ORAL ARGUMENT NOT YET SCHEDULED
IN THE UNITED STATES COURT OF APPEALS

FOR THE DISTRICT OF COLUMBIA CIRCUIT

ARKEMA INC., et al, Petitioners,

v. UNITED STATES ENVIRONMENTAL PROTECTION AGENCY, Respondent. Nos. 09-1318 and 09-1335 (Consolidated)

Petitions for Review of Fi nal Administrative Action Of The United States Envi ronmental Protection Agency

PETITION FOR REHEARING

OR REHEARING EN BANC

OF COUNSEL: DIANE MCCONKEY Office of General Counsel U.S. Environmental Protection Agency Ariel Rios Building 1200 Pennsylvania Avenue, N. W. Mail Code: 2344A Washington, DC 20460 IGNACIA S. MORENO Assistant Attorney General
MATTHEW R. OAKES PERRY M. ROSEN United States Department of Justice Environment & Natural Resources Div. Environmental Defense Section P.O. Box 23986 Washington D.C. 20026-3986 Tel: (202) 514-26861 The United States Environmental Protection Agency (“EPA”) requests en banc or, alternatively, panel rehearing of the panel’s divided Opinion, Arkema Inc. v. EPA , 618 F.3d 1, 7 (D.C. Cir. Aug. 27, 2010) , holding that EPA impermissibly and retroactively deprived petitioners Arkema Inc., Solvay Fluoride s, LLC, and Solvay Solexis, Inc. (collectively “Pet itioners”) of “vested rights” in baseline allowances for ozone-depleting substances known as hy drochlorofluorocarbons (“HCFCs”). The decision involves a question of exceptional importance regarding retroactivity of agency action. The Clean Air Act (“CAA”) and the Montreal Protocol on Substances that Deplete the Ozone Layer (“Montreal Protocol”) require that production of HCFCs be phased out. By finding “vested rights” where there were none, the decision requires that EPA continue to recognize HCFC allowances that were never intended to be permanent. See Arkema , 618 F.3d at 10 (“EPA never stated, not once, that a company’s inter-pollutant transfers would permanently and forever alter the company’s baseline for these pollutants.”) (Randolph, J., dissenting). The decision thus seriously undermines the statutorily-prescribed HCFC phase-out process. Moreover, en banc review is necessary to ensure uniformity of the Court’s decisions, as the panel decision conflicts squarely with pr ecedent, including DirecTV,
Inc. v. FCC , 110 F.3d 816, 826 (D.C. Cir. 1997), where this Court found no retroactivity in very similar circumstances. Finally, the panel’s decision may inadve rtently create a vested right for all entities previously issued HCFC allowances, a situation that complicates2 implementation of the decision. In the Fina l Rule, EPA established a total amount of authorized production as a percentage of baseline allowances. The panel majority held that Petitioners have “vested rights” in their HCFC baseline allowances, but EPA cannot give Petitioners additiona l baseline allowances without decreasing the percentage of baseline that each company – includin g petitioners’ numerous competitiors – will be allowed to produce. Indeed, other HC FC producers recently filed petitions for review of the very allowance transfer appr ovals that, per the panel majority’s decision, gave rise to Petitioners’ “vested rights.” Those petitions argue that, in light of the panel decision, EPA’s actions depriv ed Petitioners’ competitors of the value and benefit of
their own HCFC allowances without due process of law. See Honeywell Int’l v. EPA , Case Nos. 10-1347, 10-1348, 10-1349, 10-1350 (D.C. Cir. filed Oct. 26, 2010). Had the panel majority given appropriate deference to EPA’s interpretation of its own regulations and allowance transfer a pplication forms – or given any weight to correspondence showing that even Solvay understood that the allowance transfers were not permanent – it would have found no “vested right” to any allowances, and this conundrum could easily have been avoided.
BACKGROUND Title VI of the Clean Air Act, 42 U.S. C. §§ 7671-7671q, requires EPA to phase out production and consumption of HCFCs and other ozone-depleting substances.
The Montreal Protocol used a 1989 assess ment to determine baseline HCFC import, production and consumption levels (for ease of reference, we refer only to3 “production” in this petition); it requires the United States to reduce its HCFC production 35% from those baseline levels by 2004, and production 75% by 2010, 90% by 2015, 99.5% by 2020, and eliminate it entirely by 2030. Congress thus directed EPA to promulgate rules that would es tablish HCFC “allowances”; permit the transfer of such allowances between comp anies, or from one HCFC to another, in certain circumstances; and ensure that any such transfers “will result in greater total reductions in the production in each yea r of [ozone-depleting] substances” than would occur absent such transactions. 