[00:00:01] Speaker 01:
Case number 16-1314 at L. Samuel Macias at L, Petitioners vs. Environmental Protection Agency at L. Mr. Eucaylee for Petitioner, Ms.

[00:00:12] Speaker 01:
Samuel Macias at L. Ms.

[00:00:15] Speaker 01:
Perfetto for Petitioner, Sierra Club.

[00:00:18] Speaker 01:
Mr. Lane for Petitioner, Kansas City Board of Public Abilities.

[00:00:23] Speaker 01:
Ms.

[00:00:23] Speaker 01:
Berman for Respondents.

[00:00:58] Speaker 00:
Good morning.

[00:00:59] Speaker 00:
May it please the court, Robert E. Kiley, on behalf of the petitioners, which I'll refer to as the Colorado Springs residents.

[00:01:11] Speaker 00:
For areas other than Colorado Springs, EPA applied a relative standard for what data was acceptable to make a determination of attainment or non-attainment.

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They used a best available standard or a good enough

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standard, basically.

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That's consistent with this court's previous rulings.

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For example, in round one of the sulfur dioxide designations in the Treasury State case, the court held that the monitoring data was robust enough, with enough being the key term, to generate reliable

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reliable determination.

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And similarly in the Catawba case, the court held that best available information was what was required.

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However, in this case, EPA uniquely applied an absolute standard where it rejected the meteorological data by the nearby airport.

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Council, Council, you say in your opening brief,

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Colorado Springs residents' argument is not that EPA's decision that the airport meteorological data is not representative is per se arbitrary.

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Rather, their argument is that EPA used a different standard for judging representativeness of meteorological data for Colorado Springs versus the four areas which EPA designated non-attainment.

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But your argument here seems to be going back to the argument that you say is not the Colorado Springs residents argument, namely a claim against the EPA's finding well known of non-representativeness of the airport data.

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And it's, to me, a confused matter.

[00:03:33] Speaker 00:
I don't think so.

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I think I was saying exactly that.

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That the issue is clearly whether

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Um, the data is representative, but it's, um, relative to how EPA treated the four other areas.

[00:03:53] Speaker 02:
Would you say that's not that, uh, that's the only issue you're raising, but then you encountered through the government brief, the problem that you had not raised that before the EPA.

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I believe that issue was raised.

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We cited to Modeler Gray.

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We quoted his comments.

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in which he said that it's basically industry practice to accept nearby modeling as... He did not offer comparisons with specific places, did he?

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He did not.

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And I don't think the requirement is that the commenters

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Identify every fact.

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I think the requirement is that issues be raised.

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I think that it's sufficient.

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modeling is representative, then we framed the issue as whether it was consistent with those four specific examples.

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And it's true that the modeler did not provide those four specific examples, but I don't think the court has ever held that failure to identify every fact in the comments

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that you're going to use in the brief is waiving the issue.

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Did those four specific examples exist or did you know the EPA's position on those four other jurisdictions at the time comments were being made?

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Or was that only revealed when the final EPA decision?

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I guess it would be fair to say if one had read all, you know, hundreds of counties had issued, they would have known EPA's preliminary position, but they wouldn't have known EPA's final position.

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I did want to reserve two minutes.

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May it please the court, Lisa Perfetto for Petitioner Sierra Club.

[00:06:29] Speaker 07:
This case is about simple math with significant public health implications.

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In promulgating the sulfur dioxide air standard, EPA projected that national implementation would save up to 6,900 lives annually and prevent 54,000 asthma attacks.

[00:06:44] Speaker 07:
There's a very real cost to delaying attainment with the air standard, and this case is yet the court's opportunity to right EPA's wrong by ordering a designation of non-attainment for Gallaudet County.

[00:06:54] Speaker 07:
I'd like to make three main points.

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First, a basic mathematical fix to Ohio's modeling demonstrates nonattainment using even the most conservative adjustment possible.

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Second, that fix is consistent with the form of the air standard and shows that it's not necessary to rerun the modeling in order to determine that the area is in nonattainment.

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Finally, the slate dip in plant emissions during 2015 does not save the area from nonattainment.

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Regarding the mathematical fix, EPA approved Ohio's modeling with one exception.

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Ohio made an unapproved and unwarranted 38 percent discount.

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I'm not sure if my colleagues would agree with me, but I'm ready to assume you're right on the first two points.

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But you're writing off the 2013-15 data as something the EPA should not consider.

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It puzzles me in view of the statutory mandate the EPA make its decision on the basis of the available data.

[00:07:52] Speaker 07:
Sure, and the key fact here is that EPA simply didn't have a 2013 to 2015 modeling set that it considered reliable.

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It had Sierra Club set, but for EPA, that was unreliable.

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And significantly, Ohio had said that given the timeline by which EPA had to promulgate the designations, it simply wasn't going to be possible to prepare a 2015 emissions set to match what it had for 2012 to 2014.

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And so EPA was obligated to make its determination using the available information by July of 2016.

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I'm sorry, you're saying that the 2013-15 data had not been fully assessed?

[00:08:30] Speaker 07:
Yes.

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So what EPA had, it did have a 2013 to 2015 set from CR Club, but it found that unreliable.

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And then it basically just had the flat annual emissions from the two plants in 2015.

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It didn't have what it considered a reliable 2013 to 2015 modeling set.

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I mean, certainly if that were available, it would make sense for EPA to look at that.

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But the fact here is that it wasn't.

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And so, you know, in the world of emissions, new information, new data becomes available on a yearly basis.

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But you can't use the potential that some new data will

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will arise to stall non-attainment findings.

[00:09:12] Speaker 02:
EPA's reliance on new data, you don't seem to stress doubts about the quality of the new data, but about the assertive, much broader claim that the process will never end and no decision will ever be reached if EPA is allowed to rely on new data in reaching simply the conclusion that a particular area is unclassifiable.

[00:09:40] Speaker 07:
Yeah, it's both.

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I mean, one, if we waited for new information, we'd be waiting every year for more information to get the latest thing.

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And that would basically delay a final determination indefinitely and prevent the intended public health benefits from coming to pass.

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But it's also true that EPA didn't have the reliable 2013 to 2015 data.

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And that's why they needed to use what they had, which was a set from

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Ohio 2012 to 2014.

[00:10:10] Speaker 02:
Doesn't depend on, I would have to accept the idea that if clearly unreliable current data comes in, the EPA should not rely on that.

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even in declining to the side, but if plausibly reliable data comes in pointing to a particular direction, why is not simply a pause classifying it as unclassifiable a reasonable response?

[00:10:42] Speaker 07:
Because the statute requires that EPA acts.

[00:10:47] Speaker 02:
It requires that it act on the basis of available data, and it specifically gives it the option of unclassifiable.

[00:10:55] Speaker 07:
Yes, and unclassifiable is acceptable if and only if no data exists.

[00:11:00] Speaker 02:
No, no, no data.

