[00:00:00] Speaker 03: Good morning. [00:00:15] Speaker 01: May it please the court, my name is Carrie Powell and I represent the petitioner, Sierra Club. [00:00:21] Speaker 01: I'd like to reserve three minutes for rebuttal. [00:00:24] Speaker 01: Under the Clean Air Act, [00:00:26] Speaker 01: A source that is subject to major new source review must install state-of-the-art air pollution controls. [00:00:33] Speaker 01: A source that is classified as minor may not have to install any controls at all. [00:00:39] Speaker 01: Under the challenged action, [00:00:41] Speaker 01: EPA declares that it and states may ignore unambiguous evidence that a source is subject to major new source review and allow the facility to operate without complying, releasing uncontrolled air pollution that is known to cause death. [00:00:58] Speaker 01: Today I'd like to address three issues. [00:01:00] Speaker 01: First, why venue is appropriate in this court. [00:01:04] Speaker 01: Second, why EPA's action violated the Clean Air Act. [00:01:07] Speaker 01: And third, [00:01:09] Speaker 01: why EPA violated the Administrative Procedure Act by promulgating a legislative rule without providing for public notice and comment. [00:01:18] Speaker 01: Title V of the Clean Air Act requires that each major source of air pollution obtain an operating permit that assures its compliance with all applicable requirements under the Act. [00:01:29] Speaker 01: The Act specifically includes, as applicable requirements, the requirements of a state implementation plan, and the Act specifies that a plan must include major new source review requirements. [00:01:42] Speaker 01: Thus, Congress plainly intended for a Title V permit to assure the facility's compliance with major new source review if it applies. [00:01:52] Speaker 01: In violation of the plain language of the Clean Air Act and EPA's Title V regulations, EPA now declares that if a source has been issued a minor source permit, EPA and states may ignore evidence that the source is subject to major new source review and issue the Title V permit without addressing major new source review requirements. [00:02:15] Speaker 03: This depart... Your position would be that any time the [00:02:21] Speaker 03: agency is adjudicating an issue regarding an individual source, it necessarily belongs to be litigated in this court. [00:02:38] Speaker 01: No. [00:02:38] Speaker 01: This order is fundamentally different from any Title V order that EPA has issued throughout the history of the program. [00:02:45] Speaker 03: The EPA's response to that is, well, [00:02:50] Speaker 03: it had to explain why it was concluding as it did. [00:02:56] Speaker 03: And that did take a few pages, 20, I think. [00:03:01] Speaker 03: And therefore, since it hadn't explained it before, the fact that this one is a little longer than the type of order you normally see really shouldn't make any substantive difference in terms of deciding [00:03:18] Speaker 03: where jurisdiction lies in terms of venue? [00:03:23] Speaker 01: Your Honor, two issues in your question that come up. [00:03:26] Speaker 01: The first is venue, and the second is the Administrative Procedure Act. [00:03:30] Speaker 01: I'll start with the venue issue. [00:03:32] Speaker 01: So for venue, the Cleaner Act in Section 307 establishes that nationally significant EPA final actions are to be reviewed in the D.C. [00:03:45] Speaker 01: Circuit. [00:03:47] Speaker 01: There are two paths for obtaining D.C. [00:03:49] Speaker 01: Circuit review for nationally applicable actions. [00:03:52] Speaker 01: The first is if the action is nationally applicable, and the court has held that nationally applicable is to be determined on the face of the order. [00:04:02] Speaker 01: What sets this order apart from any other Title V order is that it expressly applies a new rule to all permitting actions, all permitting [00:04:13] Speaker 01: authorities nationwide and all EPA staff. [00:04:17] Speaker 05: Could you just tell us which part of the language in the statute you're now focusing on? [00:04:24] Speaker 05: Are you looking at nationally applicable regulation or final action taken? [00:04:32] Speaker 05: Is that what you're looking at? [00:04:33] Speaker 05: We contend that... Tell us specifically. [00:04:38] Speaker 05: part of the statute you're relying on. [00:04:39] Speaker 01: So in Section 307B, there are two paths forward. [00:04:43] Speaker 05: Right. [00:04:44] Speaker 01: And we believe that either path could apply here. [00:04:47] Speaker 05: Well, how can the second one – how can the nationwide scope or effect apply since there's been no – there's been no – the Administrator has not [00:05:03] Speaker 05: found or published that such action is based on such a determination. [00:05:07] Speaker 05: There's no such publication here. [00:05:09] Speaker 01: Your Honor, the EPA did publish the order that's an issue in this proceeding. [00:05:14] Speaker 05: Yeah, of course it published the order, but it didn't, it didn't in any, it didn't, it didn't in it. [00:05:19] Speaker 05: It didn't find that such action is based on such a determination. [00:05:25] Speaker 01: Could it? [00:05:25] Speaker 01: Your Honor, we contend that this order is unambiguous, that EPA announced that its new interpretation that it set forth in this order applies across the board to permitting authorities and EPA staff and all permit proceedings nationwide [00:05:43] Speaker 01: not just in responding to petition orders like this one, but in the overall administration of the Title V program by permitting authorities and by EPA. [00:05:53] Speaker 01: This is very different than what an order would normally do in an adjudication because it goes so far beyond [00:06:01] Speaker 01: the case-specific facts that would be at issue in this order. [00:06:04] Speaker 01: And we contend that the language is so clear that this determination has nationwide scope and effect, and that EPA relied on this determination in acting on the Hunter petition, that this amounts to a finding and publication that the order is based on a determination of nationwide scope or effect. [00:06:26] Speaker 01: But also, Your Honor, we contend that this is an unusual case in which what EPA has done is actually nationally applicable on its face. [00:06:37] Speaker 01: The plain language declares how EPA expects for the program to be implemented going forward. [00:06:44] Speaker 01: And this declaration already is having effects. [00:06:48] Speaker 01: It's already in effect nationwide and having legal consequences. [00:06:53] Speaker 01: Not only does the... But it will only have an effect in another adjudication, correct? [00:06:58] Speaker 01: No, Your Honor. [00:06:59] Speaker 05: In other words, it's not like a regulation that applies across the board to regulated parties. [00:07:05] Speaker 05: This would only... Am I wrong about that? [00:07:09] Speaker 05: This would only be... This is a precedent that would apply in future adjudications, correct? [00:07:15] Speaker 01: Your Honor. [00:07:16] Speaker 01: Just as EPA's federal Title V rules are designed to govern implementation of the Title V program, there is no difference between what those rules do and what EPA is attempting to do here. [00:07:30] Speaker 01: It's not just guiding how EPA is to respond to Title V petitions going forward. [00:07:37] Speaker 01: The vast majority of Title V permitting actions across the country receive no public input. [00:07:43] Speaker 01: But that doesn't mean that it's not providing a public benefit. [00:07:46] Speaker 01: The public is relying on the states and EPA to administer the Title V program in a way that assures compliance with applicable requirements under the Act. [00:07:57] Speaker 01: And so under the express language of this order, it's not just saying that in the future, EPA will respond to Title V petitions this way. [00:08:06] Speaker 01: It says, [00:08:07] Speaker 01: across the nation, permitting authorities and EPA staff, when they are confronted with a situation where a source has previously been issued a minor source permit, they are not to consider evidence that major new source review actually applies. [00:08:23] Speaker 01: And so that is why this is different, this is nationally applicable, and it's actually a legislative rule that EPA is attempting to push into an adjudication and thereby avoid both public notice and comment [00:08:36] Speaker 01: and DC Circuit Review. [00:08:38] Speaker 04: Ms. [00:08:38] Speaker 04: Powell, I may have missed it, but are you saying that not only does this have an effect on whether citizen suits can proceed at the Title V stage, but that it also casts a shadow on what EPA thinks its responsibilities are in terms of [00:08:57] Speaker 04: assessing or reassessing the reconstruction permits compliance with the SIP and or with the Act? [00:09:08] Speaker 04: Yes, Your Honor, and so it's... Let me get a follow-up because I want to hear your response to this. [00:09:14] Speaker 04: EPA can itself [00:09:19] Speaker 04: challenge or bring an enforcement action if it thinks that the approval or the pre-construction permit doesn't comply with the Act or with the SIP. [00:09:28] Speaker 04: It's not cut off by a five-year statute of limitations, is it? [00:09:32] Speaker 01: Well, so just to be clear here, you're talking about citizen suits, which is part of the enforcement function, but here we're talking about the role of Title V permitting. [00:09:41] Speaker 01: Right. [00:09:41] Speaker 01: And that's very different. [00:09:42] Speaker 04: And what I'm asking is, I thought you said that if there were no citizen suits, that that would change [00:09:49] Speaker 04: what EPA thought its responsibilities were in the Title V process. [00:09:57] Speaker 04: And I was trying to understand the logic of why you would say