ELR Citation: ELR 20497
No(s). 95-1559 (D.C. Cir. Jan 3, 1997)

The court holds that the owner of an abandoned lead smelter site whose property was proposed for inclusion on the national priorities list (NPL) under the Comprehensive Environmental Response, Compensation, and Liability Act is barred from challenging the U.S. Environmental Protection Agency's (EPA's) human toxicity factor (HTF) value for lead. The HTF value is a variable used in determining where on the hazard ranking system (HRS) a site should be listed. The court first holds that because the owner failed to raise its challenge to the lead HTF value until nearly three years after EPA promulgated the amended HRS, its challenge is barred by §113(a)'s statute of limitations. Further, the court holds that if it were to allow the challenge based on the "new studies" exception, the court would undermine the HRS as a means of listing sites on the NPL. The proper place to raise the new studies argument is in a petition for a rulemaking. This avenue protects both the HRS and those challenging the HRS. The court also holds that because the owner failed to pursue a demand for rulemaking before the court, the court need not decided whether a footnote in the owner's comments to EPA constituted a petition for rulemaking. The court next holds that EPA followed established procedures and reached justifiable results in determining the background level of lead for the site. Last, the court holds that EPA's naming of the site after the current owner was not arbitrary and capricious.

Counsel for Petitioner
David B. Weinberg
Weinberg, Bergeson & Neuman
1300 I St. NW, Washington DC 20005
(202) 962-8585

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

Before: EDWARDS, Chief Judge, SILBERMAN, and TATEL, Circuit Judges.