center for biological diversity versus army corps at all  the morning may it please the court my name is jacqueline lopez and i represent the conservation organization appellants in this matter this case concerns the army corps violations of the national environmental policy act an endangered species act with regard to phosphate mining in that that the court had made that the court made a finding with respect to the core analyzing cumin of the facts and that it did not have an obligation to look at the end or end it so that's what we're talking about today yes i don't think i've ever had a case with  and explains what an indirect effect is and it says that an indirect effect is caused by the action the authorized action but occurs later in time or farther in distance but is reasonably forseeable like a growth and do sing impacts and here the radioactive waste product of phosphate mining is reasonably foreseeable like those other courts that have looked at recently for steel impacts so the record says that the phosphate rock that is going to be mined from the south past extension mind that all of it will be taken to a nearby fertilizer plant and turn into fertilizer and that any time you make fertilizer so you need to take the phosphate rock you apply sulfuric acid and that's what produces the fosco gypsum this radioactive waste five to one ratio yes your honor so about a thirty the record says that about thirty million tons of radioactive waste are produced in florida every year to make fertilizer he says a ridiculous question but word of the other four parts come from for why indirect effects analysis should or should not be applied that's actually a defense that the army corps has raised and it comes from the judicial concept of independent utility so our argument is just that the  regulations that implement explain what indirect effects are in the court need not look any further and in fact there are other circuits that have looked at the test established under public citizen to explain how you analyze and direct effects in defense the course says that thirty three and twenty five the site that you just referenced now that citation actually has three sections the st section explains how the district engineers supposed to go about identifying the scope of the activity the nd section goes into more detail about that and the rd section at the end of the rd section it says that in all cases you must use the same scope that use for benefits as you do for analyzing alternatives it impacts and so if we are to rely on those regulation agency is only entitled to deference so far as it has actually looked at those regulations and that rd part of that section is completely omitted from the analysis and i thought you were arguing the regulation in your favor not that the agency was argu going to regulation in its favor and if you if it's a defensive interpretation of the regulation i don't see how they have to raise the regulation so i  understanding of their argument is that they don't have to look at indirect effects if those effects have independent utility from the underlying action and we argue that you don't even have to understand that because what i'm asking is th agency has only looked at subsections one dollar and two dollars subsection three explains that regardless of how you're going to do this test if you're going to say the benefits and here the benefits are explained in chapter one of the area what environmental impact statement as fertilizer and how fertilizer feeds the world and how this company exists to make fertilizer that's the benefit that's a public need for the project and if that's the scope of analysis for that public need then it makes sense that you would look at the same scope of analysis and that's what the regulations require they look at the same scope of analysis for considering alternatives and for impacts and here the core fail to do that entirely with what's your response to proximate cause i guess is how you would call the argument is that this is this is a permit to put sludge into into water but it's being it's being challenged because there hasn't been enough of a concern for or  enables the product to be made and then sold and then used elsewhere far away and in in that in that very different process there are some dangers i mean it does seem extenuated so the argument is made well there's a proxy proximity limitation that's been read by the supreme court into the statute seems to me if it has and if it's going to have at proximate cause ation and whether there's control and authority to address an indirect effect so for example with sierra club the st that established a a bright line rule with respect to what a reason the forseeable impact d c circuit from two thousand and seventeen and the court there found that the test could be something like whether a person of ordinary prudence would find that it was substantially likely to occur that this impact were to occur such that it would take into account in analyzing the underlying action and here we have one hundred percent certainty that the rock that's taken from the mine because this is at the army corps own records and we understand that this product that's being made and that put the depositing of the material into the waters permits this process to go on well ultimately result in a product which will have the effects of that product whatever they are so in that sense it's st simple but but that was the case in public citizen as well i mean you could st see the increase in traffic that they said was not a proximate cause of the regulation i'm a consensus i mean i'm just saying it's foreseeable when of course if you're making a product that's foreseeable it will have the effects that that that product house i'm not