please the court my name is carrie powell and i represent sierra club under clean air act title five the hunter power plant was required to obtain an operating permit that assures its compliance with all of political requirements under the act sierra club petitioned the e p a to object to the entre plant's permit because it omits critical major new source review requirements including the requirement to control harmful air pollution using best available control a admits that a source cannot avoid major new source review simply by obtaining a minor source permit yet in denying sierra club's petition e p a announced for the st time that for title five purposes even if please please excuse i'm going to have a question right here to make sure that i'm following along with what all the arguments all but as i reading through this in the conclusion that  what you're doing is that you're really objecting to the title five issuance the one that they're just now approved  is that because the source did not undergo major new source review at that time it continues to this day to operate without using best available controls releasing pollution that harms public health and  think to be more responsive the question you have to tell us why didn't the sierra club comment or seek judicial review when it had noticed d the state of utah that it was considering this pre construction one permit your honor i don't know why sierra club didn't participate at that time they might not have seen the public notice that would have been in the local newspaper at the time but the point is is that e p a and ad meds as it must because federal courts have held that issuance of a minor source permit does not eliminate the possibility that major new source review applies when was it th source your honor i believe sierra club became aware of the problem in the early two thousand but unfortunately utah though it was supposed to renew the hunter plants title five permit within five years official and they actually waited seventeen years to renew the stand and they should have done it in what two thousand and three correct in doubt about the time that's that's about the right time that they should have and instead they did so in two thousand and sixteen after being sued by  but again the fundamental issue here is that a minor source permit no matter you know under e p a is interpretation a minor source permit always eliminates the possibility that major new source review could be in a p l requirement for title five in e p a s rationale and denying sierra club's petition did not turn on the amount of time elapsed in fact after issuing the hunter order they went on to apply this exact same legal interpretation to reject a petition raising new source review issues that were actually determined at the same time as the title five permit with which in the drift my questions is is that it is an equally important to have an opportunity a and the public that are simply not available when a source issues when a state issues a minor source permit e p a had no opportunity to review and object to the state's issuance of that minor source permit likewise the twenty years after the clean air act was st an act it e p a is enforcement authorities had been in place all of that time there are citizens who opportunities prior to that but congress concluded that the enforcement mechanism mechanisms creates the same opportunities each time apartment is renewed for a public input e p a objection and including affected state and put because the reason congress enacted title five understand review of of this type of case except for there's different standards that apply to agency interpretations of statutes and regulations so the background standard is always arbitrary and capricious review under a cleaner deference and we argue that in this type of case there absolutely should not be chevron deference it should only be to the extent that the agency's interpretation has the power to persuade voters we've brought him good more  permit in ninety eight the construction was not completed pursuant to the title one permit until sometime after the title five an eight i believe that's correct your honor i don't have the exact date for when construction was that the record it's in the record yes so couple of issues one is it's important to recognize that this is a case in which  review of agency action it is rationale for their action that is before the court and it presents e p a did not argue that there was an issue of whether this this could have been raised in the st title five permanent or in the renewal title five permanent e p a has adopted a theory that says it does not matter that never under title five could petition or raise this type of issue that even if the minor source perm the title of title five has not been amended since congress enacted in one thousand nine hundred and ninety and there's only been very minor changes to the regulations there's two kinds of permit shields one type of shield is sort of a general shield that can go in and say whatever is addressed by the permit if there's a requirement in the permanent self then compliance with that permit condition will amount to compliance with the requirement but the permit shield that's really really important here is that there's also an opportunity for a source to obtain certainty regarding whether a requirement applies by asking for a shield declaring that they are not subject to a requirement and e p a admits that there could have been that kind of shield in this permit but the hunter plant did not request later and in the in the preamble to the part seventy regulations e p a described the permit shield as something that could give this source certainty until the next permit renew and notice an opportunity to be heard by people who would oppose the yes yes there is and so if the state were to decide to put that kind of shield into the permit for major new source review that absolutely would automatically be part of the proceeding and e p a would not to spew that this issue would  be live the only thing that's happening here is the e p a is saying that it does not not have to consider a petitioner's demonstration that major new source review applies and that is where we are asking this court to say that no under the clear language of the statute and the legislative history e p a must consider that demonstration because major new source review can apply regardless of that minor source permit proceeding and even the house report even declares consistent with the statutory language that there should not be matters of political to the source under the act that are not addressed in the permit doesn't the availability on request of a permit shield suggest both that the e get a permit shield insulating itself from further scrutiny as far as compliance with the clean air act or utah on request doesn't that suggest that the because as as we've discussed the issuance of that minor source a permit does not relieve the source of possible application of major new source review e p a admits in this challenge order that even if a source has that kind of permit it can bring a major new source review enforcement action against that source and likewise e p a is new source review regulations make it clear that you can