requires force reflect the average emission limitation achieved by the best forming sources and the e p a has agreed consistently in notice and comment rule making that the meaning of the term average is its ordinary meaning that is that it refers virtually every attack every source and virtually every test result is below the upper prediction for all standards in fact e p a to to set a level that is we need enough to guarantee that every source in the top  simply cannot simply does not say the mission motivation achieved by all sources all of us sources all the sources within the best for me  a used the identical approach and the court couldn't tell what he was interpretation was it but there was an interpretation to be might be basing that it wasn't sure and it couldn't tell how that was an average and so he gave you an opportunity d on this the e p a doesn't disagree that the agency had a policy of excluding best performance sources of there were burning cleaner fuels and it also i don't sources together and separate dissimilar sources that's the language that says that you can set stuff or standards for different causes heights and sizes from source and that's what you did this will make the e p a created an unprecedented thirty six different subcategories in this rule so on so small they contain only a few units precisely so that it would make sure that all the similar sources were alike or all the similar sources were regulated together and all the dissimilar sources were separated but what are you gay saying is a similar sort of exactly the same function as that last i can size provision so that he can divide sources once and then even within the category that is created it can choose not to base floors on the best this that are either using these control technologies or burning through your fuels it would have found that there are sources that are achieving better reductions in place because we're getting better and other than those that are simply needing to program that are monoxide good morning again and made it please the court neal gormley for the environment petitioners in cases eleven eleven twenty five and eleven eleven forty one i'd like to begin with case eleven eleven twenty five which concerns challenges to from the pollution limits and second e p a still year to set beyond the floor limits requiring the maximum achievable reduction in pollution out of the many thousands of that are polluting the air all across the country only one hundred six are subject to pollution limits under u p s final rules e p a claims that pollution limits are not required for the remaining units decision to exclude the vast majority of sizwe from these standards is unlawful under those authorities e p a claims that standards are not required for these units because they're not needed to satisfy different s on whether e p a chooses to collect data if the lack of data in the record is relevant to this case it's relevant only us to remedy and i'd like to emphasize with respect to revenue on this point just how long  with respect to these units again even if we focus just on the period of time during which e p a has been in violation of the congressional deadline e p a has had over twenty years to collect the necessary data  received plenty of prompting from stakeholders and from this court to finally set these standards and one nine hundred ninety seven consent decree require d p a to set standards by two thousand a second lawsuit leading to a this court has jurisdiction because e p a took final agency action with respect to these units they did so in at least two ways first adopted definitions for these units that exclude them from the pollution limits and that's fine a wait and see action  to these units second it reached a conclusion a legal conclusion that pollution minutes are not required for these units both of those are finally agency actions that this court is empowered to review under the clean if i can turn to the second issue the be on the floor standards e p a failed to set standards that require the maximum achievable reduction in pollution considering the s factors as required by the plain language of the act in considering the on the floor standards e p a claimed authority to set whatever level of protection it deems reasonable and it then exercise purported discretion to reject every single be on the floor standard for every single pollutant from every single subcategory of sizwe the statute simply does not give authority to choose the reasonable level standard here when in the one thousand nine hundred minutes to the clean air act when congress intended to grant the regulatory authority discretion to adopt a reasonable level of control congress  so expressed as it did in section one seventy two c which calls for in certain not attended plans standards based on reasonably available control technology the contrast with section one twenty nine which requires not a reasonable reduction but the maximum achievable reduction is significant but throughout its decision e p a repeatedly rejected stronger standards on the basis that they are allegedly not reasonable without even claiming let alone demonstrating that they're not achievable and that's contrary to the plain language of the act to take an example for carbon monoxide emissions from coal fired energy recovery units e p a predicts that those units will only have to conduct a tune up to these standards it rejected control technology that could achieve let alone explaining why using natural gas is not achievable for these units by failing to apply the statutory standard e p a violated this violated the statute of chevron step one if there are no further questions on the environment in this is we case i'll turn to the areas for spoilage case even before e p a authorized them to burn materials like scrap tires used oil and demolition degree various or spoilers already emitted very large quantities hazardous air pollution but it gives final rules set pollution limits for far fewer than one percent of the areas or spoilers and by e p a zone analysis will achieve virtually no reduction in hazards their pollution e p a violated several