so this action by the court would be warranted under the court's rulings in the hall and bar cases which find that an agency is arbitrary and capricious if it fails to follow its own guidance or if it fails to analyze a critical piece of information when taking an action and he violated those precepts for three reasons first when e p a proposed to approve montana's infrastructure cip structural elements necessary and defined that to mean all professions necessary to cover all p s t sources however when analyzing submissions e p a refused to look at these legal interpretations  saying that that was out of bounds and beyond the scope of what it would look at and the result was that by e p a bearing bearing its head in the sand in this way it failed to look at this critical information and therefore allow scope of the state to continue with these interpretations that improperly narrow the scope of the p s t program in violation of e p a s own a quick ability regulations and therefore since the scope of the program improperly narrow e p a has violated its own guidance which says that p s t programs have to have all provisions necessary to implement the program that's what i'm kind of struggling with exactly what the dereliction is that your charge that you are thirty big are you a thirty that the actual provisions of the state implementation plan deviate from the the plane and deviate from the regular from the e p a regulation yes in the in the sense that in order to understand what the provisions are you need to look at the regulatory language plus the necessary interpretive legal interpretations that go along with that way and then you let me try that question again on its way through the provisions of the state implementation plan deviate from the regulation can't tell from on its face it's impossible to tell whether the program is sufficient on its face what the what if his own guidance says is look at all provisions violated them not me it doesn't  violate it actually does fifty one e p a issued guidance for p s t fifty one one sixty six eighty seven which says that a click ability provisions alone need to be as stringent as what they lay out in those regulations and if the states a park ability provisions aren't as as stringent as those provisions that's a violation of that regulation in essence to me it it seems that your complaint is in the way the state is interpreted the plan not in the way the plan is written per se that's right now it's an implementation to me your beef is with the way the state implements the implementation plan not the actual plan as approved by the e p a the understand the distinction i'm trying to make i well i understand the distinction but i don't think that that distinction fits with e p a is own guidance what u p a says is that the state has to have all provisions necessary to cover all p s t sources you just look at the regulatory tax on its face you can't tell whether all sources would be covered and this goes back to how e p a wrote the original rule where they were looking at baseline when they say a baseline is a two year period prior to a project and you can't tell from that language which two year period should be used as the baseline should it be the two years immediately preceding should it be five years immediately preceding  backstopped that language with interpretations that it published in the federal register saying the two year you know two year a two year period means the two year period immediately preceding and then it went through a series of expect it's always specified what it meant so we don't know if it's and he probably picked the wrong period we'll never know whether the state has picked the wrong period the way they implement the program because they allow sources to pick any baseline no matter how far back in time e p a limits power plants to have going back five years the state would allow a longer period they would allow other power plant sources e p a would allow ten years for sources to look back again the state looks allows an unlimited period of time and in fact there's no there is no requirement there's no possibility of going beyond the ten years according to the payroll regulations so that what you're suggesting is that if you have the state of montana of the sides that they can go to any two year period well beyond the ten year limit that's a sudden e p a regulations that's a clear violation of what regulations would require that's right as the product so there's there's levels of regulation here e p a s regulations with respect to p s of montana and you're saying that the interpretation itself means that they are not in compliance with the so that they're they're not in well they don't have a minim actual literal compliance with the regulations and that there are other opportunities that you have to be able to object to the implementation of the sip case this becomes all an academic question whether you know you oppose the sept itself or whether you decide to file another objection and have access to judicial review in some other way so my question is do you seven order those are orders by e p a against a source that they are saying they made a major modification and they're in violation and the another would be a title five petition where citizens would point that out to  y and with respect to all of those opt all those options either e p a or the citizens would have to know that an improper baseline was being used in the way montana is operating this program you wouldn't know because there's no public notice regarding what baseline should be used so none of those actually involve a correction of a program they only involve going after a  there's one other option which is a one thirteen a five order were e p a can take over the program but again citizens can't do anything to force that type of enforcement that is in the force but section of the act and e p a can't do anything or citizens can't do anything to force e p a to take that action so of the five options that they've listed none of them would provide that we were asking the court to be right here which is saying if you're not following your own guidance by allowing these legal interpretations to stand there for vacate