nineteen and that conclusion of law is that e p a has determined that respondent and respondent is never to work under the caption of the settlement is a responsible party under section one of seven a circle of forty t multiple bases for finding meritorious standing this is something you can also find shot through the joint appendix the e p a repeatedly refers to meritorious as a potentially responsible party meritorious is as we apologize but the e p a has determined that we are potentially responsible party and we are here because we stand to suffer a significant amount of you know both financial and reputational another harm that stems from this particular listing just to make sure i understand your position because you are or because there's a substantial risk given they've said you are a potentially responsible for this two different drones but if i remember correctly i think this court in mead court versus brown are found standing even when occurring was a potential potentially responsible party i think the court made a similar reference in the c p s case actually so for per these purposes you have contracts or responsibilities for the slam now the harms that we articulated in our standing section were that the possible future expansion of the site the additional responsible party so i would submit there's really no question that if you're standing things and you have certain environmental obligations page twenty one listed soley on the new subsurface intrusion pathway you so you started with the reference to the structure itself can i just ask the nature nature of your claims you say e p a s decision wisting decision is arbitrary and capricious is start slowly because the listing decision is inconsistent with the agency regulation or do you have a further position that even if they've followed the regulation the regulation that this regulation is unlawful as applied and therefore the listing decision is arbitrary and capricious it is largely the former or it is what i did that then the reason why i say largely the former is that there is the directive in the version true because something less than intrude into something in the district in the government's words discourages those vapors from intruding that should play a role in the calculus  that's correct anderson to tell you that i think maybe the best way to look at this is just to think about the timing of these actions when but as i mentioned when when e p a proposed this listing there was already the subs la system in place and running at e p a order so this wasn't the case you can imagine a hypothetical case where e p a proposes a listing and the day the comment period closes or after the com the p r p comes in and says we fixed it we fixed it you know that's not this case with this cases e t a knowing that there was a system in place that was specifically designed in fact state of the art design things that the final rule says pertaining to the subsurface intrusion component is i'd like to read this preliminary h r s scores are refined as sites progressed through the process and does not mean the site would ultimately qualify for of that sentence squares exactly of course with this more general a p a holdings which are if you know that the facts are state were false at the time that you find them you should a sort of house to fish or cut bait on making these are complicated decisions and they can't keep changing their data right up to the moment of listing so i guess i'm because i'm having trouble that they knew it i'd like to continue it was that the e p a take into account the system that was installed and let me also locate this in the regulations and selves ca me once you answered my question the way you did yes i mean the weeds of the regulation which is a bit painful but i think you're governing i mean the governing provision we're talking we're talking about is high understanding their assessment of wine won on the chart right observed exposure and when you back to the regulation on that specific provision asks whether a hazardous substance has been released into the structure of present perfect  has been released in the past this is a case where everybody agrees that hazardous material has been released and then when you look more broadly at the regulation it explicitly builds in your idea that you really should look at intervening remedial m or potential intrusion of hazardous substances into all regularly occupied structures that have structure containment values other than zero despite the existence of this system which under the  right point two dollars title general considerations so basically when you start this process you st ask is there a structure that has a structure containment greater than zero and table five dash twelve which we say repeatedly in our brief shows you that the structure containment levels actually are dictated by among other things whether there is an active they permitted ation system in place of the structure containment level of the system is something that is set out from the st and that the reason i think it had to say it wouldn't be vertical but greater than zero as a threshold inquiry doesn't really help you because if we work at structure containment the mitigation system just gets you down through to just greater than zero and you have an independent consideration of foundation cracks which i think were present here might point to judge has this isn't that just because the structure containment is it to you when my point is that this is so the service intrusion rule requires consideration of structure containment from the outset so it's not just with respect to because it's not universally one hundred percent effective and that can't be right and in fact the government hasn't been tested that this is an active thinker medication system but more to the point one of the things that government relies on in its grief is the final rule from nine hundred and ninety dollars which were the amendments that were made to the h r a system after congress told them