and they brought this action because of concerns over error missions from the coal preparation plant that is near their home so there are two primary claims in the case and i want to talk about how some of the factual issues for those disagreement from the experts but whether or not as a practical matter it will exceed that is probably going to be dependent on whether or not the coal pile is in or out the nd claim and the question is whether or not the copilot and affected facility under in its p s part of why and the reason i bring that up is that if the court determines that the coal pile isn't affected facility under an s p s sub par why then you definitely count the emissions from the coal pile towards that major source emission threshold critically however if the court does not determine or determines that the co pilot's not an affected facility that does not determine whether or not you count the emissions from the coal pile for purposes of whether or specifically slender stand that alternative what what's the what's the theory that this is that the road is so short that the mind in the pile is all part of the mind how do you how do you get everything in subpar why the performance standard for open storage cold piles is the submission of the fugitive duff's fugitive dust control plan in compliance with sub par why now whether or not you need a major source p s t permit is a separate question under a separate program and as i said obviously if something isn't affected source within that it must be in the open processing plant if you look at the one thousand nine hundred guidance that we've cited to from e p a it's a different issue different source but what they do refer to in there is the fact that there are two questions here and that guidance they're talking about whether or not coal unloading is part of coal conveying equipment to the district court consider all this and its massive opinion to consider each of these arguments issue that the district court failed to address number one it's a question of in what order it did so but the st issue that the district court did not squarely address that it needed to is simply the question of is there ambiguity in these regulations and the problem is that the district we have courts spent pages on that respectfully your honor i think that the court spent pages discussing the interpretation of conflicting secondary guidance you don't get to those unless you st look at the regulations you need to start with the regulations make a determination of whether the plane laying ever seen an e p a regular wasn't him well your honor in them for a long time well  honor the rd circuit in the star enterprises case agreed with us that there wasn't ambiguity with respect to an almost identical regulation and what i what i would discern the difference between is whether the regulation itself is ambiguous which the district court didn't start with an analysis there started at the back end of the analysis with the guidance and by looking at the guidance and determining that the guidance documents had conflicting statements arrive at the conclusion that the regulation must be ambiguous so tell me why you think it's not ambiguous because i think that if you look at the regulations themselves and simply apply the facts apply those regulations to the facts in this case you don't need to get further than that analysis and so the regulations say provisions of this are some part separate why apply to affected facilities in coal preparation and processing plants those performance standards and some part wire applicable to any of the following affected facilities two of the primary affected facilities are coal processing and conveying equipment and open storage piles i submit that we can just look at this picture and make our determination and it is quite frankly that simple what are the affected facilities we're looking at we are looking at coal processing in conveying equipment what you can't see here is the feeder breaker structure that protrudes into the coal pile so there is a coal pile a list of affected facility there are the breaker crushers and then the conveyor going up to the station now factually speaking is there any is there any dispute between the parties that the apron feet are juts and exactly what you're saying juts into the to the coal pile and that the co pilot's cell surrounds the apron theatre there is no factual dispute as to whether or not the apron feeder juts into the coal pile there was a factual dispute with respect to whether during regular operations the coal the opening at the top of the apron feeder is open to the air and whether coal is pushed down so that it falls into the apron feeder versus the coal completely covering that apron feeder and cold just being fed into it while it is completely covered and sometimes it doesn't my understanding of the operation of this is that sometimes it doesn't completely cover it because feeders already pulled a lot of the colin and the bulldozers have to move more coal into the apron figures that is that correct that's correct your honor the evidence that we have in the record shows and the testimony from the mine shows that there are times when according to them it is completely covered they've also conceded there are times when it's not covered but what is not disputed is the fact that that a print feeder juts out into the coal pile and so your argument then is that the apron feeder because it's undisputed or is a disputed that the apron feeder is part of the coal processing plant the fact that it's surrounded by the coal pile makes makes it so the co pilot's in the coal processing plant is that is that you're very i think that that is logical i think that is the case i don't think you even need to get to that level of detail i think just the fact that you've got this facility where it is but it is not disputed that the print feeder is out there an issue of what the mining had claimed is that it was not the apron feeder but the crusher's at the end of the conveyor on the apron feeder that started the coal krevin processing plant over