please the court your honors money ms john was already counsel for united states steel corporation and i'm here today with co counsel david hacker from the lot apartment of united states steel corporation your honour's in any rule making e p a has a duty to treat like cases alike to practice reasoned decision making based on the facts in the record to respond to substantive comments and to adhere to the mandates of the statute the revised fi the revised federal implementation plan before this court violates all four of those precepts before getting into the details of why i'd like to step back and start with a few salient facts that set this case apart from a typical petition for environmental review first is that the rule making it issue applies to the taconite industry taconite is mined in only two states minnesota and michigan the taconite rule applies to only seven facilities and those seven facilities are owned by only three companies united states steel corporation cliffs natural resources which is now cleveland cliffs and arcelor mittal the reason i how many of those are u s steel's u s steel has two of those tech and the reason i point that out is that when the united states emphasizes that it's revised only applies to four facilities that is the majority that is the rest of the industry that the rule applies to the only facility that wasn't addressed north shore is a very small facility that could already comply with the even the original fip limits so there's no reason to address it and nobody asked e p a to make any changes with respect to north shore the second issue i'd like to point out is that e p a in this rule is not just asking for an add on control to the combustion to the exhaust from the facility the proposed or the fip deals with the actual combustion process of and the reason i want to emphasize that is that it underscores how complex the process is that u s steel was developing in two thousand and ten and two thousand and eleven u s steel was the pioneer in implementing a new low knox main burner system for the reduction of nitrogen oxides in the enduring furnace process but is a complicated process and changes to it have a potential impact not only on emissions but on pellet quality on the product that these furnaces were designed to create is there true that it's true that there's a big difference between you and the other two in that they came forward with evidence and you did not come forward with evidence and that's why the revised doesn't apply to us do you not at all your honor and we understand that that's highlighted when it was installing a pilot technology at line six in line seven it meant tac the very same issues they close in arcelor later said would apply to the plight of them in their petitions for reconsideration and the very same facts of the united states cited as the grounds for granting reconsideration namely that identified problems with the managing the increased airflow from monaca mean burner system that if i had the problems that would affect a pellet quality it would affect compressibility it would affect the ability to handle multiple types of ore body it would affect the types of pellets that could be created because you have acid pellets you know flux pellets those can have a different emissions profile so at the time when this technology was being to elop us still identif was put under certain circumstances achieve a seventy percent reduction in knocks it had not fully vetted that it still had serious engineering concerns as to whether that could be applied across the full range of operating conditions and that's the very factual basis that he be relied on for granting reconsideration that that information was relevant to the original f i p or felt cracked it was relevant to the original of fit as well as the revised and that was it did u one based on the original fip and one based on the revised fip we have received a letter that those petitions were denied but today the e p a has not published them the federal register those are before  here that those aren't a part of this case correct the e p a s decision on those petitions is not before the court nor is the record in the revised to petition for reconsideration but it is worth noting that the first petition for reconsideration that's the second body of additional factual support in our first petition for reconsideration united states steel submitted additional testing data additional statements from its engineers that help support the record and that was back in tw was before well before the revised it so you pay had all that information in addition to information they got through one fourteen requests which are information collection request under the clean air act so in addition to original engineering studies that are to identify these issues  continued over the years to supplement that information with additional data based on the operations at line six and seven and based on their efforts to continue to install an ox burners at the other lines of many tech that continue to support and continue to bolster the very issue that we are saying would be say and maybe i don't understand the process well enough but when you say they continue to update the e p a what do you mean by that do you mean in the context of a specific request to reconsider or review a bart determination or are you referring to something else both one is that there was a petition for reconsideration of the original flipper we saw supply the dish and data and the others that e p a has over the years sent information collection requests so these are collection requests to assist the agency in developing its rules and so do says the agency and evaluating its barger terminations for us steel we received several voluminous requests for additional information