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Pace number 18

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Good morning.

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Good morning, Your Honors.

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May it please the Court?

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My name is Kate Stetson.

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I represent the petitioner, Meritor.

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I'd like to begin, if I may, with the standing questions this Court posed in its Monday order.

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The Court has two questions.

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The first is, is Meritor a potentially responsible party?

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under CERCLA, and if not, what are the legal and factual bases for standing?

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The answer to question one is yes, and the most expedient way to see this is in a document that we cited at page 15 of our brief and pages 11 and 12 of our reply.

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This is the administrative settlement that EPA and Meritor entered into

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that requires Meritor to continue to run the subslam depressurization system, which I'd like to call SSDS if I can.

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And that settlement at page seven of the document contains a conclusion of law, paragraph 29D.

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And that conclusion of law is that EPA has determined that respondent, and respondent is Mirator under the caption of this settlement, is a responsible party under Section 107A of CERCLA, 42 U.S.C.

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9607A.

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There are – I read page one of that same document as Mirator strongly disagreeing, or certainly reserving the right to dispute that.

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So I'm trying to make sure I understand.

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So is there, is your position there standing because you now agree that you are, that Meritorious is a responsible party or?

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There's a substantial enough risk when that's EPA's conclusion.

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Well, I think it, since EPA did make that determination of law, it may have been a determination with which we disagreed at the time.

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It was in a settlement, right?

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Yes.

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I'm just saying, I'm just, what you all said in that same, what your client said in that same settlement is you don't admit and you retain the right to convert, controversy, excuse me, the findings and fact and conclusions of law made by EPA.

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Yes, but first of all, the conclusion was made.

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And second, as we also explained in our brief, there are multiple bases for finding Meritor has standing.

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This is something you can also find shot through the Joint Appendix.

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The EPA repeatedly refers to Meritor as a potentially responsible party.

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Meritor is, as we explained in our brief, a corporation that took on the liabilities of Rockwell.

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And this site, of course, is the Rockwell site.

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So there are a host of reasons, many of them we articulated in our brief.

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The PRP we did not, and for that I apologize, but EPA has determined that we are a potentially responsible party and we are here because we stand to suffer a significant amount of

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you know, both financial and reputational and other harm that stems from this particular listing.

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Just to make sure I understand your position, because you are or because there's a substantial risk, given that they've said you are a potentially responsible party, that's two different drones.

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True.

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If I remember correctly, I think this court in Mead Court versus Browner

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found standing even when a party was a potential, potentially responsible party.

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I think the court made a similar reference in the CTS case, actually.

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So for these purposes, even, I don't think we need to concede that we are a PRP.

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It is enough that EPA has found us to be one and that we stand to suffer the kinds of harms that we articulated in our brief that stem from this listing because of the obligations.

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The harms articulated in your brief were

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have contractual responsibilities for this land?

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The harms that we articulated in our standing section were that the possible future expansion of the site, the additional reputation of harms that would flow,

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And importantly, under Mead and CTS, the increased leverage that EPA has to exercise over a company like Meritor, once a site goes on the list, all of those things are what the court found in CTS were sufficient, what the court found in Mead were sufficient.

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In fact, what the court found in Mead were ample, despite that particular petitioners being a potentially responsible party.

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So I would submit there's really no question.

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Because your standing thing says you have certain environmental obligations on page 21.

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And so that's... Yes.

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And on the next page, I think we refer to... Well, that's string sites with parentheticals.

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And those parentheticals, Your Honor, are designed to encompass the reasons why we have standing in this case.

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If there are further questions on standing, I'm happy to answer them.

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But I'd like to proceed to the merits, if I may.

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And I want to start with where the EPA started in its final support document supporting the listing here.

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Because what EPA calls CERCLA, the purpose of CERCLA, is to assess the uncontrolled hazardous waste sites that EPA has concluded pose the greatest relative risk across the country.

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But by the time EPA even proposed listing this site,

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in January of 2018, Meritor had installed an SSDS that had substantially abated the exact vapors that we are talking about here.

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And I want to mention that this is the first EPA listing to be listed solely on the new subsurface intrusion pathway.

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So you started with a reference to the statute itself.

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Can I just ask,

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the nature of your claims.

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You say EPA's decision, listing decision is arbitrary and capricious.

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Is that solely because the listing decision is inconsistent with the agency regulation?

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Or do you have a further position that even if they've followed the regulation,

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the regulation is unlawful as applied, and therefore the listing decision is arbitrary and capricious.

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It is largely the former of the regulation, and the reason why I say largely the former is that there is the directive in the amendments to CERCLA, the CERA amendments, that requires EPA to modify the HRS

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tests to the greatest extent possible try to assess relative risk.

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And that, I think, plays a role in some of our arguments, but the regulations are really where we locate our arguments.

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So with respect to the SSDS, the argument that we made to EPA after it proposed listing the site after the SSDS was back and running on EPA's order, I should add,

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was that EPA could not disregard this system when it was testing the extent of vapor intrusion into a structure.

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Vapors intrude because something lets them intrude.

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And if something in the district, in the government's words, discourages those vapors from intruding, that should play a role in the calculus.

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I may be taking more time than I ought to.

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But it seems there's a basic different understanding between the petitioner and the agency on the consequences of not scoring high enough on the listing test to begin with to be listed.

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The agency's position is that, if I understand it correctly, is that once you're on that list, the obligation and purpose of being listed is to clean up the stuff.

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The potential position seems to be that the obligation is to make enough changes to get the score down to where it no longer qualifies.

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Am I correctly stating the difference of opinion, as you said?

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No, I don't think that's correct, Judge Santel.

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Maybe the best way to look at this is just to think about the timing of these actions.

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As I mentioned, when EPA proposed this listing, there was already the subslab system in place and running at EPA's order.

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So if this wasn't a case, you can imagine a hypothetical case where EPA proposes a listing and the day the comment period closes or after the comment period closes, the PRP comes in and says, we fixed it, we fixed it.

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You know, that's not this case.

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What this case is, is EPA knowing that there was a system in place that was specifically designed, in fact, state-of-the-art designed, to mitigate these... That's not about the listing.

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When they did the scoring on which the listing was based, the system was not in place.

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I see.

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No, maybe I haven't been as clear with my language as I should.

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When it proposed the listing, in the proposed rule, it did the preliminary scoring.

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That was the point at which Meritor said.

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Your preliminary score was based on old data.

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That's what I'm talking about.

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The old data arose.

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The data upon which they did the scoring existed before the installation of the system.

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It did indeed.

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So from the time they did that data gathering, this listing may not be in place, but it is evident that the listing could come to be in place, right?

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At the time they did the data gathering, it was actually even before the subsurface intrusion rule was passed.

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But to your point, Judge Santel, one of the things that the final rule says pertaining to the subsurface intrusion component is, and I'd like to read this,

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preliminary HRS scores are refined as sites progress through the process and does not mean the site would ultimately qualify for the MPL.

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Now, that sentence squares exactly, of course, with this court's more general APA holdings, which are if you know that the facts are stable or false at the time that you find them, you should update your facts.

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That's the case that we cite in our reply brief at 14, Missouri Public Service Commission.

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a period within about a year.

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So the facts weren't false.

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I thought they found were not false.

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I didn't think you were arguing that.

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And I don't think it was stale to say we collected information and then six months later

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there was a system there that was changing, under your view, was changing in some of the radians.

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Staling usually requires a lot longer time difference, right?

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Are you arguing?

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I do understand with our government time that may not be stale, but EPA knew that the facts were stale.

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That's the difference.

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They were stale?

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Yes, and let me also, from October 2016,

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And the listing that was proposed in January 2018, yes, I would say those are stale.

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But more importantly... We have a lot from 2017 as well.

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I guess when we see stale stuff from government, it's a lot longer than that.

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I understand.

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The time period in the EPA sort of has to fisher cup bait on making these.

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These are complicated...

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decisions, and they can't keep changing their data right up to the moment of listing.

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And so I guess I'm having trouble that they knew it was stale, that they couldn't count on it?

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They knew that this system was up and running even before they proposed this.

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And so the request that we made after this was listed in January of 2018, and I see my time is running out, but I'd like to continue, was that

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the EPA take into account this system that was installed.

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And let me also locate this in the regulations themselves.

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So EPA... So, yeah, can I just... Because to me, once you answered my question the way you did... Yes.

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I'm in the weeds of the regulation, which is a bit painful, but... I hear you.

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The governing provision, we are talking

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We're talking about, as I understand it, their assessment of line one on the chart, right, observed exposure.

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And when you go to the regulation on that specific provision, it

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asks whether a hazardous substance has been released into the structure.

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Present perfect tense has been released in the past.

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This is a case where everybody agrees the hazardous material has been released.

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And then when you look more broadly at the regulation, it explicitly builds in

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your idea that you really should look at intervening remedial measures in two other ones, not line one, but line, if I have it right, 2A, which is structure containment and targets, which is 8 through 11.

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So if we're in the weeds of the regulation, it seems to agree with you, but only on other

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parts of the calculation that are not at issue.

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I think that's not entirely correct, Judge Katzis, and I'd refer you to page 22 of the addendum of our brief, which is the section that begins the subsurface intrusion rule, 5.2.0, which is general considerations, and it states, and I'll quote, evaluate the subsurface intrusion component based on the actual or potential intrusion of hazardous substances

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into all regularly occupied structures that have structure containment values greater than zero.

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despite the existence of this system, which under these complicated... Sorry, what's that number?

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5.2.0?

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5.2.0, titled General Considerations.

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So basically, when you start this process, you first ask, is there a structure that has a structure containment greater than zero?

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And Table 5-12, which we cite repeatedly in our brief, shows you that the structure containment levels actually are dictated by, among other things,

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whether there is an active vapor mitigation system in place.

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So the structure containment level of this system is something that is set out from the first.

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And the reason I think, Judge Kansas, it wouldn't be logical or... Sorry, but greater than zero as a threshold inquiry doesn't really help you, because if you look at structure containment, the mitigation system just gets you down to a two.

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which is greater than zero, and you have an independent consideration of foundation cracks, which I think were present here, which gets you the full 10.

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No, I think those two considerations would be geared to two different times.

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The foundation cracks are what EPA identified before the system was put in place.

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Once the system was put in place, it's a two.

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But my point, too, Judge Katz, isn't that just because the structure containment is a two, we win.

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My point is that this surface intrusion rule requires consideration of structure containment from the outset.

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So it's not just with respect to targets, not just with respect to something else, it's from the outset.

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Let me also add... Right, before you go on, on the cracks and crevices, sorry, is there a showing in the record that your system is 100% effective and so compensated for any

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intrusions through cracks and crevices.

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My understanding was that it was not that that was one of their concerns.

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Judge Millett, no vapor mitigation system is 100% effective, so there's not a showing.

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But that logic would suggest that

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even when you had, as the regulations specify, an active vapor mitigation system that you'd always score it a 10 because it's not universally 100 percent effective.

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And that can't be right.

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In fact, the government hasn't contested that this is an active vapor mitigation system.

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But more to the point, one of the things the government relies on in its brief is the final rule from 1990, which were the

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amendments that were made to the HRS system after Congress told them they needed to tighten things up.

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And one of the things that those amendments say is when you are calculating the waste quantity, which is one of the other lines on that chart, Judge Katzis, when you are calculating those waste characteristics, you take response actions into account.

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And that is something, this in fact I think is the easiest path to vacator here because it, go ahead.

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Sorry, but doesn't that just bring us back to the question of what's the inference you draw from the fact that other lines other than line one explicitly incorporate these measures and

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I had posited to you that line one was silent with this tense issue, and I didn't have 5.2.0 at my fingertips, and I'll take a look at that.

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That's a separate argument for you, but I don't necessarily see how incorporation in other parts of the calculation help you with regard to line one.

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Well, with regard to line one, I think I would refer you back to that general consideration.

