so the situation here is great they bought a standard fuel cell package that was designed to run on natural gas the gas condition equipment had played no role in the operation of the fuel cell power record way or record question maybe even many many many of them do operate on natural gas and therefore the only equipment that is covered by section forty eight is that which is necessary to operate a particular fuel cell if it were operating on natural gas and choices about operating it on other fuels are really not to be considered in determining particular fuel cell is irrelevant because she also in general i think is your point operate on natural gas is not a position the fuel cells in general operate on natural gas our position is that the fuel cells that that that are at issue here now require the standard package that that they purchase it's a turnkey fuel cell that is capable of operating on natural gas out of the box and so and so here what taxpayers are asking for in their claim here for an additional one point five million dollars is they customize their fuel cell to be able to operate on other fuels  cells is are a lot of them used only for natural gas or is the only real market for fuel cells for this kind of thing where natural gas is used either as a starter of x in general less they're going to use some something other than natural gas do we know anything about i believe that in the record there is testimony that that most fuel cell is operate on on natural gas or other gases that would not require the heavy conditioning that that bio gas does like propane or methane but basically my understanding again is entirely from the record is that the conversion of a fuel into electricity and so therefore when they brought in this particular case the standard package which was capable of converting natural gas into electricity you've met the terms of  statute that's how congress delineated the credit in this case and that's what they're entitled to if they want to customize based on their particular intended use to run on bio gas or you know we can think i can think of a million different variations where you have to customize the particular unit that is not required that is not provided for by congress is it possible that they use natural gas as a start up and you make that as one of your your points what percentage of their operations were on natural gas it vary based on the particular unit for the arche one the evidence is that for the first ten months time frame they operated on about sixty nine percent io gas thirty one percent natural the record that sometimes bio gas doesn't have the the river the necessary beach to use it and there's not enough energy environment yes i mean we're talking about sewage here so there are variations i imagine and the type of sewage order to qualify for some c credits but at least with respect to one of the facilities they didn't do that so far as the time of year the the time period for which we have evidence you contend that th equipment in the gas condition equipment are or are separate systems because they're provided by separate suppliers there's a statute this thing which if i may your honor we weren't saying that they're separate system do not play a role when it's right that when they're operating on the gas that's going through the gas conditioning and then like ask addition errors that he directly into the fuel cell i think it's not perfectly clear from the record your honor but i sellers of this and somebody said you know we have two standard packages you can buy this without the diesel fries or if they had bought the fuel cell without the diesel far south arise or then bought gas conditioning equipment would they get to include the gas conditioning equipment in the base to which you apply the thirty percent i think there would be a question that you mean there is a reviewer's a sixty day review period when you get these applications for payment and it a scientific lab in the they look to various factors they looked at it looked at the science of the equipment that's been coined for for payment they also look to the contracts if for example if they said well we're trying to maximize our ontario version a sale of it in the san jose version is not that much and your position is you get to choose one of them and say as long as you can operate on that one the cost for that operation is all you're going to get and the other one we're not going to give that similar profile status to it so why somewhere near the heart of this is a question white privilege natural gas as the choice of fuel as opposed to the other i wouldn't ever suspect we disagree with this idea that we're choosing just between two different gases and we're choosing the one that's most advantageous i think the evidence in the record and the and i think the vehemence of the record supports the fact that effectively what they're doing is stacking technologies so they've bought a fuel cell power plant that's capable of running on natural gas and now they need to buy another piece of equipment that cost you know two or three for all queening what they are is that the the evidence and the record supports that natural gas sometimes has bikes and sulfur the amount that a public utility cleans natural gas is not necessary for the specifications of it but most natural gas has a low enough or may not exist and so for content to be able to meet the specifications that the fuel cells require the fuel specifications and so therefore it is not like the gas conditioning they do queen the natural gas but they clean it based on variations in the fuel quality of the a pipeline natural gas that's running in as opposed to a you know taking a filthy bio gas product and having to effectively condition it significant way or you're necessarily going to poison your show so can i ask well you don't make any argument for any kind of deference here because well chevron would be we're not interpretative we're not we're not suggesting that armor or that there are regulations that this proves that this is a review process that we've made a determination based on the statute directly you read the statute and it has its various terms and it says kind of what's necessary to run this thing on a fuel a fuel and you say well we actually think at least for these maybe these particular ontario and san jose units maybe even more generally we think that that means this should mean what's necessary to run it on kind of the you know quasi universal or at least here necessary default fuel natural gas and no more  why do you not say the statute allows that even if it doesn't require that this actually i'm sorry the statute you were saying the files you just say they bought the natural gas standard equipment so in that circumstance they get only the cost of the natural gas equipment the diesel for riser cap and the rest is what you would call customizing maybe in another case if compellingly clear about what to do and this is why we have agencies well your honor i think on top of the fact that we do think that the language of statute is pretty clear as to how we've applied it here we also point in the court's attention to the doctor and you have to construe the language of fuel cell power points narrower and i think that's a pretty well established principle and i think it's perfectly applicable in this case that the idea that congress creates deductions and credits and by virtue of the fact that