abeyance pending ongoing settlement discussions and for that reason we will not be addressing those particular limits that were addressed in our brief i will be addressing in introduction i'll be addressing petitioner's challenge to the nine vin total organic hazardous air pollutants standards for new and existing major source wastewater emissions and the emission limits for p c combined events and the proper remedy that the court should grant in this case mr wa er will be addressing the remaining limits that are addressed in our brief just for the sake of clarity i would just mention that i'll probably use the term waste water but when i do i'm referring to the n co polymer source categories in the alternative we're seeking a stay of those provisions in order to preserve petitioners rights judicial review without relief from this court regulator facilities will be required to comply with these court the authority to do that and the court has in fact granted stays in two cases one of which is the portland cement case where the court granted a stay of the emission limits certain emission limits based on the finding that they were a different rule right now we are confronting the twenty twelve and the twenty twelve rule requires every facility in these categories to be in compliance by people of twenty fifteen years if that isn't stayed about february twenty fourth at that point i suppose it's too late to go with the district court and the only relief the district court would provide is that the agency complete the rican reconsideration which wasn't going to be the relief there that we need as i noted we're here under a highly unusual circumstances because e p a has offered no relief from the twenty two twelve twenty fifteen excuse me compliance they for the regulations even though they've admitted that certain of these provisions were flawed they admit that they failed to well they had that they had a proposal then they issued the final rule the final rule was not an outgrowth of the original proposal was entirely different for waste water it was not originally it was i think a thousand people a moment it was  separate limits in the proposal there's not a separate limit for p v c combined based on data that they obtained through another proceeding which they did not use for any other purpose and which didn't go into the record until two days or maybe two weeks i think before the rule was finally cleared and published so we didn't get the opportunity to comment they've granted reconsideration acknowledging that we didn't get the opportunity to comment and i'd point out your honor it's not it's more than just comment clearly but the wastewater was the comment and correct comment that's correct but it won't be a comment on this rule on the twenty twelve then and the twenty twelve rule will be effect in the pact and we will be subject to compliance requirements until such time as a new the this statute does not define what the reconsideration process is this court you are said based on a century of linguistic analysis that it couldn't it has the meaning that the completion of the reconsideration process but that but that process is not this is very minimally defined in the statute it's not defined by regulation but the statute requires he is that when the administrator convenes or proceeding for reconsideration of the rule he should provide the same procedural rights as would have been afforded had the information been available at the time the rule was proposed well actually we're beyond proposal we're now the rule was adopted so the question data point was the only data point used to set the place for women for new major sources and it was identified as one of the five best performing facilities in setting the existing major source wastewater limit so it clearly was important what they didn't do and what the statute seems to require is they didn't give us the process the procedural right that we were denied by that lack of notice and comment because they haven't asked for enough for comment on the rule that we have to comply with next april in fact they said in the letter for reconsideration we intend to publish the federal register notice initiating public review and comment o all of it on the way right all of what you have to comment on some aspects of it in some aspects as often happens in administrative agencies they change from the proposal to the final and that's why you know they're saying you can have re and so the waste water is trample it's analyzed for each of those thirty their total and the total has to be below the limit the problem is that limit was set for new major source difference between observers an oxidizer was that the way that your client was releasing hazardous air pollutants was maybe a high concentration per x and i'm asking what is the x and that yes that may be a high first of all it's not a combustion technology it basically is an absorption technology that uses i saw a change to absorb vinyl chloride the second issue is that it operates intermittently although the the machine operates continuously the flow of halves is intermittent and very low so what you have is a result is a very potentially very high concentration when you're measuring the stream but for a facility that in actuality when you take the flow when you multiply by the concentration r is the best performer best performer for dioxins best performance of vinyl chloride and is third or fourth best performers on the top five for all pollutants so from our standpoint the reason the agency and we think the agency did not take a very close look commonsense terms your position is that that might be an hour of heavy duty because it intermittent well either because a tradition is reserve i mean what they do is they measure over thirty days if i recall correctly it's a thirty day test at most of the facilities and they'd be in essence come down to a value or standard that is parts per million that concentration while the normal ork are consistent across the devices is not in actuality consistent because if you look at the concentration that data and and multiplies it baby actual flow rate of the of the device and so you have this in congo a situation where this is a device that arguably does not meet the limit because of the concentration of it but when you look at  total emissions it's in the top five and so our position is that the agency should have done we don't take we don't think of her we don't object to the agency's position that it has discretion or that discretion is not unfettered in the court is allowed to review focusing on what goes into the atmosphere the yes your honor that's correct all right and then it is while we recognize that event gases  are recovered vinyl those absorbers also have stacks of admitted into the atmosphere and i say we've considered said the alternative format with a process we did not have sufficient information on with it well