the eleven dash eleven forty one f l american chemistry council petitioner versus environmental protection agency part eight industry before you begin council let me just get a couple of housekeeping things  would introduce himself or herself as you speak because normally the deputy clerk does that we've got so many we thought we'd save time and speaking of time we are going to hear from a lot of people this morning counsel for a group of industry trade associations including the american force and paper socit sion united states chamber of commerce and the national association of manufacturers i'm arguing this morning on behalf of industry petitioners on the issue of  set standards for emissions turn periods of malfunction the bottom line is that the final rules are flawed because e t a did not set a standard that accommodates emissions turn periods of malfunction instead the final required of the standard developed for periods of normal operation applies during malfunctions this is a problem because malfunctions unavoidably occur in short things break and sometimes malfunctions cause emissions at levels greater than the standard for normal operations e t a admitted as much in the record this is a j one ninety seven where they said that malfunctions are expected to occur case through enforcement discretion and that's very important and we think the three problems with that first of all we think it doesn't meet the law we believe section one twelve section one two of the two and section one twenty three so how would we deal with this otherwise another were time i'm assuming that way industry wants is a and emission standards that would be higher so that even if you had these spikes it would somehow fit within that limitation but how since malfunctions are ordinarily not something you could predict how would e p a do that correct or  under normal conditions oh how how i guess my problem is how would they develop this dataset that would allow them to figure out what that margin should be right so in reading the briefs it sounds like we're dealing with a great appropriate but we don't know because each completely failed on the record of this rule to gather they don't malfunctions to do the kind of assessment i just described you know again we're not dealing with a great unknown we're dealing with a type of emissions source that's very discrete there are a lot of them out there and they do a he develops data that allows that to happen could be a work practice day in and we already that are pretty soon we think that probably is more appropriate because dr brown of what you said which is there is a certain element of unpredictability as to what a mile function is but that doesn't prevent you from signing a standard and it certainly doesn't excuse the v a from setting a standard mineral law that requires you to do that so your honors we've touched on a lot of this but we think what he has done here is flawed for three basic reasons the first is we think it is is entirely inconsistent with the statute as i said earlier section met and again on the record in this case a j one ninety seven ek says it recognizes that equipment that's properly designed and maintain can sometimes fail and that such failure failure can sometimes cause accidents is the element in standard thirty nine seventy six where this court is has said that he has obligation under this part of the act is to set standards at a level that the best performing peers has been shown to be achieved so that's a reflection of the obligation on the sta are the second reason we think what he has done is wrong is it flies in the face of clear circuit precedent and there's a line of cases going back to the form of days of the modern clean air act when e p a first started sending these kind of technology based a interns and at that time three just a couple years after the advent of the modern clean air act in this court three times over said he would be your attorney caprices repeated set standards and not accommodate periods of malfunction scores that important what we call portland cement one in our breeze forty six second three seventy five there was a case just three months later called essex chemical where the very same conclusion was drawn and several years later in what we call national i'm one in our briefs six our press and so forth but that doesn't violate our present a case by case approach does it we believe that it does ok what will constitute a violation and a similar statement was made in what we call the national i am one and again that's six twenty seven s second four sixteen this is a footnote forty six where the courts have the flexibility appropriate to enforcement while not render achievable a standard which cannot be achieved on a regular basis so judge readers in this court has considered this precise question the precise question of is it ok if it's close enough good enough is it ok for e p a to say we know there's little slippage in these rules but trust us we'll deal with her and deal with it during the you know the enforcement action i will exercise appropriate discretion this court has said that's not appropriate because he has always been in the first instance as to set standards that everybody knows what the standards are and can take those standards and not wait until an unfortunate action for somebody to make a decision as to whether what they've been doing is lawful well part of my difficulty here is i'm not sure that i understand exactly how this works is the effect of their case by case determination actually and enforcement action is that the only context in which that would come up i sort of read this and saying when there are exceeding  the facility would be able to explain right yeah but there's that only occur in the context of an enforcement action yes your honor third this is been a complicated case as you well know and there was a point in time in which he said we're going to create an affirmative defense and we're going to be cheery and if you meet these criteria then that will be a defense you can raise in the context of enforcement action and this court overturned the use of the for defense in a separate case that actually occurred during the pendency briefing in this case and so what we're left with is the agency asserting their will deal with it on a case by case basis but purely in an unfortunate context no unguided even by an unfortunate discretion rule or policy that what is at least  period just so i understand how one part of that affirmative defense would have been against citizen suits but it sounds as if you're saying that the affirmative defense would also have been available against e t a or or in an enforcement action brought by ear that's correct your honor and then you raise a very good point and another reason why you know solving this problem through and for not to take action under appropriate circumstances were things unavoidable malfunctions