saying how that answers the public citizen question sure your honor and the distinction using that analogy would be more immediate because the record it's just i'm not saying how how as it is this well the reason is because here we know for certain that all of the rock this is what the agency has said this is what they're going to be used for that purpose for that purpose exclusively that that industry this this this particular applicant owes that fertilizer plant the record says even that the very viability of the fertilizer plant is dependent on being able to mine the rock and so we have a situation where the rock it's only made useful by by applying the sulfuric acid which creates a radioactive waste product now this is a waste product that was recognized by the environmental protection agency which was a cooperating agency in this nepa process and in several instances noted in the administrative record the e p a asked the corps look like big to the core to look at the effect of fossil gypsum it says it has long considered faso gypsum radioactive waste to be part of the mining waste stream and it even suggested questions that should be looked at like if you authorize the phosphate mining the central florida phosphate district  dredge the waters so yes it's section four hundred and four of the clean water act and under that act in the army corps has the authority to authorize dredging and permitting and under the national memory policy act which it is required to comply with in its clean water act obligations explain that you have to take into account for the purpose of reason informed decision making in the twenty mg's of our informed agency decision making and public participation now while it  substantive well rather it's a procedural statute the purpose its sole purpose is to achieve those twin a means and the only way that you do that is by assessing what the impacts are in the e communicating with the corps about the impacts of radioactive voice said we need to be asking questions like as a result of this mining how much radioactive waste is going to be generated where's it going to be stacked what are the environmental impacts of that the agencies need to know that before they issue a decision and the public has a right to know that the communities that live in these areas the public comments are and the ministry of record shows that there are many public comments from sarasota county which is the county that lives south south of these mines and these chip stacks was very concerned about the fate of the stacks so those are that's that's where the army corps gets its authority and that's the process that happens here that was not a valuated issue here is we have underneath under the national policy act we have an environmental assessment that is followed by a record of decision the regulations at one hundred and fifty thousand eight hundred and fifty nine point two say that you only follow  environmental assessment and the purpose of an rommel's usman is to determine whether or not an environmental impact statement is even necessary and if it's not then you have a finding of no significant impact those are two options but here the court did a rd thing which was create a record of decision on the basis of an environmental assessment so this is just a purely a matter of law whether or not the corps followed the regulations that are required so you would have a mission fonzie well on the record no your honor because the record in this is not dis the extent of harm that south faster extension mine will have significant impacts that's already on the record and so what flows from that if there is to be mitigation that addresses that that needs to be analyzed and you conventionally do that with environmental impact statement when you find that there's significant harm with respect to the rd issue that has to do with the program attic review of the central florida phosphate district which is found here to my left at this  just to show you the scale the scope of the area that's affected the pale yellow line outlines the the scope of what is being looked at here that's referred to as a central florida phosphate district that's where the mining reserves are found the highlighted areas that that pretty blue collar at the top that's all historic mining those are in various stages of abandonment or reclamation depending on when they were created and south of there the different colored mines are the ones that you can see that are  alternatives that were at issue and before the corps when it went about looking at these cumulatively now the corps received these permits for mining that would cover over fifty thousand dollars acres of phosphate mining and determine that because they were alternatives that this was something that they needed to look at in an area wide environmental impact statement now under the endangered species act to the regulations implementing that act at fifty c f r for a two point  require that an agency review its activities at the earliest possible time to determine whether there's going to be an impact on species and activities are further described at four o two two x cities are all actions or programs of any kind carried out funded authorized by the agency in whole or in part including a direct i have wanted to ask you about this because to me this seems like your weakest argument was of makes me think maybe i'm not really understanding your argument when i look at the environmental impact statement it talks about how the mind projects affect i mean as a result of a consultation with fish and wildlife no your honor there was no and there's no dispute as to whether there was consultation with the fish and wildlife service on this program adequately ok so your argument is they needed