[00:00:16] Speaker 05:
right now for responding to us.

[00:01:10] Speaker 11:
Good morning.

[00:01:11] Speaker 06:
Good morning.

[00:01:12] Speaker 06:
May it please the court, Stephen Wu for the state petitioners.

[00:01:14] Speaker 06:
I'd like to reserve two minutes for rebuttal.

[00:01:17] Speaker 06:
My argument will focus on the statutory authority issues in this case.

[00:01:20] Speaker 06:
Counsel for the community petitioners, Emma Chooz, will focus on the arbitrary and capricious standard and will share some of her time with counsel for the steelworkers, Susan Ecker.

[00:01:28] Speaker 06:
We're happy to answer any questions this court may have on any set issues.

[00:01:32] Speaker 11:
All right, so one of the issues is raised by the

[00:01:38] Speaker 11:
government and by one of the intervener briefs is that the type of thing that has been done with the delay rule has been done before.

[00:01:48] Speaker 11:
What's your response?

[00:01:50] Speaker 06:
It has not been done in precisely this way, and when it has been, this court has repeatedly held that the agency has acted outside the scope of its statutory authority.

[00:01:59] Speaker 06:
What the agency has done here is to... What case have we held that?

[00:02:03] Speaker 06:
Well, there's two cases we rely on principally.

[00:02:05] Speaker 06:
One is NRDC versus Riley, and the other is this court's recent decision in Clean Air Council versus Pruitt.

[00:02:11] Speaker 06:
And what is critical about both of those cases, and the distinguishing factor for this case as well, is that EPA relied exclusively on its pending agency reconsideration

[00:02:20] Speaker 06:
as the basis for a delay in this case.

[00:02:23] Speaker 06:
And what section 307, which is one of the prohibitions here, makes clear

[00:02:26] Speaker 06:
is that when the agency cites a pending reconsideration, its authority is limited to a single three-month delay.

[00:02:33] Speaker 08:
And here, the 20-month delay nearly- I want to ask you about Section 307.

[00:02:37] Speaker 08:
Section 307 was enacted before 7412 R7, right?

[00:02:44] Speaker 08:
That's correct.

[00:02:45] Speaker 08:
So if you look at Section 307, I'd like you to get the language in front of you.

[00:02:51] Speaker 08:
307, so that's Section 7607 D1.

[00:02:57] Speaker 08:
It says that this subsection applies to and then it lists a series of categories from A to V as in Victor.

[00:03:10] Speaker 08:
And under C, it lists several different types of promulgations and it has some promulgations under 7412, but not 7412R.

[00:03:27] Speaker 08:
So as best as I can see, Section 307D doesn't apply to actions, rulemakings under 7412R at all.

[00:03:41] Speaker 06:
Well, I have two responses to that.

[00:03:43] Speaker 06:
One is we have a separate argument, which is independent, that 112R7 itself doesn't authorize this delay.

[00:03:49] Speaker 11:
Do you agree with

[00:03:52] Speaker 06:
We do not we think that the section 307 prohibition does apply to 112 our seven promulgations and part of that authority comes from EPA itself EPA in both the proposal for this rule and the final delay rule expressly relied on 307 as a source for its authority in fact when it proposed the rule they did

[00:04:14] Speaker 06:
Well, that's correct.

[00:04:15] Speaker 06:
But if they are wrong, that is an important basis for saying that 307, if 307 does not even provide the basis for authority under this rule, that removes that basis for the agency's justification.

[00:04:25] Speaker 08:
I mean, the only thing that I can see how it would work would be under V. There's a catch-all that says, such other actions as the administrator may determine.

[00:04:35] Speaker 08:
That wasn't cited by anybody in the briefing other than, I think, the Chamber of Commerce in their brief.

[00:04:43] Speaker 08:
And then you or one of the petitioners came back and replied and said, no, you can't use V because they were trying to use it as authority for the stay.

[00:04:55] Speaker 08:
And you were saying, no, V can't be used.

[00:04:59] Speaker 08:
But my point is that you're trying to use D7.

[00:05:05] Speaker 08:
to say that the stay can't be longer than three months, but if D1 says that D7 doesn't apply to this case, then your D7 argument is substantially weakened, if not eliminated.

[00:05:22] Speaker 06:
That might be right.

[00:05:24] Speaker 06:
I mean, I will say I think part of the assumption for many of the parties, because EPA itself relied on 307 as affirmative authority for the rule, that it was then fair to impose the limitations from that section on EPA's authority.

[00:05:36] Speaker 06:
And here the plain language of 307D7B is quite clear, as this court recently said in Clean Air Council,

[00:05:42] Speaker 06:
It says that the agency points to a pending reconsideration and makes no other affirmative fact findings, that it cannot exceed the three-month delay period that is the only period of delay that that statute authorizes.

[00:05:53] Speaker 09:
But I have always thought it's Administrative Law 101 that an agency can amend a prior rule by notice and comment rulemaking, that an effective date or a compliance date is part of a rule,

[00:06:11] Speaker 09:
Therefore, connecting those two things, an agency can always amend an effective date or compliance date in a prior rule by using notice and comment rulemaking.

[00:06:22] Speaker 09:
And I think Clean Air Council supports that, and I think a lot of cases support that.

[00:06:26] Speaker 09:
And to Judge Rogers' question, I think the Obama administration did the same thing on new source review when it came in in 2009.

[00:06:35] Speaker 09:
It just seems pretty basic that you can use notice and comment rulemaking to change part of the rule and the effective date or compliance dates part of the rule.

[00:06:44] Speaker 06:
Why is that wrong?

[00:06:45] Speaker 06:
Well, that might be true in general, except for the specific way in which EPA proceeded with the delay here.

[00:06:51] Speaker 06:
I mean, if the agency were to rely on general substantive rulemaking authority, it is true.

[00:06:55] Speaker 06:
They could use that authority to change things, including the effective date.

[00:06:58] Speaker 06:
But 307's prohibition is quite narrow and targeted to what EPA did here, which the point- That would mean-

[00:07:04] Speaker 09:
I'm sorry to interrupt, but that would mean, I think, that EPA could never change the prior rules effective date or compliance date except through 307, which would mean EPA would be in the position of rescinding an entire rule

[00:07:21] Speaker 09:
when they may not want to do that, or not changing the effective date or compliance date at all, which may create a lot of problems.

[00:07:29] Speaker 09:
Why should they be in that all or nothing box?

[00:07:32] Speaker 06:
I think our argument here is quite a bit narrower.

[00:07:34] Speaker 06:
The argument here is that when the agency points only to the reconsideration, that's the factor that 307 says the agency cannot do.

[00:07:40] Speaker 06:
If it has substantive authority to regulate, if, for instance, they decided to change the underlying substantive rules, or they made the factual findings that 112R7 contemplates as the basis for amending the effective date,

[00:07:51] Speaker 06:
which they also did not do here, that might be different.

[00:07:54] Speaker 06:
But what 307 does not allow is for the agency to use the fact of a reconsideration alone, and that is the only basis cited in the delay rule, as a basis for extending or postponing the effectiveness of the rule.

[00:08:05] Speaker 09:
I guess I'm not understanding why that would be the carve-out, because they might want to change the effective date or compliance date because they learn that it's going to be too hard to meet.

[00:08:15] Speaker 09:
or they might want to change it because, as in this case, they're concerned that some of the

[00:08:23] Speaker 09:
premises on which the original rule rested may not be accurate, or they may just have a different view of the policy balance about how to strike that.

[00:08:32] Speaker 06:
But those are precisely the circumstances that 307 addresses.

[00:08:35] Speaker 06:
I mean, to take a step back, the reconsideration contemplated by 307 arises when somebody raises new facts, not before the agency.

[00:08:43] Speaker 06:
But you don't need notice and comment for 307.

[00:08:46] Speaker 06:
You don't need it, but the reconsideration that comes up is when there's something that comes up before the agency that is of central importance to the outcome of the rule.

[00:08:54] Speaker 06:
And even in that circumstance, Congress was very clear that what the agency can do in that period is a 90-day delay.

[00:09:01] Speaker 06:
And that is it.

[00:09:02] Speaker 06:
And the language in 307 is not limited to administrative stays done without notice and comment.

[00:09:07] Speaker 06:
It speaks broadly about the use of the reconsideration at all and broadly prohibits any action by the agency to delay the rule past the 90-day period.

[00:09:15] Speaker 08:
What if the rule was promulgated and it says that it's going to go in effect in two years and then someone says that's really too long and it should be one year and the EPA agreed with that and wanted to move the effective date up?

[00:09:35] Speaker 08:
Would they have authority to do that?

[00:09:37] Speaker 06:
Well, they wouldn't be barred by 307.

[00:09:38] Speaker 06:
307 refers only to the other direction.

[00:09:41] Speaker 06:
If you're going to either postpone the effectiveness of a rule or a stay of rule.

[00:09:44] Speaker 08:
What authority would they be able to use to move the date up?

[00:09:47] Speaker 06:
At that point, I assume they would rely on their substantive authority, and they would not be barred by the separate prohibition.

[00:09:53] Speaker 08:
They rely on 74-12-R7?

[00:09:57] Speaker 06:
Yes.

[00:09:57] Speaker 06:
If it were for the program at issue here, they would rely on 112-R7.

[00:10:01] Speaker 06:
They would make factual findings that say, for example, that we revisit our conclusion that the industry can comply on this schedule, and we think they can comply faster.

[00:10:10] Speaker 08:
So they do have authority under 112R7 to move the data up, but they don't have authority to move it back?

[00:10:18] Speaker 06:
Well, they don't have authority, and I want to make this really clear, they don't have authority to move it back simply because somebody has raised factors that trigger a reconsideration.

[00:10:26] Speaker 06:
And that is, again, the distinguishing and unique factor here.

[00:10:29] Speaker 06:
If you look at the delay rule in this case, what EPA says over and over again is not that they've made any factual findings that support this.

[00:10:36] Speaker 06:
Instead, what they quote repeatedly are the arguments that are made by the reconsideration petitions and say that EPA needs this 20-month delay so that they can think about those factors and complete the reconsideration process.

[00:10:48] Speaker 06:
And that is precisely the narrow circumstance that 307 prohibits.

[00:10:53] Speaker 09:
And they say quite a bit more than that, as you're aware, but I know you're summarizing what they're saying, but they say that they've become aware of potential safety concerns.

[00:11:03] Speaker 09:
That's something they stress, that release of some of this information could actually make it more dangerous, more harmful.

[00:11:13] Speaker 06:
Well, I would disagree with that.

[00:11:14] Speaker 06:
I mean, EPA is actually very careful.

[00:11:16] Speaker 09:
You do, but they're the agency, and it's on that question

[00:11:22] Speaker 09:
Don't aren't they allowed to say we were originally going to require this by a certain date.

[00:11:30] Speaker 09:
people have raised significant safety concerns that information out there could be used by terrorists or others to cause harm and we want to make sure before we cause that consequence that we know what we're doing here.

[00:11:44] Speaker 09:
But I have two responses to that.

[00:11:46] Speaker 09:
Just several things, but that's one that's important.

[00:11:48] Speaker 06:
Well, I have two responses to that.

[00:11:49] Speaker 06:
One is that the agency actually did not stand behind any of those findings.

[00:11:52] Speaker 06:
What it said in its delay rule was it doesn't concede there are any security harms, it does not

[00:11:57] Speaker 06:
predict that the conclusion of reconsideration will lead to a five-statement only to refer to the arguments made by the reconsideration petitioners.

[00:12:04] Speaker 06:
And the second point is because all they're doing is pointing to the arguments.

[00:12:07] Speaker 09:
But it would seem, this is my point in the arbitrary and capricious argument, just think about good government here, judges do this too, which is we issue a decision, we're pretty certain about it.

[00:12:18] Speaker 09:
And then someone raises something and says, actually, this, that, and the other thing, and we might have some more doubts about it.

[00:12:23] Speaker 09:
So to an agency.

[00:12:25] Speaker 09:
And we want to reconsider that and think about it anew.

[00:12:28] Speaker 09:
We're not sure that our original decision was wrong, but we have doubts that we want to explore again and go back.

[00:12:35] Speaker 09:
And it would seem like that's just good government for an agency when it's presented with

[00:12:40] Speaker 09:
things that might be different from what they had assumed to think about that.

[00:12:46] Speaker 06:
And 307 deals with exactly the situation.

[00:12:48] Speaker 06:
What it says the agency can do there is to initiate a reconsideration proceeding.

[00:12:52] Speaker 06:
And there's no question here that they can complete that reconsideration on whatever timeline they want.

[00:12:56] Speaker 06:
And then they have the authority to impose a 90-day stay, but not more.

[00:13:00] Speaker 06:
And Congress was very clear when it put this provision into the statute that it intended this 90-day period to be the time and the limited time that the agency could defer the effectiveness of a rule.

[00:13:09] Speaker 09:
But I guess this gets back to the original point.

[00:13:12] Speaker 09:
They certainly thought the agency unilaterally was limited to that in that context.

[00:13:18] Speaker 09:
But is there any indication that they were saying that you can't use notice and comment rulemaking to change the effective date or compliance date in a rule?

[00:13:27] Speaker 06:
Yeah, I mean, there's a couple of indications.

[00:13:28] Speaker 06:
One is that the statute doesn't actually say it is limited to actions by the administrator done without notice in common.

[00:13:34] Speaker 06:
It refers generally to actions by the administrator.

[00:13:37] Speaker 06:
And I think emphasizing the breadth of that prohibition is that the statute also prohibits courts from issuing stays past the three-month period that's provided there.

[00:13:45] Speaker 06:
And so the plainest reading of the statute is that it says that neither the executive nor the courts... On the EPA, I mean, you have 705 there.

[00:13:53] Speaker 06:
That's correct, but EPA has not relied on the 705.

[00:13:55] Speaker 09:
No, I'm just saying, to your point about courts, 705 arguably is outside the scope of that provision, too.

[00:14:01] Speaker 06:
705 is outside the scope of that provision.

[00:14:03] Speaker 06:
EPA did not rely upon it here and did not satisfy the factors that would be needed for a 705 stay.

[00:14:08] Speaker 06:
And that only goes to emphasize the narrow, what they are narrowly allowed to do under the 307 provision.

[00:14:15] Speaker 06:
I'd like to very briefly talk about 112R7, which is our separate statutory argument, if I may.

[00:14:20] Speaker 06:
112R7 requires that effective dates under the risk management program be designed to assure compliance with the program's requirements as expeditiously as practicable.

[00:14:29] Speaker 06:
And this imposes an independent barrier on what EPA has done here.

[00:14:33] Speaker 06:
The delay rule postpones and sets back the effective dates by nearly two years.

[00:14:37] Speaker 06:
And it violates 112R7 because it excuses compliance instead of assuring compliance.

[00:14:42] Speaker 06:
And it does so on a substantial two-year delay instead of achieving compliance as expeditiously as practicable.

[00:14:47] Speaker 09:
So on the word practicable there, that's a classic word of agency discretion.

[00:14:54] Speaker 09:
So doesn't this argument really merge with the arbitrary and capricious argument in many respects, in other words?

[00:15:00] Speaker 09:
Whether it was practical is also, in essence, whether it was reasonable, not arbitrary, and capricious to delay it by this much, or am I missing something between?

