[00:00:04] Speaker 03:
I just want to say for the record that our colleague Judge Henderson will be unable to be with us today, but she will take the cases on the record.

[00:00:22] Speaker 03:
So she will have the record of the oral arguments and hear them.

[00:00:26] Speaker 03:
Thank you.

[00:00:27] Speaker 03:
Please proceed, counsel.

[00:00:29] Speaker 02:
May it please the Court, my name is Neil Westerson and I'm here on behalf of Sunnyside Gold Corporation.

[00:00:34] Speaker 02:
The issue before the Court today is whether putting property on the National Priorities List without scoring that property pursuant to the Hazard Ranking System is contrary to law.

[00:00:43] Speaker 02:
As the Court is well aware, CERCLA provides the framework for listing property on the NPL.

[00:00:48] Speaker 02:
CERCLA requires the EPA to base any listing decision on the relative risk that a particular property might pose to the environment.

[00:00:55] Speaker 02:
They determine relative risk by scoring property pursuant to the hazard ranking system, or HRS.

[00:01:01] Speaker 02:
When EPA quantifies risk with the HRS, it can prioritize the response to risk.

[00:01:07] Speaker 02:
Congress specifically amended Circle in 1986 with the Sarah Amendments to require that the HRS prioritize risks to the maximum extent feasible.

[00:01:17] Speaker 02:
So that's the statutory standard.

[00:01:19] Speaker 02:
When EPA doesn't score property, it loses any ability to prioritize sites for cleanup.

[00:01:25] Speaker 02:
And when property is not scored, owners of that property lose any ability to question the process by which the property has been placed on the NPL.

[00:01:33] Speaker 02:
Listing property based on anything other than an HRS score or one of the statutory provisions is contrary to law.

[00:01:40] Speaker 02:
The listing in question today involves the 48 sites making up the Bonita Peak Mining District.

[00:01:45] Speaker 02:
It's depicted on the map on page 20 of the EPA's brief.

[00:01:50] Speaker 04:
Mr. Weston, if I understand the terminology correctly, those are sources and not sites.

[00:01:57] Speaker 02:
I disagree, Your Honor, and I think the terminology is loosely used by EPA in the regs and the statutes.

[00:02:03] Speaker 04:
Well, they're consistent and they're brief in that respect.

[00:02:06] Speaker 04:
I don't think you are.

[00:02:07] Speaker 04:
And Meade corporate, that case, the Meade case, is in accord with the EPA's usage.

[00:02:14] Speaker 02:
EPA in Meade, it uses site throughout the, there's the Tennessee product site and then the three sites that were within that, the coal plant, the creek.

[00:02:22] Speaker 04:
Well, that was a case in about two different, or multiple sites.

[00:02:26] Speaker 04:
being lumped together under the HRS.

[00:02:29] Speaker 04:
Here we have multiple sources being combined by the EPA into a site.

[00:02:36] Speaker 02:
If you call them sources or you call them sites or you call them areas or facilities, they still have to be scored to be listed.

[00:02:42] Speaker 04:
It makes a big difference in terms of your ability to rely on the need case.

[00:02:45] Speaker 02:
I disagree, Your Honor.

[00:02:47] Speaker 02:
The Meade case is on point as far as listing property without scoring it.

[00:02:52] Speaker 02:
You can't list a site or a source or a release unless it's scored.

[00:02:57] Speaker 04:
Well, that's true, of course, that nothing can be listed unless it's been scored.

[00:03:02] Speaker 04:
But the issue in Meade dealt with combinations into a site.

[00:03:10] Speaker 04:
You seem to be arguing that that's what is going on here, and it doesn't seem to be.

[00:03:16] Speaker 02:
If you look at the area in question, it's 100,000 acres.

[00:03:20] Speaker 02:
These aren't adjoining pipelines coming out of a factory.

[00:03:25] Speaker 04:
This doesn't make it the largest site on the list.

[00:03:28] Speaker 02:
And the size isn't alone determinative, Your Honor.

[00:03:30] Speaker 02:
It's that it's variable.

[00:03:32] Speaker 02:
It's that it's unique and the drainages are unique and the sites within it are unique and the properties that have been listed are unique.

[00:03:39] Speaker 02:
And EPA's approach has been to score some of those properties but list others.

[00:03:46] Speaker 04:
the others they say are between the ones that have been scored.

[00:03:49] Speaker 02:
And that's one of their explanations is that we can list the area between sources.

[00:03:55] Speaker 02:
And the problem with that approach is that standard applies when you have migration of hazardous materials from a scored source.

[00:04:03] Speaker 02:
And examples is a smokestack or a groundwater plume.

[00:04:06] Speaker 02:
There's no migration here from a scored source upstream to some of the properties that have been listed.

[00:04:12] Speaker 04:
The geography of this area... The HRS one talks about properties between, or sources between, ranked sources?

[00:04:21] Speaker 02:
Sources between, but gravity only takes hazardous materials downstream.

