[00:01:11] Speaker 02:
Good morning.

[00:01:13] Speaker 02:
Good morning, Your Honor.

[00:01:22] Speaker 01:
Good morning, and may it please the Court.

[00:01:24] Speaker 01:
Tosh Sager, on behalf of Petitioner Sierra Club, I'd like to reserve three minutes for rebuttal.

[00:01:29] Speaker 01:
There's no dispute here that when states revise their SIPs, they must provide reasonable notice, public hearings, and that EPA must go through notice and comment rulemaking.

[00:01:38] Speaker 01:
So the primary issue presented here is, does a state revise its SIP when the state makes changes to its monitors as part of EPA's annual monitoring process?

[00:01:49] Speaker 00:
But this is a SIP.

[00:01:50] Speaker 00:
This is an anterior question, and that is what this rulemaking was about.

[00:01:54] Speaker 00:
And at least so far as it's relevant, the amendment to 58.10A1

[00:02:05] Speaker 00:
seems not to say anything about that subject.

[00:02:08] Speaker 00:
It slightly expands the, it changes the wording for the presentation of objections by people to change the monitoring plan, right?

[00:02:26] Speaker 00:
So that seems orthogonal, to put it mildly, to the broader claim that you're making.

[00:02:34] Speaker 01:
Your Honor, whether or not a change to a monitoring plan requires the procedures for SIPP revisions was the heart of the comments.

[00:02:44] Speaker 01:
EPA here proposed a rule that wouldn't have required the procedures relevant for SIPP revisions.

[00:02:51] Speaker 01:
Commenters said that these changes were SIP revisions and therefore the rule had to require states to go through the SIP revision procedure and EPA said no and finalized rules that are less than what SIP revisions require.

[00:03:08] Speaker 00:
The premise of what you're saying is that if an agency starts a rulemaking on one subject by participating in the proceeding and raising a fairly radically different alternative,

[00:03:29] Speaker 00:
party raising the alternative can essentially capture the proceeding and make the subject of the proceeding its proposal rather than what EPA started with.

[00:03:41] Speaker 00:
And let me just say that

[00:03:43] Speaker 00:
Normally, it seems to me, this is something handled under our cases like NLRB Union versus, I forget what NLRB Union, I guess it's NLRB, I forget.

[00:03:57] Speaker 00:
Anyway, where we make it clear that if you want to change an existing regulation, you file a petition asking for such a change and explaining why it's appropriate.

[00:04:09] Speaker 00:
Why shouldn't Sierra Club have done that here?

[00:04:12] Speaker 01:
Your Honor, I'm not familiar with that case, in part because EPA has erased it.

[00:04:17] Speaker 00:
I think cases- Yeah, they make a similar equivalent argument, which is that we don't have a final order here on this subject.

[00:04:26] Speaker 01:
That's not correct, Your Honor.

[00:04:29] Speaker 01:
Here we have a final rule provision.

[00:04:31] Speaker 00:
You have a final rule, undoubtedly, but the final rule doesn't say anything about your topic.

[00:04:38] Speaker 01:
It does, Your Honor, because the final rule prescribes the procedures that are required by states when they revise their monitoring plans.

[00:04:47] Speaker 01:
And if you accept our merits claim, which you must for purposes of jurisdictional issues,

[00:04:54] Speaker 01:
then those are SIP revisions.

[00:04:57] Speaker 01:
And so our claim is this rule encodes a deficient set of procedures.

[00:05:04] Speaker 01:
And that was what the comments said.

[00:05:05] Speaker 01:
And EPA itself responded to those comments and said,

[00:05:10] Speaker 01:
They don't encode a deficient set of procedures, because these aren't SIPs, and their states don't revise their SIP.

[00:05:17] Speaker 00:
And so that- There was undoubtedly a clash between your position and EPA's position.

[00:05:23] Speaker 00:
That's clear.

[00:05:24] Speaker 00:
But in terms of the original proposal, there was no need for EPA to have addressed this issue.

