[00:00:02] Speaker 00: Case number 16-1416NL. [00:00:04] Speaker 00: Gentlemen, Parks Company Petitioner versus Environmental Protection Agency. [00:00:09] Speaker 00: Ms. [00:00:09] Speaker 00: Stetson for the petitioners, Mrs. Serino for the respondent. [00:00:43] Speaker 00: Good morning, Your Honors. [00:00:44] Speaker 00: May it please the Court? [00:00:45] Speaker 00: My name is Kate Stetson. [00:00:46] Speaker 00: I'm appearing this morning on behalf of both petitioners, AIMCO and Genuine Parts. [00:00:52] Speaker 00: This is also a circular case. [00:00:53] Speaker 00: It's also about the hazard ranking system. [00:00:56] Speaker 00: It involves very different issues about hydrogeology and aquifers and groundwater flow, but it may be simplest to start with a more fundamental administrative procedure problem. [00:01:08] Speaker 00: And that is the EPA's complete failure to respond below to a number of significant pieces of evidence and comments in the record. [00:01:18] Speaker 00: And there's a very straightforward way to determine this. [00:01:21] Speaker 00: If you turn to EPA's brief at pages 29 to 39, [00:01:28] Speaker 00: These are the pages in the brief that purport to respond to each of the nine pieces of evidence that we identified below that counsel in favor of finding the two aquifers here not interconnected. [00:01:45] Speaker 00: There are nine different pieces of evidence. [00:01:47] Speaker 00: Pages 29 to 39 address each of those pieces of evidence. [00:01:51] Speaker 00: What you will not find [00:01:53] Speaker 00: in those pages is a single site to the record support document below showing where EPA responded to each of those nine pieces of evidence. [00:02:05] Speaker 00: What you will find instead is 10 pages of counsel argument arguing with respect to other documents in the record why each of those nine pieces of evidence individually didn't amount to anything that EPA could or should have considered. [00:02:22] Speaker 00: That, of course, violates APA 101. [00:02:26] Speaker 00: EPA is required to respond not just to significant comments in the record, but also to evidence bearing on the issue before it. [00:02:38] Speaker 02: arguments for showing that there was a confining layer or it was not hydraulically interconnected. [00:02:46] Speaker 02: I mean, that's principally what we're talking about. [00:02:48] Speaker 02: We're talking about that two-mile area and whether there was a confining layer or whether they simply [00:02:56] Speaker 02: the upper aquifer and the lower connective. [00:03:00] Speaker 00: That's correct. [00:03:00] Speaker 00: And you ask what the best evidence is for that? [00:03:02] Speaker 02: Yeah, what do you think your best arguments are? [00:03:04] Speaker 00: So let me make one adjustment to the question, if I could, which is remember that it's EPA's burden to show that the data establish interconnection. [00:03:14] Speaker 02: Well, what I'm trying to say is what do you think are your best arguments in showing that EPA has not shown [00:03:22] Speaker 02: Sure. [00:03:24] Speaker 00: So to begin with, I think the best source for the kind of tightest summary of where all that evidence is, is pages 249 to 251 of the Joint Dependents. [00:03:36] Speaker 00: And these are the comments submitted by AIMCO's expert EKI. [00:03:42] Speaker 00: And on those pages, EKI goes into great detail about the evidence that a persistent sequence of clay, also called till, separates the upper aquifer from that lower limestone bedrock aquifer that EPA discusses. [00:04:01] Speaker 00: If you look at pages 25 to 35 of our brief, Judge Edwards, each of those pieces of evidence that I discussed is laid out seriatim in the brief. [00:04:12] Speaker 00: There are three geological surveys, three cross-sections, two well logs, and then a cross-section of well logs. [00:04:22] Speaker 02: So what is it that you think tells me that a till is a confining layer? [00:04:28] Speaker 00: I think you can look to EPA's own expert below. [00:04:31] Speaker 02: I thought they were arguing vigorously the opposite, that till is not a confining layer. [00:04:39] Speaker 00: So they have concluded that there is no confining layer. [00:04:43] Speaker 00: The issue about till versus clay, by the way, that the EPA is expressing some indignance about on appeal, first of all, the EPA's expert below, and you can look at Joint Appendix 415 to 417 for this, [00:04:57] Speaker 00: EPA's expert uses the words clay until interchangeably 10 times on those three pages. [00:05:03] Speaker 00: So let's sort of set aside the nomenclature. [00:05:05] Speaker 02: Are they conceding that clay is a confining layer? [00:05:08] Speaker 00: Yes, they do concede that clay is a confining layer, as they must. [00:05:12] Speaker 00: I mean, their own regulations, the Table 3-6 in the back of the Joint Appendix shows that clay is a confining layer. [00:05:19] Speaker 00: And EKI's comments also show in detail that the conductivity of these various sediments that we're talking about, clay versus limestone versus gravel, [00:05:32] Speaker 00: that that conductivity