it please the court i'm geoff clark from the justice department with me counsel table is mark haig i'd like to reserve five minutes for a bottle if i could you know it's one of the most oft repeated words in the read brief by exxon here is that  the chemical safety board the c s p is engaged in a roving inquiry they're trying to look in the issues beyond catalyst dust they're engaged in the equivalent of an inquisition is the implication from the briefs and i'd like to you that that's very far afield from what we actually have in front of us know the c s p didn't have to rule very far here to issue the subpoenas to look into the issues that it wanted to look at the outcome ration unit containing thousands of gallons of piece of debris that came so close to the tank would you have been seeking information about that unit none the less we perhaps might have your honor because of the fact that it was adjacent pretty iffy well i mean so we're we don't deal with hypotheticals right the chemical safety board is looking at the actual facts as they were presented and as they were presented it was the forty ton chunk hold one hundred feet to within five feet of the tanks but whenever you're talking about designing a refinery in any kind of manufacturing plant your honor you have to work at what you're putting next to any given unit and so if you get a look at the safety of that unit you want to look at the relative location of other things that could be affected if there was an accident at that unit and one more question you course have a specific request among the five requests that are on appeal here that deals with siting decisions that's correct so if that one may be relatively easy to justify yes although exxon may have some words about that but how does that extend to all of the others particularly ones that seem to overlap with and duplicate the information sought there you know i think that whenever one you know does the equivalent of even a discovery request in civil litigation right each of the individual requests is not necessarily hermetically sealed from the other request rights entirely possible for them to have you know overlaps and i think that's true here so i think each of them is independently justifiable right the st one is about risk assessments unit right so if you have thousands  of pounds thousands of gallons i should say modified hydrofluoric acid sitting around that's a very dangerous substance that eats through glass it can cause i burns it can even cause heart attack and death so that's the reason to ask for information about that when it's exactly adjacent to the cracking unit which is what exploded in two thousand and fifteen the nd request it is from information and manufacturers of the modified hydrofluoric acid for the nature of that substance because particular because it has been modified and it's not a well studied substance your honour's and so what information do those vendors have they have information about the way in which the process in which that could volatilize and vaporize and that's very concerning because we're not just talking about an exxon facility that's were created in the middle of nowhere we're talking about an exxon facility that's located in a residential neighborhood in september there was actually of that same year that there was a release of just five pendulums of this stuff and it caused a persistent cloud to hang around for five hours so imagine what it would have happened if a forty ton piece of debris from the electrostatic unit had smashed into the tanks and spilled them what kind of cloud and what persistence of that cloud you would you have been dealing with then so that's the relevant relevance of the rd item the th item is a request for what the volume  clearly something that the chemical safety board if they're going to prepare a report is entitled to know and the last category is the one i was discussing with judge rosenthal about the sighting distinctions and we think that it's clear that that's that's relevant information as well so you you briefed appeal mostly as if the district court had interpreted the applicable law correctly but then applied it incorrectly and i'm wondering if actually maybe there is a legal mistake here in somehow reem courting some sort of notion of cause ation into the legal test because it's a little bit hard for me to understand what the district court was thinking other than somehow that this acid was not part of the cause of the explosion yes your honor i think  that you know exxon maybe argument that you know two things number one since the forty pound chunk didn't hit the acid tanks it wasn't part of the action so call that kind of like a factual divorce no harm no foul no harm no  foul but i don't think that's the way safety agencies work they're entitled to look at the potential consequences of what happens if there's an accident and then the nd argument was that it was just a fishing expedition or something roving as i started with to look into  you know larger safety studies as to the nature of modified one hundred forecast that you know it's possible if the judge you know bought into that but i i don't think that you know the judge  remotely sort of exercised the proper light touch that the statute requires especially in deference to the experts at the c s p i mean the standard review here is you know your regard abuse of discretion but what the district judge is supposed to be doing according to the e e o c the fed express case is quite narrow a strictly limited inquiry all you need is some plausible grounds for jurisdiction you're supposed to avoid interference with proper functioning of the agency the relevant standard is entire refinery up there be some limit there you know i definitely think that there would be limits that's why i tried to start with the fact that the facts here are very strong for us we're only looking at that w the adjacent unit in the same refinery you know maybe if we asked for information from a refinery that exxon had across the country you know or