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Case number 24-1151 et al.

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

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

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

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Mr. Bellingrad for the rebuttal.

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Good morning.

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Morning.

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So Mr. Peterson.

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Yes.

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

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Is that correct?

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Yes, your honor.

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

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the rebuttal.

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

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

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Absolutely.

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All right.

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Please proceed.

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Thank you.

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May it please the court.

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My name is Rafe Peterson.

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Remand is appropriate in this case.

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

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The agencies offered a reasonable explanation for its request.

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

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

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

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and wrapping up in a year.

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The request is not frivolous or in bad faith.

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

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

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They've simply decided to initiate a new rulemaking.

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And a change in administration brought on

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

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

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

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

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

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Yes, Your Honor.

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

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

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There still has to be adversarial parties.

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

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

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

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Probably the best example.

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

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

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

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It's properly before us.

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It's not a big deal.

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

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

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And so

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

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

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

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

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The PPE is probably the best example.

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

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

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

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

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

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You're right.

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

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

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

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Lots of arguments on either side.

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

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And that's the other way.

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The remand possibilities are not mandatory rules of law.

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They're possibilities, that's all.

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

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

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

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An agency always has the possibility of starting

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

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That's not for us to decide.

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

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And if so, decide it and move on.

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Right.

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

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

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

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

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

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You clearly disagree on certain of the legal issues.

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We do.

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

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That's always a problem in administrative law.

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

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That's not our concern.

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But they're clearly adverse sides here.

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There's no question about it.

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

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

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You're right.

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

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

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

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Right.

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

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

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

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

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

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But you're not dismissing your lawsuit.

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You're not seeking dismissal of your lawsuit.

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And the EPA isn't confessing error.

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Correct.

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So what are we doing here?

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

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

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

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

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the functional equivalent of having the case dismissed.

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Is it the functional equivalent?

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

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Right, they haven't confessed error.

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

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But I have a question about authority.

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Where in the APA or

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

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Where does it come from?

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

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

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

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

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Correct.

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

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We can review it.

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

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

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Just send this generally applicable rule back.

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Correct.

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

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I can't, Your Honor.

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I'm sorry.

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I don't think I understand the question.

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

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

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Correct.

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

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

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

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

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I mean, I think that's speculative.

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I mean, we really just don't know.

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

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

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

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And I think that's just.

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Yeah.

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

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

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And the agency will try to issue an interpretation

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

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We've had an opportunity for years.

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The views, I'd be shocked if there were more views.

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There are an awful lot of views out there.

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

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Yeah, I mean, I will agree that this issue has been subject to different levels of review.

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

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

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

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

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My colleagues don't have any further questions on the remand issue.

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Thank you for presenting your argument on that.

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

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

[00:13:58] Speaker 02:
So we have three primary issues.

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

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

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The all conditions of use is our first argument.

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

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

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from the statute.

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

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

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

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First, I'm not sure where you're reading that in the statute.

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

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That's their first responsibility.

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That's the overarching.

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

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

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

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

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Substance by substance.

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

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in their regulations.

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Why is that inconsistent with the statute?

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What words am I missing?

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Conditions of use.

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

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And what that is description is just saying

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what will happen at the regulation stage.

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

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What you're asking for is not missing.

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

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

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

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That's exactly what the statute says.

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It should, but the way the statute works is that first they have to, first the agency has to figure out what are the conditions used?

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How is this chemical being used?

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That's not exactly, that is not what B4A says.

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So risk evaluations are based under the conditions of use.

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That is not what it says.

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And that's further supported by how the scoping.

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

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or a susceptible population the administrator expects to consider.

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

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When we get to a later stage, after they've considered each substance to determine whether, that's a screening.

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It's clear what the statute's doing.

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

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As to how you regulate

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

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

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

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There isn't any concern here.

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And that doesn't change merely because at the beginning, the agency goes substance by substance to determine whether, as the statute says, a chemical substance presents an unreasonable risk.

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That's what the statute says.

[00:18:19] Speaker 02:
Well, that actually gets to our second argument.

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Because with all due respect, it does.

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When they use the whole chemical approach, they put all the conditions of use into one analysis.

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That's right.

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

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

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And that has an effect on our clients because it ends up, they end up having to produce data.

[00:19:01] Speaker 02:
So they're producing all this information and they're spending all this money and they have, and they're, they're essentially being, it's like almost like a kind of like a false determination because

[00:19:11] Speaker 02:
They know that these conditions of use do not pose a risk, but because of this whole chemical approach, they ended up considering them all together as a, quote, substance.

[00:19:21] Speaker 03:
Mr. Peterson, though, that's a good argument for why your second point is a good challenge to the regulation.

[00:19:27] Speaker 03:
But that still doesn't answer why the all conditions of use part, your first argument, shows that the regulation is unlawful.

[00:19:36] Speaker 03:
I guess my question is,

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Why isn't the EPA's interpretation under this first challenge at least a permissible reading of the statute?

[00:19:46] Speaker 03:
It may not be the best reading, and there might be other possible readings, but why is the EPA's consideration of all the conditions of use at the risk evaluation stage at least permissible under the statute?

[00:20:00] Speaker 03:
What makes it impermissible, I guess?

[00:20:03] Speaker 02:
Well, I guess what we said is they can move forward and evaluate all conditions of use, right?

[00:20:09] Speaker 02:
We're not disputing that.

[00:20:11] Speaker 02:
It's just that the statute doesn't mandate that they evaluate all conditions of use, as they're suggesting.

[00:20:17] Speaker 03:
It doesn't mandate it.

[00:20:19] Speaker 03:
So is what EPA did permissible?

[00:20:22] Speaker 03:
Because you're saying that what EPA did is contrary to law.

[00:20:25] Speaker 02:
It is, yes.

[00:20:27] Speaker 03:
So how is it contrary to law?

[00:20:28] Speaker 03:
You just said that they

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that they're not required to consider all conditions of use, but that's not an argument that it's impermissible for them to consider all conditions of use.

[00:20:39] Speaker 02:
It is permissible for them to consider all, but that isn't what they say.

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What they say is they will not exclude conditions of use.

[00:20:46] Speaker 02:
And that's inconsistent with the statute, the plain language of statute and the entire statutory framework where some of these chemicals have hundreds of conditions of use.

[00:20:57] Speaker 02:
And part of what Congress was trying to do

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was to speed up this process.

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And there's these three-year deadlines on this.

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And what this ends up doing is they're almost biting off more than they can chew.