that because it seems to me whichever way we or the 10th Circuit rule in this case, EPA still has ongoing responsibilities to assure that a permit was properly issued and it can come back later [00:10:15] Speaker 04: and say it wasn't. [00:10:17] Speaker 01: Is that what it would have been able to do prior? [00:10:20] Speaker 01: And let me clarify. [00:10:22] Speaker 01: So the reason that Title V is different from anything that existed prior to 1990 under the Clean Air Act is EPA has direct authority to review state Title V proposed permits and to object to a permit that does not assure compliance with Clean Air Act requirements. [00:10:41] Speaker 01: And it's not just discretionary. [00:10:43] Speaker 01: They have to object. [00:10:45] Speaker 01: if they determine that it doesn't comply. [00:10:48] Speaker 01: So the vast majority of permit actions work like this. [00:10:51] Speaker 01: The state puts it out for public comment. [00:10:53] Speaker 01: There usually isn't any public comment. [00:10:55] Speaker 01: They propose it to EPA. [00:10:57] Speaker 01: EPA has 45 days to review the permit. [00:11:00] Speaker 01: If they conclude that it is deficient, they have to object. [00:11:04] Speaker 01: If they don't object and there had been public comments, the public has an opportunity to petition EPA. [00:11:10] Speaker 01: And if they demonstrate that the permit is deficient, then again, EPA has to object. [00:11:16] Speaker 01: That's a very powerful oversight mechanism that EPA's order has now changed. [00:11:21] Speaker 01: But the EPA reviews and finds a defect. [00:11:25] Speaker 01: They can't. [00:11:25] Speaker 04: Setting aside says, why not? [00:11:27] Speaker 01: Because EPA has now said that it interprets the act to mean that applicable requirements are defined by the issuance of a minor source permit. [00:11:38] Speaker 01: If the state has issued a minor source permit, regardless of whether it can be easily demonstrated that that state's initial issuance of that determination was an error and that major new source review applies, EPA has said that under the law of Title V, that that does not matter for Title V. [00:11:58] Speaker 04: In your brief, you point out attention. [00:12:01] Speaker 04: I thought you put a lot of emphasis on attention between the agency saying applicable requirements means what you just said for purposes of whether citizen suits can be brought in a Title V renewal proceeding, but not for purposes of the EPA. [00:12:21] Speaker 04: And it says in the order under review, [00:12:26] Speaker 04: that the incorporation of the terms and conditions of pre-construction permits into the Title V operating permit does not indicate that EPA agrees the state reached the proper decision and it could disagree. [00:12:42] Speaker 04: So I took that to mean that EPA itself does not think that [00:12:48] Speaker 04: it's off limits for it to do that further review. [00:12:51] Speaker 01: So, and this is a very important point. [00:12:54] Speaker 01: This order and what EPA is arguing is about what Title V requires and what EPA and states have to do under Title V. [00:13:04] Speaker 01: And so EPA's order and EPA's position in its briefs very clearly sets out that EPA no longer will have the ability to object to a Title V permit based upon the omission of major new source review requirements [00:13:21] Speaker 01: if there is a minor source permit in place. [00:13:24] Speaker 01: This is important because EPA is not saying that enforcement is entirely different. [00:13:29] Speaker 01: The enforcement authorities were here before Title V. Title V is layered on top of all of this. [00:13:35] Speaker 01: It provides an easy administrative way to clean house [00:13:39] Speaker 01: and make sure that sources are complying with the Act. [00:13:42] Speaker 01: I wasn't clear in that. [00:13:44] Speaker 04: I characterized as a citizen to just administrative review under the Title V, within the Title V context, whether EPA may still look at the content of the permanent and say, actually, this was wrong, even though it's saying that citizens may not [00:14:07] Speaker 01: pushed EPA to do that? [00:14:09] Speaker 01: Under this order and under the legal interpretation that they have announced is now the law of the land, EPA cannot object to a Title V permit and use that Title V authority created in 1990. [00:14:21] Speaker 01: If the source has a minor source permit, EPA's interpretation is that the question is answered, the door is closed. [00:14:32] Speaker 01: Now, you referred to tension that we had in our brief, and this is [00:14:36] Speaker 01: real tension that fundamentally makes EPA's action not only unlawful, but also arbitrary. [00:14:42] Speaker 01: Because EPA is saying, well, never mind about that whole Title V program that Congress enacted in 1990 to actually address all this widespread noncompliance, we still have our enforcement authorities. [00:14:56] Speaker 01: And we can assure compliance by bringing enforcement. [00:14:59] Speaker 01: And so the tension that we're seeing is that what EPA has said is that for Title V purposes, [00:15:05] Speaker 01: a requirement that can be enforced against the source in court is nonetheless not an applicable requirement for Title V. And that interpretation not only contravenes the plain meaning of applicable requirement, but it also runs afoul of Congress's unambiguous intent for Title V to simplify enforcement and to promote compliance without even the need for litigation by identifying upfront, through the Title V permit proceeding, [00:15:35] Speaker 01: what the obligations are on the source. [00:15:40] Speaker 05: You know, you've made a very good case here, but what I'm struggling with is I don't see how, maybe you can explain to me how this adjudicative, this order is different from many other orders that have [00:16:04] Speaker 05: general, precedential effect, and even affect the way the agency enforces the law, we have held again and again that orders like that aren't rulemaking just because they affect the way the agency functions and or they have future effect. [00:16:27] Speaker 05: How do we distinguish this case from all of those? [00:16:31] Speaker 01: The most straightforward way that you distinguish this case is that what an agency cannot do, according to Supreme Court case law, DC Circuit case law, is what the agency cannot do is promulgate a rule and especially a [00:16:47] Speaker 01: they take an action in that adjudication that contravenes and effectively revises an existing legislative rule. [00:16:55] Speaker 01: And the legislative rule here is 40 CFR, part 70, and 70.2, which defines applicable requirements. [00:17:05] Speaker 01: This order and this new nationally applicable rule that EPA has established contravenes the plain language of that rule. [00:17:12] Speaker 05: The Supreme Court has held that, and this is really, the Supreme Court has held that, let's assume you're right about that. [00:17:20] Speaker 05: The court has held that, I think the court has held that an informal, a guidance can't revise a published notice and comment regulation. [00:17:34] Speaker 05: And so that's the merits. [00:17:36] Speaker 05: You can argue that in the 10th Circuit. [00:17:38] Speaker 05: Why does that affect the venue determination? [00:17:43] Speaker 05: Aren't you turning the merits of the case into the venue issue here? [00:17:51] Speaker 05: Do you see my point? [00:17:53] Speaker 05: Maybe I didn't make it very clear. [00:17:57] Speaker 05: Under our precedent, this circuit's precedent, just because the order affects the way the agency functions and has clear precedential effect in future cases, this circuit precedent says that's not an order. [00:18:12] Speaker 05: That's not a rule. [00:18:13] Speaker 05: That's not something that has to go through notice and comment rulemaking. [00:18:17] Speaker 05: Your answer is, well, look, this violates a regulation. [00:18:21] Speaker 05: Well, why isn't that the merits? [00:18:23] Speaker 05: See what I mean? [00:18:24] Speaker 01: because it effectively revises the regulation. [00:18:27] Speaker 01: This is not just an order where it happens to be, but whatever it is. [00:18:34] Speaker 05: revise a regulation. [00:18:35] Speaker 01: But this is – this goes well beyond guidance. [00:18:37] Speaker 01: There's not going to be – I mean, an order can't revise a regulation. [00:18:42] Speaker 01: This is not a situation where nothing's going to happen to anyone in the future until there's another adjudication and another chance to challenge it. [00:18:51] Speaker 01: That's not what's going on here. [00:18:53] Speaker 01: What EPA has done [00:18:55] Speaker 01: is explicitly establish a new rule that is in conflict and effectively revises the Title V rule that governs how it's implemented. [00:19:05] Speaker 04: The regulations says applicable requirements. [00:19:12] Speaker 04: Why isn't it fair to characterize the EPA as having sort of shifted one way and then shifted back on how it reads applicable requirements? [00:19:22] Speaker 04: So it had guidance in the [00:19:25] Speaker 04: whatever it was in the 90s and until now saying that one could look at the substance of a permit based in part on that they had to be in compliance both with the implementing plan and Title I permit and now the agency is saying, oh, but the Title I permit is the case specific application of the implementation plan and therefore we only have to ensure that the [00:19:55] Speaker 04: pre-construction permit is that it's complying with that applicable requirement. [00:20:01] Speaker 04: I'm sorry, I'm being very wordy. [00:20:03] Speaker 04: But why does it matter whether they've changed a regulation or just changed a policy? [00:20:10] Speaker 04: Because we're talking here about whether it's nationally applicable for venue