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Case number 24-1151 et al.

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United Steel, Paper and Forestry, Rubber, Manufacturing, Energy, Allied Industrial and Service Workers International Union, AFL-CIO Petitioner versus Environmental Protection Agency.

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Mr. Peterson for the Industry Petitioners and All-In Corporation, Ms.

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Rabinovitz for the Labor Petitioners, Mr. Durkey for the Respondents, Mr. Sagard for the Respondent Interveners,

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Mr. Bellingrad for the rebuttal.

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Good morning.

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Morning.

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So Mr. Peterson.

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Yes.

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It's my understanding that you'll be presenting opening argument on behalf of the industry petitioners and Poland Corporation.

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Is that correct?

[00:00:50] Speaker 03:
Yes, your honor.

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And our thought was I would use seven minutes of our total 10 minutes a lot of time and then council for Poland would do

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the rebuttal.

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We'd reserve our three minutes and he would use it for rebuttal if that's okay with the court.

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That's fine as long as the rebuttal is a true rebuttal and doesn't raise any new arguments.

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Absolutely.

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All right.

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Please proceed.

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Thank you.

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May it please the court.

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My name is Rafe Peterson.

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Remand is appropriate in this case.

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EPA's request meets three basic criteria of this circuit.

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The agencies offered a reasonable explanation for its request.

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The request is not frivolous or in bad faith, and it would not only duly prejudice the nonmoving party.

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First, with regard to the reason explanation, EPA has made clear that it intends to reconsider the 2024 rule in its entirety, including with respect to the issues that are before the court and other issues as well.

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They'll provide for public notice and comment, giving all parties to this case and other parties the opportunity to participate, and they've given a timeline committing to starting the process in June

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and wrapping up in a year.

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The request is not frivolous or in bad faith.

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They've asked to reconsider certain legal and policy priorities, including the four main issues that case here, as well as others.

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And they have not, as the interveners have suggested, manipulating the process.

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They've simply decided to initiate a new rulemaking.

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And a change in administration brought on

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by people casting their votes is a perfectly reasonable basis for an agency to seek a remand of a rule that's currently being considered.

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With the demise of Chevron, we have to give our interpretation of the statutory text and to the extent that

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We do that regardless of what the agency says and what administration the agency.

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is operating under, why shouldn't we, to the extent that there are challenges based purely on statutory interpretation, why shouldn't we just decide those?

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I mean, after all, Congress wanted to set up this system so that these rules could be in place, and they're already way behind.

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Yes, Your Honor.

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Well, I guess at preliminary matter, the Loper-Bright decision didn't displace the standards for remand.

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You know, it stands for the proposition of a standard of review, but there still has to be an agency action to adjudicate.

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There still has to be adversarial parties.

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And with the remand request and, you know, our side agreeing to it, there's essentially no more adversarial proceedings.

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And so, and I would also add that... Disagreement about what the statute means.

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There is a disagreement about what the statute means, but this case goes far beyond simple statutory interpretation.

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Probably the best example.

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You may be right in some policy considerations where the agency allegedly has discretion not within the lobe of right, best reading of the statute.

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Maybe so, and maybe the court would consider we don't have to weigh in on that.

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Regulation has been promulgated and a party has properly raised issues about it, regulated parties.

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It's properly before us.

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It's not a big deal.

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Well, Your Honor, with all due respect, I think it is a big deal in this case because all of the way this rule has worked, there's a lot of these decisions are intertwined.

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And so the agency has said that they're going to go back and take a look at the entire process.

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And so

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What the people who are opposing this remand are really looking for is they say, in their own words, they're looking for guidance on the new rule.

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And they're looking for guidance as to the best reading in order to apply it to shoehorn that into other decisions.

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And we believe that's improper under just the basic criteria of the remand.

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And also, I would say that these aren't purely legal questions.

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The PPE is probably the best example.

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There's multiple parties have a fundamental disagreement about EPA's obligations.

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There's disagreement about the word choices and what it even means.

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There's a disagreement about whether or not it's right for review.

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And also, there's a disagreement about the standard.

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The labor petitioners believe that that question should be looked under.

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You're right.

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That might be one in the category in which the court might say that, especially because it might not be right, you send it back.

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You gave the best example to support the point you're making.

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The other examples, there are a couple of others, where there's straight out statutory interpretation questions and a question as to what the statute means straight up or down.

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Lots of arguments on either side.

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The agency has taken a position and review was sought properly.

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And that's the other way.

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The remand possibilities are not mandatory rules of law.

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They're possibilities, that's all.

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Yep, absolutely, Your Honor, and it is subject to your discretion.

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But in this case, for the purposes of judicial efficiency, all of these decisions are intertwined.

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It's not inefficient for us to give our response to properly challenged legal questions that are before us.

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An agency always has the possibility of starting

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a new notice in rulemaking if they think it's appropriate.

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That's not for us to decide.

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For us to decide is, do we have a case properly before us?

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And if so, decide it and move on.

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Right.

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And we think at this point that for the things that we are arguing that because we're no longer adversarial, there isn't really a case in controversy anymore.

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As briefed by US EPA, when we conceded to the remand, it's dismissed as a practical matter.

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So in that case, anything that would be offered would be akin to an advisory opinion.

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And we also think, you know, for judicial efficiency.

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You're clearly adverse on certain of the issues, counsel.

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You clearly disagree on certain of the legal issues.

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We do.

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But no one has any way to predict what EPA is going to do.

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That's always a problem in administrative law.

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An agency can always decide, well, let's do this or let's do that.

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That's not our concern.

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But they're clearly adverse sides here.

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There's no question about it.

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I just spent lord knows how much time going through all the materials that have been submitted.

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There are strong positions being taken on both sides of several of these issues.

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You're right.

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There are a couple of them that maybe the court in its wisdom would say, no, maybe this isn't right and leave it for a later day.

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But there are several that are straight out legal issues that have been properly raised.

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promulgated by an agency, there's a regulation on the books, there's a statute on the books, and the case is properly before the court.

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Right.

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But I do think there is a risk then of piecemeal review in the sense that the agency is, you know, this is going to be back.

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It's not like it's not going to, it's possibly going to be back before you again.

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But I think the principles of deferring to the agency and letting the agency take another look at this, they've asked to take another look at it.

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Where does this court's authority come from to essentially remand to the agency without vacant or without deciding any of the merits of the case?

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Well, whether or not there's a case in controversy.

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But you're not dismissing your lawsuit.

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You're not seeking dismissal of your lawsuit.

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And the EPA isn't confessing error.

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Correct.

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So what are we doing here?

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Article III court, we have a case before us where industry petitioners have challenged a rulemaking on a number of grounds.

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Where does our authority come from to simply just send the rule back?

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Well, when the agency asks to have a remanded back and we consented to it, or we agreed with it, we're no longer adversarial.

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So there's no longer a case in controversy on the issues that we've been briefing.

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the functional equivalent of having the case dismissed.

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Is it the functional equivalent?

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Because the court is still, I mean, you haven't sought to have the case dismissed, and the EPA hasn't confessed error.

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Right, they haven't confessed error.

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So then I think that just goes back to the typical principles of whether or not they've offered a reasonable explanation, whether or not it's frivolous or in bad faith, and whether or not.

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But I have a question about authority.

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Where in the APA or

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You know, in general principles of the judicial power, do we have the authority to give that remedy?

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Where does it come from?

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Well, your authority to oversee cases and controversies that are before you is the fundamental principle about whether or not this is right.

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But where does the authority come from to give this remedy to not decide a case?

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but to basically just send it back to the agency on a rulemaking, not on an individual adjudication or license or some type of particular private action.

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I mean, you've challenged a generally applicable rulemaking.

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Correct.

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And then it's your fundamental, I mean, under the APA, the fundamental right of the court to review that action.

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We can review it.

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But then we would have to find that it's contrary to law, that it's arbitrary and capricious.

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But you're saying don't make any sort of legal determination.

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Just send this generally applicable rule back.

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Correct.

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You point me to something in the APA that allows us to do that.

[00:10:54] Speaker 03:
I can't, Your Honor.

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I'm sorry.

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I don't think I understand the question.

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Can I ask this specifically with respect to personal protective equipment?

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There's an argument that PPE should not be considered a non-risk factor under the statute, right?

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Correct.

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Then there's another argument that it should not be considered a condition of use under the statute.

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So regardless of what the administration does on remand, whether it keeps the rule, changes the rule, isn't that legal question going to present itself?

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I mean, I guess we have to assume that there will be some party that doesn't like the answer that the agency gives to that question and that they will bring a petition.

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But I mean, isn't that issue going to still be there regardless of what happens on remand?

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I mean, I think that's speculative.

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I mean, we really just don't know.

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I mean, the agency is going to take back the entire rule and it's going to be subject to public notice and comment.

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And they're going to try to come up with a policy.

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I mean, they could find something that would work for both parties, for all I know.

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And I think that's just.

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Yeah.

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I mean, again, I think that's the purposes of the remand is to allow the agency to take a second look at it through public notice and comment.

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And all the parties here will then have their opportunity to present their views.

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And the agency will try to issue an interpretation

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So we really don't know how it's going to be addressed going forward.

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We've had an opportunity for years.

[00:12:56] Speaker 08:
The views, I'd be shocked if there were more views.

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There are an awful lot of views out there.

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At least I've had to wade through an awful lot.

[00:13:05] Speaker 03:
Yeah, I mean, I will agree that this issue has been subject to different levels of review.

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But it's been part of the reason it's been elections.

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And it still is the prerogative of the agency in the first place

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promulgate these regulations and try to address these policy decisions and these interpretations.

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And so we're asking the court to exercise discretion and grant the request for relief and allow them to, you know, an opportunity to figure this out.

[00:13:37] Speaker 06:
My colleagues don't have any further questions on the remand issue.

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Thank you for presenting your argument on that.

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I mean, if you want to pursue it further, that's fine.

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But given the time, why don't you move on to the merits and we'll give you time.

[00:13:58] Speaker 03:
So we have three primary issues.

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And it all goes regarding regulatory framework that is used here.

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But as we've noted in our briefs, they're all intertwined, right?

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The all conditions of use is our first argument.

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And in that, EPA said it will not exclude conditions of use from the scope of risk evaluations, but a fit-for-purpose approach may result in varying types and levels of analysis.

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And we believe that under TOSCA, the EPA has two levels of discretion.

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from the statute.

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And first, the EPA must determine which uses of the chemical fall under the definition of conditions of use, right?

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And then second, they publish the scope of the risk analysis, including the hazardous exposures and conditions of use they expect to consider.

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And we challenge the notion that they will not exclude conditions of use because we believe that was-

[00:14:57] Speaker 08:
First, I'm not sure where you're reading that in the statute.

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The first thing they have to do is to determine whether a chemical substance presents unreasonable risk.

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That's their first responsibility.

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That's the overarching.

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As to measuring it at the possible regulation stage where you would take different uses,

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which is what you seem to be complaining about, they do it.

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They just, apparently not in the order you want, but the statute does not command what you're suggesting.

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The statute says the agency conduct risk evaluations to determine whether a chemical substance presents an unreasonable risk.

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Substance by substance.

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That is not the same as possible uses of that substance, which they do later.

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in their regulations.

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Why is that inconsistent with the statute?

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What words am I missing?

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Conditions of use.

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No, conditions of use talk about, if you read that whole paragraph to determine whether a chemical substance presents an unreasonable risk of injury, blah, blah, blah, under conditions of use comes at the very end after the instruction and direction to the agency has already been given.

[00:16:14] Speaker 08:
And what that is description is just saying

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what will happen at the regulation stage.

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Then we'll figure out how this makes a difference.

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What you're asking for is not missing.

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It just apparently doesn't come at a time that you think it should come.

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And I don't see where the statute requires that.

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Where does the statute say the agency shouldn't determine whether a chemical substance presents an unreasonable risk?

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That's exactly what the statute says.

[00:16:45] Speaker 03:
It should, but the way the statute works is that first they have to, first the agency has to figure out what are the conditions used?

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How is this chemical being used?

[00:16:53] Speaker 08:
That's not exactly, that is not what B4A says.

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So risk evaluations are based under the conditions of use.

[00:17:02] Speaker 08:
That is not what it says.

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And that's further supported by how the scoping.

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Because the scoping is they publish the scope of the risk evaluation to be conducted, including hazards, exposures, conditions of use, and the potentially exposed

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or a susceptible population the administrator expects to consider.

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So then they lay out the uses that they expect to consider.

[00:17:26] Speaker 08:
When we get to a later stage, after they've considered each substance to determine whether, that's a screening.

[00:17:33] Speaker 08:
It's clear what the statute's doing.

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It seems to be consistent with good science to take substance by substance to determine the level of risk.

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As to how you regulate

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That will change, they admit, that may change depending upon different conditions of use.

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But that's at a later stage of the process.

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There's no threat of industry or anyone else being regulated with respect to a condition of use that you can reasonably show.

[00:18:03] Speaker 08:
There isn't any concern here.

[00:18:06] Speaker 08:
And that doesn't change merely because at the beginning, the agency goes substance by substance to determine whether, as the statute says, a chemical substance presents an unreasonable risk.

[00:18:17] Speaker 08:
That's what the statute says.

[00:18:19] Speaker 03:
Well, that actually gets to our second argument.

[00:18:24] Speaker 03:
Because with all due respect, it does.

[00:18:26] Speaker 03:
When they use the whole chemical approach, they put all the conditions of use into one analysis.

[00:18:35] Speaker 03:
That's right.

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If you have 100 safe uses and you have one condition of use that they determine as a risk.

[00:18:41] Speaker 03:
then when they move forward to the next level of analysis, the risk determination, by looking at the chemical substance as presenting a risk, all the things that they know do not present a risk will also have to be considered on the next level.

[00:18:56] Speaker 03:
And that has an effect on our clients because it ends up, they end up having to produce data.

[00:19:01] Speaker 03:
So they're producing all this information and they're spending all this money and they have, and they're, they're essentially being, it's like almost like a kind of like a false determination because

[00:19:11] Speaker 03:
They know that these conditions of use do not pose a risk, but because of this whole chemical approach, they ended up considering them all together as a, quote, substance.

[00:19:21] Speaker 09:
Mr. Peterson, though, that's a good argument for why your second point is a good challenge to the regulation.

[00:19:27] Speaker 09:
But that still doesn't answer why the all conditions of use part, your first argument, shows that the regulation is unlawful.

[00:19:36] Speaker 09:
I guess my question is,

[00:19:39] Speaker 09:
Why isn't the EPA's interpretation under this first challenge at least a permissible reading of the statute?

[00:19:46] Speaker 09:
It may not be the best reading, and there might be other possible readings, but why is the EPA's consideration of all the conditions of use at the risk evaluation stage at least permissible under the statute?

[00:20:00] Speaker 09:
What makes it impermissible, I guess?

[00:20:03] Speaker 03:
Well, I guess what we said is they can move forward and evaluate all conditions of use, right?

[00:20:09] Speaker 03:
We're not disputing that.

[00:20:11] Speaker 03:
It's just that the statute doesn't mandate that they evaluate all conditions of use, as they're suggesting.

[00:20:17] Speaker 09:
It doesn't mandate it.

[00:20:19] Speaker 09:
So is what EPA did permissible?

[00:20:22] Speaker 09:
Because you're saying that what EPA did is contrary to law.

[00:20:25] Speaker 03:
It is, yes.

[00:20:27] Speaker 09:
So how is it contrary to law?

[00:20:28] Speaker 09:
You just said that they

[00:20:31] Speaker 09:
that they're not required to consider all conditions of use, but that's not an argument that it's impermissible for them to consider all conditions of use.

[00:20:39] Speaker 03:
It is permissible for them to consider all, but that isn't what they say.

[00:20:42] Speaker 03:
What they say is they will not exclude conditions of use.

[00:20:46] Speaker 03:
And that's inconsistent with the statute, the plain language of statute and the entire statutory framework where some of these chemicals have hundreds of conditions of use.

[00:20:57] Speaker 03:
And part of what Congress was trying to do

[00:20:59] Speaker 03:
was to speed up this process.

[00:21:01] Speaker 03:
And there's these three-year deadlines on this.

[00:21:04] Speaker 03:
And what this ends up doing is they're almost biting off more than they can chew.

[00:21:09] Speaker 03:
By saying they will not exclude, as they had under the 2017 interpretation of the rule, by saying they cannot exclude all conditions of use, they're tying up their own discretion.

[00:21:20] Speaker 09:
Because again... But what's the difference between saying they won't exclude any conditions of use and saying,

[00:21:27] Speaker 09:
we're going to consider all conditions of use.

[00:21:30] Speaker 09:
Are those the same?

