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Case number 14-1290, Troy Chemical Corporation Petitioner versus Environmental Protection Agency.

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Mr. Goldberg for the petitioner, Ms.

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Chen for the respondent.

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Good morning, Council.

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We'll hear from Mr. Goldberg on behalf of Troy Chemical Petitioner.

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Good morning, your honor.

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Thank you very much.

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It's great to be able to see everyone.

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This is an appeal from the inclusion on the national priorities list of the Pearson's Creek site in Newark, New Jersey.

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EPA listed that site based on two factors.

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First, an asserted threat to 0.15 miles of wetland frontage along Pearson's Creek.

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And second, an asserted threat to the human food chain.

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based upon fishing observed at a pier in Brooklyn, 13 miles away from the presumed point of release across Newark Bay and New York Harbor.

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It's important to recognize that EPA doesn't dispute.

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For this site to qualify to be listed, both factors must be scored in the way that EPA scored them.

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If either of these two factors fail scrutiny, the listing must be vacated.

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On the rulemaking record, neither factor justifies the score that EPA gave it under the hazard ranking system.

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And that's what I will explain this morning.

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Turning first to the wetlands issue, the principal issue before the court is a straightforward question of administrative procedure.

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Did EPA provide adequate information at the proposal stage for Troy and others to meaningfully comment?

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as our brief points out.

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Suppose we agree with you that the disclosure was inadequate.

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Don't you still have to show prejudice, which is to say some possibility that greater disclosure might have impacted the bottom line?

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Yes, Your Honor, and I have no doubt that we can make that showing.

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What would you have done differently

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You knew exactly where the wetland was.

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The only thing you didn't know was the precise location of the soil bores and you didn't have the pictures.

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So let's assume you had both those things and we're still in the rulemaking and you're formulating your comments.

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What would you do differently to make your case that this is not a 0.1 mile wetland?

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First, Your Honor, we would have looked at the way in which EPA viewed the New Jersey determination that there is no wetland along the frontage of Pearson's Creek.

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That is both mischaracterized and inadequately explained in the documents that EPA presented.

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Second, with the additional information provided in the 90 pages of support that EPA provided with the final rule, but not at the proposal,

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we would have been able to, first of all, verify whether each of the 18 flag locations and each of the soil borings, in fact, one, had wetlands vegetation, and two, that the frontage is continuous.

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It's really important to recognize that in this situation, yes?

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I mean, you now have the photos.

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Let's just talk about those.

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You've seen them.

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Is there anything in the photos that would strengthen your case that this is not a contiguous wetland over that tenth of a mile?

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No, I don't believe there's anything in the photos, but your honor, because this record has been closed, we haven't gone to consult our experts about what's in those photos.

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And most importantly, the EPA needs to demonstrate that there's at least 0.1 mile of wetlands frontage.

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There's plenty of evidence in this updated record indicating

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The creek is filled with debris.

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The flow is impeded.

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There's been industrialization and disturbed soils.

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We didn't have any of that back in the time of the proposal.

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And in fact, we might, given this record,

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have commissioned their own wetlands experts to go verify EPA's finding.

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That we could do based on the supplemental record.

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We couldn't do that based on the fuzzy pink line on the map that EPA provided at the time of the proposal.

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Wouldn't you have had more incentive to seek to do your own study and to seek to gain access to the property at issue

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previously on the record that you had, which is less than on a record that has more?

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You know, Your Honor, I think that in this setting, what EPA is trying to do is reverse the burdens in the rulemaking.

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It's EPA's burden to move forward.

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We, in fact, went to EPA and said, hey, is there more information?

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And we were told, no, there isn't.

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And so we

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had to assume that the complete record that EPA relied upon was what was in the rulemaking.

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We can say that they said, no, there isn't.

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Where is that in the record that they have representation?

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On page 77 of the Joint Dependix, footnote three to our comments to EPA in response to the proposal.

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It's also mentioned in our briefs, Your Honor.