and we prepared and submitted additional data with respect to those so there was a ministry to process that he was undergoing while these petitions were being evaluated by the agency and that's in our main brief to the one fourteen requests or responses of those are in the record let me ask a question then sit back in and excuse me for if i get too simplistic about this but zander stand  it here u s steel is challenging the revised federal employment implementation plan which grants relief to its standing in this appeal yes your honor there's two grounds for standing i mean one we satisfy article three standing fairly easily this is a rule making that affects us we are directly regulated there was a modification of the s o two deadlines in it and the second component is that the fact that e p a subs in of we revised the entire process for establishing knox limits for the taconite industry and decided to exclude us steel from that process injures us steel directly this is a commodity that is the industry to make taconite pellets that are themselves used for the manufacture of steel the cost competitiveness is very tight competitive disadvantage is can be fatal to attack and i facility and so it's very important that in this context treat like cases alike are the different facilities different in their processing or the structure of their facilities all of the facilities oh i'm sorry go ahead but your thought is in addition to that there are individual design elements these are not cookie cutter furnaces these are you know some have pretty burners some do not but even with the same general characteristics each furnace is burning its own its into rating its own pellets of dealing with different or types they have different airflow volumes there's a number of specifics so do those differences then warrant the agency treating them differently for purposes of bargaining that seems like that's one of the main disputes between you and the agency as to whether there was a one size fits all approach or whether they were doing the santa the syllabi by facility or case by case basis and if if the if the differences in the facilities are as you describe them how is it that you are swept up in their case by case analysis we don't know for two reasons the first is that what he pays doing here is applying a different approach so our point is that those individual characteristics had to be considered by the agency they did not do that in the original fit so they did not do that is to us still the assumptions th that the technical distinctions between furnaces were insignificant and would not impact the emissions from each line that's the very fact that they have now changed now in the revised what they say it turns out after further study and based on the record we now have the technical variations between each line are very significant and in fact eliminated from consideration the hi story glow in the main burner systems that we originally thought were barked us steals entitle to the same evalu so the method of determining whether or not so first we're entitled to an evaluation of whether our technical differences require a change and the second is the method the method for selecting an emission limit is now very different the in the original fip the assumption was that technical variations would have no impact on the mission profile and so every facility was assigned a one point two pounds per million b t u s limit for natural gas and one point five pounds per going to be to you when mixed with solid fuels across the board now e p a recognizes not only that there's these technical variations can significantly change the mission profile but that those variations but that it is impossible to predict the final mission limit until  system or other control is installed and actually operating across the full range of operations and that's getting well if that's so if the if if the if there is sort of a realization that there is more why this lawsuit if you're doing exactly what the competitors did in another proceeding this lawsuit is because e p a is standing on our petition for reconsider suspect federal implementation plan that this court stayed pending appeal that appeal the stay was issued to three parties cliffs arcelor in the state of michigan us still wasn't party to that what he did was enter  private settlement negotiations with those three parties and entered into a settlement agreement where they determined that they would scrap the one point two the at the heart of mission limit they will develop a new process where they step was a range of allow them to install controls and then find out what limit would apply within that range and then they memorialize that settlement agreement in the revised fip and use the granting of the petitions for reconsideration as a vehicle to do that u s steel was in a party so he has declined to not only decline to evaluate u s deals position whether u s steel should be subject to that same consideration it's the claim to grant our petition for reconsideration so it's basically achieving through a revised fit what it could not have done in an original which is apply one standard to u s steel another standard everybody else in the industry so what where in the record do we go to find to find this is that this is an allegation of competitor standing where your competitors are restriction is lifted with respect to competitors but not with respect to u s steel but saying they can't be based on just allegations where in the record do we go to find reference to actual injury here that would support standing in the case since the injury to u s steel is discussed in our comments so that issue is raised it is supported by the decoration of larry sutherland that is in the record there really isn't a dispute i think