they needed to tighten things up and one of the things that those amendments say is when you were calculating the wast quantity which is one of the other lines on that charge of taxes when you were calculating those ways to hear touristic so you take response actions into account and that is something of this in fact i think w parts of the calculation help you walk with regard to mind one well with regard to to line one i think i would refer you back to that general consumer product is what it what it means it is before you embark on the subsurface intrusion test ask yourself whether there is a containment system in place if that containment system is greater than zero then proceed but that necessitates you finding whether there's a containment system in place i want to be the reason why i'm focusing on having observed so so they are just relying on this general background statement no in fact i'm not on that not only relying on the general background statement which isn't just a background statement it says this is how you start your inquiry you start your inquiry by looking at whether there's a structure containment system errors we think that you made because of this it didn't assess that exposure at the time that it should at the time that it proposed listing this site it knew that there was a sub slab system in place that was mitigating brief is the observed exposure after the system was in place was in relation to a single test at a single site at a particular location on the property and i'd like  suggest that you compare that to the actual approach the e p a took when it was setting back ground levels back in october th teen and january th team when it took six sites multiple samples and chose the the regulation commands them to factor this him that the text of the observed exposures tension for exposure and and anyhow there was an observed exposure even after the system was in place now maybe years which came to a arbitrary and capricious argument as to how they identified or calculated that actual exposure but as to the fact that there's five hundred and fifty points for observed exposures before and after because i'm not sure it's a sure how the fact you're going to get a system helps you ok that the fact that there is a medication system actually is shot through the regulations so starting with my always two legs a one million the regulation is not shot through starting with five two it asks you before you embark on this does it have the structure containment system the answer that is yes you take the structure containment system into account so the fact that the observed exposure doesn't say  s is the restructure containment system is rather beside the point the point is when e p a proposed this for listing it knew there was a structured containment system but let me make this as as straightforward as possible because i think there are several different bases that we've articulated for why e p a is listing shouldn't take a did we think the most straightforward one is the waste characteristics issue that i mentioned and the reason we think it's most straightforward with the waste characteristics are we can wat option one is you get rid of the hazard sky and solve the problem that way option two is you solve the problem by turning on the man gas is still there you just ran it out why is it unreasonable for e p a to say well we'll take into account and give you credit if you get rid of the hazardous substance but if you're just turning on the fan well we're not going to give you credit fan can turn off the fan can break we're going to be cautious and not analyze it without the fan rather than with the only of the pilot test that was run on this you will find a very detailed description of this sub slab system how it was installed what it involves the sixty day it was stacked that came along with it this is not a fan under a cross face this is actually a system that is state of the art that was put in place in order to mitigate the intrusion of a version of the structure and when i put it this way it should be self evident that when something mitigates nutrition of a bridge into the structure it mitigates subsurface intrusion but to the ways characteristics point that i wanted to mention because i think this is the most truthful still i don't know i don't know mechanical or electrical or what but make us have an on off switch right maybe that's you want in the windows maybe that's you put in an electric fan this is a system that e p a has required merit or to keep running continuously and that has been running continuously so for purposes of  do you disagree it seems to me it's more like the than like the case where they just eliminate began no i mean i think a lot of the wrong way i think it is i think it's actually both i think that the reason that it mitigates the vapors is because it creates a pressure system under this building that prevents the vapors from entering but the other thing that it does and this pertains to the removal of the waste is that it processes those vapors there fallacies that i think is in the government's brief the idea that the subsurface intrusion pathways something that involves do they st come up into a structure that can only be mitigated by something that completely remove the waste from the side that is simply nowhere in the regulations and in fact all of these references to the structure containment systems which go all the way back to one thousand nine hundred and ninety structure containment systems that are mentioned in that particular rule the company  amendments structure containment systems matter for purposes of scoring and i mentioned the one thousand nine hundred and ninety rule for a reason because even the government concedes this the nine hundred and ninety rule which is the rule that tightened up the h r s talks about when you should determine when you should take into account a response action like this and what it says is you should take into account response actions in determining ways quantity so even