ELR Citation: ELR 21493
No(s). 90-1556 (D.C. Cir. Aug 28, 1992)

The court holds that the U.S. Environmental Protection Agency (EPA) properly decided to list a company's inactive mercury mine on the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) national priority list (NPL), based on the agency's ratings calculations under the hazardous ranking system (HRS). The company's mine site is adjacent to an inlet of a lake, and 17 acres of mine tailings 5 to 15-feet high were piled in close proximity to the inlet, exposing approximately 2,060 feet of the inlet shoreline to mine wastes. The court first finds that sufficient evidence supports EPA's determination that there was an "observed release" into the surface water. Although differences of opinion exist as to the best evidence of background mercury levels in the lake, no evidence was presented that EPA acted arbitrarily or capriciously when it selected bottom sediments as its marker. Nor does the presence of naturally occurring mercury in the samples taken from the mine site render them useless for determining whether a release occurred that was related to mining activities. A study commissioned by the California Water Quality Board substantially supports the relationship between the mine tailings and the high levels of mercury in the lake inlet. Moreover, an analysis of the sediments indicates a strong correlation between the deposition of mercury along the lake bottom and mining activities. The court notes that in the face of this evidence, the court cannot quarrel with EPA's conclusion that an observed release of mercury occurred. Finally, the court declines to consider the mining company's argument that EPA failed to meet its obligation under CERCLA §105(g)(2)(A), which requires the government to consider the extent to which its HRS score for a facility is affected by the presence of any special study waste, including solid wastes resulting from the extraction and processing of ores and minerals. The mining company's initial brief specifically stated that it would not address that issue, and in response, EPA did not discuss the impact of the special waste study provision in its brief. Considering an argument first advanced in a reply brief is unfair to an appellee and entails the risk of an improvident or ill-advised opinion on the legal issues raised.

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

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