ELR Citation: ELR 20151
No(s). 89-1445 (D.C. Cir. Nov 2, 1990)

The court holds that petitioner's suit challenging the Environmental Protection Agency's (EPA's) decision to include property owned by petitioner on the National Priorities List (NPL) is untimely under the 90-day review period in §113(a) of the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA). In 1983, EPA promulgated the initial NPL, which included two portions of Commencement Bay, part of Puget Sound, Washington. In 1984, petitioner notified EPA that it had become aware that hidden deposits of hazardous waste on its property were seeping underground into nearby municipal waterways leading into Commencement Bay. In 1989, EPA notified petitioner that its property was considered part of the earlier-announced Commencement Bay site and that it was considered a potentially responsible party for the costs of cleaning up both its own property and the Bay. The court holds that judicial review of the property's inclusion in the NPL is now untimely. Petitioner had reasonable notice years ago that its property was potentially affected by the 1983 site listing, and it failed to seek judicial review within the 90-day limitations period imposed under CERCLA §113(a). Although petitioner's property clearly fell within the broad compass of the 1983 Commencement Bay listing, any doubt about the sufficiency of the notice provided petitioner by that listing vanished when petitioner's own consultant advised that its property was contributing to the pollution of the Bay and petitioner advised EPA accordingly.

Counsel for Petitioner
Deborah L. Cade, Kenneth O. Eikenberry, Charles F. Secrest
Office of Attorney General
Transportation Division, 5th Fl., Highways-Licenses Bldg., Mail Stop B-52, Olympia WA 98504-8099
(206) 753-6126

Counsel for Respondent
Russell M. Young, Richard B. Stewart, Ass't Attorney General
Environment and Natural Resources Division
U.S. Department of Justice, Washington DC 20530
(202) 514-2000

Before: EDWARDS, D.H. GINSBURG, and SENTELLE, Circuit Judges.