if you hold the observed exposure constant and then if you hold target's constant i'm sorry just be sorry in determining where you quantity which items get i'm sorry i thought you were i thought you were invoking or are you invoking about further support or you were sort of exposure i think it certainly serves as further support for the argument that and ninety e p a was recognizing that response actions have a purpose and what you saw in these two thousand and seventeen this new rule is that the response actions are actually baked into the scoring for this rule so that's the difference i calculating that separate question of waste characteristics and the point we make in our brief is even if you hold observed exposure at the five hundred and fifty dollars even if you hold the targets as if we're talking about residences rather than workers  which itself is a logical fallacy then you get to that waste characteristics question and then the and what the waste characteristics question asks you is can you estimate with estimate with reasonable confidence the mass of hazardous substances in this structure and if you can then you perform what's called a tier a calculus it is only if you cannot estimate with reasonable confidence the mass of constituents in the structure a using tear d to calculate the ways quantity was it calculated the acquittal into ten thousand pounds of hazardous substances in this building because it was just going out of the footprint of the building our point and we preserved as a joint appendix forty eight is that e p a should've taken the s s d s into account when calculating the waste quantity and the reason that we think that point is important is once that as s d s was up and running the variability in the hazardous substances that were being detected shrank to a very narrow range one of the reasons that  document that it couldn't calculate here a was because there was simply no way of or estimating with reasonable confidence how much substance was in the building are in wages you know me where you made this argument that you have has needed to be taken into account one of the one of the governing considerations of all of these tears is if you can calculate it at two your day you do not drop to a lower tier end of discussion so been working to element of each of these calculations but but let me also say this is this is not something that was discretionary with you could there were unnoticed things you had to be in tier one  fact that we declined to take the s s d s into account resulted in an estimate as i said of ten thousand pounds of hazardous substance in the structure and even concludes that that is not an appropriate estimate six pounds of hazardous substance as compared to e p a s estimation of ten thousand dollars pounds of the hazardous substance and once you plug that point six into all of the necessary algorithms and calculations what you come up into account means that it needed to calculate that hazardous waste quantity differently and we talked in her brief about the magnitude of the error and i repeated those numbers here ten thousand pounds versus point six pounds and if you take just that consideration and say e p a should have at the very least taken the s s t s into account when calculating that quantity and you hold those other things constant we haven't talked about resonance vs workers we have talked height was actually in the record it didn't know the height it just didn't look we can't we can't do this because we can't get air flow into the concentrations where it said yes questions vary over that and that's very important for to your be that's not important for tyranny because confidence the substances that were in the building are pointers both under the nine hundred and ninety regulations and under the subsurface intrusion regulation the e p a should have taken the s s t s into account need to calculate your b and i know that this is a complicated tiered system but what e t a should have done is simply taken the amount of of those substances which he could reasonably estimate was calm estimated that a reasonable confidence because of the s s d s and done the calculation by the area of the building that's all that it needed to do that's the point that we make in our brief and once e p a does that the hazard ranking score drops down to fourteen that's why i'm saying that this is the most expedient and most straightforward way to think about this i know that it's complicated regulatory lead but it isn't that large and we straight forward you take a medication system into account when you're looking at medication and e p a has been told over and over again you take a minute vision system into account when you calculate ways characteristics when you calculate the ways quantity and he says this is an argument here that you should point that i made about one of our experts contesting to your d but our separate argument was that with the s s d has running you can calculate what theory requires is the mass of constituents found in the structure where the observed exposure has been identified so again we're there holding observed exposure constant we have a separate argument or not it's concentration times the volume of the building the volume of the building was readily available to e p a what it wasn't sure was the concentration but that's why i make the point that the s s d has shrank that range of concentrations and even if you take the highest such concentration of the hazardous substances that were an issue that's what adds up two support documents accompanying this rule the rule itself talk about this issue in terms of what is the reasonable maximum exposure that someone is likely to be exposed to at a site and where you have a site that is assumed exclusively for industrial use your reasonable maximum exposure is going to be the concentration assignable to work or indoor air and this is not just me saying this by the way i will find is actually a link to a vapor intrusion screening level calculator and the vapor