[00:15:09] Speaker 06:
No, it does.

[00:15:09] Speaker 06:
And to be clear, we do argue that even if you think this is a general reasonableness standard, EPA has violated that.

[00:15:15] Speaker 09:
My argument here is... You think practical adds something.

[00:15:18] Speaker 06:
Yeah, exactly.

[00:15:19] Speaker 06:
My argument here is that 112R7 limits the types of reasons that EPA can rely upon.

[00:15:23] Speaker 06:
And we know that both from the text of the statute, what is practicable is what is necessary to achieve compliance with the rule of standards.

[00:15:30] Speaker 06:
And what EPA relied on here were not findings about what the agency could, what the industry could or could not do, but instead its desire to complete a reconsideration producing, which is nowhere in the statute.

[00:15:41] Speaker 06:
And we know this also in part because when Congress was considering

[00:15:44] Speaker 09:
If the original rule had set compliance, effective dates and compliance dates in the original rule, take all the dates in the original rule that were two years later than what were listed in the original rule, would that original rule have been unlawful?

[00:16:04] Speaker 06:
Well, it would have been subject to challenge because the setting of the compliance dates in the original rule would have been subject to the requirement that they be done to assure compliance as expeditiously as practicable.

[00:16:14] Speaker 06:
And that was one of the debates that the parties had during the notice and comment period for the amendments.

[00:16:19] Speaker 06:
And I would say another reason we know that the practicability language is about industry compliance is that EPA itself interpreted it that way in the amendments.

[00:16:27] Speaker 06:
They went through many different types of requirements, and for each of these requirements set different compliance deadlines based upon their findings about the steps the industry would need to undertake in order to achieve that on a timely basis.

[00:16:38] Speaker 09:
So your argument here, if I understand it, is it needs to be focused solely on

[00:16:44] Speaker 09:
maybe solely too strong, but primarily on whether the regulated entity can meet the deadline.

[00:16:51] Speaker 06:
That is correct.

[00:16:52] Speaker 06:
And Congress, when it enacted 112R7, focused on those factors as well.

[00:16:56] Speaker 06:
In a footnote in our brief, we quote the paragraph in the Senate report.

[00:17:00] Speaker 06:
where Congress noted, for example, that under this provision, procedural requirements should have quick compliance deadlines so that industry can comply very quickly, while capital improvements, installation of technology, and so on, might take a little bit longer because those take a much longer lead-up period in order to comply.

[00:17:18] Speaker 06:
Thank you.

[00:17:18] Speaker 11:
Thank you.

[00:17:20] Speaker 11:
All right, Council for Community Petitions.

[00:17:26] Speaker 04:
Good morning, may it please the court?

[00:17:28] Speaker 04:
Emma Chuse for Community Petitioners, and I would appreciate one minute for a bottle, please.

[00:17:31] Speaker 04:
I'd like to address a couple of questions from the court to add to my colleague's response and then turn to three reasons why delay rule is arbitrary and capricious.

[00:17:42] Speaker 04:
First, on Judge Wilkins' question, in our reply, page 19, we highlight that EPA itself

[00:17:48] Speaker 04:
cites additional language that applies 76 or 72 this rulemaking.

[00:17:58] Speaker 04:
And that is 7412 R. I think I just left it right there, but it's a provision within 7412 R7 that actually

[00:18:09] Speaker 04:
makes these 112R, I'm sorry, 7412R7E, which treats 112R rules as 112D standards.

[00:18:18] Speaker 04:
JA1649, EPA explains that in its own response to comments.

[00:18:24] Speaker 04:
And so there's no doubt in this case that EPA has used that.

[00:18:27] Speaker 04:
It's already used up its authority for the three-month delay.

[00:18:33] Speaker 04:
Regardless, the clear language and structure of that provision shows an intent of Congress not to allow reconsideration to delay an effective date beyond three months.

[00:18:45] Speaker 04:
On Judge Rogers' question, our understanding is this issue has never been decided by this Court, and of course past errors by an agency don't justify future ones, as this Court held in the Sierra Club 2008 decision.

[00:19:00] Speaker 04:
safety concerns.

[00:19:02] Speaker 09:
But it is a past practice, correct?

[00:19:06] Speaker 04:
We believe there are a few very limited occasions the EPA has attempted to do this.

[00:19:12] Speaker 04:
It's not clear to us that it's ever done it in precisely the same way.

[00:19:15] Speaker 04:
The example that interveners cite, we believe they relied on the EPA.

[00:19:20] Speaker 04:
705, as this court highlights, that is a different provision.

[00:19:24] Speaker 04:
It doesn't allow a state pending reconsideration, but it would allow a state pending review.

[00:19:30] Speaker 04:
It does require a test to be met, and there's no evidence here, similar to Mexico, that anyone would suffer irreparable harm from having these rules be in place while EPA performs its reconsideration process.

[00:19:44] Speaker 04:
So that's really critical, because on the safety concerns point,

[00:19:48] Speaker 04:
They are simply speculations that EPA itself already considered and rejected.

[00:19:55] Speaker 09:
So this is a very different... But can't they evaluate it differently?

[00:19:59] Speaker 09:
And let me frame your part of the argument, I think, is let's assume they do have statutory authority.

[00:20:05] Speaker 09:
You're arguing it's nonetheless arbitrary and capricious, correct?

[00:20:09] Speaker 04:
on top of the glaring statutory violations.

[00:20:11] Speaker 04:
Yes, I understand.

[00:20:12] Speaker 09:
But for your part of the argument, assuming you argue under they have statutory authority, it's nonetheless arbitrary caprices.

[00:20:18] Speaker 09:
And I just want to...

[00:20:20] Speaker 09:
frame it that way for your part of the argument.

[00:20:22] Speaker 09:
It seems to me that the agency or a new agency, a new administration, can come in and say, well, we evaluate those concerns differently.

[00:20:33] Speaker 09:
We assess policy differently.

[00:20:35] Speaker 09:
We have cases.

[00:20:36] Speaker 09:
Chief Judge Garland's case in National Association of Home Builders says it's perfectly appropriate for a new administration to come in and evaluate costs and benefits differently.

[00:20:45] Speaker 09:
to take a fresh look at policy.

[00:20:48] Speaker 09:
And so why can't that happen?

[00:20:50] Speaker 04:
That's not what they're doing here, Your Honor.

[00:20:53] Speaker 04:
They're trying to delay a final rule while they take as long as they like to choose whether or not it might need to change.

[00:21:00] Speaker 04:
They haven't found any error or any security concern.

[00:21:03] Speaker 04:
They have specifically found there is no security risk.

[00:21:05] Speaker 09:
But they've found calls for doubt.

[00:21:09] Speaker 09:
To my explanation earlier about agencies, that happens all the time, it happens with judges.

[00:21:15] Speaker 09:
You do something and then you have some doubts about it and you want to think about it anew.

[00:21:19] Speaker 04:
Their primary reason, Your Honor, and their clear and transparent reason for this is because they already used up the three months the statute allows and they're trying to find another way.

[00:21:29] Speaker 04:
They can't do that whether

[00:21:30] Speaker 04:
within the bounds of their statutory authority.

[00:21:33] Speaker 09:
That's the statutory argument again.

[00:21:34] Speaker 04:
Or the arbitrary and capricious test, because if that were possible, an agency could undo any final rule.

[00:21:40] Speaker 04:
There is no stopping point.

[00:21:41] Speaker 04:
It's a generic excuse to say we might want... But I always thought that was the law.

[00:21:44] Speaker 09:
If they use notice and comment,

[00:21:46] Speaker 09:
they can change the effective date or a compliance date of a rule.

[00:21:50] Speaker 09:
They can rescind the rule, which they haven't done here, but they could change the effective date or compliance date so long as the new effective date or compliance date is otherwise reasonable under all the facts and circumstances.

[00:22:02] Speaker 09:
And here they're saying, we're changing the effective date or compliance date, and they give a laundry list of reasons.

[00:22:08] Speaker 09:
Safety concerns, cost benefit analysis,

[00:22:13] Speaker 09:
That the burdens on state and local there was in coordination with OSHA or small business concerns.

[00:22:21] Speaker 09:
And those may turn out to be not, but they want to look at that a new.

[00:22:27] Speaker 04:
The key there, Your Honor, is it may turn out to be not.

[00:22:29] Speaker 04:
And what they have said now is we've found not even a procedural error.

[00:22:34] Speaker 04:
We'd like to take additional comment.

[00:22:36] Speaker 04:
To the extent there's information people could provide, we'd like to consider it.

[00:22:39] Speaker 04:
But there is no new information.

[00:22:41] Speaker 04:
We've cited in the record J1093 other locations.

[00:22:45] Speaker 04:
They specifically rejected the contentions that West

[00:22:49] Speaker 04:
And its likely cause undermines any part of the decision that the agency made, because in essence, it shows the need for stronger protections for emergency response.

[00:23:03] Speaker 09:
They do say that factors in the record could be assessed differently because of different policy preferences.

[00:23:08] Speaker 09:
So they say that, and then on a security risk, for example, why can't they say, look, we're just not willing to tolerate

[00:23:15] Speaker 09:
the risk that the forced disclosure of information will enhance the security risk.

[00:23:23] Speaker 09:
We want to fix that or look at that more carefully.

[00:23:26] Speaker 09:
What's wrong with that?

[00:23:27] Speaker 04:
Because the bounds of reason decision-making don't allow the agency to act based on speculation.

[00:23:32] Speaker 04:
If in fact it had evidence, it had any finding before the court.

[00:23:36] Speaker 09:
What do you mean by evidence?

[00:23:37] Speaker 09:
Because they had a lot of commenters who said this, who said this was going to be a problem.

[00:23:42] Speaker 04:
the same comments that they previously considered and rejected.

[00:23:45] Speaker 04:
So those commenters did not provide any evidence for their consideration.

[00:23:49] Speaker 04:
By contrast, the record of the chemical disaster role shows substantial evidence of the need to put these in place to reduce deaths, injuries, exposures, shelter in place for millions of Americans, but particularly for workers in communities who... Just as a big picture level here, again, assuming they have statutory authority,

[00:24:09] Speaker 09:
A new administration comes in and they might evaluate a number of things differently at a big picture level.

[00:24:17] Speaker 09:
One, which agency, which level of government should handle something, federal versus state or local.

[00:24:22] Speaker 09:
Two, they could have a different perspective on what actually best enhances safety when they look at something.

[00:24:29] Speaker 09:
And three, they could have a different evaluation of how to strike the balance between costs and benefits.

[00:24:34] Speaker 09:
As Justice Breyer likes to say, no regulation pursues safety at all costs, and they might have a different place to strike it.

[00:24:42] Speaker 09:
And that's what, as Chief Judge Garland wrote in Home Builders, that's what elections are waged on, and new administrations may come and evaluate those things differently.

[00:24:50] Speaker 09:
What is, at a big picture level,

[00:24:52] Speaker 09:
and then connecting at this case, what is wrong with them coming in and doing that, like the Obama administration did in 2009 on New Source Review?

[00:25:00] Speaker 04:
On an issue I believe that was never reviewed or challenged, but on this issue, Your Honor, they may be able to reach that conclusion based on evidence, but they haven't yet.

[00:25:09] Speaker 04:
And they can't delay change in effective date now without making the most basic requirements to provide a reasoned explanation based on the record.

[00:25:17] Speaker 04:
They have the additional hurdle that they're not acting on a blank slate.

[00:25:21] Speaker 04:
EPA carefully considered all the same information, and Fox says,

[00:25:25] Speaker 09:
But you can look differently at the this is my my broader point is you could have the same information and two people could look differently at it and what conclusions to draw about where to strike the balance.

[00:25:36] Speaker 04:
And they haven't yet made any such conclusions, and there is no authority under the statute or the statutory decision-making requirements to say, we might want to change this later, we're not sure how.

[00:25:47] Speaker 04:
We don't know if any of these are valid.

[00:25:48] Speaker 04:
We actually, we recognize that we found the costs are reasonable compared to benefits.

[00:25:53] Speaker 04:
This is a reasonable regulation to save lives, and we actually are not changing any of that.

[00:25:58] Speaker 04:
But we might.

[00:25:59] Speaker 09:
Your approach, though, would force them, or a future agency, because this is going to recur with new administrations in future years,

[00:26:05] Speaker 09:
would force the agency who's in this agency's position of having doubt, would force them to rescind the regulation rather than to call a timeout through notice and comment rulemaking.

[00:26:18] Speaker 09:
And is that really the best way to go, to force them to rescind?

[00:26:21] Speaker 09:
Because they might have, if you told them they can't do this, they might have just rescinded the thing.

[00:26:27] Speaker 09:
And you would have challenged that.

[00:26:29] Speaker 04:
We have challenged this as an effective precision.

[00:26:31] Speaker 04:
For the 20-month time during this exemption, people have no protections.

[00:26:35] Speaker 09:
But my question is, your legal approach to this would force an agency in the future, and this agency, but agencies in the future with future administrations, when they come into office, you have two choices.

[00:26:46] Speaker 09:
You can either continue on with a regulation that you might think is flawed, or at least have doubts about, or you can rescind it, and you can't

[00:26:56] Speaker 09:
by notice and comment do a 12-month change to the compliance date or something like that.

[00:27:01] Speaker 09:
And does that really make sense in terms of good governance?

[00:27:04] Speaker 04:
It makes very good sense, Your Honor, no matter who is in charge at EPA, because otherwise they can literally change that date repeatedly, as EPA says it may do again, for no good reason.

[00:27:15] Speaker 04:
And whether to rescind

[00:27:17] Speaker 04:
and take it off the books or rescind as they've done here and turn it into a piece of paper that provides no protection at all?

[00:27:24] Speaker 09:
For no good reasons, of course, they would dispute that.

[00:27:27] Speaker 09:
They would say there are lots of reasons why they did it, and they may run out of reasons at some point.

[00:27:33] Speaker 04:
As this court has said, instead, you know, the fact that they might put something new in place in the future is not sufficient reason to suspend it.

[00:27:41] Speaker 04:
And that is part of this court's precedent.

[00:27:43] Speaker 04:
State Farm didn't say, oh, they, you know, want to change.

[00:27:47] Speaker 04:
There are many cases where the court has recognized, okay, of course the EPA or the agency could change its mind, but they have to stay within those bounds of recent decision-making or who, there is no finality for any interested,

[00:28:01] Speaker 04:
concerned party.

[00:28:02] Speaker 04:
Congress struck that balance in this act to ensure that even if they were reconsidering, which happens all the time, as this Court is well aware, facilities generally comply.

[00:28:11] Speaker 11:
Well, you don't have to accept the premise to you that it's either or.

[00:28:16] Speaker 11:
For example, to the extent a new administration is concerned about national security and the type of information that can be shared, it could simply amend that provision of the rule.

[00:28:31] Speaker 11:
and whatever else.

[00:28:35] Speaker 11:
And the people in the entities that have petitioned the agency have offered the agency some reasons.

[00:28:45] Speaker 11:
And even if it's just reconsideration, that agency could decide, well, we agree where the previous administration didn't.

[00:28:52] Speaker 11:
You're not arguing that can't happen.

[00:28:55] Speaker 04:
Your Honor, if they did have a good reason to... Well, a reason satisfactory to them.