is the necessary two or more orders of magnitude apart that define something as a confining layer. [00:06:03] Speaker 02: It doesn't look like there's any confining layer there. [00:06:09] Speaker 02: As far as I can tell, this is not a contested exhibit. [00:06:13] Speaker 02: The glacier aquifer runs directly into the limestone aquifer. [00:06:18] Speaker 02: There's undifferentiated till, but it is not [00:06:24] Speaker 02: horizontally it's not, that undifferentiated till is not going all the way across the disputed two mile area to give you a confining layer. [00:06:34] Speaker 00: So this is the piece of evidence that we discuss in our brief that is labeled C to C prime, that bottom most component of the chart. [00:06:46] Speaker 00: We actually pointed this out in our brief despite the fact that EPA didn't purport to rely on this particular exhibit below at all. [00:06:55] Speaker 00: It cites this page but for a different proposition. [00:06:58] Speaker 02: That's true. [00:07:00] Speaker 00: And what we said in our brief to that is a couple things. [00:07:04] Speaker 00: The first is for EPA to rely on that to establish [00:07:10] Speaker 00: that the aquifers are interconnected, it would also need to explain away under the whole record rule all of the countervailing evidence that we otherwise pointed to. [00:07:20] Speaker 00: But that even gets past the procedural point, which is that EPA never cited or relied on that [00:07:26] Speaker 00: one piece of evidence to support the conclusion that the aquifers are interconnected. [00:07:31] Speaker 00: What EPA failed to grapple with instead were all of the pieces of evidence, all of those geological surveys, cross-sections, showing that within that two-mile radius between the Eagle Creek and the White River, there is a confining layer of clay. [00:07:48] Speaker 00: Call it clay till, call it till, call it anything that you wish, but the purpose of it [00:07:53] Speaker 00: and its activity is to confine the upper aquifer from the lower aquifer in that area. [00:07:59] Speaker 02: Now the problem is, I look at that evidence, the problem with that is that layer, and I'm looking at it the way you're looking at it, if you account for sea level and you look at the exhibits as carefully as you can, as best I could, it isn't clear that the horizontal reach is consistent or connected all the way across. [00:08:22] Speaker 02: And indeed, you point to that clay-till layer, which doesn't appear to be connected all the way across, but I'm not sure, as being confining, and then there is an area just above that, which is not, and then there's another area just above that, [00:08:42] Speaker 02: which looks exactly the same, but you don't characterize it as confining. [00:08:47] Speaker 00: I think there are some of the exhibits that we pointed to. [00:08:50] Speaker 00: So some of the geological survey discussions and I think one or two of the cross-sections contain a couple different things. [00:08:58] Speaker 00: One of them is some evidence that there is clay or till among that upper aquifer. [00:09:03] Speaker 00: That's irrelevant. [00:09:04] Speaker 00: We're not talking about that kind of depth. [00:09:06] Speaker 00: We're talking about something that's deeper. [00:09:08] Speaker 02: Then answer my concern on my question about how do you know [00:09:12] Speaker 02: And I'm not sure you may try and answer on burden of proof, but how do you know that that clay till line in that two-mile area is connected all the way across? [00:09:23] Speaker 02: Because it looks like when you look at the exhibits where they've tried to account for sea level, it does not look like it's continuous all the way across. [00:09:33] Speaker 00: Right, so a couple points. [00:09:35] Speaker 02: It may be continuous, but it isn't clear that it's connected. [00:09:40] Speaker 00: Yes, a couple points, though. [00:09:41] Speaker 00: The first is, yes, my first response would be on the burden. [00:09:45] Speaker 00: The second is, remember that those geological surveys talk about a thick, persistent sequence of clay in most places separating the upper and the lower aquifers. [00:09:55] Speaker 00: So that's at least circumstantial evidence. [00:09:57] Speaker 00: And the third point is, the point about elevation is an observation that EPA makes, again, just in its brief. [00:10:03] Speaker 00: no argument below about the difference in elevation suggesting that there is a difference in confining layers. [00:10:10] Speaker 00: And nobody is suggesting, and EPA can't suggest, that these confining layers underneath the ground have to [00:10:18] Speaker 00: remain at exactly the same elevation across one mile between these two relevant well logs? [00:10:24] Speaker 02: It's not some... That's clear, and if they're arguing that, that's silly, because all you're saying is that it can go up and down. [00:10:31] Speaker 01: Exactly. [00:10:31] Speaker 02: That's fine. [00:10:32] Speaker 02: That's not the question. [00:10:33] Speaker 02: The problem I have is it may go up and down, but then at a certain point, there's an