[00:00:00] Speaker 00: Case number 24-5294, public employees for environmental responsibility and Center for Environmental Health, the balance, versus Liam Zeldin as administrator of the United States Environmental Protection Agency and Environmental Protection Agency. [00:00:17] Speaker 00: Mr. Sussman for the balance, Mr. Anderson for the FLEs, and Dr. Feltwit for improving your ability. [00:00:24] Speaker 00: Morning, Mr. Sussman. [00:00:25] Speaker 02: Good morning, Your Honor. [00:00:29] Speaker 02: Good morning to the panel. [00:00:32] Speaker 02: May it please the floor. [00:00:34] Speaker 02: I'm Robert Sussman. [00:00:37] Speaker 02: I'm representing the plaintiff appellants in this case center for environmental health and public employees for environmental responsibility. [00:00:52] Speaker 02: So this case is about section 4F of the Toxic Substances Control Act. [00:01:01] Speaker 02: And section 4F is an action forcing provision that compels EPA to address unusually urgent and threatening chemical risks that call for expeditious protection of public health. [00:01:22] Speaker 02: For purposes of this appeal, there is not a dispute that the high bar for triggering section 4F has been met. [00:01:38] Speaker 02: The district court found based on [00:01:42] Speaker 02: the allegations in our complaint that EPA had a non-discretionary duty to initiate applicable action under Section 4F in 180 days. [00:01:55] Speaker 02: The judge also found based on the complaint that the 180-day clock began to run by March 29, 2023, and thus, [00:02:08] Speaker 02: uh on uh in october 2023 uh EPA was in violation of its mandatory duty uh and EPA says in its in its brief that uh again for purposes of the appeal it is accepting those uh conclusions and proceeding on the basis that the application of section 4f [00:02:36] Speaker 02: was given. [00:02:39] Speaker 02: So the argument that the government is making here is that even if EPA was in violation of its duties under Section 4F, [00:02:54] Speaker 02: It discharged those duties after this case was filed by publishing what I think we can agree is a bare bones request for information on fluorinated containers on September 24, [00:03:13] Speaker 02: 2024. [00:03:15] Speaker 02: And I think it's pretty clear that this information request did not discharge EPA's non-discretionary duty and instead [00:03:34] Speaker 02: We would say that the plain language of the statute shows that EPA was obligated to issue a proposed rule under Section 6 of TOSCA by the 180-day deadline for action. [00:03:52] Speaker 02: Sorry, Your Honor. [00:03:53] Speaker 01: Yeah, I want to make sure we have the facts right here, okay? [00:03:57] Speaker 01: This is a strange case to me in any event in that as far as I can see, [00:04:02] Speaker 01: The agency did exactly what it was supposed to do in this case. [00:04:07] Speaker 01: Did exactly what it was supposed to do in this case. [00:04:12] Speaker 01: They got a petition from those on your side requesting action of the sort being taken here. [00:04:23] Speaker 01: They granted the petition. [00:04:25] Speaker 01: They credited and said there was serious information, long letters. [00:04:30] Speaker 01: I was amazed when I looked at the red, so unusual. [00:04:33] Speaker 01: The government agency immediately says, yes, there's a problem here. [00:04:37] Speaker 01: We have to address it. [00:04:39] Speaker 01: And that's certainly not inconsistent with what 4F says. [00:04:44] Speaker 01: 4F talks about initiating applicable action. [00:04:50] Speaker 01: It doesn't say anything more than initiate applicable action under 5, 6, or 7. [00:04:56] Speaker 01: Those are potential rulemaking proceedings. [00:05:02] Speaker 01: And what the government did here was to initially say, we need to solicit information, which is normally done when you're invoking or may invoke rulemaking, that it's a very normal procedure if you're invoking rulemaking. [00:05:17] Speaker 01: That's what the statute says. [00:05:18] Speaker 01: If you read this, [00:05:20] Speaker 01: heaven forbid statute that goes on and on and on what it is really saying in four five and six if there's something here to worry about you can invoke rulemaking and if you decide not to you should tell us why not but in any event when you invoke rulemaking and it invokes the apa it says follow apa procedures well which is what they what they are doing they are asking for information preceding to making a determination you can't start [00:05:50] Speaker 01: In one moment, the initiation of rulemaking without knowing what it is, you're going to issue a rule over. [00:05:58] Speaker 01: You have to get information to make a determination to narrow it down. [00:06:03] Speaker 01: And then you have all these risk determinations that the statute requires. [00:06:07] Speaker 01: There's so much more to be done. [00:06:10] Speaker 01: Your suggestion that they had to respond to your petition by within 90 days, [00:06:16] Speaker 01: having a rule in place, the statute doesn't say that. [00:06:19] Speaker 01: It absolutely does not state it. [00:06:22] Speaker 01: As far as I just want you to tell you what I'm seeing, as far as I can see, they have not done anything that's inconsistent with the statute at this point. [00:06:32] Speaker 02: Nothing. [00:06:33] Speaker 02: Well, I would respectfully disagree with that. [00:06:39] Speaker 02: The proceeding under which EPA was proceeding was the rulemaking provisions of Section 6. [00:06:49] Speaker 02: The rulemaking provisions of Section 6 are more prescriptive than APA. [00:06:57] Speaker 01: It says initiate applicable action. [00:07:01] Speaker 01: It doesn't say initiate a rulemaking. [00:07:06] Speaker 01: And agencies don't normally initiate a rulemaking without having determined what it is [00:07:13] Speaker 01: that they're going to pursue. [00:07:14] Speaker 01: And so what they did, including all of these statutory provisions here, there are long sections on risk determinations, risk evaluation, which can go on. [00:07:26] Speaker 01: In fact, the statute says in one place, I think it says, take at least 60 or 90 days, maybe even more. [00:07:34] Speaker 01: In other words, it assumes it's going to take time to make the risk determinations of the sort that were to be required in the case of this [00:07:43] Speaker 02: this month. [00:07:44] Speaker 02: Your honor, I think we need to look at what section six says. [00:07:49] Speaker 02: I did. [00:07:50] Speaker 02: Section 61 says very specifically that the agency must propose a rule. [00:07:58] Speaker 01: When? [00:07:58] Speaker 02: Within one year. [00:08:00] Speaker 01: When? [00:08:00] Speaker 02: After making a determination. [00:08:03] Speaker 01: Right, after making a determination. [00:08:04] Speaker 02: Of unreasonable risk. [00:08:07] Speaker 01: After making a determination. [00:08:10] Speaker 01: What they've done now is they've granted you a [00:08:12] Speaker 01: They did make a determination of unreasonableness. [00:08:15] Speaker 01: They made a determination that they had enough information to get started and to take the initiate applicable action. [00:08:24] Speaker 02: But they had all the information that they needed to get started because getting started with a rule simply requires a determination of unreasonable risk. [00:08:35] Speaker 02: And all they need to determine