[00:21:31] Speaker 09:
Those are equivalent things.

[00:21:34] Speaker 03:
No, because they're essentially saying they must include all conditions of use.

[00:21:39] Speaker 09:
And that's not in the statute.

[00:21:40] Speaker 09:
They will do that, that they've decided, as part of their discretion, to consider all conditions of use.

[00:21:45] Speaker 09:
That may be bad policy.

[00:21:47] Speaker 09:
It may not make a lot of sense.

[00:21:49] Speaker 09:
Maybe it's arbitrary and capricious.

[00:21:51] Speaker 09:
But I don't see what your argument is, is that that decision is contrary to law.

[00:21:57] Speaker 03:
It's contrary on two ways.

[00:21:59] Speaker 03:
One, again, it's the definition of condition of use as determined by the administrator.

[00:22:05] Speaker 03:
So that gives them discretion where they, and I think EPA agrees on that.

[00:22:09] Speaker 03:
The first step.

[00:22:09] Speaker 09:
That discretion is about whether the administrator decides something is a condition of use.

[00:22:14] Speaker 09:
Exactly.

[00:22:15] Speaker 09:
To begin with.

[00:22:16] Speaker 09:
So EPA is not

[00:22:18] Speaker 09:
affecting that discretion, they're just saying once the administrator has said these say 10 things are condition of use, we will look at all the conditions of use in a risk evaluation.

[00:22:27] Speaker 09:
So that's not eliminating the administrator's discretion to decide what in fact is a condition of use.

[00:22:32] Speaker 03:
It's the second step, right?

[00:22:34] Speaker 03:
It's in the scoping.

[00:22:35] Speaker 03:
So in the scoping, then they're supposed to publish the scope of the risk evaluation and the conditions use they expect to consider.

[00:22:43] Speaker 03:
And if you look at the legislative history,

[00:22:47] Speaker 03:
It's shown that, you know, it makes clear EPA has to make a determination on the condition of use considered in the scope, but the agency is given the discretion to determine the conditions of use the agency will address in the valuation of the priority chemical.

[00:23:01] Speaker 03:
I mean, all of this is about prioritizing risk and that they're supposed to look at the things that pose the greatest potential risk.

[00:23:09] Speaker 03:
And so by including things that the agency has, science, and knows do not pose risk, they're imposing harm upon our clients, imposing its costs, and they're requesting information.

[00:23:23] Speaker 03:
And it's also ensuring that they're not going to meet any of their deadlines, because there's a three-year deadline.

[00:23:27] Speaker 03:
And that's exactly why this law was amended in the first place, because Congress realized they weren't able to get through any of these chemicals.

[00:23:35] Speaker 03:
So this is really all about prioritization

[00:23:38] Speaker 03:
and attempting to focus on the things that raise the greatest potential of risk.

[00:23:42] Speaker 09:
Where in the statute does it talk about that prioritization?

[00:23:46] Speaker 03:
Prioritization is the first step in the process.

[00:23:49] Speaker 03:
So the first step is they're picking the chemicals, 10 or 20 chemicals that are gonna be prioritized for review.

[00:23:55] Speaker 09:
Sure, so once they've decided that, where's the language about the prioritization of particular risks of a chemical that's already been prioritized?

[00:24:05] Speaker 03:
As I was saying, that's in the legislative history.

[00:24:06] Speaker 03:
The legislative history

[00:24:08] Speaker 03:
told them to focus.

[00:24:09] Speaker 09:
But I asked you where it was in the statute.

[00:24:10] Speaker 09:
It's not in the statute.

[00:24:11] Speaker 03:
It's not in the statute, no.

[00:24:12] Speaker 03:
But what is in the statute is scoping.

[00:24:16] Speaker 03:
And we believe that the scoping should be interpreted that they're supposed to, that they're given this authority to exclude conditions of use that they have information on that are not otherwise posing a risk.

[00:24:28] Speaker 03:
And it's pretty simple.

[00:24:30] Speaker 03:
And that's the process.

[00:24:31] Speaker 03:
And that's how it worked.

[00:24:31] Speaker 03:
And I think it's, again, it's going to allow them to meet their deadlines.

[00:24:35] Speaker 03:
And it's part of what Congress envisioned.

[00:24:39] Speaker 03:
And they haven't explained, that was how they interpreted in 2017, and they haven't explained adequately their switch on how they're now making risk determinations, I mean, risk evaluations.

[00:24:52] Speaker 03:
So they haven't justified the change.

[00:24:54] Speaker 03:
All they say is that they just cite to the legislative history, but as we've pointed out, we think the legislative history favors our argument.

[00:25:04] Speaker 03:
And it also affects what you say about any of the other arguments in your brief.

[00:25:09] Speaker 03:
Well, it also affects preemption.

[00:25:10] Speaker 03:
I mean, another big point of this is that if they don't focus on the conditions, preemption is driven by conditions of use.

[00:25:19] Speaker 03:
And preemption is important to the chemical manufacturers, and it's important to the states.

[00:25:24] Speaker 03:
And so again, if they're making findings that a substance, you can't preempt on the basis of a substance.

[00:25:32] Speaker 03:
You can preempt on the basis of uses.

[00:25:34] Speaker 03:
Certain chemicals are safe in a manufacturing process and a closed-loop system that are not safe if used by a homeowner in their basement stripping paint or something.

[00:25:44] Speaker 03:
And preemption is really important to the statute, and it's driven by the decisions made in the risk evaluation stage.

[00:25:53] Speaker 03:
And so I think that's another thing that really supports our argument, that all these decisions should be done, conditions of use,

[00:26:02] Speaker 03:
and not done, the agency does have authority if it's necessary to look at worst case scenarios, et cetera, but it's not, then they just have to describe what they're doing and why.

[00:26:12] Speaker 08:
So you would have wanted the statute to say in B4A, the provision should have said to determine whether a chemical substance presents an unreasonable risk of injury to health or the environment under each condition of use.

[00:26:28] Speaker 08:
That's not what the statute says.

[00:26:31] Speaker 08:
And that's the difference here.

[00:26:33] Speaker 08:
And that's what you're arguing.

[00:26:35] Speaker 08:
You keep ignoring.

[00:26:36] Speaker 08:
I keep reading your brief.

[00:26:38] Speaker 08:
It's really kind of strange, because you skip over the telling parts of the statute that are absolutely inconsistent with what you're arguing.

[00:26:46] Speaker 08:
And what you want is what I just read.

[00:26:49] Speaker 08:
I was trying to figure out.

[00:26:50] Speaker 08:
That's the formulation you wanted, which proves the point.

[00:26:53] Speaker 08:
You didn't get it.

[00:26:54] Speaker 08:
It's not in the statute.

[00:26:56] Speaker 08:
Each is not there.

[00:27:00] Speaker 03:
But the each is done at the scoping level.

[00:27:02] Speaker 08:
No, no, no, no.

[00:27:03] Speaker 08:
You can't disregard the five prior lines in the statutory provision, which says the agency has, is expected to determine whether a chemical substance presents an unreasonable risk.

[00:27:19] Speaker 08:
Under the conditions of use.

[00:27:21] Speaker 08:
They eventually say, that's what you're doing that so you have the material to deal with it when you get to,

[00:27:29] Speaker 08:
the regulation stage to determine whether a particular condition of you should be regulated.

[00:27:35] Speaker 08:
You're not losing what you want, the protection against regulations where there is no real risk.

[00:27:42] Speaker 08:
That's the thing that's so strange about this.

[00:27:44] Speaker 08:
You're getting what you want.

[00:27:45] Speaker 08:
It's just not in the order in which you want it.

[00:27:48] Speaker 03:
Well, I will say that, you know, the importance of the conditions of use is that it lines up all.

[00:27:54] Speaker 03:
It's the only way to look at a chemical.

[00:27:56] Speaker 03:
They look at the chemicals based on, you know, looking back at the definition of how, you know, how they are used.

[00:28:01] Speaker 03:
Is it manufacturing?

[00:28:02] Speaker 08:
That's not the only way to look at a chemical.

[00:28:04] Speaker 08:
You can take a chemical as a whole.

[00:28:06] Speaker 08:
And part of what's going on here is screening.

[00:28:09] Speaker 08:
on certain substances in the way the agency is proposing what the statute requires, you screen out certain substance because you find out no risk.

[00:28:20] Speaker 08:
Absolutely.

[00:28:20] Speaker 08:
OK.

[00:28:21] Speaker 08:
And that is a perfect, not only good approach, as I understand it from science, but it's what the statute says to do.

[00:28:29] Speaker 08:
Take each substance, one by one, determine level of risk.

[00:28:34] Speaker 08:
And some are going to show none.

[00:28:36] Speaker 08:
They're gone.

[00:28:37] Speaker 08:
So they don't even get to the stage where you're thinking about whether or not to regulate and to what extent, which brings in conditions of use.

[00:28:46] Speaker 08:
That's what that last hanging couple of words in the statutory provision is referring to.

[00:28:54] Speaker 08:
When you get to that stage, yes, of course you look at the condition.

[00:28:58] Speaker 03:
But what we're saying is you start at that stage.

[00:29:00] Speaker 03:
Are they manufactured?

[00:29:02] Speaker 03:
Well, it's the only way to have a workable program.

[00:29:05] Speaker 03:
So they start off looking at manufacturing, processing, again, several hundred to a thousand different conditions of use.

[00:29:13] Speaker 03:
They can't just look at them all at once.

[00:29:15] Speaker 03:
A chemical acts differently if it's being used as a pesticide, if it's being used as an additive to a gasoline, or if it's been used in a children's toy.

[00:29:26] Speaker 03:
And each one of those is a

[00:29:28] Speaker 08:
different determination that has to be done by the agency and so you and it eventually is done if and when we get to the stage of regulation where there's a question but the problem is that and what we won't waste time doing at that stage is worrying about substances that they've already determined present no risk of use I mean no

[00:29:49] Speaker 03:
But the real problem with the rule is that they don't articulate what the court is saying here, because when they get to the risk determination, and this is why we have a due process argument, we don't know what they're going to do with that information.

[00:30:02] Speaker 03:
We know, yes, this is not presenting a risk.

[00:30:05] Speaker 08:
I can say for parts of their brief that make it pretty clear that that's what they intend to do at the later stage.

[00:30:11] Speaker 08:
It's plain as day.

[00:30:13] Speaker 03:
It's post hoc.

[00:30:17] Speaker 03:
It's not described in the rule.

[00:30:19] Speaker 03:
And so you're going to end up with a whole chemical where you're having 99 safe uses, one unsafe use, and yet you're going all the way through risk determination on all of the uses when they could have been screened out.

[00:30:31] Speaker 03:
They're meant to be screened out at the scoping stage.

[00:30:34] Speaker 03:
Because they're not posing a risk.

[00:30:36] Speaker 03:
They should focus on the hazards that pose the greatest risk.

[00:30:39] Speaker 03:
And again, it's these different categories of manufactured, processed, distributed, and commerce used or disposed of.

[00:30:46] Speaker 03:
I mean, they use or.

[00:30:48] Speaker 03:
So you're looking at these different uses.

[00:30:50] Speaker 03:
And it has a real impact on the agency, because the agency isn't going to be able to get through these decisions.

[00:30:57] Speaker 03:
And then as we put in our declarations, it has a real impact on our clients, because they're forced to answer

[00:31:05] Speaker 03:
questions and respond to requests for information, et cetera, are costing millions of dollars for conditions of use that pose no risk.

[00:31:12] Speaker 03:
But they are pulled into that process.

[00:31:15] Speaker 03:
And then companies deselect, and you have people thinking, well, if it's a risk, why don't I find another chemical?

[00:31:19] Speaker 03:
So it has this failure to do it at the front end where they're supposed to has real world impacts on the industry.

[00:31:29] Speaker 06:
Are any of the other issues you want to say anything about?

[00:31:34] Speaker 06:
Are you going to rest on the brief?

[00:31:42] Speaker 03:
Just give me one.

[00:31:46] Speaker 03:
Finally, I would add, again, this is not a hazard law.

[00:31:51] Speaker 03:
It's a risk law.

[00:31:52] Speaker 03:
And so the interpretation that is being offered by EPA is treating it more in terms of hazards, not of risks.

[00:31:59] Speaker 03:
The law was written to look very specifically at different risks as are actually the actual conditions of uses.

[00:32:06] Speaker 03:
And when you use the whole chemical approach, you're essentially creating a hazard law.

[00:32:10] Speaker 03:
And there's other agencies that look at that, right?

[00:32:12] Speaker 03:
It's not like these aren't being, and that's part of our argument on usurping the role of OSHA.

[00:32:17] Speaker 03:
They're ending up making decisions that are

[00:32:20] Speaker 03:
looking more of hazards than actual conditions of use.

[00:32:23] Speaker 03:
And that to us is really the core.

[00:32:25] Speaker 03:
Those are the most important words of the statute to us because that's the core of what holds together and drives all the decisions is looking how they're actually manufactured, transported, used.

[00:32:35] Speaker 03:
And each one of those is, and that's how it works too.

[00:32:37] Speaker 03:
I mean, that's how they, you know, they'll have 50 or 100 of these and they compartmentalize them.

[00:32:44] Speaker 09:
I just have one question about your PPE argument.

[00:32:48] Speaker 09:
So the EPA's regulatory language here seems to me, at least arguably, somewhat obscure.

[00:32:55] Speaker 09:
It says EPA will not consider exposure reduction based on assumed use of PPE as part of the risk determination.

[00:33:03] Speaker 09:
And industry petitioners understand that to mean EPA won't assume

[00:33:08] Speaker 09:
that employers are complying with OSHA regulations.

[00:33:13] Speaker 09:
But the actual regulatory language doesn't make any mention of what assumptions are sort of off the table, like whether it's OSHA regs or something else.

[00:33:26] Speaker 09:
So how should we understand this language?

[00:33:30] Speaker 09:
Because industry petitioners assume that this is about

[00:33:36] Speaker 09:
you know, about PPUs under OSHA regulations?

[00:33:39] Speaker 03:
I mean, the way we look at the full, you know, the full sentence, I mean, in a nutshell, I mean, they'll consider any available information that PPU will not work and that there's non-compliance, but they will not consider whether or not it works.

[00:33:53] Speaker 03:
And so they're not willing to consider, I think it is, I'll say it's a clumsily written sentence, but we read it and the way it's been implemented is that they're basically not considering

[00:34:04] Speaker 03:
PPE and risk exposure.

[00:34:07] Speaker 03:
So that is inconsistent, plainly inconsistent with the statute for a number of reasons.

[00:34:12] Speaker 03:
It's best available.

[00:34:15] Speaker 03:
Information that EPA possesses can reasonably generally obtain and synthesize.

[00:34:19] Speaker 03:
So if they're presented that information, it should be considered.

[00:34:23] Speaker 03:
And EPA shall take into consideration hazard and exposure information.

[00:34:27] Speaker 03:
Again, PPE goes to exposure.

[00:34:33] Speaker 03:
And so it really should be a key part.

[00:34:36] Speaker 03:
And it leads to decisions that are, and we give some examples where, because they don't consider PPE and OSHA does, for example, they set limits that are much, much lower and harder to achieve.

[00:34:50] Speaker 03:
Whereas, had they simply used PPE, they would reach a different conclusion.

[00:34:54] Speaker 03:
So they're basically not considering it at all.

[00:34:56] Speaker 06:
But isn't there a sentence later on that same page looking at JA45 in the far right column about midway down, the paragraph that begins with other commentators took issue.

[00:35:14] Speaker 06:
And about seven lines down, they say the proposed change

[00:35:22] Speaker 06:
in this rule is that EPA will not assume use of PPE for purposes of the risk determinants, not that EPA will assume no use of PPE.

[00:35:34] Speaker 06:
Likewise, EPA is not asserting there is widespread noncompliance with OSHA requirements.

[00:35:43] Speaker 03:
Yeah, I think that that language is kind of inconsistent with what they wrote though, right?

[00:35:48] Speaker 03:
Because they say EPA will not consider exposure of risk

[00:35:51] Speaker 03:
Reduction based on assumed use of PPE.

[00:35:53] Speaker 06:
I mean that based for all intents and purposes means they're not considering I mean you could take out the assumed opposed to Say that they meant what they said in one sentence, but You know a few paragraphs later.

[00:36:10] Speaker 03:
They didn't mean what they said and the other sentence well the the regulation that they promulgate it says they will not consider exposure reduction based on those assumed use of PPE and

[00:36:20] Speaker 03:
as part of the risk determination.

[00:36:22] Speaker 03:
And that's also, and we brief this, that's also what they're doing.

[00:36:27] Speaker 03:
They're not using it at that stage of their analysis.

