es near the eldoret a chemical plant and those ditches then flow into downstream into flood parade which merges into haines creek further downstream  solids arkansas made a decision back in the one nine hundred eighty s that it would adopt as crop protective criteria for its streams levels of these pollutants that were naturally occurring it would out and looked at least disturbed streams and looked at what was naturally occurring and said this is what we want to adopt as a initial standard for arkansas but they recognize that there would be industrial activity there would be municipal treatment plants all of which would add these chemicals to the environment and the naturally occurring conditions wouldn't always be present so arkansas adopted a procedure in its rules that said on a site specific basis we're going to let you change these naturally occurring conditions that procedures been in place in arkansas for about twenty years we've had at least forty rule makings in arkansas under that procedure they've all been approved by e p a until now and that's  yes they've they've tried a number of different strategies or in order to keep them in compliance which are somewhat acceptable they've entered into an agreement with two other industries in the city to put a pipeline into said that after the first rule making was done but we were actually going to increase the the mineral standards downstream and haines and flat creek the first rulemaking actually raised those standards for hanes and f to respond to the subway thought failures which which were of what your concern is e p a urged a t c c to consider developing criteria of values for hanes and flat creek that will not result in aquatic life impacts global don't raise the criteria and hands and flat creek come up with something that will protect it those were arkansas said we'll do better than that we'll take it all the way back to naturally occurring conditions and way that that's generally the way that that is implemented is through the permit process nobody can issue a permit already chemical arkansas e p a couldn't approve it that would allow these eco vision values and flattened homes creek to be that single failure of the subway thought water fully is an impairment question that is whether that's really good science but assuming that what you say is true that that what that failure is an indication of an impairment that was assuming that the increased levels from the first rule making would stay in place and they didn't arkansas said ok we'll take it back to the original values we will protect it down to the eco region values and they said that specifically you know e p a says well the only thing that you've got in the record is information submitted by the eldoret of chemical consultants in we don't think that that's good enough well here's what arkansas said specifically and this was written by our console after the water quality standards were reinstated to the eco region values and this is on appendix on page ten fifteen zero zero nine ten fifty nine rule ensures that the water quality criteria necessary and appropriate to preserve designated uses will be maintained so arkansas said we're taking that back down to echo region values and that will ensure that the criteria that  downstream waters will be maintained because they have to be maintained they have to be protected to those low levels so does that mean then that you wouldn't be permitted to increase the amount that's being output it would not be allowed to be increased over those numbers fifteen milligrams probably dcor out i think thirty or forty of sulfates there are a number of permitting strategies that could be implemented to allow that to happen for one of the pipeline could reduce the amount of flo that's going to happen already comodo has storage capacity that could do a release only during wet weather conditions to keep the concentrations there are a variety of permit in mechanisms of vailable to facilities to meet downstream water quality  appendix on page ninety four e p a is decision was it may not provide for attainment of downstream water quality standards i submit that that's not compelling evidence that's not a reason to overturn arkansas standard i mean ask you this question the way this case came up on appeal is really the primary reason the primary issue for this appeal and that's the difference between what a p s role is in this process e p a s argument is that the case of mississippi versus costal should should rule the center to review in mississippi versus costal was a case where the court did impose an arbitrary and capricious standard and they did allow e p a s decision to be uphill but in that a wanted to enforce a five milligram for leader deal standard e p a had published national crotch area for that standard in mississippi was the only state in the region that has not adopted the national criteria in that case the court said e p a has an obligation to impose national criteria of their uniform standards in that case we're going to shift the burden we think that a p a standards should be enforced in the state should have to prove otherwise in this case is completely different we have a standard that's the most restrictive standard of the country it's more than ten times less than a p s nationally published criteria e p a asked for a literature review it's more stringent than anything this was found in any literature search in that case arkansas said here is a number that we think is protective of water quality in that case we believe that under the new road decision in the american side of a decision that e p a has to present compelling evidence to overturn that because if you don't do that how does arkansas primary role in setting standards in force it's not how do you define that different standard now you've said well in this particular situation arkansas is that they're standing very strictly so therefore you want a compelling evidence review of that but it is the defining principle that how do you apply that you look at the evidence that arkansas has presented in favor of this decision that the downstream water quality is talking to the world on a national basis in a proposed rule where there outlining what the landscape is they don't differ from me but in this case in an advocacy in a brief this trying to win an appeal they have a different sta could or course the parties have to be an expert i believe we could work that out the district court level very easily so what you really are suggesting maybe this would that would be a good solution that would be a great solution morning your honour's may please the court john smoltz are for the e p a your honour's the e p a reasonably disapprove the water quality criteria change that resulted from the third party rule making in this case because eldorado elder ra submission was critically deficient in at least two areas first elderado failed to provide sufficient evidence that the changing criteria would be sufficiently protective of the designated downstream use of the aquatic fisheries crude the only evidence in the record that spoke directly to