[00:04:26] Speaker 02:
And I don't think EPA is allowed to pick a site in one corner of this map, pick one in the other, and then list everything in between.

[00:04:32] Speaker 02:
They've got to analyze the source.

[00:04:34] Speaker 04:
Well, that would be consistent with the HRS, wouldn't it?

[00:04:38] Speaker 04:
I mean, it might be arbitrary in some way, but it would be consistent with the HRS.

[00:04:43] Speaker 02:
It would be putting property on the NPL without scoring it.

[00:04:47] Speaker 02:
If they just pick a spot on one end of Colorado and one on the other and then list everything in between, that certainly can't be the way the HRS was intended to be applied.

[00:04:59] Speaker 02:
This area, as noted, is unique.

[00:05:01] Speaker 02:
It's got three different river drainages.

[00:05:04] Speaker 02:
It's got naturally acidic, naturally basic water.

[00:05:07] Speaker 02:
It's got variable history of different types of mining.

[00:05:10] Speaker 02:
EPA has lumped it all together and listed every property owner in that area as a PRP.

[00:05:16] Speaker 02:
That decision, that listing, this Court has said has consequences.

[00:05:20] Speaker 02:
That was the Kent County case and Mead.

[00:05:25] Speaker 02:
We believe NEED does control the outcome in this case.

[00:05:28] Speaker 02:
There were the three products.

[00:05:29] Speaker 02:
The Tennessee product site consisted of a creek site, the dump site, the coke plant site.

[00:05:33] Speaker 02:
This court concluded that listing non-contiguous sites whose listing cannot be individually justified by reference to EPA's risk or state designation criteria is unlawful.

[00:05:43] Speaker 03:
The only way to list property absolutely... Are you saying their aggregation policy is unlawful?

[00:05:48] Speaker 02:
It was as applied in Meade and it is as applied in this case, Your Honor.

[00:05:52] Speaker 03:
Did Meade involve an HRS?

[00:05:54] Speaker 02:
It did not.

[00:05:55] Speaker 02:
It was a listing.

[00:05:55] Speaker 03:
So we're talking about an entirely different situation.

[00:05:57] Speaker 02:
I think that's a distinction without a difference, Your Honor.

[00:05:59] Speaker 02:
It was a listing and the court's decision didn't focus on whether it was a health advisory listing or otherwise.

[00:06:06] Speaker 03:
At bottom, you seem to be attacking a regulation beyond the time which you can do it.

[00:06:12] Speaker 02:
We're not attacking the HRS.

[00:06:14] Speaker 02:
We're attacking the fact that it wasn't applied here.

[00:06:16] Speaker 02:
They listed property without scoring it.

[00:06:18] Speaker 02:
It's not that the HRS isn't appropriately enacted.

[00:06:22] Speaker 03:
But they used the aggregation policy.

[00:06:25] Speaker 02:
They've called it that, but without calling it aggregation.

[00:06:28] Speaker 02:
They've used the phrase co-mingled release instead.

[00:06:31] Speaker 02:
But the outcome is the same.

[00:06:32] Speaker 02:
You're using scores from some property to list other property.

[00:06:36] Speaker 02:
That's the outcome that was invalidated in need, and it should be invalidated here.

[00:06:44] Speaker 02:
EPA justifies its approach by claiming three things.

[00:06:48] Speaker 02:
That these sources or releases or sites all co-mingle as water flows downhill and downstream.

[00:06:54] Speaker 02:
They notice, as Justice Ginsburg did, that a site can include an area between sources.

[00:06:59] Speaker 02:
And then they advise that a Superfund site can expand to anywhere hazardous materials come to be located.

[00:07:05] Speaker 02:
that each of those explanations doesn't justify the outcome or the listing here.

[00:07:10] Speaker 02:
That co-mingled release concept is new.

[00:07:13] Speaker 02:
It doesn't appear in the guidance.

[00:07:14] Speaker 02:
It doesn't appear in the regulations.

[00:07:16] Speaker 02:
The approach is really that water comes from different sources and heads downstream so we can list all of it.

[00:07:22] Speaker 02:
And as noted, the problem here is on the map the yellow sources were scored, the white sources were not.

[00:07:30] Speaker 02:
A lot of these white boxes are upstream of the elephant, so you've got water commingling and heading downstream, but property upstream where none of that commingling ever reaches is now on the NPL.

[00:07:41] Speaker 02:
There's been no showing that there's anything very similar about all of these sites.

[00:07:45] Speaker 02:
That was required in the U.S.

[00:07:46] Speaker 02:
magnesium case.

[00:07:47] Speaker 02:
And what there has been is speculation that possibly these other sources might be releasing hazardous materials.

[00:07:54] Speaker 02:
They might or may also be contributing, but you can't base a listing based on speculation.

[00:07:59] Speaker 04:
When you say the water is flowing down, are you talking about surface water or ground?

