Reply Brief — United States Steel Corporation, Applicant v. Environmental Protection Agency, et al.

Case No. 23A-384

In the Supreme Court of the United States

UNITED STATES STEEL CORPORATION,

Applicant,

v.

ENVIRONMENTAL PROTECTION AGENCY AND MICHAEL S. REGAN, ADMINISTRATOR,

Respondents.

On Application for Stay to the Honorable John G. Roberts, Jr., Chief

Justice and Circuit Justice for the District of Columbia Circuit

REPLY IN SUPPORT OF EMERGENCY APPLICATION FOR

STAY OF FINAL AGENCY ACTION PENDING JUDICIAL

REVIEW

November 3, 2023

John D. Lazzaretti

Counsel of Record

Squire Patton Boggs (US) LLP

1000 Key Tower

127 Public Square

Cleveland, OH 44114

216.479.8350

john.lazzaretti@squirepb.com

Counsel for United States Steel

Corporation

TABLE OF CONTENTS

Table of Contents ....................................................................................................... i

To the Honorable John G. Roberts, Jr., chief Justice of the Supreme Court of the

United States and Circuit Justice for the District of Columbia Circuit: ....................1

RElAted Cases ...........................................................................................................1

Introduction ................................................................................................................2

Standard of Review ....................................................................................................3

Statement ....................................................................................................................3

I.

Respondents Cannot Defend a Plan Built on Plain Error. ............................3

II. Respondents Offer No Defense to the Plan’s Violation of Cooperative

Federalism. .............................................................................................................7

III. EPA Did Not Support the Regulation of Iron and Steel Mills. ...................10

IV. The Plan’s Iron and Steel Requirements Violate the Clean Air Act...........13

V.

This Case Involves Certiorari-Worthy Issues .............................................16

VI. Absent a Stay, U. S. Steel Will Suffer Imminent Irreparable Harm. ..........17

VII. A Stay Is in the Public Interest.................................................................20

Conclusion ...............................................................................................................21

Supplemental Appendix

Second Declaration of Alexis Piscitelli ............................................... Supp.App.001

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TABLE OF AUTHORITIES

Page(s)

Cases

EME Homer City Generation, L.P. v. EPA,

795 F.3d 118 (D.C. Cir. 2015) .......................................................................... 5, 9

EPA v. EMA Homer City Generation, L.P.,

572 U.S. 489 (2014) .............................................................................................. 5

League of Women Voters of U.S. v. Newby,

838 F.3d 1 (D.C. Cir. 2016) ................................................................................ 20

Nken v. Holder,

556 U.S. 418 (2009) .............................................................................................. 3

Small Ref. Lead Phase-Down Task Force v. EPA,

705 F.2d 508 (D.C. Cir. 1983) ............................................................................ 15

Texas v. EPA,

Case No. 23-60069, ECF 269-1, 2023 U.S. App. LEXIS 13898

(5th Cir. May 1) (per curiam) ............................................................................... 9

Thunder Basin Coal Co. v. Reich,

510 U.S. 200 (1994) ............................................................................................ 19

Util. Air Regul. Grp. v. EPA,

573 U.S. 302 (2014) .............................................................................................. 7

Statutes

42 U.S.C. § 7410(c) ............................................................................................. 6, 14

42 U.S.C. § 7410(k)(6)............................................................................................... 9

42 U.S.C. § 7607(d) .....................................................................................14, 15, 16

42 U.S.C. § 7607(d)(1)(B) and (d)(3) ...................................................................... 14

42 U.S.C. § 7607(d)(2)-(5) ...................................................................................... 14

42 U.S.C. § 7607(d)(6)-(8) ...................................................................................... 14

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Other Authorities

40 CFR 42.1235(b)(1)(ii)(A)(1)-(7)......................................................................... 13

40 CFR 52.43 ....................................................................................................... 1, 21

40 CFR 52.43(d)(2) .................................................................................................. 15

40 CFR 52.45 ....................................................................................................... 1, 21

