may please the court good morning i'm katherine felton representing appellant federal resources corporation of like to reserve five minutes rebuttal we're here on three issues this morning arising from the district court's grant of summary judgment in favor of the united states in th circle action i'd like to use my time this morning to focus on the arranger liability and the divisibility in apportionment arguments and as time permits with the court has questions to address and safety compliance issues turning to the issue of a ranger liability the district court granted summary judgment on the basis that there was no question of material fact as to the united states is intent as to the disposal of hazardous substances when it entered into a d m me a mining contract with the funnel and major mining company in the early one nine hundred fifty s at the conjecture mine site arrange a liability under circle as this court knows extends to any party who by contract agreement or otherwise arrange for disposal of hazardous substances are possessed by that person or by any other party or entity at the facility the disposal includes a debt depositing dumping spilling or placement of any hazardous substance or solid waste onto the land or into the water such that it can be exposed to the environment solid waste is defined to specifically include discarded material without solid liquid or  gaseous resulting from various operations including mining operations as we know from burlington northern a supreme court decision in two thousand and nine the focus on whether a party arranged for the disposal of a hazardous substance focuses on the intent of the party had at the time that it entered into the transaction whatever the nature of that transaction may be so the district court was well aware of that standard it was and where did it go wrong in concluding that there were no triable issues of fact it summarily government intended it summarily dismissed historical documents that detailed the government's analysis and reasoning why it wanted to enter into a mining exploration contract with funnelling major the documents recorded that the d m a officials looking at the property wanted the operation and construction of a mill at that site for the greater purpose of stimulating mining in the region so how does that relate to disposal or removal or sure the government had conducted an analysis earlier of the region in the one nine hundred forty s as to whether it was feasible to generate or stimulate mining in that area it is extremely remote and the ability to extract or and simply ship it somewhere else to be milled is impossible it it wasn't feasible economically and it wasn't feasible given weather conditions and the geographical nature of the property or the or the location is a show the government's intent enter into a contract for disposal so it is a large piece of the historical record about why the government took the actions that it did it is not the only piece of evidence well what happens after the government determines that it wants to enter into this deal with miners or with two gentlemen who had no mining experience which the experts both  knowledge is unusual both the government's experts and our experts d m a typically looked for mining experience but what they did was they took the proposal they'd been given which did not look like it would be successful and did  not seek out the metals that were of strategic significance to the united states and it changed it significantly so that the exploration would go at depth and look for zinc and lead which the government did want to find as opposed to silver  so what we have is the government deciding that it's interested in having a mill it takes and develops a plan which it then gives back to final and major and says here's the proposal that will sign onto final and major having no mining experience  disposal of waste ok so intent that's that's the crux of the issue in tell it the intent it can be direct evidence or inferred from the totality of the circumstances sello foil which was the case which was cited relied on as a foundational case for the for the supreme court's announcement of the burlington northern standard was a case where you had customers of a buying virgin solvent from a manufacturer that manufacture also ran a drum rebate return program so you could buy your drums of solvent you could return it and you get a rebate with a contract with the customers was for the sale of virgin solvent but it had this separate program for the jury or tribal issue of fact as to whether there was intent for the customers buying the product to also dispose of the residues in the drum when it returned to drums as part of this program the government's indifference be any proof of inten indifference is a conclusion it's not fact unless i suppose you have a historical record that says we're indifferent which you know the nature of historical records that any industrial site or operation is control over the operations which is more of the operator standard of liability it's not the arranger standard of liability under circle so inherently in a ranger is someone who isn't in the midst of day to day operations controlling managing the disposal generation treatment of hazardous substances and the united states here actually though did have significant involvement in the operations it went out monthly it  made reports on what was happening it made directional changes to where the miners were mining the or so that they would be more successful or more likely to find a vein they were mining in the wrong direction the government also the shell two thousand and two determination that control is the crucial element in a ranger liability and after burlington northern it's not control it's the overall intent no control can be a factor or a fact as a part of the factual analysis just as ownership can and the court here also ignored or at least didn't spend any analysis on the fact that the government in entering this contract was stepping into private property because this was a private right property and it was acquiring rights and claims to the mineral deposits that would be found because of the exploration project and those rights stayed beyond terminations or survived to deter any terminations of the agreement that would happen either because the work was completed or because the government unilaterally terminated it so this is your argument that these historical records show that the government was and therefore if you look at the historical record one could infer that they intended to arrange for the disposal they do as well as  as the development of the site of the mining yes three that's that's what you want that what you say is the factual dispute yes the construction and operation of the mine is the reason they enter the transaction in the first place now they couldn't just go out and pay to build