42 U.S.C. § 7671f. The Act allows two distinct types of transfers: “inter-pollutant transfer s,” in which allowanc es for the production of one ozone-depleting substance may be exchanged for allowances for the production of a different substance during the same year , 42 U.S.C. § 7671f(b)(1); and “inter-company transfers,” in which allo wances for the produc tion of an ozonedepleting substance may be transferred from one company to another. Id. § 7671f(c). “Inter-company transfers” are not limited to production within the same year. In 2003, EPA established an allowance system that addressed the required 35% reduction of HCFC consumption by 2004. 68 Fed. Reg. 2831-33 (Jan. 21, 2003) (the “2003 Rule”). The 2003 Ru le expressly applied only to the regulatory period from 2004 through 2009. 40 C.F.R. § 82.16(a); see also 68 Fed. Reg. at 2823. It prohibited production of HCFCs without allowances for that calendar year, 68 Fed. Reg at 2848, and also contained provisions permitting inter-pollutant and inter-company allowance transfers. The Rule gave no indication that inter-pollutant transfers of allowances4 were “permanent,” but instead required that a company conducting an inter-pollutant
transfer submit to EPA a transfer claim id entifying, among other things, “the control period(s) for which the allowances are be ing converted . . . .” 40 C.F.R. § 82.23(b)(3)(vii). Each calendar year from 2003 to 2009 was identified as a separate “control period.” See, e.g., 68 Fed. Reg. at 2823. No reference was made to years following 2009. Permanent inter- company transfers, on the other hand, were expressly recognized by EPA. Id. at 2835 (“The permanent transfer of baseline allowances is a lasting shift of some quantity of a company’s allowances to another company .”) (emphasis added). To effectuate transfers, EPA developed a form that allowed a company to identify the HCFC allowances being transferred and whether the allowances transferred were “current year allowances” or “baseline year allowances.” See Transfer Form (Att. A). In 2008, EPA proposed a rule to govern the 2010-2014 step-down period. 73 Fed. Reg. 78,680 (Dec. 23, 2008). EPA ex pressly noted that, “[a]bsent a grant of calendar-year allowances for these HCFCs, [40 C.F.R.] § 82.15 would prohibit their production and import after December 31, 2009.” Id. at 78,686. Thus, in order to produce, a company must hold calendar- year allowances, the baseline allowances being a mere distribution plan, not an authoriz ation to produce. In the proposal, EPA identified at least five options for alloca ting HCFC allowances after 2009, including allocating a percentage of the baselines es tablished in the 2003 Rule either “with or without considering any permanent baseline transfers and/or inter-pollutant
transfers.” Id. at 78,687. On December 15, 2009, EPA issued the Final Rule that5 Petitioners challenge. See “Adjustments to the Allowance System for Controlling HCFC Production, Import, and Export,” 74 Fed. Reg. 66,412. After considering comments, EPA decided notto reflect inter-pollutant transfers from the prior stepdown period in setting the baselines fo r the 2010-2014 step-down period, because “reflecting such transfers in this rule wo uld disrupt the entire market in 2010” and “could create incentives for future manipul ation of the allocation system.” 74 Fed. Reg. at 66,421. EPA also concluded th at CAA section 7671f “is best read as permitting only year-by-year inter-pollutant transfers.” Id. Two HCFCs are relevant here: HCFC-22, for which there is a robust market; and HCFC-142b, for which there is not. Bo th Petitioners held plentiful HCFC-142ballowances, and in 2008 both transferred their allowances for low-demand HCFC142b to allowances for high-demand HCFC-22. By way of example, one of the two Petitioners here used inter-pollutant tran sfers of the now nearly worthless HCFC141b to increase its allowances for the desi rable HCFC-22 by over 900%, a result that the panel’s decision requires th e agency to perpetuate. Each of Solvay's 2008 transfer requests acknowledges: “[T]his transfer is fo r Baseline Year Allowances and therefore is being done on a permanent basis ( i.e. multi-year transfer for 2008 and 2009 ).” Arkema, 618 F.3d at 11 (Randolph, J., dissenting) (e mphasis in opinion). Solvay’s statement is consistent with EPA’s interpretation of it s own regulations and transfer application form: that, notwithstanding Solvay’s char acterizations of those inter-pollutant transfers as “permanent,” the transferred allowances were only valid for “control6 periods” ( i.e. , calendar years) within the 2004-200 9 step-down period and had no value beyond that step-down period. See id

