please the court i'm matthew gephardt representing the petitioners this case is about he is unlawful postponement of compliance with the limit seven twenty fifteen on toxic waste water to structures from power plants reconsider those limits in the future but no statute authorizes the e p a to postpone compliance with a final f a limit soley because a p a might change those limits in the future and this court should reject to say to the regulated parties you need not comply while we are in the process of revision your honor i'm not aware of any environmental statute which has granted  a had in this rulemaking said the cost of compliance of this is close to five hundred million a year and the parties are telling us that there is no technology that can actually achieve this this diminution of these in these two wastewater streams without putting putting our plants out of business and all the collateral consequences that that makes and e p a did not have the data but formulate this conclusion in advance it couldn't do it  they could if they went through the statute but but i guess what i'm saying is since the row only came into only became a rule in two thousand and fifteen setting dates of compliance way out in the future had e p a come in in two thousand and seventeen cure is fully coincident with the change of administrations and said we will we revoke that rule you would be arguing that rational management of an agency and the parties that are under regulation if there have been presented strong reasons why a rule ought to be subject to re considering asian in the agency evaluates those and doesn't reconsider it says we need to think about two of seven streams we need to think about compliance the involvement so basically the e p a all of the suppose that all of these suppose that in the interim between the enactment of rule and the effective date some surprising new technology has come along that can magically transform these wastes into something recyclable or whatever so you're saying e p a could not tell the regulated parties you we have all this new evidence on those factors we're not going to make findings on that evidence because we're going to do so in the future that's not a revision that's e p a say in the future will revise the mix but here we're not they're not saying they're going to revise or not revise and in fact they specifically said we are maintaining the limits on waste stream switcher another panel of our court as you very well know recently up held we are maintaining the end date of twenty three two thousand and twenty three we are just changing for two years because we are going to look at this until no later than november of twenty twenty you aren't you confusing what you are predicting is the is the end result with a rational agency process but they articulate on the basis of secondly the clean water act requires d p a to review your balls every affluent every five years so the notion e p a and haws compliance simply because a few years in the future it's going to review those understand the structure of the clean water act was to impose best practicable technology then best available technology and the b eighty limits on these waste streams were  hundred eighty two correct and then in two thousand and five it wasn't until two thousand and five twenty three years later that a rulemaking was begun to today the effluent limits have been the same and therefore i wonder how your group has standing to assert injury you're to me this is getting toward the notion of taxpayer standing because where everybody is exposed nobody's exposed and yet everybody has been exposed to the same level of effluent hundred eighty two and it is hard to say that because they may continue to be exposed to these two way streams for two more years before a mandatory compliance date or a revision in accordance with the new rules that you have injury or even that you have a rational concern about injury when you've been are exposed to something or have a concern and i'm just referring to our decision in texas oil and gas which points out that effluent guidelines are taken be eighty guidelines or technology based rather than harm based has already so therefore companies are investing tens of millions of dollars per company all of which the rate payers have to pay so basically you're putting everybody in a position where e on the clean air act for that argument that the clean air act is different because the airlines houston to reason that because there was a specific provision of the state pending reconsideration a tougher case for the e p a mean the clean air act gives the state authority it's limited to a short time period and even there are courts of held you can circumvent that that when the specific provision that might limit the his authority here there is no specific provision all there is a general provision and so it doesn't make sense to imply a limit based on the absence of any specific provision i would also notice second point that that particular provision of the clean air act doesn't have any application here that section which is section seventy six zero seven the seven d is actually about a limitation on judicial review for comments that were raised during the rule making process and if you read on that provision it says that the administrator is required to provide many to and reconsideration and cases when i was in fact that the vote to raise a comma during  making and during such reconsideration e p a is permitted to them to use postpone the effectiveness of a date for a certain period of time now that provision it doesn't have any application here because it's referring to a particular kind of reconsideration and amended to a reconsideration under those specific circumstances that those circumstances don't apply here and so it doesn't make sense to say that the absence of a provision like that in the clean water declined to revise the end date and the effective date for five streams of waste correct that's correct it was only i was so thoughtful reconsideration of the of the impact of the impending rule that's right it was a narrowly tailored revision of absolute limitations to address the fact that these petitions for reconsideration had raised what e p a determined were phase in the more stringent limitations at a future window of time i mean this is an editorial comment but in so far as the b eighty standards i suppose should be quote technology forcing it seems to me that this particular a vision remains technology forcing because at some point the p a is going to have to decide are we going to go forward with this or is there another b standard that will work so everybody still has to work toward to be eighty standard right that's correct what the e p a did here was it kept the same numerical they made it even for those same for those are more stringent limitations kept the same back to date of twenty twenty three by which officer ladies would have to comply all it changed here in the postponement rule by revising the prior rule was the earliest date on which a permeating authority could impose those on a particular facility i would note that this is a kind of