[00:05:39] Speaker 00:
was making some amendments, made them.

[00:05:41] Speaker 01:
But those amendments are at the heart of what is or is not a SIP.

[00:05:47] Speaker 01:
And I think your point about finality, I think we've addressed finality.

[00:05:52] Speaker 01:
You raised another point about NLRB union.

[00:05:55] Speaker 01:
I don't think EPA has raised that, and I think that's waivable.

[00:05:59] Speaker 00:
Finality is not.

[00:06:01] Speaker 01:
Finality is not, but we've satisfied the requirement for finality here.

[00:06:05] Speaker 01:
There's a final rule.

[00:06:06] Speaker 01:
We are challenging that rule as deficient, and that's the core of our challenge.

[00:06:11] Speaker 01:
Now the reason EPA gave is part of the record, and it's subject to review by this court.

[00:06:16] Speaker 01:
It's part of the whole record.

[00:06:17] Speaker 01:
It's their explanation of why the rule is lawful.

[00:06:21] Speaker 01:
And so this court, if it wasn't subject to review, then EPA would have no rationale for the rules it encoded.

[00:06:31] Speaker 01:
These are new rules.

[00:06:32] Speaker 01:
And so there's a final rule.

[00:06:35] Speaker 00:
That's what we're challenging.

[00:06:36] Speaker 00:
They're new in a very limited respect.

[00:06:40] Speaker 00:
There's the very mild expansion of the comment rights of people.

[00:06:46] Speaker 00:
That's the respect in which EPA is making a change in the rule.

[00:06:51] Speaker 00:
For purposes of finality, change is a change that's challengeable, and it's not just... It's challengeable, but you don't object to the new language that expands it from public inspection and comment and so forth.

[00:07:07] Speaker 01:
We do object because it's not just, they claim it's an expansion.

[00:07:11] Speaker 01:
It's not just an expansion, that's wrong.

[00:07:13] Speaker 01:
The old rule in 2006 said that at the EPA review stage, EPA would provide a second round of notice and comment if the state had made a change after the state went through its public participation, and they've removed that.

[00:07:29] Speaker 01:
So they've weakened one aspect of the old 2006 rule.

[00:07:33] Speaker 01:
On top of that,

[00:07:35] Speaker 00:
I'm sorry, 2006 rule or the commentary, the explanations offered by EPA?

[00:07:42] Speaker 01:
The prior version of 58.10 would have allowed, would have provided that EPA would have given its own notice and comment if states made changes.

[00:07:55] Speaker 01:
They've eliminated that.

[00:07:57] Speaker 01:
And let me see if I can find the JA site for that, Your Honor.

[00:08:11] Speaker 01:
I don't have it right at this moment.

[00:08:12] Speaker 01:
I'll provide it on rebuttal.

[00:08:14] Speaker 01:
But they've weakened this rule in some respects.

[00:08:17] Speaker 01:
And secondly, the point is the final procedures that they encoded here are less than what the statute requires.

[00:08:25] Speaker 01:
And that was our objection.

[00:08:26] Speaker 00:
If we get to the merits, we address that issue.

[00:08:29] Speaker 01:
But I think that's relevant to the question of whether there's final agency action, which we're challenging.

[00:08:34] Speaker 01:
That's what we're challenging.

[00:08:35] Speaker 01:
We're saying these procedures are unlawful.

[00:08:38] Speaker 01:
And that's final.

[00:08:39] Speaker 00:
That doesn't make action with respect to other changes in the regulation final action on this issue.

[00:08:49] Speaker 01:
EPA says here that states only have to provide public inspection opportunity.

[00:08:56] Speaker 01:
They say that states don't have to provide hearings.

[00:08:59] Speaker 00:
You're talking about the preamble.

[00:09:03] Speaker 01:
The rule itself says that states only are required to provide 30 days public inspection and respond to comments given during that time.

[00:09:13] Speaker 01:
Is that a change?

