[00:00:00] Speaker 05: Hello, everyone. [00:00:01] Speaker 05: We're here for the Center for Biological Diversity versus EPA Matter. [00:00:07] Speaker 05: It is 2395-03, and we'll start with the petitioner. [00:00:16] Speaker 04: Thank you, Your Honor. [00:00:18] Speaker 04: Good afternoon. [00:00:19] Speaker 04: May it please the court? [00:00:21] Speaker 04: Ryan Mahar on behalf of Petitioner, the Center for Biological Diversity. [00:00:25] Speaker 04: which I'll refer to as the center. [00:00:27] Speaker 04: I'd like to reserve four minutes of my time, please. [00:00:32] Speaker 05: That'll be up to you. [00:00:33] Speaker 04: Thank you, Your Honor. [00:00:37] Speaker 04: I'd like to get right to the commencement of operation definition issue. [00:00:42] Speaker 04: And I'd like to start by quickly re-emphasizing three important points that inform the conversation. [00:00:49] Speaker 04: First, the commencement of operation is the dividing line. [00:00:52] Speaker 04: Pollution that's released before operations commence is not considered in permitting and is given a free pass. [00:01:01] Speaker 04: Pollution emitted after operations commence is considered and permitted. [00:01:06] Speaker 04: Second, when something is added to the SIP, it becomes federal law for the first time. [00:01:12] Speaker 04: It has the force and effect of federal law. [00:01:15] Speaker 04: See Utah physicians. [00:01:18] Speaker 04: And EPA through its enforcement authority and the public through the Clean Air Act citizen supervision at 42 USC 7604 can enforce in federal court what's in the SIP for the first time. [00:01:32] Speaker 04: State interpretations, state policy and state only rules are not controlling when the SIP is applied and interpreted in federal court. [00:01:44] Speaker 04: And third, the pre-existing first sentence of the commencement of operation definition includes fracking emissions. [00:01:53] Speaker 04: That's because [00:01:55] Speaker 04: Pursuant to the first sentence alone, a source commences operation when it first conducts the activity for which it was designed and permitted. [00:02:06] Speaker 04: An oil and gas well pad is designed and permitted to bring oil and gas to the surface and produce oil and gas, which indisputably takes place at the fracking phase, to the point where fracking product [00:02:19] Speaker 04: like gas, can be sold to market as API admits in its amicus brief in related case 22-9546. [00:02:27] Speaker 05: I'm sorry to interrupt you, but do you mind if I stop you with a quick question about your second and third points? [00:02:36] Speaker 05: at how they relate to the issue of vacator. [00:02:40] Speaker 05: If you are correct on your second and third points, that if we were to vacate the approval of Colorado SIP, that we would be left for Colorado regulators with the new more lenient [00:02:56] Speaker 05: regulations that would exclude emissions through completion of the well, drilling, and fracking. [00:03:10] Speaker 05: But under the federally enforceable SIP, because of the second point that you made, EPA federal regulators will have a more lenient [00:03:23] Speaker 05: a stricter set of regulations that would include the emissions that would be excluded by Colorado regulators. [00:03:33] Speaker 05: So if you are right in your interpretation of that pre-existing first sentence of the commencement of operations provision, it seems to me that vacater would be disruptive because we're going to have different, substantively different regulators looking at the same well pad. [00:03:52] Speaker 05: And an oil and gas operator for Colorado regulators is going to have a different, more lenient set of regulations to comply with than he would [00:04:02] Speaker 05: for federal regulators, why would that not be disruptive? [00:04:08] Speaker 04: Yes, Your Honor. [00:04:11] Speaker 04: Well, first, I'd like to point out that pursuant to the EPA and Colorado scope arguments, they're saying that the first sentence and the second sentence are redundant of each other. [00:04:23] Speaker 04: So that in vacatur, the second sentence should not result [00:04:27] Speaker 04: in confusion and contrast between state and federal permitting regimes. [00:04:34] Speaker 04: Now, that is not our position. [00:04:36] Speaker 02: Let me stop you for saying it, but that's not true if you win. [00:04:39] Speaker 02: If you get to the point where you get to have it vacated and sent back, presumably that means that you've prevailed and convinced everyone that the second part of the paragraph is different. [00:04:54] Speaker 04: That's correct, Your Honor. [00:04:55] Speaker 04: And that leads me to the second point, which is that it's a balancing of harms. [00:04:59] Speaker 04: The harm of potential confusion between state permitting regimes, which has already persisted as Colorado's brief makes clear, this has been an issue that's been up in the air for years, and direction from this court would be very useful in guiding regulated industry. [00:05:19] Speaker 04: But on the one hand, you do have potential contrast between the state and the federal permitting regime. [00:05:24] Speaker 04: On the other, you have facilities getting new permits [00:05:28] Speaker 04: that are excluding fracking emissions improperly, and they're getting weaker, minor source permits rather than major source permits that are more protective of air quality. [00:05:38] Speaker 01: Well, let me ask the question then, because in looking at the briefs and looking at the question whether or not there was a waiver or not, [00:05:49] Speaker 01: It appears to me that I agree with the EPA that your argument in your briefs is a whole lot clearer and understandable than what it was before the hearing. [00:06:00] Speaker 01: So with the confusion, and you recognize the word confusion in your own response, both to Judge Bacharach and Judge Carson, why isn't it? [00:06:12] Speaker 01: more appropriate to send this back to the EPA and with the argument that now is completing and make it without without the vacator. [00:06:25] Speaker 04: Yes, Judge Baldock, when I use the word confusion, I was [00:06:28] Speaker 04: referring to the existing status of commencement of operation among- When I'm referring to the word of confusion, I'm referring to myself. [00:06:37] Speaker 01: So I just want you to understand where I'm coming from in regards to, this is not an easy case in my humble opinion. [00:06:47] Speaker 01: So the confusion may not be on your part, the confusion may be on my part, [00:06:52] Speaker 01: But I'm one of the people that you're looking to to explain the thing. [00:06:57] Speaker 01: And I've got a couple of more questions later on about explaining. [00:07:01] Speaker 01: So go ahead and proceed. [00:07:03] Speaker 04: Yes, sir. [00:07:04] Speaker 04: The reason why vacancy isn't appropriate under the first, excuse me, is required under the first factor of allied signal as applied through Dynase citizens is that the exemption of fracking emissions in the second sentence of the commencement of operation definition [00:07:22] Speaker 04: Is an illegal exemption, and it can't be corrected on remand. [00:07:28] Speaker 04: This court vacated the illegal exemption for emissions from temporary activities in related case 229546. [00:07:35] Speaker 04: That's a strong example because what. [00:07:39] Speaker 04: EPA and Colorado say they'll do on remand is supplement the record to demonstrate existing state practice. [00:07:47] Speaker 04: And that brings me to a really important point here on the scope arguments where EPA and Colorado are claiming we should have challenged the first sentence of the commencement of operation definition, which is not specific to oil and gas. [00:08:02] Speaker 04: When that sentence came out 30 plus years ago, the original definition was adopted into the SIP over 30 years ago. [00:08:10] Speaker 04: And what they're asking the court to do