Bradley Mining Co. v. U.S. Environmental Protection Agency, 22 ELR 21493 (1992)

(UID:001004636)No. 90-1556 UNITED STATES COURT OF APPEALS FOR THE DISTRICT

OF COLUMBIA

Before RUTH B. GINSBURG, BUCKLEY, and D. H. GINSBURG, Circuit Judges.

Counsel for Petitioner

Anthony Garvin

Brobeck, Phleger & Harrison

One Market Pl., San Francisco CA 94105

(415) 442-1620

Counsel for Respondent

George B. Wyeth

U.S. Environmental Protection Agency

401 M St. SW, Washington DC 20460

(202) 260-2090

Lewis M. Barr, Eileen T. McDonough Environmental and Natural Resources Division U.S.

Department of Justice, Washington DC 20530 (202) 514-2000

BUCKLEY, Circuit Judge: Petitioner Bradley Mining Company seeks review of a rulemaking in

which the Environmental Protection Agency listed the Company's inactive mercury mine on the

National Priorities List of sites containing hazardous substances. The Company claims that the EPA

acted arbitrarily and capriciously in listing the property because the EPA failed to demonstrate that

mercury found in an adjacent lake was caused by mining operations and because the Agency

incorrectly calculated the risk that the mercury would contaminate usable ground water. We find that

sufficient evidence supported the Agency's decision to add the site to the priorities list and reject the

petition.

I. BACKGROUND

A. Statutory and Regulatory Framework

The Comprehensive Environmental Response, Compensation, and Liability Act, 42 U.S.C.

§§ 9601-9675 (1988) ("CERCLA"), sets out a broad strategy for dealing with inactive hazardous

waste sites. CERCLA requires the President to prepare a contingency plan for cleaning up hazardous

substances and to create a list of priority sites where there have been known or threatened releases

of hazardous substances. CERCLA § 105(a), 42 U.S.C. § 9605(a) (1988). The EPA is charged with

drafting this "National Priorities List" ("NPL") and updating it through informal rulemakings. The

NPL serves two narrow purposes: It sets priorities for the use of clean-up monies in the "Superfund"

established by CERCLA, and it informs the public of environmental hazards. Although listing on the

NPL often leads to orders for remedial action, such action is not required. See Apache Powder Co.

v. EPA, No. 90-1543, slip op. at 3 (D.C. Cir. June 23, 1992).

The EPA analyzes sites for inclusion on the NPL with the aid of a scientific and mathematical

model, the Hazardous Ranking System ("HRS"). See generally 40 C.F.R. Pt. 300, App. A (1990).

The Agency applies the HRS to data on the observed or potential release of hazardous substances

from a site into three "pathways" -- surface water, ground water, and the air -- and it assesses the

relative risks posed by these releases to human populations and the environment. The ratings will

reflect the toxicity of the substances released and their potential for migration into drinking water or

to population centers.

In rating the risks, the EPA prepares separate score sheets for ground water, surface water,

and airborne releases. For each of these, the HRS calls for a determination of whether a release has

been observed and an assessment of the risk that a release might take place. An actual release results

in a much higher score than a potential one. See Eagle-Picher Indus., Inc. v. EPA, 759 F.2d 905,

910-11 (D.C. Cir. 1985); 40 C.F.R. Pt. 300, App. A (1990).

(UID:001004636)The potential for a release into the ground water is rated based, among other

factors, on how close the site is to an aquifer, the permeability of the soil, and the existence of barriers

that would contain the hazardous substances -- i.e., through an examination of the factors that might

inhibit migration. See 40 C.F.R. Pt. 300, App. A §§ 3.2-3.3 (1990). The factors relevant to potential

releases into surface water are the terrain near the site, the distance of the surface water from the site,

annual rainfall, and containment. Id. §§ 4.2-4.3.

Ratings for toxicity and persistence, quantity of a release, and the potential targets are then

added to the scores, reflecting the risk of harm to human health in a potential or actual release.

Finally, the scores for releases into the three "pathways" are factored together through a complex

formula. Any site generating a score of 28.5 or greater is added to the list. See generally

Eagle-Picher, 759 F.2d at 910-11.

