[00:00:01] Speaker 02: Case number 21-1140, Chiron USA Inc. [00:00:05] Speaker 02: Petitioner versus Environmental Protection Agency. [00:00:08] Speaker 02: Ms. [00:00:08] Speaker 02: Stetson for the petitioner, Mr. Dupree for the respondent. [00:00:13] Speaker 01: Good morning, Council. [00:00:14] Speaker 01: Ms. [00:00:14] Speaker 01: Stetson, please proceed when you're ready. [00:00:15] Speaker 02: Good morning, Your Honors, and may it please the court. [00:00:17] Speaker 02: My name is Kate Stetson. [00:00:18] Speaker 02: I represent the petitioner Chevron in this case. [00:00:21] Speaker 02: The merits question in this case is whether an oil platform on the Outer Continental Shelf, or OCS, that no longer emits and can no longer emit air pollutants, nevertheless remains an OCS source as the Clean Air Act defines it. [00:00:39] Speaker 02: Now, EPA has answered that question twice and both times has answered it differently. [00:00:44] Speaker 02: In January of last year, EPA told Chevron that two offshore platforms that were being decommissioned would not qualify as OCS sources at the point where those platforms and the equipment that used to be on them can no longer emit any air pollutants. [00:01:03] Speaker 02: That meant that once that critical predicate was satisfied, the platforms and the equipment can no longer emit air pollutants, Chevron could at that point [00:01:12] Speaker 02: surrender its Title V stationary source, airport, and continue decommissioning, subject of course to all of the other regulatory schemes that attach to decommission. [00:01:23] Speaker 02: But then in April of last year, EPA changed its mind. [00:01:28] Speaker 02: Its new interpretation is that even if a platform can no longer emit pollutants, [00:01:34] Speaker 02: Other equipment or facilities brought to the site or new activities conducted at that site could nevertheless constitute an OCS sort. [00:01:45] Speaker 02: So EPA instructed Chevron to provide what it called detailed information to the Ventura County Air District describing its decommissioning processes so that the Ventura District could decide in the first instance under the Clean Air Act when an OCS source stops being an OCS sort. [00:02:02] Speaker 02: That was not a directive that Chevron could refuse. [00:02:06] Speaker 02: It can either continue decommissioning past the point of the platform's emitting air pollutants and suffer potentially financial or other enforcement consequences, or it can continue a 12 to 18-month process of discussing with Ventura County whether it even needs a permit at all. [00:02:26] Speaker 05: Ms. [00:02:26] Speaker 05: Stetson, during the pre-abandonment and abandonment phases, [00:02:31] Speaker 05: What were the emissions from productive activities that continue to qualify the platforms as OCS sources up to the end of those phases? [00:02:42] Speaker 02: The submission in the joint appendix from the BOEM is helpful on this. [00:02:47] Speaker 02: If you look at around pages [00:02:49] Speaker 02: 61 to 62. [00:02:50] Speaker 02: The BOEM discusses in detail the various processes that the decommissioning phases go through. [00:03:03] Speaker 02: The point where we are in the pre-abandonment or abandonment phase, my understanding from that and from that submission is that the generators that are located on the platforms are still in use. [00:03:16] Speaker 02: That there is emissions emitting equipment still in use. [00:03:21] Speaker 02: And as for that equipment, I'd make one side note, which is you see in Joint Appendix 113, the footnote two, I think, that you can find the permits that we're talking about. [00:03:32] Speaker 02: the air permits online, both for Grace and Gail. [00:03:35] Speaker 02: And one of the useful things there, I think, is if you look at table two of that online permit, you can see every bit of the equipment that we're talking about that's on the platform. [00:03:46] Speaker 02: So Judge Pillard, at the point where you're just in that initial abandonment and pre-abandonment phase, I think Chevron's position was there are still activities that are taking place on the platform. [00:03:58] Speaker 02: and equipment that is being used on the plot, it's going to result in emissions. [00:04:03] Speaker 05: So how do we know, for example, at JA86, there is a table showing decommissioning equipment requirements, and it shows generators, which I think is what you just mentioned during the pre-abandonment phase, [00:04:16] Speaker 05: The generators are also used during topside removal and jacket removal. [00:04:20] Speaker 05: How do we know that those are generators that aren't on the platform and that they're somehow statutorily distinct from the generators you're talking about? [00:04:29] Speaker 02: One is factual and then one is more kind of consequential. [00:04:32] Speaker 02: But the factual answer is if you look at the top of Joint Appendix 77, the barges, the Derek barges that EPA talks about a great deal and it's great. [00:04:41] Speaker 02: themselves have generators on them. [00:04:44] Speaker 02: So if you look at the top of 77, you'll see that the bargers have generators. [00:04:48] Speaker 02: Our understanding is that that's the generators that they're talking about at those later phases in the process. [00:04:54] Speaker 02: The consequence point I'd want to make is this was a very clean line that the Chevron letter asked about and that the EPA January response to. [00:05:04] Speaker 02: Drew, if there still is equipment that is emitting on the platform and Chevron is not operating under a Title V permit, Chevron is in deep trouble. [00:05:16] Speaker 02: So at the point where Chevron asked, can we at this point surrender our Title V permit, it is, according to Chevron's own representations, the point at which there is no longer equipment on the platform that's emitting. [00:05:30] Speaker 02: And EPA actually doesn't really push up against this at all. [00:05:33] Speaker 02: You'll notice Joint Appendix 128, and then in its brief at 28 and also at five, I think. [00:05:40] Speaker 02: EPA accepts or acknowledges that what we're talking about is the circumstances where the platform and the equipment on the platform have been dismantled and decommissioned such that there's no more emissions from the platform. [00:05:55] Speaker 02: EPA's argument here is, you can see this at 128, there could be things that are brought to the site. [00:06:01] Speaker 02: And by the way, site is not the site, but brought to the site or equipment or facilities at the site. [00:06:08] Speaker 02: that nevertheless could qualify as OCS sources. [00:06:12] Speaker 02: I want to be clear on two things. [00:06:14] Speaker 02: The first is an OCS source has to be something. [00:06:19] Speaker 02: And what we know is it can't be a boat. [00:06:21] Speaker 02: It can't be a vessel. [00:06:23] Speaker 02: No matter how large the vessel is, a Derrick Barge is still a boat. [00:06:26] Speaker 02: An EPA concedes that that's not an OCS source unless, of course, it's attached to the bottom of the ocean, at which point it becomes its own OCS source, regulated by Title V, subject to that permit holders [00:06:43] Speaker 05: When you say that permit holder, so that would not be Chevron. [00:06:46] Speaker 05: If a Derek Barge is brought to the site and, well, I guess under the easier case for you, attached to the seabed. [00:06:56] Speaker 05: And if it is considered, just for purposes of my question, to be equipment rather than a vessel. [00:07:04] Speaker 05: I gather there are tugs that have to maneuver them. [00:07:07] Speaker 05: So if one were to consider them equipment then that would be there might be a permitting requirement but it's your position that that would not be Chevron's responsibility. [00:07:16] Speaker 02: The owner or operator of the barge would have to get a permit and in any event it wouldn't be this permit pertaining to the grace and gale platforms and this is these are the two permits that are at issue here the permits that pertain [00:07:30] Speaker 02: We say in our briefing that to the extent that there are other Title V permits that are necessary, if a barge attaches itself to the seabed, that is a separate permit and a separate discussion. [00:07:43] Speaker 01: Is that just generally the case with decommissioning, that when equipment is brought in to hasten the decommissioning process, that usually that's somebody else's permit, just as a practical matter? [00:07:54] Speaker 02: I can't represent that that's in the record, Judge Renovasson, but my observation here is that these are not the permits where we're talking about. [00:08:01] Speaker 01: Right, so I get the point that they're not the grace and the other permit for Chevron, but just in terms of whether Chevron versus somebody else as a practical matter, do you? [00:08:09] Speaker 02: Whether it's Chevron or somebody else, as a practical matter, my understanding is that the owner or operator is the one that needs to hold the permit. [00:08:15] Speaker 02: And these Derek barges, like the EPA says, BOEM says, they are few and far between and often come from far away. [00:08:21] Speaker 02: So those owners and operators, to my understanding, are not likely to be Chevron itself. [00:08:26] Speaker 03: Ms. [00:08:27] Speaker 03: Stetson, assume you're right that the April letter is a change. [00:08:33] Speaker 03: I'm not sure that's right, but let's just assume it is. [00:08:36] Speaker 03: What's your response to EPA's argument that this isn't final because the permitting authority is Ventura County? [00:08:46] Speaker 03: It was the permitting authority before the January letter. [00:08:50] Speaker 03: It's still the permitting authority. [00:08:51] Speaker 03: Your client's permits continue through the end of this year and into next year. [00:08:56] Speaker 03: And whatever we've said, you've got to go to Ventura County to change or abandon your permit. [00:09:04] Speaker 03: And if you're unhappy with Ventura County's handling of that, you can come back to EPA for final resolution and then appeal that. [00:09:16] Speaker 03: Is that wrong? [00:09:17] Speaker 02: Yes. [00:09:18] Speaker 02: Tell me why. [00:09:18] Speaker 02: I think for two reasons. [00:09:20] Speaker 02: First is that the legal question here is not whether Chevron is entitled to a permit, which would be Ventura County's [00:09:30] Speaker 02: The question here is whether Chevron needs to get a permit at all for this activity. [00:09:34] Speaker 02: And that's an interpretive question that falls to EPA under the Clean Air. [00:09:40] Speaker 02: With response to your observation that there's still more work to be done, according to EPA in Ventura County, I point you to the Hawkes case from the Supreme Court. [00:09:49] Speaker 02: The Hawkes case says, and I'll quote now, the remedy for denial of action that might be sought from one agency does not ordinarily provide an adequate remedy [00:09:58] Speaker 02: for action already taken by another agency. [00:10:01] Speaker 02: So our point here is, similar to Hawke's, similar to Hacket, in fact, that at the point where EPA said in January, Chevron, you no longer need to hold this particular permit after your platform stopped emitting. [00:10:17] Speaker 02: That is essentially a safe harbor. [00:10:19] Speaker 02: That's the safe harbor that was created by the letter and then taken away in April. [00:10:26] Speaker 05: Ms. [00:10:26] Speaker 05: Stetson, the approved jurisdictional determination in hawks is very much more formal than these letters. [00:10:34] Speaker 05: I mean, they're looking at an actual piece of land and making it as a determination based on facts. [00:10:38] Speaker 05: One of the difficulties here with your finality argument is, [00:10:43] Speaker 05: It would seem that both letters were made based on a series of assumptions that Chevron communicated. [00:10:51] Speaker 05: And the EPA's position is, yeah, on those facts, if that turns out to be the case, here's our answer. [00:10:59] Speaker 05: But how could Ventura County or EPA or this court make a Marist determination without knowing whether that's in fact the case? [00:11:12] Speaker 02: I think that, as you said, Judge Pillard, both sides here and below are assuming that those are the factual predicates. [00:11:20] Speaker 02: Just like you would come into an agency with any other permit applicability determination and say, on these facts, do I need to go and ask that other entity for a permit? [00:11:30] Speaker 02: So the facts that were represented by Chevron to EPA, which EPA accepted, it still accepts here, is that platforms no longer emit. [00:11:39] Speaker 02: And as I said earlier, if Chevron gets those facts wrong, Chevron is subject to enforcement actions and fine. [00:11:46] Speaker 02: So everyone understands that that predicate set of facts is that kind of cleanly drawn set of facts that we're talking about. [00:11:54] Speaker 02: And even when EPA talks about this, EPA doesn't talk about the possibility that a platform that can't still emit could, as a platform, still emit. [00:12:03] Speaker 02: It makes the point that I made earlier, which is EPA's current position is [00:12:07] Speaker 02: There might be things that are brought to the site or activities that are taking place later in the decommissioning process that create emissions. [00:12:16] Speaker 02: But when you dig down into that brief, what you'll see is that what EPA talks about is the Derrick, and the things that go on in the Derrick, which of course, as the agency has consistently conceded, both in January and April, [00:12:30] Speaker 02: Those are vessel. [00:12:31] Speaker 02: Those are not so maybe maybe. [00:12:35] Speaker 03: I just want to follow up on my question. [00:12:37] Speaker 03: Maybe I'm missing something here, but I still don't understand. [00:12:40] Speaker 03: You're answering my question. [00:12:42] Speaker 03: EPA has delegated its permitting authority to Ventura County, right? [00:12:46] Speaker 02: It has delegated the authority to interpret, but to enforce and implement, but not to interpret. [00:12:53] Speaker 02: I think that's the that's the line. [00:12:55] Speaker 03: And where do you find that? [00:12:57] Speaker 02: We can find that in the delegation document itself. [00:13:00] Speaker 03: What precisely are you focusing on? [00:13:02] Speaker 02: I think it's at addendum three of the EPA's submission in its brief. [00:13:09] Speaker 02: The delegation document is attached as an addendum. [00:13:13] Speaker 02: The point here that with respect to finality, we can talk about the delegation issue separately, but with respect to finality, I think the question reduces down to those Bennett versus Spear questions, which is, was this a final decision? [00:13:27] Speaker 02: Was this a decision, I should say, the consummation of an agency action? [00:13:31] Speaker 02: And does it have direct practical consequences for Chevron? [00:13:36] Speaker 02: The answer from EPA's perspective is clearly yes on both of those things. [00:13:41] Speaker 02: EPA hasn't, as in some other non-final cases, [00:13:45] Speaker 02: And it's that's explained that it's simply a recommendation explain that there's no consequence that follows. [00:13:52] Speaker 05: California communities where we said that the under Bennett to it wasn't final since very similar. [00:14:01] Speaker 02: California communities I think is not similar because that was a case where there was a memo that was issued that itself offered a definitive interpretation of the Clean Air Act. [00:14:11] Speaker 02: So step one of the Bennett analysis was satisfied. [00:14:15] Speaker 02: What it didn't do, because it was just a memo to regional administrators saying here's how I interpret the Clean Air Act, [00:14:22] Speaker 02: What it didn't do is have any practical consequences on any regulated party up to the point where that party went to the regional administrator, sought a permit, and was denied or was conditioned on that basis. [00:14:34] Speaker 02: So here what we're talking about is a definitive interpretation of the Clean Air Act that says even if a platform that is a stationary source no longer emits as a stationary source, [00:14:45] Speaker 02: it can still be treated as one of the Clean Air Act. [00:14:48] Speaker 02: And if you disagree, you should go and make sure that you don't need a permit from Ventura County. [00:14:52] Speaker 02: That imposes significant obligations on Chevron. [00:14:57] Speaker 05: So is it Chevron's position that it would not have needed to go to Ventura County at all [00:15:04] Speaker 05: A, either to surrender or terminate the permits it already had, or B, to get a final permitting determination, even under the January letter. [00:15:14] Speaker 05: So under the January letter, Chevron wouldn't have had to go to Ventura and say, look, we're off the hook. [00:15:19] Speaker 05: So my red light is on. [00:15:20] Speaker 02: Keep going. [00:15:21] Speaker 05: We're fine with that, if the chief is OK with it. [00:15:23] Speaker 02: Of course. [00:15:24] Speaker 02: Chevron's position is that under the January letter, once it reached that point in the decommissioning process, and I keep emphasizing that, [00:15:32] Speaker 02: where the platforms no longer emit then it could surrender its current title five stationary source one of them I think expires at the end of this year one early next year it expires it surrenders that permit and it need not go through any additional permitting process that of course is not Ventura County's position in its in its estimation nor is it EPA's current position [00:15:57] Speaker 02: But as of January, Chevron's and EPA's position was that once Chevron reached that point, it could surrender its Title V permit. [00:16:05] Speaker 02: At that point, I should add, and I mentioned this earlier, there are all sorts of other regulations that specifically cover decommission, that are administered by the Bureau of Safety and Environmental Enforcement, BSEE, you'll see that mentioned in the briefing, or BOEM. [00:16:21] Speaker 02: including NEPA, including decommissioning regulations administered by BSEE that are found in a different part of the CFR. [00:16:30] Speaker 01: Can I ask a question about venue? [00:16:32] Speaker 01: I mean, you've been gone for more than 15 minutes in Washington, D.C., and I guess there's a question of whether you should be doing this in San Francisco or Pasadena. [00:16:40] Speaker 01: On that, I have a threshold question, which is just assume for purposes of argument, you'll