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You know, it's EPA's burden to move forward and to provide adequate evidence to support its proposal.

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And what we said in our comments was there's not enough information to delineate the wetlands provided.

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Why doesn't the guidebook put aside the procedural error just in terms of whether their determination is supported by the record?

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Why isn't the guidebook sufficient support?

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They have nine soil borers.

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They examine all of them.

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They're experts on the scene.

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They explain what they see and they show three positives which cover most of the segments.

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at issue and they explain that the negatives are up the slope from the wetland, which seems to suggest they're coming back negative, not because the vegetation is changing every hundredth of a mile, but because those bores are too far up the hill.

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I mean, wouldn't we say that's good enough if we were just reviewing the adequacy of the bottom line judgment?

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Under the circumstances, Your Honor, I don't believe that is adequate because what we're looking at is a wetland that barely exceeds the 0.1 minimum distance.

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Having three borings, EPA itself makes clear it's not adequate.

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They rely on 18 flag locations.

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But the flag locations, the record at the final rule makes clear only looked at vegetation.

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not the three characteristics that are required in New Jersey, hydrology, geology, or soils, and vegetation.

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And so it requires the 18 flags as well as the borings.

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And we have no idea where the flags are or if the vegetation at those flags or the soils or the hydrology meet the requirements in the guidance.

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And so is there any reason to think that vegetation would shift?

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We're talking about 100, 200 feet on the margin here.

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I'm not a scientist, but just intuitively would think that you're not likely to see huge variances.

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one football field down the river, the creek.

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With deference, your honor, I think that's a question that our experts should have an opportunity to respond to.

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They should have an opportunity to look, especially in what EPA recognizes and Troy recognizes is an urbanized area where there's a lot of disturbance along the creek, where there's debris and there's all kinds of industrial activity and a finding by the state that there is no wetland.

[00:09:19] Speaker 02:
Well, the finding has expired, right, by its own terms.

[00:09:23] Speaker 04:
Well, the finding would have allowed construction without violating the Clean Water Act.

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In other words, without being considered to be filling wetlands up to 10 months before EPA's field work.

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I mean, in theory, it's expired, as EPA points out in his brief, but that's not, you know, if Judge Kansas's question, how quickly will things change?

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Over 10 months, the idea that

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Well, yesterday, 10 months ago, there wasn't a wetland, and today there is a jurisdictional wetland.

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To me is a very difficult leap for... But how can you rest an argument on a determination that has no legal validity at the time of the comment, at the time of EPA's posting?

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I'm not, we're not suggesting that it's about the legal validity, Judge Wilkins.

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We are suggesting that the observations by New Jersey, the recognized expert on wetlands in that area should be addressed by EPA.

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Where EPA to have said, well, we've looked at this and that New Jersey has missed something.

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Maybe things have changed over time.

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But what the record says is we don't have to worry about that because it says there's an open channel.

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I mean, it seems to me that if New Jersey had issued a letter that said that this is a wetland and EPA relied on it, you would be here arguing that it has no legal relevance at all because it had expired.

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And I would think that that would be a pretty good argument.

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So I'm just trying to get to the nub of the issue here, which is that I don't see it would be reasonable for an agency to ignore that letter under the circumstances, wouldn't it?

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Well, again, Your Honor, the NPL listing process, as this court has recognized, involves the application of the hazard ranking system to particular facts.

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The state of New Jersey made a finding about facts.

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That finding may have expired by the time of EPA's field work, but the observations remain valid.

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And therefore, there is an obligation on the part of EPA to consider the factual predicate that formed the basis for the New Jersey determination.

[00:12:10] Speaker 03:
Mr. Goldberg, I'm not clear about what prevented you or your experts from taking soil samples or core samples or examining the vegetation or noticing that there was a great deal of debris

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that's had accumulated over the years in the creek what prevented you from your experts from making that case so we would have had to obtain access but that may have been doable i can't say that we were absolutely 100 prevented from is that is is the creek a navigable waterway um

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Given the Clean Water Act definition, it probably is as a practical matter.

