lay in wait wait and see approach which frankly we think as an american has no merit because one of the essential requirements for collateral estoppel is lacking and that is the issue decided in the choir is not identical to the issue in this case they're different insurance companies have different policies of insurance and even if the seven circuit found that the scottsdale office were unambiguous that cannot be applied to different insurance companies with different policies without a review of the other carriers policy as this court well know runners have looked at good church coverage cases many times over the years he obviously must be read in the light of the complex and it must be at review of the policy in question the circuit court here did not review any of the policies that were issue in the scottsdale is not one of the twenty two powers in that case or in this record those policies were not reviewed by the the reasons i mentioned we've asked the court to night because what it really does it's an end run around the illinois law which we think the seventh circuit ignore and which we think the circuit court here error in finding illinois environmental protection agency to conduct its business in a certain manner which would require it to emit hazardous materials into the air the hazardous materials that were emitted into the air war apparently within the limits permit they had from the state government that having been said the third district said we can't find the pollution explosions of the political but only ambiguous whereas here the permitted emissions liability on the part of the municipality for any damages which may or may not have occurred as a result of the ingestion of the water but it is a distinction where such that you could a loop within certain levels then it would be ambiguous to say the pollution exclusion applied in our situation and we regard that case and that cases material is really indistinguishable the mc elsewhere said in the they did something that they weren't supposed to do then the complaints in this lawsuit alleged cause injury so if the complaint we're looking at the four corners of the complaint in the four corners insurance policies if the complaint says you are doing something that you weren't supposed to do which constitutes coalition cause injury so the question is under those circumstances do the ok wait a minute you say they're not the original polluter now the allegations that the village was told not to use the water from the well this is an allegation  and the village was told do not use the well but the village according to the allegations took the well what nixed it with water they have purchased from another village and then provided that water to their how was it you designate the dry cleaners as the original poster they had to get their poem from somebody else isn't the essence of being involved in polluting to take scenario based on the facts this case is stablished they had a contaminated and to feed their well they do according to the allegations that it was contaminated and they chose to mix it with lake michigan water which was supposedly free of all of those things and introduce it into the in a position where that the residents would use it and to say that they weren't the ones who produced the original problem question because it's something that concerns me not because people down the block i appreciate that you're just a step he was really essentially using words of an illinois decision when he described a common understanding of a  they still water it's the allegations hours they think were informed not to use this well that the wilt was contaminated if they took that well water a bix it with other water that they purchased from another village and that they say that salt this water put it into the water system of the village and provide the residents with this contaminated are you saying that the of liability to see if any of them are stamped like you said at the beginning the reason that we're here is because the policy provides coverage the question is does the explosion take away that elsewhere when the water they're using to mix it with they know to be watering they are not supposed to use because of the existence of contaminants in it was the only allegation in of liability brings this within the coverage you said at the very beginning of your argument we wouldn't be here if the policy didn't provide for coverage the question is does the exclusion then take away that coverage not whether there's an allegation of negligent provision of water which is basically what you said this complaint is is really just about the negligent provision of water but the allegations are not taking the substance appeared putting into another substance and then up providing it to the the the whole village through the water system well the question is does that does that allege what one might consider traditional environmental pollution this column's require that the that the village be the actual polluter i don't know that it does but the the allegations say that the village actually was get cycled together and then it's distributed and it comes out on the taps in the various homes and businesses in the village of russia did they put it there no not one case as the village did the polluting now bit now i mean i guess that's where we will that i'm not sure that the first person to put it there we we already went through this point and i think we understand your position and then then to be within the scope of the pollution exclusion that it would have to be able  the exclusion would be  we look at in determining whether the exclusion apply for the given case i don't think we look at imperial marble for our guidance i think we do have to rely on columns what about this suggestion that in your brief you describe this charge is the that it page thirty seven the accidental or intentional spilling leaking pumping of hazardous waste into or  under water does this kind of fit in with that general idea i mean where they were they hoping or pouring or doing anything like that the village from the location of the well years before the the water was actually cycled through that system with with that and i would point out that the we were talking about the allegations yell occasionally go across that's what the case the problem faced about a product the product of water the village didn't