a mill what they wanted was the mill but what they could do was fund exploration work with first and can and they did continue to pursue n m building the mill after they had signed the contract so they had a follow up at least one public conversation where they said your mind needs a mill or won't be profitable and then they followed the the timeline and monitored it and it was built and then it was available for production when the or was discovered there was a discovery so it's the totality of the circumstances that they what they wanted was ultimately to succeed in finding or to have the mill there to process it and also by achieving that goal what you get is other regional mining operations might be stimulated to explore more or to find or bodies that could be developed and extracted locally because you then had a millon site to make it and therefore they and therefore they what as a result of all of that how does a get to a ranger the standard of practice at the time was to deposit mill tailings on site it goes to the historical practice of mining the government knew that the or wasn't going to be trucked in either where the tailings it had to be processed the inherent in the processing of or there is the production of tailings the government also was interested in where were those tailings going because it wanted to know if they could be reprocessed for more metals later and in fact what we see is there are a number of inspections locating on a form are there stockpiles or piles of tailings capable of reprocessing later the government would get royalties additional monies for ores that it had or metals that had rights in in those tailings if they were reprocessed and council of the i don't want to interrupt your argument of you want to keep going but earlier you said you wanted to reserve why don't i go ahead and reserve unless the court has more questions for me right now and i don't think you you took much of the visibility visibility right so that no you can decide if you're going to cover that later i will thank you judge called thank you very much  including the environmental protection agency and the u s forest service address range reliability first since that seems to be the topic of the day district court correctly viewed the historical evidence and found that the united states had taken  no intentional steps to arrange for the disposal of hazardous waste at the site couldn't one infer that they did by all their little activity out there at this no your honor not on his record there's a number of things to look at if first i would start with  contract between the defense minerals exploration administration and finally mayor the city are eight hundred thirteen it's very explicit that all operations at that mining site are under the sole control of the mining operator and limits the united states involvement to in vice advice and inspection there are a number of and i mean it's pretty good advice i mean it's pretty significant advice right well the advice that was actually given had to do with there are two instances pointed out by federal resources is where they ought to hang fire extinguishers which the mining operator listened to and one was which direction to drill the mine shaft which the operator ignored and actually did not follow which goes to i think control of the united states but there was much discussion this morning of the mill and if you look at the contract it's quite clear that the government's contribution of twenty six thousand dollars was exclusively for the exploration project the drilling of the shaft and the search for profitable minerals none of the united states money went towards construction or operation of the mill none of the united states involvement with funneling mayor had to do with their operation of the mill it is correct as the record suggests that the united states knew there would be a mill there and that it would make the overall site more profitable and more useful and there's no dispute that but again we go back to burlington northern knowledge alone is not sufficient we have clearly established this record the united states knew there would be a mill we could infer if we were to take the lights  the facts in the light most favorable to the moving party in this instance that the united states knew that tailings would result from the mill in that poll would be left on site i would point the court to the united states inspection reports of the site you can see one it you seven ninety two and then a follow up at seven ninety nine this is the government's agent evaluating what's going on at the site at the time to make sure that the united states is going to recover its royalties it does mention as counsel for federal resources highlighted the fact of whether or not tailings are being stockpiled on the site but critically what it says i'm reading from your seventy two is does the operator stockpile mine or mill rejects such as tailings that may have potential value within the royalty payment period answer no what evidence we have about the government's intention towards these tailings towards the waste that was being supposal the site that the government viewed as valueless and there is no other evidence in the record whatsoever as to the government's interest in this material certainly no evidence that the government wanted to reprocess it or try to recover royalties from it the royalties to which the united states were entitled came from the drilling of the shaft the minerals that came out of it that were shipped which point federal resources came in at least the entire site and began its operations and united states was never involved in the operations of federal resources at the site so federal resources came in deep and that shaft that number two which is at the north side which was the ended up being the bigger one they operated there for eight years and deposited most of the waste rock which is what led us to the need for response action today so the united states interest in their involvement with funnel mayor was really limited to contributing fifty percent of the funds for the initial cost of drilling that shaft they were no they never gave any instructions about where to dispose of the waste or how they never expect to get united states never expressed any interest in how or where the waste was disposed of by funneling there and what little evidence we have from the government's inspection reports suggest that there was no indicate there was no possibility that there was any benefit to the united states that could have come from the way that the tailings are that the supreme court's opinion in burlington northern places the burden of establishing a specific theory of visibility and evidence as to how the record would lead one to a reasonable period of divisibility on federal resources and the district court here correctly concluded that it had not been given either a