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Because what it means is, before you embark on the subsurface intrusion test, ask yourself whether there is a containment system in place.

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If that containment system is greater than zero, then proceed.

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But that necessitates your finding whether there's a containment system in place.

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And the reason why I'm focusing on... But once you have an observed exposure... I mean, the problem is, once they have an observed exposure under the regulations, 5.2.1.1.1, you automatically get assigned 550 points.

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And you don't go on to potential for exposure, which is where your structure containment argument, where they do explicitly reference the systems, kicks in.

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But they say, don't go there, right?

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It's like, you know...

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Do not pass go directly to 550 points.

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You don't go any further to look at that, so then you're just relying on this general background statement.

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No, in fact I'm not.

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I'm not only relying on the general background statement, which isn't just a background statement.

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It says this is how you start your inquiry.

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You start your inquiry by looking at whether there's a structured containment system in place.

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Do you dispute if we get 550 for the observed exposure?

[00:20:18] Speaker 01:
Maybe I'm misunderstanding.

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You don't dispute the assignment on the table of the 550.

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Oh, no, we do dispute that.

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We do dispute observed exposure.

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That's one of the three errors we think that EPA made, because it didn't assess that exposure at the time that it should have, at the time that it proposed listing this site.

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it knew that there was a sub-slab system in place that was mitigating these hazardous favors.

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It also found exposures after the system was in place.

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I'm sorry?

[00:20:46] Speaker 01:
It also found exposures after the minute.

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It observed exposures after the system was in place.

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It did indeed.

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And I would encourage the court to look very closely at that.

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Because what the government is saying in its brief is the observed exposure after the system was in place was in relation to a single test at a single site

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at a particular location on the property.

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And I'd suggest that you compare that to the actual approach that EPA took when it was setting background levels back in October 2016 and January 2017, when it took six sites, multiple samples, and chose the highest

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of each potentially hazardous element and chose the highest of those to form the background level.

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You have made an argument in your brief that the text commands them and the regulation commands them to factor this in, that the text of the observed exposures potential for exposure

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And anyhow, there was an observed exposure even after the system was in place.

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Now maybe you're switching to an arbitrary and capricious argument as to how they identified or calculated that actual exposure.

[00:22:06] Speaker 01:
But as to the fact that there's 550 points for observed exposures before and after,

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I guess I'm not sure how the fact that you have a mitigation system helped you.

[00:22:18] Speaker 00:
Okay.

[00:22:18] Speaker 00:
The fact that there is a mitigation system actually is shot through the regulations.

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So starting with 5.2.0.

[00:22:24] Speaker 01:
No, it's selectively in the regulation.

[00:22:26] Speaker 01:
It's not shot through.

[00:22:26] Speaker 00:
Starting with 5.2.0.

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It asks you before you embark on this, does it have a structure containment system?

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The answer to that is yes.

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You take the structure containment system into account.

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So the fact that the observed exposure doesn't say, PS, is there a structure containment system, is rather beside the point.

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The point is when EPA proposed this for listing, it knew there was a structure containment system.

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But let me make this as straightforward as possible.

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because I think there are several different bases that we've articulated for why EPA's listing should be vacated.

[00:23:00] Speaker 00:
We think the most straightforward one is the waste characteristics issue that I mentioned.

[00:23:05] Speaker 00:
And the reason we think it's most straightforward... I'm sorry, which one?

[00:23:09] Speaker 00:
The waste characteristics, the waste quantity.

[00:23:11] Speaker 02:
Can we just finish up with likelihood of exposure?

[00:23:15] Speaker 02:
Certainly.

[00:23:15] Speaker 02:
I'm sorry, this is pretty complicated stuff.

[00:23:18] Speaker 02:
No, but it's... I mean, let me ask you an intuitive question, which is...

[00:23:25] Speaker 02:
It seems very different if a party actually cleans up.

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Say there's hazardous gas in a room, and option one is you get rid of the hazardous gas and solve the problem that way.

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Option two is you solve the problem by turning on a fan.

[00:23:52] Speaker 02:
Gas is still there, and you just fan it out.

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Why is it unreasonable for EPA to say, well, we'll take into account and give you credit if you get rid of the hazardous substance.

[00:24:07] Speaker 02:
But if you're just turning on the fan, well, we're not going to give you credit.

[00:24:12] Speaker 02:
Fan can turn off, the fan can break.

[00:24:15] Speaker 02:
We're going to be cautious and not analyze it without the fan rather than with.

[00:24:25] Speaker 00:
Right.

[00:24:26] Speaker 00:
I think the first answer is that the regulations instruct EPA to consider this, but I want to make a point about the fan.

[00:24:34] Speaker 00:
If you look at Joint Appendix 373 to 374, which are the summary of the pilot test that was run on this, you will find a very detailed description of this subslab system, how it was installed, what it involves, the 68-foot stack that came along with it.

[00:24:52] Speaker 00:
This is not a fan under a crawlspace.

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this is actually a system that is state-of-the-art that was put in place in order to mitigate the intrusion of vapors into the structure.

[00:25:03] Speaker 00:
And when I put it this way, it should be self-evident that when something mitigates the intrusion of vapors into the structure, it mitigates subsurface intrusion.

[00:25:12] Speaker 02:
But to the waste characteristics point that I wanted to mention, because I think this is the most straightforward... It's still, I don't know if it's mechanical or electrical or what, but it does have an on-off switch, right?

[00:25:24] Speaker 00:
It does have an on-off switch, but if you look at the structure containment values, one of the distinctions that the values make, that it gets less and less contained as you go up, one of them is a passive mitigation system.

[00:25:39] Speaker 00:
So maybe that's you open the windows, maybe that's you put in an electric fan.

[00:25:44] Speaker 00:
This is a system that EPA has required

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Meritor to keep running continuously, in fact has been running continuously.

[00:25:53] Speaker 00:
So for purposes of assessing... Do you disagree?

[00:25:56] Speaker 02:
It seems to me it's more like the fan than like

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the case where they just eliminate the gas.

[00:26:04] Speaker 02:
Am I thinking about it the wrong way?

[00:26:06] Speaker 00:
I think it's actually both.

[00:26:09] Speaker 00:
I think that the reason that it mitigates the vapors is because it creates a pressure system under this building that prevents the vapors from entering.

[00:26:18] Speaker 00:
But the other thing that it does, and this pertains to the removal of the waste, is that it processes those vapors through a number of carbon treatment facilities out through the stack, 99% clean.

[00:26:31] Speaker 00:
So this is both a remediation and a removal.

[00:26:36] Speaker 03:
But it doesn't stop the creation of vapors over the course of years.

[00:26:40] Speaker 03:
There will still be vapors coming off of these as it was before.

[00:26:44] Speaker 00:
And I think that's why EPA required Meritor to keep this system running until EPA tells it otherwise.

[00:26:52] Speaker 03:
But for purposes of... It would never, or at least not,

[00:26:57] Speaker 03:
And within human lifetimes, it would never take away the hazardous waste that are producing the vapors.

[00:27:03] Speaker 03:
It is simply managing the vapors.

[00:27:08] Speaker 00:
I don't think that's entirely correct.

[00:27:10] Speaker 00:
I don't think it is either.

[00:27:13] Speaker 00:
But for the reason that I mentioned to Judge Katz, this is also treating the elements that are giving rise to the vapors.

[00:27:20] Speaker 00:
But for purposes of the subsurface intrusion system, this is one of the fallacies that I think is in the government's brief.

[00:27:26] Speaker 00:
The idea that the subsurface intrusion pathway, something that involves do vapors come up into a structure,

[00:27:34] Speaker 00:
that that can only be mitigated by something that completely removes the waste from the site.

[00:27:40] Speaker 00:
That is simply nowhere in the regulations.

[00:27:43] Speaker 00:
And in fact, all of these references to the structure containment systems, which go all the way back to 1990 structure containment systems that are mentioned in that particular rule accompanying the amendments, structure containment systems matter for purposes of scoring.

[00:28:00] Speaker 00:
And I mentioned the 1990 rule for a reason, because even the government concedes this.

[00:28:06] Speaker 00:
The 1990 rule, which is the rule that tightened up the HRS, talks about when you should determine or when you should take into account a response action like this.

[00:28:17] Speaker 00:
And what it says is, you should take into account response actions in determining waste quantity.

[00:28:24] Speaker 00:
So even if you hold observed exposure constant, even if you hold targets constant, I'm sorry, just cut.

[00:28:32] Speaker 02:
Sorry, in determining waste quantity, which is item six.

[00:28:39] Speaker 00:
I believe that's right, yes.

[00:28:40] Speaker 02:
Not item one.

[00:28:42] Speaker 00:
No, but that's the point that I just made.

[00:28:44] Speaker 00:
Even if you hold observed exposure constant, we'll give EPA the five-fifths.

[00:28:49] Speaker 02:
This is your separate argument about waste quantity.

[00:28:52] Speaker 00:
Yes, exactly.

[00:28:53] Speaker 02:
I'm sorry, I thought you were invoking that, or are you invoking that as further support for your observed exposure argument?

[00:29:04] Speaker 00:
Well, I think it certainly serves as further support for the argument that even in 1990, EPA was recognizing that response actions have a purpose.

[00:29:14] Speaker 00:
And what you saw in these 2017, this new rule, is that the response actions are actually baked into the scoring for this rule.

[00:29:22] Speaker 00:
So that's the difference I think between what EPA was saying in 1990 versus now.

[00:29:27] Speaker 00:
So the point that I was making and I think the point where EPA has to grudgingly agree is at the very least you take this response action

[00:29:37] Speaker 00:
into account when you are calculating that separate question of waste characteristics.

[00:29:42] Speaker 00:
And the point we make in our brief is even if you hold observed exposure at the 550, even if you hold the targets as if we're talking about residents rather than workers,

[00:29:54] Speaker 00:
which itself is a logical fallacy, then you get to that waste characteristics question in the middle.

[00:30:00] Speaker 00:
And what the waste characteristics question asks you is, can you estimate with reasonable confidence the mass of hazardous substances in this structure?

[00:30:12] Speaker 00:
And if you can, then you perform what's called a Tier A

[00:30:17] Speaker 00:
It is only if you cannot estimate with reasonable confidence the mass of constituents in the structure that you drop down to Tier B or Tier C or Tier D, which is where EPA ended up when it proposed this listing.

[00:30:31] Speaker 00:
And by dropping down to Tier D, I just want to make a point about the quantity here before I talk about Tier A.

[00:30:37] Speaker 00:
The consequence of EPA using Tier D to calculate the waste quantity was that it calculated the equivalent of 10,000 pounds of hazardous substances in this building because it was just going on the footprint of the building.

[00:30:54] Speaker 00:
Our point, and we preserved this at Joint Appendix 48,

[00:30:59] Speaker 00:
is that EPA should have taken the SSDS into account when calculating the waste quantity.

[00:31:06] Speaker 00:
And the reason that we think that point is important is once the SSDS was up and running, the variability in the hazardous substances that were being detected

[00:31:18] Speaker 00:
shrank to a very narrow range.

[00:31:21] Speaker 00:
One of the reasons that EPA said in its support document that it couldn't calculate Tier A was because there was simply no way of estimating with reasonable confidence how much substance was in the building.

[00:31:33] Speaker 01:
Our point is... Can you tell me where you made this argument that you have to

[00:31:39] Speaker 01:
apply Tier 1 because we have the system where you did preserve that below?

[00:31:45] Speaker 01:
At Joint Appendix 48.

[00:31:46] Speaker 01:
Okay, so that's the executive summary.

[00:31:48] Speaker 01:
Where's that?

[00:31:49] Speaker 01:
Where in there?

[00:31:49] Speaker 01:
Sorry, maybe I'm just not... You make general complaints about them not paying attention to the fact that you have a... But where's the Tier 1 argument?

[00:32:12] Speaker 00:
We don't make the tier one argument.

