ELR Citation: ELR 21175
No(s). 90-1569 (D.C. Cir. May 1, 1992)

The court holds that the U.S. Environmental Protection Agency (EPA) acted arbitrarily and capriciously in placing a county landfill on the national priorities list of known or threatened releases of hazardous substances under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA). The court holds that EPA improperly calculated the landfill's waste characteristic score for the CERCLA Hazardous Ranking System by using only unfiltered groundwater samples. Although no regulatory requirement demands the use of both filtered and unfiltered samples, the court holds that EPA's action was arbitrary because the Agency's own experts have recommended using both filtered and unfiltered samples, and EPA has not demonstrated that it would be too burdensome to do so. The court holds, however, that EPA acted properly in calculating the landfill's distance to nearest well/population served score. The court also rejects the county's argument that EPA should have excluded irrigation wells in calculating the population served score because the county failed to present the issue to EPA before petitioning for judicial review. Although the county did not previously address the issue of irrigation wells, the court recommends that EPA recalculate the site's distance to the nearest well/population served score to exclude irrigation wells.

Counsel for Petitioner
William Roger Truitt
Piper & Marbury
36 South Charles St., Baltimore MD 21202
(301) 539-2530

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

Before: MIKVA, Chief Judge, EDWARDS and RUTH B. GINSBURG, Circuit Judges.