case fourteen dash one zero four six at all carbon sequestration council at all petitioners the environmental protection agency and gina mccarthy administrate or mr llewellyn for the petitioners miss walter for the respondents llewellyn before we start the court wants to apologize for imprisoning you in our elevator but you know we do we do it enforce these word limits very strictly here well aware your honor i thank you for that and i can tell you that being stuck in an elevator when i'm doing your court room is maybe not my worst nightmare but it's pretty close i submit that let me say it's the one excuse we have to h dioxide that is captured before emissions gap of fear and then injected underground for purposes of long term storage or sequestration is already subject to extensive regulation under the safe drinking water at issue here is whether that same carbon dioxide is or need be also subject to regulation as a solid waste and potentially a hazardous waste under the resource conservation recovery position in this matter has been to play the least a moving target and e p a shifting positions have resulted in at least two fatal error before we get to the fatal error schedule hart was standing could could you give us your very best arguments about why the conditions have standing here certainly your honor you have before you represented by counsel the the companies that are going to be implementing this whole probe and i will point in particular to the southern company which is a member of the carbon sequestration council the southern company is right now capturing carbon dioxide and it's right now injecting it underground for purposes  facility contracting to have some of that carbon dioxide stream sequestered in the classics well that decision has not been made yet but e p a s determination here that that of a solid waste will plainly place burden upon that choice that the southern company would like to make free of having to worry about record regulation with the but what's to burn so i sign a stem the government's position injury is first of all we have two thirty five we have to repair maintain have available in football with a certification to compliance with the terms of the conditional exemption kind of conditional exemption on these back up one step have you asked us to reverse or just to vacate their decision well we're asking you to  regulatory authority then we would be left with just nothing we would we would not have a decision that there's no regrets already we just have no decision at all but i'm not sure that's true your honor and i guess the example i would give you would be the what i'll call the a p i to  waters and specifically said if the agency wishes to assert of florida in the future it will need to you know provide a rational basis a rational explanation for doing so so i think our view of the case is that if the court grants the relief we're requesting then  argument i understand the agency can't go back and redo the thing if the court says well we're not so sure about that but the agency here isn't taking a position different than the one it took in the rule making and we're going to vacate for that reason then the agency could go back and try to sell your view under those circumstances would be you're better off without a conditional exemption at all set is that right you know well you wouldn't want to condition exemption of any kind we don't need a conditional exemption if we're not with you an fellow awake so i'm trying to pursue this a little bit just a little bit more you say you're not challenging the conventional exemption you're only challenging the finding that the carbon stream is a solid waste right right which is a necessary predicate for the hazardous waste regulation because you don't have has replaced regulation less you have a solid waste but we don't have a solid waste we don't have any right to regulation at all what we do have is extensive regulation of the safe drinking water act that you were using or content considering using the classics whilst it may be something suggesting you might send some other people who might use but that's nothing to suggest that southerners i i mean i'll just tell you my concern in looking at this record i don't see anything with respect to petitioners you so she ation obviously doesn't have a standing in the underlying petition or doesn't know the underlying number i don't see anything with respect to our the petition or indicating that they are using or intend to use quests accts wells in that they will not be affected by the rule well we think they're affected even if they're not using classics wells because the southern company is currently engaged in the activity that he ph says involved all at all or i think there's me p i can speak to this i think they're pretty clear in the disclaimers and saying the things that you think are covered it seems to me they said pretty clearly on the cover you're overreading their rule and they're pretty clear in what they say about their coverage in the coverage is classics and it's your sweeping much more broadly than they are if i'm reading the record correctly well i don't i guess we'll see what e p a had ali i don't think you are reading it correctly because i don't the agency has not argued and i don't think it reasonably can argue that it's determination that confirming at least by value to state anything to the contrary that you have not submitted an affidavit indicating that either of your petitioners are or have clear plans when using classics was i can find that goes some to classics and some to class five and as a result you would not be able to use the exemption is that right that's one of them yes and the other is you have to file a certificate yes and those are the only two no your honor  agency has said and i think it's clear they have said that this only applies to streams going to classics well and that even though you think and you have a reasonable basis for thinking that's hard to to make an argument about c o two going to one kind of and not to another they've said they're not saying it for anything other than sex and so if you sent that to five they could not say that was a solid waste until there's some other kind of role make so you're being you're protected until they make yet another rule make  so what is the injury other than the combined stream problem well assuming assuming that yes we are that that what we are managing is a solid waste according to well then them what other injury do you have other than the two i mentioned filing and having the files are terrific at and what to do in a situation where it's going to two different kinds of wells book if the rule only applies when to classics