provisional stage of the regulation of underground storage tanks and certainly the legislature thought the new program was period it was to be it was to be used going forward but as with many legal changes leisure and sometimes the courts recognize the parties have reliance interests based upon previous for rams and allowed older programs to stay in the program older releases the stay the old program but gave the option for old releases to elect to be governed by the program a new program is known as title sixteen today in title sixteen is the new law of the existing law and this has become or obscure as time has come by we're talking about events from twenty five years ago or last twenty five years ago but in the case of mixed garage which we attached to the appendix of our brief there were three deducti determination is the only legally recognized termination our situation is similar but you know essentially the opposite what differences you stated your old slide on was not considered traditionally und law to be eligible for any reimbursement from the energon storage tank program the way the program was it was created it's essentially somewhat like a property insurance concept what is insured is the the tanks the tanks are destroyed or thrown into the landfill if the cleanup is not is not completed the tanks subsequent ownership of the tanks is an impossible is imposed is impossible the language of the of the act prior to around two thousand and six so new property owners might inherit these problems without any access to the fund if you may notice from the sort of background in this case there's not a the process works as the check went to the state's consultants lender that is that is where the money went so there wasn't there was a check or i believe possibly them out it went to the possession of a third party basically because the work was performed on you know paid for credit it so that money is deposited with the lender and what no not here on the jump by the agency to seek that money back after the board declined to dismiss the case on the on the grounds that there had been a payment made  well i mean technically no it thickly no because there's a subsequent case in which they're seeking that money back here what what the agency is arguing is that  last bit of work wasn't the only bit of work so initially there was work done under under budget and ok well i was just having difficulty trying to figure out how this payment fits into this whole scheme well i mean for each of the boards ruling it doesn't fit all that they basically said it wasn't something you're authorized to do and so therefore it has no beagle legal effect but we've argued him in one of our arguments is that that was a agency was correct there's going to be a subsequent dispute about what it is forty years to seek reimbursement if the agency was incorrect that it should not have changed its its position after the agency to seek to do that when it knows that the money you know with to a third party those are additional issues that are not here before the record but there is a question about whether or not when the agency denied the application for payment  started this process whether or not that was legal would it be fair to say that your argument in his court today is that state fire marshal said he dug a ten thousand dollars according to  that's enough information to submit an application to the state fire marshal to see what they say it was that gives the state fire marshal fire marshal could have said you know five thousand two hundred thousand was a very right number  we were so you didn't do the work until you knew there was a ten thousand dollars that all the have been approved by the fires set yeah even even more than that is i guess i was struck about four subsequent property owners didn't have access  estate would not have elected to come into this program if the duct was one hundred thousand dollars they wish they would have you know drop this property they have they they will let this property  use the estate has i think somewhere in the record they think that we've submitted the you know the initial inventory of the state i think something like sixty thousand dollars of assets they don't have they didn't  one hundred thousand dollars deductible is going to be impossible for them to pay that so they would not elected to enter this program they would drop it would become a problem for the community which this continues to be an eyesore on know going beyond that each time each step of the this program false reproval of the work and budget you perform the work and then you have to come back when you apply for payment for the work and say  preference appears to have been to deal with it that way that you can't raise issues about the amount of money owed or to be paid after the work is performed you have to raise that but it's going to or from the site i mean we think the proper result was a larger this larger one that simply looks to the state fire marshal as the person in charge who made a determination and you know i c easily cynical about that if there's a farmer who makes a decision that's bad for my client and my client did not appeal it it was the wrong decision i'm i'm without recourse also i mean that's that's the way the game is play and the benefit to that system in which the people rights are available with a fuel fuel fire marshal determination within thirty thirty five days is that you've got finality and you have certainty by which you can then take action in the future this program relie substantially on voluntary actions from parties is not it's a it's very much a pyrrhic program in particular get down to election to proceed is on or when my colleagues you know case before the board poll these people heroes come back into economic economic use without the benefits insurance program that was created with this bill and without the ability for the complex of contractors engineers consultants to make deals with the owners my partners have done this before i know it's available it's maybe not something people like to think about but the property didn't have any value there's no way i believe to force beneficiaries to take title to the land they don't interest in this they have to make the similar types of decisions and work around some surely it may not be getting any money off that they may actually