[00:21:09] Speaker 02:
By saying they will not exclude, as they had under the 2017 interpretation of the rule, by saying they cannot exclude all conditions of use, they're tying up their own discretion.

[00:21:20] Speaker 03:
Because again... But what's the difference between saying they won't exclude any conditions of use and saying,

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we're going to consider all conditions of use.

[00:21:30] Speaker 03:
Are those the same?

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Those are equivalent things.

[00:21:34] Speaker 02:
No, because they're essentially saying they must include all conditions of use.

[00:21:39] Speaker 03:
And that's not in the statute.

[00:21:40] Speaker 03:
They will do that, that they've decided, as part of their discretion, to consider all conditions of use.

[00:21:45] Speaker 03:
That may be bad policy.

[00:21:47] Speaker 03:
It may not make a lot of sense.

[00:21:49] Speaker 03:
Maybe it's arbitrary and capricious.

[00:21:51] Speaker 03:
But I don't see what your argument is, is that that decision is contrary to law.

[00:21:57] Speaker 02:
It's contrary on two ways.

[00:21:59] Speaker 02:
One, again, it's the definition of condition of use as determined by the administrator.

[00:22:05] Speaker 02:
So that gives them discretion where they, and I think EPA agrees on that.

[00:22:09] Speaker 02:
The first step.

[00:22:09] Speaker 03:
That discretion is about whether the administrator decides something is a condition of use.

[00:22:14] Speaker 03:
Exactly.

[00:22:15] Speaker 03:
To begin with.

[00:22:16] Speaker 03:
So EPA is not

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

[00:22:27] Speaker 03:
So that's not eliminating the administrator's discretion to decide what in fact is a condition of use.

[00:22:32] Speaker 02:
It's the second step, right?

[00:22:34] Speaker 02:
It's in the scoping.

[00:22:35] Speaker 02:
So in the scoping, then they're supposed to publish the scope of the risk evaluation and the conditions use they expect to consider.

[00:22:43] Speaker 02:
And if you look at the legislative history,

[00:22:47] Speaker 02:
It's shown that, you know, it makes clear EPA has to make a determination on the condition of use considered in the scope, but the agency is given the discretion to determine the conditions of use the agency will address in the valuation of the priority chemical.

[00:23:01] Speaker 02:
I mean, all of this is about prioritizing risk and that they're supposed to look at the things that pose the greatest potential risk.

[00:23:09] Speaker 02:
And so by including things that the agency has, science, and knows do not pose risk, they're imposing harm upon our clients, imposing its costs, and they're requesting information.

[00:23:23] Speaker 02:
And it's also ensuring that they're not going to meet any of their deadlines, because there's a three-year deadline.

[00:23:27] Speaker 02:
And that's exactly why this law was amended in the first place, because Congress realized they weren't able to get through any of these chemicals.

[00:23:35] Speaker 02:
So this is really all about prioritization

[00:23:38] Speaker 02:
and attempting to focus on the things that raise the greatest potential of risk.

[00:23:42] Speaker 03:
Where in the statute does it talk about that prioritization?

[00:23:46] Speaker 02:
Prioritization is the first step in the process.

[00:23:49] Speaker 02:
So the first step is they're picking the chemicals, 10 or 20 chemicals that are gonna be prioritized for review.

[00:23:55] Speaker 03:
Sure, so once they've decided that, where's the language about the prioritization of particular risks of a chemical that's already been prioritized?

[00:24:05] Speaker 02:
As I was saying, that's in the legislative history.

[00:24:06] Speaker 02:
The legislative history

[00:24:08] Speaker 02:
told them to focus.

[00:24:09] Speaker 03:
But I asked you where it was in the statute.

[00:24:10] Speaker 03:
It's not in the statute.

[00:24:11] Speaker 02:
It's not in the statute, no.

[00:24:12] Speaker 02:
But what is in the statute is scoping.

[00:24:16] Speaker 02:
And we believe that the scoping should be interpreted that they're supposed to, that they're given this authority to exclude conditions of use that they have information on that are not otherwise posing a risk.

[00:24:28] Speaker 02:
And it's pretty simple.

[00:24:30] Speaker 02:
And that's the process.

[00:24:31] Speaker 02:
And that's how it worked.

[00:24:31] Speaker 02:
And I think it's, again, it's going to allow them to meet their deadlines.

[00:24:35] Speaker 02:
And it's part of what Congress envisioned.

[00:24:39] Speaker 02:
And they haven't explained, that was how they interpreted in 2017, and they haven't explained adequately their switch on how they're now making risk determinations, I mean, risk evaluations.

[00:24:52] Speaker 02:
So they haven't justified the change.

[00:24:54] Speaker 02:
All they say is that they just cite to the legislative history, but as we've pointed out, we think the legislative history favors our argument.

[00:25:04] Speaker 02:
And it also affects what you say about any of the other arguments in your brief.

[00:25:09] Speaker 02:
Well, it also affects preemption.

[00:25:10] Speaker 02:
I mean, another big point of this is that if they don't focus on the conditions, preemption is driven by conditions of use.

[00:25:19] Speaker 02:
And preemption is important to the chemical manufacturers, and it's important to the states.

[00:25:24] Speaker 02:
And so again, if they're making findings that a substance, you can't preempt on the basis of a substance.

[00:25:32] Speaker 02:
You can preempt on the basis of uses.

[00:25:34] Speaker 02:
Certain chemicals are safe in a manufacturing process and a closed-loop system that are not safe if used by a homeowner in their basement stripping paint or something.

[00:25:44] Speaker 02:
And preemption is really important to the statute, and it's driven by the decisions made in the risk evaluation stage.

[00:25:53] Speaker 02:
And so I think that's another thing that really supports our argument, that all these decisions should be done, conditions of use,

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

[00:26:12] Speaker 05:
So you would have wanted the statute to say in B4A, the provision should have said to determine whether a chemical substance presents an unreasonable risk of injury to health or the environment under each condition of use.

[00:26:28] Speaker 05:
That's not what the statute says.

[00:26:31] Speaker 05:
And that's the difference here.

[00:26:33] Speaker 05:
And that's what you're arguing.

[00:26:35] Speaker 05:
You keep ignoring.

[00:26:36] Speaker 05:
I keep reading your brief.

[00:26:38] Speaker 05:
It's really kind of strange, because you skip over the telling parts of the statute that are absolutely inconsistent with what you're arguing.

[00:26:46] Speaker 05:
And what you want is what I just read.

