[00:00:01] Speaker 07:
Case number 25-1163, being your counsel at all petitions, versus Environmental Protection Agency and lead in Zeldin Administrator, U.S. Environmental Protection Agency as lead of the petition, this person for the respondent, Ms. Lazzaretta for the intervener's correspondence.

[00:00:21] Speaker 02:
Good morning, and may it please the court. Adrian Lee, appearing on behalf of petitioners, I'd like to reserve three minutes for rebuttal.

[00:00:29] Speaker 02:
Petitioners members are exposed to toxic emissions from steel mills, which include famously harmful pollutants like lead, mercury, and arsenic. They've been waiting for more than 20 years for regulations that reduce those emissions to the extent the Clean Air Act requires.

[00:00:45] Speaker 02:
And they would have gotten some relief due to standards EPA promulgated in 2024 had EPA not excused the industry from compliance pending a reconsideration rulemaking that aims to roll them back.

[00:00:57] Speaker 02:
This case is not about whether EPA can change its mind or revise its regulations. It's about whether EPA must respect statutory limits on its authority when it does so. The act prohibits EPA from staying a final rule pending reconsideration for more than 90 days. It also requires revisions to final standards to go through notice and comment with limited exceptions. EPA has attempted to evade both these constraints. The record makes clear that EPA is reconsidering the 2024 rule and has issued the functional equivalent of a 21-month stay pending that reconsideration.

[00:01:32] Speaker 02:
EPA made that unlawful delay final and immediately effective without notice and comment and without a legitimate good cause basis, and then later argued that good cause was unreviewable because it had promulgated a second final rule. I'd like to start by pointing out that the court has already rejected previous attempt by EPA to nullify a rule it has come to dislike. In Air Alliance Houston, this court held that EPA did not have authority to extend a stay of a final rule pending reconsideration beyond the Clean Air Act's three-month limit, even when purporting to do so under a separate, more general authority.

[00:02:05] Speaker 02:
This court should reject this attempt at rule nullification as well because EPA does not have authority to stay in compliance with the 2024 rule to accommodate its plans to roll it back.

[00:02:15] Speaker 07:
Ms. Lee, so here EPA delayed the compliance deadlines through rulemaking. Could it effectively have also delayed compliance deadlines through enforcement discretion? Could it have just announced in a memo or some kind of statement that it would not enforce the 2024 rule?

[00:02:37] Speaker 02:
So if sources can show that they have serious issues with compliance by the compliance deadline, EPA has authority to do source by source compliance extensions and also exercises enforcement authority, yes.

[00:02:50] Speaker 07:
STEPHANIE DESMOND- So then if it has that enforcement discretion and it thinks that compliance here would be infeasible or technologically difficult for longer periods of time, I mean, isn't it better that they did a rulemaking as opposed to just exercise enforcement discretion? I mean, if they have the enforcement discretion, then does it matter?

[00:03:13] Speaker 07:
what they said in the rule.

[00:03:15] Speaker 02:
I think it doesn't matter whether it's better.

[00:03:19] Speaker 02:
It's a limitation that Congress has placed on EPA's authority. And it says that If EPA wants to revise the rule, which it can, it has to go through notice and comment rulemaking. So it's just a constraint that Congress placed on EPA's- I mean, it is revising the rule through a new rulemaking.

[00:03:39] Speaker 07:
It's just, it has also done a rulemaking to delay the compliance deadlines, a separate rulemaking.

[00:03:45] Speaker 02:
And that's what's not allowed by the statutory constraints on EPA's authority.

[00:03:51] Speaker 07:
You think because of the 90 days?

[00:03:53] Speaker 02:
Yeah, and I think that goes to the structure of the Clean Air Act. I mean, the Clean Air Act was designed to reduce pollution. The 1990 amendments to the Clean Air Act were supposed to speed EPA's efforts to reduce that pollution. 307B says a petition for reconsideration does not stay the effectiveness of a final rule.

[00:04:19] Speaker 02:
The only way that EPA can do so is if there is a mandatory reconsideration. and the act still limits that stay pending reconsideration to 90 days.

[00:04:32] Speaker 02:
And so Congress, in amending the Clean Air Act, did contemplate that this situation might arise and has addressed that.

[00:04:44] Speaker 08:
So the key in, arguably the key in Airlines Houston, was that the only reason given was was to facilitate reconsideration. And throughout that opinion, they emphasized that EPA had not separately found that the existing date was impracticable, which is what R7, that more general authority referred to, required. So EPA's argument is that this case is just different because we did make findings about impracticability.

[00:05:19] Speaker 08:
It seems like there is a fairly strong argument that when they make the finding impracticability here, which triggers I3, you know, they are allowed to do that and they are allowed to change the compliance date.

[00:05:34] Speaker 02:
Well, a couple of things. I mean, first of all, Airlines Houston does say that EPA can't use its more general rulemaking authority, as you pointed out, to evade this statutory limit on its ability to stay a rule pending reconsideration. And I think the first thing is to look at what EPA really did say about why it was doing this. It said it was to allow for more time to reconsider.