in addition [00:08:39] Speaker 02: is how to eliminate the risk. [00:08:43] Speaker 02: And that is not a big decision. [00:08:46] Speaker 02: It cannot consider economic analysis. [00:08:51] Speaker 02: And it is certainly a decision that could be made within 180 days. [00:08:58] Speaker 06: Is the deadline 180 days? [00:09:01] Speaker 06: But it's one year. [00:09:02] Speaker 06: Do you make the determination of unreasonable risk? [00:09:06] Speaker 06: And that's happened. [00:09:08] Speaker 06: And then once there's a determination of unreasonable risk, then the agency has the three different choices to do. [00:09:16] Speaker 02: Agency has to what? [00:09:17] Speaker 06: It makes a determination of unreasonable risk. [00:09:21] Speaker 01: Oh, no, no, no. [00:09:22] Speaker 01: They may be reasonable cause. [00:09:26] Speaker 01: It's not what you're saying. [00:09:27] Speaker 01: It's they make a determination and may be reasonable basis to conclude. [00:09:31] Speaker 01: They haven't done the risk determination yet. [00:09:35] Speaker 02: Well, they have. [00:09:35] Speaker 01: That's a whole other section of the statute. [00:09:38] Speaker 01: They're not even close to that yet. [00:09:40] Speaker 02: I mean, they made that determination in December 2023 when they issued an order accompanied by a 200-page risk evaluation, which concluded explicitly that these fluorinated containers [00:10:00] Speaker 02: present an unreasonable risk of injury. [00:10:05] Speaker 02: And the obligation I'm referring to while it ties back to Section 4F is the obligation in Section 6C1, which says if the agency has made a determination of unreasonable risk, there must be a proposed rule within a year, full stop. [00:10:29] Speaker 06: I'm just trying to find in the in the addendum here the section six determination language. [00:10:40] Speaker 02: Are you looking in in the statutory addendum? [00:10:45] Speaker 06: Yes, but I think I'm looking in the government statutory addendum. [00:10:51] Speaker 02: Yeah, I think that in the addendum it's on [00:11:06] Speaker 02: Boy, page five of the Addendum, Your Honor. [00:11:12] Speaker 02: under C, promulgation of section 6A. [00:11:15] Speaker 02: And the deadlines. [00:11:17] Speaker 06: If the administrator determines that a chemical substance presents an unreasonable risk of injury to health or the environment in accordance with subsection B, 4A of section 6, which is on 4A. [00:11:34] Speaker 02: That's a good question. [00:11:37] Speaker 06: It's on 4A and it's... [00:11:40] Speaker 02: It's not in the addendum, but basically what it says is that [00:11:51] Speaker 02: EPA, to determine an unreasonable risk, EPA must do a risk evaluation which accomplishes three simple things. [00:12:03] Speaker 02: First, it's got to make the determination of unreasonable risk. [00:12:08] Speaker 02: Second, it can't make that determination on the basis of cost and other non-risk factors. [00:12:18] Speaker 02: Third, [00:12:19] Speaker 02: it needs to examine whether there is a risk to vulnerable populations basically and then finally it must examine the risk under the conditions of use at issue and so [00:12:37] Speaker 02: There are a lot of bells and whistles in Section 6B about what EPA must do in the course of a risk evaluation. [00:12:50] Speaker 02: But the provision in Section 61, which triggers the one-year duty to propose a rule, simply refers to subsection B4A. [00:13:03] Speaker 06: And I think... But B4A of... [00:13:07] Speaker 06: section six, which is just what you were describing, which says, unreasonable risk, don't consider cost or other non-risk factors, and consider exposed or susceptible populations. [00:13:21] Speaker 06: And your view is that that had already happened in connection with the [00:13:29] Speaker 06: the invalidated section five action against Enhance that all of that information was known and being pursued. [00:13:44] Speaker 06: up a dead end under Section 5, and that now, I mean, I guess there's a question when the government has done something in compliance with its obligation either to act under Section 5, Section 6, or Section 7, it acted under Section 5. [00:14:04] Speaker 06: And how do we think about the deadline when the time has run [00:14:10] Speaker 06: they were busy in good faith doing something that turned out not to fulfill their obligation. [00:14:16] Speaker 06: Or let's just say for the moment that that would be our decision, because they do argue that it did fulfill their obligation. [00:14:21] Speaker 06: But now they're moving over to a different way of fulfilling their obligation with respect to a non-new use. [00:14:28] Speaker 06: Right? [00:14:29] Speaker 02: Right. [00:14:29] Speaker 06: And the question is, how do we know, I guess, two things. [00:14:34] Speaker 06: One, [00:14:36] Speaker 06: how to treat the deadline. [00:14:38] Speaker 06: It's supposed to be one year from this finding of unreasonable risk. [00:14:47] Speaker 06: How do we know when is that restarted? [00:14:49] Speaker 06: I mean, that seems like that's an issue of first impression. [00:14:51] Speaker 06: And then the other thing is the information that EPA already has, how do we know how that maps onto the requirements for rulemaking under Section 6? [00:15:04] Speaker 02: Yeah, well, that's a good question. [00:15:07] Speaker 02: I mean, the determination of unreasonable risk and the risk assessment under Section 5 on, I think it was December 1, [00:15:20] Speaker 02: and the risk assessment, your honor, is in the joint appendix. [00:15:29] Speaker 02: It is a very copious, highly scientific, exhaustive, and comprehensive risk evaluation. [00:15:39] Speaker 02: And as I said before, it touches all the bases in subsection B for [00:15:46] Speaker 02: So I think the judgment that Congress made here is that if the agency has made a determination of unreasonable risk that touches those bases, then you don't need to go through the full Section 6B risk evaluation process and comply with all the bells and whistles. [00:16:15] Speaker 02: in Section 6B. [00:16:17] Speaker 02: And the reason for that is EPA has ready-made a determination of unreasonable risk. [00:16:23] Speaker 02: So let's go right to rulemaking. [00:16:25] Speaker 02: And Congress said go right to rulemaking in one year. [00:16:30] Speaker 02: So I think that's where we are. [00:16:32] Speaker 02: And I, to amplify that- Where do you think it says go right to rulemaking in one year? [00:16:40] Speaker 01: It's not in 4F. [00:16:41] Speaker 01: It's what? [00:16:42] Speaker 01: It's not in 4F. [00:16:44] Speaker 02: No, that's my point. [00:16:46] Speaker 02: It's in section six safe. [00:16:49] Speaker 01: And what about the deadlines and, excuse me, the language saying, shall publish in the Federal Register a final rule not later than two years after the date on which the final risk evaluation regarding the chemical substance. [00:17:03] Speaker 01: Where is that provision? [00:17:04] Speaker 06: That's the next provision. [00:17:05] Speaker 06: So he's just looking at that. [00:17:06] Speaker 06: So the proposed rule is not later than one year after the risk evaluation, and then a final rule not later than two years. [00:17:15] Speaker 06: after the final risk evaluation. [00:17:17] Speaker 01: And then goes on to say it can extend the deadlines for not more than two years. [00:17:23] Speaker 