briefly review some of the most important facts in our case for i like some of the most important legal issues raised in our recent and in this case so beginning with what happened on you've got a separate clean air act suit against u s steel over these matters do the emissions i've been seeing hydrogen sulfide and coal come in gas you can break these apart if the different analysis of them they violate the clean air a control units that were destroyed or close were required to operate continuously we raise issues about violation of the hydrogen sulfide limit that applies to these by lacing of any co co cabin emission limits that apply to the wearer's which is where these you know you don't allege them in that case but do you have any do you do you do you did they violated in fact with the co not asking whether you allege that i'm asking whether in fact they violate it we're not we do not accept ok how about the benzene emissions banned same issue or a lie did they violate those permits i thought i thought you have said that they had those permits they were not permitted to release any benzene for example so this is an important question we said they were not authorize through expensing that's another way of saying they you know the elena county standards don't allow releasing on burn coal company gas so if it's give it's regulated if that's so heavily regulated by the clean air act how is this not  you know in violation of the of the permit you get back and if that isn't going to get back on line it also shaffer yes sir could i can i ask you about your contention that subject to means in compliance with don't use subject to they used in compliance with or identified in or something else shouldn't don't we ordinarily treat congress's choice to use different languages different different terms as of a term that is supposedly clear on its face we think congress did try to explain in legislative history what that term meant we think we think congress wrote that language the try to reflect and i'm talking about the senate committee report i realize the court didn't reach that i understand you know i'd like to talk about the text before i get to legislative history how how do we understand know troubling discrepancies that we can see that we are trying to suggest because the definition of subject to is so model itself that it's possible it meant something also perhaps something between on the one hand if you have a limit you don't have to comply with it no matter how bad and no you have to comply with it it's possible there from you know some  so unless it is completely redundant subject to does not mean complied with their understanding or are not it is it's difficult to wrestle back into place i  would i would say that it would be fair to look at whether that results and it was up that would seem absurd as in a very suppose you had a very very you had a terrible re that you know kill people living next to the point where you could point to a requirement obviously not met and say see i was subject to that and so therefore i didn't have to disclose that the national response center w requirement but also be be subject to an agreement that one requires the recipient to our i comply with all placable federal and state laws why are they using subject to and then subject to one what is what do you have to be subject to if i may i'd like to work through those issues please and i'd like to talk about what it can't mean in the context of a statute which i don't think the court reads the district regulation at the level of the emissions from regulation at the level of the facility but it's a theory you expect for your honor i think it actually was precise in saying if you have a permit you are exempt by virtue of having a title by perm that is subject to a permit for control regulation and i'd like to get the web app means next second we don't think it can possibly mean that any pollutant could be regulated under the clean but actually it isn't because there aren't any applicable regulations to bring it under the umbrella of a clean air act and make it actually subject to any permit or control regulations that can't be enough to qualify for the these emissions will be reported by the clean air act and feel free to dispute that or explain why that's not right but if they are in fact reported will that then be referred over as the communication between the two reporting system such that it'll be flagged one way or another or is there a reason to have some redundancy between the two systems of report let me st say that if you use a mentions of these particular reporting of arms and things are they set up to alert responsible or is in the public when the releases may constitute an emergency there's just nothing that is parallel to that and for one to the reports go to the chemical safety board and then about a devising the safety board that something's happened if they want to do a follow up investigation they have that report the statute says district court have to determine whether any requirement or control regulation that's meant to control the pollution the center with exists in the st place under the permits right for each of the substance is an issue and they did just did the district or do but they don't say where we can find it and that's really important because you've got to have a little control regulation that applies to that particular release and you know with very specific definition was us still also refers to to define a term would have been very helpful in that case and that's generally records do when that support or don't really clear on their face so i you know stating the obvious of why we're here we don't think the core had a real grounds for ranting and probably six motion there are too many unanswered questions now i know that you're still tr and plaintiff's arguments whether in their brief or here today boiled down very simply to an attempt to redraft and change what congress has enacted and is the district court found that's not a a court now u s steel did not report the emissions here under circle up because it was not required to as a matter