselves, but that also, those percentages don't take into account the risks of structural failure that result at online impoundments, especially once they start leaking.

[02:20:17] Speaker 00:
EPA found 80 Federal Edge 21371 that without any type of liner system in place, leachate will flow through the unit and into the environment unrestrained.

[02:20:28] Speaker 00:
That's a precipitating effect that then results in major structural failures, such as what happened at the Kingston and Daner sites.

[02:20:36] Speaker 05:
Is there evidence, what is on the record about once a leak starts, the risk that it will

[02:20:44] Speaker 05:
tear open more.

[02:20:45] Speaker 05:
If I think of the above ground swimming pool, it starts leaking, and then within minutes, the whole thing has exploded.

[02:20:52] Speaker 00:
I'm not aware that EPA attempted to quantify that risk in the record, Your Honor.

[02:20:56] Speaker 05:
It's certainly, well, it's an ever-present risk at any site, that either with an unlined... It could be an ever-present risk that's 0.01%, but I'm just trying to have a sense of, is there anything that shows once we've got a leak?

[02:21:10] Speaker 05:
They say if it's lined, it'll be localized.

[02:21:13] Speaker 05:
which to me suggests that if it's not lined, it's the much greater risk of it being broad and uncabined, I guess.

[02:21:23] Speaker 00:
And that's true of clay lined impoundments as well, Your Honor.

[02:21:25] Speaker 00:
EPA found in the rule that once the clay liner is saturated, clay is still, it's dirt, and it's less permeable than other kinds of dirt, but once it gets saturated, it leaks across its surface as well.

[02:21:37] Speaker 00:
And with respect to the distinction between...

[02:21:41] Speaker 03:
Isn't it the case that not all these partially lined are with clay?

[02:21:47] Speaker 03:
Some of the record talks about earth and some of it talks about clay.

[02:21:50] Speaker 03:
I mean, I gather that clay would be the best case, but the data doesn't specify that every one of these earth lined and

[02:22:01] Speaker 03:
not geomembrane line is actually clay lined, is it?

[02:22:05] Speaker 00:
That's certainly true.

[02:22:06] Speaker 00:
There are all sorts of different liners that have been used over the years, and the specifics around which impoundments are lined with which is still something that requires site-specific investigation, especially for older impoundments.

[02:22:19] Speaker 00:
With respect to the

[02:22:21] Speaker 00:
The distinction between new and existing impoundments that EPA made here, that's not a distinction that Congress authorized.

[02:22:31] Speaker 00:
Congress, certainly in environmental statutes very commonly, in statutes like the Clean Air Act, Clean Water Act, will distinguish between a new source and an existing source, but that distinction's not present in subtitle D.

[02:22:45] Speaker 00:
It's also, in terms of distinguishing between inactive versus active, the colloquy that Your Honors had earlier concerning industry's claim on the inactive impoundments should also take into account that 42 USC 6945A, which is the provision within RCRA that prohibits open dumping, applies both to solid waste management practices and disposals.

[02:23:09] Speaker 00:
So the prohibition against open dumping has always been broader than

[02:23:13] Speaker 00:
Disposal, an EPA's regulatory definition of open dumps going back to 1979 under 40 CFR 257.2, EPA has since 1979 regulated open dumps that are defined as facilities for the disposal of solid waste without regard to whether they are actively accepting new waste or not.

[02:23:35] Speaker 00:
EPA under 42 USC 6945B is required to publish inventories of open dumps that the states are then required to take action on.

[02:23:45] Speaker 00:
And since the 1980s, EPA has included regularly inactive sites on that inventory.

[02:23:52] Speaker 00:
So the authority under subtitle D is very clear and specific.

[02:23:56] Speaker 00:
It applies to both inactive and active sites.

[02:23:59] Speaker 00:
And EPA's attempt to carve out the so-called legacy sites that hasn't been adequately substantiated in the record and is not lawful.

[02:24:08] Speaker 01:
All right.

[02:24:08] Speaker 01:
We've reached the issue after listening for two and a half hours whether we ought to hold our fire.

[02:24:15] Speaker 01:
So you go first on that.

[02:24:17] Speaker 00:
OK.

[02:24:17] Speaker 00:
Thank you, Your Honor.

[02:24:27] Speaker 00:
Well, I think Your Honor's questions have indicated a clear concern with remand in this case.

