may please the court my name is joe love it here on behalf of appellants the only issue in this appeal is whether the court or rationally considered cumulative impacts from biological impairment associated with surface coal mining tributaries or the branches of the tree banda hollow in rayless fork or the lowest branches of the tree coming in to the trunk that is dangerous run so to perform an adequate cumulative impact assessment the core had to know something about the water quality in the trunk i think it's run itself and not just in the branches or the tributaries you know it's just a basic question what if when the prayer for relief order them to prepare an e i us only to reconsider its decision it's e a s environmental assessment to determine whether or not based on an analysis of doing this run itself there are cum hundred or i think it would be different your honor because one hundred two page report has a lot of water quality data but almost no data about the central issue in this case which is the impact of conductivity on impairment or on aquatic life all of the water quality data with four exceptions go to conventional water quality criteria screen chemistry like iron manganese aluminum those kinds of traditional environmental mining impacts but there's very little analysis of the central issue of this appeal and of e p a and the science is concerned which is the effect of conductivity in the watershed on aquatic life so that is really what the court failed to examine and what it had to examine to reach a rational conclusion here it didn't really look at those issues if you look at the record the core environmental decision document the core addressed  conductivity and impairment in only on only four samples the rest is really irrelevant to this appeal three of those samples were in rayless fork where there is no value fill the other sample is the one in gets run but the west virginia department of environmental protection took which shows their impairment so it shouldn't result you war on remaining and you want a greater number of samples taken throughout the entire wa well i think that's up to the core i think really what the core has to do is assess the science of conductivity as e p a has told it to do must assess that science and make a determination about whether it has enough information to make a determination that there will be no cumulative impacts resulting from this mine so i think the core could gather the information from wherever it will but it has to go back to the drawing board and assess the issues that it's can just sort of jump through hoops my personal view is that is it that is needed it's needed for west virginia for virginia and kentucky and new kentucky's not in the fourth circuit but there's a lot of this mining occurring everything turns on this issue about conductivity the corps has refused to address it and you can see that in any of it's permit issuances and it's certainly if you refuse to address it in this decision document so i think personally that i guess would be useful you know the a at that point then dropped its objections and so i think their point is you know whatever reservations they were the beginning changes were alternatives analysis which is on page one forty three of the ten dicks that says the adaptive management plan should contain a sequence of specified actions to be taken in response to specific specified levels identified by sampling results including levels of conductivity total dissolved solids so lenny and west virginia stream condition index scoring so that to get that that point is the heart of this case because it is the place in this letter that ties together  aquatic life that's the west virginia stream condition index scoring and contacted he did not do that e p a said it may have been comfortable with the permit if the court required the applicant to do that but the corps did not explicitly drop its objections in september it did not never specifically well e p a doesn't make specific objections to a court permit i mean it could be ultimately that i body informally and by letters well that letter that is the one i'm reading from is a september letter that's the last document we have from e p a and what it said was in that letter if the corps requires hyland to do these things then we think the permit may be issued it also says though believe this is in the same letter of the september letter we believe that with appropriate permit conditions the applicant could move forward those that meeting as far as i know never took place there were no appropriate permit conditions and of course this adaptive management plan was never adopted so i think that this letter if the court followed it we may be in a different place but the court did not take e p a s recommendation here you're putting us in the position of second didn't hire a consultant it didn't even pick up the phone to talk to a scientist that was capable of understanding about you know kimberly braille kimberly court brown is not a she admitted in her it during the trial that she was not an expert in that she has a a in chemistry it's not no biology and this is a biological issue i think she admitted she wasn't an expert and we cited that in our brief so kimberly court brown is the only person at the court that reviewed this  a a regulator and she did not have the expertise to understand the issues therefore i'm not asking you to second guess the scientists but she because he didn't have that expertise she couldn't rationally apply the facts she couldn't reach a conclusion based on the evidence before her because she wasn't qualified and we're not arguing as the industry says that we are that but that the court has to hire x outside experts that have p their fields just that it has to have