theory or a reasonable basis for applying a theory of visibility to apportion harm you have a where you have a cite where this is not a fact intensive  e it is it is a fact intensive issue once you have met the first step of the two stage process which you have proposed a reasonable theory of divisibility the district where i think correctly found that didn't even have that  facts that were presented as to divisibility all go to how much waste rock each of the different operators deposited and they say well we can calculate how much waste rock we contributed so that ought to be what percentage of the harm at the site for which we are liable and as we've discussed extensively in our brief that doesn't actually give you a theory of visibility because the harm isn't the rock itself it's the hazardous metals listed in circle that are contained in the rock and they're experts explain correctly that that varies widely from place to place where you found it most was at the top of that huge pile of material at the north dumped the top two feet of that thirty four and a half foot pile the observations in the site investigation and the follow up documents the engineering evaluation the cost analysis four services own action memorandum repeatedly indicate this was the real one concern on the north half of the for services plant it was exposed to weather as explained in the excerpts it's that the material that's on top of that pile is the material that was at the bottom of the shaft it was the deepest because of course you're drilling down looking for or more mineralized rot that could turn out to be more profitable that's what gets left on top is exposed to wind and rain for forty some years the creek flows through it erodes it all of this contributed to  contamination that was found at the council could you please answer a question i hope my perspective on the circle should vary scheme relating to does divisibility assuming that the  ant doesn't show the visibility sufficient enough to give an exit from the liability here do they also have an a right to sue some for other mining company that they think contributed to this to get reimbursement contributions yes your honor they do they can sue another potentially responsible party for contribution that is what the that is what the counter claim on a ranger liability was they sued us for contribution alleging the united states was partially liable but there are other entities involved in this case there is the camp or colorado operation there is mr blom and his real estate trust these were all held to be potentially responsible parties by the district court so they do have that option or do they still equitable allocation between the potential responsible parties and works a little differently than a divisibility or apportionment of harm finding so there are actually different components of the century scheme ok thank you this is there is no there is no there was the experts determine that there was just it was not feasible to determine the percentage of contamination by the metals in the in the amount of tailings or whatever came out of the mines that what the problem was well that's one of the problems and i want to clear up something you know there's a lot of suggestion that the real concern here was tailings and they didn't have a mill so they could be responsible for that but if you look at the site samples that are in the investigation report and they're listed at i want to it so if you look at the cases where the courts have found visibility you're talking about you know a pollutant that's in a sort of consistent solutions in burlington more than northern you had a liquid pesticide or in the fifth circuit case cited in the briefing of cattle that are all presumed to be the same and these are things where the harm itself is sort of modernise right is the same no matter who released it in the you just figure out how much did each party release but here varies released rock that may have contained very high concentrations of letter manganese or arsenic or perhaps that rock had very low concentrations in rocks from somewhere else had very high and so you just don't have the evidence you need to divide the harms among potentially once excuse me potentially responsible parties the evidence is simply lacking and hasn't been put forth and the district court i think correctly denied their motion for summary judgment on that claim and are you saying in the contribution claim under different part of the statute they wouldn't have to show the same level of proof as with visibility because it's a quibble i don't want to say that you don't excite i don't i'm not entirely certain  want to mislead the court i mean certainly we don't find the evidence sufficient here for divisibility and that there are different statutory components of the contribution scheme so it may be that the result could turn out to be different but i don't failure to consider all of them is itself a per se violation of the regulations the regulations do not require that each of those eight factors justify a response they say here are the factors that an agency should consider when considering a response action in reflects that the that they were considered and some of them just don't apply like one of them has to do with whether there are barrels of waste on the site and there were so that one doesn't apply to the application work so exactly but five of them did in five of them were explicitly addressed in the agency's memorandum  giving you administrative record to demonstrate that they were considered and that's that's the only question for this court you know if there if there had been no mention of the regulatory factors perhaps you find it arbitrary and capricious but here the agency did explicitly address them and find which which one the thank you judge gould i'd like to start by responding to a question that you asked mr mcfadden you said that if federal resources if it could it's sue in contribution any other party for the contamination on the site the answer would be yes it could sue the successor to funnel and major mining company except that the government settled with the successor to funnel major mining company for less than the total cost of cleanup and gave it contribution protection which bars federal resources from pursuing any claim to even out in appropriate allocations of who paid what here  turning to the issue of divisibility mr mcfadden suggested that the only the only evidence supporting the fact that the harm is divisible is volumetric and that is not the case this site has a geographic separation between the north dump and the south dump the north dump it is undisputed is exploration waste rock put there by federal resources corp is the only contributor to that pile that pile was tested extensively by the e p a and its contractors in the early two thousand consul me just make this comment because you