the the order and i have to ask a broader question just from the perspective of public policy if in fact this court rules in your applied nationwide what kind of impact would that have in other words is it a big deal is this a really big deal if in fact you if we suggest that  take on this responsibility well no your honor because we're not asking e p a to you know undertake some big open ended review what we're saying is when it's pointed out to you that the state has created legal interpretations which improperly narrow the p s t program then consider it that's all we're not at you know so analysis as to whether in fact those regulations are in compliance and my question is i mean does this practically speaking open up a huge door to a new responsibility for  to approve a sept there's a notice and comment provision citizens or companies comment on what he is proposing to do and it actually would be arbitrary and capricious it a violation of due process of applies to new point sources or modifications in the right isn't that what we're talking about we're talking about interpretation regarding the how to determine baseline and whether there's the the allowed parameters and the state has decided i had interest in that when they use the wrong analysis why can't why is that secret you say we'll never know i don't understand that because you got an evaluation of that is from twenty five years ago and i said was really running hard then that's the emissions level that i'm going to use and then they go ahead and construct they don't need to tell the state they don't need to tell the citizens or e p a no one would ever know they just make the decision and they go ahead and construct that's the way montana is operating the program and so there's no notice and comment provision this source just decides for itself maybe they make a note in their own file and go so unless you're actually what you're suggesting is that montana has the ability just to tell people you use whatever two year period you want well past the ten year period first and second nobody has to approve it which is the second which is the major change from a regulations and your point is i guess is that because nobody has to approve it nobody would know this is ever happening and as a result all of these other remedies are inefficient because nobody knows that in fact someone else was given the authority of go approve whatever two year period they wanted and that the sip therefore would be the only way out sopra view would be the only way in which there would be full knowledge and is if you want an alternate baseline beyond five years come into the agency and prove demonstrate that your desired baseline is more representative of normal operations and then the state permitting authority has to make that determination that's how it would come to light now the state may get up here later and say oh well we have inspector we have a minor source program and there might be ways for us to find out but that again would never make it to the light of day where d p a would know our citizens would know and perhaps the inspectors or these programs which aren't designed to be looking for p s t issues none of that would actually ever come to  necessarily come to the light of day what is it that you want us to do we want you to vacate this approval and require e p a to consider these legal interpretations in it if in fact you if you open up b p s responsibility to make individual determinations without some sort of limiting language is the when this is in play when you just really  bear the organization i understand your honor but we're not actually asking to open up anything all we're asking is for e p a to follow its own guidance which means the guidance says look at all provisions necessary to determine whether the program covers all sources provisions doesn't mean just the regulations themselves provisions could mean if you look at that guidance they talk about this of explanations that the state provides are legal interpretations or attorney general opinions it's a pretty small set it's what provisions is the state using to actually operate its program would include only the regulations plus any inch legal interpretations that the state is using we're not talking about opening anything up we're just saying e p a follow your own guidance which says the review process to that specific added factor correct your honor unless you know maybe the state has an attorney general opinion that they're also using to define the parameters of their program when they consider that but you know usually the you know the state has a very defined set of operating parameters for how they structure their program all we're saying is this is a critical operating the court my name is sheila baines and i represent the united states environmental protection agency with me at counsel's table as randall cherry from e p a region eight officer regional council i will be seating the last six minutes of respondents time to infrastructure sipp submission contains the relevant structural components outlined by the act not that e p a affirmatively investigate alleged failures to implement that plan properly to e decided in the challenge to action that montana's infrastructure sipp submissions contained those structural components with respect to its p s t program and that decision was not arbitrary capricious or otherwise contrary to law and three contrary to any i c's assertions in their reply brief e p a did in fact address and comments regarding montana's recent statements and ter putting its baseline emissions definition in the final rule a explained that while it takes those assertions seriously the infrastructure sept approval process is not the proper avenue to investigate issues with the state's execution of its plan first we ask the simple question what does the statute require of e p a both the plain text of section one ten array and the overall structure of the act support e p a s interpretation of its statutory duty which is kennedy potential and i just ask you a hypothetical are you you have to take the position that you literally apply the a spectacular regulations you compare them and if they comply just generally speaking