because they allow the agency to determine that a chemical is safe while ignoring many of the ways in which people are exposed to that chemical e p a s unlawful narrowing of the prioritization and risk evaluation process sees violates congress's express mandate to protect vulnerable groups like children workers and the elderly from harmful chemical exposures congress recognize that these groups are often harmed by even low levels of exposure to chemicals and they're often exposed to chemical is through many sources for example even the smallest amount of lead is harmful to kids and kids are exposed to lead through many different sources including drinking water contaminated dust and lead paint council if i might suggest you received the order indicating that we have some interest in the question of jurisdiction in this case and i would appreciate your thoughts on that do do your clients have standing and is this retardant known as each b c d and he is using the on lawful procedures in the framework rules more could you challenge those particular chemical evaluations though and challenge the application of these rules in congress anticipated and wanted immediate review of these frame work rules and we have shown that the rules present a material risk of harm to the concrete interests that congress intended to protect by establishing these requirements in tosca and compelling a to promulgated rules that comply with those requirements i'm interested in whether the rules as such constitute the threat of harm or whether it's the chemical companies or the chemicals themselves the create the risk well i think the rules present a material risk of harm to our client's concrete interests because congress established specific procedural requirements and those requirements are for the agency to evaluate chemicals through a multi step process and then implement regulations to address on reasonable risk for those chemicals that entire regulatory regime is promulgated for the purpose of protecting public health from harmful chemical exposures and so we have shown a direct connection between e p a s unlawful implementation of the statue and our concrete interests in avoiding harmful chemical exposures of zion or stand the process here the actual designation of categories and the specific regulations with respect to specific chemicals are really far down the line years out well there there are multiple stages in the causal chain but that does not again defeat that we have standing because we have connected each of those links through reasonable probability it is certain that e p a will conduct risk evaluations of specific chemicals congress require them to and those evaluations must follow specific procedural requirements we have shown that our members are exposed specifically to chemicals that e p a is already evaluating and that  exposures are from the kinds of circumstances that e p a is ignoring in its evaluation i think the specificity valuation is a good example of this our petitioner united steelworkers has members that are exposed to a specialist through their work through the kind of so called legacy uses that e p a is completely ignoring we have submitted expert evidence that these kinds of exposures are harmful and so it's reasonably probable that if e p a fails to consider those uses it's evaluations and it follow and e p a s framework rules contravene those procedures or deny what congress required so and it's at this framework level but that doesn't defeat the fact that it is in essence a procedural injury  requirements that govern the process that e p a is supposed to use when it evaluates each chemical but usually in these procedural standing cases there's a procedure that is designed to immediately protect the people who have the interest and here it's like two steps right so it's a little bit confusing whether we're in the same posture as the cases that talk about procedural standing i think it is a little bit different than the direct application of you know failure to do notice and comment but it's almost as if the agency issued a rule that said we're never going to do notice and comment or we're only going to do you know the climate that's i'm struggling with and i think maybe you started to talk about the legacy issue which i do wonder whether the legacy issue is slightly different than some of the other issues in regard to the question i'm about to ask which is some of these rules seem to be a little bit vague so we don't really know what the agency is going to do it seems like maybe the legacy one is different and so for the ones that may be big we may learn more in the particular application of them in the legacy ones though i'm not sure there ever will be a particular application because if they just stop once they determine something is a legacy chemical we may never get an evaluation of that chemical and i understand that correctly so there's two different steps in the process so the prioritization stage yes e p a could exclude consideration of these so called legacy uses and then determine that that chemical is not really warrant doesn't warrant a risk evaluation and it would that designate that chemical is what's called low priority and that is that what they would do is that's what i'm wondering so if they think something is a legacy would they call it a low priority or would they just not call it anything because they think it's out of this process altogether so i think my understanding of what you're saying is that these legacy uses do not fall within the statutory definition of conditions of use and therefore the agency is saying we don't have to look at those we can ignore them when they're when we're evaluating the question that congress us does a chemical say especially pose an unreasonable risk to public health including vulnerable populations like workers but so would they say that a legacy chemical was a low priority chemical or would they not call it that  think the particular uses of the chemical e p a saying the idea of what e p a labels as legacy activities is really divided into three subcategories so there's something called associated disposal which is actually the future disposal of a use and then what you pay called legacy disposal which is chemicals that are substances that have already been placed in a waste facility so there are different uses that e p a puts that legacy label on but the