more specifically its decision to fundamentally alter how he manages the renewable fuel standards small binary exemption recently the public has become aware that he has dramatically changed the manner in which it grants these small refinery exemptions and greatly expanded the scope and up the ability of that exemption the consequence of that decision by e p a is that it has rendered significant adverse impacts on the biofuels industry as a whole creating volatility in the market undermining certain piece of certainty that congress intended to create when it set in place this program and generally rendering a state of reduced demand and uncertainty in the market creates obligated parties obligations allocates their responsibilities and ensures distribution on a national basis and this and the internal regulatory program and accordingly it was not until this particular instance involving the wyoming fiery that the public had been placed in a rians right i think done that also if he has said over the course of the last seven or eight years that it reserves the right to issue placed ribbons under certain circumstances but the specific circumstances have never been revealed because the e p a up through this day has always treated p as confidential business information and therefore a party wishing to challenge that decision had no basis on which to determine what the proper venue would be where the case should be brought mr mind you say the e p a has reserved the authority to issue replacement grins and i just want to after compliance exact outlining here it was a little bit different it wasn't just i'm retiring winds that still had some useful life on them as if you will by replacing rims that were long since expired are you aware of any statements that he has made reserving the right to do that and or any other situation in which the pm had done that replaced rooms that were transactions these adjudications as confidential one would never know whether expired returns had been replaced whether retired rids had been you in the public in a very difficult position in terms of getting information so your answer to whether you're aware of the agency having done this will be a replacement rather than just a retirement if you're not aware of  it did go on record finally and affirmatively state that it was its policy to retire to replace retired  as part of its remedies in addressing these small refinery exemption educations and what were you referring to there and i'm referring to the e team proposed rules last preamble that just very recently was published in the last believe several weeks so you would petiti for review of that policy i beg your pardon so you could then petition for review of that policy or by after participating in the moment to correct so how are you participatory you going to they say they've been doing that in the past so reaching back as far as twenty ten which was when the first small refinery exemption rulemaking it was rich but there was never any specificity revealed in terms of under what circumstances it would choose to do so you understood the even back in two thousand and ten that they were announcing that they had the authority to do exactly what they did in these five cases well i would say they stated that they may exercise that authority of course in our pleading we contest that the p a never even reaching back in eye to be clear i believe in twenty ten what the position of the pierre chickie later was that it reserved the right to  r sorry the organization or the working group that you represent yes is there any law that you can refer  that gives you the capacity to sue i gather this is an issue that would be in this case governed by d c law and i'm just not i didn't see anything about a working group having the authority to represent it the parties have come to gather and formalize the regime to pursue the way they have agreed to proceed jointly for the purposes of challenging this particular  has intervened in other similar perceiving is raising the say these very same issues and has also file to in your briefing to e p a publishing on its website relatively recently information about the actual number of small refineries and the  volumes of the exemptions that were being granted on on a case by case basis after the blanket exemptions expired and i think you referred to a september twenty eighth team is that things might have been refiners that qualified for the exams and in the early days can qualify for an extension make several references in your brief but that sound like they're raising that issue but i don't take you to be challenging that here not only the small refinery exemption regulation but also the associated preamble and other statements made by  existing so so just to cut through it e p a has over the years changed its its policy is interpretation is construction of what extension means in this context three times initially at the outset the notion was that you had to already have been granted later change that position to say that party could reach back all the way to believe it's two thousand and eleven that would constitute an extension of the exemption so there did not have to be  continuity and you could have satisfied the requirements in one year and then come back the following year and as an extension  require a year by your selling a qualification it just required a showing qualifications that the six at the outset would you have to make a greater showing to get an exemption we do have to show that you in fact that the criteria independent criteria of a small or a fine are for every year under the blanket period and they said actually comments showed us that we shouldn't need to do that as long as you are in that group you don't have to make it here dish ole case by case and then now the position as you and forget the niceties prior qualification you whatsoever that's my understanding ok thank you very much out with the second part so let me start with that he said that there's been a dramatic increase in how these extensions have been granted and we got into what happened in two thousand and ten rule and whether they knew about what was exemptions would be granted even after a standard had set and the e p a repeated that in numerous subsequent will makings and we have the j cites in our brief that is not new information the to the extent counsel says that those numbers have increased over time that is not the kind of new information that would justify reopening challenges to the rules that is implementation of something that they knew about they could is i think your question was well put to counsel that's not clearly raised in this case they do kind of mention it but their argument is not that these exemptions were improperly granted because they were not an extension of a prior exemption they were a new exemption and in fact that's not the case so that that argument isn't presented here at all i believe that's right these these exemptions the five exemptions that issue were i believe they were extensions do we know that and there's a difficulty here the lack of public access to the information record that these exemptions were sought timely e p a acted