result of a rule making that prioritize outcome over process and science it is telling the e p a has declined to defend nine of the sixteen areas challenged including eight of the ten areas challenged by illinois and chicago with respect to the monro county does it nation that final doesn't nation was the result of outside the record communications initiated by the e p a four days before the court order single air quality consideration this constitutes quintessential arbitrary decision making as this court has held the process by which e p a reaches a result even if you're right about the white house and its role in a now sets forth is a red herring even if the process that led to e p a s reversal were not so clearly tainted e p a still failed to explain why the facts and factors it relied on for its initial assessments were no longer relevant technical experts in illinois and the e p a concluded throughout the entire process that monro contributes to a violating monitor and the record supports this conclusion trajectories in the final technical support document still show transport from monro to the rivet remaining violating monitor indeed in the initial technical support document e p a concluded that transport to the violating monitor comes predominately from the south and is directly to the south of the remaining violating monitor so e p a concluded that monroe contributes to violating monitor and is still contributing to violating monitor you will do under here that's a great model recommendation from the state it is and it is illinois revised recommendation of model i don't read the record that way because in fact i believe that the still lists monroe as a county that was recommended non attainment by the state and i thought it was more just maybe a waiver of the state's possible objection to that change but not as an actual formal recommendation in contrast to missouri's letter they talk about to characterize it as a recommendation there was a footnote to to the original if the court concluded that the support for the final destination is inadequate you don't need to reach it although the one hundred and twenty day letter is relevant to counts free his argument discuss transport for money row into the chicago area which of course is in the state of illinois the record in evidence before this court established that ozone pollution harms illinois proprietary so and quality or solvent interests and what's the harm there that what's not what's the relevant harm from munro's allegedly incorrect designation well there are multiple harms both direct and to the well being of our residents the harm from that because if one row is designated not tame it sources in that area will not be required to reduce emissions to have is somebody who would say if this violation weren't occurring i would no longer be harmed so it has to be someone in the st louis area who is saying i'm harmed and if monroe were held to the law my harm would be relieved use decorations for members and contributing areas and one of my co counsel will address that argument however with respect to illinois if sources in the rural county were required to reduce pollution that would benefit the state in many ways as we've laid out exclusion of jefferson was arbitrary and capricious because evie a lacked a rational explanation for its decision the need for a rational explanation was particularly compelling because the decision marked a dramatic change itself have to be justified the decision has to be justified and i'm saying the need for an explanation arise is is reinforced by the fact that it's  mississippi river bisects the area it's treated as one area but sierra club's claim with respect to e p a s decision for the st louis area is focused on jefferson the exclusion of jefferson county and when you say it's a claim and when i look at the the petition was not so focused right but i'm trying to respond you know in my own mind to the to the e p a is standing contentions and so i'm trying to understand why if there's a harmed individual there that's that who has a declaration submitted by one of the petitioners is there any reason why we could not rely on that we'd be happy to have you rely on it when we did we've only brief jeffersons the briefing i understand has been divided up we're happy to have you rely on those declarations for the other petitioners as well the only explanation that e p a offered for excluding jefferson relied on the state of missouri is focus on just three of the seventeen days when the west of monitor was in violation that explanation is not rational because it's contrary to e p a s own stated criteria which is that you have to consider all seventeen days it ignores crucial facts in the record which demonstrate throughout this designation process that jefferson contributes to the west often monitor in its materially different from e p a s treatment of franklin county another county in the same st louis metropolitan area where e p a looked at all seventeen violating days and rejected the state's recommended a revised recommendation to exclude franklin going beyond the state's focus just on three days so in terms of criteria if yes sta its final decision document we know that that missouri is focused just on the three states but quote e p a notes that the other fourteen days we go zone above the level of the next should also be assessed and given appropriate way that's a he failed to do that for jefferson when it came to franklin e p a follow that statement by saying on five of the seventeen days franklin contributed and he goes ahead and rejects the state's recommendation includes the portion of the updated data for the st louis region show that its own problem is much smaller