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Case number 22-1056 Ed Al, Electric Energy Inc.

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Ed Al, petitioners, versus Environmental Protection Agency, and Michael S. Reagan, Administrator, United States Environmental Protection Agency, and case number 23-1035 Ed Al,

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Electric Energy Inc.

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et al.

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petitioners versus Environmental Protection Agency, and Michael S. Regan, Administrator, United States Environmental Protection Agency.

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Mr. Judair for the petitioners, Legislative Role Issues, Ms.

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Van Bellegen for the petitioners, Kevin Bauer, Specific Issues, Mr. Mitchell for the respondents, Mr. Carney for the intervener, Sierra Club.

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Thank you, Your Honor, and may it please the Court.

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Stephen Judair for Petitioners.

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I will address the legislative rule issue in Council for Gavin Power.

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Ms.

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Van Bellegum will address the Gavin-specific issues in the second case.

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And I'd like to reserve three minutes for rebuttal, if I might.

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As the Court knows, in 2015, EPA issued its regulations for the disposal of coal combustion residuals.

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The statute, RCRA, calls these solid waste criteria.

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We're here today because the EPA

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revised those criteria in January of 2022, and it did so through a series of informal documents without following the statutory procedures.

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I'd like to make three points in my argument this morning.

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First, that the statutory context matters.

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Second, that the term infiltration, which I'm sure the court has now read more about than it wanted to, has to be read in the context of the regulations.

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and not removed entirely from that context as EPA's general dictionary definition does.

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And third, that EPA said the opposite in 2015 when it explained what these regulations meant.

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But before I do address these points, I would like to put this case in the context of the USWAG decision, prior USWAG decision from this court.

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In that case, this court considered how EPA's 2015 regulations apply to operating impoundments, impoundments that are still receiving tons of CCR waste

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and that are holding millions of gallons of water that cause the risk of leaking and rupture.

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This court put that risk in between 36 and 57% based on the record in that case.

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This case is different.

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This case is about closing impoundments.

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It's not about operating impoundments.

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And that same record shows that when you close those same impoundments by either method under the regulations, which I'll discuss, the risk of harmful leakage and rupture drops dramatically.

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That's EPA's finding in the record at 571.

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And that is true of both closure options.

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The regulations provide options for how you close.

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Either you can excavate all the CCR material, transport it somewhere else for disposal with all the health and environmental risk that that involves, or you can leave it where it is, drain the water, engineer and install a final cover system, and you can monitor the groundwater at the edge of the CCR waste unit.

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for 30 years to prove that there is no groundwater contamination.

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And when you do either of those things, the record shows that the risk drops dramatically.

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That's why EPA provided optionality.

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The reason it drops dramatically is because you've removed what's called the hydraulic head.

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That's the force of those millions of gallons of water that had been removed before you closed the units.

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So if you fast forward to... What's your best...

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I understand the hydraulic head point to be absolutely central to your position.

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Is that right?

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I think it's central to the reason why this condition doesn't violate the statutory standard.

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I think it's clear even without that the DPA has issued a new legislative rule regardless.

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The latter I'm not sure I follow because the common sense

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view would be that if the concern about these impoundments is leakage, seepage, leaching, running of the toxins in the coal combustion residuals out and into drinking water or groundwater, whatever, nature, people,

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that intuitively one would think that an unlined, which most of these are, or a clay lined and earthen lined enclosure would leak.

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if water was running through it.

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And I take your position to be that the hydraulic head is the thing that pushes it out, and that if you cover and you don't have infiltration of the cover, that there's a kind of different dynamic, a different hydrodynamic, and that the water that a layperson might think would run through and out doesn't.

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Am I wrong about that?

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Can you spell that out?

[00:05:09] Speaker 08:
Right.

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That is our position, but that is our position because that is what EPA said in 2015.

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In the Joint Appendix, in the risk assessment, page 595, 517, EPA explains that when you remove that hydraulic head, it removes the risk.

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This is the risk that you looked at in the USWAC case.

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In the preamble, page 357, EPA says, this rule is designed to address the risk of operating impoundments with a large hydraulic head that creates the pressure that causes the condition that you mentioned.

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And you need that to say that's exclusively the risk that it's looking at.

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I mean, that is the risk.

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That is the risk that the rule and that the Bevel Amendment findings and everything else was designed to prevent, right?

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And so if there's another risk that has now become apparent after years and years, then EPA needs to revise the criteria.

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The RCRA is not a zero risk statute, right?

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And what we're talking about here is not whether the Gavin facility does or not apply with the performance standards or whether there might be a possible risk of leaking.

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What we're talking about is a rule

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under which there can be zero contact.

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Contact is not leaking, right?

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Those are two separate things.

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EPA has said if there is any contact, any contact at all, again, this is in the Gavin final decision at page 19.

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That alone is a violation.

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Well, have they defined what they mean by how they interpret contact?

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Because the Gavin case is saturation.

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of water in and out of here.

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And it seems to me they're not sure that they have yet identified an application of the rule in a non-saturation case.

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So I could be incorrect, but at this point for us, does the record show any enforcement measures against a non-saturated

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reservoir or storage area.

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Right, I don't think we have active enforcement case that is just zero contact, but what we're challenging.

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Sorry, so this is a Gavin case, that was clear enforcement and I didn't ask about zero contact, I asked was that was the case of serious saturation with water, correct?

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That's what the dispute in that case is.

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And that'll be the dispute before the district court in that case.

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Right.

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So saturation is what they said they were relying on there.

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And that's why I was asking you, because I get your point of contact.

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Right.

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Contact is one thing.

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Saturation seems to be a very different thing if we don't even yet know what they mean by contact.

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Because they have elsewhere said if there's contact, but you've got all the technologically available

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sort of scientific, best scientific measures of technology there to prevent contamination, then contact's okay.

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They say we don't have a no contact.

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I don't think that's what they said, Your Honor.

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Unless I understand that they can tell me if I'm wrong.

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The question is, in a case like Gavin, and maybe we just don't even know yet, at this very early stage, how much contact is too much.

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We've got a saturation case.

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And you're saying any contact at all, even if that contact is zero effect on water because the best storage technology and protections are in place.

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Is that the Delta between you two at this point?

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On the record before us?

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Well, whether the Gavin unit does, whether it's 10%, 20%, 30%, whatever it is, those would be resolved in a site-specific situation.

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What we're challenging here, what is the new criteria, is the statement on- Can you make a specific decision in the Gavin case?

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It is.

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It is.

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And the district court will sort that out.

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Absolutely.

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Well, we already have an agency finding, at least, right?

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That's right.

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What we're challenging is... Let me ask you a question.

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You gave a description of what we're talking about here in this case, and it's not clear to me.

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Where does the water... The coal ash is put onto a sluice, they call it, and then water is put in there to drive it toward the pond, is that it?

[00:09:22] Speaker 04:
Yes, sure.

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Where does the water come from?

[00:09:24] Speaker 08:
Where does the water come from?

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It could come from various sources of the land.

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It could be other types of wastewater.

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It could be, I assume, water from another pond.

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Is it from a lake or a river?

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Is it groundwater or surface water?

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I'm not sure that it comes from the same place.

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That's a site-specific issue of where that makeup water would come from.

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So it's like running water.

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I mean, they have some source of running water.

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It's probably some other processed water or stormwater at the facility in most cases.

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Because I know we've had nuclear power plants.

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They have to be located near a large body of water because of the need for cooling.

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And I'm wondering, the reason I'm asking this is I'm just wondering whether that means that your

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type of power plant that burns coal has to be located near a source of water, which would indicate the possibility of contamination.

[00:10:20] Speaker 08:
Right.

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Well, it's not a 316A or 316B Clean Water Act type patrol that we're talking about, right?

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This is water that's some other kind of stormwater.

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Whether or not how the plant cools its boiler would be another issue.

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Maybe it doesn't need a 316A thermal.

[00:10:34] Speaker 04:
There isn't.

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And the Gavin power plant is

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There is a lot of water nearby, isn't there?

[00:10:41] Speaker 08:
I believe there is, but I would defer to Gavin.

[00:10:44] Speaker 04:
No, there are a lot of river macaws.

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Mr. Didier, are you?

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I'm having a little bit of trouble reconciling the way you're reading the 2015 rule.

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Not surprisingly, that's what the case is about and the way the EPA is.

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You refer to the infiltration as referring to infiltration through the cover.

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Yes.

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But as I read the rule, if we look at D1, Romanet 1, that's referring to closure performance standard in general and then

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There's D3, which references the final cover system.

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And the final cover system also talks about minimizing infiltration.

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But before we get to the cover system, we have the general closure performance standard that requires that the owner operator ensure that

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infiltration of liquids into the waste and release of coal combustion residuals, leachate or contaminated runoff is minimized or eliminated to the extent feasible.

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And I take your reading to be that that also is about the final cover up.

[00:11:57] Speaker 08:
Well, if you look at Roman at four, the next one, for example, your honor, it mentions the unit.

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Right.

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And so you can't infer

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Roman at first has minimized the need for further maintenance of the unit.

[00:12:10] Speaker 08:
OK, so that's the reverse of what you just posited.

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Right.

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So the government's argument is at the beginning of D1 means that all of these things apply to the unit.

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That's what their brief says.

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That's their argument.

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All of these things apply to the unit unless they say otherwise.

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But you can't infer that given the way that little Romanette for you can learn from its wording.

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The I'm sorry.

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Interrupted.

[00:12:33] Speaker 08:
You're not interrupting me.

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It says, closure performance standard when leaving coal combustion residuals in place, one, the owner or operator of a CRR unit must ensure that at a minimum, the unit is closed.

[00:12:46] Speaker 08:
Right, it doesn't say.

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In a manner that will control, minimize, or eliminate post-closure infiltration of liquids into the waste and releases of CCR leachate contaminated run-up.

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And then separately, there's a provision about the cover.

[00:13:03] Speaker 08:
Right.

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Couple of points there, your honor.

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First of all, I don't think you can infer that all five of those apply to the unit.

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from the introductory phrase.

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It just says that the unit has to be closed.

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You have to look at all five of those things on their own terms, right?

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So the question is, what does infiltration mean?

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What does it mean to minimize infiltration?

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Your Honor pointed to D3.

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That's a really good clue.

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That's the only other place where minimize infiltration is used in relation to the final cover system.

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Now, it doesn't say only, right?

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But to get to the only, you can back up to B, 1, 3, Romanet 3.

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B?

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As in boy is in boy one Roman at three tells me if I'm closing in place, what is it that I have to do to comply with D?

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all of D, not just D3, but also D1.

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What I have to do is design and install a final cover system.

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And then I have to make sure that that final cover system complies with D, all of D. You're reading prominent three to say that all you have to do.

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I'm saying that in place, I'm saying have a good cover.

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I'm saying that that's how you read.

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infiltration.

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That is the context that we have to understand that and that's what you're saying that all you're required to do if closing in place is follow the cover system rules.

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Is that what I heard you say?

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Not D3.

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I agree that the whole of D is a cover system rule.

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Yes, that is the con if I'm going to interpret infiltration.

[00:14:35] Speaker 06:
I think I misheard you talking about D or B.

[00:14:37] Speaker 08:
The question really is, what does it mean to minimize infiltration?

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The rule itself doesn't define infiltration, granted.

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Kaiser says you go to the context, you go to the history.

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I want to specifically address the whole D3, D1 issue.

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EPA says, well, if we're talking about infiltration in the cover, that's D3.

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D1 has to mean something different.

[00:15:05] Speaker 05:
You're talking about Arabic 3, final cover system versus closure performance standard.

[00:15:10] Speaker 08:
Yes, Your Honor.

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So EPA makes a big deal about those two and says, well, if it's covered under D, if your cover is addressed in D3, D1 must mean something else.

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But that's not true.

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What EPA explained in the final rule, and what I think EPA conceded in its brief, in page 37, was that the infiltration requirement

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added to address comments about the final cover system because if you install a final cover system there could be extreme circumstances and the rule talks about this desiccation or settlement or even if it's designed according to the specific procedures under D3 right then you could have an issue that you have to address anyway and it's those extreme conditions

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that you have to take account of in D1.

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That's why EPA said in the final rule, that is the final cover system has to minimize infiltration.

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Look at the very bottom of page 37.

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That's why EPA said that provision was added to the regulation.

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What are these covers made of?

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I think I might be outstripping my coverage here, your honor.

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All different types of materials.

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D3 says it's got to have certain kind of clay and have a certain permeability in all these things.

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Right.

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OK.

[00:16:22] Speaker 08:
So I'm not exactly sure about that.

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Sorry.

[00:16:30] Speaker 06:
My technological ability is way less than yours here.

[00:16:34] Speaker 06:
But I understood part of the argument to be that in D2, prominent one, where it says free liquids must be eliminated before you put the cat on.

[00:16:51] Speaker 06:
And one of your concerns is that, as you read the EPA documents you have referenced, they are including with free liquids, groundwater.

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Is that correct?

[00:17:05] Speaker 08:
they are including within free liquids, all, all groundwater, irrespective of whether it meets the rest of the definition of free liquids.

[00:17:13] Speaker 08:
That's the concern.