[00:06:00] Speaker 08:
I guess I just want to tease out what they're allowed to do, though. So just assume for the moment they had really, really good reasons for finding the existing compliance dates impracticable. And for each one, we think they're more likely to be able to comply in three years. I think you'd have to agree completely.

[00:06:18] Speaker 08:
I think maybe you won't, that if they promulgated a rule that just said compliance is not practicable in one year, it is practicable in three, they're allowed to do that, right?

[00:06:29] Speaker 02:
So no, if the purpose of suspending compliance for that period of time is to allow for reconsideration, I think- Right, so I'm doing it.

[00:06:38] Speaker 08:
What if it's both? It is in fact impracticable to comply with this in one year, And also delaying it is going to let us fix the standard in some way. But when we are presented with the question, what should the compliance date be? We have specific bases to find that that one year is impracticable and three years, three years is better.

[00:07:04] Speaker 02:
So two things. One, even if the agency is doing this in order to fix the rule, We still think that the statutory limitation on the stay still applies. And they would have to do that through rulemaking. But the second point is that EPA didn't make findings about why the new deadlines do provide for compliance as expeditiously as practicable. I think a way of thinking about it is that EPA spends a lot of time talking about why it thinks the old deadlines aren't practicable.

[00:07:38] Speaker 02:
but then it sets all the deadlines at the three-year mark. And that doesn't explain why EPA previously found that these one- and two-year compliance deadlines were appropriate, and now three years for compliance is appropriate. It doesn't follow from the conclusion that the old deadlines weren't practicable, that the new deadlines necessarily are. And I think the reason it doesn't make sense is because the answer is that this extension allows for EPA to reconsider the underlying standards.

[00:08:09] Speaker 07:
So where is the line between reconsideration and a new rule? Because EPA undoubtedly has the ability to promulgate new standards or different standards in a new rulemaking. And so I understand some of these arguments were first raised in a petition for reconsideration. But now, obviously, there's been a change of administration. New EPA sees the facts on the ground differently, wants to do a new rule.

[00:08:38] Speaker 07:
Why would that be barred? There's a certain logic in delaying the compliance deadlines while the new rule is being complicated. Because otherwise, the new rule will have no effect if the old rule goes into effect.

[00:08:57] Speaker 07:
They're planning to change the standards, but steel mills have to comply in the interim, then You know, what's EPA supposed to do with that?

[00:09:11] Speaker 02:
I think the Clean Air Act contemplates that. And I think, as you point out, there has been a change of administration. The head of EPA announced that there would be rollback rulemakings, including of air toxic standards, and specifically pointed to steel mills as one of the air toxic standards to be rolled back. And agencies can change their mind. That is not uncommon. But the Cleaner Act was designed to contemplate that possibility, and it doesn't allow the kind of ping-ponging that this would entail, that every time the agency changed its mind, the old will necessarily doesn't go into effect.

[00:09:49] Speaker 02:
There are ways for...

[00:09:52] Speaker 02:
the EPA to address potential compliance issues if there really were compliance issues. But just because the EPA has changed its mind about the wisdom of that old rule doesn't allow it to stay the rule while it changes its mind.

[00:10:09] Speaker 06:
It seems to me that, of course, a new administration can change its policy priorities and it can reconsider rules. But there are procedures that are that must be followed in order to do that. And that this agency chose a particular provision about moving compliance deadlines. And the standard is the EPA must provide for compliance as expeditiously as practicable but in no event later than three years after the effective date.

[00:10:43] Speaker 06:
And to me, it just seems to me that this particular provision is not a great way to address big problems in terms of the original rule.

[00:10:56] Speaker 06:
You don't move the compliance deadlines in order to address these big problems, or there are other things the EPA could have done.

[00:11:05] Speaker 06:
to address those problems. And this procedural requirement, I don't see anywhere in the record where there actually is a justification that the deadlines that were chosen are as expeditiously as practicable. There's no discussion of that in the rulemaking. So it just seems to me that This case isn't about what the EPA is allowed to do. It's the procedure they followed in which to do it. And they can't use this particular provision and move compliance deadlines where they're just trying to address other issues that like they need to rewrite the rules.

[00:11:43] Speaker 06:
That doesn't mean that moving the compliance deadline makes compliance as expeditious as practicable.

[00:11:50] Speaker 02:
Yeah, I think that's exactly right. And I think that's the principle that Airlines Houston was really getting at. Yes, EPA has other authorities under the Clean Air Act, but it can't use those authorities to get around this prohibition on delaying a rule because the agency has changed its mind about those rules.

[00:12:11] Speaker 07:
Wasn't the case about effective dates of rules and not compliance dates, which are meaningfully different?

[00:12:18] Speaker 02:
Yeah, I've given some thought to that. And I think, first of all, a stay pending reconsideration under 307 D7B, right, is staying the effectiveness of a rule pending that reconsideration. And I understand that he uses the term effectiveness. But as a matter of practice, EPA interprets effectiveness to mean when the rule is affecting regulated industry conduct. I mean, this rule, the steel mills rule, has been in effect since June 3, 2024.

