comment making so the primary issue presented here is does a state revise its it when the state makes changes to its monitors as part of he's annual monitoring process but this is the one here question and that d that these changes were supervisions and therefore the rule had to require states to go through the supervision procedure and he said no and finalize rules that are less than property it does your honor because the final rules prescribes the procedures that are required by states when they revise their monitoring plans and if you accept our merits of claim which you must for purposes of jer's diction issues then those are supervisions and so are our claim is this rule in codes deficient set of procedures and that was what the comment said and he itself challenging that rule is deficient and that that's that's the core of our challenge now the reason e p a gave is is part of the record and it's subject to review by this court it's part of the whole records it's their explanation why the rule is lawful and so this court if it got part if it wasn't part of the if it wasn't subject to review then you here would have no rationale for the rules in code these are new rules and so there's a final rule that's what  i don't have it right at this moment i would hope provided on rebuttal but they've weaken this rule in some respects and secondly the point is of the final the final procedures that they included here are less than what the statute requires and that was our objection if we got to the merits we dress that it but i think that's relevant to the question of whether there's finally agency action which we're challenging that's what we're challenging we're saying these procedures are on lawful and that's that's not that doesn't make opportunity klute they say that states don't have to provide hearings and these rights you're talking about the preamble to the rule itself says that states only are required to provide thirty days public inspection and requirement for comment and then it excuse me states only have i'm sorry or previously the rule said that states only had to provide public action they changed that to inspection plus a response to comments second that rule used to say that after states submitted their plans e t a e p a itself would provide a second round of notice and comment if the states had made changes after the public had given the states some some comments  both they've weakened the rule in some respects and they changed it in others and our contention is what's left regardless what's left this new rule is less than what the statute requires so there was  what took place at the state level but it wasn't what we're arguing for here which is universal notice and comment but and they eliminated that even that limited notice and comment period the they only need so purposes of finality there was a rule change here and we're here this is a j eight three twenty eight this is fifty eight point one zero two and it says at the bottom if the state or local agency has already provided a public comment comment opportunity on its plans and has made no changes the regional administrator is not required to provide a separate opportunity for comment but above its as it says e p a rejoined measure your shall provide opportunity  if i could turn to the merits your own e p a has provided two rationales in this here one in the rule making itself one in a post hoc rationale in their brief they both feel for the very same reason applying the traditional tools of statutory construction the statute is unambiguous the previsions of osip itself must require the state to establish and operate monitoring systems but under either of their interpretations this it would not require the city to do any monitoring their original interpretation would just require a list of authorities to demonstrate that the state could do monitoring that debt that interpretation is one they don't even bother all it would require is the state to submit a paper plant to e p a but that paper plan would be outside the city and because the only thing that isn't forcible under seventy four ten or the terms of a sieve itself interpretation fails as well even if you get to step two under the part fifty eight regulations e p a commands states to operate numerous monitors costing hundreds of millions of dollars per year and the only source of authority for e p a to direct states to do monitoring is seventy four ten itself and that means the park fifty eight regulations which specify how many monitors which monitors what pollutants those commands to the state must implement seventy four ten and what th cases like michiganders e p a which we said in our brief is that a a rule implementing seventy four ten sets minimum compliance requirements for the sit for the contents of the set and hear all of their regulate taken this less formal view of how to revise the marketing that it's it's not entirely clear but i think it's fair to say first several decades  there's no statute of limitations problem they haven't raised that issue because this is a new home rule making in a new rule and so we had an opportunity and the congress directed us to bring this action within sixty days of the rule and we did  these these are problems for real people there are people out there who rely on these monitors there were other rules that were issued before that wouldn't be a cool and there may well have been your honor and we don't dispute that perhaps we could have run a challenge earlier but we are allowed to bring this challenge now and there are real people with real issues at stake people who rely on these monitors and medicine people who rely on these monitors for real time warning about when it's safe to go outside when to take medicine there are who live near one of the largest plants in the