the course of the litigation i believe they conceded that the feeder itself one of their experts conceded that is the drop into the feeder and so coal in the pile is not used in daily operations and therefore it's a storage while the core is not wrong to say that two thirds of the pile is not used in daily operations two thirds of the pile is required to get up ing the logic ok your honor regardless of that the question has posed in the star enterprise's cases the way they construe the topic is not whether or not it is functionally necessary to have a pile there the question is simply is this pile in the coal preparation plant what i say is that the the one of the definitions is for coal processing and conveying equipment i think that that definition is redundant if the argument being made is essentially that only the coal processing equipment constitutes the coal preparation plant what we need to look at is just how our facilities defined in the clean air act and what is the logical way to apply the regulation we have no preparation plants we have affected facilities one of which is a coal pile they have coal piles as affected facilities because they recognize that coal preparation plants usually have coal aisles at them and so we have a facility this facility is graded on a common pad constructed on that pad you see the whole road coming up to the facility if you want to get to the coal mine you've got to travel four miles down that all road take a left go down i understand that but one of the one of the problems i'm having with with your argument is even if we if we give the fact give you the fact that the the apron feeder jetson to the coal pile if we make if we say that the coal pile is in the coal processing plant because the whole road goes right up to the coal power does that mean then the whole road becomes part of the coal processing plant and because the whole road touches the mind then the mind becomes proprietor the coal processing play you see my logic but essentially we're bringing everything in because everything touches something else i understand your honor and i don't think that we need to go down that road because the mine itself drew a line on this map of where they graded the area for these facilities there's also schematics that show a specific line that they consider to be the end of the whole road which is right where that line is drawn on to this picture and so what i would go back to however is that what we're talking about is applying a clear regulation to the facts of the case that something that we stipulate in a district court should be done by a jury now if what we're talking about now is whether or not a regulation is ambiguous number one we don't d a state agency because if the regulation isn't big us then that's going to affect national uniformity that's something only the e p a can weigh in on we're not looking at a difference issue that was the mistake we didn't determine ambiguity the court basically short circuited the trial process short circuit the fact summary judgment we quite frankly believe that summary judgment should grant in our favor because just looking at this picture it's clear that the coal pile is part of the coal plant but even putting that aside the circuit or the district court granted summary judgment on this issue by viewing the regulation with an ambiguity that it didn't determine existed before it got into the analysis of secondary sources and deference with that your honour's are going to remember the red let me ask this question you said that the regulations not ambiguous  made an error in being an ambiguity well your honor i think there are several regulations there is just the regulation stating that the provisions of a subpart apply to affected facilities and coal prep plants  the following are affected facilities and this is what a coal prep plant is it is made up of these i think the fact that we don't know what regulation the district court is saying is ambiguous is the most important point here i'm saying the regulations that i just listed are not ambiguous and you don't think the district court in this long opinion specified the regulations that the regulation or the part thereof that it thought was a big because it didn't do analysis and determine that any particular regulation was ambiguous it implied that a political regulations were ambiguous by talking about secondary sources st how important just on that exact topic how important is the open storage pile the  regulation dealing with open storage piles which my understanding was actually promulgated later than the affected facilities regulation how important is that to your argument the fact that open storage piles are now classified as effective yeah and there's also a definition of open storage piles as well i believe in the later regulation that they have and yes your honor it's defined because they included in two thousand and nine as an affected facility within a corporate plant the fact that this goes back to the initial distinction i wanted to make the fact that they now include as an affected facility simply means that they know that this is an important source of the missions that needs to be separately regulated with a performance standard however even if it's not defined as an effective facility doesn't determine the question of whether or not you count those emissions toward the major source threshold for that facility or that of understand it as an answer to just stress question because affected facility what is he he asked how important is the reg how does it play into your analysis because whether or not it didn't is it essential to the i guess you say no it's not essential question from our primary claim which is whether or not you count the coal pile as part of the major source rational determination that is a question of the p s t program not under in its p s up are why it's a separate question i would direct your attention to the two questions answered in the one thousand nine hundred and eight guidance because i  definitions forty c f r sixty point two four of one eat affan now are those