02: Well, they could do that. [00:17:24] Speaker 02: But I mean, they haven't done that, Your Honor. [00:17:28] Speaker 02: They haven't extended the deadlines. [00:17:30] Speaker 02: And I think another point, which is very important here, is EPA is not [00:17:38] Speaker 02: repudiating its determination of unreasonable risk. [00:17:43] Speaker 02: It is standing by that determination. [00:17:47] Speaker 02: It is sticking with the science. [00:17:49] Speaker 02: And it's not saying that we need to go back to square one and do. [00:17:55] Speaker 06: I mean, it's not directly saying that. [00:17:57] Speaker 06: Let me ask you to help us out. [00:18:00] Speaker 06: So based on where EPA now stands, [00:18:07] Speaker 06: Do you understand EPA to be obligated to fulfill or meet these deadlines in Section 6? [00:18:18] Speaker 06: Where do you perceive EPA to be in the timeline that Section 6 sets out? [00:18:24] Speaker 02: Well, I would say that it's a one-year deadline from the determination of unreasonable risk, and that was made in December 2023. [00:18:34] Speaker 02: A year later in December 2024, EPA had an obligation to propose the rule. [00:18:43] Speaker 06: Except wasn't it in some of that time litigating, it made the determination in the guise of the new use. [00:18:51] Speaker 06: And so I guess, don't they get some kind of like restart [00:18:57] Speaker 06: for the time reasonably taken to draft a rule. [00:19:02] Speaker 02: Maybe. [00:19:02] Speaker 02: I think that that's an issue for the district court in setting a deadline to comply with the statutory duty. [00:19:13] Speaker 02: Forts, when they do that, they don't hold the agency literally to the deadline in the statute, but they do inquire into the circumstances, and often they give the agency more time to comply than the statutory deadline allows. [00:19:38] Speaker 02: But that [00:19:39] Speaker 06: But I'm really asking you a question about how does the statutory deadline, it's not clear to me one way or the other whether they've missed the statutory deadline, whether they still have some time to meet it, because if they've done this whole frustratingly unsuccessful effort under the new use, [00:19:59] Speaker 06: um provisions now they're kind of back at at square one but obviously they're not at square one for the for the expertise and information gathering reasons that you say so there's you know there's something to be done there about getting into the traces for uh for section six well operation um [00:20:22] Speaker 02: I guess I would say the one-year deadline in Section 6 is explicit and it's mandatory, it's non-discretionary, but I mean... One-year deadline to what? [00:20:36] Speaker 01: Propose a rule? [00:20:37] Speaker 01: To propose a rule. [00:20:39] Speaker 01: After-risk assessment? [00:20:40] Speaker 01: Excuse me, after risk assessment? [00:20:43] Speaker 02: No, no deadline for risk assessment because after the determination of unreasonable risk. [00:20:52] Speaker 06: Yes. [00:20:52] Speaker 06: And so one way to look at it is enhanced was handed down by the Fifth Circuit in March of twenty four. [00:21:00] Speaker 06: So you could say, well, from that time, if EPA is back to square one, I mean, you write that to say, let the district court figure this out. [00:21:08] Speaker 06: And obviously, we're going to ask the government about this. [00:21:11] Speaker 06: But would it be reasonable in your view to say that [00:21:16] Speaker 06: that they should do it as soon as possible, but that under the terms of the statute, the most they should get is a year from March 2024 to turn around and promulgate a rule. [00:21:31] Speaker 06: that or as soon as practicable. [00:21:34] Speaker 02: I think that's a reasonable approach because up until the Fifth Circuit decision, the agency had a reasonable basis to feel that it was complying with Section 4F because it had issued an order and the order banned the fluorination [00:22:00] Speaker 02: of containers, producing PFAS. [00:22:06] Speaker 02: And so the agency had every reason to believe that it could implement a ban based on Section 5 and not on Section 6. [00:22:15] Speaker 02: But that, of course, changed with the Fifth Circuit decision in March of 2024. [00:22:24] Speaker 02: So I think it's reasonable to say, OK, [00:22:28] Speaker 02: At that point, the game changed because Section 5 was out of the picture. [00:22:36] Speaker 02: Section 5 was no longer a basis for regulating fluorinated containers based on the Fifth Circuit decision, but the agency still had [00:22:51] Speaker 02: an outstanding duty. [00:22:53] Speaker 02: And I would say an outstanding duty under both section 4F and section 6C1. [00:23:01] Speaker 02: And so I would say at that point, the clock restarted. [00:23:07] Speaker 06: All right. [00:23:07] Speaker 06: I have a question for you about standing. [00:23:09] Speaker 06: I don't think we have a case where an employee [00:23:15] Speaker 06: is determined to be effectively in the position of a member for purposes of associational or representational standing. [00:23:27] Speaker 06: And I mean, if you had filed the case on behalf of these organizations and also these individuals in their individual capacity, that seems like that would be easier for purposes of standing. [00:23:39] Speaker 02: Well, there are actually a couple of decisions which involve associational standing where the court look to harm to the employee, the staff of the organization as a basis for standing. [00:24:00] Speaker 02: One of those decisions [00:24:03] Speaker 02: I believe was in the district court in this district. [00:24:13] Speaker 02: And let me see. [00:24:21] Speaker 02: It's Air Alliance Houston, the Chemical Safety Hazard Investigation Board. [00:24:30] Speaker 02: It's a 2019 case of the district court. [00:24:36] Speaker 02: And then there's another decision from the district court in Washington. [00:24:43] Speaker 02: It's called Institute of [00:24:46] Speaker 02: Cetacean Research, the Sea Shepherd Conservation Society, and the court said there that employees and volunteers may count as members for purposes of associational standing. [00:25:06] Speaker 02: And then, in the Smith case, in the Ninth Circuit, 2004 case, [00:25:16] Speaker 02: Standing was based on an individual who was actually working on a program that the organization was carrying out. [00:25:29] Speaker 02: So, I don't know that he was an employee, but he was a contractor. [00:25:34] Speaker 02: And it was the potential injury to him that provided a basis for standing. [00:25:41] Speaker 02: And, Your Honor, the government is actually not disputing in this case that the CEH and Peter [00:25:56] Speaker 02: employees who have provided declarations qualify for demonstrating associational standing. [00:26:07] Speaker 02: They say that very explicitly. [00:26:09] Speaker 06: But you know that unlike other issues, [00:26:12] Speaker 06: The fact that they may agree with you does not get this court off the hook in deciding whether they're standing. [00:26:21] Speaker 06: It's something, because it goes to our jurisdiction, it's something that the parties cannot stipulate to or waive. [00:26:28] Speaker 06: And so we still have to decide whether we're satisfied, notwithstanding whether EPA and Enhance are fighting it. [00:26:38] Speaker 06: Whether we think this is a, I mean, it feels to me like a