[02:24:35] Speaker 00:
And at this point, the issues in this case have been fully briefed and right for a decision since September of 2016.

[02:24:45] Speaker 00:
And there's simply a judicial economy because of where we are now.

[02:24:49] Speaker 00:
We've gone through this process of appearing here before the court for oral argument.

[02:24:53] Speaker 00:
There's no judicial economy savings from a remand.

[02:24:56] Speaker 05:
Are you talking just about your legacy pond issue, or all the issues they want remanded?

[02:25:00] Speaker 00:
I'm talking about all the issues, Your Honor.

[02:25:02] Speaker 05:
What do you care about the industry remand?

[02:25:05] Speaker 05:
You haven't challenged those provisions.

[02:25:08] Speaker 05:
The rules stay in effect, and the agency could always reconsider remand or not.

[02:25:12] Speaker 05:
So I don't understand what's your interest, aside legacy pond, what interest do you have in opposing remand on the industry issues?

[02:25:22] Speaker 05:
well my clients did intervene on some of those claims your honor to seek to defend the rule and we would be harmed and my clients are national organizations with members who live downstream from power plants and how are you going to be harmed the rule is staying in effect during the remand and EPA has a statutory obligation to revisit this regulation about now or within a few months anyhow so i just don't understand

[02:25:46] Speaker 05:
your interest in opposing remand.

[02:25:50] Speaker 00:
Well, I think it's especially acute here because of the nascent implementation of the WIN Act.

[02:25:55] Speaker 00:
As Mr. Rosen said during his argument, states are waiting on the outcome of this case to clarify the lawfulness of this rule.

[02:26:02] Speaker 00:
I didn't hear anybody say that.

[02:26:03] Speaker 00:
Mr. Rosen in his argument said that states are waiting for clarification from this case in order to in order to know whether they want to move forward with specific specific applications He wants the remand so he can't mean that he wants us to rule because states are writing he wants the remand

[02:26:19] Speaker 00:
I understand that, Your Honor, but what I'm saying is that states and the public, there's a strong public interest in finality around these issues.

[02:26:29] Speaker 00:
It would be a very inefficient process for... For the other than final, right?

[02:26:32] Speaker 05:
Even if we decide it, they can be reconsidering while we're deciding, and if we say, whatever we say, they can keep reconsidering.

[02:26:39] Speaker 00:
That's certainly true, Your Honor, but with respect to the legal issues in this case, there's no reason for the court to hold off on deciding those questions that are properly before it and right for decision.

[02:26:51] Speaker 00:
The lawfulness of this rule will bear heavily on any actions taken by states to develop new policies, any actions taken by states to implement permit programs or consider whether to propose permit programs.

[02:27:08] Speaker 00:
And my clients are harmed by that, Your Honor, because they want to participate in those processes.

[02:27:12] Speaker 00:
They want to see the harms from coal ash impoundments, some of which have been addressed by the current rules, some of which have not.

[02:27:21] Speaker 00:
They want to see those fully addressed.

[02:27:23] Speaker 00:
And any delay or weakening of the rule will harm members of the public, including members of my clients who live downstream from these

[02:27:33] Speaker 05:
I don't understand the delay.

[02:27:34] Speaker 05:
There's no delay, because the rule stays in effect.

[02:27:36] Speaker 05:
And if a new rule comes, then you'll challenge that, presumably, that you think is harmful.

[02:27:41] Speaker 03:
So if it weren't held in abeyance, if the rule were not held in abeyance, but those challenges were remanded, where EPA and the industry petitioners on those challenges, where they also remand that, your challenges could go forward.

[02:27:57] Speaker 03:
And the question is, are you fighting that?

[02:28:00] Speaker 00:
With respect to the scope of the coverage of the rule, both with regard to inactive impoundments more broadly and legacy impoundments in particular, the ones we've challenged in this case, our clients would be harmed by a remand.

[02:28:12] Speaker 03:
So issue number one, as you all have teed them up, the question of a statutory authority would clearly need to be answered for your challenges to go ahead.

[02:28:18] Speaker 03:
That's correct.

[02:28:19] Speaker 03:
But the other ones, two, three.

[02:28:21] Speaker 00:
But with respect to claims like the alternative groundwater standards claim, we think that the law is clear that under Subtitle D, that kind of power plant designed standard that is inherently site-specific, that's problematic for us because it would give the utilities great discretion to decide what sort of environmental standards would apply at their sites.

