expansive for a moment of being a twenty three year old senior financial analyst in the staff of the assistant attorney general in charge of the antitrust division in the united states department of justice in washington and a memorandum crossed my desk in one nine hundred eighty three and it said there are three issues facing our civilization are we going to blow ourselves up can we live harmoniously with the environment which brings us here today and can we control corporate power which may be also what brings us here today and while this is just a gas station site in a ghetto location in oakland i remind the court that the water table below that site is seven feet and it goes right out to san francisco bay so this is a very important matter the legal issues raised here we don't believe it been addressed by the ninth circuit or even the u s supreme court and the question is this was a case was dismissed in the early pleading phase  plaintiff pleaded that circle it the liability exemption under circular did not apply because hydraulic fluid such from below grade i draw it to lift apparently were was discovered in the soil it's can i just jump to my main question about your case it seems that you have alleged that there contamination in some of the fluids correct and i'm wondering whether there is anything you could say if we gave you a chance to amend to explain what that contamination is and what your factual basis for thinking it exists as well as hydraulic fluids which writes a hard drop fluids on their own don't bring you into circles so what contamination could you could you identify could you allege specific contamination and what would be the basis for that ok what kind of a substance that is covered by circle or could you say is in that contamination or could you allege well you've alleged a lot of petroleum products that are exempted now if they are contaminated by something that is covered by circle you might have an argument but so far you haven't identified those contaminants and i'm wondering if we give you a chance to amend could you consistent with the rule of an art or have you said everything you can say there is some discoveries and needs to be done right but we don't get discovery unless you have a complaint the conservative a motion to dismiss so at this point do you have any basis consistent with the role of an to identify the contaminants mike i own a client so informs me and we are so informed by the alameda county health department what contaminants do you think are there recycled oil products so those are petroleum products so what contamination is in those recycled oil products hydraulic fluid i don't believe i don't believe these are how it's been decided that or that these because they are also mixed in with hydrocarbon products that they come under their circle exclusion rate but the question though the question that hasn't been decided yet is whether contaminated petroleum can still be covered because of the contaminants and so but you still have to explain that there are contaminants that are in circle and so far you've said the contaminants but without identifying them so we don't know whether they're in circle or not or whether there's any reason to think they're in circa ok well i imagine rule eleven i believe  there is hydraulic fluids and recycled waste oil products that have all been mixed together in the soil underneath the site  we believe reasonably from the alameda county department of health that further investigation would reveal these products to products which as we alleged  chemical compounds can that have contaminated the side during use in other words they've all been mixed together and can you identify any ten tamina that is not a petroleum  product or a petroleum fraction anything else that you think on the site it's my understanding that hydraulic fluids are not petroleum or not under the but are hydraulic fluids hazardous waste control but covered by valley bank case which cites a e p a memorandum which discusses which discusses that i would just have to refer to my briefing and so i think that hydraulic fluids if the court were in doubt i think we need to go back down and figure out if hydraulic fluids it stands to reason that hydraulic fluid  which would come from a lift in a gas station among other places including automobile automotive well why should we give you leave to amend in any event and when the district court went in and out the deficiencies gave you leave to amend and you are still not able to cure the deficiencies well we believe that deficiencies work but if that's true then it's not you don't need a further leave to amend either you are correct that your present complain should not have been dismissed or there's no need for further amendment right because who would be contrary to your docs you're not saying we have lots of other things to defendant good morning and may please the court robert goodman for chevron capital corp we believe that the complaint was correctly dismissed the second amended complaint you review that decision de novo of course but we believe as evidence by counsel's argument that the second amended complaint does not identify any release of any hazardous substance that falls outside of the patrolling zero one parental teen they are listed in forty c f r three o two point four extensive list and hydraulic fluid is not hydraulic fluid may sometimes have contaminants in it that are hazardous substances but there have been no allegations in the three iterations of this complaint that hydraulic fluid contained any hazardous substances and so we submit that when you look at the we pleaded allegations in this complaint there are no allegations of a release by hazardous substances in the us it fails to meet rule eight pleading standards the c r a report that was attached to the complaint was that about an investigation that was looking for petroleum products specifically i'm i'm wondering whether it would have said anything about things other than petroleum even if they existed it would have judged tre pfizer a number of other substances that were analyzed for it looked for baldly organic compounds it also looked for vault it looked for metals it looked for a number of other contaminants in it only at least the portions that are attached to the complaint and incorporated into it only referred to petroleum hydrocarbons being discovered now the second amended complaint does allege that the plaintiff conducted its own investigation but there is no discussion of what hazardous substances were discovered in that investigation other than xylene which it says which is says is not subject to the circle hazardous petroleum exclusion but it doesn't give any factual context for that in this then best as can be rule eight requirements in our view so so we think that the complaint viewed plaintiff could have done an investigation that would be on the beyond the c r a report i mean the sister courts seem to treat it as the c r a report is the entire universe if they had done another study they could in theory amend and tell us about it it doesn't sound like they're prepared to do that but in theory that was possible well of course it was and judge did not know what he did dismiss the first first amended complaint laid out nine specific issues to be identified four or five of them deal with the circle claim and they say tell us tell me what hazardous substances are there that are not subject to the petroleum exclusion they were given three chances to do that and didn't do it i don't think judge judge did not oh didn't say that the c r a report was the be all end all but in terms of considering a motion to dismiss that's all he looked at the he looked at the complaint and that reports included in the complaint until the complaint when you accept the  the trial judge said you need to tell me what hazardous substances are there that are not subject to the petroleum exclusion and it didn't happen in i think you're going to the second prong of the issues before you i think that's why the the dismissal of the complaint without leave to a man was not an abuse of discretion it was well within judge not of discretion given the ample chances that he gave the plaintiffs to amend the complaint and we heard here this morning that there's nothing more to add apparently so it in lester further questions i'm pleased to non pretrial him source now in the neighborhood of that than the one getting back to rule eleven here in the neighborhood where this gas station sits not surprisingly there's adjacent dry cleaners there's shopping centers things like this and thirty needs to be further factual tracing or an investigation if it's possible to see if the xylene is from the defendant's use of the property or from some neighbor we don't know but one of the your burden you use to get around the exception it's not enough to just say so eileen from a non petroleum source you have to say what the sources well this is a complaint this is the you know it seems like we've slipped into a summary judgment motion and if you're saying it's from the dry cleaner that i don't even understand why this is the right defendant it seems like you need a theory that they're the defendant for whatever this or what i thought that that's what discovery is about the we were going take some depositions and get some documents and maybe bring in another defender who knows but that we're talking about the pleading phase of a case i mean now the pleading phase of this case and it seems like it's  crass broad brush to just throw it out on that basis ok thank you it's just argued will be submitted we will take a short recess five