[00:09:14] Speaker 01:
That is a change, yes.

[00:09:17] Speaker 01:
Previously, that rule said that EPA

[00:09:22] Speaker 01:
only had to provide for public inspection and there was no requirement for comment.

[00:09:26] Speaker 01:
And then, excuse me, states only had, I'm sorry, Your Honor, previously the rule said that states only had to provide public inspection.

[00:09:34] Speaker 01:
They've changed that to inspection plus a response to comments.

[00:09:38] Speaker 01:
Second, that rule used to say that after states submitted their plans to EPA, EPA itself would provide a second round of notice and comment

[00:09:47] Speaker 01:
if the states had made changes after the public had given the states some comments.

[00:09:54] Speaker 00:
So that seems much narrower than the contention you're making.

[00:10:01] Speaker 01:
EPA has eliminated that requirement.

[00:10:04] Speaker 01:
There was a requirement for a second stage of EPA review, and EPA has eliminated that here.

[00:10:09] Speaker 01:
So they've weakened the rule in some respects, and they've changed it in others.

[00:10:14] Speaker 01:
And our contention is, what's left, regardless what's left, this new rule is less than what the statute requires.

[00:10:23] Speaker 02:
So there was notice and comment with respect to the EPA under the old rule, and there is no notice and comment?

[00:10:34] Speaker 01:
There was notice and comment that was triggered by specific factual circumstances of what took place at the state level.

[00:10:43] Speaker 01:
But it wasn't what we're arguing for here, which is universal notice and comment.

[00:10:48] Speaker 01:
And they eliminated that.

[00:10:49] Speaker 01:
Even that limited notice and comment period, they eliminated.

[00:10:52] Speaker 01:
So for purposes of finality, there was a rule change here.

[00:10:56] Speaker 01:
And we're challenging these new rules as deficient.

[00:11:00] Speaker 00:
Excuse me, the new rule you're focusing on is 58.10A2, is that right?

[00:11:08] Speaker 01:
I believe that's the correct site.

[00:11:12] Speaker 00:
Assuming that's right, can you point me to the prior language?

[00:11:16] Speaker 01:
Yes, Your Honor, give me one second.

[00:11:33] Speaker 01:
I'm apologizing in advance for the delay here.

[00:11:46] Speaker 01:
This is a JA 328.

[00:11:47] Speaker 01:
This is 58.10A2, and it says,

[00:11:55] Speaker 01:
at the bottom.

[00:11:56] Speaker 01:
If the state or local agency has already provided a public comment opportunity on its plans and has made no changes, the regional administrator is not required to provide a separate opportunity for comment.

[00:12:09] Speaker 01:
But above it says EPA regional administrator shall provide opportunity for public comment if they have made changes.

[00:12:19] Speaker 01:
And that's been eliminated.

[00:12:20] Speaker 01:
Give me that JA page again.

[00:12:22] Speaker 01:
JA 328.

[00:12:28] Speaker 01:
If I could turn to the merits, Your Honor.

[00:12:34] Speaker 01:
EPA has provided two rationales in this here, one in the rulemaking itself, one in a post hoc rationale in their brief.

[00:12:44] Speaker 01:
They both fail for the very same reason.

[00:12:46] Speaker 01:
Applying the traditional tools of statutory construction, the statute is unambiguous.

[00:12:51] Speaker 01:
The provisions of a SIP itself must require the state to establish and operate monitoring systems, but under either of their interpretations,

[00:13:00] Speaker 01:
The SIP would not require the state to do any monitoring.

[00:13:04] Speaker 01:
Their original interpretation would just require a list of authorities to demonstrate that the state could do monitoring.

[00:13:11] Speaker 01:
That interpretation is one they don't even bother to defend, and it's clearly unlawful.

[00:13:17] Speaker 01:
because where Congress wanted a SIP to list authorities, it said so expressly, as in 7410A2E.

[00:13:24] Speaker 01:
Their post-hoc interpretation similarly fails.