[00:17:14] Speaker 06:
Yes, Your Honor.

[00:17:16] Speaker 06:
Okay.

[00:17:16] Speaker 06:
And my understanding again is you have these big, I'm trying to call them pits for now, I guess they can be different shapes, but open pits that while they're actively operating can be there for decades collecting CCR.

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And then one day we say, now we're stopping and we're going to,

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close it and remove the free liquids.

[00:17:36] Speaker 06:
And you define free liquids as, I understand it has, I'm sorry, there's a definition somewhere of free liquids.

[00:17:44] Speaker 06:
I don't have it in front of me.

[00:17:46] Speaker 06:
But as you define it, does that mean it's something that comes from, is it only liquid that comes from pushing the coal into this pit?

[00:17:55] Speaker 08:
No, it could be derived from anywhere.

[00:17:56] Speaker 08:
It's really not relevant where it's derived from.

[00:17:59] Speaker 06:
It could be derived from groundwater too.

[00:18:01] Speaker 08:
What's relevant?

[00:18:02] Speaker 08:
Yes.

[00:18:02] Speaker 08:
What's relevant?

[00:18:03] Speaker 06:
Rainwater.

[00:18:04] Speaker 06:
Yes.

[00:18:04] Speaker 08:
Okay.

[00:18:04] Speaker 08:
What's relevant, this is what you have to remove, are liquids that are readily separable from the waste portion of the unit under ambient temperature and pressure.

[00:18:14] Speaker 08:
Okay.

[00:18:14] Speaker 08:
Groundwater is not limited in that way.

[00:18:16] Speaker 08:
There's the definition of groundwater that's just water under the surface.

[00:18:18] Speaker 06:
I understand, but if there is groundwater coming in to the residuals, that has to be eliminated before closure.

[00:18:26] Speaker 08:
if it's readily separable and if it would as an engineer.

[00:18:29] Speaker 06:
Separable from what?

[00:18:30] Speaker 06:
I make sure there's other chunks of coal.

[00:18:32] Speaker 06:
From the waste.

[00:18:32] Speaker 06:
Yeah.

[00:18:33] Speaker 06:
The CCR.

[00:18:33] Speaker 06:
All right.

[00:18:34] Speaker 06:
So, but that's, so we just, they get all the water out.

[00:18:36] Speaker 06:
So there's only the hard substances left.

[00:18:39] Speaker 06:
That's what this removal of free liquid.

[00:18:42] Speaker 08:
Not all the water.

[00:18:42] Speaker 08:
It's all the readily separable liquids, right?

[00:18:45] Speaker 08:
So it's not readily separable.

[00:18:46] Speaker 08:
There, there's poor space, right?

[00:18:48] Speaker 08:
It may not really separate.

[00:18:50] Speaker 08:
Those are engineering judgments on a case-by-case basis.

[00:18:53] Speaker 05:
I'm also having trouble with this because the water that is groundwater and the water that was sluice water or rainwater or other water, presumably in ambient conditions, would be all equally separable, no?

[00:19:08] Speaker 08:
Probably.

[00:19:09] Speaker 08:
I'm not sure.

[00:19:10] Speaker 05:
So what is the, just in common sense terms,

[00:19:16] Speaker 05:
How is it that groundwater would not, quote, separate from the solid portion of a waste under ambient temperature and pressure as required by section 257.53?

[00:19:33] Speaker 08:
Because it's not under ambient temperature and pressure when it's under the ground, and that's the definition of groundwater.

[00:19:37] Speaker 05:
But if it were,

[00:19:39] Speaker 08:
If it met the definition of free liquids, it would need to be removed.

[00:19:42] Speaker 08:
Absolutely.

[00:19:43] Speaker 06:
Wait, so if it's the groundwater that has now gone into the pit, it's not where all this CCR is, then it would qualify as liquid.

[00:19:50] Speaker 06:
It has to be removed.

[00:19:53] Speaker 08:
If it met the definition of a free liquid, it would, Your Honor.

[00:19:55] Speaker 08:
Yes.

[00:19:56] Speaker 06:
Okay.

[00:19:57] Speaker 08:
That's an engineering situation, readily separable.

[00:20:01] Speaker 08:
I can't stand here today and tell you what that means in every case.

[00:20:03] Speaker 08:
That's the point.

[00:20:04] Speaker 06:
It's a case because I hadn't maybe I misunderstood your briefs sort of categorically say ground water is distinct from.

[00:20:11] Speaker 06:
free liquids.

[00:20:12] Speaker 06:
What you're saying is when they say groundwater can qualify as a free liquid, you're just saying, well, as long as it meets the ambient pressure and temperature.

[00:20:23] Speaker 08:
Readily separable.

[00:20:24] Speaker 08:
And the rest supports the definition.

[00:20:25] Speaker 08:
And what we're really here about.

[00:20:27] Speaker 06:
And your answer to just pillar was that if it's in the mix there, it's just as separable as rainwater and as whatever water was pushed out there.

[00:20:36] Speaker 06:
And then maybe the CCR itself just has some

[00:20:39] Speaker 08:
Again, it may depend on where in the unit it is, right?

[00:20:42] Speaker 08:
That maybe it's less separable or not separable.

[00:20:44] Speaker 06:
I'm not prepared.

[00:20:45] Speaker 06:
Does separable mean it can be removed?

[00:20:46] Speaker 06:
Does it mean it can be removed, right?

[00:20:48] Speaker 08:
Well, let's take what I think... Is that what it means?

[00:20:51] Speaker 06:
It can be removed without the clean closure approach, right?

[00:20:55] Speaker 06:
You don't have to actually take the entire...

[00:20:57] Speaker 06:
hard pieces of this residuum out I assume can be is removable.

[00:21:02] Speaker 08:
I don't think you have to vacuum I don't think you have to vacuum out all of the water in the in the impoundment which is what EPA's rule is saying here what EPA is saying.

[00:21:09] Speaker 06:
What do you think so how do you get that from this definition if it's readily separable then get all the water out.

[00:21:18] Speaker 08:
It suggests that there's or says that there's liquid that is not readily separable.

[00:21:23] Speaker 08:
It is not readily separable, right?

[00:21:25] Speaker 08:
So if they're making the definition makes a distinction and it's an engineering call, the pores could be different, the pressure could be different, the depth could be different.

[00:21:33] Speaker 08:
Those are all engineering things that happen on a case by case basis.

[00:21:36] Speaker 08:
What EPA said in January of 2022 is if there's one inch of groundwater in the bottom of a hundred feet of dry CCR,

[00:21:44] Speaker 08:
that you cannot close the unit with that condition, right?

[00:21:48] Speaker 08:
If you have basically wet sand in the bottom, you have to remove all that CCR, remove the wet sand.

[00:21:55] Speaker 06:
Either way, that's kind of what the actual water in there.

[00:22:01] Speaker 08:
If there's one inch of water in the bottom,

[00:22:04] Speaker 08:
That is the new rule that EPA says, regardless of whether it's readily separable, regardless of whether it's free liquid.

[00:22:10] Speaker 06:
How could you have an inch in there that wouldn't be separable?

[00:22:12] Speaker 06:
If it's an inch of water, it's definitely, it's not the rocks itself, it's an inch of water.

[00:22:17] Speaker 08:
There's different pressures and different pore species in the impoundment, Your Honor.

[00:22:21] Speaker 08:
I'm not prepared to say what exactly is readily separable, and I don't think that's really an issue.

[00:22:25] Speaker 08:
EPA is bypassing that completely.

[00:22:27] Speaker 06:
well i'm not sure i'm just one of the things really hard here is given what you are saying is the new rule these these press release and these proposed documents um we don't even know yet sort of what what they even mean in their proposal i think we know they said you cannot close a unit we're contacting you're objecting to this groundwater reference but if we don't know

[00:22:53] Speaker 06:
what they mean, what readily separable means is your disagreement about groundwater or is it about technological decisions about readily separable that haven't yet been encountered because at least in the Gavin plant case, no one's talking about an inch of water at the moment.

[00:23:10] Speaker 06:
They're talking about saturation.

[00:23:12] Speaker 06:
And so we haven't even confronted that situation yet.

[00:23:19] Speaker 08:
I'm here to challenge the ensure honor.

[00:23:21] Speaker 08:
That's the rule that EPA stated.

[00:23:23] Speaker 06:
You have a client that has an inch.

[00:23:25] Speaker 06:
Where does the record show that you have a your organization has a member that has an inch?

[00:23:30] Speaker 08:
I don't have that specific information.

[00:23:31] Speaker 06:
You don't have it, then I don't know.

[00:23:32] Speaker 06:
I mean, if you don't have members that have that, I didn't even know how it's ripe or how you have standing.

[00:23:37] Speaker 08:
I do have members, and it's cited in our reply brief, that do have impoundments with coal ash in contact with groundwater.

[00:23:46] Speaker 06:
How much contact?

[00:23:47] Speaker 08:
I don't know the exact details.

[00:23:48] Speaker 06:
Then again, saturation point, when you're asking, you're saying you want to argue about the inch, but we don't know that there's

[00:23:54] Speaker 06:
any such entity that exists at all.

[00:23:57] Speaker 06:
We don't know whether or not they would deem that contact or not.

[00:24:00] Speaker 06:
You're telling me that they've said it will, and I'll take that forgiven for purposes of this question.

[00:24:05] Speaker 06:
But if you're not here to represent any, you can't tell me you're representing anybody.

[00:24:09] Speaker 06:
who was dealing with the inch issue.

[00:24:11] Speaker 06:
And the only situation we have before is a saturation issue.

[00:24:17] Speaker 06:
And saturation seems to be, and maybe this may be my misunderstanding.

[00:24:22] Speaker 06:
My assumption is if it's saturated, did we say 20, 30, 40% water, that there's some water that could be removed.

[00:24:29] Speaker 08:
Here's what I didn't know.

[00:24:30] Speaker 08:
Here's what I didn't know, Your Honor.

[00:24:32] Speaker 08:
Let me go back to the, do I have a client with the one inch?

[00:24:35] Speaker 08:
Okay.

[00:24:35] Speaker 08:
When EPA issued the January, 2022 statements, it also issued a list of 160 impoundments that it believed violated that rule, whatever it was, one inch contact.

[00:24:47] Speaker 08:
Okay.

[00:24:47] Speaker 08:
My clients are on that list.

[00:24:48] Speaker 06:
Well, no, you said they violated.

[00:24:50] Speaker 06:
I don't know that they violated it.

[00:24:52] Speaker 06:
Did they say one of those folks violated?

[00:24:53] Speaker 08:
They said they violated the waste below the water table rule.

[00:24:56] Speaker 06:
That's not what I mean.

[00:24:57] Speaker 06:
That's a no contact rule.

[00:24:58] Speaker 06:
That's not what I'm asking.

[00:24:58] Speaker 08:
It's not even an inch.

[00:24:59] Speaker 06:
It's not what I'm asking.

[00:25:01] Speaker 06:
That's not what I'm asking.

[00:25:04] Speaker 06:
Because if all those people on that list have 10% saturation, we don't have to decide inch issues.

[00:25:12] Speaker 08:
What EPA said there about automatic violation of the rules that we do have to decide that you have.

[00:25:18] Speaker 06:
I don't think that you can't they're your problem.

[00:25:23] Speaker 08:
That's the problem.

[00:25:24] Speaker 08:
They've announced a rule that says no contact.

[00:25:26] Speaker 08:
You cannot close with contact.

[00:25:29] Speaker 08:
That's what they've said.

[00:25:29] Speaker 06:
Yes, I understand that but.

[00:25:33] Speaker 06:
Normally, we look at agency positions in actual applications.

[00:25:40] Speaker 06:
And you're here arguing about a one-inch situation.

[00:25:44] Speaker 06:
You can't tell me if any of the members you have on that list are in fact one inch as opposed to saturation.

[00:25:52] Speaker 06:
Can you or can you not?

[00:25:53] Speaker 08:
I do not know about whether it's one inch or not.

[00:25:55] Speaker 06:
OK, do you know that any of your members on that list are less than 10% saturation?

[00:26:04] Speaker 08:
I don't have the exact numbers.

[00:26:06] Speaker 06:
I'm not asking for exact numbers.

[00:26:07] Speaker 06:
I'm just asking, do you know if there's anything?

[00:26:08] Speaker 06:
I don't know the exact numbers.

[00:26:10] Speaker 08:
There is a citation in our reply brief of comments that we submitted.

[00:26:14] Speaker 08:
When EPA finally did propose this, we submitted those comments.

[00:26:18] Speaker 08:
There's a citation of those comments.

[00:26:20] Speaker 08:
And I think to your point, Your Honor, I agree with you if this is, if it's just site specific, right?

[00:26:26] Speaker 08:
If it's not a rule, if it's not a requirement, if we're not bound by it, if states

[00:26:32] Speaker 08:
Private parties are not bound by this rule that you cannot close with cash in contact with the groundwater if it doesn't have the force of law.

[00:26:41] Speaker 08:
If we're free to challenge it when they come after us, right, on a blank slate, and they're not citing these final and proposed decisions as authority in that case, which is what we suspect they intend to do.

