this a right to injunctive relief and that is exclusively and solely what the environmental rights act provides to a thirty five a dash or two it says that the only really you can have paying for a person who waste on site and we dispose of it on site and a course of conduct has indicated that they're responsible one thousand nine hundred eighty four when the state came to them and said hey you filing bankruptcy is that going to make a change are now going to walk away from the site in eighty five beginning to the end and therefore i meet with the we get back to the state law if there is a discharge where i believe the fundamental failure here is this under new jersey law once you dispose of a hazardous waste on site you are liable until the end of time time no matter how many transfers they are and i who else buys it no matter what else anybody else does you are strictly joining us everybody are you saying that new jersey department of environmental protection has not done its job here in overseeing this absolutely we set out to critically and clearly and new jersey laws which may they've they've done many indications of deficiencies yes and problem i have is the last significant report you have is the right a report from oh wait it looks like quite a bit of work was done for a way to reach the eleven or twelve so what evidence good evidence is that remediation could have been achieved faster mediation has not been achieved and it and the state has the last communications we have from the state now the exact sites are on it are in the eighty four to two thousand and eleven in two thousand and eleven which is the last me occasionally having this record i couldn't someone make it that will be outside the record but they i can promise you there is no certification no statement from the state since then they have never ever all operator goes on site in two thousand and eight season visual contamination does sampling on site he says there's contamination he says attaches documents to that and realize upon the data from franco franco says we're not going to affairs that's eight years ago arises from flank of what do they do when the other side point coach never produces an expert report franco doesn't have one person who ever stands up and says under oath to a reasonable degree of scientific certainty we're dot so the to my problem you can see as a citizen can step in if the e p a is not doing his job you're saying he's not doing his job but you just quoted me orders noted to me but there is a four page single spaced deficiency report and that's one of many so how can i say that the e p a is being negligent in terms of what is doing here that there are no rights act allows us to step in where the state has not in two thousand and six eight is when we file our notice of claim to sort through code in ninety four up to this right away they didn't own up to right away fact they apologized as they were twelve years late in admitting to it but they said the state of the penalty were coming into the amnesty program because they had not admitted to it yes they admitted to it in one thousand nine hundred four and in two thousand and eight we final our environmental rights act notice that is fourteen years after they started their mediation how do we know that   they've done a fair amount you know you might be saying it's incompetently but how do i make that determination based on this record well first of all natural resource damages that's one example where we complained the state has never asked for natural research damages the pure act of delay now we are twenty six twenty four years that is twice the amount mom it where this the appellate division of the new jersey superior court said that is more than constitute sufficient delay for a party to step in and awesome council stood up in bankruptcy court and said we are done we contest any liability into the future anything whatsoever the state of new jersey took no action in this case i reproach angle and so did they by the way who was the debbie cheney general said hey there's this here and you got to show up they did not participate so right now but tensional us kaiser gives them the kaiser decision gives them the ability to step in there barred from do is to get a clean up after twenty four years they by the way did a very different cleanup and they've now confessed to any responsibility to clean it up they've done it on the open record their medial effort is designed it there's two different levels of remediation there's probably three but really to the count one is residential one is industrial this property is next industrial meeting be it residential or industrial they have chosen the lesser standard there is nothing the property we bought was allowed to be used for residential  compelling them to clean up to the full standard the fact is that in the state by the way has taken no position on this at all so what is allowed to get away with this what's going to happen to this property is not to be remediated to either standard because they said we can test any as a result of the state as a system and the state system is well you have a contaminated property you have to comply with a certain set of testing protocol in order to verify the data that's done it yet think refuses to do the test think based on the current information we don't know requiring that he say he should have required it therefore we need to as a citizen people so on and to make that requirement bided by i think you identify the right question a little bit earlier and it's a question abdication of enforcement responsibility by the d p and second way on going pollution twelve between two thousand and eight and two thousand and twelve there's extensive remediation performed including the ground water sampling that hockey writer requested if if rhetoric has a dispute with the quality or the sufficiency of the groundwater testing that performed there's no evidence in the record as two thousand and twelve that it's the fish and what they have is somebody in two thousand and eight saying more should be done from seventy eight different locations on the property sixteen hundred tons of soil was excavated and removed in two thousand and eleven there is a declaration from three codes that from from from environmental intended to this area of new jersey it's on are the surrounding properties it's it was filled it was used to solidify the wetlands there and it contains construction material including some stress this it is it is not an ongoing just charge but that point with the tare asphalt area and the tory asphalt area since two thousand and eight has had sixteen hundred tons of soil removed so the record as it exists in front of the bankruptcy court is in two thousand and twelve we have a remediation it's performed notice that the property artist's not consent to so from our standpoint he has not established that you know has his burden on as the nonmoving party as summary judgment to put in some evidence to contradict what's in the record that there's any possible way that ongoing contamination he doesn't have any any ongoing evidence of a discharge and secondly he needs that you're both any ongoing evidence of abdication by d e p t i think there's two conflicting parts of frederick's argument on that one on the one hand they say we should be able to bring a claim because he's not satisfied they haven't issued a no action where but that actually undercuts their