become subject if it turns out that in fact major new source review applies the regulations direct that some sources need to keep records for as long as ten years to document that even though they were initially classified as minor they actually are major and they should have undergone major new source review and that's what this is about title five it's not punitive it just ensures that if it can be shown and hear a petitioners demonstration on the four corners of their petition that major new source review apply that's where we are here if they can show that then e p a must consider that demonstration and they must object if the permit is not making sure that the source does everything it's supposed to do to reduce air pollution we understand exactly where you're going  anybody in the future in their title far from saying no they've been a mistake it's really a major chore can you get a permit shield for that they think they could apply i think maybe the difference here is that if they don't apply for that permit shield and major new source review is not included in the permit then they are at risk and said but but just hypothetical if they get a permit shield for minor source their own free they are until the net the renewal that should happen every years mean another five years goes by after the current shield it doesn't apply to an objection on top of five from obviously it gets exceedingly less likely that anyone would be able to demonstrate that major new source review applies but the burden is on the petitioner so yes five years later that's the point of this is every five years there needs to be a check for everybody to weigh in and make sure that one of these the well if the source applies for a renewal to their permit permit on time then they get to keep that permit and that those permit terms until they actually get another permit so that's why the fact that it took utah seventeen years to renew the permit was an issue but yes if the state were to do what it was supposed to do and renew that permit every five years and that's a check and that was that was the way congress decided to balance this program that it is that important that major sources of air pollution comply with their air pollution control requirements that yes there is uncertainty there is inherent uncertainty when every source constructs without undergoing major new source review it could be subject to enforcement they can have the state a decide i'd that that decision was was made incorrectly or they could have a situation where somebody demonstrates in the title hive that process the major new source review applies but that is the that's the mechanism that congress set up  yes they applied for approval to construct under the separate mine our source permit program and there's there's discretion with the state of utah to say oh contraire it's not minor this is major so we're going to do a major source review can do that right yes in fact it's their obligation of the if that's correct correct and i see my time has elapsed  program the role of title five is only to compile those preety stablished requirements into one place reconcile on our kaiser issue how do you reconcile that argument the nd problem that specifically applies to this particular circumstance where the decision a pre construction permit decisions been made by the state and that outcome of that permit decision is what applies that's the specific juan then e p a went in and identify each of the specific contexts the one context we have here is captured specifically right on point by item two item one is a is a catchall and it's not a vehicle to go around and nd guess the permit decision made in one thousand nine hundred and seven it talks about what the supreme court fires its general language the city in this context requires a state to have a pre construction permit program and here the state political requirement means all of the flow which has twelve parts including the conjunction and so i am giving you our understanding of what i don't one means in this context and item one in this  context means that you look at what the sip is sometimes sips might have general free floating requirements that don't have a permit program attached to it and in total five e p a may need to look at say well how does that apply to a facility but in the context where you have a sip that says implement a pre construction permit program then you have to look at it in context and look to the programs and that is the state permit decision made in one thousand nine hundred and seven that's what's compiled into should minor requirements attach this is a page sixteen in our brief we have a block quote from the proceed the proceedings and it looked at that and it made a determination that major pre crime meant do not attach in  fact it levied a new limit on pacific or back in one thousand nine hundred and seven to ensure that the threshold wasn't exceeded and so we've got a substantive permit decision by the state that looked at should it be a or make the determination and the administrator expressly and it says that the administrator can't delegate this indicates that we're going to get the agency's definitive interpretation and that's what we have here and should be given controlling weight moreover there's no unfair surprise the kind of thing that was concerned about the court and kaiser no unfair surprise that can result from a change interpretation because there's been no an equitable reliance on the past termination pacific or no assurances because according to their interpretation it could be a challenge in subsequent title five matters you're honor the agency's original point to a document in the record in a preceding case i mean it's not a preceding case it's a guidance document from one thousand nine hundred and nine where the agency says it's not our policy to use title five to look circumstance in which there was a dramatic one hundred and eighty shift from a system prior practice be it to see has at times used title five in certain circumstances took a look back and it changes interpretation in the hunter order for sure there's been a change are there any cases where they actually applied that nine hundred and ninety nine you know i don't know what this record wasn't designed  to bring all the cases together so i don't know the answer your question or it's all it seems to me that if you're saying that this is all o c was the original the new policy and in the hunter order is not really new because it was the original one sourced from this reference to nd guessing in the preamble and now you tell me there's this opinion what i'm asking you is there an adjudication the hunter order approach i'm not aware of it your honor but saying there night one wouldn't you expect i mean i would expect if there is the you would have told us about it there are lots and lots whether or not you can apply chevron or not aegis interpretation here is unreasonable because if you look at the purpose of title five it's not to open up a state permit decision that was made more than twenty years ago as they would reasonable interpretation and one element that's reasonable is how do you do how do you do oversight of taiwan permit decisions the best way is to have the public participate before the