purposes. [00:20:15] Speaker 04: whether it's nationally applicable. [00:20:17] Speaker 04: And if you can't show that they've changed a regulation, does that? [00:20:21] Speaker 04: No, this is nationally applicable. [00:20:23] Speaker 04: I mean, it could be an order that's nationally applicable. [00:20:25] Speaker 04: And I guess then the question is, I mean, it's a strange statute, the venue provision. [00:20:31] Speaker 04: It seems to be saying where you do a bunch of things that one might characterize as regulations, the venue is in DC, where it does a bunch of other things where one might characterize as source specific orders. [00:20:45] Speaker 04: Venue is in the regional circuit. [00:20:49] Speaker 04: But it doesn't say venue over regulations, DC, venue over orders out in the field. [00:20:56] Speaker 04: So my question is, if it doesn't say that, how do we tell which orders only are to be reviewed here? [00:21:05] Speaker 04: If we rule for you, [00:21:07] Speaker 04: how do we distinguish the rest of the cases that really do feel like they belong in the regional courts? [00:21:12] Speaker 01: So if you look at all the cases, this is highly unusual. [00:21:16] Speaker 01: In all the situations where you have a case where it was held that actually this isn't nationally applicable or the other way around, that it is nationally applicable, you didn't have a situation where, in what is purportedly a source-specific action, the agency goes out there and [00:21:34] Speaker 01: makes no bones about it. [00:21:36] Speaker 01: They announce that this is the way that the program is implemented, not just through source-specific adjudications, but all aspects of administration of this program going forward, and that's explicitly the words that they use there, for permitting authorities, not just Utah and not anything specific to the Hunter Plan, but permitting authorities and EPA staff. [00:22:04] Speaker 01: across the country are to be following this new rule. [00:22:10] Speaker 01: Everything about this order is different. [00:22:14] Speaker 01: There's no other Title V order that EPA has been able to point to where EPA has announced that they are [00:22:21] Speaker 01: fundamentally changing the way that the program is administered, departing from the interpretation that they have applied throughout the history of the program, ever since they first responded to a Title V petition and applied the regulations and the statute [00:22:38] Speaker 01: They have held that, of course, the issuance of a minor source permit does not determine whether major new source review applies. [00:22:46] Speaker 01: And they still know that. [00:22:48] Speaker 01: But that's not what it did. [00:22:49] Speaker 04: They characterized at the beginning of the program that they did view it the way they're viewing it now. [00:22:53] Speaker 04: And you're saying, no, they never did. [00:22:54] Speaker 01: There is no basis for that. [00:22:57] Speaker 01: They are now declaring that somehow, without ever mentioning explicitly minor source permitting, [00:23:04] Speaker 01: that instead of looking at the plain language of the actual regulation that they promulgated, which says that an applicable requirement includes the requirements of an implementation plan, including major new source review requirements since they have to be in the plan, instead of following that, which is [00:23:22] Speaker 01: unambiguous, they have now come up with this revised history that says, oh, well, in the preamble we have some language that suggests that we always meant for that to be the case. [00:23:34] Speaker 01: That language, it doesn't even mention minor source permits. [00:23:38] Speaker 01: In the plain language of the statute, [00:23:40] Speaker 01: The regulation requires the other outcome, and that's what EPA has done throughout the history of the program. [00:23:47] Speaker 04: If we were to rule for you on venue, and if we were to agree that EPA had to look at the merits of your Title V requirements, what is it that the Hunter Plan is failing to do to be in compliance with major source requirements, and the Pacific Corps says, [00:24:05] Speaker 04: we're emitting less than we were back when this permit was issued. [00:24:09] Speaker 01: So what they have failed to do is go through the major new source review permitting process. [00:24:16] Speaker 01: That is an extensive and all-encompassing process. [00:24:20] Speaker 01: They have to determine the best available control technology for each significant emissions unit. [00:24:26] Speaker 04: I thought they said they're using that. [00:24:29] Speaker 01: They have never gone through new source review for these. [00:24:33] Speaker 01: But they're using best available. [00:24:37] Speaker 01: Sources all the time can say that they're using best available control technology. [00:24:41] Speaker 01: Sometimes they say that nothing is best available control technology because it's just too expensive. [00:24:46] Speaker 01: You don't really know that until you go through the process. [00:24:50] Speaker 01: We contend that they need to be doing more. [00:24:52] Speaker 01: And typically, best available control technology reduces pollution by 90% to 95%. [00:24:58] Speaker 01: So that's excellent if their emissions have been going down over time, one would hope for that. [00:25:03] Speaker 01: However, installing the additional controls that you would have to do through BAC virtually always brings about significant emission reductions. [00:25:15] Speaker 03: Do you want to save some time for rebuttal? [00:25:18] Speaker 01: Yes, I would. [00:25:19] Speaker 01: And I see that my time is up. [00:25:24] Speaker 03: We will give you some time. [00:25:26] Speaker 01: Thank you. [00:25:26] Speaker 01: I appreciate that. [00:25:43] Speaker 06: May it please the court? [00:25:44] Speaker 06: My name is David Kaplan, attorney of the Department of Justice representing the EPA. [00:25:48] Speaker 06: At council table is John Coleman with the EPA and also Blaine Lawson with Pacific Court. [00:25:54] Speaker 06: Your Honor, this case belongs only in the 10th Circuit because then you rest in that court, in that court alone. [00:26:02] Speaker 06: On the question of national applicability, it's clear that this is an adjudication. [00:26:08] Speaker 06: It's an adjudication that applies to one plant and one plant alone. [00:26:11] Speaker 03: What about the first 20 pages? [00:26:14] Speaker 06: Your Honor, there are five claims, five claims, separate claims, distinct claims that are addressed in the order. [00:26:21] Speaker 03: And that's... I'm talking about the first 20. [00:26:24] Speaker 06: Oh, the first 20. [00:26:24] Speaker 06: And their EPA wanted to take the time to explain up front, up front what it was doing. [00:26:32] Speaker 03: And it was important, Your Honor, because... So the EPA says, in the future, if a state has issued a minor source permit [00:26:45] Speaker 03: EPA will never review the adequacy of that permit at or during the Title V proceeding period. [00:27:05] Speaker 03: In this case, we agree with the plant's five objections. [00:27:16] Speaker 03: In that hypothetical, does your argument stand up? [00:27:19] Speaker 06: Your Honor, the agency here applied an interpretation to a particular scenario, and I disagree with the characterization. [00:27:27] Speaker 03: Scenario? [00:27:28] Speaker 03: In my hypothetical, I ask you to answer that. [00:27:31] Speaker 03: My hypothetical is EPA is talking for the first 20 pages about how it interprets [00:27:38] Speaker 03: the Act specifically, this applicable requirement of provision. [00:27:43] Speaker 06: Yes, it interprets the Act in this context, and this is why it did that. [00:27:49] Speaker 06: The agency's initial interpretation in 1992 in the preamble did talk about how the agency would not reconsider and reevaluate the substantive outcome of pre-construction permit determinations. [00:28:02] Speaker 06: Yes. [00:28:02] Speaker 06: It was then in Shintek [00:28:04] Speaker 06: an adjudication applying to a particular plant, the agency first enunciated its different view that it might go back and look back to evaluate in certain circumstances. [00:28:16] Speaker 06: So the agency here did a very good job of explaining why in the factual situation here, and only in this scenario, [00:28:24] Speaker 06: Would it be appropriate to go back or to not go back and revisit the substance of the state's title? [00:28:30] Speaker 04: I'm not sure I follow that. [00:28:31] Speaker 04: It's scenario specific. [00:28:33] Speaker 04: Has there been any Title V permitting since this one where they have looked under the hood at the Title I [00:28:42] Speaker 06: Your Honor, you don't have to even look outside the administrative record to answer your question, because in this case, there were multiple claims. [00:28:52] Speaker 06: Claim C, for example, was an allegation that there were certain modifications that the Hunter plan undertook that were never permitted by the state. [00:29:03] Speaker 06: And EPA did not apply its interpretation that applied to Claim A. It didn't apply to Claim C. Now that's not highlighted in this case because they elected not to challenge that. [00:29:13] Speaker 06: But the point is, this is a particular scenario where the state on Claim A did not reevaluate and so EPA was confronted with the question of, well, did the state have to reevaluate the substance? [00:29:27] Speaker 06: of its prior Title I permit 20 years earlier. [00:29:31] Speaker 06: Did the state have to? [00:29:32] Speaker 06: And EPA had to answer that question. [00:29:34] Speaker 06: It had to interpret. [00:29:35] Speaker 06: And it did so in this context. [00:29:37] Speaker 06: No, it did not have to. [00:29:38] Speaker 04: But in any case in which there was a pre-construction permit, has