contrary to law but that would have far reaching negative consequences for both illinois environment and for the integrity of its delegated clean water act from an program on the substantive question at issue on this appeal which concerns illinois v a s obligation to require best available technology to control the discharge of mercury from the diner g advantage plan to the illinois river the respondents are effectively staking out a position that any new technology that comes along for use at a coal fired power plant no matter what it is no matter what it does and most importantly no matter how much toxic pollution pollution it may generate gets a creek passed from technology based regulation under the clean water act and this despite the relentless and very clear requirements in the clean water act the pollution control measures comments received from the public in issuing a permit the respondents here want to render that obligation in itas i e p is regulations permanently unenforceable across the board and this is guidelines regulations work is they are serial sarah there is a new one that has been drafted what we're talking about is the requirement of what happens in the gaps in the gap between one regulation and the other we have one that's proposed it will it is slated to be finalized this fall and that means that three years from that day in other words presumably september of twenty eight team those regulations will kick in now the problem is you have a current permit that allows this just charged with out technology based regulation to the illinois river that permit will be renewed in the year two well there will be a renewal application rather i should say in twenty seventeen which is before that regulation kicks in now historically in illinois there is quite a long gas often years sometimes as long as a decade before a new permit is actually issued so you have the problem that this permit that has been issued today even though there is a new regulation coming on to be effective three years later you will have a long period of time when you have this uncontrolled through technology based regulation discharge to the illinois river and that is exactly why the clean water act regulations specifically yet are the regulation here forty c f r one twenty five point three requires a piece by case of valuation when you don't have coverage for one of these glad you brought that up because there's an important distinction here you have to keep in mind i want you to bear with me because this is just slightly technical but as you may recall there were essentially two different parts to work here one of those parts had to do with what we call water quality based standards and the idea is that the permitting agency is supposed to look at what is the current water quality and what is being discharged and then you make a determination as to whether th charge is going to harm to our quality now we will freely admit we did below that if you're going to make that determination the first thing you need to know is what's in the affluent and in that sense what we were disagreeing with below was one how you tell if you have evidence from another plant is that question we said it was they said it wasn't we have an appeal that so that was an issue below the decision was with respect to these water quality based limits yes you need to have monitoring and monitoring makes sense now watchful notice in the board's decision below is on the technology based asked that the board didn't say anything about monitoring and the reason is because monitoring has nothing to do with that because it's a totally different legal standard when you're dealing with technology based limits the the requirement kicks in when ever there may be not is but maybe a discharge that is larger than can be controlled by existing technology that is clearly met here we have a situation where regardless of any doubts as to exactly how much was coming out the permit in agency did conduct a review as though they were going to be a discharge they described it as minimal and not all that significant and nothing to worry about which of course concerned us because mercury mercury is regulated in the parts per trillion to be that as it may the point being there really isn't any of th and you don't get to address t bell's technology base with limits of monitoring they said that in the tennessee decision that i pointed out to you the applicant had said well really not quite sure what's coming out here and he said no and the technology base limits decision the only question is whether the pollution is coming out at a higher level the end then can be controlled and here you've got a situation where in the record  there was a sensually acknowledgement by illinois e p a that it was technically feasible to reduce the discharge to zero because what you do is you put it in a dry ash landfall and then there is there is no discharge by definition and in fact in this twenty thirteen effluent limitation guideline e p a confirms you can reduce the discharge to zero so clearly you have a situation where not with there is no need for monitoring monitoring isn't relevant because we know that the pollutant maybe discharged at a level that can be controlled down to zero so i want to move on a little bit to what i think is a very important point here which is the nature of the technology that we're talking about  fundamental question issue when we're talking about this question of whether the activated herb in injection a c i technology that's being used to control mercury at the diner g plant the fundamental question is whether that is something that is covered by this one thousand nine hundred two now put into turn specifically of the regulation which at one twenty five point three c states that you need to do it case by case limit for any aspect or activity in addition to any pollutant that's not covered the question then becomes whether a aspect or an activity that was covered in one thousand nine hundred two or is it not now the answer to that question is really very straightforward given that a c i technology would not terms of this regulation and i want to stop here and emphasize because this is important that the court really does not need to go beyond that basic logic in order to the scientists you don't need to additionally consider the questions having to do with scrubbers those be helpful as emphasis but you really don't need to go there because right there we have this fact that e c i could not have been covered because it didn't exist now the reason we're still talking about scrubbers here today is because the board it the board specifically relies on the reference to scrubbers in that effluent limitation guideline as a basis for its decision  this reference really reflects some pretty fundamental confusion on the part of the board as to what exactly we're talking about here which in turn is a pretty fatal flaw with the board was essentially mixing up this activated carbon injection technology which is very new and it's designed to collect mercury and hence creates a very large mercury waste stream in this case to point six pounds going into the ash on which then discharges to the in this context is it in the process of capturing sulfur dioxide it also pulls in some mercury so there's a little bit of a mercury discharge but these two very different things now this is a big problem with respect to the decision below because the board based explanation how a reference to scrubbers could bring in a c i now given the significance of this error i've noted that respondents really have not relied heavily on the