resist it, but assume for purposes of argument that I do think that venue belongs on the Ninth Circuit rather than here. [00:16:53] Speaker 01: My first question is, can we reach that conclusion without addressing the one that you've been addressing for the last few minutes, finality? [00:17:03] Speaker 02: The answer, I will resist it, but the answer to your question is yes, you can reach that conclusion without addressing finality. [00:17:09] Speaker 02: That's happened before in clean air cases where this court has transferred. [00:17:13] Speaker 02: I think there was a case where it transferred to the 10th Circuit, and it said as between these two doctrines, [00:17:19] Speaker 02: We don't assume any jurisdiction conferring power simply by saying we're going to transfer. [00:17:24] Speaker 01: And we don't even have to transfer here, as I understand it. [00:17:26] Speaker 01: I mean, we wouldn't even have to invoke because you've got a you've got a protective protective. [00:17:30] Speaker 01: So we could just dismiss on the basis of venue. [00:17:32] Speaker 01: And then so we wouldn't even have to assert the court. [00:17:34] Speaker 02: You don't even have to assert that authority. [00:17:35] Speaker 02: That's true. [00:17:36] Speaker 01: Yeah. [00:17:36] Speaker 01: OK. [00:17:37] Speaker 02: You need not go through those steps. [00:17:39] Speaker 02: But as to venue, if I could. [00:17:41] Speaker 01: Right. [00:17:41] Speaker 01: So on the resistance question, whether you resist the premise. [00:17:44] Speaker 01: So. [00:17:45] Speaker 01: Am I understanding the venue statute correctly to say it's an either-or proposition? [00:17:52] Speaker 01: It's either that it comes here or it goes to the Ninth Circuit. [00:17:55] Speaker 01: We're not talking about whether there's the authority to go here in addition to going to the Ninth Circuit. [00:18:01] Speaker 02: That's correct. [00:18:01] Speaker 02: It is an unusual either-or proposition. [00:18:04] Speaker 01: And so that informs it in my mind because then the question isn't just [00:18:10] Speaker 01: is there a national aspect of the decision that would make it appropriate to bring it here? [00:18:16] Speaker 01: In addition, notwithstanding that there's local aspects to the decision that would make it appropriate to bring it the Ninth Circuit. [00:18:22] Speaker 01: It's just a it's a it's a Boolean variable. [00:18:25] Speaker 01: It either belongs here or it belongs in the Ninth Circuit. [00:18:28] Speaker 01: And on that, there's [00:18:31] Speaker 01: Even even if you're right, that there's parts of the decision all documents. [00:18:36] Speaker 01: Well, I don't want to call decisional documents. [00:18:38] Speaker 01: There's parts of the documents that have implications for issues that could rise elsewhere because of the interpretation of the statues that embedded in the letters. [00:18:49] Speaker 01: There's also aspects of them that are tethered to. [00:18:53] Speaker 01: the particular circumstances in question with respect to these two platforms. [00:18:58] Speaker 01: And so if it's an either or proposition, the fact that there's a lot of local stuff going on in the letters and they have a lot of language to the effect of you'd have to look at particular circumstances that are on the ground here, that tends to shift in my mind, the balance and it pushes it towards the West Coast. [00:19:16] Speaker 02: I think the answer to your question has to do with the particular circumstances that we're talking about. [00:19:21] Speaker 02: Now, I will concede, as we have to, that there's language in there that says, on these facts that we've been talking about that Chevron has presented to us, an OCS source is no longer an OCS source at the point where that source stops emitting. [00:19:35] Speaker 02: But the difference, I think, between that kind of packaging on these facts that this regulated entity has brought us [00:19:42] Speaker 02: And the packaging that you see in the cases that are quintessentially regional. [00:19:47] Speaker 02: So the renewable identification number case where there was an action specific, producers of renewables case, actions specific to three Wyoming facilities. [00:19:58] Speaker 02: Well, what about Sierra Club? [00:20:00] Speaker 02: I'm sorry? [00:20:01] Speaker 02: What about Sierra Club? [00:20:03] Speaker 02: Sierra Club, I think, was an action specific to a Utah plan. [00:20:09] Speaker 03: Yes, but in resolving it, the EPA used what the court called a novel approach to the statute. [00:20:22] Speaker 02: Yes, I think I didn't hear the last one. [00:20:25] Speaker 03: Sorry, a novel, excuse me, a novel rule. [00:20:30] Speaker 03: And we still said that belonged in the regional circuit. [00:20:35] Speaker 03: It looks a lot like this case. [00:20:37] Speaker 03: I read your brief pretty carefully on your effort to distinguish it, and I just didn't get the distinction. [00:20:43] Speaker 03: It looked to me just like this case. [00:20:45] Speaker 02: I think on a superficial read, it does look a lot like this case. [00:20:49] Speaker 02: I think the difference has to do both with both of my colleagues. [00:20:53] Speaker 03: I promise not to repeat these things superficially. [00:20:55] Speaker 02: On an initial read, it looks a lot like this case. [00:20:58] Speaker 02: The difference, I think, has to do both with the party. [00:21:01] Speaker 03: I read it twice. [00:21:05] Speaker 02: The difference has to do both with the posture of this case. [00:21:09] Speaker 02: This is a letter that created a safe harbor. [00:21:11] Speaker 02: If these facts are met, a platform isn't an OCS source. [00:21:16] Speaker 02: And the issue in Sierra Club, Judge Tatel, which was this permit that I just granted, I'm going to deny the objection to, because on these facts, I'm expressly confining what he said, my interpretation to the specific circumstances of this plant. [00:21:33] Speaker 02: And I'm not considering at this time, he said, whether other circumstances may warrant a different approach. [00:21:38] Speaker 02: That kind of packaging, I think, makes this different, because here, the point that we have been making is that once that actual predicate in Chevron's letter is met, there is no unique aspect of the grace platform or the gale platform. [00:21:55] Speaker 03: But you see, I think you've created a problem for your argument, by the way you just stated it, because you described it as a fact unique to Chevron's platforms. [00:22:06] Speaker 03: which you believe could apply nationally. [00:22:09] Speaker 03: And even if you're right about that, the statute provides just for that circumstance. [00:22:14] Speaker 03: It says that in a situation where the agency applies a nationally applicable rule to a local situation, for it to come in this circuit, the administrator has to certify it, right? [00:22:28] Speaker 03: I mean, the statute expressly provides for the situation you just described. [00:22:33] Speaker 02: I don't think it does, Judge Tatel, for this reason. [00:22:36] Speaker 02: I think what I just heard you say was that I had described this as a set of facts unique to Gale and Grace platforms. [00:22:43] Speaker 02: If I did say that, then I quite misspoke. [00:22:46] Speaker 02: Because what I meant to say was that these are facts that Gale and Grace platforms are currently in the process of arriving at, but they are not. [00:22:54] Speaker 02: unique to those platforms alone. [00:22:56] Speaker 02: There is nothing unique about the point that any offshore platform regulated under this statute reaches when it reaches the pre-abandonment and abandonment phase. [00:23:07] Speaker 01: It at least feels a lot different than if it's an either-or proposition. [00:23:13] Speaker 01: It's not your quintessential national rule where [00:23:17] Speaker 01: And I know the statute has different categories and regulations, one of them, but that's kind of the heartland of something that exclusively comes to the D.C. [00:23:24] Speaker 01: Circuit as opposed to somewhere else where it's a rule of nationwide effect on its terms. [00:23:30] Speaker 01: It's not even important to apply to a particular locality. [00:23:33] Speaker 01: And here it just seems to me the question is we have to look at these letters and the April letter in particular and ask, is this a national letter or is it a local letter? [00:23:41] Speaker 01: It's an either or proposition. [00:23:43] Speaker 02: So I think if you look at the entire spectrum, you have a national rule on one side. [00:23:48] Speaker 02: You have what this court has called the prototypical regional rule on the other side, which is a state implementation plan. [00:23:55] Speaker 02: And then you have, of course, this vast middle. [00:23:57] Speaker 02: And I think the question in that middle is, what does the agency decision? [00:24:02] Speaker 02: Of course, it doesn't have to be contained in a rule. [00:24:05] Speaker 02: This court has said, and CSI and others, that it can be contained in a letter, including a letter to and from a regulated entity. [00:24:12] Speaker 02: What does that rule say and is it particular to the unique facts of those circumstances? [00:24:18] Speaker 02: Is it particular to the Wyoming facilities? [00:24:21] Speaker 02: Is