we have two cases for argument this morning they both have the same caption they have different numbers i would propose although the court is open to other suggestions that we treat them as two separate cases for purposes of argument that we first do the specific issue which i believe is owed to dash seven one six five seven is that correct and and then that we proceed to the fifth issue and you don't need to use all your time we're quite familiar with the background but of course we have to separate procedural and sums up the knowing substantive claims in each case some of which overlap by way of background so we're familiar with that so with that i propose we proceed with argument you know to that seven one six five seven he approved will remain in effect no matter what this court does and that seems he wants to make that clear that what this court does will not degrade air quality in billings montana where it is far superior to what federal law require that montana to set revisions in one nine hundred ninety four e p a wrote a letter to montana saying the sanctions clock is ticking threatening withdrawal of highway funds and an imposition of emission role as overseer and montana's role as primary regulator all under the rubric of a provability those are in the montana comments to the proposed action we get to two thousand and two when the under the act in other words nothing the e p a had done prior to that date required montana validly to do anything however having threatened montana sanctioned having written a letter saying you are required including to provide monitors excuse me upon modeling was contradicted by monitors it said but those monitors are not in the predicted hot spots if you will the areas of maximum concentration well in one thousand nine hundred three monitors were installed there johnson lane and sacrifice clips by two thousand and two when e p a got around to actually doing a call which requires a finding of substantial inadequacy by the tiny they got around to doing that you know too there was a almost a decade data showing that indeed at those by the time you find there not only them but various actions have been taken and they're right that is correct so could you be precise about what it is reveals a problem what do you do you use a more refined model the more refined model here existed commenter said a lot of use that u p a said no we are not going to use that that more refined model and the reason was prediction tool subject to garbage in garbage out just like every other computer program and if you treat it inaccurate assumptions you get inaccurate results and therefore its own regulations that use the more accurate model and it requires scientifically rigorous electric florida power and light and so on there's many more cases they're cited in the briefs so e p a doesn't get to just come along and say we're going to call for a supervision because we think it might be improved somewhat or we think it's marginally the air quality data are below or not far above next it is adequate so e p a doesn't have a commission to go around saying we can improve it here and here and here absent a finding of substantial inadequacy interestingly in two thousand and two e p a made no attempt to find substantial inadequacy it didn't what it said was that our method our means of measurement have improved but presumably all it really is relying on  it disapproved it it basically and a lot of these are fairly specific that they said that the state model routine flare mentions assuming they would be limited to and then they give one hundred fifty pounds in the three hour period  but did not include corresponding emission limitations in the precisely what is that about that finding that's arbitrary because there was no finding that it was necessary to attain variable just like it was variable at the others sources to apply to their stack height whatever that was determined to be so that was per se arbitrary and capricious to treat similarly situated sources very differently on stack height this i'm going to try to save some time for rebuttal but i'm not sure i will have be able to do that that tight is this analysis you have to determine good engineering practice stack height and you can do that through a formula or fluid modeling but you do that to determine stack height to use to determine emissions limits it's that's the process e p a wants to mix that up and say once you engage in a certain fluid modeling demonstration to problem does ok so without then getting into which of the means you might determine it  regulation is not ambiguous the regulation very clearly defines a nearby structure as those within five l o l being the lesser higher with with here of the support structure is and forty feet it's within forty feet under the definition is clearly a nearby structure just as an exxon mobile that nearby structure help support the stack here this structure help support the stack in fulfils other functions it holds me to a logical quit ment player monitoring equipment and so on standard to mean next only it doesn't tell us where the step where the regulation says that in fact that regulation is quite clear that an ambient standard is is an indian standard there's no confusion about that national standard is defined two pages blue buildings i mean the definition is very clear if you're within five l it's a nearby building now the regulation does is something knowledge that if e p a is not satisfied that the structure actually is accurately represented by the formula it can call for a fluid modeling demonstration e p a did that it acknowledged in an earlier letter that this is a nearby structure but we have doubts we want to slow it modeling montana did that a great and you will find no reference whatsoever to that argument i would suggest to the court that it's entirely improper for that argument to be based on for the first time one reply the second argument this race for the first time on  i believe it's entirely appropriate to raise that for the first time in reply they were aware of the argument and it's something that they commented on to the agency but chose not to put in an opening i think then that i