before in the record so for example at fifty three that's an e p a as technical support document they say they look at a bunch of different sites and say none of these tell us anything about risk regardless of you know the harm that need to the specific language with the ninety six zero eight b that that says that the president has to issue financial responsibility regulations targeting that because of the the hazard that the industry provides to the environment as opposed to the government's right we're concerned about the risk to the fund itself seems to me that's the key statutory issue is that this congress spoken clearly in support of your argument if you can help we understand the language of course use that clear directive activities associated with their production and transportation and disposal of these these substances and so you're saying in subsection one but that's only talking ignore financial risk or exclude but that is what they did here and even the purpose here of these provisions is to make certain that the industries that cause the present risk looked at the legislative history of want to wait you want and said this is one of congress's major goals in this provision specifically so we think it has twenty bills that's preventing pollution preventing this farm and then making sure that if it occurs it gets through is it your understanding of the is hypothetical you understand in the statute that if if it was if it was clear that the industry had sufficient financial means to cover any cleanup costs that might occur the hypothetical this efficient means that that the the president would still be required to issue regs regulations and you're not necessarily depends on what you mean by adequate assurances so  you have a facility that has fifty million assurances and they have incredibly risky practices in place and i fifty million is all in an unsecured cost ok you might look at that and say you know it's it's not that if they have fifty million and best practices and plays in a third risks to the environment and if and if the industry poses a risk to the environment then you have to you should do regulations really quite apart from whether the fund is protective you know we think we need to look at both and and even if they could say we're looking only at financial risk that's the only thing we're considering not risk to helping the environment first of all that doesn't get you that far away from health and environmental risks because the clean up standard under c cost of the fine yes but also the cost of private cleanup the costs of court settlements at the list and even crossed off most of that list and said the only thing we're going to look at is whether sites have already incurred taxpayer costs even if they're at provision and again even if you're looking only at financial risk it circles back to health and the environment because how much time you do dictates how much you're going to have to pay to clean up and in the universe of financial risk they still omitted most o what congress said explicitly in the subsection two subsection talks about risk though if it talks about the level of risk which the president in his discretion believes is appropriate based on and then these chances and be won is about whether you need to regulate an artist instance when you're looking at the dollar amount they said you know look at all of this different information on what do you think it means in subsection two that the president in his description the level of risk level of risk they want to protect against but they still have to base that decision on all right but isn't that a problem for your argument if there's discretion in the level of risk we want to protect against what if they decide the level of risk is sufficient that we don't need to protect against it it's already protected which is that their argument with what's wrong with that argument well they still think that that language learning that one would swallow everything else and in a section everything else and ninety six  that gives it to broader meaning so they said you know no matter how high the risk in our discretion and think nothing is necessary that that's not consistent with the rest of the directors there so they do have some discretion there but i can't swallow everything else  but they did here let it swallow everything else i'd also like to point out a plan which is from the final action when they're explaining why they don't need to consider any of the findings on practices and on the harm that contemporary mining practices of caused they say again this this information didn't include specific detail on taxpayer possible or even hard sort of look at and to underscore with these this focus on cast requests that have already been incurred what they're basically saying is the only way for a facility to show the risk that might warrant assurances is once it's too late for assurances because once the taxpayers are already in her classes too late to prevent the harm too late to make the polluter pay that's why the taxpayers are paying and financial assurances don't do anything at that point because there's no one to impose them on the taxpayers are paying the polluters already out of picture so if they're saying only one  incurs those costs kind of show risk that means you never have financial assurances for any site and that can't be what congress intended here i want to turn quickly to modern mining which is their other horror rationale for for their final action so when they talk about modern mining they're not talking about best practices or some sort of minimum standards it is whatever every state happens to have on the books at the moment so can be one thing in california something very different in alaska it might  tantalizes one thing today and it changes tomorrow it was modern mining you know today what it was and then when they change it it's modern it's a new thing it's modern mining is different tomorrow so it's it's not had there to actual risk either financial risk or health and environmental risk  they also are defining it to exclude most of the currently operating mines that they propose to regulate under the bill there's a complete list at ga nine hundred seventy five of the mines that would have been regulated and many of those are the same mines that they say and their final action and their support documents are not modern they don't have to consider and that's an exercise in defining the problem away instead of explaining why it is actually on and specifically they also seem to be saying that any any activity that happened at those mines in the past they don't have to consider and that again is inconsistent with the plain language of the one which directs them to look not just at the instance the waste was generated they have to consider also risks associated with ongoing storage and disposal and treatment of waste at those