. Petitioners challenged the Final Rule, and moved for a stay pending review. The motions panel (Judges Ginsburg, Henderson and Rogers) denied the motion, see Order, Jan. 21, 2010, allowing the indust ry to operate through most of 2010 on the assumption that EPA’s allowance allocations would control. Indeed, the merits panel concluded that, in the Final Rule, EPA reasonably interpreted the statute to “limit inter-pollutant trades to a single year and [EPA] can prohibit inter-pollutant baseline transfers.” 618 F.3d at 10 (emphasis adde d). The panel majority went on to hold, however, that EPA could only apply this interpretation prospectively , because “EPA’s practice under the 2003 Rule was to allow Pe titioners’ baseline transfers of interpollutant allowances,” id. at 8 (emphasis added), thereby giving Petitioners permanent “vested rights” in those transferred allowances, id. at 7. Judge Randolph dissented, noting that nothing in the 2003 Rule, its preamble, or the record supported the panel majority’s conc lusions regarding retroactive effects or vested rights. Per express language of th e preamble, the only “permanent” transfers permitted by the 2003 Rule were inter-company transfers. Id. at 10. As Judge Randolph stated, this “should have alerted all affect ed parties that there was no similar option for [permanent] transfers within one compan y, a position reflected in the regulations
themselves.” Id . (citing 40 C.F.R. § 82.23(d)). Mo reover, he noted, EPA’s proposal in
2008 to allocate allowances for the 2010-20 14 regulatory period “‘with or without’7 considering [prior inter-pollutant] tran sfers would be nonsensical” if EPA had previously authorized “permanent” inter- pollutant transfers. 618 F.3d at 10-11. Similarly, he noted, “The only correspondence to use the word ‘permanent’ in connection with these trades specifically noted that it ‘should not be interpreted to signal a particular course of action fo r development of HCFC allowances for 2010-
2014.” Id. at 11. Finally, Judge Randolph reject ed the panel majority’s holding that Petitioners had “vested rights” in the tran sferred allowances, explaining that EPA regulations governing future production of HCFCs cannot be retroactive because such regulations did not upset expectations based in prior law. Id. at 12 (“EPA’s 2010 regulations impose no new liabili ty or duty on petitioners.”).
ARGUMENT I. The Final Rule Is Not Impermissibly Retroactive. The panel majority’s determination th at the Final Rule is impermissibly
retroactive is inconsistent with this Co urt’s precedent, and is based on a flawed conclusion that petitioners have “vested rights” to prior inter-pollutant transfers. Moreover, the panel majority arrived at its conclusion because it failed to give the requisite deference to EPA’s interpretation of its own regulations. This decision has already led to four D.C. Circ uit petitions by other members of the regulated industry asserting conflicting “vested rights” of their own, and if allowed to stand will lead to regulatory confusion. In such a setting, it wi ll be difficult, if not impossible, to ensure
sufficient HCFC reductions to attain the goals of the CAA and Montreal Protocol.8 A. The Decision Conflicts with Circuit Law on Retroactivity. The Final Rule is forward-looking and establishes HCFC allocations for 2010- 2014. It does not render any past action by Arkema or Solvay either illegal or
otherwise sanctionable and does not atta ch new legal consequences to events completed before its promulgation. An agency order that “alters the future effect, not the past legal consequences” of an action, Sinclair Broad. Group v. FCC , 284 F.3d 148, 166 (D.C. Cir. 2002), or that “ ‘upset s expectations based on prior law,’ ” DirecTV, Inc.
v. FCC , 110 F.3d 816, 826 (D.C. Ci r. 1997) (citation omitted), is not retroactive. In this case, EPA was planning the futu re distribution of a limited resource – calendar-year allowances for the production of HCFCs – and, through the rulemaking process, assessed the appropriateness of its prior regulatory approach and determined how to best implement the next mandato ry HCFC step-down. The panel majority recognized that an agency is entitled to ch ange its regulatory approach prospectively, as long as that change is adequately explained. Arkema , 618 F.3d at 6. For HCFCs, the allowance distribution regime created in the 2003 Rule ended by its terms in 2009; through the Final Rule, EPA determined how calendar-year allowances would be
distributed in an entirely new regulatory period