is to waive judicial review in this specific circumstance where an original definition is being interpreted, where they want to adopt the state's interpretation of that original definition in the SIP in the form of additional federal law. [00:08:32] Speaker 04: They're saying that judicial review is not appropriate in that circumstance. [00:08:37] Speaker 02: Let me quiz you a little bit about where you think these new emissions are coming from, just so we're clear. [00:08:46] Speaker 02: You say they're fracking emissions. [00:08:48] Speaker 02: I mean, when does that occur? [00:08:49] Speaker 02: Are these the fracking emissions that, are there emissions occurring when you're pumping the frack fluids and sand down into the well bore? [00:08:57] Speaker 02: Or is there something before that that you're worried about? [00:09:07] Speaker 04: Yes, sir. [00:09:07] Speaker 04: So emissions can result at the drilling phase. [00:09:10] Speaker 04: Fracking, I think, is the most readily understandable phase where oil and gas is first produced. [00:09:16] Speaker 04: Hold on a second. [00:09:19] Speaker 02: We've got to break it up, because fracking doesn't produce anything. [00:09:22] Speaker 02: Fracking is the process of pumping fluid and sand down into the reservoir under pressure. [00:09:29] Speaker 02: So I mean, there's nothing coming out of the well more at that stage. [00:09:33] Speaker 02: Right. [00:09:34] Speaker 04: The fracking phase includes flow back, which is running the oil and gas returns to the surface. [00:09:40] Speaker 02: Okay. [00:09:41] Speaker 02: All right. [00:09:41] Speaker 02: All right. [00:09:43] Speaker 02: Now let me, let me ask you this then. [00:09:45] Speaker 02: Why isn't that, why isn't that captured by the new rule where, where it says, [00:09:52] Speaker 02: but no later than the end of well completion operations, including flow back. [00:09:58] Speaker 02: I mean, that seems to me, the plain reading of that seems to me to capture what you're talking about. [00:10:06] Speaker 04: The reason is because the first part of the new sentence requires permanent production equipment being used and a consistent flow of products to sales gathering, sales and gathering lines and storage tanks. [00:10:20] Speaker 02: I totally see that, but then it's qualified with the term, but no later than the end of well completion operations. [00:10:31] Speaker 02: So doesn't that supersede the earlier statements in the sentence? [00:10:39] Speaker 04: Well, well completion is a separate phase from the fracking phase. [00:10:44] Speaker 04: So I won't push back if this court wants to say that the second sentence requires fracking emissions be included in commencement of operation. [00:10:54] Speaker 04: The reality is they haven't been and they aren't. [00:10:58] Speaker 04: And I think specific to your point, Judge Carson, the reason for that is because [00:11:05] Speaker 04: The permanent production equipment and the consistent flow of product modifies that later qualification and wells can be completed after the fracking phase. [00:11:16] Speaker 04: So there's not necessarily, there can be fracking that occurs and be concluded before well completion occurs. [00:11:23] Speaker 04: But again, [00:11:24] Speaker 04: If I see I'm over time, I would like to. [00:11:28] Speaker 01: No, no, no, no. [00:11:29] Speaker 01: Being over time in this case isn't going to help you much. [00:11:34] Speaker 01: Why isn't then in fracking? [00:11:37] Speaker 01: Where you start the fracking, it doesn't produce anything. [00:11:41] Speaker 01: It's not until the flow coming back. [00:11:44] Speaker 01: Why isn't the beginning operation secondary? [00:11:49] Speaker 04: The fracking phase includes the flow back phase when oil and gas is returning to the surface. [00:11:54] Speaker 01: You're not answering my question. [00:11:55] Speaker 01: I've divided this up. [00:11:57] Speaker 01: Why isn't then that a second, or I just forgot the word that I'm trying to look for in that. [00:12:06] Speaker 01: But to me, that makes it secondary and not the primary. [00:12:10] Speaker 01: Fracking is the primary, which doesn't produce anything. [00:12:13] Speaker 01: It's the flow back. [00:12:16] Speaker 01: Parse and parcel are the same thing. [00:12:18] Speaker 01: That's secondary. [00:12:22] Speaker 04: Well, flowback still precedes the commencement of operation date as the second sentence defines it. [00:12:29] Speaker 04: So if you want to focus on flowback emissions and use that term, they're still not being included in the second sentence. [00:12:36] Speaker 01: Oh, but secondary is emissions, isn't it? [00:12:41] Speaker 04: Are you saying secondary emissions in terms of the exemption that applies to secondary emissions? [00:12:46] Speaker 04: Yes. [00:12:47] Speaker 04: Oh, I apologize, Judge Paul. [00:12:49] Speaker 04: I see. [00:12:49] Speaker 04: This court did reject that argument implicitly in 2295-46, but to address the question directly, the reason why flowback emissions don't fall within the secondary emissions exemption is because secondary emissions only apply to emissions that aren't from the source itself. [00:13:10] Speaker 04: The well at a well pad is the source itself. [00:13:14] Speaker 04: And when flowback occurs, oil and gas is coming from the well itself. [00:13:19] Speaker 04: Secondary emissions would be like an onsite cement plant that's designed to provide cement while you're constructing a power plant. [00:13:27] Speaker 04: The cement plant emissions are construction-related, are independent, and are not coming from the source itself, which is the power plant in this circumstance. [00:13:36] Speaker 04: But here again, flowback results in oil and gas coming from the well [00:13:40] Speaker 04: part of the stationary source and doesn't qualify as secondary emissions. [00:13:44] Speaker 01: Well, it also seems to me, and I need you to give me an example then of an emission activity that is secondary, but not temporary. [00:14:00] Speaker 04: Yes, Your Honor. [00:14:07] Speaker 04: Well, I do think, I think that's immaterial. [00:14:11] Speaker 04: I think the point is that actually in what this court found in 2295-46 is the opposite, that all secondary missions can be temporary, but not all temporary missions are secondary. [00:14:24] Speaker 04: And that's the important point that applies to what you mean. [00:14:26] Speaker 01: I agree, that's what was said in the first case. [00:14:29] Speaker 01: Now give me a clear, simple example of what we just said. [00:14:38] Speaker 01: That's temporary, but not secondary. [00:14:47] Speaker 04: Well, but again, I think that's immaterial and I can't provide a specific. [00:14:53] Speaker 04: It's fair to say that all secondary emissions are temporary. [00:14:56] Speaker 04: I think that does not overthrow or reject our position because what we're saying is not all secondary emissions, not all temporary emissions are secondary. [00:15:04] Speaker 04: We're saying the inverse. [00:15:06] Speaker 04: And that's what matters. [00:15:07] Speaker 01: Council, I want you to be just understand clear. [00:15:11] Speaker 01: I try not to ask questions in these cases unless I need it for me to be to be helpful to me to understand and get a clear picture of what's going on. [00:15:22] Speaker 01: So I'm not trying to pick on you. [00:15:23] Speaker 01: I'm trying to help myself understand what's going on here. [00:15:27] Speaker 01: Now, the two questions I've just asked you, I'm going to ask your opponent in regards to that. [00:15:33] Speaker 01: She just gets the heads up that I've already asked you the question, and I need an answer. [00:15:39] Speaker 01: So go ahead and with your argument. [00:15:43] Speaker 01: Well, I am over time. [00:15:44] Speaker 02: Judge Becker, can we continue for a moment? [00:15:48] Speaker 05: You bet. [00:15:49] Speaker 05: And by the way, Mr. How do you pronounce your last