with with the law that's fine and you might look beyond that just hypothetically of if you have knowledge as you're going through this the process of knowledge first of all of the purpose of the statute and that is protect against  t air violations of the clean air act that's the that's the overall purpose right and so when you're given a step and obviously meets all the plies but then you know from some other source some other regulation by the state that they're going to do just the opposite that they're not going to actually comply at all with the purpose of the clean air act but they're going to be something completely different your position would be can't do anything about it you have to give them a state plan you have to find compliance is that correct if in fact you know that this date is interpreted by word by regulation the law  such a way as to really violate the purpose of the clean air act i appreciate the question your honor and standing here today i can say that there is no circumstance in which if you would not take action obviously if it was clear that if you that there was bad faith on the part of a sept i i believe there are circumstances under which u p a would take action but that you're not you're not going to take a hard line and say we're never going to assume we're never going to interpret some implementation issues which the infrastructure said approval process is is far from tailored it's not intended to address implementation but there are six that are tailored in that fashion one is one thirteen eighty two that creates a process for when a failure of the state to enforce the slip affectively has resulted in widespread violations we also have one thirteen a five which empowers you to issue stop construction orders administrate of penalties or bring a civil action whenever the administrator finds that a state is not acting in compliance with the requirements related to the act thirdly i'll highlight section one ten k five that's the sick call provision of the act and a si t they comply well your honor because under the act the air program in montana the p s t program specifically is administered by the state i'll let the states speak to the ways that they that they do gather information and do monitoring auditing auditing inspection and would be able to catch those types of instances but i would like to go through the other there's nothing on the ok but there's nothing under the federal law well the federal law here is the state program which becomes federal law once  s approved by the by u p a so it's the and the state is administering it so the fourth tool that i'd like to highlight is one sixty seven that's a p s t specific measure and that was highlighted by alaska department of environmental conservation versus e p a a supreme court case that highlights the broad authority of e p a to act when p s t is not being implemented fifth point two one seventy nine a four which can result in sanctions if a failure by the state to implement is not corrected and lastly and most importantly i point to a six tool which is section three zero four eight three which is a citizens group from a group like me i see if a source fails to get a p s t permit when it should have and we know of it i mean i see knows how to do that and they've done that in the past the district court litigation that gave rise to this petition was just such a citizen suit in which i mean i see  under their opinion that a source had failed to get a permit and they initiated a federal enforcement act against that source council the particular comply that the petitioners have is whether or not the state implementation and so that would be the baseline emission right yes so is it your position that the provision in the state implementation plan and it contains language that's identical to the language in forty c f r section fifty one point one six it's not identical to the current language that e p a uses but it is identical to the language that u p a used starting in one nine hundred eighty up until two thousand nature including notably here by any i c themselves they stated in their comments on this rule challenge here that quote the one thousand nine hundred two and two thousand and two federal rule revisions were intended to be less about the basement emissions are calculated doing any consecutive twenty four month period selected by the owner operator with then the five year period immediately preceding the beginning of construction that would be the later regulation than eighty regulation i have it here on page twelve of the government's brief i mean but do you have a physical copy of the regulation not just a citation to it or is where is it found you know where can i find it in the c f r it's at forty c f r section fifty one point twenty four b twenty one forty c f r section fifty one point twenty four power some power plants five years other power plants up to ten years my understanding is that the five years can be extended any two year period can be extended assuming that it's more in compliance with what the standard tenet information organization essentially there's they're suggesting that the state of montana is taking the position that it can be any two year period forever which is obviously in violation of this ten year limit that's the first thing in the second thing is that apparently nobody has to approve it which is totally inconsistent with the a paper e p a regulations that according to montana you could just pass on this this baseline emissions standard without any supervision or control regulation or review by any federal organization which then suggests that you know some somebody in town i can just take a two year period from twenty five years ago and nobody would know about it and that's the grave concern here is what's wrong with that scenario well your honor i would say that it's not clear on the record before the court that that is less stringent if the rule is being interpreted in the manner that is positive by the petitioner here it's likely to get i think when there proffer that displaying interpreted that way that the two year period can be up to twenty five years or whatever that clearly is a violation of e p a regulations