were the rule or actually treats different facilities trees facilities differently even though they emit the same toxic substance and fourth my clients have standing because this rule increases their risk of harm to their health and enjoyment of property ok so can you start with standing ye so my plan suffer nausea burning airways decrease lung capacity and other ailments and either all symptoms associated with exposure to money and hydrogen sulfide which can come from these industrialized office at least when he was a bad my plans run indoors they can no longer hold parties outside on their property for example jason chan says his daughter doesn't want to live on their property anymore because the fumes and orders are so bad but without reporting so your argument is that there are study cited in the declaration of a worse there's a clear connection between reporting emissions and reduced emissions so facilities that have to report have incentives to reduce their emissions so that this reporting apartment mike appliance face an increased risk of these increased emissions certain sources emissions of this level just don't present a danger they just don't and the same level of emissions from a different source does present a danger now and i can't hypothesize why that would be the case but let's just suppose that's the case that the nature of the source of the emission affects the degree of danger that it could be that you would have a demand of a succession even though the degree of emissions was the same because  health risk is the same but for some sources it's just incredibly costly to respond for other sources it's not that costly and so we're going to train our resources on the ones for which we can give a more efficient response and it's de minimis in that sense that it's just not worth it to respond to the same level for some sources because the costs of prohibitive whereas we can more efficiently expend our resources and achieve the same environmental and marginal advantages by rooting out the emissions elsewhere and i also know that the record does include numerous actions that these facilities can take to reduce their emissions they can change livestock diet they didn't change their manure handling and storage practices so it's probably would be productive to get the reports in other that it is unlikely there will ever be an emergency response to notifications about hazardous substances released into the air from animal waste and farms of all sizes given that u p a has long recognized that the purpose of section three or four notifications is to enable emergency responses it was arbitrary and capricious for e p a to require notifications from larger farms merely because some people want that information by doing so e p a relied on a factor that congress  not intend for it to consider the record in this case is clear no one has indicated they would likely take an emergency response to the type of notifications at issue here at the federal level e p a said that it cannot remember an instance where it undertook an emergency response action and that it cannot foresee ever doing so in the future numerous state and local emergency response agencies like i said that they have not and would not initiate an emergency response action they explain that they information but they never once indicated that there would likely undertake an emergency response in terms of the substance of the comments they provided one example as to why the reporting exemption might harm the integrity of the response programs and that was the example of the nine one one call that comes in the middle of the night that prompts the emergency responder to drive around blindly but number one that example just proves the point that had they received an immediate notification they imply that they would not drive around and undertake response on top of that the example because they indicate the reporting is important because if they had an immediate notification then they would know that there was no purpose in getting in their car and driving around and trying to figure out the source the implication is that they would know with the sources that no i think they specifically say e p a says there would not be an emergency response in a common letter goes on to say that's only in the case that we knew it was coming from a farm on top of that it is a purely hypothetical example the association that theoretically represents every state and local emergency response agency nationwide doesn't give any concrete evidence that this is an area was actually occur on top of that on a false premise they be imply that if they had an immediate notification of a farm they would know what to do but the evidence in this case including even water keepers admission and the reply brief shows that the agencies will not be receiving  immediate notifications because these farms would qualify for reduced reporting obligations under the continuous release reporting provisions so under any scenario they're not going to have immediate notices and then finally the that the example just doesn't make sense there's no way to be certain a nine one one caller is complaining about is necessarily the same release incident that you might receive from contemporaneous notification it's not as if only one possible release can occur at any point in time returning to what the state and agencies emphasized about the uselessness of these reports they indicated that emissions estimates are not accurate because there's no current methodology that can reliably estimate these and missions on top of that they generally know where their farms are and that often farms can smell but more importantly they expressed concern that receiving notifications about air releases from animal waste at farms could actually hurt their reporting programs by diverting resources away from potentially serious emergencies that's a concern that this court found compelling in the fertilizer institute the e p a decision which is why i have left a comparable reporting exemption in place during a remission for the e p a to address a procedural issue why isn't it a serious if you have the same level of emissions for the same substance i get that one of those coming from a farm in my office is one of them coming from a plant but just why isn't why is it not as serious the one with what syria says whether it warrants an emergency response the finding with respect to larger farms is regardless of what the level of emissions may be if there is no reasonable approach for an emergency response council for waterkeeper indicated that there are things that farmers can do to reduce emissions but reducing emissions is not the purpose of these emergency notification provisions where these emergency notification present provisions are designed to do is to give immediate notice to the emergency responder so they can make a timely decision on whether to respond if in the long run there are certain measures that may be taken to reduce emissions that doesn't answer the question of whether they can immediately undertake a response action and whether there is anything they can feasibly done to be done at the time of their release e p a is finding that it is unlikely there will ever be an