jersey and delaware would be updating their implementation plans to select measures to achieve reductions and working with upwind states and a p a to address transported in addition these clean air act where actions would lead air quality in delaware and the philadelphia area and we're actually achieve the nax in a way that we can attain and maintain it instead e t a issue the extension here that extension coupled with unusually area air area air quality no longer intense than their actual air quality measurements in twenty sixteen and twenty seventeen share multiple exceeding says of the nats with the high end over this summer of eighty four parts  of i thought they had to do with the process by which the e p a went about granting the extension i thought i thought i thought that was th e threshold issue here that's correct your honor but the practical reality of the process has to look to the end result and has to look just well let's talk about the process we can deal with practical really what's your argument on the court action would you like for me your address the issue of whether donors are green first or the argument in other words congress gave the administrator the authority to gran isn't that your first argument ye action but downward could not agree these are not expressions of support so delaware said it would like to support a proposal for an extension and it so have clarification that e p a would require the other states in the philadelphia area to conform with section what is it intended to actually it said your honor that the delaware would like to support the action but the circumstances were not appropriate for an extension here but the and all saying it requested was this clarification is that right it did request a clear vacation it was intended to and i believe was taken by e p a as to apply if downwards request was denied the time of the worst comments was likely tempered by the friendship between definition of implementation plan it says quote for purposes of this chapter of the term of pick a bill of implementation plan means the portion or and or portions and kind of the implementation plan or most recent revision there  state had asked for it and all of the states didn't ask for it here all right that's part of the language of the statute says any state can ask right does it say all the any statute it allows the state has failed to adopt its in the employment harry implementation area failed to adopt all the necessary procedures to ask for an extension so that and that  request by the people who are impacted who understand what the obligations are and who are supposedly filling all of their obligations and are due to get clean air expeditiously i know that once a state they do your honor all right so at that point he has to make a determination whether this request should be granted yes and i understand your second argument but your first argument is the statutory asking it to apply to doesn't mean you're automatically get what you ask for is what the v a i thought congress was saying you know words we don't want requests from a state that's so out of sync consider whether to grant the application and you representing delaware make all these arguments as to why the application should not be granted but the constraints of the statute ruling the with attaining the nax and if one of them believes that this that the laying them charged with expeditious attainment and they are charged with that and their due time commanding everything that they can to achieve that delaying the delay that is caused by the expansion year if it's not appropriate should that state should be given the benefit of deciding not to ask for an extension it's a very limited circumstances under which duties and burdens and we're the ones who are right impacted by the result of the process the e p a should follow the process the very narrow period here were a process that the  to my reading of it it the statute says any state in this group can it can apply for work and the state in a state that's referring to the state that is apply for and that state must show that it's in complying with its and then e p a has come up with these standards it's going state so that's my guess my question is e p a reading the statute to have these two steps one is who is eligible to apply for an extension that's what the statutory language is dealing with how e p a decides whether to grant an extension is not spelled out in the statute but e p a has determined that it's not going to grant these applications on the less it can find that the other states are entities within the non attainment area are in compliance with their either n p a state approve one i think i think it depends on which part of the statute we're talking about i'm going about the subsection we've been discussing for the last couple of minutes and your brief says the only question before us is what the word any  correct all right and delaware really doesn't challenge you on that but i think that there may be a little more and i'm in the city of the language of the statute in some section five to me talks about who is eligible to apply and it limits the administrator by saying simply no more than one extension all right but it's silent as to how the administrator exercises his discretion by the administrator as i read the record here said essentially i'm not going to grant an exemption if any state in the non attainment area is not in compliance with it plan correct her and that is something that the u p a administrator could she do so and i might counsel you here before the court i don't find understand is that a proper reading and if so that could be step one if there's some ambiguity in the statutory subsection then maybe we're in step two and i'm just not clear where we are in your view and i understand and refuse question five which says they may extend for a while here they simply read here and that requirement into the statute so i think either approach would have been appropriate that was not directly address in the rule making we've heard you say that three times now are you abandoning the step one aren't you i just need