opening. [00:10:38] Speaker 02: That's what you can't tell from the exhibits, so you have the clay and till going, and it's going up and down because of the elevations. [00:10:45] Speaker 02: But if you look at the exhibits, it's hard to know whether at a certain point there's an opening and then clay and till continues and then there's an opening. [00:10:53] Speaker 02: That's what's not clear. [00:10:54] Speaker 00: Well, I think you can tell from the exhibits that we pointed to. [00:10:59] Speaker 02: What exhibit do you think best and clearly shows that? [00:11:03] Speaker 00: The cross-sections. [00:11:04] Speaker 00: So if you look at cross-section, we call it BB prime, which we discuss in our brief at page 29. [00:11:12] Speaker 00: This is joint appendix 624. [00:11:14] Speaker 00: And this is actually an EPA reference that it didn't discuss. [00:11:17] Speaker 00: Cross-section 8J to 8J prime, which is the next page of our brief. [00:11:22] Speaker 00: and Joint Appendix 649. [00:11:24] Speaker 00: And then the third of the three cross-sections is the plate R5, the EKI cited below. [00:11:32] Speaker 00: That's discussed in our brief at page 31. [00:11:36] Speaker 00: You can see it at Joint Appendix 378. [00:11:38] Speaker 02: And if you look at... The AJ, you're talking about the unconsolidated non-aquifer material? [00:11:44] Speaker 00: Yes, yes. [00:11:46] Speaker 02: What do I do with that? [00:11:47] Speaker 02: It's labeled [00:11:48] Speaker 02: Non-aquifer, what does that mean to me? [00:11:51] Speaker 00: I don't know what to do with it. [00:11:53] Speaker 00: What EPA says about that is that it equates it with sandy clay. [00:11:58] Speaker 00: So if you look at pages 35 to 31 of their brief, EPA says that this non-aquifer material, which logically shouldn't be an aquifer, is equivalent to sandy clay. [00:12:10] Speaker 00: And if you look at the hydraulic conductivity of sandy clay, [00:12:14] Speaker 00: you will find that it has a hydraulic conductivity of 10 to the negative 6th, which is two orders of magnitude at least more than the hydraulic conductivity of the aquifers that we're talking about. [00:12:27] Speaker 00: So to your point too, Judge Edwards, if you read across each of those cross-sections, they may use, as I said earlier, different nomenclatures to describe the similar things, but you can tell if you look at BB prime, [00:12:42] Speaker 00: that the confining layer of till, and there it's called pre-Wisconsin till, our expert EKI at page 249 of our joint appendix, equated that with clay, as do we. [00:12:57] Speaker 00: You look at the same finger-like layer in 8JHA prime, and it's called non-aquifer material. [00:13:04] Speaker 00: You look at the same finger-like layer on that eastern slice that plate R5 shows you, and it's called clay till. [00:13:12] Speaker 00: So to your point, Judge Edwards, when we're looking just at that two-mile radius that our figures in our briefs depict with that horseshoe showing the relevant area, it is clear, we would say, from each of those pieces of evidence, [00:13:29] Speaker 00: supported by those geological surveys that talk about the persistent sequence of clay, supported by the well logs that show a persistent presence of clay in exactly the area that we're talking about, that each of those stacks up to signal that there is a persistent sequence of clay there. [00:13:48] Speaker 00: The problem that EPA has, again, is the fundamental administrative procedure problem, not only that it doesn't have substantial evidence to support its conclusion, that there was no clay there, that there was no confining layer, but that it didn't deal with each of these pieces of evidence as it was required to. [00:14:08] Speaker 03: If I could take one minute left and talk to… We agreed with you on the latter point, and that they didn't respond, that we wouldn't deal with the former [00:14:16] Speaker 00: Sorry, say again? [00:14:17] Speaker 03: If we agree with you that they didn't respond adequately, we would not deal with your former point. [00:14:24] Speaker 00: We would not, you would not deal with the substantial evidence point if you conclude that they didn't respond for the reason that the, what I mentioned earlier, the substantial evidence test requires that whole record approach. [00:14:36] Speaker 00: So if EPA didn't address conflicting evidence in the record, you can't just look at its evidence and make a conclusion up or down. [00:14:45] Speaker 00: They are two different APA violations. [00:14:47] Speaker 03: I mean, unless it were possible to determine that the [00:14:49] Speaker 03: material to which they didn't respond, that an agency didn't respond in a particular case, could not have affected the result. [00:14:58] Speaker 03: It just simply isn't sufficiently material. [00:15:01] Speaker 00: Yes, I think it's hypothetically possible to imagine a piece of evidence or an insignificant or irrelevant comment that EPA didn't respond to, but it wouldn't make a difference. [00:15:13] Speaker 00: But here, [00:15:14] Speaker 00: the volume of evidence that it ignored, and it's essentially