among the parties that we are in competition with cl our store for the production of taconite pellets and that we put it at competitive disadvantage if forced to incur costs that they are not that injures us still there is a record reflect that you buy from them do you buy from those other two cliffs and i know their competitor in this part of the process but do you buy any of these pellets from the other two u s steel there's a record reflect that don't that's either you know you're on the record doesn't discuss as human as far as the steel production going to contribute to improvement in visibility in class one federal areas and what the revised lacks entirely is a visibility analysis this is required by statute to determine if it technologies in fact part is also required in e p a s regulations you know this is this is the argument that you waved in your comments to to the fia in your relying on somebody else's comments right we are relying on the find a lack bands come i didn't mean to trick you different for that question but that you didn't raise them in your comments but but the but the native americans did right yes your honor so we would not concede that it's waived but we are relying on another party's comments but that's only appropriate in the administrative judicial review it please the court alan greenberg united states department of justice appearing on behalf of the united states environmental protection agency and its administrator scott pruitt with me at counsel table is matthew marks from office of general counsel in washington d c your honor in this case united states deal is challenging a revised federal implementation plan or fip under the clean air act regional haze emission limits in the revised fip for these four facilities that are operated by u s deals competitors and it does not seek reversal of the revised fip which is the remedy that this court could provide facilities but that twenty thirteen fip is not before this court today because the us deals challenges are misdirected its arguments that it presents are similarly mr rectitude it asse numerous challenges that either this court lacks jurisdiction to hear or do not just demonstrate that the revised fit is arbitrary or capricious significantly its arguments relating to disparate treatment do not carry the day because e p a s application of the same methodology the same regulatory methodology to different circumstances at different facilities does not constitute impermissible disparate treatment i will first address e p a s authority to issue this revised fit and then i will demonstrate why e p a did not act arbitrarily capriciously when it granted reconsideration to the selection of part at cliffs and arcelor middles facilities well before you do that i ask a couple of question earlier suggesting there may be a standing issue here what do you think about that i think the response was that that the e p a has conceded that as a result the result of all this that u steel is at a competitive disadvantage and has suffered economic is suffering and stands to suffer economic harm is that accurate the conceit that they're standing in this case that there is proof that there's  sufficient allegation and support in the record of economic harm that would do any injury that would give us steel standing we would knowledge that there is potential injury f business of standing but the question understanding goes to redress ability the third prong of the constitutional standing test here us deal is challenging the revised f if the remedy it was seeking was to reverse the revised fifth and claiming that that was its injury then it's injury could be redressed by this court that's not what u s steel is seeking u s d steel is not asking that for this court to reverse the revised fip and as a result as we noted in the last section of our argument in our brief there is a redress ability issue and as i heard counsel for us deal he cited to the s o two limits that's not at issue and this case that's not an injury that they've briefed or that they're contending provides the necessary standing the issue here is the emission limits applicable to us deals facilities that were so that in the original fip and twenty thirteen that's not before this court that i aren't they saying that the that the methodology has changed that that the e p a has decided that there's a different approach that is more appropriate in determining the bargain that should apply to them too and that that's the injury that is the injury or honor but as i pointed out the question is redress ability and so weak there's nothing that the agency can do to include them in that result it revised fip no i think the important question is there's nothing the court can do in this proceeding to include them in the revised fip and that's why the challenge to the revised fip raises the standing issues that have been raised by judge shepherd and because their argument on authority is based on their assertion of a compliant state sip that is a challenge that should have been brought and could be brought the twenty thirteen sept disapproval challenge but not here and on the merits a has authority because the state of minnesota has not submitted and e p a has not approved a compliant stip at this point in time u s deals remaining arguments are generally variations on a theme and that theme is based on the incorrect assertion that the e p a employed a new approach or new methodology in the revised fip and spy step methodology set forth in the part guidelines and the original fit it applied that methodology to the seven taconite facilities did a step by step analysis and determined that high storch low knocks burners were barred for all seven facilities clisson arcelor middle submitted new information in connection with a