again your honor my name's david letter writer represent the petitioners in this case i'm going to assume that you read everything which sure you always do  let me put a little bit of context on the issue in this case about the withdrawal of approval of n p t d e s programs first note that congress has directed that states shall at all times or state programs shall at all times be in accordance with thirty three u s c thirteen forty two and guidelines promulgated under section thirteen fourteen those guidelines are forty c f r part one twenty three congress and e p a have established a five step process formally determined that there's an mis compliance or noncompliance they've got to take action well the action the action that they have to take both the very first step is just to determine whether cause exists if they find cause exist they go to a hearing a formal hearing if as a result of that hearing they make a final determination that the state has not complied then they issue a notice of deficiencies to the state the state has an opportunity to correct those deficiencies and only if the state fails to correct those that deficiencies is a p a required to withdraw the program yeah i understand but as i also understand your position from briefs it's that there's mandatory requirements for e p a all the way there's no place in the joint there's no discretion about it may exist here but let's try to work this out before we make a determination in that the main difference between the two sons i think the main difference is that the e p a says that they have discretion even to determine well they have  etion to determine whether the program should be withdrawn we say that they are required to make a factual determination whether this state has complied with federal regulations that factual to determination then drives the concert the following procedures and ultimately that what's wrong with the program may be a mean example i'm trying to focus to what i for example to sue another state agency you can pick and hooper from alabama as you know that possibly could be seen as a deficiency and it's not going to be negotiated requirements under stand that and that occurred to me but then the regulation process has gotten to be so cumbersome that are you going to that really kind of begs the question of whether e p a has to find a deficiency as long as that regulation is on the books for example as i understood your position they've got to go ahead and do it and pull the permeating authority and then two or three years later they finally get the recommended are revised or ascended then then that's fine but in the meantime e p a does the permitting authority fabric function for thirty plus states which they can't possibly do and i don't understand how your side would be better off if they were forced to do so well you're out of the scenario you describe may in fact be the outcome of our position however i would i would caution the court that we're not at that point yet that decision to withdraw the program is way down the road right now we're only at the point the only issue in this case is e p a s determination whether there is cause to find that the state has not come out understand that but in determining whether e p a is right that they don't have to mandatorily do each of these things all the way down that road is only reasonable to see what's down that road the a movable object which when you get there sooner or later is going to be there and you know that may be the case e p a wrote the regulations they said these are minimum requirements we expect every state to meet these minimum requirements congress said meet the requirements that he has adopted or your position is it may be a  an undesirable result it may hurt my side more than it helps in the long run but it's not our fault it's not our fault and it can be remedied by changing the rules i understand your position well i do have a question sir are you suggesting that there is no amount of discretion in this determination and whether or not there is cause well the determination is based is based on a factual determination is a factual determination i would say that there is no discretion because the rules forty c a four one twenty three point  six four b says they are to make a determination of whether there whether the state has complied with the minimum requirements that's a factual determination i don't see where that a determination whether these state has complied with federal requirements when e p a makes a decision that petition the scope of its review is simply whether or not the state complied with minimum requirements it's not whether or not they feel like a program with drawl is appropriate is just whether or not the state complied with federal requirements what so so this court the eleventh circuit  versus johnson recognize that there is both a discretionary component and a mandatory component and if it only perhaps i'm misunderstanding you but it seems to me that you're suggesting that there isn't much of a discretionary component of that that it's also mandatory as well the decision whether or not they should even go forward well what i'm saying is that the this initial decision whether or not there is cause to proceed with it with a hearing is a factual determination only the discretion i think comes in at the end of the process where which is not we're not in that process yet but if there is a hearing if the p a finds that there is at the state has not complied then there is a process i think for discretion must this factual determination be in writing and what does it have to be will act according to the rule e p a is required to put their decision and writing that response to up to our petition our petition is to make that determination noncompliance e p a by the rule is required to put that decision in writing but in the at the end of the process there is opportunity for discretion what what specific i didn't say that articulated standard for the exercise of that discretion is there at the end of the process if the e p a says our regs require you to be able to sue the offending agency point source type agency and alabama you can do that now we hear back what tell me the discretionary standard language well i think that that language is in the in the at if it doesn't want to take permitting authority away from a day of the the rules say that