facilities so if you know they will be or of the ground however mungo and there is then still waste that's sitting well your honor but the key observation is the one that you made that it doesn't mandate that there be regulation from any particular class of regular class of facilities and so the agency which is the delegate of the president here they have the discretion to decide what those classes are there's nothing there twenty in the statute about regulating the hardrock mining industry there's nothing about you know exactly how to select those those classes other than looking at the line drawing exercise of what the degree of risk is in the duration of that risk and you create made that determination here my opponent argues that some new interpretation was crafted in between the time of the proposed rule in the final action deciding not to go forward with the proposed rule and finalize it but that's not true e p a looked at both of their tattered tories of looking at the term risk that my opponent says they need to look at they said that providing funds to address circle liability at sites was an important consideration but they also said that they should be looking at creating incentives for sound practices that will minimize the need for a future circle response and that's at eighty three f thirty seven five five seven they also said that they found that that concern of minimizing risk because the existing program of both federal statutes we're talking about the clean air act we're talking about especially the clean water act has important implications for regulating mining and has several you know you're you're you're right that this that the statute doesn't say the present shop promulgate regulations for this industry you know it's one where congress said do something and nothing's been done well they said do something but they said do it based on a predicate question which i think is what you have some tell was asking about of looking at what is the degree of risk from classes of facilities so you're saying in the last almost forty years they've looked at this carefully and they decided there's just no risk out there that things are fine well your honor the many of the environmental statutes including circle they impose a lot of you know regulations that e t a needs to look at that considering whether to adopt and they agency has to make priorities and oftentimes the agencies dealing with you know other statutes of these issues rulemaking is on other circle here the the court said that e p a retained the discretion to promulgated a rule or to decline to do so even for the hard rock mining industry that's a page eight eleven it's very page five one four eleven after it we think that's entirely consistent with the statute it wouldn't have been possible to say that it would be mandatory to issue a rule making for this class because one section ninety six zero eight the one includes discretion and your honor was also focused on be two which talks about the president's discretion explicitly and we think that ties back that to the construction of risk and also it doesn't specify which classes to regulate from and in particular again i think the term degree of risk is one that inher conveys discretion to the agency or to the to the president initially as congress has done here and that's something that you need to look at in terms of you know conditioning the ground for the world of chevron and i think it puts us clearly in chevron step to pointed out the agency homewood on that well but but in this instance your honor it does have the predicate question of deciding whether you know the degree of risk threshold has been that and whether this is a particular class that it's appropriate to regulate and those are things that we think are committed to the agency's sound discretion we also think that the agency looked at both categories of risk but there's an alternative argument i think it's important let's look at the text if we could at ni responsibility being set and then being adjusted when necessary to protect against again the level of risk on it or so we think that's precisely why you can use the two to to help construe the first  sentence yeah risk of injury yes and that's exactly what i was coming to your honor so there's clearly a difference between the first sentence and the one which is what we're really focused on here setting the classes based on this line drawing exercise of whether a sufficient degree of risk has been analyzer not in the third sentence which is talking about prioritizing potentially multiple rules about regulating multiple classes it specifically says not just risk going to dorm but risk of injury that basic statutory construction want to one really under the reseller case that were congress chooses to discreetly include language or exclude language from particular provisions that that has to be given me so for purposes of doing the prioritization between multiple classes you look at the risk of injury but for purposes of doing the analysis of what class to regulate whether it's official degree of risk has been reached we think that is the one f that including in the proposal that minimizing drain on the circle of superfund was an important goal of the statutes and that didn't change between the proposed in the final and they also recognize that the whole point of circle is to reduce environmental risk and that's all over the record and indeed that's the whole point of them having worked at the issue of what the baseline of mining was is regulated by the federal government and by the state because the regulation of mining in the federal by the federal government and the federal land management agencies the forest service be a land is to reduce risk by imposing prescriptive requirements on the mining operations so in the proposed rule what he is saw was being gotten and in that role was that they were looking at the baseline backwards the baseline in the rulemaking the baseline of sorry that one would look at in the statute in the world's always look at what is the current state of the world right and if you look at the current state of the world when he it was considering these regulations what you see is that that baseline included a lot of state regulation a lot of development a statement elation when he called the mining modern mining developments and that all reduced environmental actual risk of injury and they decided that that you couldn't do what was kind of played in the proposed rule which was to simply wait to look at the impact of state programs after you had imposed this massive new set of federal requirements and then to decide the world will soften those based on mining regulations in a particular state that's backwards you don't do a bit of sign analysis like that you do bayside analysis the other wherever you look at the world as you find it and then you decide in light of how you're