chemical itself is not being labeled legacy or not legacy to my knowledge so there would be a chance to review the categorization of that chemical later yes and i think there is judicial review at various stages in this process of s implementing decisions but that does not defeat standing here to challenge these rules on their face especially when congress specifically authorized immediate review and that's through section two hundred and sixty one so what do we do if when we read the framework regulations we can't really tell what they mean well i think we can tell what e p a has authorized itself to do so it has answered some legal statutory interpretation questions and there's no more need for factual development to except if what they're saying is we may do this in till we know whether they will how do we know that you and your clients are injured well they have already done the will though we don't have that in our record right like what they're actually doing with these particular chemicals  whether they're actually ignoring things is not what we have before us now so that's why i don't understand how we reviewed this it seems like maybe we need to wait to see are they actually ignoring all these things and then deal with it then so the court can consider extra record evidence for purposes of jurisdiction and so it can consider for example the scoping documents that we submitted as part of our motion appendix and that specific evidence shows that e p a is already exercising its on its unlawful assertion of authority under these rules and so it is clear that it is already done the will it's not just may it's will they have started exercising this is the already in the legacy context there's no question they're doing that for every risk evaluation and every priority is prioritization decision because they've already made a finding that these kinds of activities don't count as conditions of use so for that question for that issue there's absolutely no question that that's what they're going to do every single time for the other issues again e p a has said this statute authorizes us for example to ignore activities that even activities that e p a says yes these fall within the can do conditions of use definition e p a says we have a to ignore them and it's already started doing that and we've submitted evidence evidence of that for example in the fourteen dollars dioxin risk evaluation and that's it and a motion appendix one hundred and seventy where they said we're going to ignore this condition of use so we have submitted substantial evidence that they are doing this and the legal question of whether they have authority to do it is squarely before the court and congress anticipated that this court would have jurisdiction to review those legal questions  even if e p a hasn't decided specifically which uses name may or may not ignore in any given risk evaluation the threat statutory question of whether they have authority to ignore any uses is been has been finally determined by the agency the agency says yes we have authority to do that petitioners position is that congress said no you do not have authority to do that and that legal question is squarely before the court so the thing that's troubling is we don't have like normal briefing on these applications that you say i mean you may be absolutely right that there are ignoring things in these reviews that are already happening but they haven't really responded to that i mean we as a court i'm not quite sure how we're supposed to evaluate whether you're right about that if it would be helpful to have supplemental briefing for their briefing on the standing issues in this case petitioners would be happy to submit that briefing after argument if that would be helpful to the court i think there is evidence in the record and i have a list of sites if that would be helpful now for each of the issues that shows that there is a reasonable probability that or a material risk of harm to our concrete interests and that is sufficient to show standing under this court's precedents in the spokeo case and in the long line of other about are those those sites going to be about these reviews of particular chemicals the things that are in the ten dicks there about both things so they're about ways in which e p a is already implementing these on lawful procedures and there's evidence about the connection between north things if it doesn't do a comprehensive risk evaluation that means that these does that its decision making will be under inclusive and under protective there's evidence that our petitioners are being exposed to various chemicals that are currently under evaluation so we have submitted robust evidence showing that we have met that concrete interest and have shown an injury in fact why wouldn't it be more appropriate though to challenge the e p a s exercise of its discretion as applied to an individual risk of alleyways that would cause significant undue hardship to petitioners by delaying for years potential health protections to which they are entitled under the statute it do on lawful risk evaluations then challenge them then force the agency to go back to the drawing board and redo all of them because they do not comply with the statutory requirements for how e p a is supposed to conduct these risk evaluations and that's because the framework rules permit the agency to do all kinds of narrowing and slicing and dicing that is not permitted by the statute and those questions are ripe for review now because petitioners have shown the constitutional minimum to for standing in this case and especially relevant is the fact that congress authorized immediate review of these rules counsel what is your interpretation of the corpus resource center case our case is different from that case and at least two important  ways st in that case there was not the express authorization from congress for immediate review which is present here and nd in that case the court found that there was no direct evidence of how those rules would affect the interests of any of the petitioners who were lawyer organizations but there was no evidence about how any particular client would have their rights changed and it was uncertain whether any state would apply for this fast track certification here none of those uncertainties or speculative outcomes are present it is certain that he is going to do