the standards under the citizen suit provisions of the resource conservation recovery act and the toxic substances control act regret and task we referred to the have used the term the mere risk standard to describe what this court's interpretation was of the imminent and substantial endangerment provision that is the operative provision of the citizen suit provision issue injunctions that is prohibitory or mandatory when there is quite a risk of harm and the mere risk standard in s p x one this court also instructed lead against and the district court on how telling with these clouds of dust that may well have p c p s in them but there is also a state plan out there could you just summarize for me in what ways you think that plan is deficient is a matter adequately remedies the harms that met that may come within rigorous scope it does not and it does not because the state plan leaves in place she cbs on the surface that will definitely threaten only parts health and the environment the defendants refused to comply with the binding p c b regulations which we iceberg of p c b contamination the area i asked the court to look at the bigger not figure nine shows known contamination on the property to the north which lee parts own and the property to the north of that which is occupied both of those are occupied by residents now both of those i understand not the only parts now they've they moved out that is correct your honor that is correct however the lea northern half of leave parts home including the area that mr reports they did was covered with dust you can see its cars in the aerial photograph those areas remain on the investigated it's highly includes four samples surface samples across the street to the west of the lead part home those were those south poles contained surface samples of p c beats that data was collected after the district court issued its st grant of summary judgment to defendants so yes and you know exactly what year i mean because of course there's a time with toxic b c b s on the surface that are not totally enclosed and thus violate the totally enclosed standard of the toxic substances control which states well there are still a few bugs in the system i'm used to ruling on what is going what is it concretely that you think must be done for example if the defendant volunteered to put down an interim fresh clean topsoil would that do it no your honor it would not because the p c b regulations are so detailed because  concretely what is required is that the p c b regulations actually require no i don't know i want to be clear i'm not asking you for your interpretation of the regulations i'm asking you concretely what your client wants the the reason i'm asking this is because it was important to the district court's opinion that there was no expert evidence showing what part of any p c b contamination was attributable to the defendant or at least the recent activities and what part was much much older when we start talking about three feet of clay we're talking about remediating potentially much much older contamination so i'm interested in trying to in asking you finding out what it is concretely you want th the contamination caused by the defendant what we are asking for is a complete investigation using the methods prescribed by the p c b regulations asian as the p c b regulations require that would likely require excavation now if that excavation and now and now i hope you can see my problem if you if what you want is excavation it looks like what you're asking for is a remedy for a much much older contamination which is awfully hard to truck up to the defendant i was hoping you would give me an answer that might be limited to dealing with a contamination was really caused by the defendant that can be easily done your honor it's well then don't talk to me about three feet of feet of clay no your honor what i understood your hypothetical or your example to convey is that if you found a deep contamination then that would not be instead of excavation there would be put so i think you mentioned several inches of soil on top that did not include excavation but what i am asking for is excavation of perhaps the show that given the timing of this demolition and the methods used that a foot somehow corresponds to that means seems like experts would need to opine on such a thing as opposed to i  think we have i think that the s p x plan itself in those three areas cause calls for one foot of exclamation and additionally we do have expert testimony because that contamination found on the surface is from the demolition and as matter of fact table two of the report shows that one hundred percent of indicates contamination from the demolition your honor what as one might expect aerial deposition now we do have expert testimony and the experts have stat but the district court failed to do that mr wood yard john wood yard was that the leap arts expert for standard of care and cause ation and he testified unequivocally that the one we said the district court was well within its discretion to exclude the proffered testimony of expert witness would yard and so we were not certainly compelling the district court not rule out alternative causes but as schultz the axle nobel at seven hundred and twenty one dollars s rd for twenty six states he did not have to rule out other causes because he unequivocally identified the schulze now there is an exception but it not only is that shows that is the nearest standard that is the case before the court currently now there is an exception not applicable here as demonstrated or  the power if you will if they can displace the dominant cause that is not the case here the fact that there are p c bees may be in the deep samples and in no way displays or eliminate the possibility that the demolition fact the dominant cause being the demolition in other words both can co exist let me explain the well you don't you don't seriously assert that all of it is i thought that the lead parts were making the more modest claim that with the demolition came deposition of particulate material on the surface of the grass or the driveways or cars or wherever it was being deposited that was contaminated