name again? [00:15:53] Speaker 05: Mehar. [00:15:54] Speaker 05: It's not phonetic. [00:15:55] Speaker 05: Mehar? [00:15:56] Speaker 05: OK, Mr. Mehar, you will get some rebuttal time. [00:16:00] Speaker 05: Thank you, Judge Becker. [00:16:01] Speaker 02: OK. [00:16:08] Speaker 02: You would agree that the flowback emissions are not secondary? [00:16:17] Speaker 02: Correct, Your Honor. [00:16:18] Speaker 02: Right. [00:16:20] Speaker 02: OK, I'm just trying to figure out how all of this fits together. [00:16:25] Speaker 02: And so is the crux of your argument flowback [00:16:33] Speaker 02: forward or do you have, I mean, because one of the things that's not been brought up in the briefing or in the comments were specific examples of where the increase in emissions were coming, except from fracking. [00:16:51] Speaker 02: I mean, fracking emissions are, well, tell me this, just as far as fracking itself goes, do you agree that those are secondary? [00:17:03] Speaker 04: No, your honor, because fracking, well, there's two components to fracking. [00:17:08] Speaker 04: There's the engines that are involved in the process. [00:17:10] Speaker 04: Those are secondary emissions. [00:17:12] Speaker 04: We're not talking about engines involved in fracking in this case. [00:17:16] Speaker 04: But with fracking, and again, I don't want to fight the distinction between fracking and flow back. [00:17:23] Speaker 04: So if we're saying fracking is just the process of injecting liquid sand in a proprietary blend of chemical additives, [00:17:32] Speaker 04: into the ground without the flow backstage, then there aren't emissions associated with that necessarily. [00:17:40] Speaker 04: But with flowback, you have oil and gas coming out of the well itself, and those emissions are not secondary. [00:17:47] Speaker 02: Okay, I agree. [00:17:48] Speaker 02: So, and you know, I mean, Judge Backrack and Judge Baldock and, you know, [00:17:54] Speaker 02: Maybe everyone else might disagree with me. [00:17:57] Speaker 02: I see a line between flow back and fracking. [00:18:01] Speaker 02: The fracking procedure is pumping everything into the ground. [00:18:05] Speaker 02: The flow back is what happens when you open the well back up to produce it. [00:18:09] Speaker 02: All that stuff has to come out before you're going to get anything else. [00:18:13] Speaker 02: So I just want to see where we're starting. [00:18:16] Speaker 02: So basically, emissions are starting from your point of view when we start flowing the well back. [00:18:24] Speaker 02: as far as non-secondary emissions? [00:18:27] Speaker 04: Not to add another component to this, but emissions can result at the drilling phase, too. [00:18:32] Speaker 02: I presume they could. [00:18:33] Speaker 02: They can be almost non-existent, though, with a mud program and different things like that. [00:18:39] Speaker 04: That's why we focused on fracking or flowback. [00:18:42] Speaker 04: But I agree. [00:18:43] Speaker 04: Flowback could be a dividing line, but flowback occurs. [00:18:50] Speaker 04: The state is not considering flowback emissions as part of its NAICS analysis. [00:18:54] Speaker 04: or the major versus minor permitting decision. [00:18:58] Speaker 04: According to the state and EPA, commencement of operation occurs after flowback once there's a consistent flow of product because flowback can result in intermittent emissions. [00:19:08] Speaker 02: And just so I'm clear about that, that's not because they've made some statement. [00:19:12] Speaker 02: I mean, they obviously disagree with you. [00:19:14] Speaker 02: I think their position is, no, we don't think that's right. [00:19:18] Speaker 02: And we disagree about what this language means. [00:19:22] Speaker 02: And you're just on a textual position. [00:19:24] Speaker 02: Your position is that that does not capture the flow back after you've fracked a well or after you've gone in and done some other kind of completion. [00:19:34] Speaker 04: Yes, sir. [00:19:36] Speaker 04: The plain language of the first sentence includes those admissions that you just mentioned. [00:19:41] Speaker 04: But the second sentence now excludes them [00:19:44] Speaker 04: And for the first time in federal law, in the SIP, which means our challenge should be in the scope of this rulemaking, because this is a state interpretation that's being lodged into federal law, and the state and EPA are trying to say that it should escape judicial review, which isn't acceptable. [00:20:04] Speaker 02: So to avoid, this will be my last one, Judge Baccarat, to avoid [00:20:09] Speaker 02: to avoid overburdening my colleagues with my additional questions. [00:20:16] Speaker 02: If we determined from a textual basis that this rule contemplated emissions beginning after you started blowing a well back, would your [00:20:30] Speaker 02: would that satisfy you as far as your position that it is allowing, that it's changing the status quo, that it's a revision to the old rule and not a clarification? [00:20:43] Speaker 02: It would, Your Honor, yes. [00:20:50] Speaker 02: Okay, thank you. [00:20:52] Speaker 05: By the way, Judge Parson, I do want you to, you know, be able to ask all your questions. [00:20:58] Speaker 05: So don't worry about me or Brother Baldi. [00:21:02] Speaker 05: Do you have any other questions? [00:21:03] Speaker 02: No, that's all I have. [00:21:04] Speaker 02: Thank you. [00:21:05] Speaker 05: All right. [00:21:05] Speaker 01: I don't have any either. [00:21:07] Speaker 05: Okay. [00:21:08] Speaker 05: Uh, well, uh, thank you. [00:21:10] Speaker 05: Uh, Paul, let's give, uh, Mr. Bahar. [00:21:14] Speaker 05: Bahar. [00:21:15] Speaker 05: Bahar. [00:21:16] Speaker 05: Yeah, I'm flexible with it. [00:21:18] Speaker 05: Okay. [00:21:19] Speaker 05: Uh, you know, you can, you can, uh, retaliate. [00:21:22] Speaker 05: You can call me Baturaj. [00:21:24] Speaker 05: I'm sure you've gotten that before, Josh. [00:21:26] Speaker ?: Yeah. [00:21:26] Speaker 05: Let's give Mr. Mehar four minutes of rebuttal and let's give both of the respondents council additional two minutes. [00:21:36] Speaker 05: None of you have to use the additional time that I want the time to be equitable. [00:21:43] Speaker 05: So we'll hear from I think Mr. Mitchell. [00:21:51] Speaker 03: Yeah, you're on mute. [00:21:56] Speaker 03: Thank you, your honor. [00:21:57] Speaker 03: Good afternoon, and may it please the court. [00:21:59] Speaker 03: My name is David Mitchell on behalf of EPA. [00:22:02] Speaker 03: I'm going to receive three minutes for the state of Colorado. [00:22:05] Speaker 03: We're looking here at two clean air accidents. [00:22:09] Speaker 05: Okay. [00:22:09] Speaker 05: I'm sorry to interrupt you so quickly. [00:22:12] Speaker 05: So we have divided the clock. [00:22:14] Speaker 05: So this clock is yours. [00:22:16] Speaker 05: So you have 1346 left. [00:22:18] Speaker 05: Okay. [00:22:19] Speaker 05: Thank you. [00:22:19] Speaker 05: Ms. [00:22:20] Speaker 05: Mayhew will have her own clock. [00:22:23] Speaker 03: Great. [00:22:23] Speaker 03: Thank you so much. [00:22:24] Speaker 03: EPA approved two Clean Air Act state implementation plan revisions to Colorado's regulation three at issue here. [00:22:31] Speaker 03: First, it approved a revision that maintained Colorado's prohibition on commencing construction of a covered source without a general new source review permit. [00:22:40] Speaker 03: This court should deny the petition on this claim because it continued Colorado's lawful prohibition on construction without a permit. [00:22:48] Speaker 03: And petitioner specific challenges to other aspects of Colorado's program are not subject to review here. [00:22:54] Speaker 03: Second. [00:22:55] Speaker 05: Oh, I'm sorry. [00:22:56] Speaker 05: Go ahead with your second point before I start asking about that. [00:23:01] Speaker 03: Sure. [00:23:01] Speaker 03: Second, EPA approved