these risk evaluations it is going to follow its on lawful rules we do have petitioners that are directly harmed by exposure to chemicals that are currently under evaluation specifically from the kinds of uses that u p a is ignoring so there is much stronger direct evidence of the material risk to our concrete interest questions are legal whether there's hardship to the parties that test is discretionary in this circuit and the court has found and this is in the pio d tribe case that when petitioners meet the constitutional minimum requirements for standing that injury in fact and especially where congress has authorized review that it's appropriate for the court to exercise jurisdiction right then now without applying the further prudential rightness tests to should meet that  with the case law that says that when congress authorizes immediate review that gets rid of prudential standing on the one hand and then spokeo on the other hand which seems to now be saying that it doesn't always matter whether congress has authorized  judicial review process it seems like those cases were earlier than spokeo and i'm wondering to what extent they're still good so i think the spokeo helped to define or clarify what it means to meet the constitutional injury in fact requirements and specifically what it means to have a concrete injury and but once a position or shows that you have that concrete injury in fact then that is sufficient for article three standing so i think that would still that can be jived with those other cases that say once you have the constitutional minimum for standing then the court can move forward so i think they're consistent with each other part of what heaviest corpus resource center said was there isn't really an injury yet because these are just regulations to guide the agency which is analogous to some extent to what we have here there are some parallels and these are procedural rules but again we have met the test from this court in the spokeo remain case we have alleged statutory violations these rules violate the statute and we've connected those statutory violations to a material risk of harm to our concrete to our concrete interests in avoiding exposure to harmful chemicals i think the connection and the evidence is much stronger than what the court found in the further questions on the jurisdiction i'd like to turn to the merits of e p a s exclusion of legacy activities so just to take a step back for this issue e p a saying there are certain kinds of activities that don't fall within the statutory conditions of use definition and therefore we can ignore them we don't have to look at them that is contrary to the plain text of that definition and it also makes very little sense and will result in e p a failing to look at significant sources of exposure from ongoing uses and ongoing disposals of chemicals e p a has effectively turned the or in the statutory definition into an and conditions of use means the intended known and reasonably forseen manufacture distribution of processing use or disposal of the chemical use or disposal count on their own it doesn't they don't also require the chemical to have to be manufactured be racing by reasonably for seen to be manufactured process or distributed incomers are we talking about in for tural yes so the activities that e p a is excluding are known and reasonably foreseen uses and disposals of the chemical so for example lead pipes are known to be used to bring water to homes and it's reasonably forseen that they'll continue bring water into homes with yes but these regulations when they are eventually promulgated will speak to the installation of lead pipe in the future presumably it could never order existing lead pipe and probably that same rule would apply to a specialist would it not so i think that's not quite correct e p a actually has a parag a ray of tools that it can use to address in situ uses of chemicals chemicals in place and associated disposal for example that is future disposal of chemicals so it's taking a specialist debris from a building and transporting it somewhere to dispose of it that is future commercial disposal and under section twenty six  and five a to regulate in situ uses of for example again as best as in buildings and it's issued regulations imposing all kinds of requirements to try to reduce people's risks from those uses for example requiring notices or when workers work with the material wearing protective equipment are using certain kinds of processes to reduce risks so it's just not accurate to suggest that e p a doesn't have the regulatory tools to address these like it's uses could you speak to the provision that talks about aggregate or sentinel exposures and what you think it means yes so the question of aggregate versus sentinel is about a it's a technical methodology for how to measure how much of the chemical is getting into the body and there's different ways that e p a can do that and that's a separate issue from the st question of what are the circumstances that e p a is going to consider that is the conditions of use question that's before the court but i think in addition to saying i know you have an argument they have to consider all the conditions of use but then i think you also have an argument that the risks of to be aggregated and on the question of whether all the risks have to be aggregated although that seems intuitive i don't know what to do about th exposure issue so what we're saying is that e p a has to consider all uses in combination so and there's a way in which the term aggregate as understood colloquially yes that e p a has to integrate information about the conditions of use and hazards to figure out the contribution from any of the uses to the total risk that is different from what's called an aggregate exposure assessment which is a term of art and it has a very specific meaning again for how e p a is measuring how much of the stuff is getting into the body and the regulations defining aggregate exposure it talks about different combining all of the routes and sources of exposure so isn't that what you want them to do i mean is that what you're saying is require this aggregate exposure approach no we are not suggesting that we are not suggesting that aggregate exposure assessment is required in every instance e p a can consider all conditions of use using the aggregate method or using