board's specific reasoning there what they're really presenting is a rotter hate on the concept of plain language which is the same one incidentally that the coal plant defendants raised in the catchall and includes everything that is not otherwise regulated since therefore any new technology nasha sara lee falls into a catchall therefore because it is part of that this definition it is regulated under the  render the key provision here one twenty five point c three meaningless because that provision clearly contemplates that there will be aspects of an affluent limitation guideline for me that don't cover certain aspects or activities that the argument being proffered here is no absolutely everything is covered across the board except these tiny limited exceptions and one would have to have a pretty high level of evidence  text that wiping away a regulation in this nature was intended but what we have when we look at what he has done and said is really pretty much exactly the opposite intention it was very clear for me a statement that they intended not to include at least some aspects of coal plant operation in this regulation in other words that just because this low volume ways catchall definition existed that didn't mean they were regulating the toxics that might fall within it it just is a definition i will get into in a moment if need be e p a statements about the exclusion of scrubbers but the point being they have said many times over the years that the not needing to incorporate everything now i would also point out it is important to know when you look at the plain language as a whole as i think i noted a minute ago this regulation does not that one hundred eighty two ye contains no regulations for the toxic elements of low volume waste they don't say at best available technology limits which is what you have to do when you have a  didn't do that they didn't regulated toxic they did not regulate toxics arguably the plain language is really pretty clear in exactly the opposite direction of what the board said the plain language indicates the at mercury from pollution control equipment is not regulated but at the very least it's very ambiguous and you have to turn to what e p a has actually and yes it is in fact a key point because the question there is what is considered mean and what is the significance of the permit writers handbook because that's what they're referring to what they're essentially saying there is that the permit writers handbook which provides very general guidance for how you determine what's covered has as a piece of that guidance the question of whether or not e p a considered  tooth important things i think to keep in mind there first of all of course it is broad general guidance that you use when you don't know whether an e l t cover something here we have a clear statement from that no these aspects of  plan operation are not covered so you don't need to read any tea leaves by looking at this general guidance but i think the more important point even is what you're really saying when you look at it that way because here we know it's very clear in our briefs and i won't belabor a has said again and again we did not mean it however he's aspects we meant to resume are and they're not covered so do your case by case what you're really doing is you're setting up a gotcha scenario for the agency what you're saying is even if that was your intention you decided for whatever technical the scrushy narry agency reasons that you're going to look at something and say we are going to reserve regulation of that and not cover it too bad aha you thought about it you don't get to do that therefor you did cover it whether you wanted to that is a very serious form of undercutting e p a s discretion and i don't think we want to go there i think that what you want to bear in mind is that this question of whether he may consider a particular pollutant is only the very beginning of an inquiry where you don't have more information because first of all there in mind that the regulation one twenty five point three c doesn't just talk about considering pollutants it talks about considering aspects or activities of operations so even if you know that they thought about a blueprint the question is that they consider it in the context of this particular aspect or activity because as we know with a cia some activities are going to generate vastly more of a pollutant than other activities so even if they considered mercury in the context of scrubbers in the small amount that generates they certainly didn't consider a c i as an activity so that's the  beginning and then the other part of the inquiry is what did they decide when they consider it they decided that regulation was not necessary they may have in many cases e p a and that is they did here will look at something and say that pollutant doesn't exist or if it looks like it that it was laboratory error or that pollutant will be controlled when we control this pollute that's one thing they can do and they consider but what they can also say is what they actually did here is we've considered it is that we the technology g for controlling it is still emerging it is not sufficient right now to control it to the place where we need to control it therefore we are going to reserve regulation and not very clear that that is exactly what they did now if there are no further questions i don't know if there are on the a c i technology issue i would like to move on to the second s regulation now before getting into this in detail i want to talk a little bit about that the significance legally and otherwise of the public comment response for firemen and public comment is of course central to the clean water act it's framers talked about the need to make decisions on what they call a fishbowl like act serious this is front and center and a response to public comments is a critical part of the response to comments from firemen for at least three reasons and one is that if you require an agency to respond you know that they're not going to throw the comments into the round file secondly a response to comments requires an agency to think through its position in doing so it may well change its position you really have to assume that or you are essentially saying that the response the comment process is is just sort of window dressing and it also enables decisions on appeal because you know the agencies zisha and you can know then whether or not you need to appeal and if so how to frame it so there's a very real judicial economy come on and they're now dying  essentially responding to this with a claim of well no harm no foul because the issues have been briefed and everybody therefore knows so you know we can go away we're going to hear a couple of real problems that first of all as i  pointed out there is very real harm associated with not receiving a response to comments both in terms of the possible change in substantive outcome and in terms of the appellate process but i would also point out that even if you take it face value there is a real what they're really arguing is moot and if you're talking about movements then you're also talking about capable of repetition and yet of being review this is a situation where the same problem is going to come up again and again with the same people the environmental community we will not receive response to comments and yet when we appeal the appeal will be briefed and the issue will go away so one way or the other i think that we need to deal with the here and then finally just to touch on the state's argument if i could it is question did not represent