country and she wants a hearing she regularly attends hearings related to this land she wants a hearing on monitors because there aren't sufficient monitors around that area so there are real people the real issues at stake in this disapprove this it but under the statute and under this court's precedents e p a may only disapprove a set if it fails to meet the requirements of seventy four ten confirming that these are seventy four ten requirements for sips that is that the functional interpretation of this statute has been in place at e p a for decades despite what they put in of briefs this is not a changing position by e p a and i think i really want to focus the court's attention to what williams pointed to which is the relatively modest change in the public participation requirements for model planes at j f k three twenty eight was regulations adopted in two thousand and six which stated annual monitoring that work plans must be made available by states for thirty days prior to submission to e p a and then if the if the state agencies did allow for comments that would be the said we're going to do is we're going to require states to not only make the plant publicly available for thirty days but for them to accept comments as well on those plans and then to address those comments as implants obviously opposing counsel has a slightly different view to whether you think of it as a strengthening or changing of the public knows requirements for modern plans it is clearly within the it's you know in other words states have to deal with these comments in the first instance very thing makes sense because states are the primary drivers of these market plans so i'm sorry where is where is that new language mandating that the state never comment yes it is on j k seventy four at the bottom left it says the under fifty eight ten any will moderate network plan must be made available for public appropriate action it deems fit based on the public's comments on the monitoring plan you know i think this just briefly i want to touch on the distinction between sort of infrastructure seps infrastructure state implementation plan which generally are the sources of legal and regulatory authority by which states seeks implemented implement to force the clean air act and monitoring plans w have to do with the very rainy for details of where monitors set up and how many times will they be brought here to review missions and what clearly these are important decisions as to the physical submit to the regional mis raters where they want to put the monitors how they want to use them and that that information or giving that plan doesn't have to go through the formal process for state implementation plans which position on how the stream on a roof lands it is not a change here e p a s comments in the preamble i think are important to point out it was made in response to comments e p a was not intending change in how public commons would be addressed by states earth justice submitted comment saying we think you are required to treat these monetary plans to state implementation plan selves in response to those comments in the rulemaking he explained why it did not believe those changes were appropriate and largely the objections for which a response require but we believe that if you look at the record the explanation for each of those changes that are just as objected to that there is a clear explanation that addresses the substance of requirement in the oath version is contingent right yes there was a restart you know the question is is that contingency removed it's totally eliminated prior previously there was opportunity for notice and comment under some circumstances and now there is no notice and comment opportunity but how does a change that is a changed rule we have less procedures than we did before and that that counts for  finality they concede my colleague just conceded that they did change the rule and not only did they change the rule yes but he says it changed in the opposite direction from your argument but that's wrong your honor before e p a would provide the opportunity for notice and comment and in some circumstances and now it will never provide you know his income they said that in their own brief that u p a doesn't provide notice and comment and i believe they said it in the preamble to this rule  most likely forty six days i think they said provided a similar opportunity right isn't that what the passage three twenty eight points us to that's what my colleague just said well how is it wrong because e p a has an independent obligation here you're  jumping to the merits of trying to figure out whether there's any change and whether it's in the direction that you planned that is a change and it is to our detriment and i i don't think we can simply separate the merits i think this or is held comes irrelevant and that contingency is extinguished as it appears to be by the new rule respectfully we disagree your honor there was a change here from the prior rule it was a mandatory comment period that in some situations was not in some situations for those situations or extinguished legal matter i don't think that it's relevant for purposes finality here and now if you are going to do that change i would see the point that you're objecting on a much broader scale and you're objecting to the procedures here and the reason  monitoring they've never said that before non binding room making our comments were directly targeted at the procedures are common said that these procedures are insufficient because they are not grounded in the of the act they're contrary to the text and yet an e p a responded to those comments by adopting a new interpretation form the basis for this rule we are vetting both to the procedures into that interpretation and they offer no valid