your revision that added an oil and gas well-specific provision to the definition of commencement of operation. [00:23:09] Speaker 03: This court should deny the petition on this claim because Petitioner did not preserve it. [00:23:14] Speaker 03: Petitioner did not present the EPA in its comments on the revision [00:23:18] Speaker 03: a very different argument in its brief and therefore forfeited the claim. [00:23:22] Speaker 03: If this claim was preserved though, the court should remand to allow EPA to consider these arguments that were not presented to EPA. [00:23:29] Speaker 03: So, Judge Bacharach, I'm going to start with that first issue about commencing construction. [00:23:34] Speaker 03: This was a limited revision that just replaced some words and maybe the technical change to the regulatory text to align it with Colorado statutory text. [00:23:44] Speaker 03: It replaced [00:23:45] Speaker 03: Commence construction. [00:23:46] Speaker 05: Now, when you say, let me kind of drill down, no pun intended, on that point. [00:23:54] Speaker 05: So when you say that you were conforming it to the statutory regime, are you saying that you are, that that second sentence on the timing of the commencement of operation, that you were conforming that to the statutory provision or the prior, the previously approved SIP of Colorado? [00:24:16] Speaker 03: So your honor, I'm talking about the other issue about commenced construction, not commenced operation. [00:24:22] Speaker 03: So just to make sure- Oh, I'm sorry. [00:24:24] Speaker 05: Okay, sorry. [00:24:26] Speaker 03: So that commenced construction prohibition, Colorado maintained it in that CIP revision. [00:24:31] Speaker 03: Okay. [00:24:31] Speaker 03: It didn't change anything about that program. [00:24:35] Speaker 05: Okay, now I'm with you. [00:24:37] Speaker 05: I appreciate you clarifying that. [00:24:38] Speaker 05: So let me ask you about that though. [00:24:40] Speaker 05: Is building permit number 10, does it in fact allow [00:24:44] Speaker 05: Uh, construction to immediately commence, you know, as soon as, uh, the, uh, you know, the entity, the industry sends the registration to the Colorado air division. [00:24:59] Speaker 03: It does allow commencement upon registration, but your honor, that is not a question that this court can review here. [00:25:04] Speaker 03: Review of those permits is not available in federal court. [00:25:07] Speaker 03: It's not part of the state implementation plan that Colorado implements. [00:25:12] Speaker 03: These permits are reviewable in state court. [00:25:14] Speaker 03: They're not part of the SIP provision, and they're not part of the SIP at all. [00:25:18] Speaker 03: It's simply outside of this case. [00:25:20] Speaker 05: Let me play devil's advocate with you. [00:25:22] Speaker 05: I understand you say that that was back in 1997, but if you change the language, perhaps it was no intent to change the substance from what it was 27 years ago, but if you change the language, commence or construct, operate, et cetera, by changing the language, do you not reopen that to [00:25:49] Speaker 05: to have a revisit for judicial review, whether or not the change of language in effect allows Colorado to make these changes and prevent regulators from halting construction until there's a preliminary assessment of the compliance with the air quality ambient standards. [00:26:17] Speaker 03: Your honor, not only does it not reopen, [00:26:19] Speaker 03: review. [00:26:21] Speaker 03: This court can't review those permits. [00:26:23] Speaker 03: Permits that are issued by the state of Colorado are not reviewable in federal court. [00:26:28] Speaker 05: No, I understand that. [00:26:29] Speaker 05: I don't think anybody would question that. [00:26:30] Speaker 05: At least I don't. [00:26:31] Speaker 05: But my question is, when you change the language in this, when Colorado changes the language in the SIP and now EPA is approving that change in the language, [00:26:46] Speaker 05: Why doesn't the approval of the revised language subject that to judicial review? [00:26:55] Speaker 03: The revised language is subject to judicial review, but the revised language didn't change the prohibition. [00:27:00] Speaker 03: Before the change, the existing regulation prohibited a source from commencing construction. [00:27:06] Speaker 03: It shall not commence construction. [00:27:09] Speaker 03: The new regulation says, shall not construct [00:27:13] Speaker 03: operate or modify. [00:27:14] Speaker 03: And then it has a lower provision that says you cannot commence these activities. [00:27:17] Speaker 03: So there was no change in the prohibition. [00:27:20] Speaker 03: Insofar as you're reviewing the regulatory change, the review would be, well, you still can't commence construction under the change. [00:27:27] Speaker 03: So you can review it, but there's no change. [00:27:29] Speaker 03: It maintains the prohibition. [00:27:32] Speaker 02: The actual challenge is- Let me stop you for a minute. [00:27:35] Speaker 02: So your position is because it doesn't effectively change anything. [00:27:44] Speaker 02: There's nothing to review. [00:27:45] Speaker 02: I mean. [00:27:48] Speaker 03: There's something to review, but the review would be, well, Colorado prohibits construction, commencing construction without a general resource review permit. [00:27:57] Speaker 03: That's what's required. [00:27:58] Speaker 03: That is a legal SIP. [00:27:59] Speaker 03: The question about the actual permits, that's not reviewable here. [00:28:03] Speaker 03: And the other challenge that petitioners make to the notice and comment period, that's just not related to the prohibition against construction. [00:28:11] Speaker 03: Whether you have notice and comment for only the general permit in the first instance, [00:28:16] Speaker 03: or you have notice and comment for the individual coverages under the permit doesn't change the fact that the regulatory text in the regulations prohibit commencing construction without a permit. [00:28:27] Speaker 03: It maintains it. [00:28:28] Speaker 03: It's just not related. [00:28:29] Speaker 03: It doesn't reopen the notice and comment provision [00:28:33] Speaker 03: the general permit program and it doesn't allow review of the actual general permits general permits because there's no jurisdiction and the notice in common because those were approved long ago in 1997 and there's no reason to reopen it here and in fact Petitioner didn't even argue that there's an after-arising event or a reason that would reopen those unrelated provisions now your honors I'm going to turn to the commencement of operation Issue because it seems there there is a lot of confusion about this question [00:29:01] Speaker 03: And there's a lot of confusion because Petitioner's argument and claim is ever evolving. [00:29:08] Speaker 03: At the state level, Petitioner did not challenge the addition to the definition of commencement of operation that Colorado added. [00:29:17] Speaker 03: And then in their comments that they submitted to EPA, it was narrow. [00:29:22] Speaker 03: It was more limited here. [00:29:24] Speaker 03: And it relied on a different factual and legal theory. [00:29:28] Speaker 03: The theory in their comment was that, [00:29:30] Speaker 03: EPA, Colorado was somehow excluding pre-production emissions or emissions prior to operations. [00:29:39] Speaker 03: So EPA looked at that. [00:29:41] Speaker 05: Is that really fair, Mr. Mitchell, because they specifically, in their comment to EPA in the rulemaking, specifically challenged [00:29:50] Speaker 05: in a number of places, the fact that the SIP was excluding emissions from fracking, from drilling, from well operation. [00:30:02] Speaker 05: And so now the EPA's response was, well, we're not changing anything. [00:30:06] Speaker 05: We're simply clarifying it. [00:30:08] Speaker 05: But Mr. Maher had been, or