actually were the source of violation that doesn't prevent others who don't have the government's perspective from trying to enforce and even if they're not successful we have gone through the time in the effort to have to defend against those cases we later what they need to do is set a standard and that's what we asked the court to do here thank you very much your honors  please the court my name is douglas mcwilliams and i represent industry petitioners in our challenge the e p a is polluted by pollutant approach to setting mapped floor standards when setting america for standard under section one twelve t three and the comparable sis we language under one twenty nine e two e p a is required to meet clear limits the floor for new sources a category or subcategory shall not be less stringent than the emission control that is achieved in practice by the best controlled similar source congress directs e p a to set the poor based on reality in this sentence what is achieved in practice by the best perform similar source e p a fail to follow this directive for the new heavy oil subcategory as well as for the small remote says the best achieved in practice though and i think our focus is that what is achieved in practice grounds this standard with e p a determines to be best in reality what is it she didn't practice by the best performing s statute achieved in practice i think it is part of the way there but as you point out there is a need to look at the context of the statute as a whole in the context of the statute as a whole dictates that congress intended for all sources to be brought up to the level achieved by the best performing school now under e p a this approach the polluted by polluted approach the best performer for pollution acts could be required to shut down if it could not meet the mad standard for pollutant why because of that because the statute requires that you set a minimum floor below which you can go so if the best performer for pollutants cannot be pollutant why is matt standard it has no choice but to shut down there's no discretion to apply cost or other factors when you look at our approach and that is to set a standard achieved in practice by the best performing source and source category you set a mattress standard that can be achieved by definition it's been established by at least one source that they have determined it's cost effective because they do it in practice across all pollutants so the the effect of the congressional structure here the statutory structure is to protect those best performers so that a best performer for one pollutant isn't required to shut down as a result of not being able to meet the other now u p s increase does not need to end there and i think u p a and environmental petitioners have a parade of  right we don't know that based on the record today what we have our standards the new heavy oil category as an example where you have no source that has achieved all of the standards in practice so no sources achieve the level that e p a set for the subcategory we think that runs afoul of achieved in practice by the best performing similar source but e p a has the ability if you set the max standard at the place where created that as the statutory structure when the purpose that congress intended was to bring everybody up to a level achieved in practice by the best performing soars if the pollute if the best performer down for polluting why it's our contention that that's inconsistent with the statutory structure that requires that requires that you set match frst based on what's achieved in practice but he doesn't need to stay there e p a has the authority under one twelve thirty two to go beyond that map floor so if the p a believes that a polluted by pollutant approach is appropriate under the statute all they have to do is apply cost energy and other factors under one twelve two to justify that decision that are beyond the floor prochoice appropriate in this instance that protects the best performer for pollution acts from having to shut down because they couldn't meet  we need to wrap it up short i would just say that the analysis is similar for existing sources and it's presented in our briefs e p a exceeds it statutory authority by setting standards that have not been achieved in practice so we ask that the it leads the court my name is david friedman and on behalf of the industry petitioners i'm addressing the energy assessment requirement that is a term in both the major source and the area source for the math rules the bottom line is that the energy cessnock requirement is unlawful because it's beyond the scope of the p s authority under section one twelve what i'd like to do is describe that authority describe precisely what the energy assessment requires and then show you how the interview settlement violates section one twelve so section one twelve c requires e p a to list all categories and subcategories of major area sources and then regulate them under one twelve date so one twelve c says e p a first has to list the categories and subcategories and then regulate them under one twelve d one twelve deed in turn says for the categories and subcategories that were listed under one twelve c e p a then has to regulate those categories and sub categories so what do you do here e p a listed industrial commercial institutional boilers as the category as the category and a boiler as we all know is nothing more than a device that provides steam electricity water hot water to a facility so e p a then with about setting numeric standards for the boiler so far so good but then what he did is it probably gated the the energy sesame which is a study that goes far beyond the category or subcategory which is the boiler the energy assessment applies to for example facility heating ventilation ventilating air conditioning it applies to building on full open applies to lighting it applies it requires a review architectural and engineering plans it requires a review of facility operation and maintenance procedures and a lot of all of these things that are far far beyond the boiler and therefore the energy assessment it goes far beyond what the statute requires which is a regulation of the category set forth in one twelve c and therefore it's on a lawful there are a couple of other reasons why the energy assessment is unlawful first it and therefore e p a had to have gone through the one twelve requirements for promulgating work practice which is e p a has to determine that it is not feasible to prescribe an emission limit if it's going to prescribe work require any emission reductions the energy assessment is a study that does not require emission reductions and the statute requires emission reductions one twelve d two maximum achievable emission reductions one twelve d five if we're talking about areas sources also requires emission reductions the study does not require emission reductions therefore it's