[00:29:02] Speaker 04:
Sure, for part of the rule that it is essential to our argument that EPA has not provided a reasoned basis to rescind, to create that total for the... In other words, I'm thinking of Congress, you know, all the time.

[00:29:12] Speaker 11:
New senators are elected, new congressmen are elected.

[00:29:15] Speaker 11:
They don't say we disagree with all drug laws.

[00:29:18] Speaker 11:
They amend them in part or in whole, and EPA could do that too.

[00:29:24] Speaker 04:
Yes, and there have been no even speculations made about the training for workers inside the facilities for whom, you know, it's a life and death situation to have that training and they're also protecting the communities.

[00:29:37] Speaker 04:
Safer ways to operate, investigation, ARCMA would have had to have an incident investigation that met the stronger requirements with the deadline.

[00:29:45] Speaker 11:
Let's press a little bit with what Judge Kavanaugh's questions raised.

[00:29:52] Speaker 11:
Is your position then that a new administration coming in must act immediately?

[00:30:01] Speaker 11:
I realize we're a year out here.

[00:30:07] Speaker 11:
So entities come to the agency and say, you know, the last administration got it all wrong, and we want you to make a series of changes

[00:30:21] Speaker 11:
And the agency says you may be right, but this is complicated stuff.

[00:30:27] Speaker 11:
You know, we need some time to look at this.

[00:30:30] Speaker 11:
and 90 days is unrealistic.

[00:30:33] Speaker 11:
And one of the questions I had in my mind was, because it's not only Judge Garland's opinion for this court, it's also Chevron, that recognizes that a new administration comes in and there may be different ways of looking at information.

[00:30:52] Speaker 11:
So when Congress was looking in the 90s at prohibiting delay,

[00:31:01] Speaker 11:
That wasn't, or was it, what Congress was concerned about.

[00:31:07] Speaker 11:
In other words, Congress had passed these laws in the 70s, and EPA had done nothing.

[00:31:13] Speaker 11:
So Congress said, all right, we're going to do these things.

[00:31:18] Speaker 11:
And the 90 amendments came in and said, we're going to designate which of the hazardous pollutants, we're going to give you timetables, et cetera.

[00:31:28] Speaker 11:
So the courts have said,

[00:31:30] Speaker 11:
Yes, the agency has to act, but some of these timetables are, you know, guidelines.

[00:31:42] Speaker 11:
That's not the word we use.

[00:31:43] Speaker 11:
But at any rate, you can't do something in 90 days, or you can't promulgate all of these rules in a year.

[00:31:51] Speaker 11:
So you have a little more time, so long as you show that you are being conscientious in addressing

[00:32:00] Speaker 11:
the matter.

[00:32:01] Speaker 11:
You're not sitting on your hands, because that's what Congress was concerned about when it amended the Act in 1990.

[00:32:08] Speaker 11:
So my question, sort of from a global point of view, is all administrations are bound to follow the law that Congress has written.

[00:32:16] Speaker 11:
And your argument is, look at the plain text.

[00:32:21] Speaker 11:
Here it is.

[00:32:21] Speaker 11:
EPA can't avoid that.

[00:32:25] Speaker 11:
And I think what our questions are pushing at

[00:32:29] Speaker 11:
is this is complicated.

[00:32:32] Speaker 11:
A new administration, they're trying to find out where their offices are, who their assistants are going to be, what experts they're going to rely on, and all that can't happen in 90 days.

[00:32:44] Speaker 11:
So what authority do they have?

[00:32:48] Speaker 11:
And I came up with, well, if they're concerned about national security, just amend that provision and do it quickly.

[00:32:55] Speaker 11:
They have the information.

[00:32:56] Speaker 11:
They can make a decision.

[00:32:57] Speaker 11:
But a lot of this is more complicated.

[00:33:00] Speaker 11:
And I'll give you an example.

[00:33:01] Speaker 11:
When this court initially vacated a rule, and then the agency and the states came to us and said, don't vacate.

[00:33:10] Speaker 11:
Leave it in place.

[00:33:11] Speaker 11:
But direct EPA to act quickly.

[00:33:14] Speaker 11:
And that's what we did.

[00:33:16] Speaker 11:
But it still took the agency, when they were doing matters in an expedited manner, I think it was three years.

[00:33:24] Speaker 11:
And they came back with a new rule.

[00:33:26] Speaker 11:
So I'm trying to understand the real world situation.

[00:33:31] Speaker 11:
I get that Congress was clear.

[00:33:34] Speaker 11:
But was Congress really considering this aspect of a new administration having a different worldview about what should happen in this area?

[00:33:45] Speaker 04:
I think we have to assume Congress was and that it had seen in the real world how EPA could take a lot of time and it issued a very special provision.

[00:33:54] Speaker 04:
It enacted a special provision in D-7B to say for Clean Air Act rules to protect public health.

[00:34:00] Speaker 04:
I think we cite from CASEL, to protect our nation's air, to protect health and safety, and in this instance to try to end the

[00:34:08] Speaker 04:
constant chemical releases, fires, explosions that are happening, and to prevent a future BOPAL in the United States, there's a strong urgency.

[00:34:17] Speaker 04:
And that was a great part why the Congress struck the balance to say,

[00:34:23] Speaker 04:
We want EPA to take good care when it issues a final rule.

[00:34:27] Speaker 04:
And when it does, that rule is going to be final.

[00:34:29] Speaker 04:
And we're going to put constraints around the rulemaking process, judicial review, reconsideration.

[00:34:34] Speaker 04:
We're going to allow them a window to delay.

[00:34:37] Speaker 04:
That's the single three-month authority this Court has recognized, even after the 1990 amendments, when so much was in flux in Riley.

[00:34:45] Speaker 04:
This Court recognized that that provision is meant to tie the agency's hands.

[00:34:50] Speaker 04:
if indeed there's new information which is not present here.

[00:34:54] Speaker 04:
And surely they can take as long as they like to reconsider.

[00:34:58] Speaker 04:
No one is challenging their ability to consider again to decide whether to revise these provisions, but it actually undermines regulatory uncertainty.

[00:35:09] Speaker 04:
It undoes the entire framework for them to be able to use reconsideration alone

[00:35:15] Speaker 04:
And the fact that they might or they might not change the rule someday, they're not sure, maybe in 20 months.

[00:35:22] Speaker 09:
You agree this is a complicated problem.

[00:35:24] Speaker 04:
We do, and that is why EPA has already held two rounds of public comment, eight public hearings consulted across the government with expert, national security expert agencies, as well as OSHA, the Chemical Safety Board.

[00:35:38] Speaker 04:
It issued this in part in response to 7412R6, which sets a deadline for EPA to respond to Chemical Safety Board recommendations, and a site for that

[00:35:50] Speaker 04:
is JA 1091 where it says we found these failures and difficulties and Congress wanted to make sure that after the EPA initiated the program they would learn over time from additional protections needed.

[00:36:03] Speaker 04:
If they are not allowed to

[00:36:07] Speaker 04:
You know, if an agency can take that careful process and that time and reach final resolution based on thousands of accidents, deaths, injuries, exposures, and then it can just turn around with the stroke of a pen and say, we might just take the opposite look, we're not really sure.

[00:36:24] Speaker 04:
But we might want to.

[00:36:25] Speaker 04:
That is not reasoned decision-making.

[00:36:27] Speaker 04:
And as Judge Wilkinson said, it would turn government into a mere matter of women caprice, whoever is in office, to not require them to follow the most basic parts of the components of this Court's and the Supreme Court's arbitrary and capricious standard for review.

[00:36:45] Speaker 04:
Not only is it too broad, even under the arguments that

[00:36:51] Speaker 04:
arguments, speculations that Judge Kavanaugh has noted, but it's too long.

[00:36:55] Speaker 04:
They've said we want 20 months to take comment.

[00:36:57] Speaker 04:
They actually took comment on this delay in a shorter time.

[00:37:01] Speaker 04:
If there were an issue they needed to address, they could have done it.

[00:37:04] Speaker 04:
They didn't.

[00:37:04] Speaker 04:
They've issued many other actions during that time.

[00:37:08] Speaker 04:
Meanwhile, these terrible incidents continue that are causing harm.

[00:37:14] Speaker 04:
Some of our declarants have experienced multiple incidents personally as a result of EPA's

[00:37:21] Speaker 04:
now ongoing delay to update on these protections.

[00:37:25] Speaker 04:
I would like to reserve any time I still have for both.

[00:37:30] Speaker 11:
Thank you.

[00:37:32] Speaker 11:
All right, council for intervener.

[00:37:41] Speaker 11:
And which intervener are you representing?

[00:37:44] Speaker 00:
Yes, good morning.

[00:37:45] Speaker 00:
I'm Susan Eckert.

[00:37:45] Speaker 00:
I'm here on behalf of the United Steelworkers.

[00:37:49] Speaker 00:
And we have a narrow focus but an important focus to look at the fact that EPA now in their decision making with the delay rule is downplaying the harms that are associated with the benefits of the original chemical disaster rule on the steelworkers and their families who are fence line community members.

[00:38:08] Speaker 00:
In promulgating this delay rule, EPA has not given weight to the issues

[00:38:16] Speaker 00:
that we raised, steelworkers and workers, this has been focusing on the regulated industry, and they're dismissing as speculative the benefits of the chemical disaster rule for workers, first responders, and fence line community members.

[00:38:30] Speaker 00:
And we've put in many declarations from steelworkers on these issues.

[00:38:35] Speaker 00:
One of the more important ones is steelworker Ben Lillenfeld, who works in a Houston, Galveston area for the steelworkers.

[00:38:43] Speaker 00:
And it's important to remember that there are real families here, real workers behind this rule and community members.

[00:38:49] Speaker 00:
Our members are the workers and the first responders inside the facility when these accidents occur.

[00:38:55] Speaker 00:
And as our declarations talk about, workers are hurt first and worst when there is one of these accidental chemical releases.

[00:39:03] Speaker 00:
And this was highlighted and brought home with the Hurricane Harvey in August of 2017 when that hurricane occurred

[00:39:11] Speaker 00:
Our members were working at facilities like ExxonMobil, Shell, and Dow, and due to poor emergency planning, these facilities continued production right up to the end while they knew the hurricanes were coming, and they crashed these units, meaning they had to shut them down so quickly

[00:39:29] Speaker 00:
that they did it in an unsafe manner, and there were chemical releases, and our members were locked inside.

[00:39:34] Speaker 00:
They had to stay at those facilities.

[00:39:36] Speaker 00:
They couldn't communicate with their families while these hurricanes were happening.

[00:39:40] Speaker 00:
And the rules, if they had gone into place, I guess I'm already out of time, the rules had gone into place, they would have already helped our members to deal with these horrible accidents that continue to occur throughout the country at steelworker facilities.

[00:39:56] Speaker 00:
Thank you.

[00:40:00] Speaker 11:
All right, Council for Respondents, EPA et al.

[00:40:11] Speaker 07:
Good morning.

[00:40:12] Speaker 07:
Good morning.

[00:40:13] Speaker 07:
May it please the Court.

[00:40:14] Speaker 07:
My name is Jonathan Brightville from the Department of Justice.

[00:40:17] Speaker 07:
With me at Council's table is Stephanie Talbert, also from the Department of Justice, and John Averback from the Office of General Counsel at the Environmental Protection Agency.

[00:40:27] Speaker 07:
The intervener respondents have asked me to clarify in advance that I will be speaking for 14 respondents allocated 20 minutes, and I will be here to take all comers on pretty much all issues, although Shannon Broom, whose counsel for the Chemical Safety and Advocacy Group will speak for three minutes and focus on security issues and implementation issues as it relates to the current rules.

[00:40:53] Speaker 07:
uh... and then well the solicitor general of uh... louis uh... louisiana elizabeth morale also address uh... there uh... the impacts of these rules on emergency planners and states so i'd like to start out uh... my discussion but first of all clarifying some issues with the record uh... relating to both eps actions and findings when promulgating the original

[00:41:21] Speaker 07:
I think there's been some heated language and some imprecise discussion about what happened, both in the original RMP amendments and then in the context of the delay rule.

[00:41:35] Speaker 07:
I then want to discuss the substantive authority under 112R7.

[00:41:39] Speaker 07:
which I think has already been pointed out, really does grant the agency a tremendous amount of discretion.

[00:41:46] Speaker 07:
And finally then address the 307D7B arguments, which is a statutory provision that this court obviously dealt with last summer.

[00:41:55] Speaker 07:
And we feel very much that the Clean Air Council, the Pruitt decision is very, perhaps the specific holding doesn't address what happened here, but certainly the reasoning behind it and the analysis of those provisions very much control.

[00:42:09] Speaker 07:
So first of all, I'd like to address the arbitrary and capricious issues.

[00:42:13] Speaker 07:
And petitioners claim that, and we heard it again here today, that EPA carefully considered and rejected the same concerns, the safety concerns in the rulemaking record for the RNP amendments.

[00:42:27] Speaker 07:
And that is simply not correct.

[00:42:30] Speaker 11:
Well, no question that the issue was raised.

[00:42:33] Speaker 11:
Is that correct?

[00:42:35] Speaker 07:
The issue was raised, absolutely, Your Honor.

[00:42:37] Speaker 07:
And not only was it raised,

[00:42:39] Speaker 07:
The agency actually acknowledged the issue as a significant one and made specific changes to the RMP amendments as originally proposed in early of 2016 in order to try to resolve those.

[00:42:52] Speaker 07:
So there was a proposed section 68.205 which dealt with coordination and information exchanges.

[00:42:58] Speaker 11:
I mean, the agency may not agree now with the results, but previously the agency addressed the issue, responded in the way it thought was appropriate.

[00:43:10] Speaker 07:
That's right.

[00:43:11] Speaker 11:
They address the... So what was the inaccurate representation to the court?

[00:43:15] Speaker 07:
Well, so the representation was that they thought that they had totally addressed that the security issues that they dismissed them.

[00:43:25] Speaker 07:
They didn't dismiss them, Your Honor.

[00:43:27] Speaker 07:
They actually acknowledged that the security issues were real issues, and they actually made changes in the proposed rules.

[00:43:33] Speaker 07:
They deleted an entire section.

[00:43:35] Speaker 11:
So do you read that particular provision to say to the owner of a chemical plant,

[00:43:42] Speaker 11:
You must turn over the architectural and engineering drawings to your plant, to the local community sheriff and fire chief?

[00:43:54] Speaker 07:
I think that that language is very broad, Your Honor, yes.

[00:43:58] Speaker 11:
So why wouldn't reasonable people figure out what is the appropriate information that has to be turned over?

[00:44:07] Speaker 11:
And if the fire chief says, well, that's not enough,

[00:44:11] Speaker 11:
And the chemical company says, well, we're not giving you anymore because we're concerned about our security and national security.

[00:44:20] Speaker 11:
And then they can go to court and litigate that.

[00:44:23] Speaker 07:
Well, it's very expensive and difficult to go to court and litigate things.

[00:44:26] Speaker 11:
I understand.

[00:44:26] Speaker 11:
But what I'm getting at is, what kind of detail are you suggesting the rule would have?

[00:44:35] Speaker 11:
Let's assume that EPA thinks

[00:44:40] Speaker 11:
turning over anything other than your address and website is a threat to national security.

[00:44:48] Speaker 11:
Why wouldn't it just amend the rule?