[00:08:06] Speaker 02:
Both your honor, but it always flows downhill.

[00:08:12] Speaker 04:
We don't need a footnote for that proposition.

[00:08:16] Speaker 04:
But I'm not sure that you know whether subsurface water is flowing in one particular direction simply because the surface is.

[00:08:24] Speaker 02:
That's a fair comment, Your Honor.

[00:08:26] Speaker 02:
In this case, the only scoring has been of observed surface releases.

[00:08:31] Speaker 02:
That was the EPA's position.

[00:08:32] Speaker 02:
We went out in the field and saw water on the surface flowing downhill.

[00:08:36] Speaker 02:
So there's not a case where groundwater may be migrating.

[00:08:40] Speaker 04:
Why do you speak with such confidence about subsurface water?

[00:08:45] Speaker 02:
Knowing the geology in the area, this is the 10,000 feet.

[00:08:48] Speaker 02:
Some of it's at 11,000 feet.

[00:08:50] Speaker 02:
The mines are on the tops of these peaks.

[00:08:52] Speaker 02:
And the way EPA has approached it is to score a discharge from an individual mine.

[00:08:58] Speaker 02:
And that discharge all ends up in these three different rivers, the Animas, the Minoacra, and the Minoacra.

[00:09:03] Speaker 04:
What's going on below, though, is a mystery.

[00:09:07] Speaker 04:
I've had a sleek roof, and the water flowed uphill on that roof until it found a place to flow downhill.

[00:09:13] Speaker 02:
I think that happens.

[00:09:15] Speaker 02:
If EPA wanted to say this water is getting onto your property or off of your property through a groundwater flow, they could have done that.

[00:09:23] Speaker 04:
They could have scored that kind of... No, they haven't done it and they don't know that.

[00:09:27] Speaker 04:
The question is why is it unreasonable to, using the HRS, to include an area simply because the surface water is flowing down there.

[00:09:40] Speaker 02:
It's unreasonable to include an area that water doesn't reach that hasn't been scored, whether water is getting there from the surface water or the groundwater.

[00:09:51] Speaker 02:
There's no evidence that anything from these scored sources gets to the unscored sources.

[00:09:56] Speaker 04:
Even though they're mixed in randomly among the scoring ones.

[00:10:00] Speaker 02:
And to the extent this graphic is misleading, that's because it's a 100,000-acre site.

[00:10:06] Speaker 02:
There are many miles apart between these mines, separated by ridges, by faults, by geology.

[00:10:12] Speaker 04:
How big is the area covered by that map?

[00:10:14] Speaker 02:
100,000 acres.

[00:10:16] Speaker 04:
Can you put it in miles or kilometers?

[00:10:19] Speaker 02:
Ten miles by ten miles.

[00:10:23] Speaker 02:
And with this kind of topography in between?

[00:10:28] Speaker 02:
It's in the highest Rocky Mountain peaks in southwestern Colorado.

[00:10:34] Speaker 02:
EPA contends that the site boundaries extend to anywhere this co-mingled release comes to be located, but again, there's no evidence that anything comes to be located upstream or uphill from the squirt releases.

[00:10:46] Speaker 02:
We've talked about the area between sources.

[00:10:49] Speaker 02:
The example of the Sunnyside Mine, which is the mine that my client owns, is a good example of what's wrong with EPA's approach.

[00:10:56] Speaker 02:
Sunnyside Mine sits at the highest point in this area.

[00:11:00] Speaker 02:
It's at the headwaters of the drainage.

[00:11:01] Speaker 02:
It was the largest mine in the area.

[00:11:03] Speaker 02:
It was the oldest mine.

[00:11:04] Speaker 02:
It operated for over 100 years on and off.

[00:11:07] Speaker 02:
It covered between private and public land over 100 acres.

[00:11:12] Speaker 02:
Significant remedial work was done on the Sunnyside mine.

[00:11:15] Speaker 02:
Our clients spent about $15 million bulkheading the mine to contain any discharges, treated thousands of, by injecting thousands of tons of wine into the mine, neutralized any acid water, and reclaimed that mine.

[00:11:28] Speaker 02:
Waste piles were moved, holes were plugged, soil was capped, and EPA ignored all of that.

[00:11:34] Speaker 04:
It wasn't completely remediated, was it?

[00:11:36] Speaker 02:
And I disagree that the regulations require complete remediation before it can be considered, but more troubling is the fact that EPA said we didn't have to consider it because we didn't score it.

[00:11:47] Speaker 02:
So you've got a property owner spending $15 million to clean up their property to try and stay off the NPL, and now EPA can list it without scoring it, even considering any of that work.

[00:11:58] Speaker 02:
That's not reasonable.

[00:12:02] Speaker 03:
Scoring here of these other... So your argument is they have to individually score every source here.

[00:12:10] Speaker 02:
They have to at least score the sites that they've listed, and that's 48 that they identified.

[00:12:15] Speaker 02:
They went to the trouble of calling them out, and in their words... You want to conflate source and site.

