by the state court action and found that the cheese contamination had created imminent and substantial and danger with the d c the district court also helgi to be liable for the imminent substantial endangerment and found that the so called natural attenuation being employed by g e was not working the simple question before this court on appeal is whether the district court ever ordered to abate the imminent substantial endangerment caused by ciii and contaminating five hundred million gallons of previously clean drinking water available to the people of whiteside county it's a natural resource often for and it is when the complaint was filed the authority that the illinois e p a had at the time was in forty two b which at that time only allowed prohibitory objections that shalt not commit any more water pollution it had no worth already to order any kind of affirmative mandatory action to suggest that the cases are parallel is to ignore the ripper mandate that congress employed complying they still don't have one of the institutional controls on the county property so a significant portion of the property is still yet unprotected even under the consent were no the consent order is not is completed as far as the state of illinois is going to there is there a public source of information that we can count on for them it's an interesting question we deal with it all the talking it's an administrative matter we're not allowed to intervene i can't access those files  of the matter is a consent order has been complied with and no one has objected to it illinois e t a has is satisfied with the e p a with general electric's reports it still remains poisoned today five hundred million gallons a drinking water aka for remain contaminated today and nothing is being done except institutional control is on part of it and this too shall controls are only deed restrictions and city ordinances it doesn't that i can't come into contact with it or you can't come into contact with it it doesn't mean anything i can legitimately build a swimming pool on the golf course property because it's in the county fill it with groundwater from that activity and haul the kids in whiteside county swim it right now that's a lawful there is no prohibit prohibitory activity that that this is that allows that the welfare that doesn't allow that the well the north well on the golf course property still has one thousand times one thousand times the maximum contaminant level of contamination as established by the united states environmental protection agency that water is so unpalatable undrinkable you can't wash your car in that you couldn't fill your swimming pool with it that external exists today that's the status as far as i concerned with the state actions do you agree that the last bill was ninety nine hundred ninety four material is still migrating across into the golf course property and into the city of morris and west it's even actually going north but because the down gradient nature of that  it was impacting rock creek they did a very limited investigation to only fight out within their authority within a p s authority that the material was contaminated they didn't have with florida in twenty desist further acts of prohibition or prohibiting water pollution they couldn't do anything they couldn't address the people of horses i'd order a case tell you what's monitoring me about this short it is the district court whose side of the old principle first do no harm and obviously was concerned about the prospect that an injunction to for example even do testing by drilling into the shale underneath the polluted area could spread contamination further as near as i can tell from the record josh johnson was asking you all repeatedly what do you want what do you need you told him more investigation in a variety of ways he disagreed with you on that and i i don't see you challenging those findings on appeal what i don't see in the district court record intro spot clean up we knew of some things in that investigation we know for example that the north well on the golf course has a thousand times the mc gale and that somebody better to you know that's an easy one to stick well when they start pulling that material out reason why i can't give you that is because they haven't done a full investigation we don't know what's going on to the shale we don't know what's going nor we don't know what's going to east and west and and you say that this is our back  investigation point and i'm i'm beginning to understand judge johnson's frustration and let me explain it to you again that the proposed order had the interim hotspot removal the proposed that it order had of further investigation of this particular property the proposed order had a bait the rest of it what you've decided the courts and that we've cited in our briefs recognize that there is ambiguity and figured at the time of further impact waters of the state of illinois we might disagree with them i'm not going to argue with them i think they're a wonderful agency i think they did a wonderful job for what their limited authority was but their investigation only confirmed to their satisfaction that the material was a moving any further that we disagree we found material south of rock creek and we don't think that the investigation was done very well we know for certain that they didn't go below the shale we know for certain they investigation they also think we had interim activities of hot spot removal and we had the ultimate question of bait the property identified in that proposed order ok but is it enough to just say fix it yes is that an adequate  that's exactly what the seventh circuit approved of the southern district order to clean it up now they had parts of an investigation to they wanted further investigation the cases we've cited in the  y that yes we've got a problem here but plaintiffs haven't shown me a path that will actually something i can order that will actually improve the state of the world and i understand that judge and i'll of a proposed order that was in now that particular hearing that the judge is talking about he gave us two hours of to put on a witness and they got two hours we got a couple of hours worth of a cross examination he was promised us questions that that we were expecting he promised him twice we were going to be questions that were going to directly answer at that particular hearing but that doesn't mean that we changed or disavowed or whatever eat whatever  did all of the thirteen things that want to be done we don't think the hearing was even necessary once he finds an imminent substantial endangerment ripper and congress only provide for an abatement in an eighty one b case they don't even have those yet his it correct that the district court heard conflicting evidence about the potential effectiveness of the different approaches that you and g were proposing were discussing secret i didn't see an endorsement of of any particular approach i don't know that he heard conflicting evidence necessarily judge i think it's a good question i think you heard conflicting conclusions our guy said you better do some more investigation because you've got to do a proper abatement there guy said we did all that illinois v a required us to do that may have conflicted magistrate judge johnson but it's not analyzed properly you set incorrect in what way did you do that a thousand parts per million above the above the m c a thousand times the m c l on