are here challenging also three of you p s attempts to amend in supersede the twenty ten procedures that were promulgated for determining the design that you of a project design value is the statistic that e p a uses to determine whether or not the resulting air quality will come will comply with or not comply with an ambience  impact turns on whether or not the guidance is binding i think those two questions that you feel that's that's  well yes and those are the procedures that we believe still should apply because he is not lawfully amended those procedures now with regard to that to both the i seventy and the cell phone three were projects language are you saying you get that understanding from the way e p a actually operates because this language sounds non binding it sounds more than predatory but  bit just hypothetically let's imagine that's how we read this what would be your response to that getting a great deal of discretion and was was not what was it was merely giving guidance and it was a binding anyway but just imagine for the sake of i'm not saying that's where we are but i'm just trying to understand your argument if that's the view we had would you have a response to that to argue that no in fact the pm ten guidance was was actually binding how would you make that argument if you didn't if we disagreed with you on the reading of g thirty is there  maybe i'm misreading it isn't that that's how i read any alternative methods for calculating design value what is wrong with my reading it let me well argued believe it it's binding because the agency said this is risky procedure you will follow a less you submit an alternative that we will triggering a b a review both from initial standpoint of adopting the twenty ten rules which were required under the ruling in appalachian power because it fundamentally changed the legal two really reasons first the twenty fifteen hotspot guidance it's not final action of the administration as is required for jurisdiction or section seven of the clean air the guidance is not legally binding on  so you're right that in our opening break or in our opening brief you made an argument on injury related to the i seventy project and there we said it that the injury list speculative because no final decision had been made for that project ye come out right  i agree that in a straightforward project that would be the case but here with seven ten there there is a lot of movement in the interaction see consultation process as those countrywoman get determinations are being made so we can't say definitively one way or standard we can see that there's been an injury with regards to the second guy seventy five but our fundamental argument here is that because the guidance has no legally binding consequences and their jurisdiction is language describing the flexibility of the inner agency review progress process that relates to pm tan but you'll also see earlier in the guidance on page it on pay just prior to six of the joint appendix on page ten it's clear that the guidance is not intended but the regulations themselves prescribe that and that's forty c f r ninety three one o five risk ride that the model's methodology is an assumption it's applied to the complexity determinations for both p two point five and pm ten that those are discussed during the agency interagency review process and the guidance refers in several  issued and so it should be really demonstrates the flexibility of that inner agency process and that's important here because for two reasons one is the on the ground considerations that make a single formula difficult risk right across the board because with each of these projects we have variables like the background levels of the pollutants needier a logical condition and the project itself and so having the flexibility in the interagency review process allows both the agencies that are doing the conformity determination and also the public to have input on an island which analysis makes the most sense for that project while still complying with the regulations in the statute itself and that works both ways because as we were discussing earlier with the seven ten the drafts of the conformity analysis are made constipation process is important and at the end of that process a final going from conformity determination is made and that that chunk sure once all the record had once the record has been developed that determination can be challenged in federal district court so just because the guidance is not revealed here does not mean that it's on revealed will specifically sierra club has challenged the conformity determination for the i seventy project in colorado in district and argues in that case that the conformity determination does not comply with the clean air act it has likewise challenge the record of decision for the south mountain freeway project district court in arizona and while they did not argue in that case that the conformity determination for the project was contrary to law they could have yes yes exactly now petitioner raises several issues that they say show that the guidance is finding that one of them is the regulation that provided  qualitative analysis was permissible until the quantitative guidance was issued now once the quantitative guidance was issued that a quantitative analysis would be required now that does not mean that the quantitative guidance itself has a legally binding effect it served its issuance served only as the trigger for a requirement that was provided by regulation and that regulation was not a draft of the twenty ten guidance was made a valuable for public comment but it was done so only pursuant to a settlement agreement with sierra club and e p a and several other agencies and it was clear in the language that you referred to before and i think it's pretty clear we've looked past boilerplate before the agency can get out of the inquiry just by saying this is non binding when you look at j p thirty three that's the describing the design value for the project in los angeles two point five right there that language looks very different to me then there's the language the judge will use your fur to have us look at in j a at a suggested approach might says you have two options right it seems more limiting then it i can see that the same expanse of language that refers to the interagency calculated by looking at the highest or worst day of pollution for the background level and adding it with a lower level for the pressure contribution and there when that agency reach out to e p a and said our highest background level i say no i don't think that this conformity analysis from is proper i think you failed and they can still at the department of transportation could still find that the project conforms that happened as it happened before that hasn't functionally happened but i seventy project e p a did not review all of the data underline the conformity that's depression or did they review they didn't review each aspect that you have but when they do review and speak hope i'm not mistaken petitioner's argument here but i think from the viewpoint of the regulator geddy if you're saying what e t a tells us uses some guidance to do it this way they say you can we have some other alternatives to that but you can't find any instance where another alternative was accepted they carry pretty big stick here so we better do what e t a saying so therefore functionally it works more than guidance two things here review each aspect so in practical terms they are they can form a new determination did not have e p a s full review at the time it was published so i'm just happen on a practical level is that as part of that mary can see consultation process that the state agency or the department of transportation would raise questions about their approach and say we're having problems with this not my software for example is a different approach appropriate and that could be part of the discussion so is it likely that an agency would do that outside of the inner agency consultation process adopted a different approach entirely maybe not but there is certainly room for flexibility i had and this have not for a project itself shows that that flexibility has been applied in practice that an agency came that had problems with the form and that and that e p a worked with the so i'm not prepared today to speak to what that sentence means or whatever first you persist late but i'm happy to provide the court with supplemental briefing on that topic if it  provided technical assistance to regulate a party series of them and it's also beneficial that this that these formulas be merely a suggested approach to allow for that inner agency consultation process to make necessary changes and also because the underlying modeling software on which these calculations are being made itself changes so it adds both credit flexibility to the regulated parties and also to e and changes are made to that software as technology advances and as the vehicle chip the fleet changes and it's important about the opportunity to update this guidance to to reflect that the software that's currently in effect and i would also note that the fact that it's flexible is a benefit to new to citizen groups as well because they can comment on the conformity analysis while it's happening and identify con that you're focused on george williams in its thirty eight that e p a reserves to itself the determination of whether or not any alternative method is acceptable it is a necessary outcome of the legislative history in this case where congress resolves some disputes the kind that you were referring to between e p a n d o t e and assigned the responsibility exclusively t o determine what procedures should be applied and that tax preserves that power within secondly in the city of almost a case this court to determine that the transportation agencies do not have the power to interpret the clean air or only to apply it and that's definitely relevant to that question and third as we noted in our supplemental grief the e p a did not give any notice in any form whether it was through notice and comment under five fifty three or in response to the publication obligation under five fifty two eight one that they had changed the guidance procedures that