the sentinel method there are two different questions and but once they do that for each condition of use you want them to then aggregate them all what we want them to consider they use is a combination so a quick example let's say there's a chemical that has two conditions of use occupational exposures making a children's toy and then the children's toy itself e p a has to look at both of those conditions of use and then for example it might be appropriate when thinking about the exposure to the worker to use what's called the sentinel approach which is the worst case scenario let's assume the worker is not wearing any protective equipment and they're working twenty four hours a day seven days a week and let's take the most conservative assumption and that's how we're going to measure how much of the chemical the worker it is true that u p a also has to consider the children's toy and the potential risks from that toy but again it can do that consistent with these technical exposure methods so they're different questions but i thought you were arguing maybe i misunderstood i mean to say the worker is a mom and goes home and plays with the toy with the kid don't aren't you saying that they have to add those together yes they have to consider the contribution to the total risk and i think that is to my understanding consistent with using either some merit spence i'm here on behalf of e p a with me at counsel's table is laurel celeste from e p a s office of general counsel and then also joining us our counsel for entertainers you are sort of breakdown the problems with petitioners claims into two different categories with most of their claims petitioners or are really challenging what the rules do or the regulations themselves they're asking the court to vacate hypotheticals and this is this is why we argue in the briefs that there's a standing problem with the scope claim after reviewing the hey vs corpus resources case we also think the standing problem extends to the risk iterative risk determination claim and the is that that's not necessarily enough to confer standing all of the regular standing requirements still apply so yes your honor that provision is the provision that petitioners brought their suit under but you're arguing that it's limited it doesn't solve the problem that's correct it doesn't solve the problem the way i read spokeo a judicial review provision doesn't alone solve the problem you still have the standard test for standing you still have to have an injury that's  concrete traceable to the rule in question so just going back because you used some terminology and i'm not sure i remember how exactly it gets to the provision so as i understood it in your brief you only argued that the preamble issues were not ripe but now what things are you saying there is a lack of jurisdiction over rights so you just break them down there's claim one which is the definitional interpretation of conditions of y exclude things that are conditions of use from a scope document that one it's hypothetical in this rule and i'm happy to go into that more detail claim three is the question about  a issue or risk determination in multiple documents that's what i'm referring to as iterative risk determinations and then there are a couple of information gathering claims left those are the ones about information that they plan to have before it starts the whole process and so when when we look at those together we say ok what so it sounds like you're saying two dollars and three dollars what conditions can be excluded and the iterative now you're saying those lectures diction that's correct what about the information gathering those as well yes you think they are now not even though you wanted them to be reminded you're no longer asking so there's two categories of us those claims there's the ones we requested to and there's two remaining that are at issue those were not contesting standing on those we still request remain and so are the ones you requested remain you still want remit yes and then the two that are left those we think that it is really a challenge to a hypothetical scenario of e p a you know perhaps in some future rule making making an arbitrary and capricious decision or a decision that's otherwise contrary to statute there's nothing in this rule that really does what petitioners are worried about so the injury is very difficult to talk to something that's coming from these rules could you speak to the legacy issue then because that i guess the st threshold question at least for me is is it true that that every chemical will be categorized or are some going to be out of the process entirely from your perspective so there's two answers to that the st answer is what  he has done is said that it's going to focus its initial efforts on assessing and regulating the chemicals that are still on the market for particular uses so so if you have chemical a and for example is especially presently on the market or not it is it is yet another words there are companies manufacturing a specialist today yes and that would be subject to eventu regulation under this provision yes thank you in so you might have chemical a where it's currently on the market for uses in jet engines but it's off the market for uses in furniture right so what do you pay would do is say well the use for which it's on the market that's what we're assessing because that's the thing we can most quickly assess and regulate and and that's where we can get the most bang for our buck on these initial rules the nd part of the question your honor i think your question was a little bit about you know what they always do this if your interpretation here is under chevron step two it was an exercise of discretion i could see them you know going back in taking another look particularly after they get all this low hanging fruit but this rule is about getting to that low hanging fruit where can we do the most good with these rules you know the whole bit how can we tell that though i mean it sounds like you're saying the legacy rule is only about the st group of chemicals then we'll do my do something different the nd group do we have any evidence of that but no it is a matter of the way the law works under chevron step two if what he done now is to say this is our approach this is what we're doing and that is the approach that e p a has has said they're going to take