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Who owns the creek bed?

[00:13:00] Speaker 04:
I don't know.

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I mean, below Troy, when it crossed Troy's property and it was still a creek, there was an easement in favor of the city of Newark.

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The reason I'm asking that is because if it is a navigable waterway, and I assume it's a tidal creek,

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The state and private property owners could not prevent your experts from traveling down that creek on a boat and getting out into the mud and taking soil samples.

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Well, you know, Your Honor, the record is pretty clear that the only way to get access is through the property south of Troy through 429 Delancey.

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That's what EPA, that's why EPA's contractors had to return to the site with EPA representatives to use EPA's authority to get access.

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I'm not saying it's impossible.

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as to why we didn't.

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Again, this is a matter of the rulemaking process and EPA cutting square corners with its rulemaking.

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It was EPA's burden in the first instance to do more than paint the line on a map and say, now you go prove we're wrong, fellas.

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And, you know, that's the scenario that

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I think Judge Randolph, you're spinning out here that we may, you know, once EPA says this might be a wetland, then it becomes the burden of the responding parties to prove that it's not.

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Again, this is a notice and comment rulemaking.

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EPA needed to provide adequate information in its proposal to support the position that it wanted to take and to allow interested parties to comment.

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And that's our position.

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And so we didn't seek access at the time, although now I can assure you that if this is

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If the court vacates the decision and EPA decides it wants to continue to list the site and it decides it wants to continue to list the site based upon wetland, we'll have people in waiters or a boat going to verify whatever the current state of that wetland or the creek banks are and to determine whether or not it is in fact a wetland.

[00:15:19] Speaker 02:
Given your time is about to expire, do you want to say anything briefly about your other issues?

[00:15:25] Speaker 04:
Yes, Your Honor.

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The other issue raises a separate administrative law question, but one that's no less serious.

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And that is where there's record evidence contrary to the assumptions in the hazard ranking system, EPA is obligated to consider that evidence.

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In this case, Troy presented evidence in the record, including all kinds of technical documentation, indicating that it is implausible.

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for contamination from Pearsons Creek to be a factor at a fishery 13 miles away on the American Veterans Memorial Pier in Brooklyn.

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EPA never responded.

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Mr. Goldberg, may I interrupt you there?

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In your reply brief, you seemed to indicate that you were challenging the validity of that regulation.

[00:16:18] Speaker 00:
Your Honor.

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Correct?

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The 15-mile limit.

[00:16:24] Speaker 04:
There is, we see there being a hierarchy of ways the court could decide this case.

[00:16:30] Speaker 04:
One is to say that the EPA's interpretation of its regulation is arbitrary and capricious because it's contrary to the purpose of the HRS, it's contrary to the preamble of the HRS, and because this court, in multiple decisions, including several cited in our briefs, have said that assumptions must yield where there is record evidence to the contrary.

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In the event that the court finds that EPA is correct, as it argues on page 25 of its brief, that this is the only permissible interpretation, that the HRS needs to be applied literally and rotely in every situation, then as applied, we believe this factor of the HRS is contrary to the underlying statute and therefore, as applied in this case, is invalid.

[00:17:22] Speaker 03:
Okay, so EPA says you're too late.

[00:17:25] Speaker 03:
The regulation was promulgated in 1990, I think, and you had 90 days.

[00:17:31] Speaker 03:
Did Troy own this property at the time this regulation was promulgated?

[00:17:38] Speaker 04:
Yes, Your Honor.

[00:17:39] Speaker 04:
The regulation was promulgated in the mid-80s, and Troy came into existence and owned its property in 1980.

[00:17:46] Speaker 03:
So what's your argument regarding why you didn't have to check

[00:17:51] Speaker 03:
comply with the 90 day review period?

[00:17:55] Speaker 04:
Fair question, your honor.