The EPA issued its initial HRS in 1982. Amendments to CERCLA enacted in 1986 required

the EPA to promulgate a new HRS that would "assure, to the maximum extent feasible, that the . .

. relative degree of risk to human health and the environment posed by sites and facilities" is assessed

accurately. CERCLA § 105(c)(1), 42 U.S.C. § 9605(c)(1). The amendments set a 1988 deadline

for the development of a new HRS, but the new system did not become effective until March 1991.

Although the mining site at issue was scored under the old system, we have upheld the use of that

system for sites listed after 1988. See Linemaster Switch Corp. v. EPA, 938 F.2d 1299, 1302-05

(D.C. Cir. 1991).

B. The Sulphur Bank Mine

Bradley Mining Company owns the site of the Sulphur Bank Mine ("site" or "property"). The

property is located adjacent to the shore of Oaks Arm, an inlet of Clear Lake, in Lake County,

California. Open-pit and underground mining of mercury and sulphur took place periodically on the

property between the 1850's and 1957. The EPA proposed to list the site on the NPL in 1988. The

Agency described the property as having "[a]pproximately 120 acres of tailings and an open, unlined

mine pit (called the Herman Pit) . . . . The mine tailings extend into the Oaks Arm of Clear Lake along

1,320 feet of shoreline. The Herman Pit covers approximately 23 acres and is 750 feet upgradient

of the lake. The pit is filled with water to a depth of 150 feet.

EPA, HRS Package, reprinted in Petitioner's Appendix ("App.") at 36. The Agency also

found approximately seventeen acres, set back from the lake, that had mine tailings piled five to

fifteen feet high. The EPA believed that surface runoff from the property was capable of eroding the

tailings and transporting this material into the lake. Agency staff found evidence that "a 32.3-acre

portion of the waste rock had been deposited" into the lake. Id. Other waste piles, containing high

concentrations of mercury, were left along the shoreline.

Applying the HRS, the EPA determined that an "observed release" into the lake caused by

mining operations had occurred. The EPA examined lake bottom sediments taken within a half mile

radius of the site and compared them with samples taken from the mouth of Oaks Arm, approximately

three miles away. The nearby sediments averaged 102 mg/kg of mercury, as compared with a range

of 7.6 mg/kg to 26 mg/kg in the background samples taken in the mouth of the inlet. The mine

tailings ranged up to 624 mg/kg of mercury. See id. at 6-6A, reprinted in App. at 49-50. The

Agency determined that the waste was highly toxic and present in large quantities. As to possible

"targets" of the release, the EPA found that the waters of the lake are used for recreation and

irrigation and that mercury contamination threatens those uses as well as sensitive wetlands. In

applying the HRS formula to this data, the Agency found that the total points calculated for the

surface water route alone resulted in an HRS score above the 28.5 required for listing.

(UID:001004636)The EPA saw no observable release to the ground water. Id. at 2, reprinted in

App. at 44. It therefore calculated a ground water score based on the risk of release. The EPA found

a shallow alluvial aquifer, composed of silty sand and gravel with a thin layer lying below the site that

extended, without interruption, to the town of Clearlake Oaks. Id. As the area has significant

precipitation, and the soil is permeable, see id. at 3, reprinted in App. at 45, the Agency concluded

that the possibility that substances would be released into the ground water was high. It found wells

that served 1,245 year-round residential homes within three miles of the site (the relevant radius under

CERCLA regulations). See id. at 5, reprinted in App. at 47. After application of the HRS formula,

the ground water route also produced an HRS score high enough to mandate listing on the NPL.

II. DISCUSSION

A. Standard of Review

Given the highly technical issues involved in the Agency's decision to list a facility, this court

gives significant deference to the EPA's determination. "[T]he importance of EPA's goals, including

protecting human life from potentially disastrous contamination and the congressionally mandated

need for speedy action," means that "[i]t is not necessary that EPA's decisions as to what sites are

included on the NPL be perfect, nor even that they be the best." City of Stoughton, Wisc. v. EPA, 858

F.2d 747, 756 (D.C. Cir. 1988).

Significant deference is also called for because the NPL represents only "a rough list of

priorities, assembled quickly and inexpensively." B&B Tritech, Inc. v. EPA, 957 F.2d 882, 884 (D.C.