[00:32:14] Speaker 00:
What we say is that the subslab depressurization system was required to be taken into account.

[00:32:20] Speaker 00:
In deciding which tier?

[00:32:22] Speaker 00:
In deciding which tier, yes.

[00:32:24] Speaker 00:
I'm sorry.

[00:32:26] Speaker 00:
J48, right?

[00:32:27] Speaker 00:
EPA was required to consider an active vapor mitigation system when calculating the hazardous waste quantity.

[00:32:36] Speaker 01:
But that doesn't say as between which tier.

[00:32:39] Speaker 01:
Sorry, where do you argue for tier one below?

[00:32:42] Speaker 01:
Where did you tell the agency you wish to be in Tier 1?

[00:32:45] Speaker 00:
What we argued was that the SSDS needed to be taken into account, Judge Millett.

[00:32:49] Speaker 00:
That's all.

[00:32:50] Speaker 00:
Because the SSDS needed to be taken into account, one of the governing considerations of all of these tiers is if you can calculate it at Tier A,

[00:33:01] Speaker 00:
you do not drop to a lower tier.

[00:33:04] Speaker 00:
End of discussion.

[00:33:05] Speaker 00:
So the EPA, of course, is regulated by that.

[00:33:08] Speaker 01:
But they said they didn't do tier A for some very specific reasons about variation in the concentration and airflow.

[00:33:17] Speaker 01:
Yes.

[00:33:18] Speaker 01:
And I guess I just haven't seen where you were arguing that that's really got, whether there's a system there or not, those are just distinct concerns about why they couldn't do tier A.

[00:33:30] Speaker 01:
And that's where I wasn't seeing your argument as to why they...

[00:33:33] Speaker 00:
could do tier A. Right.

[00:33:35] Speaker 00:
So the EPA's discussion about the differentiation and concentrations goes to my point about the importance of the SSDS.

[00:33:44] Speaker 01:
I'm just asking where you preserve this.

[00:33:45] Speaker 00:
That is where we preserved it.

[00:33:46] Speaker 00:
You can also look at joint dependence 53 to 54, which I think we also talk about the SSDS as being an important element of each of these calculations.

[00:33:55] Speaker 00:
But let me also say, this is not something that was discretionary with EPA.

[00:34:01] Speaker 01:
So they were on notice that you

[00:34:04] Speaker 01:
What we argued was that the SSDS needed to be taken into account.

[00:34:13] Speaker 01:
In the HRS scoring?

[00:34:16] Speaker 00:
Yes.

[00:34:16] Speaker 00:
That's pretty general.

[00:34:17] Speaker 00:
That's why Joint Appendix 48 makes the specific comment about waste quantity.

[00:34:24] Speaker 00:
The point with EPA taking it into account though is not something that was a mystery to EPA.

[00:34:31] Speaker 00:
That has been the requirement since 1990 when the HRS amendments were passed.

[00:34:38] Speaker 00:
So the fact that EPA declined to take the SSDS into account resulted in an estimate, as I said, of 10,000 pounds of hazardous substance in a structure, and even EPA concludes that that is not an appropriate estimate.

[00:34:54] Speaker 00:
Once you take the SSDS into account, EPA is then required Judge Millett to stop at Tier A.

[00:35:01] Speaker 00:
because the band of results essentially from the hazardous waste test shrinks to a very narrow level.

[00:35:09] Speaker 00:
And even if you take the top score as to TCE, which is the element of issue here, even if you take the top score and you plug it into the equation, what you get is point

[00:35:22] Speaker 00:
0.006 pounds of hazardous substance as compared to EPA's estimation of 10,000 pounds of the hazardous substance.

[00:35:32] Speaker 00:
And once you plug that 0.006 into all of the necessary algorithms and calculations, what you come up with is a waste quantity factor of 6 and not 56.

[00:35:44] Speaker 02:
And if you do just that... Sorry, once more.

[00:35:46] Speaker 02:
I'm just trying to find it.

[00:35:48] Speaker 02:
Where on JA48

[00:35:51] Speaker 02:
Is this argument made specifically with regard to waste quantity?

[00:35:58] Speaker 02:
This just seems like a general – a general assertion that they should have considered SSDI – SSDS.

[00:36:10] Speaker 00:
In our brief, when we're talking about whether this issue was waived, this is the page that we cited, and I believe we cited it because even if it's not in the text, I think there is a footnote, and my colleague is looking for it, that specifically says, footnote seven, thank you.

[00:36:30] Speaker 00:
Requiring EPA to consider an active mitigation.

[00:36:34] Speaker 00:
Footnote seven of joint appendix 48.

[00:36:37] Speaker 00:
Requiring EPA to consider an active vapor mitigation system when assigning the structure containment factor and when calculating the hazardous waste quantity.

[00:36:45] Speaker 01:
What you're signing there is an EPA requirement that addresses whether a building should be evaluated at all.

[00:36:53] Speaker 00:
No, that's not correct, Judge Mallett.

[00:36:56] Speaker 00:
What that says is that the hazardous waste quantity needs to be taken into account.

[00:37:05] Speaker 01:
I mean, that's not what it says.

[00:37:06] Speaker 01:
The parenthetical is very vague.

[00:37:08] Speaker 01:
And my understanding of that provision is that it's whether a building should be included at all.

[00:37:11] Speaker 01:
And that's why your next sentence says to include all regularly occupied structures.

[00:37:17] Speaker 01:
So it's just about which structures are in or out.

[00:37:20] Speaker 01:
No, I don't think that's correct.

[00:37:24] Speaker 00:
If you look at the text that drops down to footnote seven, the text is, required EPA to consider the SSDS in scoring.

[00:37:32] Speaker 00:
And I would submit too that requiring a regulated party to remind EPA of its obligation to take a mitigation system into account when calculating hazardous waste quantity, an obligation.

[00:37:46] Speaker 01:
What are your main particular arguments?

[00:37:48] Speaker 01:
And they make very specific arguments.

[00:37:50] Speaker 01:
about why this wasn't Tier A, and I just don't see that being contested, and this is awfully Delphic for raising a specific claim when they're talking about airflow and variation in concentrations.

[00:38:06] Speaker 00:
No.

[00:38:07] Speaker 00:
First of all, I think, Judge Millett, EPA knew exactly what we were arguing.

[00:38:13] Speaker 00:
Because if you look at Joint Appendix 643 and 646 to 647, it articulates two different arguments.

[00:38:21] Speaker 01:
I'm sorry, which document is that?

[00:38:23] Speaker 01:
I just want to make sure I've got it.

[00:38:24] Speaker 00:
643.

[00:38:25] Speaker 01:
Is that the support document?

[00:38:26] Speaker 01:
That's the support document, the final rule support document.

[00:38:30] Speaker 01:
How many are, 646 you said?

[00:38:31] Speaker 00:
643.

[00:38:32] Speaker 00:
Too many papers.

[00:38:36] Speaker 00:
And then again, it's 646 to 647.

[00:38:39] Speaker 00:
And I identify these because EPA notes that there are two different arguments about hazardous waste quantity.

[00:38:46] Speaker 00:
One of them is an argument that one of Meritorious experts raised about the footprint.

[00:38:51] Speaker 00:
That goes to Tier D. But the expert said this is not considered to be an all-encompassing objection.

[00:38:59] Speaker 00:
This is just as to the footprint.

[00:39:02] Speaker 00:
issue that Mayor Tor raised that EPA identified was you should have taken the SSDS into account.

[00:39:08] Speaker 00:
And my point is that SSDS into account, EPA, having had this requirement and operated under this requirement for three decades,

[00:39:18] Speaker 00:
should have understood that taking the SSDS into account means that it needed to calculate that hazardous waste quantity differently.

[00:39:27] Speaker 00:
And we talk in our brief about the magnitude of EPA's error, and I repeated those numbers here, 10,000 pounds versus .006 pounds.

[00:39:34] Speaker 00:
And if you take just that consideration,

[00:39:38] Speaker 00:
and say EPA should have at the very least taken the SSDS into account when calculating that quantity.

[00:39:46] Speaker 00:
And you hold those other things constant.

[00:39:48] Speaker 00:
We haven't talked about residents versus workers.

[00:39:50] Speaker 00:
We have talked about observed exposure.

[00:39:52] Speaker 01:
Hold those constant.

[00:39:53] Speaker 01:
If we can't figure out the area or the volume, which is what they said here, how does the existence of the detection system change that?

[00:40:02] Speaker 00:
So one of the things EPA says is we can't figure out the area because we don't know the height.

[00:40:06] Speaker 00:
The height was actually in the record.

[00:40:08] Speaker 00:
It did know the height.

[00:40:09] Speaker 00:
It just didn't look.

[00:40:12] Speaker 00:
We can't do this because we don't know it.

[00:40:13] Speaker 01:
It said we can't get airflow.

[00:40:15] Speaker 00:
It said the concentrations vary over that.

[00:40:17] Speaker 00:
And that's very important for Tier B. That's not important for Tier A because even EPA's technical support document says when you look at Tier A, you take a day's worth of sample.

[00:40:27] Speaker 00:
And that's what we're talking about.

[00:40:28] Speaker 01:
So what does this have to do with the system being in place?

[00:40:31] Speaker 01:
I mean, if you want to just have a dispute with them about whether they could have calculated volume because they had the height, I'm having trouble understanding how that relates to the argument.

[00:40:40] Speaker 01:
They should have taken the system into account.

[00:40:42] Speaker 00:
The primary argument for why EPA said it was going to calculate Tier D was because it couldn't estimate with reasonable confidence the substances that were in the building.

[00:40:54] Speaker 00:
And our point is,

[00:40:56] Speaker 00:
both under the 1990 regulations and under the subsurface intrusion regulation, the EPA should have taken the SSDS into account.

[00:41:05] Speaker 00:
Now, those other considerations that you just mentioned, Judge Millett, the airflow, the volume, those are all solvable problems.

[00:41:11] Speaker 00:
The volume is solvable because it knew the height.

[00:41:14] Speaker 00:
The airflow is solvable because you don't need airflow to calculate tier A. You only needed to calculate tier B. And I know that this is a complicated tiered system.

[00:41:25] Speaker 00:
But what EPA should have done is simply taken the amount of substances which it could reasonably estimate with reasonable confidence because of the SSDS and done the calculation by the area of the building.

[00:41:43] Speaker 00:
That's all that it needed to do.

[00:41:44] Speaker 00:
That's the point that we make in our brief.

[00:41:46] Speaker 00:
And once EPA does that, the hazard ranking score drops down to 14.

[00:41:52] Speaker 00:
That's why I'm saying that this is the most expedient and most straightforward way to think about this.

[00:41:59] Speaker 00:
I know that it's complicated, regulatorily, but it is, in fact, logically straightforward.

[00:42:04] Speaker 00:
You take a mitigation system into account when you're looking at mitigation.

[00:42:08] Speaker 00:
And EPA has been told over and over again, you take a mitigation system into account when you calculate waste characteristics, when you calculate the waste quantity.

[00:42:17] Speaker 01:
So this is an argument here that you should be in Tier A.

[00:42:21] Speaker 01:
Or that they miscomputed Tier D?

[00:42:24] Speaker 00:
That we should be in Tier A. Because they seem to understand that we miscomputed Tier D. No, that was the point that I made about one of our experts contesting Tier D. But our separate argument was that with the SSDS running,

[00:42:42] Speaker 00:
You can calculate what Tier A requires is the mass of constituents found in the structure where the observed exposure has been identified.

[00:42:50] Speaker 00:
So again, we're holding observed exposure constant.

[00:42:53] Speaker 00:
We have a separate argument on that.

[00:42:55] Speaker 00:
It's concentration times the volume of the building.

[00:42:58] Speaker 00:
The volume of the building was readily available to EPA.

[00:43:01] Speaker 00:
What it wasn't sure of

[00:43:03] Speaker 00:
was the concentration.

