[00:00:00] Speaker 00: Case number 23-1173, Interstate Natural Gas Association of America Petitioner versus Pipeline and Hazardous Materials Safety Administration and United States Department of Transportation. [00:00:13] Speaker 00: Mr. Morota for the petitioner, Mr. Springer for the respondents. [00:00:18] Speaker 01: Good morning, Mr. Morota, we'll hear from you. [00:00:21] Speaker 03: Thank you, Your Honor, and may it please the Court. [00:00:22] Speaker 03: Sean Murata on behalf of the petitioner, Inga. [00:00:25] Speaker 03: In the final rule at issue in this case, PHMSA finalized approximately 275 standards. [00:00:32] Speaker 03: Inga supported and championed the adoption of approximately 270 of them. [00:00:37] Speaker 03: Inga is not anti-safety. [00:00:39] Speaker 03: Rather, with respect to the five standards that are at issue in this case, PHMSA failed to follow the mandates of both the Safety Act and the Administrative Procedure Act. [00:00:48] Speaker 03: And for that reason, those standards should be vacated in part, and they should be remand. [00:00:54] Speaker 03: I know we are challenging five standards. [00:00:55] Speaker 03: I know we have several arguments as to each standard. [00:00:58] Speaker 03: So I want to try to give the court what we think is the easiest way through all five of them. [00:01:01] Speaker 03: And that is the final cost analysis that PHMSA made in the final rule. [00:01:06] Speaker 03: Because for each standard at issue, PHMSA either [00:01:08] Speaker 03: ignored the significant costs that we're putting on industry entirely, or they incorrectly and inaccurately assume that there would be no costs because they were simply codifying existing industry practice. [00:01:21] Speaker 03: Take, for instance, the corrosive constituents standard. [00:01:26] Speaker 01: Let me ask you this housekeeping procedural question. [00:01:32] Speaker 01: If we agree with you on any of the, I guess, substantive cost benefit challenges, do we need to reach the procedural challenges to the alleged failure to perform a complete preliminary regulatory impact assessment for that same standard? [00:01:58] Speaker 03: I don't think so, Judge Wilkins, particularly because when presumably a PHMSA goes back and re-notices these rules, hopefully they would take the lessons that we put in our brief and give a full analysis. [00:02:08] Speaker 03: Now, of course, there would be a question on any subsequent [00:02:10] Speaker 03: petition for review, whether I did a sufficient preliminary analysis. [00:02:15] Speaker 03: But I do agree with you that if you agreed with us on the substantive cost benefit analysis, the point that I started out with, I think that's why that's the easiest way through the case. [00:02:23] Speaker 03: Because you can just say they didn't do this cost benefit analysis the way they should have, vacate, remand, and then they can sort the rest of it out on remand if they choose to re-promulgate these standards. [00:02:32] Speaker 05: So you're saying we could avoid all of the procedural arguments, not just the challenges to the [00:02:37] Speaker 05: That's right. [00:02:38] Speaker 03: So we also have two arguments with respect to logical outgrowth. [00:02:42] Speaker 03: And you could also avoid those again if you agreed with us on the substance of the cost-benefit analysis. [00:02:46] Speaker 03: And the problems on the cost-benefit analysis, as I pointed out, are either that PHMSA assumed it was codifying agency practice and did not explain when industry said, no, we don't do it that way. [00:02:55] Speaker 03: We swear we don't do it that way. [00:02:58] Speaker 03: You really need to take account of the additional obligations you're putting on us. [00:03:02] Speaker 03: or they just didn't mention it at all because, and I think a lot of those sort of tie into the logical outgrowth because the reason it wasn't in the preliminary is because it wasn't noticed, but also I think they didn't put some things in the final, even after changing them at GPAC and later points. [00:03:17] Speaker 03: So that tends to be the problem. [00:03:19] Speaker 03: So in corrosive gas, for instance, PHMSA assumed that there was monitoring that was taking place at every single entry point to a pipeline, but yet at the GPAC, JA-415, 449, 443, [00:03:32] Speaker 03: Industry came out across the board and said, we do monitoring, yes, but we don't do monitoring at every