legal requirements on up to that result and i'd like to address three of them i'll start with one twelve c six and then address the got standards and finally title five with the court's permission i'd like to also say something briefly about the work practice standards while they're not strictly units brief defends an action that's entirely different from the one they didn't see actually took here e p a says that standards are not required because these units weren't listed the actual agency decision concedes that coal combustion oil combustion and wood combustion are listed the one to six list currently includes oil combustion coal combustion add one combustion and makes treated exactly the same in the decision that that conclusion is confirmed by the actual one thousand nine hundred eight listing action which which ceded that area source components of the listed categories would be subject to standards and it also said that in the event that the area source that the emissions from various sources turned out to be trivial various sources would be removed from the list a couldn't it would be impossible to remove sources from the list unless they were on the list in the first place b p is grief also claims that the agency has authority to remove sources from the one troll's you six list at any time that's also not the situation presented by this case e p a could not have been clear and this is the j fifty three that area sourced where others were not removed from the one post the six list here that actual situation presented by this case is that these sources are sitting there on the one twelve the six list and yet you'd be a refuses to set one twelve c six compliant standards for the e p a has not explained how that's consistent with the statute and at the very least that with respect to the actual language of one procedure six which again you've used brief doesn't address and e p a has not provided a reason the interpretation of that language and that's why we think a remand is required on this issue i would say that if the court wants to examine that language a lawful interpretation of one proceeds six must give effect to must give the effect that congress intended to the listing action congress was clear that the listing action must quote assure the listing action must assure that sufficient sources will be regulated under what appears to be e p a s interpretation which is that the listing action is just an estimate of what sources may ultimately come to be regulated with no binding effect the listing action can't assure anything and that interpretation would not be consistent with the language it's also important to note that the ninety percent requirement in one interpretation of the statute if you takes congress invitation and lists the dish and source of the above ninety percent it's essentially a meaningless act because e p a has complete discretion even after that listing to either set or not set one twelve c six compliant standards for those sources one of the counsel for the industry petitioners described one twelve section one twelve as elegant and we agreed in the respect it is meant to work in a very orderly way it begins with listing under one twelve c that triggers the scheduling provisions of one twelve feet now all of this was supposed to have happened much faster than it actually did happen but the way the congress contemplated it to work listing under one twelve c would lead to scheduling under one twelve b which the legislative history makes very clear e p a does not have authority to modify after the fact and then finally the standard setting is determined by the manner in which sources were listed e p a has not given any reason the explanation of why one twelve c six standards are not required by howell feeling to set one twenty six compliant standards for sources on the one twelve c six list is consistent with the statu one of the got standards for one of the sub categories of sources that are subject to guy standards is based on the emissions from an uncontrolled coal fired boiler and that's even though  foundered filters aren't are generally available and cost effective control technology for that subcategory that's setting the emissions for that subcategory on the basis equal to the emissions from an uncontrolled boiler violates the plain language of the five which requires that a p a provide for the use of generally available control technology or management practices neither e p a nor industry intervenors have defended that standard in their grief they got standards are also arbitrary in general because e p a fail to consider fail even to consider setting standards instead of god's standards as a matter of discretion discretion of the agency does not dispute that it has under basic administrative law principles e p a has an obligation to rationally exercise that discretion and to give reasons for why it didn't s not standards in lieu of got standards especially after receiving comment on that issue as it did e p a completely failed to consider setting that standards as a matter of discretion they got standards are also arbitrary because e p completely failed to consider the congressionally defined objectives of the area sourced program these are given in one twelve k namely a substantial reduction in area sources hazardous air pollution emissions a no reduction in hazardous air pollution and that it doesn't claim will yield any health benefits and it did so while completely failing to consider the congressional objectives and in this respect on this point i'd like to direct the court to the two thousand and one decision by judge henderson in association of american real roads that's two thirty seven s third six seventy six in which the court held that held an action arbitrary capricious or failure to consider the congressional objectives in the preamble to the statu i'd like to say something briefly about the work practice standards the work practice standards that e p a set for coal fired boilers namely tuneups and following manufacturer recommended procedures are contrary to the plain language  requirement that all of the parties to this case concede