water conditions downstream as a result of this criteria change was the spike toxicity testing that elderado itself presented that independent voice or it darn well if you affirm it it's not over and what i want to point to is what e p a said here on the record is that al the radio failed to provide sufficient evidence e p a suggested a couple ways that eldorado could provide focused on was the concern with respect to the downstream waters which are close to right and they're not trying to change the criteria for downstream well that's the that's the second fundamental problem with this if you don't change the criteria right then you are back to the eco region then i'll be controlled by the permitting process in other words if it if it starts to create problems downstream you crank back the permit or you don't allow them to increase when they're permitted to discharge well first it doesn't work there's two issues there's criteria in there and there's whether the evidence suggests shows that there are adequately protecting the actual use and so if you change the criteria back to eco reaching a criteria doesn't show there isn't a problem with changing that you know syria doesn't change their promise doesn't no so why can't this be controlled by the permitting process if indeed there is a downstream problem well if the criteria at flat and hands creep are left to the eco region criteria then the permit would have to have lower limits the whole point of this was to increase the limits to it to permit the discharge that would be contrary to the entire  focus of the rule making it is one of two issues that e p a identified as being problematic here the second issue continues to be the concern with downstream use and whether the criteria match and again there's a distinction between of course the effluent limits that are put in a permit once the criterion are place and just judging the criteria themselves but what e p a did was to ask for evidence that if you change the criteria if you relax the criterion u t a and you to be will the downstream uses be protected and so what eldorado did was follow through with that exercise and say ok if we relax these criteria this amount of minerals this amount of mineral loading from our facility will go downstream there will be a cumulative impact downstream that includes el dorados minerals and the minerals that are already there from legacy pollution and it's that cumulative impact that was found to be toxic but i mean is it necessarily true in other words could the state of arkansas have anticipated something like elder rate or putting in a wetland that might you know filter out some of these before they get to the creeps well this when you stock talk about changes in criteria  arkansas regulatory system is unique because many states don't do it this way where the the criteria change is so tied to an individual discharge i mean normally you set the water quality criteria and then the criteria are used to insure that whoever is loading the pollutants to a river system there effluent leavitt's won't cause a violation of the criteria arkansas has a special procedure where individuals discharges can ask for this third party change  the specific purpose of essential enabling their discharge but from a regulatory perspective the focus is the same you first you look at the criteria are the criteria protective in e p a s review is the same they don't look at the criteria as though  know they were approving a particular discharge or writing a permit they do the review that's appropriate for a criteria change and in looking at this proposed criteria change again two fundamental flaws doesn't show that the down waters will be protected and doesn't show that the the now existing criteria downstream will be bad and both of those things have to be met not only for e p a review purposes but also under the continuing planning process the c explained the u t a new t v are very low flow there mostly flow as resulting from the facility discharge flight for you can change creek or the two first you know real creeks named creeks that these discharges  hit that's not too far downstream to focus on an elder eldorado knew that because of course they included those two streams in their initial submission and they presumably included those streams in their initial submission because the c p p specifically says on page three three five of the appendix one of the things they have to do in this third party rule making is to document that all designated uses and criteria will be mad in waters downstream of the area in question directly resulting from the statistical difference between the minerals in the control sample and the minerals in the in the synthetic sample that was designed to approximate a flat in his crate so there consultant said look this may directly show that you've got a problem with sublethal toxicity so the e p a said look that's not enough help us give us something more that's a gap that's a hole in your information and this court reviews the e p a s determination under the a p a for arbitrary and capricious standard and gives deference to the scientific determinations of the agency one of the strategies that elderado has adopted in this appeal to try to shift the burd case and said that's a situation where the court had somehow shifted the burden back because of the particular subject matter that case but that's not the way the fist circuit decided the case on your honor and i draw your attention to six twenty five feth fed second at page twelve seventy six where the court is responding to the argument that the state determination should be reviewed in an arbitrary capricious standard and the court says quote nothing indicates a congressional intent to restrict e p a s review of state standards to the issue of whether the state acted arbitrarily capriciously with a cake in a position in put into place has third party rule making where the the burden is put on the the applicant to make a showing the arkansas approved it they looked at it there's no question about that but they didn't provide any information to this to the e p a for example that the paper would have had to review it it's just nothing in the record this specifically says look i see that concern e p a but here's the answer here's why and you're looking at it wrong there's no technical expertise downstream problems be taken care i think to some extent they might be but that's a complicated process it's a process that would be led again by arkansas not by e p a and the question is it can be totally right the question isn't could a different decision have been made the question is was it arbitrary and capricious to make this decision that the e p a did was to say look you can't meet the criteria and again they did it in addition to the criteria they can show that the new eco region criteria will be met they still haven't shown the van stream uses will be protected and you know there are two separate things all they present how far downstream do they have to go do they have to do tests that after into the next creek into the next creek into what's creek and