enough and it also wasn't done on the full the full program that was reviewed so the subsequent consultation occurred just on the south paster extension line which is that when you know what that which is what the core prove that's correct your honor that's alternately the activity that it authorized under for what so this litigation deals with that part and there was consultation with respect to that it just wasn't adequate because when they did the preliminary overall you know i guess they didn't consult at that time and i'm happy to address that your honor with respect to the biological opinion that was prepared for the south pastor extension mine for example in that biological opinion the core of the service did not analyze the effect of the concurrent phosphate mining for example the mining that's going to occur just south of that south pastor extension line because that was considered a future federal activity that would be approved in the future and therefore not considered as a cumulative impact under the endangered species act had the framework that would be used moving forward for any subsequent mines in that region that's what the record says that that was the activity additionally yes you did have to consult on the south pastor extension mine and there is precedent in this jurisdiction under paulison the th circuit in two thousand and eight found that females implementation of the national flood insurance program in issuing eligibility criteria needed to consult at the earliest possible time because what that's what the regulations require at that i understand it i can i can sort of that thank you  issue in this case the corps of engineers has limited authority under the clean water act this is section four hundred and four which is a permit provision of the clean water act the army corps of engineers in this case issued a permit under section four of four that allows a mining company to discharge dredged or fill material into wetlands about one thousand two hundred acres of wetlands in connection with ongoing mining operation those wetlands are considered waters of the united states which the corps of engineers has authority to regulate that's why it's issuing this permit the state of florida and the local county that the mining operation is going to be they also issue permits so interrupt you the so the permanent  is to put stuff into the water that's correct try not to dredge her was so one of the things that they do when they mine is they create these giant berms that help contain they and so if they're going to enter wetlands so florida this particular area of central florida you have dry uplands that would not be regulated by the corps then you have wetlands so when they do these berms if it's going to cross what is considered waters of the united states they need a permit to do that so in some cases it might be excavation in some cases it might be dredge material that they're that they're using earthmoving equipment they're entering waters of the united states and in order to do so they need a permit from the corps of engineers and so that is the agency action associated with this with this ongoing min and so what the agency did was it said ok here's what we've authorized we've authorized this dredge material fill material to enter into the wetlands what are the effects what are the impacts of allowing that to go forward and so you look at chapter three of this environmental impact statement and it goes through in the court talks about what ongoing mines what the situation on the ground looks like and it defines the scope that is then considered in chapter four of the environmental impact statement there's three hundred dollars plus pages of analysis of impacts from this mine and all the impact analysis is in chapter four isn't correct yes your honor i'm just saying chapter three it talks about the process by which this mining is occurring and i just want to point out a few things in chapter three because and i think what's going on so the mining is occurring the or is being excavated from the ground it's being sent to a beneficiation plant so in the purpose in need of the project in general yes it is to mine phosphate or but it is also practical consideration the reason why they're expend they're extending this mining operation is because they need to be near these beneficiation plan so the aura gets excavated it gets put into a slurry gets pumped to a beneficiation plant at that point it is goes through this mechanical process by which the or is separate after the or is separated from the clay and sand and all those kinds of things it's put onto rail cars and it's good as of then there's no f that occurs to the extent that that occurs with any phosphate rock that is mine at or near this location that occurs at a fertilizer processing plant which is somewhere in the area when the corps looked at this and i want to just be clear about this when the corps looked at  severance that is when the or itself leaves the area that the mining is going and it could go somewhere else now plaintiffs when my aunt say somewhere else somewhere else right so this is there somewhere else you're talking hundreds of miles somewhere else or it could be your honor there are fires like on a railroad or it's on a railroad it could go on a truck it could go on a truck to a port that gets put on a ship that gets sent to louisiana the point is on this record plane if you have this record is and i believe  what it describes as being independent so if an activity is independent of mining it is not caused by the it cannot be an indirect impact in the core made this determination the core plight it's expert expertise when i was looking at this and he gave three reasons why those impacts that are found at a