[00:12:50] Speaker 02:
So when EPA administratively stayed the rules effectiveness pending mandatory reconsideration, it was staying the upcoming compliance dates. And in Clean Air Council v. Pruitt, I think the same was true. The rule was already in effect. And when the agency stayed, the rule's effectiveness, pending reconsideration, it was really staying compliance with the rule. I think that also flows from the way that provision works, right?

[00:13:21] Speaker 02:
Because air toxics rules typically become their effective date. is the same day as a petition for reconsideration would be due. So the provision really wouldn't make sense if it had to be a delay of the effective date. And it's less obvious, actually, in Airlines Houston why delaying the effective date would be the same as that. And the court reasoned that because there were compliance dates that would need to be followed during the pendency of this delay of the effective date, it was the functional equivalent of a stay pending reconsideration.

[00:13:56] Speaker 02:
And here, the fact of what EPA has done is that for two years, the compliance obligations that would be in effect are not in effect. So it is in some ways closer than the situation in our Alliance Houston.

[00:14:14] Speaker 08:
Can I just ask, I want to, again, put aside whether the reasons they've given for it being impracticable are good or not. But just assume, struggled with the following.

[00:14:27] Speaker 08:
Assume that they find this standard is so nonsensical, it can never be complied with, is impracticable in one year, in three years, in 10 years.

[00:14:38] Speaker 08:
EPA still has to make a choice of what the compliance date should be. And when they're just looking at that, why can't they say, if this standard is impossible to comply with, a better compliance date is three years rather than now? It just seems self-evident, arguably, that right now is a worse compliance date for the impossible than three years.

[00:15:05] Speaker 08:
And they have authority to change the compliance date.

[00:15:09] Speaker 02:
So the difference there is that, well, first of all, EPA said that it was doing this to accommodate its desire to reconsider reconsider the rule. But I think another way of looking at it is asking the question, is this additional amount of time going to lead to compliance, you know, absent any change to the rule? And you can see from that question that in your scenario, the answer to that question would be no.

[00:15:41] Speaker 06:
And so... Doesn't the standard assume that compliance is feasible? It...

[00:15:46] Speaker 06:
It has to be applied for compliance as expeditiously as practical assumes that there can be compliance. If compliance is impossible, this is not the correct rule to, this is not correct provision to apply to address the situation.

[00:15:59] Speaker 02:
Yeah. And I think that would be a merits issue that the agency could address by changing the rule.

[00:16:06] Speaker 06:
And I mean, I can give an example of the sort of thing that would- But in answer to Judge Garcia's question, it just seems to me that If compliance is impossible, this rule doesn't allow you just to set it for the maximum possible time because it's still not as expeditiously as practicable.

[00:16:27] Speaker 06:
Exactly. This rule doesn't address impossibility of compliance.

[00:16:32] Speaker 02:
Yes, and I think where you're getting at maybe is EPA can't set three years as some kind of placeholder so that it has time to reconsider the rule.

[00:16:41] Speaker 08:
Exactly.

[00:16:43] Speaker 07:
Why can't it do that?

[00:16:45] Speaker 08:
I mean, the whole question is whether it can, right? So a similar question would be, what if EPA genuinely believes no one's going to be able to comply with this, but they will be able to comply in five years, right?

[00:16:58] Speaker 08:
The obvious answer would be, we can't do five years.

[00:17:02] Speaker 08:
We're going to get as close to that as we can. The statute doesn't let us go beyond three, so we're picking three. And I guess you would say, you don't believe compliance is practicable in three years, so that's impermissible. And...

[00:17:15] Speaker 08:
That seems like a worse outcome from the perspective of a regulator to force everyone into noncompliance when they genuinely don't think anyone can do it.

[00:17:25] Speaker 02:
Yeah, I think I understand your question better now. So in that scenario, if the agency had determined that compliance really wouldn't be possible until five years from now, but the act sets a hard three-year limit, the agency would still need to explain that in the rulemaking, it would say that we have made findings that for X, Y, and Z reason.

[00:17:51] Speaker 06:
Aren't there other ways to address something that the industry just can't comply with other than moving a compliance deadline? Yeah, and I think- I mean, there's the enforcement discretion that Judge Rao referenced.

[00:18:03] Speaker 06:
There's the president can grant a two-year national security exemption. Are there other exemptions that would apply in that situation?

[00:18:12] Speaker 02:
Those are the tools that I'm aware of. So I think you covered the presidential exemption, the source by source compliance, one year compliance extensions under I-3B and enforcement discretion.

[00:18:27] Speaker 06:
I think... Wait, does I-3B allow them to keep renewing an exemption, an extension?

[00:18:36] Speaker 02:
I'm not sure from the face of that provision, but it definitely allows for a one-year extension. At least one year. I know the presidential exemption, I think, is renewable.