[00:44:50] Speaker 07:
Well, it's in the process of a reconsideration, and that's exactly what's now underway, Your Honor, is that in response... In other words, what I'm getting at is this issue was presented to the previous administration.

[00:45:04] Speaker 11:
It responded.

[00:45:06] Speaker 11:
All right, a new administration comes in and disagrees with that conclusion.

[00:45:13] Speaker 11:
So amend the rule and change it.

[00:45:15] Speaker 07:
So they're in the process of reconsidering the rule.

[00:45:18] Speaker 07:
But as to why the rule should not go into effect that was promulgated before, I'd like to address that, Your Honor.

[00:45:23] Speaker 11:
But let me just, what I'm trying to understand is you acknowledge repeatedly in your briefs

[00:45:33] Speaker 11:
that you have general rulemaking authority unless another provision limits it.

[00:45:42] Speaker 11:
And you keep referring to reconsideration.

[00:45:46] Speaker 11:
And you have this provision on reconsideration that at least Congress said is limited.

[00:45:56] Speaker 11:
to 90 days.

[00:45:58] Speaker 11:
And I'm not clear why the administration just wouldn't move forward and amend this provision.

[00:46:05] Speaker 11:
Because the same information, there's no new information.

[00:46:13] Speaker 11:
Because it's just that there's a different way of looking at this information and a different way of weighing the information.

[00:46:22] Speaker 11:
And you do think turning over this type of information

[00:46:26] Speaker 11:
in my hypothetical, could implicate national security.

[00:46:30] Speaker 11:
So go ahead and put out the notice of proposed rulemaking and let's move forward.

[00:46:37] Speaker 07:
Well, I would acknowledge that, Your Honor, but let me address, because you've got two points in there.

[00:46:42] Speaker 07:
You've got two issues in there.

[00:46:43] Speaker 07:
One relates to the reconsideration, which, by the way, is not a defined term in either the APA.

[00:46:49] Speaker 07:
Well, you keep using it.

[00:46:51] Speaker 07:
Well, right.

[00:46:51] Speaker 07:
It's a term.

[00:46:52] Speaker 07:
And Congress used it.

[00:46:56] Speaker 11:
And said, however you define it, you have 90 days.

[00:46:59] Speaker 07:
No, that's not, I would disagree with that, Your Honor, because reconsideration, the use of that term is going to depend upon the context in which it's used and deployed.

[00:47:07] Speaker 07:
There certainly is a form of mandatory reconsideration that's set forth in 307D7B of the statute that comes about and it's important because just stop and pause for a second and think about that statutory provision.

[00:47:20] Speaker 07:
307D7B.

[00:47:24] Speaker 07:
Okay, that provision comes late in the 307D1234 progression of how EPA goes about doing rulemaking.

[00:47:32] Speaker 07:
And because when you read the entirety of that provision, what you see is a provision that is really ultimately carving out an exception

[00:47:40] Speaker 07:
to what is otherwise going to be the record for purposes of review and the objections that the court will consider for a record review on a rulemaking that is basically already baked.

[00:47:49] Speaker 07:
And what that section really goes to and really does is it creates a possibility for people to come forth and prevent or present evidence that they might not have otherwise had an opportunity to of central relevance and say, hey, EPA, wait a minute, wait a minute, wait a minute, here's this final extra thing

[00:48:05] Speaker 07:
that we didn't get a chance to do in the notice and comment rulemaking process that we think you should take a look at.

[00:48:12] Speaker 07:
And that's where the 307D7B provision then comes in, is it provides an opportunity to get that information in front of the agency and then ultimately in front of the court as part of the review.

[00:48:23] Speaker 07:
As part of that, 307D7B then does grant to, and this is the critical distinction,

[00:48:28] Speaker 07:
it grants to the agency a unilateral administrative power not to amend the rule, not to modify the rule, but simply to stay the effective date of the rule while it looks at such a thing.

[00:48:40] Speaker 07:
The existence of that power and the grant of that power is totally next to and is in no way inconsistent with the EPA then having the authority to do exactly what they did here.

[00:48:52] Speaker 07:
Because, let me stop you there, without that provision,

[00:48:58] Speaker 09:
How would EPA reconsider something?

[00:49:00] Speaker 09:
They would have to do it through notice and comment.

[00:49:03] Speaker 07:
Through notice and comment rulemaking.

[00:49:04] Speaker 09:
So that provision comes in, I assume, to say to do a 90-day reconsideration, you don't need notice and comment.

[00:49:12] Speaker 09:
You can just do the 90-day.

[00:49:14] Speaker 07:
That's right.

[00:49:15] Speaker 07:
That's right.

[00:49:15] Speaker 07:
It grants a unilateral independence.

[00:49:17] Speaker 09:
But the question is, does that displace the preexisting authority

[00:49:21] Speaker 09:
to do amend a rule, including amending its effective dates, by notice and comment?

[00:49:27] Speaker 09:
That's the question.

[00:49:28] Speaker 07:
That is the question, and that's the argument that they've made.

[00:49:30] Speaker 07:
And we think that none of the canons of statutory construction that they put forward actually command that that

[00:49:38] Speaker 07:
provision displaced that statutory authority because first of all so they bring up the candidate construction that the specific should control over the general but that candidate construction is applicable when you have two provisions that are doing the same thing and are reaching

[00:49:53] Speaker 07:
supposedly different results, and so you have to give one effect over the other.

[00:49:58] Speaker 07:
That's not the case here.

[00:49:59] Speaker 07:
It's possible to give effect to both of these provisions, and it's entirely logical to do so.

[00:50:05] Speaker 07:
The 307D7B provision is a narrow mandatory reconsideration that comes about at the end of an ongoing rulemaking process.

[00:50:13] Speaker 08:
Just so that I understand your statutory argument, are you saying then that if

[00:50:21] Speaker 08:
If someone says to the EPA, I don't have any new evidence, but you're a new administration, and I think that you should just reconsider this rule, that that does not fall within 307D.

[00:50:43] Speaker 07:
If someone comes forth with evidence that was previously considered and does not meet the central relevance and other tests that this court articulated in the Clean Air Council provision, then yes, you could not invoke 307B7B.

[00:50:58] Speaker 07:
You still could go back and therefore undertake a notice and comment rulemaking procedure to actually affirmatively amend or modify the rule.

[00:51:09] Speaker 07:
as EPA did here, but you could not come back and use 307D7B unless the prerequisites for that are met.

[00:51:17] Speaker 08:
Why did the administration do the three-month delay for this petition?

[00:51:22] Speaker 07:
So they did the three-month delay because they felt initially that they had issues that were presented

[00:51:27] Speaker 07:
that there was not an opportunity to comment on.

[00:51:31] Speaker 07:
And that actually brings me back to a point I was trying to make with Judge Rogers is that this is not a case where EPA just turned around and said, hey, we're just going to assess things differently now.

[00:51:41] Speaker 07:
Because actually, in the final rule,

[00:51:44] Speaker 07:
They actually added new language, new provisions that had not previously been subject to notice and comment.

[00:51:50] Speaker 09:
So when they... They didn't just do that, but that's part of what they did.

[00:51:53] Speaker 07:
That's part of what they did, yes.

[00:51:54] Speaker 07:
So when they deleted 68.205, they added new language to 68.93, new language that the public had never seen, that the regulated community and states had never had a chance to offer.

[00:52:07] Speaker 07:
comment on.

[00:52:08] Speaker 07:
And so after the rule went final, they got new information, because they were getting new information they didn't have previously about this new provision that wasn't in the proposed rule.

[00:52:18] Speaker 11:
That's the point, isn't it?

[00:52:20] Speaker 11:
This could go on forever, that every month somebody comes with some new information.

[00:52:26] Speaker 11:
And let's assume it's information that is worthy of the agency's consideration.

[00:52:32] Speaker 11:
So this rule never goes into effect.

[00:52:35] Speaker 07:
It can't go on forever, not under the Clean Air Act and not under the procedures that are set forth in 307D.

[00:52:40] Speaker 11:
Well, you say in the delay rule and such other matters as we may wish to consider, all right?

[00:52:46] Speaker 11:
That's pretty open-ended.

[00:52:47] Speaker 11:
And I think, what do you think of the observation that Judge Silberman made in his separate opinion in Riley, talking about how the language that Congress has given us

[00:53:06] Speaker 11:
suggest that there may be this ample margin of safety such that you could have a situation where while you're considering changing through notice and comment rulemaking, nevertheless what was the final rule goes into effect.

[00:53:29] Speaker 11:
In other words, I understand the delay rule that says stop

[00:53:35] Speaker 11:
We need almost two years and maybe more because we may get some more new information and we may think of other things that we want to take into account.

[00:53:48] Speaker 11:
I mean, there is no end game in there.

[00:53:51] Speaker 11:
And to the extent you want to talk about context, look at the 1990 amendments and what Congress was reacting to.

[00:54:01] Speaker 07:
So there is an end game in the delay rule.

[00:54:04] Speaker 02:
And it says such other matters as we may wish to consider.

[00:54:09] Speaker 07:
Well, the end game here is that, first of all, the delay rule is actually very limited in scope.

[00:54:15] Speaker 07:
And that's one of the additional points that I wanted to clarify.

[00:54:17] Speaker 02:
Such other matters as we may wish to consider?

[00:54:20] Speaker 02:
And we don't know what those matters might be?

[00:54:22] Speaker 07:
In terms of what the reconsideration may be, the reconsideration, undoubtedly, Your Honor, is broader than what the delay rule actually does.

[00:54:29] Speaker 07:
And that's another point that I want to make sure I'm very clear about, is that the delay rule actually has a very limited effect.

[00:54:35] Speaker 07:
It doesn't actually

[00:54:36] Speaker 07:
impact six out of the seven provisions that EPA found in its regulatory impact analysis when it promulgated the original risk management program amendments.

[00:54:49] Speaker 07:
would have societal benefits.

[00:54:51] Speaker 07:
So let me just walk you through that if I could.

[00:54:53] Speaker 07:
So this is the prior administration.

[00:54:56] Speaker 07:
This is not the current administration.

[00:54:58] Speaker 07:
When it put out the final rule, it had its regulatory impact analysis.

[00:55:01] Speaker 07:
That regulatory impact analysis said these new rules were going to have $131 million worth of costs on states, facilities, whoever who are implementing these rules.

[00:55:12] Speaker 07:
Now, to offset those costs and to justify the rule, EPA also acknowledged they had no data that allowed them to, given the scope and the nature of these provisions, forecast that there would be any quantifiable benefits whatsoever.

[00:55:25] Speaker 11:
So they couldn't tell you if they cost $2 or $2 million, but they could say, because there wasn't any data, that these were qualitative.

[00:55:36] Speaker 11:
And so they did, Your Honor.

[00:55:43] Speaker 07:
Yes.

[00:55:45] Speaker 07:
And they listed what those provisions were, what those provisions were that would actually provide those qualitative provisions.

[00:55:51] Speaker 07:
They just, benefits.

[00:55:52] Speaker 07:
They described them in the regulatory impact analysis.

[00:55:57] Speaker 07:
They're going through a reconsideration process to do.

[00:55:59] Speaker 02:
When are they going to end the reconsideration?

[00:56:02] Speaker 02:
Because it says such other matters as we may choose in the next two years to consider.

[00:56:07] Speaker 07:
What I can tell you about the reconsideration process is, and this is public information, you can take judicial notice of it, but is that at this point a proposed rule has gone to OMB for interagency review.

[00:56:21] Speaker 07:
And at this point, they are on a pace that is akin to the pace that they were on when they undertook the risk management program amendments that were finalized and promulgated in January of 2017.

[00:56:34] Speaker 09:
So are they on pace for the new rule potentially to be issued when the delay rule runs out?

[00:56:41] Speaker 07:
That is my understanding, general understanding.

[00:56:44] Speaker 07:
If you kind of work through the amount of time it takes to go through interagency review, take notice and comment, get those comments, respond to those comments, go back to OMB, and then finalize and publish the rule that they are... I think you're making a point about most of the provisions aren't really affected by the delay rule.

[00:56:59] Speaker 09:
And I assume what you were getting at there is the compliance dates for most of them are 2021.

[00:57:05] Speaker 09:
And therefore, even if at the end of the reconsideration, EPA says we're sticking with the original rule,

[00:57:10] Speaker 09:
Those won't be affected.

[00:57:12] Speaker 07:
Those are going into effect.

[00:57:14] Speaker 07:
That's right.

[00:57:15] Speaker 11:
Well, but you acknowledge, all right, in the delay rule itself and the preamble, that you may have to adjust those later dates.

[00:57:22] Speaker 11:
And indeed, the prior administration pushed those dates out because industry said it needed that amount of time in order to comply.

[00:57:36] Speaker 07:
Well, and if EPA takes that action, if they adjust those, they're going to have to come back and justify those actions to this court.

[00:57:43] Speaker 07:
But that's not the issue and that's not the rule that's before the court at this time.

[00:57:47] Speaker 11:
When did this proposed rule go to OMB?

[00:57:50] Speaker 07:
Earlier this week, Your Honor.

[00:57:52] Speaker 07:
Last night.

[00:57:55] Speaker 07:
Yes.

[00:57:56] Speaker 07:
Exactly.

[00:57:58] Speaker 07:
March 12th, Your Honor.

[00:57:59] Speaker 07:
RIN number 2050 HE95.

[00:58:01] Speaker 07:
All right.

[00:58:05] Speaker 07:
So, but let me do that.

[00:58:08] Speaker 08:
But to Judge Rogers' point, I mean, part of the justification of the delay rule

[00:58:14] Speaker 08:
was to have regulatory certainty so that these regulated entities won't have to start the compliance process until they know for sure that what the outcome is going to be.

[00:58:27] Speaker 08:
So you can't kind of have it both ways and say, well, you know, those dates aren't going to be affected while you have as a justification

[00:58:38] Speaker 08:
essentially baked into this, that those dates, even if you came out with the same conclusion with respect to the rule, that industry is going to need more lead time to comply.

[00:58:53] Speaker 07:
Well, ultimately, the regulations are there.

[00:58:58] Speaker 07:
And industry is on notice that absent the completion of a notice and comment rulemaking procedure that amends those or some other administrative action that's within the power of EPA to implement, they're going to have to comply with those dates.

[00:59:11] Speaker 11:
Actually, the delay rule tells them, don't worry about it.

[00:59:14] Speaker 07:
It doesn't say that, Your Honor.

[00:59:15] Speaker 02:
I disagree with that characterization.

[00:59:17] Speaker 02:
Well, it says such other things as we may wish to consider.

[00:59:21] Speaker 07:
Well, it says that, but it also specifically addresses the issue of whether or not there will be other deadlines adjusted, and it disclaims any specific intent to do so.

[00:59:32] Speaker 07:
It notes that it may adjust those dates as necessary after conducting its reconsideration proceeding and actually looking at doing another proposed rule.

[00:59:40] Speaker 07:
But it doesn't state in there that it will adjust those dates and does not make that representation.

[00:59:45] Speaker 11:
But can I just ask a question here?

[00:59:46] Speaker 11:
During the 90-day period,

[00:59:49] Speaker 11:
EPA held a hearing, didn't it?

[00:59:53] Speaker 07:
I believe it did, Your Honor, yes.