[00:17:56] Speaker 04:
I think this situation fits squarely within the line of cases by this court, recognizing that later challenges can be recognized.

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Most recently, the court recognized it in the NPL context in the genuine parts case in 2018, where the particular application

[00:18:20] Speaker 04:
is not something that could have been contemplated at the time.

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And so we feel that there's ample basis for the court to look at the validity of this factor of the HRS as applied in this case under the genuine parts and other precedent for allowing later challenges.

[00:18:49] Speaker 02:
All right.

[00:18:53] Speaker 02:
Judge Katz, Judge Randolph, do you have any further questions?

[00:18:58] Speaker 02:
No.

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All right.

[00:19:00] Speaker 02:
Thank you.

[00:19:01] Speaker 02:
We'll give you some time on reply.

[00:19:03] Speaker 02:
Mr. Goldberg will hear from Ms.

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Chen.

[00:19:10] Speaker 05:
Thanks.

[00:19:10] Speaker 05:
Good morning, and may it please the court, Sue Chen for the United States.

[00:19:14] Speaker 05:
There's no dispute that there is at least 7,300 pounds of mercury at the Pearsons Creek site.

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And in scoring the site, EPA disclosed detailed documentation supporting the wetland score.

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And it also accounted for potential mercury migration in threatened fishing grounds.

[00:19:31] Speaker 05:
First, the wetland.

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And I'll talk first about the disclosure aspect and then EPA support for the wetland delineation.

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At proposal, EPA put Troy on notice of the wetland that's the basis for the wetlands score.

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It provided sufficient factual detail for informed commenting by disclosing the wetlands location and length.

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It also disclosed the logbook and data forms, which provide detailed documentation of the areas, hydrology and vegetation and soil conditions.

[00:20:03] Speaker 05:
There is no requirement to also disclose that documentation in photographic form.

[00:20:09] Speaker 01:
Why not give them the location of the soil bores?

[00:20:14] Speaker 05:
Because those GPS coordinates add no meaningful information that could affect the score.

[00:20:21] Speaker 01:
What matters... Why not?

[00:20:25] Speaker 01:
This case is on the razor's edge.

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This designation rises or falls on 300 feet of difference.

[00:20:36] Speaker 01:
There's a difference between 0.1 miles and 0.15 miles.

[00:20:43] Speaker 01:
Presumably you think there can be variance within a range of a couple of hundred feet because I assume you didn't put in nine soil bores for nothing and six of them are coming back negative.

[00:20:59] Speaker 05:
Two points on that.

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The first is the margin of error is actually not as small as you think because

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You need only a 0.1 mile stretch in the zone of actual contamination.

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We had 0.15.

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So I'm sorry.

[00:21:13] Speaker 01:
So the difference is 0.05.

[00:21:16] Speaker 05:
Right, but on the map that line can be up to a third shorter and it will not make any difference to the score.

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The second point is what matters for the wetland score is that 0.15 mile stretch in the contaminated zone and that information was disclosed at proposal.

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There was a map at JA 36 which is reproduced in our brief.

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It shows you the wetland in pink and the contamination in yellow.

[00:21:41] Speaker 05:
There's a law book and the data forms.

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and the log book at JA 493 along with the data forms tell you that there are three locations, there's three soil sample locations on.

[00:21:54] Speaker 01:
And six or seven that are negative.

[00:21:57] Speaker 01:
Right.

[00:21:58] Speaker 01:
In that context where you're talking about what seems to be

[00:22:06] Speaker 01:
a pretty small amount of land as far as geology or hydrology goes and different results as you move down that segment, most of which are negative, it would seem like the difference between a few hundred feet here or there could be critical.

[00:22:28] Speaker 05:
So I think there's a misunderstanding about how the soil boring locations are used.

[00:22:33] Speaker 05:
So let me skip ahead and talk about the basis for EPA's wetland delineation, but I do want to return to the GPS coordinates.