well record but as we've argued in our brief our stated desire and expectation that we would like to use plastics wells in the future because that's what's going to happen i mean that this whole program is very early in the very early stages runner nobody is using  stakes well right now honest i asked what i'm going to get an argument for for this purpose of this public park so that's that's your argument that you plan to use or expect to use or close enough to that he's a classics and if you did he would have two kinds of injuries one having a fallacy to think and to not knowing what to do with a mix stream well yes your honor and even beyond that even if we take advantage of the exemption the exemption does impose a burden but even if we take advantage of the exemption we have no protection from liability if someone downstream does not we have a generator of the carbon dioxide seem to have no protection if someone downstream makes a mistake  has some kind of minor compliance issue with what they do with the carbon dioxide stream e p a said very clearly that the the hazardous waste status the regulated no longer exempt status relates back to the generator and that's the problem we as generators in the first instance have to figure out what's going to happen with this material and you know how can we protect ourselves there is no way to protect ourselves because there's no way to test question is governed by chevron step well that's what i don't see anywhere in the record i don't see them taking the position that the physical form is compelled that they have must decide that this is a solid waste can you point  last paragraph there e p a was responding to the council's request and argument that what he pay really should do is promulgated a an exclusion from the definition of solid waste not an exemption simply from has a place regulation and the agencies response was the only way we could do that is if we found that the carbon dioxide is not discarded the clear implication of that is that there was no where we've said the agency says we're not permitted to do this i mean i don't stick zack we see this if you're looking at j one fifty four all they say is they don't agree they don't agree with your conclusion that's not the same as saying that they are compelled to right and that's a separate that's a separate question which are not arguing they that they thought they were compelled and you're only arguing right your argument about out that they felt compelled is limited on the physical for physical force out of threat i don't even know whether this an ad is a argument about physical form or about discarding but in any event all they say is they don't agree they don't agree with you that make somebody can disagree for more than one reason one reason being in their discretion they don't agree and one reason being yeah so this one i think goes really goes completely against you this is in the middle column where it says the record definition of solid way of solid waste and compass is other discarded material and does not speak to material such as super critical fluids does not speak to is exactly what we say is what leads you to chevron step two i don't i have most of the words we say when a statute doesn't speak to a particular issue we say well that means we're applying chevron to y why does this make you feel that they they think they are stuck at chevron want well because there is the agency never says there are a couple ways of looking at the thing here's one way here's the other way or maybe there are three different ways will you the thing and here's why we are exercising our discretion in the way we are here's the weighing and balancing that we're doing of competing with we never said they have to say vat what we've said is you have to avoid saying that you're compelled but what we haven't said we certainly haven't said that they have to say it's ambiguous in order to for us to think that they're exercising bill of the agency thought it was ambiguous them i mean which is what they're saying now they're saying they have to say that that they that they have to said below that we think it's ambiguous will they have to give some indication that there is some doubt releases and they say it does not speak not express lee state that the settlement agreement was interpreting was ambiguous but the chevron two step is a dance for the court not for the commission we set it it's not enough you can't you can't get us into a supported only on chevron one simply by pointing out that the agency didn't express lisa it's ambiguous well our votes are those the two best that you have the middle that we just talked about from day twenty seven in the bottom  fifty four i believe so your honor i mean there was we fight in our brief i think another place or two that's an interpretation of regulation the other one well it every every time the either containerized that is placed in individual containers or if not containerized that are condemned to a liquid form in contrast and without explanation here the agency says that carbon dioxide gas which is neither containerized nor condense to liquid form but instead compressed to a super critical state nonetheless is a solid waste in those cases and in a dress the super ha stated that they did not specifically address super high level i mean they said it has to be condensed to a liquid form they weren't necessarily excluding it being condensed of the former talking about here well your honor they they the elevator to or not i was not but i would like to say my e p a counsel is the one who did report someone being stuck in the elevator security guard so extra credit i told opposing counsel they should forfeit just for that but edwards question concerning his concern the petitioners are over reading the rule and in that regard i'd like to provide the court with some joint appendix sites that i hope hopefully clarify that and support that petitioners are indeed over reading the rule here so let me start with saying that e p a issued this conditional exclusion for a very narrow and circumscribed purpose which was to remove any barriers specifically for the injection of one form of carbon dioxide the supercritical form into one type of well the classics for one activity geologic sequestration and e p a made very clear in the record judge edwards that the conditional exclusion was not applying beyond that so i wanted to point the court to first of all to the joint appendix at twenty seven column one and a similar statements are also in the joint appendix on page one sixty five and there e p a said that in the situation that's tissue or seem to be concerned about its carbon dioxide is used for its intended purpose  be