thank you please receive counsel me please the court my name is neil was to send them here on behalf of sunnyside gold corporation issue before the court today is whether putting property on a national priorities list without scoring that property pursuant to the hazard ranking system is contrary to law as the court is well aware circuit provides the framework for listing property on the n p l circuit requires the e p a to base a new listing decision on the relative risk that a particular property might pose to the environment they of that property lose any ability to question the process by which the property has been placed on the n p l listing property based on anything other than an h r s score or one of the statutory provisions is contrary to law the listing in question today factory doesn't make of the largest size list in the size isn't along determinative your honor it's that it's variable it's that it's unique and the drainage is are unique and the sites within it are unique and the properties that have been listed ar sources the problem with that approach is that standard applies when you have migration of hazardous materials from the scored source and examples as a smokestack or groundwater plume there's no migration here from a scored this area as noted is unique it's got three different river drainages it's got naturally acidic naturally basic water it's got variable history of different types of mining e p a has lumped it all together and listed every property owner in that we believe need does control the outcome in this case there were three products the tennessee products a health advisory listing or otherwise it was at the bottom you seem to be attacking the regulation of beyond time which you can do were not attacking the h r s were attacking the fact that it wasn't applied here they listed property without scoring song property to list other people that's the outcome that was invalidated in need and it's should be invalidated here a lot of white boxes are upstream of the elop so you've got water coming in heading downstream but property upstream where that commingling ever reaches is now on the n p l there's been no showing that there's anything very similar about all of the sites that was required in the us museum case and what there has been a speculation that possibly these other sources might be releasing hazardous materials they might or may also be contributing but you can't base a listing based on speculation when you a want to say this water is getting onto your property or off of your property through a groundwater flow they could done that they could have scored that kind of no they don't have they haven't done that and they don't know the question is why is it unreasonable water doesn't reach that isn't hasn't been scored whether water is getting there from the surface water or the ground where there's no evidence that anything from these court sources gets to the unscored source even though they're mixed in randomly among the the example of the sunny side mine which is the mine that my client owns is a good example of what's wrong with e p a s approach and he said mine sits at the highest point in this area it's at the headwaters of the drainage it was the largest mining in the area it was the oldest  mining and operated for over one hundred years on and off it covered between private and public land over one hundred eighty years significant remedial work was done on the science side mining our client spent about fifteen million dollars bulkhead in the mine to contain isn't completely remove the it was you and i disagree that the regulations require complete remediation before it can be considered but more troubling is the fact that he said we didn't have to consider it because we didn't score it so you've got a property owner spending fifty million dollars to clean up their property to try and stay off the n p l and now you can list it without swearing and even considering any of that work that's not reasonable scoring here of these than your argument is they have to do individual school or a resource or they have to at least scored the sites that they've listed and that's forty eight that they identified they went to the trouble of calling them out and  the regulations require scoring for listing and if you're going to put property on the n p l you need to score it you have to consider what's coming off of it if it's a source if it's a release it's got to be evaluated scoring here of these properties was feasible the e p a knows how to do it they did it for nineteen of these sites they took the time to take samples and analyze them and apply the h r s and come up with the score this case becomes real similar to the gypsum case where there was a test for toxic boron that the e p a could've administered and then they would know if the property scored they just didn't do the test as a result of this court vacated listing e p a could have scored the other sites that are notice is given you've got to come for the ninety days and challenge that listing this court ruled that any on time the challenges is barred as untimely in that department transportation case and in the honeywell case the problem is it's impossible to challenge how your properties been scored if it's never been scored you're put in this position of needing to contest the scoring of what's brought you on to the n p l but without any type of score there's nothing to let me come back  looking at it just to be sure you're arguing is if it's not there because you don't want to be there but it is there the regulation absolutely distinguishes between a site and source and if sent as the site conclude can include multiple sources a site can include multiple sources this does not say that each of those multiple sources has to be scored so the site has the school how how does the owner of one of those sources challenge the only assuming it's evaluated as clean but there's a lot of heartache that happens between now and then you've got your listed on the on the n p l your your properties got that taint and you're subject to the course the power of the well the force of power what does some regulation that's good will sources remediated or not within the site will carry the same financial burden i think they're identified as part of the n p l and so there's your regulation that supports i hear what may it please the court my name is making greenfield and i'm here on behalf of the people with me counsel's tables eric swanson from the office of general counsel this court should reject the challenge to listing the for the need of peak mining district site on the national priorities list that they need to pick mining districts site is a single site that encompasses the release of multiple mining sources e p a determined that the site was eligible for listing by scoring nineteen mining you did not assess as part of the site that maybe can be contributing but that does not impact the h r s court here the source is the e p a assessed and we're contributing so much hazardous substances to the surface water that it maxed out the surface water contamination