ELR Citation: ELR 21430
No(s). 95-1324 et al (D.C. Cir. Jun 25, 1996)

The court upholds the listing of the Tulalip Indian Reservation landfill site in Washington State on the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) national priorities list (NPL). The court first upholds the U.S. Environmental Protection Agency's (EPA's) use of unfiltered samples from the site, because petitioners do not impugn the reasoning behind EPA's selection among concededly imperfect alternatives, and the decision is a technical one within EPA's expertise. Also, it is not unreasonable for EPA to use unfiltered samples at this site and filtered samples at other sites. The court further holds that EPA's bases for attributing contaminants to this site are adequate, despite petitioners' allegation that the attribution to this site of hazardous substances detected in the samples failed to recognize that the area from which they were taken is routinely inundated by tidal water that allegedly deposited contaminants from other sources. The court holds that EPA did not act arbitrarily or capriciously in concluding that alleged problems in the quality of work in laboratories EPA used for analyzing samples from the landfill did not require "starting from scratch" on those samples.

The court rejects petitioners' challenge to EPA's conclusion that the landfill is located in wetlands, because petitioners failed to make any specific objection to the wetlands determination until their reply brief. The court rejects the claim that because contamination of the site may have resulted from another party's violation of a Federal Water Pollution Control Act permit, the listing decision was arbitrary and capricious. EPA replied that listings do not turn on an assignment of responsibility for the contamination. The court rejects petitioners' argument that EPA violated the Administrative Procedure Act (APA) by failing to provide them with an opportunity to comment on certain documents. Petitioners submitted their comments, to which the documents responded, well after the close of the comment period. The court rejects the argument that ex parte communications from the Tulalip tribe to EPA tainted the administrative process, because the individual who received the communications was not involved in the listing decision. The court rejects the argument that EPA violated the APA by failing to include a summary of the ex parte communication in the Tulalip docket, because the APA notice-and-comment provisions do not contain language requiring such action. And the court rejects the claim that because EPA failed to transmit a copy of the final listing rule to Congress simultaneously with promulgating the rule, the listing decision is invalid. Although the court questions whether EPA's belated notice could have satisfied CERCLA §305, which allows Congress to veto the rule within 90 days after promulgation, §305's legislative veto violates the U.S. Constitution. Finally, the court dismisses as moot several procedural motions.

[A related decision is published at 26 ELR 20063.]

Counsel for Petitioners
William R. Truitt
Piper & Marbury
36 S. Charles St., Baltimore MD 21201
(410) 539-2530

Counsel for Respondents
Michael J. Zevenbergen
Environment and Natural Resources Division
U.S. Department of Justice, Washington DC 20530
(202) 514-2000

Before: WALD, WILLIAMS and HENDERSON, Circuit Judges.