states environmental protection agency and it's neither here nor there but when you have to have an entire page glossary for your acronyms i think you have too many acronyms that's just my opinion not speaking for anyone else a different permit it's a permit that says it establishes limits and say with projects at the plant that relates to two thousand and five per as an interruption but another slots of issues and limited time so that's the two thousand and five permit texas power permitting process it was the same year i'm unclear whether or not it was before or after but as a matter of law it i don't think it really matters it doesn't really matter because technical requirements are really important and i'm not questioning that what practical difference does this make if we were to rule in your favor what practical difference is it going to make in terms of exxon polluting the air  so petitioners provided evidence that a b is not contested that the particulate matter limiting one of the limits on a permit is nearly one hundred times tire the federal law allows and that means that exxon is allowed to increase emissions to result in higher limits for the baytown facility our position is that title five process should identify the federal requirements that actually apply to the source if you get what you want you're saying exxon needs the expansion has to be subject to more stringent limit where maybe iran is so we are though if it's maybe i thought it was under undisputed that title five does not permitting process as opposed to a title one process yes or so our argument in this case with respect to the expansion permit is that exxon never applied the federal test to decide whether or not it's a major or minor modification so argument is that i was meant to simply put everything in one document but what the everything is comes from elsewhere that is a big part of your arm but when congress established title five one of the problems is that there was widespread noncompliance with cleaner acquirements and confusion in the courts about which requirements actually applied sources so part of the purpose of title five is to clarify unresolved disputes about what the federal requirements actually are so i say you have one document that the clean air act bible if you will but that everyone looks to understand what the obligations are under federal law so if you have a perm like in this case paul six where he da says maybe it's a state law permit maybe it's a federal permit if you want to resolve this question you have to wait for exxon to rely on it and then sue them in federal court for violating the clean air act for the purpose  hill this additional permit they were not emitting anything that caused the palace six to come into play at which they were complying with federal requirements is basically if it comes into play when exxon wants abilities source or if exxon has built a new source without going through federal new source review if they emit more than they thought they would and exceed the limits in this been approved by the e p a for you to make that argument right would you say that if there's a state process there's a state permitting process for you to make that contested to to make the contested case that in fact the expansion permit is not compliant with no you know i would disagree with that what about what about the state what about the contested hearing process that you did go through right so that you lost and then you didn't seek state you don't that's correct so texas has a and that's why title five is so critical that's a point at which e p a can look at the permit decisions and say does this reflect requirements that we have approved texas implemented as part of the clean air act or are these just additional stringent in specific standards so what world's greatest say you know what pollute at will have a nice day they have to the minimum is the federal the state could make it more could say we really state can't say well you know what we just don't really like these federal standards will make them looser they may not manage to meet the federal standards i understand this is complicated stuff but they can't be saying i mean they have to think they're at least meeting standards right or am i this is the federal standards do not give states discretion to make a lighter looser standard so what they do it allows for states to develop programs that have been approved and then seek approval for those programs like the power program that's correct you know what wasn't the pell program to prove by the feds in two thousand and twelve or two thousand and thirteen it was i believe in two thousand and fourteen but and that's why i asked my st question t there because we're not talking about the text of the regulations yet but let's try to do that the be a put what's what's at issue here is whether a political requirements have been included in title five in the title five permit record when there hasn't been and so that's says any turmeric it on plus more requirement is any term or condition of any pre construction permits issued pursuant to regulations approved or promulgated through rulemaking huge title one director out so my question authorize construction of an any new facility let me ask you this just to bring it back from the text of the regulations we also have an interpretation by the e p a is that in two thousand and seventeen this is the what is it called one hundred  one hundred where they you know it's very long i read it where they explain hey we're changing course yes you're right we think that e p a has drifted away from the original understanding title five and that happened in the ninet and now we're changing course to go back to the original why why isn't why aren't we just simply saying whether that's arbitrary and capricious by the e p a in other words where they are betraying capricious and saying look we want honest off track a decade now we're going back to the original we've got scads of reasons provided in the in the in the rule for why we're doing that so we do make that argument that the hotter policies the fact arbitrary phrases and we do point out if we were to conclude that both the hunter and the pre hunter version of the world were reasonable interpretations of the rule would we not be bound to give deference even if it to the current version these are the experts my colleagues might be experts and viral law i'm not going to pretend to be and these are the experts and they say here's our view and both views are reasonable hunter and we shouldn't we defer to that no your honor because as we explained in our brief the hunter argument doesn't actually apply to the fast this case so e p a says the hunter argument is we need to we are required to put excellence construction permit terms into the title five permit because it put the requirements as we define them include the terms of construct permits but the premise of our whole petition is it col six and the expansion permit were not is she pursuant to federal requirements therefore under e p a s definition they are not a political requirements and e p a is argument that they should be included does