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It's supposed to reach whatever conclusion is most reasonable on the basis of available data.

[00:11:11] Speaker 07:
Yeah, and the issue here is that they're simply not reliable 2015 data.

[00:11:16] Speaker 07:
To dig in slightly deeper, the reason that EPA is preferring Ohio's modeling, at least in part, is that it's using these specialized emission sets in which it had worked with American Electric Power, the then owner, kind of reassess what the continuous monitors had shown and make corrections where there had been errors.

[00:11:35] Speaker 07:
And that's part of why EPA likes the Ohio set more than the Sierra Club set.

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And that data set does not exist.

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And so it's impossible really to tell without Ohio doing that set whether Ohio's 2013 to 2015 set would be lower than its 2012 to 2014 set.

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Regarding... BPA must have some subtle definition of what accounts as available data.

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It has to be available, reliable data.

[00:12:03] Speaker 06:
I assume that's implicit in the phrase available data.

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And so do they have...

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there about when, you know, whether this 2013 to 2014 information met their standards for what should be relied on?

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If you had come to them with that data, would they have said, that's good, we'll use it?

[00:12:23] Speaker 06:
Or would it have failed their test for available, reliable data?

[00:12:29] Speaker 07:
Well, EPA has conceded that, given the timeline for these designations, that Modeling 2012 to 2014 is

[00:12:36] Speaker 07:
is consistent with its guidance.

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And so it's not requiring the 2013 to 2015 data.

[00:12:42] Speaker 07:
And so here, I mean, what they have is simply unreliable, and it can't be used to sidestep a non-attainment finding fully supported by the data it did have, which shows non-attainment in all circumstances.

[00:12:56] Speaker 06:
One of the questions I just had generally was that, in this case, the EPA

[00:13:01] Speaker 06:
As to Galia County, am I saying that right?

[00:13:05] Speaker 06:
Galia County.

[00:13:07] Speaker 06:
Said I don't like your data, I don't like your data, I don't like your data.

[00:13:12] Speaker 06:
I think there might be some different numbers out there coming, so we're not going to decide anything.

[00:13:19] Speaker 06:
What I was curious about is I didn't see, I wasn't clear, what is, is EPA's role that passive in this process?

[00:13:26] Speaker 06:
I get that it takes information from the states because it has a cooperative role with the states.

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Does EPA have an independent duty if there's data there?

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to process it itself or is this whole process more passive where if nobody gives it the good information it just can decide something's unclassifiable?

[00:13:45] Speaker 07:
Yeah, the statute is clear that it's EPA that has the obligation to make the area designations and in fact it has to do so even if the states fail to suggest any designation and here what they've done is essentially to throw up their hands

[00:13:59] Speaker 07:
in the face of a fix that shows that the information before them was enough to show nonattainment.

[00:14:04] Speaker 07:
Certainly in other instances, they've gone far beyond that.

[00:14:07] Speaker 07:
They've done their own modeling.

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They've revised and rerun state modeling.

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And to be clear, we're not saying they needed to do that.

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In fact, we're arguing quite the opposite.

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That is, the information that they had, they could take a look at it and say, well, it's showing that the

[00:14:23] Speaker 07:
The Ohio modeling is showing that it's at least 197, which is over the non-attainment value.

[00:14:28] Speaker 07:
It may be significantly more, but that doesn't matter because the designation question is a basic yes, no.

[00:14:34] Speaker 07:
If it's over the standard, it's not attainment, and that's true whether it's

[00:14:37] Speaker 07:
one microgram over or 200.

[00:14:39] Speaker 06:
Well, EPA says it will be really, really, really, really hard to do that math fix that you propose.

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And that's simply not true.

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You might need to rerun the modeling if you want to know precisely by how much Ohio's modeling is showing non-attainment.

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But that's not what we need to do for the non-attainment designation.

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We just need to know whether at minimum it's showing non-attainment.

[00:15:01] Speaker 07:
And here what we do

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is we take the very lowest background that Ohio used, and we factor out that 38% discount using that.

[00:15:09] Speaker 07:
And so that's yielding the minimum increase.

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It may well be more than that.

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In fact, it's exceedingly conservative to assume that that minimum background was happening at all hours in the three-year period.

[00:15:21] Speaker 07:
But we're showing that even if that were true, and that raises all of the numbers averaged by 1.6, we're still in non-attainment.

[00:15:30] Speaker 07:
I see I'm over time.

[00:15:31] Speaker 07:
Thank you very much.

[00:15:34] Speaker 07:
I'm sorry, Your Honor, did you have a question?

[00:15:36] Speaker 04:
No, thank you.

[00:15:51] Speaker 03:
Good morning, Dennis Lane for the Kansas City Board of Public Utilities, which we affectionately call BPU, so I may slip into that.

[00:16:01] Speaker 03:
We challenge

[00:16:03] Speaker 03:
The EPA is ruling that it could not determine that the NAICS was met for Wyandotte County.

[00:16:12] Speaker 03:
Just to give you some background, when Kansas came in, they found that Wyandotte County was what's called unclassifiable slash attainment.

[00:16:23] Speaker 03:
And EPA said, well, that's great, but you didn't look at Missouri, and we want you to look at Missouri because BPU's plant, Nierman, might have some effect in Missouri, particularly in Jackson County, Missouri.

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So BPU, because there was a public comment period, remodeled

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and addressed BPA's questions, particularly they, originally they had just done Wyandotte County when they had looked at the receptors, but they expanded it into Missouri and up to the north.

[00:17:05] Speaker 03:
And they looked at Jackson County in particular and what

[00:17:09] Speaker 03:
What BPU found, really, the Trinity Report found, was that in 2016, because the Beoldia plant— Excuse me.

[00:17:21] Speaker 04:
Before you get any further into the details, could you address EPA's argument that your client likes standing?

[00:17:28] Speaker 03:
Sure, Your Honor.

[00:17:32] Speaker 04:
And their argument is that there's no practical difference between unclassifiable attainment and unclassifiable.

[00:17:44] Speaker 04:
There's no practical difference between the two of them, so your client is not harmed by this designation.

[00:17:52] Speaker 03:
Right, Your Honor.

[00:17:53] Speaker 03:
I just want to point out one thing preliminarily and then I'll get to your question.

[00:17:59] Speaker 03:
If you look at JA24 and JA28, there's footnotes on both those pages.

[00:18:07] Speaker 03:
It's the same footnote.

[00:18:08] Speaker 03:
This is the EPA

[00:18:14] Speaker 03:
guidance to the regions.

[00:18:16] Speaker 03:
And what it says in the footnotes, I better read it because I don't want to be off on this.

[00:18:28] Speaker 03:
And I'm reading from footnote seven on JA-24.

[00:18:32] Speaker 03:
West States

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have and may continue to submit designation recommendations identifying areas as attainment, the EPA expects to continue the traditional approach where appropriate of using the designation category unclassifiable slash attainment.