it particular to the Utah plant? [00:24:23] Speaker 02: And does the administrator say on these unique circumstances, I'm going to grant this permit, I'm gonna deny an objection to the permit. [00:24:30] Speaker 02: That's very different than saying where you have a platform that no longer emits, [00:24:37] Speaker 02: It is no longer an OCS source. [00:24:39] Speaker 02: Now the fact that that came as a response to a letter saying we have these two platforms that are soon going to reach this stage, that doesn't make it reasonably applicable. [00:24:50] Speaker 02: The way that the administrator went about deciding that question, both in January and in April, [00:24:56] Speaker 02: which is why it posted this April letter on its national website, makes it nationally applicable. [00:25:01] Speaker 02: Chevron has a platform subject to the Clean Air Act in a different part of the ocean. [00:25:06] Speaker 02: This is going to apply to that as well. [00:25:08] Speaker 02: And so would the January. [00:25:09] Speaker 05: So I had a second part of it. [00:25:11] Speaker 05: I just wanted to circle back because I had a second procedural question. [00:25:14] Speaker 05: I think you answered the first one about whether Chevron would have had to go to Ventura to surrender its existing permit. [00:25:21] Speaker 05: And I thought you said no. [00:25:23] Speaker 05: But I also had asked and this really goes to what's Chevron's injury under the April letter even under the January letter. [00:25:32] Speaker 05: because it sets out a series of hypothetical facts. [00:25:36] Speaker 05: And even assuming that what Chevron told EPA was accurate and complete, under the delegation agreement, Ventura is the agency that deals with permitting in the first instance. [00:25:48] Speaker 05: So wouldn't Chevron, even under the January letter, have gone to Ventura for final permit determination? [00:25:54] Speaker 05: Are you saying no, that had the April letter not come along, that Chevron's plan was [00:26:00] Speaker 05: never to go to Ventura County about the decommissioning activities that were coming up. [00:26:06] Speaker 02: Chevron's plan, so I think this bears on the question that Judge Tatel asked earlier as well, Chevron's plan after the January 11th was that once Chevron reached that point in the process where the platforms no longer emit, [00:26:17] Speaker 02: that it would surrender its Article 5 permit, which meant, as Chevron says in its letter to Independence 113, it could no longer practically or legally emit air pollutants from the site. [00:26:29] Speaker 05: So that practically would be your, as you've emphasized, would be your problem, because if you could practically, you would be in violation of the act, assuming that you legally couldn't. [00:26:38] Speaker 05: I mean, you wouldn't have gone to Ventura armed with this very helpful January letter and said, of course, we don't need a permit. [00:26:47] Speaker 02: No, I say no because we would not have needed to. [00:26:50] Speaker 02: The distinction, I think, is between, and I think the way I tried to phrase it earlier was, do we need a permit for this at all? [00:26:58] Speaker 02: Are we covered under this definition of the Clean Air Act at all? [00:27:03] Speaker 02: EPA, what is your interpretation of the Clean Air Act, and does it apply to a non-emitting stationary source? [00:27:08] Speaker 02: So if the different question is, have we satisfied Ventura's requirements for a permit, then of course we would have to go to Ventura. [00:27:21] Speaker 02: But the reason that we went to EPA in the first instance is because there's a predicate legal question that we thought needed to be asked of EPA and answered by EPA. [00:27:30] Speaker 02: which is do we need this permit at all. [00:27:33] Speaker 02: That I think is the legal difference and the difference in authority between EPA's interpretive power, which it cannot do, and Ventura County's implementing [00:27:44] Speaker 05: So it's your position that there just aren't any borderline cases. [00:27:49] Speaker 05: You mentioned under the statute that a vessel could be its own OCS source if it's tethered to the seabed and exploring, developing, or producing resources. [00:27:59] Speaker 05: But there's also the second provision under the regulation that says a vessel can be included in the definition of an OCS source. [00:28:08] Speaker 05: If it's physically attached to an OCS facility, [00:28:12] Speaker 05: It doesn't say an OCS source. [00:28:16] Speaker 05: It says an OCS facility. [00:28:18] Speaker 05: And so if the Derrick Barge were attached to, and if one thought that this was a vessel that also could become equipment, and it would be attached to the platform, and then that would be a station, isn't there some unclarity potentially in whether that would be emissions of the platform, [00:28:41] Speaker 05: or emissions only of the Derrick Barge that would be the problem of the owner of the Derrick Barge? [00:28:48] Speaker 02: I think even in that formulation, Judge Miller, what you would still need to find is something that's regulated under the OC and regulated by OXLA, the Outer Continental Shelf Lands Act. [00:29:00] Speaker 02: OXLA, if you look at it, 43 USC 1333. [00:29:05] Speaker 02: Oxlug regulates, and I'm going to quote, installations and other devices permanently or temporarily attached to the seabed, or which is a turbine, a platform, or any such installation or other device other than a ship or vessel for the purpose of transporting such resources. [00:29:23] Speaker 02: So at the point where you no longer have a platform, when you no longer have anything except metal and concrete on that oil platform, [00:29:33] Speaker 02: That is not an OCS source or anything that emissions can be ascribed to some other vessel. [00:29:39] Speaker 05: But if the generator were plunked on there during decommissioning, that would be an OCS source by the same token that pre-abandonment and abandonment, having the generators on the platform, the platform is still emitting. [00:29:52] Speaker 05: And I guess I'm just [00:29:54] Speaker 05: I mean this goes really to the finality question and whether this is a more hypothetical general determination or really a determination of you know that's final on these facts and my sort of basic understanding is that the final determination would have to be made by Ventura County and not disapproved by EPA on a more detailed record of what the plans are and you're saying no um [00:30:22] Speaker 05: And because this is relevant, I mean, you emphasize yourselves that this is sort of a novel issue of first impression. [00:30:27] Speaker 05: It seems surprising to me that Chevron is so confident that there's a clear line when I read these materials and I think, ah. [00:30:36] Speaker 02: I think, let me answer that a couple of different ways. [00:30:40] Speaker 02: The first is that the reason that there is a clear line is because we drew a clear line. [00:30:46] Speaker 02: Because we drew a clear line. [00:30:49] Speaker 02: I'm sorry. [00:30:50] Speaker 02: The predicate that we've been talking about is these platforms can no longer. [00:30:54] Speaker 02: That is the clear line. [00:30:57] Speaker 02: And as I said earlier, EPA accepts that line. [00:31:00] Speaker 02: It isn't. [00:31:02] Speaker 02: offering either below or in its brief. [00:31:05] Speaker 02: You can see that again at pages 5 and 28 that the platform still hypothetically potentially could emit because there might be emitting equipment on it. [00:31:13] Speaker 02: What EPA says is there could be other stuff brought to the site, which EPA has backed away from in this brief, but that was its point below. [00:31:21] Speaker 02: or other activities that themselves could be OCS sources. [00:31:26] Speaker 02: But let me also make a point, I think Judge Miller, that's important to make in response to your question about not going to Ventura County or not being regulated under Title V. [00:31:37] Speaker 02: This is not the wild west if Title V or the stationary source requirements don't apply. [00:31:44] Speaker 02: This is a highly regulated west. [00:31:47] Speaker 02: There are decommissioning requirements that are in, and I'll cite you a couple of CFR sites, 30 CFR, 250.1700 to 1754, all of which go into detail about what applications [00:32:02] Speaker 02: an owner or someone responsible for a platform needs to submit in order to be commissioned. [00:32:07] Speaker 02: Everything down to essentially the type of equipment that's going to be used to make sure that the shell base underneath the platform returns to its prior state. [00:32:18] Speaker 02: Those regulations go on for ages and ages and pages. [00:32:22] Speaker 02: So when you ask the question, Judge Billard, about not presenting our decommissioning plan to Ventura County, Chevron has already presented its decommissioning plans and is giving every six month updates to BSEE under the exact regulations that pertain to decommissioning. [00:32:40] Speaker 02: So this is more a turf question than a regulation. [00:32:43] Speaker 02: The decommissioning process is regulated quite extensively and stringently by another federal component. [00:32:49] Speaker 02: It's just not regulated, we would say, at the point where the platform