but failed to make the determination it concedes it should have made e p is wrong when argues that simply by firing these work practice standards as work practice standards it somehow determines that they're consistent with the stringency provisions of the statute first that's wrong because one twelve each one expressed lee direct emissions it could be anything from a requirement to run a sophisticated and highly effective control technology all the way down to just a tune up every five years which is what he adopted here the mere fact that a standard is not numeric tells us nothing about  out of about ninety two thousand sources across the country with various or spoilers an estimated forty eight are large enough to be major sources but promise to bring their emissions below the major source threshold using control technology e p a s decision to reverse course and exempt those estimated forty eight controlled synthetic areas or spoilers from title five was  it was arbitrary and capricious first because the p a has no evidence to support extending its rationale for the remaining sources the natural areas or spoilers to the controlled synthetic in fact e p a initially claimed that its complete lack of information about the synthetic areas or spoilers itself justified exempting them from title five that's incorrect because no evidence is not substantial no evidence to indicate that they're equivalent and in fact all of the evidence in the record suggests that they're not equivalent recall that by definition the controlled synthetic areas first boilers are large enough to be major sources in star the title five exemption is also arbitrary because e p a failed to consider and address contrary evidence in the record comments submitted by the partnership for policy integrity show that of thirty two recently permitted biomass boilers and these were these were recently permitted as various sources many are large standalone power plants and that they overlap in size substantially with the major sources many rationalization but even if the court were to consider it lacks merit what do you say what he is attorneys say is that e p a isn't sure it considers those sources to be a sources that doesn't just not provide any he without the data that's available only under title five citizens have no ability to challenge those the claimed areas or status of those units as mistaken or fraudulent so is attorneys post hoc rationale for rejecting that memo actually shows why the title five is so important and needed for these estimated forty eight sources  completely failed to reconcile its recognition that title five is important and needed for these sources with its simultaneous claim that the benefits of title five are minimal or nonexistent and for that reason to the exemption is arbitrary this is a technical judgment that the agency has made that carbon monoxide is an appropriate substitute and therefore the fishers of course have a high burden to show that it's arbitrary and capricious and they fail to do so the use of carbon monoxide as a rest and the agency established a separate work practice standard for those for the free none of the other organic past was there any evidence of any post combustion determination in the agency determined that second last step in the process is the conversion of carbon monoxide to carbon dioxide a slow is a difficult process to run so that if you're measuring the levels of carbon monoxide in the combustion process maybe just any amount of what they referred to the fact that from how the high levels seemed to fluctuate around them but what if you explain that by by talk rights talk about the fact that there's uncertainty in the measurement that set of pages for ninety seven to ninety eight right of the joint appendix so you know the petitioners are trying to take one figure out of the study but the overwhelming evidence in the record is that there is a strong relation her monoxide is a common surrogate is used as an indicator of a boy or a combustion efficiency because it tells you how well and that's also gives you a continuous method for controlling us but you know if the carbon dioxide that comes up you have to adjust your combustion conditions t so there's nothing in the record that demonstrates that carbon monoxide is not an adequate surrogate and it follows directly from the chemistry  let me turn to the exclusion of certain units from from the mac to analysis i cultural ways whether it's with products they burn they burn coal they burn or oil they were a whole range and and they in addition many of them are set up to use different kinds of fuels some of them are set up to use gas some of them are set up to use or not use gas and they vary the types of fuels that they their particular boiler will use will vary over time depending upon the price of different fuels the availability of and fuel season seasonal different fuel types which are also reflect different and different types of units physical types of structures etc but it in setting the standards in determining what's the appropriate data determine what is achievable by standards in that category on a practical basis the agency had to utilize the fuel that that these units may use up to ninety percent or up to one hundred percent and therefore it excluded units that that are tests that are based on natural gas because many of the units don't burn natural gas and many of them don't burn all the time so to get a mac standard that is representative and that really respect really reflects what these units can achieve in an operational basis agency had to look at you know what reflects kind of the core fuel that they're using and set the standards based on on that fuel in the really the statute gives gives the agency sufficient sufficient latitude to do that in terms of the mood is argument the can and i believe most of you said this backwards but  were set for carbon monoxide standards that were set at the threshold level and therefore it didn't matter which what units we looked at or not in their in their reply brief they seem to have switched to a whole different set of of standards that there that they're to