[00:13:27] Speaker 01:
It would not require monitoring.

[00:13:29] Speaker 01:
All it would require is the state to submit a paper plan to EPA, but that paper plan would be outside the SIP.

[00:13:37] Speaker 01:
And because the only thing that is enforceable under 7410 are the terms of the SIP itself,

[00:13:44] Speaker 01:
That paper plan, the SIP wouldn't require any monitoring.

[00:13:48] Speaker 01:
The state's obligations would be in an end once it submits the monitoring plan to EPA.

[00:13:57] Speaker 01:
At step two, their interpretation fails as well, even if you get to step two.

[00:14:03] Speaker 01:
Under the part 58 regulations, EPA commands states to operate numerous monitors, costing hundreds of millions of dollars per year.

[00:14:10] Speaker 01:
And the only source of authority for EPA to direct states to do monitoring is 7410 itself.

[00:14:16] Speaker 01:
And that means the part 58 regulations, which specify how many monitors, which monitors, what pollutants, those commands to the state must implement 7410.

[00:14:27] Speaker 01:
And what this court has said in cases like Michigan v. EPA, which we said in our brief, is that a

[00:14:34] Speaker 01:
a rule implementing 7410 sets minimum compliance requirements for the SIP, for the contents of the SIP.

[00:14:41] Speaker 01:
And here, all of their regulations in part 58 pertaining to state monitors are therefore regulations for what must be in the SIP.

[00:14:50] Speaker 01:
And there are at least four indicia from their regulations and their brief that demonstrate that.

[00:14:55] Speaker 02:
EPA's vote.

[00:14:56] Speaker 02:
How long has EPA taken this sort of less formal

[00:15:00] Speaker 02:
view of how to revise the monitoring networks?

[00:15:06] Speaker 01:
It's not entirely clear, but I think it's fair to say for several decades that they have taken this less formal approach.

[00:15:17] Speaker 02:
Why are you challenging it now?

[00:15:19] Speaker 02:
Why didn't you challenge it earlier?

[00:15:21] Speaker 01:
Well, this rulemaking is final action and we can challenge it now.

[00:15:27] Speaker 01:
There's no requirement, there's no statute of limitations problem.

[00:15:30] Speaker 01:
They haven't raised that issue because this is a new rulemaking and a new rule.

[00:15:34] Speaker 01:
And so we had an opportunity and Congress directed us to bring this action within 60 days of the rule and we did.

[00:15:43] Speaker 01:
These are problems for real people.

[00:15:46] Speaker 01:
There are people out there who rely on these monitors.

[00:15:48] Speaker 02:
There are no other rules that were issued before that would have been a vehicle for this challenge?

[00:15:53] Speaker 01:
There may well have been, Your Honor, and we don't dispute that perhaps we could have brought a challenge earlier, but we are allowed to bring this challenge now.

[00:16:00] Speaker 01:
And there are real people with real issues at stake.

[00:16:03] Speaker 01:
People who rely on these monitors for medicine,

[00:16:06] Speaker 01:
people who rely on these monitors for real-time warning about when it's safe to go outside, when to take medicine.

[00:16:13] Speaker 01:
There are people like Patty Schuba who live near one of the largest court plants in the country, and she wants a hearing.

[00:16:18] Speaker 01:
She regularly attends hearings related to this plant.

[00:16:21] Speaker 01:
She wants a hearing on monitors because there aren't sufficient monitors around that area.

[00:16:25] Speaker 01:
So there are real people with real issues at stake, and this court has jurisdiction to hear this claim.

[00:16:30] Speaker 01:
If I could just make one point, their own regulations say

[00:16:35] Speaker 01:
that the Part 58 sets requirements for SIPs.

[00:16:40] Speaker 01:
And that in and of itself demonstrates that the requirement that states identify

[00:16:47] Speaker 01:
monitors, which is in Part 58, is a requirement for the SIP.

[00:16:52] Speaker 01:
EPA says that if a state isn't complying with the Part 58 requirements for state monitoring, it can disapprove the SIP.