not apply it right or wrong it doesn't apply to the facts of this case and that's separate from what i asked you know you can make the argument that one hundred doesn't apply that's fine i'm saying if the hunter construction and the pre one hundred construction are both reasonable which one should we go with putting aside the questions just in theory let's assume argue window that hunter would apply argue and why shouldn't we then defer to the hunter version if they're both reasonable well it's a it's  an unreasonable burden on us your honor after twenty years of consistent implementation of the pre hunter reading well past the time we filed our petition to say we should've known that they would change positions and retroactively strip us of the right that we understood we could bring at the time but then how do you ever fix you know so we have on bond hearings where we overrule prior cases does that make us arbitrary capricious survivors rely on those cases and then we say now we've got it wrong for a while we've got to fix it you're basically saying you have to stay off course the rest of the history of mankind because you can't fix present so it's a change it's a harder policy is finally fundamentally a new articulation that doesn't actually address that novelty i mean it says yes we understand that we haven't done this recently but in the beginning you had noticed this is our position this is what title five said but that's not true your honor i don't five from the very beginning has promised to shares that they would be able to raise concerns about whether or not as i understand the hunter opinion or whatever it's called that's what i understand to say his view is no that wasn't the original understanding and therefore this one hundred policies we should what's you pre construction permits and they wouldn't have to go through a longer view period in a position process that's a different procedure on reflection in the final rule no we're not going to allow states to just amend their title five permits with these new pre construction permits without any review there should be review but it also said we will not be nd guessing state pre construction permit determinations during that rubio so the purpose of the review of these operating permits is to make sure that there are adequate monitoring and record keeping those sorts of operating requirements that will ensure that the source is actually meeting the limits in its pre construction permit and so that's why this review process is necessary but if you go to the final giving a citation care you go to the available control technology demonstration which would be part of the pre construction permit terms but in general just not revealing pre construction permits during its operating permit review process but what about the practical i mean maybe practicality doesn't have much of a role here but if if they're being allowed to make commissions that are a one hundred times a federal regulation shouldn't there be some methodology by which there could be a stop to that or at least at that could be looked doing the emissions not just that they could yes you're in the enforcement action that's what they would have to show in addition we have an argument here that petitioners haven't demonstrated that the pre construction permits in the title five permanent wrong even assuming you could substantively review them because petitioners have never demonstrated that this modification is a major modification as opposing counsel said all they said was able to explain better the proceedings in texas and why texas determined that the ethylene but i don't think we're reviewing why they determined it because i want to be appropriate we're not the pro court of review for that i'm wondering why that isn't some so i feel like i'm just on another planet with you and so i maybe i'm not asking the question well maybe it's a stupid question but i still need an answer yes what is the effect of the state proceeding that has occurred on this proceeding visa v the arguments they can make if it hasn't the arguments that they could have made in the state proceeding the substantive arguments they cannot make in this it's true or not but if it's if it is true it would i want to know do they do they have the opportunity to contest that somewhere we have here in front of seventeen the e p a observes that exxon mobil is submitted a request to renew pal that this renewal permit will be issued according to and most of us are comply with the regs governing power permits explain that to me and explain whether this and maybe i'm off on this but is this a process through which powell six if it is again the practicalities don't matter but i'm trying to understand them anyway let's say we affirm and exxon mobil just starts filling the air with all kinds of what happens can and cannot do if you're saying total fifty dollars that they start spewing stuff into the air that is consistent with their top permit but inconsistent with what somebody else views as the actual federal regulations the and they're in trouble so then what's the purpose of this thought of docking to the puts everything in one place so general counsel for exxon can say you're good you're going you're compliant with this document you can start spewing this stuff in the air just don't spew more than one hundred times  situation here how six is in there then does that not help exxon mobil in any future enforcement two federal requirements that are not in the title five permit  please the court there are three reasons this court should deny the petition for review st texas administers separately its title one pre construction and title five post construction permit programs the title one process affords robust public participation was had by petitioners here who raised the same claims during that title one process that they are now we are going in this court under title five those claims were rejected in the title one proceedings and they chose not to appeal nd title five is not a mechanism by which to re examine titled one permits nonetheless they waited until now to collaterally attack those permits that were previously settled rd if the court adopts petitioners view the finality of hundreds if not thousands of title one settled permits will be called into doubt and there for now the will be questioned texas to permit system will be disrupted this can't be what congress intended when it enact a title five by c p s decision to deny the petition to object was not arbitrary and capricious the clean air act authorizes the states to maintain separate programs for title one and title five permanent allowing efficient and clear processing permits and the two permit system title one as i mentioned provides notice comment and sometimes the opportunity to fully litigate a title one pre construction permit that's before the agency title one is a separate permitting regime completely from that was established by congress and i think judge change you had on this before t c accused job under title five is to incorporate the terms and conditions compliant with the what's in title five i suppose that it could but as miss bot