into the river the record doesn't show what the mineral criteria are in smackover creek which pains discharges into and so there's it's not clear whether the loading that's been talked about in this case and it's not unreasonable for the e p a to follow up with that didn't they unsent him when they took those and when they said ok we don't want to change those anymore we just want you to a new t v to be changed and the test turn out to be perfectly fine and you to a new t b but again they they removed them in a way that doesn't solve the concern which is the regulations require you to show that you're not impairing the downstream waters regardless of whether you're changing the criteria for the downstream water and the regulations require you to show you can meet the downstream property area they only added to their burden your honor they didn't take away from the burden to show that they were the downstream uses we're going to be mad they just added the burden of now they've really ratcheted up and tightened the criteria  and there's nothing in the evidence to show the criteria can be met let me address a couple other issues with respect to the standard of review because a couple other authorities were cited by mr decided by the e p a environmental appeals board on not a circuit court decision it was a case that involved a permit that was issued by e p a and the issue in the case was whether the e p a had faithfully followed the state law on effluent limitations in imposing a particular permit condition on effluent limitations the environmental appeals board upheld what the e p a did in that case but in a footnote said look if the state had definitively interpreted their effluent limitations differently than what he did we would potentially lead to a different result we would we would require compelling evidence in that context the key difference though is they were talking about a state standard the e p a had to include in the permit purely standard of state law there was an issue of compliance with federal law or minimum clean water act requirements so if you're slowly talking about compliance with state law certainly if the is going to interpret th state law differently than the state then it makes sense to impose a higher burden here what you're talking about is e p a s fundamental oversight role in determining whether the state criteria meet the minimal requirements of the  is the expert agency that's been designated the duty to do that oversight and is the agency that deserves the deference completely different set of circumstances the other authority that was identified was a two thousand and thirteen rule making that ha some language about giving credit to the states in areas where there's some uncertainty the rule that they were talking about there was is a rule that prohibits states from changing making changes from  predicting uses or uses that were attained at some point in the past its particular clean water act rule that it's not a designated use what they're talking about is if in some time in the past history you achieve this high use in a water way you can't change away from that even if the water has become impaired sense and they're talking about looking back into the past and trying to figure out from historical evidence whether and exist whether it use had ever been met at some point the past i think it's  the question here are both done for you and you would be yes i think the answer is it's downstream but the further answer is it's near downstream and there's no way to not focus on downstream in this said you don't have enough information for well the the eldorado came forward and said look are there and here are some problems for example with our spy toxicity testing i'm e p a said ok well you know run it again show us that those are really problems and then solve this issue you know is it directly related to the statistical difference that showing sublethal toxicity is that related to the criteria change or is it not and they also said look show us information to how to separate out your pollutants and somehow that will solve the problems and we're here to say that didn't solve the problems it just increased the burden on the on eldorado do you have that hand in sight to the regulation that says in this in assessing these water quality standards you have to lo downstream effects it we talk about in our brief it's the clean water act reg one thirty one point ten b it talks about the states duty to look to downstream criteria and uses the statute that specifically focus in the e p a is duty is one thirty one point five which talks about making sure that the criteria changes meet uses generally thank you thank you review i've never seen one where we would do compelling forcing them to present compelling evidence are you telling me that the mississippi case says that no the mississippi case does not say that the mississippi case said well did and this is six twenty five f second at page twelve seventy six where the court said it was not unreasonable for the e p a administrator to interpret the act as allowing him to require states to justify standards not in conformance with criteria i'm reasonable sounds like an arbitrary and capricious standard right so in that case of that context that court said when the state is refusing to adopt a national criteria then the states have to explain why but everything that i've read every case every court says the primary role in the stablished of the standards befalls to the state so the question for this court in every court is how are we going to do that we have two agencies congress gave the primary authority to the state they gave the review authority to e p a how are we going to protect and preserve the primary authority of the state if we require values we all agree that those are protective so the wet test was performed as if the criteria were increased to multiples of that number well that's not going to happen now s web tests were performed under conditions that would be illegal to it to occur in e p a s only response that is what might happen i guess arkansas might issue illegal permit and might allow this to happen that's all speculative that is not evidence that's just power in this crowd but we all know that arkansas has to issue a permit that will protect these equal region numbers and fight it hey it's great we all know that that's the hall and it can't happen otherwise it i did hear back to your argument that they can control that's what the permitting process absolutely and they have to in arkansas said that they would because they they said that when we return those values back to encourage it by use those downstream uses are now protected again  i think it's telling that when you asked the council what was the regulatory criteria for assessing downstream uses he accurately cited that rule and that rule says the states are to do that that right but it's the state's role e p a delegated that role to the states so how do we how do we preserve and protect the state's primary role in this process it we believe that there is authority that says you should do it by making