[00:43:05] Speaker 00:
But that's why I make the point that the SSDS shrank that range of concentrations.

[00:43:10] Speaker 00:
And even if you take the highest such concentration of the hazardous substances that were at issue, that's what adds up to .006 pounds.

[00:43:21] Speaker 00:
That's the difference between the SSDS being taken into account and EPA dropping all the way down to Tier D and calculating it based on the footprint of this big building.

[00:43:34] Speaker 00:
If the court has questions about the resident versus worker benchmark, I'm happy to answer them as well.

[00:43:40] Speaker 00:
If I could just make one or two quick points on that.

[00:43:44] Speaker 00:
The point of the resident versus worker benchmark is the technical support documents accompanying this rule, the rule itself, talk about this issue in terms of what is the reasonable maximum exposure that someone is likely to be exposed to at a site.

[00:44:03] Speaker 00:
And where you have a site that is zoned exclusively for industrial use, your reasonable maximum exposure is going to be the concentration assignable to worker indoor air.

[00:44:15] Speaker 00:
And this is not just me saying this, by the way.

[00:44:18] Speaker 00:
I don't think this was in EPA's brief, unfortunately.

[00:44:21] Speaker 00:
But if you go onto EPA's website and you look at what we talk about, what both of us talk about,

[00:44:30] Speaker 00:
regional screening levels, one of the things that you will find is actually a link to a vapor intrusion screening level calculator.

[00:44:39] Speaker 00:
And the vapor intrusion screening level calculator asks you, is this site a residence or is it not?

[00:44:47] Speaker 00:
And if you plug that in and you say this site is industrial, what you get are our numbers.

[00:44:52] Speaker 00:
So the vapor intrusion calculator on EPA's own website makes our point for us.

[00:45:00] Speaker 00:
But this again, if you hold all the other two things constant, if you give us the 10,000 pounds of waste and the observed exposure, and you conclude that EPA should have used the worker benchmarks, we prevail as well.

[00:45:12] Speaker 03:
Now they say it comes out the same because of that division by three.

[00:45:16] Speaker 03:
What do you say back to that?

[00:45:18] Speaker 00:
say that the division by three actually was something that the technical support document acknowledged.

[00:45:25] Speaker 00:
And what the technical support document, and this is something that both we and the EPA cite, at page 62 says, the divide by three is consistent with how EPA determines the appropriate regional screening levels.

[00:45:39] Speaker 00:
So the divide by three point doesn't, as we say in our brief at page 41,

[00:45:43] Speaker 00:
It doesn't cure the problem because the reason that those benchmarks are different.

[00:45:49] Speaker 02:
There's a problem either way, right?

[00:45:52] Speaker 02:
If you adopt the rule that you want, you're double dividing, right?

[00:46:07] Speaker 02:
You start with the residential, you start with, I'm sorry, the worker benchmark.

[00:46:13] Speaker 02:
which has baked into it eight hours per day of exposure.

[00:46:18] Speaker 02:
And so you get the most reasonable answer with regard to line eight, exposed individual.

[00:46:28] Speaker 02:
But then when you come to line nine on population, you divide by three for

[00:46:35] Speaker 02:
full-time worker divided by six for part-time worker, that's obviously designed to account for the fact that people are only at the site for part of the time.

[00:46:46] Speaker 02:
So you're double discounting.

[00:46:49] Speaker 02:
On your view, you're double discounting on nine.

[00:46:53] Speaker 02:
On their view, you're

[00:46:55] Speaker 00:
overestimating on E. I think it's difficult to talk about double discounting given the complexity of the algorithms we're talking about.

[00:47:05] Speaker 00:
But one of the things that the technical support document that I just quoted makes clear is EPA itself understood

[00:47:13] Speaker 00:
that these two things, the divide by three and the lower, slightly lower concentrations for workers were designed to go together.

[00:47:20] Speaker 00:
Divide by three is consistent with the slightly lower concentrations.

[00:47:24] Speaker 00:
So my point with divide by three is it goes to a different

[00:47:29] Speaker 00:
scoring altogether.

[00:47:32] Speaker 00:
The reason that the concentrations are set where they are is to distinguish between those two very important level one versus level two categories.

[00:47:40] Speaker 00:
And once you've dropped down to level two, you're scored in a completely different way.

[00:47:46] Speaker 00:
If you are instead, as EPA found here, in level one.

[00:47:50] Speaker 02:
But the question is, do you have, is there any level one concentration?

[00:47:58] Speaker 02:
Is there a one in a million risk of getting cancer?

[00:48:04] Speaker 02:
Yes.

[00:48:07] Speaker 02:
And that is relevant to item eight, and it's also relevant to the level one, what's called population level one, line 9A.

[00:48:20] Speaker 00:
It is, I'm only resisting this because I think those two considerations, the lower worker benchmark and the divide by three are relevant in different ways.

[00:48:32] Speaker 02:
Eight conceptually is, is there anyone who is going to be exposed, right?

[00:48:39] Speaker 02:
And nine conceptually is,

[00:48:42] Speaker 02:
What's the extent of the exposure?

[00:48:44] Speaker 00:
Yes.

[00:48:45] Speaker 00:
But the point that I made with respect to EPA's own vapor intrusion screening calculator is what they call it, which literally does permit you to plug in factors and get a result.

[00:48:57] Speaker 00:
That calculator, and I'll quote from this, asks you whether you are in a residential or non-residential exposure scenario.

[00:49:06] Speaker 00:
It uses the same database of toxicity values, et cetera, as the regional screening levels for Superfund sites.

[00:49:12] Speaker 00:
So the EPA's own calculator instructs that you use those lower benchmarks, and if you plug those benchmarks in just as you've done, Judge Katz's, what you would also do is do the divide by three by workers, but I think those are for two different purposes.

[00:49:28] Speaker 02:
How does your system, how does your approach get 9A right?

[00:49:35] Speaker 02:
If you start with the

[00:49:37] Speaker 02:
number designed to measure the one in a million risk at eight hours per day of exposure.

[00:49:45] Speaker 02:
And then you calculate

[00:49:47] Speaker 02:
the level one concentration by further dividing by three.

[00:49:52] Speaker 00:
I think the short answer is, as you pointed out, neither of us gets this reliably accurately right.

[00:50:02] Speaker 00:
The question is, what does the table have more tolerance for?

[00:50:09] Speaker 00:
And my point is, EPA has said in its technical support document, says in its vapor intrusion rule,

[00:50:15] Speaker 00:
that you use the lower worker benchmarks.

[00:50:18] Speaker 00:
Now what EPA says, in addition to the double discounting argument, which I think just goes to a different point because those two are designed to cover different things, but what EPA says is you don't look at the worker benchmarks because this potentially could get turned into a residential site.

[00:50:36] Speaker 00:
And that's plainly not the case.

[00:50:38] Speaker 00:
The other reason that the divide by three often comes into play is if you look at the appendix, I believe it's D, to the proposed rule that EPA cites a couple times, what you'll see is 11 different tests of sites across the country under this new proposed rule.

[00:50:57] Speaker 00:
Every single one of those 11 sites

[00:51:00] Speaker 00:
is either residential or mixed.

[00:51:02] Speaker 00:
They don't do a test of just an industrial site.

[00:51:05] Speaker 00:
And when you have a mixed site, we concede, and we conceded in our brief, that you use that highest reasonable exposure that the site's designed to give someone exposure to, so a resident.

[00:51:18] Speaker 00:
But where you only have a worker and where EPA tells you to look at a worker site and then EPA tells you to plug that benchmark that it gives you under its vapor intrusion calculator,

[00:51:30] Speaker 00:
into the equation, that equation is designed to come out with a value that EPA has decided adequately.

[00:51:37] Speaker 02:
I understand, but that sounds to me like an argument that on their rule, the determination of exposed individual under eight is most arbitrary in a case like this one where

[00:51:57] Speaker 02:
you only have workers and no residents.

[00:52:02] Speaker 02:
And I think that's probably right, but your rule, no matter who the people are, workers or resident, well, your rule if there are workers seems arbitrary in the calculation of

[00:52:17] Speaker 02:
9A because of this double division point.

[00:52:21] Speaker 00:
No, I think our role is if there are only workers, to be clear.

[00:52:26] Speaker 00:
If this is a mixed use site, if there are workers and residents within the site, you use the highest reasonable exposure, and that is the residential exposure.

[00:52:34] Speaker 00:
So our rule is, if there are only workers, what you should do is what EPA has told you to do in its regional screening levels, has told you to do in its vapor intrusion risk calculator, and you take the worker screening levels.

[00:52:47] Speaker 00:
Now, when you plug that in, yes, you do divide the workers by three.

[00:52:52] Speaker 00:
We submit that that is for a different reason, and heaven knows how EPA... What is the different reason?

[00:52:59] Speaker 00:
That's what I was about to say.

[00:53:00] Speaker 00:
I don't think any of us

[00:53:02] Speaker 00:
in the courtroom understand how EPA arrived at the ways to weight the various values of this.

[00:53:10] Speaker 02:
Which is why I asked you at the outset, are you challenging this reg as applied?

[00:53:16] Speaker 02:
It seems, I mean just looking at it, I can't make heads or tails of it.

[00:53:19] Speaker 02:
It seems totally arbitrary, but if we're stuck with it,

[00:53:23] Speaker 00:
I think we are largely stuck with it, but I think what the Court should look to are the two other sort of external EPA-directed points that I mentioned.

[00:53:35] Speaker 02:
Well, let me give you two reasons.

[00:53:37] Speaker 02:
If you just accept my framing, that you have to choose either between a Line 8 error and a Line 9A error,

[00:53:48] Speaker 02:
One argument for EPA's position is this is just an initial cut and we can take the most protective approach possible, so we're just going to pretend that everyone is there 24 hours a day.

[00:54:09] Speaker 02:
Another one, which may be one I'm making up, but another one is if you just try to assess

[00:54:19] Speaker 02:
magnitude of these things, item eight, which is just, is there any individual there, is worth only 50 points.

[00:54:30] Speaker 02:
Nine A, which is like how many people are there, is worth 650 points, which seem to be more important to have a precise calculation of nine A rather than a precise calculation of eight.

[00:54:46] Speaker 00:
So let me take the first of those two.

[00:54:50] Speaker 00:
You made the point that EPA could conceivably have designed this to be the most protective.

[00:54:56] Speaker 00:
In fact, that's one of the things that EPA says in its brief is in the proposed rule, and I think they refer to

[00:55:03] Speaker 00:
a response to a comment at page 44 of Appendix E to the proposed rule, and they make a point in that response to a comment that this is designed to be the maximum exposure no matter what the land use.

[00:55:18] Speaker 00:
That's not what the final rule said.

[00:55:20] Speaker 00:
What the final rule says is not we're looking at this as most protective.

[00:55:24] Speaker 00:
What the final rule says is this is designed to accommodate the reasonable maximum exposure that someone is to be subjected to at a site.

[00:55:33] Speaker 00:
Now, it is conceivable to me, even though it may look like gibberish on the page, that EPA decided to weight the values and weight the targets and weight the populations differently for a fully industrial site

[00:55:45] Speaker 00:
than it would for a mixed site or for a residential site.

[00:55:49] Speaker 00:
But the core point of the residents versus workers calculus is

[00:55:53] Speaker 00:
The residents versus workers calculus EPA tells you itself is based on two different benchmarks.

[00:56:00] Speaker 00:
Those benchmarks should have been used and should have been plugged in.

[00:56:03] Speaker 00:
But again, each of these arguments that we've talked about, the observed exposure, the waste characteristics, the target population, workers versus residents, each of those, if you agree with us that EPA should have taken the subslab system into account, each of those fails independently.

[00:56:22] Speaker 00:
So you only need to find for one of us, for one of those, for us to prevail here.

[00:56:28] Speaker 01:
Can you just help me with where you raised below that they should apply the industrial benchmark?