to be clear on that we are we think that the question that was raised by petitioners in terms it did not contemplate when the attainment area was involved more than one state so the question is how do we read this well i think there are two options for a pure statute is unclear as to how section one eighty one eighty five would apply in a multi state not attain that area then that's that's clearly a reasonable interpretation i do believe that at the time this legislation was passed there were multi state not to take barry's existence whether or not that shows all that much light on what congress intended i unfortunately don't know well if that's true then why wouldn't h included a requirement that all states in the philadelphia needed to be in compliance with their e p a approved step steps the court raises a very good question about whether or not that requirement should be read as a requirement of the statute or whether it should simply be that he a policy position interpreted in its discretionary authority here or the position it took during the rule making was that it was part of its statutory obligation yes so it is that is how they interpreted the provision i know when i read that i wondered whether he was saying that while one state can apply and that's they must be in compliance with it's sick it was reading the statute even the broader context i mean we are not going to grant extensions way and all the other states are out of compliance with their own sieve in other words if that's part of the discretionary determination that he's making and the statute doesn't tell you anything other than who can apply and how many extensions can be granted i know i think that is certainly a position e p a could have taken and may have if it was challenge on that precise persons whether or not that was a step is to chevron step one or several steps to decision is a little bit although i think it would be a chevron step to decision it was again not sort of squarely discussed or you see as all parties involved agreed on the regular tory tax and delaware is focusing on the past so where does he to update the cross state air pollution rule delaware says all and all great in it but you have an address narconon that the effect of th propose it's going to result in burden new birds being put on us because all this pollution from these other states and haven't done what delaware think they need to do to control their therefore there is no increase regulatory burden on is any state in the philadelphia area for a delaware says there is going to be an increase regulatory in this role my e t a had only two options they could either fall all of the states and delaware make very clear they do not believe they should be bumped or they could deny the extension but that's what delaware s and then follow up with separate obligations under us to be the one for their clarification their requests for clarification they said they wanted clarification that during this one year period there would be it during this interim year they made no commitment to do anything during this interim year that would protect delaware from this additional burden it was going to suffer as a result of the extension and maybe your position is it had no obligation to do so but that was clearly what delaware was asking well i guess i would i would say it's not clear from my reading of the water that that's actually what they were asking  find for example that new jersey which only required two things really need to require three things because in this edition of the year new jersey was sending additional pollution to delaware and delaware is the good guy in this scenario with new jersey being the bad guy as far as the pollution is well that's certainly that the narrative delaware presents but i think the issue is what were the legal issues raised here and the court is there's read that one i have heard letter so here's what it says delaware quest that e p a clarified in the final rule that neither a one year extension refining of a going to do was not satisfactory that's not what it's saying it's brief but that would be your position at a p a said look we have these things on the on the drawing board we're doing other things now it's delaware's obligation to say but that doesn't either address our request or are concerned well i think with delaware has to do in the end this rule making is plenty of you know whether it's supported a bu whether it's supported extension and how it is common letter it's a sort of both positions and i think if you were to try to say as between the two what did it prefer i think it probably preferred the extension because they know the fur bump up would have placed on it now so so you just reject the notion that there's a third well i think you could read it as a again i do not think this letter is a model for clarity and if you know  is you know maybe conceivably that would make them an aggrieved party but it isn't an issue that's properly before this court the e p a had two options during the waiting i know you keep telling me that night i said what about  third option and i thought you agreed that if e p a had done an investigation of new jersey it might have found that the jerseys needed to be revised but which is not the not granted and the automatically bump up at that point the extension the time for attaining the date would have been extended by three years the states would have had to go back and look at the problem and that this extension here the year that they issued that was beyond the limits of the statute causes more problems by temper by alleviating nerve billeted their requirement to do anything the sips don't need to be updated for the if if b p a finds they attain the rack requirements will be implemented are unlikely to are not required to be implemented because there  areas would have been reclassified with new deadlines or updated sets and those would have imposed requirements including the rack requirements including the the requirements to revise the steps so it's a very active not granting the extension year that puts the obligations back on the parties where it belong