single entry point. [00:03:38] Speaker 03: We instead have a more dynamic, a more graduated, a more nuanced approach to monitoring, which if you're going to make us monitor at every single entry point, [00:03:48] Speaker 03: Those are costs you have to take account of. [00:03:50] Speaker 03: But yet, in the final rule and in the final regulatory analysis, PHMSA doubled down and said, we are going to assume that there is monitoring at every entry. [00:03:57] Speaker 04: Can I ask you about the stress corrosion crack segment phrase? [00:04:02] Speaker 04: And you say that that has a different meaning than covered pipeline segments. [00:04:09] Speaker 04: That's right. [00:04:10] Speaker 04: And the agency says they mean the same thing. [00:04:13] Speaker 03: What I'll say is this, Judge Walker, if you want to throw me in the briar patch of saying that they mean the same thing and so don't worry about it, it's really only three excavations, throw me in that briar patch and we can lose on that basis. [00:04:24] Speaker 03: But I do hope you put in the opinion so that way, you know, if another administration comes along, they can be a stop from saying that no, no, actually that means nine. [00:04:33] Speaker 03: I think that's our approach to that. [00:04:35] Speaker 03: I mean, we have, as we explain our reply brief, why we think that why you're using two different terms, why didn't you go back if they mean the same thing. [00:04:42] Speaker 03: But if at the end of the day, if they're going to stick by the opinion that it means three and this court agrees it means three, then I think we're all kind of happy at the end of the day. [00:04:50] Speaker 05: Can you explain why you think it means nine? [00:04:52] Speaker 03: Sure. [00:04:52] Speaker 03: It means nine because the industry has always understood the term SCCDA covered segment to mean three excavations. [00:05:01] Speaker 03: And industry has always understood each SCCDA segment to contain multiple covered segments. [00:05:07] Speaker 03: So in other words, each what was previously called an SCCDA segment would have in it the more defined term covered pipeline segment, two or three. [00:05:16] Speaker 03: So if you say there have to be facing that just an industry understanding there's I mean that is what that is what industry practice was up to that time and again like I don't want to fight too hard on this judge pan if if it truly means the same thing that we always thought it meant and we're sort of an agreement. [00:05:31] Speaker 03: I think the problem is is that if we didn't challenge that in the court didn't roll on it. [00:05:35] Speaker 03: It's not that I don't trust my friends who sit over here, but of course, they're not always going to be the administration. [00:05:40] Speaker 03: And if they came along and said, actually, they mean different things, and actually, you have to do nine, without a court opinion saying that, I think it's going to be a lot different for regulated entities. [00:05:48] Speaker 03: But I don't want to fight too hard on that. [00:05:50] Speaker 05: No, I understand. [00:05:51] Speaker 05: But the basis of your argument is just industry understanding, because I don't really see that anywhere. [00:05:56] Speaker 03: It was a previously undefined term. [00:05:57] Speaker 03: That's correct. [00:05:58] Speaker 01: And partly what I think, Phil, is the industry understanding factually indirect. [00:06:06] Speaker 03: I think it comes from the comments, I don't have a JA page for you on that Judge Wilkins. [00:06:10] Speaker 03: It was, I think, just sort of an understanding about pipeline operators were doing it previously. [00:06:15] Speaker 03: Because, of course, one of the things this final rule did, and it did do with some respects, is it codified existing practice in the industry. [00:06:22] Speaker 03: The problem is for these standards that we're talking about, the other four standards, PHMSA actually went a fair bit beyond existing industry practice and didn't take full account of the costs it was imposing. [00:06:31] Speaker 01: But but I guess the bottom line is is your your are conceding that if. [00:06:38] Speaker 01: The term means what PHMSA says in their brief that it means then then there's really no fight between us anymore challenges. [00:06:47] Speaker 03: I think that's right. [00:06:48] Speaker 03: Judge Wilkins, yes. [00:06:51] Speaker 04: With respect, sure, ask about this