the regulations you're referring to when you say the regulations are unambiguous those are some of the regulations there are the rest of the how do we read your brief to find the rest of them it's the regulations the the part of some part why that says the provisions of this apart apply to affected facilities forty c f r to fifty eight and to fifty d which says the performance standards are political in addition to the ones  just referenced and sixty point two five one am with the one i was referring to which i find the open storage piles correct your honor in the ones you were just what we use reading from your brief for or just i was reading from my outline quite frankly but i didn't i can't in you got a separate argument section of and review the regs are unambiguous and we're trying to find out what it we're trying to clarify what the argument is and you just keep exercising the primary responsibility that was delegated to it by the united states to implement and enforce the clean air act not to issue that permit north dakota dakota properly concluded that the min not in the cool preparation and processing plant now the problem i'm having just a jump and i hate to interrupt your opening but it gets back to the point that the apron feeder goes pretty far into the coal pile and then you look at the regulations and i'm not talking about the guidance the regulations say that coal piles can be affected facilities and recognizes that a simple coal pile can be a facility and the and that and and so i don't understand how that's not in how the apron feeder can be in the production facility or in the in the processing facility but the coal pile which touches it and actually is used to operate the apron feeder is not that doesn't make sense to me well the  there is no it's undisputed of course a paper in future touches or sticks out into the pile that doesn't have the effect of moving the entire coal pile into the coal preparation plant which you really have to do here in order to create any disputed material question fact about the emissions and let me ask you as i'm asking a slightly different way through the regs unambiguously and maybe i'll ask this question st the regs unambiguously say coal piles can be affected facilities right absolutely and they they can be part of the coal processing plant in certain circumstances they can so if they are not if the coal piles not part in the coal processing plant here when would they be when it touches all i mean because there are this is a situation which it touches the things that are in the facility well there are circumstances in which piles of raw coal exist inside coal preparation processing plants there's actually documenting the record from the e p a that gives examples of prep plants and the very st example in this is in this is in the joint appendix of page eighty six talks about piles of process go inside the plant and the key distinction here is piles outside piles inside the plant be if it's in that building on the picture there's a big coal pile that it would be in the process only when case but if it touches if it touches all the machinery outside the plant it's not in the processing plant even though i do your definition the apron feeder is not in the processing plant it's not in the in the building well the apron feeder and the apron feeder we there's no dispute that it is yeah but it's not in the building that's your that's the definition you just gave me no i meant well it's in the boundaries of the regulations i don't want to i will get to the guidance later i'm sure we'll have a big discussion about that but you're telling me that the coal pile can't isn't inside the facility because it's not in the four corners of the building and my problem is neither is the apron feeders so why are we treating the apron feature any differently well because it's part of the structure it's part of the the physical structure the wall it's connected to the wall it's goes there's an opening in the wall and that hopper protrudes from the is connected to the building that in some way it's directly connected as you can see from the pictures in the record and actually the pictures in the summary judgment decision page two thousand and twenty four it's it's directly connected to that wall and which which physically separates the processing plant from the pile and so that addresses your qu you've used the term in the play act several times but that that phrase is not in the regulations is it it is it's sixty c f r sixty dollars a right the beginning of some part why think is unambiguous so so is that the when we dig down to the to the base question is that is what's in the play and that is exactly the base question and specifically is the entire coal pile in the plant because i mean experts are agreed here that unless you count fugitive emissions from the entire coal pile or the whole road and specifically wind erosion from the entire pile then the appellant's can't possibly carry their burden of showing that the potential to emit is two hundred and fifty or more in their own expert has said that all the other activities from after the whole road everything else opposite the whole the only way it happens is if the whole coal pile is i'm just wondering whether you can see that part of it as if it's that that wouldn't create a material dispute but right before we get about two hundred and fifty dollars it would be a club just curious as to what what your position on that has on whether the whether whether part of it the the part that's being pulled into the apron feet are directly connected whether that part of it would be part of the coal processing plant or in the coal processing plant well once it touches the apron the feeder falls onto the apron feeder it is so that hopper is right we actually and this is not something that we're being imaginative about or creative we have the manufacture itself of this piece of equipment saying that the that material is loaded into a hopper at the intake and and it's held in this hopper now the district court said that that was ambiguous he said if you look