determine that the tech the test conditions to set the standards that must be achievable by these sources should reflect the fuels of these sources generally use in that case would not include natural let me talk now about the government action limit or you and i make two points you feel is consistent with the statutory requirement and standards to be no less stringent than the average performance achieved by the top t a predicts using standard statistical measures that the average of the best performing sources will achieve under a broad range of operating conditions and they're all reasonably f and is is the same sort of analysis one might do if you were a manufacturing plant in your factory parts on a continuous basis and you would pull samples off the line you know a small number of the measured parameters and try to get estimate those same facilities and they ran tests thousands of times under a wide range of conditions so the normal operating dishes and given the variability that we see already in the test what would we predict then that all those tests claimed that it's the the we're not saying the average is the average of a or a three test run is the average of the best performers that's what we said and that's what we've laid out very clearly in our response to the to the  that is what is inherent in the formula the formula is is on page eight hundred sixty six of of the joint appendix and there are there are two terms there's first you know x with a bar over it which is the average a method that's used for project variability and then and then a square root of the standard deviation which is a characteristic of the act of the of the sample set itself and then two values that reflect the number of t margo but that's the best you know in terms of saying that that's what the formula has always been that's the formula we've used in that's what it is intended to do it's intended to prevent the average of the best performing sources over time which the statute requires because the statute requires has to be achievable there's to be achievable in this court has recognized that that's standard should be achievable in sierra club one sixty seven f thirty six sixty five the court said the e p a could reasonably set the standard at the level the top are forming units can achieve under the worst forseeable circumstances the agency has discretion to decide what's an arrow what's the average what is achievable and what's being achieved by sources and that's the purpose of the you know that's what it's doing so it doesn't cheat the average it is reasonable that petitioners rely a lot on their argument that for many for some sources the the u p a l is above the measured values they have they have tables in their in their brief showing that but that's not unreasonable because the variability  is looking at the variability in a large sample based on the variability found in the small sample and my statistics it will always be larger and therefore it will be a higher value than than most or perhaps even all of them but it is also important in our look at those tables to look at the scales because what we're we're looking at on them on the difference is here are thousands and millions of parts of of pounds per million beats you we're talking about very small numbers and very small differen encompasses that entire universe of variability it may well be higher than than the than the than the standard in the student in the individual test and so there's no further questions on those major source issues i will turn to the this is which is and first i will talk about that he did not set any above the floor standards under section seven twenty four twenty nine standards  reflect the maximum degree of reduction the administrative turns is achievable taking into account cost in non air quality health and environmental impacts and energy as used in the statute but she evil does not mean achievable infinite resources that you know any of the silly it can be achieved in in some theoretical way it means in the real world and one particularly when going beyond the statutory required floor that's what we're talking about here we're talking about decision not to go beyond the floor which is calculated you know on the basis of the best performing stairs but say that even if you go beyond that the statute clearly requires e p a to consider toss and that's in look at the terminology reviews and say that we talk about reasonable this and reasonable this is not a g ability but this one looking to be on the floor the statute required in order to side with achievable you have to look at costs and you have to look at other impacts how  you want to consider costs unless you were looking at what is reasonable for what's reasonable to spend what is reasonable are reasonable cost given the availability of the controls and given the reductions that you're likely to achieve  that's exactly what he did here isn't to determine that the amount of additional polluting removal that would be achieved by these various technologies was minimal and that the cost would be excessive fissures also seem to argue that if if this if a technology is used in one subcategory it must be considered achievable for another but that's simply not the case the whole purpose of subcategory nation is to is the fact that these units are different they have different fuels they have different set ups and is not necessarily true so you can't simply assume that because some units in one category are using their control technology other others are not and so the bottom line is  ability of sources to achieve that at the bear the cost but also with the amount of reductions and he did that analysis as documented in the record and made a rational decision that there weren't no achievable beyond the floor stan these units and these units are largely many of them are or are simply parts of manufacturing processes like burn off of ins found you stand reclamation units of of burn off of and is an oven that's used in the manufacturing process to remove contaminants from body if you could then we would have a duty but if used but if if the petitioners believe that