and would then be in the pool of unsecured creditors and depending on what the plan ultimately provides for people in that pool it is entirely possible that everybody wants of getting  after the bankruptcy two for a declaration that the that the automatic stay did not apply pursuant to i think it was section three sixty two fee for of the bankruptcy code and the district the the consequences of this and you know i think that that's something that the court might want to understand in terms of the larger picture of what's going on here but i think it's  y comes out of the bench trial the really the the main focus of the appeal though that the first two issues of the three issues that we presented arise from the grant of summary judgment and that's the district court's determination as a matter of  particular case or putting the rocks along the riverfront or buying a popcorn machine for the school every single penny they said that's all part of the emergency so we think that that is incorrect as a matter of law that misstep back of the first decision we have to make is whether or not the district court was correct in determining that the designation of this as a removal action versus a remedial action is you agree that's the first  sense that and the emergency step kind of go together in the sense that the government has to prove that this is an emergency removal action we broke it down i mean for kind of convenience a conceptually into those two steps two million dollars for twelve months unless one of the exceptions applies for mark set forth in this fashion and in the first two actually mammals the government rely only on the emergency exception to it was a lot more illuminating but it talked and did define emergency and that is listed under ninety six or one so that's one place i found emergency the other place them urgency is found is i believe in the potter case where they said that the removal of anthrax from a new york postal facility did not qualify as an emergency and when i wondered in that point are two things one this was listed as proposed rules and have those ever become final in stack and if the fact that it was listed in connection with an oil spill honest something specific as to how you might define an emergency there in an oil  right now on those terms of the oil spill i don't see this language here that you're referring to that we're both talking about as being limited to oil spills and it seems to me this is just a very natural definition of the word emergency as one would understand it colloquially again i think our fundamental point here is that we believe that it is impossible as a matter of law to put every single thing that the e p a has done in libya into the category of an emergency response and the e p a in a sense doesn't even i don't read everything seriously contest that i think what they insist on doing is saying well there was that the costs would need to be this dagger gaited as to what was a real emergency and what was i think that's what you are that's the only way the statute makes sense that you can't say ok there's an emergency in this room and that's entirely nice to be putting rocks on the river response actions are immediately required to prevent limit or mitigate an emergency so i think the statute itself tell so you that the relevant actions it's not a question of saying there's an emergency in the abstract in the spending money a well i think the actions that are sought to be justified under the emergency exception have to be actions that are taken to prevent limit or mitigate the relevant emergency is that your position counsel that the e p a could have taken action perhaps but i think your honor you can consider a variety of options and just kind of walk through that in the first place we actually question some of their scientific findings and that's one of the things we would have liked to have proven if we had our day in court to question some of the numbers that they had but even accepting that your honor we don't think that digging up let's say five feet of soil as opposed to maybe one foot of soil is necessary because we think that you don't have to take our word for that the e p a to specifically ask for that they specifically say with respect to the schools and i'm quoting from page three eighty eight of the e r there is no e p a has concluded that there is not an immediate  a itself recognized that this was not an emergency and they didn't treat it as an emergency again buying a new popcorn machine is not an emergency response and did the district court actually define emergency he did not your honor if you look at that this is one of the real problems in this case in a sense we're going to have talking about the evidence but the problem is the district court if you look at this legal they're from the dictionary or e p a s various documents the legal definition of emergency with that be the end of march task and want to go back to the district court to determine whether the evidence meets the emergency standard i think the answer is yes we say as a matter of law that we don't we think it's clear from what e t a has done here that it's not an emergency that wouldn't meet any definition of emergency but certainly you could if you disagree with us on that the statute provides kind of always to me you have conflicting evidence trial on disputed points on an emergency or destroyed ok i think and that's but if you look at the versatile metals case there was a bench trial on that issue and that was what we thought we were gearing up for when the at the last as year before trial declared that he had decided to grant the united states motion for summary judgment and so all this was out of the case i mean i think about how then if you have a bench trial in these things where there are  certain things were properly classified as an emergency removal action i don't think at this point they can come in and try and say this was a remedial action because the cost of it incurred means that you get the procedural protection has had you know given deference to the agency in trying to figure out how you might come up with this they can use a proxy if it's some where within a legitimate range seem to me that this would just  action and it's quite dramatic that the old method would have given you one million dollars in indirect costs the new method gives them eleven million dollars in indirect costs and we believe that it transgresses the statutory boundary particularly given that a lot of those e in your view what what is the legal principle that would flow from what you ask us to do which is the reverse given the permanence and the very great cost of of the action that this clearly wherever you draw the line in particular close cases this is so far on on one side of the this again seems to me this flows from the section ninety six thirteen procedural error component that they should have an opportunity to try and defend certain particular items or any item that they  want as a you know interim relatively inexpensive again particularly it seems to me the issue here is really the emergency and again i think as you noted in one of your earlier questions there was disputed evidence on costs because we don't think as a matter of law that these can be justified as emergency   our basic point is that it's simply not reasonable it by any means for e p a to allocate its own overhead based on the total of the project at least we're in a case like this one where e p a has delegated the majority of the project to someone else that that's not a valid proxy and again particularly where that other entity has already charged a lot of memos here and i think it's per se the