retain and we court preach change in mission calculations in rejecting the original rule this court took issue with the fact that sources had no obligation to retain records let alone apologize in advance it's going to be something of a long question but standing wasn't briefed as as extensively as some of the the merits questions and so i'm going to share where i think the case is on standing and then i want you to have every opportunity  to tell me where i have gone off track if you think i have clapper says that the standard for standing is that the injury has to be certainly impending in a footnote it says that the substantial risk standard may survive possibly that substantial risk standard is lower than certainly impending and susan b anthony case uses the substantial risk standard maybe that's confined to the pre enforcement cases maybe not if it's not and if it survives and if it were to apply here you still can't rely on an attenuated chain of inferences necessary to find harm that's from clapper you can't rely on speculation about the unfettered choices made by independent actors not before the court from clapper you instead have to plead and prove concrete facts showing your actual harm story showing the actual action by the defendant has caused a substantial risk of harm to you now amassed the e p a massachusetts was able to point to specific cars it was easy it was all cars but they could point to specific cars and say these cars are emitting a pollutant and that pollutant is making a specific part of our land our coastline recede so the specific cars were causing our specific coastline to reseed and the silent said that that was happening at the moment and the science said that that was also going to continue happen here by contrast e p a has already banned the pollution that you think should be banned you say you're injured because e p a has not made it hard enough for a source to evade the e p a s standard but you don't point to any source that will certainly to use clappers words evade the ban or that is even likely to evade the ban i didn't see any specific sources in all the briefing in this case that you say this source is going to cheat and evade the ban so i don't think any sources evasion is certainly impending and i don't think there's a substantial risk that any source would take the ban and your theory of standing if i understand it instead go something like this it involves i think up to seven assumptions you assume that some unspecified source will say there's no reasonable possibility of a significant emission you assume the e p a will not catch them when they cheat you assume that no other authorities will catch them you assume the e p a would not have granted them a permit for the significant emission you assume that the extra pollution will reach new jersey you assume that someone in new jersey will be exposed to the extra pollution and you assume that that person will be injured by the exposure i think that a lot of assumptions it seems like an attenuated chain of inference is necessary to find harm to again us disagree with that and i want you to be able to pick it apart piece by piece and tell me everything you think i got so tired or ask the questions that iran's it concern with any type of rule or statute that requires an entity to take certain actions you're never going to be able to predict in advance for sure whether that source is going to comply or not so there's always going to all permanent officials are hampered to the extent that they can't even find out if the source has undertaken a modification in the st instance then yes that will have a ensure that intissar requirements are matt which includes installing pollution controls if required i thank you for being patient with my question and for the thorough answer i'm grateful for it  along the lines of standing in injury and redress ability what let's assume that there is a store some pennsylvania a specific plant and that plant is cheating and polluting and new comments after they proposed the two thousand and seven rule and concern the e p a may have done either everything or at least almost everything that you asked them to do so i  looked at that your your comments here and with regard to the percentage increase trigger approach i j a fifty it has and that's the approach that issue on this in this case  is bad because it won't address demand growth and then the rd paragraph they are says it's bad because sources can exclude product demand growth and it will be often difficult to separate demand growth from other emissions and then it continues to talk about increasing demand growth talks about the new york case and it says that e p a quotes the new york case not on j fifty three it quotes the new york case but it didn't address the new york case because it does not address this problem the problem there is referring to again the inclusion of demand growth or the execution rather of demand growth the next paragraph says a source wouldn't trigger recordkeeping could fix this problem the problem that i've been talking about this whole time and that is mentioned and in all of your comments a subject of facilities that used to exclude demand growth emissions to record keeping monitoring and reporting requirements to ensure that source and you want to you know qualify for reasonable possibility you still have to keep records you still look at least keep your cream modification records if you're over the fifty percent threshold not just when you exclude demand growth but even when you include demand growth so a company say they're at forty  percent without including the demand growth emissions but once they include the demand growth emissions they're at sixty percent of the significant emissions trash old in that case they still have to keep the pre modifications wreckage so i guess it seems like you've got almost everything you wanted why are the the things that you didn't get why why why are they as important as you're making out and along those lines that there were a lot of cases there were a lot of states in the original round of litigation there were a lot of states on your comments you're the only state left is a good the other states were satisfied that he did almost everything it addressed your st question st we we didn't get the really the most critical thing that we did want which was reporting a pre  emission calculations and the reason why that so critical is that information just is not available from any any other source and brings transparency as well the problem is that permitting authorities don't know that a modification has occurred that might have intissar implications and they have no way to check that and in the litigation when you finally get to that point which is a very modern drawn out process and entails you know require a lot of resources you'll find that the admissions had relations that were done were very sketchy if