curious why we are here today number one illegally failed to take action either by approving or disapproving the plans contingency measures to address the point one m p a had no authority to extend the valley's attainment deadline by nine years they entertain state revised plans yes they can if e p a determines that the state plan is now in compliance with the clean air act but your view of the in the in the situation that we're discussing right now the standard of likeable to that area is the standard that this court articulated only it is every possible measure to attain as quickly as possible and possible measure to demonstrate this five percent reduction requirement so this could be on top of that's developing the best available control measures on top of most stringent measures but the point is that what what provision are you talking about the the most stringent is that there were sanctions and there that and a federal plan that was supposed to have been implemented or at least pensions that were supposed to initiated and a federal plan that was supposed to have been implemented upon this areas failure to submit a plan that there are provisions in the new act that talk about what happens if you don't make that date and one of the things that happens is the states match plans and i don't see any point next amending plans or by your view if they cannot comply they will have missed the twenty all six drop effect now that's in effect now because what has happened is the valley has waited so long to submit this plan that what we're looking at now is in effect a combination plan and it will listen to a plan really these things are supposed to happen in about the effect of what the valley has done here is two of the l itself and nine year team a deadline extension where as every other serious area that has obtained an exception has had to go through the measured simply does not every other serious there is had to do so in order to get its meaning extension every other serious or has been limited to a five year extension and this court has held that that kind of disparate treatment is unreasonable under the act and violates the clean air act in three ways first the plane uses reductions from best available control measures in the attempt to comply with the section one eighty nine d also known as the five percent plan but congress designed the act so that section one hundred ninety reductions are in addition to and independent of the best available control measure reductions second the plan fails to reduce pm ten or pm ten precursor missions by the minimum five percent a and third the plant fails to regulate major stationary sources of ammonia ammonia is a precursor along with oxides of nitrogen to the most prevalent form of pm ten in the valley it's called ammonium nitrate the approval directly contradicts congress  commands to reduce on healthy levels of pm ten pollution the court should vacate that approval and order e p a to promulgated federal implementation plan the first issue e p a violates the act by using these backroom reductions in the attempt to comply with fall into the five percent well that's because for two reasons your honor first when a rule is implemented the reductions are taken credit to the plans take credit for those actions immediately naturally as long as the rule is implemented those reductions continue but you don't continue to experience more reductions from the same rule that would be double counting the second reason why their position is not correct is that section one eighty nine ve says that when you start this five percent reduction requirement you do it from the most recent imagery in this case it was two thousand and two so anything implemented before two thousand and two has already been accounted for in the inventory well there's no question is there that if the last calendar two thousand two you've got to go five percent a little that right you start from two thousand and two that's when you start taking your reductions from that point so a back home rule that was implemented before where credit has already been should have never been subject to regulations for example agricultural on field sources they were never subject to regulation until this plan in two thousand and three when those reductions were implemented in two thousand and four and two thousand and five that's plan is eviscerating the purpose of section one hundred ninety which is to take effect after back in reductions didn't do the job when he did ninety works like turning the screws on a district so that more excuse me how often do they take him and i believe it's every three years your honor but i could be mistaken i'm going to move on to the second issue unless the court has any more questions about that particular one section one  requires annual reductions of not less than five percent of either pm ten or ten precursors even with the plan incorrectly using these backroom reductions the plan on its face fails to show those five percent reductions in two thousand and six through the end of the plan which is two thousand and ten e p a tries to overcome this problem by interpret in section one eighty ninety to allow banking and the way that works is that in two thousand and four and two thousand and the plan takes knocks reductions and sets them aside and i can account for lack of a better word during those two years pm ten reductions from that ag back home rule and another rule called regulation eight are used to meet the five percent requirement two thousand and six to two thousand and ten those not reductions in the bank account come out and they're used to augment insufficient reductions in the final five years of the plan congress used the term annual now using seven years in office reductions in a five year period is flatly inconsistent with what congress directed so under the first half of the chevron analysis their approval should be vacated interpretation is reasonable because we want to create an incentive to have early reductions that interpretation isn't reasonable first because the plan uses back on if you admit that and any p s opposition brief they can see that the district has no power to delay those vacuum reductions again they should have happened in one thousand nine hundred seven so there's no incentive to move these reductions forward in the plan because they have no power to delay them since they are back in reductions well finally i see that i have two minutes left i just want to say with respect to the last issue that that approval violates section one hundred ninety eight this congress directed the standard for regulating