if they are matters of legislative grace congress is not required to give anybody a credit for anything but that and that invisible has a magri that has some force on the other hand what is it the earlier and the investment tax credit provide we when we be on it look green energy it's talked about you know investments in manufacturing and investments and in transportation it was an infrastructure it was just to create  it was can you operate this these power plants legally without the gas condition equipment the answer that is no first of all i know i misspoke as i read from his quote it did say natural gas i have to apologize we sort of treatment plants they flare that yes say what the specifics do is actually utilize that gas but they have to clean it before it goes in the fuel cells now the testimony before the court clinic including plaintiffs expert and also the government's expert was that if you used this big digester fiasco the so dirt in this fuel cell that it would destroy the fuel cells within a couple hours and by the way natural gas has to be cleaned as risers every gas that goes through a fuel cell because it's so sensitive has to be clean gas conditioning equipment in every case is bounds of plant you have to have it and i believe the government actually in the reply brief even indicated that is a standard piece of equipment for cleaning gas and a fuel cell power plant a standard piece of equipment and it's a standard piece of equipment that's balanced plan for the statute and obviously it's integrator because you need the other question i think that was raised was about is that is is that true for all fuel cell installations there's one exception if you can build a fuel cell power plant in the laboratory and you get pure hydrogen you may be able to run it quitman there's another company called ts and there are couple companies have gone out of business i'm not aware what those particular groups provide but i think a lot of it goes back to what is your contract monies are suppliers if you don't have t i think correctly that from the record that you have to have the soft risers somewhere in line because you get it in your initial package or you go out and buy it can you run a plant without the leaking that has to be cleaned out that's what's called the saw for us because if you if that goes through that fuel cell it would strike so it doesn't matter whether it's natural gas or whether it's digester gas has to be clean it has to be in every instance if you're going to operate a not a justification for the government to give privileged status to that which is necessary to run the fuel cell because you always have to have the software i says well i think again we have to look at facts the what is the statute say well first of all the statute says a fuel i didn't say natural gas you didn't talk about standard package eight if you will is as the crow quota for claims found detailed findings about what that means look the department of energy look to the energy   of course natural gas is a conventional fuel so congress in its legislative history expressed a preference for a non conventional fuel and it makes total sense when you're looking at section forty eight which is that investment tax credit which renewable energy that you wouldn't that congress it makes sense that congress would have made the statute broad enough to include the religion which at that another point the government keeps saying that this statute has been repealed well i think  around since the energy tax act of one nine hundred seventy eight and it's gone you know it's changed certain iterations but that same statute for example solar has been in there for the whole time period something you know one point was ten percent now it's thirty percent so the government keeps saying they're different statues the reality is they're the same exact statute or the course of time and what you have a section sixteen or three that provision was you know policy reasons one way or another whether it's good or bad the whole country is like california fifty percent of the fuel cells operate only on natural gas and the other fifty percent operate on some combination of natural gas and they biofuel the first sat first fifty percent get the thirty percent applied to the fuel cell plus the diesel fries at the second set get more why does that package that says a fuel include specifically balance of plant components now the reality is there is a cap on that on credit and well below that cap congress put a cap in there so that there the you run into the problem where somebody was building a big plant and you're only getting thirty percent you're not i mean somebody is not going to build something in order to put in you know invest so much as it is so i understand and i think you are just you are defending the proposition that when you customize by adding a second piece of fuel equipment to a plant that could in fact operate forget about california's laws could in fact operate the way fifty percent of california's fuel cells do operate disagree that it's customisation because when you build a power plant you build it according to the ground of what is or why did they build them these plants at the wastewater treatment plant they bought it and they built these plants the wastewater treatment plant that operate in the free not the purchase natural gas these plants would never have been built if they were going to operate on natural gas and it was clear from the testimony in the findings of the court of life's that it's a so i don't i don't agree that it's  the government will allow the cost of rows to be to be reimbursed on the statute now roads have very little to do with the fuel cell power plant terms of you know generating actual power but they are nevertheless integrated in necessary in particular circumstances now the government's not to call that customisation because they allow the reimbursement for those roads and that's that's typical of what i've seen you know and and what the treasury said and the reason they don't like the gas condition equipment here is because they view isc as different than some of the other fuel cells that they've they've seen but it's a limited pool and the reality it what is there in forty eight c one exceed that expresses any preference for one fuel over another that goes into th now on fuel cell power plants and it doesn't matter what fuel is put into it that's correct that's correct but it but it's it was you know this is this is a broader statute amended that the use of a broader term doesn't mean it's talks about an integrated system the government reform you know makes that a critical point and cites cases including this court's decision in a wind refinery when you look at that opinion and they say it's timing versus scope the reality is that that opinion did facility argument that that while the wow process ease at the plant including the imports into the anaerobic digesters are while that is taking place that is a treatment process as plants i think the important point is that the statute i think everybody agrees that the statute clearly doesn't preference one fuel over another in terms of a fuel ex converted into electricity and and i think power generation systems allow for the use of biofuel bio gas as well and in fact at these plants they were using nontraditional fuel sources the fact of the matter is that congress oh let me just finish this one sentence your