[00:26:49] Speaker 05:
I was trying to figure out.

[00:26:50] Speaker 05:
That's the formulation you wanted, which proves the point.

[00:26:53] Speaker 05:
You didn't get it.

[00:26:54] Speaker 05:
It's not in the statute.

[00:26:56] Speaker 05:
Each is not there.

[00:27:00] Speaker 02:
But the each is done at the scoping level.

[00:27:02] Speaker 05:
No, no, no, no.

[00:27:03] Speaker 05:
You can't disregard the five prior lines in the statutory provision, which says the agency has, is expected to determine whether a chemical substance presents an unreasonable risk.

[00:27:19] Speaker 05:
Under the conditions of use.

[00:27:21] Speaker 05:
They eventually say, that's what you're doing that so you have the material to deal with it when you get to,

[00:27:29] Speaker 05:
the regulation stage to determine whether a particular condition of you should be regulated.

[00:27:35] Speaker 05:
You're not losing what you want, the protection against regulations where there is no real risk.

[00:27:42] Speaker 05:
That's the thing that's so strange about this.

[00:27:44] Speaker 05:
You're getting what you want.

[00:27:45] Speaker 05:
It's just not in the order in which you want it.

[00:27:48] Speaker 02:
Well, I will say that, you know, the importance of the conditions of use is that it lines up all.

[00:27:54] Speaker 02:
It's the only way to look at a chemical.

[00:27:56] Speaker 02:
They look at the chemicals based on, you know, looking back at the definition of how, you know, how they are used.

[00:28:01] Speaker 02:
Is it manufacturing?

[00:28:02] Speaker 05:
That's not the only way to look at a chemical.

[00:28:04] Speaker 05:
You can take a chemical as a whole.

[00:28:06] Speaker 05:
And part of what's going on here is screening.

[00:28:09] Speaker 05:
on certain substances in the way the agency is proposing what the statute requires, you screen out certain substance because you find out no risk.

[00:28:20] Speaker 05:
Absolutely.

[00:28:20] Speaker 05:
OK.

[00:28:21] Speaker 05:
And that is a perfect, not only good approach, as I understand it from science, but it's what the statute says to do.

[00:28:29] Speaker 05:
Take each substance, one by one, determine level of risk.

[00:28:34] Speaker 05:
And some are going to show none.

[00:28:36] Speaker 05:
They're gone.

[00:28:37] Speaker 05:
So they don't even get to the stage where you're thinking about whether or not to regulate and to what extent, which brings in conditions of use.

[00:28:46] Speaker 05:
That's what that last hanging couple of words in the statutory provision is referring to.

[00:28:54] Speaker 05:
When you get to that stage, yes, of course you look at the condition.

[00:28:58] Speaker 02:
But what we're saying is you start at that stage.

[00:29:00] Speaker 02:
Are they manufactured?

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

[00:29:05] Speaker 02:
So they start off looking at manufacturing, processing, again, several hundred to a thousand different conditions of use.

[00:29:13] Speaker 02:
They can't just look at them all at once.

[00:29:15] Speaker 02:
A chemical acts differently if it's being used as a pesticide, if it's being used as an additive to a gasoline, or if it's been used in a children's toy.

[00:29:26] Speaker 02:
And each one of those is a

[00:29:28] Speaker 05:
different determination that has to be done by the agency and so you and it eventually is done if and when we get to the stage of regulation where there's a question but the problem is that and what we won't waste time doing at that stage is worrying about substances that they've already determined present no risk of use I mean no

[00:29:49] Speaker 02:
But the real problem with the rule is that they don't articulate what the court is saying here, because when they get to the risk determination, and this is why we have a due process argument, we don't know what they're going to do with that information.

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

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

[00:30:11] Speaker 05:
It's plain as day.

[00:30:13] Speaker 02:
It's post hoc.

[00:30:17] Speaker 02:
It's not described in the rule.

[00:30:19] Speaker 02:
And so you're going to end up with a whole chemical where you're having 99 safe uses, one unsafe use, and yet you're going all the way through risk determination on all of the uses when they could have been screened out.

[00:30:31] Speaker 02:
They're meant to be screened out at the scoping stage.

[00:30:34] Speaker 02:
Because they're not posing a risk.

[00:30:36] Speaker 02:
They should focus on the hazards that pose the greatest risk.

[00:30:39] Speaker 02:
And again, it's these different categories of manufactured, processed, distributed, and commerce used or disposed of.

[00:30:46] Speaker 02:
I mean, they use or.

[00:30:48] Speaker 02:
So you're looking at these different uses.

[00:30:50] Speaker 02:
And it has a real impact on the agency, because the agency isn't going to be able to get through these decisions.

[00:30:57] Speaker 02:
And then as we put in our declarations, it has a real impact on our clients, because they're forced to answer

[00:31:05] Speaker 02:
questions and respond to requests for information, et cetera, are costing millions of dollars for conditions of use that pose no risk.

[00:31:12] Speaker 02:
But they are pulled into that process.

[00:31:15] Speaker 02:
And then companies deselect, and you have people thinking, well, if it's a risk, why don't I find another chemical?

[00:31:19] Speaker 02:
So it has this failure to do it at the front end where they're supposed to has real world impacts on the industry.

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

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

[00:31:42] Speaker 02:
Just give me one.

[00:31:46] Speaker 02:
Finally, I would add, again, this is not a hazard law.

[00:31:51] Speaker 02:
It's a risk law.

[00:31:52] Speaker 02:
And so the interpretation that is being offered by EPA is treating it more in terms of hazards, not of risks.

[00:31:59] Speaker 02:
The law was written to look very specifically at different risks as are actually the actual conditions of uses.

[00:32:06] Speaker 02:
And when you use the whole chemical approach, you're essentially creating a hazard law.

[00:32:10] Speaker 02:
And there's other agencies that look at that, right?

[00:32:12] Speaker 02:
It's not like these aren't being, and that's part of our argument on usurping the role of OSHA.

[00:32:17] Speaker 02:
They're ending up making decisions that are

[00:32:20] Speaker 02:
looking more of hazards than actual conditions of use.

[00:32:23] Speaker 02:
And that to us is really the core.

[00:32:25] Speaker 02:
Those are the most important words of the statute to us because that's the core of what holds together and drives all the decisions is looking how they're actually manufactured, transported, used.

[00:32:35] Speaker 02:
And each one of those is, and that's how it works too.

[00:32:37] Speaker 02:
I mean, that's how they, you know, they'll have 50 or 100 of these and they compartmentalize them.