first of all we did provide stream flow rates and to the agency in the we were able to calculate alternatives in our comments that i believe it's sort of bring out my classes emissions or you know the reduction in emissions reductions from the rule even to the agencies of face value if this information is indeed insufficient it doesn't provide enough information for us to provide additional information and it's a sort of characterize russian can industry sit down with the v a and figure this out i mean e p a says we acted on the basis of what we had and certainly you know i think the record reflects that we have been sitting down with the  quite a while have provided so i understand that yes i mean you senator we don't have enough information so we know what to provide i think the issue that really hangs over this litigation is time we have april to the comments on some perform certain procedures and meet certain haps you can meet but you can go ahead open equipment there's another provision rule you're dealing with bypasses which states that no that which prohibits all bypasses from and provision prohibits any diversions o emissions from the close vent system our problem with this language here is that we we see this is a conflict with the equipment opening provision now the agency has tried to sort of address and correct that conflict by pointing out that what they mean by a bypass is something that if it's after the gas enters the closed that system right the problem is that the definition of closed that system in the rule is extremely broad because it is defined as a closed system as our contention is that as the rule is written we don't see how this conflict has been resolved and we have you know again what this creates is a situation you don't know what you're supposed to do under the rule what we don't know concept of in half service which means that equipment that's at a certain concentration is covered by the rule equipment at another at a lower concentration is not there's under this smack the bypass provisions of ply whether the equipment is in half service down to is a half a sentence right bypasses a prohibited excess except after equipment opening procedures have been performed it's taken two and a half years and we're still not there yet i see that my time is up you issue that oh yes yes you're on it and so we are not trying to defeat this rule or to operate in and pollute the atmosphere we have taken a very narrow and directed approach in terms of the provisions that we challenge these are the ones that we can't live with either because the create impossible limits for us to meet or they have big there are interpretational issues that require a change to the language of the rule the end we've not been able to get any sort of assistance at this point just so i'm clear what is the agency error as to the pressure really device requirements the pressure really good ice requirements we  the industry has operated on that prohibition for decades the issue is the agency is requiring us to put in these release indicators the rich in essence will along when they release the vice goes off will the responses it's reasonable the belt and suspenders or additional measures are ones they think are are better and maybe you could debate whether that's needed or not but it doesn't seem unreasonable for the agency to want to do that it might not have seemed a reasonable however there under the statute if they're going to proceed under a in a requirement that is beyond what is the current floor the agenc court concludes that it can reach that issue and we do not oppose limited really we don't think the court can reach that issue but if the court concludes that if we can reach that issue we don't oppose the relief or the stay and then you start going to new and major because the area is off the data points and as i understand your methodology its outlier quality was taken into account really quite minimized in terms of what the standard was there that you came up with here i believe that's correct your honor and i believe that the the the major source of waste water standard it actually if you look at the record before the agency at the time that the agency acted it was properly calculated nobody's contending otherwise it's not very far off even even acknowledg understand well let me ask you this way once the reconsideration going to be complete at this point he anticipates issuing a proposal on reconsideration in april of next year twenty fifteen and completing reconsideration in approximately  twenty sixteen and let me see if i can straighten out the mess a little bit more this issue is not before the court we think that under three zero seven and the normal process what the court should do is decline to so that this is not just a shell game what how what would your response be to that in the district court assuming that they had provided proper notice and filed and we were responding to that in the district court i think we would respond that under these circumstances where e p a has granted reconsideration has gone out has gathered additional data there has been a great deal of back and forth so no one reasonable delay no unreasonable to life yes in the meantime they should comply with something that you there's always going to be some time lapse and my understanding was that the clean water act required immediate compliance even before review of most of the holes and that isn't necessarily there's a little bit years out and we would agree that there is always going to be a certain amount of you know the agency has to act at some point it has a record before it acts based on that record the reconsideration process is what is designed to address the situation where new data comes to light new information comes to light and that is our position is that that process should play itself out and that the court should not be considering this challenge at this time because of these unique circumstances because it's not a situation where it's simply more data coming in or somebody's raising an entirely new data point it is a data point that we know for a fact was mistakenly submitted and should not have been considered analysis yes i mean that that was analyzed the way that the e p a normally considers the range of data that it has all of this was i mean you're correct that yes the effect of this particular data point on the standard was minimal as as far as we can determine at this point and that's why we believe it's appropriate to allow the reconsideration process to play out not to consider this issue if the court concludes that it should reach this issue it's appropriate to reach this authority the court does have authority to do that you have and in your statute we have a saying authority limited to three months under the clean air act yes but there is also with already it's a waste for them and you t me ask you what is your response to the environmental