injected into class two well for enhanced oil recovery it c p s expectation that such injection that that such injection would not be covered by this type of conditional exclusion that one for their class five wells so i think those are experiment or some correct those are experimental and it would be the same situation again we didn't we weren't looking at classified wells in this rule making and so e p a would need to make an independent determination in that situation as to what type of activity they were doing for what purpose or about their argument that you're not protecting them as a generator or if someone downstream screws up yes let me find that there were some citations i wanted to get for that also first of all we explained in our brief that the certification only requires the generator to certified activities that are under their control so in the situation that mr lone was discussing where there could regulation itself is in the final rule which section forty c when appendix page thirty six is the actual regulation and in the first going into the second column there it provides the language for the generator and then in the second column it provides the language for the owner operators that they would need to certify to register tell me i'm on th little sub to or i'm sorry a little sub two twenty six two six three one point four is sixty one point four h four i so clear at the bottom of the first column going up into the top of the second column was words about the generator in for a little lie it says any generator of a carbon dioxide stream who claims that a carbon dioxide stream is excluded under this paragraph and i have to transfer the carbon dioxide stream in compliance with or had contracted with a pipeline operator transported to transport the carbon dioxide stream in compliance with the following regulations and what  rule making is that in response to comments on the proposal that industry was concerned that they might have to certified activities down their control that's lovely a said i'm sorry that is r think you join appendix page twenty nine and that is in the second column about midway down is a paragraph that begins e p a is making these revisions to better reflect actions over which each party has control yes does that answer your question your honor well as or another or another line that says generators don't have control don't have to worry  not that if they don't have control they don't have to worry but here if the generator not sure if they're activities going to fall under the conditional exclusion they don't have to use the conditional exclusion if they want to use it they are their argument is that if it's solid waste they really don't have a choice if now they've decided it's solid waste and if they don't use exclusion they will be in trouble they will have to go to extreme efforts to show to determine that there is no  claim which the facts of that injury claim are not correct because again as the court has pointed out they haven't shown that they're actually going to be using these classic swells but if you look also at the declarations they don't claim that their injury is from having to sign the certification itself all the declaration i believe it's mistrust that he does declaration says is that he's can they are concerned about activities down the pipeline and those types of activities would be out of their control so they wouldn't be they wouldn't sign the certification the first instance and even if they did sign it and something happened down the pipeline if you look in the join appendix at page one fifty two e p a addressed the situation where something might happen enough is the specific situation that for example of something might happen down the pipeline that the super critical stream is mixed with the hauser's stream so the conditional exclusion would be lost e p a addressed mr law enforcement concern and their e p a said they can appreciate the commodores concern over the loss of the conditional exclusion due to the action of subsequent handlers of the c o two stream e p a s office of enforcement and compliance assurance is unable to provide definitive assurances outside the context of a formal enforcement perceiving that the government will not proceed with an enforcement response to a specific individual violation it goes on and then it says however e p a can and has previously done so for other rekha rules exercise discretion to decide when and how to up i thought you're going to say we'll have no problem e p a has agreed it's out of your control so we're ok but actually what you're telling me is it's out of your can troll and now it's within our control and to our discretion and that's not the same thing at all you're right it's not the same thing that e p a did as much as they could do in this situation looking forward to a hypothetical situation like that to try to provide industry as much as surance that they could that they would look at several factors and it somebody signed a certification in good faith to the activities that they could control and something happens downstream out of their control that may remove the conditional exclusion but doesn't necessarily mean that e t a is going to decide in that particular factual cont last part of that if for example we were to hold you're wrong on the merits which we assume for purposes of standing then under those circumstances they would be better off because then enforcement would not be in the p a s discretion it would be bark correct in that situation yes but again their declarations would be they're not proposing to use classics well exactly their generation better or worse off they're not covered right their declarations don't support that there in this class i'm looking at it again they're just not making that assertion and best holmes was is that well but we might think about it but i don't know that back in supports i mean we might think about it anybody can think about anything any time disentangle the two arguments so if you assume for the moment they had said tomorrow we're going to start with classics well then you agree there is a potential injury that could be rectified by the courts not based on these declarations begin their declaration saying assuming they are not assuming the declaration said of it we are going to start classics wells tomorrow then there could be a problem here right if the jekyl ration then also went on to say we are we are burdened by simply having to a declaration and as if the declaration then says we think there could be situations where the the waste stream i commingle downstream but again that's purely speculative here you're stablish in a role for classic swells right i'm sorry you