[00:59:54] Speaker 11:
And so in addition to having the three petitions and whatever information was accompanied those petitions, EPA received information as a result of its what I'll call the 90-day reconsideration period.

[01:00:15] Speaker 11:
What did it do?

[01:00:18] Speaker 11:
I mean, my point is, it appeared that EPA was proceeding with the idea that, yes, we have these three petitions, we're going to look at it, we have a hearing, and then we're going to move ahead.

[01:00:31] Speaker 07:
Right.

[01:00:32] Speaker 11:
And then sort of nothing happened.

[01:00:34] Speaker 11:
And then the delay rule came.

[01:00:36] Speaker 07:
Well, no, actually the delay rule is what happened.

[01:00:39] Speaker 07:
So the information that was gathered, no, and because ultimately, right, the delay rule is a regulatory change.

[01:00:46] Speaker 07:
It is an amendment to a compliance date in the regulation promulgated after full notice and comment.

[01:00:51] Speaker 07:
And so where that information went and how that information was used is that's what was used by EPA to then justify and implement the delay rule.

[01:00:59] Speaker 11:
I'm trying to get back to, because we've taken you far away, I realize, but you said you were going to talk about arbitrary and capricious.

[01:01:07] Speaker 11:
So, you heard counsel this morning, and of course you know the record in this case, people are injured, people are dying, these accidents occur regularly, they've occurred since

[01:01:23] Speaker 11:
January.

[01:01:28] Speaker 11:
So where in the delay rule does EPA address any of the factual findings that under vinyl rule and its determination that it was important to make certain provisions effective immediately and

[01:01:52] Speaker 11:
give industry the time it said it needed.

[01:01:56] Speaker 07:
Sure.

[01:01:57] Speaker 07:
It did it in the response to comments in the delay rule in the Joint Appendix at 1672 and 1668, and I can talk to you a little bit about that right now.

[01:02:07] Speaker 11:
Did it say nobody's being hurt?

[01:02:10] Speaker 07:
Well, you have to look again, and I'm trying to get back to you ultimately, because it ties together here.

[01:02:15] Speaker 11:
Seriously, Council, you have to focus here with me.

[01:02:16] Speaker 11:
We're on arbitrary and capricious.

[01:02:18] Speaker 11:
There are findings out there that people, and you heard Council for United Steelworkers talk about not only their employees, their facilities, the families, the communities.

[01:02:31] Speaker 11:
So if you're going to delay this thing, where is the finding that

[01:02:37] Speaker 11:
we are satisfied that these harms are not going to occur.

[01:02:42] Speaker 07:
So EPA made a finding that given the limited scope of the delay rule, which I'd like to walk through how limited it is and why it is limited so you can understand that, is the limited scope of the delay rule, there'd be minimal, if any, benefits lost as a result of the delay rule.

[01:02:56] Speaker 11:
But you heard, I mean, we just heard this morning again, and it's in the record, the record is full of this problem of these are extremely dangerous

[01:03:07] Speaker 11:
situations, people are continuing to be harmed.

[01:03:15] Speaker 11:
I don't see anything in the delay rule that says we have evidence that these harms are not occurring.

[01:03:26] Speaker 07:
Well, what we need to look at, Your Honor, in terms of justifying the regulatory change that happened, is what is the record that supports the actual change that was implemented?

[01:03:36] Speaker 11:
And you have to start by— Hey, I can give you a simple one, all right?

[01:03:40] Speaker 11:
The provision that goes in immediately, all right?

[01:03:44] Speaker 11:
And you say, or EPA says, we're not worried about that.

[01:03:50] Speaker 11:
It's not really going to affect anything.

[01:03:53] Speaker 11:
And so the fact that we're bypassing that shouldn't disturb anyone.

[01:04:02] Speaker 11:
But it never, so far as I know, and that's what I was hoping you could tell me, it never responds by saying,

[01:04:11] Speaker 11:
Essentially, we disagree and we have information to support our conclusion.

[01:04:17] Speaker 07:
What they agreed with is they agreed with the idea that security concerns are very acute issues that were, first of all, not fully addressed by the original amendment.

[01:04:33] Speaker 11:
So you're trying to be counsel.

[01:04:34] Speaker 11:
I mean, I don't need to repeat myself, but so amend that part of the rule.

[01:04:37] Speaker 11:
But what I'm trying to get at is

[01:04:40] Speaker 11:
You said you were going to tell me why the delay rule is not arbitrary and capricious.

[01:04:46] Speaker 11:
And it has a laundry list of reasons, but it doesn't address the danger and the damage to property that's ongoing.

[01:04:58] Speaker 11:
And so this is a finding of the agency.

[01:05:03] Speaker 07:
But Your Honor, the point that I'm trying to get to is that is the provision that the delay rule impacts.

[01:05:09] Speaker 07:
They're one and the same.

[01:05:10] Speaker 07:
There were seven provisions in the delay rule.

[01:05:14] Speaker 02:
Or, excuse me.

[01:05:15] Speaker 02:
So, as the states argued, why delay the whole rule?

[01:05:19] Speaker 07:
It doesn't delay the whole rule, Your Honor.

[01:05:22] Speaker 09:
Because the compliance dates are later.

[01:05:24] Speaker 07:
That's right.

[01:05:25] Speaker 07:
All of the compliance dates are later.

[01:05:28] Speaker 11:
That means you have taken the position that industry must have misrepresented to the previous administration that it needed this additional time in order to comply with the rule.

[01:05:44] Speaker 07:
I don't think that our position necessarily requires that.

[01:05:47] Speaker 07:
No, Your Honor.

[01:05:47] Speaker 11:
Well, that's the reason given for pushing certain deadlines off.

[01:05:54] Speaker 11:
Because industry said it needed time for training, for coordination, for the technological changes.

[01:06:01] Speaker 11:
So this administration must have concluded either to accept your argument that the delay rule has no impact on these later

[01:06:12] Speaker 11:
Deadlines along the lines of Judge Wilkins question.

[01:06:17] Speaker 07:
As a statutory matter, we're here reviewing a rule promulgated pursuant to EPA statutory power under 312 7 or excuse me, 112 7 and 307 D. And the record that we are reviewing is the record on that delay rule.

[01:06:34] Speaker 07:
As that record reflects, and as the findings now are, yes, in the past, in the history, it was submitted that this was the amount of time that was required in order to comply with these provisions.

[01:06:45] Speaker 07:
Those provisions continue to be in place.

[01:06:48] Speaker 07:
And at this point, the industry is also on notice as to what those provisions will be.

[01:06:54] Speaker 07:
It is possible.

[01:06:55] Speaker 07:
that those provisions may be changed in the future.

[01:06:58] Speaker 07:
I can't deny that.

[01:06:59] Speaker 07:
I won't deny that.

[01:07:00] Speaker 07:
It's possible that those provisions will be left alone and industry will be expected to comply with those provisions now on notice as of January 13, 2017, what those provisions are.

[01:07:12] Speaker 09:
That, if at the end of the delay rule you just stay where you are and continue the current rule as is,

[01:07:20] Speaker 09:
To pick up on Judge Rogers' question, I think industry might sue saying, wait, we don't have long enough to comply with the original compliance dates.

[01:07:31] Speaker 09:
It's arbitrary and capricious not to extend the compliance dates.

[01:07:35] Speaker 09:
The question is, is the prospect of that a reason

[01:07:39] Speaker 09:
that we should think about it being arbitrary and capricious now.

[01:07:44] Speaker 09:
It would seem to me that's something we can consider then rather than considering now, because it's just not affected, those provisions.

[01:07:51] Speaker 09:
The compliance dates, the 2021 compliance dates, those are too short at the end of the period, then that can be

[01:07:57] Speaker 09:
I would agree with that, Your Honor.

[01:08:00] Speaker 07:
At the point at which there may be a rule that is promulgated in the future by EPA that modifies those compliance dates, EPA is going to have to justify that.

[01:08:08] Speaker 07:
Or keeps the compliance dates.

[01:08:10] Speaker 11:
Or keeps the compliance dates.

[01:08:16] Speaker 11:
the provision that was to go into effect immediately.

[01:08:19] Speaker 07:
Yes, may I talk about that and walk you through that?

[01:08:23] Speaker 07:
So the provision, so there were seven provisions in the regulatory impact analysis that EPA attributed societal benefits to.

[01:08:33] Speaker 07:
And they were the various compliance deadlines one, two, three years out into the future.

[01:08:38] Speaker 07:
Of those seven major provisions, and EPA uses this terminology, it refers to the minor provisions and it refers to then these more significant compliance deadlines and provisions, which would go into effect one, two, three more years out into the future.

[01:08:53] Speaker 07:
Of those, there is only one that has been modified by the delay rule, and it is the provision in 68

[01:09:01] Speaker 07:
that relates to coordination between emergency responders and facilities and the like and requires them to do planning on an annualized basis.

[01:09:12] Speaker 07:
Now what's important to understand though about this provision 6893 is first of all that is the provision

[01:09:20] Speaker 07:
that EPA added language to after acknowledging that there were security concerns, and so we're gonna fix the security concerns by deleting 68.205, but we're gonna put a little language in here that'll still provide for some information disclosure in 68.93.

[01:09:35] Speaker 07:
So this is the very same provision that they finalized without further notice and comment, and subsequently now acknowledge, hey, industry's come in and they've made a point that we might have put in place a security loophole that we need to go back and take a look at.

[01:09:49] Speaker 07:
So this is the same provision.

[01:09:51] Speaker 07:
In terms of substantively, what it actually added was it added a requirement not to do planning.

[01:09:58] Speaker 07:
That was in the existing rule in 68.95.

[01:10:01] Speaker 07:
The existing rule already required coordination and planning between facilities and emergency responders and local entities.

[01:10:08] Speaker 07:
What it added was it added an express requirement under the risk management program to do that on an annual basis.

[01:10:17] Speaker 07:
However, and this is important to understand, again, the minimal disbenefits that can be intended to come from delaying this provision.

[01:10:27] Speaker 07:
However, the existing 68.95, which as I've already stated, already required coordination between the facilities and local entities, also had, in 68.95C,

[01:10:40] Speaker 07:
a requirement that that planning be done in conjunction with the planning that goes on under EPCRA, the Emergency Planning and Community Rights and NO Act, which covers the same substances as the risk management program, although it's on certain different thresholds at certain points, but it's the same substances.

[01:10:59] Speaker 07:
And it's requiring substantively many of the same things.

[01:11:03] Speaker 07:
Here's the real kicker, is that ultimately,

[01:11:06] Speaker 07:
303 of EPGRA requires that those plans be reviewed on an annual basis.

[01:11:12] Speaker 07:
So even under the existing risk management program regulations, you had a requirement to coordinate

[01:11:20] Speaker 07:
between local officials and facilities.

[01:11:23] Speaker 07:
You had a requirement, you had to do that in conjunction with the planning you're doing on EPGRA, which is substantively very similar.

[01:11:30] Speaker 07:
And then EPGRA itself had a provision that said those plans needed to be reviewed on an annual basis.

[01:11:37] Speaker 07:
That is the disbenefit, if you will, that EPA looked at and said, next to the security concerns, next to some of these policy concerns, next to these other things, and ultimately, this is only being put off by 20 months, which, again, for an annual requirement, 20 only divides by 12 once.

[01:11:57] Speaker 07:
So that means you are essentially, by this delay rule, putting off one round of required

[01:12:04] Speaker 07:
coordination and planning between facilities and local entities that would need to otherwise occur expressly under the risk management program regulations, as opposed to under the risk management program amendments in conjunction with the planning you're doing under EPCRA, which is required to be reviewed on an annual basis.

[01:12:27] Speaker 07:
So that's quite a mouthful.

[01:12:32] Speaker 08:
Let's suppose

[01:12:35] Speaker 08:
The EPA had just done something this simple and said, we're going to move all of the relevant compliance and other deadlines back, the effective dates for those back 10 years.

[01:12:54] Speaker 08:
And then we were having this argument.

[01:12:58] Speaker 08:
What would be the standard of review that we would use for an arbitrary and capricious argument?

[01:13:06] Speaker 08:
Would it be the Fox or would it be something else?

[01:13:10] Speaker 07:
I think if you entirely removed compliance requirements and you were left with nothing, at that point then you would fall into the rubric of some of the cases that have been cited to the court.

[01:13:26] Speaker 07:
I believe it was a NHTSA case where NHTSA went about changing the tread requirements on tires and when they went about

[01:13:36] Speaker 07:
proposing the reconsideration to come up with a new treadwear pattern, they actually totally did away with the other regulations and left nothing in place.

[01:13:45] Speaker 07:
And this court reviewed that and ultimately vacated that decision, in part because you went from something to nothing while you were looking at putting something different in place.

[01:13:56] Speaker 07:
That is not this case, Your Honor.

[01:13:59] Speaker 07:
I mean, we have gone from something

[01:14:02] Speaker 07:
to essentially pretty much to say something.

[01:14:05] Speaker 08:
Could you answer my hypothetical?

[01:14:06] Speaker 08:
In my hypothetical, would Fox apply what Justice Scalia writing for the court articulated as the standard of review when the agency changes course?

[01:14:20] Speaker 07:
I think ultimately it comes down to what the record in your hypothetical reflects, Your Honor.

[01:14:25] Speaker 07:
I mean, I hate to say that, because it sounds like such a dodge.

[01:14:28] Speaker 07:
But ultimately, the standard in FOX is the standard, which is that you have to look at the record that's been compiled and try to determine what's the justification.

[01:14:40] Speaker 09:
Wouldn't 10 years probably be unreasonable?

[01:14:41] Speaker 09:
Isn't that an easy answer?

[01:14:42] Speaker 07:
I think it probably would be unreasonable, Your Honor.

[01:14:45] Speaker 09:
Yes.

[01:14:51] Speaker 08:
I guess to get to the point, why isn't the Fox standard the relevant standard for this case?

[01:14:57] Speaker 07:
The Fox standard is the relevant standard for this case, and one of the important things to do is to work all the way through the Fox standard and look at the fact that the Fox standard doesn't necessarily require

[01:15:08] Speaker 07:
that you affirmatively walk back or explain away prior findings.

[01:15:12] Speaker 07:
To the contrary, the Fox standard comes back to the point that I was just making, which is you've got to really look at what it is that the agency has done and what it hasn't done and what that record is to determine at the end of the day, did the agency look at what it did and does it have a reasonable basis to believe that it is a better course

[01:15:34] Speaker 07:
to undertake these actions as opposed to the policy that was in place.

[01:15:38] Speaker 07:
It doesn't have to say the old policy was bad or wrong.

[01:15:42] Speaker 07:
All it has to do is say, do I have a better policy?

[01:15:45] Speaker 07:
And that's exactly what this court quoted in Clean Air Council v. Pruitt last year.

[01:15:52] Speaker 07:
When it addressed this issue of, geez, does 307D7B really foreclose EPA from undertaking anything or not, this court wrote, we emphasize, however, that nothing in this opinion, this opinion that found that the 307D7B use of the administrative stay had been not proper, nothing in this opinion in any way limits EPA's authority to reconsider the final rule and to proceed with its June 16th NPRM.

[01:16:21] Speaker 07:
And a key digression here, the June 16th NPRM that was at issue there was a two-year delay rule, just like the delay rule at issue here, to allow the agency to do a reconsideration and go back and look at the policies again.