70 Fed. Reg. 21,147 (May 25, 2005) ......................................................................... 9

75 Fed. Reg. 42,210 (Oct. 1, 2010)............................................................................ 9

87 Fed. Reg. 20,036 (April 6, 2022) ........................................................................ 17

88 Fed. Reg. 36,654 (June 5, 2023) .............................................................1, 4, 5, 15

88 Fed. Reg. 49,295 (July 31, 2023) .......................................................................... 7

88 Fed. Reg. 67,102 (Sept. 29, 2023) ........................................................................ 7

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TO THE HONORABLE JOHN G. ROBERTS, JR., CHIEF JUSTICE OF

THE SUPREME COURT OF THE UNITED STATES AND CIRCUIT

JUSTICE FOR THE DISTRICT OF COLUMBIA CIRCUIT:

Applicant United States Steel Corporation (“U. S. Steel”) respectfully

submits this reply in support of its application for stay of the United States

Environmental Protection Agency’s (“EPA’s”) final rule: Federal “Good Neighbor

Plan” for the 2015 Ozone National Ambient Air Quality Standards, 88 Fed. Reg.

36,654, App.1 (June 5, 2023) (“Plan”) as it applies to reheat furnaces (40 CFR

52.43) and boilers at iron and steel mills (40 CFR 52.45).

RELATED CASES

Three other applications for stay of the Plan are pending before the Court.

See Ohio, et al. v. EPA, Case No. 23A349, App.291 (“Ohio Application”); Kinder

Morgan, Inc., et al. v. EPA, Case No. 23A350, App.327 (“Kinder Morgan

Application”); American Forest & Paper Assoc., et al. v. EPA, Case No. 23A351,

App.366 (“AF&P Application”).1 Responses to these applications were filed on

October 30, 2023. Replies were filed November 1, 2023. U. S. Steel continues to

support these applicants, including the arguments raised in the See Reply, Ohio, et

al. v. EPA, et al., Case No. 23A349 (Nov. 1, 2023) (“Ohio Reply”); Reply, Kinder

Morgan, Inc., et al. v. EPA, et al., Case No. 23A350 (Nov. 1, 2023) (“Kinder

1

Unless otherwise noted, citations to the Appendix are to the Appendix to U. S.

Steel’s Application for Stay.

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Morgan Reply”); Reply, American Forest & Paper Assoc., et al. v. EPA, et al.,

Case No. 23A351 (Nov. 1, 2023) (“AF&P Reply”), and writes separately to

address points specific to the iron and steel requirements in the Plan.

INTRODUCTION

The responses underscore why a stay is justified here. On the merits, they

point to no justification for sustaining a federal implementation plan (“Plan”) after

half of its factual basis is invalidated. Nor do they provide any justification for

continuing to include iron and steel in the Plan when the majority of the data on

which that decision was based is also proven wrong. Nor does any respondent

offer a legal justification for EPA’s reheat furnace and boiler requirements for the

iron and steel industry, which violate black letter requirements of the Clean Air

Act and have no basis in the proposed rule. These infirmities, combined with the

many others that have been raised by applicants already, demonstrate that the Plan

is likely to be vacated and, if not, subject to certiorari review.

Despite the Plan’s infirmities, U. S. Steel must incur substantial costs now to

prepare for compliance and commit to actions that cannot be revoked or remedied

in the event of a favorable ruling. These include not just spending millions on

unnecessary testing and engineering, but shutting down necessary equipment to

perform modifications for this testing and obtaining permits that will impose their

own obligations on U. S. Steel. These costs and burdens are not just unnecessary,

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they are also not justified by any countervailing public benefit. The only value any

respondent has tried to place on continued enforcement of the Plan is emission

reduction, which for iron and steel will not occur for years even under the Plan’s

own terms.

The entire Plan is likely to be vacated, but the equities in favor of stay of the

iron and steel regulations in the Plan are particularly stark. Therefore, U. S. Steel

respectfully requests that the Court stay the iron and steel requirements in EPA’s

Plan pending judicial review.

STANDARD OF REVIEW

While the standards for stay and injunction are related, respondents err when

they attempt to transform U. S. Steel’s application for stay into one for injunction.

See, e.g., EPA Response at 14. In Nken v. Holder, the Court rejected this same

contention and reaffirmed the distinction between an injunction and a stay. 556

U.S. 418, 428 (2009) (quotations omitted). As the Court’s opinion makes clear, a

stay remains “part of [the Court’s] traditional equipment for the administration of

justice” and not subject to the heightened standard for issuance of an injunction.

Id. at 421.

STATEMENT

I.

Respondents Cannot Defend a Plan Built on Plain Error.