[00:12:21] Speaker 02:
They've called them out to provide notice.

[00:12:23] Speaker 03:
Do you want to conflate source and site?

[00:12:25] Speaker 02:
I don't, Your Honor, because I think they, either way, they have to be scored.

[00:12:29] Speaker 02:
If you call it a source, a release, a site, a facility, an area.

[00:12:32] Speaker 03:
That's not what the regulations say.

[00:12:35] Speaker 02:
The regulations require scoring for listing.

[00:12:38] Speaker 02:
And if you're going to put property on the NPL, you need to score it.

[00:12:42] Speaker 02:
You have to consider what's coming off of it.

[00:12:44] Speaker 02:
If it's a source, if it's a release, it's got to be evaluated.

[00:12:50] Speaker 02:
Scoring here of these properties was feasible.

[00:12:53] Speaker 02:
The EPA knows how to do it.

[00:12:55] Speaker 02:
They did it for 19 of these sites.

[00:12:57] Speaker 02:
They took the time to take samples and analyze them and apply the HRS and come up with the score.

[00:13:03] Speaker 02:
This case becomes real similar to the National Gypsum case, where there was a test for toxic boron that the EPA could have administered, and then they would know if a property scored.

[00:13:13] Speaker 02:
They just didn't do the test, and as a result, this court vacated the listing.

[00:13:18] Speaker 02:
EPA could have scored the other sites that are listed if it wanted to.

[00:13:22] Speaker 04:
How many properties are there in the site as the EPA has defined the site?

[00:13:27] Speaker 02:
Could you say that again?

[00:13:28] Speaker 04:
How many properties are there?

[00:13:29] Speaker 04:
Mining properties are there?

[00:13:31] Speaker 02:
80% of this land is owned by the federal government.

[00:13:33] Speaker 02:
Most of these mines are abandoned mines.

[00:13:36] Speaker 02:
And how many are there?

[00:13:38] Speaker 02:
There are at least 48 mines that have been identified.

[00:13:41] Speaker 04:
So they should have scored all 48?

[00:13:43] Speaker 02:
Yes, Your Honor.

[00:13:49] Speaker 02:
The approach EPA has taken is to say that we have called out these properties to give notice to the property owners.

[00:13:57] Speaker 02:
So they've given notice to Sunnyside Gold that they're on the NPL.

[00:14:02] Speaker 02:
That's important because when that notice is given, you've got to come forward within 90 days and challenge that listing.

[00:14:09] Speaker 02:
This court ruled that any untimely challenge is barred, is untimely in the Department of Transportation case and in the Honeywell case.

[00:14:16] Speaker 02:
The problem is it's impossible to challenge how your property's been scored if it's never been scored.

[00:14:22] Speaker 02:
You're put in this position of needing to contest the scoring of what's brought you onto the MPL, but without any type of score, there's nothing to assess.

[00:14:33] Speaker 03:
Let me come back to it again, because I want to make sure I understand your position.

[00:14:36] Speaker 03:
The regulation clearly distinguishes between site and sources, and the regulation clearly says that a site can include a number of sources.

[00:14:45] Speaker 03:
And you're taking issue with that regulation.

[00:14:47] Speaker 03:
I mean, this is clear.

[00:14:48] Speaker 03:
I'm looking at it just to be sure.

[00:14:51] Speaker 03:
You're arguing as if it's not there, because you don't want it to be there.

[00:14:54] Speaker 03:
But it is there.

[00:14:56] Speaker 03:
The regulation absolutely distinguishes between a site and source.

[00:15:01] Speaker 03:
And it says that a site can include multiple sources.

[00:15:05] Speaker 02:
A site can include multiple sources.

[00:15:07] Speaker 03:
And it does not say that each of those multiple sources has to be scored.

[00:15:12] Speaker 03:
It says the site has to be scored.

[00:15:15] Speaker 02:
How does the owner of one of those sources challenge their ending up on the NPL?

[00:15:20] Speaker 04:
How does one get off the NPL?

[00:15:24] Speaker 02:
EPA ultimately concludes that you don't have to be on it.

[00:15:27] Speaker 04:
Because they later score it?

[00:15:30] Speaker 04:
Or the owner does?

[00:15:33] Speaker 02:
Ultimately, I'm assuming it's evaluated as clean, but there's a lot of heartache that happens between now and then.

[00:15:39] Speaker 02:
You're listed on the MPL.

[00:15:42] Speaker 02:
Your property's got that taint, and you're subject to the coercive power of the EPA.

[00:15:47] Speaker 03:
Well, the force of power, what does that mean?

[00:15:50] Speaker 03:
That they might come in and confirm what you're saying, that is, that there was remediation and you're fine.

[00:15:56] Speaker 02:
No, that they might send you a bill for cleanup of property elsewhere in the site, that they might ask that you enter into an administrative order on consent for monitoring property that's never been... That isn't a right question right now, is it?