first actual memo kicked off the activity and there it was determined to be time critical and the e p a determined that there was an emergency when we are looking at if we were benchmarking whether there was an emergency or not what's your view on how we evaluate the fact that there are three action memo was coming at different times with different backup information yes your other of the first memo was for the screening port plant an export plan and in that memo e p a indicated it was doing for sampling and that additional areas might be discovered understand course everybody understands having lived through these past this era and the litigation did these individuals remain in their home until they got to them home my home that's correct your honor ok so that's where i have to say i'm having a little logical trouble because if there were an emergency i would hope i would get kicked out of my house and if there were an emergency of some immediate health risk which would justify busting the cat that's why they talk about screening or moving people out temporarily and having a little trouble juxtaposing the word emergency with what actually happened did get people out of the house for that for that invasive type of disturbance it did remove people from their homes for the actual cleaning prior to getting to a particular house they gave detailed guidance to difficult logistically and financially i suspect if you had had i agree that if there was an emergency a real emergency it seems to me cost would be literally no object that's why they let you lift the cap but if there's not a real emergency then you can give them instructions and then go through the various procedural sats that are appropriate in a remedial action when you purchase i suspect grace would disagree on the cost is no object if p p a had relocated everybody i'm sure grace would be objecting to standpoint some benchmark for determining as a legal matter when an emergency is yes you are first of all you are correct there is no definition in the statute regulations i think  language what what it's talking about is kind of a classic emergency where you have a burning tanker cars something like that but if you look at the remainder of that discussion it's clear that that's not the only kind of emergency and in fact if that were the only  is no definition of emergency with respect to the removal question i don't know i understand that but i'm just saying that that is a definition of emergency at where you don't have the same media exposure and there are some additional hoofs those are in the national contingency plan there has to be a baseline risk assessment remedial investigation and feasibility study that those are a lot more detail it turns out in the process of the removal action you undertake some other activity such as replacing the trees or the popcorn machine or one of the case maybe do you agree that so that's what they did what about the fact that the district court didn't actually provide a legal definition i'm urgencies so we don't know what the district court was benchmarking judgment so i understand that completely but what issues are appropriately trial versus on the record issues in this kind of a cost recovery action years for first of all the only trial issue on appeal that was the indirect action i think it's the former your honor heard of a winner take all proposition again yes and but again it would be the court would be assuming this court instructed us to with definition or instructed the district court come up with a definition of some  actually raised the very question that your honour's raised about the osha p l and get discussed why it did not believe the ocean was an appropriate standard for determining household risk because the o d l standard is designed to protect workers who are only working an eight hour day who have training in a specialist exposure and who have access to protective equipment and medical care it's just inexplicable when you're dealing point four times ten to the minus three so even in the the worker context osha is allowing more deaths per ten thousand people exposure in e p a wood and in the household context where it's  a few possibilities from an accounting perspective total direct cost is the best allocation base because it reflects the superfund program's activities there are strong support in the record for this proposition statement superfund program that can't be attributable to space things like developing clean up standards data quality procedures policy guidance contract administration the list is fairly extensive and these are the policies and procedures that govern the cheaper way for it to go so if you ph tomorrow decided not to hire any contractors that would eliminate the contractor direct costs and the contractors overhead costs but if you would have more employees those employees would have computers they'd need office space when they weren't out in the field they'd have some of them would have secretaries all of that we had hoped for to a larger indirect cost for so whereas p p a might avoid it by not using contractors when they actually have to go out and do the cleanup work that those indirect costs build right back up so there is no from an accounting perspective there's no conception there's no difference between whether  material fact challenging that point so and it seems to me that's still the issue before you now is did they just report validly grant summary judgment as to the whole thing in gross for the desegregation was that the suggesting as a remedial mechanism at this point given that you all report was wrong in putting a stamp of approval on the whole thing engrossed we would concede that they they can try and come forward to try and justify individual things that they're the ones who forced the issue was the aggregate it's two ships passing in the night in the suspension that we've just been having here where the government is going to say that there is that basically all their facts should be taken at face value their science issues as well as their characterization as an emergency and our basic we've never had a day in court on that issue because the district court granted summary judgment merely by saying that the government considered the relevant for actors and we produced material evidence we've got the part tell report in the anderson report both dealing with the science as judge may have brought up and with the emergency point judge mckeown that you brought up that was going to be what the bench trial was going to be about whether or not those things were justified again seems to me if once you say that the district court was incorrect as a legal court granted summary judgment for the deposition of mr perrin art had been completed and then allowed us to take another day for a deposition we don't take in one day of that position at that point and allowed us to file a motion to reconsider which was cost order of the words that he first ran summary judgment at that point it really became a an accounting issue and at that point we didn't dispute from an accounting point of view thirty million dollars but that's not to say that we hadn't already objected and preserve objections to the on the removal remedial ground in other words whether they were entitled to those costs in the first instance once you cross that bridge it is first in summary judgment ruling there was no further issue regarding the government's accounting to be held to be an issue for the second phase for the trials of the limited it that way but certainly with respect to all of the e p a s costs we vigorously objected and we in the record at that yard ten ninety five you'll see