nd the claims of june th two thousand and fifteen exceptional event should be evaluated under the two thousand and seven version of the exceptional events rule which the state failed to meet as a matter of law rd even assuming the and sixteen version of the exceptional events rule applies the e p a acted arbitrarily and capriciously by relying on carbon and nitrogen dioxide data from non exciting monitors that are neither turning to my st point forty two u s c seven thousand five hundred and two c nine requires that nonis payments that data implementation plans shall provide for the implementation of specific measures to be undertaken in the area failed to make make reasonable reasonable further progress or to attain a national primary ambient air quality standard by the up like a platoon and state under this part such measures known as contingency measures must be designed to take effect without further action by the state or by the e p a administrator here e p a exempted the state from having to include contingency measures in its two thousand and eight c nine contingency measures refers to control measures that will be implemented in the future not measures that have already been implemented or are scheduled for implementation of the two thousand and eight ozone supervision for phoenix relied on so called surplus emission reductions from control measures already in place for its contingency measures and those measures were therefore  more we didn't waive the point because under this court's jurisdiction on administrative exhaustion if a court or if an agency rule but doesn't that beg the question that there is something else but because doesn't that put the question that there is another rule that could alternatively have been used and so i think i think that that put the agency on notice that there was another rule that could peds potentially apply and the agency chose to apply the of the two thousand and seven rule into two respects number one the two thousand and seven rule requires that the comparison to requires that the exceeded stays be no higher then historical fluctuations so far in her comment she had a charge of historical fluctuations and that's on page thirty nine dollars of the ex e that that element of the two thousand and seven rule by making that comparison and showing that the seat and stays were not out of line with historical fluctuations the nd way needs to it's pretty clear under national parks the conservation association versus serial bureau of land management six o six f rd one thousand and fifty eight that petitioners need not date their claims in precise legal terms and need only raise an issue with sufficient clarity to allow the decision maker to understand it all on the issue raised the other manner in which she invoked the two thousand and seven rule was  critiquing the regression analysis that the arizona department of environmental quality i'm sorry that chart was in the opening brief let me find the let me find excerpts of record page demonstration of how the causal relationship between the event and the expedient i think at that time i mean there there's an assumption that the rule in effect at that time standards the agency would've protested vigorously and rightly so because i mean there's the next they are putting a lot of effort in time into this analysis it's a bright line clear rule that the rule in did so turning back to contingency measures and then i'll talk about the twenty six thousand role e p a claims it can exempt control measures because the phoenix ozone non attachment reached can be suspended for areas demonstrating a team in the ozone act for three years but only for as long as the area being used to meet the standard e p a recently planning requirements no longer have meaning for s would have to submit a supervision to robot to address them the memo explained that in attainment or terminations amounts to quote no more than a suspension of the requirement for so long as the area continues to a design value for the phoenix area as being seventy seven dollars hearts per one billion and the design value is the statistic that e p a uses compare to the next to see whether an area is meeting it and that that design value is based on three years of quality control data it's not like something that bounces up and down bounce up and down they you know they once they have three years of quality control data they arrive at the design value the current design value but the past three years of all the complete quality control data is seventy seven parts per one billion and two dollars parts per one billion over the standard the purpose requiring the highest level of evidence or documents documentation showing that you notions travel to the monitors affected those monitors and since after considering the weight also submit evidence event was associated with a measure concentration in excess of normal historical fluctuations blah blah blah then it used applied the twenty six dollars team rule i think is the side of the issue there was on notice of the issue  d that claim was not waived as far as using making the same argument about their causal relationship in the comments in the brief that's clear causal relationship is an element of both the two thousand and seven rule and the two thousand and sixteen year old so that says nothing about waiver as far as waiver of contingency measures to share bar said in her letter that for the reasons discussed whether there are three years of data and whether there they are clean and in fact wildfire guidance on the record page two of a e p a acknowledges that they are functionally the same when it attainment determination includes clean data determination there is not a reasonable interpretation of the act to say that once you hit that attainment date then the contingency measures are never triggered that the d c circuit says that considered as a whole the actors like congress of the intent that air quality should be improved until say and never allowed to retreat there after reasonably interpreted the act that way e p a could easily say one you know once we've determined the design value of an area just like with our clean got a determination once you've determined that an area is no longer