ELR Citation: ELR 21171
No(s). 91-1210 (D.C. Cir. May 1, 1992)

The court holds that the U.S. Environmental Protection Agency (EPA) arbitrarily and capriciously placed a county landfill in Maryland on the national priorities list of known and threatened releases of hazardous substances under the Comprehensive Environmental Response, Compensation, and Liability Act. Having detected arsenic and other highly hazardous substances at the landfill, EPA assigned to the site a high toxicity characteristic in its Hazardous Ranking System. The court holds that EPA acted arbitrarily and capriciously in failing to explain its departure from EPA's policy of using both filtered and unfiltered groundwater samples to measure purported release from the landfill. The court also holds that EPA may not substitute the identity of the nearest well without public notice simply because the two wells are equal distance from the landfill. The court holds that EPA was obligated to give notice of the well on which it relied for calculating the "distance to the nearest well" factor.

Counsel for Petitioner
Stephen M. LeGendre
Heritage Office Complex
2662 Riva Rd., Ste. 205, Annapolis MD 21401
(301) 222-7827

Counsel for Respondent
Joshua M. Levin
Environmental and Natural Resources Division
U.S. Department of Justice, Washington DC 20530
(202) 514-2000

Before: WALD, WILLIAMS and D. H. GINSBURG, Circuit Judges.