disabled in action of pennsylvania versus  disabilities act congress delegated to the department of transportation the authority to establish regulations for transit agencies the regulations tell transit agencies what they must do to comply with the d a here that the district court created an obligation it's not found in the statute the regulations or the case law and delegating authority to the d o t congress told the agency that the regulatory standards must be consistent with the minimum guidelines and requirements issued by the access board which is an independent federal agency specifically charged by congress with the stablish standards for accessible design and fit and transportation regulations state that a transportation facility complies with the idea a if the facility satisfies d o t regulations and the board's accessibility guidelines as modified by the d o t can i ask you something that will help me make sure that i'm not misunderstanding what i thought the heart of your briefing was is it is your position that accessibility issues don't have to be taken into account unless an intel a structural modification is made to facility that involves perhaps a load bearing wall or something of that magnitude septa's position no septa scepter is relying on a particular provision we're not saying that's the broad based standard but in the in the guidelines at four point one point six open purines one close prinz open parents f close parents there is a particular regulation that governs the insulation or replacement of stairs or escalators and that particular provision says that major structural well  read it to you if an escalator or stair is planned or installed where none existed previously and major structural modifications are necessary for such installation than a means of accessible vertical access shall be required all right so it seems like well i don't know it seems like you're reading into the excess ability idea the requirement that there have to been a structural modification of a misunderstanding you well i think that's what the regulation says i mean septa reads this regulation to mean that where there are no major structural modifications necessary for the insulation of the stair or an escalator then there's no requirement to install an elevator your cabin in that to this case in this case this case case involves stairs this case involves stairs and an escalator and then you need what judge jordan referred to as we only do it if there is a wall movement or some structural change i think that's what the board is saying that if you're replacing a stereo placing an escalator so when you have that situation only when you have that situation you have to provide access that's correct but if you have to pave a road like in kinney then then you do have to provide this so that doesn't make sense to me why it why you would have to do it there which is to allow for the disabled to come with a curb but when you have to provide vertical axis you don't you don't have to accommodate especially since kenny just involved resurfacing research research no weather the weather alteration right so i think what can we focus on was what is the primary function of the road going to term and that was an alteration but i think and in this require access in that circumstances but when you but when you have a change of a sphere is where you most need access it doesn't apply what kinney what in the in the regulations governing the decision in kenny there were specific justice regulations that required if there was an alteration of a road then you must install curb cut that was very clear there was no but it's also a defense and i think that's different here because this regulation says if you're going to replace a stair if you're going to replace an escalator and you don't have to have any impact on load bearing structures all you need to do is replace the stair replace the question is is how you define alteration alteration is defined if road servicing is alteration and so the stairs were improved and or quote unquote altered if you will but the question becomes you know at what level if you you if if you modify one element do you then have to modify all other elements that might be involved and the guidelines i think would tell you no i guess there's a couple things i would point the d o t regulations at forty nine c f r section thirty seven point three defines an alteration to me renovation rehabilitation reconstruction right historic restoration and how is this how is replacing unsafe spheres not a rehabilitation or replacing an escalator that's an operable not a rehabilitation in the ordinary sense of that word you're out of the definition of alteration in the d o t regulations and in the accessibility but accessibility  guidelines is subsequently identical and i think what the guidelines do is provide specific scoping and technical requirements for alterations section one of the guidelines mandates that the scoping in technical requirements are to be applied during the design construction and alteration of facilities covered by the idea to the extent required by the d o t regulations well has been that let me bring you back to my question if i can how  replacement of unsafe stairs on the replacement of an inoperable escalator not a rehabilitation in the ordinary sense of that word proud or thought this was a i took it a pretty clear an obvious point and i want not much to attack her conclusion and tell me why it doesn't fit that ordinary understanding of the word rehabilitat reconstruct i think it does but i think what the guidelines do is provide these specific scoping technical requirements and the guidelines recognise that as what i would call a single element a sta in a particular space in an intrinsic may be altered and that these distinct alterations do not give rise to alter the entire space and that is found the support is in the guidelines section four point one point six open koreans one most parents will open koreans f one which basically says you can do single elements within a space may be altered and these distinct alterations do not give rise to an obligation to alter the entire space what is usability have to do with our review here should we