[00:16:59] Speaker 01:
But under the statute and under this Court's precedence, EPA may only disapprove a SIP if it fails to meet the requirements of 7410, confirming that

[00:17:10] Speaker 01:
These are 7410 requirements for SIPs.

[00:17:13] Speaker 01:
And that's Michigan v. CPA.

[00:17:14] Speaker 01:
That's exactly what this court said.

[00:17:16] Speaker 01:
Unless my colleagues have further questions, we'll give you some time.

[00:17:20] Speaker 01:
All right.

[00:17:21] Speaker 01:
Thank you.

[00:17:21] Speaker 01:
Thank you.

[00:17:32] Speaker 03:
May it please the court, Philip Dupre for EPA.

[00:17:35] Speaker 03:
With me at council table is Jonathan Skinner-Thomson from EPA's Office of General Counsel.

[00:17:41] Speaker 03:
I want to first highlight a comment made by my colleague here, and that is that the functional interpretation of this statute has been in place at EPA for decades.

[00:17:54] Speaker 03:
Despite what they put into briefs, this is not a change in position by EPA.

[00:17:59] Speaker 03:
And I think I really want to focus the court's attention to what Judge Williams pointed to, which is the relatively modest change in the public participation requirements for monitoring plans.

[00:18:10] Speaker 03:
At JA 328 was regulations adopted in 2006 which stated annual monitoring network plans must be made available by states for 30 days prior to submission to EPA and then

[00:18:27] Speaker 03:
If the state agencies did allow for comments, that would be the end of the issue.

[00:18:34] Speaker 03:
But if they did not allow for comments, the regional administrators would accept comments on those monitoring plans when submitted by EPA.

[00:18:42] Speaker 03:
In this rulemaking, what EPA sought to do was streamline it and said, what we're going to do is we're going to require states to not only make their plans publicly available for 30 days, but for them to accept comments as well on those plans and then to address those comments as appropriate in its submission to EPA.

[00:19:05] Speaker 03:
And indeed, that is what states are doing.

[00:19:09] Speaker 03:
EPA views this as essentially strengthening the public notice and comments procedures for monitoring plans.

[00:19:19] Speaker 03:
Obviously, opposing counsel has a slightly different view, but whether you think of it as a strengthening or a changing of the public notice requirements for monitoring plans, it is clearly within the same general framework

[00:19:33] Speaker 03:
that EPA has been using for decades.

[00:19:36] Speaker 00:
That's it.

[00:19:37] Speaker 00:
I had focused on the difference between

[00:19:39] Speaker 00:
the earlier A2 and the current A2.

[00:19:42] Speaker 00:
So what's your summary of that change?

[00:19:47] Speaker 03:
Basically what the prior A2 said is states were allowed to accept public comments on their plans, and if they did accept public comments and address them, EPA would not solicit public comments on monitoring plans.

[00:20:04] Speaker 03:
But if states didn't accept public comments, EPA would accept public comments.

[00:20:10] Speaker 03:
And what EPA changed in its new version is it basically said, we're going to require states to submit public comments.

[00:20:18] Speaker 03:
In other words, states have to deal with these comments in the first instance, which I think makes sense, because states are the primary drivers of these monitoring plans.

[00:20:26] Speaker 03:
So now- I'm sorry.

[00:20:28] Speaker 00:
Where's that new language mandating the state notice and comment?

[00:20:33] Speaker 03:
Yes, it is on JA74.

[00:20:37] Speaker 03:
At the bottom left, it says under 5810, the annual monitoring network plan must be made available for public inspection and comment for at least 30 days prior to submission to EPA, and a submitted plan shall address as appropriate any received comments.

[00:20:56] Speaker 03:
And so essentially what it does is it lets, first off, the state address public comments in the first instance.

[00:21:03] Speaker 03:
But secondly, it still gives EPA the opportunity to, you know, if public comments are not addressed as EPA believes are appropriate, of course, EPA could disapprove the plan or approve the plan with conditions or take whatever appropriate action it deems fit based on the public's comments on the monitoring plan.