cease emitting under the Clean Air Act by Ventura County. [00:32:57] Speaker 02: So that's why the county's role we think is so limited. [00:33:00] Speaker 02: And that's why we thought it was important to go to EPA in that first instance for that predicate question and to ask the question whether the permits at all [00:33:09] Speaker 05: There's a lot in the BOEM report about clean air, though, about how these, whether it's the clamshells or the dark barges or the cargo barges, that if the tugs are using cleaner fuels, if they're tier four, that there could be very large emissions during the decommissioning process, or the emissions could be really quite modest, depending on how [00:33:35] Speaker 05: careful the process, you know, carefully the process is conducted. [00:33:40] Speaker 05: And your view is fine and dandy, none of that is our problem. [00:33:44] Speaker 05: That is the problem of the owners of the vessels and the equipment that the tugs are pushing around. [00:33:51] Speaker 02: I wouldn't go so far as to say none of that is our problem. [00:33:54] Speaker 02: I don't think we need to make that argument. [00:33:55] Speaker 02: I think our argument would be all of that discussion of air emissions pertains to mobile source emissions that are regulated. [00:34:03] Speaker 02: But isn't the consequence of that not our problem? [00:34:06] Speaker 02: Depending on things that neither of us know, the indemnity contracts between us and the barges or what have you, that could or could not be Chevron's problem. [00:34:16] Speaker 02: The point is it's not Ventura County's problem because it is a mobile source regulated by the mobile source requirements. [00:34:22] Speaker 02: The other thing I would add too is you'll see this at Joint Appendix 116, I think Note 8, [00:34:28] Speaker 02: NEPA applies to decommissioning. [00:34:31] Speaker 02: And there is actually a memorandum of agreement between BOEM and BSEE about who administers the NEPA process, who gets to pull together all of the information, including air information that's necessary to make a NEPA determination that a decommissioning process should go forward. [00:34:51] Speaker 02: So again, there are multiple layers [00:34:55] Speaker 02: federal regulation and oversight, the only question in this case, and what it reduces down to, is does the stationary source requirements of the OCS, which require emissions from an installation regulated by OXLA on the Outer Content of the Shelf, does that particular set of regulations apply when the platform no longer emits? [00:35:19] Speaker 02: And I think once you reduce EPA's brief down to its arguments, [00:35:23] Speaker 02: EPA's argument is, you know, but the derrick barges. [00:35:26] Speaker 02: The derrick barges are regulated as mobile sources and EPA has not been able to identify anything in between the platform and the barges and all of the equipment that go into those vessels as performing some other OCS facility source that could satisfy that requirement. [00:35:45] Speaker 01: Why don't we hear from why don't we hear from EPA on its argument? [00:35:47] Speaker 01: Unless my colleagues have further questions for you at this point, we'll give you some time for rebuttal. [00:35:51] Speaker 01: Okay, thank you. [00:35:52] Speaker 01: Thank you. [00:35:53] Speaker 01: Mr. Dupree. [00:36:06] Speaker 01: Can you raise up the mics? [00:36:07] Speaker 01: Yeah, one of them is going to work. [00:36:09] Speaker 01: I think that should work. [00:36:13] Speaker 00: They please the court bill to pray for with the Department of Justice on behalf of a with the Council table is Brian Doster of the. [00:36:23] Speaker 00: I want to start by stating very clearly. [00:36:27] Speaker 00: We do not agree with the facts and hypothetical that they're on, but in their September. [00:36:37] Speaker 00: And that is, in fact, why in April, the agency said we need more details about the factual predicate before we can make legal determination. [00:36:50] Speaker 00: And so. [00:36:52] Speaker 00: You know, I think that is a key distinction here where, and again, this is specifically set forth in the April letter that the agency believes more details are needed to accurately and appropriately apply the law to the facts present. [00:37:12] Speaker 00: Um, and EPA's decision to not accept the hypothetical that Chevron put before it does not mean that it's made a final determination under benefit sphere. [00:37:25] Speaker 00: Um, as we set forth in the, in the brief, EPA has not consummated its decision-making process on Chevron's plan in part. [00:37:35] Speaker 00: And as Chevron noted in their letter to EPA, they still had not finalized their [00:37:42] Speaker 00: And the proper way for them to put those plans forward is through the permitting agency, which is insured. [00:37:51] Speaker 03: And could you just describe the scope of venture counties authority under the delegation agreement? [00:37:58] Speaker 00: So they are authorized to implement and enforce this provision of the Clean Air Act. [00:38:05] Speaker 00: And what that means is they issue the permits to the Gail and Grace platform. [00:38:10] Speaker 00: They oversee those permits and enforce those permits according to their state laws and regulations. [00:38:18] Speaker 00: that EPA approved. [00:38:21] Speaker 03: And does Chevron have to come back, have to go to Ventura to abandon its current permit? [00:38:29] Speaker 00: I do not know. [00:38:30] Speaker 03: You don't know? [00:38:31] Speaker 00: But I think the key point here is that under that one and I want to clarify this is I think Chevron misreads the guidance that Ventura County has put out about their permitting obligation. [00:38:48] Speaker 00: During the. [00:38:49] Speaker 00: And this was set forth in both January and April. [00:38:54] Speaker 00: But insured county has its own air regulations. [00:38:59] Speaker 00: And for offshore platforms within 3 miles of insured county that state. [00:39:04] Speaker 00: And that's pure state. [00:39:06] Speaker 00: And what the OCS provisions of the Clean Air Act say is, for those federally regulated facilities within 25 miles, such as the Gale and Grace platforms, we are going to delegate that OCS authority to Insure County to apply their state laws and regulations. [00:39:29] Speaker 00: So all [00:39:31] Speaker 00: Ventura County said is if you are subject to our state regulations, then you are required to maintain your permit through decommissioned. [00:39:41] Speaker 00: They didn't answer the predicate question, which is Chevron's point here, whether or not they will maintain to be maintained to be an OCS facility resource at some hypothetical point. [00:39:54] Speaker 05: Judge Lord, I see the Ventura County rules were a verbatim incorporation of the part 55 federal. [00:40:04] Speaker 00: Yes, those are the rules. [00:40:07] Speaker 00: Yes, correct. [00:40:08] Speaker 00: Those are the rules that were adopted. [00:40:10] Speaker 00: I'm sorry, I'm referring to there is a question and answer document on Ventura County's website that Chevron sites to for their 12 to 18 month permitting process discussion. [00:40:22] Speaker 00: Argument and our point is merely that that question and answer document relates to. [00:40:27] Speaker 00: if a facility is regulated by the state, not whether or not an OCS facility can be used to be regulated by the state in the process. [00:40:39] Speaker 00: Is that it? [00:40:40] Speaker 05: Can I ask you, because I think it relates to how we think about finality, whether the EPA has any interpretation of Section 55.2 that would give it ability to regulate [00:40:58] Speaker 05: Chevron or requires Chevron to have a permit whether it's based on vessels or equipment or can you describe the factual situation that concerns EPA that it suspects could arise during decommissioning after the pre-abandonment and abandonment phases that EPA thinks could be covered and therefore that gives some [00:41:26] Speaker 05: You know, meet to the need to go to venture account. [00:41:31] Speaker 00: Absolutely. [00:41:31] Speaker 00: But before I get to these sort of hypotheticals, I think it's important to understand what EPA was rejecting is without knowing all the different ways that decommissioning can play out as a matter of fact. [00:41:47] Speaker 00: What are the different combinations of barges and generators at different points of the decommissioning process? [00:41:53] Speaker 00: It was not appropriate for them to give essentially this blanket firm line in the sand of when OCS obligations go along. [00:42:06] Speaker 00: But to try to get more into the various hypotheticals. [00:42:09] Speaker 03: Well, excuse me, but from Chevron's point of view, that's a dramatic change, isn't it? [00:42:14] Speaker 03: Why isn't Chevron right about that? [00:42:16] Speaker 03: But under the January letter, all they had to do was meet that condition. [00:42:20] Speaker 03: Now, they have a much heavier burden. [00:42:23] Speaker 03: That's their argument as to why this is certainly legal consequences. [00:42:28] Speaker 00: Certainly, they they they like the legal interpretation set forth in the January. [00:42:34] Speaker 00: But I think the important thing is that [00:42:39] Speaker 00: One is that it's not clear to