than he had thought and center farther away from jefferson that shifted the weight of the evidence by changing the contacts against the e p a assess jefferson and what i mean by that well the trajectories traverse jefferson and then they go through an r v an area with much higher mission before reaching the violating monitor before reaching the ozone problem and this is that j m of any one and ones e p a realize that the problem was a lot smaller than it had thought and farther away and keeping in mind that there is a high emission area in between jefferson and the ozone problem it was reasonable for e p a to give less weight to evidence of jefferson's trajectory  see evidence supporting a range of different conclusions and e t s job is to figure out where the weight of that that evidence falls and it can be really hard jefferson was a close call but all else being equal when there's less pollution it's reasonable to analysis is noticing one piece of evidence and that reason is just some of all that it's a way to evidence differently happy to answer any more questions thank  the what you just heard is post hoc rationalization of counsel there's nothing in the record that indicates that if he relied on the relative distances between the frankland source and the jefferson county sources there's no discussion whatsoever of the distances of the jefferson sources the difference of ten miles is is negligible by e p a s own account in response to comments he says that the maximum impact of sources is felt from thirty one to sixty two miles and the impacts can go up two hundred and twenty four miles so if they think that a ten mile difference in source impacts is relevant they would have said something but they route they have to explain their decision their only explanation they offer is focus soley on three days and it's that page the a one thousand one hundred and eighty six when they it's the only place where they explain why they're excluding jefferson and they say it's further away from the violating monitor and less likely contribute to the stagnation conditions highlighted by missouri on the three highest ozone days there is nothing about the fourteen other violating days and it's a rational decision on that basis thank you thank  because e p a need to perform a five factor analysis were explained why such analysis was not required e p a refused reforms us analysis even the even those your club submitted detailed comments showing that each of the five factors supported  finding that auto was contributing to not attainment in nearby muskegon analysis isn't the issue here the meaning of the word nearby and haven't we said that they get to cheese with nearby means they can they can use the narrow view or the question by defining the area of analysis and here's how it does that even sherpas nearby to me the combined statistical area or as appropriate the court based its area and that interpretation was of help by this court attainment boundaries and it goes on to explain that it's going to take into account the region's unique meteorology and emissions locations to determine the scope of its approach analyzing the five factors and then at j l of in twenty seven to twenty eight to use the combined area or the core base area each his very practical answer is we're going to use the area that have chairs the lightly conciliating suspects and which then have to go through the holistic analysis that's the area of what you do instead is you winnow down the pile based on certain criteria and you end up with a smaller pile of the likely cans and you're going to bring those people in for interviews and so the windowing down and the interviews we're going to use the combined area or as appropriate to grow your base there so see what you mean by like you know i start with a bigger area and what you did here was walk around and saw that there were no likely suspects in the my name is no gordon i represent the state of michigan i will address three points the petitioners made in their reply brief st the record demonstrates that he did in fact analyze whether emissions from ottawa county impact the m neighboring muskegon county nd there is nothing in the record that shows that emissions from the g h campbell power plant in ottawa county reached that monitor on any exceeding stay and rd petitioners have waived the issue did not analyze whether emissions from ottawa county impact the monitor in the city of muskegon in fact both e p a and michigan analyze with your logical data to see if the missions from ottawa county and from outside of michigan contribute parcel and petitioners provided no information about the emissions in that one air parcel for that back trajectory they simply say to the actor gesture and that's not sufficient and frankly if you go to that trajectory which is at meteorology is moving pollution from this plant to the violating monitor so that the fact that the emissions may have gone down there still is likely to be transport and we also showed that this study had modeled greater than one percent of the ozone contributions at emissions levels at work that were still occurring after the upgrade so we understand that e p a may not a thought the model was fully conclusive but if you didn't believe sources and out of cavil's about forty percent of the nox emissions but there are other sources as well so this study showing a significant impact in the recent past from only one source an audible wind would cause a rational decision maker to take a closer look at the county as a t refers in several places to the closed basin effect is a major meteorological phenomenon that is a result of the combination of the topography the elevated terrain on three sides and the