the agency looked at whether that permit meets applicable requirements of the relevant implementation plan? [00:29:54] Speaker 04: And I take it that the answer to that is no. [00:29:57] Speaker 04: Well, I think the way your question is... I'm just trying to understand your claim that there's some case specificity about this announcement of an interpretation. [00:30:06] Speaker 06: Let me answer first your question because the agency does look in all subsequent adjudications, our applicable requirements included, but the agency believes that what it's supposed to do [00:30:19] Speaker 06: is look to see if the outcome of the pre-construction permit program, which is a permit applied to the circumstance, has been included. [00:30:28] Speaker 06: Now, there have been subsequent adjudications. [00:30:30] Speaker 04: If there's no permit, as you say for Claim C, there's no permit, so that hasn't been included, so there's a concern. [00:30:36] Speaker 04: But that's different from the situation here, where there is a permit. [00:30:40] Speaker 04: And I'm literally just trying to understand what you're saying about whether this is kind of an [00:30:45] Speaker 04: context specific or whether it's a general approach. [00:30:49] Speaker 04: And you may still prevail on venue if it's a general approach, but I'm just trying to understand what you're saying about that. [00:30:55] Speaker 06: The agency's interpretation here is cabin to the circumstance. [00:30:59] Speaker 06: Now in other adjudications, the agency may have, and in fact has, looked to the Hunter order and not as binding precedent. [00:31:09] Speaker 06: It can't be binding precedent. [00:31:10] Speaker 00: It's not binding, right. [00:31:11] Speaker 06: Of course not. [00:31:11] Speaker 06: It's not. [00:31:12] Speaker 06: And just as non-binding explanation of the agency's interpretation in that case, and applied it as a belief fit in the other circumstance, in those other circumstances. [00:31:21] Speaker 04: And I believe it fits everyone the same way it fits here. [00:31:24] Speaker 06: I don't know that that's the case, Your Honor. [00:31:26] Speaker 06: There are differences, and the differences that come up [00:31:29] Speaker 06: can involve, is there changed information that's being presented to the agency from what was available when the pre-construction permit was issued? [00:31:38] Speaker 06: Has the state itself voluntarily reconsidered? [00:31:42] Speaker 06: These are all different types of case-specific scenarios that have to be adjudicated case by case. [00:31:48] Speaker 04: I have a question about this very peculiar venue language. [00:31:55] Speaker 04: I have the same question for you that I have for Ms. [00:31:57] Speaker 04: Powell, which is, I mean, one way when you read this language is to think, oh, if it's a regulation, then it's nationally applicable. [00:32:06] Speaker 04: And if it's an adjudication, almost by definition, it's regional. [00:32:11] Speaker 04: It's not nationally applicable. [00:32:13] Speaker 04: But it strikes me that Congress didn't say that. [00:32:17] Speaker 04: And so I'm trying to understand why they went to all the trouble to have this serpentine provision if they didn't think that maybe some [00:32:25] Speaker 04: adjudications might be nationally applicable? [00:32:28] Speaker 06: I would look at it the other way around, the other way. [00:32:31] Speaker 06: Not every regulation necessarily is nationally applicable. [00:32:35] Speaker 06: And so, yes, adjudications are almost always going to be case-specific. [00:32:42] Speaker 06: Because I can't, I would say always, but Your Honor, I can't imagine all the different scenarios in which adjudications take place. [00:32:50] Speaker 06: Could there be a nationwide adjudication? [00:32:53] Speaker 06: I don't trust my imagination to exhaust the possibilities, so that's the hedge. [00:32:57] Speaker 04: But I think it's fair to say that adjudications are always regional. [00:33:02] Speaker 06: I don't want to prejudge a circumstance I can't imagine. [00:33:06] Speaker 06: But here, the case law in this court is clear. [00:33:09] Speaker 06: Nationally applicable is supposed to look at the face of the action. [00:33:14] Speaker 03: But that's where it's tough for you. [00:33:16] Speaker 03: That's right. [00:33:18] Speaker 03: And in your briefing, you pointed to page 20, but it doesn't say what you say page 20 says. [00:33:23] Speaker 03: And that's why I gave you my hypothetical. [00:33:25] Speaker 03: And you won't answer it. [00:33:27] Speaker 03: And I understand why you won't answer it. [00:33:28] Speaker 03: But the reason I posed it is to try to understand what your position is. [00:33:34] Speaker 03: If EPA had said what you're saying [00:33:39] Speaker 03: Presumably that would be somewhere in this document. [00:33:44] Speaker 03: Now obviously it mentions the facility and the context, but it goes beyond that. [00:33:51] Speaker 03: That's what we're focusing on. [00:33:53] Speaker 03: It's beyond that. [00:33:54] Speaker 03: It's not that you, and let me be clear about this, it's not that you may not prevail, but it's just what has this particular order accomplished and how does that fit in with this venue statute. [00:34:07] Speaker 06: I think the way your question is critical, but I don't think that this is a circumstance where the agency went beyond anything more than what it had to address to resolve the fact before it. [00:34:20] Speaker 03: If you look at the 20 pages- Let me say, I could give you that. [00:34:23] Speaker 06: Right. [00:34:23] Speaker 03: All right, but that doesn't necessarily mean you prevail on the venue point. [00:34:30] Speaker 06: Well, Your Honor, if this court were to rule that an interpretation the agency gives of its reg, and keep in mind this is not an amendment of a legislative rule, this is an amendment of a prior interpretation enunciated in adjudication. [00:34:43] Speaker 03: But you agree 70.2. [00:34:46] Speaker 03: I agree that that's a legislative rule. [00:34:48] Speaker 03: That's right. [00:34:49] Speaker 03: So if you're interpreting a phrase in that rule, you don't think that's an amendment? [00:34:56] Speaker 06: No, whenever an agency, I mean Perez, the Supreme Court said when a court interprets a reg, I mean a statute, that doesn't mean that we amended the statute. [00:35:07] Speaker 03: I totally agree. [00:35:08] Speaker 03: But this is the agency saying how we interpret a statutory phrase. [00:35:15] Speaker 03: And surely it's telling us what its interpretation is. [00:35:20] Speaker 03: And it's changed. [00:35:21] Speaker 03: Yes, and you acknowledge that there's ambiguity and you have changed your interpretation. [00:35:25] Speaker 06: That's right. [00:35:25] Speaker 06: The agency's initial interpretation of 70.2 [00:35:29] Speaker 06: was that, is that we don't go back and reconsider the merits of these pre-construction permit decisions. [00:35:37] Speaker 06: And it's broad language, and it's not limited just to where there is a major permit. [00:35:42] Speaker 06: It's broad language, despite what the opposing council said. [00:35:46] Speaker 06: Now, when you have, when the agency in 1997, it had the Shintak order. [00:35:52] Speaker 06: There was an adjudication that said, well, we might go back. [00:35:55] Speaker 06: and interpreted its regs differently. [00:35:58] Speaker 06: It didn't modify those regs, it interpreted them differently. [00:36:01] Speaker 06: And now the agency is interpreting them again, and it is going back to its prior original interpretation, and none of that modifies the regulation. [00:36:11] Speaker 04: So Mr. Copeland, are you making, I mean there is a formal argument available to you, but I didn't take you to be making it, which is you look not at what the order says, you look not [00:36:22] Speaker 04: on its face about reorienting the agency's policy as a whole, you just look at its actual footprint and that order is an order about the hunter plant. [00:36:34] Speaker 04: period, 10th Circuit. [00:36:37] Speaker 04: That's not really what I take your argument to be. [00:36:39] Speaker 06: No, I haven't gotten out all my points. [00:36:42] Speaker 06: And when it comes to national applicability, the case law is very clear. [00:36:47] Speaker 04: Well, it's not really down in these weeds. [00:36:48] Speaker 06: It's the direct legal effects. [00:36:50] Speaker 06: No, there are cases like this. [00:36:52] Speaker 06: It's the direct legal effects. [00:36:53] Speaker 06: It's the applicable scope of the order, of the order alone. [00:36:57] Speaker 06: And there's no denying that the applicable scope of the order applies to this and this plant alone. [00:37:03] Speaker 06: I think we've all, we all understand that adjudications and interpretations of adjudications can have some non-binding administrative precedent for the public, for agencies. [00:37:15] Speaker 05: It's not binding, but this court has never held that- What I mean is, I don't understand why you say, this order says that this is the agency's approach going forward. [00:37:25] Speaker 05: Right. [00:37:25] Speaker 05: But- How can you say it's not binding in the future? [00:37:28] Speaker 06: It's not binding because it's not established as a rule. [00:37:32] Speaker 05: But the agency can't amend a regulation in an order. [00:37:36] Speaker 05: It can't be that that's the rule. [00:37:39] Speaker 05: Is your point that the only adjudicative order that could be heard here as opposed to the regional circuit is one that amends a regulation? [00:37:51] Speaker 06: Is that your point? [00:37:54] Speaker 05: Because you kept saying in response to Judge Rogers, you said three times, this does not amend the regulation. [00:38:03] Speaker 05: Why is that the point? [00:38:04] Speaker 06: Well, that's important because if we have a