suit time i think that is right there the the tolling agreement is in the record if your diligence if you if you did not have any failure of diligence for the period of the receipt of the environ report in two thousand and four until two thousand and six that would make you timely you don't need to have been doing diligence all the way up well you see c's argument is to the contrary in the district court found to the contrary and the primary issue is whether the clean up done by u c c under the regular statute decades earlier served as the one remedial action that would trigger the statute a limit patients so that what that there's nothing in the statute or the case law that requires that result the district court and however ninety three dollars actually that started in the late eighty's with that investigation and then there was some work i believe in ninety two dollars and then ninety three dollars ninety four cents so it's remediation started ninety that that's correct and we didn't miss it because we didn't have any there's nothing we could have done we didn't exist we didn't have a cause of action you know the property or excuse me the property that we did not own the property we had not done conducted any work so it is   which starts a limitation period going and then that remediation was inadequate so it then it doesn't another remediate a subsequent remediation and is contending that it should have another another six year period if that's the period beginning with the nd and the court's ruling was that that when you start the remediation that starts the statute of limitation you can't then do it again because of the inadequacy of the st and get a whole new period that's very different from your case where the where according to the defendants can get contention and the district court's holding the room in the room or mediation the period of the six year period it began to run when the defendant did its inadequate remediation with a cut with the consequence that you are untimely before you acquire the property that is exactly right your honor and i think there's a further wrinkle in nice aig where there were more than one site involved i think in one of them they actually split up their remediation intentionally into different company many sites do we have here this is one site sisters bill west virginia who are you arguing that you get the six years to run when you purchased the property is in your view no we get this right under your view we get the six years when we when we physically initiate on site construction of a remedial action by a new purchaser but yes the what if there's a subsequent the court understands how it got to the conclusion it did in ny saying that's because it was one party i don't think you need to give that answer to judge drone each question if if if if a new purchaser acquires the property with knowledge that there is a remediation going on at that time i don't think you need for yorkies to say that the six years begins anew with the new purchasers undertaking its own continuation of the remediation i agree with your honor but our premise is under the circumstances here u c c could not start the statue of limitations running as against us by doing its  remediation decades ago was and mediation for p c b s he  c s so the record is clear been any remediation p c b in the past no the the union carbide corrective action that it did and the judge made this fine and she did not go as far as we asked her to go in terms of the intent of union carbide but she did make the finding that when the union carbide reported to the environmental protection agency what had been disposed of on the site it conspicuously the district court's word avoided mentioning that and that's why the corrective action did not include it public learned about raises another line of inquiry because maybe the best way to solve this is a say that it's really a matter of contract your client of massaged into an ordinary contract arrangement you buy a thing that has apparel you you you allocate the pair by contract a couple answers that you first we did not buy the property from you correct me i know that ok there was there was an interest i intermediate owner and while parties can allocate liability under circle and as with other statutes the case  that is true your honor and the record is they they hired a sophisticated environmental consultant to do the investigation and the judge credited the testimony of mr wood who testified that when he hired them and when they gave him the information the only information they had about p c p s that they thought was of any concern at all was that they had been used in can with and connection with transformers and electrical equipment and that they did not expect to find hundreds of thousands of pounds which is aware of the existence of some residual contamination consistent with what you were just say leakage from transformer equipment that is correct that there was a new record low levels in the sugar ca in manufacture process sees and routinely disposed of on the site they used to but the e p a had approved a remediation with notice of the existence of some residual contamination consistent with the notice that that your client acquired from the environment that is correct ten years that is correct and so what i want to point up are just a moment is with my limited time remaining the nice i decision was never as pointed out earlier was not one party suing another party was a single party who split up his own cleanup what i would say is if you look at active site there had it had been known that there were likely be some in the north an active site how much how many or what's the extent of the c b existence in the north america we do not know though we still do not you believe a substantial  is potentially substantial but we do not know because it didn't come to light that the potentially hundreds of thousands of pounds of p c s were put somewhere what we found was we're building a wastewater treatment plant upgrade we found in what was the form face it states that the six year statutes runs after the initiation of the physical construction in the statutes words the remedy m p m a claim for remedial costs segue what the nice a case was all about was whether the fact that remediation is taken to different times and also whether contamination is not there is not discovered initially years later has to be remedia constitutes all a single remedial action or whether somehow a remedial action can be