me, and as we explained in the brief, that the January letter actually altered any of their legal obligations. [00:42:49] Speaker 00: But secondly, the April letter made clear that EPA has not consummated its decision-making process. [00:42:58] Speaker 00: uh, as to what may be required here. [00:43:01] Speaker 00: And to go back to Judge Billard's hypotheticals, um, I want to make very clear first off that an issue here is emissions from the stationary aspects of this. [00:43:14] Speaker ?: Um, [00:43:16] Speaker 00: While it is correct that Interior and other agencies help regulate decommissioning, they do not regulate air emissions from those processes. [00:43:27] Speaker 05: For example, when you say stationary aspects of vessels, are you talking about the provision that I was questioning the Stetson about under which [00:43:38] Speaker 05: A vessel could be attached to the platform, so it's 55.2. [00:43:45] Speaker 05: Yeah, under the source definition. [00:43:50] Speaker 00: For instance, a derrick barge is a portable city block with a crane on it. [00:43:56] Speaker 00: And the issue of emissions is primarily the various generators and the power sources needed to basically run a crane to dismantle an offshore oil platform. [00:44:07] Speaker 00: It is not an issue of what emissions are needed to move the barge around. [00:44:15] Speaker 00: And so here you're [00:44:17] Speaker 00: Point your honor, I think there are lots of questions of if, for instance, Derek barge attaches itself to a offshore platform. [00:44:28] Speaker 00: And then those generators on the platform are transferred to the Derek barge that is attached to the platform and used to further dismantle the offshore platform. [00:44:40] Speaker 00: Are those generators no longer regulated under the Clean Air Act merely because they've been transferred from the platform to the vessel attached to the platform? [00:44:51] Speaker 05: Oh, I thought you said the opposite, that they were transferred from the barge to the platform, but you mean the other way around? [00:44:55] Speaker 00: The other way around. [00:44:56] Speaker 05: Okay, so your position is that? [00:44:59] Speaker 05: under the definition of OCS source in 55.2, under 3 sub 2, a vessel that is physically attached to the OCS facility could be deemed to be part of the platform and not, as Ms. [00:45:15] Speaker 05: Stetson was saying, its own separate OCS source, such that the owner of the Derek barge would be the one that had to get [00:45:27] Speaker 00: I think what, to be clear, EPA's position is they haven't made any final decisions. [00:45:33] Speaker 05: But it could be. [00:45:34] Speaker 05: I'm just trying to understand what could be a part. [00:45:36] Speaker 05: Because one way of reading the April letter is that for all the things that Chevron cares about, it agrees. [00:45:43] Speaker 05: And then it says, Oh, but by the way, there could be other sources at the site, which is very vague. [00:45:51] Speaker 05: And so what I want to know is, are there any sources at the site that could actually, I mean, I know you're not, I'm not asking you to make a final determination, but just to explain to us, is there a theory that's tenable under which those would actually be Chevron's responsibility and therefore of concern? [00:46:11] Speaker 00: So I also want to clarify one thing in answering this question, and that is in the April letter, we were not EPA was not speaking simply to Chevron's obligation, but about the overall need for permits at the site. [00:46:26] Speaker 00: So I think what he has made clear wasn't necessarily the agency was trying to draw a distinction between. [00:46:33] Speaker 00: You know, Chevron's obligation as the owner of the platform may go away, but the Derek Barge owner may have some sort of obligation under the clean air. [00:46:45] Speaker 00: It was simply the agency saying, we don't know exactly what OCS obligations apply without a more detailed understanding. [00:46:52] Speaker 00: I think to give a little bit more of a clear factual scenario. [00:46:57] Speaker 00: You know, the Derek Barge city block with the crane on it sidles up to an offshore platform [00:47:02] Speaker 00: and attaches to the platform itself, and is then attached to the seabed through the platform. [00:47:09] Speaker 00: Those emissions from running the giant crane on the dairy farm are attributed to the OCS source. [00:47:18] Speaker 00: Under Chevron's reading, the minute that the platform itself no longer has an emission, those emissions from the crane [00:47:32] Speaker 00: on the bar attached to the platform would vanish in terms of a regulatory? [00:47:37] Speaker 01: So one thing I'm not quite following is that under 55.2, which we've been focused on, there's two subparts that seem potentially relevant. [00:47:49] Speaker 01: One of them is where the vessel is permanently attached to the seabed and then is used for certain processes. [00:47:56] Speaker 01: And the second is when it's physically attached to the OCS facility. [00:48:01] Speaker 01: The second one is the one that you've been talking about, the city block that attached itself to the facility. [00:48:06] Speaker 00: But if you look at the April letter, that one is never even invoked as, but maybe I'm, maybe I'm not reading in terms of, um, well, I think that goes to the question of what is the OCS facility again. [00:48:20] Speaker 01: So I think one, I guess what I'm saying is in the April letter. [00:48:24] Speaker 01: So if you look at, uh, joint appendix one 29, [00:48:28] Speaker 01: Joint Appendix 129 specifically talks about the need for additional facts to understand the scenario. [00:48:33] Speaker 01: And then going from 128 to 129, however, in this situation, the applicability of OCS permitting also depends on whether equipment or facilities brought to the site, et cetera, et cetera. [00:48:43] Speaker 01: And then at the end of that paragraph at the top of 129, the letter specifically invokes the first part of 55.2, permanently or temporarily attached to the seabed and erected thereon and used for the purpose of exploring, developing, or producing resources therefrom. [00:48:58] Speaker 01: And on that language, the question in my mind is, even if it permanently attaches to the seabed, in decommissioning, is it used for the purpose of exploring, developing, or producing resources there from? [00:49:10] Speaker 01: It doesn't seem obvious that it would be. [00:49:13] Speaker 01: But you've been talking about the second part of 55.2, where it attaches to the platform, not to the seabed. [00:49:19] Speaker 01: And I just don't see that anywhere in the letter. [00:49:23] Speaker 00: Uh, it wasn't expressly discussed in the letter, but I think the point, well, one, I do want to know. [00:49:28] Speaker 00: We also don't know whether or not the direct part may directly. [00:49:31] Speaker 00: There's just a lot we don't know on that part of it. [00:49:35] Speaker 00: I get that on the part of it. [00:49:36] Speaker 00: Attach the point. [00:49:37] Speaker 00: I think the point was the agency was saying we need to know more about what's actually happening to figure out how we're going to apply regulation in these circles. [00:49:47] Speaker 05: And this is something that hasn't been, I gather this is just arising. [00:49:52] Speaker 05: These platforms have been out there since sort of the 60s to the 80s, and they're only now coming to the end of their useful life. [00:49:59] Speaker 00: I think in general that's correct. [00:50:00] Speaker 00: And that's why this BOEM report, the Bureau of Ocean Energy Management report was published as sort of the end of the life cycle of a lot of people. [00:50:08] Speaker 00: As you'll know, this is a very small record for many of the agency cases you all hear, and there's just not any other sort of guidance out there about these provisions. [00:50:22] Speaker 01: I'm happy to answer any questions, but I do want to briefly touch on- Can I just follow up on my questions for a second, and we'll give you time to make the additional point. [00:50:30] Speaker 01: I just – you think that the 55.2 – the second part of 55.2 is, in fact, in play here, even though the April letter specifically talks about the first part and then ends that paragraph by saying EPA's conclusion in the January letter that the circumstances presented did not suggest these criteria would be met – lack sufficient foundation – that I get on the first part. [00:50:55] Speaker 01: But on the second part, it's just not even mentioned. [00:50:58] Speaker 01: But what you're telling us is that, in fact, is in play. [00:51:02] Speaker 00: I want to be clear. [00:51:06] Speaker 00: I'm not implying that there's a hidden reference to 55. [00:51:13] Speaker 00: the second provision that you're talking about in the letter. [00:51:16] Speaker 00: I think my point is the purpose of the letter, and I think it makes this clear, is they need to understand the factual predicate [00:51:28] Speaker 00: in order to apply the legal requirements to the fact. [00:51:35] Speaker 01: I'm not trying to pin you down or be too technical or anything. [00:51:42] Speaker 01: I'm just wanting to know, just as a general matter. [00:51:45] Speaker 01: Does the letter in saying we need to know additional stuff to