nationwide regulation that is a legislative rule, and the agency amends the legislative rule, then presumably that would be nationally applicable too. [00:38:14] Speaker 05: Yeah, but an agency can't amend. [00:38:16] Speaker 05: a legislative rule through an adjudication. [00:38:19] Speaker 06: What do you mean, yes? [00:38:20] Speaker 06: I agree with your point, but the words approach going forward in that order, which everybody's focusing on, that comes up in the context of the agency doing, I think, a pretty good job. [00:38:34] Speaker 05: I thought your argument was a lot easier than your making it. [00:38:37] Speaker 05: I thought your point was, [00:38:39] Speaker 05: Yes. [00:38:41] Speaker 05: This is an adjudication that has precedential effect. [00:38:50] Speaker 05: It says, this is what we're doing going forward. [00:38:53] Speaker 05: We have changed our interpretation of law. [00:38:55] Speaker 05: I thought your point was, yes, that's what happened, but that doesn't convert it into a rule. [00:39:02] Speaker 05: It's just a [00:39:04] Speaker 05: adjudicative order with precedential effect. [00:39:08] Speaker 06: Period. [00:39:09] Speaker 06: Tenth Circuit. [00:39:10] Speaker 05: Isn't that your argument? [00:39:12] Speaker 06: If I haven't made that clear, then shame on me. [00:39:15] Speaker 06: Because that is what we intend to do. [00:39:17] Speaker 05: Suddenly this case was getting a lot harder. [00:39:19] Speaker 06: I didn't know. [00:39:20] Speaker 06: No, that is our argument, Your Honor. [00:39:22] Speaker 05: Well then what difference does it make that it didn't amend a legislative rule? [00:39:27] Speaker 06: Pardon me? [00:39:28] Speaker 05: What difference does it make [00:39:31] Speaker 05: that the order didn't amend the regulation. [00:39:33] Speaker 06: I think that gets into the procedural arguments, Your Honor, and the merits arguments. [00:39:38] Speaker 06: But when it comes to the venue, you're correct. [00:39:40] Speaker 06: It's not applicable nationally applicable. [00:39:43] Speaker 06: And what's more... What about Ms. [00:39:44] Speaker 05: Powell's argument that, yeah, sure, this one's different because this order is not only the rule going forward, but it's actually affecting the operations of the EPA now. [00:39:57] Speaker 05: This is what agency employees are now implementing [00:40:01] Speaker 05: this new interpretation. [00:40:02] Speaker 06: Well, Your Honor, if she's saying that this may have some precedential effect in the future that's non-binding, then that's true. [00:40:14] Speaker 05: Why do you keep saying non-binding? [00:40:16] Speaker 06: Because it's an adjudicative order. [00:40:18] Speaker 04: Right, so it is non-binding. [00:40:19] Speaker 04: I guess the question then is, I don't know, I don't mean to interrupt my colleague. [00:40:23] Speaker 04: Go ahead. [00:40:24] Speaker 05: Could the agency tomorrow issue an order that ignores this? [00:40:30] Speaker 05: In an adjudication, could it, without acknowledging this decision, go back to its previous rule? [00:40:38] Speaker 06: Yes, it could in a subsequent adjudication, but the burden is on the agency. [00:40:43] Speaker 05: Without acknowledging this one? [00:40:44] Speaker 06: Well, no. [00:40:45] Speaker 06: Of course it could. [00:40:46] Speaker 06: Of course. [00:40:46] Speaker 06: This is binding until the agency changes. [00:40:49] Speaker 06: It's binding to this plan. [00:40:51] Speaker 06: The administrator signed this order. [00:40:53] Speaker 05: I don't understand why you just don't say, yes, it's binding in the future on the agency, but it doesn't convert it into a nationally applicable regulation. [00:41:02] Speaker 06: You know, I think you're going to agree with my answer. [00:41:04] Speaker 05: Well, why don't you try it first, and then I'll tell you whether I agree. [00:41:07] Speaker 06: OK. [00:41:08] Speaker 06: And the answer is that in a subsequent adjudication, the agency could change its interpretation. [00:41:14] Speaker 06: But the key is it would have to explain the reasons for it. [00:41:19] Speaker 06: And that explanation would have to pass the standard of judicial review. [00:41:22] Speaker 05: Exactly. [00:41:23] Speaker 05: And that's why it is a binding precedent, unless legally changed. [00:41:28] Speaker 05: That's the way our precedents work. [00:41:31] Speaker 05: And agencies also, you can't, they're binding until you change them consistent with the rules of the Administrative Procedure Act. [00:41:40] Speaker 05: So what you've got here is an adjudication that has a precedential effect. [00:41:46] Speaker 05: And I thought when I got in here this morning that your answer was, yeah, that's exactly right, 10th Circuit. [00:41:52] Speaker 05: It's not nationally applicable because [00:41:56] Speaker 05: because the administrator didn't publish a statement that it was and also because [00:42:02] Speaker 05: It's a precedent that applies in future adjudications. [00:42:07] Speaker 05: It's not a rule. [00:42:08] Speaker 05: I thought that was your argument. [00:42:09] Speaker 06: And that's exactly my argument, Your Honor. [00:42:11] Speaker 06: And if I've been confusing, I'm sorry. [00:42:15] Speaker 06: But I will point out that the court's case under Dalton, to convert a local action to DC venue, the finding that the agency makes has to be expressed. [00:42:29] Speaker 06: The courts will not infer it. [00:42:30] Speaker 03: That's one path. [00:42:32] Speaker 06: That's the second tab. [00:42:33] Speaker 03: The Council has been focusing principally on the first tab. [00:42:38] Speaker 03: She says the argument, and I thought that's what you were trying to respond to, not that you hadn't made the argument that Judge Taito has been reviewing with you, but rather trying to respond to petitioners' argument that that may all be well and good in many, many, many, many instances. [00:43:00] Speaker 03: But here, [00:43:02] Speaker 03: by issuing an order that has a binding interpretation on the agency until it changes its position. [00:43:17] Speaker 03: But it's binding for now. [00:43:21] Speaker 03: And that disrupts the whole purpose or a major purpose of [00:43:31] Speaker 03: Congress's point in having this Title V process, that sure, it puts all the obligations in one spot, so it makes it easier for the agency to see whether a law is being complied with. [00:43:49] Speaker 03: But, as I read the brief, the concern is that [00:43:56] Speaker 03: absent an objection by the administrator to state permit in an enforcement action. [00:44:08] Speaker 03: Well, first the argument was EPA will never bring an enforcement action. [00:44:14] Speaker 03: And this order doesn't indicate that in an enforcement action you would not be bound by this position. [00:44:23] Speaker 03: Your brief says that, but the order doesn't say it. [00:44:26] Speaker 03: So we have this interpretation now of what is an applicable requirement under Title V. That that's changed, and that's changed the whole procedure here. [00:44:42] Speaker 03: That's what I hear counsel saying. [00:44:45] Speaker 06: Your Honor, it has changed what was enunciated in the prior adjudications, but it hasn't fundamentally changed how Title V operates, and it certainly hasn't changed the text of the statute or the reg. [00:44:58] Speaker 04: And because I believe... So what about the internal effect on the agency? [00:45:08] Speaker 04: said this is not just about whether citizens can urge EPA to look under the hood of the Title I pre-construction permit. [00:45:23] Speaker 04: It's about what EPA does in its own shop on Title V review. [00:45:28] Speaker 04: Is that accurate? [00:45:30] Speaker 06: Well, the agency would, if confronted with the same facts, [00:45:36] Speaker 06: For example, in this case, there was a 45-day review period by EPA alone, followed by a 60-day review period of a petition to object. [00:45:45] Speaker 06: Those are very short timeframes intended for EPA to do a very streamlined function in the context of Title V review. [00:45:53] Speaker 06: And in the 45 days, EPA did not [00:45:57] Speaker 06: look back to see if the substance of the states... I'm asking a more general question. [00:46:02] Speaker 04: Does this change the way EPA does its job at the Title V level nationally? [00:46:09] Speaker 06: It depends on the set of circumstances the agency is presented by. [00:46:13] Speaker 04: In circumstances like this. [00:46:14] Speaker 06: If they were identical circumstances? [00:46:16] Speaker 04: In circumstances like this in the sense that there's a question about whether a Title I permit is in compliance with the implementation plan and the Clean Air Act more generally. [00:46:27] Speaker 04: Maybe there was a mistake made. [00:46:29] Speaker 04: My understanding is that now EPA will say, you know, we look at whether the Title I permit is included in the Title V and done. [00:46:39] Speaker 06: And that's a change, no? [00:46:41] Speaker 06: Yes, in the same circumstances, but let me highlight what the circumstances here are because they weren't adequately represented. [00:46:48] Speaker 06: The circumstance here is the state in the pre-construction permit program [00:46:53] Speaker 06: In the context of deciding whether or not it's going to be a major or minor, looked at this very issue. [00:46:59] Speaker 06: It adjudicated, and this is at page 12, I believe, of my brief, where we set out the text of what the state looked at. [00:47:05] Speaker 03: No, we have what the state did back in 97. [00:47:07] Speaker 03: Yes. [00:47:08] Speaker 03: We understand that. [00:47:10] Speaker 03: That's not the issue that I understand Judge Pillard is addressing. [00:47:13] Speaker 06: Judge Pillard is looking for other scenarios in which the agency may apply the same interpretation. [00:47:21] Speaker 06: You're