ELR Citation: ELR 20444
No(s). 94-1752 (D.C. Cir. Nov 8, 1996)

The court holds that the U.S. Environmental Protection Agency (EPA) provided adequate notice and opportunity to comment on a final EPA rule that applied land disposal restrictions (LDRs) to contaminated soils and denies an industry group's petition for review of the rule. EPA issued a notice of proposed rulemaking, proposing both universal LDRs and an alternative treatment standard for soil contaminated with characteristic hazardous wastes. The industry group argued that the initial rulemaking and two subsequent notices EPA issued during the LDR rulemaking amounted to a "bait-and-switch" that confused the regulated community, failed to indicate how soils would be affected by the final rule, and violated the Administrative Procedure Act's notice-and-comment requirements. The court holds that considered in combination, EPA's three notices made clear to the regulated community EPA's intent to impose the universal standards on soils. While signaling that alternative treatment standards would be available, the phrasing of the proposed rulemaking, including the use of the word "either," made clear that soils would not be entirely exempted from the universal standards. Although the proposed rulemaking could be read to give parties a choice between the universal and alternative standards, it also indicates that if the alternatives were for some reason unavailable, the universal standards would apply. The subsequent two notices confirmed that if the alternative standards were delayed, the universal rules would apply to soils in the interim. Any misapprehension by the industry group would have been alleviated by a careful reading of the plain language of EPA's notices. The court concludes that EPA provided adequate notice and opportunity to comment; thus upholding the final rule would not undermine the objectives of ensuring public participation or of promoting informed agency action.

Counsel for Petitioners
Steven S. Rosenthal, Norman L. Rave Jr.
Steven S. Rosenthal & Associates
2000 Pennsylvania Ave. NW, Ste. 5500, Washington DC 20006
(202) 887-1574

Counsel for Respondent
Alice L. Mattice
Environment and Natural Resources Division
U.S. Department of Justice, Washington DC 20530
(202) 514-2000

Before: SILBERMAN, GINSBURG, and ROGERS, Circuit Judges.