[00:32:44] Speaker 03:
I just have one question about your PPE argument.

[00:32:48] Speaker 03:
So the EPA's regulatory language here seems to me, at least arguably, somewhat obscure.

[00:32:55] Speaker 03:
It says EPA will not consider exposure reduction based on assumed use of PPE as part of the risk determination.

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

[00:33:08] Speaker 03:
that employers are complying with OSHA regulations.

[00:33:13] Speaker 03:
But the actual regulatory language doesn't make any mention of what assumptions are sort of off the table, like whether it's OSHA regs or something else.

[00:33:26] Speaker 03:
So how should we understand this language?

[00:33:30] Speaker 03:
Because industry petitioners assume that this is about

[00:33:36] Speaker 03:
you know, about PPUs under OSHA regulations?

[00:33:39] Speaker 02:
I mean, the way we look at the full, you know, the full sentence, I mean, in a nutshell, I mean, they'll consider any available information that PPU will not work and that there's non-compliance, but they will not consider whether or not it works.

[00:33:53] Speaker 02:
And so they're not willing to consider, I think it is, I'll say it's a clumsily written sentence, but we read it and the way it's been implemented is that they're basically not considering

[00:34:04] Speaker 02:
PPE and risk exposure.

[00:34:07] Speaker 02:
So that is inconsistent, plainly inconsistent with the statute for a number of reasons.

[00:34:12] Speaker 02:
It's best available.

[00:34:15] Speaker 02:
Information that EPA possesses can reasonably generally obtain and synthesize.

[00:34:19] Speaker 02:
So if they're presented that information, it should be considered.

[00:34:23] Speaker 02:
And EPA shall take into consideration hazard and exposure information.

[00:34:27] Speaker 02:
Again, PPE goes to exposure.

[00:34:33] Speaker 02:
And so it really should be a key part.

[00:34:36] Speaker 02:
And it leads to decisions that are, and we give some examples where, because they don't consider PPE and OSHA does, for example, they set limits that are much, much lower and harder to achieve.

[00:34:50] Speaker 02:
Whereas, had they simply used PPE, they would reach a different conclusion.

[00:34:54] Speaker 02:
So they're basically not considering it at all.

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

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

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

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

[00:35:43] Speaker 02:
Yeah, I think that that language is kind of inconsistent with what they wrote though, right?

[00:35:48] Speaker 02:
Because they say EPA will not consider exposure of risk

[00:35:51] Speaker 02:
Reduction based on assumed use of PPE.

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

[00:36:10] Speaker 02:
They didn't mean what they said and the other sentence well the the regulation that they promulgate it says they will not consider exposure reduction based on those assumed use of PPE and

[00:36:20] Speaker 02:
as part of the risk determination.

[00:36:22] Speaker 02:
And that's also, and we brief this, that's also what they're doing.

[00:36:27] Speaker 02:
They're not using it at that stage of their analysis.

[00:36:30] Speaker 02:
So they've lived up to it.

[00:36:32] Speaker 02:
And again, we think it's arbitrary because they will take into account available information due to the absence of it.

[00:36:42] Speaker 02:
So it's internally inconsistent that they're

[00:36:46] Speaker 02:
And one thing, they respect the fact that they have to take into consideration exposure information given them, but they say a certain category they're not willing to consider.

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

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

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

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

[00:37:39] Speaker 02:
The reality is that's not how they're interpreting.

[00:37:41] Speaker 02:
They're doing risk evaluations without considering its use and they're setting exposure limits based on it not being used.

[00:37:51] Speaker 02:
And so again, as you pointed out, it's basic information that they normally would have.

[00:37:58] Speaker 02:
Some of these chemicals have been regulated for decades and it pertains to exposure information.

[00:38:03] Speaker 02:
So if they do have this information, I don't know how else you would use it other than

[00:38:08] Speaker 02:
assuming that PPE works.

[00:38:10] Speaker 02:
I mean, the purpose of it is to address exposure, right?

[00:38:14] Speaker 02:
A pair of gloves, a mask, or whatever it is.

[00:38:17] Speaker 02:
And so they're engaging in this kind of strange word game where they're saying, well, we're willing to consider that it's ineffective, but we're not willing to consider that it is effective.

[00:38:30] Speaker 02:
And that's because they won't assume that it reduces exposure.

[00:38:35] Speaker 02:
That's effectiveness.

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

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

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

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

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

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

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

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

[00:39:45] Speaker 02:
Well, they are.

[00:39:47] Speaker 02:
They are, because it's the conditions of use.

[00:39:49] Speaker 02:
In your scenario, they would set the events of exposure different for Johnny homeowner tearing out asbestos as opposed to a highly regulated industry that's working with a similar product where the use is mandated.

[00:40:05] Speaker 02:
And they've said in the past that they wouldn't assume non-compliance with OSHA regulations.

[00:40:09] Speaker 02:
So they've said that in the past.

[00:40:11] Speaker 02:
And that's a sound decision.

[00:40:16] Speaker 02:
It's all, again, it all comes back to the conditions of use.

[00:40:21] Speaker 02:
A product that's available to a homeowner would be given a different level, a different assessment of the exposure than to something that's an additive to a gasoline and a closed loop system in a manufacturer in a highly regulated industry.

[00:40:36] Speaker 02:
So they get to that because, again, it's all driven by the conditions of use.

[00:40:40] Speaker 02:
And our point is, in the highly regulated industry,

[00:40:44] Speaker 02:
They're basically saying, we're not going to consider the obvious fact that everybody there is regulated by OSHA and wearing masks or using whatever PPE is supposed to protect against whatever exposure.

[00:40:58] Speaker 02:
But they will, for some reason, consider the absence or ineffective use of it.

[00:41:04] Speaker 02:
And that's contradictory and arbitrary and capricious in the manner of which it's all driven by the same decision of taking into consideration hazard and exposure information.

[00:41:14] Speaker 02:
PPE is at its base exposure information.

[00:41:17] Speaker 02:
And if they have that information, they should deal with it at the risk evaluation level, if it's presented to them.

[00:41:25] Speaker 02:
And they're saying they're not going to consider it because they say they can't assume that it works.

[00:41:29] Speaker 02:
Well, then they're not really, if they can't assume it's going to work, then why consider it?

[00:41:34] Speaker 02:
In that case, it's not being considered at all.

[00:41:37] Speaker 05:
I just want to make sure I understand

[00:41:41] Speaker 05:
full thrust of your argument on the point we were discussing earlier.

