[00:00:00] Speaker 00:
May proceed.

[00:00:01] Speaker 00:
Good morning, your honors.

[00:00:02] Speaker 00:
May it please the court?

[00:00:03] Speaker 00:
Kelly Lester for Petitioners.

[00:00:05] Speaker 00:
I'd like to reserve three minutes of my time for rebuttal.

[00:00:08] Speaker 00:
This case challenges EPA's rule for DECA-BDE, a persistent bioaccumulative and toxic chemical linked to cancer and harm to children's brain development.

[00:00:18] Speaker 00:
Because of the uniquely harmful attributes of PBT chemicals like DECA-BDE, TOSCA requires EPA to adopt all practical measures to reduce exposure to them.

[00:00:27] Speaker 00:
EPA did not do so.

[00:00:28] Speaker 00:
Instead, its rule for DECA BDE largely codifies the status quo and leaves unregulated the very activities from which exposure to DECA BDE is expected to increase.

[00:00:39] Speaker 00:
I'd like to address two fundamental flaws with EPA's rule.

[00:00:43] Speaker 00:
First, the rule is unlawful because EPA applied the wrong standard in determining what regulations are practicable.

[00:00:50] Speaker 00:
Rather than evaluating whether a measure is capable of being done with an existing constraints,

[00:00:54] Speaker 00:
EPA rejected regulatory measures based on an open-ended set of discretionary factors, including whether EPA deemed a measure reasonable.

[00:01:02] Speaker 00:
Second, even if EPA's interpretation of practicable were correct, the rule is still unlawful because its exemptions and loopholes are arbitrary and unsupported.

[00:01:12] Speaker 00:
As a result, this court should declare the rule unlawful and remand it to EPA.

[00:01:16] Speaker 00:
With respect to the first point, EPA interprets practicable to encompass what it views as reasonable in light of all circumstances.

[00:01:23] Speaker 00:
such as the relative costs and benefits of a measure.

[00:01:27] Speaker 00:
It never identifies limitation to this consideration of reasonableness, and it relies on this reading to label a measure impracticable because, for example, it doesn't view reducing exposures to be worth the costs.

[00:01:39] Speaker 00:
Allowing EPA to reject measures on reasonableness grounds is incompatible with Section 6 of TOSCA.

[00:01:45] Speaker 00:
Section 6 provides two tracks to regulating existing chemicals.

[00:01:50] Speaker 00:
Section 6A is for nearly all chemicals,

[00:01:52] Speaker 00:
EPA conducts an assessment called the risk evaluation, where it looks at the magnitude of harm associated with specific exposures, and then it decides what exposures result in unreasonable risk.

[00:02:03] Speaker 00:
If it finds unreasonable risk, EPA has to eliminate it by regulating those exposures.

[00:02:08] Speaker 00:
Section 6H addresses a small set of chemicals that EPA rated high for their PBT characteristics, which were a priority concern for Congress.

[00:02:20] Speaker 00:
It ultimately only regulates five chemicals under this category.

[00:02:23] Speaker 00:
Here, Congress told EPA not to conduct a risk evaluation, just to go straight to risk management.

[00:02:32] Speaker 00:
So EPA doesn't analyze the harms associated with specific exposure levels.

[00:02:37] Speaker 00:
Congress instead directed EPA to focus on reducing exposure.

[00:02:41] Speaker 00:
It didn't give a discretion to say what exposures are worth reducing.

[00:02:45] Speaker 00:
EPA's position that it can reject exposure reduction measures because their costs supposedly aren't worth their benefits is irrational on its face because EPA has no basis to make that judgment.

[00:02:55] Speaker 00:
The lack of a risk evaluation means that EPA has no analysis of the benefit of reducing specific exposures.

[00:03:01] Speaker 00:
So it has no basis to say if the cost outweighs the benefit or if it's worth it.

[00:03:06] Speaker 00:
So EPA's position is simply not contemplated by the statute and therefore it's also not supported by any analysis in the record.

[00:03:13] Speaker 00:
EPA's interpretation would undermine what Congress was trying to do in Section 6H.