implicit acknowledgement in the brief that it didn't address those pieces of evidence below, because there isn't a single site to the record showing that they did. [00:15:29] Speaker 00: That's the fundamental problem EPA has, and I don't think that it's either dismissable or excusable by simply assigning each of these as being insignificant. [00:15:40] Speaker 00: If I could take two minutes and speak about the groundwater issue briefly. [00:15:48] Speaker 00: The groundwater flow issue is a separate problem with the hazard ranking system. [00:15:54] Speaker 00: And this is, in this case, a fundamental clash with what CERCLA, particularly as amended in 1986, requires, which is even under the hazard ranking system, which you heard during the last argument is designed to be a quick assessment of risk. [00:16:10] Speaker 00: Even under the hazard ranking system, after 1986, Congress made it clear [00:16:15] Speaker 00: that the EPA has to use that system to the maximum extent feasible, as you said, Judge Ginsburg, to assess the risk associated with a particular project. [00:16:25] Speaker 00: And where you have, as here, evidence in the record that is conceded that groundwater flows away from the well fields that are of interest to EPA, [00:16:37] Speaker 00: EPA was not in a position to simply ignore away that evidence and to assign it zero significance in its calculus. [00:16:45] Speaker 00: Whether you look at it as a violation of the HRS or as a fundamental violation of CERCLA, EPA should not have listed this site when it knows that groundwater flows away from the major population that it targeted during the site. [00:17:19] Speaker 01: My name is Paul Serino with the Department of Justice for the Respondent, joined at council table today by Eric Swenson of EPA's Office of General Counsel. [00:17:31] Speaker 01: This case is about whether EPA reasonably listed the West Vermont groundwater contamination site on the national priorities list. [00:17:39] Speaker 01: Now this is a site in Indianapolis where hazardous substances including vinyl chloride and TCE [00:17:45] Speaker 01: have seeped from two locations down into private drinking water wells and the groundwater forming a plume of approximately 20 acres. [00:17:55] Speaker 03: Any of those sites, those locations south of the groundwater flow? [00:18:02] Speaker 03: the homes and so on that have been tested, are they in the direction of the known groundwater flow? [00:18:10] Speaker 01: It's not what I think it is. [00:18:11] Speaker 01: You're asking me about the groundwater flow direction point. [00:18:16] Speaker 01: Look, their expert says that it flows in the southeast direction. [00:18:24] Speaker 01: That's not away from the well fields to the east. [00:18:28] Speaker 01: In any event, there's insufficient information, either site-specific or regionally, about really where the groundwater direction flows. [00:18:38] Speaker 01: And that's the purpose of the next step, which is the remedial investigation feasibility step. [00:18:44] Speaker 03: Do you already have in hand any test wells from these homes that suggest it flows south? [00:18:51] Speaker 01: At the source. [00:18:53] Speaker 01: EPA considered the groundwater flow direction to attribute the contamination to the two sources. [00:19:02] Speaker 01: So locally, yes. [00:19:04] Speaker 01: But, you know, the HRS regulations properly provide that EPA should not consider groundwater flow direction on a site-wide basis to determine whether [00:19:23] Speaker 01: You know, period. [00:19:26] Speaker 03: Did it – Did they say that explicitly, or is it something that you should look at it? [00:19:30] Speaker 01: Well, in – when the HRS was promulgated, the current version, 1990, this issue came up. [00:19:37] Speaker 01: And there were numerous commenters that said, you know, you should consider – EPA should consider groundwater flow direction when available in the hazard ranking system scoring. [00:19:50] Speaker 01: And the agency said, no, it's too complicated for this initial screening device. [00:19:56] Speaker 02: It didn't say that in the regulation. [00:19:58] Speaker 02: It just responded to comments. [00:20:00] Speaker 02: That's not part of the regulation. [00:20:02] Speaker 02: That's correct. [00:20:03] Speaker 01: OK. [00:20:03] Speaker 02: That's why your timeliness argument doesn't work. [00:20:06] Speaker 02: I mean, there's no regulation that speaks to this precisely. [00:20:10] Speaker 01: Well, indirectly, the, instead of such a regulation, EPA included a weighting of populations in the, of affected populations. [00:20:22] Speaker 02: It doesn't mean you couldn't consider groundwater flow at this point. [00:20:26] Speaker 02: There's nothing in the regulation that says you cannot. [00:20:30] Speaker 01: It does not factor into the analysis. [00:20:32] Speaker 02: I mean, so, a party can make the argument in any given case that you should have [00:20:39] Speaker 02: In that case, the regulation doesn't foreclose the argument. [00:20:43] Speaker 02: I have a concern I want to raise with you. [00:20:49] Speaker 02: It isn't