figure out what's really going on? [00:51:51] Speaker 01: Do you understand the letter to be including the scenario under the second part of 55.2, even though it's not specifically referenced there? [00:51:57] Speaker 00: I don't read the letters specifically including that second part. [00:52:02] Speaker 00: But I bring it up. [00:52:04] Speaker 00: You don't really have to foreclose it either. [00:52:07] Speaker 00: Correct. [00:52:07] Speaker 00: And just briefly, I do want to touch on the new. [00:52:11] Speaker 05: Can I ask you this? [00:52:14] Speaker 05: We will give you time for that. [00:52:16] Speaker 05: What is a permit applicability determination? [00:52:19] Speaker 05: That's what Chevron sought. [00:52:21] Speaker 05: And I just couldn't find anything on whether this is a formal inquiry established in any rules or any guidance or just kind of a response to a letter. [00:52:29] Speaker 05: And I'm thinking about this in particular when we think about HAWK and approved jurisdictional determination. [00:52:37] Speaker 05: Is it like that? [00:52:38] Speaker 05: Is it not like that? [00:52:39] Speaker 00: And why? [00:52:42] Speaker 00: There is no process in other provisions of the Clean Air Act and other provisions of many environmental statutes, such as the jurisdictional determination is lost. [00:52:52] Speaker 00: There is a clear permit applicability termination process that's set forth either through formal regulations or informal guidance. [00:53:02] Speaker 00: Nothing like that exists here. [00:53:04] Speaker 00: And, in fact, to the extent, you know, the January letter is the only instance that we are aware of anything close to a permit applicability determination in the context of the OCS permitting program. [00:53:19] Speaker 00: And this is just not something the agency does. [00:53:21] Speaker 00: And in the April letter, you know, the agency, I think, clearly said, you know, we erred in trying to make this determination in the first instance rather than directing you to the permitting agency. [00:53:35] Speaker 05: And just a couple more things in terms of process under the is it your view and I asked the same questions to miss test and. [00:53:42] Speaker 05: That Chevron would not have needed to go to venture doesn't need to go to venture accounting for. [00:53:48] Speaker 05: Approval of its abandonment there's no process within her accounting to abandon the existing permit. [00:53:54] Speaker 00: I don't know. [00:53:55] Speaker 00: And I would say because that is a question of state law. [00:53:58] Speaker 00: I mean, I will say that if Chevron is confident that, you know, at that moment that the last generator leaves a platform, it's not subject to the stationary provisions of the Clean Air Act, it's in the clear, right? [00:54:12] Speaker 00: I mean, they don't have to do anything. [00:54:14] Speaker 05: Subject to whatever jeopardy for enforcement action. [00:54:17] Speaker 00: Absolutely. [00:54:18] Speaker 05: And is it your understanding that [00:54:21] Speaker 05: in following the issuance of the January letter, had the April letter never come along, that Chevron would have nonetheless gone to Ventura armed with that fantastic letter and had to seek a determination on its decommissioned plans or maybe not? [00:54:39] Speaker 00: I don't know. [00:54:40] Speaker 00: I certainly know that the letter was not directed to Ventura County. [00:54:44] Speaker 00: nothing in the letter indicated that the agency couldn't change its position. [00:54:49] Speaker 00: And also, to be frank, maybe they were right, maybe they were wrong in the letter. [00:54:54] Speaker 00: EPA and regulated parties can disagree or have different interpretations all the time. [00:54:59] Speaker 00: To some extent, it's only when we have formal action taken that those questions are resolved. [00:55:08] Speaker 00: And I think on that point, the marriage question [00:55:13] Speaker 00: that Ms. [00:55:14] Speaker 00: Stetson put before this court at the very beginning is simply not properly before the court because it hasn't been answered in any concrete way by either agency, either Ventura County or EPA. [00:55:27] Speaker 05: And I couldn't find it, but is there any kind of, I mean, how much autonomy does Ventura County have to apply or I guess interpret the rules? [00:55:35] Speaker 05: My reading is under the delegation agreement. [00:55:38] Speaker 05: It isn't an interpreter. [00:55:39] Speaker 05: It's an, it's an applier, an enforcer. [00:55:42] Speaker 05: And so just again, procedurally, if Ventura County were to require a permit that Chevron thinks is in error, what happens? [00:55:54] Speaker 05: Who comes to EPA? [00:55:56] Speaker 00: So this is certainly Ventura County does not have the ability to issue an interpretive regulation like EPA would have about OCS provisions. [00:56:10] Speaker 00: But the very nature of issuing permits, applying it back to law, entails making interpretations of the OCS provisions in the Air Act and the regulations. [00:56:26] Speaker 00: And so they do have interpretive authority in the context of permitting or not permitting or bringing enforcement actions that they were expressly delegated to do. [00:56:36] Speaker 00: And you are correct that the delegation doctrine, excuse me, the delegation agreement specifically requires the Ventura County to discuss with EPA any issues of interpretation of the Act that arise. [00:56:52] Speaker 00: And so under the sort of normal course, or at least the course set out in the delegation agreement, one would expect that if and when [00:57:00] Speaker 00: I'm not going to go into the details of that. [00:57:06] Speaker 00: I'm going to go into the details of how Chevron goes insure County regarding their reading of the act and how it applies to their particular [00:57:19] Speaker 00: the interpretive issues. [00:57:23] Speaker 01: Do you reference application of a lot of facts? [00:57:25] Speaker 01: And that is also germane to the venue question. [00:57:27] Speaker 01: And I know you wanted to speak briefly to the venue question. [00:57:30] Speaker 01: And it seems to me that one of the major aspects of the venue question is when you have an exercise of statutory interpretation that could apply more broadly than the particular facts at hand, but it arises in the context of particular facts, [00:57:46] Speaker 01: Does that exercise a statutory interpretation render the decisional document nationally applicable document or is it still regionally? [00:57:56] Speaker 00: No, it does not render it a national document and I would. [00:57:59] Speaker 00: I wholeheartedly agree with Judge Tatel's review of the Sierra Club decision involving the Hunter Power Plant, which we believe is rather directly on point here. [00:58:11] Speaker 00: And ultimately, I think what, you know, and this has been addressed in many of this court's venue decisions, but it goes to the nature of the agency's action is what is being looked at from and whether it's nationally applicable. [00:58:28] Speaker 00: not the reasoning behind. [00:58:30] Speaker 00: And I guess to go to a point that Ms. [00:58:32] Speaker 00: Denson made, if EPA were to disapprove a change to a power plant in Wisconsin for a reason that it would disapprove a change to any power plant nationally, [00:58:48] Speaker 00: That doesn't make it a national issue subject to review in the DC Circuit Court of Appeals if the action being taken is specific to that Wisconsin power. [00:58:59] Speaker 00: If, on the other hand, the EPA were to promulgate a rule saying, in this circumstance, that any power plant throughout the country, a change to a power plant may not be approved, that would be natural. [00:59:16] Speaker 00: It may be the same legal issue [00:59:18] Speaker 00: But we look at the action being challenged, not sort of the underlying legal issues in the case. [00:59:26] Speaker 01: And again, I think this year, although if there is, if there is a, sorry, just one quick follow up. [00:59:32] Speaker 01: If there is a nationally applicable legal issue, [00:59:36] Speaker 01: in a decision that applies to particular facts in a particular locality, then as Judge Chaitil mentioned earlier, the agency can certify. [00:59:44] Speaker 01: Absolutely. [00:59:45] Speaker 01: So in those situations, there is a way in which that it would come here if the agency deems it to be nationally applicable in that way, if there's an embedded legal determination that's nationally applicable. [00:59:55] Speaker 01: Absolutely, and that's an option the agency has and obviously did not [01:00:00] Speaker 03: Other than your best interpretation of the statute here, is there some other reason as to why EPA prefers to have this case in the Ninth Circuit than here? [01:00:15] Speaker 00: No, I mean, it's simply, this is an action relating to- You're just looking at the statute. [01:00:23] Speaker 03: You're not telling it to some underlying EPA policy that you prefer a case like this. [01:00:29] Speaker 03: You're happy to have it decided, either court? [01:00:31] Speaker 03: Is that what you're saying? [01:00:32] Speaker 00: Yes, so I guess, and I don't know if this is where you're going, Your Honor. [01:00:36] Speaker 00: I think this court is perfectly capable of addressing the threshold