Respondents underplay the significance the Circuit Court stays of EPAs

disapproval of 12 state implementation plans (the “SIP Disapprovals”). The stays

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not only “undermine” the Plan by showing that it will not accomplish what EPA

intended, EPA Response at 17, they remove the factual basis for EPA’s entire

determination of significant contribution for all States, including the 11 still subject

to the Plan.

As EPA itself explains, the Plan uses an “analytical framework” that bases

emission reductions on “representative cost thresholds.” Response at 6-7. These

representative cost thresholds, in turn, are determined “for the covered region.” 88

Fed. Reg. at 36,660; see also id. at 36,676 (the Plan “identifies a uniform level of

emissions reduction that the covered sources in the linked upwind states can

achieve that cost-effectively delivers improvement in air quality at downwind

receptors on a regional scale”) (emphasis added). Specifically, EPA determined

what emission reductions would be required from each industry by estimating the

total emission reductions and total costs of each control strategy applied to all of

the “emissions units estimated to be captured by the applicability criteria.” 88 Fed.

Reg. at 36,738. Removing 12 States’ worth of data necessarily alters that

calculus.2 This interconnectedness, where the costs and emissions reductions

sources in one state can achieve affects the limit that will be imposed in other

states, was intentional, and is at the heart of EPA’s argument that its “uniform”

2

The one exception to this is Nevada, which, as EPA notes, had no non-EGU

sources that met the applicability criteria. 88 Fed. Reg. at 36,739, n.233.

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approach is equitable. See EPA v. EMA Homer City Generation, L.P., 572 U.S.

489, 501-502 (2014). EPA was of course not required to define significant

contribution in this way, but having done so, it cannot avoid the consequences of

its choice.

Perhaps recognizing the flaws in the Plan, the Respondent States try to recast

EPA’s assertions of the “vital” necessity of uniform control stringency across all

upwind States as a mere “observation” of the Court’s conclusion in EME Homer

that EPA “may” adopt such an approach. State Response at 19-20. But EPA’s

words speak for themselves. While EPA cites the Court’s opinion in EME Homer,

there is no question that EPA is asserting the vital necessity of applying the Plan

“across all jurisdictions” that are “[w]ithin the broad upwind region covered by this

rule.” 88 Fed. Reg. at 36,691. This is because, as discussed above, the EPA chose

to apply “a uniform level of control stringency” based on the assumed regulation of

all these jurisdictions. Id. The fact that the cost thresholds EPA applies to the

remaining 11 States are still “uniform” is no justification for applying the wrong

thresholds. Nor does uniform application to only 11 States address the free rider

problem, which the States themselves concede the current partial Plan allows to

“inequitably continue.” State Response at 20.

This issue is also not procedurally barred. While EPA asserts it could not

have been raised in public comments because the SIP Disapproval stays “had not

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yet occurred,” EPA Response at 18, the legal infirmities in EPA’s SIP

Disapprovals were well known before seven Circuit Courts issued stays. U. S.

Steel expressly raised in its comments that EPA did not have the authority to

mandate emission limits because States had submitted adequate SIPs. USS FIP

Comments at 111, App.528. Others raised similar objections during public

comment. See Ohio Reply at 8-10, AF&P Reply at 10-11. That seven Circuit

Courts agreed that petitioners are likely to prevail on the merits of challenges to the

SIP Disapprovals confirms the accuracy of these earlier public comments, but did

not preclude EPA from addressing the issue before promulgating the final Plan.

While the SIP Disapproval stays were not necessary to raise the deficiency

in EPA’s statutory authority to promulgate the Plan, respondents are also wrong

when they assert that the “post-promulgation” SIP Disapprovals have no bearing

on stay of the Plan at all. See, e.g., EPA Response at 18. First, as others have

pointed out, not all stays were “post-promulgation.” See Ohio Reply at 10-11,

Kinder Morgan Reply at 6, AF&P Reply at 4-5. Second, while, as discussed

above, the SIP Disapprovals were invalid even before seven Circuit Courts stayed

them for 12 States, the Circuit Court’s orders do not just indicate likelihood of

success of the merits, they bar EPA’s SIP Disapprovals for 12 States from taking

effect. This itself impacts EPA’s statutory authority to promulgate the Plan for

these States. 42 U.S.C. § 7410(c). EPA has itself recognized it lacks authority to

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apply the Plan in 12 States and issued its own stays of the Plan. 88 Fed. Reg.