[00:16:08] Speaker 02:
It's a consequence of the listing.

[00:16:10] Speaker 03:
It's an absolute consequence that you, if you're within the site and your particular source has been completely remediated, nonetheless, there's a regulation that says you'll have to pay a bill.

[00:16:22] Speaker 02:
As applied right here, that's exactly the consequence.

[00:16:24] Speaker 03:
No, is there some regulation that says that?

[00:16:26] Speaker 02:
It's the national priority list, the CERCLA provides for that.

[00:16:31] Speaker 03:
What I'm asking you is, is there some regulation that says individual sources remediated or not within the site will carry the same financial burden?

[00:16:42] Speaker 02:
I think they're identified as part of the NPL.

[00:16:45] Speaker 03:
Is there some regulation that supports, I hear what your concern is, is there some regulation that supports that?

[00:16:51] Speaker 02:
I think the regulations in the HRS support it and the NPL regulations.

[00:16:57] Speaker 02:
I'm over time.

[00:16:59] Speaker 03:
Thank you.

[00:16:59] Speaker 03:
I'll give you a little time for rebuttal.

[00:17:07] Speaker 00:
May it please the court, my name is Megan Greenfield and I'm here on behalf of EPA.

[00:17:12] Speaker 00:
With me at council's table is Eric Swinson from the Office of General Counsel.

[00:17:17] Speaker 00:
This court should reject the challenge to the listing of the Bonita Peak mining district site on the national priorities list.

[00:17:24] Speaker 00:
The Bonita Peak mining district site is a single site that encompasses the release of multiple mining sources.

[00:17:32] Speaker 00:
EPA determined that the site was eligible for listing by scoring 19 mining areas, all of which discharged acid mine drainage into the surface water.

[00:17:42] Speaker 00:
This acid mine drainage comes together and intermixes as surface water moves downstream through the upper Animas River watershed.

[00:17:51] Speaker 00:
The site scored 50, well above the 28.5 score required for MPL eligibility.

[00:17:58] Speaker 03:
Does it matter whether individual sources are contributing to the problem?

[00:18:04] Speaker 00:
It's true that there are other sources that EPA did not assess as part of the site that may be contributing, but that does not impact the HRS score here.

[00:18:14] Speaker 00:
The sources that EPA assessed were contributing so much hazardous substances to the surface water.

[00:18:21] Speaker 00:
that it maxed out the surface water contamination score at 50.

[00:18:27] Speaker 00:
So if EPA had gone out in the field and scored every other possible source that it had identified, it could not have lowered the score.

[00:18:34] Speaker 03:
No, that's not my question.

[00:18:35] Speaker 03:
I understand that.

[00:18:37] Speaker 03:
What I'm asking is, does it matter that any individual sources are contributing nothing to the problem?

[00:18:46] Speaker 00:
No, it doesn't matter for scoring purposes.

[00:18:49] Speaker 00:
And it doesn't matter because

[00:18:51] Speaker 00:
a site is allowed to consist of multiple sources and the score can be based on only part of those sources.

[00:18:57] Speaker 00:
That is what this court and the HRS provide.

[00:19:02] Speaker 03:
And in the next step, when there are consequences, does it matter if

[00:19:08] Speaker 03:
Some sources within the site are contributing nothing.

[00:19:12] Speaker 03:
They're totally remediated.

[00:19:13] Speaker 00:
Yes, that will be taken into account in the next step when the full scope of contamination is determined.

[00:19:21] Speaker 03:
And what's the regulation that says that?

[00:19:24] Speaker 00:
I don't have the specific regulation before me, but I'm happy to provide that to the court.

[00:19:28] Speaker 03:
Because counsel on the other side seems to be unaware of any such regulation and is suggesting that when you get to the final consequences, everyone pays equally.

[00:19:38] Speaker 03:
I'm just not sure.

[00:19:40] Speaker 03:
That sounds surprising to me, but I'm curious to know if there's a regulation that says something to the contrary.

[00:19:46] Speaker 00:
Yes, that is not how CERCLA works.

[00:19:48] Speaker 00:
CERCLA does not require automatic payment from all of the sources within a site.

[00:19:53] Speaker 00:
It's true that it allows for joint several liability, but that liability can be apportioned in different ways depending on things like remediation.

[00:20:01] Speaker 00:
and through the process like allocation.

[00:20:04] Speaker 00:
So that's certainly possible.

[00:20:07] Speaker 00:
It's also true that if an area of a site is completely remediated, that in those later stages when the remedial plan is constructed, that those areas can be carved out from the site.

[00:20:20] Speaker 00:
That can happen at a later time.

[00:20:23] Speaker 00:
It seems that petitioners are arguing today that EPA is required to score every specific parcel within a site before listing it on the NPL.

[00:20:33] Speaker 00:
That's not what this court has held.

[00:20:35] Speaker 00:
For example, in Washington Department of Transportation, that argument was specifically rejected.