at least his client in the rulemaking, was specifically challenging the exclusion of these [00:30:20] Speaker 05: of the preliminary assessment's consideration of the very admissions that he is challenging in his petition for judicial reviews. [00:30:30] Speaker 05: So how can you say that he hasn't at least reasonably alerted the EPA to the fact that this new federally enforceable SIP is excluding admissions that shouldn't be excluded? [00:30:45] Speaker 03: But, Your Honor, first, it's because this claim is very different than the comment. [00:30:51] Speaker 03: The comment is focusing on pre-production emissions, emissions prior to operations. [00:30:55] Speaker 03: It's only talking about modeling consequences for the NACs. [00:30:59] Speaker 03: There's no discussion of major sources, no reference of potential to emit Colorado's preliminary analysis. [00:31:06] Speaker 03: or even a change in when commencement of an operation occurs, which is what this claim is actually about. [00:31:11] Speaker 03: It's notable that it only cites EPA's regulations for the minor source permitting program, 40C-CFR 51-160 to 164. [00:31:21] Speaker 03: It leaves out everything about the major source program. [00:31:24] Speaker 03: So when EPA took a look at what this comment is focusing on, emission prior to operation, it said, okay, emissions prior to operations, what does the existing definition say? [00:31:34] Speaker 03: Well, commencement of operation begins when a source first conducts the activity that it was designed and permitted for. [00:31:42] Speaker 03: Oil and gas wells are designed and permitted to produce oil and gas, not to construct a well. [00:31:47] Speaker 03: So pre-production emissions, emissions prior to operations, those occur before that. [00:31:52] Speaker 03: There would be no need for EPA to consider modeling because this revision clarification, when you butt it up against the plain language of the existing definition, wouldn't have changed anything with respect to those emissions. [00:32:04] Speaker 03: Now, you turn and you look at the argument, the claim that's actually before this court and the petition. [00:32:09] Speaker 03: It's very different, and it starts on a different fundamental premise. [00:32:12] Speaker 03: It says that commencement of operations occurs before construction ends, that there's some delta between construction ending and commencement of operations, and that this clarification moved commencement of operations from sometime during construction to the end of construction. [00:32:30] Speaker 03: in that these newly excluded emissions have some sort of effect on the potential to emit and effect on the major source program. [00:32:39] Speaker 03: EPA didn't look at this question or consider it because Petitioner did not raise it [00:32:45] Speaker 03: clearly to EPA in its count in a way that would trigger a review of this, especially when they're only citing minor source regulations in that comment. [00:32:54] Speaker 03: And it's notable, Your Honor, and they do have to take a minute to make this point. [00:32:58] Speaker 03: Petitioners argue in their brief that the Clean Air Act 307D case law applies to this issue, but this is not a Clean Air Act 307D action. [00:33:07] Speaker 03: The case law that is applicable here are the federal common law forfeiture doctrines that apply outside of a statutory context. [00:33:15] Speaker 03: and they require a petitioner to have raised its arguments in the common period before EPA. [00:33:21] Speaker 03: It's very notable in the Silverton Snowmobile Pub case. [00:33:24] Speaker 03: That case found forfeiture [00:33:27] Speaker 03: of an argument in a reply, not just because it wasn't presented in the opening brief, but because the specific argument was not presented to the agency. [00:33:35] Speaker 03: And that makes sense. [00:33:37] Speaker 03: The purpose of this whole exercise of notice and comment is to provide the agency notice so they can actually address the issue that the commenter has with the action. [00:33:46] Speaker 03: And this comment did not raise this issue about major sources, PTE, whether permitting is not [00:33:56] Speaker 03: proper under the law. [00:33:58] Speaker 03: And in fact, the legal theory and petitioner's brief is different. [00:34:03] Speaker 03: When you look at the comment and it's focusing on those emissions modeling, emission modeling is about the actual effect of emissions going into the air and what their concentrations are. [00:34:15] Speaker 03: The brief is arguing something very different. [00:34:18] Speaker 03: It's arguing a technical violation [00:34:21] Speaker 03: of EPA's new source review major source regulations. [00:34:27] Speaker 03: It's saying you don't have to look at modeling in that instance. [00:34:30] Speaker 03: It's just, it's illegal. [00:34:32] Speaker 03: They included additional emissions that are not being captured. [00:34:36] Speaker 03: You've butted up against EPA's regulation, and that doesn't comply. [00:34:40] Speaker 03: That's a very different question, very different legal theory than EPA needs to consider modeling to figure out what effect these sources have. [00:34:48] Speaker 02: Now, Your Honor, if you were to find that- Let me ask you a few questions about that. [00:34:53] Speaker 02: So are you trying to communicate to us that [00:35:02] Speaker 02: maybe the original argument or original position in the comments had to do with some secondary sources that aren't in play now that the focus was what was happening during drilling as far as emissions from engine, you know, mobile off-road engines and things like that. [00:35:22] Speaker 02: I mean, is that, I'm just trying to, I mean, [00:35:29] Speaker 02: At a very specific level, the arguments are different. [00:35:34] Speaker 02: At a higher level, they say the same thing. [00:35:38] Speaker 02: I mean, I'm just trying to figure out what the context was at the time they were making the comments. [00:35:43] Speaker 02: Because it may have been before our recent case. [00:35:47] Speaker 03: Your Honor, these issues are not the same. [00:35:53] Speaker 03: Petitioners are relying on a theory that [00:35:56] Speaker 03: There is some sort of effect and some sort of mandated requirement for PTE in EPA Colorado's regulations, which is with respect to these emissions. [00:36:08] Speaker 03: And that's just simply not the case. [00:36:09] Speaker 03: Nothing on the face. [00:36:10] Speaker 03: I see my time is up, Your Honor. [00:36:11] Speaker 03: May I finish? [00:36:13] Speaker 03: Sure. [00:36:14] Speaker 03: Nothing in these regulations mandates that PTE be calculated at this preliminary analysis point and that certain emissions are excluded before and certain emissions are excluded after. [00:36:25] Speaker 03: I encourage you to go and read carefully. [00:36:27] Speaker 03: It doesn't say that. [00:36:29] Speaker 03: Of course, Colorado is going to have to conform its state implementation plans with the decisions of this court, but this regulation does not foreclose that. [00:36:37] Speaker 03: The specific comment that EPA looked at [00:36:42] Speaker 03: From CBD was very different presented a very factual and legal theory and EPA should have the opportunity to consider that if you find that this issue was preserved for appeal. [00:36:54] Speaker 03: and consider it on remand without vacater. [00:36:56] Speaker 03: Thank you, Your Honors. [00:36:57] Speaker 02: Okay, Judge Becker, can I ask him a few more questions? [00:37:00] Speaker 02: Yeah. [00:37:02] Speaker 02: Okay, so I was asking your opposing counsel some questions about the text of the new rule or the revisions to the rule about the, and a lot of it was focused on flow back. [00:37:24] Speaker 02: Do you recall sort of the colloquy he and I were having about that? [00:37:28] Speaker 03: Yes, your honor. [00:37:29] Speaker 02: All right. [00:37:29] Speaker 02: Tell me, you know, give