facts in the case and i'd like to give you five reasons why this case is not moot like to finish explaining why we believe the non discretionary duty to approve west region is water quality standard so the charleston senator board  first of all the charleston senator board is regulated in its wastewater discharge and its collection system just charges to river one of the pollutants that it has to manage is copper  the state of west virginia has a default statewide copper standard both acute and chronic that is only differentiated by the local water's hardness the result of that standard for the charles and santeria board is that in the record it is point zero one zero milligrams acute and point chronic that's a little hard to say so what i'd like to do is change the unit simply and and and seven crock and what happened was the senator board in two thousand and two just a five year discharge permit that had a copper limit and two thousand and seven five years later the limit went away two thousand and twelve the limit came back so charleston decided we want to get off the copper limit roller coaster a copper limit also affects other aspects of their facility which i'll touch on in a minute it's a rather than challenging this the state of west virginia and a and ending up in court what they did was they looked to the regulation and there was an e p a procedure for translating that ten and seven which is a statewide default number to something that's appropriate for the the result was that the ten and seven should be five point six two times higher so ten becomes approximately fifty six seven becomes thirty nine those are better numbers they're higher they're easier to comply with  the thirty nine and they've left the ten and seven in place and that affects us today in a number of ways that makes the case not moot so i'll give you an example what if if there's no the basic point that they're making is that under the permit that you presently operating under there is no limit on effluent limits pages where the specific specific copper limit was taken out of our perm there is a provision at the bottom of part and i give you a citation to the record if you like it is  in the joint appendix two fifty nine to sixty three has the same or very similar language in part a so the language that judge d has reviewed in the fall back in two thousand and seventeen that language says the discharge not the water quality standard sections of the rules part f and by the way copper is one of those standards part f of the permit speaks to the fourteen combined sewer overflow discharges to zone one of the river where this is just charge a specific standard applies that provision size that the discharge to destroy not cause or contribute to it in stream excursion any numerical or narrative water quality criteria development adopted as part of the west virginia water quality standards so your honor even though the specific limit was taken out of part way in two places of the permit on to the next one i'm trying to remember my memory is not the best but was was this argument actually in the brief that the fact that in fact you were bound by some limits notwithstanding the face of the document excellent  the part f is much worse language it's cause or contribute instead of just cause that's number one number two the permit imposes  permit not only regulates what we can discharge from the treatment plant it regulates what we can take into the treatment plant and on the joint appendix page two seventy eight it limits charleston to taking eight point two pounds of copper into the treatment plant and that eight point two pounds is based on the existing ten and seven water quality standards if this court overturns the e p a disapproval of the war of the five point six to higher water quality standard fifty two and thirty nine the eight point two goes up by five point six two so instead of eight point two pounds we would be able to take into our plant approximately forty five pounds if you overturn approval disapproval the number that we can take into the plant guaranteed with certainty changes from eight point two to forty five that makes the case not moot that is not the possibility of some slight potential relief that it is guaranteed the number will change it will go up higher the other thing on page two seventy eight that the permit specifies that when we get half way to eight point two we have to regulate everybody who sends cop er to the plant there's a cost to that there's a burden to that and it limits our ability to allow our users of the system to expand their copper discharges it limits our ability to take new folks so we get to fifty percent of the eight point two triggers that obligation we're already north of thirty five percent so if we get his disapproval is overturned we go from eight point half of a point to a half forty five  quality standards and then approved by e p a for the sole purpose of getting the standard right not discharging any amount that's not appropriate like getting the standard right to reflect about the fact that it was not approved i am complaining we want the standard right and the correct standard your honor is the fifty six and thirty nine and not the ten and seven why wouldn't that be a matter of scientific judgment under the statute  quality standards and it's a it's a pretty discretionary standard if you're talking about scientific judgments scientific models and the standard is and with all due respect your honor i don't believe what you just articulated is the standard the clean water act our first argument is not moot just judge floyd you asked for the five reasons it's the  the maximum allowable head works argument and to seventy eight in the joint appendix it's copper monitoring that if the higher numbers are provided we we believe we will no longer have to monitor for copper  suggested we won't have to monitor for copper because west virginia has a written guidelines document that says if you don't have reasonable potential