Cir. 1992) (quoting Eagle-Picher Indus., Inc. v. EPA, 759 F.2d 922, 932 (D.C. Cir. 1985)). For

these reasons, we have tolerated imprecision in calculations. See id. at 885. We have made it clear,

however, that our deference is not limitless. See National Gypsum Co. v. EPA, No. 90-1574, slip op.

at 2 (D.C. Cir. June 19, 1992). As always, because the decision results from a rulemaking procedure,

the arbitrary and capricious standard of review of the Administrative Procedure Act applies. 5 U.S.C.

§ 706(2)(A) (1988).

B. Analysis

Bradley attacks, as arbitrary and capricious, the EPA's finding that there was an "observed

release" into the surface water, as well as its scoring for the ground water route. We find that

sufficient evidence supports the EPA's scoring for surface water releases. As this is adequate to

require listing on the NPL, we do not address petitioner's challenge to the ground water scoring.

The finding of an observed release into the surface water accounted for over forty percent of the

points in the HRS surface water route calculation. The EPA's guidelines for use of the HRS state that

"[d]irect evidence of release to surface water must be quantitative evidence that the facility is

releasing contaminants into surface water. Quantitative evidence could be the measurement of levels

of contaminants from a facility . . . or downhill from it, that represents a significant (in terms of

demonstrating that a release has occurred, not in terms of potential effects) increase over background

levels.

40 C.F.R. Part 300, App. A § 4.1 (1990). According to Bradley, the EPA did not have direct

evidence that a significant increase over background levels had occurred and thus that mercury levels

were due to mining operations. Bradley claims that the sediment samples taken from the mouth of

the Oaks Arm inlet, three miles from the property, are not representative of the background at the

site.

Based on reports produced by its consultants, as well as historical studies of the Clear Lake

area, Bradley asserts that the presence of mercury at the property is the result of natural geothermal

processes and that in examining mercury occurrences on the site, the EPA must distinguish between

natural mercury contamination and the contamination stemming from mining. The Company

contends that the EPA's regulations require the Agency to produce quantitative evidence proving that

mining caused the heightened levels of the hazardous substances, and that the EPA failed to meet this

requirement by using lake bottom sediments from the mouth of Oaks Arm, rather than on-site soil

samples, to establish background levels for the pollutants. Bradley also asserts that the Agency did

not respond to comments Bradley made during the rulemaking raising these problems.

The EPA disagrees. In its view, samples of lake bottom sediments taken at a distance from

the property provide a proper measure of naturally occurring mercury. The Agency argues that

drawing samples from the property itself would not allow any basis for comparison, as it would be

impossible to tell whether the mercury present in the samples resulted from mining activities or from

geothermal activity. The EPA adds that the HRS does not impose a rule regarding where samples

are to be drawn.

While there may be differences of opinion as to the best evidence of background mercury

values, we have been given no reason to believe that the EPA acted arbitrarily or capriciously when

it selected lake bottom sediments as its marker. Nor does the presence of naturally occurring mercury

in the samples taken from the property render them useless for determining whether a release

occurred that was related to mining activities. Perhaps most important, the relationship between, on

the one hand, the mine tailings, overburden, and waste rock moved and produced in the course of

mining operations and, on the other, the high levels of mercury in Oaks Arm finds substantial support

in a January 1990 study, Abatement and Control Study: Sulphur Bank Mine and Clear Lake

("Humboldt Report"), that was commissioned by the California Water Quality Board.

The study notes that "[a]pproximately 2060 ft of the shoreline of the Oaks Arm is in contact

with mine wastes. Of this, about 1240 ft of the shoreline is in contact with a very steep, barren bank

made up of overburden and waste rock." Humboldt Report at 14, reprinted in App. at 872. It

concludes that "[s]oil erosion along the shoreline of the mine . . . discharges about 100 kg of mercury

per year into the Oaks Arm. This represents approximately 90 percent of the total mercury entering

the Oaks Arm annually." Id. at 173, reprinted in App. at 1023.