the interpretation in the preamble it is something that  laid out thoroughly its reasons for why it's doing this particularly the provisions that are available for ultimate regulation under twenty six o five a and you know the fact that there are some eighty thousand  chemicals on the inventory and they have to make progress and sort of thing i mean given that number we ever going to get past the st round of this process yes i believe we will get past the st round i mean you know the numbers are kind of staggering if you do the math but the way e p a sees it the best they can do is make progress you know this was a big regulatory gap before the lautenberg act came out you know there are all these other ways to regulate chemicals that are already  market there's disposal regulations osha regulations regulations about removal of a specificity in how you handle that the the thing that's really been the regulatory gap is the point at which things associated disposal square with the definition in the statute that e p a has to consider the conditions of use so so they get there in a few ways you know the st part is that by the administrator that's what the plastic discretion granting language in which a chemical is known or reasonably for seem to be used or disposed with that definition in the statute how do you have had a c p a decide to exclude legacy uses well so then that gets them to the next step right so there's the st question which is discretion which you know that involves some line drawing it has to in then they get in then what they did is they said well what is the statute tell me i have to do so e p a looked at this language that says intended known or reasonably foreseen to be it doesn't say known to have been it says known to be so e p a thinks ok well that's forward looking and so we think that's that's things in the future the term use you could conceivably construe that term to mean all sorts of things it could mean that term could be stretched pretty far but it's not the worst ones the ones where they can regulate at that point where there's a regularly regulatory gap in the e p a looks at what its regulatory tools are the strongest tools e p a has is a ban you ban it at the manufacturers site you can't ban something that's already been taken off the market most of those tools are geared towards regulating the manufacture process or distributor that's a pretty strong tool e p a has petitioners refer to the other two tools that are a little bit more vague that say e p a can regulate commercial use or disposal for commercial purposes that's true and there may be novel ways to interpret those terms but it's not the strongest tools e p a has and there are certainly things in the legacy category the e p a cannot reach e p a cannot send the e p a police out to your house and make you remove a couch that has an offending flame retardant that's just not something e p a can do under these rules and so would a did was they looked at this and said well where can i do the most good where can i get the most bang for my buck this is a new program they're trying to make progress and on top of that there's the statutory timelines congress at e p a has to go through this process quickly there's a nine to twelve months to prioritize a chemical that includes identifying all of its conditions of use the hazards the exposure potential then it moves into risk evaluation it's three years which might sound like a lot of time until you really consider what it involves is there any tolling during this time for example during the pendency of this litigation is that the process is ongoing and they are moving as quickly as they can there's a lot going on right now so there's no stay in effect right now or anything like that you know your honor  right now there is a there's a risk management rule in o m b review there are forty chemicals that are being prioritized right now there's ten under risk evaluation and that number's going to you know increases the prioritization process goes on there they're moving and they're and what is your position about whether we can look at the the decisions that have already been made in applying these framework rules to understand what the framework or rules mean so if i think i i understand the question are so basically i think counsel are just to look at the appendix and see how this has been used so that we can then go back and help with our interpretation of what is really happening here  i guess the if i could get some clarification i'm wondering if this question is about the scope claim or in the standing question or is this about the legacy question i mean i think so i mean the exactly what you're going to do with what's excluded and also really the interactive issue i are somewhat unclear but we might be able to clarify it by looking at what's actually happened and so they're saying look at the appendix to see how what's actually happened so i'm wondering i guess the st question is  agree we can look at the appendix to see what's actually happened in this case so in order to get at the merits no that's not part of the record in order to answer the standing question in theory yes but it doesn't answer the question so as to the scope claim there are risk evaluations going on right now e p a has issued a number of scope documents what we don't have in this record or anything tied to this rule is would there be any injury from that you know petitioners filed some five hundred pages of standing declarations and if you kind of go through these you see that different parties are exposed to different chemicals and have different concerns so let's say in the future you know the one for dioxin example came up i believe that's the one where it appears in some instances as a byproduct and so you know this is a part of this record but if it appears that  as a byproduct the question would be well do you review it with the chemical or do you review it with the thing it's a byproduct of right you could do that in one of two ways it's not actually clear from this record or definitely not from this rule whether there could be any injury from that you know perhaps it's already been evaluated by the time e p a gets to it in which case how could there be an informational injury perhaps e p a knows enough by the time it gets to the scope document that there really is no question about what's being excluded you have