[00:36:30] Speaker 03:
So they've lived up to it.

[00:36:32] Speaker 03:
And again, we think it's arbitrary because they will take into account available information due to the absence of it.

[00:36:42] Speaker 03:
So it's internally inconsistent that they're

[00:36:46] Speaker 03:
And one thing, they respect the fact that they have to take into consideration exposure information given them, but they say a certain category they're not willing to consider.

[00:36:57] Speaker 06:
I mean, why isn't the fair reading of this that the statute requires them to take into account available information and the best science, right?

[00:37:08] Speaker 06:
Shall, yeah.

[00:37:09] Speaker 06:
And why isn't the best reading of that is that we're not going to make assumptions, but where we have information about how PPE is used, because there is data on that, and what compliance rates there are, we're going to take that into account.

[00:37:34] Speaker 06:
Why isn't that what really they're saying?

[00:37:39] Speaker 03:
The reality is that's not how they're interpreting.

[00:37:41] Speaker 03:
They're doing risk evaluations without considering its use and they're setting exposure limits based on it not being used.

[00:37:51] Speaker 03:
And so again, as you pointed out, it's basic information that they normally would have.

[00:37:58] Speaker 03:
Some of these chemicals have been regulated for decades and it pertains to exposure information.

[00:38:03] Speaker 03:
So if they do have this information, I don't know how else you would use it other than

[00:38:08] Speaker 03:
assuming that PPE works.

[00:38:10] Speaker 03:
I mean, the purpose of it is to address exposure, right?

[00:38:14] Speaker 03:
A pair of gloves, a mask, or whatever it is.

[00:38:17] Speaker 03:
And so they're engaging in this kind of strange word game where they're saying, well, we're willing to consider that it's ineffective, but we're not willing to consider that it is effective.

[00:38:30] Speaker 03:
And that's because they won't assume that it reduces exposure.

[00:38:35] Speaker 03:
That's effectiveness.

[00:38:39] Speaker 06:
I mean, OSHA writes violations every day because people don't use PPE.

[00:38:48] Speaker 06:
I love HGTV and other shows of that nature, and I see people cutting countertops and tearing off

[00:39:04] Speaker 06:
walls that probably have lead paint and asbestos in them and all sorts of things and they may have no masks at all one or some sort of a bandana it's not really a problem.

[00:39:16] Speaker 06:
Right.

[00:39:17] Speaker 06:
Well, I mean, we know that there are lots of rules and regulations about what's supposed to happen.

[00:39:23] Speaker 06:
But isn't the EPA trying to regulate here?

[00:39:27] Speaker 06:
And isn't TASCA, the Congress, requiring the EPA to mandate to regulate based on the real world and what we know about PPE use?

[00:39:40] Speaker 06:
And why isn't that essentially what this rule says it's doing?

[00:39:45] Speaker 03:
Well, they are.

[00:39:47] Speaker 03:
They are, because it's the conditions of use.

[00:39:49] Speaker 03:
In your scenario, they would set the events of exposure different for Johnny homeowner tearing out asbestos as opposed to a highly regulated industry that's working with a similar product where the use is mandated.

[00:40:05] Speaker 03:
And they've said in the past that they wouldn't assume non-compliance with OSHA regulations.

[00:40:09] Speaker 03:
So they've said that in the past.

[00:40:11] Speaker 03:
And that's a sound decision.

[00:40:16] Speaker 03:
It's all, again, it all comes back to the conditions of use.

[00:40:21] Speaker 03:
A product that's available to a homeowner would be given a different level, a different assessment of the exposure than to something that's an additive to a gasoline and a closed loop system in a manufacturer in a highly regulated industry.

[00:40:36] Speaker 03:
So they get to that because, again, it's all driven by the conditions of use.

[00:40:40] Speaker 03:
And our point is, in the highly regulated industry,

[00:40:44] Speaker 03:
They're basically saying, we're not going to consider the obvious fact that everybody there is regulated by OSHA and wearing masks or using whatever PPE is supposed to protect against whatever exposure.

[00:40:58] Speaker 03:
But they will, for some reason, consider the absence or ineffective use of it.

[00:41:04] Speaker 03:
And that's contradictory and arbitrary and capricious in the manner of which it's all driven by the same decision of taking into consideration hazard and exposure information.

[00:41:14] Speaker 03:
PPE is at its base exposure information.

[00:41:17] Speaker 03:
And if they have that information, they should deal with it at the risk evaluation level, if it's presented to them.

[00:41:25] Speaker 03:
And they're saying they're not going to consider it because they say they can't assume that it works.

[00:41:29] Speaker 03:
Well, then they're not really, if they can't assume it's going to work, then why consider it?

[00:41:34] Speaker 03:
In that case, it's not being considered at all.

[00:41:37] Speaker 08:
I just want to make sure I understand

[00:41:41] Speaker 08:
full thrust of your argument on the point we were discussing earlier.

[00:41:45] Speaker 08:
Isn't it true that aggregations of various conditions of use may produce different levels of risk?

[00:41:56] Speaker 08:
Yes, and under... If you do it in the way that you're proposing the step, won't you eliminate a full understanding of that if you eliminate a condition of use?

[00:42:09] Speaker 08:
No, absolutely not.

[00:42:10] Speaker 08:
You take it as a whole, you surely will find all of the, you take the substance as a whole and measure its risk.

[00:42:16] Speaker 08:
You have all of that information.

[00:42:19] Speaker 03:
Well, the aggregation is dealt in the information and what the statute says is the agency should describe whether aggregate or sentinel exposures to a chemical substance under the conditions of use were considered and taken into account where relevant the likely duration

[00:42:33] Speaker 03:
So the agency always has the discretion to do that.

[00:42:36] Speaker 03:
We're not saying that they shouldn't do that.

[00:42:39] Speaker 03:
They always should consider these aggregates.

[00:42:41] Speaker 08:
What they've essentially done in following the statute exactly as written is to consider the substance as a whole in the beginning.

[00:42:50] Speaker 08:
And they have all of that information when they get to the regulation stage.

[00:42:55] Speaker 08:
And they look at different conditions of use.

[00:42:58] Speaker 08:
Because as I'm understanding, and I don't think I'm missing it now, your only concern

[00:43:04] Speaker 08:
you might get caught in the regulation stage and have a regulation where the condition of use didn't warrant it.

[00:43:11] Speaker 08:
And the agency has made it absolutely clear, although you're saying it's only me and you didn't see it in their argument, which I don't understand.

[00:43:19] Speaker 08:
They are saying that is absolutely accounted for pursuant to notice and comment to the parties who will know that with each regulation as to specific conditions of use, here's what they're proposing to do.

[00:43:34] Speaker 03:
Well, the problem is they're going to address it at the next stage, right?

[00:43:39] Speaker 08:
Before there's any regulation, which of course is what I was representing industry, I would want that too.

[00:43:46] Speaker 08:
You can't regulate this without making a determination as to whether there's real risk here on conditions of use.

[00:43:52] Speaker 08:
They have said that is exactly what they're intending to do.

[00:43:55] Speaker 08:
But the harm is in the process, right?

[00:43:57] Speaker 08:
So they're ending up... I'll have to hear their response to it.

[00:44:00] Speaker 08:
I'm not getting where your harm is coming from.

[00:44:04] Speaker 08:
if the agency follows a procedure which puts, as the statute says, the termination as to whether the chemical substance presents an unreasonable risk.

[00:44:15] Speaker 08:
That's the direction of the statute.

[00:44:17] Speaker 08:
I don't understand where all the cost is building up if they do that at the front end, and then they consider the conditions of use regulation piece of it.

[00:44:27] Speaker 08:
at the point when they may want to regulate.

[00:44:30] Speaker 03:
Right.

[00:44:30] Speaker 03:
So what happens is, though, then the regulating industry is supposed to provide, is forced to provide data to EPA about all the uses, right?

[00:44:40] Speaker 03:
And they're forced to provide, even those that pose no risk, forced to comment on rules on chemicals that they use in manufacturing.

[00:44:47] Speaker 03:
That's not the answer.

[00:44:49] Speaker 08:
Even those that don't, that's what they're trying to determine.

[00:44:54] Speaker 08:
In measuring the substance, that's what they're doing.

[00:44:57] Speaker 08:
They're trying to determine where might there be problems and where are there none?

[00:45:02] Speaker 08:
And is this a substance with respect to which there are no problems?

[00:45:06] Speaker 08:
And if so, then we're done with that substance.

[00:45:08] Speaker 08:
That's the way the statute's written.

[00:45:11] Speaker 03:
Well, the statute, again, we believe it's not written that way in the sense that the substance, big S, is deemed to pose an unreasonable risk.

[00:45:21] Speaker 03:
you know, regardless of the fact that nine out of 10 of the uses do not pose an unreasonable risk.

[00:45:27] Speaker 03:
Our point is that those should be let out of the process earlier and not have three to five to six years where you're not getting your, it's affecting preemption.

[00:45:37] Speaker 08:
You want to do the last stage first, even though no determination about regulation has been made.

[00:45:42] Speaker 08:
And so my question to you is why would they want to waste the time there?

[00:45:46] Speaker 08:
They just want to understand the substance.

[00:45:48] Speaker 08:
Is there a possible risk here?

[00:45:49] Speaker 08:
They're not saying

[00:45:51] Speaker 08:
that that equals enough risk with respect to every possible condition of use they found, warranting regulation.

[00:46:02] Speaker 03:
Well, the thing is, they were supposed to get through this all in three years, and it's just not possible if they consider every conceivable risk in the scoping stage, every conceivable risk

[00:46:14] Speaker 03:
as they work their way through it and that's the reality of what is happening and it has real impacts and it has market deselection and it also has impacts on preemption because you know if a state you know all these decisions if you say the substance itself

[00:46:31] Speaker 03:
poses an unreasonable risk.

[00:46:33] Speaker 03:
And every single use, even uses that are known to not pose a risk, the preemption follows that.

[00:46:40] Speaker 03:
So every state and everywhere else that it's working, that's going to then drive that decision.

[00:46:45] Speaker 03:
And so it really, that's an important thing to our clients as well.

[00:46:48] Speaker 08:
I can't argue with you there because I don't have the information, but that sounds profoundly ridiculous.

[00:46:55] Speaker 08:
That if I'm in a state and all I see is the first inquiry,

[00:47:00] Speaker 08:
And there's no determination that the agency has made to regulate the condition of use with respect to that substance.

[00:47:07] Speaker 08:
I'm going to go ahead and act with respect to anything, anyway.

[00:47:10] Speaker 08:
That makes no sense.

[00:47:11] Speaker 03:
Well, the way the preemption works is that it's driven by the scope of the risk evaluation.

[00:47:16] Speaker 03:
And so for this period of time, before they get to the regulations, every use is deemed, every use, all 100, 200 of them is deemed a posing risk.

[00:47:27] Speaker 03:
Whereas if they were making the decision earlier, then those uses could continue and it's not preempted.

[00:47:33] Speaker 03:
So that is a big deal to the statute and a big deal.

[00:47:37] Speaker 03:
And that might be one of the biggest effects here is that, again, by not making these decisions as Congress meant at the earlier stages, you're changing really everything.

[00:47:50] Speaker 03:
The way the chemicals are bought and sold and manufactured, you're having parties decide maybe to no longer use that chemical.

[00:47:56] Speaker 03:
Because EPA says the substance poses a risk, even though there's a different risk if it's Judge Wilkins' homeowner's shell versus a chemical manufacturing plant.

[00:48:07] Speaker 03:
I mean, that's why the conditions of use are so important.

[00:48:10] Speaker 03:
It's based on risk evaluation, not something being hazardous.

[00:48:13] Speaker 03:
There's other laws that deal with a chemical being hazardous.

[00:48:17] Speaker 03:
This is supposed to be very focused on the priority chemicals and then the priority, the most important risks, the ones that really pose a hazard.

[00:48:26] Speaker 03:
So they know how to regulate.

[00:48:28] Speaker 08:
So they know how to regulate, right?

[00:48:31] Speaker 08:
That's what this is all being done.

[00:48:32] Speaker 08:
And that decision that is made until they have made an evaluation with respect to the conditions of use where they think there's a threat.

[00:48:40] Speaker 03:
I would say your honor, they did know how to regulate in 2017 because the regulation that they promulgated then was consistent with the statute and they they do their proposal now is is there sort of.

[00:48:53] Speaker 03:
A little bit of martyrdom almost I mean they're taking on.

[00:48:58] Speaker 03:
more work and more analysis than they can possibly handle.

[00:49:01] Speaker 03:
And they're not getting through these regulations.

[00:49:04] Speaker 03:
And the regulations are having the effect that we talked about.

[00:49:09] Speaker 03:
Not using PPE is having these effects with how they're setting exposure ratios.

[00:49:13] Speaker 03:
It's having effect on preemption.

[00:49:15] Speaker 03:
So the concerns we raise are real and occurring.

[00:49:21] Speaker 06:
Thank you.

[00:49:23] Speaker 06:
We'll give you some time.

[00:49:25] Speaker 06:
Well, we'll give you

[00:49:27] Speaker 06:
colleagues and time to rebuttal.

[00:49:30] Speaker 06:
Why don't we hear from, I believe it's the labor petitioners.

[00:49:33] Speaker 06:
Thank you.

[00:49:42] Speaker 02:
Good morning.

[00:49:42] Speaker 02:
I'm here on behalf of the United Steelworkers, the International Association of Machinists and WorkSafe, and our petition is confined to the PPE issue.

[00:49:52] Speaker 09:
So can you start with standing?

[00:49:56] Speaker 09:
Sure.

[00:49:56] Speaker 09:
How have labor petitioners demonstrated standing here?

[00:50:01] Speaker 09:
There are no.

[00:50:03] Speaker 09:
Declarations there are no.

[00:50:07] Speaker 09:
I mean, where's the demonstration of standing that's required by our rules.

[00:50:12] Speaker 02:
The courts rules require that we provide declarations if the standing is not obvious.

[00:50:18] Speaker 02:
We are membership associations by law.

[00:50:21] Speaker 02:
and our members are exposed to these hazardous substances.

[00:50:26] Speaker 02:
And I will say that I've been involved in a number of cases under OSHA where the exposure was at issue and we have never submitted declarations to the court and it's never been questioned.

[00:50:38] Speaker 09:
And we would- Well, that doesn't- Okay.

[00:50:40] Speaker 09:
I mean, that is irrelevant to our independent obligation to assess standing for, as you are seeking different relief from the other petitioners, you have to maintain

[00:50:50] Speaker 02:
I would be happy to submit a declaration tomorrow.

[00:50:54] Speaker 02:
It shows that the steelworkers have members who are exposed.

[00:50:59] Speaker 09:
That's not what our case law says.

[00:51:01] Speaker 09:
Briefs can't serve as evidence of standing.

[00:51:03] Speaker 02:
In the past, we have never had a problem, and we've never been asked to do it, and so we did not do it.

[00:51:11] Speaker 06:
Under our authority, if you are trying to

[00:51:18] Speaker 06:
established associational standing.

[00:51:21] Speaker 06:
We've got to demonstrate either from something that's in the record or by declaration that, you know, you have one or more members of your association who are regulated or harmed or injured by the agency action.

[00:51:42] Speaker 06:
Is there something you can point us to

[00:51:45] Speaker 06:
in the record and that establishes that?

[00:51:49] Speaker 02:
Our comments in the record establish that our members are exposed in various conditions of use and there was a case before the Ninth Circuit on the agency's initial risk evaluation for methylene chloride where the steelworkers put in a declaration and I'd be happy to provide that to the court.

[00:52:11] Speaker 02:
The steelworkers and the machinists represent many employees in manufacturing sectors, particularly the chemical manufacturing sector that are directly regulated under TOSCA.

[00:52:24] Speaker 02:
And we have submitted declarations in many cases that indicate that, and I'd be happy to provide that to the court.

[00:52:32] Speaker 02:
We did not do it in our briefs because we thought it was obvious and not necessary.

[00:52:39] Speaker 02:
I can't pretend we did.

[00:52:42] Speaker 09:
Right.

[00:52:43] Speaker 09:
Your comments are very generic that, I mean, you know, I mean, it seems almost, you know, I'm sure there are workers who are harmed by this rule, but, but that's not.

[00:52:54] Speaker 02:
We have members exposed to virtually every chemical that EPA is, uh, has been considering.

[00:53:02] Speaker 02:
And we have participated in each of those rule makings.

[00:53:09] Speaker 06:
Why don't we move to the merits?

[00:53:11] Speaker 02:
Okay.

[00:53:12] Speaker 02:
Well, we would like, we urge you to decide this case on the merits, and I'd like to start by rebutting some of the things that my colleagues for ACC mentioned.