broken up and what the court did in that case was looked at the beery nature of what a remedial action is under circle it is a term of art under circle and what the court found looking at the statute was that by its very nature a remedial action is as this court said in that case once and for all under the statu it remediate all action is defined as those actions among other things that are consistent with a permanent remedy that that case didn't turn on the discovery of nice and are so extraordinarily different from from this case that that that that ruling simply can't logically be applied to this case the proposition of can i say i was that when one takes a remedial action and that the statute begins to incurs the costs and then if later you find out that you didn't do a good job on it and you start to do a further remedial action to remedy the problems that you left with the st inadequate or bulacan you don't get a new start but that has no that has as no how logical application to a case like this where one part of the st party that owns the the grounds does some remediation does it badly and then to honors later i eventually discovers that there are big problems and you say sorry when you bought this land you were already on time only to recover costs for a ship that simply makes no sense respectfully your honor nice segue actually is directly relevant to this case and here is why nice segue didn't just deal with the situation of a remedy being inadequate and having to expand it later at the oswego site there were two different in that was in a particular area of the facility years later totally unknown contamination that it could have issued a previously unknown was found in a river and it turned out that a previously completely unknown pipe had connected this site to the ripper and the court said in nice segue it doesn't matter that the contamination wasn't previously known it doesn't matter that the remediation was completely separate in time and the reason for that is what the issue what the very nature of a remedial action is again a term of art under the statute it's by its nature once and for all if it were that it wouldn't be a remedial action that's what nice segue is about and that's why it's directly to be one point on this can't be more than one remedial action i mean assume that over and over here on the site there's a there's a bunch of us and the pri you're nice i get is that that is what this court ruled that is what that case stands for because what the case turns on is not the nature of the remediation not that not whether it was only one party that the case literally does not turn on those things it turns on the  inherent nature of a remedial action and that by its nature it's once and for all and there can only be one remedial action to the site that is what this court's excuse me even if it's deficient even if it's deficient in other words if the previously unknown can have been a bit was awful tar it may have all been coal tar but the notion that it was previously unknown didn't make it less than one remedial action in order to come to the ruling that m g m is arguing in an attempt to save its claim it really requires overturning nice egg it's not just distinguishing it because it didn't turn on whether different contaminants were found the war on whether different parties were involved it was it court in the district court specifically address the issue equitable tolling there is an equitable tolling docket doctor in the provides relief in extreme circumstances when a party is not compliant with the statue of limitations and generally it's after well at the district court found below that the m p s actually raise that issue interestingly they didn't see fit to raise it on appeal for good reason the district court rejected that it would provide relief here because m p m beginning currying remedial cost as soon as it acquired the site in two thousand and three because it took over the preexisting remedy of the north inactive site the maintenance of the cap and the recovery well the maintenance of the ditches it didn't even file s years after that but you are going to answer the concealed question my recollection is the district court made a finding of fact that there was not enough evidence of concealment is that it's that's absolutely correct what you were going to say that is one of the things i would have liked to have said yes the court did reach that finding it also found that m t m at the time of the acquisition through that environ report that was mentioned earlier the due diligence report was on notice that environ had reported that there were p c bees of unknown extent and not in  not fully known origin at the site they knew that when they acquired the site in two thousand and three there were p c b sampling hits all over the refinery outside the outside the all in this area called the e p area that actually small area but area tissue in this case those were all known to it so m p m came in it knew about the p c b s in two thousand and three it knew it was incurring remedial costs in two thousand and three when it took over the remedy it did nothing it did not bring suit by two thousand and nine which was six years later it didn't bring suit by two thousand and ten it negotiated an agreement belatedly going to hash it was doing was not for p c that's correct they haven't done any remediation to this day the regulators have never required it and they had all the information m m p has never done any p c b remediation directly except i will say an exception to that it was brought out earlier is there there there were these issues about p c b's of unknown extent in the north an active site and so that initial remediation did include p c b in that area to the extent they were in that site so it's but they have not engaged in anything beyond that in any area of the facility and get into this diligence issue you know with respect to equitable tolling so they had all this notice they didn't bring suit on time and then the the district court found it significant that they were dilatory in other respects they had all this information about b c b s which they've accused the union c concealing they waited years to give it to the state they waited years they the court ruled that they violated their record perman actually by not timely disclosing it this is not a circumstance where equitable tolling could apply just set up some evil incentives because anybody who has requires a site just can start some cheap and dirty