we have tried as the state has to thoroughly vet in our briefs the number of the numerous significant issues in this case of to affirm the judgment below in its entirety  the court must accept the state's position on each of several very significant points i'm not going to try to exhaust them this morning i think they've been fairly well vetted in the briefs but they include weather prior two thousand and five a permit for clean judgment against her for operating a state without a permit she clearly did not whether china genocide order is individuals were never properly before the court given the uncontested fact that they never received statutory notice under section thirty one of the act that is not a technical issue it is a jurisdictional one yes to nontoxic materials deposited prior to two thousand and four two thousand and four amendment to section forty two e of the act whether a mandatory injunction requiring removal of such materials may be issued given that the site had been closest two thousand and three before the event was and acted by the supreme court's decision in r particularly s of the individual defendants whether affirmative injunctive relief requiring removal of the hill even if available as a remedy we believe was not was erroneous where the hill was undisputed and the environment as a whole it would have no sorry it would cause far more pollution and harm to the environment than the hill itself to try to remove it and there's no i raised these points question that we need to answer why would we need to answer their question whether whether it's if i really has it has to take it down or because i think that it would where the courts exercising its discretion if the court had discretion to order mandatory injunctive relief to remove the hill certainly a consideration that the court had it to take into such certainly a factor that the court had to take into consideration because the court had discretion not to take there'd be no reason why you should even look at them but the mandate that the statute doesn't mandate that in fact the statute that was in effect at the time we closed down the hill did not permit mandatory remove involves taking cleaning construction and demolition debris recycling it and returning it to the economic means stream within a short period of time this ninety foot hill was not the result of recycling right that's correct but let me make one correction if i may the recycling facility did not kind of play taking clean construction of demolition debris in recycling it kind of plated taking general construction a demolition degree putting it through a recycling machine that we paid a million dollars for and then recycling the materials that came out of it whether it was metal whether it was wood whether it was either general construction demolition debris that was that was the recycling operation what's left is clean construction demolition debris there was it was always anticipated that when you when you perform this function is when you're in construction demolition debris we covered that in a fortnight's case so there is that's not an issue any more question is whether or not a permit was required for it if you take the literal if you literally apply destruction you say if it's waste you need a permit you're right but when we when we take a look at the evidence including the testimony of of of mr prosek loves in two thousand and seven this trial he was their lead witness a person of said when she starts or the legislation in two thousand and five that required a permit for a construction demolition debris but she said was this changes the law you know you have to get a permit for it and one of the things that one of the reasons this is important if for that's correct and by the way since you mentioned it and since i'm not going to have time to get into it very deeply that's a notice wasn't given to the steroid or misses in order and so i'll leave that issue to the briefs but i believe that's a jurisdictional requirement in order to bring suit against them in this argument where the state literally concedes that if it's if the action is brought up b p has to of the e p a yes she do have to give notice but if the attorney general does it on her own she doesn't have to give notice that doesn't make any sense at all the purpose of the notice requirement is to deal with the e p a they were not joined in this case the individuals until five years after it was filed they had no reason to believe that they were going to be sued they were never given notice even in the five year period from two thousand to two thousand and five then when they rejoined us is as defendants in this case so i'm glad you touched on that because i think that your sexual issue settles matters with respect to the individuals now you can rule otherwise holy people libel let me talk just briefly about genocide in order there is no way genocide or should've been found liable in this case she visited that site ten or twelve times during the time to many years that it was open and she did so not to supervise anybody  be involved in this or i'm in charge of it or something doesn't do it you've got to have active participation in control you've got to direct what's going on the cases they cite are all cases in which the individual was very actively involved in it and the case we cite neck up or something well i mean justice mason's point related to some early communications with the department and at the time they were hoping this thing up we're talking about conduct that spread  period of ten years you know probably seven or eight years during that period which is the period of violation the period of operating the site without a permit she's not involved in the operation  only there a few times with that that well i mean just showing up doesn't do what you've got to be in such a supervising and directing you've got to be significantly involved in the operation of the of the facility where this where th that the corporate officer had personal involvement or active participation in the x resulting in liability that's the operation of the facility not just that he had personal involvement or active participation in the management of the corporation tang is the case they have not distinguished that the case that they mean that the for the facts here are those as i've described them in taking the individual had the authority to order and did not order removal of the waste from the site and that's the same as is the is the is the court's decision of city of morris versus community landfill company the third district reversed a truck which finding of liability against the city of morse