precursor emissions and e p a has turned that standard on  california mr j and i will be presenting argument today we've agreed that i'll take fifteen minutes mr jay will take five minutes these cases of course concern e p a s approval through notice and comment rule making over number of state plan elements for the santa king valley no attainment area and because only legal issues have been raised in these cases the overall issue is whether repeal is approval of the plan revisions are consistent with the well relevant provisions of the clean air act and the deferential standard of review  future but the act and specify exactly what that date should be second it requires a five percent plan i'll address the ataman data if you first section one hundred ninety clearly contemplates that there will be a new with pain at deadline because it requires a forward looking plan providing for attainment in the future but because it doesn't specify what the new attainment deadline should be than e p a look elsewhere in the act to discern what that date should be specifically e p a turn the section one seventy nine the regarding after failure to attain and also provides a possibility of an additional five year extension depending upon the so severe of your pollution and the availability of control measures under this these provisions e p a has approved december thirty one two thousand and ten as the new tame date because it determined that it is the most expeditious state by which the valley can practically thing the standard no one has challenged the factual underpinnings for that terminations why doesn't this practice  clearly within section one hundred ninety section one and idea clearly said after a state fail to meet any applicable deadline regardless of whether it's the previous deadline before a one hundred eighty tension or the deadline after a one  one extension has been obtained then they have to submit this plan so there's really two paths here and one thing one requires them to do more than the other i don't know why everybody doesn't just rather than apply for an extension just like that deadline passed that's not necessarily the case it requires more to do the other your honor in one eighty eight it clearly does require the exercise of going through an examination of most stringent measures from other states but if you look at the language of the act it says attain it's expeditiously as practical which is the same standard that e v a s apply here under section one eighty nine d you have to get five percent reductions and in some cases say a state has it they are going to lead to attainment then they'll be applied so if a state is already doing that it may very well want to put off having to get five percent reductions five percent is a significant amount of reduction you know it doesn't say the act of war with spain a date after one eighty eighty so i i wouldn't consider it to be an enron i just consider to be two different paths  i would also just point out on this issue your honor that petitioners take the position that if you're if you're outside of in other words if you miss your attainment deadline then suddenly you're in th what they call the blaney standard which is as soon as possible with all available measures and i think judge duffy's question regarding pave the whole valley is an apropos one because what are all possible measures and it's not really what congress intended i don't think so because if you look at section one eighty nine d there's just no indication that congress intended that and i would point out first of all the land doesn't apply because delaney was a case where prior to the one nine hundred ninety amendments where congress had not provided these backup provisions such as one hundred ninety and one seventy nine and one seventy two which provides for expeditiously practical again that date so we're not there anyway but even if you just look at one hundred ninety there's absolutely no indication that congress indicated those kinds of drastic measures because if they had they would have provided for it and it wouldn't said take a year to come up with a plan that has five percent reductions they would've said impose all these all available measures as soon as imposed you know that if you had really been briefed here in my mind that my understanding is that the sanctions would kick in and if the p a makes a determination that a state but you consider that not to be a sanction i will agree with you all right then what sanction is available than if someone came valley and the people unified air pollution control district don't implemented it will meet us again at that line and they can't just sit back and not do anything they have to implement the plan and now would you go with me just for a moment to the wonderful world of make believe where they don't have a plan they don't have anything and then they're doing a darn thing about it ok you hold them in and you need a plan so i say ok fine here's a plan heard of that happening so i don't know what happened here we have is there something in the statute which says if you don't do that we will stop everyone from breathing of course not i think it's ones seventy nine and if you ask for an extension you're limited to a certain amount of time that's less than the i think that's what's well it's not the thing that is it's not necessarily you're not necessarily going to get more time under cannot then assume that just because they don't submit an extension request under one eighty eight either they're going to get more time than they would otherwise because he might determine that it expeditiously is practical in this measures and another case and see if there feasible but even under one seventy nine and one seventy two they still have to implement all feasible measures so you know there are some differences but correct i see that my i want to be mr jay five minutes but i just wanted to touch very quickly on the issue of this five percent plan with respect to the back of an issue i think i can do that in about thirty seconds and petitioners are just wrong that back on may not be used because they read into the act that there must be additional reductions of five percent and the statute doesn't say that the statute says if i consent or the most recent inventory it doesn't say additional reductions above and beyond what's contained in the states attain that demonstrate what are they what what is their position your position is that there are some control measures and attract and you don't have to look at them at all you just look at the last minute car and say we're going five percent down