good morning your honour's may please the court my name is kate stetson i met appearing this morning on behalf of both petitioners and co in genuine parts this is also a circle case it's also about the hazard ranking system it involves very different issues about hydrogen aqua firs and groundwater flow but it may be simplest to start with a more fundamental administrative procedure and that is the e p a is complete failure to respond below to a number of significant pieces of evidence and comments on the record and there is a very straightforward way to determine this if you turn to e p a s brief pages twenty nine thirty nine these are the pages in the brief that purport to respond to each of the nine pieces of evidence that we identified below that council in favor of finding the two awkward first here not interconnected there are nine different pieces of evidence pages twenty nine to thirty nine address each of those pieces of evidence what you will not find in those pages is a single cite to the record support document below showing where e p a responded to each of those nine pieces of evidence what you will find instead is ten pages of counsel argument arguing with respect to other documents in the record goes into great detail about the evidence that a persistent sequence of clay also called hill separates the upper upper for from that lower lying stone that rock settlements that we're talking about clay versus limestone versus gravel that that conductivity is there as the necessary to or more orders of magnitude apart that define something as a confining layer let me let me actually pointed this out in our brief despite the fact that you didn't purport to rely on this particular example below at all it cites this page but for a different proposition that's true and what we said in our brief to that is a couple things the first is for e p a to rely on that to establish that the offers are interconnected it would also need to explain away under the the whole record  a failed to grapple with instead or all of the pieces of evidence all of those geological surveys cross sections showing that within that two miles radius between the eagle creek and the white river there is a confining with that layer i'm looking at the way you're looking at it if you account for sea level and you look at the exhibits as carefully as you can as best i could it isn't clear that was being conforming and then there is an area just above that which is not and then there's another area just above that which would looks exactly the same but you don't characterize it as confining  i think there are some of the exhibits that we point to so some of the geological survey discussions and i think one or two of the cross sections contain a couple different things one of them is some evidence that there is clay or till among that upper we're not talking about that kind of depth we're talking about something already been implemented so much concern over my question about how do you know and i'm not sure where you may try to answer in burden of proof but how do you know that that clay till in the two mile area is connected all the way across because it looks like when you look at the exhibits where they try to account for see what it does not does not look like it's continuous old work or right so separating the upper and lower offers so that's at least circumstantial evidence the third point is the point about elevation is an observation the e p a makes again just in its brief no argument below about the difference in elevation suggesting that there is difference in confining layers and nobody is suggesting any ph can suggest that these confining layers underneath the ground have to remain at exactly the same elevation across one mile between these that's what you can tell from the exhibits so you have the clean drill going on it's going up and down because of your own vision but if you look at the exhibit through towards you know whether at a certain point there's an opening right and then claim job continues in the open and prime which we discuss in our group page twenty nine this is joint appendix six twenty four this is actually a reference that it didn't discuss cross section eight to a j prime which is the next page of our brief logically should be an aquifer is equivalent to sandy clay and if you look at the hydraulic conductivity of sandy clay you will find that it has a hydraulic conductivity of ten to the negative six which is two orders of magnitude at least more than the hydraulic conductivity of the top of hers that we're talking about so and to your point to judge edwards if you read across each of those cross sections they may use as i said earlier different nomenclature later on that eastern slice that plate are five shows you want to call clay till so to your point judge edwards when we're looking just at that two mile radius you know that our figures in our brief depict with that horseshoe showing of the relevant area it is clear we would say from each of those pieces of evidence supported by those geological surveys that talk about the persistent sequence of clay supported by the well logs that show a persistent presence of clay in exactly the area that we're talking about that each of those stacks up to single the signal that there is a persistent sequence claim there the problem the e p a has again is the fundamental administrative procedure problem not only that it doesn't have substantial evidence to support its conclusion that there was no claim there that there was no confining layer but that it didn't deal with each of we would not deal with your former we would not you would not deal with that with the substantial evidence point if you conclude that they didn't respond for the reason that the one i mentioned earlier the substantial evidence test requires that whole record approach so an insignificant or irrelevant comment that e p a didn't respond to but it wouldn't make a difference but here the volume of evidence that it ignores and it's it essentially implicit acknowledgement in the brief that it didn't address those pieces of evidence below because there isn't a single cite to the record showing that they did that's the fundamental problem the p a has and i don't see that it's either dismiss understood the ground water flow issue is a separate problem with the hazard ranking system and this is in this case a fundamental clash with what circular particularly as another the one nine hundred eighty six requires which is even under the hazard ranking system which you heard during the last argument is designed to be a quick assessment of risk even under the hazard ranking system after nine hundred eighty six congress made it clear that the e p a has to use that system to the maximum extent feasible as you said judge ginsburg to assess the risk associated with a particular project and where you have as hear evidence in the record that is conceded that ground water flows away from the well fields that are of interest to e p a e p a was not in a position to simply ignore away that evidence and to assign a zero significance in its calculus whether you look at is a violation of the h r s or as a fundamental violation circle of e p a should not have listed this site when it knows that ground water flows away from the major population the bigger target of drawing the site  says that it flows in the south southeast direction ok that's not away from the well fields to the heat in any event there's insufficient information either site specific regionally about really where the groundwater erection flows and that's the purpose of the next step which is the remedial investigation feasibility study or draw you have in hand in the test wells from these homes inflows yourself at at the source e p a considered the groundwater flow direction to attribute the contamination to the two sources so locally population and affected population doesn't mean you couldn't consider groundwater flow at this point there's nothing in the regulation that says you cannot it does not factor into the alice i mean so that if a party can it is unclear to me that the agency has given substantial evidence in this record with respect to hydraulic and the connection because it appears to me from the negative