to exceed copper at the point you discharge you don't have to monitor it with the higher numbers we won't have the potential to that's subject to the state's discretion it is but it's a written document where the stated advance has explained how it will exercise its discretion and it says we will not impose required by the pretreatment program which is a separate program copper is the one out of the tan that doesn't have that statement we believe if we get the higher numbers we've demonstrated we won't have reasonable potential in the pipe and we will be so far below reasonable potential and a pipe that we believe west virginia will follow their written guidelines it's as they won't impose monitoring that is moving adopt a certain scientific view you're asking us to assume the role of am not asking you to do anything at all what i need to show you today is that there if ye ph disapproval of our following their own cookbook and if we if you overturn e p a s disapproval of the higher numbers all i have to show you is that gives me the possibility of regulatory relief judge floyd asked for the five it's i've still got i'm still subject to that water quality standard because of the general compliance language i've shown you that the amount of copper that i can bring into my plant will be five point six two times higher i pointed out to you that i can get rid of copper monitoring which is a real cost and regulatory rist an immediate risk also this standard is is not a site specific standard west virginia by the way judge let me just mention that when we did this e p a procedure in the record  they said this letter does not constitute an approval i agree but the state of west virginia has water quality standards there these are approved it took it through the regulatory process took it through the let the legislative process and then when it came time for e p a to approve it the sixty days to approve or ninety days the disapprove they ignored the statutory deadline and they said we take no action on the ninth and here's what's significant that just your point judge will consume on the ninet day the clean water act requires that if there is a deficiency in the science the state standard has to be based on a sound scientific rationale we have the gold standard we have an e p a procedure that's been considerable specialized knowledge you know i walk i know the limits of my own capabilities and i i just find myself hard pressed to say exactly what effluent limit should be for each of these various metallic impure substances and we're not asking you do that at all your honor all we're asking you to do is determine that we have standing to bring to have our day in court and the a new permit this arose out of the two thousand and twelve permit that had a limit the twenty seven thousand per month the limit was removed that caused judge goodwin to say the case is moot and for the reasons i've explained to you it's not move we still question about their argument has a copper limits you don't have to take my word for it you can look at their opening brief page seventeen and this is their words the two thousand and seventeen permit does not include a copper discharge limit you can turn page thirty five of their brief the copper limit at issue was removed from the permit in two thousand and seventeen so i'm a little confused by the arguments that they're advancing here today they themselves in their opening brief acknowledge that there is no copper permit  under the two thousand and seventeen permit that was issued and they are correct over the years this has had a copper limit imposed by the department in west virginia and other years it is not what we do know on this record is that the department has always required monitoring monitoring copper and so the district court did what it was posted you hear it looked at this record it carefully reviewed it and he concluded that this case is mo why is this case moot this case is moot because as of right now there is no injury the board it must come before the court to get in a federal court and establish a concrete particular ised injury and this is what this comes from the  site specific copper criteria under the two thousand and twelve permit when it was issued the department had and they set a limit on the amount of copper that think that the department or the board could just charge their unhappy with that limit they didn't like it they wanted to set a higher level and understandably they may do so west virginia provides them with that opportunity and the clean water act allows the e p a to review site specific areas the present permit for five years your hon over two thousand and twenty two when the next permit would be would be issued your view is that there's no copper effluent limit in the two thousand and seventeen and that can't be until two thousand and twenty two  will because what when the two thousand and seventeen permit was issued what the department the west virginia department of arnold protection did is it looked at monitoring data over the or a five year period and it makes what's called a reasonable potential determination and so it looks at that data and we know this is in the record it looked at that data and it said there's no reasonable likelihood that under the terms of this permit that they're going to violate it they're going to exceed the limitations set forth under the statewide criteria so we know that on this record they're the ones that operate this plan they have this do you have they're constantly monitoring this if there are any indication and there's not in this record is there any indication that they are going to exceed somehow exceed the statewide copper criteria that is in place they need to come forward with that we don't have that in this record there's nothing to suggest and they point to nothing in the record to suggest that sometime between now and two thousand and twenty two that there is going to be an increase that this monitoring is going to somehow suggest that