pollute not one not one lawsuit says the village what's the solution i think that's an important distinction but then all these exclusions which one ignored and should we then ignore the fact that the supreme court has told us that we should look to whether it's a traditional form of which this supreme court talks about for additional environmental falutin and yet and also of th into the air if that's traditional environmental pollution that is far afield from what is involved in this case not with respect to playfield clears the polluter but with respect to the village of russia that was the victim of that  is why would they be putting this into all these policies commercial general liability policies but it was only for people that are the business of who pollute as part of their isness i think somebody who is in the business any business with their own lucian is a by product or a necessary aspect of the business world nor their commercial general liability policy is not going to protect that business there are policies you can pollution by selling allegedly contaminated water through their water system the ability that's not traditional environmental pollution now up but the allegations are not simply that they were selling water that they were lacking any knowledge of the allegations are if they had bad wealth it was contaminated perk that they took that water that they mixed it with clean water and that they then sold that combination of contaminated polluted water actually put it into the the water system for the bills those are the allegations now that the question i think is really does that suggest of traditional environmental pollution this work to reverse thank you and we will argue jointly we do have a motion to dismiss the appeal i do want to address that just for a few minutes here and ms kathy krishan will address the merits of our pre believe that the the motion to dismiss is well taken and we do want the court siddur it because this is identical issue was already conclusively determined by what about the differences in the insurance policies that's a that's the question that i had in my mind when i first considered whether we should be filed this motion and the answer that your honor is this the issue decided in the federal court and affirmed on appeal was nat related really through any differences among the insurance policies that issue ek and in this case the the language from one policy to the next is not really an issue either issued it was decided before the issue that the village here as asking this court is whether the the the arguments are the same the issues are the same the argument is not what you would might consider classically in a coverage case whether a particular exclusion the wording environmental pollution so what they've said to all the forests here really is he absolute pollution exclusion will that exclude coverage for us because of what  not traditional environmental pollution and if you look they've never really advanced any other argument there hasn't been any focus on the language of the policies that stuff so therefore i i submit your question just a subsidy i think i hear and that is that the actual issue that was litigated and the issue that was decided is identical to the issue that has been presented here and actions were going on at the same time and we also noted for her that we were not bringing the issue up at raising the issue at this time because we did not have a final judgment the question also became we fishing around it all with the insurers trying to see which action would come up  to the last issue with respect to the motions in terms of policy language the village has not there was a slew of everything as you can imagine in the trial court here for judgement and the judge mikva was confronted with and both parties were arguing about the scottsdale decision then from the district court there was a lot of argument about the scout still the and how it was how it was argued out was decided what the village did not do was argue at any point  the language of the pub pollution exclusions in scottsville case in the language of our absolution is glutens was so materially different or was materially different at all that it should dictate the language should dictate different result that was an argument they could have made and it with respect turning to the merits of the case with respect to the question for the court the panel is correct that columns is the supreme court case that controls how we look at this question  columns sets forth really distills down the absolute pollution exclusion and presents says that we must approach the question of whether it applies by looking at whether there is in the underlying claims traditional environmental pollution in order to make that determination we have to look at the underlying complaints as the panel has observed the underlying claims while there are many allegations and they are played in different theories of liability the underlying complaints all allege the same set of common facts and the facts that they allege which this court has alluded to so i won't go through all of them are that the village took contaminated ground water mixed it with clean water and distributed that throughout its water supply to its residents the village cannot claim that it is not an active polluter or that it wasn't it was somehow its role in this was passive the village has attempts to grog here two scenarios they suggest that there are two wholly independent causes of the pollution a party of the injuries in the underlying complaints one they characterize as their negligent provision of water to the residents and the other looking back to how the definition intimidation occurred was the initial groundwater contamination whether it was two to the actions of a dry cleaner or to some other entity there are not two distinct or  independent causes of action here there was one cause of action there was one continuous process that resulted in the injury to the underlying plaintiff's but for the initial contamination  however it occurred there would be no injuries that the residents would be claiming similarly up for crust would taking the groundwater contaminated groundwater from its well mixing it with clean and distributing it contrary to i directives there would be no injuries all events had to take place or the injuries which we see complained of