intrusion screening level calculator asks you is this site a residence or is it not and if you plug it in and you is consistent with how e p a determines the appropriate regional screening levels so the divide by three point doesn't as we say in her grief page forty one it doesn't here in the problem because the reason that those benchmarks are different there's a problem either way right if you if you adopt the if you would go up the rule that you want your double dividing right you start with the residential you start with i'm sorry the worker benchmark which has baked into with eight hours per day of exposure and so you get the most reasonable answer with regard to line eight exposed individual but then when you come to wine knowing on population you divide b three for full time work or divide by six for part time worker that's obviously designed to account for the fact that people are only at the site per card of the time so you're you're you're double discounting on your view you're double discounting on knocking on their view you're overestimating on me it's just not i think it's i think it's difficult to talk about double discounting given the complexity of the algorithms we're talking about but one of the things that the technical support document that i just quoted makes clear is e p a itself understood that these two things that divide by three and the low were slightly lower concentrations for burgers were designed to go together divided by three is consistent with the slightly lower concentrations so my point with the divide by three is it goes to a different scoring altogether the reason that the concentrations are set where they are is to distinguish between those two very important level one vs level two categories and once you drop down to level two you're scored in a completely different way if you were instead as he is right under here in level one but the question here is do you have is is there any level one concentration right is is there a one in a one million risk of getting cancer yes so if and that is relevant to item eight and it's also relevant to the level one what's called different ways they eat conceptually is is there anyone who is going to be expose right and i am conceptually is what's the extent of the exposure yes but  the point that i made with respect to e p a s own vapor intrusion screening calculator is what they call it which literally does permit you to plug in factors and get a result that calculator and i'll quote from this asked you whether you are in a residential or nonresidential exposure to your scenario it uses the same database of toxicity values etc as a regional screening levels for superfund sites so the  calculator instructs that you use those lower benchmarks and if you plug those benchmarks in just as you've done judge chances what you would also do is to divide by three by workers but i think those are kind of two different purposes how does that how does your system how does your approach mine a right if you start with the number designed to measure the one in a one million risk at eight hours per day of exposure accurately right the question is what what do the what does the table have sort of more tolerance for and my point is even has said in its technical support document says in its favor intrusion rule that you use the lower worker benchmarks now what e t a says in addition to the double discounting argument which i think it just goes to a different point because those two are designed to cover different things but whether you v a says his you don't look at the work benchmarks because this potentially could get turned into a residential say that's clearly not the case the other put the other reason that the divide by three often comes into play is if you look at the endings i believe that to the proposed rule the e p a cites a couple times what you'll see is eleven different tests of sites across the country under this new proposal every single one of those eleven sites i residential or mixed they don't do a test of just an industrial site and when you have a mix to site we concede and we can see that in our brief that you use that highest reasonable exposure sites designed to give someone  exposure to so a resident but where you only have a worker and where e p a tells you to look at a worker site and then e p a tells you to plug that benchmark that it gives you under its vapor intrusion calculator into the equation that equation is designed to come out with a value that e p a has decided adequately i am going with that that sounds to me like an argument  on on their rule the determination of exposed individual under age is most arbitrary in a case like this one where you only have workers and no residence and i think that's probably right but your rule no matter who the people are workers or resident well your role if there are workers is are seems arbitrary has the highest reasonable exposure and that is the residential exposure so our will is if there are only workers what you should do is what e t a has told you to do in its regional setting the most has told you to do it it's vapor intrusion rag as applied it seems i mean just looking at it i can't make heads or tails of it it seems totally arbitrary but if we're stuck with there i think i think we are i think they're largely stuck with it but i think what the court should look to there and a line mining error one argument for e p a s position is this is just an initial cut and we can take the most protective most protective approach possible so we're just going to pretend that everyone is everyone is there twenty four hours a day another one which may be one on making out but another one is if you just try to assess the magnitude of the magnitude of these things item eight which is just is there any individual there is worth only  fifty nine a which is like how many people are there is worth six hundred and fifty point would seem to be more important to have a precise calculation of ninety eight rather than a precise calculation of eight