[00:21:24] Speaker 03:
You know, I think just briefly I want to touch on the distinction between sort of infrastructure SIPs, infrastructure state implementation plans, which generally are the sources of legal and regulatory authority by which states seek to implement and enforce the Clean Air Act and monitoring plans, which have to do with the very granular details of

[00:21:49] Speaker 03:
Where are monitors set up and how many times will they draw air to review emissions?

[00:21:55] Speaker 03:
And while clearly these are important decisions as to the physical setup of a monitoring network, EPA has long viewed, really since 1980, that these details are best left to informal adjudications like we have here.

[00:22:13] Speaker 03:
where states can go, submit to the regional administrators where they want to put the monitors, how they want to use them, and that that information, or excuse me, that plan doesn't have to go through the formal process for state implementation plans, which require both a public hearing at the state level, but also formal notice and comment at the federal level for approval.

[00:22:40] Speaker 03:
So I think, again, Judge Williams, I think you had it right.

[00:22:44] Speaker 03:
This is EPA's longstanding position on how it's treating monitoring plans.

[00:22:50] Speaker 03:
It is not a change here.

[00:22:52] Speaker 03:
EPA's comments in the preamble, I think, are important to point out.

[00:22:56] Speaker 03:
It was made in response to comments.

[00:22:58] Speaker 03:
EPA was not intending to address rent large.

[00:23:02] Speaker 03:
the interaction between the state implementation plan regulations and monitoring plan regulations in this rulemaking, it was simply updating the monitoring plan rulemakings.

[00:23:13] Speaker 03:
Thus, you saw the minor change in how public comments would be addressed by states.

[00:23:20] Speaker 03:
Earthjustice submitted comments saying, we think you are required to treat these monitoring plans, the state implementation plans themselves.

[00:23:31] Speaker 03:
In response to those comments and the rulemaking, EPA explained why it did not believe those changes were appropriate.

[00:23:43] Speaker 03:
Largely, the challenge here goes to EPA's statement in the preamble, which was not designed to be the penultimate statement of the agency on what is required in state implementation plans.

[00:23:56] Speaker 03:
Indeed, we would point the Court to Part 51.

[00:23:59] Speaker 03:
of the federal regulations, which address state implementation plans in particular, as well as the 2013 guidance that was issued on infrastructure state implementation plan submissions.

[00:24:12] Speaker 03:
Lastly, I would just like to touch briefly on the substantive regulations that

[00:24:19] Speaker 03:
the spherical challenges.

[00:24:21] Speaker 03:
The first has to do with minor changes to how states' monitoring frequency for addressing PM, particulate matter 2.5.

[00:24:32] Speaker 03:
These changes allow states to ask the regional administrators to let them reduce the sampling monitoring frequency from once every three days to once every six days, provided certain

[00:24:44] Speaker 03:
criteria were met.

[00:24:47] Speaker 03:
Sierra Club objects on the grounds that EPA did not fully explain the financial harm or financial burdens on states with respect to this rulemaking.

[00:25:01] Speaker 03:
I think the record is clear.

[00:25:04] Speaker 03:
EPA explained that monitoring is a burden on states and that this

[00:25:09] Speaker 03:
decreased frequency done in a very careful manner to ensure that there would be no substantively harmful effects on states, meaning the NACs is appropriate.

[00:25:21] Speaker 03:
Lastly, Sierra Club objects to an error in the

[00:25:28] Speaker 03:
final rule in which EPA stated that it received no adverse comments on changes to how it treated quality assurance programs and the prevention of significant deterioration monitoring requirements.

[00:25:43] Speaker 03:
As we know in our briefs, that was an error, and in fact, Earth's justice did

[00:25:49] Speaker 03:
object to those provisions.