they were done it all  and so the importance of requiring reporting is that you know the the source knows that a permian official is going to review the capulets and so it really i think as i said some accountability to the process and i think also in a lot of states or at least in new jersey where he said met in our information to the permit him to authorities you have to do so under oath or you have to certify that the information instrument correct to the best of your knowledge so that's the that's the key piece that we believe is more important than anything more important than post construction records coast construction monitoring and mission records because all of that we can come back and ask the sorest to provide the additional information what we can get up front that are the other pre construction emission controls are required and they can't they can't do that if they don't have the calculations in israel you have to take up all your time i finished asking your questions i'd thank you for your patience and i especially thank my colleagues for their  air act does not require sources to keep records monitoring mission and report reviewing authorities when they determine that a modification does not require a new source of your permit but in recognizing the potential value of this information foreign force balanced ministry to concerns that an objective bright line test that requires record keeping reporting and monitoring for those projects that e t a determines will have a higher probability of actually causing significan reform bill for a go to deep into the earth can i just start you off where judge walker started off which the standing and the government didn't make standing objection here and at least my experience of the government has been where the government believes there's any standing argument to be made it usually makes it and i'm just wondering can we infer from that that you think that there is standing here well your honor i don't know if that we did in our brief it's sort of concern about the standing with respect any injury that is caused  by sources within new jersey because new jersey has i didn't actually i didn't read you to be that's only sources but in new jersey so it doesn't go with open sources but i didn't even read that to be a standing objection i thought you made that was in the context of a marathon argument that maybe i missed something maybe you know you didn't miss it but it appeared you're right i just thought i would at least point that out that we do think there is concern with their injury within the state of new jersey you think new jersey has standing obviously it's because there's burden to establish that they have  petition or is argument that pre construction there are no substitute records and if those records are not available pre construction you that this information do you agree that whether there are pre construction records required or not is just a fact question provide states such as your jersey with the information that it speaks about a proposed modification that does not need a major new source review recordkeeping requirements either sources what about major sources well so that the minor new source review program applies to major sources when they make determinations that a modification is not a major modification under under the clean air act under the new source review program so major sources can submit mine or source new source review applications for those modifications but not meet the major production i counsel but i'm thinking somebody is going to spend five hundred million dollars building a new plant how are minor source records going to provide the information well if in that instance if but if the source determines that there is not a major modification and it sounds like your hypothetical if someone is going to build a new plan that would automatically fall within i think council has overstated her concern or eric new jersey excuse me have overstated their concern about the a lack of available records pre construction actually new jersey's briefed on this point actually new jersey's reply brief a notice or a permit application describing the proposed modification and any change in emission as a result so even in new jersey when a major source makes a determination that the change or physical project is not a modification  is there no gap is there no delta there in between where there's a modification that doesn't arise to the level that requires reporting but that also wouldn't commandeer minor source so that new jersey is actually not going to know about the modification i don't think i can say there's no gap so states of the f r g to determine if there are categorized in significant activities that it determines are exempt from the minor new source review program and so those are specific activities that states have made a specific determination types of projects that really could have no or exams would have no influence minor new source review program that are so insignificant so so that the market so there's completely insignificant and then there's the minor modifications and when that happens there's some reporting that goes on to the state through the steps is that correct  k and then there is also a modification that has a reasonable possibility of being major that's next and then there is a modification that is major right now i i'm wondering that and then still not sure is there a gap ever between a minor modification that is the trigger sip reporting and a reasonable possibility of a major modification yes so and i think that how how rare is that so if i'm understand your question correctly there any major modification that should be a determination that it m major modification but has a higher probability of tension being a major modification that falls within the reasonable possibility standard what if it's below the recent possibility standard but above the minor modification  sixty percent of cases well because of this the category that could be exempt is significant in significant correct so here's major new source review project if it's in that war minor new surgery project that may or may not be subject to reasonable possibility recordkeeping then there's a rd category this insignificant so there really no possibility standard covers the minor new source review program only but only those so you don't need a caviar answer of these for these purposes with respect to the insignificant months but those to one side and if as i understand it jersey's argument they're saying that for some if it's not major so that one reasonable possibility land there's to be some projects as to which they receive no notice to that it's even happening because the reporting part of it is not their record keeping might be that we're reporting is not there and as i understand your response you're saying no that category doesn't really exist again putting aside and significant