so let me take the st of those to you made the point the e p a could conceivably have designed this to be the most protected and that's one of things that is in the proposed rule and i think they refer to a response to a comment at page forty four dollars of appendix to the proposed rule and they make a point in that response to a comment that this is designed to  be the reason they did the maximum exposure no matter what the land use that's not what the finals what the final rule says is not we're looking at this is most protective what the final rule says it is this is designed to accommodate the reasonable maximum exposure that someone has to be subjected to this site now it is conceivable to me even though it may look like jibberish on the page that e t a decided to weight the values and weight the targets and weight the populations differently industrial site that it would for a mixed site or for residential site but the core point of the residence versus workers calculus is the residents versus workers calculus e p a tells you itself is based on two benchmarks should have been used and should have been locked down but again each of these arguments that we talked about the observed exposure the ways characteristics the pup the target population of workers versus residence each of those if you agree with us that e p a should have taken the same side of system into account each of those fails independently so you only need to find one of us for one of those for us to prevail here he was use the wrong benchmarks here are the ones that you should have raised now judge millette you may say that you didn't use the word industrial the point is is a question of the how sufficiently you raise something often depends on whether  worker benchmark we're going to apply the residential benchmark we're going to apply it because it's most protected i'm going to apply it because it's just easier that way because then we can just look at this all across the piece and we don't need to look at whether whether a particular site is industrial or not hundreds or thousands of sites across the country so the fact that it had a broken line on one date for e p a to say that indicates that the long term exposure of a worker in that site is twenty six is simply not true is there any further questions thank standing of the rhetoric reputational injury that meritorious scope to that measure has been connected to the site for a number of years at least they've been working on it since two thousand and one and so certainly any reputational damage that's been done it's already been done and not connected could intrude meaning both in the past tense and also potentially and that theme of examining what has previously happened is through out the entire regulation itself i would point to if i could just summarize if you will ind well they say it's stale and they have the system in place as your as your honor pointed out that was the best information that you had at the time that was relatively recent it was from the prior year and certainly from the point of been observed exposures if i could just go back to again that marriage as you can see that as the briefs are presented this is a challenge to a application of the regulations  about the statue and i don't must know of the statue of course as concerts know and threatened releases again all past tense language that e t a doesn't merely examine what's happening today at the site but certainly needs to score what has previously happened as well so so diving into the regulation st major point of contention is observed exposure under five two hundred and forty one point one point one and you say has been released the tense of that is seems helpful to your position but if you and direct observation has a formulation has been observed which reinforces that but then if you read down to chemical analysis which is what was done here you see the present tense the concentrate the observed concentration is significantly above the background concentration or present tense present tense in the sense that when you do the comparison and to this day the two samples are continued to this day to show and observe exposure you when you compare it  faulty information or bad information it remains true today it is an observed exposure because the comparison is three times back on a levels and i'd also highlight section two three which applies all pathways and speaks and you also had a closure assume for now that i think the regulation is silent on this question with regard to item one served exposure why would a regulator want the subsequent measure considered for purposes of potential for exposure and targets but he ignored for purposes of observed exposure fly would you fully take it into account in determining the potential for exposure and targets but not take it into account for purposes of determining observed exposure well that would also it is taking into i think it's quite common for certain components to be considered for scoring persons and one area and on another i can't speak to specifically that trying to find the risk of exposure and you've got certainty it's actually happen discounted for more from the system that's correct and we we do not so given that so given that there is no regulatory provision here that commands the consideration of the subsurface consider more recent data rather than less recent data and should take account of relevant factors rather than shorten this court has recognized and i would say  thinking in the abstract and the situation on the ground mal is that there's a there's a system in place and it works really well and it's making a difference and you have data from today the takes that into account and you have to add affirming a year ago before the system was up and running but doesn't why would you pick does not address the underlying threat that's at issue here that's us yes isn't treats the treats us and them it treats a cough it doesn't treat the underlying and faction or disease that's that's that's causing these