donate the property to somebody who put it in economic use the they rely upon is for gra main reasons first the e p a was not statutorily required to apply the time thousand dollars deductible determination made by the state fire marshal second the e p a did not review the stage three plan and budget when marshal which was authorized to make such determinations with regard to newly reported leaks answered a found dead a ten thousand dollars off the bill applied and so in when the e p a rendered the decision that's which time it was the agency and authorized to make determinations following the report of a leak and one by the state fire marshal made in two thousand and eight the e p a then resorted to the admin is the applet ministry  section seven thirty four six fifteen before which provided that when you have two different deductibles for the same site an incident the higher deductible must apply now petitioner is arguing in this appeal that procedure by which that happens which is a procedure where the state fire marshal makes a determination after a leak or an occurrence whatever the language is has been discovered and reported and so what we have here in this case is we don't have it well there's no clear authorization is already a yes or no i'm not sure i understand what you're saying well i'm saying is that is that the statute doesn't directly answer that question because it doesn't provide any rephrase  the state fire marshal terms like the building shall be ten thousand dollars correct is that a violation of the law i don't believe there's any violation of law no your honor and  that nobody is questioning were valid at the time it was made but no action was taken so no your honor there were no payments made prior with regard to that stuff that well and so what the the practical consequence petitioners theory or interpretation of the act would be that any determination made by the e p a prior in one thousand nine hundred three when it was the agency that was authorized to make such terminations could be automatically invalidated by a subsequent state fire marshal determination made after the changes in the act even if that's the case what's the probable plan well the problem with that have refractory flex the legislative policy that say f importantly keep the language from the original statute that only ones adoptable determination shall applies perseid mccurry it's so that indicates that a preexisting deductibility determination you know has a life that essentially for or for prior actions because there simply wasn't enough money and fun really there was also a rejection of how he was handling this tire issue the legislature was tired of its him like it shifted to a different there's if that the legislature had intended for and for all old decisions to be automatically invalidated it could have provided language to that effect in the statute that the legislature didn't provide language one way or the other and with regard to the underfunding of the fund this that's problematic here because under petitioners interpretation of the act every owner who received the one hundred thousand dollars deductible germination by the e p a in the past would now have an incentive to reapply for a new time the legislature was amending the acts to solve the underfunding problems it would also create a mechanism whereby anybody could ever gotten one hundred thousand dollars terminations by the e p a could then go back to the say fire marshall in the hopes of stop and fairness argument i would just point out the strong presumption against applying a stop against the state once when public funds are involved the you the course of that that stop isn't applied when the this is a relatively limited mistake there was no long pattern of saying this ten thousand dollars and so this is that situation of an unintentional mistake by a ministerial officer at the e p a where the presumption against applying the stoppel against the state would at that point of the board held that it couldn't reconsider its earlier decision and then the e p a did argue before the board in the proceedings for the board consistent with the arguments i'm making today that it was not statutorily required to apply the state fire marshal plan and budget the e p a conducts a technical review and a financial review and simply looks to ensure that the costs are reasonable that the costs are consistent with the plan and  informant's with the plan and those three factors those three elements relating to the relationship between the activities in the plan and the corresponding costs are sentient mirrored in both section fifty seven point seven c three of the and seventy three seven thirty four point five seven b of rules so there so when the e p a reviewed the payment request it was not reviewing any other deductible determination because although accomplishing the goal of the plan and then whether the corresponding costs are reasonable and necessary in light of those falls and very briefly since you're interested ask about the payment that was made earlier a voluntary payment doctrine was mentioned in the various other voluntary payments auction would not apply in this case because it only applies for attempts to recoup money that has been spent on and here that was not an issue before the ok the state makes the argument that the it was a determination is really something made in respect to things on the ground or facts on the ground at a particular per play some time when we win when the sta received that decision it is an appeal here we were not aware of that didn't know it existed didn't know better would exist would have any relevance to us it's we're not we have a dog was issued to us we were found to be eligible we basically got insurance policy decision the state of slidell it's a separate entity from carol the slight i'm in here's what here's what we got we were not aware of this until we got it right we've submitted an application for payment for your old slot of your you're you're eligible for reimbursement you got a hundred thousand dollars check you duckbill that was not appeal that was not a final decision that was just telling you but as a result though there's not a formal appeal process or the other formalities it's a letter that that is what is what is there to just take the one life if i just take one would make sure we're asking