[00:26:54] Speaker 08:
But if they don't do any of that, Your Honor, we agree.

[00:26:57] Speaker 08:
It's a site-specific inquiry, and that's how we think it should be resolved.

[00:27:00] Speaker 08:
That's how the Gavin case should be resolved in the Ohio district.

[00:27:02] Speaker 06:
I thought your view was even something like the Gavin case where it's saturation at a very high level is improper.

[00:27:10] Speaker 06:
Do you agree that the application in the Gavin case was consistent?

[00:27:14] Speaker 06:
Is a straightforward application of the 2015 rule?

[00:27:20] Speaker 08:
What I know about the Gavin case is that we pointed this out in our brief, is that EPA didn't cite at all any violation of the groundwater protection standards.

[00:27:28] Speaker 06:
That's not what I'm asking you.

[00:27:29] Speaker 08:
I don't have a position on whether Gavin, that Gavin situation.

[00:27:33] Speaker 06:
Well, it seems like your brief is filled with Gavin is an illustration of them applying.

[00:27:39] Speaker 06:
It is.

[00:27:39] Speaker 08:
It is.

[00:27:40] Speaker 08:
And on page 19, on page 19, EPA says.

[00:27:43] Speaker 06:
It only works better if one person talks at a time.

[00:27:45] Speaker 06:
If the only, if what you meant by that was any contact, that's just not the facts of that case.

[00:27:54] Speaker 06:
So it's not what it illustrates.

[00:27:57] Speaker 06:
And if you mean by that,

[00:27:59] Speaker 06:
They can't have a 2015 rule would not support an interpretation that says saturation at 10, 20, 30, 40% is fully consistent with this regulation.

[00:28:10] Speaker 06:
That's a very different argument.

[00:28:15] Speaker 08:
My argument is that on page 19 of the final Gavin decision, EPA announced a rule that said groundwater contact alone, alone.

[00:28:23] Speaker 06:
You have a whole lawsuit here that's pre-Gavin final decision.

[00:28:27] Speaker 08:
That's right.

[00:28:28] Speaker 08:
EPA said the same thing in January of 2022.

[00:28:32] Speaker 08:
Surface impoundments cannot be closed with coal ash in contact with groundwater.

[00:28:35] Speaker 06:
Now, EPA wants to say.

[00:28:38] Speaker 06:
Maybe it's a more scientific question.

[00:28:39] Speaker 06:
When the rule says free liquids must be eliminated, if, and this factual if that maybe neither of us knows, but more likely you would know than me, if that one inch is readily separable and was readily separable at the time of closure,

[00:28:57] Speaker 06:
that it would violate this rule.

[00:29:02] Speaker 06:
Eliminated, right?

[00:29:05] Speaker 08:
If it was a liquid that was readily separable from the, that it would need to be.

[00:29:11] Speaker 06:
Even if it's one inch, this rule requires its elimination.

[00:29:15] Speaker 06:
Free liquids must be eliminated.

[00:29:17] Speaker 05:
We're talking to 2015.

[00:29:21] Speaker 08:
If it meets the definition of free liquids, it has to be eliminated.

[00:29:24] Speaker 05:
What if it also meets the definition of groundwater?

[00:29:28] Speaker 05:
The one inch at the bottom, it's groundwater.

[00:29:31] Speaker 05:
It's readily separable.

[00:29:34] Speaker 08:
You're mixing the two definitions.

[00:29:36] Speaker 08:
So if it's... Well, that's part of what I'm asking.

[00:29:38] Speaker 05:
Part of what I'm asking is how much is your position dependent on groundwater being defined in a way that in your view cannot be free liquid?

[00:29:51] Speaker 08:
I think that once it becomes a free liquid, it's not groundwater, right?

[00:29:55] Speaker 08:
Maybe it was groundwater and it became a free liquid, but it has to meet all the definitions, all the elements of the definition of free liquid, period.

[00:30:03] Speaker 08:
Obviously, water can become different things at different times.

[00:30:06] Speaker 06:
It can come in as groundwater and turn into free liquid.

[00:30:08] Speaker 06:
Actually, maybe the second it comes in, it becomes free liquid because

[00:30:12] Speaker 08:
I think that's an issue when you're trying to take it out.

[00:30:16] Speaker 08:
What does readily separable mean?

[00:30:17] Speaker 06:
What do you have to do to take it out?

[00:30:20] Speaker 06:
You don't say there's something different about groundwater once it's in the mix with everything here.

[00:30:25] Speaker 06:
You're just saying that there's a test for free liquid that involves its ready separability.

[00:30:31] Speaker 08:
It involves, yes, and it involves more than just the definition of groundwater.

[00:30:35] Speaker 08:
And that's the definition of groundwater that EPA is using.

[00:30:39] Speaker 08:
It's using it in Gavin final denial.

[00:30:40] Speaker 08:
It's using it in January of 2022.

[00:30:44] Speaker 06:
broader subject that can encompass free liquids or free liquids is broader and can include groundwater that's when it's when it's in the pits.

[00:30:54] Speaker 06:
I keep calling them the lack of a better term.

[00:30:56] Speaker 08:
So I think your first example was the right one.

[00:30:59] Speaker 08:
Groundwater is water than free liquids.

[00:31:01] Speaker 08:
EPA is expanding.

[00:31:02] Speaker 06:
D2 includes groundwater, rainwater or the water that pushes

[00:31:09] Speaker 06:
the stuff into the pit, or water that, it's probably groundwater, but I suppose surface water can come in if a nearby river overflows its banks.

[00:31:18] Speaker 06:
All of those would count as free liquids, as long as once they're in the pit, they're readily separable.

[00:31:25] Speaker 08:
And meet the rest of that definition that I don't have in front of me.

[00:31:30] Speaker 08:
Yes.

[00:31:30] Speaker 08:
Yes, correct, Your Honor.

[00:31:32] Speaker 05:
So for a moment, I thought your position was more

[00:31:39] Speaker 05:
to me, if there is liquid coming into the waste, and if it is feasible to eliminate it as liquid waste, your position is that the original 2015 rule requires that elimination be made before

[00:32:10] Speaker 05:
the cover is put on.

[00:32:14] Speaker 08:
Are we still in the free liquids definition, Your Honor?

[00:32:17] Speaker 08:
I'm sorry.

[00:32:17] Speaker 05:
I think we're in both the infiltration of liquids and the elimination of free liquids, both.

[00:32:27] Speaker 08:
Well, I think you've accepted EPA's broad dictionary definition of infiltration in that hypothesis, Your Honor.

[00:32:34] Speaker 08:
We don't think that's what you're saying.

[00:32:36] Speaker 05:
So you're reading D1 Roman at one as duplicative of D3.

[00:32:45] Speaker 05:
No the final cover system on D3 just which talks about installing cover system minimizing and not at all your honor they're additive EPA explained how they were additive in the final rule.

[00:32:59] Speaker 08:
Should also on page 37 of his brief told us why the infiltration provision was put in there.

[00:33:05] Speaker 08:
It was to account for extreme conditions when the D3 criteria, the specific criteria are not enough to stop the downward migration into the unit.

[00:33:16] Speaker 08:
That is what EPA said in the final, in the preamble to the final rule.

[00:33:20] Speaker 08:
That's the understanding that we've had ever since 2015.

[00:33:23] Speaker 08:
They're not duplicative in our view.

[00:33:26] Speaker 08:
They are additive.

[00:33:27] Speaker 08:
The EPA said they were additive.

[00:33:29] Speaker 08:
EPA said in 2015 was asked specifically if there is a unit with waste below the natural water table, does the CCR have to be removed?

[00:33:41] Speaker 08:
EPA said you can use either method.

[00:33:43] Speaker 08:
And the critical point is that if you have a violation of the groundwater protection standards, you may have to address and remove that CCR.

[00:33:53] Speaker 08:
It may be the best option.

[00:33:55] Speaker 08:
It's not the categorical rule that they said in January of 2022, Your Honor.

[00:34:00] Speaker 05:
When you say that they said in 2015 that you have a choice and that the rule does not require clean closure of any unit, I mean, I think they're still applying it that way, but they're also pointing out that there may and there likely are engineering changes that need to be made in order to keep it in place.

[00:34:31] Speaker 08:
Where are they saying, they're not saying that in the response to comments, your honor.

[00:34:34] Speaker 08:
What they say in the response to comments is if you have that situation and if there's a violation of the groundwater protection standards, which is not a condition of their new rule, then you may have to remove it.

[00:34:46] Speaker 08:
That's what EPA said in 2015, which is not what they're saying now.

[00:34:49] Speaker 08:
What they're saying now, any contact means you cannot close in place with that contact.

[00:34:55] Speaker 08:
Now the engineering measures, your honor, what EPA is saying is in the brief,

[00:35:01] Speaker 08:
multiple times and in the final Gavin decision, it's not that if you have contact, you have to take some engineering measures to prevent contamination.

[00:35:09] Speaker 08:
What they're saying is you have to take measures to remove the contact, right?

[00:35:14] Speaker 08:
So that the rule is if you have contact, you cannot close in place, right?

[00:35:20] Speaker 08:
Now, if EPA wants to say, look, there's some situations, there may be one out there where you could have some contact with groundwater,

[00:35:29] Speaker 08:
You could close the unit that way, monitor, put 100 monitoring wells all around the site, improve for 30 years.

[00:35:36] Speaker 08:
If they would concede that, right, then we don't have a rule anymore.

[00:35:40] Speaker 08:
But that is the rule that they stated.

[00:35:42] Speaker 05:
But they're saying that you need some measures to remove the contact with groundwater.

[00:35:48] Speaker 05:
I believe, and we'll hear from them, because groundwater that is in contact with the waste and

[00:35:57] Speaker 05:
free and open to the rest of the environment is going to leach.

[00:36:01] Speaker 08:
You're adding a bunch of Gavin facts that they wanted to add on?

[00:36:04] Speaker 05:
No, no, no.

[00:36:05] Speaker 05:
I'm reading the rule pre-knowing anything about your case about Gavin, saying that there were no liners in most of these.

[00:36:14] Speaker 05:
And when you have water and you have coal combustion residuals and you don't have a liner, the water takes the material away.

[00:36:26] Speaker 05:
right?

[00:36:26] Speaker 05:
Is that not the simplest problem?

[00:36:28] Speaker 08:
When you have the hydraulic head and what they said when you take it.

[00:36:31] Speaker 05:
That's why I was asking whether hydraulic head is key to your position because if you don't have hydraulic head, is your position as a matter of engineering that water is no longer going to flow even from an unlined facility?

[00:36:42] Speaker 08:
It's not my position as a matter of engineering.

[00:36:44] Speaker 08:
It's my position that that is what EPA found in 2015 when it designed a rule with two closure options

[00:36:50] Speaker 08:
and told facilities that you can.

[00:36:53] Speaker 05:
What is your understanding of the physical state of affairs that that rule is assuming?

[00:37:00] Speaker 05:
I think it's assuming that the hydraulic head is the only risk that's going to cause an unlined facility with water and coal ash residuals, that there won't be any mobility of that out into the environment in ways that everyone agrees are hazardous unless there's hydraulic head.

[00:37:20] Speaker 08:
I'm not saying there's not a risk.

[00:37:22] Speaker 08:
I'm not saying there's not a risk, okay?

[00:37:24] Speaker 08:
RCRA is not a zero risk statute.

[00:37:25] Speaker 05:
No, no, no, you're not saying, you're saying there's not a risk under the 2015 statute.

[00:37:30] Speaker 08:
EPA found.

[00:37:30] Speaker 05:
Not a risk that the 2015 statute requires to be addressed, that regulation requires to be addressed.

[00:37:35] Speaker 08:
It does if there's a violation of the groundwater protection standards, Your Honor, yes, but not in terms of deciding which closure option at the very beginning that you have to pick.

[00:37:44] Speaker 08:
If there becomes an issue, you do what EPA said in 2015.

[00:37:48] Speaker 08:
You monitor the groundwater.

[00:37:49] Speaker 08:
You may have to remove CCR in that situation, but it's not until the groundwater is contaminated is your position.

[00:37:56] Speaker 08:
It's not our position, your honor.

[00:37:58] Speaker 08:
It's not again.

[00:38:00] Speaker 06:
Your position.

[00:38:00] Speaker 06:
You may see it's also EPA's position, but that's your position.

[00:38:02] Speaker 08:
Right.

[00:38:03] Speaker 08:
Well, the groundwater monitoring has two phases.

[00:38:05] Speaker 08:
There's an initial phase that doesn't involve all.

[00:38:08] Speaker 06:
You have to wait until your groundwater monitoring.

[00:38:10] Speaker 06:
You're not fine until the groundwater itself is contaminated.

[00:38:13] Speaker 06:
So your position is they have to wait until the groundwater is actually contaminated.

[00:38:17] Speaker 08:
The monitors are at the waste boundary.

[00:38:19] Speaker 08:
That's where they're required to be.

[00:38:20] Speaker 08:
They're not a mile off.

[00:38:21] Speaker 08:
They're not a half mile off.

[00:38:22] Speaker 05:
They're at the waste boundary.