[00:18:47] Speaker 08:
The presidential exemption is renewable. So if the president issued a presidential exemption and he made the findings required for that authority and also said, I'm doing this in part to facilitate reconsideration of the rule, because frequently national security interests might overlap with the fact that it's hard or impossible to comply with the rule, just like, and so you'd want to fix it.

[00:19:18] Speaker 08:
Seems to me that you would be arguing that he can't do that, that by mentioning that he's using the national security exemption to facilitate reconsideration, it becomes impermissible.

[00:19:33] Speaker 08:
But your argument is that As Judge Pan says, there are five, ten different things EPA can do. And your argument is that under none of them, other than 7B, can the EPA think about facilitating reconsideration.

[00:19:54] Speaker 02:
Well, I think for the presidential exemption, I'm not sure that's the same as the constraints on EPA's authority to stay rule pending reconsideration.

[00:20:04] Speaker 08:
Right. It's not. It's so if you put side by side, I3 and I4 are you can change the compliance date or you can have a national security exemption.

[00:20:14] Speaker 08:
And each one has specific findings you have to make. I3 is compliance is impracticable.

[00:20:21] Speaker 08:
And four is national security findings. And I'm struggling to understand why under either, if you make the required finding and also say, we're doing this in part to facilitate reconsideration, it becomes impermissible.

[00:20:38] Speaker 02:
Are you, for the first example, you're talking about I-3B, the source by source extensions.

[00:20:44] Speaker 08:
Talking about the compliance dates extension authority.

[00:20:49] Speaker 02:
Right, so I think for I-3A, the requirement that a compliance date provide for compliance as expeditiously as practicable, that does mean that if the new compliance date is simply a placeholder, for EPA to change the underlying standard. That's not allowed.

[00:21:10] Speaker 06:
It's the way the statute works that if you want to delay for reconsideration, you've got 90 days. You're supposed to reconsider it within the 90 days that's provided for in the statute. And then if you can't do it within 90 days, there are other things you can do. You can exercise your enforcement authority less stringently. You can ask the president to give you a national security exemption. There are other things to do. But what you can't do under the statute is take a provision that explicitly says you have to provide for a compliance deadline that's as expeditious as practicable and ignore that standard and just move it to the maximum date.

[00:21:50] Speaker 06:
I mean...

[00:21:52] Speaker 06:
I understand that the agency has a problem here, but I think the very narrow question in this case is whether they use the correct tool to address the problem. And it seems to me that moving a compliance deadline that has a specific standard that hasn't been met is not the answer. Where in the record is there any discussion that these compliance deadlines are as expeditious as practicable? I can't find that anywhere in the rulemaking.

[00:22:17] Speaker 02:
No, and we couldn't find that either. And we raised that in our briefing on the delay rule itself. And then EPA has had a second bite at the apple to explain itself with a second final rule. And we still find no indication in the record or in EPA's second explanation of why the new compliance deadlines do provide for compliance as expeditiously as practicable.

[00:22:39] Speaker 07:
Why is it not sufficient to explain why the current deadlines are impracticable. I mean, isn't that effectively the same thing? I mean, what affirmatively would the agency have to say? So they've explained why these deadlines are, you know, you may agree, disagree, but they have put forward explanations about why it's infeasible and impractical to meet the current compliance deadlines.

[00:23:03] Speaker 02:
So I think two ways of thinking about it. One, you could give an explanation for why the one year more would provide for compliance. Let's say that facilities were building something, and one piece of that item is missing due to global shipping delays. And so the project will just take six months longer than previously anticipated. And the agency makes that finding and says that we think that compliance is going to happen within that time.

[00:23:38] Speaker 07:
So we need something that specific in order to delay the deadline, something that granular.

[00:23:45] Speaker 02:
Well, I think more importantly, EPA didn't offer anything here.

[00:23:48] Speaker 07:
But I'm just trying to think of what they can offer, what you think is missing, because they've undoubtedly said why the current deadlines are impracticable, which suggests that they, which certainly supports the fact that steel mills need additional time.

[00:24:05] Speaker 07:
So how granular does the agency have to be to move the compliance deadlines?

[00:24:14] Speaker 02:
Again, I think the agency needs to say something. And they have spent a lot of time saying why they think the original deadlines don't work. And the answer to that is because as EPA frames it, EPA thinks that those standards themselves need to be changed in order for compliance to be possible.

[00:24:34] Speaker 07:
Is there any further questions? No? OK, thank you. We'll give you a couple minutes on the bottle. OK, thank you.

[00:24:48] Speaker 07:
Morning.

[00:24:49] Speaker 05:
Morning. Good morning. May it please the court. Peter Torstensen for the United States.

[00:24:57] Speaker 05:
This court should deny the petition for two reasons. First, EPA lawfully exercised or lawfully revised compliance dates from the 2024 rule.

[00:25:08] Speaker 05:
The revised deadlines complied with the three-year statutory limit, and EPA explained standard by standard why the original deadlines were infeasible and why the revised deadlines were warranted. EPA's predictive judgment about how expeditiously compliance with the 2024 rules, opacity limits, and work practice standards could be achieved warrants substantial discretion.