to remember the scope document comes out about twelve to fifteen months after e p a starts the process by that point if there's anything excluded it would really be a record issue as to whether there could be any harm from it it would depend on what u p a did so it's not that but so they're arguing that you're going to exclude entire conditions of use which it sounds like you think you can because you said that's discretionary so will the appendix tell us whether you actually are excluding conditions of use that are putting their clients at risk because they're exposed to the chemical through those conditions of use i think all those things could you give clues that would be incomplete and uncertain i mean the those risk evaluations are not final we don't know what that full record is going to say it is true that in the one for example there was a decided to treat the by product a particular way in the scope document but that's not a final document it's not a final reviewable order we don't know at this time what that final risk evaluation is going to say when would it be rules set up a system that will inform the individual determinations that are later reviewable will the framework roll aspects of it be reviewable later or do they only have the sixty days now so that that question sort of depends on what we're talking about if what we're talking about is let's say it's a legacy is to say they got it later you have an evaluation of us about this and a bunch of legacy uses are not included are they going to be able to challenge then  the idea that legacy uses are excludable i'm not sure i know the answer to that question but i but we do think that the legacy issue is reviewable now because the interpretation is in the preamble and it's you know they really are different one is saying here's what we're doing we are excluding these going forward in the scope issue e p a saying yes we interpreted our authority but we haven't done it yet we don't know exactly how that's going to play out we don't know what types of things that would happen with we don't know yet it's the same thing with the one risk determination versus two risk to terminations yes e p a has interpreted it's the thirty but we don't know what that will look like when and if e p a ever does it  in actually that leads me to a point your honor asked a question about the aggregate versus sentinel question i would like to help clarify that issue a little bit so what aggregate exposure assessment means is let's say you know a chemical is used in lots of products in the home so maybe it's used in toys and pacifiers and carpet you one way to do it was would be you look at all those  add them up together and say that's the aggregate risk the other way to do it what sentinel means is you say well the worse risk would come from the pacifier because it goes in the mouth so you use that as a proxy for everything else petitioners are saying is that you say what is the risk and then you add those together we were having trouble even understanding what that could mean because there is no risk without exposure i think an alternate example would be what if you have a chemical that's used in manufacturing of electric fireplaces and it's also used in manufacturing of commercial aircraft you know those  very different uses would it really make sense to add those exposures together but it would make sense to add exposures together if a person is going to be in the various contexts right if they're a kid with the pacifier and then they're the kid with the fruit that has that chemical in the pesticide and whatever if the if the chemical used in a variety of ways shouldn't you add them up well you might or you could use the sentinel approach which is you look at the worst one and use that as a proxy but if the worst one is the pacifier but once you add the pesticides and the exposure from the air conditioning at school or whatever the kid's going to get cancer i mean doesn't it matter if there are the other uses that are going to add to it and actually tipping over some medical threshold that the pacifier itself wouldn't i don't understand how this is possible but that's what it means what what we understand congress to have done is to say that e p a gets to choose one of these approaches which one is more appropriate that would be a record could be a record review issue is did you know provide a rational basis for the one it chose and did it do it properly and did it really capture what he says it's capturing but are you saying that we can't ask that now i mean it is your position we can ask that now we have to ask it as to each chemical later i guess i yes because because what we know is congress gave you the choice that's plain in the statute and you know there's nothing about the possibility that e p a might find a reason to issue risk determinations and two separate documents at some point in time that really tells us about whether that might be a reasonable decision or not a reasonable decision that would really be a record specific issue i mean that's what makes these claims so hard to to even really talk about they're all what ifs that's why there's a standing problem these are all what ifs what if maybe in the future e p a exercises that authority in an arbitrary and capricious way if that ever happens that's reviewable at this point in time there's nothing in the statute that says can't do that there's nothing in the statute that says there's a procedural right for the creation of a procedural right that you only get one risk determination for the whole chemical there might be a good reason for there to be two separate documents i think we've taken you over your time we'd better give time to the interviewers thank you morning honors and may please the court peter cause there on behalf of the interveners i'd like to begin if i may with the jurisdictional arguments and in particular judge friedman in the course of that to address your questions about whether there's a difference on the legacy claim and how you deal with the aggregate issues that your honor just mentioned we don't think petitioners kind of stablish standing a ripeness at this stage of the agency proceedings for any of their conditions of use arguments and there are two key points in that regard the st is as both the supreme court and this court have emphasized when the challenger to an agency rule is not itself