mentioned if there are major reconstruction requirements that have not been applied to exxon mobil only the minor that's where the question comes on the promise of  honor what about this cow six renewal issue the past six renewal issue the past six is really not what we should be focusing on today because title five is a completely separate process paul six was a creature of the  program and as the so according to the state office of administrative hearings administrative law judges found that was one acronym a new good as they found the requirements in place the time the e p a had already put into action were sufficient to allow states to go in and have these programs set up so long as they were in compliance with what you already have on the books and pal six was that and so i made that decision i disagree with the notion that is allowing one hundred times the emissions that federal law allows i'll disagree with on the promise i'm certainly no scientist and i can't account for all of that but yes i do disagree with that and i see my time is up so for these reasons and those our brief when they disagree with the premise that texas could have approved a more lax standard as opposed to more stringent standards the federal i mean i know texas a very independent place but they do follow they do believe  substantive claims are really meritless and there is an extensive record on that point this is a good permit imposing extensive controls on the facility and it has been a well control facility that's why it the you don't want you to spew right and then they aren't they are complying with the very stringent controls on a wide range of the yes and and that's the more specific so the nd point is that as as my colleagues have said this is not the place to be bringing this dispute there is section three or four of the clean air act that allows for citizen suits and extensive discovery and is certainly an avenue that they could have pursued but petitioners are asking to have the title five petition process do the entire petition claims and dedicated twenty percent of its order to respond ing to them so to the extent that you were to go at the substantive issues they did respond and they found appropriately the petitions did not meet their burden i heard you referenced the increase in tons of emissions that claim was not really substantiated in their petition they didn't provide calculations in if you of its mission limits and that there was not going to be an increase from palace six what was allowed and so that was the flexibility that the company bargained for in exchange for installing these very stringent controls and they deserve the benefit of that so on and i just very briefly the petitioners have failed to participate in the two thousand and five public comment process which explicitly said that it would be federally and forcible then there was a two thousand and six public process when palace x went into the title five permit they were nowhere to be found two thousand and ten public process when the permit was renewed and they were not there so now they come here as we want to start our facility after we've already built for him shop to try to stop the facility from commencing operation it's that they commenced operation last summer they completed construction and so it's unclear i mean how how how they could sit on their hands for so many years and then expect the investment expectations the reasonable expectations of this company who mischaracterizes or claim the petition so the whole idea that this is a collateral attack on the validity of these permits is it's just is unfounded so if all we're asking is for e p a to out of the identify permits incorporating a  state law permits we're not asking them to invalidate these permits not asking to reopen these permits we're not asking to change any term or condition of these permits and what practical effect is that have they just added those two words or how many words it is so comply with the cleaner act and they would they would tell exxon they would tell stakeholders like the public e p a and the t c q that exxon needs to comply with these talks a little bit late fourteen years later to tom they can't rely on permit or state law permits it's not an issue to the state considers in these contested case hearings or in state court review they just simply look at the laws that were applied to see the permit and see if axons demonstrate compliance with them there's no separate three of the cleaner acts as it may not be treated as complying with the act ignores its its own rule of forty c f r seventy dollars b two that says title five permits have to distinguish between state only requirements and federal requirements and then with respect to thing that's not just a technicality that has impact that's the question and i'm not saying technicalities don't matter i love technicalities but i did have one right so i mean it's central i mean it's a formal structure but i mean paternity states can issue permits between pursuant to rules that e p a hasn't looked at but there's no assurance those rules may not be treated under the clean air act as meeting federal requirements so the basis of our claim here is that this case because this permit it's called the power permit but it was an issue pursuant to these rules and its limits we talked about the process to establish the limits and it's incompatible with the proof rules and we did provide calculations and we did provide evidence that the pm women in particular which was established after all this contest a case beer business went down is a one thousand tons higher as a matter of black letter law than federal law allows e p a doesn't say yes it doesn't say no it doesn't say that evidence is enough they don't talk about it at all if i could address the point about the preamble where e p a said they wouldn't nd guess permitting decisions so that's that's not quite right so what they said is they wouldn't nd guess state decisions applying federal requirements like the a c t but what they did say they would do is they would look at the permits and say did the state actually apply the federal requirement and is that is that requirement is that pollution control analysis faithfully included in the title five permit and that's we're  asking basically for the same thing we're asking e p a to look at this power permit and say does it apply the federal concepts as apply baseline actual emissions or does it apply some state analog that is not  you want to look at the you want the title five process to look at the merits of the permit right so that's not correct we're not asking e p a to nd guess whether or not texas reached the right limits reflecting a federal standard were say did texas apply the right standard in exercising its discretion settlin it if it's looking at the wrong standard if it's looking at a state law standard the e p a has never approved then they that standard acronyms in this case i did appreciate the glossaries so if you're going to use pages and pages of acronyms please do give us a glossary thank you all sides and the case is under submission and we're going to take a ten minute break