all right and now we will hear bethpage that the governing new york statute in this case is the this is the two fourteen c statute of limitations is there a dispute as to whether there are disputed facts and possibly until the magistrate judge's decision until that point there was no dispute and the magistrate judge's decision or recommendation assumes that there was no to dispute whether there was any actual contamination actionable contamination prior to the three year period during the entire motion practice there was no dispute about that but now in the appeal they've toggle between two views one that there was actual contamination from the action of actionable plume prior to the three year period or or that there was no actionable contamination but that there's this reasonable water provider standard that applies from both positions are the first one is factually without basis the second one is legally incorrect there is no disarmament there was a plu that did it did appear at some point to be a threat imminent threat to groundwater contamination wasn't in the well but it was approaching it was not disputed it's not disputed that  there was a plume out there travelling at the rate of two hundred feet per year and that's in the appendix of one one seven one that's the department of interior migration level and there's no dispute that after having experienced contamination from another non actionable plume covered by the towing agreement for decades that bethpage water district was extremely concerned about this new plume discovered and released from the grumman facilities about a mile and a half away travelling at put possibly two hundred feet per year or so and there was no dispute that at the levels at which that contain contaminants there had to be new water filtration and treatment systems constructed well in advance of any actual contamination by the new plume and so bethpage did everything in its power to urge the d e c northrop grumman and the town to take not because of anything concerning the whole you three but because of radium issues and the town of oyster bay authorized a fourteen million dollars bond issuance oh of course and that was that was a reasonable seems that there were a lot of things happening that that caused the water to shrink to half notice that it had to do something pretty drastic it declared a same time and all these things i just mentioned happened before november of two thousand and ten oh yes yes i was not enough to put you on notice that you had a cause of action for nuisance there was no cause of action  at the time because and in any event it's clear under new york law that there was no accrual even if even if the plaintiff second i'm sorry why are you saying you weren't injured in november two thousand and ten wasn't it already in your capture zone the idea of the capturers own is is a term that's used interpretively in some cases capture zone means something close in other cases as in the plainview decision it's something that reaches all the way to the north pole all right well let's talk about a realistic capture zone the kind that's often kalki specifically calculate this was not calculated there was eventually wasn't eventually cat calculated by d e c not prior to november two thousand and ten there was no calculation i'm not i'm asking you what's in it calculated by d e c there is such a thing that can be calculated i'm not aware of of a calculation of the captures owned by do you see ok i might be overlooking it but i'm not aware of nobody ever knew what the size of the capture zone was that's what you're saying nobody there's no evidence of that in the record no there's there's a there's the statement by the engineer and you're arguing that his description of capture zone isn't really a description of right that's your argument i know that the bethpage engineer uses the term capture zone but there is no description of what that is and there's no indication that think there's a common sense meeting meaning of it that when you have a well you have a to write and it's drawing water causes the caption zone to descend i guess so or the water level to descend because e in the sense of actual immediate about to happen have a certain level were in the captured solid yes and as i recall the second circuit didn't say that was the wrong question no it was right because m t b e nine says and i quote if it's in the capture zone if the wells were turned on the combine outflow of the wells would contain an injury a slow ball of m t b e that's exactly what we don't have here there is no evidence whatsoever that once well for a well the well  the wells that plant four were turned on the outflow would contain any contaminant from zero you three that's the essential distinction between the capture zone used by the engineer in this case and the captures own use and m t b e factual issue yes there is a factual issue and as an m t b e this issue should go to the jury and weren't you supposed to say it was there was an issue of material  that was stated in the fifty six point one but but based on the the decisions below there wasn't really a factual dispute that there was this thread the magistrate judge did not mostly had to do with whether the levels in that case yes certainly exactly zero we know the levels of huge we just don't know i think we don't at least i don't know where they are  know the answer no it's clearly not the right test for a case in which there is no contamination and the reasonable water provider standard only applies when there is some level of contamination in the wells on the question is whether it is high enough to  generate action yes why does the reasonable water provider have to wait until there is contamination if it is if it is apparent to the reasonable water provider that there will be tammany ssion the provider do something about it yes absolutely ethically morally but not not in a sense that it would trigger a cruel you think i'm for a bottle went here on earth strate judge and district court ruling at all the there's no doubt that the ward to trickier took a myriad number of decisions and steps ranging from two thousand and seven when they were informed and learned of the first vertical profile boring and high level of b o c is up gradient from plant for through two thousand and eight and two thousand and nine these included declaring a public health emergency getting up beside doing obviously designing to treatment system claiming and asserting multiple times to the state d e c and this and the county d o a each department of health that the hot spots would overwhelm their of their wells immediately indeed at one point in december two thousand and nine they asserted to two agencies that the wells would be overwhelmed by the spring now they take the position that there is no injury despite that confluence of events and their actual implementation of treatment systems all before the statutory cutoff area that there is no injury ergo no claim because a molecule of contamination according to them from after all they asserted to us in multiple communications that they had a claim against northrop grumman that they threatened to sue we presume and i presume to this court that they made those assertions in good disputed facts that the contaminants were as of two thousand and ten in the capture zone did you do that there's no dispute because the engineer for bethpa was authorized to speak for them and spoke loudly and often and with great flora she asserted on many occasions that not only was the threat immediate but that the contamination from oh you three was in the capture zone that just the district court and the magistrate judge however did not need to rely on