score at fifty so if e p a had gone out in the field and scored every other possible source that it had identified it could not have  what i'm asking is does it matter that any individual  no it doesn't matter for squaring purpose and it doesn't matter because a site is allowed to consist of multiple sources and the score can be based on only part of those sources that that is what th interest provide it and then the next step when there are consequences does it matter some sources within the site are contributing not they're told we remediated yes that will be taken into account any sort of regulation and it's addressing when you get to the final consequences everyone pays equally i'm not i'm just not sure that sounds surprising to me but i'm curious to know through the regulations as something to the contr is constructed that those areas can be carved out from this that can happen at a later time it seems that petitions are going today that e p a is required to score every specific parcel within the site before listing it on the m p l that's not what this court has has held for example in washington department of transportation that argument was specifically rejected that e p a does not need to score every single parcel within a site and indeed as a practical matter that would make little sense many many sites have many hundreds of sources like this one here for example has many hundreds of mining sources because mining took place over a century with different owners and at different times but south of us if you don't mind and then we'll be perfectly happy will applaud your efforts right it seems as though they're arguing for a checkerboard approach where their individual mind would be omitted because they claim that they've done some remedial work in the past there is no basis for that there is no record evidence that the contamination that was contributed to by the sunnyside mine has been fully contained indeed the sun is not a credible consideration it is if it if you can i had scored that source  it would have needed to assess whether it was contained i say has an equitable matter here nor is it a critical consideration there is they are still contributing to some extent of the problem or is your answer that we know that in the still be present but they wouldn't so it's possible that they could perhaps remediate aspects of the mine itself but because of the nature of the contamination here i mean for example when the lake had at j a one forty one as part of the h r i stock record that happened in one nine hundred seventy eight so it was before this present corporation purchased the mine but you know they were aware at the time of this contamination had taken and the sunnyside mine is also it's worth noting physically connected with a number of the other mine workings because we're looking at a cold day right here so it's the inside of a mountain and the sunny side  is physically connected through mining tunnels like the terry tunnel in the american tunnel but also through fissures in the rock itself if the rock is not solid so water can move over it round bulkheads it can move from one mine to another at the time that the listing was being undertaken e p a did not have current to waste quantity information of the precise amount of hazardous waste that remained of the mine and then it did not have a current chemical analysis  that was that was being emitted what it did have was documentation that the sun sideline and also all the other possible sources were involved in the same mining activities in the same geological formation and worst argument and it's also based on this quest precedence in the c t s court for example where it said is analysis need not be exhaustive it need not apply to every single methodology to determine that the scope of contamination because the process here is supposed to be qui located at upwards of ten thousand feet so they're very very high so the sampling of these sources often requires trotting out chartering a helicopter and landing it on a piece is the mine top so it's very difficult to get to also there a very limited time when you can actually observe these releases because of what they called on the work season because it's frozen solid for much of the year so e p a has a a small frame of time working it out in the field and because this is the site in particular is releasing so many hazardous substances it was of utmost concern that it be listed as soon as practicable and once e p a reached the twenty eight point five threshold and indeed nearly double was appropriate then for e p a to take the next step of listing and then begin working the fields once it had access to that that that funding that was available after the listing occurred so listing of th that that is not the standard in the statute and i'm saying that here as a practical matter assessing each and every minute that was listed here as other possible sources would have taken a considerable amount of time it's also would have not had any ability to impact the h i i score because as i said earlier the surface water pathway which e p a assessed had already been that set out so there was no way for it to alter the story would have been getting on it would have been going out in the field and doing whole and that's that's in section four of the h r s and that makes sense here too because what we have is the headwaters region of this watershed so taking into account that the contamination is widespread throughout this headwaters region there there really is no way of addressing the problem by picking individual sources it has to be looked at as a whole and i think as i mentioned earlier on we have the support sources and the unscored possible sources there are many other sources there that haven't both known and i now documented the unscored sources here to provide those parties notice that there that there person was part of this area i'll be brief there's a map on page twenty of e p a s brief that is what this site should look like that's the score sources and the rivers that flow down from it the idea that you can listen now and will sort it out later has been rejected by this court you've got to follow the procedures for listing there was no good answer to the court's question about why wasn't this feasible to score our property you've been studying this area for twenty years there's just absolutely nothing in the record about helicopters or short seasons or are why there was was no ability to score it before it was listed that's a post hoc rationalization that ought to be rejected the truth is there's no evidence in the record that the sunnyside mine is a source that it is a release that it is something contributing to hazardous material in this area and yet me v a has listed it and when you list property without setting it scoring it he deprive the property owner of the ability to consider what's been done and to fight the listing of where they're ending up the idea that will just take care of it in section one a six one seven that's a lot of money and time and down the road that could be avoided now if the listing was done right