fertilizer plant which could be far away why they are not in direct impact from the permit issued for this discharge of dr fill material and it says the fertilizer plants operate independent of mining that's in the record so what that means is even if and you can take there but for their argument is that but for this permit these fertilizer plants are going to operate but the record doesn't support that in fact what it says is that mosaic will could continue operating its plants even if this mine permit had not been issued by that there are other there are other there are other phosphate mines in this in this area that they are currently mosaic itself there are other companies so it's not that they could continue to operate fertilizer plants without the phosphate is just the way they are that's correct or they're already permit so you to permit it are exempt they have a current source of what you say in the environmental impact statement or what the course says is they could import that's correct i have a question about that absolutely yes so some time after the environmental impact st four florida cars concentrate slash fertilizer plants is dependent upon the ability to continue phosphate mining in this in these areas so i don't i mean the record seems to contradict your basis for saying it's an indirect effect i mean they're saying the plant wouldn't be viable if if you close these mines you're saying well they'll just get phosphate from somewhere  else so there's three reasons why they gave and i just want to be clear about this i'm i have to look go back and look at what you're citing as to what this communication was an ad in july about the but i think my in the environmental impact statement the core goes through and explains why there's other plan it went through and analyzed the economic viability of the fertilizer industry and what do you rely on the statement of i believe in taking my mental so later you had the environmental assessment this is another this occurred after the environmental impact statement and so there was communication that occurred between the agency and mosaic that was analyzed in the environmental assessment which cites back to the area wide environmental impact statement so may perhaps there are conflicting things in the record that your honor is pointing to but i believe and i think explain this in our brief there's a big difference between economic viability i think that it makes sense this is that the sylvestre case from the th circuit like of course they're allowed that the whole purpose of this is to provide them with phosphate or that is mine locally we understand that we say that the purpose of meat that's in order to get the or to a local beneficiation plan but when you're looking at indirect impacts and this is what i think is important here what the court did you have to look at this and say was it rational for the court to reach the conclusion that it did we are under the ministry of procedure act you look at this record and you say was it rational for the cor to look at this and make the conclusion that it did and so what it said was there are other manufacturers in this local area that are able to import phosphate or and they would keep it running i believe even there's also instances in the record in which mosaic said that it could continue using it for live plants so i'm not sure that even that one citation right there would support a finding that the core necessarily acted irrationally or was somehow unreasonable in reaching the conclusion that the core consider that came through the fact the stacks i may have overlooked something but chapter four which you told me previously in my set up question yes right was where all the cumulative analysis is doesn't mention stacks doesn't just overlook and i would have to go i don't actually read the way it describes so what chapter four is doing is it's looking at surface water it's looking at ground water to get water quality it's looking at ecology it's again all of those things and it does go through and discuss cumulative effects and under the regulation and this is the difference between when you look at the regulation for indirect and you look at the regulation for cumulative effects cumulative effect says that you need to look at the past present and recently forseeable future actions  is the stacks and the problem of the stacks that we've been talking about so much discussed in the cumulative analysis yes i believe it is and i don't know if so chapter four is giving the overview of everything that's going on in and it does so in the context of those resources that i was listing so i'm not sure that it matters whether it appears in you know all the things that were discussed as in terms of past present or future we cite this in our brief in discussing the stacks yes it might appear in chapter three but it informs the yes which are cited throughout and also in the end vironment assessment that was then issued later before the record of decision was issued so there's really two documents that contain environmental analysis so if the stacks aren't discussed in chapter four which is a cumulative analysis it isn't and a problem for you i don't think it is your honor at all because you can elevate form over substance here i mean i think if you suddenly have a whole mess whether you call it chapter three or chapter four the analysis is there but you call it form other people would call it procedure which is what it is all about absolutely your honor and the power requires agencies to consider the environmental impacts of their actions and so that's exactly what the and that's exactly what the agency did activity and then there is no future stacks that are there being contemplate in these two watersheds where the mining