e p a must listen to the fish and sees to the state the state has ninety days to correct those deficiencies or ninety days to make appropriate corrections and i think at that point e p a could exercise some discretion as to whether or not what they propose is appropriate are isn't that it isn't this where you get into the word shall that if there is the deficiency and if appropriate corrective action is not taken within this ninety day period the administrator shall withdraw approval of the program and with the example that you've raised that we're talking about there is no corrective action well i think we don't know what that corrective action might you i chose the happy thought of hope because it has some basis in fact and be it makes your position it highlights your position in the potential problem with it if the noted deficiency is in alabama a dam can't sue the apartment's transportation cannot do it take constitutional provision as interpreted alum supreme court ok that's the deficiency you give them out state of alabama an opportunity to cure it and i said no we can't it's in the constitution and nobody's going to approve a constitutional amendment we couldn't even get it through the house much less the house and the people all right then what discretion if is if any is there when the response is not this is what we're going to do to cure the deficiency it we can't cure the deficiency i think in that case the result probably has to be that e p a would say you've you failed to correct that efficient you've failed even propose a plan to correct that efficiency we have to the shell comes and into play ok so so then you've got to pull thirty plus states permitting authority and you know i've had cases where e p a takes seven years to designate a critical habitat and they they explanation i won't say excuse it might be actual fact explanation is we just don't have the resources and if they don't have the resources to do that sort of thing how are they going to have the resources to take over all the permitting authority of thirty more than thirty states i recognize that's a problem but this is what congress said has to be done you know this perhaps if he had done his job right or perhaps perhaps if we all knew the alabama supreme court's position on sovereign immunity back in one nine hundred seventy nine if we knew that their position today would be what it is perhaps e p a would have said we can't approve your program played again it's hard to vote i mean and this is this is not just a no album mississippi thing you got more than thirty you're over sixty percent of the states and it goes back to the sovereign immunity the king it's not something that george wallace and his folks and then maybe i quite frankly don't know what the e p a was thinking back then but it's just obvious to anybody who's dealt with state government that you're not going to happen that i'm sure surely in one thousand nine hundred seventy nine when he had opted the rules saying states must have authority to to sue to sue anybody that violates the program you would think surely they would they would have thought of that they probably weren't thinking about the state itself is going to be one of the violators i'm not so sure your honor because the output of the e p a required states to submit applications showing that they could sue anybody they had to have that authority  in fact alabama defines the term person who can be sued as including state and entities let me ask you this and if you don't want to answer just  more than thirty states to lose any permitting up starting in the e p a be told just do the best you can we know you don't have enough to do what you've exposed to do without all this but now you've got thirty eight whatever it is states you've got to do their function to is and i mean i don't understand that unless it's a great big old bargaining chip and you want to negotiate something from the states now i agree your honor that that particular issue is is very problematic just because of the constitutional impediments but there are a host of other minimum requirements that e t a has just set aside will say but by bringing the us and overshooting what you really want to get your clouding your route to the other issues that can be remediated and maybe you like the e p a it's too late now you've done what you've done but that just well i'll say again the ball isn't he p a s court they can change the rules they can change those minimum requirements if they find something that's just an impediment they can't live with they can change those requirements what is what is the harm that you're complaining about in this one example if e p a is said to alabama do you have other sticks to use against alabama agencies you might not be able to sue but you have you can negotiate you can do other things where is that determination and why is that deficient why is that not what harm is that causing the the failure to be able to they i know they're not meeting the statute but a p a said well i know you can't meet the statutory provision but you do have other means of accomplishing persuading the agencies to come into compliance are you able to point to harm that we can say that the inability to sue state agencies creates a lack of deterrence it does not promote compliance it results  state agencies not comply and not being brought back into compliance as quickly as they would otherwise ok we took you over missed a lot of but we did begin withdrawal proceedings the riverkeeper is acknowledged in their reply or brave that the statute is silent on beginning withdrawal proceedings e p a did not then bind itself by regulation to call a hearing to withdraw a state's entire permanent program graham whenever the state is failing to meet even a single requirement what draw is an extreme remedy and has never considered withdrawal proceedings to be a mandatory response to any state noncompliance as the p a ever held a hearing concerning withdrawal of an impi d program before  has never held a formal hearing pursuant to the statute and i think that speaks show how well he is able to cooperate with the states and is able to get corrective action and remedial efforts even without commencing formal withdrawal proceedings for example one of the environmental groups here leaf submitted a withdrawal petition back in one thousand nine hundred five concerning