be paying attention to the argument you're making seems to be saying if i'm understanding it yes this would be a rehabilitation and it would renovation under an ordinary understanding but we have these design guidelines and they tell us something about scope that limits that ordinary meaning does it does it limit the meaning of usability because certainly if something's unsafe or inopera e and then you correct that it affects the usability would you agree yes i would in what the guidelines require a transit authority to do is it one replaces that stair or that escalator to make it comply with the guidelines quote unquote new construction standards for instance the escalator that was replaced in city hall courtyard had to comply with the axis board's quote unquote new standard a new construction standard for escalators so the well way was extended slightly and what you did when usability was we now have an escalator that meets the eighty eight standards for escalators but your point is that the that this the guideline in also limits the ordinary understanding of usability i think what i think not i think what it does is the guidelines define what is usable in the sense that yes the stairs were made more usable after they were replaced they were made more usable and to be more usable they had to comply with the guidelines requirements or stay or they were made more usable regardless of what any guy that's exactly right human beings could use like when they couldn't use them safely bright so what you're saying is the guidelines have to be understood as a limitation on the usability step that's ordinarily in place in the senate office right well i think what it is the stairs are usable they're more usable and you could you know there's never a way that somebody in a wheelchair is going to be able to use stairs i mean that's you have to recognize that but what the guidelines said is you make them usable and you did change the usability of the stairs and we met the state in septa met the standard for stairs let me ask you something about the installation of elevators and whether it's feasible or not or are you suggesting that there is a financial component to feasibility of installation of the elevators site i sort of there is explicitly a recognition that cost factors were the alteration is to a primary function area of a facility and a primary function area sort of an area of the core purpose of the facility under the statu and the regulations if there is an alteration to a primary area the primary function area the public entity must create an accessible path of travel including the installation of an elevator to the altered area unless the cost of doing so would be disproportionate so the twenty percent is that threshold there so if you alter a primary function area the pulse to providing inaccessible route to that area is capped at twenty percent of the cost of the district court as i understand it disavowed this concept so the financial consideration right we are not dealing with the primary function area of at least if you look at the claim that's been filed by d a we're not looking at a primary functionary alteration at the fifteenth street station on the market frankfurt sub so why elevated plan also like to point i think that d o t and axis board implicitly recognize cost constraints because the guideline saying if you're not we're not going to require you to install and an elevator connecting two levels unless the replacement of the stairway the escalator requires you to make major structural changes you only requirement was to connect one level here was and i'm sorry you're not you know we're talking about two levels  in elevator connecting two levels right now are we talking about one level from the street level to the court to the concourse and i think that's a by level and by level so we're talking about an elevator that has access to both low price but in this and again as we point out in our brief it's suburban station pinson or concourse septa in fact installed and salt two elevators you have if i if i wanted access to the fifteenth street  station right and i were there at the fifteenth street station in order for me to access the trains that go through the fifteenth street station you say i had to go to take an elevator to the sixteenth street  the sixteenth street elevator or the seventh street elevator you could take either one to get to the base of the fifteenth street stare now one thing that somehow or go get the elevator and come back to where i want to be that's right but fifth inside of six hundred and eighty feet three hundred forty feet well right six eight going come back if the fifteenth street station on the market frankfurt lawn your honor is not wheelchair accessible the intrigues the entry ways that were made accessible drop to the penciler concourse there are seven public interests is two of those have elevators and so what this allows someone to do is to navigate the full course of the concourse someone walks  down to since the steps at the fifteenth street stairwell that person must at the fifteenth street fifteenth street that were referred to this i think is the stairwell of our brief the fifteenth street stare seems to be the focus here of the case is that you can walk to the concourse level that does not get you to the fifteenth street station you have to take a left and climb up eleven steps until you get to the ticket area actually in the record is  i think we say is you've got to go six hundred eighty feet if you're and we'll try to you just walk downstairs if you're not in a wheelchair why does why is it relevant that you'd have to go up additional eleven additional spheres to respond to that question well i think the  the the project was to make concourse accessible and what the guidelines require is that you have accessible introduces typically consistent with the public what might be a regular public that usable by all and the guidelines require that it transportation facilities thirty needs to be only one accessible interests in this case septa built to one over on there is one it elevator on j boulevard in your seventeenth street which drops directly down on top of one of the platforms in suburban station