what i'd like to turn to i suppose you might call a i guess i would say it's a jurisdictional i'm not really in it and it's about the said call our view is that the so call as meaningful for this case was issued in one thousand nine hundred three there is there something in the record that indicates that it was formalized in two thousand and two and that's correct and had a p a intended to impose sanctions back standards with the monitors but we don't have enough monitors they're not located in places a maximum concentration and when we run the models and i say we i'm talking about not e t a i'm talking about the state and and the  thousand and two e p a said we are just approving selected parts of your set and that's all they filed suit in two thousand and two ok so so at that point in two thousand and two is it irrelevant to look at the data that was collected from these there is a problem and the state very clearly require it honorably said we recognize there's a problem we need to fix our so and then the modeling that was done to created the emission limitations was based upon all of the data that was available years of weather data monitored information modern information got the modelers put in all kinds of it later not ignoring the monitor it's just that what they're not doing is they're not saying if the monitors don't show a violation then you're scot free that was that's th cincinnati cases the call is a predicate it's the first step it's a recognition that there's a problem the state agreed it was a problem the state then set out the state said in essence we recognize we have a problem other new  for new industry montana clearly i think has the authority to build that into regulation does e t a can e p a say will you meet next but somebody else might come along and therefore we're going to have the authority to do any other applicable applicable requirements of the act so that's one element of it but there are all all kinds of other elements like monitoring you know a plan that looks like it's going to meet an x because you have the right emission limits if you don't have the appropriate in on force met and monitoring  they're complaining about here are the results how do you rebut the argument may know i don't i'm not suggesting it's correct but it was made that your own regulations require you to look at a monitoring model in addition to the one that you actually used is that just  was some kind of problem and therefore there shouldn't have been you know that there is no evidence on the players that there was a problem with your response to that well i think montana sulfur really wants to have it both ways when when e probably look at that and said wait a minute you recognize it flairs put out pollution oh yeah they do and it's not there's not the minister on the clean air act it's not like when you can you know as long as it's not over x tons a year you go ahead just do it you have to account assure that the next hurricane they make it sound as if well you know with everything has to be necessary you go through a checklist and you go is that really absolutely necessary can you prove it's absolutely necessary and wait a minute with the ninth circuit and other courts say is we need to assure congress we wanted the agency to assure that means guarantee that means if you say you're going to be there you're they're not there is that is a pretty good chance you know five and they say we're pressure is within five now and it is nearby end of story and that you can't in effect insert a little care and say nearby comma attached structure  that is a legal interpretation question i think it i think it is a legal interpretation and i mean it's certainly down in the weeds it would be in my career would be hard to find a situation where more ink and more paper  was utilized in the pursuit of an issue that really is all very marginal consequence here and let me let me tell you why that is not all trying to answer the question as i understand it ultimately e p a disapprove what the what's the basis for that given that in previous sections they're included in some they're not so how do we know when they're included when they're not well i think i think if you look at the preamble you know after the organ is over can look at you look at the preamble  point when the very thing he explains that when we say ambient air quality standard we're if you're referring to a national standard not some other standard and our all we submit to the court is that there is that the language is not crystal clear that expired unless there's other questions i guess i just have one what was your point that if something is nearby it's necessarily separate and therefore not attached i mean one wouldn't use the word nearby ordinarily to refer to the same building that we think that's common sense enough to get to go real far and the state agreement that by the way you want to wait until the regulations to get to that conclusion i think we have your argument in mind thank you ok thank you very much very quickly on issues very often the stack sticks out of the top of the factory that structure is attached to it supports the stack it is a nearby structure and he's used in the calculation there's nothing in the regulation cannot what about what about his argument that you've raised a couple of very significant points for the first time in a reply thank you we argued in the opening the you can't rely on those modeling to call the see if he came back and said oh yes we can hear all the guidelines we responded by pointing up you can't rely on that modeling if you're going to realign modeling at least have to follow your own guidelines that was a response and then even it doesn't really matter because by two thousand and two e p a admitted that we hadn't done in any way back in one nine three that brings me to my next point much of the argument you just heard focuses upon or hinges upon the call having occurred in ninety three e p a said it didn't i'm looking at excerpt a record twelve e p a publication those were p stack regulations were correctly and consistently applied according to their plain language all right thank you that concludes the argument for