me your two cents on that. [00:37:34] Speaker 02: I mean, I can ask you specific questions if you'd like, but you can just give me your position if you'd like. [00:37:42] Speaker 03: Well, I think the most important point here is that EPA didn't parse these emissions. [00:37:46] Speaker 03: EPA took a look at a comment that was talking about pre-production emissions, emissions prior to operations, and butted that against a regulation that said commensurate operation occurs when the source first performs the activity that it was designed and permitted for. [00:38:04] Speaker 03: Operations, production of oil and gas is what it's designed and promoted for. [00:38:08] Speaker 03: So EPA didn't go through a process of parsing, what does this emission mean at this state, at that state. [00:38:13] Speaker 03: It took the comment for what it was and it butted up against the definition, against the existing definition. [00:38:20] Speaker 03: I share here for Colorado, but one of the whole purposes of this clarification is that industry was interpreting this to mean something even later. [00:38:27] Speaker 03: They were interpreting it to mean the date of first production, which meant that there was permanent equipment on site and that there was full flowback, continuous flow. [00:38:41] Speaker 03: This definition puts a stopgap and clarifies that, no, no, no, no, no, you can't avoid commencement of operation by just keeping your temporary equipment on site. [00:38:51] Speaker 03: Once you have continuous flow, regardless of whether it's temporary or permanent equipment, you're going to have commencement of operation. [00:38:59] Speaker 03: And oh, by the way, there's a stopgap at the very back. [00:39:02] Speaker 03: If you complete well operations, commencement operation has occurred. [00:39:05] Speaker 03: So the whole purpose of this was to resolve this clarity, this confusion, this misinterpretation that industry had. [00:39:15] Speaker 03: And it's one of the reasons why you should leave the rule in place on remand if you remand and if this issue were properly preserved. [00:39:24] Speaker 03: Because if you were to not, we'll have a situation where vacating the rule will result in uncertainty and potential disruption because vacating won't change Colorado's state program, but it will make [00:39:35] Speaker 03: the operation of the revision that was meant to clarify when this happens, unenforceable under federal law. [00:39:44] Speaker 03: And that would be a result that is not good for Colorado, is not good for industry, and certainly shouldn't be viewed as good by a petitioner. [00:39:52] Speaker 02: Thank you. [00:39:52] Speaker 02: Okay, so it sounds to me like you don't necessarily have a strong position on what I was asking Mr. Mahar about and that you want Ms. [00:40:02] Speaker 02: Mayhew to answer that question. [00:40:05] Speaker 03: But Your Honor, EPA didn't look at this issue. [00:40:07] Speaker 02: OK. [00:40:07] Speaker 02: It's not the record. [00:40:11] Speaker 02: I'll ask her the question. [00:40:14] Speaker 03: Yes, Your Honor. [00:40:17] Speaker 05: Judge Carson, do you have anything else? [00:40:19] Speaker 05: I don't. [00:40:19] Speaker 05: Thank you. [00:40:20] Speaker 05: OK. [00:40:21] Speaker 05: Judge Bolot? [00:40:22] Speaker 01: Oh, nothing. [00:40:23] Speaker 05: Let me just ask one question just to make sure. [00:40:27] Speaker 05: I think I know the answer, but I just want to make sure. [00:40:29] Speaker 05: If we decide that the issue on the timing of the commencement of operation [00:40:34] Speaker 05: was preserved, I assume that your position, Mr. Mahar, is that generally we don't have any discretion to uphold it under some other, or Mr. Mitchell, rather, that we would need to remand. [00:40:58] Speaker 05: And then the issue would be whether to vacate the existing rulemaking or not, right? [00:41:04] Speaker 03: Your Honor, EPA is requesting an opportunity to take a look at the arguments that petitioner brought in his brief but didn't have in his comment. [00:41:15] Speaker 03: It's EPA's position that make it or is not appropriate. [00:41:20] Speaker 05: No, I understand. [00:41:21] Speaker 05: I just wanted to make sure that you don't think we could uphold, if it was preserved, that we could reject on the merits this argument that Mr. Mahar has made about the timing of the commencement of operation. [00:41:35] Speaker 03: Did you acknowledge that EPA hasn't addressed it? [00:41:37] Speaker 03: That's right, Your Honor. [00:41:38] Speaker 03: EPA hasn't addressed it. [00:41:40] Speaker 03: This Court should give EPA an opportunity to do so without vacater. [00:41:44] Speaker 02: All right. [00:41:45] Speaker 02: Thank you. [00:41:47] Speaker 02: Can I jump back in just to make sure we've nailed that down? [00:41:49] Speaker 02: So your position is, even if we think Mr. Mahar is wrong, because EPA has not considered this, [00:42:02] Speaker 02: his argument because you don't think it was presented in the comments that it needs to be remanded without vacature back to you so you can consider it in the first instance. [00:42:18] Speaker 02: Your honor. [00:42:19] Speaker 02: That's what it sounded like to me when you were talking to Judge Becker. [00:42:22] Speaker 03: EPA is requesting a remand to consider this question. [00:42:26] Speaker 03: EPA has not expressed an opinion on the merits of the arguments that petitioner [00:42:32] Speaker 03: made in the brief that weren't in the comments, and EPA is asking an opportunity to address that before the court. [00:42:39] Speaker 03: Okay, fair enough. [00:42:41] Speaker 05: Okay, thank you. [00:42:44] Speaker 05: And Judge Harsher, you didn't have anything else, did you? [00:42:48] Speaker 05: No, I didn't. [00:42:49] Speaker 05: Thank you. [00:42:50] Speaker 05: Okay, you bet. [00:42:52] Speaker 05: Okay, tell me how you pronounce your name so I don't mess that up. [00:42:55] Speaker 00: You said it exactly correct, Mayhew. [00:42:57] Speaker 00: Thank you. [00:43:00] Speaker 00: Good afternoon and may it please the court. [00:43:03] Speaker 00: My name is Laura Mayhew and I represent the state of Colorado in this matter. [00:43:08] Speaker 00: And I just want to come out of the gate and say the reason that Colorado does not permit these type of pre-production emissions petitioners raise here and that specifically what they raised in their brief is drilling, fracking, and well completion is because Colorado has viewed those as secondary emissions or their emissions from non-road engines [00:43:29] Speaker 00: and they are properly excluded from the permitting process as this court just held last year in case 229546. [00:43:37] Speaker 00: However, the question of what emissions should be or should not be included in Colorado's permitting program is outside the scope of what EPA considered because nothing changed. [00:43:53] Speaker 00: The limited zip revisions at issue did not change how Colorado treats these pre-production activities or the fact a source must obtain a general permit prior to construction. [00:44:09] Speaker 00: EPA's record. [00:44:10] Speaker 05: Would you say that that's the way that Colorado has applied it? [00:44:14] Speaker 05: Has Colorado applied it as an interpretation of the SIP that was approved in 1997, or is this some sort of internal procedure that the Colorado Air Division has interpreted? [00:44:29] Speaker 00: And I'm, your honor, I'm talking specifically about how the division or Colorado has looked at pre-production emissions for permitting purposes. [00:44:41] Speaker 05: Yeah, that's what I'm asking about. [00:44:43] Speaker 00: Yes. [00:44:44] Speaker 00: Yes. [00:44:44] Speaker 00: So that is how they have looked at it. [00:44:48] Speaker 00: And again, this only clarified how they have handled these pre-production emissions. [00:44:54] Speaker 05: Yeah. [00:44:54] Speaker 05: And what Mr. Maher has argued in his reply brief is