ELR Citation: ELR 20823
No(s). 92-1085 (D.C. Cir. May 11, 1993)

The court holds that the U.S. Environmental Protection Agency (EPA) failed to comply with a prior remand order directing the Agency to produce more than unsupported assumptions for its decision to list a smelting facility on the Comprehensive Environmental Response, Compensation, and Liability Act national priorities list (NPL). The Agency based its decision on its conclusion that arsenic-laden dust particles are likely to originate from tin slag at the facility. However, the Agency never conducted chemical analysis to confirm that arsenic particles on the slag came from the slag. Without any evidence showing that the slag releases dust or is likely to do so, the presence of arsenic in the soil merely points to the one known source of arsenic—the facility's smokestack, which has a federal permit to emit arsenic. The court orders EPA to remove the facility from the NPL.

[The court's prior decision is published at 21 ELR 21112.]

Counsel for Petitioner
Stephen Shulman
Cadwalader, Wickersham & Taft
1333 New Hampshire Ave. NW, Ste. 700, Washington DC 20036
(202) 862-2200

Counsel for Respondent
George B. Wyeth
Office of General Counsel
U.S. Environmental Protection Agency
401 M St. SW, Washington DC 20460
(202) 260-2090

Before: D.H. GINSBURG, SENTELLE; and RANDOLPH, Circuit Judges.