unlawful under the statute that also makes it unlawful as a b on the floor standard a claims that the emission that the energy says mint is a beyond the four standard but it's not a lawful be on the floor standard because beyond the floor standards for e p a to go beyond the floor they have to take into account cost no question about that everybody agrees with that they have to take into account cost and if there is no emission reduction in a denominator when we look at cost to look at for example dollars per ton is how he usually does it if there is no tonnes no mission reduction there's no way to take into account costs when e p a promulgated beyond the four standard and p p a claims e p a looked at the costs of the energy assessment itself surely you c look at the costs of doing an energy assessment but that's not the cost that's in play here we have to look at the costs of actually doing an emission reduction and there are there because the energy assessment does not read actually require any emission reductions we can't do a dollar over time we can't do a cost that alice's and therefore we can't have a legitimate beyond the floor standard here so if i understand this correctly  is a numeric standard here and a mission standard that they do for bore layers but this requirement is going beyond that that's that's correct and there are numeric standards for various pollutants under both the major and the areas source standards for carbon monoxide standards for mercury standards for various pollutants but the energy assessment report is to be a view on the floor standard and is not tied at all to any of the any of the emission be it the actual numerical mission limits it's not tied to any of those and it can't be tied to any of those because it does not require emission reduction ok so i'm i'm trying to understand again how exactly how this works because on the one hand they have set the numerical limits required by one twelve but your you make what seems to be two arguments and one is they can't do this because what they're asking facilities to assess it goes beyond just the boiler right it goes into to these other aspects of the facility and the other is it can't be the young the floor standard because you can't do a benefit analysis right correct ok so i see why you make the beyond the floor argument i'm not quite sure about the argument that boiler doesn't encompass anything else i mean the boiler isn't just sitting there in a vacuum it's got to be within a facility it's got to operate and so can you really make the case that the language of this stance you only applies to the boiler and nothing else i think you can your honor because this in this respect the clean air act i hesitate to say it but the clean air act is actually pretty elegant in the way one twelve c and one twelve d parade together in other words one twelve c says e p a write a list of all categories and subcategories a major area sources of air pollution and then one twelve pieces for that list that you've just described regulate those categories and extent it requires looking at architectural plans heating and air conditioning this could certainly be if we if we have a box that is a facility and we have a boiler here the architectural plans could be at sources where he far away from the actual boiler and the reason that's so awful because the statute doesn't allow it but from a practical standpoint e p a right smack standards for various types of equipment we have boiler backed we have and there are all and there are usually always other math standards applicable at the facility so my plan in this is the american chemistry council for some most chemistry plants most chemists chemical plants have a numerous math standards are already applicable they have the polymers and resin standard they have the refinery standard they have the league standard they have all sorts vinyl standards they have all sorts of mac standards applicable to particular pieces of equipment what the border back does is it says we're not going to we're not only regulate the boiler but we're going to regulate everything else notwithstanding that we are already have a max standards for very thing all the way upstream and downstream because it requires us to look at the architectural plans the facility operation the maintenance logs  react or when we have these cement mapped or when we have the all the various map cases that come before you it is not the areas or smacked where the major math it's the particular category or subcategory and that's how  always done it in the past and that's not have they've done it here that's not have they done it here with the energy assessment requirement and that's why i believe the energy assessment requirement is unlawful and and should be vacated thank you  necessary to determine which ones are the actually the lowest of meetings and which ones are actually the best performing units so what we want to eat da to do is go back and work with the industry to figure out how do you determine based on the the batch nature of burn what's on hand at the time that it's available but because the whole goal of these incinerators is to avoid accumulation of things like food waste that attracts polar bears and things that are present a hazard to the operators cetera so i mean there's a batch nature of these incinerators and an e p a didn't take that into account when issued this information requests just said give me three test points three to points from and a stat test and do it under waste material and i think you can see you know the absurdity of about what results from that if you look at it g two forty five which is the table that shows a summary of all of the subcategories and what their  stringent than those that are or just simply doesn't make any sense and if you didn't have data i think you can also see in some sense how this feeds into the problem with the polluted by polluting approach because when he says the floor is based on axial energies burning and powerless and says you those who are burning kitchen garbage must meet that standard i think you can see that it creates this sort of absurd scenario you've got the only new incinerator that can come not use the x you know energy data plan which is the one i think really reveals the problems they didn't put that in their proposed rule they didn't have in their dataset available was only available when the final came out they put extra energy in the final rule and so we time when submitted comments showing incinerators are burning garbage they don't need to be keeping records showing that they are not burning garbage and this really applies to other units that aren't in sync aren't incinerators and the result of their rule is really quite draconian in the sense that if you don't keep records showing that you're not burning garbage you're not in a record keeping violation of your subject e p a using a fire truck you record your