jurisdictional issues of final agency action. [01:00:43] Speaker 00: before venue work to do it the other way around. [01:00:46] Speaker 00: And so we're happy to have this court decide in the first instance that this is not properly reviewable at all. [01:00:55] Speaker 03: But that would be if we actually thought as you do that venue is. [01:01:01] Speaker 03: proper in the Ninth Circuit, that would be a little odd, wouldn't it? [01:01:06] Speaker 03: Congress has expressed its desire. [01:01:09] Speaker 03: It's developed a scheme here. [01:01:11] Speaker 03: It's thought this through. [01:01:13] Speaker 03: And if we think, and I'm not saying what I think here, but if we think the case belongs in the Ninth Circuit, wouldn't it be odd for us to say, well, we're going to go ahead and decide the final agency action question first? [01:01:25] Speaker 03: Why would we do that? [01:01:27] Speaker 00: Well, as I have first, I note that, you know, the statute makes clear that it's only final actions that are subject to all. [01:01:35] Speaker 03: Well, that's my question. [01:01:36] Speaker 03: Why would we if we didn't think it venue was proper here? [01:01:40] Speaker 03: Why would we decide that? [01:01:43] Speaker 00: I think because, um, this court in its, uh, prior decisions and unfortunately I cannot, uh, name one off the top of my head has largely said that when you have different sort of threshold issues that can decide a case, the court is generally. [01:01:58] Speaker 01: I mean, one way to ask the question is this, suppose we thought that it is final agency action, then wouldn't it seem a little bit odd to say it's final agency action. [01:02:09] Speaker 01: Now go to the nine circuits or to litigate the rest of the case. [01:02:14] Speaker 01: That's a, that's a fair point. [01:02:15] Speaker 01: Um, I mean, it's one thing if we say there's not final agency action, then I take the point that it, then we're dismissing it either way and we could choose, but the whole point of not deciding the final agency action question is to not reach a resolution of it, which would leave open the possibility that we think it is. [01:02:30] Speaker 01: And if we think that it is then saying, but by the, then it goes to the ninth circuit and the ninth circuit has exclusive venue. [01:02:35] Speaker 01: Then what, what do they do with our final agency action conclusion? [01:02:37] Speaker 01: Because we didn't have venue to render that decision anyway. [01:02:40] Speaker 00: That is a fair point. [01:02:41] Speaker 00: Of course, the counter to that would be if this court has already voted and determined that it's not a final agency action, why would you want to then send it to another court to just review that decision or to make the same decision? [01:02:54] Speaker 00: Well, precisely because the statute says that it's supposed to be not there. [01:02:57] Speaker 03: And they think otherwise. [01:02:59] Speaker 03: And they have venues proper there, hypothetically. [01:03:04] Speaker 00: Certainly. [01:03:07] Speaker 00: This court is well empowered to simply look at the venue issue, decide the venue lies in the Ninth Circuit and address nothing else. [01:03:13] Speaker 00: Although we would ask that the court, after having heard extensive argument and briefing on the final agency action rule on that issue. [01:03:25] Speaker 05: Does either letter, the January letter, the April letter, bind EPA? [01:03:31] Speaker 05: Does either letter bind Ventura County? [01:03:35] Speaker 01: No. [01:03:38] Speaker 01: If my colleagues have no additional questions for you, Mr. Dupree. [01:03:42] Speaker 01: Thank you. [01:03:43] Speaker 01: Ms. [01:03:43] Speaker 01: Desson will give you three minutes for rebuttal. [01:03:55] Speaker 02: Thank you, Your Honors. [01:03:56] Speaker 02: I want to make one point about the facts that are at issue here and one point about the permits that are at issue. [01:04:02] Speaker 02: First of all, the question presented in this case, and this is from EPA's own brief, is whether some decommissioning activities may require an OCS permit even where the platform itself no longer emits. [01:04:17] Speaker 02: There is nothing hypothetical about that. [01:04:19] Speaker 02: There is no further factual development needed. [01:04:22] Speaker 02: The hypotheticals that EPA is talking about in its letter and in its brief have to do with EPA's theory. [01:04:29] Speaker 02: that there are activities that are brought to the site or equipment brought to the site after the point where the platform is simply concrete and metal, that itself could confer OCS source on the platform. [01:04:40] Speaker 02: And that leads to my second point about the permits. [01:04:43] Speaker 02: Mr. Dupre said during the course of his argument that the letters below had to do with the overall process, the overall need for OCS permits at the site. [01:04:52] Speaker 02: That is not [01:04:53] Speaker 02: what this case is about. [01:04:55] Speaker 02: What this case is about is whether Chevron needs to continue to hold Title V stationary source permits for its platformers. [01:05:04] Speaker 02: There is no question that other elements of decommissioning are regulated by the Clean Air Act, by the way. [01:05:10] Speaker 02: not unregulated by the Clean Air Act. [01:05:12] Speaker 02: It's simply regulated under the mobile source requirements. [01:05:15] Speaker 02: There is no question that to the extent OCS source permits are necessary for some other activity or facility at the site, that those permits will be [01:05:25] Speaker 02: apply for, but the question here is whether Chevron needs to hold these platform permits, whether the platforms themselves are subject to permitting. [01:05:35] Speaker 02: Judge Pillard, in response to your question about permit applicability determinations, these are quite common. [01:05:41] Speaker 02: This was not some rogue action by a company and a rogue action by an administrator. [01:05:47] Speaker 02: If you look at the EPA website, you'll see lists of significant numbers of PADs under, for example, the new source review element of the website. [01:05:56] Speaker 02: These types of preliminary, or I mean initial, not preliminary, permit applicability determinations are made precisely because EPA is, as the Federal Supervisory Authority over Ventura County, [01:06:10] Speaker 02: responsible for interpreting the statute. [01:06:13] Speaker 05: I was just going to ask the same thing I asked Mr. Dupree. [01:06:16] Speaker 05: Are they binding on EPA? [01:06:18] Speaker 05: Are they binding on you? [01:06:20] Speaker 05: Are they binding on Ventura? [01:06:22] Speaker 05: And how do we know that? [01:06:24] Speaker 02: I think they are binding on us under the same way that the Bennett v. Spear case asks the question, whether they're binding. [01:06:32] Speaker 02: They're binding on us because as of January, I think this goes to a question Judge Tatel asked Mr. Dupree as well, as of January, the answer to the question, is a concrete and metal platform an OCS sort, was no. [01:06:46] Speaker 02: As of April, the answer to that same question was, maybe. [01:06:50] Speaker 02: Go to Ventura County, take 12 to 18 months, and you'll find out. [01:06:54] Speaker 02: So the difference between for Chevron, the difference between that is that as of January, Chevron had a safe harbor from stationary source regulation after the point, again, where the platforms have reached the point where they can't emit anymore. [01:07:11] Speaker 02: As of April, that question now has been an open question. [01:07:15] Speaker 02: So what was closed in January was reopened in April for decision by Ventura County. [01:07:21] Speaker 02: So as far as EPA is concerned, [01:07:24] Speaker 02: EPA has issued its final decision on whether even if a platform can no longer emit, decommissioning might still be subject to Title V. And the answer from EPA is maybe go find out. [01:07:35] Speaker 02: And that, under Bennett v. Spear, creates consequences for us. [01:07:39] Speaker 02: Just a couple more points, if I could, on venue. [01:07:42] Speaker 02: The difference, again, between this case and the other venue cases in this circuit, and I would encourage you to look at each of them. [01:07:50] Speaker 02: Because each of them, including Sierra Club, including the producers of renewables case, including Madison Gas from the Seventh Circuit, each of those have to do with elements that were particular to the site. [01:08:03] Speaker 02: And each of them had to do, as Mr. Dupree just hypothesized, of either an approval of a permit or a disapproval of a change to that particular site. [01:08:14] Speaker 02: Here, in contrast, we are talking about a decision that EPA made in January of last year that once a platform reaches a particular point in time where it no longer emits, it need not seek a permit. [01:08:27] Speaker 02: And that kind of dynamic, I think, is much different. [01:08:30] Speaker 02: And that kind of ruling is nationally applicable to any platform that reaches that. [01:08:39] Speaker 02: There are no further questions. [01:08:41] Speaker 01: Thank you, counsel. [01:08:42] Speaker 01: Thank you. [01:08:42] Speaker 01: Thank you to both counsel. [01:08:44] Speaker 01: We'll take this case under submission.