[00:20:40] Speaker 00:
that EPA does not need to score every single parcel within its site.

[00:20:45] Speaker 00:
And indeed, as a practical matter, that would make little sense.

[00:20:49] Speaker 00:
Many sites have many hundreds of sources, like this one here, for example, has many hundreds of mining sources, because mining took place over a century with different owners and at different times.

[00:21:00] Speaker 00:
But think of a common industrial plant.

[00:21:03] Speaker 00:
Their approach would have EPA score every barrel of leaking hazardous substances before listing that site as a whole.

[00:21:10] Speaker 00:
I mean, that isn't the law, and it would lead to untoward consequences.

[00:21:16] Speaker 00:
The HRS assessment process is supposed to be a quick and inexpensive way for EPA to evaluate relative risk.

[00:21:24] Speaker 03:
A more generous view of their position is, look, I'm an owner.

[00:21:28] Speaker 03:
And this is a whole lot of property.

[00:21:30] Speaker 03:
I'm upstream.

[00:21:32] Speaker 03:
And we understand, for convenience sake, you want to have a site that includes multiple sources.

[00:21:37] Speaker 03:
Just don't put us in the site.

[00:21:39] Speaker 03:
We're upstream.

[00:21:40] Speaker 03:
We're not doing anything now.

[00:21:41] Speaker 03:
We're contributing nothing.

[00:21:43] Speaker 03:
So cut the line of the site south of us, if you don't mind.

[00:21:47] Speaker 03:
And then we'll be perfectly happy, and we'll applaud your efforts.

[00:21:50] Speaker 00:
Right.

[00:21:51] Speaker 00:
It seems as though they're arguing for a checkerboard approach, where their individual mind would be omitted

[00:21:56] Speaker 00:
because they claim that they've done some remedial work in the past.

[00:21:59] Speaker 00:
There is no basis for that.

[00:22:01] Speaker 00:
There is no record evidence that the contamination that was contributed to by the Sunnyside mine has been fully contained.

[00:22:08] Speaker 03:
Indeed, the Sunnyside mine... Is that a critical consideration?

[00:22:11] Speaker 00:
If EPA had scored that source, it would have needed to assess whether it was contained.

[00:22:19] Speaker 00:
I'm saying as an equitable matter here.

[00:22:22] Speaker 03:
No, is it a critical consideration that they are still contributing to some extent to the problem, or is your answer that we know that in the past they did and that's enough?

[00:22:33] Speaker 03:
Which is it?

[00:22:34] Speaker 00:
It's – we know that in the past they did, and that's enough.

[00:22:36] Speaker 00:
I know.

[00:22:36] Speaker 03:
That's – I knew you would say that.

[00:22:37] Speaker 03:
Right.

[00:22:38] Speaker 03:
That's all – in your view, that's all you need.

[00:22:40] Speaker 00:
Yes.

[00:22:40] Speaker 03:
They did it in the past.

[00:22:42] Speaker 03:
We don't have to look at it anymore.

[00:22:43] Speaker 00:
Historical contamination that is still present is enough.

[00:22:48] Speaker 00:
And here, the Sunnyside Mine contributed historical contamination.

[00:22:52] Speaker 04:
What you just said would be – still be true if they currently remediated it completely.

[00:22:59] Speaker 04:
So – The substances would still be present.

[00:23:03] Speaker 04:
But they wouldn't have been the source.

[00:23:05] Speaker 00:
It's possible that they could perhaps remediate aspects of the mind itself, but because of the nature of the contamination here.

[00:23:13] Speaker 00:
For example, when the Lake Emma collapsed, it was a dozen-acre lake that drained through the Sunnyside mine, spilling hazardous wastes through the entire valley.

[00:23:24] Speaker 00:
That, too, would have to be remediated, not just a single tailings pile.

[00:23:28] Speaker 00:
You have to take into account the remediation of the contamination that this source has caused.

[00:23:35] Speaker 00:
And another point here is that...

[00:23:38] Speaker 00:
Sorry?

[00:23:38] Speaker 04:
When did that happen?

[00:23:40] Speaker 00:
So the historical contamination... No, no, the event you just described.

[00:23:44] Speaker 00:
So the Lake Emma, it's documented in the... at JA 141 as part of the HRS stock record.

[00:23:51] Speaker 00:
That happened in 1978.

[00:23:55] Speaker 00:
So it was before this present corporation purchased the mine, but they were aware at the time of purchase that this contamination had taken place.

[00:24:04] Speaker 00:
And the Sunnyside Mine is also, it's worth noting, physically connected with a number of the other mine workings, because we're looking at a caldera here, so it's the inside of a mountain.

[00:24:15] Speaker 00:
And the Sunnyside Mine is physically connected through mining tunnels,

[00:24:18] Speaker 00:
like the Terry Tunnel and the American Tunnel, but also through fissures and the rock itself.

[00:24:23] Speaker 00:
The rock is not solid, so water can move over and around bulkheads.

