going to add some additional presentation for five minutes and then we would like to have we are five minutes for rebuttal all right do you have a good nature split up you know it's a little difficult we don't know who to ask questions we don't have a scorecard  thank you in this case our position is that e p a has abandoned the technology based regulation in favor of a hazard a response approach which has no statutory support in the one nine hundred seventy two amendments to the clean water act which are the to whether that was actually true because the laws we believe that the law is pretty clear has led together these different provisions that there are specific duties that are in capsulated within the duty to particularly the trick here is that we are not challenging e p a s identification of a technology based fandor that they decided not to adopt were challenging as a matter of law those the agency had not considered economic impacts when designating critical habitat if there were some issue like that and the the court said specifically that is a mandatory duty which triggers the citizen supervision and the statute before you get to the cases we're going to look at this statute and if it's not clear then it's up to the e p a to determine how they're going to go about it have to do it and how they go about it can you point to what section you specifically rely on that indicates that there is a mandatory requirement to use the best technology what what sections how do you patch that together so it's clea provisions and we have looked at the provisions section three or four b requires e p a to establish the best available technologies and to view and revise it if appropriate technologies based on manual be read three or one d requires those reviews to be incorporated into a five year effluent limitation review which then also incorporates that and then these all become incorporated into technological advances which meet the new updated standards for best available technology or better control technology is there something in the statute you can point to well the it's not your view but we have to look at the statute and  technology to eliminate pollution it's not using risk based on that analysis to limit pollution i mean that is what the statute says it doesn't say there's no there's no support there's no authority for  well we have to establish effluent guidelines and limitations according to a certain set of factors but then we can throw those factors out the door when we consider whether it's appropriate to revise or not i mean that's that's contrary to the entire technology foreseen that's  n question we know they have to give a report the question is do they have the technology or do they have chevron deference to set that up the way they want to and you say well it's all through the statute well can you be more specific as to where the incorporation takes place where the reference takes place you're on i'm now over my ten minutes and i think it might be appropriate now for mr sprowl who actually was a going to talk  of the statute and the purpose and policy of the statute it's true that if you just focus on the words you're for appropriate in isolation there isn't a text that exactly says well if appropriate means you have to do a technology b review and you have to consider these that point guard lines but he would he would do violence to the congress essential intent in an acting the statute to hold then in reviewing whether it's appropriate to revise to the legislative history and the legislative history couldn't be clearer that congress found that the pre nine hundred seventy two clean water act regime was a dismal failure and this is exactly what he has returned to let me don't leave that subsection b of this section refers to an argument could be made that it refers to the word schedule and if that's true then it does not incorporate the problem that you are pointing to so if we get to the place that there are two logical interpretations isn't that when we sort term to the ministry the agency and say you better start this out and we'll take it if you're wrong  establish a schedule in accordance with subsection b is a logical interpretation of of them one because the effluent guideline planning process that's provided for in three or four  doesn't comport with what couldn't be clear about congress's intent to have a technology forcing regime i hear what you're saying but point to the wording and tell me why that isn't a realistic well again it gets back to inter issue well again i'm feel i'm being a little repetitive but that our position is that when you look at it in in context as a whole it's not an all but i'm getting you to focus on just looking at s curious because you brought a motion to bring something up here which was denied by the district court because an appeal that already been filed i'm wondering what that thing is that's back in the district court and when i have in mind i don't think there's a fifty four b order in the file of whether the district court still has something before it which would interfere with our jurisdiction on a piecemeal appeal what what is there that you were trying to get up to us in your motion which was denied well i think that all matters are presently before the court this court there's nothing left remaining before the district court but the district court had held its its parting lines couldn't be clearer we don't have total not been ruled on by the district court and then you ask them to bring everything up here and i'm my question is is there something still in the district court this pending before the district court which would interfere with our jurisdiction well total judgment to the government and she found it necessary to reach that she found alternative bases for granting judgment and hold the government leaving nothing current still pending before the district court requirements governing e p a is review that were found anywhere within the clean water act those requirements are part of the act of revision and e p a would e p a agrees that it must consider technology when deciding whether to revise fluent well perhaps you could with the problem is here though is not a clear cut mandatory duty so perhaps it could be that claim could be brought under the a b a but when we're talking about a mandatory duty in the citizen suit there must be clear cut schedule or annual review and revision in accordance with the technology base factors of substance of subsection be so section b contains a lot of requirements