looking for other scenarios in which, okay, so in this case, all we can say is that here, where the state did look and adjudicated the threshold question, [00:47:33] Speaker 06: Is this facility's modification based upon the state agency's understanding of the base load will exceed the threshold to trigger major or minor? [00:47:45] Speaker 06: They are, that determination is intrinsically linked. [00:47:49] Speaker 06: It is one and the same. [00:47:52] Speaker 06: It's not separate standalone requirements. [00:47:54] Speaker 06: So the state made the decision, a permit decision, it is minor because it's not going to exceed the threshold limit and therefore a minor permit's appropriate. [00:48:05] Speaker 06: That adjudication are the facts here. [00:48:07] Speaker 03: I can't... But EPA says we're not going to look at any of that. [00:48:11] Speaker 03: The state went through its process, the state issued the permit, end of discussion. [00:48:16] Speaker 03: Previously, under its previous interpretation, it would have looked at it. [00:48:22] Speaker 03: So as I understood the thrust of Judge Pillard's question and petitioner's argument is the internal operation of EPA in these Title V permitting procedures has changed. [00:48:40] Speaker 03: Because your order says, EPA's order says, going forward, this is the way we are going to function. [00:48:50] Speaker 06: Well, I'm going to answer it two ways. [00:48:51] Speaker 06: First, the words going forward in that order are positioned after explaining the prior interpretation and then saying going forward in this case, in that adjudication, where it then applied its new interpretation to the factual circumstances. [00:49:06] Speaker 06: That's not what that means. [00:49:07] Speaker 05: You think going forward meant only in this case? [00:49:10] Speaker 06: I think that the agency also intended this would serve some administrative precedent, Your Honor. [00:49:17] Speaker 06: So I'm agreeing with you that there's also the administrative precedent component of an adjudication, but that is nothing novel. [00:49:25] Speaker 06: That happens all the time in adjudications, and it doesn't convert an adjudication that whose legal scope is only for a particular entity into a nationally applicable rule. [00:49:37] Speaker 03: All right. [00:49:37] Speaker 03: Is there any other point you'd like to make before? [00:49:40] Speaker 03: Yes. [00:49:41] Speaker 05: I just have one quick question. [00:49:43] Speaker 05: We're about to hear from the intervener. [00:49:45] Speaker 05: And the intervener argues no Article III standing. [00:49:48] Speaker 05: And you didn't argue that in your brief. [00:49:50] Speaker 05: Have you changed your mind about that since you've read their brief? [00:49:54] Speaker 06: Your Honor, the intervener has raised new information about time hasn't stood still since 1997. [00:50:01] Speaker 06: The intervener has raised new information [00:50:05] Speaker 06: The agency, for all of us. [00:50:07] Speaker 05: Wait a minute, I just asked you a question about standing. [00:50:10] Speaker 06: So the intervener has raised new information that casts doubt on redressability. [00:50:17] Speaker 06: And I think it raises a serious issue about redressability in view of that new information. [00:50:22] Speaker 06: We haven't changed our position. [00:50:24] Speaker 05: So do you think they have articles? [00:50:25] Speaker 05: Does Sierra Club have standing or not? [00:50:27] Speaker 06: We don't argue that they've not. [00:50:29] Speaker 05: That's not the question. [00:50:30] Speaker 06: We haven't challenged their standing, Your Honor. [00:50:32] Speaker 05: OK. [00:50:32] Speaker 05: You just haven't dealt with it. [00:50:33] Speaker 05: That's fair. [00:50:34] Speaker 06: Yeah. [00:50:34] Speaker 06: We haven't challenged their standing. [00:50:35] Speaker 05: OK. [00:50:37] Speaker 06: I'd like to just sum up with one point on the merits, if I might. [00:50:44] Speaker 06: And that is, Your Honor, that [00:50:47] Speaker 06: 70.2 has two provisions, two that are relevant here, and the second provision speaks directly to the circumstance of pre-construction permits. [00:51:00] Speaker 06: It speaks directly to it, and it talks about terms and conditions and permits issued [00:51:08] Speaker 06: Those are words in that text. [00:51:10] Speaker 06: And that's the reg text that EPA is interpreting. [00:51:13] Speaker 06: And that language means that it's not a freestanding requirement in the SIP. [00:51:21] Speaker 06: It is the application of the permit program and the outcome, the results of that permit program that is an applicable requirement. [00:51:30] Speaker 06: And this is critical because [00:51:33] Speaker 06: Pre-construction permit programs are required in SIPs, but that doesn't make them self-implementing. [00:51:40] Speaker 06: They need to be applied by the state decision-maker, the state regulatory authority. [00:51:46] Speaker 06: And it's the outcome of that permit process that identifies what becomes an applicable requirement for that source. [00:51:53] Speaker 06: And so this second prong of 70.2 speaks specifically to this context. [00:52:00] Speaker 04: Can you tell me where in your regulatory addendum you're looking? [00:52:10] Speaker 04: The version I have says the 70.2 is at page 104 of the addendum, but the one I have ends on page 99. [00:52:18] Speaker 06: Well, my addendum, Your Honor, it's at 134. [00:52:20] Speaker 06: All right. [00:52:22] Speaker 03: Well, we'll get it. [00:52:25] Speaker 06: And this is important because now the first prong speaks to other requirements required by the SIP, but that's the general language. [00:52:40] Speaker 06: And that language does include the requirement, for example, that there be a permit program [00:52:47] Speaker 06: pre-construction permit program. [00:52:48] Speaker 06: But when you talk about the context here, the second prong is specific. [00:52:53] Speaker 06: And the agency's interpretation is fully consistent with the text of the reg. [00:52:58] Speaker 04: You're looking at, I'm sorry, you're looking at 70.2, which is the definition section? [00:53:03] Speaker 04: Correct. [00:53:04] Speaker 04: And which definition are you looking at? [00:53:05] Speaker 06: I'm sorry, applicable requirements. [00:53:08] Speaker 06: And so it's on change. [00:53:10] Speaker 04: 70.22, no? [00:53:12] Speaker 06: Correct. [00:53:15] Speaker 06: under the definition of applicable requirements. [00:53:18] Speaker 06: It's addendum 60, I guess. [00:53:21] Speaker 04: I have four different addendums, and yours doesn't appear to have this in it. [00:53:26] Speaker 03: OK. [00:53:27] Speaker 03: We'll clear up this record issue at another time. [00:53:31] Speaker 03: Maybe you can be certain that what you file as your addendum includes the entirety [00:53:40] Speaker 03: of the provision that we're discussing, namely, 70.2. [00:53:43] Speaker 03: OK. [00:53:44] Speaker 06: Oh, my then might really does include it, but I understand. [00:53:47] Speaker 03: Well, apparently. [00:53:47] Speaker 03: Well, we'll find it. [00:53:49] Speaker 06: OK. [00:53:50] Speaker 06: Thank you, Your Honor. [00:53:51] Speaker 06: If you have no more questions. [00:53:52] Speaker 03: Thank you so much. [00:53:54] Speaker 03: All right. [00:53:55] Speaker 03: Council for Intervener. [00:54:02] Speaker 00: Thank you, Your Honor. [00:54:03] Speaker 00: May it please the Court, I'm Blaine Rossin, attorney for Intervener Pacific Court. [00:54:07] Speaker 00: Before I begin with the two quick points I'd like to make, I would like to respond to two earlier questions by the Court. [00:54:13] Speaker 00: First, I believe it was Judge Pillard that asked, had there been other instances where EPA had not applied this [00:54:20] Speaker 00: precedent will call it, the resolved Claim A. It's actually Claim B. But it's within the same order. [00:54:29] Speaker 00: Claim B actually related to a 2008 approval order or permit by the State of Utah. [00:54:34] Speaker 00: And in that instance, EPA did not rely on its analysis in Claim A. It simply went through the merits and looked and answered that particular question. [00:54:44] Speaker 00: Council referred to claim C, which I think probably was meaning claim B. So I'd refer to that. [00:54:49] Speaker 00: The second point, and I think you also made the same point that the statute, we all wish it would be a lot more clear and say rulemaking belongs to the DC Circuit and the field circuits get to handle orders. [00:55:03] Speaker 00: It doesn't say that, but what it does say is that you look at the final action. [00:55:07] Speaker 00: And that's what I'd ask this court to do. [00:55:09] Speaker 00: What is the final action? [00:55:10] Speaker 00: The final action here is the denial of a petition to object [00:55:14] Speaker 00: to a Title V permit for a power plant in Castle Valley, Utah. [00:55:19] Speaker 00: That's its extent and its power. [00:55:21] Speaker 00: What Sierra Club is focusing on is one of the grounds by which EPA made that final action when there were five different claims. [00:55:30] Speaker 00: So you're looking at one claim out of five and the grounds for disposing of that claim. [00:55:35] Speaker 00: So certainly our argument would be the final action would relate to the permit on the ground. [00:55:39] Speaker 00: Now, as far as two additional points I'd like to make in my short time first. [00:55:44] Speaker 04: Let me just ask you, just in understanding what Congress likely intended, you're an environmental expert. [00:55:51] Speaker 04: If a state agency does make a mistake in Title I approval, [00:56:02] Speaker 04: And if EPA is disinclined to second guess that, is there any opportunity at any point down the road for anyone to raise the noncompliance of the source with the Clean Air Act? [00:56:16] Speaker 