[00:18:54] Speaker 03:
So to start off your question, Judge Taylor,

[00:19:01] Speaker 03:
EPA seems to think that attainment and unclassifiable slash attainment is the same thing.

[00:19:08] Speaker 03:
What EPA is saying to answer your question is that if you're either in unclassifiable or attainment,

[00:19:17] Speaker 03:
what you have to do is prevent, I think it's prevent, I know it's PSD, it's either prevent serious or significant deterioration.

[00:19:29] Speaker 03:
So yes, you would have to do that in either situation so things don't go bad.

[00:19:36] Speaker 03:
Obviously, if you're in non-attainment, you're gonna have to do more than that.

[00:19:40] Speaker 03:
But I don't see that

[00:19:43] Speaker 03:
as determinative of standing, if we're in the unclassifiable, so if we're in unclassifiable slash attainment, that based on the footnote means that we're essentially in attainment.

[00:19:58] Speaker 03:
And since BPU just put in

[00:20:01] Speaker 03:
$240 million worth of controls on Neerman, they can say to themselves, hey, OK, things are good.

[00:20:09] Speaker 03:
We're in attainment.

[00:20:11] Speaker 03:
All we have to do is make sure we continue that.

[00:20:14] Speaker 03:
We don't.

[00:20:15] Speaker 02:
But it is the case that under either of these, in either of these categories, the EPA is free at any time

[00:20:25] Speaker 02:
on its own motion to re-examine classification.

[00:20:30] Speaker 03:
Absolutely, Your Honor.

[00:20:31] Speaker 03:
So does that mean no one has standing because EPA can always re-designate?

[00:20:39] Speaker 02:
Most of it would be.

[00:20:42] Speaker 02:
At stake is whether the difference between these two categories can give anyone standing.

[00:20:50] Speaker 03:
I don't... Yes.

[00:20:54] Speaker 03:
The difference between these two categories is unclassifiable, so you don't know what you have to do.

[00:21:02] Speaker 03:
You don't know whether it's non-attainment or it's attainment.

[00:21:08] Speaker 03:
I'm sure you know Judge Williams that

[00:21:10] Speaker 03:
utilities plan for the long haul, you know, the amounts of money are very high.

[00:21:17] Speaker 03:
They have to plan, and if they're not sure that this is in attainment, then they have to worry about, okay, are we going to have to re-engineer Neerman, are we going to have to add new controls?

[00:21:30] Speaker 02:
I do understand the need for long-term planning and the problems that it poses, but unless there's a

[00:21:39] Speaker 02:
a real world difference in the susceptibility to change, it's still hard for me to see a basis for standing.

[00:21:53] Speaker 03:
I'm sorry.

[00:21:53] Speaker 03:
I think if you consider the footnote that I just read and you say that unclassifiable slash attainment

[00:22:06] Speaker 03:
basically is EPA saying you've met the NACS, which is the same thing as attainment.

[00:22:14] Speaker 03:
That is a difference.

[00:22:17] Speaker 03:
resolution from unclassifiable, which says we can't, we don't know.

[00:22:22] Speaker 06:
How is it practically different?

[00:22:23] Speaker 06:
If they just do unclassifiable, does that mean that they come back and check again the next year, that you have any extra reporting obligations, that there's extra paperwork you have to do if you're going to expand the plant, or for all regulatory purposes, are you treated the same as attainment, which is it?

[00:22:46] Speaker 03:
You know, Judge Malette, I guess the question is on which side are you on?

[00:22:52] Speaker 03:
If you're on EPA's side, they're going to say, well, you don't have to do anything.

[00:22:56] Speaker 06:
I'm asking you from your side.

[00:22:58] Speaker 03:
I'm going to tell you, on our side,

[00:23:01] Speaker 03:
you're going to be worried.

[00:23:03] Speaker 03:
Am I going to have to do something?

[00:23:04] Speaker 03:
Yes.

[00:23:04] Speaker 03:
Am I going to have to remodel?

[00:23:06] Speaker 03:
Do I have to file a new application to shift from unclassifiable to attainment?

[00:23:13] Speaker 03:
Might I have to re-engineer the plan or add new controls?

[00:23:18] Speaker 03:
Those would be different.

[00:23:19] Speaker 06:
Either way, you have to make sure you're not having any substantial deterioration in air quality.

[00:23:24] Speaker 06:
So even if you're long-term planning, you know you can't make the air worse.

[00:23:29] Speaker 03:
I'm sorry.

[00:23:29] Speaker 06:
Go ahead.

[00:23:30] Speaker 03:
Under any designation, you have to follow PSP.

[00:23:36] Speaker 03:
So I don't see that as a... To me, that's...

[00:23:39] Speaker 03:
Your minimum level of you're going to have to meet that no matter what.

[00:23:46] Speaker 06:
You don't have any obligation to make things better when you're in the unclassified.

[00:23:50] Speaker 06:
Like you would if you were in non-attainment.

[00:23:52] Speaker 03:
That's correct, but that's why I'm saying you're correct.

[00:23:56] Speaker 03:
But what I'm saying is if you're unclassifiable, the injury is you've lost the benefit of attainment and you have to... What's that benefit of attainment?

[00:24:07] Speaker 03:
The benefit of attainment is that the way you've, because we've re-engineered Neiman, the way we've re-engineered it

[00:24:17] Speaker 03:
and we put on air controls, that's meeting the NACs, and so we don't have to plan to do anything else.

[00:24:25] Speaker 03:
With unclassifiable... But if you engineer now to meet the NACs... Pardon me?

[00:24:30] Speaker 06:
If you engineer now to meet the NACs, you're in perfectly fine shape, regardless of what your status is, as long as you're engineering to meet the NACs.

[00:24:39] Speaker 06:
Won't you be okay?

[00:24:41] Speaker 03:
No, because unclassifiable creates uncertainty for you as to whether what you've done.

[00:24:50] Speaker 03:
BPU thinks it's met the NACs.

[00:24:53] Speaker 03:
My whole merits argument was that we showed that we met the NACs not only in Wyandotte County, which nobody cares, nobody disputes, but also in Jackson County, Missouri.

[00:25:06] Speaker 03:
But now we don't know whether we've met the NACs.

[00:25:11] Speaker 03:
We have to prepare for that possibility that they would find it's non-attainment.

[00:25:18] Speaker 06:
Could you have that same problem if you were in attainment?

[00:25:21] Speaker 06:
Would you just weren't sure how the measurements from coming in from Missouri or elsewhere were going to happen two years from now or what the standards for NACS might be three years from now?

[00:25:30] Speaker 06:
Would you not have that same problem?

[00:25:33] Speaker 03:
That would be a different case, and we would be here probably arguing that the NAC shouldn't be lower than 75 PBB, which is its present level.

[00:25:43] Speaker 03:
And if they found we were in non-attainment, then we would come back if we thought they were wrong.