they're going to exceed the statewide criteria that are in place and the way they say that there's a one time that the department could do this based on a one time instance for monitoring but they've never pointed any example that the state has done has in honor it is true that the e p a did not issue a decision to approve or disapprove the site specific criterion submitted by the state within the deadlines under the clean water act so the clean water a tells the agency that it must approve within sixty days or disapprove within ninety days and there's no dispute here e p a acknowledgements answer that it did not comply with the statutory deadlines but then you look at does that remove s discretion to issue a decision and the answer is now and there's very strong case for we signed it in our in our briefing from this court and the supreme court and other circuits frankly that says that and agency even though it may miss a statut we didn't agree with you on the ground has the has the district court rendered a final decision of a has has e p a rendered a final decision disapproving the state standards that is why disapprove the site specific but to answer your question no the district court which had the full record before it did not have an opportunity or at least because it ruled on mootness did not review the e p a s final decision in this case this is we ask that if you find that these claims are not moot that you please remand to the district court for the district court in the first instance you're trying to do you want do you or are you asking for  in the two thousand and seventy and then whether there's a modification before the two thousand and twenty two permit is issue is secretary if it if a modification does a broader compliant having to do generally or with the fact that they disapprove of the state standards which is it is it is of the narrowly focused complain or is it a broader with you look at the actual the supplemental complaint that they filed in the district court that this is it j a three twenty seven a three forty these are counts three through five these are challenges brought under the administrative procedure act challenging the criteria are used in individual permits so it's not that you have a right to some criteria it's that when the permit itself is what they was what tells them what they're allowed to do and in this particular wastewater treatment site so you use that criteria to come up with either setting a limit or not setting on the two thousand and twelve permit use the criteria and set a limit they didn't like that so they brought a case and they want to change the criterion so they can adjust the permit and while them to discharge something more that that decision that disapproval decision to use this water effect ratio this as adjustment to the criterion that's what they were that's what they were challenging so our argument is look that was a live controversy up until a point when the west virginia department of environmental protection issued a new permit the new permit looked at all the data that had been collected in it determine there is no reasonable likelihood that they are going to exceed the state why criteria that are in place so therefore they did not set that this is the west virginia arm environment protection did not set an effluent limitation on the words discharge of copper into this river because the circumstances of changed department of armor resources is impose no copper limit is that is that the final word given that those states standards are subject to program so every three years under the clean water act the states must review we discuss our prefer there's an obligation on the states to review their their water quality standards and then if they want to make a modification they submit that to the u p a for review so there is an existing state why criteria in place that continues to be in place and that the p a has to my knowledge reviewed and there's any time they want to amend that they come to the v a that's what's occurring here this was a site specific change that they wanted to seek for this particular wastewater treatment site reviewed and the p a disapprove the proposal that was submitted and it did so exactly what the clean water act requires it to do and this court's decision and our d c the one thousand nine hundred three case it talks about what the injury because i understood the principle injury here in the breath to be this issue of monitoring and whether or not it's required or discretionary i heard the argument here today that copper is the one effluent is entirely discretionary with the state and that they might be able to make an argument that they're not subject to monitoring what's what's your view about that well your are a couple responses first off point this in the what the department has done it's true that there is this west virginia guidance but i discretionary the west virginia department of environmental protection it's up to them whether to impose monitoring and so are in previous permits have been issued by the state it has as has the board points out it has imposed a cover limit in has not but in all of those permits going back to i believe two thousand and two two thousand and seven two thousand and twelve it's always required monitoring and then we gave the example of some of the other metals and this is one of the reasons why there's no injury because they're currently monitoring for other metals and those other metals include arsenic silver and nickel this is a j two ninety seven that monitoring is required by the state and so for them to come into court and say well if i take their argument is well if the e p a had approved this particular site specific criterion we wouldn't have to monitor but i argue my response as that's too speculative your honor and the district court took a careful look at this and said i have no way of knowing what the department of environmental protection the west virginia arm would have done in the situation they put