49,295 (July 31, 2023); 88 Fed. Reg. 67,102 (Sept. 29, 2023). What EPA has

refused to do is recognize that the lack of authority to promulgate a federal plan for

over half the States it used to justify the emission controls in the Plan

fundamentally alters the entire Plan and renders what is left arbitrary and

capricious.

Finally, while respondents try to defend as “rational” (if no longer equitable)

the remnants of the Plan by reference to their other response briefs, see, e.g., EPA

Response at 18, this issue is amply addressed in U. S. Steel’s Application for Stay

and the replies of the other applicants. See Reply, Ohio, et al. v. EPA, et al., Case

No. 23A349, at 3-8, 11-15 (“Ohio Reply”); Reply, Kinder Morgan, Inc., et al. v.

EPA, et al., Case No. 23A350, at 5-7 (“Kinder Morgan Reply”); Reply, American

Forest & Paper Assoc., et al. v. EPA, et al., Case No. 23A351, at 4-9 (“AF&P

Reply”).

EPA cannot sustain the Plan after over half the factual predicate for it is

shown to be false. Having already recognized that it lacks authority to promulgate

the Plan for 12 States, it cannot justify continuing to apply the rest.

II.

Respondents Offer No Defense to the Plan’s Violation of Cooperative

Federalism.

While EPA is required to interpret the Clean Air Act with a “view to [its]

place in the overall statutory scheme,” Util. Air Regul. Grp. v. EPA, 573 U.S. 302,

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322 (2014) (quotation omitted), no respondent attempts to defend the Plan as

actually advancing cooperative federalism. Instead, they try to defend EPA’s

hostile takeover of implementation plan authority by arguing individual provisions

and decisions, taken out of context, do not prohibit EPA’s actions. EPA asserts,

for example, that the Clean Air Act does not require it to wait 2 years after

disapproval of a state plan to promulgate a federal plan, and that it does not require

EPA to consider its own years-long delay in deciding when to issue a federal plan.

Response at 19. But nothing in these provisions sanctions EPA attempting to

thwart legitimate good faith efforts by the States to retain their primary role in

developing state implementation plans. See Ohio Reply at 4-8. EPA asserts that

the Clean Air Act authorizes it to shorten state plan submission deadlines after a

finding that it is necessary to do so. Response at 20. But EPA did not do so here.

Here, EPA waited years to address state plans that had been timely submitted, used

new modeling to move the goalposts on the States to facially justify invalid SIP

Disapprovals, then rushed to promulgate a federal plan before any review of its SIP

Disapprovals could occur. See Ohio Reply at 4-8; see also App.653-57 (discussing

Minnesota’s SIP submission as an example of how EPA moved the goalposts on

the States after they submitted their plans).

The State Respondents further argue the Clean Air Act does not require EPA

to approve deficient state plans. State Response at 15. But that is also not what

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happened here. Here, States submitted plans that satisfied the requirements of the

Clean Air Act. EPA then waited years to approve them, during which it developed

new modeling it asserted could be used to supersede the States’ analyses. See, e.g.

Unpublished Order, Texas v. EPA, Case No. 23-60069, ECF 269-1, 2023 U.S.

App. LEXIS 13898, at *24-*25 (5th Cir. May 1) (per curiam).

The State Respondents’ references to the Cross-State Air Pollution Rule

(“CSAPR”) only underscore how far afield the Plan is from honoring the

cooperative federalism principles embodied in the Clean Air Act. There, EPA

issued new standards for ozone and particulate matter in 1997. By 2005, no State

had submitted a plan, and EPA therefore issued a finding of disapproval. 75 Fed.

Reg. 42,210, 45,341-42 (Oct. 1, 2010); see also 70 Fed. Reg. 21,147 (May 25,

2005). EPA’s 2010 proposal was hardly contemporaneous with this finding.

Further, while the final rule “rescinded approvals for 22” States, this was because

of the “unusual circumstance” presented by that case, where EPA had relied on a

rule for approval (the Clean Air Interstate Rule or “CAIR”), which the courts

subsequently invalidated, requiring EPA to invoke 42 U.S.C. § 7410(k)(6) to

correct this error in its original approvals. EME Homer City Generation, L.P. v.