[00:25:49] Speaker 03:
Here, if you look at JA 243, you'll see a table.

[00:25:54] Speaker 03:
We're not close.

[00:25:57] Speaker 03:
It isn't a question like the last one.

[00:26:00] Speaker 03:
Are we one micron over?

[00:26:03] Speaker 02:
Council, are there any empirical data on the frequency of EPA moves to change, on the one hand, an unclassifiable designation, and on the other hand, an unclassifiable slash non-attainment.

[00:26:24] Speaker 03:
No, it's unclassifiable attainment.

[00:26:26] Speaker 02:
I'm sorry, attainment.

[00:26:28] Speaker 02:
the two issues, the two categories we're talking about.

[00:26:32] Speaker 02:
Are there any data on preconceived understanding of those?

[00:26:36] Speaker 03:
If there are, I don't know.

[00:26:37] Speaker 03:
I don't know them.

[00:26:40] Speaker 04:
Okay, thank you.

[00:26:41] Speaker 03:
Thank you, Your Honor.

[00:26:42] Speaker 04:
We'll hear from, let's see, EPA, right?

[00:26:46] Speaker 04:
Yes.

[00:26:46] Speaker 04:
Okay.

[00:26:49] Speaker 08:
Good morning, Your Honors.

[00:26:50] Speaker 08:
Amanda Berman on behalf of Respondent EPA.

[00:26:54] Speaker 08:
With me at council table is Andrea Kriller from the EPA.

[00:26:57] Speaker 08:
Petitioners challenged three out of 61 area designations that EPA made in July of 2016 in regard to the primary national ambient air quality standard for sulfur dioxide.

[00:27:08] Speaker 08:
In each of these three instances, EPA concluded that the available data did not show at that particular time that petitioners preferred designation was appropriate.

[00:27:18] Speaker 08:
And so as Clean Air Act section 7407D instructs,

[00:27:22] Speaker 08:
it designated the area unclassifiable.

[00:27:25] Speaker 08:
I'd like to briefly highlight the key reasons that each of those three decisions was reasonable, starting with the Colorado Springs area.

[00:27:33] Speaker 08:
Petitioners rightly assert that EPA regularly makes its determination decisions based on the best available data.

[00:27:40] Speaker 08:
But for the data to be the best available, it has to be good enough.

[00:27:44] Speaker 08:
Here, EPA reasonably concluded, and its analysis on this point can be seen in JAPH 518 in the response to comments document, that the Colorado Springs Airport meteorological data wasn't good enough.

[00:27:57] Speaker 08:
It wasn't representative enough of conditions at the Drake facility to form the basis for a non-attainment designation.

[00:28:04] Speaker 06:
I see a lot of the EP going, no, we don't like that.

[00:28:14] Speaker 06:
No, we don't like that.

[00:28:16] Speaker 06:
But making no apparent efforts to take what's before it

[00:28:21] Speaker 06:
or actually proactively get the information.

[00:28:24] Speaker 06:
You have, I think Drake's a coal-powered plant, correct?

[00:28:30] Speaker 06:
Or had been?

[00:28:31] Speaker 08:
In regard to the Sierra Club issue?

[00:28:33] Speaker 06:
No, no.

[00:28:34] Speaker 06:
Sorry.

[00:28:34] Speaker 06:
Is the Drake plant coal burning?

[00:28:37] Speaker 06:
I believe so.

[00:28:38] Speaker 06:
Okay.

[00:28:38] Speaker 06:
All right.

[00:28:42] Speaker 06:
How come there's no measurements?

[00:28:43] Speaker 06:
You're getting reports.

[00:28:44] Speaker 06:
Presumably you're getting emissions from them.

[00:28:45] Speaker 06:
Why do you just get to throw up your hands and say, we don't like your meteorological data, and we're not going to make any effort to see based on what rate must be filing reports.

[00:28:57] Speaker 06:
Monitor somewhere else there.

[00:28:59] Speaker 06:
You've got a coal plant.

[00:29:00] Speaker 06:
Collier Springs is not that big an area.

[00:29:03] Speaker 06:
You've got the Rockies blocking the air in.

[00:29:05] Speaker 06:
It should have been possible to get this information.

[00:29:07] Speaker 06:
And we know EPA had a really, really, really, really long time to get this data.

[00:29:13] Speaker 06:
So how come it's okay now just to say I don't like your data?

[00:29:16] Speaker 08:
So I think we have to back up a second, Judge Millett.

[00:29:19] Speaker 08:
So this set of designations were designations for area where EPA didn't have monitoring data that showed it clear non-attainment for the first round of designations.

[00:29:28] Speaker 08:
These are designations where EPA knew it was going to have to rely on modeling.

[00:29:32] Speaker 08:
And to have modeling that's accurate, you have to have several key inputs.

[00:29:35] Speaker 08:
You've got to get a representative set of meteorological data in addition to the emissions data.

[00:29:41] Speaker 08:
Now, EPA has a lot of its own emissions data in addition to what states submit.

[00:29:45] Speaker 08:
It has the CAMD, which is an air monitoring database that shows emissions from plants.

[00:29:51] Speaker 08:
But here, in regard to this area, the Colorado Springs area, what it discussed at length in responding to comments was that it didn't have meteorological data that was good.

[00:30:00] Speaker 08:
There was the airport data, there was a highway set that nobody argued should have been used because we lacked the right inputs for that.

[00:30:06] Speaker 08:
And to have modeling that's accurate, we've got to have the right meteorological data.

[00:30:11] Speaker 06:
I don't understand how the federal government cannot have

[00:30:14] Speaker 06:
reliable meteorological data when there's not only an airport there, but you've got the Air Force Academy flying all over the place there.

[00:30:22] Speaker 06:
They've got to have actually really good meteorological data in Colorado Springs.

[00:30:27] Speaker 06:
The federal government has to.

[00:30:28] Speaker 06:
And so how can it just be that

[00:30:31] Speaker 06:
We don't like what you presented, and so we're saying we can't have any.

[00:30:34] Speaker 08:
That's what I'm not understanding about.

[00:30:35] Speaker 08:
I can't answer why there's not a station at the Air Force Academy.

[00:30:40] Speaker 08:
Traditionally, EPA has looked at nearby airports where it does have access to the data, and it looks at, are those good enough?

[00:30:47] Speaker 08:
If it doesn't have that, then the state and EPA can

[00:30:50] Speaker 08:
can work to get an on-site meteorological station as has now been done in regard to this area.

[00:30:57] Speaker 08:
The problem is that we didn't have enough data from that on-site meteorological station at the time of designations to use that on-site data.

[00:31:05] Speaker 08:
And when we compared that on-site data to what we had from the Colorado Springs Airport, we saw some key differences.

[00:31:11] Speaker 08:
And this is where that area really was different from the other four non-attainment areas that petitioners point to.