is to occur and so it was not my argument it was not irrational or unreasonable for the court to go about doing its analysis in this way and so  extent that we're concerned about what's going on with water quality with surface water groundwater the stacks were considered in that analysis and also in the appendices i pointed this out in my brief there's analysis of a regional level all of those effects would have been amount of sense to me which was that there's a permit for the mining process and there's an effect from the manufacturer that uses what's mind right right and that use manufacturing the processing of the mine product could be had a very distant place and would would normally if you're if you're worried about the effects of that manufacturing you would deal with those that regulate the manufacture other than those who are regulating the most the minor that seems cause kind of limitation whereas all of this independence stuff have to get into the market and how necessary it is and all of that doesn't seem as has as intuitively acceptable so is there some weakness of your co counsels argument that that causes you not to make that argument very much i mean i barely sigh publics i'm trying to figure out what's going on are you with me yeah  y i mean the core when it looked at this it did so in the context of what it described as independent utility i don't see that as conflicting in any way shape or form the different terminology for the same idea right it's the same exact thing so in public citizen what you had was you're looking at this or you say public citizen supports you absolutely your honor i just think that whether you call it proximate cause whether you call it you know whether it's independent my point is just that public citizen says that you have to look at what the agency has authority to prevent the impact that it it's looking at you're absolutely right the state of florida and the u s environmental protection agency they are the ones that regulate the fertilizer processing the corps has no role whatsoever the corps role here is to issue a permit that allows the discharge of dredge and fill material into waters of the united states over one thousand two hundred dollars acres of wetlands that occurs somewhere separate and apart from what ultimately occurs with the phosphate or and my point was just that when the corps looked at this it gave three reasons why that's not the fertilizer processing plants are not in direct impact from its permit to authorized this is just charge of material and those are the reasons i gave and so my argument is just that those were rational reasons that the court gave to reach a conclusion that did everything in public citizen supports it and i believe the the florida key deer case that plaintiffs rely on it explains public citizen and says that he just he can't be held accountable for effects over actions that he didn't take so this is that's exactly right the sierra club versus fur there's a lot of discussion of that even in the st case i mean it's legal analysis it has to provide a satisfactory explanation of the impacts that it either considered or didn't provided no explanation and that's very different from the record from all these other materials then it gets put on a railway a railway truck or or gets put on a semi truck and it gets shipped somewhere what the corps did is it looked at that it said it described it as the point of severance it said that is where our analysis of impacts and we're going to look at this giant area the geographic area but we're not going to look at fertiliser processing why because we know that there are other uses for phosphate or we know that other manufacturers can use it we know that mosaic may put it on a barge and ship it to louisiana plaintiffs provide no limiting no limitation to the test that they espouse if you adopt their version of indirect impacts where does where do you draw the line they don't provide you with a line so indirect impacts do i go look at when the fertilizer gets put on the farm where does the corps draw the line and the corps in this case applied its expertise and recently concluded based on the record that it had before it that this is where it draw the line and under the administrative procedure act that was not an arbitrary or capricious decision by the corps because they provided a reasonable explanation and this court should affirm the judgment in favor of the federal aid let me ask you a question i know this is a small matter but the expectation it wouldn't have a measurable impact other than it's just a demand of us percentage or demand most areas that it that's the reason that the court gave but also when you look at the regulation and plaintiffs cite the same regulation that i do it tells you that you need to look at significant impacts as what the court did again is find its expertise look at this and said it's four hundred acres of and i don't know if that home one hundred thousand whatever it is the you know substantial question is watership i couldn't tell the expectation  there was anything else and thank you counsel thank you rather mr sedley seven minutes good morning in may please the court george sibley for music fertiliser judge carnes i'd like to start with the question you put t beeler regarding cumulative impacts and the discussion in chapter four in particular in section four two while the petitioners received the appellant's make much of the fact that there's no specific mention of the chip stacks in that section and you would not expect there to be a mention of facilities and the discussion of impacts the cumulative impact section discusses impacts to the the south past the watersheds that are affected by the south pasture it's that one current one on one