court case in which they held that the absolute pollution exclusion was in force of all this isn't forceful and is not in the u s if and only half the claims involve traditional materials that have been discharged into the environment be on the  approach so it's not a defined term in the policy there's no where to look in the policy to understand what that means so we have to do courts do in that situation even with undefined terms of the policy they turn to the dictionary and the dictionary defines hazardous to mean involving are exposing one to risk of loss for harm and that is exactly what the allegations of the underlying point guard here that the our ration they've lost the enjoyment of their property and they even say that they lost money in the form of higher energy bills as a result of having to keep their doors and their windows shut because of the the smells from the stuff so the allegations says fire the definition of hazardous and we believe because they don't challenge the fact that it went beyond it that this is traditional environmental pollution but let's take a step because the word is in t v the t v stands for traditional so how do we know what something whether something is traditional or not beyond this definition we just talked about and there are a number of india should the courts have looked at same traditional environmental pollution standards on white house that's referred to that because that's one of these older cases but in looking at that the court looked to statutes and if we look to statutes here the  air pollution to be the presence in the atmosphere of contaminants that substantially interfere with the among other things the enjoyment of life or property so illinois the only legislature has determination that air pollution is the owner's walking over and disrupting it in the way the plaintiffs follow claim have happened here that would be traditional environmental pollution and i is smoke it's going to come out of those smoke stacks all the time but you still have a responsibility to control and it really doesn't matter if the underlying plaintiffs are right about whether this is affecting them or not it's the exclusion and in the umbrella policy applies not only to physical injury in the form of bodily injury talk about bodily injury and property so that the coverage here would be for property damage if if there were no as there's been no contamination from their property physical contamination of the neighboring city it's simply that smell they that's  this is one of the kinds of pollution that exist in the coalmines case when the supreme court was imposing the traditional environmental pollution requirement it look to the fact that the clean air act has recently been active and said that was one of the reasons that the pollution exclusion was adopted so air pollution the city is certainly one of those now the the fact that it's property damage versus bodily injury if you were bodily injury there's there's no case the law on the land management facilities act is another statute and that does address animal waste and odors and it talks about having odor control and it says if it isn't done right if this can lead to air pollution and agricultural pollution problems so that statute also recognizes the fact that this is a traditional form of pollution for purposes of the coverage case it ensures coverage case it doesn't matter whether the players are right about being affected or not it just matters that they allege that because we have to take the complaint allegations as being true so they're alleging that hilltop in p s m did not do a good job they did it here to the standards that they said they were going to appear to in controlling these odors and they allowed the owners to come walk over and interfere with their their lives and there they got that's ok doesn't matter in that case they talked about the lost profits from people having to be close close because of the perk invading their property so the lost profits there are the equivalent of the last of the last dollars for higher energy bills for having to shut your windows and your doors and run her ears this has chemical lucian and this is a chemical that's polluted too there's allegations in this about ammonia and hydrogen sulfide as  have a physical injury the complaint this case didn't legit but it doesn't have to because property damage which is defined to mean a loss of use of your property his also excluded by the by the pollution exclusion illinois there are also rules and regulations under the on oil environmental pursuit protection act they talk about air pollution and they talk about animal waste and they talk about actual pollution violation that is relevant in terms of the duty fact you have to look at the allegations of the underlying complaint and the plaintiffs here and this case is currently state but it's go still in an active pace saying that they are still contending that there is pollution that remains to be proved as to whether there is or or is the in addition to the the state agencies of this state agency investigating it there's a test that the seventh circuit in applying oil law looked to and that it said are these older claims a car are they common and are they a fertile source of litigation well i page twenty five twenty six of our proof we listed ten cases where the underlying claim or where the claim itself was involving a ho producers represented to the court that there was a sufficient number of cases that this was one of the major problems facing their producers nationwide and in the state of illinois and indeed  so these are these are common they are fertile source of litigation so the seventh circuit and the reason that's important is colm skip court said well what are you trying to prevent here with pollution exclusion and what they were trying to prevent they said the predominant motivation for passing for passing for writing pollution exclusion was to prevent the so the exposure that comes from all  that's what the pollution exclusion yes now the last point i would make and on the t v e p part of this is the rules construction calls itself and many other cases tell us to look at the type of insurance that was b but in general and a very important point here is that there is a pollution liability policy country mutual issued to these insurers and that policy provides coverage for pollution incidents it defines to be a pollution incident and has to have pollutants the same definition for pollutants from the pollution liability policy is this is the definition it's in the pollution exclusion so the umbrella policy the pollution liability policy potentially covers and you have to still meet terms and conditions of the pollution liability policy but if you're going to get coverage for a pollution event that's the place that you won't get it so happens in this case that that poses that's being litigated and they are contending even as we sit here today or i stand and the rest of you said that those are there are pollution incidents that should be cause they're saying that that is as pollution now colons one of the other reasons the corms adopted the traditional environmental pollution requirements because of the use of words this charge dispersal release   a little box on the application that says i am specifically declining to take the pollution liability coverage because this agrah plus policy with this our pollution exclusion says is basically saying it's not going to cover certain kinds of pollution so