and nullified the penalties imposed against it because the court found it was not an operator even though the city owned the property where the landfill operation in question was located helped the operator obtain performance fines and treated leach ate from the from the landfill still that was not enough involvement individually to be really stretch it to put genocide in order in this thing effect you know they waited five years to sue or at all and then when they brother in the case it's over the fact that she signed off on some hauling contracts i mean the operation here w for seven years that's just not significant involvement by the individual or corporation you know there's a very good operational argument that a corporation should be held liable because it was completely under the supervision of the other company we have to make you know we have not made that argument because i am i am because i don't want it to be for the expression watered down the argument i jam a sign order she just doesn't belong here and i think judge don't like understood that to some extent because while he throwing five hundred thousand dollars of fines and seven hundred fifty thousand dollars fines and other defendants he find her fifty thousand dollars and then he reduced it to twenty eight thousand five hundred dollars so he pretty much recognized she had a very much to do with this but then he left in place the mandatory injunctive relief to remove the film something she could not do something counterproductive it's something if they did do remake what would would be an environmental mess if i could just for one second something like i think it was twelve thousand cubic yards of material they found one yard of a bit of general construction debris which is not by the way hazardous it's wood stuff like that ninety nine point nine percent it was clean construction demolition debris so that's what th is it's dirt it's rocket stone it's not environmental hazard when you talk about ordering mandatory injunctive relief to do what cannot be done which is to remove that hill the first question i believe the court yesterday asked in exercising if if the court has the discretion to do so the first question the court yesterday ask is is it going to make a difference do i have to do we have to abate an environmental problem here and the answer is no because there is none and there's absolutely no evidence that there is any and effectively prevents runoff and why i don't believe for strongly that there's not a problem here and that local community because the local community spoke up the mayor of little testified the head of the multi city carry on the south suburbs testified they said leave him alone don't take it down don't make a mess we've got a use for it we can put when no it's not for energy on it we've got to deal with the local college to do that we've got funding from the county that is different whether they have the money to pay for it or not that's a different issue so there's a judgment against them or whatever happens they can't pay for it that that's to be decided and i'm either proceeding after that well it is but  i go back to considering everything that's before the court have the timing you're imposing the penalty if you say you know the old frank sinatra song about the air pushing the rubber tree plant if you say well if he has high hopes he can do it there is no high hope here that that hill is ever going to be removed that should be considered by the court before you order it done now tell you one reason let's suppose they started let's suppose they started to remove that hill and they got you know ten percent into it they got what we call effectively capping we get rid of that and they dug up some and then they just ran out of chips now you have what might be an environmental hazard and you certainly would have had one with forty thousand trucks going back and forth you have make a bigger concern if you look at what the president would be and what you're saying is if a defendant doesn't have the wherewithal to pay for whatever the judgment is that that judgment should be entered against how to remedy the situation it makes no sense and that the whole separate issue what about the state removing the he couldn't remove the building your client they could have removed and build our plant you know it would free up your honor they wouldn't if they would have gotten paid they would have had an iou out there and the state doesn't have the the money to pay medicaid right now to focus on the data judge but i think you have to focus either on that on the date of the activity the date of closure or at least the date you filed a lawsuit the lawsuit been pending for five years before they amended that remedy so what city but you know there's still time it was about the the remedy if if we were still operating as we were when they filed this case you would necessarily look at the filing but the operation stopped two years before meant what is apparation have to do with the remedy of removing the big one is the remedy is a sanction for what you have done and they change the rules it's like it's like if somebody it was was was charged with with  ttempted murder and you changed it to a capital penalty of capital for capital punishment while the case was pending i don't believe you can do that it's a remedy and they would change the remedy and suddenly the case that we cited here i just get it i might i think it's commonwealth edison i think they make it pretty clear that's not you can't apply that remedy retroactively that's all we're saying in order to go with the stay here you have to help hold first of all that we need a permit and second of all that that that the relief that would be permitted if we were required to have a permit would include removal of a hill and thirdly of course you've got to hold that it wouldn't be an abuse of discretion for the trial court to order that remedy when it certainly could not be performed you can't be performed such as that they're out of money it can't be performed by the state which is mean and when they grow the courts then for the following reasons we conclude the rules in midstream and impose a remedy for conduct you've already ceased in performing well after the lawsuit was filed in the charges were in the fight against don't think you can hold up to that i think there were a couple of other issues that tried  for whatever it wants to do it right that's true that's definitely true and we know for sure that there is a lot like thousands and thousands of cubic yards of clean construction debris and that's true there's also some testing done that you reveal