severability question on C9 versus right? [00:06:58] Speaker 04: Sure, see and. [00:07:03] Speaker 04: I think I understand your argument. [00:07:08] Speaker 04: I guess I have two questions. [00:07:10] Speaker 04: One is about why they're, well, we just say this way. [00:07:15] Speaker 04: Why, how would you be hurt if all of C9 were vacated? [00:07:19] Speaker 03: So if all of C were vacated, I think the problem would be that we would not have the ability to engage in this dent assessment any longer as a means to, you know, all of these are ways you are going to address the dent and there's multiple ways you can do it. [00:07:34] Speaker 03: And one of it is through this dent reassessment process where you can go out and do an assessment, do an engineering analysis and say, OK, it's safe for now and we're going to come back and revisit in a certain period of time. [00:07:45] Speaker 03: And that depends on the safety factor. [00:07:47] Speaker 03: So if you take away all of C, we don't have that process. [00:07:50] Speaker 03: Now, Judge Walker, I think sort of implicit in your question is, would I rather lose on this argument or would I rather all of C get vacated? [00:07:58] Speaker 03: I would rather all of C get vacated. [00:07:59] Speaker 04: I guess I understand that's helpful. [00:08:01] Speaker 04: Yeah, but on which is the right course for us. [00:08:07] Speaker 04: It seems possible that if if see one through eight and 10 tell you what to do and see nine says when to do it and then we take your [00:08:18] Speaker 04: proposal and just eliminate the mandate on when to do it, you won't ever be required to do it, because you will have never been told when to do it. [00:08:28] Speaker 04: And that would render C1 through 8 and 10 a nullity. [00:08:33] Speaker 03: I don't think it's a nullity, Judge Walker, because there are existing industry standards with respect to dent reassessment. [00:08:39] Speaker 03: Kimsa wasn't writing on a blank slate. [00:08:41] Speaker 03: So I think in the absence of C8, we continue to do it on things like a safety factor of 2, which is what the API standard was. [00:08:47] Speaker 03: So I don't and also remember it's that we'd have to do it with respect if we're going to rely on that to. [00:08:55] Speaker 03: To carry out our our requirement to address death, so we would still continue. [00:08:58] Speaker 03: It would still continue to carry that forward. [00:09:00] Speaker 04: Why wouldn't you just? [00:09:03] Speaker 04: What would I guess if there were no C1 through 8 and 10? [00:09:08] Speaker 04: And you wanted to do an assessment. [00:09:11] Speaker 04: how would that assessment look different than it would look under C, one through eight and 10? [00:09:16] Speaker 03: Well, I think if we didn't have C, my understanding is that we wouldn't necessarily have the, we'd have to address the dent in a different manner rather than through a dent assessment. [00:09:24] Speaker 03: I think before the entire addressing of dents through this final rule, we would do dent assessments and we would do them essentially the way they're done now. [00:09:32] Speaker 03: We would just do them with a different safety factor. [00:09:37] Speaker 03: I think also an area of costs where PHMSA fell short was on HFERW, the high frequency welds, where PHMSA assumed that pipelines were in the field already looking at these things and said that there was a particular manual that required it this way. [00:09:52] Speaker 03: We came in and said, no, the manual doesn't say that. [00:09:55] Speaker 03: And they came back and said, yes, it does. [00:09:57] Speaker 03: And as I understand my friend's argument on brief, they say, well, now the manual doesn't matter anymore. [00:10:00] Speaker 03: The manual matters quite a bit because that is the basis for which PHMSA said there were going to be no costs that come about this because you're doing it this way anyway. [00:10:09] Speaker 03: So again, much like the corrosive conditions, it's PHMSA assuming that it's codifying existing practice and then not reasonably explaining why it was disagreeing with industry when industry came forward and said, actually, practice isn't like that at all. [00:10:21] Speaker 03: And the problem at the end of the day is not so much, because my friend focuses very much on the benefits of this rule. [00:10:27] Speaker 03: But PHMSA has to take full account of the costs as well. [00:10:30] Speaker 