turn in to assist with it and you're stuck that way for six months you're subject to all kinds of violations as a result of being hauled into a category they don't belong in this is another one of those things where just as a practical matter it's hard to understand exactly how this is working i think you've answered the question that i have which is my question was really are there units which are not this week which would get caught up in this and i think you've said yes  reconsideration for coal fired boilers on the issue of whether to set a work a practice for certain organic half as u p a did for similar coal fired utility boilers my clients are in american municipal power miserable electric utilities who are subject to the boiler not to because they use the generators of twenty five megawatts or less but in all other respects they are similar to utilities so we were bring that to the agency's attention and each e p a has a statutory obligation to consider that if we need the criteria the criterion three zero seventy are that it is of  a shall convene a proceeding for reconsideration if we can demonstrate that the grounds for such objection arose after the period for public comment which we can show here because the grounds for the objection arose when the utility proposed and if such objection is a central relevance to the rule those are the only criteria we have to show to trigger a mandatory duty for the petition for reconsideration at that point e p a must provide us with an opportunity for relevant in two respects one they have a pilot plant a pilot a coal fired boiler that they used to generate additional information that boiler was identical in fact if that boiler were  operating commercially it would be subject to boiler so it generated data that was directly relevant to determining if organic hazardous air pollutants could be emitted in excess of the detection limit were  otherwise reliably qualifiable the second is that if you applied a different methodology when they evaluated the data for utility mats than they did for the for boiler matter for boiler methane utility matts the first step was the same determine what the below the detection level limit level was and in that regard the two databases were identical but if you applied an additional layer of methodology to determine that there was unreliable data up to eighty nine percent in the utility of natural but that part of the methodology was never applied to industrial boilers if it were applied we would be in the same situation so our objection a rose in win utility mance determined that there was a pilot plant that generated or that better that's relevant to our own making in in applying a methodology that was inconsistent with the methodology they used for us similar sources treated differently created an arbitrary objection to the industrial boiler rule so we timely filed a petition for reconsideration which e p a summarily tonight we're now before this court to ask that you time for a vote thank you n floors it's supposed to do that based on what's actually been achieved in practice by the best control sources there is no dispute in this case the e p a has in fact set standards for each of the car hazards pollutants based on an actual source that has actually achieved that standard and for the existing sources it's based on actual sources that have achieved the standards the best twelve percent  and to put it more bluntly the only issue is the statute the name big you asleep state that that unitary source approach has to be used rather than polluting by pollute which will result in the least common denominator which will result in not the maximum reduction of the covered hazardous pollutants petitions make a few argument what do you do if you have mutually incompatible controls first of all we're not aware in any case that that situation has risen we say in our preamble that there is no case that that's been identified for bees particular rules for any of these we've done this for about one hundred fifty some ten glories then and then e p a has some discretion to figure out what one source how and how to rectify a technology which may cause an increase in the nation and the others but that's a pretty limited situation and in fact statement actually proves the fact that bush needs to be determined by polluted by polluted approach because if a conflict could not possibly arise that if you if you apply the unitary source approach conflict couldn't possibly arise that you're only picking one source and you're doing it based on a subjective view of what the best is on all pollutants it's only when you apply each pollutant when a conflict can arises and it's a new dirty said there's a process for dealing with that is council correct now it sounds you could have a circumstance where a facility which perhaps meets the strictest standard on one pollutant would fail the emission standards on a different problem yes and that's the problem the purpose of this statute is to require sources all sources to meet the standards of the best  performing operators so we certainly expect that there will be sources that don't meet those standards or the top twelve percent the whole purpose of the statute is to require those other sources who cannot yet be achieved to achieve those standards that are true almost in almost all cases there already existing sources that can do it all but if that extra step has to be taken then for a source that needs ninety percent of the covered pollutants but doesn't meet that the the the last one then it does have to take some action to meet that standard that's what that's what really fulfills congress's requirement to make sure that the standards are based on the maximum levels actually achieved by existing sources and there's a source out there that has achieved that level on that last ten percent on that last pollutant and in that case what we're saying you know what congress said is require those other sources to put in a bag house to put in some be saying is if you let's say you you had a facility that could do everything but couldn't meet that standard as to one pollutant and and it was cost prohibitive to to make that last step would they be required then to close down even though they are you know ninety percent compliant we don't think there's any evidence there would be cost prohibitive if there's another facility can't set the standard that low because we have sources that can't achieve those standards and in each case is court said that is even relevant that cannot be considered in considering the source so much so the get to later that's all we're talking about here is orders and in the way congress said it is that you have the e p a is has has said at least as a minimum requirement what's been that's what's been achieved and in fact if you look at one source that does the best on that it's it's contrary to the the legislative history and it's contrary