like a doctor taking care of a patient without doing an examination isn't looked at the patient they haven't looked at the water there's no way to verify that the groundwater is in fact fine and there's evidence to suggest that the groundwater is the water table is contaminated is certainly worthy of a look to see if the water itself is still lean the proposal by will county is a very simple one and is confined to looking at the condition of the water and has the water after it is gone through the fields this is a way to determine what impact the fill in the fill site the c c t v us that has on the quality of water it's not a comprehensive look although i would argue that the board has a duty to protect the water everywhere but what we're talking about here is that there's a way to kentucky i waited to tell whether or not the c c d in usaaf has an impact on the water in the groundwater without without looking at most important the only relevant issue and that's your answer to the board's play with if you believe a comprehensive running water monitoring program is necessary you  no evidence without any evidence they said oh the water is fine we have attack of the water so again like a doctor who has an exam of the patient they've concluded without ever looking at the water that they've done their job there's no way to verify that the water is fine and again are indications that the water is not fine there are indications that the water is contaminated they have a duty at that point you go forward and actually monitor the water but was that all before the there's some discussion about the cost in the industry aboard are concerned about the cost of remediation industry was very concerned about across remediation that's not on the board this is not on the table yet we're just talking about the cost of monitoring the water we don't know that relation is needed if anticipated a problem that is not yet before it was not before the board and is not before the court because only the cost of of monitoring the water your proposals or there are of illinois and then will county where seven hundred seventy one percent of the population relies on the ground water for the potable drinking just not clear on your argument we all agree resist because it offers an explanation for its decision in the board that run counter to the evidence and are so impossible that they could not be ascribed to a difference in view or the product of the board monitoring the water and they could be very sensitive if there is a problem the sooner we know about the problem sooner we address a tsunami take care of it the better off we are going to be so in conclusion then we will counties position  clean unless they actually monitor the water  statute the statute defining what a c c d d and a us out is and that those are materials that are not contaminated and then the board term a nation that there was no evidence in the record that that non contaminated material could in fact contaminate water so therefore they made  choice to strengthen the regulations to ensure that the material that is brought in is not in town certainly those seem to be factors that the statute  itself is dealing with in other words what's contaminated and what is not the argument that you raise your brief is that the mist of the word that makes the decision arbitrary is that they focused on the point of whether c c d as one contaminated soil fellow and it's defined as clean construction demolition debris that does not mean that the material doesn't contain some contaminants yes that's true it's that the board's own final rules set out a list of contaminants and the levels to which those contaminants can exist in the material without coming afoul of the of the places so obviously the poorest who rule recognize that things like the bad even things like if the the fact that the boarding gauge this problem that the statute says that it's not contaminated and you're saying it is contended why does that make your decision arbitrary because their own rules recognize that facilities to take clean construction demolition debris the act was amended to require a final rule that protects groundwater the site of course if you say well there's no contamination here by definition these that are in the materials arsenic lead all the other horribles that are in the words final rules these are all things that the that the soil needs to be tested for going forward all that material is placed without as the water is flowing so it can interact with what are generally small amounts of material and that can become a problem over time without any thing the final rules governing that material were just not protected around thought it was best for their sites though which is the information gathered from the testing was not something of public record it was only delivered to the operators so that they could monitor the conditions of the groundwater or site without monitoring of th it's like that i would note that part of the areas where the board made the front and streaming more stringent and what was proposed by the i mean yeah it was to require also oils be tested for ph and that mats which are the maximum allow i'm not aware that will county ever proposed a rule making or an amendment to the board i was the hearing officer in the proceeding and i don't recall them doing not and if it's in the record i apologize and certainly only maybe wrong i don't recall them ever proposing anything except to talk about south park which was posed by yet more book to sections twenty two point five one and twenty two point five one a and as in not one not two b that material meet the definition the legislature gave the board of and hannity and while they talk about the fact that you know we don't know what's in the groundwater we don't know what's in the groundwater but we do know that  the cost for ground water monitoring while well county alleges is reasonable we have plenty of testimony from people who in history who discussed how much it would cost to do groundwater monitoring the fear for municipalities that the tossed around water monitoring its technical expertise and determined that they made the right decision under part of the one hundred all along to ensure that the materials that entered into the facilities met the definition provided by the general assembly of clean and  very aware here in this court at the lynwood somebody was never regulated under part of them and never regulated under the sea under the statute it's a facility that was taking in material and it was filled above grade which under the law consider protection of ground water it would be a retroactive application to suddenly say what you have to start protecting or dig back fill out or any of those things we looked at what's coming into them now but the evidence someone wants to come in and say here's evidence or here's concerns here's a monitoring program we believe it should be placed throughout the state the board will look at that as part of growing what tax now and we look at as part of the environmental protection act but this ru hundred so we didn't have a proposal before us that would address the issues and in fact the proposal that was before the board would not even address the material that's already in those facilities yes the facility decided  g allow for no ground water monitoring if you closed within one year of adoption of the rule so again lynn what site would never have been subject from our monitoring even under these rules and any facility that m answer to them is basically proposing a member yes absolutely which would happily consent but that's not what this rule is about and it's not even that i mean they talked about it but no one actually even came in and said here's a burning soil sampling and low checking that occurred after our love and hundred of those just simply displaced first of all if something comes to the facility and the flow checking determines that standards and therefore sort of haitian doesn't work that load is rejected that most doesn't go into the facility without further testing and further examination so that load is rejected back back in testing no no and in fact one of the points made in the sun at the appellate court was that one of the members of industry testified that yes the board decided to do ground originators if they certified that it's not from a potentially impact site that's all the certification they need to do to load the truck and send it to phil once it gets to the facility they're visually inspected and there's a device  material is self certified by originators it shows up at the facility it's looked at visually it really is wrong and those readings are showing a substantial amount of materials from time here rejected but there is no testing for  would but that would that's really not the point of the of the rules the rules were not designed to close i think the rules were just designed to find out what was in the ground what is without information about what's in the ground water can't protect it be permanent fixtures facility and then annually what would happen is the water will be pulled up and checked and tested and so we get baselines of what's going on in the ground if arsenic is following the rising lead is falling is rising there's more d d t or less easy all this information and that's what's going on here with out any sort of background check on the water there is no protection of that's essential that was the proposal of the the board had before it got j r g r looked at it said rethink this decision straight to the ground armory the board took a look at it said we're going to leave the state so that's how we ended up with the rules that we have now but but the p s a of the people certainly will county that has a lot of these are there for years or decades it's the amount of material and the time of the water is covering this interior that is a concern that with this is about time they should we need a rule that somehow measures