04: And if so, where? [00:56:18] Speaker 00: Thank you. [00:56:19] Speaker 00: Looking at the specific facts of this case, there was a SIP approved opportunity through the [00:56:24] Speaker 00: title, excuse me, through the NSR permit process in 1997. [00:56:28] Speaker 04: Right. [00:56:29] Speaker 04: And at that time, though, just to be fair, and I know Sarah doesn't raise this point, but at that time, it was their understanding that the agency would allow, would be looking under the hood in a Title V [00:56:46] Speaker 04: operations permit. [00:56:47] Speaker 04: So at that time, there wasn't that much pressure on them to make sure to get into each and every pre-construction permit proceeding because they thought, well, when these are reconsidered at every five years, if there's a problem, we'll go in then. [00:57:02] Speaker 04: But by the time your client got around [00:57:06] Speaker 04: to renewing, which, I mean, there's a lot of German talk about delay, but as I understand it, your client didn't apply for the Title V. We timely applied for the renewal. [00:57:17] Speaker 00: There was a dispute between EPA and the state about what the terms would be of renewed Title V permits, which went on for a long time. [00:57:24] Speaker 04: So even every five years, it was 19 years? [00:57:26] Speaker 00: In our case, it was not 19 years. [00:57:28] Speaker 00: We applied timely within five years. [00:57:30] Speaker 00: It was issued in 2016, which would have been roughly that. [00:57:34] Speaker 00: No, but there were opportunities along the way to answer your question. [00:57:38] Speaker 04: But if they thought, well, you know, no worries, we can sort of take stock and come in at Title V, is there any... [00:57:46] Speaker 04: On the facts that we have here, is there any other avenue for any citizen correction if in fact a plant is operating out of compliance with the Basic Clean Air Act? [00:57:59] Speaker 00: Using these facts, there was certainly an opportunity in 1998 to do what they did then, but that was through the Title V process. [00:58:06] Speaker 00: They could have raised an objection. [00:58:07] Speaker 00: In 2008, [00:58:09] Speaker 04: Why do you say they could have raised this objection in the title? [00:58:14] Speaker 00: Yes. [00:58:15] Speaker 00: They're arguing about permit changes in 1997 that occurred before the issuance of the 1998 Title V permit. [00:58:21] Speaker 04: Right. [00:58:22] Speaker 00: And that's one of the arguments in our brief. [00:58:23] Speaker 00: They should have filed within that 60 days. [00:58:25] Speaker 04: They could have filed then because EKS policy was different then. [00:58:27] Speaker 00: Yes. [00:58:27] Speaker 00: They could have raised it in both forms, the state and the federal form. [00:58:30] Speaker 00: They didn't. [00:58:31] Speaker 00: In 2008, [00:58:33] Speaker 00: The state of Utah amended that earlier decision. [00:58:36] Speaker 00: Now, their argument is that the NSR flaws were so fatal in 1997 that they have permeated permitting since then. [00:58:45] Speaker 00: So their argument essentially is the 2008 permit was also wrong for the reasons the 1997 permit was wrong. [00:58:51] Speaker 00: So they had every ability to raise it in the state process then, and again in 2013, and again in 2014. [00:58:58] Speaker 00: What we have before this court today. [00:59:00] Speaker 04: And you're saying, again, that they would have had to rely on the rule that's now changed to do that in 2008. [00:59:07] Speaker 00: Those were all state processes. [00:59:08] Speaker 00: They could have gone through the SIP approved state process all four times, and they didn't. [00:59:13] Speaker 00: So there were numerous times, not to mention the opportunity to file a citizen suit alleging that the plant had failed to comply with the NSR requirements. [00:59:22] Speaker 03: So let me just, quick question. [00:59:23] Speaker 03: When the state filed [00:59:27] Speaker 03: in 2008 for its amendment. [00:59:32] Speaker 03: It gave notice where? [00:59:36] Speaker 00: Excuse me, of the permit? [00:59:39] Speaker 03: Yes, of the amendment that it was proposing. [00:59:42] Speaker 00: So just through the state process, so it goes out through the public comment process? [00:59:46] Speaker 03: Right, so if I'm in Georgia, [00:59:49] Speaker 03: How do I know about this proceeding that's going on in Utah? [00:59:54] Speaker 00: If you're in Georgia and you're concerned about a power plant in Utah, the law requires the public notice to be given in the local newspaper. [01:00:02] Speaker 00: So you simply monitor that. [01:00:04] Speaker 03: That's right. [01:00:05] Speaker 03: So you're monitoring all the local newspapers across the country. [01:00:08] Speaker 03: Yes. [01:00:09] Speaker 00: I see. [01:00:10] Speaker 00: OK. [01:00:11] Speaker 00: And I know my time's up. [01:00:12] Speaker 00: May I make one final point? [01:00:13] Speaker 03: Yes, no. [01:00:14] Speaker 03: Please continue with this, because we've interrupted. [01:00:16] Speaker 00: Which I think is very important. [01:00:19] Speaker 00: In the Sierra Club's brief, they seem to allude to the fact that the process of challenging a state-issued NSR permit in a Title V petition to object process is both simple and a clarification. [01:00:35] Speaker 00: and that it's somehow better than just an alternative to going through the state process and doing it. [01:00:40] Speaker 00: I'd like to point out from a permittees' perspective the danger of that position, the absolute danger. [01:00:46] Speaker 00: First of all, as you'll see in the Citizens Against Ruining the Environment case cited in the briefs, there they pointed out that there's only 60 days for the EPA to review the petition to object. [01:00:56] Speaker 00: There's 45 days initially on their own and then the 60. [01:00:59] Speaker 00: That's a very short time to gather, to get the petition, to analyze it. [01:01:04] Speaker 00: to gather information for which there's no provision, and then to make a subsequent decision. [01:01:09] Speaker 00: These permit actions take months, if not years. [01:01:12] Speaker 00: So that's a very difficult situation, especially where, in this case, you have five different claims spanning 20 years. [01:01:19] Speaker 00: I can't imagine getting that done in 60 days. [01:01:21] Speaker 00: But more importantly to us is the petition to object process under 40 CFR 70.8D does not provide for participation by the permittee or the state issuer. [01:01:33] Speaker 00: So you have a system [01:01:34] Speaker 00: where a state-issued permit is going to be reviewed without the permittee or the state. [01:01:42] Speaker 00: You can't in the administrative process. [01:01:44] Speaker 00: In fact, Pacific Corps submitted a letter. [01:01:46] Speaker 00: There was no process for it, but as a lawyer, I thought I need to advocate zealously for the best interests of my client, so I set one with our grounds. [01:01:53] Speaker 00: If you look at the order, you'll see that our letter didn't make it. [01:01:57] Speaker 00: There's no grounds really to put it in there. [01:01:59] Speaker 03: Well, we're having enough trouble. [01:02:00] Speaker 00: Yes, we are. [01:02:02] Speaker 02: The federal system, much less the state system. [01:02:04] Speaker 00: A couple more points. [01:02:05] Speaker 00: The permit is never final under the petition to object the way they're interpreting it because of this very problem. [01:02:10] Speaker 00: According to them, every five years or every permit renewal, you get to bring up an issue that happened 20 years ago. [01:02:15] Speaker 00: That's no way to run a railroad. [01:02:17] Speaker 00: I mean, if you're an entity like Pacific Corps is in this case, [01:02:21] Speaker 00: We've had enormous renovations and new equipment and emission reductions, as was mentioned. [01:02:26] Speaker 00: But how do you unbreak the age 20 years later? [01:02:28] Speaker 04: How do you know what to invest if you don't know what the markets are? [01:02:30] Speaker 00: How do you get financing if this becomes the rule? [01:02:32] Speaker 00: So that's the difficulty. [01:02:33] Speaker 04: But that's why you get a permit that has a time. [01:02:37] Speaker 00: And that's why you go through the state process, which has time frames. [01:02:40] Speaker 04: Yes, I understand that. [01:02:41] Speaker 04: You had another point. [01:02:43] Speaker 00: I did. [01:02:44] Speaker 00: And that is, you're basically allowing the circumvention of the state review process, which this is a perfect illustration of. [01:02:50] Speaker 00: You're basically making almost a mockery of that SIP approved process to appeal these NSR permits. [01:02:55] Speaker 00: If you say, well, you can do that, or we'll give you a different route by which... That's fair, and with all due respect. [01:03:02] Speaker 00: I understand. [01:03:02] Speaker 00: But in this case, that's what happened. [01:03:04] Speaker 03: No, but I'm saying the assumption is the state is operating [01:03:07] Speaker 03: Yes, it is. [01:03:09] Speaker 03: All right. [01:03:09] Speaker 03: That's not the assumption of the title, that it isn't. [01:03:12] Speaker 00: Fair enough, Your Honor. [01:03:14] Speaker 00: I would just like to close with this statement, though. [01:03:16] Speaker 00: We're talking about a pre-construction permit 20 years post-construction. [01:03:21] Speaker 00: There's something wrong with that system, and it can't be the way that Congress intended for that process to work. [01:03:28] Speaker 00: If there are no further questions, I'll go ahead and sit down. [01:03:31] Speaker 00: Thank you very much. [01:03:40] Speaker 03: Your Honor, I'd like to quickly start with the issue that intervener concluded with. [01:03:53] Speaker 03: comments to respond if you think are necessary. [01:03:57] Speaker 