section one seventy two requirements those requirements result in pollution reduction to get you to attainment and to stay there until you can replace them with a plan showing that you can remain in attainment for ten years requirements and non attainment area requirements like one seventy two cannot be suspended upon attainment determination sections one of seventy three and one seventy five a are explicit that an attainment determination by itself is not a guarantee of lasting attainment so i will quickly address claim of what the bay area must do and i just understand one point with respect to the new eight hour rules my understanding one hour rule still remains in effect for the bay area but that there's a challenge in the d c circuit as to whether there can be a suspension of certain items under the eight hour rule that's correct there is a challenge in the d c circuit which is the court with the exclusive jurisdiction to hear challenges to rules like that and the challenge to the eight hour rule is as to the revocation that rules purported revocation of the one hour rule and the one hour rule as it stands the  the eight hour rule says that it will be revoked as of june of this year fifteenth two days so the question is why are we still here and the reason we're still here because even then e p a s own rules say that the team a demonstration and reasonable further progress requirement which is the and you won't incremental reductions requirement still remain the eight hour roll looks to the obligations set forth by the one hour rule to look to it to see what these areas that are you not a team in for both the one hour and  eight hour must do ok so let me just when it is it's probably quite clear to all of you having been in it for quite a while but if you think eight hour ru is retained and is a legitimate rule does that mean we wouldn't need to determine the first part of your challenge about the rounding or does that still remain in effect under e p a s own rules if the rule were final the eight hour rule final and there were no challenges to it even then the first part of the case remains alive and the reason is the suspension and determination was based on the att seventy two requirements we win so we win either way if we win the first part on attainment determination that he pay shouldn't have rounded this expansion shouldn't have occurred and the bay area would still have to do permitted the rounding and however we might construe the statute so you would lose some part one of your appeal you argue then that you still shouldn't be able to do these we could you could defer to the rounding then we would go to the suspension issue if you were to say that you would defer to e p a there are still arguments that would save us which means that e p a should area would still have to do an attainment demonstration under forty c f r fifty point nine zero five a and it would still have to do reasonable for the progress demonstration under the same section under the eight hour rule so bay area the consequences to say that we're suffering even if you have the eight hour rule is that the bay area is not required to do what it should have done and because the eight hour rule looks to one hour rule what obligations areas like the bay area has that are both in an attainment for one hour and eight hour we must decide the suspension issue to see what the various next step should be unclear just saying these suspension issues whether they should let the bay area out of these three particular reason the eight hour rule does that is very important it does that because the eight hour rule believes that the one hour rule everything you have to do to get to the attainment for one hour contributes to the not right yet before the court because once the court gives us the remedy we ask for which is the vacation of the suspension if you then has to go decide what to do about that and what to order area to rule not to order contingency measures that's another decision for another court so let me now address d p s decision that the various point one two three design monoxide but does not refer to rounding at all for ozone and that's in the record at eighty eight so the statute directly speaks to attainment of terminations using point one two one as the cut off any ph should not have rounded down to determine attainment moreover even if not mandated the court should still find out if he is rounding which results in a non attainment cut off point one two five is an impermissible interpretation of steps in one hundred one first because of section one eighty one itself and second because the standard itself it forty c f r fifty point nine uses the terms quote above point one two not consistently used to point one to five and of course as this court has recognized in the past when agencies do not use their own rules consistently it's no deference still make reductions if the bay area has attained well that's because the because attaining doesn't mean that you've gotten there through the real reductions that guarantee that you will that that you will stay there during worst weather conditions attainment demonstrations are required to use worst weather conditions and that's at appendix w nine point three zero point one point one and because it's the reduction real attainment that's why the suspension was illegal those reductions were demonstrated to be necessary for real attainment and an attainment of terminations without more does nothing to change that assessment being in attainment is not equivalent to being entertainment area the statute is explicit that having three years of clean data is insufficient to jettison section one seventy t get there and stay there requirements that congress mandated for areas that cannot show just yet that it will remain or they will remain in attainment for at least ten years that's the maintenance plan attainment areas must have under section one seventy five