clear to me that the agency has given substantial evidence in this record with respect to hydraulic interconnection because it appears to me from the evidence in the record that the aquifers are separated by four orders of magnitude, not two as you claim. [00:21:11] Speaker 02: The conductivity on the outwash aquifer [00:21:17] Speaker 02: is 10 to the negative 6, and the conductivity of the limestone aquifer is, as I understand the record, 10 to the negative 2 because the limestone aquifer contains karst. [00:21:39] Speaker 02: And if you look at your regulation, if it contains costs, the conductivity measures tend to the negative 2. [00:21:47] Speaker 02: So the level of magnitude based on just what's in the record and substantial evidence review is whole record review, I'm doing whole record review, you're assuming it all the way through and I don't see it. [00:22:02] Speaker 01: EPA did not rely on that line of evidence in its, as part of its decision. [00:22:09] Speaker 02: You have to show. [00:22:12] Speaker 02: You have to address the issue of hydraulic interconnection. [00:22:15] Speaker 01: Let me show you how EPA did that. [00:22:17] Speaker 01: Relying on four principle pieces of evidence. [00:22:21] Speaker 01: Now, it relied on two, a groundwater modeling report from the Indianapolis Water Company. [00:22:27] Speaker 02: No, no, let me tell you what, on page 25 in footnote eight in your brief, [00:22:32] Speaker 02: You're acknowledging the conductivity of the glacial aquifer is 10 to the negative 6. [00:22:39] Speaker 02: And in your regulations, the limestone aquifer has to be measured at 10 to the negative 2, because your regulations, JA 73 and your brief at 25, indicate it includes karst. [00:22:54] Speaker 02: And if it includes karst, it's 10 to the negative 2. [00:22:58] Speaker 02: And that means that the magnitude is not within two, as you suggest. [00:23:03] Speaker 02: I'm just looking at the evidence in the record. [00:23:05] Speaker 02: So there's no way you can get around that. [00:23:07] Speaker 02: That's there. [00:23:08] Speaker 02: Either there's a further explanation you haven't given, or you're wrong. [00:23:14] Speaker 01: Well, we haven't yet discussed Well Log 414789. [00:23:17] Speaker 01: Remember, the shale covers half the site, let's say. [00:23:24] Speaker 01: We're talking about a two-mile radius. [00:23:26] Speaker 01: The shale covers half of it. [00:23:28] Speaker 01: It's EPA's view that the outwash aquifer sits directly atop the limestone bedrock aquifer. [00:23:34] Speaker 02: You still have to show they're not hydraulically interconnected. [00:23:38] Speaker 01: Well log 414789, which goes all the way down from the ground surface to the limestone bedrock aquifer, shows no confining layer. [00:23:48] Speaker 02: The confining layer is a different question. [00:23:52] Speaker 02: You have to show it's not hydraulically interconnected. [00:23:56] Speaker 02: And you rely on, as I understand your regulations, you rely on the measures of conductivity. [00:24:01] Speaker 02: And you say the measure of conductivity of the aquifer, the upper aquifer, all the way down is 10 to the negative 6. [00:24:10] Speaker 02: It now touches the limestone aquifer, which under your regulations with CARS is conductivity of 10 to the negative 2. [00:24:19] Speaker 02: And the magnitude, therefore, between them [00:24:22] Speaker 02: doesn't need your regulations. [00:24:24] Speaker 01: Well, Your Honor, I don't, I don't, EBA doesn't have the evidence, didn't collect the evidence, didn't do the analysis to do a site-wide. [00:24:32] Speaker 02: I'm not talking about site-wide, I'm talking within the areas in which we're talking about. [00:24:35] Speaker 02: You have, all right, well let me, so the answer to your question is you don't know. [00:24:40] Speaker 01: EPA did not develop that. [00:24:42] Speaker 02: So it would have to go back no matter what. [00:24:44] Speaker 01: It doesn't. [00:24:45] Speaker 02: Well, here's what I'm trying – I'm going to let you answer it, because I think I know what you're trying to say, but it isn't what the record suggests. [00:24:53] Speaker 02: The – unless I'm misunderstanding – the hydraulic interconnection is separate from the question of confining layer. [00:25:02] Speaker 02: They can win on either one. [00:25:06] Speaker 01: My answer is, well, EPA, there's insufficient evidence about the hydraulic. [00:25:12] Speaker 01: No, no, no. [00:25:12] Speaker 02: Come on, answer that first. [00:25:13] Speaker 02: Then I'm going to try to stay with you. [00:25:15] Speaker 02: They can win either way. [00:25:17] Speaker 02: They can show a confining layer, or they can show that the hydraulic interconnection is not what you say, which is a magnitude of two, and it looks to me like it's separated by four orders of magnitude. [00:25:30] Speaker 01: I don't think so. [00:25:30] Speaker 02: I think EPA... No, no, that's not my question. [00:25:32] Speaker 02: They can win on either one. [00:25:33] Speaker 02: Is that right? [00:25:34] Speaker 01: I disagree. [00:25:35] Speaker 01: I think... They