to the specific legislative history of the one nine hundred ninety amendments because remember prior to nine find the pollutants and you you are not allowed to rank those if they meet whatever standard they meet you set the standard at the technological level that those that particular sources that active sources have actively achieve in sierra club and again in whites down in the court very clearly said that that nine hundred ninety minutes the e p a cannot pay and choose those covers a whole bunch of hazards pollutants but it doesn't do anything for mercury it doesn't bother to pay any money to put any controls on mercury so there is no emission limit on mercury mercury is as high as can be and e p a is put in the position of making the very value judgments the congress said it shouldn't maybe it could literally result in standards that were the best pollutant the best level reached on one pollutant but actually the worst level breach on expressly left the discretion to the ministry when we move on to malfunctions britishers argument is fundamentally flawed because does consider malfunction periods and and start up and shut down and i'll treat a little differently but mostly malfunctions here beginning just not in the one size fits all manner that petitioners would like their first issue is it has to be factored into the numeric limits now out and maybe that emits some extra missions for a half an hour is a boiler explosion and maybe that makes all kinds of hazardous pollutants for months at a time without knowing what other work practices the n at first first of all on work practices of the work practice rule that's completely in applicable to section seventy four twenty nine so the since we units can't i can't use that but let's let's look at the major and the areas  a is again it has to be they're looking for a single work practice standard that applies to malfunctions so it's just as difficult to apply that to malfunctions as it is to almost almost as difficult to apply  then how do we create a work practice standard that applies equally to the half hour pilot light or the boiler explosion or the bag house ripping or different level of emissions know i think i'm just worms that you know we miss that sometimes during malfunctions and missions increase well sometimes they do and sometimes they don't and how much that increase we don't know that there is no data in the record no data has been presented by because shares in the record there's really no way to analyze that so there's no reasonable way to factor that had this court has said that we don't have to be exact in setting the standards of judge griffith said but it has to be based on data and it has to be based on a reasonable analysis of the theory and that data is completely absent here if you could just take a moment to explain how this works i think counsel said this question where you may exceed the initial limit because of some malfunction only comes out if there is an enforcement action is that the way the case by case determination would work no in force an action but the case by case analysis is when a an operator says ok here's our data for a certain period and during this period we had a malfunction and here is the circumstances of the m will look at that and determine whether on a case by case basis you know should we take any action should we just require them to take some certain procedures based on that equipment should we look at that particular piece of equipment ask them to get a new piece of equipment  going to go out and prosecute every every case i mean we you when you think about it what better approach that think of malfunctions think of you know the biggest one you know you can think of and i don't know how we define that but and you would say and under their theory the standard if malfunctions are included would have to be based on the worst possible emissions because that's what we're talking about we're talking about some malfunction some horrible horrific malfunction that's used as was pollutants and there are sources in their words would not be able to achieve the standard without factoring in those those horrible enormous emissions that the case by case approach which is used in other context as that weyerhaeuser case used in the queen water act context says you know at some point with these types of events the case by case approach is the malfunctions can be different we're trying to deal with them when this way that that we can in face by case analysis seems really the most reasonable and is the one we can also apply to the sister unit because we can apply work practice standard this is  a as opposed to the work practice manner that was proposed by petitioners that can require certain sudden or the things like what's called the root cause analysis where they're just going to look at what happened in the emissions it's a look behind it and say well why did that since they haven't sought for that yet but again we don't we don't know how that would occur how the missions levels can be measured for each each particular instance and in the end you know where does that get us i mean do we define hundreds or thousands of different malfunction of events which leads to hundreds or thousands of different work practice standards it becomes unmanageable to try and get this one size fits the best way to find a head of time obviously is to make sure you operate during the syllabi get away that doesn't result in malfunctions or if it does it happens very seldom and with you know little effect you're nice we have made your life somewhat more difficult perhaps just having an exemption would have been a lot easier but we've said that you couldn't do that so i guess the question is is there any way to collect data that would provide a pattern or an intelligible commonality among incidents that would allow you to establish some sort of baseline i as i stand here today i can't say that's impossible i can say that e p a has looked at that situation in very limited circumstances  as a particular piece of equipment or particular type of oil or operator and if they can get enough information about that particular piece of equipment perhaps a work practice and or something can be worked out like that where there's enough of a pattern of malfunctions and what the levels of the missions or that occurred during those malfunctions maybe that's maybe that's a possible in the end though again this is the discretion of e p a and you're really your issue here is are you taking this approach on a case by case basis just as in the weyerhaeuser situation is that in at least a and that statute says look at the process seize the methods the systems the measures techniques to impose that type of standard doesn't limit it to merrick's now it says you can that we all we at all we did was and this is in response to comments made on the proposed rule we made sure we limited to just those pieces of the