EPA, 795 F.3d 118, 135, n.12 (D.C. Cir. 2015). Again, no such circumstance is

present here.

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While, as discussed below, the Plan violated black-letter statutory

requirements, EPA is obligated to do more than avoid violating express statutory

prohibitions. It must also honor the spirit and purpose of the statutes it

administers. The Plan fails in this respect.

III.

EPA Did Not Support the Regulation of Iron and Steel Mills.

At the start of its rulemaking, EPA developed a process to screen for

industries that should be subject to regulation. This was done based on the

“potentially controllable emissions” of each industry, which EPA used to identify

industries that would be the “most impactful” to regulate by affording “the most

emissions reductions.” Screening Assessment at 2, App.533.

There is no question that EPA vastly overcounted the iron and steel

emissions that were “potentially controllable” and therefore how “impactful”

regulation of the iron and steel industry would be. Respondents does not even

attempt to defend the accuracy of the Screening Assessment. Instead, EPA argues

that this threshold determination was somehow irrelevant because it was “simply

the first step EPA use to identify high-emitting industries” and was not used to

establish the final emission limitations. EPA Response at 22. But just because the

Screening Assessment was not the only step in EPA’s process does not mean it

was irrelevant, or that EPA can ignore basic errors in it. As EPA concedes, it was

“[t]he Screening Assessment [that] identified iron and steel mills as industries that

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warranted further evaluation because they [had] impacts above the applicable air

quality thresholds.” EPA Response at 22. Indeed, EPA screened out 32 of 41 nonEGU industries at this initial stage. See Screening Assessment at 25, Appendix A,

Table A-3, App.556.

EPA tries to minimize its error by asserting that iron and steel “involves

large-scale combustion.” Response at 22. But this was not the threshold EPA used

to identify industries for regulation. Many industries involve large-scale

combustion and were excluded by the Screening Assessment because their

“potentially controllable emissions” were not significantly impactful. See

Screening Assessment at 25, Appendix A, Table A-3, App.556 (eliminating one

industry with almost twice the ozone season emissions as iron and steel). And

EPA does not contend that, after eliminating the numerous emission sources that in

fact lacked “technically feasible and cost effective” control options, Response at

11, iron and steel would still exceed the Screening Assessment’s thresholds.

EPA also cites a misleading statement in its Response to Comments that the

Agency’s finding that there were no technically feasible and cost effective

emission controls for the majority of emission sources at iron and steel mills “did

not contradict its finding that the iron and steel industry is a source of significant

contribution.” EPA Response at 23 (citing RTC at 128). “Significant

contribution,” is relevant to later steps in the process, not the Screening

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Assessment, as EPA itself takes pains to point out. EPA Response at 22

(“Throughout the rulemaking, EPA repeatedly underscored that the ‘results of the

Screening Assessment should not be confused with regulatory requirements,

applicability determinations, or emissions limits.’”) (quoting RTC at 99)). The

Screening Assessment, as noted above, was based on “potentially controllable

emissions,” which EPA used to determine “the most impactful industries” based

not on their total emissions but on their ability to “make meaningful air quality

improvements at the downwind receptors at a marginal cost threshold.” Screening

Assessment at 2, App.55. These findings are clearly affected by the technical

feasibility and cost of emission controls.

This issue is also not procedurally barred. It is not clear if EPA includes this

issue in the “challenges to the lawfulness of EPA’s approach” that it incorrectly

states are procedurally barred, EPA Response at 20-21, but the adequacy of EPA’s

Screening Assessment was squarely raised in U. S. Steel’s comments. See USS

FIP Comments at 12-14, App.429-31.

Removing the emission units from the Screening Assessment for which EPA

lacked any data to claim “potentially controllable emissions” would have had a

significant impact on the outcome of the assessment. Iron and steel was already

the smallest-emitting industry included at the Screening Assessment stage, and this

was before EPA recognized that most emission sources at these facilities did not

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have potentially controllable emissions. Had EPA corrected the errors in its

Screening Assessment, rather than simply dismissing them as irrelevant, it would

likely have been unable to justify the inclusion of iron and steel. At a minimum, it

cannot justify the inclusion of iron and steel on the current record.

IV.

The Plan’s Iron and Steel Requirements Violate the Clean Air Act.