[00:53:22] Speaker 06:
To the extent that they're on the remand issue, I mean, to the extent that the agency intends to reconsider this rule and it's likely to come out of that looking a lot different than it does now,

[00:53:39] Speaker 06:
and probably more similar to the 2017 rule.

[00:53:44] Speaker 06:
Why isn't this just a big kind of judicial waste of time for us to adjudicate this rule that's not long for this earth?

[00:53:59] Speaker 02:
I would say for two reasons.

[00:54:01] Speaker 02:
First, we and industry take diametrically opposed competing statutory,

[00:54:08] Speaker 02:
offered competing statutory interpretations.

[00:54:11] Speaker 02:
We say they can't consider PPE.

[00:54:14] Speaker 02:
Industry says they must assume PPE use.

[00:54:18] Speaker 02:
Under this court's decision in utility solid waste activities versus EPA, which EPA thoughtfully cited for us in its motion,

[00:54:28] Speaker 02:
This court looked at a number of factors in deciding whether to remand or whether to address the merits.

[00:54:34] Speaker 02:
And one of those factors was whether a statutory interpretation would narrow the scope of the agency's discretion on remand.

[00:54:43] Speaker 02:
And we think that that's what the court ought to do here, because it has a live controversy where the competing statutory interpretations have been fully briefed.

[00:54:52] Speaker 02:
And it would prevent EPA from coming up with a new rule

[00:54:56] Speaker 02:
that is outside the scope of what the statute gives it discretion to consider.

[00:55:05] Speaker 06:
All right.

[00:55:05] Speaker 06:
So on the merits of your PPE argument.

[00:55:08] Speaker 02:
So first I'd like to address the industry argument because of course if they win we lose and vice versa.

[00:55:16] Speaker 02:
So I think there's been a lot of confusion here.

[00:55:19] Speaker 02:
We think it would be reasonable for EPA to assume

[00:55:22] Speaker 02:
compliance with OSHA regulations.

[00:55:24] Speaker 02:
But the fact remains that no OSHA standard requires employers to control toxic chemical exposures at all levels of exposure.

[00:55:34] Speaker 02:
And no OSHA standard permits routine reliance on respirators as a means of compliance, as a means of protecting workers.

[00:55:42] Speaker 02:
Employers are required to comply with OSHA exposure limits not to exceed them.

[00:55:47] Speaker 02:
The levels of exposure of concern to EPA and where it has found unreasonable risk are at least one order of magnitude below any level that OSHA has ever regulated.

[00:56:00] Speaker 09:
Even if OSHA regulations are not as protective,

[00:56:04] Speaker 09:
as you suggest they should be for exposure to workers.

[00:56:08] Speaker 09:
I mean, wouldn't that be part of what EPA would be considering?

[00:56:12] Speaker 09:
They're not considering, they're looking at what the OSHA standards do.

[00:56:17] Speaker 09:
And if they're not addressing the risks efficiently, then EPA can take further action.

[00:56:24] Speaker 09:
So the fact that the OSHA regs might not be sort of as protective as you might want them to be for workers,

[00:56:33] Speaker 09:
really say whether they should be part of EPA's understanding of risk?

[00:56:39] Speaker 02:
Completely agree.

[00:56:40] Speaker 02:
So I'll give you an example.

[00:56:43] Speaker 02:
So the industry, the only regulation that they say EPA has ignored is OSHA's methylene chloride standard, which is what industry cites.

[00:56:52] Speaker 02:
OSHA's methylene chloride standard sets a permissible exposure limit of 25 parts per million.

[00:56:58] Speaker 02:
At that level of exposure, OSHA found that 3.6 per 1,000 workers would continue to get cancer.

[00:57:06] Speaker 02:
It didn't set the exposure limit at 25 because it fully protects workers, but because it would be infeasible for industry to routinely go lower relying on engineering controls.

[00:57:16] Speaker 02:
EPA has found cancer and liver toxicity risks at two parts per million.

[00:57:22] Speaker 02:
OSHA doesn't regulate those risks.

[00:57:25] Speaker 02:
And so this whole debate about compliance with OSHA regulations or noncompliance with OSHA regulations is really sort of beside the point.

[00:57:34] Speaker 02:
Besides the fact, under this court's decision in the United Steelworkers, the original lead case, any OSHA standard, no OSHA standard, sorry, no OSHA standard can routinely rely on respirators all the time.

[00:57:50] Speaker 02:
An OSHA standard that relied solely on respirators would by definition under this court's jurisprudence be infeasible and it would be a standard that OSHA is not authorized to issue.

[00:58:02] Speaker 02:
So we think that this is just sort of a big beside the point.

[00:58:09] Speaker 02:
The second question on our argument, we think that the best available science and the direction that EPA not consider non-risk factors during risk evaluation requires that EPA not take

[00:58:27] Speaker 02:
respirators or PPE into account until the risk management stage.

[00:58:32] Speaker 02:
While TOSCA requires EPA to integrate exposure and hazard information, our argument focuses on how you define employee exposure.

[00:58:43] Speaker 02:
Employee exposure assessment protocols require that exposure be measured without regard to respirators.

[00:58:51] Speaker 02:
For the past 50 years, this long-standing industrial hygiene practice

[00:58:56] Speaker 02:
has been incorporated into every single OSHA standard.

[00:59:00] Speaker 02:
All OSHA compliance measurements and employer measurements taken to comply with OSHA standards do not take respirators into account.

[00:59:09] Speaker 02:
NIOSH follows this practice as well.

[00:59:11] Speaker 02:
All the epidemiology studies describing the health effects of chemicals rely on measurements taken without regard to respirators.

[00:59:20] Speaker 02:
The practice is so pervasive that EPA has adopted the same definition of employee exposure in several risk management standards.

[00:59:29] Speaker 02:
The reason is simple.

[00:59:30] Speaker 02:
You attach a sampling tube inside a respirator's facepiece, you break the seal, meaning it no longer can function the way it was intended.

[00:59:41] Speaker 02:
Against this background, we submit that taking respirators into account is simply not the best available science.

[00:59:49] Speaker 02:
Doing so is unprecedented.

[00:59:52] Speaker 02:
Despite decades of occupational risk assessment practice by various federal agencies, neither EPA nor industry has pointed to a single example of a federal risk evaluation where exposure measurements were reduced by evidence of the absence or ineffective use of respirators.

[01:00:12] Speaker 02:
As NIOSH told EPA, taking respirators into account is not a best practice.

[01:00:19] Speaker 02:
We also believe that TOSCA prohibits EPA from taking non-risk factors into account, that by prohibiting EPA from taking non-risk factors into account, EPA cannot consider respirator use until the risk management stage because it's a method of controlling exposures.

[01:00:39] Speaker 02:
And that's the appropriate point in time

[01:00:42] Speaker 02:
to do so.

[01:00:43] Speaker 02:
And if EPA takes respirators into account and it makes a risk determination based on some fraction of measured exposure, inevitably the agency will either have no duty to protect workers from exposure or its risk management rule will aim to eliminate less risk than really exists.

[01:01:03] Speaker 02:
Either way, taking respirators into account during risk evaluation means mandatory TOSCA rules will provide less protection to workers

[01:01:12] Speaker 02:
than TOSCA requires.

[01:01:15] Speaker 02:
And we're not urging that EPA ignore respirator use.

[01:01:18] Speaker 02:
It is a reasonable means of controlling exposure and it should factor into their risk management decisions.

[01:01:26] Speaker 02:
And so we think the difference here though is subtle but important.

[01:01:34] Speaker 02:
If EPA relies on voluntary respirator use, and again, if OSHA does not require

[01:01:41] Speaker 02:
and employers are providing respirators anyhow, then the respirator use is voluntary.

[01:01:46] Speaker 02:
If they rely on voluntary respirator use to avoid setting mandatory exposure standards, then there is no enforceable limit to protect workers from overexposure.

[01:01:57] Speaker 02:
If EPA takes PPE into account during risk management, it will be required to issue mandatory enforceable standards that protect workers.

[01:02:08] Speaker 02:
In conclusion, EPA is required to rely on the best available science.

[01:02:13] Speaker 02:
The well-settled practice of occupational exposure assessment does not take respirator use into account when measuring exposure.

[01:02:21] Speaker 02:
Both OSHA and NIOSH told EPA it was contrary to the best practice to consider PPE during risk evaluation.

[01:02:29] Speaker 02:
Neither agency does so.

[01:02:31] Speaker 02:
Doing so inherently underestimates risk, and for that reason, it violates EPA's duty to

[01:02:38] Speaker 02:
protect workers from unreasonable risk.

[01:02:42] Speaker 02:
Thank you.

[01:02:43] Speaker 06:
Thank you.

[01:02:50] Speaker 06:
We'll hear from respondent EPA.

[01:02:55] Speaker 07:
Thank you, Your Honor.

[01:02:56] Speaker 07:
And may it please the court, Dan Durkey from the United States Department of Justice.

[01:02:59] Speaker 07:
And with me at council table are Rachel Martinez, also with the Department of Justice, and Derek Gilliam from EPA's Office of General Counsel.

[01:03:07] Speaker 07:
And Your Honor, I'd like to start with Judge Rao's question at the outset about the court's power, the court's authority to issue a remand here.

[01:03:13] Speaker 07:
What we're asking for is the court to stay its hand.

[01:03:16] Speaker 07:
We're asking for the court to hold the case in abeyance while the agency proceeds with its announced intention to undergo reconsideration.

[01:03:23] Speaker 07:
That power stems from the court's inherent authority to manage its docket.

[01:03:26] Speaker 07:
We're not asking the court to take any action on the actual underlying regulation, to vacate it, to uphold it, to adjudicate it in any way.

[01:03:34] Speaker 07:
So the court does have, and I think that's been recognized in the court's precedence when the court grants voluntary remand.

[01:03:39] Speaker 07:
So the source of the power is the court's authority to manage its document.

[01:03:42] Speaker 07:
All we're asking is that the court stay its hand, not make a decision on these issues while the agency undertakes this process.

[01:03:50] Speaker 09:
Where there are still petitioners challenging the lawfulness of a regulation, where in effect, I mean, issuing a remedy, remand without vacator.

[01:04:05] Speaker 07:
Place I disagree with your honor is there.

[01:04:07] Speaker 07:
There's only one potential issue that that could be true and as we explained in our motion.

[01:04:15] Speaker 07:
We don't think the labor petitioners are prejudiced in any way.

[01:04:18] Speaker 07:
There's 4 legal issues 3 of them are brought solely by industry and they're OK with 3 men.

[01:04:23] Speaker 07:
They're saying they're not they don't want to engage.

[01:04:26] Speaker 07:
The PPE issue has both industry and labor.

[01:04:31] Speaker 07:
Within that PPE issue, there's several different, let's say, there's several pasts, there's several flavors.

[01:04:36] Speaker 07:
There's the argument that you just heard about the assumption of whether EPA should assume PPE or not.

[01:04:43] Speaker 07:
We think, as we explained in our brief, we think that is an as-applied challenge.

[01:04:49] Speaker 07:
It's not ripe.

[01:04:50] Speaker 07:
There's no prejudice to any party.

[01:04:51] Speaker 07:
To withhold a decision on that, let EPA take another look at it, see what happens.

[01:04:56] Speaker 07:
It's not a facial challenge.

[01:04:57] Speaker 07:
The one facial challenge potentially is

[01:05:01] Speaker 07:
the labor petitioner's argument that the statute flatly prohibits consideration of PPE.

[01:05:08] Speaker 07:
But on that one, they're also not prejudiced because of the way EPA goes about making its decisions.

[01:05:14] Speaker 09:
I'm not sure the question is one necessarily about prejudice because my question to the industry petitioners is where does the court have the authority?

[01:05:27] Speaker 09:
to issue this relief.

[01:05:29] Speaker 09:
I mean, is the EPA confessing error on the 2024 rule?

[01:05:34] Speaker 01:
No, Your Honor.

[01:05:34] Speaker 09:
Because there are some precedents in which an agency confesses error, and then we vacate and remand the rule sometimes.

[01:05:44] Speaker 09:
I mean, there are a couple of cases.

[01:05:47] Speaker 09:
There's not a lot of reasoning in our case law about why

[01:05:50] Speaker 09:
a remand is appropriate like of course I understand there's a change in administration new administration would like to take a different approach but this case is still here the case is still here and and so so you know what is our authority to simply ignore the case and and effectively issue a remedy without deciding any of the merits

[01:06:14] Speaker 09:
I mean, it seems the government should have some well-developed theory of this, because this is an argument that's being made in a number of cases.

[01:06:21] Speaker 07:
Right.

[01:06:21] Speaker 07:
Well, and because we don't see it as a court issuing remedy, we see it as the court doing what is common to have an abeyance while an agency undertakes rulemaking.

[01:06:31] Speaker 07:
That's not unusual for the court to decide, through its inherent power to manage its document, to stay its hand while the agency undertakes rulemaking.

[01:06:40] Speaker 07:
The only, I think,

[01:06:42] Speaker 07:
the only potential aspect of this.

[01:06:45] Speaker 09:
It's between an abeyance and a remand.

[01:06:47] Speaker 09:
So our cases, I mean, we, of course, can hold a case in abeyance for some limited period of time while the administration reconsiders a rulemaking or something like that.

[01:06:59] Speaker 09:
But our cases are quite clear that we can't do unlimited abeyances, just sort of open-ended abeyances.

[01:07:05] Speaker 09:
And an abeyance keeps the case still here.

[01:07:08] Speaker 09:
But my understanding is what you're seeking is is a remand to the agency, which would eliminate the case from our docket.

[01:07:17] Speaker 09:
Well, perhaps that's a different that is a particular remedy.

[01:07:22] Speaker 09:
And what is what is your theory for why we have the authority to do that?

[01:07:26] Speaker 07:
Well, perhaps it's a terminology problem and not an authority problem, because the only exercise of judicial authority we're asking for is the court to stay its hand.

[01:07:37] Speaker 07:
Because EPA has already announced its decision to go ahead and reconsider.

[01:07:43] Speaker 07:
There's no order necessary to direct the agency that here's a problem.

[01:07:49] Speaker 09:
The agency can engage in a new rulemaking at any time.

[01:07:51] Speaker 07:
Right.

[01:07:52] Speaker 07:
So to join the issue, I think the problem is,

[01:07:56] Speaker 07:
Our position is that, prudentially, the better course is not to make a ruling on these various issues while the agency proceeds.

[01:08:05] Speaker 07:
The agency doesn't need, as you said, the agency doesn't need the court issuing an order to allow it to reconsider.

[01:08:12] Speaker 07:
But, prudentially, we're saying the court shouldn't, it shouldn't happen at the same time.

[01:08:17] Speaker 06:
We say- Isn't the rule in effect, isn't the rule being challenged in effect as we speak?

[01:08:23] Speaker 06:
Yes, and the- And so,

[01:08:27] Speaker 06:
The relief you were asking for, would that affect whether the rule remains in effect?

[01:08:36] Speaker 07:
It would not, Your Honor.

[01:08:38] Speaker 07:
And that's what EPA said in its declaration, was EPA intends to continue to implement the 2024 regulation while it's reconsidering.

[01:08:46] Speaker 07:
There's no change.

[01:08:47] Speaker 07:
There's no need for the court to issue an order on that respect.

[01:08:51] Speaker 07:
The only thing we're asking the court to do is to stay at

[01:08:55] Speaker 07:
Otherwise, the agency proceeding can go forward.

[01:08:58] Speaker 07:
And that's not controversial.

[01:09:00] Speaker 07:
The perhaps more controversial part is, what does the court do while that's happening?

[01:09:05] Speaker 07:
And we're not saying the court has to, of course, stay its hand.

[01:09:08] Speaker 07:
But the court, I think, clearly has discretion to wait.

[01:09:12] Speaker 07:
And here, we've given prudential reasons why it makes sense for the court to wait.

[01:09:15] Speaker 09:
So what is the government seeking?

[01:09:16] Speaker 09:
Are you seeking an abeyance, or are you seeking a remand of the rule?

[01:09:19] Speaker 09:
Because those two things are not the same.

[01:09:22] Speaker 09:
An abeyance holds the case.

[01:09:25] Speaker 09:
while the agency goes forward with new rulemaking.

[01:09:28] Speaker 09:
But the case is still here.

[01:09:30] Speaker 09:
We can lift the abeyance at any time and move to the merits.

[01:09:33] Speaker 09:
A remand, then the case is over here.

[01:09:37] Speaker 09:
And if industry petitioners want to, I don't know, bring some other challenge or labor petitioners, then they would have to come back and institute a new petition, which may be time barred or not, depending on what's happening.