[00:31:17] Speaker 08:
As you can see in the diagram that we included on page 22 of our brief, it's larger on page 59 of the Joint Appendix.

[00:31:25] Speaker 08:
These are very different areas topologically, topographically, sorry.

[00:31:29] Speaker 08:
To the immediate west of the Drake plant, we've got the Rocky Mountains, we've got Pikes Peak to the immediate left, a very steep change in elevation very close.

[00:31:39] Speaker 08:
The airport is in a flatter area where you've got a change in elevation that's further away to the north.

[00:31:44] Speaker 08:
And so what EPA saw when it compared the wind roses was it had very different winds at the two areas, and that's critical when you're trying to determine

[00:31:51] Speaker 08:
if meteorology is representative, because you're trying to discern how the plume, the pollutant plume, is going to mix, how it's going to move and where it's going to settle.

[00:32:00] Speaker 08:
And so the meteorology really matters in that way.

[00:32:03] Speaker 08:
Now, petitioners argue that EPA has failed to articulate an objective standard, but that's because this is necessarily a qualitative multi-factor analysis

[00:32:13] Speaker 08:
of the very type that this court approved of in the Catawba County case.

[00:32:17] Speaker 08:
EPA balances factors, including distance from the meteorological station to the airport, wind speed, and direction.

[00:32:25] Speaker 06:
And so, as this court said in the Mississippi Commission on Environmental Quality case, EPA... I'm still understanding why EPA, as part of this whole process, that itself was engaged and didn't have some obligation to get its own data, instead of, again, waiting for someone to give data and say,

[00:32:41] Speaker 06:
no good, and then starting the process of collecting data.

[00:32:47] Speaker 08:
Well, we understand your frustration there, Your Honor.

[00:32:50] Speaker 08:
EPA noted that this was going to be an issue when it promulgated the 2010 NACs.

[00:32:54] Speaker 08:
What it's done to fix that issue is it then promulgated the 2015 data requirements rule, which under that rule, states are now going to have to submit monitoring or modeling for all areas, which

[00:33:05] Speaker 08:
The statute didn't require that, prior regs didn't require that.

[00:33:08] Speaker 08:
So EPA recognized there was a hole, and it is fixing it moving forward.

[00:33:12] Speaker 08:
But under the consent decree that resulted in making these designations at this time, EPA had to work with the information it had.

[00:33:20] Speaker 08:
And it didn't have a representative meteorological set for the Colorado Springs Airport.

[00:33:25] Speaker 06:
So you get the data.

[00:33:27] Speaker 06:
there or in Wyandotte, Kansas or somewhere, does the EPA have a practice or rules governing how it responds to?

[00:33:38] Speaker 06:
Imagine hypothetically the new data showed a different status, either pushing it into non-attainment or pushing it into attainment.

[00:33:47] Speaker 06:
Does EPA have a tradition of reacting

[00:33:50] Speaker 06:
promptly to that, or does, you know, how long do you wait before you do something with this new information?

[00:33:58] Speaker 08:
So under Section 7407D, C3, I believe, the administrator or the state can reinitiate the designations process at any time.

[00:34:10] Speaker 08:
So if EPA saw that there was a big discrepancy between a current designation and the data that's coming in, it could use that process to do that, or somebody could petition EPA to use that process to do that.

[00:34:20] Speaker 08:
I do want to briefly address the waiver issue that we believe is present in regard to this Colorado Springs designation.

[00:34:28] Speaker 08:
In their reply brief, petitioners cite to a reference in a comment that EPA sometimes uses airport data from airports that are even further away.

[00:34:37] Speaker 08:
We don't think that that was enough to raise the question of disparate treatment, that EPA's treated this area differently than other areas.

[00:34:45] Speaker 08:
EPA explained why it considered other sets of airport data representatives

[00:34:50] Speaker 08:
At the proposal stage in regard to those four designations that petitioners point to, we identify the relevant joint appendix sites in footnotes 22 and 23 of our brief.

[00:35:00] Speaker 08:
So those designations with the representative airport data from those other airports were pointed to by EPA at the proposal stage.

[00:35:10] Speaker 08:
they could have raised this issue, then they didn't.

[00:35:13] Speaker 08:
Under this court's decision and National Association of Clean Air Agencies from 2007, an objection has to be prominent and clear enough to put the agency on notice.

[00:35:23] Speaker 08:
We don't think that was the case here.

[00:35:26] Speaker 08:
Moving on to the Gallia County area, this was a close call and we think EPA reasonably concluded it needed better data to figure out which side of the NACs the area falls on.

[00:35:38] Speaker 08:
Now, petitioners argue that EPA shouldn't get deference here because this is basic NAC.

[00:35:41] Speaker 06:
Do you need better data or do you need to just rerun the data?

[00:35:46] Speaker 08:
Well, Your Honor, our position on whether EPA should have rerun the data is that it's not that simple.

[00:35:51] Speaker 06:
It might be simple, it might be complicated math, but you started with we need new data, and their position is no, you've got the data, you've got it for the years you identified that you want submissions based on, and maybe it's a complicated math program, but we've got great computers these days.

[00:36:12] Speaker 06:
Why can't you rerun it?

[00:36:14] Speaker 06:
Tell me exactly how many days and how much resources it would take just doing their most conservative modeling.

[00:36:21] Speaker 06:
Don't have to get precise.

[00:36:22] Speaker 06:
You just have to see if they crossed the non-attainment line.

[00:36:25] Speaker 06:
Do you have any specifics on that?

[00:36:26] Speaker 08:
Well, here's the specifics I can give you.

[00:36:28] Speaker 08:
So for EPA to do that, it would have had to recalculate the hourly concentration at each of the 34,200 receptors in the model.

[00:36:36] Speaker 08:
That's the data points in the model.

[00:36:38] Speaker 08:
So that's close to a total of 300 million data points for each of the three years.

[00:36:43] Speaker 02:
But, Count Counselor, are you taking into account the argument of the petitioners that all they're asking is for an increase

[00:36:53] Speaker 02:
which would be the minimal increase of the minimal background concentration, taking it from 1 to 1.61.

[00:37:04] Speaker 08:
So what we think their math shows, what their math shows is that if EPA redid the modeling, and we don't think that's an easy fix, we're not even sure we could do it.

[00:37:13] Speaker 08:
It depends on which modeling files and what set of raw data we got with the modeling.

[00:37:17] Speaker 08:
And again, that was in April of 2016, round two of the modeling after EPA had already asked for more data.

[00:37:23] Speaker 08:
three months before the designations.

[00:37:25] Speaker 08:
But taking just their math, the reason we don't think it's good enough to support a non-attainment designation is because at best all it shows is that you're likely to end up right over the next.

[00:37:37] Speaker 08:
So the math they do isn't a specific, it doesn't point to a specific design value.

[00:37:43] Speaker 08:
I'm sorry, what do you mean by it?

[00:37:46] Speaker 06:
What do you mean by it?