with p c p s and so that added to whatever was there if what was there before was eroded outages zero what was there before was a positive number it added to that so surely the parts aren't saying that every sign of p c b on the properties is attributable to the gem to the demolition parts are saying that all of the contamination found on the surface your honor is from the demolition and there's mr emanation say underneath the asphalt driveway don't i recall that correctly yes there is that that seems to have assumed an outside place in this analysis because mr wood yard testified that  contamination at depth can be cause for example by cross contamination when the instrument is goes down into the soil that can carry contamination from the surface that can happen whether it is the surfaces covered by asphalt or not it that's really immaterial your so could i ask you this if we were to conclude that the district court was entitled to continue to is the nearest standard is satisfied that is p c b used on the surface of the lead parts of property that have the potential to threaten their health let me go through the undisputed non expert evidence that demonstrates that we've already referred to the dust clouds of dust now could the dust contained p c b the data clearly show that it does number one the surface aren't saying that new p c p s are being deposited are they i thought it was just what to do with what got left on the surface of the lander a little below it after tw the demolition equipment getting the contaminated surfaces into particularly the concrete floor that concrete floor had easy be contaminated dust on top of that and the concrete floor itself the top inch of the conferee concrete floor contained seventy five percent of it contained b c b s that we are the demolition earlier your honor in table two and then as i mentioned one hundred percent of the surface of the surface oil dated table to contain p c beats seventy five percent of that exceeded wisconsin residential standards and thirty eight percent of that exceeded the federal standards now previously i mentioned the the source of the sample first of all that was  based on his analysis it was the same stuff now did those contamination did that contamination have the potential harm the early parts health the answer is yes it did because wisconsin and therefore p c b is in concentrations exceeding those standards resting on the top an enclosed on the top of the parts back yard clearly have the potential to harm similarly as i noted the federal standards that derive from the toxic substances control p c b as were banned by the toxic substances control it because of their extreme taxes city and is a twin of the mirror risk standard and p c b s resting on the top of the we parts residential back yard are not totally enclosed and therefore present in an reasonable conclusion is that based on the non expert evidence undisputed as a matter of law the nearest standard is violated if you will the p excluding dr carpenter dr carpenter's testified that indeed the lead parts the p c bees have the potential to harm the early parts helped the district court irania sleep simply reverted to its original basis of exclusion of dr carpenter which was that each has five there was no safe level of p c beats his testimony initially was just like that in shots of the expert in chills however the crux of the matter is that the district court did not apply at the mere risk standard dr carpenter directly answered the question of whether the p c b is could leave parts property could harm their health and he did so by identifying the exposure testified that those exposures were quote high exposures and asked what he meant by that he testified that he was referring to the exceeding says of the wisconsin presidential standards that said as transcripts that lower court on the lead parts property from demolition have the potential to harm their health and clearly the state plan does not cure that ill because it leaves contamination in to comply with the binding p c b regulations under tasca we submit that the district court does not have the authority to simply excuse the defendants from compliance with binding federal law this specific issues the district court followed this court's instructions on remand it properly exercised its discretion in excluding expert testimony and it correctly applied this court's rulings conduct any analysis to rule out or even examine much less rule out alternative causes of contamination at any level of soil that not just saw oil eight inches or below but surface or as well which is soil below the root down to six inches mr woodward admitted that runoff or erosion could have accounted for virtually any of the contamination on the  leibowitz property he conducted no analysis of the history of the property he did not even interview the lead hearts before submitting his report and that is among the reasons why the district court excluded his testimony really the the question is whether contamination can be and attributed specifically to the demolition but looking more broadly defendants believe and there is evidence discussed in both mr keenan's expert  port and then also in an expert report submitted by t r see that the leibowitz they brought in film materials from outside which i believe mr lee bart agreed to during his deposition and on that property as well historically so we don't agree that all of the contamination could be attributed to the s p x property whether historic or otherwise you the question with respect to what you would henri mand was whether the district court would want to rethink its evaluation of what you read in light of this court's opinion it wasn't required to do that it still did they valuation should have been any different in light of this court's opinion the arguments that were being offered in are being offered are the same arguments that in fact we discussed during oral argument two years ago in this court one that the demolition contaminated their property with p c b s two that exposure to those p c b would have the potential to substantially threaten their health they were to reoccupy their property and then three that the