if it was just undisputed as a matter of fact that there was some kind of you know fire break that would prevent consequences in one subunit from affecting another subunit but that's not what we're dealing with here you know one hundred feet propelled could easily have been one hundred and five feet propelled and then you had suddenly have thousands of gallons of acid that are potentially released right next to a residential i think that i can prevail in this case under subsection run because i think where this is about c c one right so our six c roman at one i think i can prevail under see one because where this landed as a use the information you pondered to recommend measures to reduce the likelihood or consequences of accidental releases there's no indication that i could see in the record and that's where i'd like your help to point me to where in the record i might find it any indication that you were proceeding under anything but so your honor i think in terms of c two there's not a requirement to actually issue a report right it's part of what informs seeking the information right and we're not dealing with a relevant standard this is another error the judge made below you can see it and there in that in the transcript that she was looking at a relevant standard in terms of admissibility of evidence in court but that's not the relevant standard doing with we're dealing with  relevance to an investigation and so as long as the investigation could lead to such a report you know we think that it's entirely within the span of the c s p has power to ask for it that's always possible so does that mean that every time you are looking into the facts and conditions and circumstances you are also using your ability to pursue recommendations to make the whole process  better i think yes your honor at least we need to keep that option open so you know the way to the record support to indicate that that's what you're doing here i think on that your honor i would stand on the on the well actually you know let me refer you to the petition right so the petition that paragraphs ten and eleven right they cite both c one and c two and it's not just a brief reference right c two as in is quoted basically in its entirety so i think i'd stand on it as a matter of law on the fact that we put it in the petition if i'm reading my timing right it looks like i have three hundred and forty left if so i'd like to reserve the rest of that for a bottle thank you thank you the question here presented today is whether judge marshall abused her discretion when she determined that five subpoena requests by the c s p were not relevant to this investigation exxon mobil responded to three hundred and twenty nine document requests and challenged fifty six judge marshall law the parties to hold have full briefings on this she held the hearing there was a twenty five page record transcript of that hearing i think very tellingly the government did not cite that record transcript at all and didn't present it to your honor so we had to actually include that in the record i think that's very telling because at that hearing she went through doing what a district court judge does she went through and applied this law this statute to these facts to these specific subpoena requests and she heard argument from both sides and she looked at the actual subpoenas and what the government cited on those subpoenas and she made determinations enforceable as it related to other units in the plant so she looked at that and split it and then twenty six dollars she found in forcible we would have had a different house we would have applied the law to these facts differently  we certainly don't agree with her that you know the twenty nine should be enforceable but we recognize that these are difficult line drawing exercises and they are exactly the type of exercises that a district court particularly one like judge marshall is best suited the real issue here is what does circumstances mean why would the district court be better at figuring out what circumstances in the statute means than we are well i think she understood what circumstances man she takes that word it's a pretty common word in english language and applies it to these subpoena requests i'm not sure you can divorce the two well the the problem i have is that she didn't look at it as a circumstance of the of the explosion of the unit that exploded the request was for the it was for risk assessments performed for another unit and if you look at it as a question of if you're of whether she should and whether it's for another unit might be one thing but if you look at it as whether this is a circumstance of the unit that exploded it's  different question and it is i see it what is presented to us as a question of whether or not this can be investigated as a circumstance of the unit that exploded and i it just seems to me that the question was presented to her a little differently than it is presented but i was there and i said it differently but i'm happy to talk about the law i'm happy to talk about the law and i think that you know there's a guy isn't this  and circumstances of the accidental release the government keeps saying instead of repeatedly on their oral argument just now the accident they stay away from release that's a key language and see one why because a white boy like to talk in hypotheticals isn't it a circumstance of the release that it hit five feet away there would have been a further explosion well i think it's a circumstance that the debris where the debris goes and exxon's that's what i want let's talk about the actual requests here  we are not posing and we did not oppose information about what was released whether it be in the air or on the ground and in this case there was this piece of debris that the government's focusing on that landed on the scaffolding of the collation unit so we put it in my isn't the question what that piece of debris might have hit a question about the circumstances of this really well i think it could be but that's a