petition for reimbursement that called into question the barked terminations made in the original fip well in the reply brief to you us still makes the flat statement they provide the same type of data to you they cite two pages of the record and two charts they're hard to understand  what do you say about that we would disagree with that your honor in a couple points in response to what us steel presented first they cited as evidence the materials relating to an intact six and seven and yes initially there were issues with pellet quality and fuel used when they installed those low knox burners but by the time e p a issued its original fit us deal it worked out those problems there were no issues at six and seven with respect to any of those potential technical problems i prefer the court in the record to the appendix pages twelve twenty nine twelve sixty to sixty one and twelve fifty nine and second with respect to the argument that they did submit that information at the time e p a issued its revised fip that wasn't a correct statement and i would ask the court to compare the petition for reconsideration that they submitted in two thousand and thirteen and its contents and that's found that appendix two thousand and one and consecutive pages with the petition for reconsideration that they submitted after the revised fip we contend that's not in the administrative record although they submitted it as part of the appendix it's that appendix page forty one at sec if you look at what they submitted before which does not contain the materials the technical analysis the engineering evaluations the proposals for an alternative part at these facilities that's not in the twenty thirteen petition for reconsideration some of that is in the twenty sixteen petition but that post dates the revised fit e p a did not have that at the time it issued its revised fip it did have that kind of material from cliff's arcelor mittal and with respect to the one fourteen request responses that were reference those are not in the administrative record either those are primarily reply brief they cite twelve fifty five that's very close to something you referenced  is what they cite is the same type of data that they did supply you as the others right and twelve fifty five deals with an identification of an issue that they were having with the bart with the installation of the lone ox burners at mint taki there six or seven but if you get to the end of that report the conclusion is we dealt with it we figured out a way to operate our loads nox burners so that this issue we identified was solved we could obtain seventy percent reduction of knocks without incurring fuel penalties without harming issued the original fit us deal had already installed high stoic low knocks burners on two of its furnace pursuant to state requirements they did make the effort and demonstrated that this was a feasible technology for taconite facilities and specifically their taconite facilities that places them obviously in a different situation from clifton arcelor middle who came in after we issued the original fip and said wait we can't do what us deal already did for the following reasons based upon the engineering analysis and technical studies we have done and which is perfectly reasonable nothing arbitrary and capricious by e p a determining on a petition for reconsideration that a particular facility submits material central to the issue and the couldn't have been raised at the time of the prior rule making that calls into question some of the conclusions that have been made in the original fip can you help me understand the other proceeding that is ongoing with disapprove of minnesota's sip and tried and did bootstrap into that a request for reconsideration of the original fare up and then recently in twenty sixteen they filed a petition for reconsideration of this revised after the revised fifth was issued obviously that's not before this court  is that a proceeding where they could get reconsideration of their own bart yes it could and e p a as mr last already mentioned denied that reconsideration petition in january of this year that can be challenged if this point it doesn't have to wait for the federal register notice there's an e p a regulation  r twenty three point three that provides that if it doesn't appear in the federal register you can still go ahead and challenge that so that would be a vehicle for us deal to raise its specific issues relating to it furnaces its technology its engineering analysis to the extent it provided it to e p a in support of its petition for reconsideration but that material was not before e p a at the time e p a issued this revised fip what is the status of an appeal of what happened in january tell me of a million best and the right question if it can be brought it has not yet been brought by you what's the time frame the deadline  if it's not published in the federal register it's the default six year statute of limitations under thank you a couple of the remaining arguments that were presented by us deal in this case can easily be addressed mr last already raised the visibility issues those can be discounted for three reasons first it was an argument that was waived the find a lock banned comments supported the visibility analysis in the original fip that doesn't put e p a on notice anyone is criticizing the visibility analysis and they didn't even use the word visibility right there's a misquotation running around the record they used the term regional hey is correct they did it the comment i ambiguous to start with and even if you're going to rely on it the tribes were seeking more rigorous regional haze protections because they are in a location that's impacted by the emissions that impact his ability so this is not something