on them timely in the sense that it was before the compliance period deadline to be reached and then the delay comes in when that was when i was challenged in the time circuit the part of the case that deals with challenging the replacement right i'm talking about the other part where they're saying the volumes are being undermined by the e p a is policy about the circumstances under which that they were searching that it was an extension or that actually in the sense that the statute uses the term it's an expense as the ten circuits opinion describe how they would have to look back that i don't  ask you about the reasons just for one second thing i will say that your argument about this isn't exactly clear but to the extent they're making an argument that the reinstatement of the renames rib a national policy is this or if they were they were unable to describe any statement of a policy about reinstatement of the reasons is there any statement other than in these has already retired to comply turns out they get the exemption yes that's happened and that that is not new here but the narrower question of has he ever actually taken the second step and saying on these facts we're going to give you replacement runs because there's a decisions and this is the first and only time that you could go to the u p a took pains to try to explain why it was back specific to this case is not just that these rings have been retired and now at this moment that doesn't that that's actually not mine i mean i'm interested in that but that's not what i'm trying to get right so there's this guy and the other then you question the benefit right so there are distinct parts of the case so that the fact that it's new is relevant let's say it's relevant to whole farce we say the fact this new if anything should be considered and whether it's grounds or rising slowly out on your venue the test is different under venue this is not they did not announce a policy in the sense that the argument that they've said in in fact specific circumstances we're going to do something that we've never done before and that she's replacement reactance we done it he said are you saying that they're never going to do it again i can't say that they're going to do now because they have a status that was that they can do it and maybe this is the first instance of it but that's now on the table who are there in terms of the tools that they used to create remedies or if it's local regional took ability and they show why effects and e p a makes a finding and publishes it what they're trying to do is say there's nationwide a fax and the court should make the its compliance obligation while it litigator did whether it was wrongly denying an extension of its exemption and that's the way to remedy this kind of situation or give it a break on its future might have nationwide effect but that's a different part of the statute and the second answer is the court case was with from from dalton dalton and other cases lee says that's the task that you do not look at the effect of the action you look at the face of the action and that's exactly what patricia is trying to get around you look at the face of the action it's these five small refineries get replacement rooms and the exemption the effect of that maybe it's got nationwide scope need it's got broader scope of facts i mean the practical effects but that's a different part of the venue statute and you can't conflate the two and dalton in the other cases say you can't in fact we've seen the seventh circuit change its mind on that the seven circuit in madison adopted essentially the test that this year is advocating and then in southern illinois said no we're going to join the this circuit and other circuits and question to ask of you given that you represent the agency but what is that something to challenge will that be subject to challenge what's the closest like what's the right way for a participant in the industry t i can't give you a concise clear answer because some things they might be out of time to change if what they're really complaining about is just the next dramatic expansion of how many of these exemptions are being granted which is how coun started his argument that's that's implementation of the program that was announced years ago and just because they didn't challenge it at the time doesn't mean that there has to be somebody somewhere somehow they could challenge it and there's a guaranteed right of review that if they just did a b and c they can sounds that decision because it might just be there on a time it might be a month and not maybe we're not following each other the the argument about the vast expansion even of the thing that you announced in twenty that it's application in the new world for twenty eighteen or a new rule for twenty nineteen or over twenty twenty can be challenge d you to come up you do have to come up with a new rule there can be a petition for review of that new rule and a classic arbitrary and capricious challenge is circumstances have changed in two thousand and ten you thought there were only going to be three exemptions right and now there's fifty times have changed and it's arbitrary and capricious to continue the old rule that's clearly a timely challenge for the future not the past but it's a timely challenge for the future but there's another so there's another side to that and this has bring that because because if you could continually challenge the same thing over and over over to each time it's applied then they argue he would only be able to do it if the facts and change significantly tenth circuit yes the tenth circuit so it can be challenge there these particular ones well if the tenth circuit were to rule that this remedy is unlawful under the statute you would have a precedent making practice there was a bit of a moving target about what exactly are they challenging it was worth to be clear what exactly is the issue because for instance it did it does make a difference whether they're challenging the actual exemptions or the replacement re then they have clarified that so we wanted to be clear about which rules they say are reopened because it matters what they point to as the alleged new grounds you know if you doubt if you need to know what's be very much more big picture question of what is the need for and purpose of the small refinery exemption why is it given that a lot of these small refineries are actually owned by larger companies and it we're just talking about something that you have to do some bookkeeping about and pay some money on what what is it what's what's going on on the ground that's something that my colleague that represents smaller  could probably answer better but i think that the the broad brush answer is congress made that determination that there could be hardship there could be a disproportionate impact on smaller fires that makes it hard for them to comply with this program and gave them an offer but you can't add anything more representing the agency that had been there since the program i mean it seemed like it was made to get sort of bookkeeping and administrative approaches up to speed because there are a lot of