line drawing exercise and you can play that hypothetical out further and further and further but the point i want to raise because this was i think a mistake perhaps accidental but we have produced information pursuant to the government subpoenas that show the siting that you have and i don't recall that the major issue here was that it was duplicate or overly burdensome no i'm not making that argument are i what is saying is that they've gotten information about c one would would suggest which is information about the siting hazard of the s p unit the and this is and actually i think the answer to one of your questions the c s the e s p unit is actually an environmental unit ironically that was installed decades after the alpha lation unit and so the siting of that unit and the documents and studies that went into that all of which have been produced is what's relevant to determining  the risks of that debris or for that matter the debris could have gone two hundred feet the other way and it had a parking lot or something you know i mean these are these are hypotheticals i mean are you saying that that sighting information discusses what would happen if the debris hit this acid container it talks about the sighting in relation to everything around it which would include the collation unit so it doesn't talk about a release of of forecasted because there's no dispute here on this record that there wasn't a release and i submit that this congress wants the c s p to focus on actual releases this is an agency that has about a twenty one million dollars budget they can't be running around spending all their time thinking about hypothetical releases i think congress is well within its only look at what actually happened when you have writing this with what it actually exploded when you have the invested tory authority covering the facts conditions and circumstances of the explosion so close calls like that almost two airline planes crashing into each other but they didn't should be within the investigatory floor and even the agency investigating it seem to me that this is similar to what i would say your honor as it should be two is about the reports that get written from c one of us a geisha is reported to congress i'm not sure that ever has been one but there are reports that they write out that authority in congress gave i agree and then see two as about those reports that are based on c one investigations but there's no mention of it but it's broader it's broader than c one in the sense that it allows investigation into the process  procedures that might improve the safety which it could be it could be read that way st i was waved twice it was really waived it was not cited on the subpoenas so we had no basis to challenge it on see two it was not mentioned in the papers they it was something judge marshall specifically addressed at the hearing the government then waited again in its opening brief and it was only after our brief that they felt whoops we actually need to see to authority we're going to go back of discretion always contains a component about identifying the correct legal test and we review that part even within abuse of discretion deli i agree i agree and i think that judge marshall's application of  law to these facts st of all her interpretation of that law and application to these facts was not only correct and reasonable and certainly well within certainly not clearly erroneous certainly not beyond the pale certainly not illogical or implausible but i  think we still have to make sure that she identified the correct legal standard and i'm not sure i understand your definition of circumstance if somehow it doesn't include causation can you explain to me how you have a definition of  question so i would say it's the circumstances of the release so that's a pretty broad term and we produce documents that show how broad it is for instance we produced risk analysis related to the  unit and the f c c and it that those go far beyond the cause or probable cause of the release it's all the circumstances that relate to that particular unit so that's just that's feet might itself had been pierced and a release occurred here as well well st of all we don't know that that's the hypothetical on the government use the five you know the five he does not but they use the word imagine quite a bit and claim they don't deal with hypotheticals but that's their entire argument so i would say that that again i think the fact of where the debris lands is is relevant that's part of the overall circumstance of the of the release whether it's in the air or on the ground and extensive material was provided not just to this agency the agency but seventeen other agencies no i'm not saying that i'm not saying that i think we think that c s p plays a very important role and in fact we work very closely with c s v to produce their seventy three page report i was there i personally worked with them and i think that they do a very good job at analyzing safety issues as it relates to releases and accidental releases and it was very cooperative relationship between the company and c s p we immediately provided them with eighty thousand pages of records within three weeks of their arrival and they came three weeks late every other agency arrived on the day of c s p comes three weeks late but didn't matter we gave a full briefing gave them experts to talk to we were required to do that but we felt felt it would be helpful to them so the operation here earlier you said something earlier about their limited budget but they're here fighting this case using that some of that budget so why shouldn't we understand that to mean they think this is really important well what i was getting at is whether congress thought it was important not whether the c s p thought it was important i think the c s p certain members of the c s p mentioned on day one of their arrival actually before they even came that they were interested and studying and chuff they didn't talk about interest in studying out the f c c or