[02:28:45] Speaker 03:
But that's not the current rule.

[02:28:46] Speaker 03:
You're talking about what they would propose as an alternative.

[02:28:49] Speaker 00:
What is the subject of, the proposed subject of reconsideration?

[02:28:52] Speaker 00:
Yes, Your Honor.

[02:28:54] Speaker 03:
But on reconsideration, you would have an opportunity to comment on any new rule.

[02:29:00] Speaker 00:
That is true, but if a decision from this court upholding the rule were accepted, then that would obviously, the legal issues decided in this case,

[02:29:10] Speaker 00:
would obviously bear on any future rulemaking.

[02:29:13] Speaker 00:
And in addition, it would help shore up the rule as it's being implemented now and will continue to be for the foreseeable future as a self implementing rule on the ground.

[02:29:24] Speaker 00:
And as we point out in our supplemental brief concerning the WIN Act, Your Honor, there's no certainty around

[02:29:31] Speaker 00:
any future EPA rulemaking here.

[02:29:36] Speaker 00:
EPA itself has said that they are not able to say now whether they will make any changes to the rule whatsoever.

[02:29:45] Speaker 00:
And EPA, the timeframe that they've offered for the court, it's a proposed timeframe, but as we all know, agency timeframes very commonly get delayed and pushed back.

[02:29:57] Speaker 00:
And with respect to

[02:30:01] Speaker 00:
With respect to the issues that are the subject of potential rulemaking, it could end up prolonging this litigation for many years to come.

[02:30:08] Speaker 00:
And that would prejudice my clients, just the mere fact that at this late hour, after we thought that we had been on the verge of finally having a coal ash rule that would be judged by its lawfulness, to have that delayed by several years would in and of itself be a prejudice to my clients.

[02:30:29] Speaker 01:
All right.

[02:30:30] Speaker 01:
Thank you.

[02:30:32] Speaker 01:
Mr. Rosen.

[02:30:38] Speaker 08:
I know we've been over some of this before, and putting the legacy of the impoundments aside for just a few seconds, there is no prejudice to environmental petitioners as to all of the industry issues.

[02:30:52] Speaker 08:
They filed intervener briefs supporting the EPA, and the goal was to keep these provisions in place.

[02:30:58] Speaker 08:
These provisions will be in place, and they will be applied.

[02:31:02] Speaker 08:
The only thing that can happen to environmental petitioners

[02:31:05] Speaker 08:
claims or intervener positions on that is they could lose.

[02:31:10] Speaker 08:
If this court is by provisions that we've asked to remand that industry has raised, let's say the court says on two of those they agree with industry.

[02:31:19] Speaker 08:
Well, those would be vacated.

[02:31:21] Speaker 08:
But as we stand here today with our petition to vacate, our motion to vacate, no objection from industry, none of those provisions will be vacated.

[02:31:30] Speaker 08:
All of them will apply.

[02:31:31] Speaker 08:
And just as the normal regulatory process, any agency can change those in the future.

[02:31:37] Speaker 03:
I guess I'm imagining that they are concerned, they bring a suit to enforce something at a particular site, they go into court, and you and our industry come in and say, oh, well, don't really enforce that, that's under reconsideration.

[02:31:55] Speaker 08:
They can enforce it, EPA can enforce it, and they can file the same exact citizen suits over every single provision, including any of these remanded provisions.

[02:32:04] Speaker 08:
That PRE-WIN Act is the enforcement mechanism.

[02:32:08] Speaker 08:
These provisions stay in place.

[02:32:10] Speaker 08:
If there's a pile of coal ash sitting at a utility and it's not technically now a beneficial use, they can sue to say that that is an open dump and that's a violation and that facility has to be closed down.

[02:32:26] Speaker 03:
Does it make a difference to the agency's enforcement priorities?

[02:32:33] Speaker 03:
whether it's been sustained or whether it's been voluntarily remanded?

[02:32:40] Speaker 08:
Not that I'm aware of.

[02:32:41] Speaker 08:
They have a statutory obligation to enforce all of the requirements.

[02:32:46] Speaker 03:
Well, but we also know that there's some amount of prosecutorial discretion or enforcement discretion that every agency has and exercises.

[02:32:54] Speaker 03:
And I just wonder, I mean, it's a real question.

[02:32:56] Speaker 03:
I really wonder whether it figures in or whether the position that you're developing for the next round of rulemaking in any event would have the same effect on

[02:33:06] Speaker 03:
I just don't know the answer.