a and true that they've kicked the non attainment problem with real reductions on the books that's the permanent and enforceable reductions requirement of section one seventy three the statute does not say that appoint a teen in clean data for three years now on attainment requirements like section one seventy two requirements can be suspended there's no  then the e p a comes back and threw for each of these three suspension items like so why those particular things are not required in their view why wouldn't we defer to the agency on that point because of the combination of one for you can waive them and substitute them with a maintenance plan showing attainment for ten years and then ten plus more years you have to find that the area has attained it because  permanent in a portable reductions and what if you saying basically is that if you look at the statutory language for that somehow those requirements like reasonable for the progress and attainment demonstrations are not said even if you have an attainment determination or an attainment finding you have to make sure that all of the reductions that you may need serve you through the worst weather conditions and economic conditions if you hour ozone standard second based on the fact that the bay area is in attainment with a one hour ozone standard e p a reasonably suspended three section one seventy two state infiltration plan requirements which by their own terms rule will no longer be effective in the bay area as of this wednesday june fifteenth that would mean that the entire case would be moot but for the fact that there are anti backsliding requirements in the implementation rule and the anti backsliding requirements and relevant part say that speech then you had in your step attainment demonstration requirement and and the reasonable further progress requirement in your one hour step those will remain requirements of your eight hour plan however the section one seventy two c nine contingency measures provision does not apply no matter what after replication of the one hour ozone standard this means that the issues petitioners raise this with respect to that one provision the section one seventy two c nine provision are now moot because no matter what this court were to say about that provision its opinion would be advisory after this wednesday the bay area will not be required no matter what the outcome of this case to submit one seventy two c nine contingency measures they are not part of the eight hour rule implement and have backsliding requirements and the one hour standard has otherwise been revoked would remain a flexible eight hour implementation rule and tied back sliding requirements does that make sense that forty c f r fifty point nine it is a two just standard it is point one two parts per million it is not a three digit standard and the standard is met if an area average is no more than one exceeds per year over a three year period now because air quality monitors do commonly expressed results in three or more digits it's necessary to apply some sort of rounded convention to determine whether a particular monitor reading is an attainment with a two digit standard and the rounding convention to be used for this purpose is clearly set forth in e p a jains issued contemporaneously with the standard in one nine hundred seventy nine and which can be to force around it down two point one two and meets the standard are reading from point one two five point one two nine is rounded up support one three and does not meet the standard and let me emphasize that the one nine hundred seventy nine guidance it's been consistently applied for twenty six years and there's nothing in there or record that reflects that has not been consistently applied by way of further explanation with respect to what the record in this case reflects there are twenty four air quality monitors within the bay area and none of those twenty four monitors average more than one exceeds per year over the three year two thousand and one to two thousand and three period and position are basically concedes that twenty three of the twenty four monitors reflected attainment they're taking issue with one reading on one day over that three year period from the twenty fourth monitor which was a reading at point one two three for the reasons i've explained e p a appropriately and properly routed that reading to point one that gets into a very complicated area of implementation of the eight hour rule but the supreme court did address that in the american trucking case and basically said that the court if you couldn't ignore that table even though the eight hour standard is totally different number but had to figure out a way to as it made sense incorporate that table but that's an issue that that is under review in the d c circu the concept that the design value that appears in that table is used to measure the relative severity of an air quality problem in an area that's already been determined to not be in attainment but the classification scheme used in that table is not used to determine whether in areas in a tenement in the first place let me let me stress this the concept of a design value is not part of the standard itself it's computed differently it's used very different statutory purpose so basically  it's mixing apples and oranges to talk about the sign values in the context of the nineteen minutes it's from a nation and doing so direct attention away from what is really a very straightforward regulatory standard that you create properly applied here three section one seventy two requirements at issue here because by their own terms they apply to areas that are not monitoring attainment with the standard the purpose of these provisions is  aren't monitoring attainment to adopt control measures to come into its hammer well here that there is going to tame it and it is important and i just looking at these provisions to look at their actual