that may well be good, but how the Colorado Air Division has internally interpreted its standards [00:45:11] Speaker 05: aren't necessarily federally enforceable unless EPA has approved the language in the SIP and has endorsed Colorado's internal interpretation that fracking well completion and drilling would be excluded, that the emissions would be excluded. [00:45:32] Speaker 05: So in other words, I think what his argument [00:45:34] Speaker 05: at least that part is, well, there's still going to be a disconnect between what the federally enforceable limits were until the recent approval of the SIP and the recent approval of the SIP because it doesn't matter for purposes of EPA's federal regulations, what Colorado had done internally. [00:45:57] Speaker 00: And your honor, so that part of the rule was already in Colorado SIP. [00:46:03] Speaker 00: And in fact, in EPA's final rule, which I believe is on page six of the administrative record, they acknowledged that drilling and fracking are not regulated by regulation three, which is Colorado's permitting regulation. [00:46:18] Speaker 00: And so EPA recognized that those emissions were not part of the permitting process. [00:46:26] Speaker 00: and therefore in this change are also not part of the permitting process. [00:46:33] Speaker 00: So it was already in the SIP. [00:46:36] Speaker 00: I see. [00:46:38] Speaker 00: And however, I want to go back and talk about the question of what emissions should or should not be, or again, outside the scope of what EPA considered. [00:46:49] Speaker 00: And EPA's record supports in numerous places that these limited SIPP revisions did not change Colorado's program. [00:46:58] Speaker 00: Some examples of the record are found at pages 709 through 711, 751 through 755, and 1865 through 1866. [00:47:11] Speaker 00: This is where Colorado discussed in its 2019 state rulemaking documents, the purpose, reasoning, and consequences of these revisions. [00:47:24] Speaker 00: And petitioners supported these revisions and did not challenge them under Colorado's APA. [00:47:30] Speaker 05: Well, I don't know that. [00:47:32] Speaker 05: I mean, I read Colorado's, I mean, the CBD's comments in the Colorado rule banking. [00:47:39] Speaker 05: And can you point, I have here, I mean, I'm not, this isn't a pop quiz, but, you know, starting on 899, can you point me to any specific statement that CBD had said in the Colorado rule banking that we endorse, we support [00:47:58] Speaker 05: any specific provision, much less any of the provisions that they're challenging here. [00:48:07] Speaker 00: And yes, Your Honor, I appreciate that question. [00:48:09] Speaker 00: On page 900, in the Center's request for party status, they said that they are requesting party status to advocate for the adoption of these revisions. [00:48:22] Speaker 05: Yeah. [00:48:22] Speaker 05: I mean, they say over and over again, [00:48:26] Speaker 05: But for example, page nine hundred, but we will advocate for further improvements, which it may include, but are not limited to. [00:48:34] Speaker 05: And then there's five bullet points and they conclude, as you say, on page nine hundred was saying that they request party status so that it can fully participate in the rulemaking. [00:48:46] Speaker 05: And so I don't see on page nine hundred where they where they suggest [00:48:54] Speaker 05: approval of any specific change, but am I overlinking something on the page? [00:49:01] Speaker 00: Well, and I can pull it up that they said they advocate for the adoption, to advocate for the adoption of these revisions. [00:49:13] Speaker 05: Okay. [00:49:14] Speaker 05: Can I ask you a different question? [00:49:16] Speaker 05: Sure. [00:49:17] Speaker 05: You know, we deal with invited error all the time, not necessarily in this context. [00:49:22] Speaker 05: But a typical example is a criminal case. [00:49:26] Speaker 05: Let's say I get charged with a crime. [00:49:28] Speaker 05: And I ask Judge Carson, who's conducting the trial, Judge Carson, would you please instruct on self-defense? [00:49:40] Speaker 05: And Judge Carson instructs on self-defense. [00:49:42] Speaker 05: And then on appeal, I tell the 10th Circuit, Judge Carson made a big boo-boo because he instructed on self-defense. [00:49:49] Speaker 05: He shouldn't have done that. [00:49:51] Speaker 05: I have invited Judge Carson, the tribunal under review, to make the mistake. [00:49:58] Speaker 05: Here, Mr. Mahar is not challenging anything that Colorado has done. [00:50:04] Speaker 05: They're challenging what the EPA has done. [00:50:08] Speaker 05: So I've never seen a case, and maybe this is going to be the first time, but I've never seen a case where the argument for invited error is that the tribunal under review [00:50:21] Speaker 05: is not an issue, it's a previous entity. [00:50:26] Speaker 05: In other words, you're saying that theoretically that Mr. Mahar has encouraged Colorado to do something in their rulemaking, but again, we have no jurisdiction to review what Colorado did. [00:50:40] Speaker 05: We only have jurisdiction to review what the EPA did, and you haven't argued [00:50:45] Speaker 05: that CBD did anything to invite the EPA to improperly approve these changes. [00:50:56] Speaker 05: Even if we put aside the fact that there's not any cases on it, how can we utilize invited error when there's no argument that they invited the EPA to do it? [00:51:13] Speaker 00: Well, and Your Honor, if you actually look at EPA's record, the majority of EPA's record is Colorado's rulemaking record. [00:51:23] Speaker 00: And so Colorado did acknowledge, right, that the invited error doctrine has not been applied in this context. [00:51:32] Speaker 00: But certainly, EPA looks at what happened during Colorado's rulemaking procedure in determining what it's approving and what the rule did. [00:51:43] Speaker 05: I see. [00:51:44] Speaker 05: Okay, thank you. [00:51:46] Speaker 00: And your honors, I see that I'm out of time. [00:51:49] Speaker 00: May I conclude? [00:51:50] Speaker 05: I take it up so much of your time. [00:51:53] Speaker 00: Pardon? [00:51:53] Speaker 00: Oh, of course. [00:51:55] Speaker 02: Can I ask a question first, Judge Beckerack? [00:51:57] Speaker 02: Oh, sure, sure. [00:52:00] Speaker 02: Although the way this argument's come down, it sounds like maybe nobody agrees that this even needs to be answered, but I'd be curious of your response [00:52:14] Speaker 02: Would you agree with me that emissions that occur during flow back are not secondary? [00:52:25] Speaker 00: Your honor, and I would have to defer to my client who the permit engineers who work with this all the time. [00:52:32] Speaker 00: What I can point you to is to page 1865 of the record, which is the statement of basis and purpose when Colorado adopted these rules. [00:52:43] Speaker 00: And they talked about the reason, you know, the commission clarified that the end of flowback, i.e. [00:52:50] Speaker 00: when the product is capable of consistently flowing to permanent equipment is the latest date at which commencement of operation may occur. [00:52:58] Speaker 00: And so it certainly sounds like that is included in commencement of operation. [00:53:04] Speaker 02: Okay, so I proposed a certain textual analysis to Mr. Mahar. [00:53:12] Speaker 02: that said that, hey, once it's flowing back, that's it, under this rule, it's no longer secondary. [00:53:23] Speaker 02: And he said, well, I'm not sure, because he was concerned that the words permanent and, [00:53:35] Speaker 02: You had to have all these consistently flowing wells and things like that. [00:53:41] Speaker 02: Would you agree with my textual analysis that despite those terms up above that they're modified by the flow back provision where it says that, hey, listen, at the latest, this starts a flow back. [00:54:00] Speaker 00: And I would agree that [00:54:03] Speaker 00: As soon as that