An analysis of the sediments indicates a strong correlation between the deposition of mercury

along the lake bottom and mining activities:

Of the mercury already in the Oaks Arm, the greatest amount -- about 100,000 kg -- is

contained in the upper sediments. This large quantity of mercury was most probably produced during

the time periods of 1927-44 and 1955-57 when mining practices disposed of waste rock and surface

overburden directly into the lake. By comparison, much smaller amounts of mercury are contained

in the deeper sediments and the water column -- about 440 kg and 60 kg, respectively.

Id. at 173, reprinted in App. at 1023. By contrast, the study estimates that geothermal activity

contributed no more than 2.4 to 119 kg of mercury a year. "At those rates, about 800 to 40,000

years would be required to produce the amount of storage observed in the sediments in the absence

of any other inputs." Id. at 100, reprinted in App. at 952. The studies of Bradley's consultants do

not contradict this point. As the NPL is concerned with the risks presented by releases, regardless

of when they occurred, historical data are highly relevant. See CERCLA § 105(a)(8), 42 U.S.C. §

9605(a)(8).

Thus, the record provides a sufficient foundation for the EPA's conclusion that an observed

release of mercury occurred. In the face of this evidence, we cannot quarrel with the Agency's choice

of background samples. Nor do we find merit in Bradley's claim that the Agency provided no

quantitative evidence of a significant release. Even if the EPA's regulations demanded the use of

statistical evidence, the Humboldt study provides such data. The Agency pointed to the Humboldt

study in responding to Bradley's comments, fulfilling its obligations to meet challenges to its decision.

See EPA, Support Document for the Revised NPL Final Rule at 9-184 to 9-185 (Aug. 1990),

reprinted in App. at 1139-40.

Finally, in its reply brief, Bradley argues that the EPA failed to meet its obligation under

section 105(g)(2)(A) of CERCLA, which requires the Government to consider the "extent to which

hazard ranking system score for the facility is affected by the presence of any special study waste at

. . . such facility." CERCLA § 105(g)(2)(A), 42 U.S.C. § 9605(g)(2)(A). Special study wastes

include, inter alia, solid wastes resulting from the extraction and processing of ores and minerals.

Id. § 9605(g)(1)(B) (incorporating 42 U.S.C. § 6921(b)(3)(A)(ii)). The Company criticizes, as

inadequate, the analysis of special study wastes performed by the Agency and seeks a remand for

additional analysis. See Reply Brief for Petitioner at 6-8.

In its initial brief, Bradley listed among its issues raised "[w]hether the [EPA] . . . failed to

comply with the requirements of 42 U.S.C. § 9605(g) regarding the addition of property containing

special study wastes[.]" Brief for Petitioner at 9. The initial brief specifically stated, however, that

it would not address that issue, see id.; and, relying on that statement, the EPA did not discuss the

impact of the special waste study provision in its brief. The EPA moves to strike those portions of

petitioner's reply brief. Bradley asserts, first, that its reference to the issue at the beginning of its

brief, and the fact that it did not explicitly waive the issue, protects it from the bar on new issues in

reply briefs. Second, the Company maintains that the reference to the analysis of special study wastes

in the reply brief is not intended to raise a new issue; rather, it is directed to an essential element of

the claims it advanced in its initial brief.

We have stated that "[c]onsidering an argument advanced for the first time in a reply brief .

. . is not only unfair to an appellee but also entails the risk of an improvident or ill-advised opinion

on the legal issues tendered." McBride v. Merrell Dow & Pharmaceuticals, Inc., 800 F.2d 1208,

1211 (D.C. Cir. 1986) (citations omitted). Here, the Company listed the issue in its opening brief and

then specifically stated that it would not address the question in the remainder of that brief. Thus the

EPA did not have any need to address the question. We see no merit in Bradley's assertion that its

special waste study assessment is relevant to the claims that the Company did pursue initially.

Therefore, we grant the motion to strike the portions of petitioner's reply brief suggesting that the

EPA did not comply with the dictates of section 105(g)(2)(A). Consideration of this question is

inconsistent with the adversary process and would be "inappropriate." In re Barr Laboratories, Inc.,

930 F.2d 72, 75-76 (D.C. Cir.), cert. denied, 112 S. Ct. 297 (1991).

III. CONCLUSION

For the reasons stated herein, we deny the petition for review and grant the motion to strike.

So ordered.