01: Yes. [01:03:57] Speaker 01: So as far as this uncertainty that supposedly is created by Title V, Congress gave a specific mechanism for a source to obtain certainty through Title V. And that's actually something they didn't have before. [01:04:10] Speaker 01: So under Title V, a source can ask that the state determine that the source is not subject to a particular requirement. [01:04:17] Speaker 01: Here, major new source review [01:04:19] Speaker 01: and then they get a permit shield and then they're shielded from enforcement. [01:04:23] Speaker 01: Under the approach that EPA is advocating here and they've set out in their rule, a source has no idea whether they might be subject to an enforcement action sometime going forward. [01:04:34] Speaker 01: So the second is that this action is definitely binding. [01:04:40] Speaker 01: There have been at least two cases in this court where the court has found that where [01:04:45] Speaker 01: an interpretation is binding on EPA staff as to how they have to move forward with permitting, then that is a binding action. [01:04:53] Speaker 01: And that is exactly what is going on here. [01:04:56] Speaker 01: If you look at Appalachian Power and National Environmental Development Association's Clean Air Project, both cited in our brief, these are situations where, yes, of course, if EPA... But does that mean binding in terms of the agency's obligation in future cases to either apply it or change it, right? [01:05:15] Speaker 05: Isn't that what that means? [01:05:17] Speaker 01: Yes, but what we're saying here is that EPA has sent out the directive to its regions. [01:05:24] Speaker 01: Its regional offices normally have the opportunity to object to a Title V permit if it doesn't assure compliance. [01:05:30] Speaker 01: They can't anymore. [01:05:32] Speaker 01: And there is one question. [01:05:33] Speaker 01: EPA contends, well, this is all very SAP specific and we can look under the hood. [01:05:39] Speaker 01: No. [01:05:40] Speaker 01: Their directive is very clear. [01:05:43] Speaker 01: If the source has a minor source permit, that is the end of the question. [01:05:48] Speaker 01: There's no other questions. [01:05:49] Speaker 01: So EPA says, oh, well, if circumstances change, perhaps we'd say something different. [01:05:54] Speaker 01: No. [01:05:55] Speaker 01: Because if the source has a minor source permit, then in Title V, the state doesn't have to consider public input, and EPA doesn't have to look at it. [01:06:05] Speaker 01: So in this case, there was no consideration of the 100 pages of detailed demonstration that Sierra Club put in saying that this source was subject to major new source review. [01:06:16] Speaker 01: So no. [01:06:17] Speaker 01: Sierra Club could have easily shown lots of changed circumstances, but that's not the way that this rule works. [01:06:23] Speaker 01: This is binding. [01:06:25] Speaker 01: This will impact the entire Title V program going forward. [01:06:28] Speaker 01: It operates exactly as a rule. [01:06:31] Speaker 01: In the terms of the terms and conditions language of the definition of applicable requirements, here, EPA has something wrong on the law. [01:06:39] Speaker 01: They're trying to claim that part one of the definition says that the requirements of a state implementation plan [01:06:46] Speaker 01: are applicable requirements, which it does. [01:06:49] Speaker 01: And then they're saying, well, part two is just a more specific pullout of those plan requirements. [01:06:55] Speaker 01: But that's not actually the case. [01:06:57] Speaker 01: EPA needed to specify that permit conditions were applicable requirements because those conditions are almost never incorporated into a state implementation plan. [01:07:07] Speaker 01: The EPA wanted to say they were federally enforceable. [01:07:10] Speaker 01: That's why that's there. [01:07:11] Speaker 01: It has nothing to do with saying that a permit somehow assures compliance with major new source review if it just includes this. [01:07:23] Speaker 04: The part two, they needed the more specific cloud. [01:07:26] Speaker 01: Correct. [01:07:26] Speaker 01: Because? [01:07:27] Speaker 01: So EPA is now reading that definition. [01:07:30] Speaker 01: You'll see it runs down and it says, one, requirements of the implementation plan. [01:07:34] Speaker 01: Two, terms and conditions of permits issued pursuant to Title I, including parts C and D. That's the major new source review requirements. [01:07:44] Speaker 01: And EPA is saying, well, that is telling us that that's sort of when you're talking about permits and permitting requirements, that's the applicable requirement. [01:07:53] Speaker 01: I know it doesn't say that. [01:07:55] Speaker 01: What EPA was doing is saying, well, these are important requirements. [01:07:58] Speaker 01: Obviously, the requirements that go into new source review permits [01:08:01] Speaker 01: need to be in Title V permits. [01:08:03] Speaker 01: They're some of the most important things the source must do. [01:08:06] Speaker 01: But in order for something to be approved into a state implementation plan, the state has to submit it formally to EPA. [01:08:14] Speaker 01: There has to be public notice and comment that it's going into the state implementation plan, and then it's recorded in the CFR as being in the state implementation plan. [01:08:22] Speaker 01: So in our brief, we point to, well, in Utah, what permits are in the plan? [01:08:26] Speaker 01: Not very many, just a handful. [01:08:29] Speaker 01: And so the point is, this has independent, the second part of that definition is totally independent. [01:08:34] Speaker 01: It is not some kind of subset of the plan. [01:08:37] Speaker 04: I thought they were saying that the second part is the only part that matters because it is where the implementation plans [01:08:44] Speaker 04: requirements are brought to bear on a particular plan so that you don't also still need to think about the implementation plan at the Title V process and whether it has requirements that were or weren't properly reflected in the permit because that's one and done and commented on and final and invested on that basis and they don't want it to be a moving target. [01:09:05] Speaker 01: There's nothing that says in that definition that that's one and done. [01:09:09] Speaker 01: One, requirements of the state implementation plan have to be in the permit. [01:09:14] Speaker 01: permit terms and conditions. [01:09:15] Speaker 01: And so we're saying yes. [01:09:16] Speaker 04: Are there some examples of things that would be in a state implementation plan that wouldn't be sort of in a plan specific way reflected in the permit? [01:09:25] Speaker 01: Sure. [01:09:25] Speaker 01: Are there a bunch of things that are non-perment related? [01:09:28] Speaker 01: I'm going to say one that is permit related because that's exactly what we're dealing with here. [01:09:33] Speaker 01: The state implementation says a source may not construct [01:09:38] Speaker 01: If it triggers the emission thresholds for major new source review, the source may not construct without first obtaining a permit that establishes best available control technology for the source. [01:09:51] Speaker 01: If a source has constructed or modified and they didn't get the major new source review requirement, then that SIP requirement still needs to be applied. [01:10:02] Speaker 01: And that's what EPA does when it goes to court and enforces major new source review, like of course. [01:10:08] Speaker 01: They don't go to court and say, oh, well, there's already a minor source permit, so we have nothing to enforce. [01:10:15] Speaker 04: They're saying, yes. [01:10:17] Speaker 04: Maybe this isn't, it's too far afield, but the implementation plan, assume that the permit did, the pre-construction permit did everything it was supposed to do. [01:10:28] Speaker 04: In that ideal situation, is the state implementation plan also still directly operative on the plan, or is it only operative through [01:10:37] Speaker 04: the A1 perfect well-done permit. [01:10:40] Speaker 01: The state... Directly... I'm sorry, are you talking about a new source review permit or are you talking about Title V permit? [01:10:47] Speaker 01: A new source review permit. [01:10:48] Speaker 01: So in a new source review permit, if they've got a major new source review permit, then it doesn't really matter. [01:10:57] Speaker 01: Directly applying to them in other ways. [01:10:59] Speaker 01: It does, except for they've complied. [01:11:01] Speaker 01: Through the permit. [01:11:03] Speaker 01: Well, they complied by applying for, I mean, the SIP requirement reflects what's in the Clean Air Act. [01:11:12] Speaker 01: And so it will say assortment. [01:11:13] Speaker 04: And the permanent term is supposed to reflect what's in the SIP. [01:11:16] Speaker 01: Yes. [01:11:17] Speaker 01: OK. [01:11:19] Speaker 01: Anything further? [01:11:20] Speaker 01: I just wanted to quickly explain that Title V, it's meant to clean house every five years. [01:11:30] Speaker 01: There's no absurdity here. [01:11:32] Speaker 01: The petitioner, in order to get an EPA objection to a permit, has the burden of demonstrating that there is a deficiency. [01:11:40] Speaker 01: An EPA applies that burden rigorously. [01:11:43] Speaker 04: And the deficiency you see, given that they say they've gotten cleaner and cleaner and cleaner over the years, what would they have to change? [01:11:50] Speaker 01: if you want on the merits. [01:11:51] Speaker 01: Even if they're getting cleaner, they're still not clean enough. [01:11:55] Speaker 01: Nobody is saying that, right? [01:11:58] Speaker 01: Got it. [01:11:59] Speaker 03: All right. [01:12:00] Speaker 03: Thank you. [01:12:01] Speaker 03: We will take the case under advisement.