from the last one and three is that correct that's correct your honor it's an exercise of looking at the inventory and determining whether or not either existing measures are going to meet five percent or if district legal counsel for their pollution district the clean air act is not a series of sections that are rigid intractable unchanging sections all throughout the structure of the act congress allowed districts and states to cure or whatever defects there are if you look at section one seventy nine it covers the issue on what the new attainment date is it's titled sanctions and consequences for failure to attain if the district fails to do something like fails to submit a plan fails to implement measures sanctions kick in to make the district do what it's supposed to do in any case when there's a monetary in an area that does not attain the district has to do a new plan and a new date is a stablished in this case the date is one and ten section one seventy nine also answers the question of whether you can use these back on measures or not in determining the five percent reductions it says e p a follows section one ten and one seventy two establishes the measures for this new plan and such additional measures as may be necessary to meet that five percent per year it may require new new controls it may not in this case the district submitted a plan that's got a mixture it's got some new controls it relies on some existing controls the bottom line is it shows the five percent per year reductions   at issue the five percent it's our contention that there is some flexibility there and we've given a discussion in our brief on the legislative history of the one eighty nine the section on the five percent reduction if you compare that section to the history of a parallel section which dealt with carbon monoxide both of these sections originally when congress was considering them read the same they both said you shall get annual reductions of five percent they never really defined what they meant by annual and we contend that term is ambiguous after the bills went through conference etc the carbon monoxide section was changed specifically to add language that says you have to get five percent per year for each and every year they made it much more stringent and much more mandatory while leaving the pm ten section one eighty nine d left it alone and just gave us this five percent annual reduction how each side has an argument and there's another provision and talks about averaging over the years and that this one doesn't and it seems to me you can you can make the same have proven we think under chevron it's a reasonable interpretation is we front loaded reduction is any method you use you're going to get forty percent reductions at the end of the term we've done it in a way to front load them get more reductions quickly and that shows through modeling its center to be the best way that we could come up with scientifically to make the five percent and e p a should get some deference approving that type of method the statue's ambiguous inherently scientific this whole exercise of you know whether you include ammonia whether you include you know how you do the five percent new measures old measures etc it's precisely the type of situation where the supreme court has said defer to the e p a as long as it's reasonable let's say you might say you're very successful and you get first couple years you get ten percent reactions and then they do a set out in this whole case is these plans and rules and cetera and the act it's very fluid for example the district will be doing yet another plan in two thousand and six and they simply we step back redo all the modeling and s from the prior one and we can still have to do another plan and we will have to reduce that it's an ongoing process you have to demonstrate i guess that although your banking works when you know i'm a new survey reaction i don't think we would be allowed to do that because we have to continue making reasonable further progress i don't think e p a would allow a situation through this approval where you could say i'm going to do ten percent now and i'm not going to do anything for the rest of the price  understand the banking argument is going it's maybe not quite as simple as that but you know there's a lot of science that goes in with it on you know what it recognizes some areas might have a dust problem wind blowing d this talk that the district has failed and has done nothing keep in mind the district is going to adopting rules and regulations since its inception and we're basically within six months of hopefully attaining the standard it's that last little percent that's really hard to get our entertainment at least on the record about ninety seven percent of the the time things are done real good since we've submitted this plan but it's you know you're all the low hanging fruit it's kind of done and you're really squeezing businesses and industry and people are trying to get that last little bit because to be entertainment we have to be clean basically for three years and that's a very hard standard to meet if you have one exceed in some three years you didn't make it plan there are sanctions for that under section one seventy nine eighty four e p a can find any requirement of an approved plan is not being implemented in the sanctions clock would start ticking after that finally also under section one two and  now the structure of the act prohibits the use of back as i mentioned the agricultural sources were not regulated until the two thousand and three pm ten plan was adopted allowing those backroom reductions that should have occurred congress meant the same thing when it used those two terms the house report describes the root the annual reduction requirement in each section as per year in each year so the house report describes one eighty nine days annual requirement asked per year in each year it's the same language as one eighty seven g again it's a distinction without a difference finally the district was talking about the progress it was making in cleaning up the air in the san joaquin valley and it said that it only had one exceeds of the standard in the last couple of years that was one experience of one of the two pm ten standards that apply to the valley there's another standard the annual average standard which the valley is not even close to coming into compliance with  so that annual average standard measures people's long term exposure to pm ten pollution and long term exposure as we've pointed out in the record results in a significant number of deaths in the valley thank you