[00:03:17] Speaker 00:
It used language that reflects a stringent standard to reduce exposures to a particularly harmful group of chemicals that were such a priority in legislation that Congress carved out an expedited rulemaking process for them.

[00:03:30] Speaker 00:
To say that EPA only need to reduce exposures to the extent it deems reasonable without any limitations on that would vitiate that stringent standard.

[00:03:39] Speaker 00:
The best reading is not that practicable means reasonable, but that practicable means capable of being done, taking into account economic and technological constraints.

[00:03:48] Speaker 00:
It honors both the dictionary definitions of practicable and the stringent scheme that Congress created.

[00:03:56] Speaker 04:
So I gather your argument is that the 6C2 factors cannot be considered in the 6H analysis.

[00:04:04] Speaker 04:
Is that right?

[00:04:05] Speaker 00:
That's correct, Your Honor.

[00:04:09] Speaker 00:
Even if EPA's interpretation of practicable were correct, the rule is still unlawful because the exclusions and loopholes are arbitrary and unsupported by substantial evidence.

[00:04:18] Speaker 00:
I want to focus on three cross-cutting flaws with EPA's role.

[00:04:22] Speaker 00:
First, EPA took an all or nothing approach to regulation, not considering the practicability of targeting only high priority industries or waste streams for exposure reduction measures.

[00:04:32] Speaker 00:
For example, EPA did not consider disposal restrictions only on waste from specific streams with high levels of DECA BDE, like electronic waste or waste vehicles.

[00:04:42] Speaker 00:
And similarly, EPA did not consider restricting the concentration of DECA BDE in recycling streams from these

[00:04:48] Speaker 00:
in recyclable materials from these waste streams.

[00:04:52] Speaker 00:
An EPA's failure to consider these targeted reductions for recycling and disposal is especially problematic given that these are precisely the activities from which exposures are expected to increase.

[00:05:04] Speaker 00:
Second, EPA ignored evidence that it would be practical to reduce exposure to DECA BDE using existing technologies.

[00:05:11] Speaker 02:
Council, in reading this case, you struck by the ability of Congress to come up with so many ambiguous phrases for what the standard here is.

[00:05:23] Speaker 02:
You were trying to divine what practical means along with achievability, feasibility, workability, reasonableness.

[00:05:31] Speaker 02:
And you're saying we can't consider those together, but I'm not sure what the difference is.

[00:05:34] Speaker 02:
And historically,

[00:05:36] Speaker 02:
The courts have given some deference to the agency's interpretation of the statute, so they have experience with it.

[00:05:42] Speaker 02:
How do we go about analyzing this statute and its application here, according to your view?

[00:05:48] Speaker 00:
Well, a few points, Your Honor.

[00:05:51] Speaker 00:
The court no longer needs to give deference to the agency.

[00:05:55] Speaker 04:
Well, we give Skidmore deference.

[00:05:57] Speaker 00:
I don't think Skidmore deference is appropriate here.

[00:05:59] Speaker 00:
There is no particularly long-standing interpretation that requires deference with respect to this.

[00:06:07] Speaker 04:
We know Chevron's out, but Skidmore is still alive.

[00:06:11] Speaker 02:
So how do I reconcile your claim that in one section we talk about each sent practicable compared to those other adjectives or adverbs in the next section, and you're not supposed to consider those together?

[00:06:26] Speaker 00:
with respect to achievable, feasible, workable and reasonableness.

[00:06:30] Speaker 00:
So those are not statutory considerations.

[00:06:32] Speaker 00:
Those are considerations that EPA just used to give meaning to the term practicable.

[00:06:40] Speaker 00:
And we agree that feasible, achievable and workable all do speak to what is capable of being done, which is the plain meaning of practicable.

[00:06:48] Speaker 00:
But what EPA essentially does is reads reasonable to blow any limitations off of what those first three

[00:06:56] Speaker 00:
Factors that it purports to consider would actually entail and so in so doing it says that it doesn't need to address specific exposures because there are supposedly low levels and As I explained that's not a consideration that EPA can actually make under the statute So in your view where there are specific proposals presented to EPA that they rejected is not being practicable

[00:07:22] Speaker 00:
There were.