03: That's a general APA standard, but particularly a standard under the Safety Act, which requires explicitly a cost benefit analysis, unless the court has further questions. [00:10:40] Speaker 01: Thank you. [00:10:41] Speaker 01: I'll give you some time to move on. [00:10:50] Speaker 01: Mr. Springer, we'll hear from you. [00:10:53] Speaker 02: Good morning, your honor. [00:10:54] Speaker 02: So may it please the court. [00:10:55] Speaker 02: Brian Springer on behalf of the federal government. [00:10:58] Speaker 02: IMSA issued the final rule in this case after extensive input from the public and from the expert advisory committee. [00:11:04] Speaker 02: I understand that there are a number of provisions that are at issue, and I'm happy to take the court's questions and be sure that we can be helpful for the court's questions. [00:11:12] Speaker 04: I think the very first thing you said about they issued the rule after, how did you phrase it? [00:11:17] Speaker 02: said extensive input. [00:11:20] Speaker 04: Was that true for what they did in GPA midstream? [00:11:24] Speaker 02: Your honor, in GPA midstream, the problem that the court identified was that in sort of the preliminary rule and in the preliminary cost benefit analysis, there was no discussion at all, or in the final rule as well, of specifically this application of this rule to an entire category of pipelines, namely gathering pipelines, and therefore that the public wasn't on notice [00:11:47] Speaker 02: that this was a change that Thimso was contemplating. [00:11:50] Speaker 04: Am I remembering right that this rule was finalized before GPA midstream was published? [00:12:01] Speaker 02: Your honor, this rule was issued before the publication of GPA midstream. [00:12:05] Speaker 04: Would this rule have looked any different if you had had the benefit of the GPA midstream opinion? [00:12:12] Speaker 02: So, you know, I don't want to speak to, you know, how the agency would change its practices and in response to GPA midstream, you know, I think here that this this situation looks materially different than GPA midstream because. [00:12:25] Speaker 02: The agency did specifically explain to the public the changes that it was contemplating. [00:12:31] Speaker 02: There was a long back and forth process. [00:12:33] Speaker 04: And I take it that, you know, you didn't literally write the rule personally, but you are their counsel. [00:12:40] Speaker 04: You're representing them, right? [00:12:41] Speaker 04: You're representing the agency. [00:12:42] Speaker 04: You work for DOJ and you're representing the agency. [00:12:47] Speaker 02: That's correct, Your Honor. [00:12:49] Speaker 02: I'm here on behalf of the agency. [00:12:50] Speaker 04: That's correct. [00:12:51] Speaker 04: And so if you were advising them after, let's imagine that this rule were a draft, and then GPA midstream came out, if you were advising them, would you say, oh, we've learned something from GPA midstream, and that new knowledge should inform this rule in X, Y, and Z way? [00:13:12] Speaker 02: Your honor, whether or not the agency in the future may, you know, be kind of more specific in certain instances, here the agency did exactly what GPA midstream contemplated. [00:13:22] Speaker 04: I know that's your briefing. [00:13:22] Speaker 04: I'll only ask one more time. [00:13:23] Speaker 04: I don't want to dwell any more than I already have, but I guess my kind of big picture question is, what can you, is there any reason to think the agency has learned anything from its defeat in GPA midstream? [00:13:38] Speaker 02: Your Honor, I think that the agency is making substantive changes. [00:13:42] Speaker 02: I think that this specific cost benefit analysis that we have in this case looks materially different than the one that was at issue in GPA midstream in ways that GPA midstream specifically described that the agency here went through the process of explaining what the costs were as to these different provisions and then did some quantification of the benefits on the other side, which this court said was not the case in GPA midstream. [00:14:09] Speaker 02: and that that is what informed the agency's ultimate decision to say that the benefits justified the costs in this particular case. [00:14:15] Speaker 02: I appreciate it. [00:14:16] Speaker 02: Thank you. [00:14:18] Speaker 05: So you haven't asked for a remand without vacator