[02:33:09] Speaker 08:
Unfortunately, I don't know the answer either because it is prosecutorial discretion.

[02:33:12] Speaker 08:
But again, the way the statute is written, it gives states and in particular citizens the right to enforce that.

[02:33:18] Speaker 08:
So it should be, the only question should be, what's on the books and is it enforceable?

[02:33:23] Speaker 08:
And that is true for every one of these pre-mend of provisions.

[02:33:26] Speaker 08:
The legacy pond issue is a different issue.

[02:33:30] Speaker 08:
We could certainly see how environmental petitioners would make a case for prejudice there, but it's a bit of a different issue.

[02:33:38] Speaker 08:
It's not inactive impoundments.

[02:33:39] Speaker 08:
Inactive impoundments was the claim there from industry petitioners is you don't have a statutory right to regulate inactive impoundments.

[02:33:50] Speaker 08:
And our role as it stands today says that we do.

[02:33:54] Speaker 08:
As to the legacy impoundments,

[02:33:56] Speaker 08:
EPA has made a policy decision to treat them differently for a number of different reasons, but most typically the absence of a present owner there.

[02:34:07] Speaker 08:
And they are using this alternative enforcement mechanism.

[02:34:11] Speaker 08:
So we believe that they are not prejudiced.

[02:34:14] Speaker 08:
I don't believe, again, any of the 157 damages cases involve a legacy pond.

[02:34:21] Speaker 08:
So it's not like it's prevalent.

[02:34:24] Speaker 08:
more injury is prevalent there in that particular area and we don't see any evidence that the enforcement through 9673 is not working because again we didn't see any damages cases there.

[02:34:36] Speaker 08:
So we do see that as a different issue we recognize that they do have a bit of an argument there but we think that it makes sense to

[02:34:43] Speaker 08:
to remand that issue because it is somewhat intertwined with the inactive issue, and they still will have those protections of 6973 and CERCLA, which have been used for 35 years by EPA to regulate that subset of facilities.

[02:35:02] Speaker 05:
Can I just be clear, when you're asked for remand again, as I understood your brief, it's not that you have

[02:35:09] Speaker 05:
EPA isn't purporting to have made any determination on those claims.

[02:35:13] Speaker 05:
It just wants to take the industry claims, most of them, back to look at again.

[02:35:18] Speaker 05:
Why is it only, other than the legacy one, which they don't want back, why is it only industry ones?

[02:35:25] Speaker 05:
The second time this month, the only thing EPA wants remanded to it is industry claims.

[02:35:30] Speaker 08:
But it says it hasn't looked at the merits.

[02:35:33] Speaker 08:
I think there's a couple of reasons like that.

[02:35:35] Speaker 08:
Industry is the only one who filed petitions for reconsideration, for administrative reconsideration.

[02:35:40] Speaker 08:
That started the process of evaluating their claims for reconsideration, and EPA ultimately made a determination.

[02:35:47] Speaker 08:
We thank the court for giving us an extra five weeks to refine that to identify the specific issues that EPA is looking at to reconsider.

[02:35:57] Speaker 08:
Environmental officials didn't ask for reconsideration of any issues.

[02:36:02] Speaker 05:
But that's no limitation on your ability to ask for remanded on a number of their issues, including the online

[02:36:07] Speaker 05:
impoundments in the type of liner.

[02:36:10] Speaker 05:
Your findings involve concerns about enforceability and tailoring and site-specific, and so I'm just wondering why the EPA itself doesn't seem to want to reconsider concerns raised by the environmental group.

[02:36:24] Speaker 08:
I think at this point, EPA finds that that approach is adequate because it didn't find reasonable probability of harm as long as all of its regulations are enforced as they are established.

[02:36:38] Speaker 08:
But I'm sure in a process where you go back and reconsider and reevaluate, and particularly when you reevaluate from a different potential

[02:36:49] Speaker 08:
entirely different regulatory approach, which involves a permit system.

[02:36:54] Speaker 08:
States will make proposals about permits.

[02:36:56] Speaker 08:
States may make proposals about some of these environmental issues, about how they can be handled on a more site-specific basis.

[02:37:02] Speaker 08:
And EPA might include that in its reconsideration process.

[02:37:06] Speaker 08:
But those are before this Court for remand.

[02:37:09] Speaker 05:
And does EPA feel like it has enforcement staff that it can dedicate to this statute?