[00:07:22] Speaker 00:
So I reviewed a few of those, which are that there could be restrictions on only specific waste streams, disposal restrictions or recycling restrictions.

[00:07:33] Speaker 00:
EPA also did not consider whether it could use existing technology, for example, to address exposures from incineration or from wastewater.

[00:07:47] Speaker 00:
And EPA, it's a little bit hard to tell why EPA just said that it would be too expensive and difficult to regulate disposal because EPA gives no actual analysis of the expense and difficulty with that.

[00:08:02] Speaker 00:
So there are particular exposure reduction measures that were given and EPA just did not acknowledge them or respond to them.

[00:08:15] Speaker 00:
With respect to that second bucket of arbitrary and capricious arguments that I want to be sure to highlight today, EPA did not analyze the practicability of using cheaper sorting technology to reduce recycling related exposures.

[00:08:32] Speaker 00:
And it asserts that it didn't have to consider these technologies at all because they cannot identify DECA BDE specifically.

[00:08:38] Speaker 00:
But that's irrational.

[00:08:39] Speaker 00:
Studies in the record show that these sorting technologies are highly effective at sorting out plastics containing deca BDE.

[00:08:46] Speaker 00:
92% of plastics initially screened with one of these technologies, XRX, XRF, x-ray fluorescence, had deca BDE in it.

[00:08:55] Speaker 00:
And that's at 5ER969.

[00:08:57] Speaker 00:
In another study, 70% of plastics did.

[00:09:00] Speaker 00:
That's at 7ER1572.

[00:09:03] Speaker 00:
And as a result of this effectiveness and the accessibility of these technologies, they're used in the European Union to meet concentration restrictions on DECA-BDE and other PBDEs.

[00:09:14] Speaker 00:
DECA-BDE is by far the most dominant congener of PBDE, which is the class to which DECA-BDE belongs, both because it was used in much larger quantities historically and also because it was phased out much later.

[00:09:29] Speaker 00:
So of more than 150 million pounds of PBDEs estimated that were still in use in 2020, 95% of that is DECA BDE.

[00:09:39] Speaker 00:
EPA didn't look at this feasibility analysis that we submitted to the record that post-dated EPA's 2021 rule that found that using these sorting technologies makes recycling restrictions feasible on an industrial scale in the European Union.

[00:09:57] Speaker 00:
And because it ignored important considerations on the record, that is arbitrary.

[00:10:03] Speaker 00:
As I mentioned before, EPA also ignored evidence of existing widely available technologies that are not uniformly deployed because that could be used to reduce exposures.

[00:10:15] Speaker 00:
So it did not consider requiring technology on incineration to reduce exposures or for wastewater discharges.

[00:10:23] Speaker 00:
And then the third bucket of arbitrary and capricious arguments

[00:10:26] Speaker 00:
is that EPA's exemptions and loopholes are unexplained and irrational.

[00:10:31] Speaker 00:
The starkest example of this is with respect to its failure to regulate the land application of sewage sludge.

[00:10:37] Speaker 00:
EPA simply said that it's not using its Section 6 authority at that time without explaining why.

[00:10:42] Speaker 00:
In rulemaking, as Judge Gould has written, it's not enough to assert without meaningful discussion that measures are impracticable.

[00:10:50] Speaker 00:
Agencies have to rationally explain why they did what they did, and here EPA did not do so.

[00:10:57] Speaker 00:
As I also mentioned before, EPA's reason for regulating disposal is unsupported and irrational.

[00:11:04] Speaker 00:
EPA claimed that it would be expensive and difficult to engage to adopt any disposal restrictions because the Resource Conservation and Recovery Act generally regulates solid waste disposal, not even DECA BDE disposal specifically.

[00:11:19] Speaker 00:
But it cited no information whatsoever to support its claim.

[00:11:22] Speaker 00:
And there's no analysis of additional restrictions in the record.

[00:11:27] Speaker 00:
Unless the court has any questions, I can reserve the remainder of my time for rebuttal.

[00:11:31] Speaker 04:
Thank you, counsel.