emergency response to the type of notifications that issue in this case is controlling because it amounts to a finding that such notifications do not serve the purpose of after section three of four notifications e p a has long recognize that the purpose is to facilitate emergency responses in the one nine hundred ninety eight room making on exemptions or radionuclide releases e p a directly refuted the notion that after section three zero four was intended to inform the public explained that the purpose of reporting under at grand circle and circle is to enable emergency responses it did not mince words when it said quote those reporting programs are not intended to serve as a source of information for the public at joint appendix one twenty five even in this room making in response to comments at joint appendix six twenty four e p a said quote f chris section three of four notifications were not intended to be used to track emission quote and in response to a comment that congress intended for the public to know about these sorts of releases e p a stated a joint appendix six nineteen that the intent of section three of four notifications is to enable emergency responses it said nothing in response to that comment about providing information to the public much less that the statute clearly reflected any sort of purpose about informing the public with respect to the issues raised in water keepers petition about e p a s authority to establish reporting exemptions to judge williams point about the minimum structure and we agree that that is functionally the equivalent of what you created in this case this court has long held that the literal meaning of a statute need not be followed following her size terms would lead to observe results or if the failure to allow it to minimize exemption would be contrary to the primary legislative goal whether something is a de minimus deviation from the statute has to be judged in terms  of what the purpose of the underlying statutory requirement is waterkeeper is incorrect that this is not qualify for does not qualify for a de minimus exemption merely because of the extent to which some of these releases might exceed the reportable quantity that set forth in a regulation the proper way to apply this doctrine is to ask whether excusing one narrow type of release i e air releases from one specific type of source i e animal manure or farms still have to report their releases from other sources such as if an ammonia tank explodes farm still have to report releases about animal waste into the ground water for example or surface water and other facilities that of circle and even concede on page three of the reply brief that search does not require that release reports be conveyed directly to the public that concession can't be squared with all their entertainment which requires claimants to espouse a reading the statute that provides them a direct entitle me to the information they seek waterkeeper can't do so here because section of the nation that's correct  well i think what that that case essentially held and when it read they can says well is that they need to produce some interpretation of the statute which provides them with a direct legal entitlement and there is no legal entitlement under section one of three the pla he's causing a home that's and i think that's actually more appropriate under thirty two requirements that need to be shown in the first threshold question is whether there is a legal requirement to receive the standing case law it there's there may be no question as to whether there's any useful utility to having this information but they still haven't established but they're required to receive the information and i think they have presented a case for interpretation of the statute here that would require the national response center or the v a to convey those reports to the public and i believe it i take it you don't dispute that they would get the reports well i think they would have to either information i don't think is enough here i think they need to be able to identify a statutory interpretation that actually requires either the not civil response center to post the information or that requires the p a to post the information and they can see that there is no circlip to post the information i think it's maybe good policy that the national response center does but it's certainly not a legal requirement even if that were true even if the fact that as a matter of fact they could get it on the web wouldn't be enough  report be made public under circle and then if the responses ok will circle my not but winning under circolo would get some at least some reports of public under africa if it's automatically falls as a matter of course why does it matter that formally it comes from another statute eyes i think but that's speculative and doesn't i think the ultimate justification that they would waterkeeper puts out in their brief is that state agencies might or could take some action but the record actually only on behalf of the united states environmental protection agency if the court reaches the merits in this case the reporting exemption rule should be upheld for three reasons first chevron deference is appropriate here exercise its authority through implementing limited administrative reporting exemptions second e p a s interpretation is consistent with the statutes primary purpose legislative history and the agency's own regulations like under the regulatory materials the agency doesn't dispute that the same level of emissions begets the same level of harm in other words the agency is not saying that releases of ammonia from f farms present lesser harm and releases of the same quantity of ammonia from somewhere else of which there would be a response i don't think you can makes a formal finding on the facts here because the rule is not based on a finding about s the same level of risk and if we do that then what's what's the reason that there's not a response that has to do with the functional human nature of these sorts of missions we're talking about saline newer and other types of animal waste that are sitting in any number of different types of configurations they could be and we use water lagoons they could be sitting on the floor of a bar and they could be spread on a field you know there are a number of different ways in which the waste is present at these facilities and so e p a has to you know if they were to respond they would have to come in and essentially you know that the waste is still going to be decomposing so the idea that there are so many factors that go into how these emissions are generated geographic the breed of animal the type of feed it would be virtually impossible and feasible for e p a to come in and make some sort of determination that any particular action could actually eliminate asked if there were actions the farms could take to limit the amount of ammonia released by animal waste is there any reason the agency would just tell farms you know you ought to undertake these measures because this creates a risk by hypothesis increased same risk of the same release from some other source and there's things that you can institute to minimize that risk here's what you should do under the