ELR Citation: ELR 20467
No(s). s. 83-2259 et al (D.C. Cir. Apr 16, 1985)

The court holds that challenges to the Environmental Protection Agency's (EPA's) hazard ranking system (HRS) were ripe during the statutory review period, and that in the alternative, the HRS is reasonable and consistent with the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA). Initially, the court holds that petitioners' challenge to the use of the HRS in including hazardous waste sites on the CERCLA national priorities list (NPL) is barred because it was not filed during the 90-day review period specified in CERCLA §113(a) for regulations promulgated under the statute. The limit is jurisdictional. The court rejects petitioners' argument that, because the HRS had not yet been applied to their sites, the claim was not ripe for review during the statutory period. Those with potential challenges to regulations that are governed by express review deadlines ignore the deadlines at their own peril.

The court rules that petitioners do not qualify for either of the two narrow exemptions to this principle. They have not shown that events occurring after the statutory review deadline created a new claim. Nor have they shown that precedent in the circuit made the HRS claim indisputably not ripe during the statutory review period. Though ruling that petitioners do not qualify for retrospective ripeness analysis, the court performs the analysis, since this is the first decision clearly articulating the standards governing when such review is available. The court rules that petitioners' challenge would have been ripe during the statutory review period. The issues raised were fit for review at the time, because they were purely legal and because neither the agency nor the court would have benefitted significantly from delaying review. EPA's interest in prompt review is confirmed by the language of CERCLA §113(a), EPA's testimony in this case, and the fact that the HRS was a final action. The delay would not have served the court's interests either. The issues were legal, the action final, timely review would have saved judicial resources, and postponing review until the HRS had been applied would not have added to the information on which the court had to base its decision. Though concluding that this analysis resolves the ripeness question, the court adds that extending the period for review would not have been necessary to avoid hardship to the parties.

Having ruled and reasoned that petitioners' challenge is time barred under every possible theory, the court goes on to address the substance of the challenge. It rules the HRS is consistent with CERCLA and its purposes. The statute does not require EPA to apply the same standards in listing a site on the NPL and in deciding to take a response action. As a result, the court must uphold EPA's interpretation if reasonable. The legislative history supports using the HRS as a preliminary screening of sites and more rigorous analysis as a means of deciding whether to take action. The court also rules that EPA's use of the HRS for listing sites is not arbitrary, capriclous, or an abuse of discretion. The agency has offered full and reasoned explanations for the assumptions and methodology used in the HRS. Given its intent to use the model only for initial screenting, the relatively crude nature of the model is acceptable.

[A related case is published at 15 ELR 20460.]

Counsel are listed at 15 ELR 20460.

Before: ROBINSON, Chief Judge, EDWARDS, and STARR, Circuit Judges.