[00:38:23] Speaker 05:
We've kept you up for a long time, and you have a lot of colleagues who we're eager to hear from as well.

[00:38:28] Speaker 05:
Can you talk about what you think requirement means in 6976A1?

[00:38:36] Speaker 05:
This is a little bit of a more narrow judicial review provision than a typical APA review.

[00:38:43] Speaker 08:
I think it means something that's

[00:38:45] Speaker 08:
more generally applicable.

[00:38:46] Speaker 08:
That's the hazardous waste case.

[00:38:50] Speaker 08:
I think it means in our case, a solid waste criteria, right?

[00:38:53] Speaker 08:
I think that's really what's critical here about the statute is that it's criteria that have to be promulgated as a regulation, right?

[00:39:00] Speaker 08:
And so criteria are the things that we've been talking about today, the divide and open dump from a sanitary landfill.

[00:39:07] Speaker 08:
So I think requirement

[00:39:09] Speaker 08:
I think regulation does too, but I think requirement includes solid waste criteria.

[00:39:13] Speaker 08:
I don't think it includes.

[00:39:14] Speaker 05:
I agree with you.

[00:39:15] Speaker 05:
You said that you think regulation does too, and part of what I'm trying to understand, and this is not a challenge of your making, it's the statute.

[00:39:25] Speaker 05:
Why is requirement in there if regulation?

[00:39:28] Speaker 08:
They seem really close, don't they?

[00:39:30] Speaker 05:
De facto regulation is sort of what?

[00:39:33] Speaker 08:
I think they seem really close, and I think that

[00:39:35] Speaker 08:
I don't have an answer for that.

[00:39:37] Speaker 08:
I don't know that the legislative history said, I do know that you have your cases have discussed them separately.

[00:39:43] Speaker 08:
Right.

[00:39:43] Speaker 08:
And I think it's the government's position that a requirement means everything that's not a regulation.

[00:39:47] Speaker 08:
And we clearly don't think that it's that open ended, right?

[00:39:50] Speaker 08:
The Gavin extension denial is a requirement.

[00:39:52] Speaker 08:
We don't, we don't think that that's the case, your honor.

[00:39:54] Speaker 08:
I think it has to be something of more general applicability.

[00:39:58] Speaker 06:
One last procedural question.

[00:39:59] Speaker 06:
You'd ask for a picture.

[00:40:02] Speaker 08:
That's right.

[00:40:02] Speaker 08:
Of the

[00:40:04] Speaker 06:
How do we do vacature?

[00:40:06] Speaker 06:
Press release and letters of proposed decisions.

[00:40:09] Speaker 08:
That's right.

[00:40:10] Speaker 08:
You vacated press releases before in CropLife, for example.

[00:40:13] Speaker 08:
You vacated frequently asked questions on a website.

[00:40:15] Speaker 08:
I don't think you actually erased them, right?

[00:40:17] Speaker 08:
It's your decision describes what it is.

[00:40:19] Speaker 08:
And we've described the rules, the waste below the water table ban, the new definition of infiltration that just means... We vacated letters of proposed decisions or proposed actions.

[00:40:31] Speaker 08:
I'm not sure about proposed actions, Your Honor, but I think you have vacated parts of things, parts of informal things, right?

[00:40:39] Speaker 08:
And so that's all we're asking here, Your Honor.

[00:40:41] Speaker 05:
Do we have jurisdiction to review these documents if we think they are in effect an interpretive rule or guidance?

[00:40:54] Speaker 08:
I think if they are solid waste criteria, right?

[00:40:58] Speaker 08:
So the APA distinction between

[00:41:01] Speaker 08:
legislative rules and interpretive rules right where you only have to do procedures for legislative rules and not interpretive rules doesn't really hold here because the APA says if the statute otherwise requires then the legislative whatever you're characterizing is an interpretive rule does have to follow those procedures so the question is hypothesis if we don't think that this is

[00:41:24] Speaker 05:
a rule that requires notice and comment rulemaking.

[00:41:26] Speaker 08:
Either type of rule?

[00:41:27] Speaker 05:
If we think it's just interpretive.

[00:41:29] Speaker 05:
Yes.

[00:41:30] Speaker 05:
Is your response to my immediate prior question that you don't, that even if it's interpretive, it would require notice and comment rulemaking because it goes to criteria?

[00:41:38] Speaker 08:
I think if it's, sorry, I think if it's an interpretation with a little eye, right, then you're saying we're not bound by it.

[00:41:48] Speaker 08:
It doesn't have the force of law.

[00:41:50] Speaker 08:
we can challenge it on a blank slate if they ever come against us, that it's not entitled to the type of deference that EPA is seeking in some of these cases, then you would dismiss our petitions.

[00:42:03] Speaker 08:
And you would say, go handle it on a case-by-case basis.

[00:42:06] Speaker 08:
The problem is, Ricker says, if it's a regulation or a requirement, you have to challenge it in front of this court.

[00:42:12] Speaker 08:
And you cannot do it in a later enforcement action.

[00:42:15] Speaker 08:
So it's one or the other.

[00:42:16] Speaker 08:
Either it's solid waste criteria,

[00:42:20] Speaker 08:
And it had to be promulgated as a regulation because the states are out there and we don't have jurisdiction.

[00:42:28] Speaker 08:
Or you would say that it's not binding.

[00:42:30] Speaker 04:
It has no legal effect.

[00:42:31] Speaker 04:
The district court would have jurisdiction.

[00:42:33] Speaker 04:
That's right, Your Honor.

[00:42:36] Speaker 04:
There's two choices here.

[00:42:38] Speaker 04:
I agree, Your Honor.

[00:42:40] Speaker 04:
It's a legislative rule.

[00:42:42] Speaker 04:
There should have been notice in common.

[00:42:44] Speaker 04:
The other choice is it's not a legislative rule.

[00:42:46] Speaker 04:
If it's an interpretive rule, we don't have jurisdiction.

[00:42:49] Speaker 04:
You should have brought them to district court.

[00:42:52] Speaker 08:
If it's not a solid waste criteria, right?

[00:42:54] Speaker 08:
If it's not a binding criteria, if it's not defining what it means to be an open dump, then yes, that's where it belongs.

[00:43:00] Speaker 06:
Defining is not the test from a legislative rule.

[00:43:04] Speaker 08:
It's a test for solid waste criteria.

[00:43:06] Speaker 08:
So the solid waste criteria are the things that have to be promulgated as regulations.

[00:43:10] Speaker 08:
That's why the statute matters, Your Honor, because Ricker says, if you're going to issue these criteria, if you're going to establish what's an open dump and what's not, do it as a regulation.

[00:43:20] Speaker 08:
Talk to the states.

[00:43:22] Speaker 04:
You run into a doctrine of administrative law with that argument, and the doctrine is that it's totally discretionary by any agency subject to the APA, whether to proceed by rulemaking or by adjudication.

[00:43:38] Speaker 04:
We have informal adjudication here, and the Supreme Court in the NLRB versus Bell aerospace case, I don't know if you're familiar with that,

[00:43:47] Speaker 04:
and also in Chenri too, said that the agency can enact, in quotation marks, general rules through an adjudication.

[00:43:57] Speaker 08:
Unless it conflicts with the underlying statute, which is what the court said in NLRB, your honor.

[00:44:01] Speaker 08:
Here, 6944A says solid waste criteria must be regulations.

[00:44:07] Speaker 08:
So they do not have that discretion to establish rules or principles in an adjudication, which is what they've tried to do here.

[00:44:13] Speaker 08:
Good answer.

[00:44:14] Speaker 06:
Thank you.

[00:44:15] Speaker 06:
And if it's an interpretation of an existing rule, it wouldn't apply.

[00:44:21] Speaker 08:
With a little i, yes, your honor.

[00:44:24] Speaker 06:
Thank you.

[00:44:25] Speaker 06:
Thank you very much.

[00:44:30] Speaker 06:
is Van Bellingham.

[00:44:35] Speaker 03:
May it please the court.

[00:44:36] Speaker 03:
I'm Stacy Van Bellingham, and I'm arguing on behalf of petition of Gavin Power.

[00:44:41] Speaker 03:
EPA's issue at issue actions at issue here in the Gavin final denial were designed to contain two things in the guise of this extension denial.

[00:44:52] Speaker 03:
First, the nationwide rulemaking, which Mr Jadair addressed,

[00:44:55] Speaker 03:
In second, the facility specific compliance determinations that I will now address in contrast to the nationwide rulemaking and the final Gavin denial, which is properly before this court EPA's Gavin specific compliance determinations.

[00:45:13] Speaker 03:
are subject to the district court's jurisdiction.

[00:45:16] Speaker 03:
Respectfully.

[00:45:16] Speaker 06:
You filed in district court already, correct?

[00:45:18] Speaker 03:
We did file, Your Honor, yes.

[00:45:20] Speaker 03:
And respectfully, we filed this protective petition to preserve Gavin's rights because EPA raised this jurisdictional argument that this court had review under 6976A1 for the very first time in the final Gavin denial.

[00:45:38] Speaker 03:
And so that wasn't something that was previewed to the parties that proposed.

[00:45:41] Speaker 03:
And so filed a protective petition

[00:45:43] Speaker 03:
But Gavin, respectfully, Your Honor, believes the district court has jurisdiction for two reasons.

[00:45:49] Speaker 03:
First, the Gavin-specific compliance determinations constitute EPA's application of its regulations and requirements to a specific facility.

[00:45:59] Speaker 03:
And the caseloadness circuit that has looked at that, and we acknowledge that the case law hasn't yet really defined specifically what requirements means to Judge Pillard's question, but all of the case law that had looked at

[00:46:12] Speaker 03:
specific application to a specific facility has found that this court lacks jurisdiction.

[00:46:19] Speaker 03:
And EPA doesn't cite to a single case that finds that this court has jurisdiction over a facility-specific termination.

[00:46:28] Speaker 03:
But second, and I think equally important, EPA's argument asserting jurisdiction under 6976A1 would deprive Gavin of its right to proceed in the district court

[00:46:41] Speaker 03:
to present expert testimony.

[00:46:45] Speaker 03:
And here, particularly with this statute, Congress has determined that compliance and enforcement actions must proceed in the district court.

[00:46:55] Speaker 03:
And I say this, Your Honor, because under the WIN Act that was passed in 2016, Congress gave EPA for the first time enforcement authority directly over CCR.

[00:47:07] Speaker 03:
And in the provision 695D4A, which is cited in our reply brief, makes clear that that enforcement is subject to another provision in RCRA, which is 6928.

[00:47:19] Speaker 03:
6928 is a provision involving compliance orders and enforcement actions.

[00:47:26] Speaker 03:
It makes clear that the district court has jurisdiction.

[00:47:30] Speaker 03:
And indeed, this EPA's jurisdictional argument really would unjustly preclude Gavin or really any other facility from then subsequently challenging any findings the EPA made in the final Gavin decision if this court were to find it had jurisdiction because the statute itself says that action of the administrator with respect to which review could have obtained under 6976A1

[00:47:59] Speaker 03:
shall not be subject to judicial review in civil or criminal proceedings.

[00:48:03] Speaker 06:
What is your position on what requirement means?

[00:48:05] Speaker 03:
So a requirement, it is undefined, but a requirement is not something that EPA specifically applies its existing regulations to a facility.

[00:48:18] Speaker 03:
Now, EPA says that the requirement here is the fact that EPA set a deadline.

[00:48:27] Speaker 03:
But that's

[00:48:29] Speaker 03:
not the case the requirement actually to close the unit what is in the CCR rule and the mechanism for seeking a deadline are in the regulations those are the requirements just backing up a minute you were talking about being deprived of an opportunity to develop a record but isn't there a provision where there is review under

[00:48:52] Speaker 05:
6976 for determinations for the record being being simplified for us.

[00:49:01] Speaker 03:
So your honor EP actually conceded in his brief that provision doesn't apply here and then that makes sense because this is really a compliance determination and these under the statute are matters that are developed in the in the local district court.

[00:49:17] Speaker 03:
And so I think that we are in agreement with EPA that that does not apply here your honor.

[00:49:23] Speaker 05:
And do you have any, you've mentioned that you think it's unclear.

[00:49:27] Speaker 05:
You don't have any particular insight or theory about what requirement means?

[00:49:31] Speaker 03:
It would, we would argue it would be, it would not be a facility specific determination.

[00:49:36] Speaker 03:
And I think that is actually borne out by other parts of the statute, Your Honor.

[00:49:41] Speaker 03:
I had referenced 69, uh, 6928.

[00:49:46] Speaker 03:
which is again going back to the compliance enforcement.

[00:49:49] Speaker 03:
It's interesting because that portion of the statute actually does use the term requirement.

[00:49:55] Speaker 03:
And actually, let me read this to you specifically rather than paraphrasing it.

[00:50:00] Speaker 03:
It talks about civil penalties for past or current violation.

[00:50:04] Speaker 03:
When

[00:50:08] Speaker 03:
EPA determines that any person has violated or is in violation of any requirement in this subject.

[00:50:13] Speaker 03:
I'm sorry, 6928.

[00:50:15] Speaker 03:
6928A1.

[00:50:19] Speaker 03:
When any person has violated or is in violation of any requirement of this subchapter.