[00:25:52] Speaker 03:
However, not only do we not believe these rise to the level of significant objections for which a response is required, but we believe that if you look at the record, the explanation for each of those changes that Earth Justice objected to, that there is a clear explanation that addresses the substance of the comments, even if it was not specifically noted as a reply or response to those comments.

[00:26:19] Speaker 03:
And for all those reasons, we believe the petition should be denied in full.

[00:26:24] Speaker 03:
At this time, I'd be happy to answer any questions.

[00:26:29] Speaker 01:
Thank you very much.

[00:26:46] Speaker 00:
Could you explain to us where, looking at the old A1 and A2, and the new A1 and A2, you see an adverse change?

[00:26:57] Speaker 01:
Yes, Your Honor.

[00:27:00] Speaker 01:
At 58.10 A2, EPA said that it would- We're talking about new or old now?

[00:27:06] Speaker 01:
The old, 2006 at 328.

[00:27:10] Speaker 01:
Right.

[00:27:11] Speaker 01:
EPA said it would provide

[00:27:15] Speaker 01:
a notice and comment here at the EPA approval stage.

[00:27:22] Speaker 01:
And then they have eliminated that.

[00:27:26] Speaker 01:
That requirement is no longer in place.

[00:27:29] Speaker 01:
That is harmful to us.

[00:27:32] Speaker 01:
That is a change.

[00:27:33] Speaker 01:
They have conceded that they changed the rule.

[00:27:36] Speaker 00:
And there's no question that we are still... Well, just going back a moment, in the old version,

[00:27:43] Speaker 00:
It makes that requirement subject to cancellation if the state or local agency has provided a public comment opportunity.

[00:27:54] Speaker 01:
That's correct, Your Honor.

[00:27:55] Speaker 00:
So then when we go to the current version,

[00:28:04] Speaker 00:
Is that not still required?

[00:28:07] Speaker 01:
In the current version, there is no notice and comment opportunity at the EPA level.

[00:28:12] Speaker 00:
That's completely eliminated.

[00:28:14] Speaker 00:
But the only requirement in the old version is contingent, right?

[00:28:19] Speaker 01:
Yes, there was a requirement.

[00:28:21] Speaker 00:
So the question is, is that contingency removed?

[00:28:27] Speaker 01:
It's totally eliminated.

[00:28:29] Speaker 01:
Previously, there was opportunity for notice and comment under some circumstances, and now there is no notice and comment opportunity.

[00:28:38] Speaker 01:
That is a change.

[00:28:39] Speaker 01:
That is a changed rule.

[00:28:40] Speaker 01:
We have less procedures than we did before, and that counts for purposes of finality.

[00:28:46] Speaker 01:
They concede.

[00:28:47] Speaker 01:
My colleague just conceded that they did change the rule, and not only did they change the rule.

[00:28:52] Speaker 00:
Yes, but he says it changed it in the opposite direction from your argument.

[00:28:55] Speaker 01:
But that's wrong, Your Honor, before EPA would provide the opportunity for notice and comment in some circumstances, and now it will never provide notice and comment.

[00:29:05] Speaker 01:
They said that in their own brief, that EPA doesn't provide notice and comment, and I believe they said it in the preamble to this rule.

[00:29:15] Speaker 01:
Most likely at 46, I think they said,

[00:29:22] Speaker 01:
EPA disagrees that action on annual monitoring plans requires a separate notice and comment opportunity.

[00:29:29] Speaker 01:
That's a J826.

[00:29:31] Speaker 00:
So they've eliminated that rule.

[00:29:32] Speaker 00:
As I look at this, the new rule, or maybe this language is not new, the part in A1 mandates availability for public inspection and comment before submission to the EPA.

[00:29:48] Speaker 00:
So that seems to be an unequivocal mandate.

[00:29:52] Speaker 01:
Your Honor, there are two stages of public participation that are at issue here.

[00:29:57] Speaker 01:
One at the state level, and one at the EPA level.

[00:30:00] Speaker 01:
And it's unequivocal.