[00:41:45] Speaker 05:
Isn't it true that aggregations of various conditions of use may produce different levels of risk?

[00:41:56] Speaker 05:
Yes, and under... If you do it in the way that you're proposing the step, won't you eliminate a full understanding of that if you eliminate a condition of use?

[00:42:09] Speaker 05:
No, absolutely not.

[00:42:10] Speaker 05:
You take it as a whole, you surely will find all of the, you take the substance as a whole and measure its risk.

[00:42:16] Speaker 05:
You have all of that information.

[00:42:19] Speaker 02:
Well, the aggregation is dealt in the information and what the statute says is the agency should describe whether aggregate or sentinel exposures to a chemical substance under the conditions of use were considered and taken into account where relevant the likely duration

[00:42:33] Speaker 02:
So the agency always has the discretion to do that.

[00:42:36] Speaker 02:
We're not saying that they shouldn't do that.

[00:42:39] Speaker 02:
They always should consider these aggregates.

[00:42:41] Speaker 05:
What they've essentially done in following the statute exactly as written is to consider the substance as a whole in the beginning.

[00:42:50] Speaker 05:
And they have all of that information when they get to the regulation stage.

[00:42:55] Speaker 05:
And they look at different conditions of use.

[00:42:58] Speaker 05:
Because as I'm understanding, and I don't think I'm missing it now, your only concern

[00:43:04] Speaker 05:
you might get caught in the regulation stage and have a regulation where the condition of use didn't warrant it.

[00:43:11] Speaker 05:
And the agency has made it absolutely clear, although you're saying it's only me and you didn't see it in their argument, which I don't understand.

[00:43:19] Speaker 05:
They are saying that is absolutely accounted for pursuant to notice and comment to the parties who will know that with each regulation as to specific conditions of use, here's what they're proposing to do.

[00:43:34] Speaker 02:
Well, the problem is they're going to address it at the next stage, right?

[00:43:39] Speaker 05:
Before there's any regulation, which of course is what I was representing industry, I would want that too.

[00:43:46] Speaker 05:
You can't regulate this without making a determination as to whether there's real risk here on conditions of use.

[00:43:52] Speaker 05:
They have said that is exactly what they're intending to do.

[00:43:55] Speaker 05:
But the harm is in the process, right?

[00:43:57] Speaker 05:
So they're ending up... I'll have to hear their response to it.

[00:44:00] Speaker 05:
I'm not getting where your harm is coming from.

[00:44:04] Speaker 05:
if the agency follows a procedure which puts, as the statute says, the termination as to whether the chemical substance presents an unreasonable risk.

[00:44:15] Speaker 05:
That's the direction of the statute.

[00:44:17] Speaker 05:
I don't understand where all the cost is building up if they do that at the front end, and then they consider the conditions of use regulation piece of it.

[00:44:27] Speaker 05:
at the point when they may want to regulate.

[00:44:30] Speaker 02:
Right.

[00:44:30] Speaker 02:
So what happens is, though, then the regulating industry is supposed to provide, is forced to provide data to EPA about all the uses, right?

[00:44:40] Speaker 02:
And they're forced to provide, even those that pose no risk, forced to comment on rules on chemicals that they use in manufacturing.

[00:44:47] Speaker 02:
That's not the answer.

[00:44:49] Speaker 05:
Even those that don't, that's what they're trying to determine.

[00:44:54] Speaker 05:
In measuring the substance, that's what they're doing.

[00:44:57] Speaker 05:
They're trying to determine where might there be problems and where are there none?

[00:45:02] Speaker 05:
And is this a substance with respect to which there are no problems?

[00:45:06] Speaker 05:
And if so, then we're done with that substance.

[00:45:08] Speaker 05:
That's the way the statute's written.

[00:45:11] Speaker 02:
Well, the statute, again, we believe it's not written that way in the sense that the substance, big S, is deemed to pose an unreasonable risk.

[00:45:21] Speaker 02:
you know, regardless of the fact that nine out of 10 of the uses do not pose an unreasonable risk.

[00:45:27] Speaker 02:
Our point is that those should be let out of the process earlier and not have three to five to six years where you're not getting your, it's affecting preemption.

[00:45:37] Speaker 05:
You want to do the last stage first, even though no determination about regulation has been made.

[00:45:42] Speaker 05:
And so my question to you is why would they want to waste the time there?

[00:45:46] Speaker 05:
They just want to understand the substance.

[00:45:48] Speaker 05:
Is there a possible risk here?

[00:45:49] Speaker 05:
They're not saying

[00:45:51] Speaker 05:
that that equals enough risk with respect to every possible condition of use they found, warranting regulation.

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

[00:46:14] Speaker 02:
as they work their way through it and that's the reality of what is happening and it has real impacts and it has market deselection and it also has impacts on preemption because you know if a state you know all these decisions if you say the substance itself

[00:46:31] Speaker 02:
poses an unreasonable risk.

[00:46:33] Speaker 02:
And every single use, even uses that are known to not pose a risk, the preemption follows that.

[00:46:40] Speaker 02:
So every state and everywhere else that it's working, that's going to then drive that decision.

[00:46:45] Speaker 02:
And so it really, that's an important thing to our clients as well.

[00:46:48] Speaker 05:
I can't argue with you there because I don't have the information, but that sounds profoundly ridiculous.

[00:46:55] Speaker 05:
That if I'm in a state and all I see is the first inquiry,

[00:47:00] Speaker 05:
And there's no determination that the agency has made to regulate the condition of use with respect to that substance.

[00:47:07] Speaker 05:
I'm going to go ahead and act with respect to anything, anyway.

[00:47:10] Speaker 05:
That makes no sense.

[00:47:11] Speaker 02:
Well, the way the preemption works is that it's driven by the scope of the risk evaluation.

[00:47:16] Speaker 02:
And so for this period of time, before they get to the regulations, every use is deemed, every use, all 100, 200 of them is deemed a posing risk.

[00:47:27] Speaker 02:
Whereas if they were making the decision earlier, then those uses could continue and it's not preempted.

[00:47:33] Speaker 02:
So that is a big deal to the statute and a big deal.

[00:47:37] Speaker 02:
And that might be one of the biggest effects here is that, again, by not making these decisions as Congress meant at the earlier stages, you're changing really everything.

[00:47:50] Speaker 02:
The way the chemicals are bought and sold and manufactured, you're having parties decide maybe to no longer use that chemical.