there's a mandatory duty that we feel reform the remedy is to go to district court and bring an action to enforce that mandatory do it because we have not made any determinations we've not excluded them this has said that we've made a determination that they're not going to be subject to regulation and we have not we have not made that terminated with regard to any of these you know is this simply decided tony that he did not have the available data that they they hadn't made proposals with regards to some of these units and then they got flooded with a comment saying wait a minute you don't know what you're talking about we don't you know there's not ten of these units are not thirty these are there's thousands of these units and they're very different than what you were specific we said we weren't addressing we were addressing this issue at this time so the agency knows which sources he's to cover and kind of keep track of whether it's met this and ultimately make a decision it is he has made a determination there would be aware of it initially determination that he had made a ninety percent that was sent back to notice and comment issues it has recently made other than there is now a case pending in this court and i frankly don't have the i don't have the site from me challenging uvas determination that it has made that nine you reach that ninety percent threshold but the requires that simply because it had one time said it but it might need these units to make its ninety percent goal that it's locked in forever to setting a max standard staff he simply doesn't say th it simply says go out figure out what standards with what sources you need to regulate and make sure the time you're done probably getting regulations that you've covered ninety percent and that's exactly what he has done is covered the ninety percent and therefore it has not decided therefore the area source biomass and oil fired boilers imac standards are required and i did fact said jack standards for those because regulate those are covered under another provision for permitting was significantly improved alliance with pirates whether it impose significant burdens or the costs are justified and whether the implementation of force and programs of the relevant requirements are sufficient and   and run at their full capacity would have the potential to a need above the major source threshold but have gotten permits either from you here state that imposed pacific requirements that limit their emissions  proposed to include them but then they received comments indicating though that these areas are what is very different and what's really the here is when you when you're considering when you're looking at the termination of whether a title five permit is appropriate for area source this is what you look at and what's important is not the size of the boy it's what sort of institution or facility the boiler is located because what you're concerned is  people who are operating this boiler what are the costs for them what are the what are the burdens the administrative burdens and how likely or unlikely is it that adding title five will contribute to compliance the prince area source boilers are located in a wide range of facilities schools hospitals some of them are located at large industrial facilities and large they are the vast majority are located your argument here sir said the size of the boiler is not relevant for this purpose but when you're talking about these synthetic oil risk i'm it would seem to me that size would be part of what you're looking at because they are there are synthetic only because they have agreed to controls which make them emit less and so they can fall under that area boiler definition correct that is a factor we're looking at the factors e p a considers for the title five per rating is appropriate which will cost in the further you have to look at the entity  the port whether it's cool or a church area or a chemical plant or electric utility i guess what i'm trying to get at is i don't see in this record and perhaps you can tell me where it is where a actually did do that analysis i mean i understand that there are certain factors that he looks at to decide whether it's useful to have them under this title seven title five requirement i'm sorry  and so but i but i don't see that here and what i do see is that at least in twenty team on e p a went through something like this same exercise and said well they should be under the title five requirement but so what i what i'm trying to find out and you know this is a record that has a lot of material in it but we're awareness e v g a decide that we're going to make a change here and then explaining why decide maybe we're not we we shouldn't do it that way that's pressure but it looks like the factual findings that you know the data that was the basis of that proposal  on the on the institution of attaining it and in terms of in terms of even looking at the factors or honor well yes these are all are large or could be larger and could have higher emissions they're really subject to si two levels of trolling are subject to the whatever the state control is presumably the state or federal control that makes them a source order and also core subject to the area source standards themselves so they they are subject to two levels of put you know the positions of argue that e p a should have exercise discretion and decide whether to use max standards but i really don't see what it is that they believe that if they should have done differently here evy a in analyzing  and oil fired sources they looked at they reviewed what various sources are using in determining that most of them have no controls on them at all and those they do have a multi clone which is designed to or the dust collection unit a thing else that's not particularly applicable and there's simply just wasn't anything else that was practical or usable and they determined that certainly for me existing source standards them retrofitting with a multi clones impractical for both size and cost and that there's simply no basis to impose any higher level of control because there were no additional