they do the calculations in their brief but we don't know that the department would have reached the same conclusion and yes perhaps they could come to the partment and ask it to get rid of monitoring but we it's too speculative that's my point my point is there is plenty of law that tells us what article three demands and they have not reached they have not satisfied those case law they have not been able to come to this court and use monitoring as a concrete injury that would allow  in his permit and on this record that's my point on this record there's no indication that monitoring amounts to an injury that would allow them you're all it's some of your view you have or lurve of this case is a very children criteria and yes they would like to have a more lenient standard but there's no injury there's no injury under the current permit and they can't come into court that is my argument your honor and we ask you to affirm other district court's decision on on minnes but if the court concludes that these claims are not moot then i believe part two or briefly address the merits of of their interpretation of the clean water act the the district more correctly concluded that their giving my client its day in court on the merits your honor so i am not asking this panel to do with the merits but in terms of moving us the first reason to our standard is if if if overturning disapproval has the possibility to grant any effect or will relieve the michael the case is not moot in here i've explained to you for the limitation on what we can bring into the plant the maximum allowable head works which is a joint appendix two to seventy eight if he is overturn instead of eight point two we get approximately forty five pounds that defeats mootness it is a concrete it is not brief also says that there's a maximum allowable head works loading you're letting e p a recapture to rise this case to one small part of the permit the copper affects multiple parts of the permit and all i have to show you is that i can get relief on any of those parts not just the piece that they'd like to talk about and by the way your honor you didn't hear mr baylor come up here and tell you what i argued about follow coal that the general who water quality standard compliance language in part a and part af has has taken the copper limit completely away it is not it is taking it out of the site specific part of part a but it but compliance with the ten and seven standards remain i'd ask you to look at that and revisit your follicle decision the third reason is the monitoring service follicle know it's spoke to metals but it spoke to that very hard  part and did speak to copper in the twenty twelve per minute but that specific copper limit was taken out in twenty seventeen which caused the movement argument and our point is on the on those very same pages the general water quality standard compliance language comes in that language says the discharge shall not violate any numeric or narrative limit adopted by the state and that includes the very copper limit that work that we're trying to get raged through through this process so we it's not moot because of the head work floating number would go up that's concrete that's not speculative in any way it's not moot because we have a very good chance better than a reasonable possibility of getting the monitoring removed based on the written state guidelines because if the copper limits go up by five point six two times there were so far away from the limit that monitoring no longer makes sense and we think in those conditions we can get e t a to follow their d p to implement their guidelines that says we won't put limits in the other nine metals are different because monitoring is required for other reasons as specified on page two seventy eight also this water quality the state's water quality standard that was disapproved is in our name it is not a  site specific standard it sounds for the trial stand sanitary board the copper standard shall be five point six two times the existing standard it's only available about the fact that we were we're arguing about what the coffee cup or effluent standards should be in the abstract with without sufficient assurance that they're actually biting anybody or injuring anybody in this particular tense i mean that is a lot of your argument seems to be on for all i know you may be right because i don't have a scientific expertise to understand  but your view is that the copper effluence and that should be higher than they presently are and fair enough that's our cat but that's more of a sort of a a general abstract argument in the absence of any particular argument so that they're biting your client or injuring you under this present permit  saying the because the copper standards are too high as of abstract matter there's a substantial likelihood they going to be applied to us in an injur i'm out of time eh responder on the actual i don't i'm don't want to futuristic at all i want to be simple in clear on page two seventy eight of the joint record the permit specifies a maximum allowable head works loading for copper eight point two pounds so without the benefit of the standard it was disapproved unlimited eight point two pounds if i get the standard west virginia adopted for us eight point two gets multiplied by five point six two it's approximately forty five this is concrete i don't want it nagging at you forty five is higher than any and it would it is a it is regulatory relief ignore anything else we talked about today but that fact alone that forty five is higher than eight is the rule is the relieved that the court can grant by overturning that's a mandatory it's simple the steep p a reviews the state's water quality standard to see if it's based on and has a valid scientific basis now mandatory i'll get to those in a second the standard of review is did the states water quality standard have a sound scientific basis and that basis your honor here is e p a days translator procedure that has been