potential broadening. [00:26:43] Speaker 06: I see the analogy where if these folks are, and they say they are, very aligned with the mission of the organization, the organization represents their views. [00:26:57] Speaker 06: They have input into the organization's positions. [00:27:03] Speaker 06: And however you look at it, [00:27:06] Speaker 06: associational or representational standing looks at those factors, so I see that in your favor, but it feels novel to me. [00:27:14] Speaker 02: It's novel, but there's some case law out there. [00:27:16] Speaker 02: This is not an issue of first impression, but I want to make one more point about standing, which is [00:27:28] Speaker 02: the Supreme Court in the Lujan case and then this court in two additional cases made it very clear that when a case is at the pleading stage, which this case is at, [00:27:46] Speaker 02: the judicial responsibility is simply to look at whether the general allegations in the complaint seem to encompass the facts that [00:28:05] Speaker 02: would be necessary to establish standing. [00:28:09] Speaker 02: So this is a fairly low bar. [00:28:12] Speaker 02: It's not predominance of the evidence. [00:28:16] Speaker 02: It's just do the allegations provide a kind of umbrella [00:28:22] Speaker 02: for the trial court to dig deeper and consider the evidence and the facts. [00:28:30] Speaker 02: So I guess what I'm getting to is that if you feel you have an obligation to determine standing in this case, I don't think it needs to be a definitive determination. [00:28:45] Speaker 02: I think it can be based on the general allegations in the complaint and the outcome would be for the district court to dig deeper and wrestle with the standing issue on a more evidentiary basis. [00:29:06] Speaker 03: I'm not sure because [00:29:09] Speaker 03: If you haven't already demonstrated your standards, I think we should dismiss the case. [00:29:22] Speaker 03: It was your burden. [00:29:24] Speaker 02: Well, I think we've met the burden. [00:29:28] Speaker 03: I mean, we've... If you've met the burden, why would we remand to the district court to see if you can meet your burden? [00:29:36] Speaker 02: You've got to remember that the district court really addressed only one issue, which is the adequacy of the remedy. [00:29:46] Speaker 02: And then it found that the case was moved. [00:29:51] Speaker 02: And so standing was not raised or argued or briefed in the district court. [00:30:00] Speaker 02: So it is really an issue for the very first time in this court. [00:30:07] Speaker 02: And that's why we decided in an abundance of caution that we would submit detailed declarations. [00:30:18] Speaker 02: And we also thought there was an argument that under Rule 28A [00:30:24] Speaker 02: of the court's rules, this might be construed as a case reviewing administrative action. [00:30:33] Speaker 02: And so on that basis, we were required to address standing. [00:30:39] Speaker 02: And I think we did, very fulsome life. [00:30:42] Speaker 02: And if the court wants to dig deeply into this issue, which I don't think is needed, then I think the evidence is there to demonstrate standing. [00:30:54] Speaker 01: Tell me does the public petition section of the statute which authorizes. [00:31:03] Speaker 01: The request that the the agency got in the first instance and they responded and got this thing started does that say only an association can file a petition. [00:31:17] Speaker 01: I just can't find the words. [00:31:19] Speaker 01: Well, in other words, the assumption of these questions is you may lose on standing because you're not really showing an association as we require it. [00:31:29] Speaker 01: I'm not sure that section of the statute says it has to be an association or representative group. [00:31:35] Speaker 01: And they say any person. [00:31:38] Speaker 06: It says, it does say any person. [00:31:40] Speaker 01: Well, if you take Allentown Mac and what Justice Scalia said in Allentown Mac, you don't need an association in Allentown Mac. [00:31:47] Speaker 01: You need someone who wanted to river rights as against those who were wanting to use other uses. [00:31:54] Speaker 01: And he said that defined [00:31:57] Speaker 01: the Article III standing question as well as the zone of interest question. [00:32:01] Speaker 01: So that's the reason I'm not, but I'm not sure about that. [00:32:05] Speaker 01: My recollection is that statutory provision, which gets this thing started, which is what EPA responded to initially, said any person. [00:32:15] Speaker 01: So all we need here is a person who has the requisite interest here is within the zone of interest. [00:32:21] Speaker 01: These people seem like they're clearly, I think someone was using the product as I recall, [00:32:29] Speaker 02: Well, if I can offer a few thoughts on that. [00:32:34] Speaker 01: Let me ask you one other thing, if I can, please. [00:32:36] Speaker 01: On the deadlines, tell me what your view is. [00:32:41] Speaker 01: Can you hear me all right? [00:32:43] Speaker 01: Can you hear me OK? [00:32:45] Speaker 01: No, you can't. [00:32:49] Speaker 01: Excuse me. [00:32:51] Speaker 01: Can you all hear me? [00:32:53] Speaker 01: I can hear you. [00:32:53] Speaker 06: Yes, he's hearing. [00:32:54] Speaker 01: No, I understand. [00:32:55] Speaker 01: Can you hear me? [00:32:56] Speaker 01: I think so. [00:32:57] Speaker 01: OK. [00:32:59] Speaker 01: It says in the statute, I'm trying to figure out what you think their failing is. [00:33:04] Speaker 01: It says in the statute that the agency shall propose a rule [00:33:13] Speaker 01: not later than one year after the date on which the final risk of value after the final risk evaluation regarding the chemical substances published. [00:33:23] Speaker 01: So they got a year there. [00:33:24] Speaker 01: You have to have the final risk evaluation and then you've got a year. [00:33:28] Speaker 01: And then it says they can publish in the federal register a final rule not later than two years after the date on which the final risk evaluation is published and may extend the deadlines under this paragraph. [00:33:43] Speaker 01: but not more than two years. [00:33:45] Speaker 01: You're talking about one year as if it's fixed and there's no confusion here. [00:33:50] Speaker 01: I'm not sure how you get there. [00:33:53] Speaker 01: Why do you think, what are you citing that says a final rule has to be set? [00:33:58] Speaker 01: There are other provisions I could point you to as well. [00:34:02] Speaker 01: Don't support your notion that if they don't act following 4F, you seem to be arguing following their determination under 4F. [00:34:13] Speaker 01: They've then got to produce a final rule within one year. [00:34:17] Speaker 01: I don't see it. [00:34:19] Speaker 01: Where is that? [00:34:20] Speaker 01: Well, [00:34:21] Speaker 02: We're not saying that they must issue a final rule. [00:34:25] Speaker 02: Well, then tell me what you are saying. [00:34:27] Speaker 02: Yeah, I think we're saying that they need to issue a proposed rule. [00:34:31] Speaker 02: And the rule that they issue needs to be based on the 2023 risk assessment and per the terms of the statute, six days of the statute. [00:34:45] Speaker 02: It needs to be a rule which eliminates the unreasonable risk. [00:34:48] Speaker 02: So those are the meets and bounds of the