incremental rule making that courts have recognized that agencies are entitled to do in the face of these practicalities that judge jones described earlier this is a national association of broadcasters case cited on page twenty seven of our brief in that case the d c circuit recognizes that especially in times of changing technology when the facts when the facts are in flux agencies aren't required to deal with all of the issues at once it would be paralyzed if it had to do so instead agencies are allowed to engage in this kind of incremental rule making and so here where the agency did was it took the creepiest findings that it had made in the twenty fifteen the rule and that entire record is contained in the records here and did a cumulative add on making that build on to that it took those findings held them steady and then found that there is a new development under one of the factors the other factors of the administrators deems appropriate and said that new development is this reconsideration and a serious concerns that were raised that spurred that reconsideration and petitioners have never argued that it was improper for e p a to take bad actor into consideration they've never argued that e p a erred in giving too much weight to that factor  d they are these these this new information about the costs and the availability of technology are unfounded they didn't at least i don't understand them to be i didn't think i could remember i didn't think so right and postponement that there were serious concerns about the availability of the technologies underlying the twenty fifteen rule now it's possible you know e p a does further fact finding and finds that those serious concerns that  you know initially assessed on borne out and it's possible that n p r does this reconsideration rule making and decides to leave everything in place and that may be possible but that you know leaves the more stringent limitations still is the projected then i think sometime in twenty twenty for the next real issue e p a stated in the making record that it was intending to finalize the reconsideration by fall twenty twentieth's and my understanding is that the agency is on track required to reconsider its limitations every five years and that's what limitations every year under section thirteen fourteen and you know under your continuous process determines whether it needs that the statute does require that e p a revived review the athlon of limitations in athlone limitation guidelines periodically but it doesn't require that there's a revision every five years or every year the requirement is  you review those requirements so then they i assume the issued a notice of proposed rule making in two thousand and five and lent ten years later came up with a rule that's correct because there was a large data gathering exercise that there is on there also data collection activities that included sampling at sites side visits a lot of fact finding that needed to take place too do the twenty fifteen rule and what is that here was there a serious concerns raised about the availability and affordability of the technology daisy's we relied on based on these petitions for reconsideration including a new data contained in it and it took us a long time to do agencies to decide really when they were going to actually require this was incremental in the sense that the agency determined that those technologies were not immediately available and achievable within the meaning of the clean water  two thousand and fifteen after what limitation guidelines it revised as appropriate given that there was new information suggesting that for certain of these waste streams the technology that had been prescribe simply did not work and it's very expensive and it makes absolutely no sense for a regulator to require these utilities and by extension their rate payers to install a cost of hundreds of millions of dollars technology that may not work under petitioner's theory a p a was required by statute despite most no express authority to do so a cost of hundreds of millions of dollars and if these decisions changed in light of the new information on reconsideration tear out that technology and install a new technology that is simply not rational and i would suggest john is that it would not be appropriate for e p a to have done that this backs and of vermont yankee does not a do i think  it does your honor i mean what this is what a rational regulator should do what was done here was a two step reconsideration e p a did not simply accept industries new information and revise the the two thousand and fifteen limitations it said we're going to do this in stages we want to investigate and the southwestern electric case that was just decided by one of your sister panels said that when  ship when there's information out there available to the agency it demands inquiry and that's precisely what is doing here and that is rational in fact we would submit it would have been irrational for way to have done anything else i do want to address this argument that somehow the rule has instead it has not going to stay in effect at the technologies and the limit s permitting authorities around the country are continuing to issue permits based on the rule as it exists they are what they're doing is as a general proposition they're pushing out the complian up doing in the twenty twenty we have the issue that's absolutely correct because even even if the court were to say you have to go back to the old rule that allowed the permitting agencies to ensure compliance up to twenty twenty three so how much practical significance d really have well it may it may not have much crocked its practical significance but it injects an element of uncertainty when when a utility approaches a permitting authority now the potential window of a the statute as written can only be read one way by nineteen march thirty one thousand nine hundred eighty nine that's what limitations had to be issued and they were here the world vision provisions provide for no compliance deadline and as we've said in our brief that would be that it would be inappropriate to put that kind of restriction on e p a s ability to prescribe the technology that may not be available bunch if the if the statute allows the agency to revise guidelines as appropriate and you are saying revising guidelines has to do with the sub that in southwestern electric power company well don't you think they ought to consider the factors so irrelevant to what they're trying to decide the owner and southwestern electric power company discord just how old that even when the e p a considers them other posture because there were petitions for reconsideration here and e p a decided that those raised other factors an e p a rule or discussion of it's rule in federal could have was all ved all of the new evidence and applied that to the statutory structures d p a didn't do that it said it would do that in the future will make it and the problem with that is that e p a haase to make a decision based on the record that's actually before the agency and not based on some future record that the agency wishes it to develop ok we