innocent little if ten minutes so by the time that e p a completes a new rule making process tens of thousands of workers and bystanders will have been made this the exposed to a deadly chemical many lives already suffered serious potentially irreparable harm because of standing alone is sufficient to render kitchener's claims right on the merits the challenge rule violates tusker for two reasons under tough the section twenty six l four when every ph chooses to regulate a chemical based upon a pre two thousand and sixteen commercial use is necessarily do as well and as this court found and physicians committee for responsible medicine versus johnson e p a cannot excuse itself from tough this rulemaking mandate through the failure to make formal findings that are supported by the record and it relied upon those to make finding a fine reasonable if you also claims that it wanted to solicit comment on a different means of regulated commercial uses the best looking car i had a worker training and certification program but e t a had already considered they commented on and rejected that very option as an feasible and it's two thousand and seventeen proposed rule and e p a has not identified any new facts that passed out upon those prior statement accuse me to thank you to close e t a has known for at least seven years that methylene chloride paint strippers present unreasonable risk to workers and it is known for at least four years that a commercial you spend with needed at the agency on lawfully allowed those risks to persist and now it takes another several car ad so it is petitioners contention that those arrests were required to be addressed in that role as opposed to in a separate future role making and that there is no legal or scientific basis for another several years of delay we're asking this court who are in latin america you know you're your honor it's in the standing declarations that were appended to our opening great the labor council for latin american and that spent represents workers that work within the united states in a range of trade and in particular latino in the tino workers and those workers include workers trade in the fields that are most likely to use these chemical lot slower represents those workers who are less expose i have a question or two before you move on and if counsel can you tell me what you you identify as the final decision here that allows you to a retract this rulemaking onto a newer statutory framework and i'm would like to know why you don't think that that that leaves us with a no circumstance here include strip mine if your club challenge that omission and they said we think the statute in the record here acquires to include strip mines on the b p s response with the same response but it's good enough here they said we haven't completed our decision making process with respect to mines we're still gathering additional information we intend to regulate that in the future and the d c circuit found that the sierra club claims were right and that the decision was final and the reasoning given was the sierra club is not challenging whether e p a had to do that in the future  correct no your honor i do not believe that is correct and if i can address both st the kind of interplay between these two prophecies and then the timing well at least what i want you to talk about is how the relief you want from this court is going to benefit you in a way that is not achieved by what they are proposing to do which is to retract on to the new statutory one of two things it can either issue a rule based upon the prior risk assessment or it can start again from scratch and conduct a new recipe well you ition with respect to methylene chloride ph account for because it's hard to understand you a little slower sorry with respect to methylene chloride paint strippers which had been previously assessed e p a chose the former crack it shows the issue regulations based upon its pre to one thousand and sixteen risk assessment and in doing so it was defection twenty six dollars l four to issue rules that were consistent with the scope of the risk assessment and the lemonade of the unreasonable risk identified therein and e p a went through a full rule making process and it finalized that process the march twenty one thousand dollars rule but it did so in a manner that violates those requirements of pasta and what e t a is saying now is we cannot challenge that because e p a intends to undertake a new rule making based and twenty risk evaluation your honor that risk evaluation st of all it relied on the same analyses and same data that e p a has conducted in the twenty four in risk assessment and nd of all it will not be complete not and twenty one or two thousand and twenty two there is a statutory option for e p a to extend those deadlines for up to a year and a half so we couldn't end up kind of up to three and a half years from the final risk evaluation which is last june question for you are you familiar with the supreme court's decision of this morning in united states fish and wildlife about final decision final agency decisions i am familiar with that your honor i have quickly read that decision and i can't claim to be an expert on well there is language in there that what matters is not whether a document is the last one but whether it communicates a policy on which the agency has settled whether the agency treats the document as its final view on the matter so can you tell me why we would conclude that the document you're talking about or the ruling you're talking about is being treated by the agency as its final word on the subject glad they are honor and st i would like to note that that decision dealt with boy exemption five and one document can be not be covered by its march two thousand and one thing will that decision was finally made when e p a published that rule in the federal register and the fact that e p a may subsequently issue subsequent rules that address that does not change the finality taken in the future really does not that that is part of jurisdiction and i think that's consistent with this court's holding in salazar became where the courts of the possibility of further proceedings in an agency does not render a completed agency action non final or i just want to be clear on which to which pronouncements you're relying on i know there's the march two thousand and nineteen and p r m but then there's to draft risk evaluation in october of two thousand and nineteen which becomes the final risk of valuation in june of two thousand and twenty you're saying it's the march document that is the final document but you're here is that what you're saying what it intends to regulate in that rule and what it does not intend to regulate my two thousand five hundred and twenty final risk evaluation that triggers statutory rule making deadlines is that not right were required to issue a rule that complies with pasta sections for all right so i look forward to hearing from the government and then from you in rebuttal thank you for answering my questions thank you touch the pro users of these past servers were furniture finishers e p a found these users have no good substitutes for the product nothing else reliably fits and takes that damage many other trades people need the products to the professional