[00:47:56] Speaker 02:
Because EPA says the substance poses a risk, even though there's a different risk if it's Judge Wilkins' homeowner's shell versus a chemical manufacturing plant.

[00:48:07] Speaker 02:
I mean, that's why the conditions of use are so important.

[00:48:10] Speaker 02:
It's based on risk evaluation, not something being hazardous.

[00:48:13] Speaker 02:
There's other laws that deal with a chemical being hazardous.

[00:48:17] Speaker 02:
This is supposed to be very focused on the priority chemicals and then the priority, the most important risks, the ones that really pose a hazard.

[00:48:26] Speaker 02:
So they know how to regulate.

[00:48:28] Speaker 05:
So they know how to regulate, right?

[00:48:31] Speaker 05:
That's what this is all being done.

[00:48:32] Speaker 05:
And that decision that is made until they have made an evaluation with respect to the conditions of use where they think there's a threat.

[00:48:40] Speaker 02:
I would say your honor, they did know how to regulate in 2017 because the regulation that they promulgated then was consistent with the statute and they they do their proposal now is is there sort of.

[00:48:53] Speaker 02:
A little bit of martyrdom almost I mean they're taking on.

[00:48:58] Speaker 02:
more work and more analysis than they can possibly handle.

[00:49:01] Speaker 02:
And they're not getting through these regulations.

[00:49:04] Speaker 02:
And the regulations are having the effect that we talked about.

[00:49:09] Speaker 02:
Not using PPE is having these effects with how they're setting exposure ratios.

[00:49:13] Speaker 02:
It's having effect on preemption.

[00:49:15] Speaker 02:
So the concerns we raise are real and occurring.

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

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

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

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

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

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

[00:49:42] Speaker 01:
Good morning.

[00:49:42] Speaker 01:
I'm here on behalf of the United Steelworkers, the International Association of Machinists and WorkSafe, and our petition is confined to the PPE issue.

[00:49:52] Speaker 03:
So can you start with standing?

[00:49:56] Speaker 03:
Sure.

[00:49:56] Speaker 03:
How have labor petitioners demonstrated standing here?

[00:50:01] Speaker 03:
There are no.

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

[00:50:07] Speaker 03:
I mean, where's the demonstration of standing that's required by our rules.

[00:50:12] Speaker 01:
The courts rules require that we provide declarations if the standing is not obvious.

[00:50:18] Speaker 01:
We are membership associations by law.

[00:50:21] Speaker 01:
and our members are exposed to these hazardous substances.

[00:50:26] Speaker 01:
And I will say that I've been involved in a number of cases under OSHA where the exposure was at issue and we have never submitted declarations to the court and it's never been questioned.

[00:50:38] Speaker 03:
And we would- Well, that doesn't- Okay.

[00:50:40] Speaker 03:
I mean, that is irrelevant to our independent obligation to assess standing for, as you are seeking different relief from the other petitioners, you have to maintain

[00:50:50] Speaker 01:
I would be happy to submit a declaration tomorrow.

[00:50:54] Speaker 01:
It shows that the steelworkers have members who are exposed.

[00:50:59] Speaker 03:
That's not what our case law says.

[00:51:01] Speaker 03:
Briefs can't serve as evidence of standing.

[00:51:03] Speaker 01:
In the past, we have never had a problem, and we've never been asked to do it, and so we did not do it.

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

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

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

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

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

[00:51:49] Speaker 01:
Our comments in the record establish that our members are exposed in various conditions of use and there was a case before the Ninth Circuit on the agency's initial risk evaluation for methylene chloride where the steelworkers put in a declaration and I'd be happy to provide that to the court.

[00:52:11] Speaker 01:
The steelworkers and the machinists represent many employees in manufacturing sectors, particularly the chemical manufacturing sector that are directly regulated under TOSCA.

[00:52:24] Speaker 01:
And we have submitted declarations in many cases that indicate that, and I'd be happy to provide that to the court.

[00:52:32] Speaker 01:
We did not do it in our briefs because we thought it was obvious and not necessary.

[00:52:39] Speaker 01:
I can't pretend we did.

[00:52:42] Speaker 03:
Right.

[00:52:43] Speaker 03:
Your comments are very generic that, I mean, you know, I mean, it seems almost, you know, I'm sure there are workers who are harmed by this rule, but, but that's not.

[00:52:54] Speaker 01:
We have members exposed to virtually every chemical that EPA is, uh, has been considering.

[00:53:02] Speaker 01:
And we have participated in each of those rule makings.

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

[00:53:11] Speaker 01:
Okay.

[00:53:12] Speaker 01:
Well, we would like, we urge you to decide this case on the merits, and I'd like to start by rebutting some of the things that my colleagues for ACC mentioned.

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

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

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

[00:53:59] Speaker 01:
I would say for two reasons.

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

[00:54:08] Speaker 01:
offered competing statutory interpretations.

[00:54:11] Speaker 01:
We say they can't consider PPE.

[00:54:14] Speaker 01:
Industry says they must assume PPE use.

[00:54:18] Speaker 01:
Under this court's decision in utility solid waste activities versus EPA, which EPA thoughtfully cited for us in its motion,

[00:54:28] Speaker 01:
This court looked at a number of factors in deciding whether to remand or whether to address the merits.

[00:54:34] Speaker 01:
And one of those factors was whether a statutory interpretation would narrow the scope of the agency's discretion on remand.

[00:54:43] Speaker 01:
And we think that that's what the court ought to do here, because it has a live controversy where the competing statutory interpretations have been fully briefed.

[00:54:52] Speaker 01:
And it would prevent EPA from coming up with a new rule

[00:54:56] Speaker 01:
that is outside the scope of what the statute gives it discretion to consider.

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

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

[00:55:08] Speaker 01:
So first I'd like to address the industry argument because of course if they win we lose and vice versa.

[00:55:16] Speaker 01:
So I think there's been a lot of confusion here.

[00:55:19] Speaker 01:
We think it would be reasonable for EPA to assume

[00:55:22] Speaker 01:
compliance with OSHA regulations.

[00:55:24] Speaker 01:
But the fact remains that no OSHA standard requires employers to control toxic chemical exposures at all levels of exposure.

[00:55:34] Speaker 01:
And no OSHA standard permits routine reliance on respirators as a means of compliance, as a means of protecting workers.

[00:55:42] Speaker 01:
Employers are required to comply with OSHA exposure limits not to exceed them.

[00:55:47] Speaker 01:
The levels of exposure of concern to EPA and where it has found unreasonable risk are at least one order of magnitude below any level that OSHA has ever regulated.