air circulation patterns of the area so when e p a is referring to the closed basin effect it's referring to both the topography and the meteorology and the topography there was some some back and forth and some sort of considering it identified four different air circulation patterns in combination with the elevated terrain it forms a basin now again petitioners aren't aren't contesting this idea of a basin that restricts emissions the question is just the line e p a here how to draw a line as to where on the elevated terrain of cheyenne ridge it was going to end the non attainment area and there are many reasonable ways e p a could have drawn that line because there's not a the base and so the height doesn't really it's not consistently treated and the line itself is not a line that tracks really any feature but is just one straight  feels a little arbitrary in a kind of energy a logical sense at least that would be their position and your response to that is yeah it's going to be a matter of degree and we have got somewhere and it's a little straight but good enough so if you look at the yellow elevated part of northern weld county from a greener and lower down area within the bays and now we exactly where to draw the line based on this altitude is going to be a judgment call and if you acted reasonably here thank you technology which didn't exist in ninety seven  even though there were no changes at all in the facts or the scientific data this was part of a matter of unjustified results or a few changes that trumped the scientific data that should be reversed rationale changed between the initial designation and the final designation with no apparent change in data the process matters no data change here the record data shows that all lake county contribute is not changing data but why isn't observations of the justified because of the five factors that's only part of the picture the other part of the picture deals with traffic problem point the county seat is in southern lake county i sixty nine dollars interstate highway running between northern and southern e p a didn't look at traffic on a township level even though lake county ranked th overall for vehicle miles traveled in the chicago area on the other factors there is nothing about the meteorology or the geography to keep solution from southern lake county from going to the monitors that are violating in chicago so if you cherry pick and you look at some of the data i will agree with the core it points in one direction but the very reasons that e t a initially designated the whole county as being down attainment was based on the five factor test and looking at the five factors it found that all of lake county contributed to monitors of were violations and are going to quote the analysis shows that emissions from these areas are capable of transporting to the locations of violating monitors we cite the record at page thirteen of our opening brief so we don't dispute that most of the points sources are indeed in the northern part of the county but there is a lot of traffic throughout the county and that's a contributing factor as  court found in the mississippi commission case in which indiana made almost the exact same argument that was rejected by the court it's not a matter of whether southern lake county is a little bit less than by county northern  county it's more so long as southern play county contributes to the violating monitors that is sufficient that it's hard not attainment so what we've seen here is that sort of cherry flawed decision based on no changes in the facts or scientific data should be reversed thank you attachment boundary and lake county captures virtually all of the countries and missions but what about this rumors yes missions point sources but not traffic meteorology or something else and eighty six dollars is a map that shows twelve kilometer grids across this entire area showing the vehicle miles traveled and it shows that the northern part of the county which is what e p a designated as partial on attain contains most of the vehicle miles traveled in the county that also tracks with e p a s explanation that in addition to the point source emissions the majority of the county's population is concentrated in the northern portion it was reasonable for e p a to think of the eighty eight percent population in the non attainment area as a proxy for the non point source emissions in the area in short there's very little capturing the emissions that would need to be controlled and they exaggerated when they say that only a small portion of lake county was included in the non attainment area as a practical matter right and the the consequences of a non attainment designation depends on the classification of the area and in every designation we're talking about here the classification is marginal which is true for lake and all of the others you know it's hard to say what exactly the consequences would be for a not a tenant designation for the southern part of the state petitioners hadn't made any kind of argument about that  just pointed out correctly this is not a situation where e p a is changing from a previous final designation to another final designation this is a process in which the create takes input from states had a public comment period and is thinking about the proper designation along the way and e p a does not have to justify the reversal itself all it has to do is to justify the final designation in light of the  record the link was in the last designation finally designated the entire county is not a team and i that's correct your honor and that was under a different factual record and a different standard and so it's not gotten less developed in the south or it's