[00:37:47] Speaker 06:
You said they're likely, it shows they're going to likely be over the next.

[00:37:50] Speaker 06:
Yes.

[00:37:50] Speaker 06:
And this is estimation, this is, right, this is standards, and so that's the test.

[00:37:55] Speaker 08:
We tried to explain this in footnote 35 of our brief.

[00:37:58] Speaker 08:
So because of, if you back out the background concentration, the incorrect one that the state used, if you take

[00:38:05] Speaker 08:
out that value, first you have to segregate out the background concentration, figure out what the right number is, and put that back in.

[00:38:12] Speaker 08:
And that, if you do that for each data point, for each of those 300 million data points I just referenced, that could easily change what was the fourth highest data point each year.

[00:38:21] Speaker 08:
So their math doesn't show what the resulting design value would be.

[00:38:26] Speaker 08:
It doesn't tell us what the new average over three years is.

[00:38:29] Speaker 08:
What it shows us is that it's likely to end up right over the next, and we agree with that proposition.

[00:38:34] Speaker 08:
But the critical thing here from EPA's perspective is that the data before the agency also included actual emissions from a more recent three-year period

[00:38:43] Speaker 08:
from 2013 to 2015 that were significantly lower than those used in the state's modeling, the same modeling we're talking about here.

[00:38:52] Speaker 06:
But that's changing the rules of the game after the fact.

[00:38:55] Speaker 06:
You said, give us this time period.

[00:38:56] Speaker 06:
They gave you that time period.

[00:38:59] Speaker 06:
Someone came forward with data.

[00:39:00] Speaker 06:
You said, you've got this discount in there.

[00:39:03] Speaker 06:
That's no good.

[00:39:04] Speaker 06:
But you've got the data.

[00:39:06] Speaker 06:
And you're saying, yeah, it will be hard to probably acquire a computer or maybe some Excel spreadsheets.

[00:39:10] Speaker 06:
But I still haven't heard that we couldn't do it and that quite frankly with computers today we couldn't do it within a few days or a week.

[00:39:20] Speaker 06:
We have the data to make the decision.

[00:39:22] Speaker 06:
We just don't want to do it.

[00:39:25] Speaker 08:
Your Honor, my understanding is that, as I stand here today, the agency is still not sure it could do it based on the raw data files that was provided with the model.

[00:39:34] Speaker 08:
When somebody gives you a model, it doesn't just hand them a program that they can push the button and redo it.

[00:39:39] Speaker 08:
It gives them a set of inputs.

[00:39:40] Speaker 08:
Sometimes those inputs are done in a way that you can back out the background concentrations.

[00:39:46] Speaker 08:
Sometimes they're not.

[00:39:47] Speaker 06:
Could you tell Ohio to redo it, get rid of your discount and redo it?

[00:39:50] Speaker 08:
Well, Your Honor, we had already done that once.

[00:39:52] Speaker 08:
This time, round two, we're in April 2016.

[00:39:54] Speaker 08:
We're three months away from the final designations.

[00:39:57] Speaker 08:
I think it's reasonable for EPA to say at this point, okay, you know, the state, again, gave us flawed modeling.

[00:40:03] Speaker 08:
We can tell, and we agree with petitioners, that we can... Would it have taken more than three months for EPA to have done the math?

[00:40:11] Speaker 08:
Your Honor, what I'm saying is I'm not sure we even had the raw data that would allow us to do the math.

[00:40:15] Speaker 06:
Would it have taken Ohio more than three months to do this?

[00:40:17] Speaker 06:
I can't imagine.

[00:40:19] Speaker 08:
I don't know, Your Honor.

[00:40:20] Speaker 08:
I don't know whether it would happen.

[00:40:21] Speaker 06:
But we think it's reasonable for EPA to say... How long time... You rejected their first model, sent it back, and then they sent you this one.

[00:40:27] Speaker 06:
What was the time difference between those two models?

[00:40:31] Speaker 08:
The first model was from 2015.

[00:40:33] Speaker 08:
I don't remember exactly when in 2015.

[00:40:35] Speaker 08:
This was in April 19, 2016, the absolute last day on which we said that Ohio could submit another model.

[00:40:41] Speaker 08:
So we really didn't have time to go back for round three.

[00:40:44] Speaker 08:
But in any event, what EPA said is, okay, we're looking at this modeling, and we can see you might end up right over the next, but at the same time, we do have the 2015 actual emissions.

[00:40:53] Speaker 08:
And we go through those in Joint Appendix, page 608.

[00:40:57] Speaker 08:
And that is data that's also before the agency.

[00:41:00] Speaker 08:
EPA had that later three-year set, and significantly lower.

[00:41:03] Speaker 06:
Did that later three-year set tell you they were in attainment, or did you just go, oh, that's more data that raises a question mark?

[00:41:09] Speaker 08:
What we said is it pushes in the opposite direction.

[00:41:11] Speaker 08:
So if we've got this one flaw in the state's modeling debt,

[00:41:15] Speaker 08:
suggests that you might end up pushed straight a little bit over the line towards not attainment.

[00:41:19] Speaker 08:
We've got another issue with the modeling in that we think they used overly high emissions that pushes you back in the other direction.

[00:41:26] Speaker 06:
We don't think it was overly high emissions.

[00:41:27] Speaker 06:
You think something has changed in the operation of the plant.

[00:41:30] Speaker 06:
You're not challenging the accuracy of the data for the years they captured, are you?

[00:41:34] Speaker 06:
I thought you thought there was a change in the nature of the plant's operation.

[00:41:38] Speaker 06:
That's why things change.

[00:41:39] Speaker 08:
No, here we just, we had a later set of emissions and this is, there's a table on Joint Appendix page 608 that shows you the change in emissions each year.

[00:41:48] Speaker 08:
And even for some of the earlier years, EPA had already, was already in that table substituting out the emissions Ohio gave it for its own because it thought Ohio's were off.

[00:41:57] Speaker 08:
So again, EPA is looking at how do we reconcile all these moving parts in the modeling the state gave us.

[00:42:03] Speaker 08:
And we think that with different data suggesting different conclusions, it was reasonable for EPA to decide that the most appropriate designation at that time was unclassifiable.

[00:42:13] Speaker 08:
As this court said in the City of Waukesha case in 2003, the resolution of contradictory data lies well within EPA's expertise.

[00:42:22] Speaker 08:
I'd like to move on to Wyandotte, Kansas briefly.

[00:42:25] Speaker 08:
Can you answer my question?

[00:42:30] Speaker 02:
Are there any data on the frequency of EPA taking the initiative to change unclassifiable as opposed to changing unclassifiable slash attainment?

[00:42:42] Speaker 08:
We don't have any data on that, but we don't think those data would matter anyway, because as a matter of law, it's a blank slate every time.

[00:42:50] Speaker 08:
An unclassifiable designation doesn't signify one way or the other anything for the next time around.