[01:09:49] Speaker 09:
But EPA's position is we're going to continue to enforce the 2024 rule.

[01:09:53] Speaker 09:
So what are you seeking, abeyance or remand?

[01:09:55] Speaker 09:
I'm not sure that those two remedies are consistent.

[01:09:59] Speaker 09:
I'm not sure you can get both.

[01:10:01] Speaker 09:
How do you get both?

[01:10:02] Speaker 07:
Well, two answers.

[01:10:05] Speaker 07:
One, we think this does fit within what the court did in 2018 in the solid waste case.

[01:10:11] Speaker 07:
But if the court today granted the abeyance and did nothing more,

[01:10:17] Speaker 07:
stayed its hands, and we are not going to act until the agency completes its reconsideration.

[01:10:24] Speaker 07:
We have a timeline.

[01:10:26] Speaker 07:
That would satisfy the government.

[01:10:27] Speaker 07:
That would be enough, because the agency has already made its own decision to go ahead and reconsider.

[01:10:33] Speaker 07:
So the exercise that judicial power are asking for is really for the court to stay its hand.

[01:10:39] Speaker 07:
There's nothing.

[01:10:41] Speaker 07:
Remand, in a sense, I think,

[01:10:42] Speaker 07:
We were using the remand, in a sense, to communicate that the agency wants the decision back.

[01:10:50] Speaker 09:
Remand has a technical meaning.

[01:10:53] Speaker 09:
When we remand a rule without vacant or that has a particular meaning, it's not just some sort of atmospheric idea.

[01:10:59] Speaker 07:
Right.

[01:11:00] Speaker 07:
Well, and again, in the 2018 USEFAC decision, that's what happened.

[01:11:04] Speaker 07:
And that's the precedent that we pointed to.

[01:11:07] Speaker 07:
If the court is uncomfortable,

[01:11:11] Speaker 07:
following that, then simply holding the case in abeyance and not making decision until the court has the benefit of EPA's further reasoning, I think would accomplish the same thing.

[01:11:22] Speaker 09:
Can you cite two examples where we've held a case in abeyance on a rulemaking while a new rule was being considered, which could take a year, 18 months, two years?

[01:11:41] Speaker 07:
I can't cite you chapter and verse like docket numbers and those usually end up in unreported orders.

[01:11:48] Speaker 07:
But yeah, I don't think that's unusual for the court to put a case into abeyance while the agency reconsiders.

[01:11:56] Speaker 09:
And do you have examples of that where the underlying rule isn't stayed?

[01:12:00] Speaker 09:
Because sometimes there will be a stay issued on a rule and then abeyance, there's no harm to any parties in the interim.

[01:12:08] Speaker 07:
I think, Your Honor, I think we could provide citations to orders.

[01:12:14] Speaker 07:
They might not be, again, they might not be report decisions.

[01:12:17] Speaker 07:
But I don't think it's unusual to ask the court to hold it, stay its hand, while the agency reconsiders a rule that's not, without faketure.

[01:12:29] Speaker 08:
So we're holding, under your proposal, we would be holding the case as it is being presently presented, in the present posture.

[01:12:37] Speaker 07:
That's right.

[01:12:38] Speaker 07:
And then depending on what happens on reconsideration, the agency issues a new decision.

[01:12:43] Speaker 08:
But on reconsideration, you're liable to make major changes in the rule, right?

[01:12:50] Speaker 08:
So then what have we held?

[01:12:52] Speaker 08:
I'm sorry?

[01:12:53] Speaker 08:
So then what have we held?

[01:12:54] Speaker 08:
What have we gotten now?

[01:12:56] Speaker 08:
You come back and say, we've completely changed the rule.

[01:12:59] Speaker 08:
So the thing you held, could you toss it, please?

[01:13:03] Speaker 08:
Is that what you're imagining?

[01:13:05] Speaker 08:
It depends on what the agency says.

[01:13:06] Speaker 08:
Let's assume that, because that's certainly one distinct possibility here.

[01:13:11] Speaker 08:
For example, if you went with interveners' argument on the determination question under the statute, that's a flat statutory question.

[01:13:23] Speaker 08:
And the agency has already taken a very clear position on how to read the statute.

[01:13:30] Speaker 08:
He's arguing they're wrong.

[01:13:34] Speaker 08:
That statement is wrong.

[01:13:36] Speaker 08:
So if you adopted that, we'd have an entirely new case before us.

[01:13:40] Speaker 07:
We would.

[01:13:41] Speaker 07:
But I think, Your Honor, there's other path to the decision.

[01:13:43] Speaker 07:
There's other possibilities the court shouldn't foreclose.

[01:13:46] Speaker 07:
For example, the question of whether to do single risk determination or to do risk determinations use by use.

[01:13:55] Speaker 07:
The agency might have a third path.

[01:13:57] Speaker 07:
The agency might, on remand, decide that it's perfectly consistent with the best reading of the statute.

[01:14:02] Speaker 07:
to do that on a case-by-case basis and not make a decision in a framework rule, which is what's before the court.

[01:14:10] Speaker 07:
That would kick that underlying legal dispute out of this context and would have to be resolved on a case-by-case basis.

[01:14:20] Speaker 08:
It's a different case than the one we would be holding in advance.

[01:14:25] Speaker 07:
Well, at that point,

[01:14:27] Speaker 07:
At that point, that issue and the other issues, parties would have to evaluate.

[01:14:31] Speaker 08:
You would be saying a couple of years from now, we've gone through all of this and we've changed our mind.

[01:14:36] Speaker 08:
We've altered and we have some new ideas.

[01:14:39] Speaker 08:
So you don't need to hold it in abeyance anymore.

[01:14:43] Speaker 08:
Could you please dismiss it and we'll refile.

[01:14:46] Speaker 08:
And could you set a briefing schedule?

[01:14:47] Speaker 08:
That's what you want.

[01:14:48] Speaker 07:
Well, that is one possible outcome.

[01:14:51] Speaker 08:
And I don't see any other possible outcome unless you're prepared to tell us no, we mostly

[01:14:57] Speaker 08:
except what we've done, we'd just like to read it one more time in case anything occurs to us, but we don't see any major concerns.

[01:15:05] Speaker 07:
Well, I'm definitely not prepared to say that because I don't want to judge what the agency says.

[01:15:09] Speaker 08:
No, and that's why I'm saying the distinct possibility is two to three years from now, we'll come back and say, well, we've reconsidered.

[01:15:16] Speaker 08:
It's a different rule, different rationale, different reasoning, different administration.

[01:15:21] Speaker 08:
And so can you start briefing again?

[01:15:26] Speaker 08:
And why isn't it

[01:15:27] Speaker 08:
Perfectly appropriate approach.

[01:15:30] Speaker 08:
Cases before us, it has been filed, proper challenges, interested parties, agency's position is on record.

[01:15:39] Speaker 08:
For us to side with respect to certain statutory provisions, you're right or wrong in your assumptions.

[01:15:45] Speaker 08:
And then as you go forward and do whatever it is you want to do in a new regulation, you'll have those legal readings in front of you.

[01:15:51] Speaker 08:
And you can set up any framework that you want.

[01:15:54] Speaker 07:
A couple of reasons, Your Honor.

[01:15:55] Speaker 07:
One, the agency has committed to doing it

[01:15:57] Speaker 07:
in a year.

[01:15:58] Speaker 07:
So the time frame, we're not talking two to three years, but putting that aside, the statutory question really hold you to that commitment.

[01:16:08] Speaker 07:
Well, that's the agencies.

[01:16:11] Speaker 08:
That's what the agency reasonably given practice in this area.

[01:16:15] Speaker 08:
We reasonably going to be able to hold you.

[01:16:17] Speaker 08:
We'll see you here next March one.

[01:16:19] Speaker 08:
You really believe that?

[01:16:21] Speaker 07:
It won't be March 1 because there will need to be time for the parties to evaluate what the agency does.

[01:16:25] Speaker 08:
Yeah, exactly.

[01:16:26] Speaker 08:
So we're already into a year and a half, so we're past your year date.

[01:16:30] Speaker 08:
That's not a reasonable supposition.

[01:16:32] Speaker 07:
The other point, Your Honor, is that on three of the four issues, the parties are not, there's no adversity.

[01:16:39] Speaker 07:
The government has not withdrawn its brief.

[01:16:44] Speaker 07:
We're not saying our position is wrong because we're saying,

[01:16:48] Speaker 07:
The agency wants to take another look at it and hasn't formulated a position that's different than confessing error, which we're not doing.

[01:16:57] Speaker 08:
But the court... All we would be doing then, if that's right, is saying, okay, you know, you're right, assuming we're going that way.

[01:17:04] Speaker 08:
You're right.

[01:17:04] Speaker 08:
Now go ahead and do whatever it is you can do with the law now having been clarified.

[01:17:10] Speaker 08:
And let's say, based on your current

[01:17:14] Speaker 08:
supposition, we agree with your interpretation underlying.

[01:17:17] Speaker 08:
Now, if you want to change the frame in a way that's consistent with our best reading of the statute, help yourself.

[01:17:25] Speaker 08:
But why would we waste time doing it otherwise?

[01:17:27] Speaker 08:
You're right.

[01:17:29] Speaker 08:
You have not withdrawn.

[01:17:31] Speaker 08:
The government's position is before us.

[01:17:34] Speaker 08:
And it is a subject of a dispute.

[01:17:36] Speaker 08:
There's no question it's a subject of dispute.

[01:17:38] Speaker 08:
No matter how the industry frames its argument, they are clearly disputing heavily on some critical points that go to the best reading of the statute.

[01:17:49] Speaker 08:
We would resolve that.

[01:17:50] Speaker 08:
Then you can do whatever you want to do.

[01:17:52] Speaker 07:
Well, the place I disagree with, Your Honor, is the government's position is not before you.

[01:17:57] Speaker 07:
I'm sorry.

[01:17:58] Speaker 07:
The government's position is not before you because the government's position is not what's in the brief.

[01:18:03] Speaker 07:
The government's position is that the agency wants to reconsider and that the court... The government's position is before us in the regulation and the support of the regulation.

[01:18:11] Speaker 08:
There's no doubt that's here.

[01:18:14] Speaker 07:
Well, the regulation is definitely on the books, but I think it would mischaracterize the government's position to say that we are arguing our brief.

[01:18:24] Speaker 07:
We are not arguing our brief.

[01:18:25] Speaker 07:
We're saying that that is not the current position.

[01:18:28] Speaker 07:
I don't know what the current position is of this agency, because the agency hasn't had a chance to reconsider.

[01:18:35] Speaker 07:
So that's why we say it's not at first, because the one petitioner that's bringing three of these four issues wants EPA to take another look.

[01:18:44] Speaker 07:
EPA wants to take another look.

[01:18:46] Speaker 07:
So the government's position is not actually before the court.

[01:18:53] Speaker 06:
So let's suppose we grant your motion and hold the case in abeyance.

[01:18:59] Speaker 06:
We stay our hand.

[01:19:00] Speaker 06:
We don't issue an order of remand.

[01:19:03] Speaker 06:
We just hold it in abeyance.

[01:19:07] Speaker 06:
EPA, in about a year, promulgates a new rule.

[01:19:15] Speaker 06:
Someone withstanding challenges that rule.

[01:19:22] Speaker 06:
either from the industry side or the labor side or the environmental side, some side.

[01:19:30] Speaker 06:
What happens then?

[01:19:33] Speaker 06:
Because they have to file a new petition, right?

[01:19:37] Speaker 06:
What happens to these petitions?

[01:19:40] Speaker 06:
We consolidate the new petition with these petitions, then we figure out

[01:19:47] Speaker 06:
which arguments are moot or not or whatever.

[01:19:53] Speaker 06:
How would we proceed?

[01:19:55] Speaker 07:
I think that's right, Your Honor.

[01:19:56] Speaker 07:
And I don't, procedurally, I don't think that's unique.

[01:19:59] Speaker 07:
I think any time a case is in abeyance while the agency is reconsidering and we get a new rule, if the old petitions haven't been dismissed, if, for instance, party challenging it wants to reserve its ability to challenge the 2024 rule, let's say,

[01:20:17] Speaker 07:
2024 rules in effect, there's a 2026 rule.

[01:20:21] Speaker 07:
Party challenging the 2024 rule doesn't want to withdraw its position because what if that 2026 rule is held invalid?

[01:20:29] Speaker 07:
2024 rule comes back.

[01:20:31] Speaker 07:
Party doesn't want to say, well, now I'm out of time.

[01:20:33] Speaker 07:
That's not fair.

[01:20:34] Speaker 07:
Let's keep that challenge in abeyance but live so it can be restarted if necessary.

[01:20:42] Speaker 07:
So the challenges to the 2024 rule, still in the book, still before the court,

[01:20:46] Speaker 07:
It's not doing anything.

[01:20:47] Speaker 07:
We get the 2026 rule.

[01:20:48] Speaker 07:
We evaluate.

[01:20:49] Speaker 07:
Yeah, I think it would be consolidated.

[01:20:51] Speaker 07:
This court seems like the right venue for the new petitions.

[01:20:56] Speaker 07:
And we see what's a live issue and how the various stakeholders play out.

[01:20:59] Speaker 07:
Maybe there's different stakeholders.

[01:21:01] Speaker 07:
Maybe there's not.

[01:21:02] Speaker 07:
Maybe they're on different positions.

[01:21:03] Speaker 07:
We see what the agency's considered opinion is on the statutory questions.

[01:21:08] Speaker 07:
We evaluate the record and go forward.

[01:21:11] Speaker 07:
So that is how I would envision this taking.

[01:21:16] Speaker 07:
However long it takes, that would be the process.

[01:21:20] Speaker 06:
And how should we factor in that Congress put the one-year deadline

[01:21:32] Speaker 06:
In the statute or the administrative to establish by rule of process to conduct risky value.

[01:21:43] Speaker 06:
And they said that, you know, not later than one year after June 22 2016

[01:21:52] Speaker 06:
And if we proceed the way that you would ask us to, we'd be at least a decade after that.

[01:22:04] Speaker 06:
Maybe that's OK for government work, but it seems problematic.

[01:22:09] Speaker 06:
It seems contrary to congressional intent.

[01:22:16] Speaker 07:
The reason I don't think so is because EPA met the deadline.

[01:22:19] Speaker 07:
EPA issued the risk evaluation framework rule back in 2017.

[01:22:25] Speaker 07:
There's nothing in the statute that says that limits EPA's ability to reconsider that to issue a revised framework rule, which is exactly what EPA did in 2024 to do it again in 2026.

[01:22:36] Speaker 07:
The statute has an initial deadline but says nothing about subsequent rule.

[01:22:41] Speaker 07:
revisiting it, a deadline to revisit or timeframe to revisit.

[01:22:45] Speaker 07:
So I don't think we'd be constrained by the statute.

[01:22:47] Speaker 07:
The agency is not constrained by the statute if it wants to revise the framework rule.

[01:22:54] Speaker 06:
But as there have been, I guess, the risk evaluation is the first step, right?

[01:23:07] Speaker 06:
Right.

[01:23:09] Speaker 06:
there are actions that are supposed to take place based on risk evaluation, right?

[01:23:15] Speaker 07:
Right, risk management would be the actual regulating the uses.

[01:23:19] Speaker 06:
And has that occurred yet?

[01:23:24] Speaker 06:
Or has that been stymied by all of the court counts?

[01:23:28] Speaker 07:
EPA has issued risk management rules.

[01:23:31] Speaker 07:
That process is not halted.

[01:23:34] Speaker 07:
EPA has made risk determinations to complete the risk evaluation phase by making a determination and gone on to risk management and has issued risk management rules, some of which are being challenged.

[01:23:46] Speaker 06:
But I guess what I'm trying to understand is then what happens to the current risk management rules while this is held in place?

[01:23:58] Speaker 07:
Well, those would be, while this is held in abeyance and while EPA is reconsidering, EPA has said it will continue applying the 2024 regulation.

[01:24:10] Speaker 07:
So those regulatory actions would continue to play out.

[01:24:14] Speaker 07:
Any litigation would continue to play out.

[01:24:17] Speaker 07:
Once EPA has a 2026 regulation, then in issuing a new regulation, one of the questions EPA will have to answer is, what's the retroactive

[01:24:29] Speaker 07:
What's the applicability of that depending regulatory decisions?

[01:24:34] Speaker 07:
EPA did that in 2024.

[01:24:35] Speaker 07:
There's one part of the 2024 regulation says that it's not retroactive and that EPA is going to apply this 2024 framework to the extent practical to things that had already started.

[01:24:47] Speaker 07:
EPA could decide to do the same thing in a 2026 regulation.