[00:25:34] Speaker 05:
Petitioners argue that Air Alliance bars EPA from revising the compliance dates, but that case doesn't help them.

[00:25:43] Speaker 05:
It involved an express statutory limit on staying effective dates during reconsideration proceedings, but it had nothing to say about revising compliance dates, which the statute at here gives EPA authority to do.

[00:25:57] Speaker 06:
This court should reject- Can you show me where in the record EPA actually made findings that the compliance dates it chose were as expeditious as practicable? Because I couldn't find that in the rulemaking or anywhere else.

[00:26:10] Speaker 05:
Well, two things, Your Honor. I would say first, in the responses to comments, well, in the IFR itself, the EPA identified that the original compliance deadlines were impracticable for a couple of reasons.

[00:26:24] Speaker 06:
No, I understand that, but I'm interested in why the deadlines they ended up choosing are as expeditious as practical.

[00:26:32] UNKNOWN:
Right.

[00:26:32] Speaker 05:
So in the responses to comments, the JA 835 to 843, they walked through why each of the standards were infeasible under the original compliance deadlines and why those deadlines were impracticable.

[00:26:47] Speaker 06:
You're still addressing the original deadlines. That wasn't my question. Can I do a third time? For the third time, where in the record does it say that the deadlines that they ended up choosing, the new deadlines, are the ones that are as expeditious as practicable?

[00:27:02] Speaker 05:
So I would say they get at it in two ways. The first is establishing that it's infeasible, and the second is that they needed some additional time in order to comply.

[00:27:11] Speaker 06:
Okay, but saying that the first ones are infeasible and we need more time to comply doesn't support the actual compliance state that was chosen and find that the actual compliance state that was chosen is the one that is as expeditious as practicable. Do you agree with that?

[00:27:31] Speaker 05:
In general, yes.

[00:27:32] Speaker 06:
I would say that it's important to understand... So in general, you agree that they did not comply with the statutory standard?

[00:27:38] Speaker 05:
I wouldn't say in general I agree that they didn't comply. I would say in general... But that is the statutory standard. The statutory standard is that it must be as expeditiously as practicable. I agree with you. There is...

[00:27:50] Speaker 05:
I think we're dealing with a 12 to 24-month period of time. And so once they make, you know, as Judge Rao was identified in sort of the questioning with Petitioner's Council, that we're talking about a limited determination about 12 to 24-month extensions. And so once it makes the initial finding that it's infeasible, they deserve... You know, they're exercising their predictive judgment about just how quickly compliance could be achieved.

[00:28:20] Speaker 06:
That's what I'm trying to find out. Where did they exercise that judgment about which is as expeditious as practicable?

[00:28:27] Speaker 06:
It just seems like if they can just set any deadline to give them more time, that reads this language out of the statute.

[00:28:34] Speaker 05:
Well, I think they were limited to the three-year period of time.

[00:28:37] Speaker 06:
I understand that, but that's a different part of the statute. It's as expeditiously as practical, but in no event later than three years after the effective date. It doesn't say set the maximum time to give people more time because what you set wasn't good.

[00:28:52] Speaker 06:
It reads out the whole requirement that it has to be as expeditious as practicable to do it that way.

[00:28:57] Speaker 05:
I think EPA deserves, in terms of the judgment, that two years, they set all of those two years in part because they identified that compliance within the three-year period would be impracticable.

[00:29:11] Speaker 06:
But where is the finding about expeditiously as practicable?

[00:29:16] Speaker 05:
I think your answer is there is none. Is that correct? There may not be a specific finding about the precise number of months that are required, but they do make the finding in their responses and comments.

[00:29:27] Speaker 06:
But the findings that you're pointing to do not address expeditious as practicable. They just say the original deadlines are not practicable and we need more time, but they don't show which time is as expeditious as practicable.

[00:29:41] Speaker 05:
I do agree that they do not identify a specific number of months. I think response to comment, I want to say it's at 835, JA 835. That is where they address the comment about expeditiously or as expeditious as practicable. Where is it? So JA 835.

[00:30:07] Speaker 06:
And what's the language you're pointing to here?

[00:30:09] Speaker 05:
And their response, 1.1. I mean, they disagree that the revised deadlines do not provide for compliance as expeditiously as practicable. The compliance issues identified for each category provided them with a reasonable basis that it is not practicable under the original deadlines.

[00:30:26] Speaker 06:
But it doesn't say not practicable. It has to be as expeditiously as practicable. Where's that?

[00:30:32] Speaker 05:
They did not make that specific finding about a certain number of months.

[00:30:36] Speaker 06:
But if they did make that finding, aren't they in violation of the statute? Isn't it as simple as that?

[00:30:41] Speaker 05:
Well, if they make the original finding that compliance within a three-year period was not practicable, the statute cabins their ability to extend or to revise the compliance deadlines to essentially two more years from what the... I think you're rewriting the statute to leave out the expeditiously as practicable part.