The iron and steel requirements in the Plan (covering reheat furnaces and

boilers) violate explicit requirements of the Clean Air Act. The reheat furnace

requirements have no basis in the proposed rule. The most EPA can say is that a

different test-and-set approach was proposed for a different type of emission unit

in a different industry in the proposed rule. EPA Response at 26. This does not

provide adequate notice that “EPA could adopt a similar approach for other units

with similar variability.” Id. EPA cites no authority for such a stretch of the

logical outgrowth test, and adopting it would deprive the public notice of any

meaning.

The test-and-set approach for reheat furnaces also contains material

differences from the approach proposed for metal ore mining. Most significantly,

the metal ore mining approach requires a final rulemaking to establish an

enforceable emission limit. See, e.g., 40 CFR 42.1235(b)(1)(ii)(A)(1)-(7). The

reheat furnace requirement has EPA setting emission limits in “a separate

adjudicatory process.” EPA Response at 28. This violates the explicit requirement

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that any promulgation or revision of an implementation plan by the Administrator

under 42 U.S.C. § 7410(c) be proposed and promulgated through notice in the

Federal Register. 42 U.S.C. § 7607(d)(1)(B) and (d)(3). This is not mere

paperwork. In the Clean Air Act, Congress put particular care into establishing a

rulemaking process that ensures both adequate public participation (see 42 U.S.C.

§ 7607(d)(2)-(5)) and the creation of an adequate record for judicial review (see 42

U.S.C. § 7607(d)(6)-(8)). These are necessary protections against ineffective

regulation and administrative overreach. While EPA asserts its separate process

will have “procedural protections, including deadlines for EPA to act, notice and a

requirement that EPA publicly document the basis for its decision,” EPA offers no

assurance that they will satisfy the goals of the Clean Air Act (where for example,

is the adequate record for judicial review) and in any event, EPA does not have the

authority to develop its own procedure outside 42 U.S.C. § 7607(d). The examples

EPA cites of adjudicatory procedures in various other regulations are not to the

contrary. None involve setting emission limitation outside of the Clean Air Act’s

express rulemaking process and the ability to administratively approve alternative

monitoring, recordkeeping requirements, or appeal permitting decisions is not

comparable to establishing the emission limitations that are the basis of the Plan.

EPA asserts that it is really promulgating a “40%-reduction requirement” so

it does not need to follow 42 U.S.C. § 7607(d) in merely translating the percent

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reduction into a numeric limit. EPA Response at 28. Not so. The Plan imposes a

design requirement of “at least a 40% reduction.” 88 Fed. Reg. at 36,879, 40 CFR

52.43(c). The emission limit is to be set based on a work plan that can justify a

higher or lower limit. Id. at 40 CFR 52.43(d)(2) and (3). So the “adjudicatory

process” will involve far more than mere translation. Further, a percent reduction

requirement only has meaning in comparison to a baseline. And the Plan does not

establish the baseline either.

The boiler and reheat requirements in the Plan are also notable for being

creations completely of the final rulemaking, having no footing in the proposal that

was provided for public comment. EPA asserts that it proposed two different tests

for applicability, “production capacity” or “an emissions threshold.” EPA

Response at 26. But neither of these is design capacity, which is the problem with

the adequacy of EPA’s notice. Nor do respondents contest that these regulations

capture units that burn process gases, like blast furnace gas and coke oven gas, that

introduce technical problems EPA has not adequately addressed in the Plan.

EPA did not afford notice and opportunity for comment on the most

fundamental elements of its reheat furnace and boiler regulations for iron and steel

mills. This was arbitrary and capricious and violated the procedural requirements

of the Clean Air Act. Small Ref. Lead Phase-Down Task Force v. EPA,

705 F.2d 508, 543 (D.C. Cir. 1983); 42 U.S.C. §7607(d). It then promulgated a

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procedure for reheat furnaces that allows the Agency to circumvent explicit

statutory requirements designed to ensure adequate public participation and

judicial review of its actions. This was both arbitrary and capricious and in excess

of EPA’s statutory authority.

V.