proposal. [00:34:52] Speaker 01: They have notice of proposed rulemaking. [00:34:54] Speaker 01: Be precise. [00:34:55] Speaker 01: I'm not sure what you're saying. [00:34:57] Speaker 01: What do you say? [00:34:58] Speaker 01: They have to have done. [00:34:59] Speaker 01: Where did they fail? [00:35:01] Speaker 01: Well, because it looks like [00:35:02] Speaker 01: they were trying to be very responsible. [00:35:05] Speaker 01: They got thrown off by the Fifth Circuit's opinion. [00:35:09] Speaker 01: Let me finish, counsel. [00:35:11] Speaker 01: They got thrown off by the Fifth Circuit's opinion, and so you have to put that in the equation. [00:35:16] Speaker 01: So they were doing what they were supposed to do. [00:35:18] Speaker 01: They answered the public petition that was filed by your folks, [00:35:22] Speaker 01: They answered it in a very responsible way. [00:35:25] Speaker 01: They said, yes, under 4F, we think there's something here. [00:35:29] Speaker 01: We've got to get going. [00:35:30] Speaker 01: OK, now they got the Fifth Circuit interceding with what they had to say. [00:35:36] Speaker 01: I'm trying to understand, where are you looking in the statute? [00:35:39] Speaker 01: You keep saying one year, one year beginning when? [00:35:42] Speaker 02: And one year beginning on December 1, 2023, when EPA made a formal determination of unreasonable risk. [00:35:57] Speaker 01: So you're talking about 4F, it doesn't say that. [00:36:00] Speaker 01: That's not what 4F says. [00:36:03] Speaker 01: Let me just tell you what my concern is so you can answer it. [00:36:08] Speaker 01: 4F says take appropriate action. [00:36:11] Speaker 01: It doesn't say issue a final rule. [00:36:13] Speaker 01: It says take actions under 4, 5, and 6. [00:36:16] Speaker 01: Those actions can include risk determinations, they can conclude setting questions out to parties who have an interest to get their interest, etc. [00:36:26] Speaker 01: Then, once a risk determination has been made, then the rules click in about when a final rule has to be issued. [00:36:35] Speaker 01: And I'm not seeing where you're slotting this in. [00:36:37] Speaker 01: It is not off of 4F. [00:36:39] Speaker 01: 4F does not give you what you want. [00:36:42] Speaker 01: All of the following language in 4, 5, and 6 talk about risk determination and they talk about the issuance of rules. [00:36:49] Speaker 01: 4F does not. [00:36:52] Speaker 02: Well, Your Honor, [00:36:55] Speaker 02: I think there are two aspects of 4F that are important. [00:37:00] Speaker 02: First, there needs to be an applicable action, and it needs to be an action under Section 6. [00:37:08] Speaker 02: And so you look to Section 6 to see what options Congress has given the agency. [00:37:16] Speaker 01: Risk determination. [00:37:19] Speaker 01: That's the first thing that's very clear. [00:37:21] Speaker 01: You got to do a risk determination. [00:37:22] Speaker 01: Well, but they've done that. [00:37:23] Speaker 01: OK, that's what I'm saying. [00:37:24] Speaker 01: But then the statute sets dates by reference to the risk determination, when that is done, when a rule can be issued, how much of an extension you can have in proposing the rule. [00:37:38] Speaker 01: I'm trying to figure out, what if your theory, they fail to do what on when? [00:37:42] Speaker 02: Well, they had, first of all, [00:37:45] Speaker 02: They did not take an applicable action because information collection is nowhere mentioned in Section 6. [00:37:56] Speaker 02: And you need to look to Section 6. [00:37:58] Speaker 01: Section 6 refers to the APA. [00:38:00] Speaker 01: The APA in rulemaking procedures surely contemplates... This has nothing to do with the APA. [00:38:06] Speaker 01: It does have. [00:38:07] Speaker 01: The statute refers to using APA procedures. [00:38:11] Speaker 02: Well, in a very limited way. [00:38:14] Speaker 02: I think the statute has a detailed rulemaking provision of its own, which is very prescriptive. [00:38:23] Speaker 02: And it doesn't say anything about [00:38:26] Speaker 02: information collection. [00:38:28] Speaker 02: What it does say is that there is a mandatory duty to propose a rule within a year after a determination of unreasonable risk. [00:38:39] Speaker 02: So coming back to 4F, we would say, number one, information collection is not an applicable action under section six. [00:38:48] Speaker 02: And number two, we would say it is not an action [00:38:53] Speaker 02: which prevents or reduces the risk to a sufficient extent, which is the second directive in Section 4F. [00:39:04] Speaker 02: An information request is simply [00:39:09] Speaker 02: an information request, it doesn't prevent a risk, it doesn't reduce a risk, it certainly doesn't reduce the risk to a sufficient extent. [00:39:19] Speaker 02: So we would say on this basis, the information request did not meet the plain language of section 4F. [00:39:32] Speaker 02: And we would further go on and say that the only, if you look at the rulemaking provisions of the statute, the only applicable action that the statute calls out is proposing a rule. [00:39:50] Speaker 02: It doesn't say you do information collection and then propose a rule. [00:39:54] Speaker 02: It says you propose a rule. [00:39:57] Speaker 06: Got it. [00:39:57] Speaker 06: Got it. [00:39:58] Speaker 06: I think we got it. [00:39:59] Speaker 02: You got it. [00:40:00] Speaker 02: Okay. [00:40:01] Speaker 02: All right. [00:40:02] Speaker 02: Thank you. [00:40:02] Speaker 06: We'll give you a little bit of time for rebuttal and we will hear now from Mr. Anderson. [00:40:11] Speaker 06: It's the Anderson morning in court. [00:40:14] Speaker 04: No relation. [00:40:19] Speaker 04: Good morning, your honors may have to use the part Christopher Anderson for the EPA. [00:40:23] Speaker 04: I'll get to what I perceived to be the nub of the dispute here, your honor. [00:40:28] Speaker 04: Neither section four F nor section C one required the EPA to propose a rule [00:40:34] Speaker 04: within a year. [00:40:35] Speaker 04: Section 4F says only the EPA has to initiate applicable action under sections 5, 6 or 7. [00:40:40] Speaker 04: EPA did that by requesting information that it needs to complete analyses that are required by section 6 for rulemaking. [00:40:48] Speaker 04: And section C1 doesn't require EPA to issue a rule within a year because section C1 says the EPA must propose a rule within a year of making an unreasonable risk determination under section B4. [00:41:01] Speaker 04: EPA has not made an unreasonable risk determination under section B4. [00:41:06] Speaker 04: My friend is correct. [00:41:07] Speaker 04: That has not been done? [00:41:08] Speaker 04: That has not been done, Your Honor. [00:41:10] Speaker 06: In what respect has it not? [00:41:11] Speaker 06: Because Section 6 requires action as soon as practicable, and it creates a string of consecutive deadlines to make sure that EPA regulates harmful chemicals in a timely manner. [00:41:24] Speaker 06: And what EPA has done so far is a request for comment in the Federal Register. [00:41:29] Speaker 06: Is EPA, in your view, currently obligated to meet any further deadline in Section 6? [00:41:37] Speaker 06: And if so, which deadlines and when? [00:41:40] Speaker 04: Currently, we don't think EPA is obligated to meet any of the specific deadlines in Section 