if we agree with the other side. [00:14:22] Speaker 05: So if we do agree that the cost benefit analyses and the final analysis were inadequate, it would be a full vacator. [00:14:30] Speaker 02: Your Honor, we haven't specifically asked for remand without vacator. [00:14:33] Speaker 02: I mean, I don't think we would resist the idea of remand without vacator, at least as to some of the provisions. [00:14:38] Speaker 02: But we haven't specifically asked for that. [00:14:40] Speaker 02: That's a vacator. [00:14:43] Speaker 02: That isn't the relief that we've asked for in our brief, Your Honor. [00:14:50] Speaker 01: Just to be clear, follow up on Judge Pam's question. [00:14:54] Speaker 01: In GPA midstream, [00:14:57] Speaker 01: We vacated the rule, but what we said was we were vacating only, you know, these specific standards that were challenged. [00:15:10] Speaker 01: And we didn't try to go through and say that means, you know, section so-and-so was vacated, but not the rest of the rule. [00:15:19] Speaker 01: We said we left it to the agency to figure that out. [00:15:24] Speaker 01: I'm assuming when you say if there were vacatur in this case, you would want us to do something similar here and not vacate everything that was promulgated in the rulemaking, right? [00:15:39] Speaker 02: So I want to make a couple of clarifications. [00:15:42] Speaker 02: I think in general strokes, that's correct, Your Honor. [00:15:45] Speaker 02: The first thing I just want to make sure is clear is that in GPA midstream, because the problem was that the rule applied to an entire set of facilities that weren't discussed in the court's view in the earlier cost benefit analysis, the vacanter was as to those facilities as the gathering line specifically. [00:16:03] Speaker 02: I think here, if the court thought that there was some problem, the other side hasn't challenged that. [00:16:10] Speaker 02: The relief that they're seeking is specific to the provisions that they've challenged. [00:16:14] Speaker 02: The one exception I just want to make sure is clear that I think has already been discussed this morning is that if the court has concerns in particular with the dent provision, the safety factor provision, that we would ask the court to vacate 712C in its entirety because the steps are one integrated process. [00:16:33] Speaker 04: I think that question is, I find that question hard and you might be right on it. [00:16:42] Speaker 04: It seems a little bit odd for us to vacate parts of this rule that have not been challenged in this case. [00:16:56] Speaker 04: And I'm not saying that there's an absolute strict standing article 3 standing obstacle to us doing it, but it does seem like severability doctrine is in something of a state of flux. [00:17:10] Speaker 04: And part of the reason for that is it's just something a little bit uncomfortable about. [00:17:17] Speaker 04: a petitioner saying I'm injured by C9 and I'm challenging C9 and a court saying we will take a red pencil or whatever the right metaphor is and we will just cross out all of C. [00:17:31] Speaker 02: So Your Honor, I think here the agency has identified practical problems that would result in it to the extent that the court thinks that there are problems with the safety factor piece. [00:17:41] Speaker 02: The agency believes that it needs to reconsider the entirety of these steps that it has asked people to follow. [00:17:47] Speaker 02: It may rejigger some of the steps. [00:17:49] Speaker 02: It may change exactly what needs to be done. [00:17:51] Speaker 02: Because as Your Honor mentioned, the part that we're talking about is when to do something. [00:17:56] Speaker 02: But that's all premised on the idea of what has happened beforehand. [00:17:59] Speaker 02: And I would also just point this court to a recent severability decision of this court, which is called Board of County Commissioners of Weld County of the EPA. [00:18:08] Speaker 02: It's 72F4284. [00:18:12] Speaker 02: And at page 296, there's a specific discussion of severability of regulations that says if the agency believes that the sort of pieces need to rise and fall together, that that's a reason to vacate sort of all the pieces that operate as a collective. [00:18:29] Speaker 04: Does the opinion say whatever the agency believes is true, even if it's not true? [00:18:34] Speaker 02: I think it says that parts can be severed unless the agency manifests