[00:56:34] Speaker 00:
Yes.

[00:56:37] Speaker 00:
We preserved it at Joint Appendix 71 to 72.

[00:56:41] Speaker 00:
And what we argued there was you used the wrong benchmarks.

[00:56:45] Speaker 00:
Here are the ones that you should have raised.

[00:56:47] Speaker 00:
Now, Judge Millett, you may say, but you didn't use the word industrial.

[00:56:51] Speaker 00:
The point is, the question about how sufficiently you raise something often depends on whether EPA understood what you were raising.

[00:56:59] Speaker 00:
And EPA clearly understood what we were raising.

[00:57:02] Speaker 00:
If you look at Joint Appendix 648 and 652 to 653, EPA knew exactly what we were talking about.

[00:57:11] Speaker 00:
It said we're not going to apply the worker benchmark.

[00:57:14] Speaker 00:
We are going to apply the residential benchmark.

[00:57:16] Speaker 00:
We're going to apply it because it's most protective.

[00:57:19] Speaker 00:
And we're going to apply it because it's just easier that way, because then we can just look at this all across the piece, and we don't need to look at whether a particular site is industrial or not.

[00:57:28] Speaker 00:
That's not the way these regulations work.

[00:57:30] Speaker 00:
It's not the way EPA has told the public and regulated entities that these regulations work.

[00:57:36] Speaker 00:
And I think we adequately preserved it, given the fulsomeness of EPA's response.

[00:57:40] Speaker 01:
Sorry, I'm just, tell me again, 647 and 648.

[00:57:43] Speaker 01:
It sounded like you were saying there were prior numbers that they've used, and they should have kept using those.

[00:57:50] Speaker 01:
You wanted to use older numbers.

[00:57:52] Speaker 01:
Is that the same thing as industrial?

[00:57:55] Speaker 00:
The screening concentrations that we are referring to are the industrial screening concentrations.

[00:58:02] Speaker 00:
And my point is, when EPA responded... Is that the 8.8?

[00:58:07] Speaker 00:
Yes.

[00:58:08] Speaker 00:
So 8.8 is the concentration for... And they found a 26.

[00:58:12] Speaker 01:
They found a 26, didn't they, even after the system was in place?

[00:58:18] Speaker 00:
They did, indeed.

[00:58:18] Speaker 00:
And what EPA didn't tell you, but what EPA well knows is that that was because of a broken line at a particular time that was immediately reported to the agency and fixed.

[00:58:28] Speaker 00:
So the fact that EPA fixates on that one number, I think, is telling us the option.

[00:58:32] Speaker 01:
So even with this system in place, it's still produced to 26 at one point in time, because they aren't perfect.

[00:58:37] Speaker 01:
They break.

[00:58:38] Speaker 00:
I don't think that even the EPA expects a vapor mitigation system to be perfect.

[00:58:44] Speaker 00:
This big vapor mitigation system is, as EPA has said in its own documents, a state of the art.

[00:58:51] Speaker 00:
And the reason why you have

[00:58:53] Speaker 00:
several amici coming in and talking about the importance of this issue is because this system is used in hundreds or thousands of sites across the country.

[00:59:02] Speaker 00:
So the fact that it had a broken line on one day, for EPA to say that indicates that the long-term exposure of a worker in that site is 26 is simply not true.

[00:59:14] Speaker 00:
If there are any further questions.

[00:59:17] Speaker 00:
Thank you.

[00:59:34] Speaker 06:
May it please the court, John Thomas Doe with the Justice Department on behalf of the Federal Respondent EPA.

[00:59:40] Speaker 06:
I'd also like to introduce individuals from EPA at council's table.

[00:59:44] Speaker 06:
That would be Eric Swenson and also Theresa Mann.

[00:59:48] Speaker 06:
I'd like to begin with perhaps if the court has any questions with regards to standing.

[00:59:54] Speaker 06:
Given the court's recent order, I can certainly represent that EPA did not contest standing in this case.

[01:00:01] Speaker 01:
However, if there are any factual questions with regards to... Is it EPA's position that they are a responsible party?

[01:00:06] Speaker 06:
It is true that factually EPA has identified Meritor as a PRP.

[01:00:12] Speaker 06:
They did so in past administrative orders on consent, and they've also sent them a letter identifying them as a potential PRP.

[01:00:19] Speaker 06:
Now a PAP, of course, would be a later determination in the event that EPA ever saw.

[01:00:24] Speaker 01:
They've been identified by EPA repeatedly as a potential.

[01:00:27] Speaker 06:
That is correct.

[01:00:28] Speaker 01:
A potential responsible party.

[01:00:30] Speaker 06:
I would highlight, nonetheless though, that may not necessarily be the dispositive question of whether or not someone has standing.

[01:00:37] Speaker 06:
Certainly, CTS spoke to that in part, but it is of course a factual case-by-case analysis.

[01:00:45] Speaker 06:
And I would highlight with regards to the reputational standing, the reputational injury that Mayor Tor spoke to, that Mayor Tor has been connected to this site for a number of years, at least they've been working on it since 2001, and so certainly any reputational damage that's been done, it's already been done and not connected to any potential MPL listing.

[01:01:08] Speaker 06:
Unless there are any further questions on standing, I would like to move on to the merits and hopefully perhaps synthesize these regulatory provisions for you all.

[01:01:20] Speaker 01:
Can you start by talking about 5.2.0?

[01:01:22] Speaker 01:
Does that require litigation systems to be considered throughout?

[01:01:28] Speaker 06:
5.2.0 is a general consideration provision of the subsurface intrusion regulations.

[01:01:35] Speaker 06:
It merely identifies that certainly when you're going to score a site, you should score a building that has a structure containment value more than zero, which

[01:01:47] Speaker 06:
Meritor, of course, cannot contest.

[01:01:49] Speaker 06:
I would highlight specifically in 5.2.0 that it speaks to examining hazardous substances that have or could intrude, meaning both in the past tense and also potentially.

[01:02:00] Speaker 06:
And that theme of examining what has previously happened is throughout the entire regulation itself.

[01:02:07] Speaker 06:
I would point to, if I could just summarize, if you will indulge me while I summarize those provisions,

[01:02:14] Speaker 06:
under observed exposure, that'd be 5.2.1.1.1.

[01:02:17] Speaker 06:
It states EPH should examine whether or not a hazardous substance has been released.

[01:02:27] Speaker 01:
Well, they say it's stale once they have a system in place.

[01:02:31] Speaker 06:
Well, as Your Honor pointed out, that was the best information that EPA had at the time.

[01:02:37] Speaker 06:
That was relatively recent.

[01:02:39] Speaker 06:
It was from the prior year, and certainly from the point of investigation to actually promulgating a rule and listing them, EPA used the best information that they had.

[01:02:49] Speaker 03:
And it certainly is not still... Does EPA knew that the system was in place?

[01:02:53] Speaker 03:
by the time they proposed it, right?

[01:02:55] Speaker 06:
That is correct.

[01:02:56] Speaker 06:
EPA did know that it was in place and is aware of the nature of the system.

[01:03:02] Speaker 06:
And at the same time, when they ultimately went final with the rule, they discussed the possible impact that the SSDS system had and concluded that it had no impact on the observed exposure component specifically.

[01:03:17] Speaker 06:
In fact, all the subsequent data supports EPA's prior position

[01:03:22] Speaker 06:
prior findings that there have been observed exposures.

[01:03:28] Speaker 06:
If I could just go back to, again, that marriage rights conceded as the briefs are presented, this is a challenge to EK's application of the regulations.

[01:03:38] Speaker 06:
It's not the statute.

[01:03:39] Speaker 06:
And I would nonetheless note that the statute, of course, says

[01:03:42] Speaker 06:
concerns known and threatened releases.

[01:03:44] Speaker 06:
Again, all past tense language that EK doesn't merely examine what's happening today at the site, but certainly needs to score what has previously happened as well.

[01:03:52] Speaker 02:
So diving into the regulation, first major point of contention is observed exposure under 5.2, .1, .1, .1, and you say has been released, the tense of that is

[01:04:11] Speaker 02:
seems helpful to your position, but if you, and direct observation has the formulation has been observed, which reinforces that.

[01:04:21] Speaker 02:
But then if you read down to chemical analysis, which is what was done here, you see the present tense, the observed concentration is

[01:04:35] Speaker 02:
significantly above the background concentration?

[01:04:39] Speaker 02:
Present tense.

[01:04:40] Speaker 06:
Present tense in the sense that when you do the comparison and to this day, the two samples are, continue to this day, to show an observed exposure.

[01:04:49] Speaker 06:
When you compare it, it showed an observed exposure.

[01:04:51] Speaker 06:
This is not faulty information or bad information.

[01:04:54] Speaker 06:
It remains true today.

[01:04:55] Speaker 06:
It is an observed exposure because the comparison is three times background levels.

[01:05:01] Speaker 06:
And I'd also highlight Section 2.3, which applies to all pathways and speaks specifically to likelihood of release or exposure, observed exposures.

[01:05:11] Speaker 05:
It is examining ways that... Sorry, you mean 5.2.7?

[01:05:15] Speaker 06:
No, Your Honor.

[01:05:16] Speaker 06:
2.3.

[01:05:17] Speaker 06:
So Section 5 deals specifically with the subsurface intrusion regulations, while Section 2 applies to all of the pathways.

[01:05:28] Speaker 06:
And Section 2.3 specifically provides that EPA again examine ways that has been and will be released.

[01:05:40] Speaker 01:
And you also had exposures after the system was in, or an exposure after the system was in place?

[01:05:45] Speaker 06:
That's correct, Your Honor.

[01:05:46] Speaker 06:
I believe there are upwards of 30 examples of values that indicate observed exposures following the operation of the SSDS.

[01:05:55] Speaker 01:
30 observed exposures.

[01:05:57] Speaker 06:
Yes, I can give you the more specific number.

[01:06:00] Speaker 06:
It would be 28 samples, Your Honor.

[01:06:04] Speaker 06:
Downward of 30.

[01:06:07] Speaker 01:
And where is that in the record?

[01:06:10] Speaker 06:
I would point to JA584 to 586.

[01:06:15] Speaker 06:
That shows a table, table 1.

[01:06:16] Speaker 06:
10 of those 14 values are shaded, indicating unobserved exposure.

[01:06:23] Speaker 06:
I would also go to JA667 to 68.

[01:06:28] Speaker 06:
That shows 18 of 18 samples in bold, also indicating unobserved exposure.

[01:06:37] Speaker 01:
And the system was up and running at January 2017?

[01:06:40] Speaker 01:
I'm trying to remember.

[01:06:42] Speaker 01:
December 2017?

[01:06:44] Speaker 01:
I forget, because they had to get the state to let them turn it back on.

[01:06:47] Speaker 01:
Sure.

[01:06:47] Speaker 06:
There was a pilot program in mid-August to mid-September 2017, and then began operating again in late December 2017.

[01:06:57] Speaker 01:
So these shaded operations are during the pilot time.

[01:07:00] Speaker 06:
That is correct, ma'am.

[01:07:03] Speaker 02:
Looking at the structure of the regulation,

[01:07:08] Speaker 02:
the structure containment value or the structure of the overall?

[01:07:11] Speaker 02:
Sorry, the overall.

[01:07:13] Speaker 02:
I'm on the chart.

[01:07:13] Speaker 02:
Sure.

[01:07:14] Speaker 02:
So the current regulations, as I understand it, are explicit in requiring consideration of the remedial measure with regard to structure containment, which is potential for exposure, line 2A.

[01:07:37] Speaker 02:
and targets, just eight through 11.

[01:07:43] Speaker 02:
So why, and just assume for now that I think the regulation is silent on this question with regard to item one, observed exposure.

[01:07:56] Speaker 02:
Why would a regulator want the subsequent measure considered

[01:08:05] Speaker 02:
for purposes of potential for exposure and targets, but ignored for purposes of observed exposure?