[01:16:39] Speaker 11:
So you're reading that opinion as approving whatever was in the notice of proposed rulemaking.

[01:16:43] Speaker 07:
I'm reading that opinion as not controlling, of course, the holding of this case so much as I'm citing to this opinion in the hopes that it will reinforce the instincts that I saw on display during the questioning, which is that ultimately there is no inconsistency here and that the power under 307

[01:17:04] Speaker 07:
D7B is a distinct power, a unilateral power, that doesn't in any way underscore or undercut the power ultimately of EPA to utilize its notice and comment 307D rulemaking authority.

[01:17:18] Speaker 07:
That was the instinct, if you will, that the court espoused in the dicta of this case, and I think that instinct is correct.

[01:17:28] Speaker 08:
That argument undermined by the fact that this rulemaking, by your own admission and what you've even argued this morning, not just based on 112R, but that it is based on 7607D.

[01:17:52] Speaker 08:
I mean, you said that this is a reconsideration rulemaking that's under both of those provisions.

[01:18:00] Speaker 07:
So and I was reconsideration is not a defined term and it is a term that takes its meaning from the context in which it is used.

[01:18:09] Speaker 07:
And so agencies use all the time the term reconsideration to mean what is as a technical legal matter.

[01:18:16] Speaker 07:
We are going to amend the regulations we already have in place or we're going to modify those regulations.

[01:18:22] Speaker 07:
When you're utilizing your 307D notice and comment power, that's the kind of quote reconsideration that you're undertaking.

[01:18:30] Speaker 07:
You're looking at the regulations, they're on the books, and we're gonna go back and change them.

[01:18:33] Speaker 07:
And that's what the delay rule actually did.

[01:18:35] Speaker 07:
It actually went back and changed the regulation, changed the date.

[01:18:39] Speaker 07:
307D7B is not that.

[01:18:42] Speaker 07:
It's an administrative form of reconsideration that allows, as I've already described, a little bit more information to come into the record, to go before ultimately the agency, to inform its decision, and then to this court.

[01:18:54] Speaker 07:
And it is in that kind of separate mandatory reconsideration, as this court described it in the Clean Air Council decision last year, that this 90-day limit comes into play.

[01:19:04] Speaker 07:
And there's a good reason, ultimately, for a 90-day limit,

[01:19:09] Speaker 07:
in that specific context.

[01:19:10] Speaker 07:
It's because it's unilateral.

[01:19:13] Speaker 07:
The agency doesn't have to go out and justify it with notice and comment.

[01:19:16] Speaker 07:
All it has to do is have someone come forth with information that meets those criteria, and then it can issue that stay.

[01:19:24] Speaker 07:
It doesn't have to get public comment.

[01:19:25] Speaker 07:
It doesn't have to give notice.

[01:19:27] Speaker 07:
And it's not ultimately subject to the same fulsome review that a notice and comment rulemaking would be subject to.

[01:19:33] Speaker 07:
So what's really going on here is they're trying to give this word, reconsideration, some sort of uniform application that is not consistent with the statutes.

[01:19:44] Speaker 08:
What review would we give, let's suppose a petition for reconsideration is filed under 7607D and the EPA grants it and says, you know,

[01:20:03] Speaker 08:
We agree that this should be reconsidered and we're going to delay the effective dates of everything two years.

[01:20:13] Speaker 08:
Full stop.

[01:20:15] Speaker 08:
What review do we give that?

[01:20:18] Speaker 07:
When you say full stop, they just announced it, and they didn't actually subject it to notice and comment?

[01:20:24] Speaker 07:
At that point, that's already, frankly, controlled by a case that was issued by this court, I think it was in 1983, where EPA essentially, implicitly did that.

[01:20:37] Speaker 07:
There was a regulation on the books, and EPA kind of announced,

[01:20:41] Speaker 07:
We're not going to force that regulation.

[01:20:43] Speaker 07:
And there was a challenge brought and EPA's action was vacated because it was found that by this court in effect that that was a rulemaking by EPA.

[01:20:54] Speaker 07:
So Judge Wilkins hypothetical that would be unlawful.

[01:20:58] Speaker 07:
Yes.

[01:21:00] Speaker 07:
Yes.

[01:21:04] Speaker 07:
If I may, Your Honor, I'm hugely over time, but I actually really haven't had an opportunity to address the 112R7 issues, either directly or indirectly.

[01:21:16] Speaker 11:
Well, we'll take a couple of minutes, all right?

[01:21:18] Speaker 11:
But I think you have to be careful about talking about the court's instincts.

[01:21:21] Speaker 11:
This argument is to enable the court to understand the party's positions.

[01:21:28] Speaker 11:
That's all.

[01:21:33] Speaker 09:
So on the term practicable, they say that that speaks only to the entity, the regulated entity's ability to meet the deadline.

[01:21:50] Speaker 09:
Your response?

[01:21:52] Speaker 07:
I think practicable, as Your Honor pointed out during the discussion, is a term that reflects Congress's raw grant of authority to an agency such as EPA to consider a lot of factors.

[01:22:05] Speaker 07:
But ultimately, this whole practicable discussion is really a red herring.

[01:22:10] Speaker 07:
because the underlying purpose of 112R7 and requirement of R7 is that EPA is to promulgate regulations that actually prevent releases.

[01:22:23] Speaker 07:
That's the language of the statute.

[01:22:25] Speaker 07:
The administrator is authorized to promulgate release prevention, detection, and correction requirements.

[01:22:34] Speaker 07:
This court shouldn't even get to the issue of whether or not these regulations are being put into effect expeditiously or not, because the finding now made by EPA in the context of the delay rule is that these regulations and the regulation that was delayed, the one

[01:22:51] Speaker 07:
regulation that had substantive impacts that were found in the regulatory impact analysis, 68.93, that regulation may not actually prevent releases.

[01:23:02] Speaker 07:
It may, albeit inadvertently, but it may actually encourage releases.

[01:23:07] Speaker 07:
And so you don't even get to the question of whether or not this regulation must or has to go into effect.

[01:23:13] Speaker 09:
EPA has already found... Suppose we disagreed with you on that, then what, on expeditiously?

[01:23:18] Speaker 07:
Well, then again, it comes back to an analysis of what is the language within the statutory provision that helps to answer the question of how much discretion EPA has been granted or how much it is limited by the statute.

[01:23:32] Speaker 07:
And this is a statute that ultimately talks

[01:23:36] Speaker 07:
using the term practicable, which a number of courts have considered, and regard as a term that Congress uses when it wants to afford a significant amount of discretion to agencies to make these judgments.

[01:23:49] Speaker 07:
Practicable itself is in Black's Law Dictionary, which is one of my favorites for this purposes to go to, and talks about practicable as something that's reasonably capable of being accomplished, feasible.

[01:24:02] Speaker 08:
But there's also other language that- But why should we

[01:24:06] Speaker 08:
We understand what the word means, but why used in this sentence in this context should practicable refer to what is practicable for the agency.

[01:24:19] Speaker 08:
versus the regulated parties?

[01:24:22] Speaker 07:
So I know those words appeared in their brief, but that isn't exactly what EPA did, because a substantial consideration of what it did was also to consider the minimal disbenefits that would occur as a result of the rule, which in effect goes to what requirements were already in effect and present at these facilities

[01:24:46] Speaker 07:
that would justify either having a longer or shorter time period.

[01:24:50] Speaker 07:
And the statute, again, to come back to the language of the statute, it says that EPA is empowered to consider, quote, factors, and this is when promulgating the regulations, including.

[01:24:59] Speaker 07:
So Congress uses the word including, but not limited to, which again is language that Congress uses to grant

[01:25:06] Speaker 07:
broad discretion to an agency, the size, location, process, process controls, quantity of substances handled, potency of substances, and response capabilities present at any stationary source.

[01:25:19] Speaker 07:
So these factors easily encompass EPA's consideration of the minimal, if any, benefits lost by way of the process, process controls, response capabilities that were already in place at these facilities when

[01:25:33] Speaker 07:
trying to justify and determine the appropriate length of time by which this regulation, this 68.93, which it was also determining may actually encourage releases, not prevent them, should go into effect.

[01:25:47] Speaker 09:
What do you think the phrase, as determined by the administrator, adds to practicable, if anything?

[01:25:53] Speaker 07:
I think as determined by the administrator is another phrase, a turn of art, that Congress uses to grant discretion to the administrator, obviously.

[01:26:06] Speaker 07:
So if there are no more questions, I'd just like to make one final observation, which is that I have not already made.

[01:26:15] Speaker 07:
And it is this, that the holding that this court would establish by denying the petition here would necessarily be one that would be very narrow.

[01:26:27] Speaker 07:
It would merely be that when EPA learns after the promulgation of a final rule that that rule, as finally promulgated, may do more harm than good.

[01:26:39] Speaker 07:
It has the power to offend or extend, excuse me, the effective date of certain provisions to go back and take another look at that to be sure based on its notice and comment rulemaking.

[01:26:50] Speaker 11:
I think you have made this point.

[01:26:52] Speaker 11:
All right, thank you, Council.

[01:26:53] Speaker 07:
Thank you, Your Honor.

[01:26:54] Speaker 11:
We'll hear an intervener for the Chemical Safety Advocacy Group.

[01:27:17] Speaker 11:
Good morning.

[01:27:23] Speaker 10:
Good morning, Your Honors, and may it please the Court.

[01:27:26] Speaker 10:
I am Shannon Broom, and I am speaking today on behalf of the intervener for respondent, the Chemical Safety Advocacy Group.

[01:27:33] Speaker 10:
I will note that we are also a petitioner in the litigation on the underlying 2017 RMP amendments, which the delay rule is delaying the effectiveness of.

[01:27:44] Speaker 10:
So, petitioners argue that public safety will be compromised if the delay rule stands, and this is simply untrue, and in fact the opposite is the case.

[01:27:55] Speaker 10:
I have three points in support, but given the discussion so far, I'll just mention briefly that the existing rules are protective, but the most important thing is that the delay rule

[01:28:07] Speaker 10:
is actually, um, delaying dangerous provisions of the 2017 RMP amendments.

[01:28:14] Speaker 10:
And Judge Rogers, you spoke earlier about danger, and I just want to highlight exactly, um, what, um, Mr. Brightville was mentioning briefly, which is section... Would I ask you, is it your position that, uh, EPA has made that determination?

[01:28:31] Speaker 11:
Made the determination that... That letting these provisions go into effect will be dangerous?

[01:28:38] Speaker 10:
EPA has said substantial concerns have been raised in that regard.

[01:28:41] Speaker 11:
But it has not made a determination, has it?

[01:28:46] Speaker 11:
I'm just asking.

[01:28:46] Speaker 11:
I haven't found it if they have made it.

[01:28:49] Speaker 10:
They have said that they're going to undertake a rulemaking to evaluate that, and that's the reconsideration process.

[01:28:57] Speaker 10:
I will say that 68.93 added in what felt like a bit of a switcheroo, but I can understand why they may have made this mistake, it requires companies to disclose to local response organizations, a term that is undefined,

[01:29:17] Speaker 10:
information that they identify as relevant to emergency response planning.

[01:29:26] Speaker 11:
You heard my question.

[01:29:27] Speaker 11:
What's your response to that?

[01:29:30] Speaker 11:
The chemical industry owner says, I'm not going to give you, Fire Chief, what you're asking for, because I think that would endanger national security.

[01:29:43] Speaker 11:
The Fire Chief says, well, I need it.

[01:29:46] Speaker 11:
So the chemical company owner says sue me.

[01:29:49] Speaker 10:
So the predicate of your question is that it's the fire chief asking that question.

[01:29:54] Speaker 10:
But what EPA has identified is that local emergency planning commissions could ask for that information as well.

[01:30:01] Speaker 11:
Could ask.

[01:30:03] Speaker 10:
Could ask.

[01:30:03] Speaker 10:
They could ask.

[01:30:04] Speaker 11:
It doesn't mean that I'm mandated to turn it over.

[01:30:07] Speaker 10:
But the rule, if I'm a company, if I'm a company and I'm a lawyer for a company, and they come to me and they say, the press, who is a member of the Local Emergency Planning Commission, has asked for this information.

[01:30:23] Speaker 10:
So the press, the public, a volunteer firefighter, a volunteer community member is on the LEPC.

[01:30:31] Speaker 10:
They ask for this information, they say it's relevant to

[01:30:34] Speaker 10:
Well, EPA, and they say EPA listed in the response to comments at JA-1008 that one of the things that people are encouraged to request are the field exercise evaluation reports.

[01:30:52] Speaker 10:
Those show the strengths and the weaknesses.

[01:30:56] Speaker 10:
of the field exercises that have occurred for responding to emergencies.

[01:31:02] Speaker 10:
And they contain vital information for criminals who could target facilities and the steelworkers who live next to the facilities, and me myself, who sees the Chevron refinery out the window of my house.

[01:31:16] Speaker 10:
So I am concerned, as a citizen and as a lawyer, that these provisions would allow this information to get out.

[01:31:26] Speaker 10:
And once it is out, it is out.

[01:31:29] Speaker 10:
It is on the internet.

[01:31:30] Speaker 08:
So even if we accept your point, why is that justification for delaying all of the deadlines for the entire rule?

[01:31:38] Speaker 10:
EPA did not delay all the deadlines for the entire rule.

[01:31:40] Speaker 08:
Or any deadlines beyond having to pertain to that provision?

[01:31:45] Speaker 10:
That's the only provision that is affected by the delay rule is 68.93 in terms of is the coordination provision.

[01:31:57] Speaker 10:
And I would say also

[01:32:01] Speaker 09:
That's because of the compliance dates again, right?

[01:32:03] Speaker 09:
Exactly.

[01:32:04] Speaker 10:
And we actually commented on the proposed rule and asked for broader relief, and UPA said no, and so now we'll have to comment, and that will be the regular process, and if we're unhappy, we'll challenge, and if somebody else is unhappy, they can challenge.

[01:32:21] Speaker 10:
And they said, you have to prepare.

[01:32:24] Speaker 10:
And so my clients have to prepare.

[01:32:27] Speaker 10:
That's where they are.

[01:32:28] Speaker 10:
And if they don't, they'll have to certify noncompliance.

[01:32:30] Speaker 10:
And to your earlier point, Judge Rogers, it was a good question.

[01:32:34] Speaker 10:
Companies have integrity policies.

[01:32:37] Speaker 10:
They are not allowed to violate the law willfully.

[01:32:41] Speaker 10:
That's a knowing violation.

[01:32:42] Speaker 11:
I wasn't suggesting that in my hypothetical either.

[01:32:48] Speaker 11:
If the coordination committee wants my national security plans and I refuse to turn them over, I think I'm violating the law.

[01:32:59] Speaker 10:
Under this provision, you would be.

[01:33:01] Speaker 10:
And you'd have to certify noncompliance in your Title V permit.

[01:33:06] Speaker 10:
And then that would expose you to a citizen suit under Section 304.

[01:33:10] Speaker 11:
I thought the rule was carefully worded.

[01:33:12] Speaker 11:
They can request it.

[01:33:15] Speaker 11:
All right.

[01:33:16] Speaker 11:
I get your point, and I gather these were the considerations that were raised and you would like further restrictions placed.

[01:33:29] Speaker 11:
on the disclosure requirements?