This Case Involves Certiorari-Worthy Issues

While the grounds for certiorari will naturally depend on the outcome of the

case before the D.C. Circuit, EPA is wrong to assert that the issues presented are

only “case-specific” or “industry-specific” or even “highly complex and

technical.” Response at 29. As U. S. Steel and others have amply briefed, this

case presents a significant and substantial overreach of the federal EPA into the

province and primary authority of the States to regulate air pollution that crosses

state borders. See Ohio Reply at 3-15, Kinder Morgal Reply at 5-7, AF&P Reply

at 4-9. This goes to the very heart of the Clean Air Act and to whether the

cooperative federalism structure on which was based will be a bedrock principle on

which EPA must build its regulations or whether it is merely a notion, with no

substantive effect.

EPA’s creative circumvention of the notice and comment rulemaking

requirements of the Clean Air Act by using a test-and-set approach may here be

targeted to iron and steel, but has wide-ranging relevance, not just to the scope and

meaning of the rulemaking requirements of the Clean Air Act, but to the

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Administrative Procedure Act as well, on which the provisions of 42 U.S.C. §

7607(d) were largely based.

These issues are appropriate for Supreme Court review, and adequately

presented below such that, in the event of an adverse decision, there is a likelihood

that at least four Members of the Court would grant review.

VI.

Absent a Stay, U. S. Steel Will Suffer Imminent Irreparable Harm.

EPA is wrong when it asserts U. S. Steel relies “solely on its alleged

compliance costs” for irreparable injury. While these are sufficient, they are not

the only harm. See USS Application at 23-24 (discussing the need to modify

facilities to install testing equipment, shut down production, collect testing data,

and apply for new permits).

Further, while EPA and the Public Interest Respondents (“PIR”) dispute the

amount of costs that must be incurred during judicial review, there is no dispute

that significant steps must take place during judicial review, and that these steps

involve have both irreparable costs and commitments to regulatory compliance

obligations. EPA itself warned owners and operators that they should “begin

engineering and financial planning” as of the date of the proposed rule to be able

to meet EPA’s implementation timetable. 87 Fed. Reg. at 20,036; see also PIR

Response at 2 (action by iron and steel facilities is “urgently needed” for them to

be able to meet the emission limitations that “do not phase in for several years”).

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As EPA states, for example, U. S. Steel’s “work plan,” which is to provide

the data, modeling, engineering, and plans for establishing emission limitations for

rehear furnaces, is “due August 5, 2024.” EPA Response at 30. No one disputes

that this extensive work must therefore be started this year, as it has. PIR’s own

declarant recognizes that permitting and engineering for the emissions sampling

infrastructure required by the Plan must occur now, and indeed he argues for even

earlier commencement than U. S. Steel’s own schedule. Stroudt Decl. at ¶ 12.

U. S. Steel has provided a detailed project-level assessment of the steps and

costs that will need to be incurred. Piscitelli Decl. at ¶¶3, 11-20, App.715, 717720. The PIR’s declarant, who has not visited U. S. Steel’s facility, challenges the

details of that assessment based on comparisons to when electric generating units

did more than two decades ago in response to another rulemaking. Retrofitting a

reheat furnace located in the middle of a building, however, involves very different

considerations from a stand-alone stack at an EGU. See Second Piscitelli Decl. at

¶8, Supp.App.002. While, for example, PIR’s Declarant asserts initial engineering

costs should not be expensive, this was based on assumption about testing of EGU

stacks, which are much simpler to address than reheat furnaces located in the

middle of an operating steel facility. See id. U. S. Steel has already had to commit

over $1 million to the engineering and design for one facility alone. Id. at ¶13,

Supp.App.004.

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There also remains a high likelihood of labor shortages that will further

extend the deadlines U. S. Steel predicted. PIR’s own Declarant cites to a labor

buildup for EGUs that took years to develop, well past the time the Plan affords for

iron and steel. See Stroudt Decl. at ¶18. This example also involved EGUs, which

required general worker and boilermaker availability. For the specialized labor

required to work on reheat furnaces, the labor shortage is anticipated to be far more

significant and harder to address through a buildup in the supply of labor. See

Second Piscitelli Decl. at ¶10, Supp.App.003.

Further, no respondent asserts that the costs, shutdowns, and new permitting

obligations that will be required during judicial review are reversible or that their

costs will be recoverable, when the Plan is vacated.

U. S. Steel faces immediate and certain injuries from the Plan while judicial

review is pending in the form of compliance with an illegal rule, expenditure of

millions in costs, diversion of specialized resources from other projects, and the

imposition of permitting obligations that would not otherwise be required.