[00:50:28] Speaker 03:
And so it's basically making clear that the application of requirements in this subchapter, which really

[00:50:38] Speaker 03:
seems in this context, it could be regulation or other criteria that EPA issues, then it makes clear that it's subject to that jurisdiction.

[00:50:47] Speaker 03:
And so I think that makes clear, Your Honor, that application of requirements, as EPA has done here in applying the regulations,

[00:50:55] Speaker 03:
in applying the regulations regarding extensions of deadlines to a specific facility would not be what Congress has determined is in this court's jurisdiction, 76A1.

[00:51:05] Speaker 03:
And the case law makes clear that that provision is a limitation on the court's jurisdiction, and it's limited to those actions.

[00:51:17] Speaker 05:
If what EPA did here is not to amend an existing legislative rule, but to announce an interpretation in an adjudication, is there any reason that that's reviewable under 6976?

[00:51:36] Speaker 03:
Well, so to the extent that EPA is establishing a criteria of nationwide applicability, then it would

[00:51:47] Speaker 03:
To the extent the EPA is establishing a legally binding prohibition on closing a surface impoundment with waste in contact with groundwater, which is what EPA says, that that would be subject.

[00:51:59] Speaker 05:
And it's very artfully redescribed the terms of my question in a way that sidesteps it.

[00:52:09] Speaker 05:
Is there no category under RCRA given this, your understanding of what is a criterion

[00:52:16] Speaker 05:
There's no category of a criterion that EPA has promulgated in 2015, and it is interpreting.

[00:52:26] Speaker 05:
Is that not a category in your view?

[00:52:27] Speaker 05:
If it's a binding interpretation, or if you're just like Gavin, it's going to come your way just as it did in Gavin.

[00:52:37] Speaker 03:
So as it came in, Gavin, the regulated entities didn't have notice of EPA's position.

[00:52:44] Speaker 05:
But that's a separate question.

[00:52:46] Speaker 05:
But putting in the more traditional sense of either you promulgate a rule,

[00:52:52] Speaker 05:
or and or as the agency applies the rule, it becomes clear in different applications on this fact pattern, on that fact pattern, how is this going to play out?

[00:53:05] Speaker 05:
And it gives people one would hope if the legal system is functioning in a healthy way, more notice, more nuanced understanding.

[00:53:14] Speaker 03:
So EPA could issue guidance, for instance, and there's case law under 6976A1,

[00:53:20] Speaker 03:
determines whether guidance is a requirement or a determination really looking on legal effect, right?

[00:53:25] Speaker 03:
This is legally binding on parties.

[00:53:28] Speaker 03:
EPA can do that and has done it under RCRA in other contexts.

[00:53:32] Speaker 03:
But what EPA can't do, just given the specific structure of this statute, and in particular, 6944A, is to create criteria, new criteria, without going through the procedures that Congress intended in RCRA to do so.

[00:53:51] Speaker 03:
Your honor, thank you very much.

[00:53:53] Speaker 03:
And we would ask you to find that the court lacks jurisdiction.

[00:53:55] Speaker 06:
All right.

[00:53:56] Speaker 06:
Thank you very much.

[00:53:58] Speaker 06:
From the EPA now.

[00:54:19] Speaker 07:
Morning, your honors and please the court.

[00:54:21] Speaker 07:
I'm David Mitchell.

[00:54:21] Speaker 07:
I represent EPA in this matter.

[00:54:23] Speaker 07:
These petitions are about EPA's explanation and application of existing regulations, not whether EPA amended them.

[00:54:31] Speaker 07:
This court does not have jurisdiction to review the documents at issue in electric energy one because none are a final agency action.

[00:54:38] Speaker 07:
In Electric Energy 2, this court does have jurisdiction because EPA promulgated a requirement in the Gavin order, a new cease receipt of waste date.

[00:54:47] Speaker 07:
This court should deny a new cease receipt of waste date, the date by which the facility is going to have to stop receiving.

[00:54:54] Speaker 05:
Cease receipt of waste.

[00:54:57] Speaker 07:
Yes, a cease receipt of waste date, meaning they can't accept any more waste in the appartment.

[00:55:01] Speaker 06:
Denial of an extension request.

[00:55:02] Speaker 07:
It was a denial of an operating extension request.

[00:55:05] Speaker 06:
That's right, Your Honor.

[00:55:06] Speaker 06:
Denial of an extension request.

[00:55:08] Speaker 06:
And that is an EPA's view requirement under 6976.

[00:55:12] Speaker 07:
The new date that was established in the Gavin order to stop receiving waste is a new requirement.

[00:55:20] Speaker 07:
It's an obligation.

[00:55:21] Speaker 07:
Requirement is an obligation and it was promulgated in the Gavin order because it was new in perspective.

[00:55:26] Speaker 07:
There was a previous state that was issued by regulation.

[00:55:29] Speaker 07:
They had to stop receiving waste on April 11th, 2021.

[00:55:33] Speaker 06:
Unless they got an extension, that was part of the regulation too.

[00:55:36] Speaker 06:
Yes, your honor, they need to seek and I didn't get an extension.

[00:55:39] Speaker 06:
That's all Gavin Gavin decision was, was you're not getting the extension, but we had to sort of reset the clock.

[00:55:45] Speaker 06:
This time had passed and that in your view is a requirement.

[00:55:51] Speaker 07:
Yes, your honor.

[00:55:52] Speaker 05:
Statute.

[00:55:52] Speaker 07:
Yes, your honor.

[00:55:53] Speaker 05:
Not a facility specific determination under 69 28 and therefore goes to the district court.

[00:56:00] Speaker 07:
Your honor, it is a Philly's facility specific determination, but the statute doesn't say you have jurisdiction to review.

[00:56:05] Speaker 07:
generally applicable regulations.

[00:56:07] Speaker 07:
It says you have jurisdiction to view regulations or requirements.

[00:56:11] Speaker 06:
This court has not had a- Can every facility-specific adjudication going to have a requirement?

[00:56:17] Speaker 06:
At the bottom, it's going to make a decision that imposes a requirement.

[00:56:22] Speaker 06:
If the agency prevails, they're going to make a decision that there's requirements.

[00:56:30] Speaker 07:
Your honor, there are going to be obligations and adjudications.

[00:56:33] Speaker 05:
As Miss Van Bellum pointed out, under 6928A1 refers to requirement.

[00:56:43] Speaker 07:
Yes, Your Honor.

[00:56:43] Speaker 07:
And requirement does have an independent meaning, and it's not just a requirement.

[00:56:47] Speaker 07:
It has to be promulgated in the actual action.

[00:56:50] Speaker 07:
That means it has to be new, and it has to be prospective.

[00:56:53] Speaker 07:
So if you're looking at an enforcement action, which really just interprets, applies, enforces existing law, you don't have a promulgated requirement.

[00:57:02] Speaker 07:
There's two provisions in that jurisdiction provision in A1 that need to be paid attention to.

[00:57:09] Speaker 07:
It's requirement and promulgate.

[00:57:12] Speaker 07:
Like I said, in enforcement order, those wouldn't come over, come into the jurisdictional review provision under a promulgated requirement.

[00:57:20] Speaker 07:
Only something that's actually new would come in under that language.

[00:57:25] Speaker 06:
You have to promulgate the requirement, right?

[00:57:27] Speaker 07:
Yes, Your Honor.

[00:57:28] Speaker 06:
We've said promulgate means publish in the federal register.

[00:57:31] Speaker 07:
Your Honor, in the Horsehead Development Corporation case, you said that is when it happens for timing, and it was published in the Federal Register here in April 28th.

[00:57:41] Speaker 06:
The EPA always publishes in the Federal Register all its denials of extension requests.

[00:57:45] Speaker 07:
It's only had one final decision and it was published in the Federal Register, but Your Honor, more fundamentally in that case.

[00:57:52] Speaker 06:
Sorry, I'm talking, I'm just asking a generic question here.

[00:57:55] Speaker 06:
Yes, Your Honor.

[00:57:56] Speaker 06:
More broadly, not just under this specific issue here, provision.

[00:58:00] Speaker 06:
I assume there's other programs where EPA is making extension and timing decisions for entities and all of those things get published in the Federal Register?

[00:58:08] Speaker 07:
Let's don't feel like not necessarily not necessarily know your honor, but in the horse head case, the court was talking about the timing of what you said EPA's practice was.

[00:58:19] Speaker 07:
EPA's practice for this action, they publish it in the Federal Register.

[00:58:23] Speaker 06:
They don't do that.

[00:58:23] Speaker 06:
Your practice for Gavin was to publish in the Federal Register.

[00:58:26] Speaker 06:
So are they in the path?

[00:58:28] Speaker 06:
Because the 2015 rules set up this whole scheme for asking for extensions.

[00:58:32] Speaker 07:
That's right, Your Honor.

[00:58:32] Speaker 06:
And every time they have either granted or denied an extension under the 2015 rule, they publish that decision in the Federal Register?

[00:58:39] Speaker 07:
There's only been one final decision.

[00:58:41] Speaker 07:
It is the Gavin decision, and it was published in the Federal Register.

[00:58:43] Speaker 04:
Making much of the publication, there's a case in the circuit

[00:58:47] Speaker 04:
by Judge Williams that actually corrected a prior decision that relied on the publication of a particular document or whatever by an agency.

[00:59:01] Speaker 04:
And Judge Williams, for the life of me, I can't remember the name of the case, but held that the publication was not entitled to any kind of weight.

[00:59:12] Speaker 04:
because the agency itself did not have decision-making authority over whether something would be published in the federal register or not, because there's a whole body of experts that make that determination in the federal, or whatever the federal office is, and it's not the agency that makes the judgment.

[00:59:35] Speaker 04:
You're not familiar with that case, I assume.

[00:59:38] Speaker 07:
Your Honor, no, I'm not familiar with that case.

[00:59:39] Speaker 07:
But I do want to focus back on promulgate as it's used in the Horsehead case.

[00:59:44] Speaker 07:
Because the salient point, I think, from that case is that promulgate takes its ordinary definition.

[00:59:50] Speaker 07:
And the court said it in the same part of the opinion where it said promulgation for a regulation happens at the time of publication.

[00:59:57] Speaker 07:
And if you take the ordinary definition of promulgate to make public a law,

[01:00:02] Speaker 07:
What happened in the Gavin order is it made public the new cease, receipt of waste date.

[01:00:07] Speaker 07:
It didn't apply an existing obligation.

[01:00:09] Speaker 07:
It didn't enforce an existing obligation.

[01:00:12] Speaker 07:
Didn't interpret law.

[01:00:13] Speaker 07:
It actually announced the cease, receipt of waste date.

[01:00:16] Speaker 07:
And it is that date that provides this court jurisdiction.

[01:00:19] Speaker 06:
Pre-existing obligation to cease receiving the waste.

[01:00:23] Speaker 06:
And all it did was move the date.

[01:00:27] Speaker 06:
And if that counts as a requirement, I'm having trouble understanding how everything else that's done in adjudications would not also count as a requirement.

[01:00:37] Speaker 06:
And so 6976A is going to consume and practice the provision for district court review.

[01:00:47] Speaker 07:
It's not going to consume because it can't just be a requirement, a requirement, an obligation.

[01:00:51] Speaker 07:
It has to be something that's generally new in perspective.

[01:00:53] Speaker 07:
It has to be actually promulgated.

[01:00:56] Speaker 07:
It can't be that it's just enforcing something that's new.

[01:00:58] Speaker 06:
What kind of agency decisions are new in the sense that we're now applying this to you?

[01:01:05] Speaker 06:
You thought you weren't violating it.

[01:01:07] Speaker 06:
We're telling you that you are violating it.

[01:01:09] Speaker 06:
That's new.

[01:01:10] Speaker 06:
It's prospective.

[01:01:11] Speaker 06:
Go fix it.

[01:01:12] Speaker 06:
That happens in a lot of informal adjudications.

[01:01:15] Speaker 07:
You're right.

[01:01:16] Speaker 07:
I don't think it's fair to characterize that as new.

[01:01:19] Speaker 07:
It's saying you need to do what you have to do under the existing obligations.

[01:01:22] Speaker 07:
It's the existing obligations thing.

[01:01:24] Speaker 06:
They said you had to meet that original deadline.

[01:01:28] Speaker 06:
You didn't qualify for an extension under the existing regulation because you didn't meet its criteria.

[01:01:34] Speaker 06:
So that's all you were doing was applying your existing 2015 rule on extensions and said they didn't, they dispute obviously, but they said, you said you didn't meet the criteria so you don't get the extension.

[01:01:45] Speaker 07:
That's right, Your Honor, but it's notable that they said you don't get the extension and then they set a new date.

[01:01:49] Speaker 07:
They set a new date in the future.

[01:01:51] Speaker 06:
Because time and EPA didn't go fast enough.

[01:01:55] Speaker 06:
That makes it a requirement that we review.

[01:01:57] Speaker 07:
Your Honor, it's EPA's view that this is a new requirement.

[01:02:00] Speaker 07:
It does provide this court jurisdiction, but if you don't view this as a requirement, this court doesn't have jurisdiction over

[01:02:05] Speaker 07:
electric anyone or electric energy to because EPA did not.