contractors  do painting and remodeling you've probably seen their white panel vans on the way to jobs for these users losing access to their products has a severe impact on their business and so too for the small businesses that make the products and formulate them for commercial a really did block access for the vast majority of commercial users the only company that could last only sell the product now is one that never sell and has never sold so much as a can of paint or laundry detergent to a single consumer this is not an exaggeration that's what the rule says an e p a has not this is out that reading second in this rule making said it was only preventing consumer use the impacts on commercial use could only be permissible on this record as a secondary consequence of something that is quote unquote necessary as tosca uses that term to protect consumers rd e p a made no real assessment of whether the it's true county and retailer ban is really necessary in that sense what would have happened if e p a didn't include the ban what will happen because of the ban these are obviously key issues and the rulemaking reflects no serious consideration of the to go with it congress demanded particularly thorough and thoughtful decision making first i didn't notice incumbent requirement e p a must comply with the ordinary a p a rules plus this is section sixty three  particularly why it adopted these provisions it's pretty clear e p a didn't even think of them till late in the day even to under the ordinary a p i standard discordant one hundred time warner that the outs of comments on an issue is a strong in deciding what to do consider the reasonably ascertainable economic consequences of its rule including its cost effectiveness and its likely effect on small businesses i urge the court to studies page one thousand and twenty three dollars in the joint appendix that's the only place we've found and the only they might sell in small quantities if that might be a problem profitable some commercial users might switch to other products e p a doesn't mention here its conclusion that furniture ventures actually can't as an assessment of reasonably ascertainable economic consequences this is fairly thin and it is not enough given the impacts that common sense would readily reveal we recognize the concern regarding consumer uses if the court grants the relief we ask it will remain unlawful to sell muscling or i didn't stripper's to a consumer that will carry thirty seven thousand dollars civil penalties enforceable by friday action and potentially criminal penalties to we asked the court simply to invalidate sections one of five b and c which restrict non consumer sales to the retail this broadly defined retail channel thank you and i'd like to answer any questions the court has labor council and their colleagues try to leverage that action on the risk presented by the consumer use to compel action to address risk presented by another condition of the commercial use of those plants tr pay has now determined that those uses do present on reasonable risk pursuant to the two thousand and twenty risk evaluation nothing about acting on the consumer use risk or nothing in tosca itself makes responsibility to ensure that the unreasonable risk presented by those uses is no longer presented a country to say is characterization e p a did consider cost just as t reasonably ascertainable the standards that congress has set out in tosca e p a quantify the cost and discussed the cost in the relative fashion between the two alternatives that it determined would address the unreasonable risk presented by those doing that you pick again kept with the fundamental responsibility to ensure that the sea is no longer present unreasonable risk identified e p a is consideration of cost and the proper proper role cost of also there's no such limitation found in the stack you and indeed section twenty six if i had a direct e p a to so less risk management requirement from a menu of options which include one selected here prohibiting the distribution of our products for a particular use that menu makes clear that particularly for consumer uses e p a will have to select some requirement that will have a secondary or indirect effect because e t a is not authorized to directly regulate or perhaps consumer use moreover given that u p a has fundamental responsibility is to address the risk it's not it's not reasonable logical to expect that you could do so without effect on anything but the directly regulated for example baby gates prevent small children from falling down stairs they also impede adults when they're moving around the house nevertheless effectively address the risk for the one group started it just may also contend that it was internally inconsistent for e p a to say it was rejecting one option on the basis of its effect on commercial use but adopt another option that still has the effect but it is not inconsistent to consider the cost of the regulatory options to about the secondary effects on commercial users but certainly those effects and their magnitude are relevant to that cost weighing or it's important to remember that and sixteen congress replaced the prior standard that had to select the least burdensome requirements when regulating a chemical with the standard here today touch on it to say it's logical outgrowth argument as well st test this certainly sets out additional procedural requirements on top of the minimum set out in the a p a and one of those to state with particularities the reason for the proposed rule there is nothing from that statement elsewhere in taska indicating that that change is the standard that it should be judicial review and here what you see i did was a logical outgrowth of the modification of the consumer just your consumer use distribution ban to append a  clarification that it was not that these products could not be distributed by retailers is rational and the agency's path may reasonably meet the nd the final rule  prohibition is certainly directionally the same as what was riposte and indeed response to the issues that u p a highlighted and the proposed rule st that consumers access these products through the same distribution channel as commercial users and best to keep them out of consumer hands you clearly need to cut off access at those distribution channels in the proposed role the mechanism for doing so was also  distribution retail distribution print edition also answers the question the challenge of implement telt and implement ability and force them because if you are identified in the proposal that there is no existing mechanism to reliably identify consumer versus commercial purchasers this is an effective way to ensure that these products don't get into consumers hands by also placing the  consumer use distribution ban alone would not address the unreasonable risk in h s i have not point to anything in the record that would support a contrary conclusion i'll turn now back to be how can it be logical and reasonable to say that this product isn't reasonably dangerous with respect to consumer goods but at the same time is not unreasonably both of those things are true that can skin sume are used to present some reason arrest and conversely is present on reasonable risk does not mean that acting on