[00:22:40] Speaker 05:
So EPA's basis for concluding that the wetland exists and its continuity is a holistic analysis by the wetland scientists based on his observations.

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So what happens at these delineations is that the wetland scientist is on the scene,

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He sees something that looks kind of like a wetland, and he's going to take a closer look.

[00:23:01] Speaker 05:
He's going to look at the hydrology.

[00:23:02] Speaker 05:
He's going to look at the vegetation.

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And he's going to take a soil sample to check out the soil conditions.

[00:23:09] Speaker 05:
And let's say he decides based on his professional judgment that that location is a wetland.

[00:23:15] Speaker 05:
The next thing he does is he's going to look around and see how long does this wetland continue on for.

[00:23:22] Speaker 05:
Now, if the next 30 feet look like the location that he just said is a wetland, then he's probably not going to do anything.

[00:23:29] Speaker 05:
But if at 35 feet, things start to change and look different, he's going to take a closer look.

[00:23:35] Speaker 05:
And that might involve taking another soil sample.

[00:23:38] Speaker 01:
So the fact that that fact cuts against you because that

[00:23:44] Speaker 01:
expert making all of those judgments that you summarize shows to take nine different samples.

[00:23:54] Speaker 05:
He is taking different samples to see where the wetland ends.

[00:24:00] Speaker 05:
He needs to take samples both in the area that he thinks is a wetland and areas that he thinks he's not.

[00:24:06] Speaker 05:
That's not because the main goal of the wetland delineation is to figure out where the wetland begins and ends.

[00:24:13] Speaker 05:
He can't take soil samples from just what areas he thinks are wetlands because that doesn't tell him about where the wetland ends.

[00:24:22] Speaker 05:
So I mean, Choi is talking about how these soil sample locations are not next to each other while they're not supposed to be.

[00:24:30] Speaker 05:
That's not how the wetland inlineation works.

[00:24:34] Speaker 01:
No, I understand that, but it seems like his expert judgment is he needs granular information at the level of hundreds of feet.

[00:24:51] Speaker 01:
Because as you say,

[00:24:53] Speaker 01:
might have been his expert judgment that he looks at one point in a 10th of a mile segment and he knows that vegetation doesn't change within 0.05 of a mile.

[00:25:06] Speaker 01:
So he says, good enough, I'm done.

[00:25:09] Speaker 01:
But he didn't do that.

[00:25:11] Speaker 01:
He kept testing different bores and the results came back mixed.

[00:25:20] Speaker 01:
Six of them were negative.

[00:25:22] Speaker 05:
Right, and those areas are not part of the wetland.

[00:25:25] Speaker 05:
But in the area that he saw were wetland, he put down wetland flags.

[00:25:29] Speaker 05:
And I mean, that's the area that he's decided are wetland.

[00:25:35] Speaker 05:
The soil borings that showed up where he concluded is not a wetland are not part of the pink line that you see on the map.

[00:25:44] Speaker 01:
It just seems like it's a pretty marginal determination where the detail might have mattered.

[00:25:53] Speaker 05:
and he took account of the details.

[00:25:56] Speaker 05:
The whole point of this exercise is to figure out.

[00:25:59] Speaker 01:
But your friends on the other side couldn't, didn't appreciate the full significance of, didn't have all the facts that bore on, you know, what do you make out of the fact that six out of the 10 or nine

[00:26:16] Speaker 01:
soil pores are coming back negative.

[00:26:18] Speaker 01:
And I understand your theory.

[00:26:20] Speaker 01:
Your theory is, well, those spores are too far up the hill from the stream, but maybe not.

[00:26:27] Speaker 01:
Maybe they're coming back negative because the wetland areas instead of being 0.1 or 0.01.

[00:26:40] Speaker 05:
Well, you look at the

[00:26:44] Speaker 05:
data forms that tell you the wetland conditions in those areas.