that because they apply this court's reasonable water district order provider standard which was not limited to the existence of a contaminant in the well water provider make sure that nobody is poisoned in the future has to start early to get binding to do things when it thinks you know it it might get to our people and you think that is a cruel it accrues when there's knowledge of the contamination that is in him and certainly an immediate threat as here and there's numerous decisions and actions taken on that contamination it does not follow from that as a meek i have argued that the mere fact of some knowledge of some upgrading contamination at low levels would mean action of this nature that bethpage did would have to be taken what bethpage is trying to do is essentially carve out an a and have the court excuse their dilatory contact by saying oh we don't have a claim they don't have a claim because they've told this court that perhaps it occurred and fifteen that the contamination hit the well possibly and then their general counsel who wrote for the amicus said oh it's never hit the well how were they able to sue and recover presumably damages when they never have a well under their position on a molecule of contaminate has entered the well and therefore they have no injury they have no claim at the well we believe that the record shows that the oh you  contamination hit the well and in in the wells in four to in two thousand and eight in two thousand and nine there are a number of letters that that's pages consultant wrote to d e c talking about escalating levels of contaminants in letters that we're talking about oh you three there were comments on what's called there we medial investigation report for three and complaining about the model and if your read those letters in cont and carefully and not the way the the plaintiff has a list paragraph at a time so it looks like there are different topics you'll see that there is in fact contamination in the wells well you three goes right to where that well is screened but as i indicated there is no bright line test from the reasonable water supplier case for the reasons several of you have articulated under state law awarded directors obligated to take action to protect itself it seems bizarre that it has no claim if it takes that action as appropriate and it's reasonable until a molecule of contaminate contaminate reaches the well and there are several cases both state and federal which are found that the contaminant need not reach the well despite the appellant's claim that there is no such case judge seidlin actually made that decision in two thousand and six relating to the orange county water district there she found that there was contaminated contamination in the upgrading an aquifer that the water just acted recently to address it and therefore the claim the injury and thus the claim arose at that time there was not contamination in the well so it's hard for me to believe that a judge sheindlin wrote that decision referred to it favorably in later decisions that she believed that there was a bright line test that the reasonable water provider standard only applied when contamination was in the well and therefore was triggered by how much is enough to create to cause action there's also several state cases want to pellet case to which we mention the two key span cases in which the court found that if there is contamination in the vicinity of the property of the well not in the well in this case when in the vicinity of the property either will groundwater contamination or air emissions that was enough to put a reasonable person on knowledge if you read the plank this reply brief they have study i think the reasonable water provider standard is more lenient than state law because under the cases i've indicated the knowledge that there was an immediate threat was sufficient to trigger the statue of limitations this court said there should be more than that there should not only be knowledge which there clearly was here but there should be a reasonable water district should had to act or did act to address the contamination actual contamination so i thought it was more stringent standards right the earlier standard was just if there's anything hit and that the two fourteen backed off that and talked the water supplier pleaded injury to the groundwater and the wells in this case there was a specific allegation there was significant injury to the groundwater that supplies the wells it didn't say later i'm sorry the contamination in the well but by the fact the source of the upgrading contamination was a superfund site and that site was listed that triggered the statute of limitations there's a number of cases that contravene appellants theory that there's no claim still the contaminant is in well so finally i think it's the district court decision and the magistrate judge's decision were quite clear they applied this court standard they plug and applied it in a commonsense way that allowed water district to be protected and finally there is no per se rule that if awarded your trick noses of grading contamination it must sue immediately that would not serve anyone's public interest this test protects both parties fronts various lawsuits thank you  yes and for example in november two thousand and nine the consultants for northrop grumman met with consultants and some of the members of bethpage water district and showed them that very nice color drawing on page one zero two five and said here's your well here's the deep plume your well is screened as you know it five hundred fifty feet or so you can see that the well is in the plume not the hot spot but the plume so there is contamination in the well appendix sixty ninety five the neutral party the d c new york state d e c says just then march two thousand and thirteen just a few months before this this action was filed the leading edge of the actionable plume has now reached the wells and it is only until well within the three year period that there is even a question of fact about whether the actionable plume reached the wells reached the well in the plane at the plant the for which the cases filed the supplemental appendix pages where there interpret its harm is only when it gets to the well then that's a claim might be a claim about plants and the water use but certainly before it gets to the well there's a claim not saying that i'm saying there may be a disconnect between a cruel for statue limitations purposes and the ability to sue for future injury and i don't think that's the issue here the issue here is a cruel and the council is entirely incorrect when he and this is the crux of the matter when he says that the discovery statute and acted in one nine hundred eighty six backed off the idea that you need contamination you need actual contact invasion of the contaminant that he says he admits was the case prior to the discovery statutes and ackerman he says the discovery statute backed off and now all you need is knowledge about the contaminant that is not what the law in new york does and it's this court's theory responsibility to apply the law the way it's been applied in case after case  statute talks explicitly about only absorption contact ingestion inhalation implantation or injection there is no cruel under the discovery statute until the  property at issue has suffered actual injury under subsection two upon or within the property m t p nine which was wholly of adopted and approved by this court in the  two thousand and thirteen decision says preventive action plainly does not start the limitations clock regardless of when one begins to take preventive steps to thwart or mollify an anticipated injury the