source that are related directly to the boiler that we are looking at so for instance we have a boiler and a university that heats the school room portion of the university and so part of an eight energy assessment might of things that that we're talking about as long as it's directly related to the amount of missions coming out of the boiler that we all agree we're talking about we didn't we didn't say that you have to look at the whole facility in all of  come out of this requirement this is designed to let the marketplace side the regulated parties the side whether they want to actually implement any of this is design after similar studies that have been done with under the auspices of the energy department where any of these had determined that they've cut their fuel costs ten to fifteen percent by going through this is system and with that they cut their hazardous air pollutants so the idea is if the source says hey you know what i look at this and i can cut my energy this costs fifteen percent and with it has a pollutant about you know i'm really more concerned about cutting my energy costs i'm going to go ahead and implement that that's all e p a is asking to do take a look at it it's the ultimate commonsense approach that that won't even be implemented unless the the facility itself says it will save us money and producers are going to sort of upside down they say what they basically say what's ok is if that it's going to reduce some emissions we don't know how to reduce your costs but it's going to reduce emissions so we're requiring going to mandate that that they say would be ok what's not ok is if we leave it up to the facility to say hey let me look at my own facility and see what makes sense and then be let me make of my own monetary determination as to whether i want to implement that because it will save you money again is the is the sort of the ultimate marketplace provision it's the it's the type of being on the floor standard that the congress contemplated as to looking beyond the boiler itself he also makes an argument that because it is a subcategory we can go look at those classrooms but that's not that's not accurate clearly the statute sets a lousy sources to meet the standards made by other sources not requiring the small remote scenario to meet the same standards that the large boilers so it tries to in a fair way say when we gather data from a group we're going to try and make it as close to the same group as possible but just by sending those categories doesn't limit what's regulated the statute regulates the sources statute doesn't regulate the categories the statute regulates the sources seventy regulate the source but again in this case e p a has targeted very specifically so only those other portions of the sources that can have some effect on on the emissions  emissions prayer but they didn't set up those categories to say you're limited to those categories as far as these are a few of the other arguments raise the cost e p a did look at the costs  did analyze the cost they said cost of this mission is twenty five hundred dollars to fifty thousand dollars twenty five hundred dollars to fifty thousand dollars that's it and they also found they don't have to make a cost effective determination i think the sierra club said that they just happened look at n r d c versus e p a and the two thousand and fourteen case they said they can look at cost benefit analysis or they can just do a general review of the costs and they did that and they looked at those energy department studies and said in all of those cases in the end when things were implemented it was caused the fear because again the operator is the one that makes that decision we turn to the  because it wasn't discussed at all and in the end the the the data in the record shows that emission levels will actually be lower during start up and shut down in the standards that are set so there is no reason to companion case in the coordinated case that the court decided in june that was coordinated with these four cases the the n h s and case the secondary materials case which help the fine which risk categories which which you receive i think briefs on pursuant to the order but we think the opinion in that case besides this issue seventy four twenty nine regulates solid waste and that's the find as any garbage refuse or other discarded material if you incinerate discarded material you are subject seventy four twenty nine not seventy four twelve secondary materials are defined in the regulations as any material that's not the primary product of manufacturing take secondary materials and if you show that you comply with a legitimate and serious corman's and is managed as a valuable commodity that has meaningful healing characteristics and then to contaminate levels or at least as low as what the replacement an absent director's e p a assumes that the discarding material is secondary material and that's their problem that's the problem that they raise because we assume if you don't have the records that's it but that's all they have  you that's all they have to do is keep records we're not talking about it imagery here and we're not talking about presentations made to e p a to show that they're secondary material is not solid waste i think all they have this is not a presumption as i understand it and it's basically a definition if you don't keep records you are says we will is that correct but that's the way e p a enforces many parts of the clean air act but again the the these materials are church secondary channels that come under seventy two or twenty nine absent some showing from the operator he upon the regular regulated entity to show it is material that should not be regulated e p a is well within its statutory authority to assume the transfer of material is solid ways until an interested party demonstrates that the material has not been discarded and is indistinguishable in all relevant specs from fuel product that's exactly what this regulation does it and again it is not much of a burden but it  makes that presumption and it says you have to prove otherwise and part of that presumption is if you don't have the records then we are going to assume as this court has said we can and must say that that e p a understands that this is a different type of category of inst scenario so what did it do here it created a special category for what is at least right now twenty eight  incinerators to make sure that the data collected was just from this small group and it wouldn't be competing against other types of units like larger incinerators or like less remote incinerators or like humans or something like that so and then we find that category in response to industries comments and then they've asked for the data from these units because that's how these standards are created give us the data of your operations and we'll create a standard based on th and they ask for data