you should maybe not want to get that pollution exclusion at the time they bought their boss they checked it and said yeah we understand it we're not buying they subsequently bought for all those reasons this is traditional environmental pollution i think that i i'm not sure i made any headway just spoke with you explaining that the that the commonality or the common feature of are concerned about causing injuries carbon monoxide causes staff to do it right but that's different than saying it's traditional environmental if it does spread it hadn't spread beyond the premises in columns that would have been fun to be to repair show environment what they were talking about something that wasn't even remotely a use the word wasn't even remotely related to pollution or it's not close to this is i think the the indicators i  emissions we're not going to consider pollution on the federal or state regulations so that is far different from what we have here there is no permit in this case and there's no safe harbor in the l m f a which is what they say is their one of a term but there's nothing they say a pa court completely rejected that argument i think you hit it focused on two decisions that were very concerned with the override of this type of language in this type of application of the definition  cited the westchester fire insurance case versus city of pittsburgh which is the tenth circuit case which said that there is virtually no substance or chemical in existence that would not irritate or damage some person or property and it also cited the pipefitters welfare education  collatz case clearly focused on the idea of environmental litigation or the fact the pollution exclusion was drafted to to cover any sort of harms or hazards that arise out  of nuisance like the cases that opposing counsel was talking about that involved other types of nuisance claims involving confinement facilities in illinois feel those are nuisance cases those are not necessarily that of the interacting in exclusion for pollution related injury injuries was the avoidance of the enormous expense of exposure resulting from the exposure explosion of environmental that so they said that we are not going to apply the  situations which do not remotely resemble traditional environmental pollution the pollution exclusion has been and should continue to be the appropriate means of avoiding the yawning extent of potential liability arising from the gradual or repeated discharge nothing relating as justice folk noted there's nothing related to releases of manure the only claims here that we're dealing with are over claims and the underlying complaint self contained absolutely no allegation that these older are ha facilities are not hazardous or regulated substances under illinois or federal environmental laws and the livestock management the saudis act that my co counsel referenced illinois which is a statute that's administered by the department of significant because it recognizes that these soldiers aren't expected and the normal component of these hard i mean operations it also acknowledges and i think this is pointed out a country mutual story that if these top find the facilities are not sited constructed or operated in a proper manner there is a potential for orders from these facilities to rise to the level of a pollution problem but the presumption underlying the livestock management facilities acting on oyo is that if these well and that is why that's just to follow up on that in this case we do have illinois and it does go out to these facilities and only he has the option of charging these types of facilities with air pollution violations if to the columns of talking about how on says that the pollution exclusion is directed to environmental litigation and from the standpoint that we don't have any sort of suggestion of violations of a brunel laws or regulations of this facility could but i think that her ruling that there is a country mutuals perspired to provide defense in this case at this time still stands until such time as they somehow over you know show that that ruling should be overturned or that there's another coverage also noted and i think correctly that the country neutral strategy here of asserting these coverage defenses in a piecemeal fashion is really essentially a violation of public policy because it's simply a way for an insurance company to wear down and sure like our was not explored in this case any other questions about the procedural aspects of well going back and just just briefly to the issues involving the  that traditional environment pollution will be established any time there's a citizens complaint illinois v a about it just the fact of the complaint establishes something is traditional pollution are we contend that this is not consistent with columns and there's nothing in  turning to the imperial marble case which was the third district case decided last year there are some some analogies between that case it is true and i agree with co counsel but there is not here permit in our case because there is a national requirement for one but our is traditional environmental pollution l m f a consequence it's not a license to to do anything you want once you've been approved you have to operate a response and the underlying complaint against the insurers in this case is they didn't do so if you compare the allegations of the complaint with the policy terms and then you factor in this traditional environmental pollution you see that they're saying they didn't operate responsibly when they don't operate responsibly under the approval doesn't know what the operation is going to be able but it goes on to say that the use of livestock waste is waste for agricultural purposes costs threatens or allows air pollution the discharge of contaminants into the earth illinois insufficient quantities and of such characteristics interation as to be injurious to human plant or animal life to health or property and this is what the allegation is here to our reason we interfere with the enjoyment of life or property so when we talk about what the i p a did the agency did with acted we're trying to give an idea of what is traditional environmental pollution and we're not saying that one complaint we do it and the fact that they investigated one complaints about odor are treated as air pollution so if you're trying to determine whether something is traditional environmental pollution you look at things like this you look at the statutes you look at the whether i p a investigates more documents would be provided so claims are never what summary judgment because there's a factual issue there's no requirement you bring all of them at once their motion said that bed we were in violation of that we had breached a contract because we denied on the grounds of the pollution exclusion and therefore were stopped to do anything else it didn't say didn't address all the merits of those oaths claims all those claims and there's nothing in the case management order that we do have in this case every quartus the power motions and a particular time those are still ongoing we're still litigating over those now and there's there's a whole bunch of other defenses in this case that make a difference i want to make sure i not a term policy look at the definition of hazardous in order to determine what traditional environmental pollution means the court didn't define that that the closest we come is this i eat that is hazardous materials dispersed into the environment