[00:30:02] Speaker 01:
They admit that at the EPA level, they made a change that is adverse by eliminating any requirement that EPA go through notice on time.

[00:30:11] Speaker 00:
Yeah, but in the earlier version, the EPA obligation was contingent.

[00:30:17] Speaker 00:
And now, the regulation seems to require

[00:30:23] Speaker 00:
unequivocally the state provision of an opportunity for comment and therefore eliminates, makes illegal the condition under which EPA's obligation was formally triggered.

[00:30:39] Speaker 01:
Yes, but our claim is that we need public participation in both.

[00:30:44] Speaker 01:
Congress mandated public participation in both.

[00:30:46] Speaker 00:
Let's just put aside the merits.

[00:30:48] Speaker 00:
Just focus on the change, if any.

[00:30:51] Speaker 01:
Your Honour, focusing on the change, they have eliminated the requirement that EPA go through notice and comment.

[00:30:59] Speaker 00:
But that requirement was contingent and now that contingency becomes in itself an unlawful one.

[00:31:07] Speaker 01:
But let me explain why it matters that EPA was required.

[00:31:10] Speaker 01:
EPA has an independent obligation under 7410 to review... Yes, but formally it regarded its own

[00:31:18] Speaker 00:
notice and comment provision on that issue to be unnecessary if the state provided a similar opportunity, right?

[00:31:27] Speaker 00:
Isn't that what the passage 328 points us to?

[00:31:32] Speaker 01:
That's what my colleague just said.

[00:31:34] Speaker 00:
Well, how is it wrong?

[00:31:34] Speaker 01:
Because EPA has an independent obligation here.

[00:31:37] Speaker 00:
You're jumping into the merits.

[00:31:39] Speaker 00:
I'm trying to figure out whether there's any change.

[00:31:42] Speaker 00:
and whether it's in the direction that you claim.

[00:31:45] Speaker 01:
That is a change, and it is to our detriment.

[00:31:48] Speaker 01:
And I don't think we can simply separate the merits.

[00:31:52] Speaker 01:
I think this Court has held on.

[00:31:55] Speaker 00:
We're trying to get into the existence of change and its nature.

[00:32:00] Speaker 00:
And what I see is that a contingent EPA obligation to have a comment opportunity becomes irrelevant

[00:32:11] Speaker 00:
when that contingency is extinguished, as it appears to be, by the new rule.

[00:32:20] Speaker 01:
Respectfully, we disagree, Your Honor.

[00:32:22] Speaker 01:
There was a change here from the prior rule.

[00:32:25] Speaker 01:
It was a mandatory comment period that, in some situations, was not.

[00:32:31] Speaker 00:
In some situations, but those situations are extinguished.

[00:32:35] Speaker 00:
It's a legal matter.

[00:32:37] Speaker 01:
I don't think that's relevant for purposes of finality here.

[00:32:41] Speaker 00:
No, if you were to that change, I would see the point that you're objecting on a much broader scale.

[00:32:50] Speaker 01:
We're objecting to the procedures here.

[00:32:52] Speaker 01:
And the reason EPA gave for their deficient procedures is a new interpretation in the 2016 rulemaking.

[00:33:00] Speaker 01:
It's one they claim is the same, but EPA never before in a binding rulemaking said that SIP only has to list authority for monitoring.

[00:33:09] Speaker 01:
They've never said that before in a binding rulemaking.

[00:33:13] Speaker 01:
Our comments were directly targeted at the procedures.

[00:33:17] Speaker 01:
Our comment said that these procedures are insufficient because they are not grounded in the text of the act.

[00:33:24] Speaker 01:
They are contrary to the text of the act.

[00:33:26] Speaker 01:
And EPA responded to those comments by adopting a new interpretation that formed the basis for this rule.

[00:33:32] Speaker 01:
We are objecting both to the procedures and to that interpretation.

[00:33:36] Speaker 01:
And they offer no valid substantive defense.

[00:33:41] Speaker 01:
Thank you, Your Honor.