oil and gas well production facility is operating as it was designed and permitted for, it's commenced operation. [00:54:12] Speaker 00: And this is actually maybe a good time, too, to remind the court Colorado permits, they don't [00:54:21] Speaker 00: permit that they do permit the entire facility facility wide permit but as they're doing pre-construction permitting they're permitting the different equipment so maybe separators and tanks and different things so as soon and it again that is also explained on 1865 page 1865 [00:54:41] Speaker 00: that as soon as one of, whether it's a separator or a tank or whatever type of equipment, as long as it qualifies for this and complies with this definition, that commencement of operation has occurred for that piece of equipment. [00:54:59] Speaker 00: And I don't know if that clarifies or confuses the issue. [00:55:04] Speaker 00: Hopefully clarifies. [00:55:06] Speaker 02: All right. [00:55:06] Speaker 02: Thank you. [00:55:07] Speaker 00: You're welcome. [00:55:08] Speaker 00: So, and do you, and is that okay if I take 30 seconds to wrap up? [00:55:14] Speaker 00: Okay. [00:55:14] Speaker 00: Thank you, Judge Bacharach. [00:55:16] Speaker 00: I appreciate it. [00:55:17] Speaker 00: So in conclusion, it's Colorado's position that there's no record evidence or legal authority supporting petitioners' allegations, and therefore they have failed to carry their burden. [00:55:31] Speaker 00: Conversely, the record supports EPA's determination here that the SIPP revisions made no substantive changes to Colorado's permitting program, and therefore it should be upheld. [00:55:45] Speaker 00: And, therefore, also remand to reconsider is not appropriate or necessary here. [00:55:53] Speaker 05: Thank you. [00:55:54] Speaker 05: Thank you. [00:55:55] Speaker 05: By the way, Judge Baldock, did you have any additional questions? [00:56:00] Speaker 05: No, I just had a confusion and up. [00:56:03] Speaker 05: You have done. [00:56:05] Speaker 05: Okay. [00:56:06] Speaker 05: Well, thank you very much, counsel. [00:56:07] Speaker 05: And, Mr. Mehar, you've got four minutes. [00:56:11] Speaker 05: We cheated you out of your four minutes, so you have your four minutes back. [00:56:18] Speaker 04: I do appreciate it. [00:56:19] Speaker 04: I'd like to just jump in where Judge Carson left off, because I did not mean to come across like I was equivocating in our discussion, because I do have a clear position on this. [00:56:30] Speaker 04: And I'd just like to state it simply, maybe that'll help instead of the way it came out in a question and answer format. [00:56:38] Speaker 04: The qualification of no later than the end of well completion operations. [00:56:42] Speaker 04: The issue with that is that say there's 10 wells at a well cap, which is an average number. [00:56:48] Speaker 04: The end of well completion operations implies the very end of well completion at the last well, but fracking can take place over days and even weeks in certain circumstances. [00:57:00] Speaker 04: So all of those earlier wells will be fracked in the end of well completion operations. [00:57:05] Speaker 04: Including flowback will only occur when the last well is fracked and then operations commence. [00:57:12] Speaker 04: So you're missing the vast majority of fracking emissions or flowback emissions adopting the framing that you've put forward. [00:57:22] Speaker 04: I'd also like to return to judge back on your initial question about vacatur and the consequence. [00:57:28] Speaker 04: And I just wanted to clarify something. [00:57:30] Speaker 04: In the event of a difference between state regulation and federal regulation with vacatur, that results in something called a SIP gap, where there's a difference between what the state is required in its permitting program and what the federal SIP approved program requires, which, you know, that's the big distinction [00:57:48] Speaker 04: what's in the stamp and what's outside of it. [00:57:50] Speaker 04: The state would have to conform its state permitting program to the federal program or else lose its delegated authority to run that permitting program because the cooperative federal scheme is premised on delegation. [00:58:05] Speaker 04: So the vacatur would result in an improved federal program to which the state would need to conform. [00:58:18] Speaker 04: I'd also like to just quickly address exhaustion by reading the first two sentences of our comment. [00:58:27] Speaker 04: We say EPA is proposing to approve the revised definition of commencement of operation with regard to oil and gas operations in IB-12. [00:58:35] Speaker 04: This definition excludes building activities such as drilling wells, fracking wells, and completing wells. [00:58:41] Speaker 04: We went on to discuss the scale and extent of the pollution from these facilities [00:58:47] Speaker 04: identifying that the NAICS analysis needs to account for drilling, fracking, well completion emissions, which is what we're saying at commencement, the new definition excludes. [00:58:58] Speaker 04: And we also discussed minor sources, as Mr. Mitchell pointed out. [00:59:03] Speaker 04: The reason for that is twofold. [00:59:06] Speaker 04: First, anything that's not a major source is a minor source. [00:59:10] Speaker 04: So when you're talking about minor sources and you're talking about exemptions that apply to emissions, [00:59:15] Speaker 04: that result in a source being minor, you're also talking at the same time about exemptions that shouldn't qualify a minor sources major. [00:59:25] Speaker 04: And, you know, practically the reason we were addressing minor sources is because Colorado has never issued a major source permit for an oil and gas well pad in the non-attainment area. [00:59:38] Speaker 04: Despite repeated non-attainment, you know, nearly over a decade in the year of ozone levels [00:59:45] Speaker 04: the state ambient concentrations. [00:59:49] Speaker 04: And despite the large part of that problem being attributed to the natural gas, excuse me, the oil and gas industry as the largest contributor of ozone precursor pollution in the state, the largest human cause source. [01:00:05] Speaker 04: Finally, I'd like to just, in my 10 seconds, try to state it simply, since it seemed confusing, since it's been confusing. [01:00:12] Speaker 04: What changed? [01:00:12] Speaker 04: Federal law changed. [01:00:14] Speaker 04: Federal law previously required one definition of commencement of operation that included fracking emissions. [01:00:21] Speaker 04: After this rulemaking, it includes a new addition to that definition that excludes fracking emissions. [01:00:30] Speaker 04: And we should be able to challenge that in court. [01:00:32] Speaker 04: It's a state interpretation that now has become federal law for the first time. [01:00:36] Speaker 04: Thank you, Your Honors. [01:00:39] Speaker 05: Thank you. [01:00:41] Speaker 05: Judge Carson, do you have any questions? [01:00:45] Speaker 02: No, I don't have anything. [01:00:46] Speaker 05: Thank you. [01:00:47] Speaker 05: Okay. [01:00:48] Speaker 05: Judge Baldiner? [01:00:49] Speaker 01: No, I don't either. [01:00:50] Speaker 01: Thank you. [01:00:51] Speaker 05: Okay. [01:00:51] Speaker 05: Well, this matter is submitted. [01:00:53] Speaker 05: I have an editorial comment for all of the lawyers. [01:00:56] Speaker 05: I thought your briefing and your arguments today were just superb. [01:01:01] Speaker 05: And so we really appreciate the diligence of all counsel in your excellent presentations and all of you are to be commended. [01:01:12] Speaker 05: For your excellent advocacy, but this matter will be submitted and it will be adjourned subject to recall that ask my colleagues to stick around for a second. [01:01:28] Speaker 03: Thank you, your honor. [01:01:30] Speaker 03: Have a good afternoon. [01:01:31] Speaker 05: Thank you. [01:01:32] Speaker 03: You all too.