the one being regulated but where its claim of injury is that someone else should be regulated more standing in rightness or not necessarily precluded but it is ordinarily quote substantially more difficult to establish it and in the heaviest corpus resource center case a specific application of that principle is very a political here which is the court said that when you have a pre enforcement challenge to agency framework rules that are going to be applied in future proceedings that are sco going to be subject to judicial review then when then that is only right when the entity challenging it is one of those entities whose conduct is itself being regulated and that entity is facing a choice between immediate compliance or paying penalties that's not the case here but why do you think that was a prudential stand at prudential rightness in court because it seems i mean the forest service case actually carves out constitutional right in this decision and what's critical here is that all of the injuries the plaintiffs assert can only play themselves out in the context of individual chemical proceedings each of which will be subject to judicial review and each of which will establish a record that the court can look at what has the agency done or not done and how are petitioners injured or not injured by that specific action or inaction so with respect them to the legacy issue your honor it is true that e p a has reached a more crystallized and definitive legal interpretation in the framework rules on that than on some of these other issues but that itself does not establish ripeness by itself in hades corpus resource center one of the issues that was unripe was the pure legal issue that the district court had resolved against the government on summary judgment of would these certification proceedings that were coming up would they be rules or orders and would rule making procedures apply to them or not just record said no they're not rules they're orders that was a crystal ing legal question that was pure and presented but the court nonetheless held that it was an right because the party challenging it would have the opportunity to challenge it when it was applied in a more concrete cont and there will be information that will be fleshed out in the chemical proceedings that will shed light on how even the legacy issue so is on the n e p i disagree on whether we can review the legacy issue now that's correct but i would also say that i can give you a definitive answer to the question that e p a did not give a definitive answer on which is of course we think that would be reviewable the legacy issue in the context of an individual chemical proceeding where the agency reached a decision and in print in petitioners view impermissibly excluded a legacy you said it should be unclear what happens with the requirement that these framework rolls be challenged within sixty days it's not a requirement it's the same provision that says that there's a sixty day time limit to challenge these also gives sixty day time limits for all of these subsequent determinations so any any rule that's right that's right and and so and the such a very pacifically provides opportunities when a when a chemical is designated a low priority when it's found no one reasonable risk when there's a regulation so it's the same provision so the question in each of those instances will be is this the instance where on this record with these petitioners there standing and rightness and the reason i say your honor that even on the legacy uses there will be differences when the proceedings come out is on e r five which is the preamble to the risk of valuation rule e p a was very specific it said even though it doesn't consider legacy uses conditions of use it nonetheless says that said in a particular risk evaluation e p a may consider background exposures from legacy use associated disposal and legacy disposal as part of an assessment of get exposure so to the extent petitioners are saying were deprived of information because legacy uses are off the table the information may well be developed in the same proceeding even if it's not a condition of use and even if it's not ultimately regulated so that's why even though there's a definitive legal interpretation now the question of whether there will be standing can only really be decided in a particular chemical context and that's true of course in spades with respect to the other issue about whether there is discretion at all and in that respect you know i would recommend your honor's e r one hundred and eighty four which was the e p a s response to comments which they specifically said we are not categorically refusing to look at even de minimus uses the question will be in a particular proceeding is there reason to believe that use will cause harm and so judge friedman would respect your question about aggregate yes e p a can decide whether to look at things aggregate or individually but whatever it does it's going to be subject to an arbitrary and capricious review so if you have a situation where there are three conditions of use and in the aggregate they're going to cause health problems and that record is established i think there'd be a pretty strong arbitrary and capricious challenge it the e p a just considered one just considered the other just consider the rd and said in isolation there is no there we are some of them are legacy uses though will they even be in the record at that point well petitions can make a record that this legacy use is important it can then challenge the exclusion of the legacy use in the context of the individual proceeding suing it shows that it has members who were injured by that particular chemical exposure and the challenge can proceed so and that's in some ways just like the ohio forestry case that the court in haiti is corpus resource center relied on there was a plan which was going to influence individual permit and decisions but justice briar for a unanimous court said that's not good enough and when petitioners said but it will be more effort for us to have to challenge the individual permit in decisions of justice briar's said said two things he said but the courts distinguishes this statute so it's a little weird for us to ignore that as well but why did the court didn't have this particular context before it certainly didn't have before it what your honour's do with