the s p they talked about their interest in studying and shop so i think i think that's fine they can certainly do that and by the way there have been other releases of m h efforts for whatever reason chose not to study but even here they can do that as a general hazard study but a general hazard study doesn't come with subpoena power congress was very specific about what gets  power and what what can allow a government agency inside the fence which takes us back to the sea to question in a way because subpoenas through already would extend that we subpoena authority i think the c one lays out the investigation piece so i think of that as the subpoena authority you're right that l talks about c generally and i think that's because c two reports flow from geisha so how do we reconcile the language of c f and l well i think that's a great question i think if if c one does what they think it does or c to for that matter that would be entirely superfluous and it's a basic concept of statutory interpretation that we can't read out sections of the statute if c one and c to allow them to engage in hypothetical risk assessments i mean that's a geisha then what's the purpose of f accident here so there was an accidental release in this case there wasn't an f is a broader provision that says you don't need it you don't even need an accidental release if you want to do research but what we're talking about so i think it's very telling counsel spent a fair amount of time talking about his confidence and c one i think it's very telling that their brief is almost entirely filled with references to other pieces of the statute we're not saying that that's irrelevant to  species mission but we are saying it's not helpful in this context in terms of analyzing whether or not judge marshall committed a clear error which we think she did not whether or not  she used her discretion which we think she did not these are difficult line drawing exercises and we can come up with hypotheticals all day long those things could have gone two hundred feet the other direction that's just a random event it could have been it exploded in a different part of the s p which would send the debris into the parking lot and then they'd come in here and asked to study perhaps potentially under this interpretation hafen fords or ford trucks or chevy trucks which ones are safer and how much gasoline can you have in the engine or asphalt or concrete paving so i mean where do you draw that line and i think in closing and i have i think i'm over but in closing i would just say that we're not suggesting this isn't difficult line drawing exercise what we are suggesting is that that exercise is well within judge marshall's discretion thank you very much thank you so your owners we're dealing with i have a lot of different client agencies that the just by word i'm dealing with a prophylactic agency here we have been sued exxon we're investigating and at the moment there's just a giant gaping hole in our report we did the best we can based on the information that we did get but there's a group at home the report based on looking at this modified hydrofluoric acid substance and what could have happened if it was just an extra five feet so we completely agree with dr schroeder that i just have a factual question that maybe i misunderstood from the brief is it actually an extra five feet or just five feet to the side like was it within the radius so it was propelled one hundred feet is my understanding that was five feet away right in the piece of debris the forty pound  yes i mean is there some so if so this is actually slightly outside the radius i mean is there some boundaries where you're too far outside the radius well i don't think it's outside the radius i think if it could be propelled one hundred feet based on a particular explosion it could have been propelled one hundred and five feet and part of what we're looking at in terms of the sighting analysis right is how close is a safe distance from it and this looks like a pretty you know usually you have margins of safety right you know factors of ten or what if what yes it was three hundred feet yes and we're three hundred feet but we're still the adjacent unit i think we'll probably still be here but we're not dealing with facts that are three hundred feet so that you know in your judgment as to what you would want to investigate right and that's what we really see with judge marshall's decision i think is no indication that he's giving deference to you know an expert agency i mean these are the folks who study chemical safety right also you know as as  my esteemed colleague here was was arguing from in terms of the budget of the agency and so on this is an important case that's why i'm here that's why this case has spanned multiple administrations it's not something that's that's been dropped we want to get this information and we think it's it's entirely relevant under the statute and we're entitled to get it yes but of the question about the extent of your argument some of the requests are limited to at the time of the release and that makes  sense to me a couple of the requests are unfettered by time or seek fifteen years yes information and that troubled me because facts and circumstances and conditions are all at the time and even the investigative authority that might be brought or undersea to if you're relying on that as well seems to me to be stretched by getting historical because i agree with it which is basically if you're in a refinery context a lot of the equipment that's built was built quite a while ago and it's not like it's undergoing constant you know inspections that the government has access to a lot of the information may be based on manufacturing specs and notes that were taken back at the time that piece of equipment was installed so that's the reason why there was some ranging backward in time and again i'd ask you for for deference on that to the experts at the c s p thank you thank you thank you both sides for the helpful arguments cases submitted