claim as the new jersey courts have said in superior air in panic shoni an ongoing  investigation or remediation pre amps the private or a action unless they can plead and prove the fishing agency action and what's completely missing in the record is any statement from them affective two thousand and twelve  explaining what about the remediation that occurred from eight to twelve still needs to be done and it still is still defended it is remediation so it is not there has been some restoration work that's been you go shaded by the parties i believe that add before her was a record of the correspondence which you've seen between the agency and franco when coach environmental experts declaration that from our perspective what has been accomplished conform to everything that has require resolved e p a s exercise jurisdiction and they have not come in and provided any evidence that's you know recent as the two thousand and twelve showing what they would s t p to do differently to going to the property and secondly they have to show an ongoing violation but watch for a code is responsible and the only evidence in the record on the current state of the property in two thousand and twelve shows that anything p p has asked flintstone to fix as fixed secondly even if they established a disputed fact on both of those points as they need to they still have a contingent claim for contribution as a matter of bankruptcy law and it's properly disallowed under five zero to anyone be they had the option under new jersey  they say they don't but what they are asserting under the e r a is a violation of the sky the are a provides no substantive relief it's a remedy for a violation of any new jersey law and so  then under this court's decision or ricco the claim is contingent because they have not incurred any response costs and if i were to we says for any party that's called liable with the better who has a contingent claim that claim is this a lot and i thought they had not include any response because what he's saying that they did can you there seems to be a tension there and i'm not sure what they've done since the records been closed but to my knowledge there's nothing in the record indicating that they include any response cost as a matter of bankruptcy while where you have a chapter eleven reorganization particular he may here in the context of a five twenty four g reorganization where you have i think all the five twenty four g cases that this this court has had has both with specialist personal liability claimants and environmental claims that if you're a coal miner at a property as opposed to state you know this would apply to a regulatory agency trying to enforce its environmental laws or even a private citizen like an environmental rights group bringing in you know reaction but if you're in the subset of people who can bring the reaction because you're a colonial co owners of the property and you're jointly and severally rival under marsh which says if you own the property and there's been any you know continuation of the discharge during your ownership know but we owned it for a long time and we conducted you know rubber manufacturing activities as the some of the other owners and so they are willing to do the voluntary would you and it sounds like nothing happened for twelve years well they do some study now their access to the property is always controlled by the current owner and so is the record indicates there's a lot of you know back and forth between the parties on on when they can get access and that you know a lot of the right is so it discussions if you will or discussions over who can access the property or bit of evidence of leeching off the record and not since the record to my knowledge what break open the record after the excavation is that they have done groundwater testing in their perspective to decrease you know requirements and none of that shows any problems and what they're actually at said in two thousand and eight is you know more groundwater testing should be done where is done over the next three years if there's a dispute about the quality of what's been done they have not preserved that in the record and therefore i think  there's an extensive you know range of correspondence in that period it sometimes goes you know a year between letters i go frankly that the burden is to show he's advocating it's unfortunate responsibility in two thousand and twelve it frankly  fredricka said and we quote in our brief that fifteen to twenty years is not unusual for a property of this size and length i'll speak briefly to the twelve year issue they point out to saying that the e p took more than twelve years in the monmouth case there are two important facts there the first was that he be issued a notice of prosecution which is never been issued against waco against the debtor in that case twelve years ago and then there was no clean up for a couple of years so the court in monitor had a situation where nothing was being done at the property prequel years and the court said at that point you know that that's too long here you have a remediation that's been ongoing but both of which happens in two thousand and eleven and none of that aspect of the record is contested by my agents frederic so we think this is a very different situation i but it's just not a situation where he hasn't taken any action for twelve years all right thank you very much visual contamination on the site today it's me on the record but you asked a second ago is there any problem today and the record the last me occasion we know what is the precise kind of mission today it's mostly tory asphalt and proposal point to cover it over if there was especially if there was no reaching and you would have to probably will but that that was not acceptable to frederick that's a partial truth they agreed to put a cover over a very small area the question is what was the area going to be the problem was they agreed to put that he too which is an account of in order to cover the problem over the problem is this is an active area so if you don't put down a proper engineer structure it's going to crack and then it's become our notice is a limitation for them it's a benefit for them it's not something they bargained for we don't have to agree to a deed notice when you buy property it is a bundle of whites the bundle of rights include residential mixed in that mixed industrial and light use industrial what they're trying to do is say we'll tell you what we want you to greet what's being suggested to be put on the deed notice that we say no residential development and that we agreed that they'll be no use of certain areas of the property pay the part of property they have a duty to clean up but it's a factual question a are we being required to do it but be whether it's sufficient and it's also a factual question is does my god pointed out whether the contamination has been addressed right now the record not right now they got no statement from their own person who is not an expert she was an engineer she never opined to reason the degree of certainty and she never said we're done what she said is this is what i intend to do and the problem is that is not satisfactory under the nose and on this point you asked we talked at length about whether the state has to act as the state and i just want to point the court to monist county which is after twelve years it seems reasonable to conclude the d p advancing t