[00:26:49] Speaker 05:
There's also the log book at JA-492 that summarizes the wetland scientists' observations about that wetland along the creek.

[00:26:59] Speaker 05:
And you see the pink line that is drawn up there based on the GPS coordinates that EPA collected at the scene.

[00:27:09] Speaker 05:
So that's how you know that

[00:27:11] Speaker 05:
EPA determined this is a 0.15 mile stretch.

[00:27:16] Speaker 02:
What in the original disclosure described how the EPA determined that the 1.15 mile area was actually contiguous

[00:27:36] Speaker 05:
So if you look at the map at two places.

[00:27:38] Speaker 05:
If you look at the map at J 36 the key tells you that the wetland is shown in pink.

[00:27:44] Speaker 05:
And the line that represents the wetland is a continuous pink line.

[00:27:48] Speaker 05:
So that tells people that EPA things that there is a continuous stretch of wetland.

[00:27:53] Speaker 05:
Then you look at J 492 which is in a log book.

[00:27:57] Speaker 05:
that talks about a small fringe wetland at the base of a steep slope along the East edge of Pearson's Creek.

[00:28:03] Speaker 05:
And then it describes where that is on the 429, the Lansley property.

[00:28:07] Speaker 05:
The other thing I'll note is that again, this is a wetland delineation.

[00:28:12] Speaker 02:
My question to you was what in that original disclosure tells why and how EPA determined that it was continuous.

[00:28:25] Speaker 05:
It's based on the data forms for the soil sample locations and also the log book, which tells you about that wetland along the east edge of Pearson's Creek.

[00:28:42] Speaker 05:
That's the documentation.

[00:28:43] Speaker 05:
And again, the context is important because if EPA had seen discontinuities, it would have noted that.

[00:28:50] Speaker 05:
It noted the places when it took soil sample locations that are not wetlands.

[00:28:57] Speaker 05:
So but going back to the GPS, I just wanted to make clear that you know from the log book that there are three soil sample locations that are on the wetland.

[00:29:10] Speaker 05:
There are SB 1, 4, and 7.

[00:29:12] Speaker 05:
So by that fact, you know that these three locations are on the pink line that represents the wetland in the map.

[00:29:19] Speaker 05:
And so all that the GPS coordinates tell you is their exact placement on the pink line, which doesn't help you with disproving the wetland and it does not otherwise affect the score.

[00:29:34] Speaker 01:
No, but if you look at the map,

[00:29:38] Speaker 01:
with the GPS coordinates, it likewise shows the six other coordinates seem to be right at the stream as well.

[00:29:51] Speaker 05:
They're very close.

[00:29:53] Speaker 05:
And I do want to take this opportunity to respond to Troy's argument about SB 8, which they say lacks wetland characteristics,

[00:30:01] Speaker 05:
But it's shown as being on the wetland in this map at J379 that you just pointed out, Judge Kotz says.

[00:30:09] Speaker 05:
And setting aside the fact that Troy weighed this argument by not including it in the opening brief, SB 8 is actually a good illustration of another reason why GPS coordinates are not helpful here.

[00:30:21] Speaker 05:
If you look at the data form for SBA, which is at JA508 to 509, it tells you that this location is, quote, five feet from creek on steep slope.

[00:30:33] Speaker 05:
So what happened here is that the horizontal distance between SBA and the wetland was pretty close.

[00:30:40] Speaker 05:
And that's why on the map, it's showing up as being on the wetland.

[00:30:45] Speaker 05:
But in reality,

[00:30:47] Speaker 05:
SBA is actually sitting above the wetland on that steep slope.

[00:30:51] Speaker 05:
The problem, of course, is that GPS coordinates don't tell you elevation, just longitude and latitude.

[00:30:57] Speaker 05:
And so when it's trying to represent this three-dimensional world on a two-dimensional plane, sometimes as here, it can be misleading.

[00:31:05] Speaker 05:
But we do have that three.

[00:31:08] Speaker 01:
Yeah, I understand that.