is not i would say it's not a clear violation overall of the rule because at worst but the petitioners have only demonstrated that at worst the two rules in the way interpreted taking that for a fact here for purposes of argument that there are it worse at right angles to each other and what i mean by that is that there are two axes on which we could measure stringency here so  of the rules requires a representative miss but doesn't impose that time limit that you mentioned but the other rule which doesn't pose the time when it doesn't have an explicit representative miss requirement in so it's not clear from the limited record that we have here that it is it would be less stringent as interpreted in that manner and in order to do that u p a would need to decide that u p a would need to fully develop a record on that question they've not done that here so it would not be prudent for me to take a position on that issue on e p a s behalf at this time but more importantly nor would it be prudent for the court to opine on that issue without the benefit of a full administrative record going to determination from e p a in there is no question it would have to be a full administrative record but the question is wouldn't really want to know that regulations have been adopted or procedures or practices adopted by the state of montana which are as you say at right angles with  we invited them to petition e p a to look at this question under one of the other statutory tools that is more tailored to address implementation issues but this is not the context under which e p a is required to look at that and that's the new york question before the court well what what is the what would be the most appropriate tool that they would use to get in there are a number of tools a very slightly if if i were a petitioners shoes i would petition e p a to do a sit call under section one ten k five and then if when e p a responded to that petition if you denied it petitioners would have judicial review of that denial and they would be able to develop a record of that and if you a granted that petition they would issue is not to require any kind of review in fact organizations can just set up their own two year period that suggests that nobody will know what happened petitioners obviously knew that that happened in the past when they initiated their citizen suit montana will speak to the ways that they can get that information but before i sit down i have one important point that i'd like to make in response to judge sessions your question about the pandora's box that would be opened by ruling in favor of petitioner here and that's a very good question if the court were to impose this new and hefty burden an e p a that is not mandated mandated by the clean air act that would have enormous consequences on the national administration of the clean air act every time a national ambient air quality standard is updated every state an air management district there over fifty of them they must submit one of these infrastructure slips and the purpose of those infrastructure steps is simply do a short e p a that the state has the necessary program in place with whatever changes might need be needed to adapt to those new standards if required now from of ruling like this to hypothesize and explore every possible interpretation of each state's regulations even when like here they are identical to e p a s regulations or previous regulations or if e p a must chase down every hint that a state is not faithfully executing its plan in every way work would be severely hamstrung that would transfer resources from other priorities and that would disrupt the orderly process created by the clean air act there are a half a dozen other tools that are much more tailored to implementation issues that i've highlighted today what you have your honor i just wanted to mention in response to some of the questions that it's not any period that can be selected the period has to be representative montana described in its brief and in the citizen suit brief that was filed as part of the record here that there is a fact intensive site specific analysis that the state undertakes to review the aspects of the permit application and through the process that even if no permit application is filed through meeting with the company through inspections through its mission inventories through minor source reviews through de minimis permit review reviews there are processes whereby montana finds these issues and addresses them with the company or through actions that is it true that none of that is done in public your honor the there is no explicit requirement that a period selected outside e p a s presumptive two and five period for instance must be approved in a public process montana's records are open to the public and i mean i see in groups like it routinely go through those records and inspect them what records be generated of the discussion and and the conclusions between montana and the private compan period that the federal government rules require that any i see has pointed to do not require representative innes and montanas do so when a company might pick the two in twenty four months in the five years proceeding they can pick that and there's no scrutiny no information given to anyone differently the from the way i just described that would alert someone to the fact that a the issue here is whether e p a reasonably interpreted the clean air act air act to only require official review we see that petitioner here has tried to intertwine these kind of very complex issues of regulatory interpretation with this their concerns about how e p a undertakes its review and they seem to be inviting the court to weigh in on these very complex interpretations and so the first thing i'd just like to say is that we hope the court will not take up that invitation to actually get into the interpretations of the montana and that if if that were necessary which we don't believe it is that would only be handled i'm going just explain one thing to me if you were to undertake a massive addition to one of your operations and  out is that even under e p a s current rules there is no requirement under most circumstances for a company