didn't cover these in your opening argument and the government didn't have a chance to respond to your argument what i suggest might work is that i would give the government if it wants to truman's to respond thank you your honor as i was saying there's a geographical boundary in this site the north dump is entirely waste product not tailings put there by federal resources corp the sampling and investigation that the a did in the early two thousand showed that the metals content in that pile the waste rock material in that pile was below the human health clean up standards more importantly perhaps it determined that the metal solubility of in that dump did not allow for those the movement or mobility of the metals in that material so in other words that material couldn't leach out into gold creek which through the site around the dumps in addition they investigated the impacts of potential water quality from the north dump by taking samples upstream in gold creek from north dump and  below it the water quality actually improved so what we have here is data collected by the government which shows that the metals in the north dump that were waste were below cleanup standards they couldn't move it was a stable environment they weren't being uptake by vegetation or animals and they couldn't get into the creek to impact the the sentiments or the the water quality or affect any animals in the water argument there's no release we did make that argument to the lower court i have not made it here before this court instead we're focusing on the fact that these are distinct waste piles we have issues the taking of the top two feet on the dump of the north dump but it is subject to a in essence it's not a co mingled plume or commingled contamination when you're looking at the north stop you have a discreet volume of material granted there are separate issues about whether it's appropriate to take all that material but you've got it now at the south dump there's no dispute that federal resources also contributed only mine waste not tailings because there's no dispute that federal resources never found or or and or milled anything at the site so it couldn't have contributed tailings we know the volumes and we also know that the waste from exploration is a less toxic less mobile than the waste from the tailings so what we have there is a value metric analysis of the contributions to the waist down it's if anything the conservative is built in by treating tailings and min ask the government would you like to respond on the visible yes your honor thank you for that opportunity we still don't know what the theory of visibility is the federal resources visibility unless it was to support the idea that there was no release but that is not federal resources concedes the argument being presented to you lot of it goes i guess to whether removal at the north was was a reasonable was an arbitrary c selection of the alternatives in the e c a i'm not really sure what what the argument about solubility are for example the claim that water quality was better downstream is just false that your four hundred ninety eight you can see the agenc conclusion that quote concentrations the magnitude of many of the parameters were higher in samples collected from the stream below the mine site relative to above the mine site and that is hardly surprising the creek flow through the mine site carved a thirteen foot head through the north dump which had been dumped into the creek causing a dam the argument about solubility if your owners want to dig into the record on that has to do with the fact that there are certain types of tests one can do to test whether plants are taking up these metals those tests were guidelines which do have to do with risks to plants and aquatic life and those are all exceeded by a twenty four of the samples of the north dump so there's nothing to support the idea that federal resources didn't contribute contaminants to this site or didn't hazardous substance i guess there's maybe they have some dispute as to how much they did but there they have conceded their prime official liability as a potential responsible party jointly and several leave liable to reimburse the united states for the full cost of cleanup under circle and so we're back to this question of well can we divide the harm by figuring out how much waste truck each party contributed and still the answer is is no for the reasons i previously gave could you clarify one point she said that in response to there is an asset there's another mine right that is to be distributed trustee and so there is still still a potential for recovery by the united states but as to between the other contributing parties i don't know what they're ok but they're realistic options are i see the evidence in the record establishes there are significant disputes as to fact regarding divisibility as well as regarding a range or liability but with respect to divisibility there is substantial scientific evidence about the mobility and toxicity of the substances and their location that combined with the volume metric analysis is the theory of the harm so for instance you apply the mobility and toxicity information to the site to determine that you don't have a co mingled plume you have to see distinct areas then you can turn in the basis for a portion and apportionment calculating what that actually would be and what we have is very detailed calculations based upon or production by funneling major and and and concentrates shipped to allow for the calculations of what their waste material was and we also know dimensions of what federal resources dug so we know the volume of material that they extracted out of the ground and that's the basis for a portion of a breast when the district court the laws of the governor's decision here and whatever records the government used to make that decision was not improper to limit it to what the government had relied upon should have considered your experts the i guess theories  opinion thank you for asking that question i forgot to address it in this case the administrative record is devoid of material that the government in fact relies upon both the u s forest service who conducted the north dump removal didn't even administrative record the only record was maintained by e p a and it did not have all of the documents upon which the government here relies in cases such as that it is appropriate for the court to go ahead and look beyond that it's also so appropriate when it is and it's needed in order to explain scientific and technical information the district court did in fact look beyond administrative record in this case and it's appropriate for this court to do so as well thank you thank you for your arguments nicely presented on both sides of the the case of the united states first federal resources corporation shall be submitted that we thank them for their argument