the other elevator is built on sixteenth street midway between mark and j f k it goes to concourse level centrally located in the concourse and that concourse serves at least three stations or suburban station there's fifteenth street station you can get there and you can also get to the fifteenth street station on the market it's not on the on the on the trolley lines it's known it's not a pleasant trip it seems to me  at fifteenth street i'm not terribly familiar with the with the overlay but i i'm just thinking six hundred eighty in a wheelchair and if it's during rush hour and it's in a major transportation hub this is not very pleasant so i go back to the question is are you involved in an alteration is what you did in alterations so that you would be required to install the elevator there no the project the scope of the problem is there is no load bearing change and i've got to get to art in all candor when this project was built at suburban station and pin center concourse the project scope was we're going to make suburban station accessible because septa had designated suburban as a key station which obligated to retrofit that station to make it fully accessible to individuals who are in wheelchairs the scope of that project was hitting all of those public interests is in the pence in a concourse that feed into that station and as a result the regulations very clearly say one accessible entrance is all you need to a transportation facility here septa built to least one at least there you kind of leave in the words at least off when you say  regulations require one whether it's a new construction whether it's a there's alteration when one and at least one right when you say they require one that would mean or could certainly be read as meaning only one but the they actually say at least one don't they if i i think i will i will double check the lines but i think it's one ok i'm not sure whether writes the at least one or not but that is certainly construed  question on a different topic with my colleague's indulgence on page forty one of the brief they make the argument that under the  guidelines section and they point to two point ten point three point one two and the ten point three point too that septa is required to have made  a change at the fifteenth street corner entrance because that entrance serves the mark for market frankford elevated line which is a separate line from any line service by suburban station and i wanted to get your specific response to that assertion that that you don't get to rely on stuff at the suburban station end of things because they service suburban station and market frankford line is serviced by that fifty street entrance right now i'd like to point the court to sort of what what is how do we define the scope of the project here and in the sykes case this court defined it concourse project it was always designated as such running from fifteen to eighteen street market to j f k i think septa is entitle to define the scope of the project then the question becomes you know what degree of accessibility is required and so the really say the regulations set the standard for what is feasible within that project i don't you know one of the things that d o t is recognize in retrofitting these stations he's an old city's it's extremely difficult to build these things in the d o t gave agencies up to thirty years to comply with the key statement provisions and here to accept eight years well to the end of a hard day of key station issues if you're changing the fifty if we were to say that the fifteenth street change was an alteration your response i take it is the sixteenth street elevator is good enough because that will still service the market frankford line close it's close enough three hundred forty feet six hundred eighty foot roundtrip is good enough but i got that right i think we're a little different but the argument is penn center suburban station is one project that project was required to be made accessible a key station retrofitting is a type of alteration i think what the other argument is an art art even if you considered the fifteenth street station to be part of fifteenth street say the fifteenth street stair part of the fifteenth street station on the market frankfort line that there is no requirement to install an elevator because there were no major structural modifications to replace that stair i think so that's the argument that it wasn't an alteration right that's the argument it's we accepted that it was an alteration at the fifteenth street sphere would you agree that if that is alteration then you needed to put in an elevator because then it was you were required to deal with that according to as they point out ten point three point two and have a vertical axis and accessibility to that market frankford line no i think that four point one point six one if address is a situation of installation i would point critically the district court here did not decide whether the fifteen st stair was part of the fifteenth street station on the market frankfort line d i a does not have a plausible claim here unless there is that factual determination because d i m a suit alleges violation forty t one last question which is because what i said would you agree that if it were an alteration you were required to put in access because of ten point three point two and the that the services the fifteenth street market frankford line and you said no when you went back to the definition that would say it wasn't an alteration and so what i'm asking you is because i want to make sure i follow the logic because up to scott assume for the purposes of the scutcheon that it is an alteration if it is an alteration is correct in saying that under ten point three point one to another ten point three point two that means you had to put in an elevator and if they're not right about that that's what i'm asking about not going back to it's not an alteration right there are certain types of alterations that require installation of an elevator this is not one of them the t regs and the guidelines i define alteration in the definition section substantively the same way what the guidelines do is provide specific scoping and