[00:42:57] Speaker 08:
And the same is true for an attainment designation.

[00:42:59] Speaker 08:
So if we have that data and it showed that statistically unclassifiable designations move more often to non-attainment than attainment designations, that would simply be because, from our view,

[00:43:10] Speaker 08:
the data they're dealing with was already in the middle.

[00:43:13] Speaker 08:
It was already borderline, whereas the data supporting an attainment designation is likely to have already been well in the other direction.

[00:43:20] Speaker 08:
But in any event, as this court explained in its memorandum opinion in the Catawba County case... Wait, wait, wait.

[00:43:25] Speaker 06:
You said if they're in attainment, they're likely to be well in the other direction.

[00:43:27] Speaker 06:
Couldn't someone just be over the line on attainment?

[00:43:30] Speaker 08:
They could be, but I'm saying that if there were data that showed it statistically more often unclassifiable areas are designated nonattainment next time around, we don't think that's because the unclassifiable designation itself has that meaning.

[00:43:45] Speaker 08:
That's simply because the data are already in the middle where that's less likely to be true in regard to an attainment area.

[00:43:52] Speaker 08:
But, you know, we think this is governed by the courts.

[00:43:55] Speaker 06:
So they really are in a less stable position then?

[00:43:58] Speaker 06:
So I think the whole point of unclassifiable is actually not that their data is in the middle.

[00:44:03] Speaker 06:
It's that we just don't have reliable data to make a decision.

[00:44:08] Speaker 06:
So here, moving to the data that we do have, EPA has long been clear that if you're going to use an emissions limit instead of actual... So unclassifiable, does that mean there's actually data in the middle pointing both directions, or does that mean...

[00:44:25] Speaker 06:
Does that mean we don't have sufficient data to make a determination at this point?

[00:44:28] Speaker 08:
It can mean either of those things.

[00:44:30] Speaker 08:
The statute defines it as cannot be classified on the basis of available information.

[00:44:35] Speaker 08:
Sometimes that's because nobody submitted any information.

[00:44:38] Speaker 08:
Sometimes that's because we've got submissions that have internal contradictions or we've got multiple submissions that point different directions.

[00:44:49] Speaker 08:
Here, the limit they point to, the emissions limit that they wanted EPA to use, was not even enforceable at the state level until December of 2016, six months after the designations were made.

[00:45:03] Speaker 08:
And again, sorry to overuse it, the Catawba County case, this time in its reported opinion, the court agreed that emissions reductions that had been committed to but were not yet in effect were too speculative to form the basis for an attainment designation.

[00:45:17] Speaker 08:
We think it should reach the same conclusion here.

[00:45:20] Speaker 08:
And I see that my time is well over.

[00:45:22] Speaker 08:
If the court has any other questions, I'd be happy to answer them.

[00:45:24] Speaker 04:
No.

[00:45:25] Speaker 04:
Thank you very much.

[00:45:26] Speaker 04:
Thank you.

[00:45:27] Speaker 04:
Let's see.

[00:45:30] Speaker 04:
We will hear from the intervener, right?

[00:45:34] Speaker 04:
Esther Langworthy.

[00:45:40] Speaker 05:
May it please the court, I am Lucinda Langworthy and I represent a respondent intervener.

[00:45:47] Speaker 05:
I think you said.

[00:45:48] Speaker 05:
Sorry, you're right.

[00:45:51] Speaker 05:
The utility and regulatory group.

[00:45:54] Speaker 05:
I call it you are or the group for short.

[00:45:56] Speaker 05:
Yes.

[00:45:57] Speaker 05:
In your order on Friday, you asked that I be prepared to address the group's standings.

[00:46:03] Speaker 05:
Let me start with that.

[00:46:05] Speaker 05:
We believe that your extending is evident from the record and the briefs in this case.

[00:46:12] Speaker 05:
This is a rule about – you asked if Drake was a coal-fired power plant.

[00:46:17] Speaker 05:
All the designations in this rule are of areas surrounding coal-fired power plants.

[00:46:24] Speaker 05:
That's how the areas were selected for designation.

[00:46:28] Speaker 05:
UARG is an association of electric utility generating companies.

[00:46:35] Speaker 05:
Most of the UARG members own coal-fired power plants.

[00:46:39] Speaker 06:
Do they own them in these regions that are at issue here?

[00:46:42] Speaker 06:
Pardon me?

[00:46:43] Speaker 06:
Have you put into the record that you have members in the regions that are at issue here?

[00:46:49] Speaker 05:
We did not put that in the record.

[00:46:51] Speaker 05:
Keep in mind, when we filed our motion to interview, we didn't know where the areas were, but I can tell you that we do have members in the areas at issue here.

[00:47:03] Speaker 02:
All three?

[00:47:05] Speaker 05:
We are not discussing the Wyandotte County.

[00:47:09] Speaker 05:
We do have members.

[00:47:11] Speaker 02:
The Ohio and Colorado ones.

[00:47:13] Speaker 05:
We do.

[00:47:13] Speaker 05:
I actually developed and I'm prepared to tell you about the members in Gallia.

[00:47:22] Speaker 05:
If you want me to identify the member in Colorado Springs, I'll have to go back and do that in writing.

[00:47:29] Speaker 05:
But in Galia County, there are two large power plants.

[00:47:34] Speaker 05:
One is Gavin, one is Kiger Creek.

[00:47:38] Speaker 05:
We have the Ohio Valley Electric Cooperative and American Electric Power have ownership interests in Kiger Creek.

[00:47:47] Speaker 05:
Kiger Creek is part of the modeling of Galia County.

[00:47:51] Speaker 05:
And in fact, Sierra Club said in their brief that they were seeking a designation of Galia County to bring about emission reductions from Cogger Creek.

[00:48:06] Speaker 05:
So I think it's quite clear that we have standing there.

[00:48:11] Speaker 05:
We felt it was evident from the record, and it was granted intervention.

[00:48:16] Speaker 05:
We are the coal-fired power plant industry.

[00:48:19] Speaker 05:
Yes, we do have specific numbers.

[00:48:22] Speaker 06:
And again, if you want... It might be good if you just put it into the record.

[00:48:25] Speaker 05:
Do you want a submission after this?

[00:48:31] Speaker 06:
It makes sense for me to have standing established in the record.

[00:48:34] Speaker 05:
But quickly.

[00:48:35] Speaker 05:
Yeah, no, I can get that.

[00:48:37] Speaker 05:
Do I need to address Colorado Springs as well?

[00:48:40] Speaker 06:
Yes, if you wanted to speed it.

[00:48:42] Speaker 06:
You got to establish standing.

[00:48:43] Speaker 06:
I mean, the rules tell you to show your standing up front.

[00:48:46] Speaker 05:
Well, it's also true, first of all, that we didn't know what power plants were going to be the target when we moved to intervene.