an intent for the entire package to rise or fall together. [00:18:42] Speaker 02: But here, as we've explained in our brief, the agency believes that. [00:18:48] Speaker 04: Here you're saying you have manifested. [00:18:49] Speaker 02: We have manifested that intent. [00:18:50] Speaker 02: And I think we've also explained why the agency here thinks that these pieces are interconnected and need to be considered as one package, particularly because, as our brief mentioned and as is true, there's sort of ongoing research in this area that the agency would need to look at in order to figure out exactly how it wants to calibrate this provision. [00:19:09] Speaker 04: Do you disagree with the petitioner when the petitioner says the rest of C [00:19:17] Speaker 04: would not be a no, absent C9. [00:19:22] Speaker 04: I had a lot of knots in that question, so I had a lot of negatives. [00:19:26] Speaker 02: Your honor, it's a little confusing what C would be doing in the absence of knowing when pipeline operators are supposed to go back and look at the dents. [00:19:35] Speaker 02: And as I mentioned, the agency might sort of change some of the steps that precede the decision about when to look at it, if it's using a different safety factor. [00:19:45] Speaker 02: So these things all operate together. [00:19:48] Speaker 02: You know, there'd be some practical problems of people, pipeline operators doing this process and notifying the agency. [00:19:55] Speaker 02: And it's not clear kind of what the agency should be looking for in determining when, you know, these reassessments should be taking place. [00:20:03] Speaker 04: I take that. [00:20:05] Speaker 04: And I think maybe if I'm reading between the lines of their brief a little bit, what maybe what they're worried about is, [00:20:14] Speaker 04: If they win on C9, they might actually lose by winning. [00:20:19] Speaker 04: Because if we vacate all C, C9 might get better. [00:20:25] Speaker 04: But the rest of C, you might decide to make it a lot worse. [00:20:29] Speaker 04: And that's probably something that doesn't matter to us and shouldn't affect us. [00:20:35] Speaker 04: But on the other hand, [00:20:39] Speaker 04: It almost seems like you might impose a tax on them for their successful litigation. [00:20:46] Speaker 04: Is that something, I think that's something that we probably should not worry about. [00:20:50] Speaker 04: And I think you probably agree. [00:20:51] Speaker 04: So can you tell me why? [00:20:52] Speaker 02: Yeah, I don't think that that sort of consideration should enter into the balance here because the agency is making decisions about what's safe and what needs to be done to make sure that these dense don't cause problems down the road don't become so serious that you know in in the meantime there's some catastrophic event that happens. [00:21:09] Speaker 02: So the agency needs the ability to set exactly what the steps should be, and it may need to recalibrate those if there's some tweak in some piece of this. [00:21:18] Speaker 05: Can't you do that even if we don't vacate all of C? [00:21:21] Speaker 05: You could just issue a notice of proposed rulemaking and change things. [00:21:25] Speaker 02: Your Honor, I think the problem would be particularly the timing of how long it would take for that to come out, because the agency has these processes that it has to go through, including the advisory committee as well as notice and comment. [00:21:39] Speaker 02: And so, and as I mentioned before, there has been research that came out during the rulemaking and there's research that came out after the rulemaking that the agency would need to take into consideration. [00:21:50] Speaker 02: I believe there's also continuing research that's going on. [00:21:53] Speaker 02: So the agency would need the opportunity to reconsider what to do here in light of that entire universe of research. [00:22:01] Speaker 05: So if we were just to vacate C9 and you went back to the drawing board on that, you couldn't also, unless we vacate the rest of C, reconsider anything else in C? [00:22:13] Speaker 02: I think the main problem would be the timing of what would happen in the interim while those other provisions, the other pieces of C are still in effect because the agency has calibrated those provisions to what it did in C9 specifically. [00:22:27] Speaker 05: So what would happen if we only vacate [00:22:30] Speaker 02: See 9. [00:22:32] Speaker 02: Your honor, I think it's it's confusing to understand exactly what would happen because that is the provision that tells you when to go you know do the same set of steps over again to make sure that the dent hasn't gotten any worse. [00:22:45] Speaker 02: So I think that's exactly what the practical problem is that points up why [00:22:49] Speaker 02: to the extent that the court has, you know, thinks that there are concerns here that that's why the entirety of C should be the agency should have the opportunity to reconsider as one one collective and not have sort of just pieces of it in operation. [00:23:03] Speaker 05: Having some understanding why it matters if you can just try to make it more concrete for me. [00:23:09] Speaker 02: Yeah, you're right. [00:23:11] Speaker 02: So what steps sort of one through eight say is the steps that a pipeline operator needs to go through to look at a dent and assess how serious the dent is. [00:23:19] Speaker 02: And then C9 says that you do sort of an additional analysis and make a decision based on the safety factor of when you're going to reassess and you notify the agency of [00:23:30] Speaker 02: of what you're doing. [00:23:31] Speaker 02: And so it's unclear if people continue to notify the agency what the agency is actually looking for. [00:23:37] Speaker 02: It's unclear that they've done enough steps ahead of time to the extent that we don't know when they're supposed to actually do this reassessment of how this is supposed to play out in practice because the agency was trying to standardize the process. [00:23:51] Speaker 05: Would it be the same whether we vacated or not? [00:23:53] Speaker 05: Are you saying that if we vacate C9, people aren't going to do it? [00:23:57] Speaker 05: which is the same as vacating seat. [00:23:58] Speaker 05: I'm just trying to understand like actually on the ground, what's going to change depending on this decision. [00:24:04] Speaker 02: I think what is going to change on the ground, the one important point is that this operates as an exception to an immediate repair condition. [00:24:11] Speaker 02: So in general, dents that have metal loss or cracking need to be repaired immediately. [00:24:16] Speaker 02: There's some sort of more nuance there depending on how the dent is oriented. [00:24:20] Speaker 02: And what the C process allows pipeline operators to do is go look at individual dents and delay their response if the dent is not so serious that it needs to be repaired immediately. [00:24:32] Speaker 02: So without this provision, there would be sort of the more immediate repair would happen in the meantime, which is how this process started to begin with. [00:24:41] Speaker 05: And without C9, what would happen? [00:24:44] Speaker 05: What if C remains in place, but C9 is gone? [00:24:47] Speaker 02: Your honor, I think it's unclear exactly what would happen because there wouldn't be a specific provision that tells industry pipeline operators when they have to go back and reassess the dense. [00:24:59] Speaker 02: And in the meantime, they'd be notifying the agency that they've done these assessments, but that there's sort of no backstop on understanding when they have to go back and look at them again. [00:25:08] Speaker 02: So I think that it would throw this process into disarray. [00:25:13] Speaker 05: seems like would be in disarray either way. [00:25:15] Speaker 02: I'm not sure that's true, Your Honor. [00:25:18] Speaker 02: I mean, I think that without the C process, we would return to sort of what we had before, which is having the pipeline operators immediately repair the dents that are covered by the provision instead of delaying their response to make those repairs. [00:25:37] Speaker 04: I have what I think is a quick corrosive constituent question. [00:25:40] Speaker 04: Corrosive constituents are by themselves harmless. [00:25:46] Speaker 04: Is that correct? [00:25:47] Speaker 02: Your honor, it's correct that potentially corrosive constituents are, you know, some of them can be by themselves, but in general, they're not. [00:25:58] Speaker 02: As a general matter, it's correct that by themselves, they are not problematic. [00:26:02] Speaker 02: It's when they mix in with other things. [00:26:03] Speaker 04: And what about water, like liquid water? [00:26:06] Speaker 04: Is that by itself harm? [00:26:10] Speaker 04: Keep out the