test procedure a t p as a new vehicle to avoid rule making under the clean water act but we also in that piece included claims that in prayer regarding the t s t guidance document that was issued in tw employees agents be temporarily or permanently enjoined from pending the use of the two concentration t s t or the use of analytical results obtained by using this non problem gaited method for n p t s compliance determination or other clean water act purposes so that prayer didn't mention the alternative test test procedure at all it was a standalone endeavor standalone also allegations in the main body of the complaint nobody really thought it was much for the st few years and a lot of people didn't really even know it existed and then it showed up it might well as something that was starting to be used as a rule and that's what got people concerned about it and so the original case was filed in twenty four to so we found doing freedom of ration act requests emails internal emails from e p a saying that headquarters had told them yeah you can't do what you wanted to do in the city if he is into concentration and that it's not allowable under the part one hundred and thirty six dollars regulations and the only way that you could deal with that was to do an alternative test procedure that in the same that list a lot of verbs and they're separated by or sometimes the verbs are very different things and so i was a little unclear on what some of your positions were prior to two thousand and ten so we're talking about  there in the world that people would have used book it wasn't for been obviously it was not ever been but in that two thousand and two rules they specified what statistical options you could use and there were five of them and they said you can pick from these five but you can't stray from those five if they have a language that said this wasn't meant to be exclusive and you could use other methods no the language was more see if you got a different answer but it was not clear that would ever be used in any regulatory construct well although what i can't understand is i can understand the argument that the two thousand circulating a spreadsheet in two thousand and twelve that allows the person using the spreadsheet to use either the ts t or any of the prior tests how does that you keep using expressions cases that it was noticed playing in that courtroom role that that was a direct challenge in that case and we asked the men to make it more clear that in that case the final it was action was definitely th and ten guys so then the problem became when you file a new case and now you're outside of that six year window and then under the th circuit cases under the ultra vires that you can extend that s guidance because it had this disclaimer say we're just putting this out there we're not going to use it it's not going to affect anybody's permits or any labs and then all of a sudden they issue the spreadsheet which has a cover sheet it also was an x l spreadsheet so they gave it out all the states and said here use this run everything through the spreadsheet and kick out this past they all answer but so have so that those the standards that were saying this just to be clear that the steps that you're saying permit issued to the worst case sanitation district which was a joint e p a and regional water who are permits in california the regional water boards are generally who issues then p d s permits all the state water board has authority to do that as well and this case it was a joint permit between e p a the regional board for orange county sent his district who is one of the scouts members and that was one of the st places that we learned about that actually have two different options for end points that you can use one is that i see twenty five which is the inhibition concentration at twenty five percent the fact and the other one is a no a fact concentrate observable fact countries and those are the went off the reservation as far as what he doesn't your role allows us and we put a copy of the table from the regulations on page five of our apply rape and this is what the rule says it's a parameter for chronic toxicity and the units are no act or i see twenty five percent apple and it doesn't say you can use pass fail it doesn't say you can use t s t these are your options and see if he does it is a totally different thing so what  doing is saying yeah the rig says this but we're going to in guidelines either overrule or revise the regulations and not do it through what is required under section requiring that the ts t be used in every perm is that true no this is it they are not requiring it in every permit but it's there allowing it as an off and that doesn't they needed to fall he procedures to lift the prohibition and allow the use of the ts to not just a p a but under the clean water act itself that under three not through this litigation no we're not tolerating specific permits because in california state permits are issued by the state and get challenged through stake work and a state court doesn't have the ability to tell  to stop pushing the use of the ts he ed because it's outside so what would happen have to happen is that you have to appeal every single permit and so as a trade association all the trade associations that i represent and they are they represent probably seven or eight hundred probably a one hundred and works and how it will have and to employ that need to eight hundred different state court cases that are going to be binding on the next one the decision to allow it was invalid and you want us to say but they kept us up a while so you know go through a rule making or something is not right but there is some evidence in some of the emails and they tell the california authorities you are quote able to use and quote the ts t despite the withdrawal of the t p a you if it was required it would be odd to say you're able to use it you would say you're required to use it w they want people to be all wary of change the rules i think that's what both judge notarize questions were probing up to make sure we understand your challenge and to summarize you're not saying that the e p a has as a national rule  it's required each and every permit that t s t be used you're saying that under the two thousand and two regs or under i guess today's regs the e p a is not allowed to even give the option of using toxicity is an appropriate technique to obtain more accurate results from sometimes water pollution testing and the plainest want to challenge whether e p a followed proper procedure when it published like i was this report correctly dismissed that challenge for lack of jurisdiction guns did not require its use but how do we mr gubb got it i can't speak for the other two judges but i tried reading some of these rules and stuff and ice will be reading a foreign language how do i know  so you can do it well then why then that the one i thought your brief by the way is really really well thought i was it really was a nice