[01:24:51] Speaker 07:
So not only is the substance of the new regulation

[01:24:55] Speaker 07:
unknown because EPA hasn't done that, but how that would affect pending risk evaluations is unknown.

[01:25:01] Speaker 07:
And EPA will have to think about that.

[01:25:04] Speaker 08:
All you're saying that would happen here is that if we don't hold it in abeyance, you get a ruling from the court, the same rules would be in effect to the extent that the court doesn't disagree that there are legal problems with certain other rules.

[01:25:26] Speaker 08:
And if we do hold in abeyance, again, you would continue to apply the existing rules.

[01:25:34] Speaker 08:
So the only thing that would be added, if we go ahead and take a case that's properly before us, is the court's input where we are permitted to have input.

[01:25:46] Speaker 08:
And under LOPA, that would be in the places where there's a best reading of the statute to be offered.

[01:25:51] Speaker 08:
We would offer that.

[01:25:53] Speaker 08:
Otherwise, you'd be doing the same thing, according to you.

[01:25:55] Speaker 08:
The rules would be in effect only changed if our best reading of the statute, say for example, is more consistent with the industry argument than what is on the table right now.

[01:26:07] Speaker 08:
But otherwise you're saying we go ahead with this until three, four, five years from now when there's a new regulation.

[01:26:13] Speaker 08:
You can always start notice and comment rulemaking.

[01:26:16] Speaker 08:
Agencies always do that.

[01:26:17] Speaker 08:
But you're not proposing, there's no justification that you're offering for us not to proceed

[01:26:25] Speaker 08:
to give an answer to the legal challenges that are before us.

[01:26:29] Speaker 08:
I'm just not seeing any answer whatsoever.

[01:26:33] Speaker 08:
It can't be about convenience because you say you're going to enforce the rule the way it is right now.

[01:26:39] Speaker 07:
Well, what we think is missing is if the court proceeds to the statutory questions, it would be without the benefit of the agencies

[01:26:48] Speaker 08:
Interpretation I mean respectfully that is not true the agency on the record is on the record on why it did what it did and I understand what the agency's position is on each one of these issues because they've stated their position in in promulgating the rule that's no mystery to us and That's just not an answer because every time an agency says well, let's have another notice and comment rule-making

[01:27:14] Speaker 08:
That can't be a reason to stop everything, because agencies always have that authority to say, we want to have a new notice and comment rulemaking.

[01:27:21] Speaker 08:
And our approach should be, go ahead, do your thing.

[01:27:24] Speaker 08:
That's not our responsibility.

[01:27:27] Speaker 08:
But if we have a case that's properly before us, and it's raising legal issues that were properly raised, and they're here, and there's nothing to be gained here, because you say we're going to keep going with the same rules.

[01:27:39] Speaker 09:
I just don't get it.

[01:27:43] Speaker 09:
It is the government backing off of its position that there should be a remand of the pool and focusing on bands.

[01:27:51] Speaker 07:
Well, you're right.

[01:27:52] Speaker 07:
I. I think the 2018 use flag decision still supports.

[01:27:58] Speaker 07:
what we asked for, a remand and an abeyance.

[01:28:01] Speaker 07:
I think that's solid precedent for that request.

[01:28:08] Speaker 07:
As I said before, if the court doesn't want to follow that precedent, I think the relief of abeyance would allow EPA to weigh in, which is what we're asking for.

[01:28:19] Speaker 07:
But I'm not, I'm not.

[01:28:21] Speaker 09:
The standards are much more amorphous than the remand standards are.

[01:28:26] Speaker 09:
And I mean, one thing I'm surprised you haven't said is that, I mean, it has been this court's practice to regularly hold rules in abeyance.

[01:28:37] Speaker 09:
after a presidential transition.

[01:28:38] Speaker 09:
They did this when President Biden came in and also when President Trump came in.

[01:28:43] Speaker 09:
We've almost, I mean, overwhelmingly, we have granted those motions for abeyance.

[01:28:48] Speaker 07:
Abeyance, not of the rule, abeyance of the petition.

[01:28:52] Speaker 09:
Abeyance of the petition, but not a remand.

[01:28:55] Speaker 09:
But the abeyance is granted while the agency moves ahead with a new rulemaking.

[01:29:00] Speaker 07:
Well, so we've asked for abeyance, we've asked for abeyance twice, actually.

[01:29:04] Speaker 07:
We asked for abeyance initially,

[01:29:06] Speaker 07:
for the agency to consider whether or not, to decide whether or not it wanted to reconsider, whether this isn't the one it wanted to take a look at.

[01:29:13] Speaker 07:
And now agencies made that decision, and we're saying hold it in abeyance and let the agency do that work.

[01:29:20] Speaker 07:
And again, we think a remand without vacatur to allow the agency to do its work is appropriate and fits within this court's precedence.

[01:29:30] Speaker 09:
But you don't really need that if we hold the petition in abeyance

[01:29:36] Speaker 09:
a new rulemaking.

[01:29:37] Speaker 09:
Do you need a remand?

[01:29:39] Speaker 09:
I mean, the EPA can always move ahead with a new rulemaking, can reconsider its old rules.

[01:29:46] Speaker 09:
What does the remand add to, say, an initial year-long abeyance?

[01:29:54] Speaker 07:
Well, I think that gets into the reasoning behind USWAG and other cases that award that relief.

[01:30:05] Speaker 07:
Again, I think the agency can accomplish what it's asking for without the remand.

[01:30:12] Speaker 07:
I think the remand is not exercising the court's authority in this case, because still, I disagree, Your Honor, that the statutory issues are not properly before the court.

[01:30:25] Speaker 07:
Again, three of the four issues are solely brought by a petitioner that has said they are not interested in proceeding.

[01:30:32] Speaker 07:
The fourth one, as we explained,

[01:30:34] Speaker 07:
It's not ripe.

[01:30:37] Speaker 07:
So I don't think the statutory issues are properly presented.

[01:30:41] Speaker 07:
I think the court prudentially should stay its hand until they are, until the agency has a chance to weigh in.

[01:30:50] Speaker 07:
And given that, I think there's also procedural, there's agency procedural reasons why the court should stay its hand.

[01:30:59] Speaker 07:
It's not just a matter of waiting for the agency to articulate what it feels is the best interpretation for the court to give whatever weight is appropriate.

[01:31:09] Speaker 07:
Notice and comment rulemaking is the best way for the agency to proceed and to do so before the court weighs in.

[01:31:17] Speaker 07:
If notice and rulemaking comment not just on

[01:31:21] Speaker 07:
the merits, the substantive arbitrary and capricious questions that we're talking about, about PPE and things like that.

[01:31:27] Speaker 07:
But on the statutory interpretation, to articulate in the proposal what the agency thinks is the best interpretation, to receive comments, to consider those comments and to present it to the court.

[01:31:37] Speaker 07:
That's a valuable process that the court would be losing if the court went ahead and made a decision based just on the 2020 work.

[01:31:45] Speaker 08:
We wouldn't be losing it, counsel.

[01:31:46] Speaker 07:
You've already gone through it.

[01:31:49] Speaker 08:
It's been done.

[01:31:51] Speaker 08:
I realize that we live in a strange world where change of administration has come to mean enormous things that I'm not entirely clear on, but it's still the same agency, and it's still the same law, and it's still the same public interest.

[01:32:07] Speaker 08:
And so the agency folks who are doing this work, I don't assume that they've all disappeared and that what they've done for the past five or whatever number of years has no meaning.

[01:32:19] Speaker 08:
It's not like the agency has no

[01:32:23] Speaker 08:
Memory, history, legislative history, it's all there.

[01:32:27] Speaker 08:
You've done it.

[01:32:28] Speaker 08:
And so at appropriate time, parties can challenge what you've done.

[01:32:32] Speaker 08:
Because you said, OK, it's ready.

[01:32:34] Speaker 08:
You, the agency, has said it's ready to be challenged.

[01:32:39] Speaker 08:
Because we've done our rulemaking, which the law, which Congress said is the way you do it.

[01:32:46] Speaker 08:
They've challenged it.

[01:32:47] Speaker 08:
It is properly here.

[01:32:49] Speaker 08:
They haven't written anybody so far as I know and say, we have no interest in this.

[01:32:54] Speaker 08:
We do not challenge the agency's position here.

[01:32:58] Speaker 08:
You know, you want to do that.

[01:32:59] Speaker 08:
They want to submit something and say, we do not challenge the agency's interpretation.

[01:33:06] Speaker 08:
That is before the court.

[01:33:07] Speaker 08:
We accept it.

[01:33:08] Speaker 08:
That's a different thing.

[01:33:09] Speaker 08:
They haven't done that.

[01:33:10] Speaker 08:
They're just saying, we'd rather you didn't go ahead.

[01:33:13] Speaker 08:
It'll work in our interests, we think, if you kind of stay your hand and let things sit.

[01:33:18] Speaker 08:
They submitted a piece of paper, signed, and said, we are bowing out.

[01:33:23] Speaker 08:
We concede EPA is correct.

[01:33:26] Speaker 08:
Because EPA is on the record, whether you like that or not.

[01:33:29] Speaker 08:
They are on the record with this regulation.

[01:33:32] Speaker 08:
And if they came in and said, we concede, then you're right.

[01:33:36] Speaker 08:
Then you can go do your rulemaking or whatever it is you want to do.

[01:33:39] Speaker 08:
And the court then could think about a different kind of a case.

[01:33:42] Speaker 08:
That is, well, the one contesting party won, et cetera.

[01:33:46] Speaker 08:
One contesting party said, we can see.

[01:33:48] Speaker 08:
We have no dispute.

[01:33:50] Speaker 08:
They're just saying it's not convenient for us to have a dispute.

[01:33:54] Speaker 08:
So can you take that, Your Honor?

[01:33:56] Speaker 08:
I don't know why we have to do that.

[01:33:58] Speaker 07:
Well, Your Honor, I think the reason is to follow the precedent of the case.

[01:34:02] Speaker 08:
Now, I know what you're saying.

[01:34:03] Speaker 08:
It is not a mandatory rule.

[01:34:05] Speaker 08:
Judge Rao has been raising.

[01:34:07] Speaker 08:
That is not mandatory.

[01:34:08] Speaker 08:
We sit here for a reason.

[01:34:10] Speaker 08:
We're supposed to think this through.

[01:34:12] Speaker 08:
We take it very seriously.

[01:34:14] Speaker 08:
was sitting here wondering why they have not conceded your position.

[01:34:18] Speaker 08:
True, but so they have a dispute.

[01:34:20] Speaker 08:
You know why I know that because they filed and said we disagree and they had the filing didn't say we agree with EPA.

[01:34:28] Speaker 07:
Well, you're right.

[01:34:31] Speaker 07:
I agree.

[01:34:31] Speaker 07:
It's it's it's not a mandatory rule on the court to

[01:34:35] Speaker 07:
to remand or to hold in advance.

[01:34:37] Speaker 07:
It's purely the court's discretion.

[01:34:39] Speaker 07:
But I think this case is all in all fours with the USEWAG case.

[01:34:44] Speaker 07:
That doesn't say, not the USEWAG, you're right, the USEWAG case, the solid waste case doesn't say the court must hold its stay at hand.

[01:34:53] Speaker 07:
But exactly the same facts are present here.

[01:34:55] Speaker 07:
We have industry petitioners that have challenges to a regulation.

[01:35:02] Speaker 07:
They've said they agree with the remand and abeyance, and environmental interveners disagreed.

[01:35:10] Speaker 07:
Labor petitioners didn't weigh in on three of these four issues.

[01:35:13] Speaker 07:
They confirmed that when they stood up here.

[01:35:16] Speaker 07:
So the case is on all fours with USWAG.

[01:35:18] Speaker 07:
Granted, USWAG is not a directive that the court must do, but I don't see a way to distinguish how the court would reach a different action here.

[01:35:28] Speaker 07:
And in fact, there's good reasons why the court should follow the USWAG precedent

[01:35:32] Speaker 07:
And not just hold in advance, but go ahead and read.

[01:35:34] Speaker 07:
What's the good reason?

[01:35:35] Speaker 07:
The good reason is because that the agency, well, because the agency hasn't, I know you disagree with me, but the agency.

[01:35:44] Speaker 08:
I don't know what you're going to say.

[01:35:45] Speaker 08:
What's the good reason?

[01:35:46] Speaker 07:
The agency has, the agency has not articulated its view of the best.

[01:35:51] Speaker 07:
Well, go do it.

[01:35:53] Speaker 07:
You have the right to have noticing comment rulemaking again if you want to.

[01:35:58] Speaker 07:
Go do it.

[01:35:58] Speaker 07:
That's not a reason.

[01:35:59] Speaker 07:
Well, the reason is, Your Honor, we think the court should wait for that.

[01:36:03] Speaker 07:
Why?

[01:36:04] Speaker 07:
Well, the court doesn't have to wait, but that leads to better decision making.

[01:36:08] Speaker 07:
That's consistent with Loper.

[01:36:10] Speaker 07:
Loper didn't remove the agency.

[01:36:12] Speaker 08:
We've gone in circles.

[01:36:13] Speaker 08:
Years and years keep asking.

[01:36:15] Speaker 08:
We're forgetting that Congress said something to start all of this.

[01:36:19] Speaker 08:
They had some requirements.

[01:36:20] Speaker 08:
I don't think they were contemplating

[01:36:22] Speaker 08:
Let's go for a decade, see if we can come up with something.

[01:36:26] Speaker 07:
Well, let me go back to the 2017 regulation where these statutory issues were not joined.

[01:36:37] Speaker 07:
The Ninth Circuit and the Safer Chemicals had this similar issues before it where the question was the challenge to using a single risk determination and the challenge to excluding conditions of use at the scoping stage.

[01:36:50] Speaker 07:
And based on the 2017 regulation, the court said, they're not right.

[01:36:54] Speaker 07:
We're not going to decide.

[01:36:56] Speaker 07:
The agency should be able to make the decision before this court weighs in whether

[01:37:01] Speaker 07:
One possible decision point is maybe we go back to the 2017 regulation framework and don't speak to it.

[01:37:08] Speaker 07:
And in that case, it would be improper for the court to, well, I wouldn't say improper.

[01:37:14] Speaker 07:
The court will have ruled on something which now the agency has taken away and said, that's not our regulation.

[01:37:21] Speaker 08:
Oh, we wouldn't, at least in my mind.

[01:37:23] Speaker 08:
I can't imagine us ruling on anything other than the statutory questions that

[01:37:28] Speaker 07:
But the stats, the Supreme Court has said that should be litigated.

[01:37:33] Speaker 07:
Well, but the statutory questions might no longer be live after the after the remand or after the remand and the agency would take that into account as you're doing a new rulemaking.

[01:37:45] Speaker 08:
You say, well, you know, that's what the court said, but we're doing it a different way.

[01:37:48] Speaker 08:
That's fine.

[01:37:50] Speaker 07:
The court definitely has, again, I'm not denying the court's power to do that, saying the court should stay at hand.

[01:37:55] Speaker 08:
Well, your power to do that.

[01:37:56] Speaker 08:
We would just tell you, given the challenges before us, the agency's position and the challenges to it, here's what we, best reading of the statute is, where that is appropriate.

[01:38:06] Speaker 07:
And that would be it.

[01:38:07] Speaker 07:
Then we're done.

[01:38:08] Speaker 07:
Right.

[01:38:09] Speaker 07:
And the agency's position is the court should wait for the agency to weigh in on that.

[01:38:18] Speaker 07:
In abrogating Chevron, Loper didn't say ignore the agency.

[01:38:22] Speaker 08:
I'm not saying Loper gives us an answer on what we're chatting about now.

[01:38:27] Speaker 08:
They give us an answer with respect to our role when legal challenge is properly enforced.

[01:38:32] Speaker 07:
Right.

[01:38:32] Speaker 07:
And the agency's position is the court should stay at hand in exercising that authority until the agency has a chance to reconsider, weigh in on what the statutory interpretation questions are on the ones that industry is not pressing as well as the one labor is pressing.

[01:38:47] Speaker 07:
And at that point, make a decision, as Judge Wilkins said, after the procedural chips fall.

[01:38:55] Speaker 06:
What's your position on whether we can or A or B, whether we should sever some of these issues, hold some in abeyance, but decide others?

[01:39:13] Speaker 07:
The government's position is that the court should keep the case together and hold and stay its hand on all the issues.

[01:39:21] Speaker 07:
But we recognize that the three issues that industry is the sole petitioner on are require a different analysis than the one issue, the PPE issue.

[01:39:32] Speaker 07:
And we think the outcome is the same on all four of those issues.