[00:56:00] Speaker 03:
Even if OSHA regulations are not as protective,

[00:56:04] Speaker 03:
as you suggest they should be for exposure to workers.

[00:56:08] Speaker 03:
I mean, wouldn't that be part of what EPA would be considering?

[00:56:12] Speaker 03:
They're not considering, they're looking at what the OSHA standards do.

[00:56:17] Speaker 03:
And if they're not addressing the risks efficiently, then EPA can take further action.

[00:56:24] Speaker 03:
So the fact that the OSHA regs might not be sort of as protective as you might want them to be for workers,

[00:56:33] Speaker 03:
really say whether they should be part of EPA's understanding of risk?

[00:56:39] Speaker 01:
Completely agree.

[00:56:40] Speaker 01:
So I'll give you an example.

[00:56:43] Speaker 01:
So the industry, the only regulation that they say EPA has ignored is OSHA's methylene chloride standard, which is what industry cites.

[00:56:52] Speaker 01:
OSHA's methylene chloride standard sets a permissible exposure limit of 25 parts per million.

[00:56:58] Speaker 01:
At that level of exposure, OSHA found that 3.6 per 1,000 workers would continue to get cancer.

[00:57:06] Speaker 01:
It didn't set the exposure limit at 25 because it fully protects workers, but because it would be infeasible for industry to routinely go lower relying on engineering controls.

[00:57:16] Speaker 01:
EPA has found cancer and liver toxicity risks at two parts per million.

[00:57:22] Speaker 01:
OSHA doesn't regulate those risks.

[00:57:25] Speaker 01:
And so this whole debate about compliance with OSHA regulations or noncompliance with OSHA regulations is really sort of beside the point.

[00:57:34] Speaker 01:
Besides the fact, under this court's decision in the United Steelworkers, the original lead case, any OSHA standard, no OSHA standard, sorry, no OSHA standard can routinely rely on respirators all the time.

[00:57:50] Speaker 01:
An OSHA standard that relied solely on respirators would by definition under this court's jurisprudence be infeasible and it would be a standard that OSHA is not authorized to issue.

[00:58:02] Speaker 01:
So we think that this is just sort of a big beside the point.

[00:58:09] Speaker 01:
The second question on our argument, we think that the best available science and the direction that EPA not consider non-risk factors during risk evaluation requires that EPA not take

[00:58:27] Speaker 01:
respirators or PPE into account until the risk management stage.

[00:58:32] Speaker 01:
While TOSCA requires EPA to integrate exposure and hazard information, our argument focuses on how you define employee exposure.

[00:58:43] Speaker 01:
Employee exposure assessment protocols require that exposure be measured without regard to respirators.

[00:58:51] Speaker 01:
For the past 50 years, this long-standing industrial hygiene practice

[00:58:56] Speaker 01:
has been incorporated into every single OSHA standard.

[00:59:00] Speaker 01:
All OSHA compliance measurements and employer measurements taken to comply with OSHA standards do not take respirators into account.

[00:59:09] Speaker 01:
NIOSH follows this practice as well.

[00:59:11] Speaker 01:
All the epidemiology studies describing the health effects of chemicals rely on measurements taken without regard to respirators.

[00:59:20] Speaker 01:
The practice is so pervasive that EPA has adopted the same definition of employee exposure in several risk management standards.

[00:59:29] Speaker 01:
The reason is simple.

[00:59:30] Speaker 01:
You attach a sampling tube inside a respirator's facepiece, you break the seal, meaning it no longer can function the way it was intended.

[00:59:41] Speaker 01:
Against this background, we submit that taking respirators into account is simply not the best available science.

[00:59:49] Speaker 01:
Doing so is unprecedented.

[00:59:52] Speaker 01:
Despite decades of occupational risk assessment practice by various federal agencies, neither EPA nor industry has pointed to a single example of a federal risk evaluation where exposure measurements were reduced by evidence of the absence or ineffective use of respirators.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

[01:02:55] Speaker 04:
Thank you, Your Honor.

[01:02:56] Speaker 04:
And may it please the court, Dan Durkey from the United States Department of Justice.

[01:02:59] Speaker 04:
And with me at council table are Rachel Martinez, also with the Department of Justice, and Derek Gilliam from EPA's Office of General Counsel.

[01:03:07] Speaker 04:
And Your Honor, I'd like to start with Judge Rao's question at the outset about the court's power, the court's authority to issue a remand here.

[01:03:13] Speaker 04:
What we're asking for is the court to stay its hand.

[01:03:16] Speaker 04:
We're asking for the court to hold the case in abeyance while the agency proceeds with its announced intention to undergo reconsideration.

[01:03:23] Speaker 04:
That power stems from the court's inherent authority to manage its docket.

[01:03:26] Speaker 04:
We're not asking the court to take any action on the actual underlying regulation, to vacate it, to uphold it, to adjudicate it in any way.

[01:03:34] Speaker 04:
So the court does have, and I think that's been recognized in the court's precedence when the court grants voluntary remand.

[01:03:39] Speaker 04:
So the source of the power is the court's authority to manage its document.

[01:03:42] Speaker 04:
All we're asking is that the court stay its hand, not make a decision on these issues while the agency undertakes this process.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

[01:05:01] Speaker 04:
the labor petitioner's argument that the statute flatly prohibits consideration of PPE.

[01:05:08] Speaker 04:
But on that one, they're also not prejudiced because of the way EPA goes about making its decisions.

[01:05:14] Speaker 03:
I'm not sure the question is one necessarily about prejudice because my question to the industry petitioners is where does the court have the authority?

[01:05:27] Speaker 03:
to issue this relief.

[01:05:29] Speaker 03:
I mean, is the EPA confessing error on the 2024 rule?

[01:05:34] Speaker 07:
No, Your Honor.

[01:05:34] Speaker 03:
Because there are some precedents in which an agency confesses error, and then we vacate and remand the rule sometimes.

[01:05:44] Speaker 03:
I mean, there are a couple of cases.

[01:05:47] Speaker 03:
There's not a lot of reasoning in our case law about why

[01:05:50] Speaker 03:
a remand is appropriate like of course I understand there's a change in administration new administration would like to take a different approach but this case is still here the case is still here and and so so you know what is our authority to simply ignore the case and and effectively issue a remedy without deciding any of the merits

[01:06:14] Speaker 03:
I mean, it seems the government should have some well-developed theory of this, because this is an argument that's being made in a number of cases.