state of notice and comment and challenge in state court the determination when that determination is made that's the proper recourse e p also noted that there are still opportunities for judicial review in force i'm sorry for enforcement in appropriate circumstances those are curtailed and so there is not a huge disruption of expectations and what's more your honor is in force an action is brought in appropriate circumstance and i believe because of time bars it might be limited to just  our process is going to be fairer because it's going to open the process in the renewal process to public participation and we're going to have greater procedural safeguards for pacific courts at your it's a factor that's somewhat mixed you are across the circuit so in those other circuits in forstmann action is not allowed five years after the permit and so ultimately your honor if let's i don't know if that's the law but if there is a circuit where there is no additional requirements on pacific utah statutes or regulations indicating they can come back in the early years later it's my understanding your honor that under state law you can always petition the state for regulation change and they can and their sip is a part of that process so they can petition the state to modify their cept to say look we think that you need to impose additional requirements on the source because there was a mistake that we believe was made but title five is not the mechanism to nd guess that didn't the rd circuit i think the th circuit and possibly the th circuit say you cannot do it in force one action if you have not taken the opportunity to challenge the major minor or that type of matter in a title five proceeding right you're wrong there is a number of cases out there that attach the bar under section seventy six thousand and seventy two but those are premised on the the view that title five is a mechanism by which you an challenge the substance of an old title one permit and those that's cases would not attach and would not apply when if an e p is interpretation your honor these are circuits who are saying well you're telling us we can't do here and that is the circuits are saying you can't do unfortunate action if you did not try to unwind in minor determination the premise of the reasoning of those cases is applying the bar under seventy six dollars to seventy two dollars and that bar depends upon the availability in a title five permit review process to go back and nd guess a title one and e p a interpretation which we believe is reasonable and should be upheld is that no you can't in this circumstance oh back and revisit title want title one permit decisions so it's contrary to those circuits no no your honor those case those cases were assuming assuming generally but without resolving that title five who would allow for nd guessing of old title one permits  regulations are met shields are a matter of regulation they're not always included in the permits are often just part of the regulations that automatically attach nd thing i think is important for me to clarify which mr kaplan is attempting to is the record caboodle which is what the state did we're not talking about a minor source only permit here we're talking about an extremely thorough review in one thousand nine hundred and ninety seven of major l s r issues that's what occurred and it's contrary what's in the petition to object and the five hundred dollars tons of knox and a whole bunch of other reductions and that takes you below the threshold for major source you only apply to major a major source and us are only applies above an emissions threshold you can take an emissions limit which lowers you a low that threshold and then it doesn't apply that's an s r o review that's exactly what occurred there has to be monitoring for ten years after that there's just there's a whole suite of things that go along with that those are the same arguments the petitioner raises on page two hundred and sixty nine thousand two hundred and seventy five of the states that have a different process on title one than say the united states that do not allow public comment and or do not allow judicial review i have not worked in the state charges you know we have a fairly large footprint of the air permitting that i've done i've done it for twenty five years only common in judicial review are a big part of my practice so high but there are states that do not all that is untrue if you go through that whole list of things that are in that are considered a political requirements under that definition the rest of them are not part of the sept they are a different section one hundred and eleven of the clean air act section one  air act it goes on and the permit provision that's in part two of that defect definition it's the same thing that needed to be in the definition because when a state issues a permit under that  septa new source review the permit is not in the implementation plan and so if e p a had not included that provision in the regulatory definition then for sure sources would be arguing that those permit terms don't have to be in their title city or allow public comment but do not allow judicial review that is correct how many states i don't know exactly how many because e p a has acknowledged it in their federal register notices over the years but never tried to do anything about it but i work in the southeast and i can tell you that there are several states that will issue approvals like this for changes to be made without allowing for public comment even when the public figures it out and asks for comment they won't allow for public comment so if you're in a state like that the time the challenge it is during the title five permitting process correct there if you manage to find out if say somebody tells you that the state is doing this without public notice then you sometimes depending on the state do have the right to judicial review i have heard from another advocate working outside of the action wouldn't you correct so you wouldn't be without relief even in those states but the key thing here is title five created a mechanism that makes it much more accessible for people to raise their concerns it's not a punitive issue but you can file a petition with u p a there's a very high burden the petitioner only can get relief if they can demonstrate without any other information without u p a having to do an independent investigation but on the four corners of that petition if it's straightforward enough that they can show it then they can get relief through title five that's what so it's easier to say under title five than an independent force one act an independent enforcement action is a big hurdle even for the environmental protection agency they have to get the department of justice to take their case and and litigate it for them and so for what congress observed that there was that was not on its own achieving widespread compliance and that's what title five is supposed to do i quickly to address a few other things that came up the pacific corpus arguing they get when they went through  major new source review but they did not get a major new source review permit here they got a minor approval permit what they're saying is that they had some analysis by the state as far as