[01:33:32] Speaker 10:
Exactly.

[01:33:32] Speaker 10:
I mean, that's a big concern that we had is that there was no procedure for protecting it under the, for example, the Pipeline Hazards and Materials Safety Act.

[01:33:40] Speaker 10:
There are strict provisions for restricting access and certain things like the pipeline maps.

[01:33:46] Speaker 10:
To even go online and see the pipeline maps, you have to have certain security clearances.

[01:33:52] Speaker 10:
None of those procedures were considered.

[01:33:54] Speaker 10:
And basically, EPA took everything that was in the public disclosure provision

[01:33:59] Speaker 10:
and put it in the LEPC disclosure provision without understanding, because they didn't go out for notice and comment on it, that the public is on the LEPC.

[01:34:10] Speaker 10:
So it's out.

[01:34:11] Speaker 10:
There's no remedy to that.

[01:34:13] Speaker 10:
And I would submit to the court that EPA acted not only not arbitrary and capriciously, but did the only thing it possibly could do when this information came to its attention,

[01:34:24] Speaker 10:
as a responsible agency.

[01:34:26] Speaker 10:
And I would like to just respond briefly to, I believe, counsel for petitioner misspoke when she said that the Arkema incident would have been required to be investigated if these rules had gone into effect, not even taking into account the compliance states.

[01:34:43] Speaker 10:
The process and the chemical that was at issue at Arkema was not an RMP-covered chemical.

[01:34:50] Speaker 10:
So it is not subject to these rules.

[01:34:52] Speaker 10:
And the same is true

[01:34:54] Speaker 10:
For the Bruce Mansfield incident they cite in their brief, it's not an RMP facility.

[01:35:00] Speaker 10:
And then there was another one in there that is not RMP covered.

[01:35:03] Speaker 11:
So they just- So from your perspective, do you want further regulation?

[01:35:14] Speaker 10:
I think my clients have never said that the rules could not be improved.

[01:35:22] Speaker 10:
That doesn't mean that what EPA did is not dangerous and shouldn't be reconsidered in that a pause is not appropriate.

[01:35:31] Speaker 10:
It is appropriate here.

[01:35:33] Speaker 10:
It's a pause.

[01:35:34] Speaker 11:
So could I ask that during the 90-day period when EPA conducted the hearing, did your organization submit comments along this line to EPA?

[01:35:46] Speaker 10:
Yes.

[01:35:46] Speaker 11:
Thank you.

[01:35:47] Speaker 10:
As did many others.

[01:35:49] Speaker 11:
Thank you.

[01:35:52] Speaker 10:
Thank you for your attention.

[01:35:54] Speaker 11:
All right, Council for Intervener of the State of Louisiana.

[01:36:10] Speaker 01:
Thank you, Your Honor.

[01:36:11] Speaker 01:
May it please the Court?

[01:36:13] Speaker 01:
I'm Liz Merl, and I'm the Solicitor General for the State of Louisiana, and I represent a 12-state coalition of our also petitioners for reconsideration of the amended rule.

[01:36:23] Speaker 01:
Judge Rogers, I think I want to speak initially to the point, the question that you asked about why not just say no and litigate?

[01:36:32] Speaker 01:
And the answer to that question is because that takes time.

[01:36:36] Speaker 01:
And from a very practical standpoint, all states are the primary responders and the coordinators of response for emergency planning and responding to accidents as they occur.

[01:36:49] Speaker 01:
And we do that in a very coordinated way that in a system that was created after 9-11,

[01:36:57] Speaker 01:
and that's been refined now over the years through multiple accidents.

[01:37:02] Speaker 01:
There's additional federal congressional acts of Congress that take lessons learned from Hurricane Katrina, from Hurricane Sandy.

[01:37:11] Speaker 01:
I mean, to the point that we even now have an act of Congress that talks about how to deal with pets.

[01:37:17] Speaker 01:
because people won't leave if you can't move their pets.

[01:37:21] Speaker 01:
So, emergency response has dramatically changed since 9-11, and this rule, I mean, we raised these questions, and I think this goes to the point that the other interviewees raised about whether or not EPA considered and addressed these concerns.

[01:37:42] Speaker 01:
They did acknowledge that we raise legitimate concerns about both security and coordination.

[01:37:49] Speaker 01:
The problem is they didn't really fix them.

[01:37:51] Speaker 01:
They fixed them with a final rule that made the problem worse.

[01:37:55] Speaker 01:
And so what happens is they've created a situation where there's confusion.

[01:38:01] Speaker 01:
And confusion is the enemy of effective response.

[01:38:05] Speaker 01:
It always is.

[01:38:06] Speaker 01:
Confusion breeds chaos.

[01:38:08] Speaker 01:
It wastes time, and when you have chaos, confusion, and wasted time, you lose lives.

[01:38:14] Speaker 01:
And that's a fundamental aspect of emergency response.

[01:38:18] Speaker 01:
And so I think it's very, very important.

[01:38:21] Speaker 01:
We view that 20-month delay as a pause that gives some critical time.

[01:38:26] Speaker 01:
It is not arbitrary and capricious where we had no opportunity to provide, where there was no notice and no opportunity to comment on the change that was made.

[01:38:34] Speaker 01:
It's a limited delay.

[01:38:36] Speaker 11:
During the 90-day period in the hearing, did you submit these comments to EPA?

[01:38:40] Speaker 01:
We did submit the comments to EPA, and we have expressed our concern about both the coordination provisions being now more vague.

[01:38:48] Speaker 01:
We don't know who they are supposed to coordinate with because lower-case emergency response officials means multiple organizations now.

[01:38:57] Speaker 01:
There's no alignment, and there's still no alignment in these rules, even in the final rule with NIMS.

[01:39:03] Speaker 11:
Considerations.

[01:39:05] Speaker 11:
Suppose EPA goes through a rulemaking and decides to leave these provisions in place, much to your concern.

[01:39:18] Speaker 11:
What happens next?

[01:39:21] Speaker 01:
Well, I think we will take every opportunity we can to continue to try and provide notice and to provide comment.

[01:39:27] Speaker 11:
Of course, no, no.

[01:39:28] Speaker 11:
I'm taking it a step further.

[01:39:30] Speaker 11:
Suppose EPA hears your concerns and decides to leave in place this coordination provision.

[01:39:39] Speaker 11:
I'm assuming then the 12 states get together and figure out how we're going to implement this.

[01:39:46] Speaker 01:
Well, we would work as we always are and as we continue to do to coordinate on all hazards planning.

[01:39:53] Speaker 01:
So that's occurring now.

[01:39:55] Speaker 01:
It will continue to occur.

[01:39:57] Speaker 01:
It will occur, I hope, and would like to see EPA act in less of a vacuum in the context of the National Incident Command System and management, which would integrate

[01:40:10] Speaker 01:
EPA and EPRA and this entire emergency response planning, I'd like to see that more integrated with NIMS.

[01:40:18] Speaker 01:
I mean, that's, and I think that even DHS raised those concerns and would like to see more.

[01:40:24] Speaker 01:
And time gives us some time to do that.

[01:40:26] Speaker 01:
I mean, there's no question that the status quo, it's not arbitrary and capricious even for 20 months to allow some time

[01:40:37] Speaker 11:
to keep the status quo because- I guess what I'm raising is you represent a 12 state coalition.

[01:40:44] Speaker 11:
That coalition has had to meet on numerous issues and resolve matters that either are unclear or may be inadvisable.

[01:40:59] Speaker 11:
And so this is an ongoing process.

[01:41:02] Speaker 11:
And I hear sort of two lines here.

[01:41:06] Speaker 11:
One, we want EPA to do more, but we want it to do it differently.

[01:41:12] Speaker 11:
And two, we can do it ourselves.

[01:41:16] Speaker 11:
EPA is unnecessary here.

[01:41:18] Speaker 11:
We have all these, we have OSHA, we have the state laws, we have the county laws, we have municipal laws.

[01:41:27] Speaker 11:
So sort of get out of our way and let us resolve these matters.

[01:41:31] Speaker 11:
But then I hear, no, no, no, we want EPA to step in.

[01:41:35] Speaker 11:
And I would just comment, you know, Congress has acted to protect animals.

[01:41:39] Speaker 11:
But years ago, it acted to protect human beings and the environment.

[01:41:44] Speaker 11:
And it hasn't changed that law.

[01:41:47] Speaker 01:
And Your Honor, the states don't take the position that there's not some value in improving

[01:41:54] Speaker 01:
the these rules I mean I think that that's I don't think anybody actually disagrees that it's a good idea to improve and modernize the rules but the devil's in the details and and there's I think there's nowhere that that is more true in a situation of an emergency response and I think you can see the evidence of that in multiple acts of Congress that every time there's an event we have to

[01:42:22] Speaker 01:
We have to adapt to the lessons that we learn from that event.

[01:42:26] Speaker 01:
BP, the BP oil spill was a great example of that.

[01:42:29] Speaker 01:
And Louisiana was the point of the spear for that event.

[01:42:34] Speaker 01:
And it was a great example of a situation where we had a different emergency management response system that was led by the Coast Guard.

[01:42:43] Speaker 01:
And we had glitches and delays in the process because nobody had really drilled for that yet.

[01:42:49] Speaker 01:
And so the more we integrate the process, the more we talk and make sure that there is actual meaningful coordination with our federal agencies, with state agencies, and with the whole – that's the whole concept of national incident management, is that we have integrated

[01:43:06] Speaker 01:
coordination and control and that we have a uniform system of even vocabulary and if you look at the rules you will see and you look at and you compare that to FEMA rules and regs you will see that they don't even use the same vocabulary and that alone can create a problem.

[01:43:24] Speaker 01:
So I think that what I want to emphasize is how important it is

[01:43:32] Speaker 01:
in a context of emergency planning and response that coordination is really the critical linchpin of this process.

[01:43:41] Speaker 01:
And we do have ongoing coordination, but when you layer confusion and change that may again change and create more confusion,

[01:43:51] Speaker 01:
You are inhibiting the ultimate goal of this process and that is to improve emergency responding and emergency planning and response.

[01:44:01] Speaker 01:
And so we share the goal of improving.

[01:44:04] Speaker 01:
We obviously share the goal of wanting to save lives.

[01:44:08] Speaker 01:
We don't think that the delay will cause more lives to be in jeopardy.

[01:44:13] Speaker 01:
In fact, that the delay could, that not delaying the rule could, in fact, jeopardize more lives because it injects that element of confusion and chaos and delay, which can make the difference between a life saved and a life lost.

[01:44:28] Speaker 11:
Thank you.

[01:44:29] Speaker 01:
Thank you, Your Honor.

[01:44:34] Speaker 11:
All right, Council for the State Petitioners, we'll give you a couple of minutes here.

[01:44:39] Speaker 06:
Thank you.

[01:44:40] Speaker 06:
I just want to make three quick points.

[01:44:41] Speaker 06:
The first is a point of clarification.

[01:44:43] Speaker 06:
The emergency coordination provisions are not the only immediate provisions that are delayed by this delay rule.

[01:44:48] Speaker 06:
Another important set that had an immediate compliance date were improvements to accident investigation practices that facilities were meant to undergo.

[01:44:56] Speaker 06:
This meant things like investigating near misses, not just actual releases, and using trained personnel to conduct investigations and producing reports within 12 months of the accident.

[01:45:05] Speaker 06:
And EPA specifically found in implementing these requirements in the amendments that they were important so that facilities would have lessons learned from these accidents in time to prevent the next one from taking place.

[01:45:16] Speaker 06:
And those are delayed under this rule as well.

[01:45:19] Speaker 06:
Secondly, our statutory argument here is not in general.

[01:45:21] Speaker 09:
Can I ask you on the first point?

[01:45:23] Speaker 09:
One of the big arguments that's been made is that

[01:45:29] Speaker 09:
Without the delay rule, that provision is going to actually harm safety, not help safety and that the other provisions, major provisions,

[01:45:43] Speaker 09:
compliant states are far out into the future and really are not affected, at least at this time, are not affected.

[01:45:49] Speaker 09:
And that's why you raised these other provisions in your first point on rebuttal, which was a good point.

[01:45:53] Speaker 09:
But what about that, that the main provision that is being delayed is a provision that, in the judgment of EPA and others, like the state of Louisiana and the states, would, if allowed to stay in place, actually harm safety, not help safety.

[01:46:11] Speaker 06:
Well, a couple of answers to that.

[01:46:13] Speaker 06:
I mean, one is that EPA did not make actual specific findings that there would be harms that are caused by this process.

[01:46:19] Speaker 06:
What they said was that petitioners have raised various concerns about harms that we intend to consider in this 20-month process.

[01:46:25] Speaker 06:
The other is that there were no specific findings about, for instance, accident investigations that I can recall being particularly dangerous.

[01:46:31] Speaker 06:
And even as to coordination, the objection there was to the sharing of certain information.

[01:46:35] Speaker 06:
There are also requirements about, for instance... But what about the sharing?

[01:46:39] Speaker 06:
I mean, that alone is a problem, right?

[01:46:41] Speaker 06:
That is correct.

[01:46:42] Speaker 06:
I mean, it is a problem that EPA did address before, made changes to the rules to address it, and that put in protections to ensure that whatever safety concerns or national security concerns there might be could be worked out in the process.

[01:46:54] Speaker 09:
There's still a problem, so says a number of commenters.

[01:46:58] Speaker 09:
And I don't know the merits of that, but I just know that that's been raised.

[01:47:01] Speaker 06:
That's been raised.

[01:47:01] Speaker 06:
And EPA itself doesn't know whether that is an actual national security problem and is one of the core parts of this argument.

[01:47:07] Speaker 11:
Well, as we heard from Mrs. Eckert,

[01:47:12] Speaker 11:
that, no, excuse me, from Mrs. Broom, that on behalf of the Chemical Safety Advocacy Group, some changes were made that allow access that is clear, my words, not hers, clearly inappropriate.

[01:47:32] Speaker 11:
And there was not time to comment on those before the final rule was promulgated.

[01:47:40] Speaker 06:
Right, we disagree with that position.

[01:47:42] Speaker 06:
I mean, there were concerns raised about a broader set of information sharing provisions that EPA specifically responded to, made adjustments directly in response and to fix those problems, and then deemed those responses to be adequate to balance the national security and safety concerns with the important need for information.

[01:47:59] Speaker 06:
As I think my friend from Louisiana emphasized, coordination information sharing is important.

[01:48:04] Speaker 06:
Every state agrees with that.

[01:48:05] Speaker 06:
We are often local responders.

[01:48:06] Speaker 06:
Our individuals are on the front lines of these accidents.

[01:48:09] Speaker 06:
And we need that information to know what problems these first responders will face when they enter into these facilities with often unique and uniquely dangerous chemicals.

[01:48:18] Speaker 09:
Do you think what she just said is wrong?

[01:48:21] Speaker 06:
about about what a harm that the rule is left in place.

[01:48:26] Speaker 06:
We do.

[01:48:27] Speaker 06:
I mean, the information sharing requirements in the amendments were meant to address a very serious deficiency, which is that very basic requirements such as the

[01:48:36] Speaker 06:
the nature of the chemicals on these sites were often not being shared with local responders, meaning that people were going into these facilities blind.