injunction they sought would be necessary to remediate that danger if it in fact existed so i ask you about one because there are these pictures in the record of giant plumes of dust and so on in conjunction with the demolition which is hardly surprising given the demolition of that size and there's evidence that p c b were on the s p x site and i'm just wondering what what homeowners are going to go have prophylactic p c b tests made on their property for the before time just in case somebody decides to demolish something later isn't the evidence on point one at least good enough to allow the inference that the c p s were deposited there from the demolition no i don't think that there is any evidence to support anything but speculation that the dust contained p c b is and in fact i will note there is photographs we don't agree that the photographs even contain dust the actual testimony in the record when witnesses with personal knowledge is knowledge were asked was that photographs that librans and their attorneys say depict dust in fact depicted mist from misting machines but have surface samples true surface samples taken inside their property by a consultant after the demolition and those surface samples turned up negative and the levites were concerned and also there was a blood sample test done of mr lieberman unfortunately that also turned up negative present some evidence that there were p c p s in surface samples and we do have this table that we've been referred to a couple of times and there's also the chromatic graham suggesting the same type of  s as those on the s p x site so i know that this one factor is not in itself enough to carry the day but it's a building block and it looks to me like a reasonable jury could conclude that this activity on the s p x site deposit p c b that those particular p c b and let me take  every samples and the chromatic gram in turn i do not agree that there is evidence to support for reasonable inference that any of the contamination on the property is attributable to the demolition the surface samples and surface sample i think that what we're looking at is surface soil so what about not maybe you could talk about table two these are april and may two thousand and fifteen surface so samples is there something wrong with how deep they were going or how shallow they stayed or you know what's what in your view undermines these numbers which show some pretty significant concentration the fact that there is contamination in the surface soil of the st six inches of soil underground is not enough to sustain a reasonable inference that that contamination can be attributed to any particular source mr woodward himself agreed that virtually any of the contamination could be attributable to historical runoff or erosion there was testimony by mr l that he moved so oil around the backyard redistribute it to in fact the very areas where contamination was found in high concentration he wrote her tales as well and conducted other activities that moved subsurface soil up toward the surface what would be needed to determine whether any of that contamination can be attributed to  demolition or any specifics or as is through an expert analysis to try to desegregate the different alternative causes and mr wood you just did not conduct that analysis it could not rule out the possibility that the p c b is came from the same source it did not conclude that the p c b is come from the same source and even if the p c b is and come from the same source that still does not address when they were transported to the levites property and i think that the decision affirming the district court need not go any further than that i'm still of course going to turn to other issues and i'll start with david carpenter the district court did exactly what this court asked it to do with carpenter reevaluated carpenter's assertions under this court's imminent and substantial endangerment standard it quoted that standard three different times in its decision it is not true that the district court reverted back to its previous analysis of dr carpenter it is not true that the district court excluded all level was that zero point four three doesn't represent a legislative finding that p c b s and that concentration are indeed injurious to human health ministry doesn't just throw around these numbers for fun yes i think it would be an error to link the residential clean up standard in there was constant regulations to the imminent and substantial endangerment standard under reagan and why and at me it seems to me that the stage is trying to say that there's a significant risk to human health if it goes above this and therefore that's where we intervene and you've got to clean up in appropriate way that concentration of contamination in the soil does not answer the question how much p c b exposure would the leibowitz face if they were to reoccupy their property and it does not answer the question how that unknown level of exposure links to or does not link to levels that have determined been determined to be harmful in the cell and operate so if i understand you you're saying there needs to be one more step in the evidence which is just say that if there's this can grow vegetables in your garden or something i don't know that that there's some way it moves from the soil into the human body yes that wisconsin d n r is not saying that as a matter of law every time there is a concentration of p c b above the residential clean up standard that there is what the court should consider a substantial eliminate in danger meant give it a set says that seems like a aggressive proposition to me  there are actually i do there are three things i'd like to point the court to st in the st liebert opinion i believe this court held that it is not sufficient for levites to simply show that there is some portion of their soil that has contamination above the cleanup standard whether the state clinic standard or the higher federal clean up standard for that matter toxicologist sent to mr lieberman saying that even at levels far exceeding the residential cleanup standard it was more p c b contamination than the d n r want to see which is why it's going to