the conflict of interest requirements and  was able to come up with a process with alabama to fix that problem and without having to actually commence a formal withdrawal proceeding is that how we came up or came up with alabama's recusal  that problem well your honor at that solution was well in keeping the bounds of the regulation and the regulation states that the board which is the set of members that decides water when the p a wrote that regulation and replies to all permits is and all violations was not specific to the state was ever intended to be specific to the state of course there are so many regulations and you know my i think we're still referring specifically to the civil penalties probation and no we don't interpret shell to mean may but i think there is a serious question as to how that regulation should be interpreted and getting there are exceptions can be made even when the plain language seems to suggest it only one response because of absurdity because of serious constitutional questions and this may be a case where that rule should be applied by we don't need to get there here because here all we're deciding is whether withdrawal proceedings should be commenced and in making that decision withdrawal regulation that regulation does not say that e p a shall commence withdrawal proceedings for any reason it says that e p a may investigate allegations and if you find a deficiency you  don't have to withdraw the permitting authority yes your honor that's correct to me like an argument in his favor because what he's arguing now is you must find a deficiency or explain why there is not a new deficiency you must make a deficiency determination in what i was trying to take him down the road to but if they do that you're going to have withdrawal of permitting authority or at least that can be the result of it and now you're saying no don't worry about it being the result of it that plays into his argument fine the next step the only one he's asking for right now is find the deficiency your honor i'm not entirely sure that i understand your question by our interpretation of the withdraw all regulation is that it is discretionary it sets out a discretionary process that allows e p a to commence what are all proceedings but does not true that in the statute there is no clear command that e p a call withdrawal proceedings and i think knowledge that answer apply brief but i think that cobb is argument now is that the regulation requires  and that is not at all what the regulation says that's not what the plain language of the regulations as e p a has never introverted this regulation in that way from the very inception of this regulation in one nine hundred eighty outlining all of the various tools for addressing programatic deficiencies and withdraw all proceedings or at the very end of that list there are many other tools that e p a can use to address deficiencies first some that concerned about alabama's resources to implement its permanent program especially after the legislature slashed its budget significant way and that's something that e p a looked at in the interim decision it's also something that e p a looked at in detail in its final decision and even though e p a ultimately decided that the resources appear to be sufficient at this time e p a did note that it is still carefully looking at alabama's resources so i think that is an issue that e p a would consider could merit withdraw proceedings at some time in the future if necessary to your position is you know have a deficiency determination unless you have a withdrawal proceeding going once you get it going you get into a shelter door which is why the administrator doesn't want to go to go and your honor it is that juxtaposition between what is possible before withdrawal proceedings are called and what must come after that i think supports the a p s interpretation of us regulation and of course because the plain language does not compel another result  to allow the agency discretion to call withdrawal proceedings and the guiding principle and that case i think is also political to this one it's but withdrawal proceedings are essentially and force meant tool and as such as are all proceeding e p a does have to make a deficiency determination by before e p a calls the withdrawal hearing e p a has discretion to decide whether or not to do so and the factors that e p a can consider extend beyond whether there is simply a deficiency e p a can consider for example whether the state is going to take corrective action without calling a withdrawal hearing that there has to be a public hearing and then the decides whether or not to exercise its discretion your honor i think the statutory language speaks to what happens after the withdrawal proceeding now i am what happens during the withdrawal proceeding but not what happens before the withdrawal proceeding there is no constraint on what any p a can call the withdrawal proceeding federal enforcement support but also imposing conditions on state grants that's also a fair and effective tool that e p a uses to a leverage its power and to affect change in state programs unless there are other people and i think that the one thing we've been talking about the one area where we recognize that alabama cannot comply is and in suing the state agencies and i think opposing counsel has certainly talked about amending the regulation a law we acknowledge that's a link the process there's nothing that would prohibit because of this pending lawsuit from beginning the notice of proposed rule making or anything like that correct to beginning the process yes there are that  possibility and it has a massive regulatory team in place that's correct i'm not sure that e p a would call it that someone who used to work at a would have the office of information and regulatory affairs i might disagree with that but they have a regulatory team in place you have a regulatory team and that is an option and by we don't need to get there yet is what i'm saying because e p a has discretion to call it or all proceedings or not it what appropriate corrective action the state could take and it's hard to imagine an appropriate corrective action here so a p a recently decided not to go ahead and spend its resources which is resource intensive process because there is the presiding officer is very much like court and e p a can better