[00:11:32] Speaker 00:
Thank you.

[00:11:45] Speaker 01:
Good morning.

[00:11:46] Speaker 01:
May it please the court.

[00:11:47] Speaker 01:
My name is Redding Cates for the United States Environmental Protection Agency.

[00:11:52] Speaker 01:
Dega-BDE is a persistent bioacumulative and toxic substance.

[00:11:56] Speaker 01:
That's not in dispute.

[00:11:58] Speaker 01:
This case is about what Congress authorized EPA to do about it.

[00:12:02] Speaker 01:
Here's what EPA did.

[00:12:05] Speaker 01:
It banned the substance.

[00:12:06] Speaker 01:
DECA BDE cannot be manufactured in this country, and it can't be made abroad and imported here.

[00:12:13] Speaker 01:
In 2021, EPA found that this was the fastest and most effective way to reduce DECA BDE exposures.

[00:12:22] Speaker 01:
No, petitioners don't dispute that, but they wanted EPA to go further.

[00:12:26] Speaker 01:
to consider the DECA BDE that's already out there in circulation.

[00:12:31] Speaker 01:
EPA considered their comments urging it to require municipal and other recyclers to find and remove plastic bound for recycling from the stream and urging EPA to require wastewater treatment plants and landfills to take additional steps beyond the current regulation to reduce DECA BDE exposure.

[00:12:55] Speaker 01:
But EPA found

[00:12:57] Speaker 01:
that requiring municipal recyclers to test every single piece of plastic that comes in in the recycling stream that they must accept is simply not practicable.

[00:13:08] Speaker 01:
And EPA determined that the cost of testing a piece of plastic for the presence of DECA BDE is prohibitively expensive.

[00:13:18] Speaker 01:
And finally, no practicable means exist

[00:13:21] Speaker 01:
for requiring wastewater treatment plants and landfills to remove and segregate the little bit of DECA BDE that they process.

[00:13:29] Speaker 01:
The parties disagree about what to the extent practicable means, and this interpretive issue goes a long way to deciding this case.

[00:13:36] Speaker 01:
As you already heard, EPA interprets practicable to mean achievable, feasible, workable, and reasonable, while also taking into consideration the C2 factors for all subsection A rules.

[00:13:50] Speaker 01:
petitioners, as you just heard.

[00:13:51] Speaker 04:
So why do you think that the C2 factor should be incorporated in CH?

[00:13:57] Speaker 04:
Well, there's a reference, I know you're arguing on that, but here we are post-Chevron and we're into Skidmore.

[00:14:06] Speaker 04:
Why is a matter of statutory interpretation, should we interpret the section the way you're urging us to?

[00:14:13] Speaker 01:
Well, we think under the plain meaning of the statute, the specific subsection H points to a rule under subsection A. You go back to subsection A, and those rules have specific requirements.

[00:14:28] Speaker 01:
Now, it's true that Congress did not require EPA to do a risk assessment for these particular chemicals.

[00:14:36] Speaker 01:
And that's true, but it didn't say it couldn't.

[00:14:38] Speaker 01:
And I think the petitioners asserted that, and that's just not the case.

[00:14:41] Speaker 01:
The statute says that it doesn't have to.

[00:14:44] Speaker 01:
And so when EPA is looking at the structure, it says, all right, well, under subsection H, we're supposed to issue a rule under subsection A. They go to subsection A, and subsection A lays out the requirements.

[00:14:56] Speaker 01:
C2, under the statute, says requirements for a rule.

[00:15:00] Speaker 01:
And C2 lists those requirements.

[00:15:02] Speaker 01:
EPA looked at them and said, all of these are consistent with the kind of rule we'd be issuing here.

[00:15:08] Speaker 01:
They don't speak specifically to a risk assessment.

[00:15:11] Speaker 01:
There are parts under subsection A that do talk to risk assessments, and EPA thought, well, if we're not required to do one and we're not doing them here, then we should look at those.

[00:15:20] Speaker 01:
But it doesn't mean that the entire subsection A just gets thrown out the window.

[00:15:25] Speaker 04:
Well, there is the notion that if Congress intended risk assessments to be done in sixth age, that it would have put it there.