finding it is there a sufficient again degree of risk under be one to engage in the regulation so e p a decided that essentially would have been arbitrary capricious her to continue with this regulation and to decide to to finalize it when the back of baseline was backwards they were only going to look at the baseline of existing mining regulation under federal law  law once they had decided to impose this massive new financial assurance federal regime so that is that's how we're looking at the statute and we think that it clearly  treatment story just those off of hazardous substances and then when you get down to prioritizing that is that last sentence of the line that's when you consider the risk of injury other words you know you're supposed to consider all of these risks involved with everything dealing with hazardous materials and then when you prioritize these classes you look at the risk of injury so you're owner again e p a did look at the risk of injury so there's not a change in order to to to begin to focus on on that issue i think you have to first imagine that somehow radically changed from the proposal to the final rule on their turf a case in the statute and that's really not accurate they did look at the risk of injury from all the sources but to the extent of my fallback argument that even if you had changed interpretations to focus on the superfund rested on the b two factors which really again isn't accurate this is a situation in which the statute specifies that it's risk from the production transportation treatment and storage so it tells you what the risk is from but it never tells you what the risk is too and it would be entirely consistent with chevron step one because indeed so they way will do so so the agency did say that there's an important focus in the statute under b two on reducing the drain on the super fund so in that kind of situation your honor we think that you know that's that's  that's an own inherent interpretation to doing that but again the primary argument which is really we're standing on is that there was no change in the first thank you not directed specifically to the mining industry the fact that the mining industry became subject to this rule making was because of a two thousand and nine notice that we had no opportunity to comment on we had no ability to explain the ways in which current mining operations do not pose to the degree in eration of risk consistent with imposing new financial responsibility requires that's what this will make it's all about industry state regulators federal regulators put forward evidence that the mining industry is already subject to comprehensive cradle to grave regulation that includes permuting requirements that came in line largely in the one nine hundred ninety s that ensure only responsible operators are going to be engaged in these activities their prior detailed plans for reclamation and closure that impose substantial performance requirements and then also come back to with billions of dollars now in angeles jurors so there's just many many years of protection that applied to currently operating mines before there would ever be a risk of an unfunded cleanup you have the permanent process you have the performance and environmental standards that apply to current mining operations you have the fact that if it is still occurs there's monitoring and inspection to ensure that is properly detected in can dump you have the private operators being obliged to clean it up consistent with their permit conditions and then if there's a problem there's bonding that the state regulators and the forest service and b l m can enforce and that's one reason why the argument that petitioners make that essentially private cleanups don't count that that is an indicator that there's no risk to the fund or no risk to the environment we think is clearly wrong because it shows that the current permanent system that states in the federal land management agencies have is working as is intended to do if if an operator does not but perform from clean up once an issue is detected the regulator concur pullets permit in calling upon is the fact that that is not happening that instead operators are handling cleanup under under their own account shows that the system is working and like to in the remaining kind of have talk about the modern mines concept you petition argues that there is sort of a mismatch between the agencies rationale in the scope i think is an important distinction to no legacy mines meaning mines that are no longer operational were not going to be covered by the proposed rule at any point include you know including in the initial proposal so e p a quite rightly founded that evidence with respect to those mines was not going to be relevant to the rule making as to the might require retrofitting they are subject to existing monitoring requirements they're subject to existing binding requirements to the extent that there's any you know i think petitioner in their reply brief argues there are some instances in which a state regulator might determine that it's impractical impracticable to retrofit a particular design but states address that in other ways by for example having heightened in monitoring requirements and you games where this in the final action it referred to the new mexico's new usually more talk really fast your honor so i do want to point out that even if the court is looking only in even if he is looking only at financial risk risk to the super fun they interpret the statute that way they still ignored significant evidence of such risk and i want to point to a few examples so looking at we mentioned in our beliefs number of underground mines in idaho they don't have any prices for the underground portion of them nothing they overlook the rest of these ridge line idaho where they discuss in detail that there is you know a few million initial answers held by federal agencies but it's already caused massive contamination  costs so sites like these where they have already incurred taxpayer costs they say this isn't relevant even when there is obvious evidence of financial rescue just using their own more limited definition  even the candle line for example that was no longer operating but that that mind operators already bankrupt they know that there's going to be a six million dollar at least shortfall between a the cleanup costs and they say well taxpayers will probably have to pay that but it's still not all that important because that less than maybe the total benefits of the rules so they routinely dismissed even evidence of financial risk even on their own kind of narrow  view i also want to point out one final thing on this legacy versus modern issues of the big and canyon mine for example and many others they did he said and their technical support document these are legacy mys you have to look at them even though they're currently operating and