to because the limestone i quoted before contains cars and if you look at your regulation if it contains course the conductivity measures ten to the negative two so the level of magnitude based on just what's in the record and substantial evidence review is whole record review on the one whole record review you're assuming it all the way through and i don't see it e p regulations j s seventy three and your brief the twenty five indicate this is it includes cars and event it includes course it's ten to the negative two and that means that the a magnitude is not within two  suggest and i'm just looking at the evidence in the record so there's no way you can get around that that's there either there's a further explanation you haven't given or you're wrong well we haven't yet discussed well a lot for one for  because i think i know what you're trying to say but it isn't what the record suggests the it lets on this understanding the hydraulic interconnection is separate from the question of conforming where they that argument the e p a basis decision on the fact that shell goes half way across the site well for one four seven eight nine goes directly down to the bedrock and shows no confront confining layer at all thus the aquifers interconnected in addition in addition within the limestone within the upper aquifer vinyl chloride has read down seventy feet below ground surface it has k three seventy seven it's there well chart that shows if you highlight the clay areas there's no consistent continuous layer cross two miles this and this doesn't even have for one four seven eight nine it would show any confining clay layer so e p a went directly down and you know at least one place found evidence or relied on relied on more physical evidence from the logs that take it directly down to the bedrock aquifer that's that's what they're in that's the sort of four pieces of evidence  that you had pointed out earlier see the sea prime on page j five ninety one which also shows the upper back for directly on top of the lower  i would not cross sections it's useful for broad features major land features like where the shale lands and where the lime stock lands on bedrock as it's not useful for more localized site specific features that's why the well lot is critical and that's on page five eighty five eighty one four one four seventy nine starts at the ground service goes all the way down one hundred thirty feet to one s and there's no confining layer this is one one and a quarter miles away from the site sources showing in at least one place the aquifers r and d interconnected and finally these plain patches we know that that's not magnitude more than two you try to argue that the orders of magnitude within two so i read them if they know they're not based on what you're presenting so i'm going the way you said not what they said and i want to be and so i'm now i want you to tell me what i'm supposed to do or just ignore that and say no we threw that in for whatever it was worth i think it was to illustrate the different pr between clay and tilt layers e p a did not rely on hydraulic conduct heavy as a basis for for its decisions decisions here did not rely on those other sources on the one fifty seven which if not addressing directly certainly covers the points raised by the petitioners with that i see the times expiring i asked the court document and i think there are the other examples it's the it's the entire support document so we just have to scrounge through i'm but i was trying to point you to the section on aquifer interconnections with respectfully request that the petition petitions be tonight thank you three quick points if i could first judge ginsburg on your last question i would actually point you to join appendix one fifty one through one fifty nine because those are the pages where e p a purports to address the comments i received but what i would also encourage you to do is to take a highlighter and strike out everything on those pages that is either a block quote from the guidance or the documentation record or a paraphrasing of the comments and selves and what you are left with after that exercise is a handful of lines across a handful of pages making conclusory statements about e p a s conclusions on offer interconnection second point on the evidence what you heard mr serino argue were the four pieces of evidence that u p a purported to rely on below what you didn't hear him argue was with respect to all of the other pieces of evidence that counsel in the opposite direction as to those four  i would say this as you least a couple of them that the fact that shale doesn't extend across the whole two mile radius doesn't mean the clay isn't there and that's the point the fact that vinyl chloride penetrated to seventy feet below means that penetrated the upper offer because that's the depth that we're talking about the statement at joint appendix six twenty nine that it is likely that the rhinestone are prefers hydraulically connected to the upper upper for is followed by the next sentence in other areas the lines don't offer is hydraulically isolated from the upper inter tail off of her system the problem the e p a has then isn't just that it failed to grapple with all of that evidence it's that it failed to carry its burden to show each other because they are that is right i think the the way that both we i mean you want to find it all way out of your brief either but when i was going through materials on the hydraulic image connection their numbers were not making any sense to me because they do show a magnitude of separation will i will tell you that in our brief in our reply brief we actually resist this idea that the opera for the upper upper for has attended the negative six conductivity is e p a suggested i point to pieces of evidence in the record that show that it doesn't but times we didn't rely on hydraulic conductivity to make this decision that's an important element of determining whether something is or is not an option for confining layer so if they didn't take hydraulic conduct heavy into account that a us points out the fundamental problem again with the way that they went about this thing they've made conclusively statements based on a few pages of a few points of the record without grappling with all of the other pages pointing to those confining layers in the well logs of sandy clay in the cross sections of the clay or till that demonstrate in those in that area that there is a confining layer present for lose the opportunity for a good one fifty one to hundred three point one two you can strike the first three paragraphs because those are just a recitation of the comments you have eight lines at the bottom of the constitute a response page one fifty two is in doesn't respond to specific comments it doesn't respond to join appendix two forty nine to fifty two fifty one which was our experts comments about all of the evidence supporting the conclusion that there is a persistent sequence of clay if you turn to page one fifty two you can strike that entire page because that's just paraphrasing or block quoting the h r s saying with page one fifty three same with page one fifty four until you reach the very bottom as demonstrated in the documentation record the e p a appropriately evaluated the conditions this again it's just this conclusory statements about what they did without actually engaging with the comments  page one fifty five you can strike almost all of it except again those few lines at the bottom that's that's what i was saying by way of the fact that the fact that there's a volume in this documentation or support record doesn't mean that there's substance that's the problem if i could make one last point on the ground water flow and it goes to judge edwards your question or comment about the regulation you're exactly right there isn't a regulation that precludes them from considering groundwater flow in fact but the regulation says of the age of resin and other things is you look to determine whether there is potential contamination and if the groundwater flow evidence in the record the e p a conceded shows you know potential for contamination that should have been taken into account that's another way to resolve this case