6. [00:41:45] Speaker 06: Why? [00:41:46] Speaker 04: Because those deadlines are triggered by a finding of unreasonable risk, which EPA hasn't yet made under that. [00:41:51] Speaker 06: EPA has made a finding of unreasonable risk about this very process and byproduct. [00:41:56] Speaker 04: So bear with me while I split a hair. [00:41:57] Speaker 06: Yes, in a different procedure. [00:41:58] Speaker 04: Right, so let me split a hair and bear with me. [00:42:01] Speaker 04: It is the same standard, unreasonable risk, it's the same statutory language. [00:42:06] Speaker 04: The Section 6 requires that finding to be supported by different analyses and it requires that it be made through different procedures. [00:42:13] Speaker 04: EPA is currently determining how much additional work it needs to do. [00:42:17] Speaker 04: to translate the finding that it made in the Section 5 proceeding into a Section 6 unreasonable risk determination. [00:42:23] Speaker 04: And EPA hasn't made a determination in that regard at this time. [00:42:26] Speaker 06: But even then, you would be under a deadline, no? [00:42:30] Speaker 04: Yes. [00:42:30] Speaker 04: I think if EPA made an unreasonable risk determination, I would. [00:42:34] Speaker 06: No, no, no. [00:42:34] Speaker 06: But you have an unreasonable risk determination. [00:42:37] Speaker 06: And you're telling, you're in a process of gathering information [00:42:45] Speaker 06: And isn't there like a 3 year window had no information at all. [00:42:51] Speaker 06: I'm looking at. [00:42:58] Speaker 04: Before G. [00:42:59] Speaker 06: Complete a risk evaluation as soon as practicable, but not later than three years after the date on which you initiated the risk evaluation. [00:43:09] Speaker 06: So you're saying you haven't even initiated a risk evaluation? [00:43:12] Speaker 04: So that's an interesting question, Your Honor, that I don't have a firm position on for you today. [00:43:18] Speaker 06: That is not an adequate response. [00:43:21] Speaker 06: I'm sorry. [00:43:23] Speaker 04: As your honor observed, let me explain. [00:43:25] Speaker 04: And I do appreciate your frustration with this. [00:43:28] Speaker 04: And EPA has some frustration with this. [00:43:30] Speaker 04: The statute? [00:43:31] Speaker 04: I can imagine. [00:43:33] Speaker 04: The statute doesn't clearly lay out how EPA proceeds in this unusual factual circumstance, where it's not conducting a section six proceeding through the ordinary process that begins with risk prioritization. [00:43:44] Speaker 04: Instead, it's starting one from a section four F proceeding and from the granting of a section 21 petition, and it has previously done this section five process. [00:43:58] Speaker 04: EPA had granted a petition, the plaintiff's petition for Section 6 proceeding without the previous Section 5 process. [00:44:07] Speaker 04: I don't think there was any question that EPA would have to commence a brand new risk evaluation and proceed with the procedures as they're laid out in the statute. [00:44:15] Speaker 04: In this case, I think EPA would ideally like to be able to do something less than all those procedures that still meet the requirements of section six that relies on the section five process. [00:44:27] Speaker 04: But the statute doesn't say how EPA can do that. [00:44:29] Speaker 04: And EPA is undertaking an analysis of how it can translate that section five finding, what additional work it may have to do to reach a section six finding of unreasonable risk. [00:44:39] Speaker 01: The foundational argument is you can't be in the rulemaking part of six yet [00:44:45] Speaker 01: because you have not done a required risk evaluation. [00:44:50] Speaker 01: That's correct, Your Honor. [00:44:51] Speaker 01: I mean, that's the heart of what your argument is. [00:44:55] Speaker 01: Yes. [00:44:56] Speaker 01: Which really immediately rebuts the claims that are being made here. [00:44:59] Speaker 01: You can't get to the rulemaking part of six and all of what it says, because that all relies on the assumption that risk evaluation has been done. [00:45:10] Speaker 01: Correct, Your Honor. [00:45:10] Speaker 01: And risk evaluation is, as I understand it, as a layperson, [00:45:15] Speaker 01: is not a small procedure. [00:45:17] Speaker 04: It is not a small procedure, Your Honor. [00:45:19] Speaker 04: It has several steps. [00:45:20] Speaker 04: It typically takes years. [00:45:22] Speaker 04: I do want to say, and we put this in our brief, the fact that EPA doesn't think it currently has a date certain deadline under section six doesn't mean the EPA is free to take all the time in the world that it wants. [00:45:34] Speaker 06: That's the thing. [00:45:36] Speaker 06: Why shouldn't we, for example, and I'm not speaking even for myself, let alone for my colleagues, but just as a hypothetical, send it back to the district court to work with the parties to come up with a deadline for this. [00:45:50] Speaker 06: as you say, trying to kind of dovetail or translate the information that EPA has with its forward moving duties under section six. [00:46:01] Speaker 06: I mean, the section six risk evaluation is to come up with [00:46:08] Speaker 06: a determination whether the chemical substance presents an unreasonable risk of injury to health of the environment. [00:46:15] Speaker 06: EPA has made that very determination. [00:46:19] Speaker 06: You know that this manufacturing process produces an unreasonable risk of injury to health of the environment. [00:46:27] Speaker 06: And that's a big part of the work. [00:46:29] Speaker 06: And I understand that there's a few other aspects, but it seems [00:46:33] Speaker 06: unlikely that the statute would afford you no deadlines. [00:46:41] Speaker 06: I can't read the statute to say just because of this, as you say, unusual circumstance, you are off the grid altogether. [00:46:51] Speaker 04: I think the statute doesn't contemplate this specific situation. [00:46:54] Speaker 04: I think that the statute doesn't set specific deadlines, but I think would potentially be applicable is in some other suit, not a non-discretionary duty suit, but in an unreasonable delay suit, certainly a court could look at the statutory deadlines and use those as benchmarks by which to judge whether the agency is being dilatory. [00:47:13] Speaker 06: So the burden is on members of the public, the burden is not on the agency at this point? [00:47:18] Speaker 04: The agency always takes its responsibilities to protect human health and the environment very seriously. [00:47:23] Speaker 04: The question is what can the court order the agency to do and what did Congress say that was the appropriate relief in a citizen suit? [00:47:30] Speaker 03: Would you at least agree that the agency has forward-moving duties under Section 6? [00:47:36] Speaker 04: Absolutely. [00:47:38] Speaker 04: For two reasons. [00:47:39] Speaker 06: Explain what you mean when you say yes and then you can give the two reasons. [00:47:43] Speaker 06: I thought you told me you didn't think it had any particular deadlines. [00:47:48] Speaker 04: EPA has a duty to conclude the section six proceeding within a reasonable time. [00:47:52] Speaker 04: It has that duty for two reasons. [00:47:54] Speaker 04: It has that duty [00:47:55] Speaker 04: because it granted the plaintiff's Section 21 petition, and also because it