protection agency at a superfund site in fairmont west virginia the district court found that because august mack did not submit a pre authorization form prior to performing the work august mack may not recover from the superfund this court should reverse the district court's decision for three reasons st the e p a s reliance on the preauthorization form violates the paperwork reduction act rejecting august max application for reimbursement for failing to submit a pre authorization form is an unlawful  s reauthorization regulations and should have been allowed to pursue its going rd the district court erred in its analysis of the site specific funds that were available under the consent decree turning to the st point the e that's correct your honor i believe that that was the original intent was to tell us would have paid for their bankruptcy and after they declared the bankruptcy at that point in time and the funds were sought from the super fund and where  payment throughout the time that it was doing work over the years many months that it was doing work without seeking some sort of progress being and i don't know your honor as to why i don't know the fact that's that other than what's been alleged is that they had assurances that they would be paid and it was only after her talent declared bankruptcy and those funds weren't available for mattel and that they thought them from the super fund and from the site specific ok did you get we give very low administrative directory that was created by the e p a in connection with this claim usually the one year we have an agency decision and there's an agency appeal the agency the  you look at on the dictionary where i don't know that there's much of a difference in terms of the the definition of the approve an authorization or honor that's it's a distinction without a difference and i think that you're the court's point with regard to there not really being a record developed and the underlying case really highlights the fact that this this this case arrived at the court from a twelve b six perspective and all facts alleged by  are requests for relief in this case is the case be remanded back to the ale j and the e p a to determine the case on the merits as opposed to deciding on it on twelve b six motion which had to do with the form that was expiring obsolete and a violation of paperwork reduction act published a notice in the federal register additionally the director has to approve the proposed collection of information and the agency has to obtain from the director a control number to be displayed upon the collection of information importantly that approval is not perpetual work that was performed in terms of getting the cost you know the cost approvals it would also be looking at the preauthorization the preauthorization work that was ordinarily acquired by the e p a the e p a s indicate in this case that they require we believe that that sort of information is not ordinarily required by the e p a and importantly the approval under the paperwork reduction act is not perpetual and steady owmby director may not approve the collection of information per period in excess of three years that's forty four dollars u s c section three thousand five hundred and seven subsection g so the e p a is required to seek renewal every three years for a former collection of information and the e p a pre authorization regulations are directly subject to the p r a in fact when the proposed rule for the preauthorization regulations were published in the federal register in september of one thousand nine hundred and nine i specifically section was devoted to the paperwork reduction act however the last time the o the statute itself there is nothing in the statute that requires that authorization be provided prior to doing the work and there's nothing a statute that study speaks about pre authorization instead the statute itself states that such costs must be approved under said plan and certified by the response of responsible federal official so the statute itself doesn't require pre authorization it's the regulation that requires pre authorization and our position in this case is that ultimately it was impossible for regulation poses an additional requirement or supplementary requirement beyond the text of the statute so even in that context why wouldn't have been the proper response to the steps of the e p a or some government not to seek it from the super fund after callus went bankrupt then at that point in time authorizations would side from the super fund so there was not in and regional intent to deceive from the super fun however there was substantial compliance at the same time because every single piece of work that was done by august mack as alleged in the complaint was was provided to the p a and the e p a supervised been authorized that work before it was done so in terms of a substantial compliance standard which is what honor is that clear from the record i believe it is clear from the record your honor in for purposes of this being a case that well be thanks but we've alleged in paragraph ten of our complaint is that the work was supervised and it was sorry i'm looking at paragraph ten and it says specifically approved and me as the supervising contractor and supervised all of the work and meet performed and all of the costs of a me incurred is there a difference between supervising the co me incurred and pretty authorizing those costs it's unclear to me whether the process involved a real evaluation of the concert was more focused on the work that was going to be done for cleanup or your honor i think with regard to that that allegation it's such that all reasonable inferences must be taken and in favor of august meg and so that would include both supervision and approval for that work but you are merits because ultimately the work that was performed by august mack on on the site met all the requirements in terms of it being necessary and appropriate for that work to have been performed in fact the e p a is relying upon the work that was done by august mack and so ultimately what we're asking for amanda is that that work be assessed on its merits as opposed to its failure to provide this pre authorization form prior to doing the work  ultimately with regard to the penalty provision in that they work reduction act in states that no person shall be subject to any penalty for failing to provide with the collection of information and the term penalty and could not only the imposition of a fine or other punishment and also include the denial of a license privilege right granter benefit and the plain meaning of denial is where there is a refusal or rejection such as a request or a petition and the benefit certainly the benefit here to august mech was that it would be that two million six hundred thousand dollars that they thought in terms of the work that they had done and it was not that was not compensated and so i think that i'm out of time you know what are we respectfully deeply importunate for both august mack and for the environmental protection agency i guess not recourse was in bankruptcy proceeding the fact that that process was on able to make august jackhole does not mean that the federal taxpayer now can or should pay th to