[00:48:54] Speaker 05:
And the rules do say,

[00:48:59] Speaker 05:
The court, the case law does say that if standing's evident, you don't have to submit more to the record, but I'm happy to provide more in the record.

[00:49:07] Speaker 05:
Let me very briefly, if I may, touch on two additional points, and I'll focus on the Gaglia County right now.

[00:49:19] Speaker 05:
First of all, Sierra Club didn't argue that EPA should fix

[00:49:27] Speaker 05:
the Ohio modeling until after, six months after, in fact, the final rule was signed.

[00:49:33] Speaker 05:
They first raised that issue in a petition for reconsideration, which EPA has granted.

[00:49:39] Speaker 05:
And of course, they can challenge the final action.

[00:49:42] Speaker 06:
Why do you call what the EPA did granting that petition?

[00:49:44] Speaker 06:
That petition said you got the numbers right now, run them right now, and it will show non-attainment.

[00:49:52] Speaker 06:
And their response to the petition for reconsideration said,

[00:49:58] Speaker 06:
We're going to get some more data and do something later.

[00:50:00] Speaker 06:
In my mind, I cannot conceive of how that is granting a petition that says you have the numbers now, run it now.

[00:50:08] Speaker 05:
I guess my point is not whether that is granting the petition for reconsideration, and Sierra Club could challenge that separately.

[00:50:15] Speaker 05:
My point is they didn't ask EPA during the comment period in the record to do the fix that they're now asking for.

[00:50:27] Speaker 05:
They've asked them... After the record closed, after the rule was final.

[00:50:32] Speaker 06:
Yes.

[00:50:33] Speaker 06:
But the question is whether it's a functional... The exhausting question is whether it's a functional denial of their petition.

[00:50:38] Speaker 05:
What I'm trying to understand is how it is not a functional denial of their petition to say, we're going to go get more data when they say... And if it were a functional denial of that petition, they could have challenged the denial of that petition.

[00:50:50] Speaker 05:
They didn't do that.

[00:50:51] Speaker 05:
That's not in this case.

[00:50:54] Speaker 05:
The other point I just wanted to make, you heard about the sensitivity of modeling and I know I'll be... Ohio, when they submitted the modeling that Sierra Club would like to see fixed, they said this modeling cannot be used to demonstrate non-attainment because we know the model predicts too high when we can't correct for low wind conditions.

[00:51:20] Speaker 05:
So they said you can't just use this modeling for non-attainment.

[00:51:25] Speaker 05:
There's a problem the modeling is sensitive to the inputs and EPA understands that and legitimately doesn't choose to rely on it.

[00:51:37] Speaker 05:
Thank you, Your Honor.

[00:51:40] Speaker 04:
Thank you.

[00:51:42] Speaker 04:
So who had how much time left?

[00:51:47] Speaker 04:
OK.

[00:51:48] Speaker 04:
You can each take one minute in the order you originally appeared, if you would like it.

[00:51:53] Speaker 04:
So Mr. Ukeli?

[00:51:57] Speaker 00:
Thank you.

[00:51:59] Speaker 00:
EPA does have authority to gather on data.

[00:52:05] Speaker 00:
For example, Clean Air Act section 114 provides them with authority.

[00:52:10] Speaker 00:
Or most ambient monitoring stations also have meteorological stations.

[00:52:16] Speaker 00:
so they could have gathered it that way.

[00:52:19] Speaker 00:
But that's kind of a red herring, because there was the on-site meteorological data, and EPA claimed in their arguments that there were key differences, but they never explained what those key differences are, and there actually aren't.

[00:52:41] Speaker 00:
What's in the record is modeling

[00:52:44] Speaker 00:
from Maureen Barrett and Dr. Gray that shows that they got the same results using the on-site meteorological data as well as the airport data.

[00:53:00] Speaker 00:
The violating monitor or receptor was the exact same one that's out of thousands of

[00:53:10] Speaker 00:
of receptors, and so that shows that the difference in meteorological data was not impacting this, and that's because this is a short-term emission or ambient standard.

[00:53:26] Speaker 00:
So most of the meteorological data is not relevant.

[00:53:31] Speaker 04:
Thank you.

[00:53:49] Speaker 07:
Council for EPA says that we do not point to a specific value, but we do, and that value is 197.

[00:53:55] Speaker 07:
Specifically, what we are saying is that the value, the non-attainment, is at least 197.

[00:54:00] Speaker 07:
In its brief, EPA provides an example and a footnote of why the non-attainment value may well be more than 197, but they do not and cannot show that it would ever be less.

[00:54:13] Speaker 07:
And more generally, the Clean Air Act scheme only works

[00:54:16] Speaker 07:
if EPA has some minimum obligation to make designations that make sense.

[00:54:21] Speaker 07:
Here, they're potentially opening up a huge loophole to states seeking to avoid non-attainment obligations.

[00:54:27] Speaker 07:
They're essentially saying in their argument that states, if they want to avoid non-attainment, do some modeling.

[00:54:33] Speaker 07:
If it's showing non-attainment, just cut it by some number, submit that information to EPA,

[00:54:39] Speaker 07:
EPA will throw up its hands and reward the states with an unclassifiable designation, which is treated precisely the same as attainment.

[00:54:49] Speaker 04:
Thank you.

[00:54:50] Speaker 07:
Thank you.

[00:54:51] Speaker 04:
And Mr. Lane.

[00:55:00] Speaker 03:
Judge Millett, I misspoke.

[00:55:03] Speaker 03:
In the answer to one of your questions, I said that there was a table showing what the new numbers were.

[00:55:10] Speaker 03:
That's actually at JA 393.

[00:55:12] Speaker 03:
I think I told you 243, so I just wanted to correct that.

[00:55:16] Speaker 03:
But that goes to some of your questions, Judge Millett.

[00:55:22] Speaker 03:
This is the Trinity report, which BPU presented to EPA.

[00:55:29] Speaker 03:
And EPA issued a public notice on March 1, and we filed this report on March 31.

[00:55:37] Speaker 03:
That was the comment date.

[00:55:39] Speaker 03:
This redid all the numbers based on what EPA told us were the problems that they found with our earlier analysis.

[00:55:48] Speaker 03:
We ran the numbers, as you said, I didn't do it, I don't know how they did it, but they have computers and they figured it all out.

[00:55:56] Speaker 03:
If you look at this table, you will see that the highest value

[00:56:01] Speaker 03:
is 129 at the bottom of the table.

[00:56:04] Speaker 03:
That compares to 196, which, again, I don't know how, but that's the NAICS level.

[00:56:15] Speaker 03:
You asked a question.

[00:56:17] Speaker 03:
When you're unclassifiable, are you really close or not?

[00:56:20] Speaker 03:
I don't think 129 is really close to 196.

[00:56:23] Speaker 03:
Thank you.

[00:56:24] Speaker 04:
OK.

[00:56:24] Speaker 04:
Thank you very much.

[00:56:25] Speaker 04:
The case is submitted.