current one and it is in active in the process of being closed the remainder of them are outside of the watershed and it is true that in the past so with respect to surface water resources you're only concerned with that that one watershed now the groundwater the scope of the geographic scope of review when it comes to groundwater is broader and it captures the other active enclosed  to the extent those facilities have impacted the environment those impacts are documented in section three of the e i a s and in section four where they did discuss all of those impacts and that isn't past effect past past and what the the impacts of those past and present activities those are all captured in in section three and section four under c e q guidance from two thousand and five it's entirely appropriate for the agency to do exactly what the court did here which is to aggregate those all of those impacts and present them as a baseline and then look at how the activity being authorized cumulate swith respect to those those can are the stacks mentioned in chapter from the these stacks are not i don't believe the stacks are mentioned specifically called out in chapter four but nor any any of a host of other facilities that impact water quality within these these watershed therefore it's even more defective than not caught my question without considering the individual impacts all together well the st this one then that one then this when we add them all together you can mean in general that that's correct but that results in an actual measurable environmental consequence that you can detect so if st of all the gypsum stacks do not create effects that are that are cumulative to the effects of the mind they are they are they exist and they were considered but they are regulated in the under florida's fossil just dips and management program they don't discharge water into the environment regularly they're heavily regulated and they don't they don't except in the instance where there have been upsets they don't discharge into into groundwater and those incidents have happened and those are documented in the in the environmental impact statement and to the extent that those impacts have altered the ph that have had any other effect on groundwater that would be concerned about those those conditions are measured and documented in chapter three to evaluate whether any impacts from the south pasture extension mind would add to those baseline effects and we ate in that we ate new effects that we need to be concerned about spawning effective surface water on is that correct algae spawning is is on is on surface water yes and that's and that's not involved and that's that's not involved here so you would not expect a specific call out of individual facilities in the cumulative impacts discussion the one exception would be if there were to be a new chip stack created and planned whether caused by this this facility or another and there are no new chip stacks planned within the relevant geographic area going out into the forseeable future so i would not not to be not to focus overly much on the fact that there is no mention of gypsum stacks and section four turning to the question of proximate cause a judge rogers the we we certainly like the public citizen analysis a under the resource conservation restoration act and those independent authorities dictate whether those those fosco gypsum stack's have any impact on the environment at all and those are decisions for the for the state of florida and of such waters identified within the south pasture extension mind of the corps broaden the lens they were not they did not narrow their focus on just the on just those one thousand two hundred dollars acres they looked much more broadly at the entire seven thousand acres of the south pasture extension mine but the break in causation occurs when the rock leaves the beneficiation plants and goes to those distant facilities it is there that whether the corps has no ability to control whether those facilities cause any impact on the valley environmental coalition that we discussed in our brief judge gregory in that case describes a surface coal mine where the core had a very narrow focus on its discharges into waters of the united states in streams and valley fills there as here had the corps not issued the permit for the discharge of dredging fill material you would not have been able to have them on the broader mine be constructed but the upland portions of that mine were under the control of the exclusive control of the state and the west virginia department of environmental protection we have to talk about this i mean for my part you know that's just very different from where the united states entered into a treaty that says mexico's trucks can come into our country and you know the president is has to order compliance with the treaty after the issues been to mediation that is something very different and public i mean in that in that case though even that was not argument was just but far calls won't cut it but for a cause won't cut it it needs to be proximate cause that's exactly what let me tell you that public citizen seems like a no brainer to me i mean the the president says i want to lift the moratorium but i need some safety regulations well what what is the agency's supposed to do say no we're not going to issue any safety regulations so you  can't you can't lift the moratorium and therefore the environment will be protected and this is just i didn't read the lower court decision to lead the public citizen the ones that went the other way but it seems far removed from this situation other than just to but far cox well i think in fact if i may respond your honor the in public citizen yes the agency was was under a legal compulsion