language we agree with that and to look at the context of the language understand the children's argument is that you know obviously there's sort of a razor thin aspect to attainment here in terms of the way this is determined and attainment under the standard doesn't really guarantee a longer long cavity of the attainment because of the difference between the team it doesn't nation and the finding team and and so my understanding is that these these requirements are hopefully to get you to and attainment designation ultimately is that correct that's correct there so if you have just a finding of attainment but you suspend these requirements aren't you in effect undermining the whole scheme where you're trying to get to a to an actual attainment designation not at all your honor nothing in the suspension nationalists challenge  relieve the need for an area to submit a maintenance plan to ensure long term maintenance of the standard at the time it submitted its redoes ignition request pursuant to section one seventy five a there are different provisions of the act that are geared towards long term maintenance that's the maintenance plan and suspending these particular requirements doesn't relieve the need for an area to submit a maintenance plan along with its re designation request that maintenance plan among other things has to corrected so maintenance still is a part of the statutory scheme here turning back to the language of the provisions at issue first there's a section one seventy two  attainment demonstration requirement that requirement provide simply the state implementation plan shall provide for attainment of the next well or an area is already in attainment almost by definition the requirement no meaning no purpose once you've already attained you don't need to demonstrate how you're going to attain turning now to the section one seventy two reasonable monitoring stations is right by the they bridge and let's assume that four days in a row you have a high ozone count well above the permissible levels there's no way you're i should note that this does go beyond the record but you probably should know that the region has been entertainment for the last year and a half but moving on to the section one seventy two c two reasonable furthe progress requirement reasonable further progress is to find such annual incremental emission reductions as are required for the purpose of insuring attainment so by definition reasonable further progress means annual incremental reductions that are needed to come into attainment wealthier in attainment you don't need additional incremental emission reductions to come into a team and by definition i honor turning next to the section one seventy two sixty nine contingency measures provision that provision is also expressed in length to whether in areas monitoring attainment or not section one seventy two c nine provides a contingency measures are measures to be undertaking it's an area fails to attain the next well if an area has already attained an x by definition it doesn't need to rely on contingency measures to come in to obtain and it's entertainment know there are a host of other section one seventy two requirements that are still a flexible that the language is not tied to an area as a tenant status but if we were however this might come out of we would just say well any of that we don't have to r contingency because it's moot in two days but then the challenge in the d c circuit is successful that you can sit and various of these requirements what would happen well i think your honor that in that what i would say to be a very speculative scenario petitioner could have a remedy potentially could consist in the agency to change its mind and if that petition were rejected then they could challenge that action but in any event this court's jurisdiction has to be premised on the facts before it at this particular point in time it can't be rest on speculative future administrative and judicial petitioner could effectively create a judicial remedy by petitioning the agency on this issue and then if that actually petition were denied in ministre tiddly they could challenge that action let me add that if you're if you're speculating about you know future judicial developments it's also entirely possible there are industry its missions challenging that rule that the court could say that those and i backsliding requirements are in their entirety are impermissible stayed pending administrative positions for reconsideration let me just also briefly comment on the full force and effect language in section one seventy five a which petitioner relies upon that language basically does nothing more than clarify that when you have a designation request pending you still have to comply with applicable super quiet months while you read as ignition request is pending the full force and effect line which doesn't tell you what vitality any particular requirements may have once you're monitoring attainment and the central point we're making here is that in this case these provisions by their own terms don't have any vitality when you're monitoring attainment i mean i spent essentially to say these provisions tell a full force in effect this that they take the question of what force in effect they have when you're monitoring a standard and e p a recently suspended three planning requirements that by their own terms do not apply to areas that are attending the standard in this regard this is not a case of first impression the tenth circuit has previously  quantum into table one for classification with the prescriptions in part two of the act and the court held that the implications for the eight hour is that it could not ignore the entire section of some part two because  question was limited there by congress so that portion of the case was necessary to the holding of that case and what is not telling you is that there is no gap in the statute