technical requirements within those types of alterations i think i understand that point you're going back to the four point whatever it is right i'm asking you to leave that behind his back ok i want you to leave it behind and go with me this for as a matter of logic assume we were to say hey this is an alteration under the code this is an alteration as defined by the statute in the regulations that are pertinent then my question to you is if that is the case are your opponents correct or incorrect about the import of ten point three ten point three point two because if they're wrong i want to hear why they're wrong that's that's the whole of my quest i think if this court decided that it was an alteration again setting aside our defenses here right i think that you would have to and it would have to be an elevator there ok but again i think under the under the regulations and the and the guidelines you know are the law here i understand i understand that point of your argument i have one yes or no yes or no well ok actually the district court did not make findings of fact but do not the fifteenth street stayers lead provide direct access to the fifteenth street station i mean is that really in dispute it provides access i mean there's no doubt that the statutes written broadly your honor it says court my name is stephen gold with co counsel rock i co wrote we have been litigating this case for eight years this is the third time i've been before the circuit on a public transportation case so give me it will give you more time if you wish you know that's ok age i'm sure thank you very much at zurich a little background is really critical in ninety ninety when the idea was pass the disability community wanted every transportation station and facilities to do it excess of all immediately where the work was being done or not a major congressional compromise occurred or was actually continued and the compromise was as follows when a public transportation facility system builds a new construction or makes an alteration to an existing facility that triggers accessibility requirements if they decide do nothing to an existing facility then to do anything until sept that decided to change the fifteenth street courtyard and to change the escalator in the city hall courtyard they had no a t a i requirements to make it accessible cept it controls it and chose when to do it part of that compromise will have access with an elevator at least to the concourse the way it's actually been join you may even get it to where you can buy the ticket you won't get it to the to the frankfurt up in two thousand and two thousand and two but in two thousand and twelve or two thousand and fifteen when they built when they redo the stairs from the ticket place down to the subway frank pradelle that's when you'll get the same exact thing same thing in terms of the subway and if you don't put an elevator in when you do the alterations to one part of the level then when you do the next part you're not going be able to get access sounds like a like a step up so it's equipment here it's incremental which which makes good sense but how about  balance argument inject serious question what if the expenses so high that so might even call it outrageous or so disproportionate to the work that they're to the alteration that you're doing that they simply can't do i mean is there a point where you say i can't do it or else or a point where the agencies killed because of the expense and decide to do one to two things that first a lot of them they decide when to do it and part of a capital program is building in the costs for people who who have disabilities so that when you're doing alterations it is much cheaper to do that make access then when you're not doing that's thing but second thing course only historically only comes into play it doesn't come in on maximum extent feasible there's been i think this circuit has clearly said that cost does not come in it only comes in as mr bennett said when you're altering the primary function and the path of travel and proport we're not claiming they ever alter the primary function the primary function is the ticket prices were saying that it was the alteration has nothing to do with where triggering when the federal regulation at thirty seven point forty three b not a wee while in the ag triggers in there was no alteration to a primary function so what's wrong with ms bennett's argument that she it what she doesn't understand about that is that yes the only time that that a structural change triggers accessibility the only is when you put this there isn't but that doesn't mean that when you put new steers in and you go to a structural change that you don't have to make it accessible judge judge crowder got it right and it makes no sense the structural change is the most difficult thing to to the extent that it says if there are new stairs and if they restructure alteration then you have to do it but that is really incredibly rare the normal situation is there are new stairs and not structural and what their argument congress this circuit other circuits have clearly said the one exception under the statute is to the maximum extent feasible and the question that i was that was part of the the eighty eight does that mean cost the it's never that of the on it's never that i know which hypothetical right but i mean you know i get to a point where the cost is so high that you don't know because you're dealing here with the civil rights that are saying that something they have to factor in they have the fact against instance correct well that isn't the technical feasibility isn't that really a cost i mean could be i don't want to i don't want to get too hung up on this but by calling it technical feasibility are you just calling it cost by another name now arches because within the mind of man it's an it possible to all kinds of things if you're willing to invest the money for somebody said well look it's not technically feasible to wind that  you wanted to invest a billion dollars you could go down there you could blow out it you could dig out additional rock you could do that it's it's within the realm of the engineering mind of man but we won't do it because it