[00:24:28] Speaker 00:
It can move from one mine to another mine.

[00:24:31] Speaker 00:
And so there's no basis for excluding the Sunnyside Mine here, given that it's physically connected with some of the other scored sources.

[00:24:40] Speaker 04:
Why was it not feasible to score this mine?

[00:24:46] Speaker 00:
At the time that the listing was being undertaken, EPA did not have

[00:24:51] Speaker 00:
current waste quantity information of the precise amount of hazardous waste that remained at the mine and then it did not have a current chemical analysis of the release that was being emitted.

[00:25:04] Speaker 00:
What it did have was documentation that the Sunnyside mine and also all the other possible sources were involved in the same mining activities in the same geological formation and created the same wastes and were uncontained.

[00:25:19] Speaker 00:
So, that was sufficient to include those and provide notice to those parties.

[00:25:27] Speaker 04:
That may have been sufficient, but why wasn't it feasible to do more?

[00:25:31] Speaker 00:
So, EPA could have gone out in the field and done this, but once it reached... Isn't that... That's the statute, right?

[00:25:38] Speaker 04:
Not the right.

[00:25:40] Speaker 00:
So, make everything feasible.

[00:25:42] Speaker 00:
The statute, it's within the realm of possibility.

[00:25:46] Speaker 00:
Once EPA reached the 28.5 threshold for listing, it was not required by the regulation or this Court's precedents to go further.

[00:25:56] Speaker 03:
This Court held... That's your site source argument.

[00:25:58] Speaker 03:
I'm sorry?

[00:25:59] Speaker 03:
That is your site source argument.

[00:26:01] Speaker 00:
That is the site source argument, and it's also based on this Court's precedents.

[00:26:04] Speaker 00:
In the CTS Court, for example, where it said EPA's analysis

[00:26:07] Speaker 00:
need not be exhaustive.

[00:26:09] Speaker 00:
It need not apply every single methodology to determine the scope of contamination, because the process here is supposed to be quick and inexpensive.

[00:26:17] Speaker 00:
The precise scope of contamination is determined at later phases.

[00:26:23] Speaker 04:
Well, I think from the impression we got from counsel for the petitioners here,

[00:26:30] Speaker 04:
The NPL is sort of a roach motel, right?

[00:26:32] Speaker 04:
You go in and you don't come out, at least not with your money, because you're going to be held liable one way or another for some of the damage.

[00:26:42] Speaker 00:
There is certainly a concern about liability from petitioners, but liability is not addressed at this stage of the process.

[00:26:51] Speaker 00:
That is considered later.

[00:26:52] Speaker 04:
I understand that, but it does suggest that feasibility be taken seriously.

[00:26:57] Speaker 00:
And EPA does take feasibility seriously.

[00:27:00] Speaker 00:
Keep in mind, too, that these mines are located at upwards of 10,000 feet, so they're very, very high.

[00:27:07] Speaker 00:
Sampling of these sources often requires chartering a helicopter and landing it on the, this is the mine top, so it's very difficult to get to.

[00:27:15] Speaker 00:
Also, there's a very limited time when you can actually observe these releases because of what they call the work season, because it's frozen solid for much of the year.

[00:27:25] Speaker 00:
So EPA has a small frame of time where it can get out in the field.

[00:27:30] Speaker 00:
And because this site in particular is releasing so many hazardous substances, it was of utmost concern that it be listed as soon as practicable.

[00:27:40] Speaker 00:
And once EPA reached the 28.5 threshold, and indeed nearly doubled it, it was appropriate then for EPA to take the next step of listing and then begin work in the field.

[00:27:52] Speaker 00:
once it had access to that funding that was available after the listing occurred.

[00:27:58] Speaker 04:
So listing it as soon as practicable, is that the standard?

[00:28:03] Speaker 00:
That is not the standard in the statute.

[00:28:05] Speaker 00:
I'm saying that here as a practical matter, assessing each and every mine that was listed here as other possible sources would have taken a considerable amount of time.

[00:28:14] Speaker 00:
It's also would have not had any ability to impact the HRS score because, as I said earlier, the surface water pathway which EPA assessed had already been maxed out.

[00:28:25] Speaker 00:
So there was no way for it to alter the score.

[00:28:29] Speaker 00:
It would have been going out in the field and doing this chemical test in a way that could not impact the overall HRS score.

[00:28:37] Speaker 00:
And EPA will assess those minds.

[00:28:39] Speaker 00:
Indeed, it is doing work in the field now.

[00:28:43] Speaker 00:
to assess that precise scope of contamination.

[00:28:47] Speaker 00:
When we're thinking about the listing process, depending on the size of the site, there's always more work that could be done in assessing each and every source.

[00:28:58] Speaker 03:
So I mean, you're rising and falling on the legal position that your regulation clearly distinguishes sites and sources, and that in determining a site,

[00:29:10] Speaker 03:
You have acted consistently with regulation and the statute by considering whether these sources are physically connected, same geological area, and contributors to the overall problem.