an increased loading to the environment the testers contested that issue before the board the board sustained it and that was not for their appeal it is thus no longer a dispute i submit as to whether or not these discharge entailed in increased pollution they do not with that point made i'll turn to my first argument the part of the period fundamentally agree that a central question before you is whether the current theology applies to the band of station discharges that issue is the answer that question is yes it is undisputed that specific issue at hand a given situation the two thousand and ten manual states in bays and relevant part at section five two three two titled identifying the need for a case by case t valves as follows when effluent guidelines are available for the industry category but no effluent whether the metals in question were considered in the development of the algae as detailed in our brief is beyond reasonable dispute that e p a considered these metals when it developed the algae as reflected in the preamble of the algae now i'll also submit that because they are kept because the the way to question to catch all nature of the low volume ways that condition is written broadly including but not limited to it is forward looking at her fifty eight i believe and everyone i've looked at and maybe fifteen or twenty has no casual like that this is a situation where e p a has provided for for a low volume ways to be expansive but moreover about there is no reason to expect that that process of value here has some has to do their own was somehow superseded in time the process of the foregoing federal regulations and also note that got some guidelines are supposed to be periodically reviewed and updated as technology has changed they will update them and provide better information salary thirty years there should be no bending the fact that it took a long time in this situation i will that the reason five letter always free to revise issue new elegies and with back to helen memo i'll point out that the two thousand and ten manual is more recent as is the two thousand and fourteen written five comment letter and the two thousand and thirteen proposed to first there's no reason in this case to rely on after the fact administrative commentary like the handling them about what the u s e p a intended to do with this regulations in one thousand eight we have a clear regulation and clear historical facts and i'm a journalist for you but here's what i think we know what the regulation is extraordinary broad and comprehensive low volume waste water is a catch all and it covers everything including every stream of feasible to get mercury out and so they say we need a new rule but that's just exactly what's happening right now everybody agrees that the u s e p a is working out has drafted and in fact has published  proposed new regulation they propose it in two thousand and thirteen were given to understand that they probably plan to buy i think it's a quarter again defenders of wildlife person and understand and when that's the case if that's the case and when those come on line that we would just start permits accordingly so you're honest a lot of time if i have one minute or are just one and you're honest if if it were the case that it's relevant to know what the u s e p a thinks today right that we have to take that up to the minute we know always how suggested we know in this case with respect try to clear up some things that have been said here first of all mr dave began by making the point that the board purportedly found that there would be no increase discharge that simply is not accurate i would like to call your attention i won't read it all here but the page thirty nine of the board's decision six eighty six in the record but what the board clearly said is we don't have enough information but the board did know that the i p a had acted on the assumption that there would be an increased discharge of mercury so what you have here is exactly the situation that the regulations and issue are trying to address or you may have an increase just charge of a very toxic pollutant and you have a long gap in regulation where you don't have any regulations based on pollutant was considered as opposed to an activity again i can't emphasize this enough the need to look at the regulation itself was what mr di was quoting from was this handbook which contains general guidelines for permit writers and thinking guideline and case by case to bill specifically when promulgated effluent limitation guidelines only apply to certain aspects of the destructors operation or to certain pollutants other aspects o activities are subject on a case by case basis in order to carry out provisions of this act e p a in these regulations could not have been clearer that where not only don't cover of a pollutant but don't cover certain aspects spec or activities that you need a case by case to bail in the gas to deal with exactly the situation where something new comes along that is not regulated in the e o even though covers the industry now why would you a c p a approved the permit that is an interesting question what we have here is a situation where you a c p a was simply silent and quite frankly you could be perfectly honest that happens a lot is that u s p a doesn't always catch every issue and that's why we have these permit appeal processes but i think what you have to do schemes they were entirely silent on this question as to whether a case by case technology based limit is required for mercury now what you have here is a it's silence in the sense that what you have is a hierarchy of a story you've got a regulation that clearly says a case by case determination needs to be made for something that is not covered and then what you have is statements b scrubber waste waters because e p a lacked the data necessary so they were very clear that they did not mean to cover it at the headquarters level now the fact that this was missed at the regional level is really not the key question here the key question is what does the regulation require and whether it was done agencies missed things all the time and that is why we have these permit appeal processes to see whether the law was complied with and clearly it was not here  now i would point out that this regulation has been characterized as forward looking and comprehensive in the law of course we have many situations where regulations are designed to be comprehensive whether or not something has come along or not this is not one of those situations if you look at the the regulation here at hom templates circumstances where an ass fact or activity was not covered because it didn't exist in the twenty thirty nine draft us e p a says exactly the same thing on one hand they say sure this falls within the definition of low volume ways but that doesn't mean it's covered because they describe a c mercury laden ways as a new way stream that simply was not dealt with in one thousand nine hundred two and that is why we have one twenty five point three c is to address situations like that where something was not covered and we need to protect the inaccurate to say that we did not raise the question of whether our comments were significant or not we most certainly did it is clearly when it is in our briefs our main in our reply brief and i would add that even the or it did not take seriously the notion that an issue that took up fully one third of our very detailed and elaborate comments and was supported by a lot in fact laid out at great length was somehow not significant we laid out the standard of review that we still