such as ours to submit anything to the state or to get approval and you can find out forty c f any private company that's what you're saying that's correct only for the state implementation plan i'm going from there is between the state and the private company as to how the compliance with the state implementation plan is going to be achieved  projects undertaken all the time there is under the current rules or the past rules no requirement to go in and get some sort of approval for your projects so that's a very important point from the e p a but you have to get you don't have to get it from the state either so why haven't the discussions with the state if there is no requirement for the state to approve certainly i don't we have we like a good relationship with the state and make sure that we're complying with the regulations so that that's something that happens often so and so in essence your view is that you could just  implement the project and then it would be up to the state and the e p a to bring an action if you were not complying with the regulations that's right and in fact what position i mean i see did previously they sued my client and several isn't about you it's about the state and the e p a and whether or not they could bring an action against you is not really relevant for purposes of this case and i think that's correct and that is the main point that i want to make which  asked to decide is whether e p a reasonably concluded that the clean air act only permitted require them to undertake official of the regulations and the answer that question is yes and what your argument has a double edge sword there's a new way to be basically what you're saying is that if you want obviously the plaintiffs in this particular case would say that's exactly why we need to get an active review in this process because in the sit process there assuming that the court agrees with that there's going to be an open disclosure of exactly what is being proposed and there would be open candor because if it's just modification as you suggest you don't have to tell anyone and nobody would find out about it theoretically unless there's an environmental group that is sensitive to meeting the regulations very much appreciate the concern that you're raising but that's not one that actually deals with the surprises that deals with the underlying u p a regulations about p s t that's how this point is that that's why it is more important to make sure that the regs regulations are screened gently and here too because once those once this plan is approved the public loses sight of what's occurring that's true i mean we all want the rules here too i think the fact is that these concerns that you're raising are somewhat endemic of just how the p s t program works and so that's that's an issue of the whole of the rule making where he sets how how this whole permitting program works honor let me start by answering your question about the one nine hundred eighty rule so the rule is as as counsel stated for the united states was fifty one twenty four and what he said a put out that will on august seventh one thousand nine hundred eighty if you look at the preamble there's an interpretation right in there that says a two year period means the two year period immediately preceding the particular change so at that time to basically everybody knew what the baseline was it was the two years in mediately preceding and by the way when and the i c brought the action against the call strip plant none of these state interpretations had been issued yet so i just want to correct the if you if a source wanted a baseline beyond five years they had to ask e p a and prove that the baseline was more representative so it's not true that citizens would never find out and would find out at that point in two thousand and two there was a further relaxation where other non power plant sources could get a ten year baseline but no alternate swer allowed montana is says you can use any baseline you want as long as the baseli is representative of normal operations well to use one of these base lines outside of the window that each piece approved it has to be more representative not just representative and furthermore who makes the determination the source alone they'd never ask the state to approve it or not so it's all done by the source itself the other thing i would add your honor is that with respect to the  options which council laid out when she mentioned was one ten k five that was never mentioned in their brief however i will note that it's been two years  since citizens pointed out this problem to e p a if we issued a petition we would do more than what we've already done which is point out that there's a problem what has e p a done nothing and there is no petition counsel is is discussing a potential resolution of this matter which and we were happy to continue discussing it the government is the one who cut us off and didn't pursue that so you know i did i don't know that it's appropriate to be discussing that here the point is that if we did a petition under the ministry of procedure act and if they did nothing we'd have to sue them for and reasonable delay just to consider the petition and so that could take years and years and years that that is not a reasonable option all we're asking is that e p a perform its duty now they've never stated in any guidance that their review is only limited to a facial review they only said that one other time in the context of an undervalued federal register notice raghad regarding the texas two thousand and eleven there's no longstanding guidance as to that the guidance says that e p a will consider all provisions necessary to have a complete program and that's all we're asking here we're not asking for anything more than that for them to consider the provisions that make up the state's program and in terms of bad faith i would note this episode discussed here the state did not submit these interpretations to e p a for its review as part of the you just made these interpretations and you're just acting on them so if he never gets the opportunity to weigh in on it we've identified the problem and under e p a s own guidance for infrastructure cips