. See 40 C.F.R. § 82.16(a). See also 68 Fed. Reg. at 2823. In DirecTV this Court faced an analogous situation, in which the Federal Communications Commission (“FCC”) was redist ributing reclaimed satellite channels, after originally stating that channels wo uld be awarded in equal numbers to each applicant. 110 F.3d at 821-22. The channels had previously been permitted on this pro9 rata basis, but the FCC subsequently reversed course and established an alternative, auction-based system. Id. DirecTV argued that the FC C’s change in course was impermissibly retroactive because it divested the company of a “right to a pro-rata
share of the . . . channels.” Id. at 825. This Court disagreed, holding that the FCC’s
action was not retroactive because the F CC’s prior, pro rata approach did not establish that any company had a right to any channels; it merely set out a plan for distribution of those channels among the companies. Id. at 826. That some companies may have acted or invested based on their expectation that pro rata distribution of channels would continue, did not make the FCC’s change in position impermissibly
retroactive. Id . The reasoning in DirecTV applies with even greater force here, where the 2004-2009 regulatory period had ended, leaving in place an absolute regulatory ban on HCFC production that could be lifted only through the issuance of new regulations. In short, prior to promulgati ng the Final Rule, EPA had not established

any right to specific calendar-year a llowances for the years 2010-2014. Petitioners’ past HCFC transfers are not rendered illegal by the Final Rule, and no adverse legal consequences flow from t hose transfers. Instead, when writing rules for the next step-down period, EPA simply chose not to carry over inter-pollutant transfers from one step-down period to the next, and to clarify its statutory interpretation in this regard. Regulations that impair the future value of past bargains, but that do not render those past actions illegal or otherwise sanctionable, are not impermissibly retroactive. See Nat’l Cable & Telecomms. Ass'n v. FCC , 567 F.3d 659, 67010 (D.C. Cir. 2009) (“ ‘It is often the case that a business will undertake a certain course of conduct based on the current law, and wi ll then find its expectations frustrated when the law changes’. . . . Such expectations, however legitimate, cannot furnish a sufficient basis for identifying impermissibly retroactive rules.”) (citations omitted). Indeed, where a regulatory decision affects the financial expectations of regulated entities, those expectations alone cannot form the basis for a retroactivity finding. See Mobile Relay Assocs. v. F.C.C. , 457 F.3d 1, 11 (D.C. Cir. 2006). The panel majority nonetheless relied on Arkema and Solvay’s business expectations , as set out in their appellate briefs, as the basis for concluding that both had “vested rights” in the transferred allowances. See Arkema , 618 F.3d at 7-8. However, even if such business expectations could form the basis for Petitioners’ claim that the 2003 Rule is impermissibly retr oactive, Petitioner Solvay’s correspondence with EPA demonstrates that Solvay, at least, had no such expectation: each 2008 transfer request Solvay submitted stated explic itly that “[t]his transfer is for Baseline Year Allowances and therefore is being done on a permanent basis ( i.e. multi-year transfer for 2008 and 2009 ).” Id. at 11 (Randolph, J., dissenting) (emphasis in opinion). In short, this correspondence demonstrates that, when Solvay used the terms “permanent” and “Baseline Year Allowances” to refer to these transfers, it meant only that they were effective for the remaini ng two years of the 2004-2009 step-down period. The panel majority dismissed this correspondence, id. at 9-10, but the fact that EPA or Solvay or both treated such allowance transfers as carrying over from one11 year (or “control period,” as the regula tions define each year) to the next within the same step-down period says nothing about whether thos e allowances would carry over from one step-down period to the next and would be reflected in the new baseline. The panel majority claimed that “[t]he Agency’s approval and acknowledgment
of Petitioners’ actions di stinguishes this case,” id. at 8, but EPA never stated that its approval of Petitioners’ transfers constr ained the Agency’s options for the next regulatory period. See Arkema, 618 F.3d at 12 (J. Randol ph, dissenting). Indeed, EPA made clear at the outset that its 2003 Rule governed production only during 2004- 2009, with a new regulation required for la ter periods. As the majority recognized,
EPA is entitled to revise its plan for distributing a llowances for ozone-depleting
substances. Id. at 6. See DirecTV , 110 F.3d at 826; Black Citizens for a Fair Media v. FCC , 719 F.2d 407, 411 (D.C. Cir. 1983). The maj ority’s decision is seriously flawed, and significantly affects EPA’s efforts to make allocations under Titl e VI of the CAA.
B. Petitioners Have No Vested Ri ght to Inter-Pollutant Transfers. Arkema and Solvay have no “vested” right to a permanent inter-pollutant transfer. Until the Final Rule was issued, there had never been a transition from one regulatory period to another for the HCFC program. EPA’s prior “practice” regarding approval of inter-pollutant transfers during a step-down period could not establish a practice regarding what woul d happen to those transfers across step-down periods. The majority’s contrary conclusion is not based on EPA’s regulations at all; rather, the decision is based on the “apparent[]” implications of an EPA form, Arkema 618 F.3d12 at 7; on an EPA letter, id. at 7-8, which itself cautioned that it was not authoritative, see Att. B at 3; and on EPA’s inclusion in it s notice of proposed rulemaking of figures that would have reflected inter-pollutant transfers in baselines for the Final Rule,
Arkema 618 F.3d at 8, a proposal that EPA did not adopt. The panel majority concluded that these actions, combined, established EPA’s “clear practice” of allowing inter-pollutant transfers to chan ge a company’s baseline permanently, an
incorrect conclusion central to the majority’s decision. Id. at 6, 8. As the dissent recognized, however, EPA never said that inter-pollutant transfers would forever alter a company’s baseline. Id. at 10. EPA’s 2003 Rule does not imply that result, the Final Rule expressly reached a contrary conclu sion, and EPA practice during the prior regulatory period was consiste nt with EPA’s interpretation. See id. at 11 (“The interpretive choice reflected in the 20 03 regulations and the one EPA expressly adopted in the latest regulations was utterly predictable.”) (Randolph, J., dissenting).
The 2003 Rule set allowances “from c ontrol period to control period (one calendar year to the next).” 68 Fed. Re g. at 2823. Specifically, the 2003 rule only
contained HCFC-22 and HCFC-142b allocations for the years 2004-2009