[00:29:22] Speaker 03:
That's what your argument is?

[00:29:24] Speaker 00:
So our argument is that we've acted consistent with the statute in scoring these sources, all of which contribute to the single problem of... No, I'm talking about the creation of the site.

[00:29:34] Speaker 00:
The creation of the site.

[00:29:35] Speaker 03:
There's got to be an obligation.

[00:29:36] Speaker 03:
There's got to be some kind of principles that you have to follow to determine the site.

[00:29:43] Speaker 00:
Right.

[00:29:43] Speaker 03:
And as I understand your argument, you're saying consistently with the statute, we can determine the site.

[00:29:48] Speaker 03:
You have a statutory, you have a test that you follow.

[00:29:51] Speaker 03:
Right.

[00:29:52] Speaker 03:
Which includes things like physically connected, geographical area, contributors to the problem.

[00:29:57] Speaker 00:
Right.

[00:29:58] Speaker 03:
I'm not using your words, but those are the notions.

[00:30:01] Speaker 00:
And we consider all of that in another aspect.

[00:30:04] Speaker 03:
I mean, what you're saying is an answer to our question.

[00:30:07] Speaker 03:
So all of this stuff about the sources within.

[00:30:10] Speaker 03:
are of no moment under established precedent.

[00:30:12] Speaker 03:
Our regulation is there, it says what it says, and they can't challenge it now.

[00:30:16] Speaker 00:
Right, and they haven't even attempted to do so.

[00:30:19] Speaker 00:
Yes, that's true.

[00:30:19] Speaker 00:
Another consideration in taking into account how the site was created is that the HRS itself, when analyzing the surface water contamination pathway, repeatedly looks to the watershed as a whole.

[00:30:31] Speaker 00:
And that's in section four of the HRS.

[00:30:34] Speaker 00:
And that makes sense here, too, because what we have is the headwaters region of this watershed.

[00:30:39] Speaker 00:
So taking into account that the contamination is widespread throughout this headwaters region, there really is no way of addressing the problem by nitpicking individual sources.

[00:30:52] Speaker 00:
It has to be looked at as a whole.

[00:30:54] Speaker 00:
And as I mentioned earlier, we have the scored sources and the unscored possible sources.

[00:31:00] Speaker 00:
There are many other sources there that haven't both known and unknown.

[00:31:06] Speaker 00:
EPA documented the unscored sources here

[00:31:09] Speaker 00:
to provide those parties notice that their parcel was part of this area.

[00:31:15] Speaker 03:
The other part of your argument is the liability determination is circular 106, 107, and they can raise defenses.

[00:31:22] Speaker 00:
Exactly, and that can happen at a later phase.

[00:31:24] Speaker 03:
Ownership, acts of God, et cetera, right?

[00:31:26] Speaker 00:
Exactly.

[00:31:26] Speaker 00:
There are other defenses available to them.

[00:31:28] Speaker 00:
They are not automatically liable as a result of the listing.

[00:31:38] Speaker 03:
You don't have to take your last 30 seconds.

[00:31:40] Speaker 00:
If the panel has no further questions, I ask that the court deny the petition for review.

[00:31:45] Speaker 03:
Okay, thank you.

[00:31:46] Speaker 03:
How much time does he have?

[00:31:49] Speaker 03:
Give me two minutes, counsel.

[00:31:50] Speaker 03:
Okay.

[00:31:54] Speaker 02:
I'll be brief.

[00:31:54] Speaker 02:
There's a map on page 20 of EPA's brief that is what this site should look like.

[00:31:59] Speaker 02:
That's the score sources and the rivers that flow down from it.

[00:32:03] Speaker 02:
The idea that you can list now and we'll sort it out later has been rejected by this court.

[00:32:09] Speaker 02:
You've got to follow the procedures for listing.

[00:32:12] Speaker 02:
There was no good answer to the court's question about why wasn't this feasible to score our property.

[00:32:19] Speaker 02:
EPA has been studying this area for 20 years.

[00:32:21] Speaker 02:
There's just absolutely nothing in the record about helicopters or short seasons or why there was no ability to score it before it was listed.

[00:32:30] Speaker 02:
That's a post hoc rationalization that ought to be rejected.

[00:32:34] Speaker 02:
The truth is there's no evidence in the record that the Sunnyside Mine is a source, that it is a release, that it is something contributing to hazardous material in this area.

[00:32:45] Speaker 02:
And yet EPA has listed it.

[00:32:47] Speaker 02:
And when you list property without assessing it, scoring it, you deprive the property owner of the ability to consider what's been done and to fight the listing of where they're ending up.

[00:32:57] Speaker 02:
The idea that we'll just take care of it in Section 106 or 107

[00:33:01] Speaker 02:
That's a lot of money and time and angst down the road that could be avoided now if the listing was done right.

[00:33:08] Speaker 03:
Thank you.