would last so very very very expensive to the maximum extent feasible is a technical defense that every transportation authority has and it normally occurs and it has occurred historically when there has been a structural modification which means it's just too darn expensive to modify those rupture right probably right yeah ok ok but but they haven't done it in terms of the cost to it more in terms of the structure because when you start talking about the greatest place to see the structure is the newborn's building you know right now it's gone up and all these structural components are totally visible and you can imagine if they you know if you had to take out one of those big beans to put in elevator that's it you it's it's political pressure so it's difficult but it's also expensive of course can i ask you about the city as a party how you see this stated oh look it's not a big problem if they're not in because if the city really does balk at this after the fact then they've got an impossibility defense and in reading that i wonder well if they've got any possibility to fence then maybe the city really isn't necessary party how do you how do we order relief that involves construction on the real property of a party that's not in the case first of all the city has been on notice of this case for eight years they were part of the case with regard to the fifteenth street they are fully aware that we have litigated on the elevator in the city hall they've chosen not to intervene with the big question is what they're choosing the question is what you're obligated to do if you want the city to build on somebody else's property are you obligated to get that property owner in the case no because they they have each have the duty under the a d f a that is if the  possibility it's not an impossibility it's ever said or anyone makes changes they have to go through they have to apply for a way for licensing they have to apply for stuff and the city looks at it and s you know this meets our code or does it meet our code if in the absolutely extreme extreme possibility that since the set is not going to say it's impossible let me make clear that sept this elevator ride my bike the and they said where we had really thought about the city said what we did and we thought they needed one and the can't the oral agreement that was reached in two thousand and one was rather than build elevator on fifteenth street or city hall they would build that we have brand new kind of accessible on the doors plaza and if the it if the i o would accept it we met we said to y ok in lieu of two separate elevators right we'll take one as a compromise you know and two years go by they didn't do it we called them up and they set up we changed our mind and so should have got in writing judge point this is right but but it's pertinent to the point of necessary parties the fact that the city has agreed yet dilworth plaza would be a good place is not the same thing as a green that city hall  is i agree with right completely so the fact that there was an agreement before about one thing perhaps doesn't really tell us whether the city's going to be amenable to destruction on their property and or the relief is set up to apply to the city to and to get do all the applications that they can if the city objects in your hypothetical on the rule nineteen for the remedy for that phrase phase of motion it was it was brought up in oral argument after the last time were up here on the statue imitations it was brought up in oral argument across summary judgments and then a letter was sent to the court which is part of the record it's never been raised by motion ever that the same was before this record right it was discussed it was clearly discussed before and judge browder was aware of can i make i like to make the pollen suggestion in terms of several things that miss bennett brought up in my time is quickly running there are several photographs that this court when judge mansmann was sitting  eight four and eight five one that's for the stats for the ct europe and for the extent of work done on the the city heart i strips to just a joint appendix nine twenty and nine twenty four these photographs tell the entire story this was not a single element as mr bennett says this was not anything that all didn't belong with the primary function  the only d o t a dag provision is the ten to ten all the other eight dogs that mr bennett rely on deal with mcdonald's deal with everything else they're generally applicable to all kinds of stuff only strongly suggest what they were thinking but i don't think you have to get there i don't think i have to get the aid i get all you have to get to that what the congress say you know and congress said alterations it gave them an exception for maximus unfeasable you have to look three the fines the fines alterations and as is joe jordan said as the question the fines it exactly that way but that only gets it was an alteration then the next question the judge you heard correctly is when do you have to do it and that you have to look at thirty seven point forty three and it says when you do an alteration remodelling reads you know but of all this other stuff and the facts usability and accessibility then you have to make it accessible and let me just say one thing it's really important we're not just talking about people in wheelchairs that elevators help people who use walkers use claims you have other engler tory impediments that help you get up and down and that's why judge point is getting an elevator even down just to the concourse so it is twenty five steps you know that  person in a walker or cane may have six or seven more steps to get up to where the primary function is they got to get some half way in two thousand to two thousand  you took my best line and asked the question and it was this fall on earth under the a b a resurfacing of st triggers the usability think how could a new set of stairs not the way that is absolutely the critical question if congress did not mean for that to occur at that point it does does that mean it's make any sense and i don't want to don't want to let me let me address the suburban station rs argument is that in terms of your question