that's rescues us deal from having not commented it's also a collateral attack on the original fit because the this revised they made a determination that the revisions would reduce by sixteen percent what otherwise would have been the reductions in visit visibility impacts that sixteen percent is supported by the record a p a doesn't have to do an an elaborate scientific analysis that simply needs to reasonably determine visibility with respect to the comment that us deal submitted e p a adequately and properly responded to those comments there was no error so serious and of such real importance that substantially there was a substantial likelihood that the rule would have been significantly changed and i think the comments provide a big picture of what is really at issue here the comments that e p a said were not germane the future rule making because the revised fip doesn't put into play the emissions limits that are applicable to key tack and men tack similarly the comment was the stay pending completion  be a stay pending completion of a similar amendment for us steel again acknowledging this particular room making and this particular record supported the revisions of the fi mittal facilities a separate proceeding a future proceeding would be needed for whatever revisions would be appropriate for us deals facilities and responded to the comments that u s steel submitted can you help me understand how the new bart that is a political to what i'll call the competitors puts them at a competitive advantage over u s steel is there any sort of simple general way to describe that if in fact the us deal is the one that proposed or had already in place the emissions controls kind of technology i would probably be speculating on this point record with respect to any of that that would that would take it beyond mere speculation there is material in the record that relates to the i there are a lot of variables in these facilities u s steel submitted cost data in connection with the most recent reimbursement  subject to a one point two limit for natural gas one point five for mixed fuels that all lines the great kiln competitors of u s steel owned by cliffs are subject to somewhere between a range of two point eight to three point zero for natural gas in a range of one point five to two point five for mixed fuels so it's a much higher limit it's easier to achieve another element is the flexibility of the limit we are given a hard number one point two it has to be complied with one burning one hundred percent natural gas under all conditions all or types all pellets whether we and pat whether we have a pellet quality problem or not close in our solar given flexibility they're given a range two point eight to three point zero one point five to two point five f or they install they get to shake down operate their facilities to the entire range of products or types of qualities and then set a limit that does not force them to address both quality issues excess fuel consumption which is not only a cost issue but an emissions issue and safety concerns we don't have that flexibility the third issue is the schedule for compliance u s steel already has to comply line six line seven has to comply next year the only other facility best comply next year is north shore which has already complied for the original fip the other limits don't apply until twenty and twenty twenty one so u s steel has stricter limits that are less flexible and they have to apply soon comply sooner than everybody else that puts a substantial burden on us still another issue that was raised  is the interpretation of u s steel's own reports on line six and seven in the status of the technology us steel was at the time pioneering a low knox burner they did conclude that it was achievable too soon to obtain a seventy percent reduction but those reports are filled with the caveat some concerns that became a problem for close in our solar we emphasized at the time that women had to be averaged across all lines e p a the limit applies individually each line they're not allowing averaging we to sized at the time that there could be concerns with different or bodies different types of pellet quality and that we had not operated across all range of operating conditions that's the very thing that they are allowing a range now to address and it's not included in the original fit us st doesn't have the flexibility another important point is that well e p a continually emphasizes that line six and seven have installed a low notch burner first that doesn't address what level the launch burner has to operate one point two or something closer to two point eight to three point zero but also it says nothing about lines three four and five it meant tax or key tac they did not have one ox burners installed at the time there is no data in the record to support that they could achieve the same results as line six and seven and the problem with a revised fip is e p a never l they never said will these same problems that we now know are going to cause a cliff in our store to fall short of our initial limits will these apply to lines three four and five and meant to act with a supply the key task we said that they should have also looked at line six and seven there's a a for making several technical determinations as to close in arcelor once they have a record that they conclude that there were initial methodology was faulty they have to use reason decision making based on that record they knew there was a problem with their original fip there's nothing in the record to support why they excluded us steel that was the essence of arbitrary capricious rule making there is the little thank you for the argument case sixteen dash twenty six sixty eight is submitted for decision and we'll hear you now in case