gotten i know more demanding now all right and i'm not aware of what information in the record there is about development in the southern part of the state but what  he has to do is it has to justify the final designation on the record and it's justifiable to draw a line that captures virtually all of the county's emissions if the court has no further questions i can rest i sixty nine that runs from north to the southern part of the county there's a proposed new massive highway the only on the tollway d if we go through the southern area that's been excluded the population is growing in the southern part so when you t not all of them after all the factors got the other way ok and secondly with regard to the standard is not whether the south is less and the north is more if there is a meeting ful disregard contribution from nearby sources of ozone precursors e p a adopts instead and wisconsin approach for sheboygan that runs counter to evidence before the agency if fails to include is a major source of precursor emissions and even does this without any explanation other than that e p a really relies on wisconsin's approach even though all elements of it are discredited by e p a s own technical staff in response comments document and even a c p a says it can't validate portions of that model entirely e p a fails to perform its duty to evaluate evidence it relies on and at the very least it relies on a model it knew was not up to the land over the lake along the lake shore in the record even wisconsin a figure three point five j for twenty eight and discussion on for twenty nine shows that  west in the morning out over the lake form of a zone over the lake because these are precursor carrying trajectories and then in the evening me ozone flows back in e p a draws its arbitra boundary its two point three mile boundary only on the distance that the ozone travels in not the distance where the trajectories that the precursor emissions travel out including from that large point source which is directly west of even wisconsin ignores its own graphic i figure for in its brief and we reproduce it in our replies showing that there are near non attainment conditions in areas well west of the two point three mile boundary of the state park dropping out even the evidence of vehicles travelling to and from the state park and vehicles in the southern part of the pencil at which the peace proposal was to designate nineteen weeks if we were to find  him boundry to be adequately supported or would that affect the other counties in which the lake effect phenomenon is being relied on the ones that are being sent and the non line violating my or this is the wisconsin analysis that and because the lake shore is the same up and down the coast that it can adopt the same methodology for other counties however that model doesn't reflect reality it doesn't reflect the precursor emissions it doesn't look like the contribution and that's contrary to the statutory requirement that contributing areas have to be included in non attainment and i can see that my time understand that part of the change in the it's point nine miles but you can actually seems to put a lot more stock in this than just oregon because of them are lies on this you know  child for the lake effect theory and the thing that they are really like to hear about is that the final designation talks about the lake effect theory and e p a is candid about and fifty four to fifty six is wisconsin is the session this year out comparison and then as i just explained the record elsewhere with the location of the point sources in sheboygan and traffic as well as the trajectory supports the zero finding that there are finding itself is not something that you can look behind it except to wisconsin's e p a i looked at it because wisconsin provided a detailed discussion of how we did that in its recommendation and he thought it was windy used plus there are separate record evidence supporting that conclusion so that's i mean the dishes talk about all these emissions in sheboygan but really the but it is it is linear in the sense of a constant distance from the shore as well as the constant distance of shows of her to me right but i'm saying it's a constant distance so that the shoreline curves and so does the line to the lake breeze effect and that door county itself is particularly and has a low emissions and low population so there is no reason for e p a to believe that the rest of door county contributed to the violation of the peninsular to monitor so petitioners are ultimately disagreeing with e p a line drawing they think that some sources within the northern portion of the county should be included within the area because e p a over concluded that the counties emissions were low as a whole and not a major factor here it was reasonable for e p a to not take into account those sources the question i have is that it is the claim that the lower part of the insulin is producing or i thought it was more that the given the violating monitor on the peninsula that it's hard to say the rest of the peninsula is not  you know just draw a little ring around a point source rather than consider the broader area all over the country a minute one assumes that emissions are experienced not just  factor analysis which here showed it monitor that is particularly exposed to the lake breeze it's on a higher portion of land it's surrounded on three sides by water and that means that it's being affected by emissions from the lake in a way that there's no reason to believe that other parts of dorothy county are i'm sorry that i'm being a little up to say about this but where we had the lake shore and the primary evidence that  violation that the agency was