[00:31:02] Speaker 05:
I believe that they have to have the discretion to be able to revise the deadlines up to two years, assuming that they may- But we have to comply with the text of the statute, don't we?

[00:31:11] Speaker 06:
The text of the statute says, provide for compliance as expeditiously as practicable. But not later than- We're going to be textualists. We can't read out expeditiously, can we?

[00:31:21] Speaker 05:
And I don't think that we're reading out. I think that they made the determination that, and I believe that the response is- Where's the determination?

[00:31:27] Speaker 06:
That's where we started this whole conversation. Where's the determination of expeditiously as practicable?

[00:31:33] Speaker 05:
I believe that the, you know, JAA 35, you know, the responses and comments do- We just read that together.

[00:31:38] Speaker 07:
It's not there.

[00:31:41] Speaker 07:
Would it be sufficient if EPA had just said, based on the fact that the old standards were impracticable- It, you know, it requires one or two years is as expeditiously as practicable.

[00:31:58] Speaker 05:
You mean to say that?

[00:32:01] Speaker 07:
Yeah, I mean, if they just like repeated the words of the statute based on why the previous standards were impracticable.

[00:32:09] Speaker 05:
I agree that that would be certainly more precise and that would probably have helped. But I mean, I think that the court can affirm their decision or kind of uphold their decision based on sort of what they've included in the record here.

[00:32:27] Speaker 07:
question about how enforcement discretion would work here. If, I mean, Ms. Lee concedes that EPA could delay compliance deadlines using enforcement discretion. So if EPA were to issue, I'm just curious how this would work. If EPA issued a memo saying we are not going to enforce the compliance deadlines because we're doing a new rulemaking and we think whatever, you know, gave some of the same reasons for delaying in the rule.

[00:32:56] Speaker 07:
would there, could you still bring a citizen suit? So if EPA withheld its, you know, exercise enforcement discretion, I assume that citizen suits would still be available for the failure to meet compliance deadlines, is that?

[00:33:09] Speaker 05:
Yes, our understanding is that citizen suits would be available, and that would be one risk. That's a reason for doing the rule. Yes, that would be one risk of, you know, essentially exercising their enforcement discretion not to enforce compliance.

[00:33:26] Speaker 08:
So some of these explanations about why the existing deadlines were impracticable are a little bit thin.

[00:33:36] Speaker 08:
Can you help me understand the explanation for the blast furnaces? So this is the explanation that the actual regulation in the 2024 rule is different from what the preamble justified. Right.

[00:33:54] Speaker 08:
But...

[00:33:56] Speaker 08:
you would have expected to see an explanation of why what's in the rule, this governance, is in fact impractical from EPA. But instead, you could read the response to comments to just say, well, there's a discrepancy, so we need some time to figure it out. And if EPA's action here was allowed, it's because it made specific findings that the existing dates were impracticable. So it's important that this hold together.

[00:34:28] Speaker 08:
So do you have an answer about the blast houses in particular?

[00:34:32] Speaker 05:
Yeah. So, I mean, I believe as you identify in J840 and their response to comment, they do note that that creates complicating factors in terms of determining how compliance would be achieved. I agree that there's a disconnect between the preamble and the regulatory text, and that disconnect needed to be resolved in order for them to determine how to achieve compliance. And I believe that there was also And they explain here that the discrepancy poses compliance challenges and that the sources need to sort of sort out how compliance would be achieved.

[00:35:17] Speaker 05:
I agree that that is not the most fulsome explanation, but it does at least provide a rationale for why the additional time is needed to make sure that they can determine which of those two methods would be used.

[00:35:34] Speaker 08:
Can you address just why the one obvious other fix here would have been to complete the actual substantive reconsideration of the rule? What is the status of that and

[00:35:48] Speaker 05:
I know that EPA is considering another rule, and I believe that they've identified that in both the IFR and the final rule that that process was underway. I don't know where that precisely is, but I believe that that is an effort that's underway.

[00:36:06] Speaker 07:
Is there any anti-backsliding rule that applies to this part of the Clean Air Act?

[00:36:16] Speaker 05:
I'm unaware of any such provision, but I can't obviously say specifically.

[00:36:22] Speaker 07:
I didn't see anything in the briefing about it, but I was just wondering whether there was.

[00:36:33] Speaker 04:
And then I would just move on to say that, well, I think that, are there any other questions?

[00:36:46] Speaker 03:
I think that covers.

[00:36:48] Speaker 07:
Any other questions?

[00:36:50] Speaker 07:
Thank you.

[00:36:52] Speaker 07:
Next here from interveners.

[00:36:57] Speaker 07:
Please.

[00:37:01] Speaker 00:
Your Honor, may it please the court. My name is John Lazzaretti, counsel for the industry interveners for respondents.

[00:37:07] Speaker 00:
Your Honor, we wanted to emphasize just a few points.

[00:37:10] Speaker 00:
First, to lead off, I think this was framed as a political issue. It's not a political issue.