[00:31:09] Speaker 01:
And it is a plausible reading of the guidebook

[00:31:16] Speaker 01:
that the results that are coming back negative are coming back negative because the soil bore is elevated from the stream.

[00:31:28] Speaker 01:
But that doesn't seem self-evident and you were the target of this designation.

[00:31:40] Speaker 01:
I would think you would surely be interested in exploring whether those

[00:31:46] Speaker 01:
results are coming back negative because the bore is higher than the stream bed or whether they're coming back negative because the vegetation is just changing.

[00:31:57] Speaker 05:
Well actually you do know that information because there are data forms for every single soil boring location that describes where that location is.

[00:32:07] Speaker 05:
It also documents in a lot of detail the hydrology and vegetation and soil conditions and

[00:32:14] Speaker 05:
So that gives you a lot of information about why that area might not be a wetland.

[00:32:23] Speaker 05:
Turning now to the food chain thread, unless there are any more questions on the wetland.

[00:32:31] Speaker 05:
EPA accounted for a potential mercury migration over this 15-mile target distance limit in two ways.

[00:32:39] Speaker 05:
First of all, in the response to comments, EPA explained that during major storms,

[00:32:44] Speaker 05:
Pearson's Creek flows very fast and the mercury contaminated sediments are not contained.

[00:32:51] Speaker 05:
There is the potential that the creek is washing out those sediments into Pearson's Creek and the rest of the estuary, which in the middle of a major storm is not going to be sitting still either.

[00:33:03] Speaker 05:
Troy's calculation at JA-96 ignores movement in a channel.

[00:33:07] Speaker 05:
They're assuming that water stays still in a major storm in a channel and the estuary.

[00:33:14] Speaker 05:
EPA has shown potential mercury migration in this limit.

[00:33:20] Speaker 05:
The other way that EPA has shown that is that its regulations on scoring the food chain threat reflect the agency's judgment that mercury release

[00:33:30] Speaker 05:
can potentially migrate 15 miles downstream and threaten the fishery.

[00:33:36] Speaker 05:
Back when EPA promulgated these regulations, it had to decide where to draw the line.

[00:33:42] Speaker 05:
And to make that decision, one of the factors it considered was how far a contaminant can travel downstream before being diluted to a point where it's no longer important in the risk analysis.

[00:33:55] Speaker 03:
Does it matter what the contaminant is?

[00:33:58] Speaker 05:
It does, and so elsewhere in the score, there's this thing called the persistence factor for each substance that accounts for how likely it'll degrade in that 15 miles.

[00:34:09] Speaker 05:
And as we noted in our brief, mercury is among the most persistent factors that EPA encounters at these sites.

[00:34:16] Speaker 05:
So there's not gonna be a lot of degradation over the 15 miles.

[00:34:20] Speaker 05:
And let me just respond to Troy's point about challenging- Excuse me, this is the regulation,

[00:34:26] Speaker 03:
4.1.3, is that right?

[00:34:30] Speaker 05:
So there are two regulations.

[00:34:32] Speaker 05:
The actual food chain score is 4.1.3.3.1.

[00:34:35] Speaker 03:
Do you realize that in your addendum, with that part 500 regulation, the only thing you left out is 4.1.3?

[00:34:50] Speaker 05:
I am pretty sure we included the exact regulation.

[00:34:53] Speaker 05:
We might not have included the 4.1.3, which is the more general regulation.

[00:35:01] Speaker 05:
But we'd be happy to file that as a supplement.

[00:35:04] Speaker 03:
I can get it.

[00:35:05] Speaker 03:
It's annoying.

[00:35:05] Speaker 03:
I had to get it off the CFR.

[00:35:07] Speaker 05:
I am very sorry, Judge Randolph.

[00:35:11] Speaker 05:
But Troy is saying that somehow it is challenging the regulations, but they have not petitioned for review of the regulations.