[01:02:11] Speaker 07:
It's regulation all it did in the Gavin order is in is apply it.

[01:02:16] Speaker 05:
It took the clear like about that.

[01:02:18] Speaker 05:
Substantively.

[01:02:19] Speaker 05:
It.

[01:02:23] Speaker 05:
Petitioners make a lot of the.

[01:02:26] Speaker 05:
pre-2015 switch by the agency from using the term natural water table in the proposed rule to using uppermost aquifer as the metric for separation of groundwater.

[01:02:38] Speaker 05:
Can you explain the reason for that switch?

[01:02:40] Speaker 05:
And is groundwater the same as aquifer?

[01:02:43] Speaker 07:
Your Honor, that change had to do with the location restriction and making it clear to regulated entities what the location restriction is, but it doesn't have any bearing

[01:02:53] Speaker 07:
on these closure requirements that are separate requirements to close with waste in place.

[01:02:57] Speaker 07:
Now there are a few points from petitioners' argument that I think need to be addressed.

[01:03:01] Speaker 07:
Number one, they focus on the word infiltration in D1.

[01:03:06] Speaker 07:
Well, that provision doesn't just require controlling, minimizing, or eliminate infiltration.

[01:03:11] Speaker 07:
It has an independent requirement to control, minimize, or eliminate releases.

[01:03:16] Speaker 07:
Their argument about infiltration doesn't get them releases.

[01:03:19] Speaker 07:
If you have a unit that is leaking,

[01:03:22] Speaker 07:
It's releasing water and as the Electric Power Research Institute found in 2016, it generates leachate and the leachate comes along with it.

[01:03:29] Speaker 07:
Now there's another main point that petitioners are just not correct about.

[01:03:34] Speaker 07:
EPA has never said that units with groundwater in them have to clean clothes, that they have to take all the CCR and ship it off to another facility.

[01:03:42] Speaker 07:
All they said is the unremarkable

[01:03:45] Speaker 07:
position that they have to comply with the performance standards that are written, meaning they have to do something.

[01:03:51] Speaker 05:
Isn't that remarkable?

[01:03:51] Speaker 05:
I mean, it's a big deal, in fact, right?

[01:03:54] Speaker 05:
I mean, can you explain a little bit more how a CCR unit saturated with groundwater could close with waste in place?

[01:04:03] Speaker 07:
They would need to take some engineering measures to address the groundwater.

[01:04:07] Speaker 05:
There are big deal engineering measures.

[01:04:09] Speaker 05:
I mean, pump it all out, put in a liner, pump it back in.

[01:04:15] Speaker 07:
They may be, the energy measures may be a big deal, but they could be feasible.

[01:04:19] Speaker 07:
And on the record we have here, though, we have an issue where Gavin Power didn't try to do anything.

[01:04:24] Speaker 07:
They didn't submit any documentation.

[01:04:26] Speaker 07:
They didn't respond to EPA's proposal and say, oh, we considered these engineering measures or those.

[01:04:30] Speaker 07:
They just said.

[01:04:31] Speaker 05:
But that has to be your position.

[01:04:33] Speaker 05:
So they keep saying, and you say, we're not imposing any requirement of a clean close in a sense that you're understating.

[01:04:41] Speaker 05:
I mean, they may have to do.

[01:04:44] Speaker 05:
substantial engineering in order to close.

[01:04:48] Speaker 05:
You're not denying that.

[01:04:50] Speaker 07:
They may have to do substantial engineering, yes, Your Honor, but we don't know because Gavin Power didn't do anything to evaluate what they could do, what engineers they could take.

[01:04:58] Speaker 07:
Their position on this regulation, and I think this is a fundamental point, is that they don't have to do anything at all or even consider any measures.

[01:05:06] Speaker 07:
They can just let the groundwater flow through the unit, and that complies with the regulation.

[01:05:13] Speaker 07:
There is another point that petitioners- That's their position.

[01:05:16] Speaker 07:
That's their position.

[01:05:17] Speaker 07:
And it's at odds with the clear text of the regulation, the structure of the regulation.

[01:05:22] Speaker 07:
Judge Fullard, as you noted, the units, the entire unit's revisions in D1 are in D1, and the ones that are related to the cover in D3, D1 references to the unit, those apply to the entire unit.

[01:05:36] Speaker 07:
But another point is petitioners are also resting on this,

[01:05:42] Speaker 07:
idea about the hydraulic head, the hydraulic head being removed, and what the risks are.

[01:05:47] Speaker 07:
Now, EPA was very clear in its risk assessment that the hydraulic head is eliminated only when free liquids are eliminated.

[01:05:55] Speaker 07:
When there is groundwater in a unit, there is a hydraulic head.

[01:05:59] Speaker 07:
But fundamentally, this unit is leaking.

[01:06:03] Speaker 07:
The risk that this court identified in EPA discussed at length in the 2015 rule is those from a leaking unit.

[01:06:11] Speaker 06:
Is that what you mean by contact with groundwater is leaking?

[01:06:17] Speaker 07:
No, your honor, contact with groundwater means that there's groundwater in the unit, but the consequences of that and in the Gavin final decision.

[01:06:23] Speaker 06:
How to get in there.

[01:06:25] Speaker 06:
I'm trying to understand, is your rule just about ones where you thought you eliminated all the water, but you didn't?

[01:06:31] Speaker 06:
And so it was improperly closed.

[01:06:35] Speaker 06:
And so the whole thing's about, the cover don't really matter because you didn't get all the water out.

[01:06:40] Speaker 06:
But what if the water comes in, if the water comes in after it's closed,

[01:06:45] Speaker 06:
their inch of water, then if it can come in, it can go out.

[01:06:50] Speaker 07:
That's right, Your Honor.

[01:06:51] Speaker 07:
If the water can come in, it's going to go out if it's groundwater.

[01:06:53] Speaker 07:
It flows through the unit.

[01:06:55] Speaker 06:
Then why was your answer no?

[01:06:56] Speaker 06:
If contact means water got in, it means either you didn't eliminate it before you put the cover on, or it means you put the cover on, but nonetheless, because of some other problem, groundwater got in.

[01:07:10] Speaker 06:
Are these the two options?

[01:07:12] Speaker 07:
Your honor, the regulation has several provisions that are meant to eliminate the free liquids and prevent water from getting back in the unit.

[01:07:21] Speaker 07:
They have to do several independent things.

[01:07:23] Speaker 07:
They have to, number one, eliminate the free liquids.

[01:07:26] Speaker 07:
They need to drain the unit.

[01:07:27] Speaker 07:
In kind of a colloquial sense, if you have water in a water bottle of sand, you poke a hole in it and it drains out.

[01:07:33] Speaker 07:
They have to do that.

[01:07:34] Speaker 07:
If you just leave groundwater flowing through a unit, you haven't done that.

[01:07:37] Speaker 07:
You have to control, eliminate, or minimize to the maximum extent feasible post-closure infiltration of liquids into the unit.

[01:07:45] Speaker 07:
If groundwater is flowing through the unit, that hasn't been done.

[01:07:48] Speaker 07:
And then you have to also do the same for releases.

[01:07:50] Speaker 07:
Again, if water is flowing through the unit, collecting in waste, leachates coming out, you haven't done that.

[01:07:56] Speaker 07:
And there's a final provision.

[01:07:58] Speaker 07:
You have to preclude the future impoundment of water.

[01:08:01] Speaker 07:
If groundwater is in the unit,

[01:08:03] Speaker 07:
They haven't precluded the future empowerment of water.

[01:08:06] Speaker 07:
It's still there, is the point.

[01:08:08] Speaker 07:
And when you haven't done that, what the rule is saying is you have to do something.

[01:08:12] Speaker 06:
I'm just asking something more simple.

[01:08:14] Speaker 06:
OK.

[01:08:14] Speaker 06:
Yes, Your Honor.

[01:08:14] Speaker 06:
That's very helpful, and I appreciate that.

[01:08:16] Speaker 06:
But it sounds like, so this thing is closed.

[01:08:20] Speaker 06:
It's got a cover on it.

[01:08:21] Speaker 06:
Engineers sign off.

[01:08:23] Speaker 06:
And then there's water in there.

[01:08:26] Speaker 06:
And is that would that be evidence either if water got in?

[01:08:32] Speaker 06:
Is there a way water can come in without going back out?

[01:08:36] Speaker 06:
Not to our knowledge that if groundwater is flowing, if we're talking about brown water flows upfront, obviously it wasn't eliminated, but if it's actually eliminated before they put the cover on.

[01:08:47] Speaker 06:
Then you talked about coming in and going out, but I thought it would be the same thing if you can come in or it can go out.

[01:08:53] Speaker 06:
Or is the whole idea is that the cover prevents it from going back out?

[01:08:56] Speaker 07:
The cover is not going to bring groundwater from coming back into the into the unit, but I think also if it comes in, but the problem is if it goes out, isn't it?

[01:09:05] Speaker 06:
That's the problem.

[01:09:06] Speaker 07:
Well, there's two problems.

[01:09:07] Speaker 07:
There's infiltration into the unit coming in and then there would be released from the unit coming out.

[01:09:11] Speaker 07:
Both are going to occur if groundwater continues to flow.

[01:09:15] Speaker 06:
This is just my type of question.

[01:09:17] Speaker 06:
If there's water in it, why does that matter as long as the contaminated water isn't going out?

[01:09:23] Speaker 07:
Your honor, the regulation, what it requires, it says eliminate free liquids.

[01:09:29] Speaker 07:
So the liquids need to come out, and then you need to eliminate post-closure infiltration of liquids.

[01:09:36] Speaker 06:
I'm just asking if the magic door could only come in, but it couldn't go back out, then it wouldn't be any danger, would it?

[01:09:45] Speaker 07:
If it couldn't get in the unit, that would comply with D1.

[01:09:50] Speaker 07:
You've addressed the infiltration, and if water isn't coming into the unit, it shouldn't be getting back out.

[01:09:57] Speaker 06:
Yes.

[01:09:57] Speaker 06:
Different question.

[01:09:57] Speaker 06:
If water has gotten in.

[01:09:59] Speaker 07:
Yes, Your Honor.

[01:10:00] Speaker 06:
To assume they got it all out before they put the cover on, and then it turns out there's water in there.

[01:10:05] Speaker 06:
I'm just asking the very simple question of once there's water in there, is that automatic evidence that contaminated water can be going out?

[01:10:15] Speaker 05:
I mean, I take their central position to be no, that once you eliminate the hydraulic head, even if there's water there, it's going to be still.

[01:10:25] Speaker 05:
It's not going anywhere.

[01:10:28] Speaker 07:
Your honor, that's not the common understanding of how groundwater works.

[01:10:32] Speaker 07:
And that's also not the record we have here.

[01:10:34] Speaker 07:
And that's also not what the regulation requires.

[01:10:37] Speaker 07:
When the groundwater is in there, and I think the Gavin

[01:10:40] Speaker 07:
case is the important example here.

[01:10:44] Speaker 07:
You have a unit that has 64 feet of groundwater flowing through it.

[01:10:47] Speaker 07:
And they've said, we don't have to do anything to address the groundwater at all.

[01:10:50] Speaker 05:
So this seems like a particular thing, though, because it was in this sort of watershed area or stream.

[01:10:56] Speaker 05:
There was, because of the geography, natural geography, there's a reason to think the water moves.

[01:11:02] Speaker 05:
What about in a situation where there isn't that same reason to think the water

[01:11:07] Speaker 05:
moves.

[01:11:09] Speaker 05:
Is that a null set?

[01:11:11] Speaker 05:
And what do you point to?

[01:11:13] Speaker 07:
Your Honor, we don't have that record before the court.

[01:11:15] Speaker 07:
Well, the record we have before the court is the Gavin final decision.

[01:11:18] Speaker 07:
And EPA made some uncontested findings in there.

[01:11:22] Speaker 07:
It was that there's 64 feet of groundwater flowing through the unit, that the groundwater actually does flow through the unit, and that it will continue to do so indefinitely.

[01:11:32] Speaker 07:
Petitioners offered no comments on those findings.

[01:11:36] Speaker 07:
uncontested, what they argued in their comments is that they just don't have to do anything.

[01:11:40] Speaker 07:
The regulation doesn't require them to even address it.

[01:11:43] Speaker 05:
I have some sort of terminological questions.

[01:11:46] Speaker 05:
Like if groundwater saturates the base of an impoundment, does that mean that the base of the impoundment is situated in the uppermost aquifer?

[01:11:59] Speaker 05:
Like does aquifer and groundwater mean the same thing in your view?

[01:12:02] Speaker 07:
I prefer ground water are are different, but I think the ceiling point with respect to this regulation is.

[01:12:08] Speaker 07:
We're talking about free liquids.

[01:12:10] Speaker 07:
Ground water is a liquid.

[01:12:12] Speaker 07:
And when it readily separates from the waste under ambient temperature and pressure, it has to be eliminated under that requirement.

[01:12:17] Speaker 07:
This entire discussion, though, Your Honors, I think highlights the fact that we're not talking about promulgation of a legislative rule.