. See 68 Fed. Reg. 2849. This structure is consistent with the requirements of the CAA, which permits allowances to be transferred between pollutants during the same calendar year, but not between regulatory periods. 42 U.S.C. § 7671f(b)(1). No rights to produce the two relevant substances were created for any year beyond 2009 in the 2003 Rule. EPA, in the Final Rule, declined to set new HCFC baselines that reflected13 prior inter-pollutant transfers because that approach would create incentives to manipulate the system, undermine EPA’s strategy of eliminating the worst HCFC’s first, and reduce market flexibility. 74 Fed. Reg. at 66,420-21. This interpretation was not unexpected – even Solvay understood that “permanent” in the context of an inter-pollutant transfer merely referred to a transfer that survived for the remainder of the current step-down period. See Arkema , 618 F.3d at 11 (Rando lph, J., dissenting). EPA never referred to permanent inter-pollutant transfers in the 2003 Rule or in approving the transfers. Only in later char acterizing the transfers in the context of considering different regulatory proposals di d EPA refer to a “permanent” trade of a
baseline allowance. See Aug. 14, 2008 Letter at 2 (A tt. B). The purpose of EPA’s August 2008 letter was to develop a ru lemaking proposal which would “seek comment on several options for allocating allowances,” id. at 1, and EPA made clear that “this letter should not be interpreted to signal a particular course of action for development of HCFC allowances for 2010-2014,” id. at 2. EPA clearly stated that the letter was intended to, inter alia , request that each recipient confirm information “including its current baseline allowances ” to be used in development of a new proposed rule that would, in turn, “[r]e quest comment on establishing production and consumption baselines . . . for the 2010-2014 control periods.” Id. at 1. In sum, though an EPA letter did refer to a “perman ent” trade of baseline allowances, it did

