have a single case to be argued on the calendar this morning power authority the bouchard we have five submitted cases and i would ordinarily dispense with reading the calendar in this circumstance but because we argue case and as i believe counsel has been informed we're going to modify our usual practice and give you three minutes of uninterrupted time at the beginning of this argument given the unusual format simister fully acted as a responsible party engaged emergency response oil spill you know our tractors to contain the spill and to remove the oil the district court dismissed niklas rd party claims against defendants under opa and directed it's new york o vote is a grant of authority to the states to impose any additional liability or discharge of oil or other pollution within state waters notwithstanding opa or limitation act the savings cost placement in title one dollar of all suggests that congress intended to laws come into play and are necessary to protect state's interests into an enclosed liability on polluters within state waters now under the same provision additional liability is more or broader liability than your cost of a life imposes additional light the lobby against it imposes liability against any person that discharges oil in new york state waters there's no facility required so this is brought to light this is additional liability and i'm sorry you have he has questions but i'll start with one and then and then it's a judge really is hands this in follows on with your immediate question your your most immediate remark and how you address your adversaries argument that we should limit or construe the meaning of storing handling or transforming oil in light of this the surrounding language in the statute that references exploring for drilling producing processing or transporting oil the definition includes  terms that refer to exploring drilling or producing which connotes an offshore use of the facility but it also includes storing handling transferring those are all uses that you know to an onshore  the handling transferring processing or transporting it was the purpose of the cable or that the standard is to transport electricity well it's a purpose of the elect of the transmission cable to transport electricity but that purpose has nothing to do with oil the definition is that where the facility is used for one or more of the following purposes in connection with oil so how was the facility used in connection with oil well d it very clearly stored handles and transfers oil under pressure moving back and forth through the pumping state moving back and forth in the cable alone whether you look at the cable or the pumping station together the that the cable is used for the purpose of storing and transferring and handling oil during normal operation and it's necessary for its function so you can't have this electric transmission cable unless you have the containment of the oil and the use of oil to allow it to perform that function of transmitting so so the do is that the cable oil the interior so that there's no that much yes there's a core conductor that transmits electricity surrounded by insulation which is permeated with dielectric oil that serves as lubricant and influence and the and also create the environment for the electricity to be able to transmit under pressure the royal has to be there in order for those for the table to function a court just gave it a very narrow reading to focus on purpose and primary purpose but there's no reason that we should do that in the case of the facility under oath which is a comprehensive federal framework for oil pollution it's supposed to fill in all the gaps and and we're going forward have a comprehensive scheme so if we exclude things like this cable we're creating a gap in th in the scheme for coverage so there's no coverage for oil spills in navigable waters which is the primary focus  district court focused on a primary purpose test which you don't believe this is in the statute let me ask you about the three that are listed as possible purposes here that i think are the only three relevant storing handling or transferring i understand your argument about transferring is that there is oil that actually flows from one end of the pipeline back and forth in the course of maintaining the pressure in the cable is that correct yes transfer it means to move back and forth and that's what the oil does is has the cable operates the cable operates the conductor carries electricity and heat is generated that he has to be removed and it's done through me while consent and the so your argument if it comes i don't want to make sure i'm characterizing it accurately is that the table is designed to transfer of oil that is one of the purposes of the cable there may be a another algeria purpose why the oil is being transferred which is to reduce heater or  but your argument would be that you don't have to ask whether it was being transferred for its own sake sort of the purpose of transferring has to doesn't have to be just transferring for its own sake could be for whatever purpose as long as one of the purposes of the cable is to dictionary definition of storing storing it seems to imply not simply containing oil i mean you can say my shoes are containing my socks right now but they're not storing my socks but storing seems to imply laying away something for future use so like when you put something in a warehouse you're storing it so that someday you might use it but you're not using it right now so it struck me that if we look at the word storing you would need to win on the joint facility argument because i understand that years you're indicating that the oil that's in the pipeline is actually being used to insulate whereas potentially you might argue that there is a reservoir