has opened a docket and said that it is committed to pursuing a rulemaking process. [00:48:07] Speaker 04: EPA believes it is bound to complete that process within a reasonable time. [00:48:11] Speaker 04: But you don't need to take EPA's word for it. [00:48:13] Speaker 04: The Ninth Circuit held that very thing. [00:48:15] Speaker 04: In a case in Ray, a community voice. [00:48:18] Speaker 04: And let me get the citation for you. [00:48:21] Speaker 06: Not under Tosca. [00:48:23] Speaker 04: Yes, Senator Tosca. [00:48:25] Speaker 04: That was 878, F3, 779. [00:48:28] Speaker 04: That's the Ninth Circuit. [00:48:31] Speaker 04: And EP does not contest that it now has a duty to complete the proceeding and to complete it within a reasonable time. [00:48:38] Speaker 04: And so that's just a reasonable time? [00:48:40] Speaker 04: It's just a reasonable time, yes. [00:48:42] Speaker 01: How much can be carried over from what you did that turns out to be only of minimal use that was tangled up with the Fifth Circuit? [00:48:53] Speaker 04: So I think anything that's scientific can be carried over. [00:48:56] Speaker 04: All of the science that EPA did in the risk evaluation. [00:49:00] Speaker 04: Section six requires EPA to consider a broader range of scenarios. [00:49:06] Speaker 04: There might be some additional science that needs to be done. [00:49:10] Speaker 04: EPA's regulations ordinarily require a section six risk evaluation to go through peer review, which the section five risk assessment did not. [00:49:17] Speaker 04: So perhaps EPA will determine that it needs to do that. [00:49:21] Speaker 04: Those are the types of issues that EPA is working out and has not yet made a determination on. [00:49:27] Speaker 06: Tell me what else and where to look in the statute when you say it's different. [00:49:31] Speaker 06: Because Mr. Sussman was saying that the risk evaluation is just unreasonable risk, don't consider cost or other non-risk factors, and examine exposed or susceptible subpopulations. [00:49:47] Speaker 06: Period. [00:49:48] Speaker 06: End of story. [00:49:50] Speaker 04: So a Section 5 risk assessment is specifically for the new use for which the new use notice is made. [00:49:58] Speaker 06: Isn't this rulemaking though about this process, which is the thing that produces the PFAS and this is the only US participant in engaging in that process? [00:50:17] Speaker 06: So I'm just saying the rule is not really substantially broader than the new use. [00:50:24] Speaker 04: You're going to be angry with me, Your Honor, but I have to be honest. [00:50:28] Speaker 04: EPA has not made that determination yet. [00:50:31] Speaker 04: And that's because ordinarily, EPA would not undertake a Section 6 rulemaking for a specific condition of use. [00:50:37] Speaker 04: And so in this case, [00:50:38] Speaker 04: And EPA currently has a rulemaking out right now about the range of scenarios that need to be taken into account in a Section 6 risk evaluation. [00:50:47] Speaker 04: That's a proposed rule, not a final rule. [00:50:49] Speaker 06: Are you going to wait until that's completed to proceed here? [00:50:55] Speaker 04: I have not asked that question, but I don't think so is proceeding with this. [00:51:00] Speaker 06: So when you talk about that, I mean, I'm looking, for example, at the risk evaluation subsection be here under section six. [00:51:08] Speaker 06: Are there provisions I should be looking at to inform what you think? [00:51:12] Speaker 06: you have to do under Section 6 that you did not have to do under Section 5 that can just help us get a grip on what the task is that you believe that the EPA is engaged in? [00:51:24] Speaker 04: Yeah, so Section 6 speaks in terms of needing to evaluate the conditions multiple of use of the substance. [00:51:31] Speaker 04: And so that's the issue that I was just speaking about, whether it needed to be broader. [00:51:34] Speaker 04: But I would also point your honor to EPA's regulations at [00:51:38] Speaker 04: 40 CFR, part 702, subpart B. Those are the regulations. [00:51:43] Speaker 04: Part 702, subpart B. [00:51:50] Speaker 04: Those are the regulations that govern risk evaluations under Section 6. [00:51:54] Speaker 04: EPA is bound by those regulations. [00:51:56] Speaker 04: They provide a number of detailed steps that the agency has to undertake when preparing it. [00:52:00] Speaker 04: And the other two things that I would point out is those regulations ordinarily require Section 6 risk evaluation to undergo peer review. [00:52:08] Speaker 04: And TOSCA itself, Section 6, requires that a Section 6 risk evaluation be published for public comment, which hasn't happened in this case. [00:52:19] Speaker 06: Right. [00:52:19] Speaker 06: And I think that's why there's a year that gives you to do the rule after the... After EPA makes the finding, which I think happens after the risk evaluation has gone for public comment. [00:52:32] Speaker 04: And then EPA makes the decision. [00:52:33] Speaker 06: There's a 4F finding that's been made. [00:52:36] Speaker 06: But the 4F. [00:52:37] Speaker 06: And then there's the section six. [00:52:39] Speaker 01: 4F is just your agreeing that there may be a risk here, that's all. [00:52:45] Speaker 04: That's correct. [00:52:46] Speaker 04: We just agree that there may be information. [00:52:48] Speaker 01: That's not about rulemaking. [00:52:49] Speaker 01: You haven't gotten there yet. [00:52:50] Speaker 04: And just so that I'm perfectly clear, and I don't think it matters for this, we agree that the plaintiffs have alleged that there may be information. [00:52:57] Speaker 04: So on this procedural posture, we don't contest that point. [00:53:00] Speaker 04: But we haven't actually made that finding. [00:53:03] Speaker 06: You're talking about the section 6B4A finding. [00:53:07] Speaker 04: The section 4F. [00:53:08] Speaker 04: 4F. [00:53:09] Speaker 01: Doesn't your letter pretty much say it? [00:53:12] Speaker 04: I think probably, I just want to make sure that I'm clear and not saying the EPA has said things that they haven't. [00:53:18] Speaker 01: What EPA did when it granted the Section 21 petition, I think is essentially fine to the same thing, but it is- It was like, at least to me, it was like you were looking at 4F and, okay, there's a petition, okay, they're right, we should do something. [00:53:30] Speaker 04: Yes, that's correct. [00:53:32] Speaker 06: And it was made with respect to this process as a predicate to the new use petition, the new use order. [00:53:42] Speaker 04: So EPA didn't need to make a 4f finding to initiate the Section 5 process. [00:53:47] Speaker 01: And the Fifth Circuit in that letter, there's a footnote excluding saying this isn't, you're not dealing with the Fifth Circuit problem. [00:53:56] Speaker 01: Correct. [00:54:02] Speaker 04: I appreciate that this is all very complicated and TOSCA is, the overlapping nature of TOSCA makes this more complicated, but I think [00:54:12] Speaker 04: Getting back to what this suit is about, a non-discretionary duty suit under Section 4F. [00:54:18] Speaker 04: EPA has initiated a proceeding under Section 6. [00:54:22] Speaker 04: EPA believes it is obligated legally to conclude that proceeding within a reasonable time. [00:54:27] Speaker 04: And we think that the district court could award no more relief. [00:54:31] Speaker 04: And