can't win on either one? [00:25:36] Speaker 01: I think if EPA shows a hydraulic interconnection based on substantial evidence, EPA wins. [00:25:43] Speaker 01: Right. [00:25:43] Speaker 01: And that's what I'm trying to do. [00:25:44] Speaker 01: Okay. [00:25:44] Speaker 02: I'm trying to show you that... But why won't you answer my question? [00:25:49] Speaker 02: They can win either way, right? [00:25:52] Speaker 02: That is a confining layer or your failure to show... I'm not saying you haven't shown it, or your failure to show the hydraulic interconnection. [00:26:00] Speaker 01: EPA did not base its conclusion on hydraulic conductivity. [00:26:04] Speaker 01: It did it based on a different line of evidence. [00:26:07] Speaker 01: So I think by raising that, you know, we raised it in our brief to show that clay didn't mean till, okay? [00:26:13] Speaker 01: And we used the conductivity as part of that argument. [00:26:19] Speaker 01: The EPA base its decision on the fact [00:26:22] Speaker 01: that shale goes halfway across the site while 414789 goes directly down to the bedrock and shows no confining layer at all. [00:26:32] Speaker 01: Thus, the aquifers are interconnected. [00:26:35] Speaker 01: In addition, in addition, within the limestone, within the upper aquifer, vinyl chloride has spread down to 70 feet below ground surface. [00:26:46] Speaker 01: It has passed these clay patches [00:26:51] Speaker 01: that appear in some of the well logs. [00:26:54] Speaker 01: Note that that clay is not consistent. [00:26:57] Speaker 01: There are patches of clay, 414789. [00:26:59] Speaker 02: Where's the evidence you relied on to show that? [00:27:01] Speaker 02: We're diverting, but where's the evidence? [00:27:03] Speaker 01: Well, you can look at their own expert exhibit. [00:27:08] Speaker 02: Where's the evidence you relied on in response to that? [00:27:12] Speaker 02: I still want to come back to what we've been talking about. [00:27:15] Speaker 01: Their exhibit, I believe it's JA377, it's their well-logged chart that shows, if you highlight the clay areas, there's no consistent continuous layer across two miles. [00:27:31] Speaker 01: This and this doesn't even have 414789 because it wouldn't show any confining clay layer. [00:27:38] Speaker 01: So EPA went directly down and in at least one place. [00:27:44] Speaker 01: found evidence or relied on evidence that had no confining layer until the bedrock. [00:27:51] Speaker 01: Plus, the contamination is beneath the clay lenses, as they're called. [00:27:57] Speaker 01: So the hydraulic connectivity, it's an interesting side argument. [00:28:03] Speaker 01: It arose during the debate of whether clay is till. [00:28:07] Speaker 01: UP did not rely on that. [00:28:08] Speaker 01: There's insufficient data on it site-wide. [00:28:12] Speaker 01: You can't make any conclusions about that here. [00:28:15] Speaker 01: UPA relied on more physical evidence from the well logs that take it directly down to the bedrock aquifer. [00:28:26] Speaker 01: So the four pieces of evidence were the water company report that concluded that it is likely that the limestone aquifer is hydraulically connected to the outwash sand and gravel aquifer. [00:28:43] Speaker 01: this same cross-section that you had pointed out earlier called C to C prime on page JA591, which also shows the upper aquifer directly on top of the lower aquifer. [00:29:01] Speaker 01: I would note on cross-sections, it's useful for broad features, major land features like where the shale ends and where the limestone bedrock is. [00:29:12] Speaker 01: It's not useful for more localized site-specific features. [00:29:17] Speaker 01: That's why the well log is critical. [00:29:19] Speaker 01: And that's on page 580, 581, 414-789, starts at the ground surface, goes all the way down 130 feet to the limestone, and there's no confining layer. [00:29:33] Speaker 01: This is one and a quarter miles away from the site sources, showing that in at least one place the aquifers are indeed interconnected. [00:29:42] Speaker 01: And finally, these clay patches, we know that that's not confining because the vinyl chloride has gone beneath those features as well. [00:29:53] Speaker 02: So you're saying I should simply ignore [00:29:59] Speaker 02: what you said in your materials with respect to hydraulic interconnection, that it was you're wrong facially, but it doesn't matter is what you're saying. [00:30:09] Speaker 02: Is that what you're saying? [00:30:12] Speaker 01: I would put it a little bit differently. [00:30:13] Speaker 01: I would say that you should... No, no. [00:30:16] Speaker 02: Let me tell you what I think you said, which looks facially wrong if I understand the hydraulic interconnection. [00:30:23] Speaker 02: If the conductivity of the... And you said this, not me. [00:30:27] Speaker 02: I'm just reading your material. [00:30:29] Speaker 02: of the glacial aquifer is 10 to the negative 6. [00:30:35] Speaker 02: And you're effectively saying, because of your regulations, that the conductivity of the limestone aquifer is 10 to the negative 