be remediated but not high enough to make people or more animal sick and that is cited in our brief and i'm sure i could find the exact page of necessary but it is there and that was the fundamental problem with dr carpenter's report that is what the district court focused on and remained dr carpenter did not use any methodology to analyze how much p c b exposure the vibratos would even face if they were to reoccupy their property he agreed that he did not seek the information that might have been useful for that analysis such and such as a  b air sample test and still having not conducted that analysis dr company or also did not link the libor it's unknown level of exposure to levels that have been determined to be harmful in the scientific b on their property have the potential to substantially threaten their health if they were to reoccupy their property and that is regardless of where the p c b came from so you think that somebody should be able you think it's enough if they reoccupied i let's say the house is long as they don't you know rake the leaves or garden or in any way disturb the soil around their house that reoccupied the property and do whatever they want to do that they would be exposed to levels of contamination that have been determined to be harmful in the scientific literature eve those levels that are reflected in the state standards i would say see no doctor carpenter that we've had this kind of problem before isn't sure that there's a low limit on when p c b stop now maybe we can all intuit that there is but if the case in front of us shows p c t s an excess of state standard we don't really need to worry about what the floor is  the court does not need to determine any specific floor i think the important points are number one there was no evidentiary basis for dr dr carpenter's opinion that there is no safe level do you have exposure in every case dealing with p c b contamination it's the plaintiff's burden to begin from sort of the the big bang and show why p c p is are in fact a dangerous substance there's a lot of governmental regulation there's a lot of literature about that you think that's a and adjudicated fact needs to be found in each case i think it is that the plaintiffs burden to show that the particular contamination that they complain of could substantially threaten their health so if the case were about arsenic you would think the plaintiffs would have to show that  arsenic is unhealthy for people you know are there some things that are just established through appropriate government sources and regulations that we start from the proposition that they are dangerous at some level  i think that the question is not whether p c b are healthy or unhealthy they're not healthy i hope i'm right yes nobody wants to add more of them to their property but the question is whether there is enough contamination and the leibowitz would face enough exposure that there would be a substantial threat to their health if they were to be occupying their property and they do not have the evidence to support that inference and that is their burden there are still other reasons too unrelated to expert testimony that both the record and the task the claims fail to record the leibowitz also cannot meet their rd requirement of showing that the injunction they remediate that property and the levites did not offer the district court any evidence that it would be necessary to stop that remediation and to remediate it in the way that they wish to instead and i should address there were some exchanges about different figures and plaintiffs three and figure nine those samples showed intamin ation below the wisconsin residential clean up stand at that is why there were they weren't encompassed within the boundary where there would be cleanup figure ten the samples across the street which the levites did not argue and their host we man summary judgment briefs what the leibowitz are trying to do there is to a advantage of the fact that the remediation it has always been as i think we said  iterative process that calls for further sampling and excavation those samples were put into the sampling plan at the request of the wisconsin d n r they by the way showed contamination below the federal residential cleanup standard and in the plan from the beginning as senate there there will be sampling there will be exit excavation there will be verification sampling and there may be further excavation as well depending on what the sampling shows so the fact that the plan is proceeding as planned and samples are being taken and some of their stance sample show contamination in this case below the federal clean up standard is not evidence that there's anything deficient about the plan and then for the task there are multiple additional reasons that the claim fails one is that there cannot be a spill of a solid substance into the p c b spill cleanup policy which is plain from the text of the policy as we discussed in our brief and it's right on the own website that the policies intended to apply to liquid spills this court has already ruled that mandatory injunctions are not available in a task a citizen sued and then i will say flexibility to approve alternative measures and i cite specific cases and it specifically warned in the text of the policy against mechanically applying the policy in other contexts and i have run out of time i'm happy to take questions if there are any but otherwise i will figured we take my seat almost expired you may have a minute to briefly if you have some concluding thank you jette sykes yes initially i want to add the point that the vegetable garden sample shows conclusively that the demolition could only have come that the contamination could only have come from the demolition that is undisputed that was in an area that was not overturned by  use by mr the part with any chilling of soil at dish and wholly the interface decision of the rd circuit guides us here very well this is the core content that this that the th circuit adopted interfaith shows that notwithstanding the existence of an inadequate state plan in this case one that is cards to finding federal think to both counsel the case it's taken under