Piscitelli Decl. at ¶¶6-10, App.716-17; Second Piscitelli Decl. at ¶¶7-14,

Supp.App.002-005. These injuries are irreparable and justify a stay pending

judicial review. See Thunder Basin Coal Co. v. Reich, 510 U.S. 200, 220-21

(1994) (“complying with a regulation later held invalid almost always produces the

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irreparable harm of nonrecoverable compliance costs”) (Scalia, J., concurring in

part and in the judgment).

VII.

A Stay Is in the Public Interest.

Respondents try to have it both ways, arguing first that there is no

irreparable injury because U. S. Steel has ample time to implement controls after

judicial review, but then arguing that a stay that alleviates U. S. Steel of the need to

implement controls during judicial review will necessarily delay implementation

beyond the May 2026 deadline. See, e.g. EPA Response at 31. Respondents have

it backwards. While U. S. Steel must prepare for compliance now, there are no

emission reductions required by the Plan from iron and steel sources until May

2026 at the earliest, “with the potential for compliance extensions of up to three

years.” EPA Response at 29-30.

Any further extensions to address delays arising from a partial vacatur or

remand without vacatur, or delays arising from the stays of the SIP disapproval

actions that have already been granted, or even a stay of this Plan issued by the

Court, are academic at this time, and would be addressed in the future regulatory

action creating such extensions.

Finally, EPA’s assertion that there is public interest in requiring “the use of

emissions-control mechanisms” that EPA lacks the legal authority to impose is

unsupported and incorrect. Response at 33. The public interest lies in seeing the

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laws properly implemented and administered. League of Women Voters of U.S. v.

Newby, 838 F.3d 1, 12 (D.C. Cir. 2016).

The Plan seeks to impose immediate and irreversible burdens through a

clearly illegal rule. The result will be needless public expenditures on a Plan likely

to be vacated. On the other hand, denying a stay will create an incentive directly

opposed to the public interest by encouraging EPA and other agencies to

promulgate rules, not in the hopes of withstanding judicial scrutiny, but in the hope

of inflicting enough irreversible commitments while judicial review is pending to

achieve their policy goals regardless of the outcome.

A stay is necessary to prevent the waste of private and public resources, and

to avoid the implementation of a clearly unlawful rule pending judicial review.

CONCLUSION

EPA’s Plan is likely to be vacated, in particular as applied to iron and steel

facilities. Yet U. S. Steel is required to commit scarce specialized resources and

expend millions and commit to permitting obligations while judicial review is

pending, none of which will be reparable after a decision is made. A stay will

preserve the status quo and avoid these injuries without any adverse environmental

impact. Under these circumstances, a stay of the Plan, and in particular the iron

and steel requirements, is justified. For the foregoing reasons, Applicant United

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States Steel Corporation respectfully requests that the Court stay the Plan for

reheat furnaces (40 CFR 52.43) and boilers at iron and steel mills (40 CFR 52.45).

November 3, 2023

Respectfully Submitted,

/s/John D. Lazzaretti

John D. Lazzaretti

Counsel of Record

Squire Patton Boggs (US) LLP

1000 Key Tower

127 Public Square

Cleveland, OH

44114

216.479.8500

john.lazzaretti@squirepb.com

Counsel for Applicant United States

Steel Corporation

- 22 -

Case No. 23A384

In the Supreme Court of the United States

UNITED STATES STEEL CORPORATION,

Applicant,

v.

ENVIRONMENTAL PROTECTION AGENCY AND MICHAEL S. REGAN, ADMINISTRATOR,

Respondents.

On Application for Stay to the Honorable John G. Roberts, Jr., Chief

Justice and Circuit Justice for the District of Columbia Circuit

SUPPLEMENTAL APPENDIX TO EMERGENCY

APPLICATION FOR STAY OF FINAL AGENCY ACTION

PENDING JUDICIAL REVIEW

November 3, 2023

John D. Lazzaretti

Counsel of Record

Squire Patton Boggs (US) LLP

1000 Key Tower

127 Public Square

Cleveland, OH 44114

216.479.8350

john.lazzaretti@squirepb.com

Counsel for United States Steel

Corporation

Table of Contents

Second Declaration of Alexis Piscitelli (Nov. 3, 2023)....................... Supp.App.001

Supp.App.001

Supp.App.002

Supp.App.003

Supp.App.004

Supp.App.005