[00:15:34] Speaker 04:
And the omission, inclusion in one section or subsection and exclusion in another does have some statutory interpretation consequences.

[00:15:47] Speaker 01:
I agree, Your Honor.

[00:15:48] Speaker 01:
I think, though, that when you look at subsection A, there are parts of it, including C2, that aren't reliant upon having a risk assessment being done.

[00:15:57] Speaker 01:
And that's why UP had said, well, for these, we should continue to look at them, because it still points us back to subsection A. If subsection H had said, don't look at A at all, this is a completely separate process, then I think petitioners would have a stronger argument.

[00:16:13] Speaker 04:
Well, part of the argument and the difference between you is that you claim there's a reasonableness requirement and they say that's not in the statute.

[00:16:23] Speaker 04:
My question for you is how do we measure reasonableness as we're looking in a petition for review?

[00:16:31] Speaker 04:
What metric do we use?

[00:16:33] Speaker 01:
Well, I think, Your Honor, that it's not simply reasonableness, right?

[00:16:38] Speaker 01:
EPA said and.

[00:16:40] Speaker 01:
So it is feasible.

[00:16:42] Speaker 01:
EPA said that

[00:16:43] Speaker 01:
Part of the definition of practicable is it has to be feasible.

[00:16:46] Speaker 01:
But the definition is reasonably capable of being accomplished, feasible in a given situation.

[00:16:51] Speaker 01:
So I would simply say that those definitions, which are the best definitions of practicable and are most consistent with the way courts have interpreted that word in other cases, speak to not simply, can it be done at all?

[00:17:06] Speaker 01:
Or not simply, I think in their reply brief, they point to something called economic feasibility, which they mean, I think,

[00:17:12] Speaker 01:
so expensive that it just actually could, there isn't enough money to do it.

[00:17:17] Speaker 01:
And we would say that that's drawing the line way too high and that if you're looking for some boundary around reasonableness, I think the C2 factors provide those.

[00:17:29] Speaker 01:
But they do include looking at cost effectiveness, cost and benefits.

[00:17:33] Speaker 01:
And again, that is consistent with

[00:17:35] Speaker 01:
You know, the court's opinion in state farm that even when a statute says you must adopt practical means that was the automatic seatbelt case.

[00:17:43] Speaker 01:
Right.

[00:17:43] Speaker 01:
The court said, well, you're still right to look at costs and benefits.

[00:17:47] Speaker 01:
And that's what EPA did here.

[00:17:50] Speaker 04:
Good.

[00:17:50] Speaker 01:
Okay.

[00:17:54] Speaker 01:
Now.

[00:17:59] Speaker 01:
I just gave the definition from Black's Law Dictionary, and we talked about the C2 factors, which are effects on health, effects on the environment, the benefits of the product, and then finally the economic consequences.

[00:18:10] Speaker 01:
And then C2 splits out to say the effect on the national economy, small businesses, costs and benefits, and cost effectiveness.

[00:18:20] Speaker 01:
In addition to the State Farm case I mentioned earlier, there's also Michigan, where the Supreme Court had a statute of Clean Air Act that didn't talk about costs at all and didn't say reasonable.

[00:18:30] Speaker 01:
But the court held that it was unreasonable to not consider costs.

[00:18:34] Speaker 01:
And so when EPA is looking at petitioners' comments saying you need to place additional burdens on municipalities that recycle, treat race water, and have landfills, EPA is thinking we need substantial evidence that that can be done and that it's

[00:18:50] Speaker 01:
practicable.

[00:18:52] Speaker 01:
And when EPA looked at the examples that petitioners gave, they didn't find it, starting with recycling.

[00:19:00] Speaker 01:
So EPA found, first of all, that their widespread ban is going to massively reduce DECA PD in this country by cutting it off at the source.

[00:19:08] Speaker 01:
And when it looked at testing, petitioners don't dispute

[00:19:13] Speaker 01:
that actually testing a piece of plastic for DECA BDE is prohibitively expensive.

[00:19:18] Speaker 01:
You have to take it, melt it down, and then determine whether it has DECA BDE in it or not.