for that reason, we think the district court was correct in holding that the case is moved. [00:54:36] Speaker 01: Why can't the district court consider with the parties if we remanded it? [00:54:42] Speaker 01: What would be within the realm of reasonableness given that your inquiry under risk determination under five and six are different? [00:54:49] Speaker 04: So I think under this court's precedence here, Club B Thomas, anything that involves EPA's discretion needs to happen in an unreasonable delay suit, which is brought in this court in the first instance and not the district court. [00:55:05] Speaker 04: Thank you, Your Honors. [00:55:06] Speaker 04: We would ask that the district court be affirmed. [00:55:08] Speaker 00: All right. [00:55:08] Speaker 06: Thank you. [00:55:11] Speaker 06: Now we'll hear from Ms. [00:55:12] Speaker 06: Ellsworth. [00:55:16] Speaker 05: Good morning, Your Honors. [00:55:17] Speaker 05: Jessica Ellsworth on behalf of the intervener enhanced technologies. [00:55:22] Speaker 05: The district court was correct here that count one of this complaint is moot and count two is outside the limited waiver of sovereign immunity in the citizen suit petition. [00:55:32] Speaker 05: It could also have held the plaintiff slack standing [00:55:35] Speaker 05: each of these are reasons to affirm. [00:55:37] Speaker 05: I think there is two misunderstandings I want to clear up from some of the discussion that's been happening so far. [00:55:45] Speaker 05: And the first is that the section five finding that underlay the section five orders has been vacated. [00:55:53] Speaker 05: So when your honors are asking questions about can't they just transfer it over, that has been vacated. [00:55:58] Speaker 05: So there is work that would need to be done in that [00:56:01] Speaker 05: Second and relatedly, the Section 6 risk assessment process is very different from what happened under Section 5. [00:56:10] Speaker 05: And you can see this spelled out in Section 6B, which is conveniently not included in the appellant's addendum, but is in the government. [00:56:22] Speaker 05: It sets out the process. [00:56:23] Speaker 05: And among other things, the process differs because it requires first a draft of the risk evaluation [00:56:30] Speaker 05: then an opportunity for notice and comment, and then a final publication. [00:56:35] Speaker 05: And that means that if there are errors that are made, among other things, it gives a company like Enhance an opportunity to weigh in on the draft risk assessment and correct some of those or provide information [00:56:49] Speaker 05: as to the agency before it finalizes it. [00:56:53] Speaker 05: As the government council pointed out, 40 CFR part 702 sets out very specific and detailed requirements for a section 6 risk assessment. [00:57:05] Speaker 05: And one of the things I think is important to keep in mind is that section 5 [00:57:09] Speaker 05: We're supposed to be talking about something that is a new use, a new chemical. [00:57:13] Speaker 05: There is a different analysis when what you have is an existing use. [00:57:18] Speaker 05: And here, the fluorination process has been used back to the early 1980s. [00:57:22] Speaker 05: So you're talking about a different set of factors that go into it. [00:57:27] Speaker 05: And before you can get to the proposed rule, [00:57:29] Speaker 05: which is even farther down the line, there are an additional set of factors that come in related to alternatives, related to cost benefit analysis, related to impact on the national economy, related to all of the positives that come from fluorinating containers. [00:57:46] Speaker 05: The reason fluorination is used is to keep the toxic material in those containers inside it. [00:57:52] Speaker 05: There are actually a lot of reasons under the Clean Air Act and other reasons that it's very good to use fluorination to improve the barrier properties of the product. [00:58:05] Speaker 05: All of these, I think, flow in favor of the fact that under 4F, the agency did everything it was supposed to do when it said we're going to start looking at this. [00:58:16] Speaker 05: It now has a period of time to follow the rules set out in section 6B. [00:58:23] Speaker 05: 6A, 6B, 6C before it could get any further along. [00:58:29] Speaker 05: So for all of those reasons, we think the district court was exactly right. [00:58:32] Speaker 05: That count one is moot. [00:58:34] Speaker 05: I'm happy to address standing or any other questions that your honors have on the section 4F, section 6, section 7 questions. [00:58:47] Speaker 05: Nope. [00:58:47] Speaker 05: If there are no other questions, then we also ask that you affirm the decision below. [00:58:51] Speaker 05: Thank you. [00:59:04] Speaker 02: So I want to come back to a very fundamental point here, which is that EPA has been very clear [00:59:19] Speaker 02: that there are multiple paths that lead to a Section 6 rulemaking. [00:59:26] Speaker 02: It's also been very clear that Section 6 can be triggered by a finding of unreasonable risk, even if [00:59:39] Speaker 02: the agency has not conducted a risk evaluation under Section 6B, which complies with all of the plethora of requirements that government counsel and enhanced counsel are describing. [01:00:02] Speaker 02: So... What's your authority for that? [01:00:06] Speaker 02: Excuse me? [01:00:07] Speaker 06: You say that they can, their obligation for a rulemaking under Section 6 can be triggered by a finding of unreasonable risk that doesn't meet the 6B criteria. [01:00:21] Speaker 06: And I just was asking, where are you finding? [01:00:24] Speaker 02: Well, we cite that in our reply brief. [01:00:29] Speaker 02: And it's a decision that EPA made actually [01:00:34] Speaker 02: on a Section 21 petition in 2023, and they were very explicit there that even though a risk evaluation had not been conducted, the evidence [01:00:50] Speaker 02: amounted to a demonstration of unreasonable risk and therefore enabled the EPA and authorized the EPA and directed the EPA to go right to rulemaking without backing up and conducting the full risk evaluation. [01:01:08] Speaker 02: And there's a court decision in the Northern District of California, which we also cite, which [01:01:17] Speaker 02: says basically the same thing, although the facts are slightly different. [01:01:24] Speaker 02: And what it says is that granting a petition for rulemaking under Section 21 leads directly into the Section 6 rulemaking process. [01:01:38] Speaker 02: It does not require that the agency go back [01:01:42] Speaker 02: and conduct a risk evaluation under Section 6B. [01:01:50] Speaker 02: So I've been focusing on Section 6C, but I also want to direct you to Section 6A, which in a way is the heart of the rulemaking process under Section 6. [01:02:06] Speaker 02: And Section 6A basically says the same thing. [01:02:11] Speaker 02: It says that if EPA has determined an unreasonable risk in accordance with section B for A, then the agency shall conduct rulemaking to address the risk. [01:02:30] Speaker 02: And it goes on and says that the rulemaking must eliminate the unreasonable risk which has been found. [01:02:42] Speaker 06: All right. [01:02:43] Speaker 06: Thank you very much. [01:02:44] Speaker 02: Thank you. [01:02:45] Speaker 02: Thank you very much. [01:02:46] Speaker 06: The case is submitted.