so only in the context of confirming the current status of allowance trading, a baseline number that might or might not be utilized during the next regulatory period. There is14 no indication that EPA guaranteed a particular baseline going forward. To the contrary, EPA stressed that “several options for al locating allowances” would be considered. Id. at 1. As Judge Randolph recognized in hi s dissent, EPA did not have an established policy of “permanently” recognizing inter-po llutant transfers, because if such a policy did exist, EPA’s proposal to allocate allo wances “with or without” considering prior inter-pollutant transfers would have been nonsensical. Arkema , 618 F.3d at 11. Thus, there is no “vested” right to a permanent inter-pollutant transfer. The majority’s leap to impose upon EPA a policy recognizing inter-pollutant transfers across regulatory periods is incons istent with not only the Final Rule, where EPA declined to recognize prior inter-polluta nt transfers when establishing a baseline,

see 74 Fed. Reg. at 66,421, but also with the 2003 Rule, in which EPA expressly recognized permanent transfers only between companies, see 68 Fed. Reg. at 2835, and with EPA’s interpretation of its own rules and forms. This Court accords an agency’s interpretation of its own regulations a “high le vel of deference,” accepting it “unless it is plainly wrong.” Gen. Elec. Co. v. EPA , 53 F.3d 1324, 1327 (D.C . Cir. 1995) (citation omitted); see also Exportal Lt da. v. United States , 902 F.2d 45, 50 (D.C. Cir. 1990) (“It is well established that a reviewing court owes deference to an agency’s construction of its own regulations.”). Thus, EPA's interpretati on is entitled to defe rence as long as it is “logically consistent with the language of the regulation[s] and . . . serves a permissible regulatory function.” Gen. Elec. , 53 F.3d at 1327. EPA has interpreted its own regulations, as well as its form and letter, as not15 creating a right to carry over inter-polluta nt transfers between different regulatory step-down periods. “The majority owes EPA deference for its interpretation of its form, but it gives the agency none.” Arkema , 618 F.3d at 11 (Randolph, J., dissenting) citing Global Crossing Telecomms., Inc. v. FCC , 259 F.3d 740, 746 (D.C. Cir. 2001); Wyoming Outdoor Council v. U.S. Forest Serv. , 165 F.3d 43, 53 (D.C . Cir. 1999). Rather than deferring to EPA’s statement of its own policy, the majority decision creates a prior policy for the Agency, relying on inferences drawn from the Court’s own interpretation of EPA letters, an EPA form, and statements in a proposed rulemaking. This interpretation is contrary to the statut e, which limits inter-pollutant transfers to production that occurs within the same year; and contrary to the 2003 Rule, the preamble of which states that the only “permanent” transfers are those between companies. EPA’s interpretation of its own re gulation was entitled to the highest level
of deference under Auer v. Robbins , 519 U.S. 452, 461 (1997) (agency’s interpretation of its own regulation is “controlling unless ‘p lainly erroneous or in consistent with the regulation’”) (citation omitted), but no such deference was extended here. The majority improperly recognized a “vested” right and failed to afford EPA’s interpretation any deference. These error s, combined with the majority’s improper application of D.C. Circuit caselaw on retroactivity, require rehearing in this case.
CONCLUSION For the reasons stated above, en banc rehearing or, in the alternative, panel rehearing should be granted.16 Respectfully submitted, DATE: November 12, 2010

OF COUNSEL: DIANE MCCONKEY Office of General Counsel U.S. Environmental Protection Agency Ariel Rios Building 1200 Pennsylvania Avenue, N. W. Mail Code: 2344A Washington, DC 20460 IGNACIA S. MORENO Assistant Attorney General Environment & Natural Resources Div. /s/ Matthew R. Oakes

. MATTHEW R. OAKES PERRY M. ROSEN United States Department of Justice Environment & Natural Resources Div. Environmental Defense Section P.O. Box 23986 Washington D.C. 20026-3986 Tel: (202) 514-2686 Fax: (202) 514-8865 matthew.oakes@usdoj.gov Counsel for Respondent EPA17 CERTIFICATE OF SERVICE I hereby certify that the foregoing PETITION FOR REHEARING OR REHEARING EN BANC was electronically fi led with the Clerk of the Court using the CM/ECF system, which will send notification of said filing to the attorneys of record for Petitioners, who have regist ered with the Court’s CM/ECF system.

Date: November 12, 2010 /s/ Matthew R. Oakes

. Matthew R. Oakes Counsel for Respondent EPA