[01:39:36] Speaker 07:
And therefore, it's appropriate for the court to stay its hand on all of them.

[01:39:39] Speaker 07:
But the analysis is different because of the one issue we talked about earlier, the statutory question of what does it mean to be a non-risk factor?

[01:39:49] Speaker 07:
Does that include PP or not?

[01:39:51] Speaker 07:
On that one, we say it's not ripe and that the labor petitioners are not injured or not prejudiced if the court stays its hand.

[01:39:59] Speaker 07:
But that's a different analysis than the other three issues where we're saying, well, there's no real adversity.

[01:40:10] Speaker 06:
There's no real adversity because you're no longer defending what was said in your brief.

[01:40:17] Speaker 07:
And because industry petitioners on those three issues are the only petitioners challenging it.

[01:40:22] Speaker 07:
Labor is not challenging that.

[01:40:23] Speaker 07:
And environmental parties are interveners.

[01:40:26] Speaker 07:
And that takes us back to USWAC.

[01:40:28] Speaker 07:
That's exactly what happened in USWAC.

[01:40:30] Speaker 07:
And the court remanded and held in advance.

[01:40:33] Speaker 07:
And that's what we think is the appropriated here.

[01:40:39] Speaker 09:
I just have one quick question.

[01:40:40] Speaker 09:
Is the government's understanding is that Loper-Brite does not change this court's traditional discretion over abeyance?

[01:40:53] Speaker 09:
Is that correct?

[01:40:54] Speaker 01:
Yeah.

[01:40:54] Speaker 09:
That Loper-Brite does not affect our ability to grant abeyance when there are statutory questions raised?

[01:41:03] Speaker 07:
Right.

[01:41:04] Speaker 07:
Loper-Brite, Loper-Brite on its face doesn't talk about that.

[01:41:07] Speaker 07:
No, of course.

[01:41:08] Speaker 07:
And I think it doesn't affect it because Loper-Brite, well, environmental interveners, when they stand up, they might make this argument because it's in their brief.

[01:41:16] Speaker 07:
They say the court should interpret statutes as if the agency wasn't here.

[01:41:21] Speaker 07:
We think that's not right.

[01:41:22] Speaker 07:
We think that's a misreading of Loper.

[01:41:23] Speaker 07:
There's still a role for the executive's view for the court to consider.

[01:41:29] Speaker 07:
It's not binding, obviously, on the court.

[01:41:31] Speaker 07:
But there's a role for the executive agency's statutory interpretation.

[01:41:36] Speaker 07:
So because of that, I think LOPR doesn't disturb these traditional practices and the ability of the court to remand pending the agency's view on statutory interpretation.

[01:41:48] Speaker 07:
If environmental provisions are right and LOPR just completely cut out the executive,

[01:41:52] Speaker 07:
then I could see an argument why there wouldn't be a reasonable way.

[01:41:55] Speaker 09:
Well, it's not just cutting out the executive.

[01:41:56] Speaker 09:
It's also an argument that it affects our discretion to hold a case in abeyance.

[01:42:03] Speaker 09:
There's an Article II question.

[01:42:07] Speaker 09:
There's also an Article III question.

[01:42:10] Speaker 09:
And your argument is that it doesn't change either the Article II involvement or the Article III discretion to hold an abeyance.

[01:42:17] Speaker 07:
Right.

[01:42:18] Speaker 07:
I think the Article III, there's still respect to the executive branch.

[01:42:21] Speaker 07:
court should wait and get the implementing agency's considered decision.

[01:42:28] Speaker 07:
On the Article 3 side, the court clearly has the power to make the statutory interpretation.

[01:42:33] Speaker 07:
Like Judge Edwards said, we're not saying you can't do it.

[01:42:36] Speaker 07:
We're saying you should stay your hand and not do it and wait because of the Article 2 concerns.

[01:42:43] Speaker 06:
Thank you, Your Honor.

[01:42:44] Speaker 06:
All right.

[01:42:45] Speaker 06:
Thank you.

[01:42:49] Speaker 06:
We will now hear from council for respondent intervening.

[01:43:05] Speaker 05:
Good morning, your honors.

[01:43:06] Speaker 05:
My name is Tosh Sager on behalf of the respondent interveners in support of EPA's final rule governing this risk evaluations.

[01:43:14] Speaker 05:
On remand, I think you heard EPA and industry say that this is

[01:43:19] Speaker 05:
is not mandatory.

[01:43:21] Speaker 05:
It's discretionary and prudential.

[01:43:23] Speaker 05:
Our view is that after Loper Bray, it makes little sense to remand statutory issues back to the agency, whereas here, it would be their third bite at the apple.

[01:43:34] Speaker 05:
In those circumstances, right, you've heard from the agency, you have their briefs, giving them another shot, I don't think would inform your consideration of the issues.

[01:43:45] Speaker 06:
Cooper Bright says we give due respect to executive views, right, and agency views.

[01:43:52] Speaker 05:
relative to the consistency of the agency's interpretation here, it would be their third switch if they were to take a new view.

[01:43:59] Speaker 06:
And so I don't think- It doesn't mean we automatically give it no respect.

[01:44:03] Speaker 06:
We just give it whatever respect it's due.

[01:44:06] Speaker 06:
Maybe it's not due as much as if the agency had the same view for 20 years, but that doesn't mean that it's due no respect or that their views are irrelevant.

[01:44:19] Speaker 05:
I don't think we've argued that it's due no respect.

[01:44:21] Speaker 05:
I just think sending the statutory issue back to the agency for yet another bite at the apple won't really help illuminate the issues or the court's consideration in deciding those statutory issues.

[01:44:36] Speaker 05:
You had asked sort of procedurally how it might work.

[01:44:38] Speaker 05:
I want to note that I think it would create a bit of a procedural morass.

[01:44:41] Speaker 05:
Unlike other statutes here, petitions for the next rule can go to

[01:44:47] Speaker 05:
any circuit core and indeed both framework rules, the 2017 and this one, there are multiple petitions and multiple circuits that are consolidated by a lottery.

[01:44:58] Speaker 05:
this petition, these sets of petitions were consolidated and sent here.

[01:45:02] Speaker 05:
It's entirely possible that the next set of petitions would be sent somewhere else and you'd have one petition here, one petition and another circuit.

[01:45:10] Speaker 05:
I think that's another reason that council's against sending this back to the agency.

[01:45:14] Speaker 05:
I think Judge Edwards, you noted that you can't hold them to the timelines.

[01:45:18] Speaker 05:
I think that's exactly correct.

[01:45:20] Speaker 05:
I think this court's practice shows that remands are holding things in abeyance for the agency to sort of

[01:45:27] Speaker 06:
Do a new rulemaking doesn't suppose for the sake of argument that we were inclined to find either that labor petitioners don't have standing or that their challenge is not right.

[01:45:44] Speaker 06:
And so

[01:45:47] Speaker 06:
The only challenges that would be validly before us would be the industry petitioner challenges, and they are fine with abeyance and or remain.

[01:46:04] Speaker 06:
If that were the case, why go forward?

[01:46:10] Speaker 06:
The only parties that we would have jurisdiction to rule in favor of has told us that they're fine with us deferring.

[01:46:24] Speaker 06:
And they want to see what the new rulemaking generally.

[01:46:29] Speaker 06:
Because you're not asking us for any relief other than to just uphold the rule, right?

[01:46:38] Speaker 05:
Well, I would say two things in that circumstance, if you're just talking about a band's formal adversity remains, I think.

[01:46:47] Speaker 05:
as this is Judge Edwards point, they're just saying it's not convenient for us.

[01:46:51] Speaker 05:
They, being industry, would be saying it's not convenient for us to have a decision now.

[01:46:55] Speaker 05:
That doesn't eliminate the adversity that's here.

[01:46:58] Speaker 05:
And there is a true case or controversy that remains.

[01:47:01] Speaker 05:
I think my second point is that also distinguishes this from USWAG, where there was true level of sort of absence of formal adversity.

[01:47:12] Speaker 05:
You know, I think they kind of want to have their cake and eat it too.

[01:47:17] Speaker 05:
It's how it feels to us.

[01:47:18] Speaker 05:
They want this petition here.

[01:47:20] Speaker 05:
They want you to hold on to it.

[01:47:22] Speaker 05:
for however long it takes till the agency gets to a new view.

[01:47:25] Speaker 05:
These are statutory questions that have plagued this statute since the day it was enacted and amended in 2016.

[01:47:32] Speaker 05:
And it's this court's role to say what those statutory terms mean to set the rules of the road for the agency.

[01:47:39] Speaker 05:
It keeps flipping back and forth.

[01:47:41] Speaker 05:
That's having real practical consequences on the ground for chemicals that people are exposed to.

[01:47:46] Speaker 05:
I'll just give you one example.

[01:47:47] Speaker 05:
One for dioxane.

[01:47:50] Speaker 05:
The agency started it as one of the first chemicals in 2017.

[01:47:53] Speaker 05:
It's 2025.

[01:47:55] Speaker 05:
We don't have rules.

[01:47:57] Speaker 05:
We should have gotten rules in 2022 for this chemical.

[01:48:00] Speaker 05:
And we don't have them because the agency has to change its analysis between administrations to like,

[01:48:07] Speaker 05:
The first, under the Trump administration, they excluded a bunch of conditions of use.

[01:48:11] Speaker 05:
The Biden administration came in and said, that's illegal.

[01:48:15] Speaker 05:
They added a bunch of conditions of use, found that the chemical was contaminating drinking water throughout the country, causing really severe risks of cancer.

[01:48:24] Speaker 05:
They issued a final risk determination in 2024.

[01:48:28] Speaker 05:
That's now being challenged, the supplement.

[01:48:31] Speaker 05:
in a court because the industry is saying, you can't issue this supplement.

[01:48:35] Speaker 05:
I mean, this is a procedural rule, as Your Honor noted, that should have been finalized in 2017 to set the rules of the road.

[01:48:45] Speaker 05:
And the uncertainty that remains is causing havoc in the administration of this program.

[01:48:50] Speaker 05:
So I think the prudential concerns that, again, they admit that this is a prudential decision suggests deciding this case here.

[01:48:59] Speaker 05:
With that, if I could turn to the merits, unless there are any questions on remand itself.

[01:49:05] Speaker 06:
Why don't you turn to the merits?

[01:49:06] Speaker 05:
Thank you.

[01:49:08] Speaker 05:
Starting with the all conditions of use argument, I think your colloquy with my friend from representing industry confirms that their position requires reading into the words into the statute.

[01:49:20] Speaker 05:
The statute doesn't say only consider the conditions of use with the greatest exposure potential.

[01:49:25] Speaker 05:
And that violates a cardinal canon of statutory construction.

[01:49:29] Speaker 05:
That's this course decision in Neely.

[01:49:33] Speaker 05:
Congress wanted comprehensive risk evaluations that included all activities from initial manufacture to ultimate disposal, everything in between.

[01:49:41] Speaker 05:
That's how it's defined conditions of use.

[01:49:44] Speaker 05:
And they want piecemeal partial risk evaluations.

[01:49:47] Speaker 05:
I think there's maybe a concrete example I could give you that illustrates just why their industry's petition can't be correct.

[01:49:56] Speaker 05:
So if you imagine a small baby that's exposed to a widely used flame retardant, the flame retardant is in the baby's crib.

[01:50:02] Speaker 05:
The flame retardant is on the rug it crawls on.

[01:50:05] Speaker 05:
It's in its toys.

[01:50:06] Speaker 05:
To understand the risks the baby faces from this flame retardant, you need to look at all three.

[01:50:11] Speaker 05:
You need to be able to look at the combination of all three to understand the baby's total exposure.

[01:50:16] Speaker 05:
Industries interpretation would allow EPA before it conducts any analysis to exclude one or all of those and thereby miss the exposure the baby faces.

[01:50:26] Speaker 05:
It would also frustrate, and this is more on the single determination whole chemical, it would frustrate EPA's ability to look at the combinations of those three activities to see the total exposure to the baby.

[01:50:39] Speaker 05:
There's no way to look use by use and understand, oh, the baby's exposed to the rug.

[01:50:45] Speaker 05:
That's too small.

[01:50:46] Speaker 05:
The baby's exposed in its crib.

[01:50:47] Speaker 05:
That's too small.

[01:50:48] Speaker 05:
But that's what industry's interpretation would require.

[01:50:51] Speaker 05:
That's contrary to the text, which requires determinations on the chemical substance.

[01:50:56] Speaker 05:
It requires EPA to protect against any combination of unreasonably risky activities.

[01:51:01] Speaker 05:
My friend representing industry, I think.

[01:51:05] Speaker 06:
Just to be clear, your friend on the other side would say,

[01:51:10] Speaker 06:
Well, you can consider all of those different uses at the risk management.

[01:51:22] Speaker 06:
But say that that's under the framework, the statutory framework that doesn't work because it's too late.

[01:51:33] Speaker 05:
Exactly.

[01:51:34] Speaker 05:
It's too late.

[01:51:35] Speaker 05:
The statute requires, and this is 2605B4F, there's a requirement to assess the exposures under the conditions of use.

[01:51:45] Speaker 05:
Your honor, I can quickly give you that is at addendum, the industry petitioners addendum at

[01:51:52] Speaker 05:
12.

[01:51:53] Speaker 05:
So this is 2605B4F.

[01:51:56] Speaker 05:
It says EPA shall assess available information on exposures for the conditions of use.

[01:52:02] Speaker 05:
That's B4F little i. I believe there's another provision.

[01:52:05] Speaker 05:
There are five of these.

[01:52:09] Speaker 05:
You don't mind.

[01:52:10] Speaker 05:
I'll just pull it up myself.

[01:52:17] Speaker 06:
It's one that also is scribe aggregate or sentinel.

[01:52:21] Speaker 06:
It's.

[01:52:22] Speaker 05:
Yeah.

[01:52:22] Speaker 05:
And then just below that in IV, it says, take into account the likely duration, intensity, frequency, and number of exposures under the conditions of use.

[01:52:33] Speaker 05:
If you that's required, those are all the in this subsection is entitled requirements for a risk evaluation.

[01:52:39] Speaker 05:
That's all required in the risk evaluation stage to look at how much exposure does a baby face from a rug?

[01:52:47] Speaker 05:
How much exposure does a worker face in the workplace?

[01:52:50] Speaker 05:
How much exposure does a fence line community face breathing air that's contaminated by the nearby factories?

[01:52:56] Speaker 05:
And so you have to get that exposure analysis right to understand.

[01:53:01] Speaker 05:
And I think like to understand, OK, here's the harmful dose of a chemical that's hazard.

[01:53:07] Speaker 05:
Where's the exposure?

[01:53:08] Speaker 05:
Is it above?

[01:53:08] Speaker 05:
So there's risk.

[01:53:09] Speaker 05:
Is it below?

[01:53:10] Speaker 05:
So that there's not.

[01:53:11] Speaker 05:
That's what this stage risk evaluation requires.

[01:53:14] Speaker 05:
And what they want to do is take out pieces that contribute to exposure, allow EPA to remove those from the equation so that EPA underestimates exposure.

[01:53:23] Speaker 05:
And then you cannot take that back into account on the back end at risk management.

[01:53:28] Speaker 06:
What about if your friend on the other side says, well, then obviously you need to consider PPE because PPE

[01:53:36] Speaker 06:
the facts exposure, right?

[01:53:39] Speaker 05:
We have not weighed in in this litigation on PPE and I am not authorized to state it.

[01:53:46] Speaker 06:
You're not going to defend the EPA's rulemaking position.

[01:53:53] Speaker 05:
We've not taken a position we're not going to and I just I do want to know one thing though on every on every other issue that industry raise we are defending in

[01:54:04] Speaker 05:
EPA's rule, and we adopted EPA's arguments.

[01:54:07] Speaker 05:
So EPA's arguments today, I think I heard my friend Mr. Durkey say, we're not standing on our briefs.

[01:54:16] Speaker 05:
That's irrelevant.

[01:54:17] Speaker 05:
We've adopted those arguments expressly in our brief.

[01:54:22] Speaker 05:
And so those are all fully presented here.

[01:54:26] Speaker 05:
On the whole chemical approach, I think you heard my friends from industry say over and over again

[01:54:32] Speaker 05:
that there's no analysis of the individual activities.

[01:54:35] Speaker 05:
And that's a problem.

[01:54:36] Speaker 05:
And that's just wrong, both as a matter of the statute.

[01:54:39] Speaker 05:
EPA is implementing regulations and practice.

[01:54:42] Speaker 05:
And if I could point, Your Honor, just as a matter of sort of practicality, looking to an actual risk evaluation, this is at JA 387 to 451, where you can look and you can see how EPA looks

[01:54:55] Speaker 05:
at each activity and looks at the exposures faced by consumers, by workers, it looks at different scenarios, different products, each condition of use, and it analyzes, okay, how much are people exposed?