controls that could be placed on existing sources then with regard to new sources again this was the only source that was found a multi clone and so it's not at all clear what e p a was supposed to do they looked at all the controls maybe they did low which is why they didn't include them on the nine percent list they tell me that there was no additional practical control unit and therefore there was no clearly no reason to impose a different level of standard other than what they intervenor brief pages six and seven intervenor brief pages six or seven we set forth the argument that there is the threshold question of whether those units are solid waste incineration you and we sent to the a view those cases have no relevance to this question as to whether you feel it's appropriate we disagree with that and and believe that the argument made that the government made exactly the right organ here which  is the emissions test data that are taken that he be required to be taken that represents most of the data they relied on to set the standard are snapshots in time and you know e p a s test methods require you to to take the test under conditions under optimal you asked mr ray so that argument was raised and what the environmental protection or cite to in support of that argument is comments on record submitted by southern company and ga seven ninety eight a hundred so  our response brief we addressed this issue that's on page eighteen of our response i'm sorry it's on page nineteen of our response brief and in fact was so the company says in those comments it is as goes up for a period of time his temperature goes up and then comes back down and that's what inside the company pointed out in their comments but they pointed out to make the opposite argument the marginal petitioner's are here so other companies see it as a result seo is too conservative as  a surrogate because it will show higher levels at some times when you don't have higher levels of organic cap so southern company said you know it's too conservative an e p a shouldn't use it for me case perspective that's ok being too conservative other than those that reduce carbon monoxide and again just a group of us questions on this before and in our response brief we look very very carefully at that and it shows up in our response refit page eighteen those assertions are supported by comments submitted by a trade association called atack the association of clean air companies and when you look at what they said they said two things they talked about catalyst which is one form of pollution troll and they talked about carbon injection which is another form of pollution control and your mil us petitioner's site that report for the proposition that you know the these comments support the idea that there is not a these types of air pollution or do not equally control go back up that's on page six of their brief and they say that's a reason this the surface the relationship is no good e k g address that express issue in the record shows up in j h three seventy seven energy three seventy seventy said hey if we realize that's what those data seem to show we don't think those data are right we think those those higher for about a high concentrations are a result of measurement error and therefore we don't think that upsets a relationship so he took it on  says of eight hundred fifty nine that is an upper limit and eight hundred sixty one that it can it's a it rejects another approach as i said because it can be met a bit and other approaches it is saying is unacceptable because we couldn't be met by all the existing force at all times predicted what the range of their missions would be but then it didn't set an average it set the standard at the far upper limit of what they were she didn't there's not that that limit was not an average where you look at it was the full standard at the far right hand side of the curve as a ninety nine percent t diversity is intended to make sure that ninety nine percent of all future tests are going to fall below the yellow he also says the record it shows that boilers are emitting six or seven tons of mercury every year the standard for use them by less than two tons per year so these these missions given the numbers the absolute numbers maybe may be small but setting standards at the right level them by many times and when you look at the entire category the significance would be very good if i can just make a couple points to talk about the the waiver claim that he has lawyers made on the exclusion of best sources if you look at our brief it's requires force to be based on the best sources for which he has missions information quickly with respect to the be on the floor standards and this is we case and e p a says that it has to consider cost in setting the other four standards we don't dispute that he has to consider the cost in setting the on the floor standards but it must in what it determines is achievable but you can't just jettison the word achievable and replace it with the word reasonable because those are different terms with different meanings under the statute  a denies that it took finally you can see action with respect to the exempted units that's incorrect because e p a defined them out of the pollution limits and because e p a claimed that this was that this will making as its final response to the previous remains and you'd be also claim that no additional standards are required even if all you did had done was make a decision not to act and again that's not the case but even if it were a considered decision not to take action after especially after taking comment and especially when the deadline for taking action was long ago is finally  a simply claimed after reversing course that they were equivalent to the natural resource boilers and there's no evidence on the record to support that and e p a still hasn't point just to any thank you let me just say on behalf of my colleagues we i know i hope we agree on the cases but we certainly agree that we have listened for the last three and a half hours to really top flight professionals you all have been very helpful to us and we thank you