[00:19:23] Speaker 01:
They pointed to a couple of other processes that can be used.

[00:19:27] Speaker 01:
But I don't think it's exactly as the way they claim.

[00:19:31] Speaker 01:
First is this sorting method, which is a float and sort.

[00:19:34] Speaker 01:
But as they admit, that takes all PBT chemicals, not just DECA BDE.

[00:19:39] Speaker 01:
And DECA BDE is the only PBT chemical that is

[00:19:43] Speaker 01:
called out in the study EPA did for this particular section H treatment.

[00:19:49] Speaker 01:
So EPA cannot use so wide a tool to separate out.

[00:19:55] Speaker 01:
They claim that 92% of the stuff that you would take out of the recycling stream using this method would be DECA-BDE, but that's not what their studies actually say.

[00:20:05] Speaker 01:
The Strykova study that they point to is a study where they went out and on purpose bought

[00:20:12] Speaker 01:
about 490 products that they thought were likely to contain Deca BDE, recycle Deca BDE.

[00:20:19] Speaker 01:
So that would be hair brushes, toys.

[00:20:22] Speaker 01:
So this was not a, what does a cross section of the recycling stream look like, right?

[00:20:28] Speaker 01:
It was targeted to find them.

[00:20:30] Speaker 01:
And when they did that, only nine of the actual products had high enough Deca BDE levels that it would be above the de minimis standard.

[00:20:40] Speaker 01:
That's less than 3%.

[00:20:42] Speaker 01:
OK, so when he's looking at this, they're like, well, we're going to use this sorting mechanism, but it's maybe only three percent of it is actually going to be DECA BDE.

[00:20:54] Speaker 01:
And that does not.

[00:20:57] Speaker 01:
Sitting where we are, justify the massive increased cost to put on municipalities for recycling and also for landfills and wastewater treatment plants.

[00:21:06] Speaker 01:
The other argument they make is about e-waste.

[00:21:10] Speaker 01:
And they say, well, you could have segregated specific streams, not the main general recycling stream, but what about just e-waste?

[00:21:19] Speaker 01:
But the issue there is that their own studies found that it said

[00:21:29] Speaker 01:
fraction of a fraction, actually it said a small fraction of 9% would be a class of BFRs which is a broader chemical of which decapite is one and it said of that a fraction is decapite.

[00:21:44] Speaker 01:
So again a small fraction of a fraction of 9% of e-waste and EPA looked at that and said that isn't worth the cost either.

[00:21:52] Speaker 01:
And so

[00:22:02] Speaker 01:
When they pointed to wastewater treatment plants, another place that they say there are technologies that exist that could have reduced exposure in wastewater.

[00:22:13] Speaker 01:
But when you look at their actual studies, what they show is that the technique for reducing in wastewater.

[00:22:24] Speaker 01:
It says, this is at ER 1505, the highest removal in all plants was obtained at longer retention time and higher MLSS in advanced treatment process.

[00:22:37] Speaker 01:
The primary removal mechanism is sorption to solids as opposed to biodegradation.

[00:22:43] Speaker 01:
Therefore, optimization of removal from the liquid train will maximize PBDE concentration in solid returns.

[00:22:51] Speaker 01:
What that means is that

[00:22:53] Speaker 01:
The example they gave of do this in wastewater treatment plants, essentially run it through so that it binds more to the solids is that it would increase DECA BDE in the sewage sludge.

[00:23:05] Speaker 01:
The essential issue that EPA was facing is that these chemicals do not break down and they have to go somewhere.

[00:23:11] Speaker 01:
And so the solution they offer for wastewater would just make

[00:23:15] Speaker 01:
the problem of sewage sludge even worse.

[00:23:18] Speaker 01:
And so faced with trying to create an entire new disposal regime for this one chemical, EPA thought the best thing for us to do is to cut it off at the source and to rely on RCRA and the other regimes we have for disposal at this time.

[00:23:34] Speaker 01:
That's another key point.

[00:23:35] Speaker 01:
EPA was clear to say that this was not a one and done rule.