relying on was that the lake breeze effect would in fact come inland across the whole coastline and so the question is well why wouldn't you at least have a two point where there are violating monitors just this is the case with door county and as to that question i can say for certain that's not what the petitioners are arguing here petitioners haven't made that argument that it seems the extent  of violating air should be two point three miles with indoor counter no but that but what i'm trying i'm just looking at the logic of the reliance on the lake effect that where where polluted air is washing in and out over land the fact that this is a spit of land out on the lake wouldn't seem to ameliorate that and so i'm missing something p p s conclusion was just that the monitor is particularly susceptible because of its placement perhaps in a way that other parts of there wasn't evidence to believe that other parts of god county were similarly susceptible ok original documents and in its final document it decided that it would ignore high level trajectories showing a precursor transferred from the southwest in the areas that contain the police sources and a lot of the traffic in the southern part of the county for sure boyden the width of a not ataman area we didn't challenge that because the extreme differences agency gets the eliminated large b of c three quarter which you know those are sources vehicle miles traveled and it also ignores that its own record says it exceed stings happen on this drawn exceeding stays the transport is from the submission the final document does not say what the final decision document doesn't say what it was that wisconsin analysis they relied on it just says you know considering what these things are that we listed in considering the wisconsin analysis we have changed our mind it doesn't really analyze or tell us what portion of the model that they relied on but in any event all of the portions of the model can be shown to be lacking and  so and weeks if this the court and i don't know if you want to start the clock again i am going to split my five minutes with my only mr learner i mean i start with three just to sort of lay out where we see this going designation process ignoring contribution that's a statutory problem for them and there should be enough under your case to justify baker what's the practical implication of that article is the assumption that it goes back to  be the place we would have to go if you didn't tell the agency what to do i am not confident that you would want to tell the agency what to do on deadline in this case in the in some cases we the end of the opinion we reminded everybody about the standard then that would go back into effect and our concern is making sure that e p a acts in a manner and a fashion that reflects the important public health considerations that are play in this case this is ozone causes if you simply remove that your honor we don't have the opportunity to go back to district court and force them to meet the deadlines that have already passed under this we've had to go twice already in order to get the designation issue batches one just the ataman areas back in the fall of two thousand and seven i guess and then we had to go back again to get the non a team in areas there's a there's a a serious deficiency here in that a p is trying to make the smallest possible not attainment areas and to to foot traffic and that they can or is is definitely more to do here ok and what might i mean this was not apparent to me from the briefing what makes you drawbars howard one of her petitioners and i'll just make two short points st facts matter and secondly justice delayed is justice denied as judge griffith recognized in record communications five and forty nine future panels should consider the alternatives to open ended free man without they could in that opinion in response to the course question there were a number of cases in which our cited and that's the point here you know what their opinion says leads me to question the wisdom of the open ended re man without they could cure because otherwise you'd then get to mandamus the purpose is to  situation and in this case where we've seen the rather extraordinary letter from the u s e p a administrator requesting the illinois e p a director to please make a request about which to attainment you can you speaking power of the court right there what you just said if that is where you would find it if you chose to do so sir i believe that you know under the statute technically speaking the district court has authority we've blown through those days was dead oh yes yes you have but that doesn't mean they wouldn't spring back into place i mean i think that it isn't i don't think it suffices to say as e p a suggests that oh well unreasonable to lay as an option for them because i'm a reasonable delays suit has a one hundred and eighty dollars day notice period and you have to wait for what eighteen months under your case law before you can even bring one in this public health here that i think you're track honor i'm talking simply about the fact that public health matters to our clients air breathers you understand what i'm asking yes i do i absolutely do i think that remedy didn't invite a remedy of appropriate on the other hand we do here the court and if the court is moving in a different direction we are pleased to submit a supplemental forty of how the court might manage the process so that we get progress from the agency in the words of the statute as expeditiously as practicable justice delayed is justice denied here public health is at stake if the issue that is coming up from the perspective of the court is the path of eight a deadline