somebody qualified to understand the scientific issues before it and to analyze them and explain the decision another missing thing from this document is there is no explanation anywhere in the decision document about why upon study greg pond the seminal study in the area was wrong that ordinary the only science on the matter was cut in your direction i think that's right i think the judge but lo said the same thing but i think it's clear that's the case but i'm not even talking about the hearing itself or the expert testimony that the core decision document is missing any scientific analysis any understanding or explanation of how it reached this conclusion and why greg pond from e p a and all of the studies that say that conductivity is a problem why those aren't valid there's no assessment of that it's the central issue in the peel and yet the quarter completely ignored it in its decision document talks a lot about other water quality issues ones that aren't really relevant here highland also in its brief raises a lot of other water policy issues but those are not relevant the only relevant issue is the relationship among conductivity stream impairment and aquatic life and that is a central issue in this mining has been for a long time the core refuses to address it so not a battle of the experts your honor and i don't think i'm asking i'm not attempting to ask you to second guess any scientist just to hold the court of the standard of explaining itself and at least understanding the science and showing that it understands its so there are two key facts in the appeal the first is that the west virginia t sampled the the aquatic life in the trunk in doing this run this goes back to the baseline data that's the only point there's one point of analysis in this case in the trunk in doing this run where the cumulative assessment had to occur and that shows that dingus run is impaired and that means that the aquatic life that should be there is unfair and it's impaired is so m d e p determine that it's the only department still stuck by a certification i can't speak for the d p it has never as far as i know withdrawn a water quality certification i can say that the west virginia department of  samples or take or number two the certification withdrawn why would you have one sample and have it negative and have it showing a degree of impairment at a truck and then not take additional samples but also not withdraw the earlier certification i mean this is how does that add up it's really inexplicable your honor i think that the reason i can tell you answer one of those question is the reason that the sample was taken because the state every five years or three years has to go in sample sample streams and turn in what's called a three or three d us to e p a to determine which streams are impaired so that sample was taken by d in its normal course of business to determine which streams are impaired it wasn't related specifically to this project was just part of its normal sampling what is impaired me means that it's not supporting its aquatic life use this report indicated stream condition index it's a very low score showing it to be extremely impaired so there's no question it i'm i'm suggesting that they were i thought there was evidence suggesting that there was viability evidence by insects in the support the life that is supposed to be there in other words certain you know insects or fish are more sensitive to pollutants than others and the stream has to support those organisms as well as those that are toleran bonding to your answer on him here which you said it doesn't support life it does i thought the report indicated that it was they used the word viable what i intended to say was that it didn't support aquatic life uses and that's you know just baloney language from the from the clean water act an aquatic life uses means that it supports all the aquatic life that it would support if it weren't weren't for the pollutant in it so a whiskey score of west virginia stream condition index score of thirty three is a very low score it shows that there are organisms missing from that stream that should be there and that's a fundamental finding under the clean water act of impairment and that is the key here it's the only measurement of impairment in dingus run in this case that's that even if even if that score weren't there even if there were no score the core then would have no way of assessing the water quality of dingus run and of course it says that it has good water quality so the cores are wrong its cumulative impact assessment is inadequate because it never looked at the trunk the place that it's supposed to look in the place that d e p t looked and understood that's where you look for a cumulative impact assessment so the only point there shows extreme impairment thank you you've got some time remaining  you may please the court my name is michael graham here on behalf of the corps of engineers if i can i'll i'll start by addressing the order of the sampling that mr loved was just talking about and then back up and talk about what the corps actually looked at to establish its baseline information and then the process and the best management practices that the corps established the sampling and if you look at page three seventy five of the joint appendix the sampling that resulted in the three zero three d listing was taking on september fourteenth two thousand and five through the for a one certification here was issued in two thousand and eight and the actual three a three d listing based on the i a couple of things of it first i think obviously the for one certifications issued by the state i'm not here to defend it but i think i can explain where the state was coming from i hope one of the things that they said