submission of an application as is the application have to be just in during ordinary application or does it have to be an application for for a ph d review well in this case your honor the title five an application that incorporates the p s t requirements as a major stationary source so how do you get the ability to incorporate for exempt come from from the title five provisions of the clean air act title five i thought operate without triggering the baseline if it doesn't apply for any that's correct it's never a quite funny thing and this goes back to the application for an operating permit under title farai to translate into an application under the p s t regulations i understand that yeah it's by virtue of the store simply being a major station decision in western states patrolling association be even i may quote from that decision under title five quote all clean air act substantive and prestigious requirements to a political to a pollutant emitter are written in the combined modifications constituted a major modification of the source now there's no dispute that the combined total of their excess knocks commissions from the three modifications made in two thousand one administrative record i believe the record demonstrates that they were or were no where i can look and find that i could get that for you ok thanks for that point the for the reason i brought up the major modification definition is because not we believe by virtue of this mission of those applications and by virtue of the modifications to the source you've got the triggering of the requirements of p s p here e p a would like to undo those requirements so we could of the new baseline area lower area sixty one will not intersect the area of impact of the barrack mine now this is important because baseline area for the state in the battle is defined as hydrographic areas or area sixty one is not they did not know that they determined that there would be no incremental increase in pollution added to the area by virtue of the efficient no  i believe what happened was they did not consider the barrick gold strike mining complex to be a major stationary source i'm not asking whether you think it was correct or whether they've considered the necessary component items to reach a correct decision asking you with but not through that they reached those two terminations whether they're correct or not the record doesn't demonstrate that and i believe i have us right now assuming that they need those and that they're factual determination what degree of deference does this court oh those determinations well that's the terminations i believe  through the agency asked that very question about varick two thousand and one modifications and ask for a further explanation as to whether the april two thousand and one modification  from the august two thousand and one modification varick provided a further explanation told the state of nevada that the april two thousand and one modification had to do with taking emergency generators for power and converting in the limited backup use vs the august two thousand and one had to do with back filling operations and replacing outdated equipment well yeah but it's off from the same facility as how do or separate modifications and the support that i can point to your honor's there is actually block quoted by petitioner at page twenty of their reply brief they quote from the regulations under forty  and the first is the increase from a particular one this is the sum of these things and the second is any other increases or decreases that are contemporaneous with a particular change and then they say it's following and then there's a call and then a list i don't think you stop after one well before you even get to the net emissions increased regulation i guess i should have backed up first you have to know whether there was a significant modification at all here there was not a significant modification because again in april two thousand and one it was less than forty increases in and august of zero one it was about eight turns increase facility was to make benefit of the net admissions increase and get itself out of the p s t program that is what this regulation talks about and it says that if you want to trade emissions for example here barrack actually took away some sources and in august of two thousand and one with respect to its backfilling operations if it's modification had come close to forty it could have said state of nevada  modifications that relate to this project over five years and we would like to get credit for those changes that we have made that have decreased emissions and so this is what this regulation is geared at through support i would point to the court is in the e p a s new source review manual which is actually quoted by derek in further explanation to the state of nevada about why  two thousand and one modification is distinct from its august two thousand and one modification and eric's explanation can be found worse than action with the allegation being that you committed a major modification without somebody in the necessary permanent location so again that's why nevada asked the question of  was compelling evidence in the record that there were they were not separate and distinct issues then perhaps great basin would have a stronger argument that there's been arbitrary and capricious action here here the record at lea shows that purported to explain the differences in the physical particular physical changes the state of nevada satisfied after that inquiry the e p a also looked at that looked at the application of the materials that's why it's in the record and it had no comments and our position is that is that is at least a sufficient basis to affirm the rule under review because again the record does not compel the conclusion urged by great bas now if great basin was concerned that there was some of the struction of the of the p s p program here perhaps it has other remedies under the citizens to provision of the clean air act saying eric you really in fact in substance have applied for a ph d program back in two thousand and one and if it's ultimately successful in such as to perhaps they would you know entertain a petition for reconsideration of the rule but we don't have to go there again because that the only thing before this court is the reasonable again if the source is opening up its books to a five year period in order to get some decreasing credits it also has to make sure it's taking account of all the same contemporaneous increases i also would the court is truly concerned about the net emissions increase and how it works as i've explained we'd be happy to submit the supplemental briefing on that because of the really the issue wasn't fleshed out in the opening brief and you try to be as preemptive as you can in a response brief but perhaps more elaborate and should have been noted on our part in this area says relevant regulations no fewer than three sentences ahead of that it lays out forty c f r fifty two point twenty one and forty c f r fifty one point one sixty six those must be the relevant regulations and that's in fact of the above discussing there's distinct differences between title five and p s t title five unlike great baseness contention is not about making new decisions that should have been made at the pre construction time rather title five wants to have everything in one permit document that's why you incorporate all prior permits reviews into that document and it's good for notice for unfortunate purposes so you can tell in one document what are all these well then e p a has discretion to the state has discretion as well to retroactively change the baseline dates that's why i was mentioning earlier and you know if if there's a scenario where there's litigation against a facility operator that