negatives. [00:26:12] Speaker 04: Liquid water is by itself not harm. [00:26:18] Speaker 02: Your honor, I don't know the answer specifically to that question. [00:26:21] Speaker 02: I think water is one of the elements that's kind of the most potentially harmful, especially when it gets added into a gas stream. [00:26:29] Speaker 02: It's more likely to cause corrosion. [00:26:30] Speaker 02: I don't know the specific answer of whether, if you had just a pipeline that's only transporting water, if that would be enough. [00:26:38] Speaker 02: But the point of this provision is just to make sure that pipeline operators are being aware of what they're actually carrying and the makeup of it. [00:26:46] Speaker 02: Because sometimes when you introduce some of these elements like water or carbon dioxide, it can cause a gas that wasn't corrosive to become corrosive. [00:26:55] Speaker 02: That's helpful. [00:26:55] Speaker 02: I appreciate it. [00:26:59] Speaker 01: If you have any final points you wanted to make, I know you were waylaid by questions. [00:27:05] Speaker 01: I will give you a minute or two to summarize or make those points. [00:27:11] Speaker 02: Your Honor, I don't think I have anything else unless the court has questions. [00:27:14] Speaker 02: We would ask that the court deny the petition. [00:27:18] Speaker 01: All right. [00:27:18] Speaker 01: Thank you. [00:27:25] Speaker 01: You were out of time, Mr. Morata, but we'll give you two minutes if you care. [00:27:32] Speaker 03: Thank you, Your Honor. [00:27:33] Speaker 03: First, Judge Walker, I'd say you're exactly right about the timeline with respect to GPA midstream. [00:27:38] Speaker 03: It makes sense that PHMSA in this case made many of the same mistakes it did in GPA midstream because it didn't have GPA midstream available to it when it finalized the rule in this case. [00:27:48] Speaker 03: That's not a flaw that PHMSA couldn't read the court's mind, but it does show why GPA midstream warrants vacater of these standards. [00:27:55] Speaker 03: Second, with respect to C9, C9 can be severed off because there are existing industry standards that tell you how long you take with respect to the safety factor. [00:28:03] Speaker 03: And I do think you're right, Judge Walker, that when, for instance, you look at the recent Affordable Care Act litigation, there's real concerns about essentially expanding the notion of what is going to be taken out of a statute or out of a rule just because there is one particular subpart of it. [00:28:18] Speaker 03: So I think that's troublesome. [00:28:19] Speaker 03: And I think you're also right, Judge Pan, that there is nothing that prevents PHMSA when it goes back after vacater and says, you know what, if we're not going to be using safety factor five in the future, then we got to take a look at everything else, too. [00:28:30] Speaker 03: When they reassess it, they can reassess all of it, and they can do that through their normal notice and comment rulemaking procedures. [00:28:37] Speaker 03: Finally, Judge Wilkins, with respect to SCCDA, the site is joint appendix 701-702 with respect to the reconsideration petition. [00:28:45] Speaker 03: There is not a record with respect to what industry's understanding of SCCDA was. [00:28:49] Speaker 03: Because it goes to some of our notice problems with respect to it, because that was, in our view, sprung on us after the notice and comment process, we didn't have the chance to make a record. [00:28:59] Speaker 03: But as I've said to the court throughout, if [00:29:01] Speaker 03: The court just wants to say the same thing. [00:29:03] Speaker 03: We're fine with that result. [00:29:05] Speaker 03: Lastly, Judge Walker, we have the same understanding as our friends from PHMSA with respect to water. [00:29:09] Speaker 03: It's that water standing by itself is harmless. [00:29:12] Speaker 03: We do agree that when it's mixed with gas and can become corrosive, that's where the harm comes in. [00:29:17] Speaker 03: And operators can and do monitor for that aggressively. [00:29:21] Speaker 03: For instance, when there's so-called wet gas that enters the pipeline, that's what they're monitoring for. [00:29:26] Speaker 03: They do keep an eye out for that as part of their dynamic monitoring processes, unless the court has questions. [00:29:31] Speaker 03: Thank you Robert. [00:29:32] Speaker 01: Thank you. [00:29:33] Speaker 01: Take the case under advice.