specifically on a way street and they asked in the information collection request in two thousand and eight and they asked again in a proposed rule in two thousand and ten and in issuing the final rule  first of all we're required to rely on ways segregation data that's in that one case and that's in the cement it can't be based just on the technology or other things and waste segregation is a key part of the whole parties can't do it this is anecdotal evidence anecdotal discussion that we have problems with polar bears and you know and things like that we don't know what the effect of that is we don't know if they can't meet standards based on that we don't know if there's not enough waste that can be segregated other than food products or food waste or things like that and in fact they i think they really only focus on one standard s o two and only for new sources based on this x t o facility they don't they don't appear to have any complaint with any of the existing sources they don't have to have any complaint with all of the other pollutants and i believe it's just as so too for this one facility and based on that they're trying to overturn the entire set of standards and regulations for small remote scenarios that we ate you know this is sort of basic administrative law you you ask for the information you're asked again and you ask again and you can only base it on the information and data that you get not on anecdotal stories that in this one instance this doesn't seem to make guys navy you know earn different type of waste and on the day that they did the test they didn't earn the same type of ways and that affects us doesn't seem to affect us on existing sources and i asking for existing source limits to be overturned just for right now nonexistent sources and just for that once thing when you say you asked for it dave i thought i heard counsel say that the way the stack test is conducted it's sort a spot test do you do it at a particular time or something like that how does it actually work i mean can they design how they do the tasks or how long it lasts are you supposed to it's supposed to represent their normal recurring operations and there is a there is a wide variety you know there are lots of incinerators that burn the same type of ways that they're talking about food waste and things like that those are these are these are not kills these are not you know boilers these are incinerators that incinerate what we all seem to you know call ret gen refuse and those other incinerators seem to meet the standards and there are other ways to meet it it's you know and maybe that's the maybe that's the case for the facility that can't meet the same standard that x t you know met but again that's her and as of today this one not existing source because they make no claim that the surrogate and this is not the surrogate issue that the environmental people raise this is just whether you work practice standard is required in lieu of the carbon monoxide emission standards that were set and again that's a determination to be made by the administrator it's also only applied in the judgment of the administrator it's also only applied with the bias that numeric standards are the ones that are to be applied  and again it's under the under the general parameter of the general directive that you require to set the most stringent standards that are available and they exactly ok yes exactly the so e p a made their technical determination that that was just too many not a tech levels we could not set numeric standards again based on you know the cases determination that that was enough upon which to base the numerics things you know in the reply brief petitioners come back and say well that's because we applied it apples to oranges and we need to apply apples to apples chart on page twenty to go through their analysis and what they say is that in fact if you look at the non detect levels in utility rule they were about the same as the  warrant that well if if that's an issue it's wrong all the data they're looking at is wrong but even if it were right that would be a problem with the utility rule that wouldn't be a problem with this rule that we don't consider either of those categories good data in in this case there is there is no such similar thing the the non detect lol the level of test that e t a determine we could use is still about one thirty am when you actually compare what they say are apples to apples the four common hazards pollutants looking at the below detect level and the detection level limited standard that they use the new tool you will to say we can't use the data that came out to about seventy three percent so as i said we not only is it your relevant it's wrong that level of not detect levels in the utility rule is still too high to use anything that is not there not the case here work and work practice standard is the exception it's not the rule there's the strong bias that these only be done if e p a in its discretion makes the determination that isn't feasible and then further in it's this discretion makes the determination that this is an appropriate case for work practice standard and given all the difference on a very technical issue like that we can't be said that b p s determination was unreasonable and based on all those reasons pollutants they claim that the same problem is here now we don't we don't we're not interested in trying to rely on the record for another rulemaking but to the extent that e p a contends that carbon dioxide is not a valid surrogate we agree with  sizwe to keep records and but i'd like to specifically address the record keeping language in this is we definition first i'd just like to point out that this is not a sweeping requirement that the units keep records or be considered says we it's narrowly limited to units that are burning nontraditional fuels that are discarded but that nevertheless wish to take wish to take advantage of a special  pensation that was provided for in the waste definition whereby they can still not be considered waste partners so it's only in those narrow circumstances that he has allocated the burden of proof to the operator to have records to show that they're meeting the terms of that special allowance second industry suggests that the e p a was required to put that reco language in the ways definition rather than in the city definition and we agree with that that argument is in serious tension with this court's decision and the related case go services in that case petitioners challenge the waste definitions lack of procedural safeguards and eat p a relied on the clean air tools procedural safeguards so evidently the court in rejecting the and the programs have worked effectively and i think that's a very important point history teaches us a big question here the second thing about we're dealing with something that's unknowable and i addressed this before but what we're dealing