[00:23:39] Speaker 01:
If additional

[00:23:40] Speaker 01:
Information is is is created comes out and studies EPA is.

[00:23:44] Speaker 01:
We'll take another look at it.

[00:23:47] Speaker 02:
Well, council on that point.

[00:23:48] Speaker 02:
Yes, sir.

[00:23:49] Speaker 02:
Appellants argue that EPA failed to consider regulatory options.

[00:23:53] Speaker 02:
That would be on an all out band looking at specific facilities, for example, those with high level of decade, such as end of life vehicles, construction, demolition waste, electronic waste.

[00:24:03] Speaker 02:
Why was that not feasible?

[00:24:04] Speaker 01:
Well, as I said earlier, taking e-waste as an example, when EPA dug into the data, what it found is that even amongst e-waste, you're looking at a small fraction of a small fraction of 9% of e-waste.

[00:24:17] Speaker 01:
And so it's needles in a haystack.

[00:24:19] Speaker 01:
And EPA, I think, using its correct interpretation of what practical means, said, well, we don't have to chase needles in a haystack under this standard.

[00:24:31] Speaker 01:
The juice is not worth the squeeze.

[00:24:32] Speaker 01:
especially when the ban is going to drive DECA BDE levels down.

[00:24:37] Speaker 01:
And again, the rule went into effect in 2021.

[00:24:39] Speaker 01:
It's been five years.

[00:24:41] Speaker 01:
So that's another, I guess, issue in the petitioner's data is that their studies all predate the ban and were based on data from years before that when DECA BDE was not banned and was far more pervasive.

[00:25:01] Speaker 01:
If the panel has no other questions.

[00:25:02] Speaker 01:
I have one more.

[00:25:04] Speaker 04:
I think both judges have a question.

[00:25:07] Speaker 04:
Okay.

[00:25:07] Speaker 04:
Go ahead.

[00:25:08] Speaker 04:
Judge Gould, do you have a question?

[00:25:11] Speaker 03:
Yes.

[00:25:12] Speaker 03:
What I'd like to ask counsel now is, does RCRA provide adequate protection from DECA BTE waste disposal?

[00:25:31] Speaker 01:
Your honor, EPA concluded that it did, because it provides regulations for landfills.

[00:25:41] Speaker 01:
Petitioners do point out that there is some potential for additional exposure, but they recommended treating DECA BDE as a hazardous substance.

[00:25:50] Speaker 01:
And when EPA looked at that, it's the same needle in a haystack problem.

[00:25:53] Speaker 01:
It would be massively expensive for municipalities to convert this to a hazardous waste for very little benefit.

[00:26:02] Speaker 01:
And so that's why EPA made the decision not to reclassify it.

[00:26:06] Speaker 03:
Okay, thank you.

[00:26:09] Speaker 02:
Council, would you address the decision not to regulate sewage sludge?

[00:26:15] Speaker 02:
What's the explanation for that?

[00:26:17] Speaker 01:
It's the same as wastewater treatment.

[00:26:20] Speaker 01:
Testing for the presence of deca BDE is so expensive as to be impossible.

[00:26:26] Speaker 01:
And so how do we know that?

[00:26:28] Speaker 02:
I mean, is there information in the record to support that claim?

[00:26:30] Speaker 01:
There is.

[00:26:31] Speaker 01:
It's the same information for testing for recycling.

[00:26:34] Speaker 01:
There's no other way to to for a for a wastewater treatment plant to be told by EPA, get all the deca BDE out of your wastewater.

[00:26:44] Speaker 01:
There's no way for a wastewater treatment plant to do that effectively.

[00:26:48] Speaker 01:
Not in a way that's cost effective.

[00:26:50] Speaker 01:
The examples they gave were just to run the treatment again so that it binds more to the solids.

[00:26:57] Speaker 01:
But as I mentioned earlier, that just increases DECA BDE in the sewage sludge.

[00:27:04] Speaker 04:
Okay, any further questions?

[00:27:06] Speaker 04:
I think Judge Morris may have another one.

[00:27:09] Speaker 04:
Judge Gould?

[00:27:12] Speaker 04:
No, I have no further questions.