issues argument about the major area or i'm sorry your honor specifically their argument about the major area their argument  not be sufficient believe ultimately we do not oppose because sure of that standard environmental interveners have taken the position that the court should or should not stay or vacate that standard that it should simply remain in place and that's the distinction being tall us that's what i want to understand in other words what's the relationship here the parties have filed this motion saying they're probably going to try to reach a settlement has to be area sources yes from nothing said about the major source and indeed we heard an argument here as to why the rule ought to be vacated in carly as to the major waste water sources as well and i want to understand what is the relationship between the area and the  major the area and major source standards simply apply to different sources and i understand that ok but my point is are they interrelated or are they interconnected does the data if you have if you change one doesn't affect the other they're not legally related they can exist independently of one another although they were set based on somebody in a mire mentally related environmentally related in the sense that both are at rest of the word so to a non expert like me there's a difference between an area requirement and a major source requirement i may be a major source in an  area and i want to understand and the relationship here between the two standards now if you are going to vacate the area restriction then does that mean the major source is also relieved of any restriction in my hypothetical in just a very simple way now i think what you're going to say from your  that as a major source i would still be obligated to comply with the restriction even if the area restriction was removed that's that's correct your honor because an area source is a particular type of source it's a type of facility it's not a standard that applies to an area in the sense of geographic is this standard covers this geographic area right so yes the vail genocide isn't your answer supporting the environmental zisha that there's no need to get rid of everything well i would go back to our fundamental position your honor which is that the court shouldn't be reaching this issue at all and that's why you know there i think yet your argument if we do get to this next step i just want to understand what the agency's mission is the agency's position is that if the court does reach this issue because of these unique circumstances where we know that there's a flawed data point included in that standard we we don't oppose a stay or ultimately leaving you know the flawed data point doesn't reach the mare a major source the floor data point was used in the calculation of the major major and the area it was used for both the major area sources yes your honor and i'm sorry just pillared you were asking for clarification of our position yes because you would say you were you were waving taken longer than people originally anticipated but that is simply because of additional data issues that have arisen during the course of the proceeding and his conclusion that it needed to seek more data in order to make an informed decision on reconsideration it did not sound categorize those because regardless of the controls that are used to remove pollutants from air before they reach the atmosphere e p a applies the same standards to the emissions once they actually hit the atmosphere and that's where the standards at the process so yes there are different types of control devices that facilities may use their option to remove those pollutants that the same standards apply once the emissions actually reach the atmosphere and does the measurement metric take account over time in over a year since are you not capturing what's your position on that if you are i confess that i am not fully familiar with all the the layer details of exactly how the metric work but i believe their fundamental argument is that we should have said some different format to really accurately reflect the performance of these devices it is explained in the record and i believe to try to this is noted that we simply industry have not provided the data we would have needed to do that so whether it would have been possible to craft something a little more finely tuned that actually reflects those differences in performance industry didn't give us the data from all facilities that we would have needed to do that so the the format and the standard as they were adopted reflects the record that he had in the best judgement it could make based on that record if back to the other issue suppose the compliance study comes and be the defense on the merits namely that this had minuscule effect or something to that effect or that we've got new data and indeed it's not of the merits could be fleshed out it about one i think that's true your honor and that's why i'm reluctant to projects and i know i know i wouldn't say in a particular case issues have suggested in their briefing but wrong or that there are two aspects one general point that if the agency relies on material and the affected parties haven't had a chance to comment on it they have to be given that opportunity and then second is the problem that industry submitted data that was flawed and the agency has to the careful and clear judicial procedure that the clean air act provides for e p a s air rules which is distinct from the traditional administrative procedure act rulemaking process as this court is well aware and it begins with a clear bar on raising issues that have not been presented to the agency for good reason in part because not only does e p a to chance to address those issues but this court needs an adequate record or more a merits review and is also not unfair because we have industry petitioners who basically slept on their rights they did not exercise the pursuit or that the clean air act provides they couldn't comment on something that didn't in the statute that suggest that taking too long for reconsideration to provide some time indicators for how long would be too long and one is one factor is the statutes clear  there are many different factors that so wish and you think it's too long in this case well your honor in this case part of the reason it has taken this long is because the polyvinyl companies did not submit adequate  erroneous state i think the court has some record citations illustrating that they're complaining of delay at the same time as they are attempting to bury the agency with new evidence well after it has requested data and after the final rule has come out even in the submission of the information so that you can see that this particular data point was simply erroneous they also provided additional information that responded to provides a very important process which is not just to protect you pools