of oil onshore in the pressurization facilities that may or may not be used to pump into the cable at simply synonymous with contained the story the cables are being used to store the reservoir of oil that that is used for the cable to operate and it's not consuming that oil it always maintains a constant under pressure a reservoir of oil in the cable itself if we if we separate the pumping stations which we think that the piece of equipment should be viewed in total as  whole piece of equipment not just the cables but even looking at the cable separately the oil that is present in the cable is supporting is storage so it's not that it's saved for yeah the e p a regulates the facility as a non transportation related offshore facility and the e p a definition includes a reference to industrial equipment which is oil fi operational equipment and that's what this cable falls into and under the e p a guidance it says that this industrial quitman which is used or which uses or stores oil and that's a s conducive to transmission of electricity and that's the reason for a need for some movements between the oil and the plants and into the cable and presumably out of the cable as that pressure as the pressure need dielectric fluid working back and forth in cooling the conductor ok so whether you call it storing or handling or transferring the oil has to be there in order for the cable to fill its ultimate purpose  and yes yes ok can i can i just ask the united states at one point in its brief reads the provision to say mean reads purpose to mean something like the reason for something existence and it says even with that reading of the statute the cable would constitute a facility for the purpose of the statute but isn't that reading to the extent it's plausible doesn't that make your argument harder because you can't say that the cable itself nor the pressure plants were built for the ultimate purpose of holding or transporting transporting oil on this purpose is subsidiary to the reason for that requires the purpose in the definition to be the ultimate and only purpose and the language refers to one or more several of them ready for this is and should be given a broad reading to district court  knowledge that the tables are used to some extent for handling transferring and storing oil but didn't think that it that it reached a purpose and a purpose of the cable but when you look at the  of the definition restoring handling and transferring the use of the facility for storing handling and transferring is in connection with the oil and the reason it is in connection with the oil because this is the only pollution act and if the cable  you contains oil under pressure all the time is a threat of an oil spill and now the waters this is the type of facility that should be included in the definition or facility under the oil pollution act so this is just what was the purpose in your view defining the facility by its purpose or purpose because as i think you're suggesting that is not you could enumerate several categories of functions for which a facility that contain the oil should be a target a liability under the push  you can see the district court's read i mean by your read it seems to me you would say and maybe this is the right interpretation of the statute perhaps it well is that your adversary uses the example of a honda civic that crashes into a marine terminal in the field from its gas tank you could talk about a lawnmower that to some extent stores oriel and transfers it from one part of the lawn to the other but we don't generally think of the purpose of the  gary by your interpretation if if the oil found its way into a waterway from either of those devices it would be regulated by the statute cap liability well it interprets the savings provision to say that we are not entitled now it doesn't happen by golly it interprets a savings provision to say that we that we are not allowed to proceed outside of the limitation act so we  issues before the court are primarily ones of statutory construction but those should not be examined in a vacuum or based on scenarios not present here the issues should be analyzed by reference to the facts that are contained in this record the district court examined all of those facts and summary judgment motions presented by both parties both parties agree there was no issues of fact the district court properly concluded that opa does not apply and eighteen dollars is a collateral order it is not presently appealable and contrary to what counsel just said they will be able to appeal to these issues if and when the district court decides the limitation a liability  issues and that case if we are determined to limit our liability then neither will be at liberty to include in its appeal should five want any questions related to two thousand seven hundred and eighteen and if the district court determine remedy it is no gap year to clean water act has been in existence for quite some time it provides the gravity now there is no dispute here and everyone agrees that this case  cable this is jay and sixty one niklas witnesses further explained in testimony j sixty one that the fluid is quote being used in the cable for a specific purpose  time but i'll start with the question and and then let the judge jump in but isn't doesn't the plain meaning approach the statute pose something of a problem for you i mean the definition is only if we take the district court's interpretation of purpose the statute itself doesn't limit the purpose to one purpose only or to the ultimate purpose and the definition of the philippi encompasses equipment used for one or more of storing handling or transferring oil and whichever of those you choose this is this cable is an oil dock with the capacity to contain two thousand five hundred