[01:55:06] Speaker 05:
And that's what drives EPA's assessment of risk.

[01:55:09] Speaker 05:
And EPA 4 in its regulation says, we're gonna look at the exposures for the conditions of use, we're gonna compare them to the hazard level, and then we're gonna make a risk characterization for the conditions of use, and they do so

[01:55:22] Speaker 05:
And then at the end, they say in their regulations, and again, this is the final regulation.

[01:55:28] Speaker 05:
Excuse me.

[01:55:30] Speaker 05:
702.39 F3 EPA says we're going to identify the conditions of use that contribute to the risk determination so.

[01:55:42] Speaker 05:
those ones that are above the threshold for risk.

[01:55:45] Speaker 05:
We identify them and they necessarily identifies those that don't.

[01:55:49] Speaker 05:
And that feeds into the risk management process.

[01:55:52] Speaker 05:
EPA knows which ones are risky, which ones aren't.

[01:55:54] Speaker 05:
Again, I'll give you a specific example.

[01:55:57] Speaker 05:
This is at JA385 where they identified those that they knew to be risky and those that they knew not to be risky.

[01:56:07] Speaker 05:
I think we pointed this out in our briefs, they had nothing to say on reply because there is no answer.

[01:56:13] Speaker 05:
EPA does exactly what they claim EPA should be doing.

[01:56:17] Speaker 05:
And that's another reason their whole chemical argument fails.

[01:56:22] Speaker 05:
If there are no further questions on the merits, I would just say, again, these are basic statutory requirements that EPA has been flip-flopping on for a while.

[01:56:34] Speaker 05:
It's causing real harm.

[01:56:36] Speaker 05:
It means that protections are not being put into place.

[01:56:40] Speaker 05:
It's this court's job to say what the law is to clarify the rules of the road.

[01:56:45] Speaker 05:
There is real formal adversity here and prudential reasons, counsel, on deciding the case before the court.

[01:56:53] Speaker 05:
Thank you.

[01:56:54] Speaker 06:
Thank you.

[01:56:59] Speaker 06:
So we'll hear rebuttal from Mr. Ballinger.

[01:57:05] Speaker 08:
Yes.

[01:57:06] Speaker 08:
Let me just say one thing before you start, because you can attend to it if you want.

[01:57:10] Speaker 08:
On your side, I guess, on your side of the argument, utility solid waste, which cited as a reason, justifying or not deciding anything, that's a case in which there was a new statute that was enacted, and it might affect the agency's regulatory approach.

[01:57:34] Speaker 08:
And that was the court's justification.

[01:57:36] Speaker 08:
That's not this case.

[01:57:38] Speaker 04:
There's nothing like the Wynn Act, which I believe you affirmed in your swag, Cassiana.

[01:57:42] Speaker 04:
I'm not aware of anything that would serve that same function in this case, no.

[01:57:46] Speaker 08:
You're not aware of what?

[01:57:47] Speaker 04:
Of any new statute that would serve the same function.

[01:57:50] Speaker 08:
No, there isn't.

[01:57:50] Speaker 08:
And so it's a little annoying to hear that citation being the justification why we would let this case go.

[01:57:56] Speaker 08:
It's an entirely different situation if there's a new statute that's been passed.

[01:58:02] Speaker 08:
Unless I got it wrong on solid waste.

[01:58:07] Speaker 04:
I'm certainly on.

[01:58:08] Speaker 04:
And if that case does not guide the court's judgment, then I understand.

[01:58:15] Speaker 04:
Good morning, Sam Ballinger, your honor for sending the joint rebuttal.

[01:58:19] Speaker 04:
My time is short.

[01:58:20] Speaker 04:
I will make just a few quick points to follow up on prior discussion.

[01:58:25] Speaker 04:
Even after Loper-Bright, this is not simply a matter of when the court addresses questions of law.

[01:58:31] Speaker 04:
The court does not address questions of law simply because they are questions of law.

[01:58:35] Speaker 04:
The court addresses these issues because there's a petitioner who is standing who brings a right claim to the court.

[01:58:42] Speaker 04:
Today, that is the labor petitioners file against PPE and the industry petitioners file with a broader challenge addressing, with a broader challenge.

[01:58:54] Speaker 04:
Those challenges are before the court now.

[01:58:57] Speaker 04:
But what the agency does on remand may address those concerns.

[01:59:03] Speaker 04:
If the agency promulgates a new rule, it is entirely feasible that the petitioners currently upstanding, bringing their claims, are satisfied with that and go away.

[01:59:11] Speaker 04:
And so there would never be a matter before the court.

[01:59:14] Speaker 04:
There would never be a right matter for the court to adjudicate, because those parties may get everything they want to out of the amended rule.

[01:59:20] Speaker 04:
And that certainly does happen when an agency takes the rule back

[01:59:24] Speaker 04:
under reconsideration, and it arrives at an outcome that is acceptable to everybody.

[01:59:29] Speaker 04:
Now, obviously, other parties may subsequently take issue with that rule, but then they would have to show standing, and then they would have to show rightness in much the same way.

[01:59:38] Speaker 04:
So it's not simply a matter of, even in a loper-bright world, it's not simply a matter of when the court inevitably addresses these questions.

[01:59:45] Speaker 04:
It's a core issue of the court's adjudicatory authority for when and how it does, in fact, address these questions.

[01:59:52] Speaker 04:
And so that, I think, is one of the essential distinctions that justifies the abeyance in this case.

[01:59:58] Speaker 04:
And Judge Rao, you asked earlier about the authority of the court to issue the remand.

[02:00:03] Speaker 04:
I would point the court to Section 2816B, which authorizes the court to send the matter back down to the agency for further review.

[02:00:13] Speaker 04:
And if that does.

[02:00:14] Speaker 09:
What provision was that?

[02:00:17] Speaker 04:
Pull it up here.

[02:00:28] Speaker 04:
Police.

[02:00:31] Speaker 04:
2618 BU.

[02:00:33] Speaker 06:
Of title 15.

[02:00:34] Speaker 04:
Yes, Sean.

[02:00:38] Speaker 04:
It's lengthy.

[02:00:39] Speaker 04:
I won't bother to recite it fully to the court.

[02:00:42] Speaker 04:
But what I would like to note is that to the extent the remand issue is a concern, I do think an acceptable compromise might be a 12-month abeyance, as we discussed earlier, which would serve similar function in this case.

[02:00:56] Speaker 04:
So, but if the court does, oh, the one other thing to emphasize as well, and I apologize, is that what the agency does on remand, it will issue presumably a new rule, but that rule, the scope of that rule is different.

[02:01:12] Speaker 04:
The agency would have the authority to distinguish between what it addresses in the framework rule itself and what it leaves to adjudications under 6A in individual cases in the future.

[02:01:25] Speaker 04:
So the agency will presumably issue a new framework rule, but the scope of that is not necessarily on all fours with the current presentation of the case.

[02:01:33] Speaker 04:
And that's one reason that holding this case in advance makes sense to preserve these challenges and to ensure that this rule does not evade review in the event that there's any change in the scope on remand.

[02:01:46] Speaker 08:
Councilor, I hear you saying there are things the agency might do.

[02:01:53] Speaker 08:
Yeah, of course.

[02:01:54] Speaker 08:
Anytime an agency decides to engage in new rulemaking, there are things they might do that look different than what they had previously done.

[02:02:05] Speaker 08:
That's old news.

[02:02:06] Speaker 08:
That's not a justification for our leaving a case that's properly before us for no apparent good reason.

[02:02:14] Speaker 08:
The good reason can't be because the agency might do something different, especially when they're not even suggesting

[02:02:20] Speaker 08:
where they're really worried about anything.

[02:02:23] Speaker 08:
But in any event, we got a case that was properly presented, challenged, and it's probably before us.

[02:02:31] Speaker 08:
And the agency still has the right to go through rulemaking, which they say they're going to stay with this rule anyway and go through rulemaking.

[02:02:40] Speaker 08:
So I don't know what the gain is.

[02:02:42] Speaker 08:
The only gain would be to the extent there have been legal issues beating a dead horse that have been around for

[02:02:51] Speaker 08:
almost a decade, the court is probably being asked to answer some of those questions.

[02:02:57] Speaker 08:
We have the authority under LOPA to do it.

[02:02:59] Speaker 08:
We can answer them.

[02:02:59] Speaker 08:
They may or may not be relevant in the new rulemaking.

[02:03:04] Speaker 04:
Your Honor, I understand what you're saying, but I would respectfully disagree that it's as simple as it's a pure question of law under LOPA and it's within the court's power to adjudicate, and so it can do so.

[02:03:16] Speaker 04:
The issue, as I said before, is simply is that

[02:03:19] Speaker 04:
The court should do that in the context of having a right claim by a petitioner withstanding.

[02:03:23] Speaker 04:
Earlier, we discussed the deficient showing by the labor petitioners for standing.

[02:03:31] Speaker 04:
And in that regard, too, I would like to highlight footnote 13 of their brief, where the labor petitioners admit they don't actually know whether or not this rule would be applied in this way at all, as they feel, which would seem to indicate difficulty withstanding in that case.

[02:03:46] Speaker 04:
But I don't agree, Judge Edwards, that the matter is so simple and that the court should address the questions of law because they are presented here today.

[02:03:58] Speaker 04:
This court has routinely stayed its hand and allowed an abeyance when an agency indicates its intent to reformulate these issues.

[02:04:05] Speaker 04:
And on reformulation, the scope of that may change because the agency can divide between a Section 6A final rulemaking

[02:04:11] Speaker 04:
in the context of a given chemical, and what it addresses in the framework rule.

[02:04:16] Speaker 04:
As for example, PPE might be something that is not just period in the framework rule, but might be addressed more concretely.

[02:04:23] Speaker 08:
Nothing that we would say would foreclose that possibility.

[02:04:29] Speaker 08:
That is likely to be.

[02:04:30] Speaker 08:
That is absolutely true, unless the agency did something that was positively unlawful.

[02:04:38] Speaker 08:
Nothing forecloses the possibility that the agency would, we have this whole new different approach.

[02:04:44] Speaker 08:
We're gonna use this framework and that framework and ideas that have never been thought of before.

[02:04:49] Speaker 08:
And my attitude still is, help yourself.

[02:04:53] Speaker 08:
But we have a case before us, we decide it and we move on.

[02:04:57] Speaker 04:
Certainly, Your Honor.

[02:04:59] Speaker 04:
And I understand what you're saying.

[02:05:00] Speaker 04:
I still think that the matter of when it arises and the scope arises matters and justifies prudentially, if not requiring at the moment, staying in the court's hand.

[02:05:08] Speaker 04:
But I understand what you're saying, that these are essentially questions of law that will be done before the court.

[02:05:15] Speaker 09:
Do any of the industry petitioners invoke 2618B?

[02:05:19] Speaker 09:
Because that's a very specific procedure for additional submissions and presentations and modifications.

[02:05:26] Speaker 09:
So it doesn't talk about abeyance or remand.

[02:05:29] Speaker 09:
It says that if either a party or the administrator wants to introduce new submissions or presentations, then the court can order the EPA to consider that.

[02:05:41] Speaker 09:
And after that order of the court, then the administrator may modify or set aside the rule or make a new rule.

[02:05:49] Speaker 09:
So is anyone actually invoking 2618B explicitly?

[02:05:55] Speaker 09:
Because that does seem to be a mechanism, but I don't recall that being in the briefing.

[02:06:01] Speaker 09:
Perhaps I missed it.

[02:06:03] Speaker 04:
Your Honor, I believe you are correct that nobody explicitly invoked 2618B or attempted to make a showing or address that statute as it is presented.

[02:06:12] Speaker 04:
But it does it.

[02:06:13] Speaker 09:
I was just the justification though that you gave for the remedy for the abeyance and remand that you are seeking.

[02:06:19] Speaker 09:
But this is like this is a whole different procedure that might actually give industry petitioners and EPA what they are seeking.

[02:06:28] Speaker 09:
But I don't see where this has been sought.

[02:06:30] Speaker 04:
Well, your honor, if the question is simply the court's authority to remand to the agency, setting aside the ban's question, if the question is the court's authority, then I would submit that that does provide the authority to the court.

[02:06:41] Speaker 09:
Well, it provides the authority if a party seeks to make additional submissions and presentations.

[02:06:46] Speaker 09:
But that's not what either EPA, I mean, perhaps EPA could say, we'd like to make additional presentations and consider more information.

[02:06:55] Speaker 09:
Please send it back to us.

[02:06:57] Speaker 09:
But I don't see anything from EPA making that or from industry petitioners.

[02:07:01] Speaker 09:
I mean, maybe that's still something that is available.

[02:07:04] Speaker 09:
I'm not sure if there's some sort of time limit, but that seems to be an avenue that hasn't been tried.

[02:07:12] Speaker 04:
No, I don't mean to say that the issue has been fully briefed or fully- Or briefed at all.

[02:07:17] Speaker 08:
It hadn't even been raised.

[02:07:19] Speaker 04:
Correct, John.

[02:07:21] Speaker 04:
Neither has the authority of the court to issue the remand, Ben, as addressed in the paper.

[02:07:24] Speaker 04:
So I offer that simply as a note for what the court has had the authority to do.

[02:07:33] Speaker 08:
I'll accept that as your understanding of the concerns that we're raising.

[02:07:38] Speaker 08:
But that answer that you're offering really is inapposite.

[02:07:45] Speaker 06:
Thank you.

[02:07:47] Speaker 06:
All right.

[02:07:49] Speaker 06:
Give you a few seconds if you have any concluding.

[02:07:54] Speaker 04:
Just my last concluding note would be to address the fact the conditions of use.

[02:07:59] Speaker 04:
The conditions of use, the reason the whole chemical approach does not make sense is because the essential relationship in the statute is the relationship between section B4A and section 6A.

[02:08:10] Speaker 04:
B4A defines the risk, which triggers the authority of EPA to regulate under Section 6A.

[02:08:17] Speaker 04:
In the extent there's any ambiguity in what the scope of that risk evaluation is, Section 6A answers that question by saying very clearly that it is the manufacturing, it is the processing, the distribution of the chemical which presents that risk.

[02:08:30] Speaker 04:
It presents that risk in the context of a given condition of use.

[02:08:34] Speaker 04:
And so, Judge, I would agree with the notion that the agency's authority to regulate is based on its finding of a condition of use, of a home within the condition of use, as carried through in that relationship between the two.

[02:08:46] Speaker 06:
Thank you.

[02:08:47] Speaker 06:
Thank you.

[02:08:51] Speaker 06:
All right.

[02:08:53] Speaker 06:
Labor petitioners?

[02:08:57] Speaker 02:
I'll be brief.

[02:08:59] Speaker 02:
I'd just like to briefly address the claim that the ARC petition is not right.

[02:09:06] Speaker 02:
The law in this circuit is that a facial challenge to an agency policy is presumptively ripe if it raises purely legal issues and prejudice would result from delaying a decision on the merits.

[02:09:19] Speaker 02:
Here, in new swag, the court found that parties would suffer prejudice if remand caused failure to vindicate our claim.

[02:09:32] Speaker 02:
The same thing would be true here.

[02:09:34] Speaker 02:
And delay also means that many of the risk evaluations and many of the risk management rules that have been issued are presumably going to have to be reworked to conform with whatever is eventually decided.

[02:09:51] Speaker 02:
Some court eventually decides TOSCA meets.

[02:09:56] Speaker 02:
And so we think that's going to result in a substantial proliferation of litigation on a chemical-by-chemical basis.

[02:10:02] Speaker 02:
And the other harm that befalls us, and this is the same harm that my colleague from the Chemistry Council mentioned, is if EPA moves forward and continues to consider PPE, the burden is on us to gather information from our members about PPE use and misuse and submit all that to the record and then be prepared to challenge on a chemical-by-chemical basis

[02:10:28] Speaker 02:
what EPA decides if we're not happy with it.

[02:10:31] Speaker 02:
And as Judge Rao pointed out, while I think we have standing here, our members are not exposed to all chemicals in all uses.

[02:10:40] Speaker 02:
And so these issues may proliferate and we may not be in a position to challenge what EPA does because we can't identify members who are exposed.

[02:10:50] Speaker 02:
So for all those reasons, we do think that a delay in reaching the merits would prejudice the labor petitioners.

[02:10:57] Speaker 02:
And I'd like to thank you for all your attention to this case this morning.

[02:11:01] Speaker 06:
Thank you.

[02:11:02] Speaker 06:
Take the case under advisement.