no one ever present planning refining company denying wyoming's petition for hardship relief from the renewable fuel standards the e p a made an unexplained and highly significant change in its approach to evaluating hardship a for two distinct reasons the first is that as we didn't know when we filed the petition for review of what has now become apparent in the course of the briefing that change was made in the middle of the apparently it applied the old methodology to those applicants so what we have here is a case of failing to treat like applicant i want to i didn't follow the introductory clauses you didn't know at what time they  is that that change or not that all of the was made in the course of this petition not not at the beginning of the year but it was made the change was made when they got to wyoming's petition so the petitions that he had evaluated before which which again were for the same twenty thirteen compliance here the earlier evaluated petitions that it now appears were of value which is an argument you need to make before the agency first well we know argument that the agency hasn't been able to respond to be  in the same buying and selling runs in the same market at the same time and you're the question is can you be a articulate some justification for treating people differently just based on unusual is that they are at a different final only in the sense that the agency is processing them at a different time and there are other direct competitors who got exemptions we do we don't know exactly who  e just for the purpose of the argument that there were other parts united states but not competitors for selling to the same companies or anything so that their cost structure is kind of irrelevant to their ability to compete why doesn't that i understand why it might not be fair but i don't i'm not falling exactly why that should matter for purposes of our consideration if they're not competing with each other because the question for the court is has the agency to the has the agency articulated some reason for treating similarly situated parties differently well if they're not competitors at all then why aren't they in the same category as the question that josh rojas and i asked which is why is that precise evaluation of that what what what more do they need to say your honor that that the fact that it is more refined and that you have three rather than two is essentially a logical they're saying here we want to have three because three is more than two and the question is when you look at how this works in terms of the you know the real world of evaluating up locations where you have three components of the viability scoring the one we're talking about is shutdown there's all sort of an extreme of them so in the run of cases the most generally applicable one is compliance costs eliminates questions evenings and under the old system if you could show some effect on on efficiency you would that would be enough to get to town and that would be enough that you would qualify and now they have created the system that is so how do you know that because i guess what confused me about this argument is that if if if it were true that any effect would be enough to get you the ten and it's only no effect because he was zero then the addition of the five can only hurt but as a mathematical problem the right play why do we think that any effect honor but the reason that we know that it will make applicants worse off is by looking at what happened to wyoming under the in the prior years the wyoming was sort of town and pri some of them can't actually comply by one thing but it's ok because they'll be able to buy rims and if that turns out not to work you will revisit this issue and now we are in a situation where that in fact has turned out not to work for refiner paragraph one two three four five paragraphs give a different number those figures should be adjusted by blank to life and that's the but the second blank wri being that you made the change in the middle of twenty thirteen and the second being that that change is simply unexplained and on the first point do we actually have why the intermediate score  petitions for hardship relief from the two thousand and thirteen renewable fuel standards so it's not a fact is that he was replying to a different standard two parties that were seeking hardship relief from the twenty thirteen renewable fuel these petitions claim c d i or their financial information so they're not publish and so on but the change my understanding is that i'm not sure if it was wired before twenty thirteen but for twenty four teams for all all par you pointed out mean that it's a it's imprecise in the sense that you have a zero and a ten in the way that that's defined in the actual the visual table makes it look as if to attend means any impact i think the both a high cost of compliance relative to the industry average but it also requires interruption loss and this is what you were pointing out in effect sufficient cause a significant impairment of the refinery operations and i think what this metric three day is getting at you is it has to consistently and when you get to the change in the metric that's simply refinement that further you know sort of further refines the way the agency is expressing that that metric now in terms of the change and we think although could have been more fulsome if you need sort of the fox television standard it's both acknowledges that the agency is making a change and it offers a reason you mr miller described it as tautological but greater accuracy that's listed there and then the compliance cost estimated and joined an extra thirty one again you still have that significant delta between the two numbers right so there's there's other places that didn't change one focus on this one sentence the significantly greater well i think as we also pointed out in our brief this is the piece independent analysis of the financial information that we're in or from his method but in fact he said the primary factor that it will look is focused on responding to one final point that you know we need to comply with this gasoline benzine reduction standard and we want to improve our refinery and so part of the response here in this paragraph to the e p a is the point evy is making is yes that might be true for twenty thirteen but in two thousand and twelve you you could have used some of that free cash to prepare for these major environmental compliance programs that you knew you had a deadline coming up to to be you know to face so i think u b s o projections for the whole of twenty thirteen they are not infected by the math error but they are infected by the failure to take account of unreal recognize meaning e p a those figures should be adjusted to the fact that e p a recognize at least that's the part i'm confused about that it was some acknowledgment by e p a or it was our understanding that they  net realized and unrealized hedge impact should be subtracted and in that agreement they came to the number that you started your little brief again is there something else i'm missing here there is so there are there are discussing income in separate argument that what really matters is that the adjusted number that is adjusted to take out the effect of trying to realize how transactions because when you're looking at the cash position you need to make that adjustment and it's our understanding that they've acknowledged that the cash position is affected by the adjusted net income not not be an adjusted one and when you when you take out the hedge transactions when you take account of the other wasn't a projection for the year or the number that everybody agreed to the page fifty three number that is that's the first six months only the first fifteen ok thank you yes i'm just want to clarify here and you satisfied with their explanation the u p a is explanation of the grammar of that one so i think your entire argument about changing in the middle of twenty thirteen was based on your understanding of that single sentence is that right yes and