in the underlying plates so there is no independent cause and it's it's invalid to look only at the theories of liability in order to determine whether there is traditional environmental pollution if i could touch for a minute on this question of the duty to defend that it has been repeatedly brought up in the looking at what our obligations are here we don't look at whether we have a duty to defend and this court just like the trial court could not if you determine that the pollution solution doesn't apply it doesn't follow that we will have a duty to defend the do to defend is not at issue address them because this issue was dispositive but there would be issues that would wait a turning back to the merits and the determination by judge mikva that the underlying complaints do fall within traditional environmental pollution as defined by and what we saw in connecticut specialty was not traditional environmental pollution we think that this court did correctly applied columns and did find that day elevations in those cases were traditional environmental pollution we also think here that the point can come to no conclusion other than that the allegations in the underlying complaints also consist of traditional environmental pollution which brings them within the absolute pollution exclusion in our policies there's been discussion about whether for purposes of applying the absolute pollution exclusion the villages contending that an entity must be in the business of polluting i don't the insur don't believe that that's part of columns that restriction isn't in columns either directly or as you read through it read through the spirit columns but even if and i will address that further even if there is an argument that  there is a requirement to be in the business of polluting unfortunately although it shouldn't have been the village here was in the business of polluting this was not a a one off situation where they accidentally spilled some ground water they accidently used ground water from a contaminated well for  policies you certainly do an investigation into what type of business that policy holder is conducting you would look into this kind of thing and if you were aware that they typically work with polluting chemicals or that they can't even imagine it would be a latest but if they came and told you yes we provide round we provide water to our residents and we are now using well that's contaminated it would certainly affect how an insurance company decided to what type of poli probably the premium for it here that wasn't the situation these policies were issued for there were eight policies they were issued in the late eighty's and early ninety's at that time the village had been contaminating for several decades or at least fifteen years and then continued to through two thousand and seven when it is part of their business though to provide water part of their yes part of the villages services to its residents is to provide water and the reason that the provision of water doesn't enable the village to fall within the tough both central business activity construct is really twofold first tough go in the central business activity argument has never been adopted by adapted or did they just not really discuss it they didn't discuss it at all and in their lengthy discussion of tough though they did not address that issue a later case in him him did discuss the central business decision tough go even on its facts isn't a political to the facts before us in tough so the chemical that was being used there by the foreign company it was a chemical that they routinely used in their that set is one of the factual questions that it says must be addressed is whether the polluter whether the insured is a kluger now that is a question that the illinois courts have addressed and rejected in housing authority  pollution so door it doesn't fit within in fact it's in conflict with the decisions under illinois law saying that there is no requirement that the insurer be the polluter in order for the absolute pollution exclusion to apply must be what is focused upon it we can't look at the way the village characterizes what it did here that what you really providing water we can't focus only on the ellen the theories of liability of the village is asking this panel to do we have to we have to look at what the underlying complaint say and we look at the underlying complaints and you compare them as columns in the supreme court saying we must to the concept traditional environmental pollution we don't believe there is any conclusion to come to other than that these absolute pollution exclusions like those in the scottsdale cases do apply to the press with underlying complaints and that therefore on december thirteenth two thousand and eleven entered a final judgment december fourteenth the seventh circuit entertain argument probably knew about one month later and decided the case in march then with this motion to dismiss they water they didn't ever tell us that they were going to intentionally mix a pollutant with the water and sell it to their citizens and if they would have told us that judge we would have told them you're in an explosion and we're going to have to sell you a more expensive policy that's writes the policy they they look at the like you said the business step the that the the it sure does it and that ensure it tells the church we're in the business of providing water that's one policy and it has a particular this is nothing but a broad general liability policy written that's just where retention and they say they don't have a duty to defend my client submitted an affidavit almost two years ago saying that the villain spent more than two and a half million dollars versus village of russia where they held the municipality that sold the water polluted by somebody else was not entitled to insurance coverage or the lawsuit filed by the residents of the village where the taxpayers were paying for the defense of these lost you  three we agree with this analysis and then they talk about how the change in the policy language affected the exclusion and then they will the accidental release a carbon monoxide in this case  that's a fact what was it that was a contaminated and if it was contaminated wesa contaminated at the level bilel the m c l said by the federal government which the e p a found at no time at the village of press with water