[01:08:16] Speaker 02:
It seems like an odd structure.

[01:08:19] Speaker 06:
Sure, well, it actually isn't completely ignored for the purposes of observed exposure.

[01:08:23] Speaker 06:
If there is a structure containment of zero, then that would not necessarily be scored.

[01:08:33] Speaker 02:
otherwise ignored unless perfectly effective.

[01:08:36] Speaker 06:
Which, and to be clear, in no instance has Meritor alleged that they deserve a, or would get a zero under the structure of standard value.

[01:08:47] Speaker 02:
I understand.

[01:08:47] Speaker 02:
And if I may.

[01:08:48] Speaker 02:
But why would you fully take it into account in determining potential for exposure and targets, but not take it into account for purposes of determining observed exposure?

[01:09:00] Speaker 06:
Well, I would also note it is taking into account observatory.

[01:09:04] Speaker 06:
Observe exposure is mentioned in that structure containment table, table 512.

[01:09:10] Speaker 03:
If there is an observatory... The values other than zero would be considered for the other two purposes, but not for that one.

[01:09:16] Speaker 03:
Correct.

[01:09:17] Speaker 03:
And it's, of course... Why would that be?

[01:09:21] Speaker 06:
I'm sorry, Judge Santana.

[01:09:22] Speaker 06:
I think I misheard your question.

[01:09:23] Speaker 03:
Where can you shed cactus foot to?

[01:09:26] Speaker 03:
You're taking it into account even if it's not zero for the other two purposes, but not for that one.

[01:09:32] Speaker 03:
Why is there a difference?

[01:09:34] Speaker 06:
Well, I think that is the nature of the way that EPA designed the regulation.

[01:09:43] Speaker 03:
That changes the question, too.

[01:09:45] Speaker 03:
Why is that the nature of the regulation?

[01:09:49] Speaker 06:
I think it's quite common for certain components to be considered for scorn persons in one area and not another.

[01:09:55] Speaker 06:
I can't speak to specifically that.

[01:09:57] Speaker 01:
If you're trying to find the risk of exposure and you've got certainty it's actually happened.

[01:10:02] Speaker 06:
Correct.

[01:10:03] Speaker 01:
Then you're measuring risk and this is certainty.

[01:10:08] Speaker 01:
Well, the certainty would be a zero, Your Honor, in terms of... I mean, when you have an actual exposure, and so you know that the system's not perfect, and in fact, there's actual exposures, why discount it for more for the system?

[01:10:23] Speaker 06:
I guess it's... That's correct, and we do not.

[01:10:29] Speaker 06:
So, given that...

[01:10:34] Speaker 06:
So given that there is no regulatory provision in here that commands the consideration of the subslab depressurization system, the SSDS, EPA has a discretion to consider it and not in this court has recognized that in the line master case and the equal picture cases, which you of course recognize

[01:10:57] Speaker 06:
predate the current iteration of the HRS, but nonetheless that HRS was silent on whether to consider removal actions.

[01:11:06] Speaker 02:
What about the general APA principle that agencies should consider more recent data rather than less recent data and should take account of relevant factors rather than not?

[01:11:25] Speaker 06:
Sure, and this court has recognized, and I would cite Eagle Pitcher and also City of Stoughton, that past information is relevant.

[01:11:35] Speaker 06:
And in fact, City of Stoughton specifically noted that merely the fact there is a downward trend or that subsequent information.

[01:11:43] Speaker 02:
I mean, if you were just thinking in the abstract and the situation on the ground now is that there's a system in place

[01:11:55] Speaker 02:
And it works really well, and it's making a difference.

[01:11:59] Speaker 02:
And you have data from today that takes that into account.

[01:12:05] Speaker 02:
And you have data from a year ago before the system was up and running that doesn't.

[01:12:11] Speaker 02:
Why would you pick the older data that doesn't account for what's actually happening at the time you're making the determination?

[01:12:23] Speaker 06:
Sure, I would certainly understand wanting to use the most recent data and EPA certainly wouldn't contest that.

[01:12:30] Speaker 06:
And I would certainly argue in this instance, we did examine the most recent data.

[01:12:36] Speaker 06:
But I think it's also important to contextualize that data.

[01:12:40] Speaker 06:
That data comes from

[01:12:41] Speaker 06:
a response action that does not address the underlying threat that's at issue here.

[01:12:48] Speaker 06:
The SSCS system treats a symptom.

[01:12:51] Speaker 06:
It treats a cough.

[01:12:52] Speaker 06:
It doesn't treat the underlying infection or disease that's causing these vapors to continue to intrude into the building.

[01:13:00] Speaker 06:
It doesn't remove it substantively or in any meaningful way.

[01:13:03] Speaker 06:
And if EPA were to consider crediting that such a system, it would artificially shield it from remediation.

[01:13:11] Speaker 06:
And I would highlight that when EPA was promulgating this new subsurface intrusion regulations, they specifically cited the fact that these SSDS systems are not perfect and would and prevent EPA from

[01:13:28] Speaker 06:
And the prior iteration of the HRS prevented EPA from scoring these sites, despite the very real threat that they have, both for the workers and the potential for it to migrate into other communities as well.

[01:13:40] Speaker 01:
I think something about, because your proposed rule came out in 2018, the pros listing in 2018,

[01:13:51] Speaker 01:
Am I right?

[01:13:52] Speaker 06:
The proposed site listing or proposed subsurface intrusion regulations?

[01:13:58] Speaker 01:
No, no.

[01:13:59] Speaker 01:
I'm sorry.

[01:13:59] Speaker 01:
I mean the proposed listing.

[01:14:00] Speaker 01:
I apologize.

[01:14:01] Speaker 01:
The proposed listing was 2018?

[01:14:03] Speaker 06:
The proposed listing itself was in January 2018.

[01:14:11] Speaker 06:
That's correct.

[01:14:12] Speaker 01:
January 2018.

[01:14:13] Speaker 01:
And you had data at least through September of 2017.

[01:14:16] Speaker 06:
At the time of the proposed rulemaking, EPA was aware that there was an SSDS system in place.

[01:14:23] Speaker 06:
They did not necessarily have the actual data itself.

[01:14:26] Speaker 01:
You showed me the chart that showed September 2017 actual exposures.

[01:14:31] Speaker 06:
The information about the SSDS system came following proposal through the notice of comment process.

[01:14:37] Speaker 01:
You hadn't got it.

[01:14:39] Speaker ?:
OK.

[01:14:39] Speaker 01:
All right.

[01:14:39] Speaker 01:
My assumption is you kind of have to fish or cut bait at some point on collecting your data.

[01:14:43] Speaker 06:
That's correct.

[01:14:44] Speaker 01:
And so the proposed listing, you cut it off before the system was in place.

[01:14:51] Speaker 01:
And then once you're getting comments on a proposed listing, what is the general time frame that you look at before making a fine?

[01:15:00] Speaker 01:
Because someone could always be submitting new data, at least in some other EPA areas, we have said,

[01:15:06] Speaker 01:
years back is okay, because you have to just have a cutoff date.

[01:15:10] Speaker 01:
But for a listing like this, which is a targeted decision about a particular site, how far do you usually, how much more updating do you do between proposed listing and final determination?

[01:15:23] Speaker 06:
Sure, Your Honor.

[01:15:23] Speaker 06:
Of course, there must be at some point that EPA needs to

[01:15:27] Speaker 06:
cut and bitch bait, as you say.

[01:15:29] Speaker 06:
And in this case, the comments were received prior to the notice and comment cut update, and therefore EPA did do the good government process of examining that information.

[01:15:41] Speaker 06:
I would note, actually, that under the 1990 guidance for when to consider response actions, EPA would only do so if it existed prior to proposal.

[01:15:52] Speaker 06:
That isn't the case here.

[01:15:53] Speaker 06:
Again, EPA did take the additional step of reviewing all the data that was received.

[01:15:59] Speaker 06:
So I would say that if there was a date, it would be certain the date at which point EPA did the cutoff for providing comments.

[01:16:07] Speaker 01:
But they did say that their concern is that, yeah, you took it, but you didn't give it material weight.

[01:16:15] Speaker 01:
You were still relying so much on measurements that were made beforehand.

[01:16:20] Speaker 06:
Well, EPA took that information.

[01:16:23] Speaker 06:
After appreciating the nature of the SSDS and examining EPA's past policy about how to examine response action, that's the 1990 policy, EPA decided that it could not use its discretion here to ignore the regulatory commands as to examining past samples and past exposures and elected not to do so.

[01:16:49] Speaker 06:
Nonetheless, EPA took the exercise of even if it could, even if they could ignore the pre-SSDS samples and only look at the post-SSDS samples, it would nonetheless reach the exact same conclusion.

[01:17:04] Speaker 02:
Suppose there were no samples taken before SSDS was up and running and you

[01:17:17] Speaker 02:
learn about the site, you have concern, you go in and the one and only sample you take is after the system is up and running and it shows, you measure whatever it is, what's the concentration of the gas in the facility with the system running and it comes back very low.

[01:17:41] Speaker 02:
What would you do then?

[01:17:42] Speaker 06:
Under that hypothetical, Your Honor, I think

[01:17:46] Speaker 06:
EPA would nonetheless primarily rely upon the past observances.

[01:17:51] Speaker 02:
And the reasons for that... Wouldn't make any difference, because your position is you don't take things like SSDS into account.

[01:17:58] Speaker 06:
Well, in the exercise of EPA's discretion in terms of when to consider response actions, that would certainly be a very fact-specific situation.

[01:18:06] Speaker 06:
Assuming it's an SSDS system in your hypothetical, I find it, I believe it would be unlikely due to the exact nature of the SSDS, which is not to substantively address the underlying contamination.

[01:18:20] Speaker 02:
And is it your position that the regulation prohibits you from taking something like SSDS into account?

[01:18:33] Speaker 02:
in calculating observed exposure or that it's silent and you just do that as a matter of discretion?

[01:18:43] Speaker 06:
The regulations do provide specific instructions, some of which I've gone through.

[01:18:47] Speaker 06:
For observed exposures, I've addressed how its past samples are taken into account.

[01:18:54] Speaker 06:
I would also note

[01:18:57] Speaker 06:
HRS section 5.2.1.1.1, which deals specifically with observed exposures, which again concerns past samples.

[01:19:08] Speaker 06:
With regards to targets, I would cite to HRS section 5.2.1.3.1, which states that any sample should be considered.

[01:19:21] Speaker 06:
And so therefore, under those regulations, they are confining EPA's discretion.

[01:19:27] Speaker 06:
There may be some wiggle room in the event, for example, that a company were to, for example, remove the actual vapor causing chemicals in the subsurface.

[01:19:40] Speaker 06:
Perhaps in that situation, EPA may consider

[01:19:45] Speaker 03:
not crediting the past samples, given the fact that there is no longer a threat or that threat has been substantially reduced due to the permanent elimination of it.

[01:20:06] Speaker 06:
Well, it is possible you wouldn't be listed at all, certainly.

[01:20:09] Speaker 06:
However, I would note that the one area in which I did not provide a regulatory provision for, which was the hazardous waste quantity component of it, under that component, it is possible with sufficient evidence that if there has been a partial removal, that EPA could credit it in that situation.

[01:20:28] Speaker 03:
But if there's a total removal, why would there be any point in EPA continuing to do anything

[01:20:35] Speaker 06:
Well, if there's a total removal at your risk, it wouldn't be that particular building, for example, would not be scored.

[01:20:42] Speaker 01:
Can I just clarify, are we talking about total removal of the vapors, the caffeine, or total removal of the subs?

[01:20:48] Speaker 01:
Are you talking about the subsurface stuff?

[01:20:50] Speaker 06:
I am talking about the subsurface.

[01:20:51] Speaker 01:
Yes, Your Honor.