gallons of oil it has to contain that oil in order to function in the cable approach is the big problem for you so help me out what am i missing short your honor i think that you know there's a couple of things to consider is you're correct with the with the statute says the filling means a structure which is used for one of more the purposes and then laced with the purposes and i think when you're looking at the definition of facility it will a fifty in our system to compare and contrast the definition of the word vassal that also is defined under obama as every description of watercraft every much broader language i think is also helpful to the analysis to recognize that at the time opal was created they had the clean water act open did borrow definitions of on shore and offshore facilities clean water act does not have that so this has to mean something the decision to include a special definition facility the decision to use the word used for how they define facilities in the regulations they talk about fertility and that produce gather store process refining and then they added that also use our consume oil absolutely you guys and that is why it is a facility under the clean water act that's precisely our point it is the facility and the clean water and doesn't it all over the track i guess my problem  with the position is unless there's a way to conduct electricity across long island without this cable i can't i don't understand how  i don't even think i would submit to you on that it's not even a purpose again using your oil it needs joyal absolutely and all i can say to you is you know when you compare and i think it's appropriate to compare the clean water something different and that the fact that a facility need me every uses the oil in connection with its purpose which is what the cable does does not transmute that facility into the type of facility that that that transmutes spill from that freight train to an open scale and i think the same analysis applies here at the in the district court was correct and i think the district court applied you know looking at the statute looking at scheme looking at the interplay between opa and the clean water act the district court probably prop properly concluded that this is not a noble facility it's  brief seems to take this approach of focusing on the purpose what is the purpose could you articulate in words what is the purpose that you would assert is the purpose here i mean is it for the purpose relating to exploration and production of petroleum what is this limiting purpose you say you should look at all the other terms and come up with this limited purpose could you articulate what that purpose is yes so yes i think that when you do you talking about i'm reading the statutes and when you're looking at what what did they mean when they talk about when and where are the problem and purposes and what we suggest is that in connection with you know looking for further guidance you look at the terms exploring for twenty four producing storing handling transplant those things that the facility definition is geared  of your claim that there should be relying on things like exploration and production but the petroleum trade meaning does it have to be used to be selling oil to somebody else  mean i'm not sure really no no no no so i mean if you have i mean you have what you have you will have you know you can have a map if you look at offshore facilities for instance right you can have offshore tank farms you can have offshore facilities that are drilling for oil natural oils you can have you know you have pipelines that are transporting copious amounts of oil in one place the other and those pipelines serve one agreement reasons cover let me ask you this let's say your barge had crashed into the sure where the pressure storage tanks for this particular cable system let's say they happen to be right up against that you're right because they're begging to be super close to the pipeline maybe that's true maybe it's not true but let's just say the proud of the ship had crashed into these tanks and they burst forth with oil into long island sound there'd be a significant spill at that point so here's my question then if that's true what has that got to do with petroleum trade that trip that petroleum was sold owned by night the only thing was ever going to happen of that oil is going to get pumped back and forth in the cable and that's why i'm trying to test what this purpose limitation is because i don't understand what this how you would even define this this other purpose that you're trying to discern from the statute reich is that what you're that kind of a trade statute yes i think it's a little bit of a different and different analysis you don't have to well i can't say they're not very helpful because here we are debating what the statute means and i'm trying to ask for an explanation that would seem to be consistent with what you're arguing but if we just go back to the language itself it's not very helpful so let me ask a different question which is the government and i think we should consider are arguing that effectively what you're arguing for and what the district court concluded was reading a primary purpose requirement of the statute and isn't it true that there are many many statutes out there you know all sorts of contexts where congress  require something to be a quote primary purpose and this is not one of those statutes so that you're arguing about what i guess i think one of my colleagues may have described as an ultimate purpose is that ultimately what you're arguing for is is to say well sort of the cosmic purpose the ultimate purpose down the road for why this cable exists is for the sake of generating electricity but even if something was custom made for the purpose of transfer