judge jordan is that because it's part of your suburban station fifteen street doesn't have to be made accessible now and why is rainy days walking from the regional rail underground all the way you know to a street you know this this is an underground passage the fact that the fifteenth street gets you to the same level as the seventeenth street does as the sixteenth in locus to get you to the exact same level is a relevant either fifteenth street court yard is a separate facility and they never judge  three eight in their in their briefs it's either a separate facility in which case the alteration to the stairs requires it and the reason you're pushing of miss bennett was exactly  where we were going to go on this argument that this is a once you define it as an alteration as a separate facility they have no argument it has to be america civil so what they in fact have done then is forget the definition of facility and they say it's part of suburban station but you don't even have to get to the ten a diag ten point whatever because of the far there are federal regulations that tell you admitted this is a key station suburban station and if you look at thirty seven point forty seven forty nine c f r thirty seven point forty seven the fine ski station but it also says the phone is even though you've made the key station accessible when you're doing other alterations under thirty seven point forty three they have to meet accessible so you don't have to get to your when you do it alterations to it and but even if suing that the three words that they never talk about under these regs it says a facility or part of a facility it cannot be and which case when you make an alteration to a part of that facility it has to be made excessive anything unique about the fifteenth street court yard in terms of transportation and other words can can i go to sixteenth street and seven if you go to sixteenth street and you want to go you have to walk back for one purpose to get on the fifteenth street market the only reason the sixteenth there is something so there is something unique about the fifty or if that's what you meant by unique yes i thought you meant i misunderstood you yes if i wanted that line and i meant fifteenth street i have to go there we come back absolutely unequivocally no and if you used to walk or right or a cane or had you know cerebral palsy and you  know your gate was really slow this could be a nice nice joint and take quite a bit of time just your it has been more than kind i've used it up and then let me just make you may have answered this district court did not make a decision with respect to which facility the court you right is that correct yeah that's correct you say that's a real it's a i mean it is irrelevant enter in the sense that it's at least that's why i gave at the end of the alternate argument it's either a facility unto itself which the district court the not so that you don't have to do that or it is a part of a facility the way they defined it i have one question if i might judge prather has a footnote in which she discusses the burdens of proof and then says it really doesn't matter in this case  president bush signs the idea and he says the following in the signing ceremony that with the signing of the a d f a were also of segregation will be come  that's the quote it's a famous quote if the fifteenth street alteration with new stairs and the city hall with a new escalator are not alterations that triggers the a b a then the whole premise of equal access is a myth thank you thank you mr  i just want to make a few points i think there's some the city is a required party here it's not necessary i think this court can consider that issue on appeal even if not specifically raised by motion at the court below city owns the property in order for se issue in this particular case the court district court said it didn't think that it mattered that the city had not given permission and septa thoroughness it does did the district court rule on whether this city was a necessary party know did not make a specific ruling on that this was raised post briefing sort of closing after an oral argument is that have to be decided in this case i'm sorry  some possible recalcitrance on the part of the city have to be decided this i'm not sure i understand your question your honor you're saying the city may not agree with any installation septa has no legal right to even attain a city permit until sept issue as has legal right to do so and in the absence of an easement from the city which requires city council approval sept is not going to be able to apply for a building permit i'm saying is that all have to be determined in this lawsuit i think it does here are well your your opponent mr gold seems to indicate that something that could be dealt with in terms of the remedy and if i understood him  right i think you may be saying is you can declare our rights and then how they're enforced is a matter that comes up later what why why is that wrong you know i think that's right actually when you when you when you put it to me that way i understand what you're saying i understand what you're saying but but i think typically you would want the city to be involved in this case certainly a remedy right certain for a remedy that's right just you're not wanted to respond to your question about the guidelines talking about a facility when septa undertook the project at suburban station in pinson or concourse and again i think what is important to do is for you to look at the scope of the project the regulation reads that the facilities the transit authority shall provide at least one accessible route from an accessible interests perhaps you could respond to it mr gold said in his argument which is that even if we were to accept that this is part of the suburban street project that this is nevertheless a later alteration to a part of that facility and a separate portion of the regulations specifically requires you if that is in fact an alteration to make that part of the facility accessible what's your response well actually the fifteenth street stairwell work was done prior not after the suburban project so i think the issue is by the fact that it was