statements both in the in the record about small refineries having waiting need for this and then they would have to report when they'd be ready to to not have the exemption and it was to buy the rims yeah well i get up i'm i'm not well positioned to say that i might my guess is it's probably a combination of transaction cost and actual economic cost purchasing the rooms but  about their financials right now what's what's the need for such confidentiality about which smaller fires are getting these and if there's not some basic information that the public could have to monitor be aware of what's happening the way that it is it would be as regulations that have to treat companies with business information and the way those regulations work is that some basis of mis information that the submitter claims  confidential business information e p a treats it as c b i until e p a can go through a process to determine whether it is or not and so that's why when you look at the unsealed the redacted portions there's these big could make an actual decision yes that is or no that's not so we treat it all as ok we'll hear from an interview i thin to the court by morris or entertainers as it's happened thus far i think it's critical in order to really understand going on the case to really identify what the final agency action issue is before you can take any further steps if what they are challenging is it policies and broader policy as has been started thus far they haven't identified finally agency action for a broader policy of increased rain amounts or anything on those lines and as the court said in fun for animals you don't identify or or the court doesn't address policy changes in the abstract you need something tangible in order to look at so with regard to that they haven't identified it it's not in their petition and hasn't a rose anywhere in the briefs as to what that policy is in a final agency action and i think on that basis alone you can set the policy aside jurisdiction in order to review it with regard to the individual exemption order is at issue as you stated there are other reasons why those don't belong in this court first we'd say there's no standing they haven't shown or connected with evidence a concrete injury traceable to these orders for any of the members edition so i think you should put your time into the same arguments that were made by the  respect interest diction and with respect to venue dalton is very clear that there are only two ways in which men use proper in this work either on the face of the final agency action there is that there is an actual expressed finding from e p a that is published that says they're nationwide school and the fact we don't have that either so for venue purposes he's ordered long in in the tenth circuit if any what about the treatment of exemptions first of all i'd like to hear from you what what is the animating concern for these exemptions and why the confidentiality so the why i think the full scope of competition clearly anybody concerned for these is in the fuel market you've got a variety of different kinds of entities competing against each other for the same fuel some are rather integrated and they can blend so if you go down the process in terms of how use you produce the fuel but then the rains are separated and are bigger import bigger refineries smaller refiners both of them are in a position of having to account for you know having to have these credits for the selling and if it's just a matter of buying something passing the cost on to the consumer recouping it from someone who buys the brand back or you know i just don't see why the differential small refiner fuel out and so they have a lot of things and they suffer from very tight margins so it's hard for them to be profitable but they do have markets they need to service therefore this type of exemption is really necessary for a lot of them in order to carry on service their markets and compete with a much larger and more integrated this really is they can easily go and have excess rents and and carry on with really no impact whatsoever from the program and why competent challis would it be a problem for the participating or fineries their identity and scope of the extension granted for public depending on the  figuring out whether or not it is very sensitive that is it economic hardship i understand that internal financial yes you know viability of a firm right but what about the results of these decisions which have been  know how many exemptions the agency is granting before you request or the sentence that says granted on every there is a petition for review in this court filed in the advanced biofuels case that's eighteen dash one one one five was filed may first twenty thousand are you familiar with  in the grassley slander is that this that's the same kind of argument you're making here so in the end that perceiving what is being challenged  also being argued there what what we're arguing is that the tenth circuit never addressed in its decision anything about grants what the remedy shouldn't you understand you not challenging the standard by which a decision is made us correct i understand that but you're challenging the retroactive application of that standard in an  today granted for the past that rock the standard in the underlying proceeding i thought you were challenging here the notion that at any time when you knew so that's file may first twenty thousand so is it the case that by may first twenty team it was already know that they were granting historically unparalleled numbers of exemptions retroactive i believe it was make thirty bir challenging the time it's a different question was a tender i'm sorry i don't know i understand what they're challenging but they knew about the retroactivity by that stage the question of whether it's a grounds ar with respect to the rig the very first time that the public became aware that it was retiring expired r out just for the moment all the other arguments in the case that the arguments about at any time about the retroactive application about not renewing volume that have been taken that was all known to extent there was a sea change in that respect that was known by may first twenty thousand because closely related party was being in the same case because the language that was  issue essentially reserved here if they basically used the language we may know no i understand that's why you didn't think there was what happened in twenty ten is relevant i hear hear you're talking about the facts that you're concerned about the huge number of young paralleled number and yes filing rising subsequent to the will make prior to it already arisen by may first that's why question well we've tried to focus the grouse arising on the specific issue  circuit current oil where the same relief is being sought so the very hypothetical that you pose to water is indeed present  your honor let me just say one more thing which is that also the issue also arose in the context of the challenge to the twenty nine eighteen r standards and in that particular proceeding to the position that this issue of whether to have a party to unretire renders was outside the