in the r three a three d listing was that the the source and cause of the of the low score were unknown so you have a low biological store of even score but even the state said we don't know  other sampling that's in the cumulative hydrologic impact assessment that the document the state prepares and the issuing the smacker permit and this goes back to the baseline because that's one of the documents that the corps relies on here  and the point of argument is that the court didn't look at the trunk or any of the upper branches but that's just not true if you look at the cumulative hydrologic impact assessment which is in the joint appendix at three ninety nine to four  they're saying that you look at a very small area of tributaries but you really didn't get into sampling the receiving stream and what i'm saying is that is that is wrong and it's wrong because we did have those samplings stations in the project area that that can set up but we relied on the cumulative hydrologic impact assessment and the discussion of that's at pages two forty seven to forty eight of the joint appendix and that a document where where did you sample  years they included in addition to bam a hollow freeze fork which is a tributary equivalent to bam the hollow but up stream ending is from george's creek same thing rock house branch can't branch pine for the hollow big dark or low mark mash the similar cumulative impacts analysis there that the court said it was it deferred to the core looking at that document as part of the water quality discussion in that case and so that's a that's a legitimate document under this court's precedents for the court to be relying on and it includes threshold monitoring at the mouth of being gets run and it concludes that document concludes this mine should not cause material damage to the h regime you have that document in combination with the four a one certification which the core look that and the four are to permit which the state also didn't make any changes to and if you take it let me ask you just a procedural question in that is what is the big of jack show to doing and an environmental impact statement this is obviously something congress in vision and  before you put thirty eight million cubic yards into the valley field just have your eyes and ears open and understand a little bit  more of what you're doing it's a process kind of thing and yet there seems to be so much objection to doing this one document i don't know is it is it too much time and trouble or are you afraid of what you might find but just intuitively so what what i'm having a tough time with is thirty eight million cubic yards of being put in a valley feel whole and some of the state sampling indicates there may be a problem in e p a s march two thousand now an objection are pretty seriously spaded and yet notwithstanding the quantity of the discharge and the potential civil sensitivity we're saying over there is no significant environmental impact and then we have a statue here that says we will do this if you just digging in against any environmental impact statement and i just i just you know i just wonder why  because this is not something that the holocaust causes you to halt in your tracks it's something that it's just a process value that says you know that let's be aware of what we're doing before we do it it isn't i don't think that there is any standing objection to doing an environmental impact statement if if the corps found that that was necessary but it went through a process  here you mention e p a issued some objections in the core had a number of discussions with the p a and adopted a number of the best management practices including monitoring by monthly monitoring directing cumulative impacts from this in future mans will be persistent and permanent and cannot be sufficiently or effectively compensated through the proposed mitigation then it asserts that the propose project quote will result in significant impacts to the human environment and i realize there were consultations after that there were proposed there were mitigation measures propose it comes with a a softer letter in september but it also say in you know it's also a little bit contingent and it's it's  but well let's be let's be clear about one thing which is that e p a s letter the initial letter mark not the march letter is not simply asking for an environmental impact statement its recommendation was denial of the permit because the standard of the clean water act significant degradation and so the corps then worked with the p a to say are there are there conditions we can impose on this and monitoring that will make this a non significant degradation under the clean water act which the corps then believes is also a non significant impact under the national government policy act although there may be some room between those two concepts i'm not sure significant means exactly the same thing in both statutes but where e p a was then satisfied if you if you impose these conditions and impose the monitoring you're not going to have to deny the permit under the clean this court said is information the corps can rely on in the or chemical case and then you have e p a come in with some objections and the corps engaged in a process and said how can we do this and it would they came up with five best management practices that the corps impose as well as the monitoring plan with bimonthly monitoring at with further conditions should the impacts at the point of sphere be found at that point that is a am maybe i'm missing something i fought that the objections were complaints about the baseline evaluations of the water  and that the data collected weren't adequate to accurately reflect what the condition of the water is now and i understand from the report