because there will be awareness of it by virtue of minor so that is generally yes i think that is generally about right correct i am afraid to say a one hundred percent that there could not be one specific type of project that i'm just not thinking of sitting right here but generally yes but that a state will receive notification of a project that does not major major modification through its mind and new source review program now a new jury let me say if one of us wants to say that in an opinion we're in we're in the g a a should we look to find support for that and you don't have to know the number off the top your head but if you give us a hint yes so if ok i see my time is up but i think you just make one final point you know what new jersey seems to seek here is reporting for all modifications or virtually all modifications no matter how how insignificant and you that reporting could actually also impose not only a burden on the regulated community but also a burden on administrative fees me reviewing authorities especially those with that with most after that lot of resources to review all proposed modifications and and ultimately died just distract them from those modifications that have a much higher probability of potentially causing a significant i think that there was perhaps an opinion priorities and i don't know that i can speak directly to the the things in making that was made on on why not to reconsider that wasn't actually part of this challenge ok thank you i think i'm just a muted now mia so use the coup or i have a presentation but i guess what i'd like to start with is the fact that in the new york case that gave birth to this rule making the court stated less burdensome requirements may well be appropriate changes or sources with a little likelihood of triggering an assault are and as judge william said in his  review aren't addressed to meijer and my resources there are addressed to projects and so you get this misnomer because it's called new source review what has really maybe should be better called new project review and this rule is soley concerning existing sources and modifications at existing sources and so if you have a refinery or an automobile manufacturing plant to the major source trigger level and then below mine or there's the statement in the us in significant stuff and and so an example of that is there a list of exemptions in new jersey schools new jersey administrative code has determined and he has approved through a public notice and comment process those things are insignificant so i would go back to this the state implementation plan even though one individual exemption in the use of that might not be reviewed that the fact that there would be an exemption that part level and there are there are a lot of this plan the state implementation plans for minor modifications do they all require reporting pre modern vacation recordkeeping you know and they know that that's that's the whole problem according to  jersey so there's that and that takes me back to my point on perfection i mean the fundamental question is and e p a made this point in their brief that if you require reporting about saluki everything you're going to lose the wheat from the chaff and and you're going to mess the projects that you really should be paying attention to and that if you have to report things happen and major plan every day if they are doing maintenance there are i'm not talking i'm sorry i'm not talking about the end significant modifications the routine maintenance such but that the modifications that are you would end up on the application form and this is not in the record but this is just from my experience so on the application form that you fill out for a minor in a store permit you have to tell them what your emissions are and what even if kansas is not a significant source kansas is a significant state i'll just say that if somebody from kansas but it's not always identical that's my colleague don't have any further questions for you the they can look at application and the emission calculations that are done and evaluate for themselves do we think this is going to be problematic or not and that's their job but they need that information to be able to do that analysis but in terms of overburden you now know they would like to have the information so they can at least have some sort of check and you know and it may be that post project emissions raise a concern and then they can go back and look at enforce certainly is required and as far as the burton e p a itself when they when they publicly enter the final rule and knowledge that requiring sources to keep records the emission calculation records they're already required to perform and i and i want to make that point because that's important there are already required to do the calculation so it's well said requiring them to keep those records is a minimal additional bur likewise you know inquiring sources to report those emission calculations is a nominal burden they have to email it to the permitting authorities so not a great per the nd thing i want to address  sources do not think that there has been a project they are proposing which will increase the missions that they don't believe it will increase the missions and not to tear and s are then yes they can as they apply for minor anis are permanent or permanent modifications bet in last they are projecting that the project will lead to increased emissions that could result in scenes of a gnat's a national ambient air quality standard or that will result in a significant emissions increase from us to these programs pro it's it's not a case by case review it's done on a program matic basis you have permits by rules you have general permits i mean authorities don't have time to review each and every minor news source permit application in they are not required to submit the pre project emission calculations that they are and your major and some are and sources are states excuse me that only adopt the bedroom rules are clearly not required to submit the pre invasion calculations i did literally i'm confused between two things you said it may be met them both but one thing you seem to say is for a minor modification the state authorities that would grant a permit for that minor modification don't have time to thoroughly review the reporting that is done by the facility and then i also heard you just say the reporting that's minor applications as opposed to major applications but the thing is and that's one of the reasons why minor accusations they require less information are generally speaking and they don't require the in israel you were telling us earlier that the thing that you really need is you need reporting of pre modification emissions the post modification stuff and get that when you need those are the critical things we had a critical information that we need the permitting authority and needs