you know the response the idea of a response action is there is an emergency present a threat to human health o the environment and u p a were the local agency has some ability to come in and tell the farm to do something to reduce that risk or to eliminate the risk aside from basically shutting down farms is really no way to  where it's not inconceivable that there is a scenario where a response could be appropriate e p a just hasn't encountered one and there are you know thirty years or so of experience with dealing with hazardous waste management and  there's actually been an ongoing study to look at and try to capture how emissions are generated and how there may be an ability to calculate because the fundamental challenge is your deal again with regional differences geographic climate and weather types of animals it's really hard given the diversity and the idea factors for any farm let alone for e p a to try to come up with a reliable method of estimating and calculating the emissions and so there have been studies that u p a has been undergoing in our records there's a reference to the national academies of science report that u p a commissioned along with u s d a and part of the goal of that was to try to figure out if there were appropriate ways in which to estimate the amount of emissions are coming out of farms and the study concluded and this is back in two thousand and three that there really was no reliable method of trying to capture the amount of emissions and therefore having an ability to respond again and unless you know how much emissions there are it's challenging and that's why you e p a cites the infeasibility of the feasibility of being able to respond because you don't know how much and you know what could potentially be done to correct that so there's no doubt you don't deny the proposition that if it's beneficial it can be beneficial to the community to know where there's room there when there's a the requisite level of emissions from farm now and that's why  the their rule has that carve out under the after provisions that requires the largest farms the case is concentrated the animal feeding operations to report to the local agencies e p a still concluded that local response agencies are not going to respond are very unlikely to respond but it may be that carve out specifically to you know give credit to the comments from members of the public that said they were concerned about the case in their community and so that's why you in fact you know under and appropriately under after are considered the communities desire to have access to that information when they decided that the cases are going to continue to report and why is that desire not present with respect to ninety flows that released the same level of ammonia well to some extent it was really a reaction to the record the proposed rule would have exempted all farms from the upper reporting requirements and e p a received public comments that indicated that people were concerned about these large industrialized farms and those are the farms that are most likely to have the releases that would even exceed the reportable quantity to begin with farms for example that have free range animals and where the animals are not confined those types of farms aren't even covered by the rules so most when you think about the farms and out just a few cows wondering around those most farms are not likely to reach the level of even having the report requirement in the first place behind yes there is they the rules specifies the number of animals that are required to in order to reach that threshold it's not there you know part of the record interest talks about the nature of how particularly you know industrialized farming has become you know most farms are likely to be industrial commercial nature could very well fall into those categories so the communities are still going to be receiving that information even the local response agencies that you know water keeper alliance site have to be provided so the public has said we think it was reasonable when it considered those comments that really were focused on the largest focus as opposed to the traditional smaller firms and i got it you know response to concerns that have come up about the health risks everything you did not promise it's making on risk that about nature but i would point out that this rule is very narrowly targeted and that's the reason eness of having an administrative reporting exemption as opposed to just setting a reportable quantity at a very high level for all releases from different facilities and from different sources is definitely to allow this to be a very narrow circumstance where e p a knows a response not likely e p a could have sat an extremely high reportable quantity for ammonia and hydrogen sulfide but the result of that would have banned that they wouldn't have gotten the information they needed from other sources here instead they chose to call it an administrative reportings action but really it's narrowly crafted for a very specific set of circumstances and that's what makes this rule so reasonable it does not apply to facilities other than farms it does not apply to sources other than the natural production of these chemicals through the composition of ways so if somebody does have a staff or another facility out there farm that is releasing this and that would still be you to briefly address standing is course president but it's not speculative to assume that companies will act in their economic self interest when given the opportunity to do so and companies that have to report it is their economic in their economic self interest to not be seen as bad actors in the eyes of government regulators in the eyes of their investors or in the eyes of the public and in addition playing to standing based on their health in terms of the property is not solely based on the actions of others at all it is also based in part of the actions that my clients that necessarily only those spikes that the other parties have mentioned and i know that corporate users seem to be claiming that these emissions are de minimus because instead of a thousand pounds of emissions one day a year  and not just emergency response thank you very briefly your honor the only points that i want to address are your concerns about what could be done to address the emissions from these farms two points first not every single release that exceeds a reportable quantity requires immediate response the purpose of these provisions again is to give information to the emergency responders so they can figure out whether to take a response but that doesn't mean that every single release above a certain quantity for certain pollutant constitute constitutes an emergency but more importantly the reporting exemptions as u p a made clear don't affect its authority under other provisions of these two statutes nor do they affect e p a s authority under various other statutes to address potential emission control  measures all this does is excuse an emergency notification reports because something will not be done immediately as an emergency response but there are ways to address emissions from farms as e p a has done and has waterkeeper points out in her comments