to act on on this particular issue just as the corps was under a legal compulsion to act based on our application for a permit for the discharge of dredge and fill material there though the impact the downstream impact that would occur increased emissions from truck traffic would only occur if the president lifted the mature moratorium saying here impacts from fos the gypsy or within the control of different agencies and whether they because there was a concerted voluntary effort to avoid putting more phosphorus into the water place and then after a year or two feel good advertising the number came back was there ever any kind of regulatory involvement in that keeping down the phosphorus number and and homeowners fertilizer bagged twenty five pounds of fertilizer what i mean fosters  hasn't bad effects on the environment particularly on surface water and i thought then that well somebody's getting a handle on this but apparently not your honor i wish i knew the answer to your question unfortunately document i am familiar with that is that is that still true well it's certainly the case that you know it's a vertically integrated company and the economics are such that it is highly desirable to well i'm going to i'm going to get  it's highly desirable to produce at the fertilizer plants to mine phosphate rock that we locally generate as opposed to him as well as to import it is more expensive to import and the market for producing fertilizer is highly competitive where you increase the cost and arse economic system if the viability is dependent on it and you don't have it you're no longer having an operation and people don't do things for the good of agriculture company's perspective it's necessary that this continues that we certainly it's certainly desirable for that for the to continue that is correct thank you council misspoke and this will give you a couple extra you so going directly to indirect impact where to draw the line judge to roger's you have been asking about in this instance i think that's found very simply at the corps regulations and it does have to do with what's at the heart of the matter which is fertilizer so if the purpose is to create fertilizer and that i think from the record is pretty clear what the purpose of getting these phosphate mines approved is that at the very least that next step that requires creating fertilizer the waste product the waste stream which the e p a has long considered to be part of phosphate mining is a waste stream should be considered as an indirect that's found as part of the appendix b it's also found at the rules for implementing the clean water act at thirty three c f r three hundred and twenty point four that have to do with the balancing that the court must do in place deciding whether or not to allow a four for permit to move forward and that says that you have to balance what you would be the reasonably forseeable benefits of a project what you think are the reason we will detriments and in balancing that process that analysis should result in your decision of whether or not to authorize the permit or to to manufacturers who are going to use so not necessarily your honor with respect to a hypothetical of what a condition might look like we know that there are two dozen stacks in that central florida phosphate district and we know that they are prone to spills and leaks and so for example one can get condition could be that you have to alert the community nearby when that happens you have to do alert the community that lives nearby  and fifty nine dollars it says that all of the rock that they're going to use is going to their fertilizer plant which i just somewhere it's in the central florida phosphate district it's nearby it's deliberately nearby and as you heard opposing counsel from mosaics say they are vertically  integrate they produce over half the u s domestic consumption of fertilizer they are competitive because they have captive they have captured phosphate mining they say that they captive lete produce phosphate or that's what that means and they take it to their fertilizer plan this is a situation very similar to some of the cases in the sister courts that have applied public citizen test so with respect to like the south fork ban for example out of the th circuit there in authorizing a coal gold mine the court found that you have to look at the indirect effects of processing that gold because that's what you're going to do with it similarly in wilder's guardians looking at coal mining there they looked at well obviously you're going to be processing this in this so there are emissions that are associated that's the of phosphate without producing five tons of the radioactive waste your honor all we have on the record is that's what's resulting that we have thirty million tons of this for the last several decades being the fossil chips and the radioactive waste be every year that that there's nothing in the record that would suggest into new to happen moving forward and that that could have been one of the things that the army corps looked at if it had actually looked at the indirect effects you know what is the industry doing to reduce  and and they're just being exposed to weather on the hopes that that will reduce the radioactivity in the toxicity and then that is recycled correct that's the theory anyone u phosphate district is approximately three thousand two hundred acres is that is that right i mean that's in the record is that that's my understanding as well your honor well that i'm a little bit  that's where there's one current in there on the other current or active point and that's helpful i appreciate it thank you that was extremely well argued on both sides which is not something i cite every argument or even every