that the condition of the water now clearly reflects one hundred years of mining or more and there is always been some pollutants in that stream some natural and some from previous mining and so the first attempt is to find a baseline second step is to predict what the new mine will cause to that baseline if it's and i thought the objection was mostly with determining the baseline in this case whether that was rational because the predictive effect it doesn't seem to be that challenge them and they know exactly what's going to be done and the question is whether it's going to  impacts to correct decision on significance but as you say that's not based on the court's failure to look at something it's a disagreement with gore's gone and where the where the rocks are going to be put and what's in the brains for instance selenium is not even relates to mining generally information the court looked at its looked at two other studies that reached different conclusions about the ultimate impacts of cost of mining downstream  and weigh that against the pond study and concluded that with the best management practices this could go forward they disagree they they think that there is a real you know strong correlation then we should have reason to think what losing my line if that's correct then it seems to right and there are there are statements throughout the document in response to the comment saying that no compelling evidence that is specific to this mine has been brought forward by by anyone e p a or or the plaintiffs it's a general scientific a listing based on this west virginia stream condition index of mr lovett mention this case as judge chambers found was a is about water quality the ix the claims of the appellant's were exclusively about water quality the measurement used the two thousand and five measurement is not a water quality measurement it's a measurement that looks simply at the assembly job bugs that are in the street many other things and it's undisputed in the record can cause changes to the sensitive bugs in the stream doesn't have to be a pollutant or even a discharge to the street cutting trees down impervious so you material saying  and west virginia sampling would meaningless it's it's not meaningless is relevant but i think but the court found was that it was not material here and that what i was going to get to was the and that explains all but the difference between the three  three delisting and the four one certification the four one certification is looking at whether discharge is a film not mining with that was reserved resolved in the air coma case the scope for review here is limited to whether the discharges of film material under the four or four per four per minute will contribute to a violation of water quality standards downstream in the west virginia d e p s says and it sort of cation it will not it's a different question than whether the stream should be on some has found is the discharges from this mine will not substantially my question here right at the end which was when we do an e t a in a case like this it's a predictive document looking at the mining effort and in this case it's really the portion of the mining which takes the surplus age and puts it in the valley there and the assessment is whether that will create a substantial that predation that's that's correct and to have this fight about the baseline doesn't seem to contribute to a lot until i mean obviously if you create a baseline  and it seems to me to do and the e i a s with respect to that doesn't contribute any of the fifty itself to three and a half years here in this this has been in progress for three and a half years and i asked would contribute more time but no  as far as we know all of the data there are any and any challenge to the rig it sions about what the rot will cause i believe there's disagreement between the experts and that's what judge chambers talks about that there's a fair question in the science here is to  not answer the question pond they claim is the big game changer tween this in the air coma case the pond is not pond simply looked at whether mining is correlated to change in these bugs scores and he states and i quote the premise that mountaintop mining not conduct tippity but mountaintop mining as a whole causes downstream biological degradation is plausible given wholesale landscape changes hydrologic alterations and put potential toxic consider discharge and he goes on to say that toxicity tests on conductivity have yielded mixed results the core of his case and then looked at information unique to this watershed and other mines and determined that in those cases and i think levels does not affect aquatic that's the court concluded that at the with based on the data that was submitted here and if you look at i think the stand i'm just don't understand have acted because if i question about the fact that conduct is caused by water flowing over broken rock but if you look at page i think for sixteen of the joint appendix there you'll see d e p has plotted the aquatic disposal why do you say specifically part from the general quality of the stream and the rest why do you say specifically this is not going to impact  into the stream flow or is that a factor is not going to seep into the groundwater or is that the fact that it's not a significant enough quantity but why is it you're saying were how far from the streams are you going to be placing all the stuff the rock that is regulated by the clean water act is placed in the street and that's why we're here we wouldn't need a permit from the corps of engineers unless you place thirty eight million cubic yards of of waste rocky you know worn away about which there are already questions and it's not going to have a significant environmental