of law permits and regulations referenced in subsection ten each are the ones regulating us steel's facilities the process is in emissions should the district courts or should the district court ha undertaken a robust analysis of the individual or emissions here at the determine whether or not they're within the scope of the permits the answer to that firmly in an equivocal your honor is  based on the plain statutory language in the subsection that applies now why is then picked haste because subject to means  permits and plainly they are affected are the permits here and as clean around the action filed by the plaintiffs reflux as the e c h g s in force an action reflects as the notice of intent to sue filed in this case reflects in finally as the specific allegations in the respective compliance reflect the statute doesn't say we have to have releases of specific limits in specific permits it doesn't say in compliance with so that means if i take it to its logical conclusion once you have a permit you can do whatever you like that your position no absolutely not your honor let's understand what's it going on in this case because we have a clear out permit and because these emissions per subject to be clean air act and the local requirements and regulations requiring monitoring and reporting we are being regulated there's an unforced mean action against us right now beyond that we are in a clean air act lawsuit seeking civil penalties for purported violations of the clean air act emphasizing again that the clean air act is regulated here the only thing this lawsuit is that is whether we had to m additional record under circle something that the statutory scheme not only does not require but back to judge by this is question it would be inconsistent with kids could you talk about that issue of reporting requirements how do how do the circle and clean air act reporting requirements interact is there a way in which the redundancy would be would be helpful all of these admissions because i think you're taking the position that this you didn't report on you know the release of these releases after the fire oh i'm so is your position you know in that suit in this suit they don't need to be reported under either scheme i mean i think there's a worry that some of these will fall through the cracks let me start with the nd half of that question did they have to be recorded under the clean air act and under our permits and the local regulations under the clean air act the answer to that is yes now and i'm going to finish this with the nd part of it when you're under it title five operating permit subject to local regulations which we are that fully incorporates every provision of the clean air act and everything in be an air standard and it is under the clean air act all the emissions that are part of this lawsuit are regulated either expressively or by direct implication through the state i guess i keep and so there is no debate conditions into the air from the facilities being operated subject to these permits with processes that were subject to the permits had to be reported under the clean air act there is no gap there and then you force an action that followed and the plaintiff's complaint in the clean air act piece which applies to the facilities the emissions  statute the express directive and the exclusive directive is to report under the clean air act and to be exempt from circuit so it's not in the conversation now why would congress have taken that  through a very elaborate statutory structure rd club is not structured like that it has no specific reporting requirements and it would bring one thousand dollars additional chemicals into the calculus here on the front end and the regulatory burden of trying to comply with circular would be insurmountable difficult or  problematic were all three which leads us to why our groups would have separated these two reporting schemes where the clean air act is in play and so that there isn't any issue about compatibility to begin with because that would be an effort to modify the statute a rule that the court doesn't have and odd species the way the statute works you want the separation in this particular instance where the operating permits cover of the chemicals now there seems to me ask a hypothetical cornea some bleach brought into one of the plants in response to a covert issue that the chlorine mixes with some of the chemicals cause an explosion all sorts of emissions are released would that be covered by the permits or is that a circle issue oh if the permit process is involved the chlorine there which it sounds like they do that that would be involved with the permits and and a you'd be covered under the clean air act if it wasn't if it wasn't there could be a circle report as to this lawsuit by what's going on let's start with what the record shows so the plaintiff concedes it conceded here this morning that the clean air act lawsuit in the circle lawsuit covered the same coke oven combustion process the same releases in the same permitted source facilities so dangerous turbo to your question in this case were violated e p a emission standards were those come from they come in fruit the clean air act which is expressed leap incorporated into the permanent let's look at the exhibits attached to the complaint again focusing on this specific case the notice of intent to suit draws expressly on the title five permits makes reference to hydrogen sulfide benzene and coke of inhibitions at the facilities  the regulatory authority in this case under the title five permits under article twenty one and the clean air act ga forty seven to sixty three now look at the clean air act complain it says the emissions from the very are to properly operate the pollution control equipment violated the title five permit again we're not speculating here the state side p b e c h t regulations and the standards set by article twenty one all of which is incorporated into this reporting exemption out one of the complaints applies to the equipment count two of the complaint the air pollution in general  if more were needed in