remediation process and when they sell it six years later seven years later they're really off the they have they have literally commenced statute of limitations hasn't has as  a as lawyers initiative that's not the real world your honor and one reason we don't live in that well no i respectfully think the court does in the sense that there was recognition earlier today and certainly recognition throughout the case law of commercial practice and what happens just as m p m did in when it was g e did very existence of due diligence including with respect to p c these quite focused on the port one hundred and forty three sample of p c b were tested but just as it did that a commercial buyer typically does due diligence so they will know it for remediation has started at a site and so what happens in the commercial world is the parties allocate responsibility for cleanup it's also giving environmental issues  inordinate focus to suggest that they are what motivates parties timing and selling a site their parties usually it's a broad commercial considerations the motivate the sale of the site to think that a party would put off a transact at the by me in the value of millions or even billions of dollars just to run a statute of limitation is that extreme circumstance and we really haven't seen that from what we can tell in the case law so i don't think that's a realistic concern i think commercial circumstances do to take care of that again through contract negotiation allocation this won't be a situation for sites don't get cleaned up is just a question of how the responsibilities allocated the market will take care of what m p s is really asking this court to do is rewrite the circle statute of limitations which is plain and clear on its face there's no reason to rewrite it so that it could only begin to accrue and a party has a cause of action it's very apparent on the plate in the face of the plain language of the statute that congress intended just the opposite you tended to have a totally different time periods for the statue of limitations i am for the cruel because of action analysis right no no it's not it does say the and that was and for example the th circuit saw that is highly significant with respect to the notion that there could only be one remedy but in nice eg this court took a much broader look at and said what is the real nature of remedial action to the statute it noted the definition in circle of that remedial action by its nature is actions consistent with quote a permanent remedy and it didn't this this court didn't hang it hat entirely on the word the i do think that's one indication that there is only one remedy but it's not it's just a part of a much bigger picture and so the statute has  in used industrially for decades maybe a century and it's it's owned by two different companies from one site to super funds and one of them starts remediation in one year and then the other one doesn't start until seven years later i decide to limitations work well in that situation the nd owner of the site if it hadn't entered into some kind of tolling agreement as might not be unlikely or a contract with the prior owner would not be able to bring a claim with respect to i mean i i don't sure why that owner would want to bring it in other words it would not be able to bring a claim because the owner of the remedy had already begun to decide and sometimes steps the potations do cut off claims i mean that is the nature and it reflects as this court ruled and safer as many courts have ruled that evidence gets stale and there is a value in workable because it's true that the remediation may go on for decades but a party if it feels it has a cost recovery claim to be made can bring in initial action within th is running the statute that that's correct there could be a situation that is the situation in this case however a party can deal with that contractually by the way am pm to deal with it contractually they negotiate an indemnity with the company from which they purchased crompton which covered pre existing contamination that's what parties do the nd owner in the in the hypothetical who began remediation couldn't get it so what do you do here crompton has issued they they didn't timely inform crompton the other issue here is m p s it mit's that it has not engaged in any p c b remediation beyond what's going on at the north an active site  i don't know what'll happen if they raise their claim that they could have brought raised a claim i suppose because they were incurring the costs relating to the north an act of site and there are some limits that they commercially agreed to in the indemnity we don't think that m p m had taken steps and does not authorize any other management of hazardous waste is not a limitation when p c b s are not described in the permit not necessarily particularly because of the nature of the corrective action here it covers the whole north an active site for example regardless of whatever contaminants are there and there were descriptions that were provided to e p a that provided more general description of this of the kinds of waste of the site that it's so it was sort of it i have a question to ask you about your adversary's response are relating to concealment with respect to union carbide i you had for syria if i understood him correctly he said that the district court had found that there was that there was no concealment a couple of questions one is it was my impression that the district finding was a different that there was no that there was insufficient evidence of willful fraud with ekta concealment but that there had been concealment that is two hundred and fifty thousand pounds of of p c b s and the nd question is to the extent that the district made that finding is that finding i sustain a bill finding in view of the burial of two one hundred and fifty thousand pounds of p c b s and a non disclosure of what the district court found after trial because this was an issue presented at trial in the context of the equitable allocation of the district court found that although union carbide i think she used the word intentionally i know she said conspicuously did not we urge that her to found sorry she found that that was not disclosed she didn't find that the concealment was intentional she what she found was there wasn't sufficient evidence because written internally that was essentially cut and pasted into a notification for e p a that listed nine different categories of hazardous waste disposal