at the guidance what the hopper is actually ambiguous doesn't refer to the apron featured as a refer to something else and so i guess that kind of was was understandably probably correctly critical of the department for not putting this out for no reason comment on our notice and comment and then you've had a front end challenge on their interpretation perhaps and that would have gone for review probably in state court all that lead the u s supreme court in the standard review would have been arbitrary and capricious they didn't the plaintiffs didn't go that route claim they would lose because they didn't get the opportunity to go with proper notice so they bring what is basically a collateral attack on the on the state agencies decision making right well i don't understand why this question of deference  review as though it had gone up as though we were reviewing the agencies to the extent the agency's decision is relevant well i think the standard is essentially the same as arbitrary much different that's what and so quibbling all over good morning chevron and right now are and so forth that kind of go over my head in this context i think that the one of the cases we cited maybe it's them in kota case maybe the grand canyon case but the court made sense of that comment that you know it's very essentially the same is arbitrary and capricious but the way that court articulated it was you know as long as what north put the state did is is within its authority and reasonable and not inconsistent with federal law or guidance then then there should be deference and and this court rep recognized uncomfort like as long as north dakota was exercising its primary responsibility and did not do something that conflicts with federal law and then it is entitle to considerable different now on the guidance  specifically addressed the situation here what happens if you have a regulated and s p s emissions unit like a coal preparation and processing plant and that's inside an emissions unit that is not that is not regulated in the new source perform sex like a mine ek in specifically e p a was talking about minds and what they said is in that situation which is our situation here you count the fugitive emissions only from the preparation processing plant so that is that's key and we have to determine one of the exact boundaries of the here and count those huge of emissions and again the quote in storage bile isn't part of the so part why regulate facility because it's not in the plant do we need to rely on the regulations i mean there's a lot of there's a lot of overlap you've got the potential our deference to the regulations you've got arbitrary increases tribute to your decision in your view are the regulations themselves unambiguous you just disagree with the interpretation advanced by the other proximity to the plant but that's not the test here next to is not the same as in and the rd circuit in the star enterprise case specifically rejected this kind of adjacency tests and this this court should do the same how would you how would you distinguish from the star enterprises case i realize that was a completely different some part but similar similar regulatory  scheme it's a different subject but but i think that it's reasoning is directly on point here that there the question was is a gas turban inside in a refinery and the courts say well this is a question of you know the physical location and you can't look not just is it adjacent to it it's not is it kind of integral to it does it have a function that's important to it now is it is it in here it's not in there it wasn't in that same testifies  any significance of the clean air act rd argument is that the pile is not located at the mine face this is one of their arguments based on the language of the rule and if it's not located the mine face they say it must be part of the preparation plan but e p a has rejected that argument because you know that whole road is not located at the mine face either right it goes on for miles away from the mine face and yet it has specifically address not to cover any operations unless they're on the premises the preparation plan if it's somewhere between the mine face and that st copper it doesn't count i see that i've used my time thank you your honor i think that the agreement alone that the regulations are on ambiguous is as far as we need to go here and what i was saying earlier is that when we start talking about deference we start talking about secondary sources the tools we use to interpret ambiguous regulations those tools don't have a place here what we're doing here is applying what we agree are an end to us regulations to a fact pattern that's something we do at trial that was done here on summary judgment summary the thing i'm struggling with and is not so much the interpretive part of it it's the decision that was made by the agency here the state agency did they make a factual determination that it's in or did they make a legal determination that it sent because under one sense if it's sort of a factual dispute it becomes arbitrary and capricious if this is about the interpretation the regulations were in a different a different sort of place a different box and so i want to know your response to that because i think the outcome of the case could come out differently depending on how you deal with that question unfortunately my in my honest answer is that i don't know what the agency did and i think that's one of the main problems with asking those questions what i think the agency needs to do what i think that we need to do is apply unambiguous regulations to a fact pattern and what i glean from the record quite frankly is that they had the sense from an e mail from the mine that we don't believe realize that this is you know that they're saying that a coal power does need to in the four walls of the facility and if it was in the apron feeder it would be in the facility so they're making what appears to be not a categorical exclusion but they're making a factual determination and brief them well argued and we'll take it under advisement