in which the agency must act we would be pleased to brief that if the court one supplemental authority thank you  now we go on to the last topic if lease the court here in st on behalf of the el paso intervenors we are urging the court to reject e p a s request for a voluntary remain and reach the merits and deny the petitions for review in my time this morning i'd like to touch on why  request does not measure up to the standard in this court's case law for voluntary remain and and then turn to two specific statutory provisions that cut decisively against three men in this particular context and this court's tw seventeen decision in libya versus the department of energy the court quoted a treatise that i think correctly encapsulates this court case law and voluntary every man in the court said that voluntary remember is appropriate when quote the agency recognizes deficiencies in its decision explanation or procedures and asks the court to remain on the case back to the agency so that it may correct the deficiency of the agency doesn't need to confess this court is that it may be beneficial for the court to receive additional further explanations about the el paso and other designations it hasn't told the court where it might provide additional explanations why those may be needed much less identified any substantive defect in the designation and indeed we think on this record on the proper standard of review of deference to the e p a we are at a loss to see why the e p a is not just defending this rule on its  utilities all of waste activities group case the court did take into account the prejudiced to the nonmoving parties and their the court had before it a party that wished to continue litigating and to vindicate its position and the court said we're not it says it's as if this would give us the opportunity to supplement the record or modify the designations in ways you could move to challenge or at least narrow the issues why are all those sufficient for or narrow the issues why isn't that enough for us to read this court has never accepted that i guess has always in asking for stories i was asking you why isn't that when we're working and considering the question of and what is thank you this one of the pressures of the state is that it has to continue defending its rule its designation before the agency and potentially getting this court when it's already justified on the record and under the statute but there's no interveners is that they will now labor under a cloud of uncertainty while this remained goes on for who knows how long it whenever it makes an investment decision or planning decision about a beneficial expansion it won't know whether it will be subject to the additional permeating it controls requirements that would come under this this is a lot cleaner and it's come to these standards are constantly being changed designation reconsider this is a process that goes on indefinitely many states have to participate in the process and this is particularly relevant to disallowing every man here two very quick points there we've heard from our friends that the statute requires e p a to probably get the state's designations as expeditious practicable if you can't tell us what's wrong with these designations they're running directly into that framework if they're asking for the man not sure if there's something wrong with that they can go back and fix it but otherwise they're supposed to promulgated these way it says that if the administrators has met the administrator may at any time notify the governor that available information indicates that the designation should be revised and then it goes through the pro that the administrator has to provide public notice to the governor with the reasons for why it's considering every designation we have no idea what those reasons are right now so that lets the e p a do its statutory homework and do its due diligence and provide notice t morning routers please the court gave jonson car for the state of wisconsin wisconsin poses u p s request for voluntary remained here but because we believe that e p a got it right in its final technical support document who told us why it says it can improve the record might be able to do cases given reasons it hasn't just said please remove your honor i think it's a subset of cases to do it that reason i think it doesn't give really any indication of what it sees that needs fixing here and that really goes to the core of my argument which is wisconsin as the case currently stands all that can be avoided as to the wisconsin designations because wisconsin has submitted substantial evidence supporting the this is narrow distance from the shoreline approach  point out that this wasn't just wisconsin it's studies wisconsin's models this these are the studies of a regional consortium this is the bill lab coat that they talk about in the briefing and this consortium agrees that this gradient exists that the ozone levels are highest above lake michigan and that they dissipate quickly as we move away from the lake and so it would between the lad co studies i you're saying i mean their judgment apparently is they don't want to come in because they think maybe they're going to looters and your judgment is we don't think so we think we're going to win if you were going to lose you might be singing a different tune right you would rather not have as reach the merits and validate designations and send everybody back to square one i would trust so it's really just a difference of assessment of where we are i think the difficulty is and i really i hear you and i hear mr that the camp be that an agency that has a deadline can blow through the deadline and do a kind of an adequate job and