ELR Citation: ELR 21301
No(s). 90-1543 (D.C. Cir. Jun 23, 1992)

The court upholds a decisionby the U.S. Environmental Protection Agency (EPA) to list an Arizona site contaminated with nitrates and heavy metals on the national priorities list (NPL) under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA), despite an EPA policy not to list a site under CERCLA if it can be cleaned up under Subtitle C of the Resource Conservation and Recovery Act (RCRA). The court first notes that EPA has found the policy inapplicable where it is uncertain whether RCRA covers the pollution, and EPA has determined in this case that it is unclear whether a RCRA Subtitle C corrective action could address the contamination of groundwater by nitrates at the site. The court further notes that listing on the NPL does not mean that the site will be cleaned up under CERCLA. The court holds that the Agency correctly determined that neither RCRA §3008(h) nor §3005(c)(3) clearly applies to nitrates, because nitrates are neither hazardous waste nor hazardous constituents. The court notes that EPA's doubts about its ability to apply RCRA corrective action were not insubstantial and its conduct was consistent with its policy, because the company whose plant contaminated the site neither unconditionally offered to proceed under RCRA nor accepted any of EPA's cleanup proposals. Finally, the court defers to EPA in the absence of specific reasons to discredit EPA's factual findings on which the NPL listing was based.

[A related case is published at 21 ELR 20115.]

Counsel for Petitioner
Don D. Skypeck
Gallagher & Kennedy
2600 N. Central Ave., Phoenix AZ 85004
(602) 530-8000

Counsel for Respondents
Lawrence E. Starfield, Acting Ass't Attorney General
Environmental Protection Agency
401 M St. SW, Washington DC 20460
(202) 260-2090

Before: MIKVA, Chief Judge, SILBERMAN and WILLIAMS, Circuit Judges.