clear guide to some really complicated stuff so thank you i mean it might be that you fooled us but i you need a p t if there's nothing there that's being required sure the reason is the difference that the plaintiffs have pointed out between how the test method is done by the laboratory the published test method which does require five and the statistical analysis which only applies the math to two of those concentrate if you have to do five concentrations but then in the end you only use two of them that's more expensive and more troublesome and so california saying do we really need to do this if you understood it since it's regulations were higher five situation if it wanted to bury that requirement it would have to do it through the alternative test procedure that is laid out in one hundred and thirty six dollars i think so as of today you do you have to take the five concentrations even if you only plan to test two of them that's correct that's the result of u p a withdrawing the alternative test procedure but  be relevant to an argument that maybe i thought players were making but maybe they really aren't could you address the d c circuit decision of appalachian power because that seems to me to suggest that you can have guidance document by itself might not be a final agency action but if the agency starts you know effectively requiring you curving agencies to follow it and to use it in issuing the people who are subject to the regulation of the regulatory scheme can the challenge of so why does that apply here sure in appalachian power and the d c circuit said that if the agency has given states their marching orders and require them to fall in line then that can be a final agency action but that's not what has happened here in fact permits have been issued as form a minute without using the t s t and use other statistical techniques since tw the technique is required by a permit and players want to challenge that and they can challenge the permit one hundred and twenty days in the court of appeals for permits or in the california state courts for state permits but there's no enforcement action would be based on anything other than that permit and so that's the agency action that should be challenged and suppose that i think this goes beyond the fact that they've alleged but just hypothetically if suppose that the agency had started those kinds of issues can be litigated in state courts as well and in wind river this court said that it has applied challenges adequate to address those kinds of because once it's been decided once then rescue will apply to make sure that any other agency decisions that may be affected by the same policy are going to be affected by the court's decision that it invalidates that policy in the context of a particular permit ok i wanted to ask exactly that that it was inconsistent with the two thousand and two regulations or that that challenge would be could be made in a state court is that right yes we believe so and obviously e p a would have an interest in that perhaps we were trying for dissipate and sure of use with before on meaning click and so as miss farm was she was raising the possibility of having to pretty eight different challenges to the same thing you would have to you don't have to one of the st i believe that's right there's language supporting that result in wind river i that judgment was rendered but ultimately e p a would be likely to try and fulfill its role as a coordinator and as a repository of expert information about these are going to shoes and we're trying to resolve it in that way but that can only happen if the challenge is raised in an appropriate forum here the district or looked at for example the two thousand and fourteen complaint and said does this complaint fairly raise the question of the validity of the test for significant and as a result it's time barred that doesn't mean they're completely out of luck they still have under wind river the possibility of as applied challenges even after the six year limit provisional challenges but they have to allege the right kind of claim and they have to allege right from here it's fairly so on and then if you deny the petition then they can seek review of your denial of that petition is that also an option available they certainly are entitled to to make that petition i think that whether e p a has an obligation to mind is american rooted transportation builders association which governs when you can petition for a rule making and then you have the denial of that we're making but certainly and that is that's an option that many plaintiffs try and it may be effective regulatory contacts that is to make reasonable intentional determinations of whether it's needed and also compliance determinations of whether or not has been violated first of all at least some carries interested parties including not with the national  can be used to make reasonable pencil and permit compliance determination that's on the page roman numeral two with the other disclaimers about two kinds not being a binding rule so the idea that it was not until the spreadsheet was certainly has really just a calculator for figuring out how to apply of the math of the statistical technique to the results you receive the idea that that was the st time anybody could ever have known that the test for significant  that allows review for plaintiffs who are alleging action not in accordance with law and that is exactly what these plants and so they have to abide by limitations places on the section including the statute of limitations and the provi this and the rule did say the methods manual state the statistical methods recommended in this manual are not the only possible methods of statistical analysis they know that there is other statistics out there in the world as the recommended statistical methods described in the method manuals worse the lacked it because they are applicable to most of the different toxicity test data sets for which they recommended there are powerful statistical tasks hopefully easily understood by non statisticians and then able to use without a computer if necessary so they realize that maybe the t something like it which has been used in pharmaceutical applications are out there in the world but they chose not to put that in now the counsel for e bay says the t n c is more accurate well i don't know how that's defined because your find there is no violation and you run it through the ts you know suddenly a violation that's a problem and you're also not able to use the information found in the other five  concentrations there might be useful information in there that this says that we should rely on this data it does the two thousand and two rules don't prescribe a pass fail they don't use the same approved endpoint they change the number of samples and most importantly change the alternative hypothesis from presuming it's not toxic to presuming that it's toxic and as far as the state court cases the original boards say that they're not