[01:20:52] Speaker 01:
Sorry.

[01:20:52] Speaker 01:
Thank you.

[01:20:52] Speaker 06:
Yes, Your Honor.

[01:20:54] Speaker 06:
But in terms of where EP would score, it is possible that EP is scoring multiple buildings, so perhaps one particular building that has had its subsurface

[01:21:04] Speaker 06:
contamination removed, either completely or partially, that would impact the score of that particular building.

[01:21:10] Speaker 06:
Why would it have a score at all if it's been removed completely?

[01:21:13] Speaker 06:
That particular building may not have a score, but the site, the site which may be larger would.

[01:21:18] Speaker 03:
If it's removed from the site, then the site would not be removed.

[01:21:21] Speaker 03:
That is correct.

[01:21:22] Speaker 03:
I don't understand your quibble on this one.

[01:21:26] Speaker 03:
I understand most of your quibbles, but I don't understand the quibble on this one.

[01:21:30] Speaker 06:
I make that note in reference particularly with hazardous waste quantity, which can use under Tier A and possibly Tier B, but primarily Tier A on the site data to score partial removals.

[01:21:47] Speaker 06:
We didn't have that information here, and the EPA instead scored under

[01:21:52] Speaker 06:
instead scored under tier D, which is of course based on the footprint of the building, which can't be impacted by any type of removal system.

[01:22:04] Speaker 06:
Unless there are further questions with regards to the use of SSDS, I can move on to discussion about the benchmarks.

[01:22:16] Speaker 06:
Actually, forgive me.

[01:22:18] Speaker 06:
Yes.

[01:22:19] Speaker 06:
Actually, I did want to address one more thing with regards to the tier issues that were raised in the prior questioning, Your Honors.

[01:22:26] Speaker 06:
And that is whether or not

[01:22:28] Speaker 06:
Mayor Tor preserved its Tier A argument.

[01:22:31] Speaker 06:
It's our position they have not.

[01:22:33] Speaker 06:
As Judge Mullett, you asked earlier with regards to their citations, that particular citation does not inform EPA that they had a particular concern with regards to Tier A. The SSDS does not provide any information that was necessary to do a Tier A calculation and certainly does not put the

[01:22:53] Speaker 06:
the agency on notice.

[01:22:54] Speaker 06:
Instead, what the agency did receive from comments, which is cited at JA-643, was a complaint about how EPA calculated Tier D. The allegation was that EPA used the wrong footprint to calculate it.

[01:23:13] Speaker 06:
Now, certainly complaining about a different problem doesn't put the agency on notice of a supposed tier A problem.

[01:23:22] Speaker 06:
So therefore, the agency did not have notice of it, and it's waived.

[01:23:26] Speaker 06:
And I would cite the Texas 10 case with regards to that proposition.

[01:23:34] Speaker 06:
With regards to the benchmarks questions, Your Honor, first there is an issue of

[01:23:42] Speaker 06:
And I think this leads to the difference of perhaps framing of this case.

[01:23:50] Speaker 06:
Meritor believes essentially that EPA set out a standard previously and has not followed it today.

[01:23:55] Speaker 06:
It's EPA's position that when EPA was promulgating the sub-circuit intrusion regulations, it decided it was going to use a maximum exposure assumption.

[01:24:08] Speaker 02:
And that- They can argue that the reg was misapplied here.

[01:24:13] Speaker 02:
in this listing decision?

[01:24:16] Speaker 06:
I think it's our position that we at EPA used decided back in 2016 that they were going to use the maximum soldier assumption, which is residential.

[01:24:27] Speaker 06:
Mayor Torres' argument today, therefore, speaks specifically to that question.

[01:24:33] Speaker 02:
This isn't an instance where... They're saying that the proper measure under this regulation in these circumstances

[01:24:42] Speaker 02:
is the workplace measure, not the residential measure.

[01:24:49] Speaker 02:
And we can debate that on the merits, but that's an argument about how to apply the regulation to this decision.

[01:24:56] Speaker 06:
I think, Your Honor, the question is whether or not EPA's reading of the regulation, which is to require, excuse me, which is silence on exposure, and EPA has read that to

[01:25:10] Speaker 06:
allow it to use a residential base exposure assumption, regardless of land use.

[01:25:16] Speaker 01:
Now, Meritor... You've read it in this case that way?

[01:25:19] Speaker 01:
No, no, Your Honor.

[01:25:21] Speaker 06:
That's the distinction I'm trying to make.

[01:25:23] Speaker 01:
Where is that reading first articulated?

[01:25:25] Speaker 06:
It's first articulated in the proposed rule, and then again in the final rule.

[01:25:32] Speaker 06:
In both the proposed and the final rule,

[01:25:36] Speaker 06:
a commenter specifically requested that EPA consider screening levels for industrial situations.

[01:25:45] Speaker 06:
And EPA rejected that comment and instead noted that it would be either in the worst case scenario to use the language of the proposed rule or the reasonable maximum exposure to use the language of the proposed, of the final rule, excuse me.

[01:25:59] Speaker 06:
And in both instances, EPA again rejected it, noted that

[01:26:03] Speaker 06:
that worker exposure time could be accounted for in the division by three later on.

[01:26:09] Speaker 06:
And by receiving comments, considering alternatives, EPA bound itself to the use of a residential exposure assumption.

[01:26:18] Speaker 01:
So your point is no choice was made here, that the rule itself across the board requires the use of the residential benchmark, and then you divide by three.

[01:26:28] Speaker 01:
That's where that comes.

[01:26:30] Speaker 06:
Yes, when you say the regulation, the regulation that's codified in CFR does not express one way or another whether to divide

[01:26:44] Speaker 06:
the population based on particular characteristics.

[01:26:48] Speaker 06:
But EPA just stated in the preamble and in response to comment and in technical support documents that it would use a residential exposure assumption, which is the same across the board.

[01:26:59] Speaker 01:
Uniformly.

[01:26:59] Speaker 06:
Correct.

[01:27:01] Speaker 06:
which is how exposure exemptions are used across the board in all pathways because it is the most protective and allows EPA to efficiently screen for a wide variety of sites.

[01:27:12] Speaker 01:
Are people supposed to bring challenges to interpretations and regulations at the time of the final rule?

[01:27:19] Speaker 01:
It's not in the rule itself?

[01:27:21] Speaker 01:
I thought they could wait until that interpretation was applied to them and then raise the challenge.

[01:27:26] Speaker 06:
I would note two things.

[01:27:28] Speaker 06:
One is that it depends on the face and context of whether or not the communication

[01:27:37] Speaker 06:
bound the agency itself and regulated parties and its opposition that it did.

[01:27:42] Speaker 06:
And I would highlight that CERCLA's judicial review provision, this court has repeatedly recognized, is special in the sense that it provides or it prefers pre-enforcement review.

[01:27:52] Speaker 02:
They're not seeking judicial review of the regulation.

[01:27:55] Speaker 02:
They're seeking judicial review of this listing decision.

[01:28:03] Speaker 01:
So you applied your interpretation to them.

[01:28:06] Speaker 06:
It is correct in the sense that in this case, EPA did not go and examine the facts and ask, what is the reasonable exposure assumption, and decide that it was a residential exposure assumption.

[01:28:20] Speaker 01:
You didn't have notice and comment on that particular decision.

[01:28:24] Speaker 06:
Well, there was notice.

[01:28:25] Speaker 06:
Well, there's notice and comment of the listing decision itself.

[01:28:28] Speaker 01:
There's also notice and comment.

[01:28:29] Speaker 01:
I'm sorry.

[01:28:30] Speaker 01:
I'm talking about your rule.

[01:28:30] Speaker 01:
Yes.

[01:28:31] Speaker 06:
Well, there was notice and comment of the final rule, of course, in which EPA

[01:28:36] Speaker 06:
expressed its intention to only use a residential exposure assumption in the proposed rule and did not change course in the final rule.

[01:28:47] Speaker 01:
And in the final rule, you said it's in the preamble?

[01:28:50] Speaker 06:
In the final rule, it is in the preamble, and I'll give you the exact citation.

[01:28:53] Speaker 01:
Is that enough?

[01:28:54] Speaker 06:
I'm sorry?

[01:28:54] Speaker 01:
Is that enough?

[01:28:56] Speaker 06:
Well, under the American Petroleum and Kennecott case, those cases left open the ability to challenge

[01:29:07] Speaker 06:
not a regulation in the sense it's in the CFR, but preamble language specifically.

[01:29:17] Speaker 01:
They specifically cite preamble language as a possibility for... Well, you go over whether you can, but do you have to, or why isn't it perfectly sensible to wait until the rubber meets the road and they actually apply it to...

[01:29:32] Speaker 01:
My bet is that people come rushing in, they go, that's just the preamble, and wait until, it's just an interpretation, and you have to wait until it's actually applied to you.

[01:29:39] Speaker 06:
I can certainly appreciate that, which is why I go back to specifically the judicial review provision in this, in CERCLA, which this court, as recent as the U.S.

[01:29:48] Speaker 06:
Agnesian case, calls for, is exceptionally limited in the sense that it encourages specifically pre-enforcement review.

[01:29:56] Speaker 02:
Otherwise... Which says if you want to challenge

[01:30:00] Speaker 02:
the promulgation of the regulation, you do so within, however, 60 days of the promulgation?

[01:30:08] Speaker 06:
It's whether, if you could have done it back with the original promulgation, you should do it and you should not wait.

[01:30:14] Speaker 06:
That is the case law with regards to circular judicial review provision.

[01:30:18] Speaker 06:
particularly with regards to the NPL, which is a program that Congress has intended EPA to execute as expeditiously as possible.

[01:30:28] Speaker 06:
So rather than waiting for challenges to later come on an as-applied basis, there's a strong preference for... This is entirely within your control.

[01:30:34] Speaker 01:
You actually codify in CFR your interpretation, and you won't have this issue.

[01:30:40] Speaker 06:
That is true that the agency could have done that.

[01:30:44] Speaker 06:
But certainly the fact that it's contemporaneous, I would lend itself as further evidence of the agency's interpretation and why it's authoritative.

[01:30:56] Speaker 01:
Assuming it's not an untimely challenge, do they preserve in their comments here the claim for the benchmark?

[01:31:05] Speaker 01:
Do you agree that when they invoked

[01:31:08] Speaker 01:
I think 8.8, is that the number?

[01:31:10] Speaker 01:
That is correct, Your Honor.

[01:31:11] Speaker 01:
You understood that to be an argument for the industrial benchmark.

[01:31:14] Speaker 06:
No, the agency did not, Your Honor.

[01:31:16] Speaker 06:
It opaquely references the 3.0 and 8.8 number, and specifically stated that EPA should use these because they had previously approved them, but without any other specificity.

[01:31:26] Speaker 01:
Well, did those numbers have an established?

[01:31:28] Speaker 01:
It wasn't like they were just grabbing numbers out of the air.

[01:31:30] Speaker 01:
Did those numbers have an established meaning?

[01:31:33] Speaker 06:
They do.

[01:31:33] Speaker 06:
They were used in the removal context.

[01:31:35] Speaker 06:
or, for example, the time critical removal context.

[01:31:39] Speaker 06:
The SSCS, for example, cites those specific numbers, and that's the basis of EPA, excuse me, that's the basis of Meritor's inclusion on it there.

[01:31:50] Speaker 06:
Now, Meritor previously referenced some calculator online.

[01:31:53] Speaker 06:
I will have to concede here, and that's the first time I'm hearing of it, and that's certainly outside the record, and I can't speak to that.

[01:31:59] Speaker 06:
But with regards to the waiver issue, again, the agency took,

[01:32:05] Speaker 06:
Mayor Tor's comment to be, you should use this number because you used it previously.

[01:32:10] Speaker 06:
And in response to that, EPA did explain in the support document why it uses the numbers that it did.