vagaries to continue to intrude into the your data that's correct and so for the proposed list you cut it off before the system was in place and then once you're getting comments on a proposed listing what is the general timeframe that you look at before making a fine because someone could always be submitting new data at least as some other e p a areas we've said years back so take you have to just have a cutoff date for a listing like this which is  targeted decision about a particular site how far do you usually how much more updating to do between proposed list from a nation shorter out of course there must be at some point the e p a needs to  as you say and in this case the comments were received prior to the cut up day and therefore e p a did do the good government process of examining that information i would actually that material weight we're still relying so much on measurements that were made before well what if you took that information and after appreciating the nature of the  that d as samples it would nonetheless reach the exact same conclusion suppose there were no samples taken before s s d s was up and running and you learn about the site you have concern you go in on the the one and only sample you take is after the system is up and running and it shows you measure whatever it is what's the concentration of the gas in the facility with the system running and it comes back to look very low what would you do then under that h exact nature of the s s yes which is not to substantively address the underlying contamination and as it is it your position that the regulation prohibits you from taking something like s s t us into account in calculating observed exposure or that it's silent and you just do that it's a matter of discretion the room in india that for example that that accompany work to for example remove the actual paper causing chemicals in the subsurface perhaps in that situation a may consider not crediting the past samples given the fact that there is no longer a threat or that threat has been substantially reduced du not provide a regulatory provision for which would was a hazardous waste quantity component of it under that component it is possible with sufficient evidence that if there is a partial removal that e p a could credit it in that movie will end up i make that note in reference is particularly with hazardous waste quantity which can use under tear and possibly therapy but primarily tear  on the site data to score partial removals we don't have that information here and you can instead scored under instead scored under tir d which is of course based on actually i did want to address one more thing with regards to the tear issues that were raised in the prior questioning here on ars and that is whether or not merit or preserve its tear a argument it's our position to have not as asked earlier with regards to their citations that particular citation does not inform that they had a particular inserted with regards to tear the s s t ass does not provide any information that was necessary to do  with regards to the benchmarks questions  previously and has not ball but today it's the case position that when e p a was promulgating the subsurface intrusion regulations it decided it was going to use a maximum exposure assumption and  they can argue that the reg was for misapplied here in in this listing decision i think it's our position that that we used decided back in two thousand and sixteen that they were going to use solicitor something which is residential meritorious argument today therefore it speaks specifically to that question it is a little instance where they're saying that the proper measure under this regulation in these circumstances is the workplace masher not the residential much around we can talk we can debate that on the merits but that's an argument about how to apply the requested that e p a consider screening levels for industrial situations and e p a rejected that comment and instead noted that it would be either in the worst case scenario to use the language   and by doing by receiving comments considering alternatives you develop itself to the use of a residential exposure to your point is not someplace was made here that the rule itself across the board requires  express one way or another to whether to divide the population based on particular characteristics but he paid as stated in the preamble and in response to comment most protective and allows you to pay to visually screen for a wide variety of sites are people supposed to bring challenges to interpretations of regulations at the time of the final roll it's not in the world itself or i thought they could wait until that interpretation was applied to them and raise the challenge i think i would know two things one is that it depends on the face and context of whether or not the communication down the agency itself and regulate parties and it's our position that it did and i would highly the circus judicial review provision this car has repeatedly recognized as special in the sense that it provides for it prefers pre enforcement review or not seeking judicial review of the regulation or seeking judicial review of this listing situation i appreciate might your interpretation to that it flee or whether you can but do you have to or why is it a perfectly sensible to wait until the rubber meets the road and they actually apply it to my bet is that people come rushing and they go that's just the preamble and wait until it's just an interpretation and you have to wait until it's actually applied to you i guess really appreciate that it which is why i go back to specifically to just review parisian in this instance or wish to score as recent as the us and news in case agency's interpretation and why it's a the outside the record and i can't speak to that but it with regards to the waiver issue again the agency took their st comment to be you should use this number because you used it previously values of residential exposure number and that at least one of