the general what about the change in the relief as a result of the the bryant case what is your response to whether retroactively if the law in illinois that remedial provisions are to be given retroactive application of my state impacts invested right and that's the dugan case for instance that we cite in our brief additionally the provisions of the environmental protection act the amendments to that state you are generally applied retroactively so the legislature knew all that as well when they were implementing or amending section forty two additionally the general assembly does not have the power to retroactively overwork a judgment that's already been given in a particular case a pro was dealing with an argument that this visit this amendment that has basis of the separation of powers concerns there's no doubt but again separation of powers aside if an amendment to existing is seems subsumed rather than procedural additionally and then sticking with the issue of the remedy for a moment defendant speculation as to what may happen when they try to remove the waste pile is not a reason to for go for fighting a remedy as was required t speculation there was there was a lot of mystery as to what the side acts of removing the cell with me right that's true and the trial court heard that testimony made its decision in its broad discretion so despite the fact of some testimony as to the to the side effects of that what happened the court still that it made the decision and i don't think that the test me was so compelling that we could say that one could say that the trial court acted irrationally such that it didn't use substantial discretion additionally but with a rational when there's not going to be enough money i mean the millions of dollars are needed and it's going to take years according to the testimony to remove other things think that it could be a lot worse yes sure are that there is testament to that effect that isn't in the decision is a rational specially considering the standard scrap case which specifically says that a pardon cannot argue that because it decided to forego the costs of complying with environmental regulations when it comes time to remediate that was environmental regulations it cannot argue that i've been put out of business or i don't have the money protections of the landfill that is grown through all the necessary requirements there's much with vision there's much regulation concerning right away and so close as well as the protections in place for the future to make sure the landfill stays stable and  oh we like the waste pile is irrelevant the general assembly specifically allocated lymphocyte in decisions to specific county board or city councils and the first instance not to one mayor com defended completely ignore the fact that this is reviewed for men if men if manifestly of been yes finding the circuit court tweak the evidence judge the credibility of the witnesses in fact in the liability finding even specifically permitted the disposal of waste on the property and that's what janice did when she specifically signed two hundred seventy three contracts authorizing the haulers to call him and bring their notes of c c t v and drop it on this land specific statements that she was operating this facility and that she was operating at the waste disposal she's waste disposal business there over janice corresponded with the agency about permits and you jurisdiction the notice issue the section thirty one argument first section thirty one does not require an agency notice and going through the informal process in order for the attorney general to bring a civil provided for a couple of different path to action against environmental harm for the agency and its investigation and inform the process is one way but the attorney general and particularly persuasive given the purposes of the act the purpose of the act isn't necessarily to write individuals know that they may be liable themselves the purpose of the act is to stop environmental destruction and to mediate environmental harms enough it is who is actually making that decision and who is participating in it and who's doing right with regard to the specific violations so they couldn't assume at that point but then once they get into the radiation and once they the context of exercising discretion you can't impose a remedy such as the removal of the hill if it can't be done it just doesn't it doesn't square with reality so it went when we raised the point about the costs associated with it being what keeps it from case with respect to janet janet order it is just not credible i'll leave it at that effect the matter is the stay came in i think in two thousand and one sort of t r o got a t r o that said we're supposed to comply with the act and fight because the the what the state didn't i mean what part of the first place that hero was designed primarily to argue that we're bringing general construction a demolition to preserve the site even though we should have known from their previous inspection that that wasn't the d to the site it very general terms it says don't do anything that violates the act that did somebody problem the point of the matter is since everybody knows that we're violating the act by pretty clean construction and demolition to be there without a permit one would think that sometime after two thousand and one when they were always entered the state would have come in to enforce it they didn't even follow up with a motion for preliminary injunction they never went back to court on that but they did go back to the site they did inspect the site numerous occasions and they wrote us up for things like we found some general construction of demolition debris here we found some oil from one of their trucks here that's what they were sending us for now i'm not saying we were lol into believing to be continue operation there was a contested issue here who is involved in the day to day operations of this company during the relevant period the evidence has shown that china in order not only manage tri state but also participate in the day to day operations of cheating in order pertaining to the site no such finding was made as to genocide order this standard the judge sit down with respect to our retroactivity and well towson first is polk county collector which we cited in our brief states the statute does not operate retrospectively merely because it is applied in a case arising from conduct to dating the state's anette meant or upsets expectations based on prior law rather the court must ask whether the new provision attached move legal sic consequences attached new legal consequences to