then just all it gets from a court is more time to do a better job and that you know when you have reliance of like we want to know what standard we have to be how and where we plan our development how and where we deal with you know getting back into attainment we want them to tell us in a timely manner so i get that and what we're struggling with as a court though is when it has done that accomplish something have begged and thinks it doesn't and maybe shouldn't be defending it how do we put the genie back in the fall how do we protect your reliance interests and interests in clarity and not let them get away with that if that's you know if that's an accurate description of what's going on and frankly your honor that line would you support or that like what about this suppose resources has put together would be disregarded again so how do you know that he knows he did we don't you don't know that we don't know what the agency would do it because what they discussed in their brief  was basically the entire spectrum of what's possible so so we have no idea if they would give more explanation in support of these designations or if it would be a complete read as a geisha i mean i think could you have that there are things that i understand about some of these technical settings and so what i think it could happen has i'll go back and and train them up a little better provide them with more of the underlying documentation foster that or alter it that's certainly a possibility it was some sort of part of the natural resources position is that the there's already sufficient information court record and it may be and you may be right you may be right and if so if it were that they relied on to be sure that they didn't rely on everything that we presented but i think that that illustrates their exercise of expertise that they noted that some of these things aren't enough but some of them w agency needs to do is to profess an intention to take another look in the problem there and the reason the court denied the voluntary remained request was that the agency was not actually going to review its original action on  there they wanted to remain so that persons could submit a new application for a new consideration but linea said essentially as long as e p a or any agency is looking to review their own action that's enough do you think and potentially take a different approach if a different approach is warranted but you understand the concerns of your opponents that they're worried about the way in the agency that is in the assurances of that that's where their prejudice comes from is there anything you can tell a presumption that it's going to act lawfully and in a timely manner do you have a sense any sense of how long your client would take i do and part of the reason is that it depends on how this court decides and what it decides  just very quickly to that prejudiced point that prejudice that interveners point to our present any time an agency asks for voluntary an end and this isn't anything exceptional here the only case that any party cites  a court has denied a voluntary remained quest for prejudice is the utility solid waste activities group case and the prejudice that was materially different because there the court said that the night that allowing voluntary man would necessarily implicate another affirmative claim being brought by an intervenor and here there is no such situation   in that sense i think is useful to consider and the sense of what might happen here i agree that the agency hasn't told us what it will do but these challenge designations  ataman area boundaries are so infected with serious deficiencies that remain and just simply not supported the agency goes so far as to move mountains in certain cases and disregards contribution from nearby areas of precursors entirely and in some of it and particularly in the wisconsin line drawing exercise where only the ozone rich area is included in the not attainment area not the nearby country contributing area  from the land and it underestimates the extent of not attained in areas according to its record e p a has technical support documents and it's you know yes read and in this response the comments document does a good job of refuting the argument that the agency supported the technical basis of the wisconsin model and and and finally on the utilities solid waste activities  your honor certainly in the general's case it would save judicial resources to have a voluntary man there's no guarantee or really any reason to believe that would be the case here because we don't have any idea what u p a is going to do and remain and when this court a to do that if you finally we heard no answer to the fact that there's a specific statutory procedure that allows e p a to revisit existing designations and that would address the deadline problem here this court denies that petition for review a can go right back and do the proper statutory homework and due diligence that it needs to do and issue the notice and give reasons the governor and then go through the process of getting better data or revising it's a designation if the i'd like to just reply agree fully to this week's point that the designations in wisconsin are infected with deficiencies as judged pillared question earlier if the court were to find reasoning persuasive as to sheboygan which we urge the court to do that reasoning applies throughout wisconsin's lake shore so it if it should void in it is not infected with deficiencies and none of these other counties are infected with any deficiencies and that's the position that our department of natural resources urged in its nd nd technical support document when e p a st promulgated only certain partial