opposition to the motion to dismiss the plaintiffs but the era missions that followed the equipment breakdown were not controlled as required by the permits or control regulations and therefore were the releases of benzene hydrogen sulfide and co govern emissions violated the title fire permit now even without all of this as i mentioned earlier the clean by the force of the express language of the statute yes ip and these permits they are regulated here beyond that hydrogen sulfide as counsel conceded is mentioned in the clean air act complain pieces of the definition that leads us to the question about whether this was properly result on a motion to dismiss well the complaint by its terms brings the exemption into play in three places in the complaint j twenty j twenty five and j twenty eight dollars there is an expressed reference to the exemption that we are talking about this court has said on multiple occasions that when a complaint brings an affirmative defense employ its implying on a motion to dismiss so i think everything that is needed to create the application of the exemption is in the record on the motion to dismiss and that is a notice of intent to sue the respective complaint the a c h d in force not regulation all of that is brought to bear and so what we have is a circumstance where the district court correctly recognized that all the open questions in this case or what could have been the open questions were answered by the record it was provide getting back to the legal question are we talking here about any emissions into the air yes we are are we talking about any emissions into the air there are subject to the title five permits and the local regulations and the answer is yes we are we know that as a matter of  now lastly plainest proposed construction here that reaches the legislative history violates the tool kit of statutory construction principles but this core should be apply and certainly they had overcome the presumption in favor of the construction that we have offered under plaintiff's analysis any emissions becomes emissions of specific chemicals that are within specific length subject to be comes in compliance with the permits and specifically mentioned in that none of that is in the statute and if you look at the remaining provisions of this exceptions when congress intended that result is in it it's not in the one that regulates air emissions subject to the clean air act because congress didn't intend it contrary construction your honour's is a bridge too far and it should be rejected by this court to be surgically to the permit means a vote to buy or are governed by and so the emissions have to be subject to at the end of the day the title fired permit or the local control regular actions and as i walk through before these admissions when we are the record tells us that you do not need to look any further than that importantly the emissions into the air in this accession are without limitation it doesn't relate to the amount of chemical released why it was released whether it's specific we mentioned in a permit or not the same is true of the nd hand all we have to do is have emissions governed by permits and it doesn't say they have to be in compliance with the permit it doesn't say they have to be mentioned in the permit rather the question is are they subject to it and here are subject to that's why the e c each d filed an unforced an action that's why they joined the clean air act complained it's the same processes it's the same permissions it's the same the question is what permits and control regulations apply to the emissions of bending and cook up in gas at least at the flares which released this rock thirty s i didn't hear mr martin answer that either invoking a long list of clean air act requirements doesn't answer that question the issue is which requirements apply under the circumstances of the state of th releases from the flare going we don't think that was looked into we don't think the case can be resolved without it and we don't suggest you could decide that on summary judgment be or rather on an emotion to  particular clean air act part of that apply to clairton it cites exhibits that shows it has not so this is the problem with running on a theory that if you have the clean air act it must mean reports and by the way that's what every industry group asked the chemical safety board to do relying on circular don't you know if you're mr shafer you're correct that we ordinarily do not rule on the ferment of defenses if we assume this is an affirmative defense on a motion to dismiss on the other hand we do have this exception when a party either attaches a document to the complaint or the complaint necessarily references a document if you know if you live admitted either in that attachment or in this argument that at least hydrogen sulfide was a violation of clean air act why isn't that something that we can consider it a motion a motion to dismiss i might argue that it would be be better doing that with some more facts but you know i don't want to really insist on that point but i would say if you do whatever vice fall under the definition that in the legislative history which says it's got to be designed to reduce that specific pollutant i don't agree that you can't restore legislative history i would respectfully suggest you have to unless everyone knows what permanent and control regulation means and you can see from this case i think that we don't agree i maybe should just close by saying we worry that if this decision is adopted or of how we see the rd circuit we don't think we circle requirements would apply and all they are designed to alert responsibilities and public in case of emergencies and by the active parallelism a lot you don't know who's going to respond to an emergency could be the feds that happen sometimes so what this report does make available that information specific information so that whoever is responding to do practical terms companies have been living with for forty years and we were just posed by respectfully asking that you give a cleaner counsel its day in court thank you