[01:32:20] Speaker 06:
And at that point, we can see we did note that

[01:32:23] Speaker 06:
that there are differences between the values, that our value is a residential exposure number, and that at least one of their values is more akin to a worker-based number.

[01:32:33] Speaker 06:
And that is where that discussion comes out.

[01:32:36] Speaker 06:
But again, we also noted in the support document that the exposure assumption we use is the residential exposure assumption, because that is the reasonable maximum exposure assumption that EPA uses.

[01:32:48] Speaker 02:
So the regulation says use an appropriate benchmark.

[01:32:54] Speaker 02:
And you didn't necessarily have to develop separate measures for 24 hours per day, which corresponds to residents, and eight hours per day, which corresponds to workers.

[01:33:11] Speaker 02:
But you did.

[01:33:13] Speaker 02:
We have both numbers, and we have a site that's exclusively a workplace.

[01:33:20] Speaker 02:
So why isn't this just very simple?

[01:33:22] Speaker 02:
The appropriate benchmark

[01:33:24] Speaker 02:
for a workplace is the one in a million measure that's key to workers.

[01:33:32] Speaker 06:
So we don't contest, Your Honor, that it is technically feasible for EPA to have come up with a more tailored number for... You did that.

[01:33:42] Speaker 06:
I'm sorry?

[01:33:43] Speaker 02:
You did that.

[01:33:43] Speaker 02:
A more tailored number?

[01:33:45] Speaker 02:
You have separate numbers for

[01:33:48] Speaker 02:
the 24-hour-per-day exposure and the 8-hour-per-day exposure.

[01:33:51] Speaker 06:
We do not, Your Honor.

[01:33:53] Speaker 06:
I cannot say that the numbers that Meritor cites is the exact same as the calculation that we did here, but for the exposure assumption.

[01:34:02] Speaker 06:
I'm sorry.

[01:34:02] Speaker 06:
EPA would have to go and create that number.

[01:34:06] Speaker 06:
I don't know what that number is.

[01:34:07] Speaker 06:
It is technically feasible for EPA to do that, but the reason why

[01:34:12] Speaker 02:
I mean, I don't have chapter and verse memorized, but my recollection is everyone agrees there is one set of numbers.

[01:34:20] Speaker 02:
There's one set of numbers for the 24 hours per day, 50 weeks per year, I forget, 25 or 27 years, and there's a separate number for

[01:34:34] Speaker 06:
I agree that there's a separate number in theory.

[01:34:37] Speaker 06:
My point is I cannot say with certainty that the number that Merita presented is that number.

[01:34:44] Speaker 02:
It has been adopted by the agency as the measure of the one in a million risk for someone who is exposed.

[01:34:54] Speaker 02:
eight hours per day rather than 24 hours.

[01:34:56] Speaker 02:
You're saying you don't have those numbers.

[01:34:58] Speaker 06:
We'd have to create those numbers, which I concede is something EPA can do.

[01:35:04] Speaker 06:
They have the ability to do so.

[01:35:06] Speaker 06:
But EPA gets these benchmarks from a matrix.

[01:35:09] Speaker 06:
The matrix currently does not have that value.

[01:35:12] Speaker 06:
Now, again, I recognize it may be close or it may be that number, but EPA has not done that because they apply, again, the same exposure assumption in all cases for the SSI currently.

[01:35:27] Speaker 01:
So the 8.8 came from removal?

[01:35:30] Speaker 06:
That's correct.

[01:35:31] Speaker 01:
And this is not removal?

[01:35:34] Speaker 06:
time-sensitive removals, like the SSDS system.

[01:35:38] Speaker 06:
And I can say with confidence that the 8.8 number is primarily targeted towards immediate, more acute exposure as opposed to long-term exposure, which is what the Table 520 benchmarks are aimed at.

[01:35:53] Speaker 01:
And I would also note... 8.8 does not get long-term exposure.

[01:35:56] Speaker 06:
That is correct.

[01:35:58] Speaker ?:
Okay.

[01:35:59] Speaker 06:
And Mayor Tarr also, I believe, would recognize that they aren't relying on the 8.8 number, they're really relying on the 3.0 number because they need to use the lowest of them all.

[01:36:12] Speaker 01:
And that's also not long-term exposure, is that in the 3.0?

[01:36:15] Speaker 06:
My understanding is the 3.0 number may have some protectiveness with regards to

[01:36:25] Speaker 06:
long-term exposure, but again, I can't speak to the specifics of that.

[01:36:29] Speaker 06:
And EPA itself, again, has not calculated that number for the purposes of a benchmark to use in this context.

[01:36:38] Speaker 02:
Sorry, is it wrong to say that EPA has calculated the risk created in a worker exposed for eight hours per day

[01:36:51] Speaker 02:
250 days per year, 25 years for TCE to be three micrograms per cubic meter?

[01:37:02] Speaker 06:
If I believe you're reading that is what that definition of it is, then yes, that is that number.

[01:37:08] Speaker 06:
My point is I can't speak with certainty if all the variables that went into EPA's number of 0.4 is exactly the exact same variables as the 3.0 number, but for the exposure assumption.

[01:37:21] Speaker 06:
There are a lot of other variables that go into that and I can't speak to that, so therefore I'm not saying whether or not they're the same but for that.

[01:37:30] Speaker 06:
But my greater point, of course, is that looking at the regulation, there is no requirement that EPA break down these target populations in the manner

[01:37:40] Speaker 06:
in which Meritor suggests, I would highlight the case city of Stoughton, in which a city proposed to the agency that we have this alternative calculation, it is more accurate by splitting the population based on where they get their water.

[01:37:56] Speaker 06:
The court in that case decided that the HRS does not require you to divide the population in such a manner, and we will not do so, because EPA needs to use specifically generally applicable regulations that they can apply across the board

[01:38:10] Speaker 06:
And that in this case, EPA applied one that is more protective, which this court has recognized in Board of Regents.

[01:38:19] Speaker 06:
EPA can err on the side of over-inclusion, and that it is routine for EPA to use simplified assumptions and formulas rather than actual on-the-site information, even if it's available, for the purposes of creating a screening list that recognizes the most relative

[01:38:40] Speaker 06:
needy sites in need of further cleanup or investigation.

[01:38:44] Speaker 01:
So this system applies, would apply, nothing would change then in this respect.

[01:38:49] Speaker 01:
In this respect if in fact there is like a neighborhood nearby that you said you didn't factor in, but if you did it would still be the same sort of uniform measure.

[01:38:58] Speaker 06:
We would.

[01:38:59] Speaker 06:
By happenstance one of the first, the first case that EPA scored

[01:39:02] Speaker 06:
for the SSI, subsurface intrusion component, was a site that only included workers.

[01:39:08] Speaker 06:
But of course, there will be many other sites that have a variety of individuals.

[01:39:12] Speaker 06:
EPA would not score only pregnant women if it was, again, a maternity ward.

[01:39:16] Speaker 06:
It wouldn't score only children if they were looking at a school.

[01:39:21] Speaker 06:
They could.

[01:39:22] Speaker 06:
EPA can technically come up with numbers for exposure assumptions or for the exact risk that these particular subset of individuals have.

[01:39:32] Speaker 06:
But because there must be some line that EPA must draw so it can expeditiously implement this program, it applies the same exposure assumption across the board.

[01:39:42] Speaker 06:
And that is true for all the pathways, which is critical because this is supposed to be a relative list.

[01:39:48] Speaker 06:
And it would skew the numbers if EPA were for each site to determine more specific information with regards to exposure assumptions for individuals.

[01:40:00] Speaker 01:
Thank you very much.

[01:40:07] Speaker 01:
Thank you.

[01:40:16] Speaker 00:
Thank you, Your Honors.

[01:40:17] Speaker 00:
Just a couple quick points, and I want to frame this in terms of regulatory commands because Mr. Doe made a point at one point about how EPA was simply acting under a regulatory command not to consider response actions.

[01:40:31] Speaker 00:
But as Mr. Doe knows, that regulatory command was eliminated in 1990.

[01:40:35] Speaker 00:
This court in Line Master Switch in 1991 expressly made the point that that prior policy was no longer EPA's policy.

[01:40:44] Speaker 00:
What is a command

[01:40:46] Speaker 00:
is EPA's rule that preliminary HRS scores are refined as sites progress through the process.

[01:40:52] Speaker 00:
What is a regulatory command is that you can't make a determination based on old data when you have data available to you.

[01:41:00] Speaker 00:
And I want to be very clear on this.

[01:41:02] Speaker 00:
The reason that EPA did not use the SSDS wasn't because Meritor was late.

[01:41:09] Speaker 00:
It wasn't because it didn't have the data.

[01:41:11] Speaker 00:
You heard Mr. Doe say they had the data.

[01:41:13] Speaker 00:
They ignored it because the SSDS, this complicated system underneath the building, was temporary and didn't remove all the waste.

[01:41:21] Speaker 00:
Neither of those things is supported either by the record or by the regulations themselves.

[01:41:27] Speaker 00:
What is a regulatory command is that

[01:41:31] Speaker 00:
EPA take into account response action when it is deciding hazardous waste quantity.

[01:41:37] Speaker 00:
Now what you heard was Mr. Doe saying we weren't clear because one expert only looked at the footprint pertaining to Tier D. It was very clear from EPA's own comment response that EPA understood that we were arguing that you should take the SSDS into account

[01:41:55] Speaker 00:
when calculating waste quantity.

[01:41:57] Speaker 00:
And finally, it is a regulatory command, as you pointed out, Judge Katzis, to use an appropriate benchmark when you're calculating exposures.

[01:42:06] Speaker 02:
The uniformity of- Pretty open-ended.

[01:42:09] Speaker 02:
That's a pretty open-ended command.

[01:42:11] Speaker 00:
It is open-ended, and the point that Mr. Bill made about the comparing to the other pathways, we respond to this in the reply brief, and I'd encourage you to look at it.

[01:42:22] Speaker 00:
The other pathways all have specifically set measurements that pertain no matter what the length of exposure or what the length of time or who it is.

[01:42:31] Speaker 00:
This exposure is different.

[01:42:33] Speaker 00:
This appropriate benchmark changes depending on whether you are a worker or a resident.

[01:42:39] Speaker 00:
And Mr. Doe should have been aware of the calculator because at Joint Appendix 653, which is the page that contains a very detailed recitation of all of the numbers that Mr. Doe said EPA didn't know, among other things, contains a reference to the EPA vapor screening calculator.

[01:42:58] Speaker 00:
Joint Appendix 653 gives exact numbers

[01:43:02] Speaker 00:
for everything that we are talking about.

[01:43:03] Speaker 00:
Could you argue about this calculator in your brief?

[01:43:06] Speaker 00:
Sorry?

[01:43:06] Speaker 00:
Did you argue about this calculator in your briefs?

[01:43:09] Speaker 00:
We did not argue about the calculator in the briefs, but we certainly did argue about these numbers that are drawn from the calculator.

[01:43:16] Speaker 03:
My point about the calculator... You didn't mention the calculator per se, did you?

[01:43:21] Speaker 03:
You didn't mention the calculator per se, did you?

[01:43:23] Speaker 00:
I didn't mention the calculator per se, no.

[01:43:25] Speaker 00:
But my point is the calculator that is the point of reference for the EPA

[01:43:31] Speaker 00:
directs EPA to do what we say it should have done, which was to calculate this based on workers.

[01:43:38] Speaker 00:
This was only a worker-occupied site.

[01:43:41] Speaker 00:
The answer, of course, is different if this is a resident site or a mixed site.

[01:43:44] Speaker 00:
But here, where you have only workers, the regulatory command is that you use the appropriate benchmark.

[01:43:50] Speaker 00:
And the appropriate benchmarks are the ones that we articulated and that EPA well understands.

[01:43:56] Speaker 00:
Thank you.

[01:43:57] Speaker 00:
Thank you.

[01:43:57] Speaker 00:
Okay, so submitted.