and it's just really too broad to read that specific language into that and to three or four as well  of three or four  to comment on the fact that i think i'm not sure what it means that but unless we can figure out what it means  but i think that if it means something other than what the plaintiffs are contending that it has to has some time into a schedule and i don't quite understand your argument that it says at least annually that that is the schedule what what schedule is it is it going to add to the words annually what is that schedule well the schedule is the schedule for the annual review so the its just before within twelve months is that schedule mean that that twelve months isn't going to be the annually that is it is necessarily a calendar year  making and then considering the rule making it considers the technology base factors of three or four b among other factors that determines appropriate whether it might be appropriate to be doing  some categories and if you simply cannot review for revised all of those guidelines each year it takes years to form room making for just one subcategory and so too it has to be has to have the discretion mandatorily required to do if it doesn't now well it doesn't exclude technology and we disagree with the fact that e p i didn't consider technology and its review process in fact it did consider you say that you do use technology what is the difference between a technology review and the current review that you provide well i guess the technology is real not exactly sure what it was he wants us for wants to do but i assume that they want to keep its consider all factors within three or four b and basically conduct a rule making  based on that ranking it it considers other than the greatest hazards and a detailed review and there does consider the technology based factors and also if the record reve jurisdiction now this court does not have jurisdiction because there's a lack of final agency actually i mean because there's something left down below and we have no jurisdiction no i believe the district court disposed of all claims  comprehensive review every year of all fifty six guidelines they could require that they didn't require that and in our mind that makes sense they didn't require that because a d the goals of the act are not perfectly represented in those specific statutory requirements what we found in thirty five years of working with this act is that the actual provisions that congress wrote don't always reflect complete fulfillment of the goals but we have to stay with these statutory requirements as the writ doesn't seem on that you have to look at technology are revised and we think that's reflected in them one you do have to look at those factors when you are revising a regulation but congress didn't really speak to what factors it wanted to take into account in doing this review and in thinking about well why is it that they repeated in them what they said in the i guess part of my perspective on that is that there are many instances in the statute where e p a was supposed to do something and years later they still haven't done you're supposed to be doing this review we want you to be up front and establish a schedule and tell everybody what you're doing and when you're doing it and why and if they wanted to change the substantive standards for review there they may have the ability to do that they didn't do please the court i'm david birch from our pairing for the national association national association of clean water agencies and i would like to touch just very quickly on the legislative history on the structure of the act and try and clear things  district court judge judge hamilton which actually i think is a model of clarity and conciseness and got it exactly right the it's been established for over thirty years since the supreme court's decision in dupont exclusive jurisdiction to review both the affluent limitations and affluent guidelines for this hybrid that they call when a patient guidelines rests in the court of appeals under section five zero nine of the clean water act no mandatory citizen suit under mandatory action suits and so under five zero five prior to the pot only be eight circuit it suggested effluent guidelines could be reviewed in district court and all the other circuits the this this case that's been brought by the palettes if it should have been brought in the court of appeals and it wasn't it was brought in district court the district court may have exceeded its own authority i think it's arguable of the clean water act a one time obligation for e p a to go out and review and revise if appropriate all of the existing effluent guidelines that's not c and that that review and that decision whether or not to revise would be reviewable in the court of appeals under section five zero nine of the clean water act so i think that's dispositive in my view that that this case should have been filed if at all here in the court of appeals the thing which i'm sorry sir is judge wallace was asking about what might be left what would they ask them to bring up i think what the  asked the district court judge to transfer was well if i don't have jurisdiction and i just transfer the whole case of the court of appeals and sure of the flaw the fact that they failed to file this in this court in the first instance they never filed  which is whether it's appropriate or not appropriate to revise the f one guidelines i guess the only reasonable interpretation of that language is that e p a has to take into account the factors that would need to know whether it's current effluent guidelines still define best available technology if they are reviewed doesn't allow them to know that which their current methodology does not then they're behaving irrationally and contrary to the statutory purpose who's relatively more risky an administrative you do some screening who's we because a court has a district court of appeal one of very good deciding whether it's technically based or not and what the current technology is and everything has gone through administrative agencies so that they can look at it and then we'll see if they've abused their discretion here in this case you seem to be arguing that it's mandatory that we get into the technology issue without the screening of of an administrative agency isn't that sort of counter to the way the law has been developed and if so should that be weighed upon how we decide this case question and i would say that gets back to a question was raised earlier about