ELR Citation: ELR 21157
No(s). s. 86-1096 et al (D.C. Cir. Jul 20, 1993)

The court remands to the U.S. Environmental Protection Agency (EPA or the Agency) the national contingency plan's (NCP's) categorical rule against delegation of the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) enforcement and remedy selection authorities to states but upholds the NCP's provisions for remedy selection and allocation of operation and maintenance costs between states and the federal government. The petitioners, including several states, challenged various provisions of the NCP. The court first upholds NCP §300.5's limitation of "applicable" or "relevant and appropriate" environmental standards (ARARs) to substantive requirements and, for state ARARs, legally enforceable requirements of general applicability. EPA's regulation is a reasonable and permissible construction of CERCLA under the standard of Chevron U.S.A., Inc. v. Natural Resources Defense Council, 14 ELR 20507 (U.S. 1984). The court fails to reach a challenge to EPA's limitation of federal ARARs to promulgated standards, because petitioners failed to raise the claim during the rulemaking process. Next, the court upholds NCP §300.430(e)(2)(i)(C)'s provision that when EPA has set Safe Drinking Water Act (SDWA) maximum contaminant level goals (MCLGs) at zero, maximum contaminant levels (MCLs), instead of MCLGs, serve as ARARs. The provision represents a permissible construction of CERCLA. The court next holds that NCP §300.430(f)(1)(ii)(D) explicitly prohibits use of cost-benefit analysis to compromise protection of human health and the environment and, thus, rejects the petitioners' assertion that EPA's definition of "cost-effective" allows cost considerations to affect remedial actions' protectiveness. Next the court upholds NCP §300.430(f)(1)(i)(B)'s classification of permanence as one of five primary balancing criteria, rather than as a threshold criterion, to be used in selecting remedial action. Given CERCLA's competing goals, EPA's decision is reasonable. The court then upholds NCP §300.430(e)(2)(i)(A)(2)'s determination that levels of exposure that result in cancer risks within a range of 10<-6> to 10<-4> adequately protect human health and upholds EPA's decision to use a range of risks instead of a "single point." The court next upholds NCP §300.430(f)(4)(ii)'s interpretation that EPA's duty, under CERCLA §121(c), to review remedial action every five years applies only to sites where hazardous substances remain above levels that allow for unlimited use and unrestricted exposure. EPA's interpretation is a permissible construction of the statute. The court next rejects as unripe challenges to the NCP's program expectations and EPA's preamble statements (in the Federal Register preamble to the NCP) regarding use of institutional controls, groundwater restoration strategies, points of compliance with groundwater standards, and other groundwater policies. Because the claims are premised on hypothetical applications of nonbinding statements, the court holds that they should be addressed in site-specific challenges. Similarly, the court rejects as unripe the petitioners' challenge to an EPA statement of preference for SDWA MCLs or MCLGs, over Federal Water Pollution Control Act water quality criteria, as ARARs for groundwater cleanup.

The court remands EPA's categorical prohibition against delegation of CERCLA's enforcement and remedy selection authorities to states. Although EPA may be able to justify certain categorical restrictions on delegation, the Agency failed to offer any reasoned explanation for the restrictions at issue. The court upholds the NCP's regulations governing state/federal sharing of operation and maintenance costs. As between the states and EPA, states generally are responsible for 10 percent of the costs of remedial action, 100 percent of future maintenance costs, and at least 50 percent of all response costs when the state at issue operated the site. The court notes that CERCLA §104(c)(6) provides that states are responsible for only 10 percent of the cost of maintaining ground and surface water restoration remedies for up to 10 years. The court then upholds EPA's exclusion of source control maintenance measures, and measures initiated for the primary purpose of providing a drinking water supply, from the scope of §104(c)(6). Next, the court notes that the question of when a remedy is operational is important to determining the appropriate state/federal cost share. The court rejects as premature the petitioners' challenge to NCP §300.435(f)(2), which creates a rebuttable presumption that remedies are "operational and functional" one year after completion of construction. If EPA refuses to extend the one-year period for remedies when necessary, its decision will be subject to challenge. The court next upholds NCP §300.510(c), which conditions Superfund financing of remedial action on state assurances that necessary institutional controls, such as zoning restrictions, are in place, reliable, and will remain in place after operation and maintenance begins. EPA provided reasonable notice in its proposed rule that it might require such assurances and the rule is not arbitrary and capricious. Next, the court upholds EPA's expectation that states will use their own authority to secure access to sites. If EPA attempts to condition federal funding on a state assurance of site access, the state involved may bring a site-specific challenge. The court next holds that NCP §300.515(h)(3) reasonably provides states with 15 working days to comment on the remedial investigation/feasibility study, record of decision, and ARARs determination, and 10 working days to comment on the proposed remedial plan. The NCP's participation process ensures that these documents will not be unfamiliar to state officials. If EPA refuses to modify review periods in a Superfund memorandum of agreement in situations posing novel problems or extremely complex remedial measures, states may challenge that refusal. The court also notes that CERCLA §121(e)(1) exempts cleanup actions taken "entirely onsite" from state and federal permitting requirements and upholds NCP §300.5's definition of "onsite," which is "at best ambiguous." Although the regulation is not unlawful on its face, if EPA applies it unlawfully, the NCP definition "would doubtless be subject to challenge." Finally, the court holds that petitioners' challenge to the part of the NCP preamble in which EPA proposed to treat noncontiguous facilities as a single site is foreclosed because petitioners failed to raise the challenge before the Agency during the rulemaking process.

Counsel for Petitioners
Donald A. Brown, Victoria L. Peters, Alan C. Williams
The JBG Companies
1250 Connecticut Ave. NW, Ste. 500, Washington DC 20036
(202) 223-0126

Counsel for Respondents
Scott A. Schacter, Alice L. Mattice
Environmental and Natural Resources Division
U.S. Department of Justice, Washington DC 20530
(202) 514-2000
Lawrence E. Starfield
U.S. Environmental Protection Agency
401 M St. SW, Washington DC 20460
(202) 260-2090