respect to specific framework worlds and claims that all relate to the subsequent proceedings and i think in that regard petitions brief in this respect is very telling for a couple of reasons st of all they've put in the record all of these non final documents that are midstream in these other proceedings and said you should look to those to see that we have standing but that's precisely the indication that it's those proceedings in which these injuries if they exist will arise and should be adjudicated can i you're running out of time i have one more question about the information provisions do you think we have jurisdiction to give them that i think so because you know st of all they may that's why i said at the beginning that it's conditions of use that i thought there was no standing in jurisdiction you could argue that to the extent there's a question about whether we are subject to scientific standards in what we submit to the agency there may not be an opportunity in some future proceeding for petitioners to raise the claim they're raising and particularly since e p a has said we want to rewrite the rules to address the concerns petitioners have we think it makes sense for the court just to send that back to the i mean even need our permission for that i think you dismiss the entire petition for review the fact that they have said they believe they need to rewrite that rule to address certain concerns they could just open their own proceeding something for not well that one we all agree you know where unanimity at that point e p a petitioners and we all agree none of us should go to prison making an incomplete submission so that when they should certainly correct thank you counsel thank you we took both sides over there of time so i'll give you five more minutes for a bottle let's proceed with that like to address a couple points that have come up st i'd like to explain how this legacy issue is going to play out in the a specialist situation e p a is currently regulating or evaluating the chemical substance as best us and it's asking the question does this chemical present an unreasonable risk to the public including vulnerable groups like workers in that evaluation pursuant to its final action about what counts as a condition of use it is going to ignore ongoing uses and disposals of that chemical so when firefighters go into a building and there's a specialist and they might be exposed e p a is going to ignore it when waste haulers take that material who waste facility e p a is going to ignore it those present significant risks to the public and under the plain language of the definition those counts and so if you're worried that they should be using those because it affects how they aggregate with something else it like tips the balance on the other thing or is your argument that really they have more tools in their tool box than they say they do because they're saying we can't do anything about the legacy uses so why talk about them where's the difference here i think both things are true it is true that those ongoing uses and just because it might not have perfect tools to address something at the margins doesn't mean it shouldn't use the tools that it does have to reduce real risk to public health so like what could it be idea about the firefighters going into the building it could require certain kinds of protective equipment be worn it could require certain kinds of air monitoring or that certain hoses or equipment work practice type says you have jurisdiction over the firefighters well it has tools that could use to regulate disposal and use and it also through section two hundred and sixty eight of tasca yeah but those regulations would deal with the owners of the building or the manufacturers and i don't understand how it gets to a requirement that firefighters have to wear certain equipment so the task that congress gave e p a is to evaluate the full chemical all of the risks figure out what are the unreasonable risk to public health and then at the risk management stage figure out the most appropriate way to deal with that and if determines that a different agency or a different statute that it in ministers is the most appropriate tool then that's what tosca section two thousand six hundred and eight directs is that e p a should talk to that other agency talk to osha and figure out how to regulate or address and minimize those risks but that's not a legitimate excuse for completely ignoring them as part of the central command in this statute which is to evaluate whether the chemical substance presents an unreasonable risk under the conditions of  i'd like to also briefly address e p a s discussion of the pick and choose claim and the one for dioxin example this is not these cases are not all about what ifs e p a has said it has a what if e p a has answered that question they've said yes and they've already started implementing this and for purposes of standing at minimum the court can look at the actual record evidence and there that's in the case northwest environmental defense center at presents and so we're not just talking in this case about things on the edges or what's de minimus e p a s rules allow it to exclude any condition of use for any reason regardless of what the significance of that risk to the public is and the example of one dioxin is a perfect example about why that is unreasonable and contrary to the central directive in the statute which is to evaluate whether the chemical substance presents an unreasonable risk under the conditions of use one additional point e p a has talked about the statute as a tree process and we need to get through all thousands of chemicals on the list risk evaluations under tasco are not an exercise in congress carefully set up a multi step process to systematically evaluate chemicals and there's a st step in that process prioritization and that's when e p a decides which chemicals should go st and there's considerations how toxic is it how persist in the environment after a chemical selected as high priority congress said evaluate that chemical comprehensively to determine whether it poses an unreasonable risk not slice and dice and narrow the risk evaluation in ways that pose serious risk to public health you thank you thank you to all counsel for the very helpful arguments in this very difficult case the case is so minute and we're adjourned for the day