ELR Citation: ELR 21359
No(s). s. 90-1253, -1262 (D.C. Cir. Jul 12, 1991)

The court upholds the Environmental Protection Agency's (EPA's) addition of three sites to the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) national priorities list (NPL) after the agency failed to meet the CERCLA §105(c)(1) deadline for revising EPA's hazard ranking system (HRS). The court first holds that Congress did not intend to suspend EPA's authority to list sites on the NPL between October 1988, the statutory deadline for revising the HRS, and March 1991, the effective date of the revised HRS. CERCLA §105(c)(1) specifies no consequences for EPA's failure to comply with the statutory deadline. The legislative history indicates that Congress was primarily concerned about the fairness of the HRS toward high-volume, low-toxicity sites such as mines, a problem for which it devised a specific interim remedy. Further, the legislative history indicates Congress' concerns about disrupting EPA's remedial efforts and Congress' consideration that citizen suits are a remedy for agency inaction. The court notes that the U.S. Supreme Court has declined to restrict agencies' powers when Congress has not indicated any intent to do so and has crafted less drastic remedies for agency failure to act.

The court next rejects the individual listing challenge of the owner of an electrical and pneumatic foot switches and wiring harnesses site. The court holds that EPA's reliance on 1986 arsenic data in making its listing decision was not arbitrary or capricious, because arsenic data from 1987 and 1988 was not part of the administrative record. Although the site owner submitted the 1987-1988 data to EPA's Region I office pursuant to an unrelated administrative consent order between the company and the agency, the site owner never submitted the data to EPA's Hazardous Site Evaluation Division, which was conducting the NPL rulemaking proceeding.

The court also rejects the individual listing challenge of the owner of a refrigeration manufacturing site. The court holds that, in scoring the site for listing on the NPL, EPA properly declined to consider prior remedial actions at the site and did not err in calculating the quantity of hazardous waste or the population at risk.

Finally, the court rejects the individual listing challenge of the owner of an electrical equipment manufacturing site. The court holds that the site owner waived its challenge to EPA's authority to aggregate that site with other sites into a single NPL listing, because the owner failed to raise this challenge during the agency rulemaking proceedings. The court further holds that EPA's application of its aggregation policy to these sites was not arbitrary or capricious. The same substances were deposited at the aggregated sites by the same potentially responsible party, EPA reasonably concluded that the sites all threaten the same surface water resource, and EPA's decision to aggregate three of the sites did not diverge from agency precedent.

Counsel for Petitioners
Sheila D. Jones
Cutler & Stanfield
700 14th St. NW, Washington DC 20005
(202) 624-8400

Sherry W. Gilbert
Anderson, Kill, Olick & Oshinsky
2000 Pennsylvania Ave. NW, Ste. 7500, Washington DC 20006
(202) 728-3100

Robert O. King, L. Gray Geddie Jr.
Ogletree, Deakins, Nash, Smoak & Stewart
300 N. Main St., P.O. Box 2757, Greenville SC 29602
(803) 271-1300

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

George Wyeth
U.S. Environmental Protection Agency
401 M St. SW, Washington DC 20460
(202) 260-2090

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

Opinion for the Court filed by Chief Judge MIKVA.