foot the bill with what troubles me about this case and and maybe the record is sufficient and in the sense that there is no clear answers that there would need to also be an equitable and unfair unjust for the government to reap a windfall at the expense of the contractor who did work or junkman whether directly or in this case indirectly and was not paid and i can see that the government actually papered fellows and patella for whatever reason didn't pay the contractor maybe that's fall back on you don't believe in been able manner so the function of the p r a is in the manner of an affirmative defense if the e p a thought to impose a fine or some sort of criminal penalty on a need than any in those enforcement proceedings could say that you requested that information on an invalid form and that you can't move forward with those enforcement proceedings but here when e p a or and sorry when august mack is affirmatively seeking something from the government what the p r a thought is if the form of been valid then annie is entitled to comply with the requirement and left in a very difficult position of being responsible now for not only conducting the the vast bulk of the site cleanup board but also funding all of that work and to run a situation now where the polluting party the party that's responsible for for creating th superfund dollars at that particular moment because there are so many sites and so many limited funds but also to evaluate whether or not that the project is going to spend the right amount of money whether or not there's going to be you know financial oversight procedures in place what the timeline is and  but it also then can't assure private parties that funding will be available to pay them when they do work on e p a behalf for both those reasons the big credibly important the preauthorization occur before work again so that everybody is on the same page about what work will be done how much it will cost and who will get paid for it oh i was just going to follow up on that don't we not have a particularly clear record in terms of what information was or was not provided by and made to the agency at this point perhaps because there was no discovery but the fact that we're trying to glean meaning from references  that even if there was some discovery that show that there was incompetence nation provided or there was you know certain other approvals that were made that wouldn't change the fundamental fact that that and i guess not did not even attempt to get the authorization for its claim because it was never intending to be paid by e p a it made a private contract with the polluting party or tell it to do certain work for tell us so there simply wouldn't be anything revealed in discovery that could change that basic fact and i'd also like to take a moment here if i can to to focus on the fact that when one august magath making that argument that it substantially complied with the preauthorization requirement it's not pointing to anything in the actual language of the regulation the language of the statute or in the case law or other court doctrine that would allow this sort of general compliance doctrine to apply to the otherwise bright line rule and the regulations clearly state that a claim must be put off the right even if there's some flaw in the application you have to have an opportunity to review that application to analyze it to compare it with other priorities and then the e p a released the book called the preauthorization decision document and that document clearly articulate for the benefit of all parties what what insurer to make up for one polluting party you don't pay their own bill up not the function of the super fund to clean up how they're dissuaded contamination when there's no other possible way of doing it not why the regulations were written the way that they were ph perspective how a contractor like august would have been paid it sounds like you said the private contractor and they would have looked directly to the tellers but there's also information on the record that suggest contemplated using any money from the super fund by the obligation with that bird telep with the performing to fund it it was responsible for completing the cleanup work and it was responsible on its own well paying contractors to complete that cleanup work if they didn't want to do it and how  person here is if that was a mechanism that was appropriate then i would never be any benefit to our polluting party to pay its own contractors because why would it want to just not pay them the contractors to do the work it might be work but it's not appropriate for  next funding consent decree and what i mean by that is you have a responsible party approving party who's agreed that it's responsible that willing to take on the work to clean up the fight that can pay most but not all of the bills and that's ok what would be a really good bomb thank you judge the government in this case is not contending that they did not authorize the work they were simply taking the position that it was not pre authorized but that entire process starts with an expired form and relying upon that form violates the paperwork reduction act and august macca can incur a penalty for failing to submit that form under forty four dollars u s c section three  twelve the regulation that opposing counsel referenced with regard to looking to whether or not that information information was provided in any other reasonable manner is actually from the regulation not from the statute provided by the by the paperwork reduction act and to the extent that this court would look to that regulation that in any other reasonable manner is looking to substantial compliance and ultimately august maxim standardly complied in that the costs that they incurred were all approved authorized by the e p a before that that work was done ultimately the agency did get a want windfall from the bankruptcy they received thirty seven million dollars in site specific funding that was a plot that was applied to it as a result of that bankruptcy and all the arguments about future losses only mean that that windfall might offset future costs but it's still a windfall with regard to discover a judge gallagher asked about that and i wanted to provide further clarification as to the discovery that we would seek in this case we believe that getting to the supervision of the work that's what we need to discover and to answer the questions of whether they actually authorized to incur those costs we believe that those those costs were authorized and we believe that discovery would bear that out august max absolutely was submitting those costs to the e p a and we stood ready to submit that info to the court so it could review it all of our scopes of work that the e p a reviewed and approved included cost information not detail broad breakouts but budgetary costs were provided for each task and evidence of act because the form was obsolete and expired and so the court should look to substantial compliance and the e p a should look to that standard and ultimately met that standard  discovery would reveal it certainly would your honor and in any event i'm out of time but if there are any other questions i could certainly take them your honor