our property we pointed out that there was no death definition of the contamination north there was no dept definition of the contamination east or west was an improper definition of contamination that it crossed rock creek and was now migrating is out and had how  did that come about your reaching those conclusions what an actual investigation did you conduct we reviewed all of the material that you provided so you just reach conclusions contrary to what they well again we we looking at it from the perspective of requip they were looking at it from the perspective of the illinois state action only state action was necessarily limited they never analyzed it under the terms report we analyzed it under the terms of  may please the court tony oscar win on the half of general electric you've heard this morning about how there is a major contamination and there are questions about of the event and the plaintiffs had said that nothing is being done respectfully that isn't true at the direction of a and pursuant to a state court consent order g e has been abating that contamination for years it investigated the contamination it eliminated the source material to determine that the contamination was contained in that implemented institutional controls to ensure that there was no threat to the public and that natural attenuation could occur for the regulatory bodies charged with important enforcing our nation's environmental laws that is abatement and it remains under the evaluation of supervision of the i v p a the question was asked whether the consent order is finished it is not yet finished the remedial action plan or g e submitted was approved institutional controls are still being implemented at this time and g e is still under the oversight of i u p a until those are done now when there's not going to be we can answer that question those are in the process of kate's no i don't believe that's the case at all there the institutional controls are largely city ordinances prohibited the prohibiting access to those waters how long will they need to be in place that is not part of the record and we do not know that answer  isn't fairly clear it would be at least decades if i think it would certainly be years yes i just can't tell you how long it will be and use monitoring part of the consent decree monitoring is not part of the consent decree i should say mandatory monitoring is now part of the consent you can still do it you can look and examine but it is not subject to require reporting  order more investigation they did not ask for more physical clean up the district court though found think this failed to prove that more investigation was necessary now i want to appeal this court  for there were though does say implemented immediate interim plan to remove hotspots right at their own to conway's property yes in their proposed order which of course isn't evidence they did propose thirteen  requests for that in their proposed order but at the time they had to present that to the judge they chose not to that wasn't a topic that came up by them they didn't propose it and they're expert and i'll get to this a little later but when asked if  tried to argue that a finding of record liability mandates that injunction better and that is just not the case now this court is held in u s versus market when you have a statutory question of interpretation you look first at the statute record isn't happy any language saying that an injunction has to issue it doesn't say if you find liability injunction must issue it says the district court shall have jurisdiction to restrain any person or to order such person to take other action as may be necessary could support an injunction when you say well that was up for the district court to decide and the way that our environmental laws are enforced they're risk based corrective action programs here that risk was eliminated we identified the  contaminants they're contained in one location and the public's prohibited from access to the kind of s that seems like one of the least satisfactory ones around why should we accept that as sufficient in this case well the district court i think clearly followed this this court's gu to undertake the same side investigation monitoring and payment of cost as well as an order barring further in danger of which no doubt which includes some type of the medial effort all of which the state posits is currently being done and contrary to what day and the court determined that it was it but there were there were two major differences there the order was that there had to be a baker system and it would be subject to e p a oversight the us was the plaintiff in that case did regulatory body was a there wasn't the regulatory body to oversee it now the fifth circuit very plainly rejected plaintiff's argument in u s versus marine shell processors when it held quote nothing in a record restricts the court's jurisdiction in equity and the first circuit in maine people's alliance versus melon pot even more plainly rejected when it held that quote it district court is not commanded to issue an injunction after a finding of record liability and so what do we make of judge johnson's finding at the end of his opinion the plaintiffs failed to show irreparable harm seems to me difficult to reconcile with his finding of liability well i think they failed to show harm that wasn't already being remedied i think that i think that's the answer to that he asked them what they would do beyond well that was it he asked them he he asked there were very pointed questions both on direct and by the judge if you would that they would recommend particular remedies and the answer was no we could we'd have to have more investigation i would also point out that the united states supreme court has said that wrecker is not principally designed to sexually fix a toxic waste its primary purpose is to minimize the present  future threat to human health and environment and that's make great versus k f c western five sixteen u s for seventy nine so minimize the threat to human health and the environment we already have an existing consent order that's doing just that so how long does natural attenuation take i look through the record for that it is there is no answer it's not there i seem to recall one of the general principles in environmental science meaning that nothing ever goes away so well we do know that natural ten you ation is occurring because they took they took samples which showed a breakdown of the chemicals was occurring there were new chemical there were new i guess chemicals that weren't there before so it was happening but again i pointed out and i think your honor may have asked this question this morning but he was concerned with doing more harm and certainly the plaintiffs admitted they did no investigation with a they said that in this case where they didn't conduct any tests they didn't do anything on their own whether they basically look at what  did and the g e expert the illinois e p a expert said for example some of the testing that they wanted drilling through the bedrock had the potential to increase the contaminants and basically break the containment that was in place and i'm not sure if that's in the record i certainly reviewed it i don't i don't know what you've heard for the scientists i can't find it off the top of my hit but it's there and it was the foundation for the five hundred million gallon as well it would be there was a it was basically