[01:06:21] Speaker 04:
Right.

[01:06:21] Speaker 04:
Well, and because we don't see it as a court issuing remedy, we see it as the court doing what is common to have an abeyance while an agency undertakes rulemaking.

[01:06:31] Speaker 04:
That's not unusual for the court to decide, through its inherent power to manage its document, to stay its hand while the agency undertakes rulemaking.

[01:06:40] Speaker 04:
The only, I think,

[01:06:42] Speaker 04:
the only potential aspect of this.

[01:06:45] Speaker 03:
It's between an abeyance and a remand.

[01:06:47] Speaker 03:
So our cases, I mean, we, of course, can hold a case in abeyance for some limited period of time while the administration reconsiders a rulemaking or something like that.

[01:06:59] Speaker 03:
But our cases are quite clear that we can't do unlimited abeyances, just sort of open-ended abeyances.

[01:07:05] Speaker 03:
And an abeyance keeps the case still here.

[01:07:08] Speaker 03:
But my understanding is what you're seeking is is a remand to the agency, which would eliminate the case from our docket.

[01:07:17] Speaker 03:
Well, perhaps that's a different that is a particular remedy.

[01:07:22] Speaker 03:
And what is what is your theory for why we have the authority to do that?

[01:07:26] Speaker 04:
Well, perhaps it's a terminology problem and not an authority problem, because the only exercise of judicial authority we're asking for is the court to stay its hand.

[01:07:37] Speaker 04:
Because EPA has already announced its decision to go ahead and reconsider.

[01:07:43] Speaker 04:
There's no order necessary to direct the agency that here's a problem.

[01:07:49] Speaker 03:
The agency can engage in a new rulemaking at any time.

[01:07:51] Speaker 04:
Right.

[01:07:52] Speaker 04:
So to join the issue, I think the problem is,

[01:07:56] Speaker 04:
Our position is that, prudentially, the better course is not to make a ruling on these various issues while the agency proceeds.

[01:08:05] Speaker 04:
The agency doesn't need, as you said, the agency doesn't need the court issuing an order to allow it to reconsider.

[01:08:12] Speaker 04:
But, prudentially, we're saying the court shouldn't, it shouldn't happen at the same time.

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

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

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

[01:08:36] Speaker 04:
It would not, Your Honor.

[01:08:38] Speaker 04:
And that's what EPA said in its declaration, was EPA intends to continue to implement the 2024 regulation while it's reconsidering.

[01:08:46] Speaker 04:
There's no change.

[01:08:47] Speaker 04:
There's no need for the court to issue an order on that respect.

[01:08:51] Speaker 04:
The only thing we're asking the court to do is to stay at

[01:08:55] Speaker 04:
Otherwise, the agency proceeding can go forward.

[01:08:58] Speaker 04:
And that's not controversial.

[01:09:00] Speaker 04:
The perhaps more controversial part is, what does the court do while that's happening?

[01:09:05] Speaker 04:
And we're not saying the court has to, of course, stay its hand.

[01:09:08] Speaker 04:
But the court, I think, clearly has discretion to wait.

[01:09:12] Speaker 04:
And here, we've given prudential reasons why it makes sense for the court to wait.

[01:09:15] Speaker 03:
So what is the government seeking?

[01:09:16] Speaker 03:
Are you seeking an abeyance, or are you seeking a remand of the rule?

[01:09:19] Speaker 03:
Because those two things are not the same.

[01:09:22] Speaker 03:
An abeyance holds the case.

[01:09:25] Speaker 03:
while the agency goes forward with new rulemaking.

[01:09:28] Speaker 03:
But the case is still here.

[01:09:30] Speaker 03:
We can lift the abeyance at any time and move to the merits.

[01:09:33] Speaker 03:
A remand, then the case is over here.

[01:09:37] Speaker 03:
And if industry petitioners want to, I don't know, bring some other challenge or labor petitioners, then they would have to come back and institute a new petition, which may be time barred or not, depending on what's happening.

[01:09:49] Speaker 03:
But EPA's position is we're going to continue to enforce the 2024 rule.

[01:09:53] Speaker 03:
So what are you seeking, abeyance or remand?

[01:09:55] Speaker 03:
I'm not sure that those two remedies are consistent.

[01:09:59] Speaker 03:
I'm not sure you can get both.

[01:10:01] Speaker 03:
How do you get both?

[01:10:02] Speaker 04:
Well, two answers.

[01:10:05] Speaker 04:
One, we think this does fit within what the court did in 2018 in the solid waste case.

[01:10:11] Speaker 04:
But if the court today granted the abeyance and did nothing more,

[01:10:17] Speaker 04:
stayed its hands, and we are not going to act until the agency completes its reconsideration.

[01:10:24] Speaker 04:
We have a timeline.

[01:10:26] Speaker 04:
That would satisfy the government.

[01:10:27] Speaker 04:
That would be enough, because the agency has already made its own decision to go ahead and reconsider.

[01:10:33] Speaker 04:
So the exercise that judicial power are asking for is really for the court to stay its hand.

[01:10:39] Speaker 04:
There's nothing.

[01:10:41] Speaker 04:
Remand, in a sense, I think,

[01:10:42] Speaker 04:
We were using the remand, in a sense, to communicate that the agency wants the decision back.

[01:10:50] Speaker 03:
Remand has a technical meaning.

[01:10:53] Speaker 03:
When we remand a rule without vacant or that has a particular meaning, it's not just some sort of atmospheric idea.

[01:10:59] Speaker 04:
Right.

[01:11:00] Speaker 04:
Well, and again, in the 2018 USEFAC decision, that's what happened.

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

[01:11:07] Speaker 04:
If the court is uncomfortable,

[01:11:11] Speaker 04:
following that, then simply holding the case in abeyance and not making decision until the court has the benefit of EPA's further reasoning, I think would accomplish the same thing.

[01:11:22] Speaker 03:
Can you cite two examples where we've held a case in abeyance on a rulemaking while a new rule was being considered, which could take a year, 18 months, two years?

[01:11:41] Speaker 04:
I can't cite you chapter and verse like docket numbers and those usually end up in unreported orders.

[01:11:48] Speaker 04:
But yeah, I don't think that's unusual for the court to put a case into abeyance while the agency reconsiders.

[01:11:56] Speaker 03:
Do you have examples of that where the underlying rule isn't stayed?

[01:12:00] Speaker 03:
Because sometimes there will be a stay issued on a rule and then abeyance, there's no harm to