completed a few years before the opening of the elevators is that those that have an impact and i would say no because again as this court said insights the purposes let's look at the scope of the project that's being undertake think if we were to agree with you that the temporality is not well let me ask it this way i understood his argument to be accept for purposes of discussion but this is part of the suburban street station the way so this was whether or not it's part of a project associated with suburban street station it's part of suburban street station right if you accept desired meant that doesn't matter because it's when they alter a part of that suburban street station they're still obligated to make it accessible and i'm just wondering if you've got anything you want to say and i think with the respective if the assumption is that this fifteenth street stairwell is part of the suburban station p project that there was no obligation to install an elevator there because a couple of points all of the what's required is there was no work going on in the platform to make it you know i have to say upgrade the primary functionary the platform level work a lot of this work was an asbestos removal mechanical work and the regulations say that you know the point is you're trying to get folk to the suburban station train platform you ha no obligation to create an accessible route until you start those major renovation stand on the platform that's when the obligation kicks in i just want to hit upon something the about the regulations and what complies i just point the definition of alteration in the d o t regulations and the board's guidelines is the same section one of those guidelines mandates that the scoping in technical requirements are to be applied by transit facilities during the design construction alteration of facilities covered by the a d a s to the extent the video wrecks require that and section ten point one of the guidelines which specifically addresses transit facilities states that transportation facilities and i quote shall comply with the a political provisions of section four so there's no doubt that section four and that provision that we're relying on again if you're looking at this is an entrance to the fifteenth street station doesn't require insulation of an elevator where you're not making major structural modifications are low bearing walls on i mean that's what you're really talking about here or any kind of load bearing structure what if you were just not changing the stairs or an escalator but you were just replacing a door renovating by replacing the door i mean with a door you know would you be making the same argument or would you not have to install perhaps install in the right and make the same argument you know if the  that is that is it's an alteration to the door an alteration of the stairs or or escalator right i mean the regulations are written in such a way if you have to replace a door knob because it's broken and the door itself is twenty eight inches wide you replace the door knob you don't have to w the the door frame to make it accessible to a wheelchair and i want to read that's not the question i'm sure you're relying on you're relying on a reading of this section for that says because it refers to load bearing walls it means you only have to have excess ability when you're putting in a stair case if it involves a load bearing wall and we've heard mr gold's response to that i'd be interested to hear your response to his argument but i understand judge went  be ok assume it's not a stair case it's involved right on the other alteration right you would have this argument would you yes oh well the question is what was what would be the art what would should septa have done if it replaced the door i guess that's the question what should mean the regulations read recognise that you can make piecemeal alterations without having to alter an entire space but the distance used to make sense as you would have to make an accommodation when you change a door we s it in alteration that requires accommodation if you replace the door noori pacing the door frame with the door frames not wide enough to accommodate a wheelchair person in a wheelchair yes you would have to widen the door frame to make sure that a person in a wheelchair could go through there but you do make an accommodation there but if you change the stairs you do not make it miss because you had an opportunity because if you're moving the walls and the regulations and i'd like to if i can read some of the commentary that the access sport has put talks about the eighty eight sets minimum requirements for accessibility and alterations new construction technical criteria are applied to each element or space altered were technically feasible compliance can be followed on an element by element basis except where the work amounts to a full alteration of a room or space in which case the room or space must be made fully accessible this is from the one nine hundred ninety one guidelines the access board has issued new guidelines in two thousand and four the department of transportation in the department of justice has just adopted those dotted lines as a standard and again in the new regulations zero two point three alterations reads although covered in tattoos are permitted to limit the scope of an alteration to individual elements the alteration of multiple elements within a room or space may provide a cost effective remedy to make the entire room or space accessible and i think there is that the cost considerations are embedded in that requirement that there be major structural modifications point example the evidence in the record is that the cost of installing an elevator at the fifteenth street stairwell would be an eight hundred thousand dollars the total cost of that project the work done in there was a one point five million this with with the escalator in city hall the cost to replace that escalator again very limited scope was digging out the guts of the escalator and extending the wear well with the well way was one point two million but there's evidence in the record that the cost of putting in an elevator would be two million which would be more