spend its resources working with alabama to improve  their aspects of the state's implementation which while not failures per se do more substantially impact water quality now even if e p a were to overtake alabama's program this problem of alabama not being able to see it sol for civil penalties that would be ongoing and it's unclear how that would benefit at petitioners and anyway  show that alabama lacks the procedures and ability to conduct even more inspections and procedures and ability are at the regulatory requirements so because alabama unusually deficient in the inspection compared to other states or or other states also sharing that difficulty of inspecting all of the major water sources in one year your honor e p a actually recommends that the states inspect all major sources once every two years so that it can debts of the states can dedicate more of their resources towards inspecting minor sources and other sources that are harder to detect noncompliance with out and so this is not this every two years is not directed solely at alabama it's applied throughout the states yes your honor that is the and national goal but e p a does discuss the goals with the states on state by state basis islam so you've got to have procedures and plans to do it every year yes you are you do you i think that it helps to put this regulation in context this regulation is about state programs of metals so when a state is submitting paperwork essentially for e p a approval the state has to point to legal authority to say that it can do can consider how to balance its priorities and how to effectively use its resources an e p a can consider because of substantial compliance that withdrawal proceedings are not the best way to use its resources alternately  improving water quality it's not taking over a state programs and so e p a can decide what is the best way to achieve  minute your honor let me go straight to the elephant in the room the the term may in one twenty three point six four for  indeed it's a just some discretion but when exercising that discretion we contend that the government must provide an explanation for its refusal to order withdrawal proceedings that is grounded in the text of the regulation in the text of the regulation talks about eighty term a nation that the state or whether the state has complied with minimum federal requirements that's the text that's the focus of that exercise of discretion but that the regulation does not say that you're going on that supreme court appearance you know because the regulation just says that the administrator will respond in writing to any petition to commence withdrawal proceedings which you would concede that the man straighter has done in this case yes regularly so you're saying it goes further th he has not met the requirements that are imposed under the massachusetts the u s supreme court case correct i'm saying that they have not not linked their decision to the purpose of the regulation the regulations in its opening sentence the administrator may order that much more the of withdraw proceedings on his his or her own initiative or a response to a petition alleging failure of the state to comply with the minimum requirements that's the focus of that determination that initial determination whether cause exists the focus is on whether or not the state complied and to expand it into we have discretion to go beyond just that focus we have discretion to consider other things that's problematic and that's why we don't have any proceedings in the united states on withdraw because the exercise that discretion every time so you could let me talk briefly about your position and one twenty three point six four b one is they have discretion only if it's not clear that may command not may decide when to commit their ok i think i understand that briefly about the other issues because they illustrate  why the exercise of discretion is so problematic on the public notice issue the regulation says publish notice in the paper provide a general location of the discharge they don't do  they've offered a or they've allowed a substitute alternative for that but that's not compliance with the minimum requirement but is it substantial compliance pardon me but is it substantial compliance i mean the information is you know back in one nine hundred seventy nine or whenever it was that they adopted this public notice requirement the internet was not real popular so everything was through newspapers it's a perfect illustration for why e p a ought to go out and do a revision you know to allow other ways of doing it but right now the regulation is published in the paper that's the minimum requirement you can't do less than that now the like i said that this petition of the petition that was presented d p a has been there for seven years during that seven year timeframe e p a could have changed the regulation surely they had enough time they didn't do it board membership as a same issue the regulation is clear on its face it mimics the statutory language a conflicted member cannot serve on a board regardless of what kind of decision they're making if that board has the power to determine permits or permit issues a conflict a member cannot sit on the board two previous opinions  again well in this case there's a statutory requirement a rule change cannot be made so they need to go back and correct that deficiency annual inspections the the regulations says procedures and ability to perform annual inspections that's what the regulation service e p a adopted a policy not a regulation not a regulation amendment e p a adopted a policy that says do it every two years and then they adopted a revised policy that says do it every two or three years so this is this is really a lawsuit to say e p a can make all of these deficiencies do that if they want to on the on the board membership they cannot change it because the statute requires it on the but but it is a little unusual to come in and say you're not meeting the regs so we what we're asking is for e p a i don't think so if the p t a sees like for the on the notice issue if if they see that publication the newspaper is now archaic or publication that that allows use of the internet as a substitute is more appropriate i mean that's an appropriate time to do a real change that's appropriate reason to do it ok we've got mifflin appreciate the