[00:37:15] Speaker 00:
Reconsideration of this rule started in August of 24 under the Biden administration. There were problems recognized with this rule from the get-go. What the issue was, whether it could be fixed with corrections or required a full revision of the rule. That took a while for the EPA to decide, and that's what brought us into the time pressure we were under entering into June and July.

[00:37:38] Speaker 00:
The other thing, there was a lot of discussion about, you know, where in the records the finding that this is expeditiously as practicable. And one of the things I'd emphasize is that the standard is supposed to be the same for what basis and purpose EPA is required to do. When it's amending a rule is when it's promulgating a rule. In 2024, there was nothing in the record talking about why the one-year and two-year deadlines were as expeditiously practicable. Excuse me. The final 2024 rule doesn't use the phrase expeditiously is practicable either.

[00:38:08] Speaker 00:
So that's not anywhere in the preamble.

[00:38:10] Speaker 08:
The hard question in this case is, for a lot of these issues, EPA's explanation is basically the standard that was promulgated makes no sense and no one can comply with it. So the hard question is, why does it make sense to set the compliance date at three years?

[00:38:30] Speaker 08:
rather than, I guess, something else. So can you sort of address that?

[00:38:35] Speaker 00:
So from a legal perspective, it makes sense because that's what I-3 says. It says three years or, but no event longer than three years. So the only reason that language is necessary is there may be something that is not as expeditious as practicable within three years. You still have to set it at three years.

[00:38:54] Speaker 06:
I don't think that's what it says.

[00:38:57] Speaker 06:
I think Judge Garcia's question was, what if it's not practicable at all, even within three years? What are we supposed to do here?

[00:39:03] Speaker 00:
Well, that's the second half of the language. So it says, set it as expeditious as is practicable, but in no event. So when you have an event that is no longer practicable, it still has to be set at three years. And that's true if it's five years.

[00:39:16] Speaker 06:
Oh, so you're reading this language to say if it's not practicable at all, it can be set at three years. Yes.

[00:39:24] Speaker 00:
You would expect that the agency wouldn't promulgate a standard at the time they believed was not practicable at all. But ultimately, you're talking about the question of what in the statute, what in the Clean Air Act provides for what that number has to be. It's still I-3. It certainly contemplates the idea that EPA will set a deadline that is not practicable. Whether it thinks it's five years or 50 years or 150 years, it has to set it at three years.

[00:39:45] Speaker 06:
So your view of the statute is if it can't be complied with until five years, you set three years?

[00:39:51] Speaker 00:
That's right.

[00:39:52] Speaker 06:
And if it can't be complied with at all, you still set three years.

[00:39:56] Speaker 00:
That's the most you can set the deadline at.

[00:39:58] Speaker 00:
And if you find that it's not practicable within three years, there isn't a lot of effort EPA needs to put into finding whether it's five years or ten. It has to be three.

[00:40:06] Speaker 06:
And they have to set a compliance deadline.

[00:40:09] Speaker 00:
If they promulgate a standard, it has to have a compliance deadline. That's right.

[00:40:15] Speaker 00:
And when we're talking about compliance deadlines, there was a discussion about effective date versus compliance deadlines. I mean, if the rule is effective immediately, the Cleaner Act does distinguish between effective dates and compliance deadlines.

[00:40:27] Speaker 00:
There are a lot of compliance deadlines in the rule when it's problematic. This isn't just one. So these particular standards were focused on three different time periods, but they have initial compliance deadlines, continuing compliance deadlines. These are complicated rules, and what they do is they set various timelines for various actions. And one of the points I wanted to emphasize is there's not a lot of discussion in the first rulemaking as to why they picked one year. All they say in the preambles and even the response to the comments, they have a whole section six. It doesn't say on anything other than we don't think it'll be that hard to comply. Therefore, we think one year is appropriate.

[00:40:59] Speaker 00:
So there isn't, you know, there's more explanation in the IFR and the final December rule than there was in the original rule for setting the new deadlines.

[00:41:09] Speaker 00:
The other thing I wanted to emphasize is I think you had a question about the blast furnace standard. I wanted to just add some color to what EPA describes. When they're brief, they talk about blast furnace is a large vessel. And that doesn't really do it justice. Every furnace is unique, but what we're talking about in general is it's a 200-foot-tall, 50-foot-wide vessel with 10,000 tons of molten iron and rock that's being blasted with 2,500-degree air over 200 miles an hour while continuously feeding raw material on the top.

[00:41:44] Speaker 00:
One of the primary obligations of an operator is to ensure that this is run as stably as possible, both temperature and pressure. A stable furnace is the best furnace, both for iron making and for environmental protection.

[00:41:58] Speaker 00:
Incidents do happen, though. EPA talks about burden slips. That's one cause. There's a lot of other causes of upsets in a furnace. There's issues with raw material. There's issues with sensors. There's issues with the gas handling system. They can all lead to sudden pressure changes. That pressure has to go somewhere. If it's built up to the point that it can't be handled by the system safely, that's what the bleeder valves are for. They're emergency pressure release devices, and they're put throughout the furnace. What EPA did in this rulemaking is They set a numeric cap on that. They said you can only, if it's a large furnace, open it four times in a year.