and oil if the reason it's transfer in the oil is something that's not in the last it's a transfer in the oil for the sake of generating electricity i not covered so let me ask you are you in effect there asking for a primary purpose requirement and if not explain why ok yes i'll answer that question and then i want to go back to the a purpose a purpose the storage or transferring or handling of the oil i do not accept that and if you look at the definition but it clearly does right and let me just ask it is that i'm sure that it does in the sense that it's designed to do precisely what with you it doesn't say that it says instead which is used for one more the purposes and i said i submit to you that that language is different then saying in the district court recognized that the cable does in some respect store angle transfer it does do that but the statute doesn't use that language but i don't know if there's any you haven't given me an alternate understanding what purposes so my understanding of this cable for example let's just look at the cable without the onshore facilities right that the purpose one of the purposes of the cable is to keep an electrical cable these these conductors which presumably are made of copper some sort of metal and part of the purpose of having the cable which i assume is sort of a big metal container that's airtight is to also ensure that there is all this oil that remains around the electricity through the electrical conductors and to swish it back and forth to some extent to mange to change some sort of steady pressure and that the reason that there is this carrot pass around it all and not just you know a big you know piece of you know just rubber eyes cable is because you need to have that oil in there and my question then is why are you looking only at the purpose of the electrical conduction and not the purpose of this big metal characters that's also designed to keep oil at a constant pressure more limiting language it didn't say every facility period that has any oil whatsoever and i would suggest to you that perhaps perhaps a reason for doing that is because although the cable across seven miles contains two thousand five hundred i think with gallons of fluid if you think about it at any one particular point it's not overly significant and so perhaps what congress had why was that look when we're talking about facilities what we're really trying to do is the catastrophic type vessels in contrast on a vessel for the water a vessel that contains you know any amount of cargo is going to have significant adversary makes the argument that the broad approach to vessel is one reason we shouldn't assume that there was a not a similar broad approach to facility that's consistent with the plain language of the provision that's the argument that i recall in the brief that was from yes i think the usa made that argument but i would suggest to you it's not the same if you put the true definition side by side because that's all definition talks about use the word every and it talks about every contrivance that is used are capable of being used as a means of transportation or water and so congress certainly knew how to use the word used again when they defined facility they didn't add in the for civil fines and penalties only by the government and open was intended to amend the clean water act and to provide a comprehensive federal framework for oil spills that covered everything that hadn't been covered before that was one of the intents of opa so when counsel says that you know that portions of the clean water act were taken into over facility doesn't exclude facilities that use oil it provides for purposes of the facility that that are in connection with oil and the containment of oil function it needs a purpose well no i think that the argument is on the other side is that your argument conflate necessity with purpose and we've heard a number of right well the facility has to be used for one of these purposes in connection with oil the necessity argument comes in when  oil field operational equipment it defines the equipment that has oil in it for the apparatus to function to use and store oil so it  apparatus to function when one of your responses potentially just playing out this interesting notion of necessity when one of your arguments to me that the morning necessary the use of the oil is and goes over a guardrail and and goes into the fountain and starts leaking i mean is your position that one hundred civic you know yeah you know what the hope is that broad and the leak counts forward your argument be it's not covered because it's neither storing handling or transferring oil and you know sort of moving it around within itself is not transferring it and it's not really handling and in the sense of like doing anything to change it and it's not storing it for another day it's actually using it or something like that i mean then you have to i guess i think argue about whether the gas tank is actually storing it because maybe someday it's going to use it where is your point that no look it's that broad because it would be i mean they would target the owner of the honda civic to be the responsible party i don't know that they would get into a facility you know but when you have a guard has to look at from where the oil was discharged and oprah was drafted to have two places from where it will just charge either the vessel or the facility and these definitions are in the liability section and they are very broadly they should be broadly construed and they're broadly drafted to to provide a comprehensive federal framework for liability foley that concludes the questioning from my fellow panelists i think it does thank you yet let me thank both a do extremely well argued on both sides very very helpful and that