didn't submit the right application at the relevant time then that is and that's ultimately found to be true than then that can be submitted to the agency and the agency can make a decision on it and it's  a has elaborated a little bit further in its regulations it says that the designation must be on the basis of sufficient data and then further in it's because the designation of under section one of seven of the clean air act has significance for the prevention of significant deterioration program the e p a regulations on p s d impose one restriction be the new area created cannot be any smaller than the area of impact around the facility that triggered the minor source baseline date here in nevada application  now again using the phrase no p s t source it's kind of loosely stated i mean yes barrack is a major emitting facility within the meaning of the p s p program and therefore permanent authorities have to watch to make sure a there's this loose shorthand phrases here but in substance the state of nevada did in fact represent to the e p a because it was the most familiar with barrack and its history saying it isn't it is not a facility that h been obligated to secure a p s p permit for any i'll together new construction or a major modifications to your bottom line is if you know nothing in the record for the various analysis on its face was problematic we were not saying that the e p a with the state of nevada has looked at that area of impact analysis what we were saying is the only evidence in the record which was submitted by barrick after an extensive study on its part is that the area of impact comes nowhere close to lower sixty one and we don't know if there has court doesn't need to reach the second issue because their administrative record supports we are forced to reach the issue i think we would have we have to say well the e p a really hasn't ruled them that well there is also the president from this court about an obligation to was part of a larger program to get everything down through postage stamp size perhaps in that appropriate case e p a could come out differently but here we have an area of five hundred six fifty miles nearly five hundred fifty miles that was divided the smallest post division is now you know under two hundred square miles just under two hundred square miles so we're hardly in the postage stamp situation here this was the last postage stamp pretty big there that i can understand your honor's point but for nationwide purposes it's also helpful to know that the state of illinois for example has baseline areas on a township by towns decision and those guidelines were doesn't comply with the p s t regulations and will that not hinder the state's ability to manage its air quality program and even if it were the case example let's pretend there was no split a very sixty one we don't know whether the entrance of a major emitting facility an altogether new one and therefore a p s t triggering source in lower sixty one would have consumed so much of the increment that it would really have much of an effect at all on any day to day modifications that derek finds itself in need of both before and after the rule that issue derek is under an obligation to good morning your honor some bill on behalf of interveners state of nevada and i'd like to thank the court for allowing the additional time for this morning's argument as well as thanking the united states for sharing the time to begin i'd like to join the organ already made by the united states based on research that nevada is merely trying to accommodate new polluters and additional missions increases and circumvent the requirements of the clean air act p s e program and this is flat out wrong this court a year ago confirmed that nine hundred seventy eight the state divided the state into two hundred fifty three air quality management state areas and in the twenty five years since then we've designated three times we re designating one nine hundred eighty two by splitting steptoe valley into three and we designate it with this rule meeting making which route designated for pm town and split area sixty one we didn't chop the state up and as the intervening twenty five years since we've designated the two hundred fifty three areas it has been one of the fastest growing states in the nation with the majority of that growth all occurring in the south in las vegas and in the west in the reno washoe county area and we've not really designated those areas we haven't chop them up instead we cut we divide it in half one and into three another in the rural on populated undeveloped areas of the state to allow reasonable economic development balanced against protection of better quality resources and it seems that if we were in the business of chopping up the state to accommodate business all of that would have occurred in the east i mean rather in the west in the south as have others what if you were in a business just of dropping out a few rural places to promote economic development without being an air quality reason for why when you look at the end let's look at areas to be one with we we divided an area five hundred fifty square miles and even by western standards it's a relatively large area we divided it using the same historic math that that we divided initially we looked at the terrain and we divided the lower area which is has a forty six hundred foot elevation and separate at that and two large ranch for industries along the interstate highway eighty corridor and the lower area is four hundred ninety square miles now the upper air is one hundred fifty six square miles and the elevation up there is fifty five hundred thirty seven thousand feet no one lives in the upper area there's mining activity there so we've accommodated reasonable development that development can go on in the south upper area is probably going to you know from the state perspective we see that will be nothing but mining activity up there because of the nature of the terrain area because it's divided if every sixty one is divided and a power plant is built in the south that'll trigger the base line in the lower area and it's easier to keep track of those s wired to keep track of the minor sources that then would locate there or that are located there if that would consume incrementally after the the miners response baseline is set so from a management perspective it's easier to keep track what businesses are there what they're emitting when they're admitting what this is coming go and how that affects the area so in a sense it's somewhat easier to work from the state's perspective to manage the smaller areas in this case the smaller the lower area which now is essentially ranch land or range land is still forty nine hundred square miles with probably twenty five families living in the area the major stationery stores are modification has occurred or located in a clean air area the agency is barred from redrawing the geographic boundaries of the clean air area and never to untrue the requirements of the impacts an area and preventing that date from being changed by subsequent area we designations the system assures that future growth in that baseline area will be assessed for its air quality faxed from that date forward now this is consistent with se which incorporated those three permits which were still pending so november sixty three thousand one not only did we have three modifications which were pending and part of e p a but we also had a permit renewal which incorporated three modifications those modifications netted combiner aggregated all the speed the forty tons per year threshold to be a major modification and creating allowing sham permeating it's allowing eric to trap up and make one modification here another modification here another modification here the problem i thought somehow it