[01:48:43] Speaker 06:
They didn't know, for instance, that a fire was being started by the chemical that is nothing like a wood fire, that requires different equipment, different safety protocols to follow.

[01:48:51] Speaker 06:
And as a result, they were both being injured by these accidents and also unable to effectively deal with the types of releases that were taking place here.

[01:48:59] Speaker 11:
As I understood, part of her argument, though, was that in applying certain standards,

[01:49:04] Speaker 11:
it made information, sensitive information, accessible by the public, which was totally inappropriate.

[01:49:15] Speaker 06:
I believe the public information provisions have been radically scaled down from the original proposal here, and really the state petitioners are here primarily interested in the information sharing with local responders, which would not by themselves be public information.

[01:49:29] Speaker 06:
But the second point I want to raise was on our statutory authority argument, which is that our argument is not a general attack on the agency's power to amend its rules or even its effective dates.

[01:49:38] Speaker 06:
It's instead a recognition that Congress focused on a particular type of delay here, which is delay pending agency reconsideration, and recognized that even when that reconsideration raised issues,

[01:49:49] Speaker 06:
that under the terms of the statute are of central importance to the outcome of the rule, that there was only a very limited delay that was permitted under 307D7B.

[01:49:59] Speaker 06:
And there's no indication in the text or the history of that provision that Congress cared about the process by which that delay came about.

[01:50:05] Speaker 11:
So let me understand a point you made earlier, Council.

[01:50:11] Speaker 11:
Both the interveners for the Chemical Safety Advocacy Group and the intervener for the State of Louisiana and the 11 other states said during the 90-day period, as I understood their response, these points were made to the agency.

[01:50:36] Speaker 11:
Was your earlier comment that that would have justified EPA setting up a rulemaking proceeding and going forward?

[01:50:46] Speaker 11:
Because at one point, and I wanted to clarify this, and maybe I misunderstood what you said, there would be no delay, no statutory limit on the time EPA would have

[01:50:59] Speaker 11:
to address those matters.

[01:51:01] Speaker 06:
I hope this is answering your question.

[01:51:04] Speaker 11:
Let me be clear.

[01:51:04] Speaker 11:
What I want to understand is you have a 90-day period.

[01:51:08] Speaker 11:
It's a public hearing.

[01:51:10] Speaker 11:
These concerns are presented.

[01:51:12] Speaker 11:
Then what?

[01:51:13] Speaker 11:
Does the agency have to act on them within 90 days?

[01:51:16] Speaker 11:
The agency does not have to act on them within 90 days.

[01:51:22] Speaker 06:
I'll say there's two things.

[01:51:23] Speaker 06:
One is there's no requirement the agency act on them within 90 days.

[01:51:26] Speaker 06:
They can take as long as they want to come up with the rule.

[01:51:28] Speaker 06:
What they cannot do

[01:51:29] Speaker 06:
is on the basis of the concerns that are raised to then delay the effectiveness of a final rule.

[01:51:35] Speaker 06:
But the second is the agency is not required to either rescind the rule or keep the entire thing in place.

[01:51:41] Speaker 06:
There are many things the agency could do in response to specific objections, including tailoring any changes to either substantive provisions or the effective dates based on actual factual findings where the agency's expertise is brought to bear.

[01:51:53] Speaker 09:
Doesn't that take time to do that?

[01:51:55] Speaker 09:
I mean, take time to think about how to do that?

[01:51:57] Speaker 09:
the economy and administration comes in this is a morass you're trying to figure out okay this provision that vision you're dealing with all the stakeholders

[01:52:07] Speaker 06:
takes time this absolutely takes time that's the ninety-day period is therefore and again congress days but you can you know you know this but the nineties is not much time to do the kind of process that would be a good process for something as complicated as this with all the people affected around the country but but two things one it may not be enough time but congress understood the reconsideration issues that would be raised in the ninety-day period including issues of central importance of the rule i'm getting myself now but i want to say it again which is

[01:52:37] Speaker 09:
what the 90-day thing you can do without notice and comment.

[01:52:42] Speaker 09:
before this provision ever came into place, the agency could always do notice and comment to change the effective date or compliance date of a regulation.

[01:52:49] Speaker 09:
So your argument, I think, has to be when 307 came in, it displaces that prior existing general authority.

[01:52:57] Speaker 06:
Well, that's correct.

[01:52:57] Speaker 06:
And what Congress was focused on was the outcome.

[01:52:59] Speaker 06:
They didn't want rules to be delayed pending the outcome of reconsideration proceeding.

[01:53:05] Speaker 06:
And we know that Congress was focused on that outcome because they also said judges couldn't delay the effectiveness of a rule.

[01:53:11] Speaker 06:
based upon a reconsideration.

[01:53:13] Speaker 06:
So it was not a concern about the process.

[01:53:15] Speaker 06:
That didn't displace the APA, correct?

[01:53:17] Speaker 06:
It didn't, but it did say that... So why now?

[01:53:19] Speaker 09:
If it didn't displace the APA, why shouldn't the same be here?

[01:53:22] Speaker 09:
It didn't displace the prior agency authority to do notice and comment.

[01:53:25] Speaker 06:
It did displace it in this narrow sense, which is, for both judges and for the agency, whatever other sources of authority they may have, they cannot rely upon the pendency of a reconsideration, including important issues raised there.

[01:53:37] Speaker 06:
as a basis for their life.

[01:53:38] Speaker 06:
That's the narrow statutory argument that we're making based upon 307.

[01:53:42] Speaker 06:
But even then, the agency can, as long as it makes factual findings outside of the mere pendency of a reconsideration, rely on its broader authority to change the rule, change the effective date, change the substantive standards.

[01:53:55] Speaker 06:
And there's no reason, and we haven't heard any specific finding from EPA, that for instance, altering the information sharing requirements here in an actual substantive amendment,

[01:54:04] Speaker 06:
required the two-year period.

[01:54:06] Speaker 06:
There's no specific finding on that.

[01:54:07] Speaker 11:
So walk me through this, Council, so I'm clear.

[01:54:09] Speaker 11:
Now, EPA during the 90-day period holds this hearing.

[01:54:13] Speaker 11:
The substantive concerns are expressed.

[01:54:16] Speaker 11:
And let's just assume that EPA agrees that it was a mistake to allow these community panels to have access to certain information.

[01:54:28] Speaker 11:
Now, what can EPA do?

[01:54:31] Speaker 06:
If they had a concern about that specific problem, there's nothing barring them from relying on their 112 authority to amend that part of the rule.

[01:54:38] Speaker 06:
And as part of that, to also change the effective date since the substantive standards have changed.

[01:54:42] Speaker 11:
So let me be clear.

[01:54:44] Speaker 11:
All right.

[01:54:44] Speaker 11:
So EPA decides we want to make an amendment, but it says,

[01:54:51] Speaker 11:
Maybe we want to look more carefully and see what's happening.

[01:54:55] Speaker 11:
I'm just trying to get the sequence of timing here because I hear you saying that of course EPA can proceed by the regular notice and comment rulemaking.

[01:55:07] Speaker 11:
Normally that happens after the agency has done some studies, received reports, etc.

[01:55:14] Speaker 11:
I understand your point about there's a lot of data in the record.

[01:55:18] Speaker 11:
So it's only a matter of new data that would justify this process, presumably.

[01:55:25] Speaker 11:
Right.

[01:55:25] Speaker 11:
Or EPA could simply announce, you know, notice of proposed rulemaking.

[01:55:31] Speaker 11:
We have these three petitions and there are certain concerns we have.

[01:55:35] Speaker 11:
We want to hear from the public

[01:55:37] Speaker 11:
on them within 60 days?

[01:55:40] Speaker 06:
They could do that as well.

[01:55:41] Speaker 06:
If these concerns are extremely serious and the agency is willing to actually stand behind a finding that they are serious, which they have not done here, they could proceed by emergency rulemaking if they satisfy the good cause standard as well.

[01:55:53] Speaker 06:
I mean, the agency is not hobbled from doing what an agency is supposed to do.

[01:55:56] Speaker 06:
which is to make findings based on record evidence that there are concrete problems that they are trying to address, and then taking the steps under the Administrative Procedure Act to address them.

[01:56:05] Speaker 06:
But what they may not do is what Congress prohibited, which is to simply say, we think there might be problems.

[01:56:11] Speaker 06:
People have raised problems that we may consider.

[01:56:13] Speaker 06:
And on the basis of that, put off a rule that was supposed to have concrete and immediate benefits to the public.

[01:56:19] Speaker 06:
Thank you.

[01:56:20] Speaker 11:
Thank you very much.

[01:56:23] Speaker 11:
All right, Council for Community Petitioners.

[01:56:29] Speaker 04:
Thank you.

[01:56:29] Speaker 04:
I'm going to try to make three quick points, Your Honor.

[01:56:32] Speaker 04:
On the statute, the argument on respondent side is equivalent to allowing the mayor filing of a reconsideration petition to stall the finality of a final rule, which is exactly why Congress repeatedly wrote the language it did into 7607D,

[01:56:49] Speaker 04:
and B1.

[01:56:51] Speaker 04:
It said that shall not be used as a delay tactic.

[01:56:53] Speaker 04:
And that language must be given effect because it is at the core of the framework for judicial review and rulemaking that is the only set of statutory constraints on EPA's authority.

[01:57:04] Speaker 04:
Barring that, as this discussion has shown, arbitrary and capricious review is meant to be an important final check.

[01:57:11] Speaker 04:
But those statutory constraints are critical to ensuring agency, whoever is in office, acts within

[01:57:17] Speaker 04:
its delegated power.

[01:57:20] Speaker 04:
The practibility question, I wanted to just highlight on that point that in connection with the statutory argument under 7412 R7, EPA did carefully consider the practicability for sources to comply.

[01:57:34] Speaker 04:
So this is one of the many examples where EPA is attempting to sidestep, dismiss, or downplay prior findings directly contrary to FOX, even though they contradict

[01:57:44] Speaker 04:
its own findings, and an example is the definition of practicability EPA promulgated 68.3, which defines practicability for sources.

[01:57:54] Speaker 04:
There's no discussion that it's meant to be relevant to anyone other than the owner or operator.

[01:58:00] Speaker 04:
Very briefly, there's so many record sites that I'd love to offer for the court in response to these arguments, but there's no evidence in this record that these immediate provisions are minor.

[01:58:12] Speaker 04:
In reality, the real world impact with Arkema, with the Eastman explosion that Connie Toohey faced, with the Valero refinery fire,

[01:58:23] Speaker 04:
Even a near miss at Arkema, the very purpose of part of these amendments was to ensure that a near miss of that nature would be investigated.

[01:58:34] Speaker 04:
It would have a knowledgeable person on the team.

[01:58:36] Speaker 04:
There would be a one-year deadline for a report, which could be immediately used and

[01:58:41] Speaker 04:
The response to comments from the first rule is replete with sites regarding how important it is to investigate that.

[01:58:48] Speaker 04:
So it's completely incorrect to say that it wouldn't have applied to strengthen protections for that community during the delay, including for the next hurricane season, which is scheduled to begin June 1st.

[01:59:01] Speaker 04:
That's just one of many examples, but the emergency response point is so directly contradictory to what EPA found repeatedly.

[01:59:10] Speaker 04:
Many sources are not subject to comparable requirements.

[01:59:13] Speaker 04:
Enhancing emergency response was necessary because they're often not included in the APCR community plan.

[01:59:21] Speaker 04:
J's 999 necessary, important, useful, better coordination will mitigate the impacts of accidental release to the surrounding community.

[01:59:30] Speaker 04:
We're hearing about the importance of coordination and the need for more coordination.

[01:59:34] Speaker 04:
It's hard to see how a situation could be more confusing and more harmful than what we saw at Arkema where first responders arrived on the scene and became sick because they did not have the information they needed.

[01:59:46] Speaker 04:
The Chemical Safety Board

[01:59:48] Speaker 04:
Other data in the record very strongly supports EPA's original findings.

[01:59:54] Speaker 04:
So even if the court considers EPA's attempt to downplay them now as significant, it has not engaged with that evidence.

[02:00:06] Speaker 04:
regarding it very briefly, there's no question that EPA did not just delay one measure.

[02:00:11] Speaker 04:
In addition to the examples I highlighted, the training, emergency response, the whole purpose and effect of this was to enable and ensure noncompliance.

[02:00:22] Speaker 04:
And that's an important part of this record and this case.

[02:00:26] Speaker 09:
It is in some ways a unique.

[02:00:28] Speaker 09:
The whole purpose and effect of this is to

[02:00:31] Speaker 09:
was to enable and make very clear.

[02:00:37] Speaker 09:
That seems like an overbroad statement.

[02:00:39] Speaker 09:
Compliance states are not affected.

[02:00:42] Speaker 09:
at the end of the delay period, they could just say, we're not changing anything in those compliance dates, would stay the same.

[02:00:46] Speaker 09:
We don't know anything about that yet.

[02:00:48] Speaker 04:
Absent EPS statements in the record, that might be true, Your Honor, but EPS said repeatedly the purpose of this is to relieve them of that responsibility so that they need not comply.

[02:00:57] Speaker 09:
During the, yes, during the period of the delay rule, I'm talking about the, they're still potentially going to have to meet that ultimate compliance date.

[02:01:05] Speaker 09:
I see what you are now referring to though, so I get that.

[02:01:07] Speaker 04:
But regarding the,

[02:01:08] Speaker 04:
Compliance dates.

[02:01:09] Speaker 04:
They're slightly later.

[02:01:10] Speaker 04:
There's significant evidence in the record that that time is necessary to lead up to years Is equivalent to delaying those it has a domino effect?

[02:01:21] Speaker 04:
It also removes protections that would have started incrementally to occur during the delay So there's additional harm as a result even after that 2019 date has arrived that we are trying to prevent and reduce through this effort you know in

[02:01:37] Speaker 04:
Some, the community petitioners respectfully request that this court vacate the delay rule, ensure that, now, EPA does not get the benefit of its illegal action by allowing this argument that has no, literally no stopping point

[02:01:56] Speaker 04:
to allow it to delay life-saving protections that people needed yesterday last year.

[02:02:01] Speaker 09:
If we vacate the delay rule, we would go right in, presumably, into litigation from the other direction, challenging the underlying rule, correct?

[02:02:13] Speaker 09:
I mean, that doesn't defeat your claim.

[02:02:17] Speaker 09:
I'm just trying to figure out the real world here.

[02:02:19] Speaker 09:
We'd go for one that everyone would switch sides, and we'd be on the litigation about the prior rule.

[02:02:26] Speaker 04:
That's correct, John.

[02:02:27] Speaker 04:
There's the process for the agency.

[02:02:29] Speaker 04:
There's the process for the court.

[02:02:30] Speaker 04:
The real world effect is people would immediately have stronger emergency response before June 1 when the next hurricane starts in the Gulf.

[02:02:39] Speaker 04:
So the immediate real-world effect is they would get the benefit of the protections that EPA found were necessary, based on quite a robust record.

[02:02:49] Speaker 04:
And we are very glad to continue to participate in that other litigation, and we are interveners there as well.

[02:02:58] Speaker 04:
But what we are here to focus on is the harm from EPA's unlawful, irrational delay, and we respectfully request vacature.

[02:03:06] Speaker 11:
Thank you.

[02:03:07] Speaker 11:
All right, we will take the matter under consideration.