2. [00:30:44] Speaker 02: Then the orders of magnitude are more than 2. [00:30:49] Speaker 02: You tried to argue that the orders of magnitude were within 2. [00:30:53] Speaker 02: So I read that and I say, no, they're not, based on what you're presenting. [00:30:56] Speaker 02: So I'm going with what you said, not what [00:30:59] Speaker 01: they said and i want to be and so i'm now i want you to tell me what i'm supposed to do with just ignore that and and say no we threw that in for whatever it was worth i think it was to illustrate the different porosity between clay and till layers up did not rely on hydraulic conductivity as a basis for it for its decisions decision here did not relied on those [00:31:28] Speaker 01: other sources and the well log and the fact that the monochloride has seeped beneath the clay. [00:31:35] Speaker 01: That's the basis of UPA's decision and I would respectfully argue that's a substantial evidence supporting the decision. [00:31:51] Speaker 01: Regarding the comments not being responded to, I think the EPA did a comprehensive response and it's in the record in the support document. [00:32:03] Speaker 01: just point the court to JA 155 to 157, which, if not addressing directly, certainly covers the points raised by the petitioners. [00:32:17] Speaker 01: With that, I see the time is expiring. [00:32:19] Speaker 01: I'd ask the court respectfully to... It's all in those three pages. [00:32:24] Speaker 01: Well, that's an example of the VPA's response to the arguments raised by petitioners. [00:32:31] Speaker 03: It's just an example. [00:32:33] Speaker 01: Well, that's one section in a larger document, and I think it... Are there other examples? [00:32:39] Speaker 01: It's the entire support document. [00:32:42] Speaker 03: So we just have to scrounge through it? [00:32:44] Speaker 01: I was trying to point you to the section on aquifer interconnections. [00:32:50] Speaker 01: With that, we respectfully request that the petitions be denied. [00:32:55] Speaker 01: Thank you, Your Honor. [00:32:58] Speaker 01: Thank you. [00:33:05] Speaker 00: Three quick points, if I could. [00:33:07] Speaker 00: First, Judge Ginsburg, on your last question, I would actually point you to Joint Appendix 151 through 159, because those are the pages where EPA purports to address the comments that are received. [00:33:20] Speaker 00: But what I would also encourage you to do is to take a highlighter and strike out everything on those pages that is either a block quote [00:33:28] Speaker 00: from the guidance or the documentation record, or a paraphrasing of the comments themselves. [00:33:35] Speaker 00: And what you are left with after that exercise is a handful of lines across a handful of pages making conclusory statements about EPA's conclusions on aquifer interconnection. [00:33:48] Speaker 00: Second, a point on the evidence. [00:33:52] Speaker 00: What you heard Mr. Serino argue were the four pieces of evidence that EPA purported to rely on below. [00:33:57] Speaker 00: What you didn't hear him argue was with respect to all of the other pieces of evidence that counsel in the opposite direction. [00:34:04] Speaker 00: As to those four, I would say this as to at least a couple of them, the fact that shale doesn't extend across the whole two-mile radius doesn't mean the clay isn't there, and that's the point. [00:34:15] Speaker 00: The fact that vinyl chloride penetrated to 70 feet below means that it penetrated the upper aquifer, because that's the depth that we're talking about. [00:34:24] Speaker 00: The statement at Joint Appendix 629 that it is likely that the limestone aquifer is hydraulically connected to the upper aquifer is followed by the next sentence. [00:34:35] Speaker 00: In other areas, the limestone aquifer is hydraulically isolated from the upper inter-till aquifer system. [00:34:41] Speaker 00: The problem that EPA has then isn't just [00:34:44] Speaker 00: that it failed to grapple with all of that evidence, it's that it failed to carry its burden to show that the data establish interconnection. [00:34:53] Speaker 00: And on your last point, Judge Edwards, about hydraulic conductivity, you are quite right that according to EPA in that footnote, one aquifer [00:35:02] Speaker 00: has a conductivity of 10 to the negative 6, the other has a conductivity of 10 to the negative 2 or 10 to the negative 4. [00:35:09] Speaker 00: If that's right, and we actually say that they've got the conductivity wrong, but if that's right, then they're confronted with two aquifers that actually operate as confining layers to each other, because they are separated by two orders of magnitude. [00:35:22] Speaker 02: Well, that's the question I was trying to raise, and I'm not sure I was understanding the answer. [00:35:25] Speaker 02: I was asking, and I'm curious to your view, there are two ways that you can win. [00:35:32] Speaker 02: Is that right? [00:35:33] Speaker 02: That is on the confining layer, or by reference to the hydraulic interconnections? [00:35:40] Speaker 00: I think that is right. [00:35:41] Speaker 02: I think the way that both we