absolutely that's exactly what i'm  what does that do this statute in wa why should we why should we have an environmental impact statement to find out because there will not be a significant impact there's no need to do any i a s unless that threshold is passed that it wasn't passed here and what more is any i am going to do here three and a half years after review nothing there's nothing left to be done there's nothing left to be looked at here so he's saying there's really no difference between a  like e i ss but that's for another day i think but there was adequate review here which cite specific data to show that there won't be significant impacts there was water chemistry looked at in doing is wrong there was also benthic data dangerous run that no one has mentioned page two fifty three of the joint appendix there were six sample sites in dentist run itself that were sampled and the court found that those benthic communities looked fairly healthy notwithstanding the hundred years of disturb thank you the reason that the court doesn't want to do any i ass is because it doesn't want to look at this cumulatively it piecemeal stings it's been piecemealing these  permits for years we all know all of the evidence in the record shows the conductivity is extremely high in these streams and that aquatic life is impaired but the core despite issuing a permit after permit that barry more streams than this in these three states will not prepare an environmental impact study just to look and see it doesn't want to confront the science and it very carefully avoids confronting the science and the issue all together in this decision document turn the court's attention to page four a one which mr gray raised age for one of the joint appendix lists all of the streams that west virginia d e p looked at in the chia the cumulative impact assessment the d e p does that the corps says it relies on you let's just focus on paragraph eleven which is doing this run and what the d p said in sulfate concentrations are the same as conductivity so they're saying if you go downstream t d s and sulfates increase the ph iron manganese aluminum are compliant with slight increases downstream so what the d p says on all of these streams is that those pollutants ph iron manganese in aluminum are compliant but water quality is fine for those pollutants we don't argue with that the d p did a fine job in its chia of looking at those conventional pollutants with the d p failed completely to do and what the core failed completely to do is look at the pollutant we're talking about conductivity instant substitute one in the same in other words all of those  is that the corps and the d p have evaded for years now any analysis any scientific analysis of the impacts of conduct to vittie and they did it in this permit and the way they did it is there are four data points here relating to stream impairment three of them the one of which mr mccluskey just mentioned are on rayless fork there is no valley fill in rayless fork so that conductivity number is not really relevant to what we're talking about the only other in the whole the only other conductivity number associated with an impairment number in the decision document and in this joint appendix is the contact of any number run that the west virginia d e p t took huling whiskey score or west virginia stream condition and that score of thirty three showing severe impairment that is the only relevant just the simple terms what you think  is the court mentioned earlier the judge will consider you mentioned earlier that maybe if there's significant degradation the project shouldn't go forward at all that is the requirement of the clean water act under the four of under section four zero four and the four hundred four b one god winds require that there be no significant degradation so if any i a s found that there were going to be significant aggravation the project could not go forward as proposed it would have to be reconfigured different treatment methodology would have to be imposed we would understand for the first time the what kinds of controls can be placed on these mines to protect the aquatic life and comply with the clean water act right now we have nothing this is don't forget all this monitoring is after the fact and this bell cannot be on wrong once that valley fill is placed once all those millions of cubic yards are placed in the stream they can't be taken out and he i a s would force the court to grapple for the first time with the science it has avoided that analysis for years and it's avoided it is if you are good in a comprehensive way what do you what do you mean would have there have been since the pond study the pond study is the seminal study but since the pond study there have been more than three more than twenty papers published on this issue in peer reviewed journals corps has refused to look at them somebody needs to sit down gather all these data together write a report about what they mean for west virginia virginia and kentucky streams before the permits go forward so that the people will as congress intended will at least be informed about what the that project is doing just a natural collapse of rock into the stream you're going to have increased conduct of it right probably because it something from the rock is going to dissolve and that makes sense yeah so the question would be i suspect is that  lot about what mines do to it it's the core that's bearing its head in the sand in doesn't want to know and doesn't want to prepare a report that will allow people in the states to understand what's happening and that's why  is there so that we don't make an informed decisions like the one made here thank you thank you we'll come back a great capsule and then go into the next case