[01:12:24] Speaker 07:
These are all discussions about how it applies, what the interpretation is, how it should be applied.

[01:12:30] Speaker 04:
Can you explain?

[01:12:31] Speaker 04:
I'm sorry to cut you off.

[01:12:32] Speaker 04:
Do you want to finish your sentence?

[01:12:34] Speaker 04:
No, Your Honor.

[01:12:36] Speaker 04:
Can you explain what the controversy is regarding below the water table?

[01:12:45] Speaker 07:
Your honor, the petitioners have created a label for something that EPA didn't actually do.

[01:12:51] Speaker 07:
They're saying that there's some prohibition

[01:12:53] Speaker 07:
from closing with waste in place if they call it waste over the water table.

[01:12:57] Speaker 07:
All EPA has done has said, if you have groundwater in a unit, and let's take the Gavin example as the example before the court, that's a final agency action, you got 64 feet in there, you look at the performance standards, you have to do something.

[01:13:11] Speaker 07:
You can't do nothing.

[01:13:12] Speaker 04:
What's the definition of the water table?

[01:13:17] Speaker 07:
Water table, I don't believe is defined in the regulations.

[01:13:22] Speaker 04:
It's not a defined term.

[01:13:25] Speaker 04:
Maybe I'm asking you what the plaintiffs mean or the petitioners mean by that.

[01:13:31] Speaker 04:
What's your understanding of what a water table is?

[01:13:34] Speaker 07:
I'm not an engineer, so I don't want to give a definition that's not geologically correct, but I think that with petitioners, they can better answer the question.

[01:13:42] Speaker 07:
I think it's supposed to be the top of the water, but regardless, it's still a liquid.

[01:13:48] Speaker 06:
EPA has used the same terminology itself, so you can't really get off Scott Free saying it's just their language.

[01:13:54] Speaker 06:
You have used... Water below the water table.

[01:13:56] Speaker 05:
They pulled that from some document of yours.

[01:13:58] Speaker 07:
Sure, and if we're talking about it and again if we're talking about water below the water table and we're talking about groundwater here because that this is the factual record that we have is groundwater going into the unit.

[01:14:10] Speaker 07:
it regulation requires that judge Randolph I do want to kind of finish the point that is making before because what we're talking about right here are some very nuanced interpretive discussions about what this relation means in particular context how it applies that is not promulgating a legislative rule and we look at what EPA did in the get in the Gavin action that was an adjudication what's the definition from the gate.

[01:14:33] Speaker 07:
promulgate, it's to make known a law.

[01:14:36] Speaker 07:
And the order that was issued, I think a better way to say it was a final action that applies to Gavin, but it wasn't an order.

[01:14:43] Speaker 07:
It wasn't a rule of any kind.

[01:14:45] Speaker 04:
Is there any time limit on the filing for judicial review in the district court?

[01:14:51] Speaker 07:
Yes, Your Honor, I believe the six-year general statute of limitations would apply.

[01:14:57] Speaker 07:
I'm not 100% sure, though.

[01:14:58] Speaker 07:
We could follow up with the court if that's a question you're interested.

[01:15:02] Speaker 07:
But again, when we're talking about an adjudication that results in an order, we can't be talking about a rule because adjudications result in order, not rules.

[01:15:11] Speaker 07:
Repeatedly, what this court has done to determine if something is an order or a rule, they've looked at what the agency has done.

[01:15:17] Speaker 07:
And if the agency is taking a facility-specific application,

[01:15:21] Speaker 07:
making site-specific findings, taking existing law and applying facts, even if they're doing interpretation of existing law and rendering a binding action that is binding only on that party, they say that's an adjudication.

[01:15:35] Speaker 07:
It results in an order.

[01:15:36] Speaker 07:
And this dichotomy flows directly from the definition of order and adjudication in the APA itself.

[01:15:43] Speaker 07:
And this court has noted most recently in 2023 in the IT Serve Alliance versus DHS case

[01:15:49] Speaker 07:
Once this court recognizes that, and if this court does recognize this is an application interpretation, which it is, the legislative rule claim has to fail.

[01:16:00] Speaker 07:
The due process claims that petitioners have made also have to fail, too, because they rest on this false notion that EPA has at some point changed its position on what this regulation, how it applies.

[01:16:13] Speaker 07:
They never have.

[01:16:13] Speaker 07:
They've never said that you can close a unit, leave groundwater flowing through it, and comply with the performance standards at 57102D.

[01:16:23] Speaker 07:
In fact, they said just the opposite in 2020 and they proposed an amendment to the rule.

[01:16:28] Speaker 07:
And when they were discussing closer standards and these are that this is the section B that petitioners were referencing earlier.

[01:16:35] Speaker 07:
They said, if you have the situation where groundwater is in contact flowing through the unit, you do have to do something.

[01:16:45] Speaker 07:
And they were talking about that.

[01:16:47] Speaker 06:
Contact mean flowing through the unit.

[01:16:49] Speaker 06:
That's what you just said, is contact and water flowing through the unit.

[01:16:53] Speaker 07:
Again, when groundwater is in the unit, it is going to be flowing to the unit.

[01:16:57] Speaker 07:
If EPA is talking about contact, yes, water will be flowing through the unit if groundwater is there.

[01:17:03] Speaker 07:
And if you're taking a look at Gavin,

[01:17:05] Speaker 07:
That's what's going on in the record before the court.

[01:17:09] Speaker 06:
Because literally contact could mean if the outer shell of the outer line, outer side of the liner of this pit is touching water.

[01:17:21] Speaker 06:
If they have the number one perfect liner and so none of that water that it's touching that rubs around the outside of the liner is coming in.

[01:17:33] Speaker 06:
That would not be what you mean by contact.

[01:17:36] Speaker 06:
You mean that's inside.

[01:17:37] Speaker 07:
That's that's correct, your honor.

[01:17:38] Speaker 05:
We're not talking about all combustion residuals are in contact with ground.

[01:17:42] Speaker 07:
Yes, that's right.

[01:17:43] Speaker 07:
It's in.

[01:17:44] Speaker 07:
It's in the IC now.

[01:17:45] Speaker 07:
I'm sorry, your honor.

[01:17:46] Speaker 07:
It's in the actual unit.

[01:17:47] Speaker 07:
Again, we're not talking about units here that have liners in them.

[01:17:49] Speaker 07:
We're talking about the the online units.

[01:17:52] Speaker 07:
That's why we have this problem is because the petitioners say that

[01:17:56] Speaker 05:
Free liquids are defined by reference to ambient temperature and pressure in a way that categorically excludes groundwater, which is below the surface of the land.

[01:18:09] Speaker 05:
What's your response to that?

[01:18:11] Speaker 07:
It doesn't exclude groundwater.

[01:18:12] Speaker 07:
In fact, it's going to explicitly include it because groundwater is a liquid.

[01:18:17] Speaker 05:
But groundwater, as defined in the statute,

[01:18:21] Speaker 05:
below the surface of the land.

[01:18:23] Speaker 07:
It talks about the location, but the salient point for the purposes of free liquids is that they are liquids that readily separate from waste under ambient temperature and pressure.

[01:18:33] Speaker 07:
And groundwater is a liquid.

[01:18:35] Speaker 07:
If it satisfies the condition, it's going to be a free liquid, and it's going to have to be eliminated at closure.

[01:18:41] Speaker 06:
Is ambient temperature and pressure when the water comes in or it has to be separable?

[01:18:47] Speaker 06:
Is the ambient temperature and pressure describe the separability process?

[01:18:52] Speaker 07:
The ambient temperature and pressure is talking about the conditions.

[01:18:56] Speaker 07:
So, for example, you're not heating it up or you're not making it artificially hold.

[01:19:01] Speaker 07:
I think the example I gave earlier... The water or the pit?

[01:19:05] Speaker 07:
The conditions in the unit.

[01:19:06] Speaker 07:
I think the example I gave earlier is

[01:19:08] Speaker 07:
is a good illustration of what the point is.

[01:19:11] Speaker 07:
Free liquids are going to be, if you take a water bottle and you fill it up with water and sand and you poke a hole, it's going to be what just drains out.

[01:19:18] Speaker 07:
And so when you're talking about free liquids in the liquid, you're talking about all the liquids in the unit, the rainwater.

[01:19:25] Speaker 05:
You don't have a water bottle.

[01:19:26] Speaker 05:
That would be a lined impoundment.

[01:19:28] Speaker 05:
You have a paper napkin.

[01:19:33] Speaker 07:
So liquids that are going to separate from the waste.

[01:19:37] Speaker 05:
Are going to come through your paper napkin.

[01:19:38] Speaker 07:
Yeah, thinking about if they could move around freely in the unit, if they're going to come out.

[01:19:42] Speaker 07:
Yeah, those are the free liquids.

[01:19:44] Speaker 05:
So it's no longer groundwater in the sense that it's no longer below the land surface?

[01:19:50] Speaker 07:
The location of it, it still would be groundwater, basically.

[01:19:53] Speaker 07:
It meets the definition of groundwater on the location.

[01:19:56] Speaker 07:
But if it's also moving around the unit, it has the ability to do that.

[01:19:59] Speaker 07:
It's also a free liquid.

[01:20:01] Speaker 06:
Once it gets inside, it can become a free liquid.

[01:20:05] Speaker 07:
Once it's in the unit and has the ability to move around freely, it's a free liquid.

[01:20:09] Speaker 07:
It can also be a ground water if it's under the location.

[01:20:14] Speaker 05:
What's poor water?

[01:20:16] Speaker 07:
I'm not sure, Your Honor, what poor water is.

[01:20:19] Speaker 07:
That's something I can follow up with you on if interested.

[01:20:23] Speaker 05:
And in terms of beneficial use, if a beneficial use is not disposal or placement at all,

[01:20:31] Speaker 05:
then does the law placing CRR, does placement of CRR in a unit to support the storage system violate 101 or not?

[01:20:47] Speaker 07:
Yes, it does, Your Honor.

[01:20:47] Speaker 07:
And the reason why is the regulated, the object of the regulation that's being regulated is the unit itself.

[01:20:53] Speaker 07:
You have a regulated surface impoundment that has to comply with all these regulations.

[01:20:59] Speaker 07:
When closure requirements are triggered under 101A, one of those requirements that apply to those units is you have to stop placing CCR in the unit.

[01:21:10] Speaker 07:
Beneficial use is something that creates a unit or doesn't.

[01:21:14] Speaker 07:
If you do a beneficial use, if you take it and you put it in, say, some wall board,

[01:21:17] Speaker 07:
That's a beneficial use.

[01:21:18] Speaker 07:
The wall board doesn't become a surface empowerment by doing that.

[01:21:22] Speaker 07:
But if you already have a regulated unit, a surface empowerment subject to all the regulations, that unit has to comply.

[01:21:28] Speaker 07:
And when it's going to close under 101A, the clear requirements are you have to cease placing the CCR in the unit.

[01:21:35] Speaker 07:
And your honors, one of the arguments that petitioners also make is this fair notice point that they didn't have fair notice of this.

[01:21:44] Speaker 07:
EPA has been clear from the beginning about what this regulation, how it's structured, how it was created.

[01:21:52] Speaker 07:
It was modeled on the Subtitle C regulations for surface impoundments.

[01:21:57] Speaker 07:
It borrowed language from them.

[01:21:59] Speaker 07:
And EPA has been clear that in Subtitle C, you can't just close a hazardous waste surface impoundment and leave groundwater in it.

[01:22:05] Speaker 07:
It adopted that language, it noted it in the federal register, it promulgated the rule and it used language that was written broadly.

[01:22:14] Speaker 07:
EPA was particularly concerned about the risks of units that leak.

[01:22:19] Speaker 07:
They were aware of historic practices where units had groundwater in them and they drafted this broadly written regulation and when you look at the actual terms of it,

[01:22:32] Speaker 07:
You have to address groundwater.

[01:22:34] Speaker 07:
You have to do something.

[01:22:34] Speaker 07:
You have to eliminate free liquids.

[01:22:36] Speaker 07:
You have to preclude the future empowerment of water.

[01:22:38] Speaker 07:
You have to control, minimize, or eliminate infiltration and independently releases from the unit.

[01:22:44] Speaker 07:
Petitioners do not address the release prong.

[01:22:48] Speaker 05:
Is there a difference between liquid waste and free liquids?

[01:22:54] Speaker 05:
If groundwater comes in contact with coal ash, it seems like, by definition, it sort of becomes liquid waste.

[01:23:01] Speaker 07:
That's EPA's position, Your Honor, yes.

[01:23:03] Speaker 07:
If groundwater gets into the unit and it co-mingles with the coal ash and all the other water in the unit, everything that is being managed in the unit is a waste, and it's subject to elimination.

[01:23:15] Speaker 05:
But it also can be free liquid if, under ambient temperature and pressure, it is separable?

[01:23:23] Speaker 07:
That's right.

[01:23:24] Speaker 07:
If it's a liquid in the unit, so you have liquids filled with units, there's many sources.

[01:23:29] Speaker 07:
You have sluiced water, you have rainwater, you have water that's flowing into the unit to remember these are just basically open holes where you put dispose of things and here they're unlined.