[00:35:19] Speaker 05:
And in their opening brief, they certified that the ruling under review is the listing decision.

[00:35:24] Speaker 05:
They didn't mention the regulations.

[00:35:27] Speaker 05:
So I mean, you can't even consider those regulations at this point because they're not before you.

[00:35:34] Speaker 05:
And I just want to make some general observations about the hazard ranking regulations, which Choi says, you know, they're very formulaic.

[00:35:45] Speaker 05:
They're very mechanical.

[00:35:46] Speaker 05:
And yes, those regulations can be formulaic, but that's a virtue and not a bug because the statute at 42 USC 9605 A8A tells EPA to add sites to the national priorities list based on relative risk.

[00:36:04] Speaker 05:
So EPA has to consider a site's risks relative to other sites.

[00:36:10] Speaker 05:
I mean, that's how you know what your priorities are.

[00:36:12] Speaker 05:
And that's why it's important to use the same formula

[00:36:16] Speaker 05:
across different sites.

[00:36:18] Speaker 05:
If you fiddle around with the formula, if you say that, well, this site, we're going to consider fisheries only two miles downstream, but at that site, it's going to be 15, then you really compromise EPA's ability to do the relative risk assessment that the statute requires.

[00:36:36] Speaker 05:
I'm happy to answer any more questions.

[00:36:39] Speaker 02:
All right.

[00:36:39] Speaker 02:
Judge Randolph, Judge Katz, anything else for respondent?

[00:36:44] Speaker 02:
No.

[00:36:45] Speaker 02:
All right.

[00:36:46] Speaker 02:
Thank you, Ms.

[00:36:47] Speaker 02:
Tien.

[00:36:48] Speaker 02:
Mr. Goldberg, we'll give you two minutes for rebuttal.

[00:36:52] Speaker 04:
Thank you very much, Judge Wilkins.

[00:36:54] Speaker 04:
Just a couple of critical points that I think would be worth the court keeping in mind.

[00:37:00] Speaker 04:
First of all, with respect to the wetlands delineation, it's important to recognize that the scientists who went to visit the wetlands

[00:37:09] Speaker 04:
in no place either assert that there's 0.15 miles of wetland or that those wetlands are continuous.

[00:37:20] Speaker 04:
Neither the handwritten notes that are the field log nor the 90 page document which incorporates those notes along with other documentation that EPA provided at the final actually

[00:37:34] Speaker 04:
have the scientist making that finding.

[00:37:39] Speaker 04:
EPA makes that finding.

[00:37:41] Speaker 04:
EPA drew a line on a map without providing any anchors, without providing any indication of why that pink line is where it is.

[00:37:55] Speaker 04:
And the 0.15 miles shows up in point at page 58 of the Joint Appendix.

[00:38:03] Speaker 04:
which is separate from the initial field notes.

[00:38:10] Speaker 04:
So this idea that, oh, there's 0.15, it's this pink line.

[00:38:15] Speaker 04:
Well, wait a minute.

[00:38:16] Speaker 04:
I think Troy is entitled to ask and this court is in a position to compel EPA to make sure that it provides enough information to know where that line is anchored and why it is where it is.

[00:38:30] Speaker 04:
On the food chain point, I just point out that the reflexive application of the HRS is the same for the discharge from Troy, as it would be for a mercury fever from breaking.

[00:38:46] Speaker 04:
and being observed flowing into the creek.

[00:38:49] Speaker 04:
EPA certainly isn't arguing that it, because of the HRS, has to automatically give that thermometer break a score of 20 on the HRS.

[00:39:00] Speaker 04:
But that's the result of its reflexive application of the hazard ranking system.

[00:39:08] Speaker 04:
And that's why it needs to be able to consider additional record evidence, as Troy has submitted in this case.

[00:39:15] Speaker 02:
All right, thank you.

[00:39:16] Speaker 02:
We will take this matter under advisement.

[00:39:20] Speaker 02:
Call the next case, please.