on the premises and the only one missing was these p c s and then she said that was conspicuous in its absence and we did urge that to find that it was intentional and therefore it was an equitable factor to be used against  and of course she did find ninety five percent of the responsibility was union carbide so i think we were not disappointed with that result the the court was talking about mr siegel was talking about rights under a statute of limitations if they want to before but their claim actually accrues but it would be an odd result and you shouldn't construe statutes unless congress had made that clear congress certainly in this case hasn't made that clear now in nice egg there with the remedial action being a one time once and for all the court was talking about the incentives for the parties to do a proper cleanup and you shouldn't reward might be the wrong term but others are cyberwar you you shouldn't allow a party to have a benefit if they do a haphazard clean up or not a comprehensive clean up because the incentives in the statute are to encourage people to do the right cleanup here exactly the opposite incentives are in play because it was you see see that did the clean up that did not include p c b zero's ago and applying nice segue to allow that to cut off a statue limitations for m b m provides an incentive for parties to do a less than thorough cleanup and it is not speculation to say parties would likely read such a decision and say we should do a clean up at every site but we want to do a really good clean up and then once we sell the property years later we'll be fine this is a great risk management strategy i don't think that is far fetched to suggest in terms of the statue imitations on remedial actions begins to run at the initiation of physical construction of a remedy so that was not two thousand and three we discovered p c p s it was not when we refused to pay so when you talk about whether there should be some should have been some presumption that we dealt with the p c be potential for p c b contamination in the purchase and therefore we got a discount on the purchase price which is one dollar of the allegations that's inconsistent both with the testimony and the judge's finding as well as the fact that we got an indemnity from crumpton it just wasn't good enough we can't collect on it we haven't been able to collect on it and the judge said of course the district court judge said of course when you go to collect your future response cost you can't double recover you get one we can't double recover if we do succeed in getting some money from crompton obviously we can't get it from you c c so far we haven't i would like to turn to the issue that we really one of the issues we raise at our cross appeal which was the issue of the court's allocation it's subject to abuse of discretion standard and accord does abuse its discretion when it fails to weigh important found in multiple samples by its due diligence consultant that made me a factor but another factor was who put the p c b well in what they also have that was a major consideration and you would have to argue that that's knowledgeable company in the world about p c b cleanup hudson river who said tunick others they had a memo telling them up to two hundred and fifty three pounds were disposed of on site they had an a do diligence report telling them that there were  he thought they were from transformers that of course begs the question of how expensive they were or the objective notice the court found that m p i was a quote sophisticated buyer and for good reason given that it was g e at the time one of the most sophisticated in the world about p c bees in commercial transactions they were selling a business with plants all over the place this was just part of a much larger transaction and they did negotiate an indemnity and the court found as as council recognise that the indemnity could be relevant and allocation but the court records about i can't decide that now and so we've ignored it in the actual allocation without any your argument is about the weight given to a valid consideration well in this case usually gets faulted into an exercise of discretion when if you win well it was there was a lack of explanation with about the failure to consider some of these factors that there is discretion about weight but there has to be an explanation if they're not considered the broader issue about declaratory relief it's that it is that it's on right in the st place under the supreme court's the supreme court has recognized that congress would statutes as is subject to constitutional standing requirements to a case in controversy requirements and the test there for a future injury which is what the allocation goes to here is whether the future injury is certainly impending certainly the injury in this case was removal cost the court specifically declined to find whether removal costs would ever be incurred the court did rule that response costs which could be either remedial or removals you can specify whether removal or issue here were quite likely but she applied the wrong standard jurisdictionally the correct standard is certainly impending likely is a much lesser standard so the more fundamental issue about the allocation is that it was on  liability was on right in the st place and argues well circle has a mandatory declaratory relief provision not for allocation but for liability but that has to be read in the context of the constitution you think it's not likely that is going to have future costs responding to the p c b it there is no law if there is no demonstrated likelihood of future costs for removal and perhaps anything relating to b c b s in the sense that to this very day years after m p two thousand and three when m p and was st on notice years after two thousand and eight when it said it encountered p c b wall excavating at the refinery it hasn't done any remedial work has it done any removal it hasn't done anything contamination if they don't incur them nothing like if they don't incur them that they don't have a claim for declaratory if they if there's no likelihood that demonstrated if it's not demonstrated that it's certainly impending and how could it be certainly impending when they've done nothing in all these in all these years and it's important to understand what the nature of the remedy is under circle the nature of the remedy is cost recovery of costs and the mere presence of contamination is not the injury for which circle