with are boilers and we know what they are we know how they operate a couple other guy and make a list and then you can look at the list and say ok well this looks like the world malfunctions and now we can do something about it so we're not dealing with the great unknown we're dealing with the finite world sources that everybody understands and break down in finite ways if you would do the encourage supposed to do under the law to set standards that are achievable for these periods maybe a brief point on section one twenty nine work practices which i didn't address before the government did address quickly as we say in our brief but it's important to emphasize the sashing makes it abundantly clear time and time again that standard establishment or section seven hundred twenty nine are also standards established intersection seventy four eleven the new source performance standard provision and section seven hundred eleven expressly allows for work practices so we believe the connection that congress intentionally made between seventy four twenty nine and seventy four eleven provides a clear pathway in clear authority for work practices under section one twenty nine standards and that the last thing i'd like to say i didn't mention remedy earlier this is important issue for us but we do not seek for all of the emission standards to be vacated and what we've asked for a brief and i'd like to  emphasize is that we would like to soon vacated only as they apply to periods of malfunction because the problem is the standards were developed for periods of normal operation and by and large we're not contesting that we're contesting is the standards as they apply to periods of malfunction griffiths question as to whether there are sources that face the sort of technological barriers of simultaneous achievability i refer you to page thirty and footnote ten of industry petitioners brief identifying a top performing source for particula matter and h c l that is the worst performer for c e o and mercury identifying a potential technological problem for meeting both and certainly an issue where cost could be a substantial concern e p a seems to be particularly concerned about adding costs to this analysis if we establish simultaneous achievability a source that actually meets the standard but he wants to do more in fact the e p a wants to do more because not the burden that he suggests it might be now if they do consider if they do consider simultaneous achievability in the context of resetting the floor it does not require that they consider health or risk based standards all it does is it would require that they establish a ranking system and attribute each best performing source the appropriate right and then determine the best performing sources of all the best performing sources based on that brand it doesn't require that they do anything to step into the risk analysis with regards to c e o work practices e p a misses the fundamental point here and that is that we're asking for a petition for reconsideration to be granted because there's new information timely available the central relevance to the determination before this court as to whether it's appropriate set a numeric standard or a work practice for the coal fired sources for those are again it caps thank you all right that's your freedom i wish you would address something that mr rosen said when you were arguing before i thought it sounded like you were arguing for more regulation rather than less than seems yes no w it we're not arguing for more regulation if the energy assessment should be vacated if he wants to come back and do a standard and it and it relates that standard to the category or source category to boil and if they're doing a work practice standard they do one povich for work practice that if they're going to be on the floor they do all the things they're required to do for be on the floor etc all those sorts of things then industry would certainly look at that income and comment on that but the current standard the standard we're looking at is is a study that has to be vacated because for all the reasons that i described earlier i'd like to just make three brief points first council says that the energy assessment is not a work practice handor so it really doesn't matter what council tells us today it matters what he is and the energy assessment is not a number it is not a numerical emission limits it is a work practice standard and even e p a believes that because if we look to the federal register notice for the area mission limitations so the energy assessment is clearly a work practice angered and you don't have to just take my word for it the environmental petitioners in their briefing page fifteen quote to be sure non n standards like energy assessments must typically be promulgated as work practice standards now they go on to have an argument about that but they say non numeric max standards like interview cesspits must typically be promulgated as work practice standards so it is a work practice standard secondly council says that the agency has brought authority to use measures process these methods systems etc this is one twelve two that's correct they do have broad authority to use measures processes methods or systems but what counsel doesn't quote is the beginning of that sentence in one two of the two where it says that determines is achievable for new or existing sources in the category or  subcategory to which such admission standard applies which is back to the argument that i agree with the fundamental argument we made that you have to create a category and then you have to regulate that category one twelve secret predatory one two of the regulate that possible again if we go back to the language of the rule the actual language of the rule as i said as i mentioned in the opening presentation it requires a review of for example architectural engineering plans facility operation and maintenance procedures etc it required it goes far beyond the actual boiler to require the energy assessment of all for a manufacturing facility all the manufacturing operations at that facility not just the boiler so it really not narrowly tailored thank you five we look at the table four s o two they can meet their standards for a so too because their standards are between ten times and six hundred times more lenient than the standards that are imposed on smartphones sceneries that's part and parcel of the problem we have available counsel says if we had more data we would have looked at it well i think you have to take it in the context of the time you sources that never be regulated before two thousand and ten never had done a stack test on these units before so e p a is our request the operators do the best th there's no or another we can't meet the standards i mean that argument in our brief that we can't meet the standards some pages twenty four twenty five are resorted to recognize that