our became ill sworn in nothing serious but it's not going to be sitting on the bench but he is going to listen to the tape recording of the arguments today so will be participating in the final decision of the panel but he won't be come on tell me your name for exposure to the dust from the demolition they've had to move out of their house on the recommendation of their physicians because of the p c b is resting on the surface of their residential backyard i dr was taken on february twenty fifth twenty fifteen by defended it was taken the very day that william lee park complained to the water county health department about the dust from the demolition first need only show that the demolition may present an imminent substantial endangerment to health or the environment court or in universal agreement that the may present standard is to be liberally construed construed to achieve congress purpose to protect health and the environment not applied here believe parks need only show by that the dust from the demolition of the only parts property in fact no expert testimony is needed and needed s p x has argued otherwise but has not identified a single piece of evidence that honor i'm actually arguing that in fact would you are just testimony and report were clearly something i shouldn't and i'm also arguing that in fact no expert testimony is actually necessary to prove by preponderance of the previously all of this evidence is plainly understood can be plainly understood by les jerks the district court errored with respect to experts all about p c b s d appearing in the deeper samples the critical factor here is that mr wood yard gave perfectly rational explanations for the appearance of p c b in the deeper data that no conflict at all additionally similarly i should say with respect to dr carpenter the court again focused on a collateral issue the key point is that the united states environmental protection agency interprets its own regulations to mean that disposal unlawful disposal continues  set that disposal continues until it is cleaned up therefore there are unlawful disposal and there is a continuing violation and the court's decision are unique they are not replicated in wisconsin law and the key point is that there is no provision in the plant for further exploration further investigation of where the contamination stops eleven excuse me eleven thirteen south third street as well as eleven eleven third street those samples were removed from the diagrams that even though he knew children lived at eleven twenty nine that's what this plan does it and for that reason the discourse in you should be reversed to remove them s p x remains in violation of the federal p c b regulations and should be enjoying to comply with federal law the d n r plan merely are multiple independent reasons why that dismissal should be affirmed i think three are most straightforward first the district court appropriately exercised its discretion in excluding the le simply is not available as a matter of law and third the district court also appropriately exercise discretion in concluding that even assuming that leverages had supported any claims and a record of a task injunctive relief would not be appropriate here when defendants are already endeavoring to clean up the property under the supervision of the wisconsin department of natural resources i want to start by talking about the district court's exclusion of w when it was addressing that issues i do want to make sure that it's clear what is meant by the term surface oil data and this is addressed in our brief at the age twenty three footnote nine but in short we're talking about the first six inches of soil below the vegetation group so we're still talking about soil that we would consider to be underground different samples taken from the surface of the ground that people are walking with your made a couple very relevant admissions in this death deposition testimony one was that he did not have enough information to determine whether the contamination eight inches or lower in the deeper soil came from demolition dust or not and the district court noted that admission and when it did so it noted explicitly to what your testimony about the deeper s evolution does as opposed to what it is supposed to well there are a couple different alternative explanations one is as mr rosemond satisfied that there was some other transport from the s p x side but also defendants contend that the lead parts imported oil from elsewhere into their property or that that can explain the contamination and equipment so i think there are multiple possible explanations for where contamination in the levites all came from what you had expressed leave admitted that as to the deeper so contamination deposition concerning the prior use of the lead our property addition to admitting that he didn't have enough information to rule out the contamination at that deeper level mr woodward also admitted that regardless of death he just made no effort to rule ou contamination at least at the surface level the six inches below the vegetation roots down that the only possible explanation is the demolition and that's just not consistent with the record  property so being imported into the property the leibowitz had their blood tested when they were worried about p c b exposure and fortunately they both tested negative for p c b they had a consultant come in and test quarter deposition is that josh had been accumulating on some parts of the house ever since the demolition have begun so are all told there was absolutely more than one possible explanation for investigate the properties history hadn't even interviewed the leap on the fourth of providing his report the reply brief science sheltie accident noble paints case b maybe defendants aren't responsible for the deeper contamination but it's enough to rule out alternative possible causes for the surface of contamination but the problem with that is when you didn't do that either he didn't rule out a turn of explanations for any where are we bleeding all over from making that determination of a correct albert analysis to actually weighing the evidence that's a good question and i just went through a lot of factual information and i'm i'm not saying that the court should conclude that the explanation given by defendants is the only possible correct explanation or that it should look at the plaintiff's case and our case and figure out which evidence the court finds more persuasive and that's not what judge peterson did either what judge peterson did was acknowledge the fact that there is evidence on both sides there are multiple possible explanations and would you would did not come in and try to apply any methodology to rule out our explanation and the evidence that weighs in favor of that so it's whether it's failure to undertake the that what you're didn't address your experts analysis but you found expert would your analysis deficient in terms of the translation from b c b s on to the leave our property that that's exactly right w made the same mistake that