are that you're in the piazza stablished a rule to govern classics well yes that's what this is all about right classics well the prior classics rulemaking that under the safe drinking water act and here and you're saying there's no i question whether they would be out of time at that point or can't be that they don't have standing now because they haven't done it yet ads and they don't have a standing later because they waited too long i can't be can that you know is that your position no no it's not i was just thinking procedurally whether people actually be able to but again they would have to make sure that they met their burden of providing the precise facts to show what their injury is it's but oddly isn't the idea of having a conditional exemption that you're trying to encourage people to do this and particularly people who haven't done it yet so wouldn't this be the right time to be that is before you started to know what the situation is you think that the rule is incorrect yeah i don't think we've said that this isn't the right time for them what we are struggling with trying to understand is what their real injury is especially when you take a step back and look at the fact that again e p a was removing the barriers of the of the requests subtitle c regulations and they were trying to make this simpler for industry so that these types of carbon sequestration activities can get off the ground without injury having or without industry having to worry about complying with subtitle c and the fact that this conditional exclusion and we mention this in our brief e p a analyzed could save industry each year close to five million to over seven million dollars so that the fact that they haven't tackled the cost savings of this they also haven't said that just the certification itself just signing  certification itself is a burden and instead they're relying on purely speculative situations that have not happened that were not before the agency and that's not say it necessary for the agency to find that the super clear critical when it is a solid waste before it could actually have an exemption or consistently in other words the agency has me that finding that this is a solid waste that would be regulated under requests in this particular circumstance not as a general matter so this solid waste finding that e p a made which yes they have to make as a predicate a conditional exclusion that solid waste finding only applies to supercritical injected into the classics well for geological seaquest ration it does not apply to any other wells have been to any other forms or any will be in fact discard or otherwise use correct i mean that's the agency's thinking and so the classics in the agencies one makes sense at all we're doing it was saying classics because we know for sure that's discarded so the definitions are all met overreading the rule at least the way you do the breed the regulation and your sources now say they want it to grow and i think it's because they otherwise ok serious then and problems there over reading the rule to be included but they're not all the wise folks who are interested in classics but i don't assert it right i just can't find it and i ask how will it be possible and if you will now that it's and you have th solid will it be possible to argue that in a class five or class two will well it's not solid i get the part about the discarded what about the solid let me give you a couple jokes when appendix cites that explain that and try to explain it to the best of my layman's understanding in different situations and different carbon dioxide forms whether those forms and that situation can support a determination that it's discarded and that solid waste is going to depend on a number of factors including what the constituents were in the  carbon dioxide that was released what type of capture technology was used what type of facility was emitting the substance all of those technical determinations are factored in in addition to what is the purpose of the activity so when you're looking at another well like class two or class five e p a would have to look at is that activity intended to abandon dispose or stand that and that's going to exclude that argument for the moment i'm only asking to think about the why a super critical carmen x i v in class six different as a matter physical form from super critical carbon dioxide in the class to i don't know that it is that the super critical form is different but that's where you get into what i was mentioning about the activity being different so if the activity is for enhanced oil recovery that's not an activity that's intended for abandonment or disc and now so what they're saying is any decision you make now about whether it's solid is something that's going to hold with respect to other classes now they'll still be an argument that it's not discarded but the first argument that it's solid will have been decided you know your honor because that the determination as to whether it's discarded is part of determining whether it's a solid waste why why why does what it's this is the part i'm not understanding why does the use to which i going to be put make any difference as to whether it's solid or not if you look at the definition of solid waste which is in forty two u s c sixty nine zero three paragraph twenty seven discarded material including solid liquid semi cell and in looking at that definition the court in the amc one decision said that when you're looking at other discarded material you look at the the plain meaning and that means abandoned  disposed of so that's why in order to determine if something is a solid waste e p a has to look at is the activity abandoning disposing exciter of that particular material know i think i understand all of that but i think you're in the thick you're sort of accepting the parameters of my question so my question is they've made two arguments here one is that it's not really discarded and the other is  not really solid or liquid or semi solid it's something else altogether and therefore can't be included it's not included whether it's discarded or not it couldn't be included as you see you refer  i misunderstood when you said solid i thought you were referring to the the solid waste you're referring to the including phrase that has those other forms i apologize for saying the e p a did not need to conclude or look at whether these were contained or uncontained gases and the super critical form and given the point you to some places in the record that explain what the supercritical form is it's something that has the properties o liquid and a gas and i took this ok i actually got that point but you did more than i do the question am