consumer risk well exploring other risk management options for commercial risk is what about the final action on those uses can create a requirement for e p a to have acted where we contend the statute create labor council tries to that u p a was declining to regulate or had decided not to regulate drawn from the lack of action at that time but inaction is only reviewable final agency action when it is the functional equivalent of action that is if you pay with the say we won't regulate this use we will affirmatively walk away from the process of regulating that's not what happened here both the statements on the record a the judicial intervention at this point finding a review ability which would disrupt the ongoing agency process and this is a process that that is exactly the process that congress  intended including the guidelines in the timeframe for how the decision i'm told through risk evaluation proposed risk management and i know risk management petitioners will have the ability to enforce it is inherent to those deadlines these considerations also tie in with our argument that this action is not right it clearly shows that the agency's policy on this point is not crystallized and that judicial resources  subsequent actions the lack of action on one doesn't render the action taken arbitrary capricious labor council's argument is essentially that if problems are closely related or similar enough it can be arbitrary capri ous not to act but that logic ignores the finality requirement of review agency action and it's also not necessarily logical both faithing and cigarette smoking present but i don't think we would think it's inherently irrational for an agency to address the risk of a thing without concurrently addressing the risks so expressed finally i want to quickly address the labor council's argument that risk and set the limitation about the scope of the risk assessment is best understood as saying well you can skip the new procedure on substantive requirements that you have developed for the risk evaluation process here in these limited cases but your risk management role cannot exceed the scope of these existing risk assessments and and acting on consumer you following you know that now follow as a result of the final risk ration labor council has also pointed to the language that e p a is risk management rules must address the unreadable risk  we have emphasized with respect to considering this today but that that is a description of the substantive requirements of the role that u p a issue and that does not mean that of the sort do not ordinarily come to is this regulation currently under the by some other court of a of april and you have already answered this question but to what extent does one of the issues presented here  arise again in the th circuit case none of the issues related to consumer use or consider the question of commercial uses is that correct no your honor the issue of whether finality is jurisdictional is somewhat is seen as required element of a claim and without finality there is no judicial review because the court can only review agency actions that are final so would not have actually an eminent injuring or be able to demonstrate the injury element of the disability and prudential rightness are related but but because of statutory restriction to judicial review in the case of final orders and i stated correctly that we do not have statutory authority to review an whether the issues are fit for just a review at this time but notice in the case of agency action being a function of whether the agency has crystalli policy and whether the court would benefit from the court with the essentially drawn into deciding issues unnecessarily and then the nd prong of that would be hardship to the parties seriously sickened and or die during the time delay to before the p a reaches a final order with respect to commercial uses a good idea to allow the agency court another branch of government to  when you say when you say when you say there is no reviewable decision i thought you said just before that the that the that the potential harm him to lay is one of the factors in deciding whether whether decision whether the current state of the record fitness prong which we think we we can strongly demonstrate that they outweigh any hardship that can be demonstrated what risks were presented by those activities ok so we have a species of final rule here and what part of live in your view regarding the supreme court decision of today but also with respect to any adjudication of related issues or identical issues him in any of a circuit we don't need a lot of information we just need enough to enable us to do our own research if necessary so if you if the letter could separate the two questions in the total of six pages six pages maximum to be submitted simultaneously yes your honor i'd like her turn to this point about finality and the critical issue here is tough the section twenty six l four has a distinct process that governs rules issued based upon risk assessment e p a has issued only one rule and will issue only one rule based upon a two thousand and fourteen methylene chloride risk assessment that was the action that it finalized and two thousand and nineteen the risk assessment as e p a now concedes found unreasonable risk from commercial with respect to the risk assessment with respect to regulation under that risk assessment if e t a did not comply with the requirement the pocket section twenty six dollars l four or if it is shoot a rule that is unsupported by the record those claims can only be brought now and they would not be redress by a subsequent issuance of a future role based on a separate process but risk evaluation process they are distinct prophecies your honor and i do believe that we have final agency action with respect to the decision made in the r just very briefly with respect to prudential right now which as opposing counsel has of knowledge is not constitutional if not jurisdiction on in fact according to the supreme court is a disfavored means of resolving cases hardship factors heavily into that telling those workers wait another three years to address a problem that we should have addressed in two thousand and nineteen is just not a legally or practically viable solution so unless there are any additional questions your honor i will quit with that th band and what it would do to companies like furniture finishers the baby gates example is an interesting analogy you never know where somebody might bring a baby and so and if you really want to make the risk baby zero you might mandate baby gate bars offices car factories and everywhere else would that go too far probably and how you how you would decide you'd have to think about how close to zero do you need to go and how much is it going to cost everybody else tosca calls for that same sort of evaluation here e p a stresses that the statute used to call for the least burdensome method and it doesn't anymore that does not it does not follow that the statute does protective equipment that you might use and how that affects the risk and company sales places could just readily look to whether you've got a commercial account because they're going to have to question thank you thank you all very much we'll reserve decision and we will a