i think that the levites are making which is assuming that any contamination at least on the surface all must have come from the demolition and stopping there not undertaking any further analysis cutting out and removing early in the process dust may be visible to the naked eye but p c p s are not the question how much if any contamination found in soil can be attributed to airborne  and fifteen is not a subject for lay opinion expert testimony is needed to interpret and of pine upon the evidence that's available but the box didn't submit that opinion and intended to make mandatory injunctive relief available in both kinds of citizen suited dressed in these neighboring paragraphs in the same statute and then there's the case law i mentioned we cite for cases at age state clean up standard which is more stringent than the federal clean up standard or not requiring and no agency credible or state would require defendants to clean up every particle of p c b that could possibly be identified in the property until evidence of contamination that doesn't even meet the very low threshold that the d n r is requiring to finance to clean up to is not evidence that a substantial and imminent danger meant if one even exists now would persist after the cleanup if the leibowitz don't contest what in my mind are the the other key points relating to this issue which is that they would need to prove irreparable harm to win any injunctive relief but they are specifically seeking mandatory injunctive relief not refer to any injunction but mandatory injunctions are issued rarely and only upon the clearest equitable deference generally is owed to the district court's decision not to grant an chance for that and that decision should be deferred to hear there is no reputable harm there's no need for the district court to take the extraordinary taking over a cleanup that was approved by the wisconsin department of natural resources and by the way by the e p a itself d n r require defendants to obtain that approval in the course of giving its approval and it's been given there is no evidence that the d n r approved plan will fail to accomplish its and which is appropriate remediation will be brought to property regardless of where the contamination came from beyond what the federal law would require i have a little time left and i'd like to address an argument and a bunch reply a brief that they could show a substantial imminent endanger brick or purposes simply by attributing p c b contamination to the demolition in excess of wisconsin's residential cleanup standard i don't think there will be any need for the court to reach this issue both because the levites lack the necessary expert opinion evidence to show that the defendants deposited any amount of p c t s on their property and also because even if they had that yes and to be clear thank you i would dress the barrel allegations so the record is clear defendant did not act the burial allegations had we been forced to answer the complaint that the levites were never given leave to file because they waited for months at least four months after scuppering that discovering their claim to move to amend the complaint by which time we had already filed and fully brief summary judgment motions and a change to exclude expert expert testimony if that hadn't happened and the levites had been given leave to amend their complaint we absolutely would have denied the allegation that b impacted concrete was buried on the property but it procedurally never came to that because they weren't given leave to amend their complaint and i don't wan the the transformer production the stuff that was going on things that were going on the fifty's and sixty's and seventy's that a predecessor company to the same company that's a party to this lawsuit that that is not my understanding correct and as the district court noted the leibovitz never claimed that the defendants could be felt somehow responsible for any contamination not attributable to the two thousand and fifteen demolition which was in the spring of fifteen  united states page nine forty two of those cases warn against exactly that explained evidence of contamination in excess of government standards is not enough on its own to show a substantial  even though the contamination discovered in the bronx property was higher than what the d n r wanted to see it was not in the d n a his view high enough to make people herds or pet sick from coming in contact with the s harm it's not enough just to show contamination above the state regulatory standard even though the plaintiffs can't show that defendants cause that either and the very last point i want to make mr rosemary talked about the district court exclusion of carpenter i'm not going to spend a lot of time on that at all but it just is not true that the district court excluded all  carpenter based on the fact that he had the one unsupported opinion that the district court did exclude this case is not like the schultz case in that case the expert had two completely different opinions this court has helped in getting the mccloy experts do not have to rule out all from the kids causes especially in a case such as this where the cause is quote obvious don't need to be an expert does not need to rule out every other potential especially when there is no evidence of those potential causes opposing counsel mentioned evidence of important soil there is no such evidence of importance or law in the record also refer to amusement park equipment there is i think that it is imperative that the court bear in mind the may present standard it is not necessary for plaintiffs to show a i refer the court to and i'm sorry i don't have the particular docket number the memoranda of how the samples were taken david mcnichol instructed that the actual data which showed p c b has been much higher concentrations then we see in people's one and two which are already in excess of the d n r standard the may present standard is what is  the may present standard has been interpreted to mean something serious something that needs to be cleaned up it is inconceivable that p c b is resting on a residential backyard could be interpreted not to quote may not impose present a standard and imminent substantial endangerment additionally i see my time i let me just ask you a question do you think that you could come with an agreement for a clean up pine is a well i do believe that currently that cleanup plan would have to have include landfill in the water tank that's on think about in this day and age could we come up to to a plant yes we could but it must require federal regulations require a complete investigation a statistically based the the regulations require a statistically based sampling plan those are the exact words in the statute it must be that is why these regulations are here to prevent exactly the situation that we have before so yes we could come to an agreement on the plan but the regulations dictate what that plan has to be there's no dispute that the you know our proof plan does not fit that requirement you