and preserve this court's resources to shore it only addresses issues on which there is a controversy on which it has an adequate record but also to protect people who are living near apply and also when considering any potential relief which the environmental interveners opposed on all of the issues i understand that you oppose any relief with respect to the major source the relevant statute here does not provide for a stay so our position is is that the law is clear it applies to both the court and e p a and the court's precedent that ha natural resource defense council versus riley nine seven six x seconds thirty six page forty to forty one i apologize that's not in the briefs but it is a case where the court recognized that that language clearly prohibits e p a from granting  reconsideration there is no final action yet there is nothing for the court to review it's unclear whether there will ever be a case regarding the final action you takes on reconsideration and so the a p provision just does not apply that if the court does not apply the clear procedure of the clean air act provides and does not provide an incentive for polyvinyl industry petitioners in the in the position of final companies to exercise their rights that's where you don't mention the jurisdictional issue at all here it's the issue that we're talking about it's specifically discussed they resolved it differently from how you think they should have resulted in i'm just wondering what we're supposed to do with that  comparisons and the areas or standards because you think provided some information for area sources and that's partly why we took the position we did there but here we have no evidence that they would need to do anything they wouldn't be you know at at worst an event investment toward the alternate reductions e p a is going to require we don't know assuming this does change in some way how much reduction she will require but it is going to be legally required to such stronger standards and they haven't provided a sense of that in our view there is no prejudicial area they are excuse me error on the major source existing source standards and the new source limit we don't we also don't have any evidence that there is any source facing any kind of harm from that limit which relies on the iranian state appoints so it's there's a major fractional differences here between portland some months including the fact that you know in that case the court did deny a stay there that's correct your honor and just to speak to a couple other questions if possible there is no cost benefit analysis required under sec seventy four twelve d two i should be you know recognize that we are talking about a floor which requires you to set standards based on the average emission limitation achieved by the best performing sources and that you must decide how to assure the maximum achievable reduction allowing the polling final companies to invade those requirements would really run counter to this court's recognition that the clean air act standards must apply continue lee has a responsibility to assure clients and it's attempting to fulfill that responsibility in those professions of the limits for existing sources and new area new major sources that set out in footnote nine of the government's brief you can find it there we submit that essentially the issue is before the court is one of fundamental fairness judicial review provided brought that some point we get judicial review yes yes we may have to wait for reconsideration but we get judicial review the rule that goes into effect the rule for which we are seeking before the court because the court will not have addressed the merits the court will always have said look you can't bring that now that's not a jurisdictional decision is it just have a no didn't and you argue and the supreme court confirmed so turn reasonable the statutes this actually doesn't work if e p a can basically string this process along forever there's no guarantee this will be over in april twenty first on the standard is maybe a v codes question the standard first stay here would require you to show erupt rable injury right right and i think intervene or said you hadn't shown that can you respond to that well we federal register and i don't see any indication that he said palmer plants need not submit comments i mean let's be clear we're talking about comments on the twenty tw proposed rule right became that twenty two well yeah right so there's no evidence in the record you admit to show what your costs may be and how you're telling us that polymer plants had no opportunity to submit comments but they will have to comply with the twenty twelve rule and i want to know what evidence do you have that e p a prevented them somehow from submitting comments that that's not my point or are sorry they could have submitted comments on the one thousand ppm limit that was proposed and my understanding is the kind of witness that woman but that's not the limit that was adopted and where direct appeal so in terms of your or your question well then then we'd have a real problem you would never be allowed to raise an issue and you would be penalized for i don't think that means for language and statute i think this statute has some real quirks that don't said one was you made your own bed with the false not false incorrect data you responded that you have the data collection your was was was faulty from the beginning there was no actual emissions measured for waste water because the agency didn't ask for it they said give us what you've got on hand and what the what we came back with the interest you came back with is we've got on hand is very limited data and most of it is engineers existing major sources they have only had data points six or seven i think on three hazardous their movements and that's that they did they used to set a standard for thirty hazard is there one other question that final and my final question for you if you started by fundamental fairness on your reply but the scheme that e p a is proposing here interveners are proposing is simply in essence to remove the add a lab screen for some review for a certain narrow category of issues that and why is that fundamentally unfair of salad instead it will work for a long time before out of labs so why in congress sometimes for moves the right to print force and review why is that fundamentally unfair to do that for this narrow be a total limit of the problem with the new collection does not stem from our failure to provide data the agency never asked for it because the record will indicate that it never considered anything other than a one thousand ppm limit for vinyl chloride when it sent the waste not possible to provide the agency with any data what the data will show is that there are two issues within the data set that is not covered by this rule that the industry for some of these things the first is a notion i