i asking is i think you know what they're complaining about is that at least part of what you're deciding here necessarily has to bleed over into decisions about other kinds of well now i so you can say and you have that this only applies to classics organ have to start over again with class too so even if we're going to come to the same place it's only by precedent and that's not enough for standing i understand that but i'm just wondering how it would be possible to say that a super critical in a class to well is solid liquid semi solid or contain gashes something like that how you could say that it is not in the class too well but is in the classics that you're correctly i think that although we don't eat he hasn't looked at the cli that situation the supercritical form if it's the same it would be the same in a class two brothers are the six or but you still then have to get to the other part of the solid waste a termination and which is whether that is actually discarded in it's not going to be the same in quest to world as it is in the what if that were then it turns on being discarded then that's just the mere fact of geological seaquest ration means that it's permanently discarded i thought i understood mr llewellyn to be saying that he could be removed from even a class for well and we used so is the agency saying that when discarded in that in this class six well it reused that is the it not that it can't be reused e p a did say it could be there's nothing in the conditional exclusion that precludes the carbon dioxide from later being withdrawn but that isn't relevant to whether it's just started in the paragraph six it says carbon c question or geologic seaquest ration is to isolate the carbon dioxide permanently from the atmosphere and these classic swells where this carbon dioxide is injected goes up to half a mile below the surface it's intended to prevent these emissions from reaching an underground source of drinking water so the fact that that is the epitome of abandonment that's why e p a very clearly on the record kept saying that these types of waste in these types of wells were skinny these types of streams in these types of wells are in fact discarded because they are abandoned and the fact that they could potentially be withdrawn which again there weren't any facts during the rulemaking to actually support that isn't relevant to that determination of whether it's discarded in the first instance and i believe that the amc to court and a p i court rejected the argument that potential reuse or beneficial reuse would prevent a material from being classified as the start so that they say two things one is as judge edwards was asking that there are didn't seem to be a place in the stress diseases declaration where you talked about any kind of plan to use classics and now they are the government points out there doesn't decides to contract with a geological sequestration by a third party recipient of some of the supercritical carbon dioxide sent from the kemper county energy facility to the comingled pipeline it does not specifically say classic that's in the future that's what it's saying is i'm sorry than i'm sounding ignorant here but i'm not understanding what the asserted injury is with respect to this connection to a thirty forty contract or what in other words what is  decide to do that we will not if we send it to a coming of pipeline where there is gas well in the o two going to various types of well we will not be able to take advantage of the  well we can't go that route so we need to figure out if we're managing a hazardous waste or not so we have to test but there's no way for a cap and even if and if we do test and it turns out that it has it of and we send   in the future what are we going to use what is some company if they're going to do sequestration it's going to be in a class that well we are very concerned about the effect of forty two u s code section sixty nine seventy a if we can challenge that now we may very well not be able to be able to challenge it in the future because sixty nine seventy six a one statute of limitation i know that the court has generally relied on that in rightness cases but it really ought to be a factor in the court's deliberations here on the standing questions well it seems to me is our right this question maybe maybe i don't believe there is your honor maybe the question is whether this is ripe in a situation where you're not indicating yet any interest in doing this i'm looking for this is a way to protect you from the statue limitations problem is there an argument that's not right no i don't believe there is a rightness problem here  only have to show that there is a substantial likelihood a substantial probability that the action created a demonstrably risk of injury to our particularized interest i think we've done that here we are the folks that are capturing of where the proposition that our to the extent the rule shapes the competitive environment and will affect our business decisions in the future we've shown standing there is also an opportunity injury that the court has recently recognized in sierra club the e p a seven fifty five fifty nine sixty eight at nine seventy five to seventy six that involved a case where of the the association could not identify specific refineries that were taking advantage of an exclusion at that particular time but had expressed a very definite interest in wanting to be able to do so in the future and the court found that the interveners had standing on the basis of a so called opportunity injury i think we're talking about a very similar thing here  generators in the final will the register notes a j twenty six it says under the final rule the certification statement that the generator would sign is specific to the activities within the generators control right that sounds like you're protected to that with respect to things outside your control that's only as to what we are certifying as to what is under our control but let your honor you also need to look at j twenty nine  seventy nine fed registry fifty seven j twenty nine here's what the agency says a violation of a condition condition of the exemption at any point in the management of a c o two stream that is otherwise hazard of would result in that c o two stream being subject to all applicable subtitle c regulatory requirements from the point of generation so it's fine that we only have to certify to our compliance with certain things but we are still liable for violations that may occur downstream from us because of someone violated doesn't cross a tier to out of downstream from us then we have been managing a hazardous waste from the point of generation and we have the