a length width treat at this time and certainly we wouldn't have the court impose something that even the plaintiffs expert in my class on direct this question was asked it was asked on direct whether he had enough information to recommend particular remedies question do you think there is enough information at this stage to recommend pump and treat answer no now similarly when the district court asked the plaintiffs expert if you could make a recommendation about stopping the movement of contamination and you've heard that there was some disagreement g e and feeling the u p a said the contamination was contained and wasn't  going off site the court asked the plaintiffs expert if you could make a recommendation about that assuming that there was some of it he testified he could rank some options but he couldn't tell the court which one so again you have something different where plaintiffs aren't able to make a recommendation beyond investigation and the court already found an investigation was sufficiently completed as did the illinois  and we've talked a little bit about their proposed order but in their brief they did not identify any record evidence to you identifying or supporting a mandatory injunction requiring a physical remediation the best they did was with the proposed order which we talked about of course the proposed order isn't evidence and as this court explained and humble versus st joseph county board of commissioners when a federal court addresses a claim for injunctive relief it must take care to determine whether plaintiffs have offered i'd like to go back to a pixel oil just for a second we've talked about what this court did with apex but i wanted to point out also that the plaintiffs brief attempt to rely on the district court's order in apex and i think that shows another flaw in their argument that they didn't have to prove anything to the district court in the us versus a tax will held that the government had presented evidence proving the appropriateness of the request really again that didn't occur here and i point out that plaintiff citation to the third circuit's interfaith community organization versus honeywell that's exactly the same the internet the interface court explained quote the evidence shows that experts are present in all other conceivable remedial options known to be potentially available and on the basis in pewter modeling and other factual and scientific grounds they demonstrated why none were appropriate for the site except excavation now contra that it's far different from what we have here when plaintiffs expert didn't conduct a single test didn't take a single sample and effectively conceded that he couldn't even make a recommendation on whether physical remediation was appropriate now as a party seeking mandatory injunctive relief plaintiffs had the burden to present the evidence they needed to support their case they didn't do it their inability to do so requires affirming that decision and i think it's worth pointing out that rather than providing you with this evidence instead and through the bit this morning but plaintiffs used their reply agrees to blame the district court in g e for their failures they essentially contend that they focused on the need for further investigation because that's what g e and the state of illinois focused on and they complained that neither g e nor the district court asked their expert about the clean up and remediation efforts described in their order but n issue in my head is what would you have me do and how would it be different than what is in the consent order so it was plaintiff's burden to submit that evidence moreover they are factually wrong when they attempt to say that  do you think there needs to be more investigation before we have an injunction hearing and if so what would that investigation be plaintiff counsel responded we've got to finish the investigation and they've got to start remedial action plan but he didn't identify that  and this court asked if plaintiffs expert could recommend a remediation plan i would just point out again he testified he could not do so because he needed more information and he testified that natural attenuate ation alone could be proper and he did that sort of in a reversed way but the recommendation is there enough information to recommend natural attenuation that is correct so he didn't know if there was or there wasn't he couldn't go then there's been some talk this morning about extension and whether the district court basically didn't do its job and simply gave in to what the illinois u p a did with the consent order and frankly that is flat incorrect indeed at the lower level g e did ask the district court to abstain we argued that because there was a consent order it shouldn't conduct this thorough analysis that it did and what it told us it said despite g e s position the pla language of record gives this court the power to enjoin g e and then he told the plaintiffs they should use the evidence here hearing to establish that there were requests that injunctive relief was necessary and beyond that provided in in the consent order and that's just what our expert was doing that calculation based upon those cubic measurements the five hundred million gallons of contaminated ground water in a public resource drinking water resource that will never be used again we know that there's a half a billion gallons of previously clean drinking water and whiteside county that can't be used for decades we also know to answer your question that it won't happen tomorrow it won't happen in a decade it won't happen in several decades there was disputed testimony that it might last a century  meant of an imminent and substantial endangerment judge johnston found in imminent substantial endangerment he found that the state action was not identified as as as excluded by congress in sixty nine seventy two to see that's where they were abatement is identified if the state had followed and filed its own ripper action which you authority to do or filed and incurred response costs under the comprehensive environmental response compensation liability act it's possible that we could have had a legitimate discussion about preclusion of the state action it did neither it didn't even have authority under section forty two according to the i order case that i cited to the court today to even do anything except tell g e to stop court order is exactly what we proposed two or three years ago i want them to fully investigate the property i want them to do some hobby up beyond what they've done today yes north south east and west and we've identified with painstaking detail those activities counsel said a few minutes ago that that our experts could did not know how to identify a remedy certainly did you should do a removal i can't tell you what the precise dimensions and design of that removal ask if you did such a crummy job on your investigation now they did a premie job only in the sense that they did what illinois e p a asked him to do show me that the material was contained they didn't illinois a p a didn't ask him to do an investigation that would be used to abate the material they didn't even have that authority in two thousand and four and they didn't file a and they didn't occur cos congress told us what to do congress said upon the finding of an imminent substantial danger but valid shall district court order an abatement and that abatement order is the one that we propose thank