and India have been... I mean, you weren't playing it all the way out in your brief either, but when I was going through the materials on the hydraulic interconnections, their numbers were not making any sense to me because they do show a magnitude of separation that's more than two, based on what they're saying, or at least inconclusive. [00:36:02] Speaker 02: And what I'm trying to understand is, if I don't buy, if the court doesn't buy your argument on the Clay confining, being a confining layer, can you still prevail on these numbers? [00:36:16] Speaker 00: I think the short answer is yes. [00:36:20] Speaker 00: You have posited that there's actually a separate problem with the way that EPA has characterized those two aquifers. [00:36:28] Speaker 00: Right. [00:36:28] Speaker 02: I mean, it seemed bizarre to me as I was reading it because I don't wander into this area every day, thank goodness, but it didn't make any sense to me. [00:36:40] Speaker 00: I will tell you that in our brief, in our reply brief, we actually resist this idea that the aquifer, the upper aquifer has a 10 to the negative 6 conductivity, as EPA suggests, and we point to pieces of evidence in the record that show that it doesn't. [00:36:55] Speaker 00: If you take EPA at its word, that one has a conductivity of 10 to the negative 4 or negative 6, and the other has, as you said, is limestone or karst, which means 10 to the negative 2, that's two orders of magnitude. [00:37:07] Speaker 00: The fact that they didn't, Mr. Sorino said several times, we didn't rely on hydraulic conductivity to make this decision. [00:37:14] Speaker 00: That's an important element of determining whether something is or is not an aquifer or a confining layer. [00:37:20] Speaker 00: So if they didn't take hydraulic conductivity into account, that to us points out the fundamental problem again with the way that they went about this. [00:37:29] Speaker 00: They made conclusory statements based on a few pages of a few points of the record without grappling with all of the other pages pointing to those confining layers and the well logs of sandy clay. [00:37:42] Speaker 00: in the cross-sections of the clay or till that demonstrate in that area that there is a confining layer present. [00:37:51] Speaker 03: Okay, before I lose the opportunity, if I may, 151 to 155, would you just walk us through your best example of where there's no there, there? [00:38:01] Speaker 00: I'd be happy to. [00:38:06] Speaker 00: So 151 to 155 is the beginning of the EPA's discussion of the aquifer interconnections, right? [00:38:15] Speaker 03: They call it aquifer delineation. [00:38:19] Speaker 00: So page 151 under 3.12, you can strike the first three paragraphs, because those are just a recitation of the comments. [00:38:26] Speaker 00: You have eight lines at the bottom that constitute a response. [00:38:30] Speaker 00: Page 152 is in its entirety. [00:38:34] Speaker 03: Why is the response inadequate? [00:38:36] Speaker 00: Oh, the response is the conditions were appropriately characterized. [00:38:42] Speaker 00: The aquifers were documented to be interconnected. [00:38:46] Speaker 00: Therefore, these strata were considered one hydrological unit. [00:38:49] Speaker 00: That doesn't respond to evidence. [00:38:51] Speaker 00: It doesn't respond to specific comments. [00:38:53] Speaker 00: It doesn't respond to Joint Appendix 249-251, which was our expert's comments about all of the evidence supporting the conclusion that there is a persistent sequence of clay. [00:39:05] Speaker 00: If you turn to page 152, you can strike that entire page because that's just paraphrasing or block-quoting the HRS. [00:39:16] Speaker 00: Same with page 153. [00:39:19] Speaker 00: Same with page 154 until you reach the very bottom. [00:39:23] Speaker 00: As demonstrated in the documentation record, the EPA appropriately evaluated the conditions. [00:39:28] Speaker 00: This again, it's just this conclusory statements about what they did without actually engaging with the comments. [00:39:36] Speaker 00: Page 155, you can strike almost all of it except again those few lines at the bottom. [00:39:42] Speaker 00: That's what I was saying by way of the fact that the fact that there's volume in this documentation or support record doesn't mean that there's substance. [00:39:52] Speaker 00: That's the problem. [00:39:53] Speaker 00: If I could make one last point on the groundwater flow, and it goes to Judge Edwards, your question or comment about the regulation. [00:39:59] Speaker 00: You're exactly right. [00:40:00] Speaker 00: There isn't a regulation that precludes them from considering groundwater flow. [00:40:04] Speaker 00: In fact, what the regulation says, or the HRS among other things is, [00:40:08] Speaker 00: You look to determine whether there is potential contamination. [00:40:12] Speaker 00: And if the groundwater flow evidence in the record that EPA conceded shows no potential for contamination, that should have been taken into account. [00:40:21] Speaker 00: That's another way to resolve this case. [00:40:24] Speaker 02: Thank you.