[00:42:30] Speaker 00:
What happens if you run into that?

[00:42:32] Speaker 08:
Sorry, can I go back to this blast furnace monitoring? Yes. It seemed like you were – that would be a pretty good argument that the actual rule, which was, I think – monitor at every opening rather than the single opening known to be yeah the cast house right okay yeah so that was it yeah so the best thing you could say maybe is it's sort of self-evident that if you have to monitor every opening rather than just one that's inherently impracticable

[00:43:11] Speaker 00:
Oh, no, it's not just self-evident. And so we submitted with the reconsideration petitions. I mean, one of the things we tried to say is what happens if we have to comply with this? One of the problems with reading every opening. So if you're going to do a method nine reading, you have to position yourself for the open. There's requirements. So one of the things we did was we had like the manga declaration where he said, what will be the burden on us to actually try to position ourselves to read all of these openings? And, you know, the assumption in the rule, again, was this is not a major requirement. This will not require you to.

[00:43:43] Speaker 00:
add monitors. This will not encourage you to make major operational changes. And we point out, yes, it will, because if we're going to have to read all of the openings, that's a significant investment in staff. We're coming up with some new procedure for monitoring that is not consistent with method nine. I mean, method nine requires you to read the highest opacity.

[00:44:01] Speaker 08:
I appreciate that and the declaration. Is there somewhere where the EPA endorses Those assertions.

[00:44:09] Speaker 00:
Right.

[00:44:10] Speaker 00:
That's right. So in the December preamble, they do refer to the petitions for reconsideration. So they do state it generally and they say, we've recognized that there are concerns with the language. It's not lining up with the preamble. It's, in fact, requiring to read every opening in the rule as opposed to the highest point.

[00:44:28] Speaker 00:
and then refers to the petitions for reconsideration, which is essentially the further justification. And yes, they could have been more explicit in the rule, but that's why I was pointing out they were no more explicit when they set the original one-year deadline.

[00:44:43] Speaker 00:
Unless there are other questions.

[00:44:44] Speaker 07:
Any other questions? Okay. Thank you.

[00:44:49] Speaker 07:
Ms. Lee, we'll give you two minutes.

[00:44:59] Speaker 06:
Ms. Lee, what do you think of this reading that was suggested by Intervenors Council that the statute means you have to provide for compliance as expeditiously as practicable, period, but whatever deadline you set, it can't be any later than three years after the effective date of such standard. Is that a textual way to reconcile the statute with what the agency did?

[00:45:23] Speaker 02:
No, again, I think...

[00:45:27] Speaker 02:
EPA just didn't explain why it satisfies both halves of that requirement in the statute. So I don't think that's a reasonable interpretation.

[00:45:36] Speaker 06:
So you're saying they would still have to at least explain why or what their position is on expeditiously as practicable?

[00:45:44] Speaker 02:
Yes. How does the new deadline provide for compliance as expeditiously as practicable?

[00:45:50] Speaker 06:
And if it doesn't, you could probably still set it for three years, but you still have to address expeditiously as practicable.

[00:45:56] Speaker 02:
You still have to offer some explanation, yes.

[00:45:58] Speaker 07:
So is that just some magic words requirement? So if they had said what they said about why the old standards were not practicable, in part because the 2024 rule doesn't really justify the initial deadlines, would it be sufficient to explain why the old deadlines were not practicable and then just use the words? And so we go to three years because that would be as expeditiously as practicable. Would that satisfy the statute?

[00:46:26] Speaker 02:
No, I mean, I think it's a little hard to address this in the abstract, but perhaps a different type of example is if you were a law professor and you set a deadline for a term paper and you said students could ask for an extension of any amount of time as long as they justified why they needed that specific amount of time and it couldn't be more than a month. It wouldn't be enough for a student to send you an email to say that they just couldn't get it done by the original deadline and they just wanted a month. because that was the maximum amount of time. That's what's missing there, the connection between the new deadline that's being requested and why that would facilitate the completion of the task.

[00:47:08] Speaker 02:
So I also just wanted to quickly address interveners' characterization of this as a continuous evolution of EPA's position. In August 2024, EPA did answer the petitions for reconsideration and found that there was nothing in the reconsideration petitions that called into question the validity of the 2024 rule. It defended the 2024 rule in court as supported by the record and reasonable.

[00:47:38] Speaker 02:
So there really was a change in position in March 2025. I think there was also a question about what would happen if, at the end of three years, a source couldn't comply, and that's the three-year limit. I think we've discussed this at length already, but EPA could do a source-by-source compliance extension for one year. and perhaps use that time to address that problem.

[00:48:04] Speaker 02:
And then finally, I think there was an extended discussion about these basic oxygen process shop requirements about the different number of openings. I think as we pointed out in our brief, that's the one that is really unclear why that's unfeasible because the rule specifically allows for the use of cameras to observe multiple openings and no one's contested that observing the opening with the highest opacity would be infeasible. Thank you.

[00:48:34] Speaker 07:
Thank you.