[02:37:14] Speaker 05:
Because I guess for quite some time, this is an ongoing problem.

[02:37:18] Speaker 05:
EPA has been short on enforcement staff.

[02:37:21] Speaker 05:
And so now you've got a whole new enforcement

[02:37:25] Speaker 05:
Scheme here.

[02:37:27] Speaker 08:
Enforcement resources are always a problem.

[02:37:30] Speaker 08:
We certainly concede that.

[02:37:33] Speaker 08:
I don't know the answer to that because this is a new phenomenon under the WNAC and its ability to marshal enforcement resources along those lines.

[02:37:42] Speaker 08:
But I think what they're looking at is the first step before we go out and enforce these provisions is to establish the site-specific provisions that can then be enforced.

[02:37:53] Speaker 08:
And I think the hope is

[02:37:54] Speaker 08:
that they'll make more use of the state and or EPA permit system to do that.

[02:38:03] Speaker 01:
All right.

[02:38:03] Speaker 08:
Thank you.

[02:38:04] Speaker 01:
Thank you.

[02:38:07] Speaker 01:
Okay, why don't you take a minute if you want.

[02:38:12] Speaker 05:
Can I ask you a quick fact question before you start?

[02:38:14] Speaker 02:
Yes, Your Honor.

[02:38:14] Speaker 05:
Is the public able to monitor for subsurface

[02:38:21] Speaker 05:
leakage into subsurface groundwater as opposed to surface groundwater?

[02:38:25] Speaker 05:
Does the public have an ability to do that on its own?

[02:38:28] Speaker 00:
Well, the public can certainly, if there are wells in the vicinity of a power plant site, the public could take samples from that wells, given permission from the owners of the properties.

[02:38:39] Speaker 00:
But in terms of groundwater monitoring beyond that, the public doesn't have access.

[02:38:44] Speaker 00:
And that's actually another point that goes to the legacy impoundments issue, is that in the absence of the rule applying,

[02:38:51] Speaker 00:
there will be no groundwater monitoring in most places, in most states, even now, after the federal rule has come out.

[02:39:00] Speaker 00:
And some states have begun to develop and implement new programs.

[02:39:04] Speaker 00:
In a lot of states, there still isn't groundwater monitoring at legacy sites in the absence of the federal rule applying.

[02:39:10] Speaker 00:
So the data is not available.

[02:39:11] Speaker 00:
And this is something the EPA acknowledged in the preamble to this rule, is that while there are 157 damage cases in the record,

[02:39:20] Speaker 00:
With a more universal rollout of groundwater monitoring, we are certain to find many, many more, especially at online impoundment sites.

[02:39:31] Speaker 00:
The one point I wanted to mention on rebuttal with respect to the remand issue is just to go back to the issue about enforcement under the Winn Act.

[02:39:41] Speaker 00:
For one thing, EPA has not exercised to our knowledge that enforcement authority, even though the WIN Act has now been in effect for 11 months.

[02:39:50] Speaker 00:
And it is very much, as Mr. Rosen alluded to, a discretionary issue.

[02:39:57] Speaker 00:
EPA does have the authority under the WIN Act to enforce, but the idea that EPA would be able to, in the budgetary climate that we are in now, that EPA would be able to hire and train and send out inspectors to every state where there are coal ash impoundments is simply not, it's pure speculation, it's simply not something that would be the least bit reliable.

[02:40:22] Speaker 00:
And enforcement is not the same thing as oversight pursuant to clear across-the-board standards that are reviewed by a permitting authority prior to their implementation.

[02:40:34] Speaker 00:
So from our standpoint, as a practical matter, the COALASH rule remains self-implementing nationally and lesser until there are states that come forward and have their programs approved under the WIN Act or until Congress appropriates

[02:40:51] Speaker 00:
funds for federal programs, but as was discussed earlier, there's no current prospect of that occurring.

[02:40:57] Speaker 00:
So from our perspective, the COLAHS rule, as it is today, will remain in effect nationwide for the foreseeable future.

[02:41:04] Speaker 00:
There is some possibility of EPA enforcement in some states, but there's no realistic possibility that EPA is going to start enforcing this rule at every site across the country.

[02:41:16] Speaker 00:
If Your Honors have no further questions.

[02:41:20] Speaker 00:
Thank you.

[02:41:20] Speaker 00:
Thank you.