[00:27:13] Speaker 04:
Thank you, counsel.

[00:27:23] Speaker 00:
I'd like to correct a few things that council for the government said.

[00:27:27] Speaker 00:
First, they argue that testing the incoming stream for recycling would be required in order to do any recycling restrictions.

[00:27:36] Speaker 00:
I think this underscores that they didn't actually review the evidence in the record that shows that that's often not how it happens.

[00:27:43] Speaker 00:
In the European Union feasibility report that's at 9 ER 19

[00:27:49] Speaker 00:
Section 11 of that shows that there are sorting methods that where it's actually tested for these PBDEs is at the end of the process.

[00:28:03] Speaker 00:
So it's not that you have somebody standing at the beginning of the recycling process scanning each individual piece of plastic with, for example, an XRF machine.

[00:28:13] Speaker 00:
What happens is the waste goes through the process.

[00:28:17] Speaker 00:
At the end, there are representative samples taken of this pelletized recycling material.

[00:28:25] Speaker 00:
And before it's allowed to go into the recycling stream, it's tested to determine what the concentration of PBDEs are in that.

[00:28:32] Speaker 00:
And I think that the government council's explanation underscores that that was not seriously considered below.

[00:28:41] Speaker 00:
Similarly, a lot of what was just said is a lot of post hoc speculation.

[00:28:46] Speaker 00:
There is simply nothing in the record that shows that EPA engaged in the analysis that council suggests that it did.

[00:28:53] Speaker 00:
For example, EPA did not analyze whether it would be practicable to reduce exposures from sludge.

[00:28:58] Speaker 00:
And it is true that wastewater treatment does take

[00:29:02] Speaker 00:
DECA BDE and put it into the sludge.

[00:29:04] Speaker 00:
And that is why we said in the administrative proceedings below that it's a requirement for EPA to do something about that concentration in the sludge.

[00:29:15] Speaker 00:
And we didn't say that EPA needs to treat the sludge, that they need to do some sort of concentration restriction so that that sludge is not going into the environment and going into wastewater and contaminating

[00:29:29] Speaker 00:
the wastewater and soil that it's in.

[00:29:34] Speaker 00:
EPA also did not actually analyze how much exposure reduction would happen from recycling restrictions.

[00:29:42] Speaker 00:
EPA suggests that only 9% of e-waste has brominated flame retardants, which I think actually underscores how useful this sorting technology that is able to sort technology for

[00:29:54] Speaker 00:
brominated flame retardants would be, because it wouldn't mean that the entire recycling stream would be upended.

[00:30:00] Speaker 00:
It would mean that a small portion of this could be taken out and sent to incineration with technologies that are able to reduce exposures from that.

[00:30:19] Speaker 00:
Unless the panel has further questions, I would just emphasize that EPA's rule does not actually meaningfully reduce exposure to DECA BDE.

[00:30:30] Speaker 00:
EPA says that it did enough at the upstream stage that it doesn't need to address the vast quantities of DECA BDE that are already in commerce and that have to be disposed of at the end of its useful life.

[00:30:44] Speaker 00:
We know that over 100 million pounds are out there and EPA never assessed the practicability of actually addressing the DECA BDE that is currently in commerce.

[00:30:55] Speaker 00:
Instead, it just codified the status quo, and it perpetuates ongoing exposures that will result in irreversible harm to children's brain development and to wildlife that's endangered.

[00:31:06] Speaker 00:
We ask the court to remand the rule to EPA with deadlines so that EPA can finally comply with the law.

[00:31:12] Speaker 04:
Are you asking for vacatur?

[00:31:13] Speaker 00:
We are not asking for vacatur.

[00:31:15] Speaker 04:
Thank you.

[00:31:15] Speaker 04:
Thanks, counsel.

[00:31:17] Speaker 04:
I thank all of you for your arguments and for coming out from the East Coast to argue live.

[00:31:22] Speaker 04:
That's much appreciated.

[00:31:23] Speaker 04:
And thank you all for your briefing on this case, which was excellent and very helpful to the court.

[00:31:29] Speaker 04:
With that, we'll take a 10-minute recess.