[01:23:38] Speaker 07:
The water mixes together.

[01:23:40] Speaker 07:
All of the liquid can be a free liquid under ambient temperature and pressure.

[01:23:45] Speaker 07:
It is separating from the unit, meaning it has the ability to freely move around.

[01:23:49] Speaker 07:
So all liquids are covered under that.

[01:23:51] Speaker 07:
Just like for infiltration, we're talking about all infiltration, not from just the side or the bottom or the top.

[01:23:56] Speaker 07:
It's all infiltration.

[01:23:58] Speaker 07:
And if this court doesn't have any questions, thank you, Your Honors.

[01:24:07] Speaker 06:
Is it Kearney?

[01:24:08] Speaker 06:
Can I say it right?

[01:24:10] Speaker 06:
Carney, I apologize.

[01:24:11] Speaker 02:
It's OK.

[01:24:14] Speaker 02:
Good morning, or perhaps now afternoon, Your Honors.

[01:24:18] Speaker 02:
May it please the court, my name is Gavin Carney, and I represent respondent interveners in this matter.

[01:24:24] Speaker 02:
We respectfully request that this court rule in favor of respondents as it's presented with only one reasonable construction of the 2015 rule.

[01:24:33] Speaker 02:
The plain language of the rule's closure requirements make clear

[01:24:38] Speaker 02:
that they cannot be met with surface impoundments where waste remains in contact with groundwater.

[01:24:45] Speaker 02:
By affirming this, the court can lay to rest an issue that's delaying proper closure of surface impoundments that are polluting the environment around the country.

[01:24:55] Speaker 02:
Protecting groundwater from contamination has always been at the heart of EPA's work around solid waste.

[01:25:02] Speaker 02:
A couple of things I want to address really quickly that came up earlier, some of the definitional questions.

[01:25:07] Speaker 02:
And I also want to point out, during the discussion with petitioners, there was a question as to whether they are saying that groundwater is categorically not free liquids.

[01:25:18] Speaker 02:
And in fact, in the brief in Electric Energy 1 on pages 42 to 43, they do say that free liquids does not encompass groundwater.

[01:25:31] Speaker 02:
Judge Pellard, you had asked earlier whether groundwater can be static in essence.

[01:25:36] Speaker 02:
Generally speaking, groundwater flows.

[01:25:39] Speaker 02:
Is it conceivable that at a particular point in time that a body of groundwater could not be moving?

[01:25:44] Speaker 02:
It is.

[01:25:45] Speaker 02:
It's not reasonable or realistic to believe that over the lifetime of a surface impound, that groundwater is going to remain static and not continue to flow.

[01:25:55] Speaker 02:
The question of the water table, what does it mean when waste is below the water table?

[01:26:00] Speaker 02:
The water table is essentially the uppermost limit of an aquifer.

[01:26:04] Speaker 02:
So if you imagine groundwater is existing in a body of water that's also integrated with the ground, with dirt, with rocks, et cetera, the table is the top of that body.

[01:26:16] Speaker 02:
Here we're dealing with surface impoundments that are unlined where the waste itself is below that water table, meaning that it's in contact with groundwater that is flowing in and out of the surface impoundment.

[01:26:29] Speaker 06:
And this is where the- It's below the water table that they have, I know we're dealing with unlined here, but if they have pits that have the best technology available to keep water out, then that would suffice.

[01:26:43] Speaker 02:
It is possible to satisfy the requirements of the rule, particularly with a liner, as you pointed out earlier.

[01:26:49] Speaker 06:
The issue here is not possible to satisfy when it's unlined, depending on the nature of the surface that they.

[01:26:57] Speaker 02:
There are measures that can be taken, engineering controls that have come up, that can be offered to demonstrate that it is eliminating this possibility to the maximum extent practicable.

[01:27:07] Speaker 05:
Do you have a sense of what that might be?

[01:27:08] Speaker 05:
It's hard to envision.

[01:27:10] Speaker 05:
If something has been unlined and therefore the waste is basically in a hole in the ground and huge, hundreds of acres with hundreds of tons, it's hard to envision how water could be controlled other than with a liner.

[01:27:26] Speaker 02:
It is hard to imagine in the circumstances that Gavin Power presents that engineering controls alone would be sufficient to address the requirements of the rule.

[01:27:37] Speaker 05:
What are the kinds of engineering controls in maybe a smaller dryer?

[01:27:40] Speaker 02:
There are things, there's something called a slurry wall, which is a sort of wall that goes around the outer limits of the impoundment, which can be combined with like a pumping system where you're addressing pressure that would cause flowage, that would cause leachate, et cetera.

[01:27:54] Speaker 02:
One thing that's worth noting is that in 2017, following the publication of the CCR rule, EPA put out guidance online.

[01:28:04] Speaker 02:
And in the guidance, they talk about a circumstance in which a surface impoundment, an online surface impoundment, could be submerged in part by the aquifer.

[01:28:14] Speaker 02:
And what they say in that instance is one way that you could meet the requirements of the rule is to excavate that portion of the surface impoundment that's submerged in the aquifer and use controls for the rest of it.

[01:28:29] Speaker 02:
It makes clear that closure in place is an option, but as they make clear in the rule itself, there are a variety of measures that could be taken.

[01:28:37] Speaker 02:
The real issue is have you met the performance standards of the rule through the measures that you're proposing to take?

[01:28:42] Speaker 05:
Any more questions?

[01:28:45] Speaker 05:
Do you have a position on the meaning of requirement under 6976A1?

[01:28:51] Speaker 02:
Your honor, we support petitioners or we support respondents' position on this.

[01:28:56] Speaker 02:
We understand it's not defined in case law.

[01:28:59] Speaker 02:
We do think that it's a separate term under RCRA.

[01:29:04] Speaker 02:
RCRA does say regulation or requirement.

[01:29:06] Speaker 02:
And so given it's giving it its ordinary meaning, EPA has in fact here imposed a requirement upon Gavin Power.

[01:29:13] Speaker 05:
Is it really a new requirement, given that the rules require that even impoundments eligible for extension have to close by no later than October 15th, 2023?

[01:29:27] Speaker 02:
It's a new requirement in the sense that the park.

[01:29:30] Speaker 05:
Special circumstances, go ahead.

[01:29:33] Speaker 02:
In the sense that the Part A amendments to the COALASH rule, which is what this comes under, don't obligate EPA to a specific timeline for closure.

[01:29:41] Speaker 02:
They do set an outward boundary, but they don't set a deadline within that.

[01:29:45] Speaker 02:
So in that sense, we agree that it's a new requirement.

[01:29:50] Speaker 06:
Any other questions?

[01:29:52] Speaker 06:
All right.

[01:29:52] Speaker 06:
Thank you very much.

[01:29:53] Speaker 06:
Thank you.

[01:29:55] Speaker 06:
Chair, I think we have three minutes.

[01:29:59] Speaker 06:
Oh, we're allowed.

[01:29:59] Speaker 06:
Thank you.

[01:30:01] Speaker 08:
I want to address the moving in and out question, Your Honor.

[01:30:04] Speaker 08:
There's no evidence or finding in the record that contact means flowing in and out.

[01:30:09] Speaker 08:
If you look at the final Gavin decision on page 19, EPA just says it has the potential to do that.

[01:30:14] Speaker 08:
And we just heard Intervener Council say, generally speaking, water would flow in and out.

[01:30:19] Speaker 08:
Well, EPA didn't say in January of 2022, generally speaking, you can't close the fashion contact with groundwater.

[01:30:25] Speaker 08:
It said, in no case can you do that.

[01:30:27] Speaker 08:
And it is the going out that matters, Your Honor.

[01:30:31] Speaker 08:
The goat, the water, and the CCR in the unit is disposal.

[01:30:36] Speaker 08:
That is what the statute provides, regardless of whether you're a sanitary landfill or an open dump.

[01:30:42] Speaker 08:
The statute, under the statutory definition, even post closure, says that solid waste in water is disposal.

[01:30:50] Speaker 08:
The question is, does it comply with the criteria?

[01:30:53] Speaker 08:
And here, those criteria do not contain a contact prohibition.

[01:30:57] Speaker 08:
They don't say anything about waste below the water table.

[01:31:00] Speaker 08:
Those are all made up terms.

[01:31:02] Speaker 06:
There's an issue in this case about tanks as storage facilities.

[01:31:08] Speaker 06:
Do you have members that have tanks that are in the excavated areas of the ground?

[01:31:19] Speaker 06:
They're partially into the ground?

[01:31:22] Speaker 08:
Yes, sure.

[01:31:22] Speaker 08:
I believe that the recipient of that particular letter is a member of the use swag.

[01:31:27] Speaker 08:
I think that's documented in the declarations.

[01:31:29] Speaker 08:
I think the use swag declaration mentions other members, perhaps not by name, but it does.

[01:31:34] Speaker 06:
And do you have other members, members or other members that are planning to add CCR beneficially to their service impediments?

[01:31:44] Speaker 08:
I think that the use swag declaration also establishes that, Your Honor.

[01:31:47] Speaker 06:
And again, that they actually are planning to do that.

[01:31:49] Speaker 08:
I believe that's what the declaration establishes, Your Honor.

[01:31:51] Speaker 08:
Yes.

[01:31:53] Speaker 08:
Again, we're just here to ask for a level playing field.

[01:31:57] Speaker 08:
Either EPA, it's a binary choice, Judge Randolph said.

[01:32:00] Speaker 08:
Either EPA's January 2022 statements are binding solid waste criteria, and they must be vacated because EPA didn't follow the rules.

[01:32:09] Speaker 08:
Or they're non-binding, just discussions, as Interveners Council referred to them.

[01:32:12] Speaker 08:
And if that's true, they don't have the force of law.

[01:32:15] Speaker 08:
We're free to ignore them without prejudice and challenge them later, and they won't be entitled to deference.

[01:32:21] Speaker 08:
I think this issue, as the court's other decisions have recognized, it's just it's bigger than EPA and it's bigger than CCR.

[01:32:27] Speaker 06:
Do you think you get to ignore it?

[01:32:30] Speaker 08:
If it's an interpretation, I believe it is if it's not binding.

[01:32:34] Speaker 08:
That's the definition of a legislative rule.

[01:32:36] Speaker 06:
Interpretation tells you what the legislative rule means, which is binding.

[01:32:40] Speaker 08:
If it's binding in any respect, if it's an interpretation with a little i, the only way.

[01:32:47] Speaker 06:
Interpreting a term in a legislative rule.

[01:32:49] Speaker 06:
2015's legislative rule.

[01:32:51] Speaker 06:
Interpreting a term in the legislative rule.

[01:32:53] Speaker 06:
I don't know what you mean by your little i. You seem to keep meaning that it doesn't mean they're serious about it.

[01:32:58] Speaker 08:
In the context of RCRA.

[01:32:59] Speaker 06:
Its agency does.

[01:33:00] Speaker 06:
If they say what we mean by infiltrate, what that regulation means when it says infiltration is x.

[01:33:07] Speaker 06:
And that's an interpret held to be an interpretive rule.

[01:33:09] Speaker 06:
Your position is that you clients don't have to know if it's held to be an interpret.

[01:33:13] Speaker 08:
If it's held to be an interpretive rule, our position is a solid waste criterion.

[01:33:17] Speaker 08:
It has to comply with 69448 interpretive rules and to recognize your position.

[01:33:24] Speaker 08:
There can be if they're promulgated as as regulate as criteria and they follow consultation.

[01:33:29] Speaker 06:
They have to be legislator.

[01:33:32] Speaker 08:
If you follow the report, well, that's an APA distinction.

[01:33:34] Speaker 08:
That's an APA distinction.

[01:33:35] Speaker 06:
If you want to... I'm asking you a very simple RCRA.

[01:33:38] Speaker 08:
Right, a new RCRA.

[01:33:39] Speaker 06:
Not APA questions.

[01:33:40] Speaker 06:
You're reading a RCRA, that there can be no interpretive rules which clarify the meaning and content

[01:33:49] Speaker 06:
of a legislative rule and its criteria unless they are promulgated through notice and comment rulemaking.

[01:33:57] Speaker 08:
Unless they comply with 69-44A.

[01:33:58] Speaker 08:
That's right.

[01:33:59] Speaker 05:
Because in your view an interpretation of an existing criterion is itself a criterion.

[01:34:05] Speaker 08:
If it establishes, yes.

[01:34:07] Speaker 05:
Because you're relying on the criteria have to be promulgated in RCRA, right?

[01:34:12] Speaker 08:
If it establishes the difference between an opened up and a sanitary landfill, yes, your honor.

[01:34:16] Speaker 08:
And that's what these statements do.

[01:34:18] Speaker 08:
That's what we've been talking about this morning.

[01:34:19] Speaker 08:
What does it take to meet the standard under the statute?

[01:34:22] Speaker 08:
That's all we've been talking about.

[01:34:24] Speaker 06:
Any other questions?

[01:34:25] Speaker 06:
No.

[01:34:26] Speaker 06:
Thank you.

[01:34:26] Speaker 06:
Thank you very much to all counsel.

[01:34:28] Speaker 06:
The case is submitted.