their values is more akin to a worker based number and that is where that discussion comes out but again we also noted in support talking at that the exposure something we use is the residential exposure assumption because that is the reason that's known exposure something that uses the regulations as you use an appropriate benchmark and workers but if you did we have both numbers and we have a site that's exclusively a work place so why isn't this just very simple the appropriate benchmark for a number for it that i'm sorry you did that more taylor number you have separate numbers for the twenty four hour per day exposure on the eight hour period we did we do not your honor i cannot say that the numbers in is the exact same as the cause elation that we did here but for the exposure assumption you have to go and create that number i don't know what that number is but it is technically cake to do that but the reason why i mean i don't have chapter and verse memorized but my recollection is everyone agrees there is one set of numbers there's one set of numbers for the twenty four hours per day fifty weeks per year forget twenty five or twenty seven years and there's a separate number for the eight hours i agree that there is a separate number in theory my point is i i cannot say with certainty that the number that we are to presented is that number that is it has been adopted correct by the agency as the measure of the one in a one million risk for someone who is exposed eight hours per day rather than twenty four hours you're correct saying you don't have those numbers we do that we have to create those numbers which i concede is something he can do they have the ability to do so but you can get these benchmarks from the matrix the matrix currently does not have that value now is it again i recognize it may be close or and maybe that number but he has not done that because they lie again and the same exposure assumption in all can say with confidence that with the eight point eight number is primarily targeted towards immediate more acute exposure as opposed to long term exposure which is what the table five hundred and twenty dollars benchmarks are aimed at and i would also  and that's also not long term here that three minor standing is the three point over three zero number name he may have sons protect in this with regards to long term exposure but again i can't a has calculated the risk created in a worker exposed for eight hours per day two hundred and fifty dollars days per year twenty five years for p c to be three micrograms per cubic meter if i believe you are reading that as what that definition of it is then then yes that is that number my point is i can speak with certainty if all  number of point four is exactly the zacks same variables as the three zero number but for the exposure assumption there are a lot of other variables that go into that and i can't speak to that so therefore i'm not saying whether or not they are the same but for that but my greater point of course is that looking at the regulation there is no requirement that u k break down these target populations in the manner in which america works adjusts i would highl in which the city a city proposed to the agency that we have this alternative copulation it is more accurate by splitting the population based on where they get their water the court in that case decided that the danger us does protective which is courts has recognized and board of regents evasion can err on the side of over inclusion and that it is routine for e p a to use simplified assumptions and formula rather than actual on the site information even if it's available for the purposes of creating a screening list that recognizes the most relative needy sites in the universe or clean up or investigation pregnant women if it was again attorney ward it wouldn't score only children if you were looking at a school they could if you can technically come up with numbers for exposure assumptions or for the exact risk that these particular subset of individuals have but because there must be someone in the e p a muster also it can be expeditiously and this program it applies the same exposure assumption across the board and that is true for all the pathways which is critical because this is supposed to be a relative list and it was skew the numbers if they were for each site to determine more specific information with your greater exposure assumptions for individuals rule that preliminary h r s schoolers are a fine decide to progress through the process what is a regulatory command is that you can't make a determination based on all data when you have data available to you and i want to be very clear on underneath the building was temporary and didn't remove all the waste neither of those things is supported either by the record or by the regulations of selves what is a regulatory command is that e p a take into account response action when it is deciding hazardous waste quantity now what you heard was mr doe saying we weren't clear because one expert only looked at the footprint pertaining to clear d n a it was very clear from comparing to the other pathway we respond to this in a reply brief and i'd encourage you to look at it the other pathways all have specifically set measurements that pertain no matter what the length of exposure or what the length of time or who it is this exposure is different this is appropriate benchmark changes depending on whether you are a worker or a resident and mr doe should have been aware of the calculator because it joined dependences fifty three which is the age that contains directs us to direct e p a to do what we say it should have done which was to calculate the space time workers this was only a worker occupied site the answer of course is different if this is a residence site or an exciting but here where you have only workers the regulatory command is that you use the appropriate benchmark and the appropriate benchmarks are the ones that we articulated and the e p a glow understands