Board of Regents of University of Washington v. E.P.A.
| Citation | 86 F.3d 1214 |
| Decision Date | 25 June 1996 |
| Docket Number | 95-1352 and 95-1376,Nos. 95-1324,s. 95-1324 |
| Parties | , 318 U.S.App.D.C. 220, 110 Ed. Law Rep. 543, 26 Envtl. L. Rep. 21,430 BOARD OF REGENTS OF the UNIVERSITY OF WASHINGTON, et al., Petitioners, v. ENVIRONMENTAL PROTECTION AGENCY and Carol M. Browner, Administrator, Environmental Protection Agency, Respondents. The Balance Council, Intervenor. |
| Court | United States Courts of Appeals. United States Court of Appeals (District of Columbia) |
On Petitions for Review of an Order of the Environmental Protection Agency.
William R. Truitt, Baltimore, MD, argued the cause, for petitioners. With him on the briefs, were Gina M. Zawitoski, Baltimore, MD, William R. Weissman, Washington, DC, and Thornton Wilson, Seattle, WA.
Michael J. Zevenbergen, Trial Attorney, United States Department of Justice, argued the cause for respondents. With him on the brief were Karen H. Schodowski, Trial Attorney, United States Department of Justice, Lois J. Schiffer, Assistant Attorney General, and Alan H. Carpien, Counsel, Environmental Protection Agency.
Michael W. Steinberg and Hunter L. Prillaman, were on the brief, Washington, DC, for intervenor.
Before: WALD, WILLIAMS and HENDERSON, Circuit Judges.
Opinion for the Court filed by Circuit Judge WILLIAMS.
Tulalip Landfill is located on Puget Sound in the State of Washington. It was operated from 1964 to 1979, when it was closed under a Clean Water Act consent decree that required construction of an impermeable "berm," a barrier around the landfill, to prevent leakage. Leakage occurred despite the berm, and in 1988 the Environmental Protection Agency ("EPA") inspected the site and sampled what it said was leachate leaking out of the berm, as well as pond water on top of the landfill. Significant concentrations of hazardous substances were found in both sets of samples. The EPA, acting under authority granted by the Comprehensive Environmental Response, Compensation, and Liability Act, 42 U.S.C. §§ 9601-9675 ("CERCLA"), responded by adding Tulalip to the National Priorities List ("NPL"), a list of contaminated sites for which the EPA has found the "urgency" of remedial action to be greatest. 42 U.S.C. § 9605(a)(8)(A) & (B); National Priorities List for Uncontrolled Hazardous Waste Sites, 60 Fed.Reg. 20,330 (1995) ("Listing Decision").
The EPA bases its listing decisions for the NPL on the Hazard Ranking System ("HRS"), which assigns a numeric value to each site under a complex, multi-factor formula. Listing Decision, 60 Fed.Reg. at 20,330. The cut-off value for listing is 28.5. In its final ruling the EPA assigned a score of 50 to Tulalip, but in this court it focuses on only the "environmental threat" factors for the "surface water pathway," which under its calculations were alone enough to yield a score of 30. Petitioners, who are potentially responsible for clean-up costs at the site, challenge the listing of Tulalip on a variety of grounds. Most of their claims go to the application of undisputed legal rules to the site and are therefore reviewable under the "arbitrary and capricious" standard of 5 U.S.C. § 706(2)(A). See Kent County v. EPA, 963 F.2d 391, 393 (1992). We conclude that the listing is not arbitrary, capricious, or otherwise not in accordance with law.
* * *
The Balance Council, an organization representing "labor and business" interests in the State of Washington and an intervenor here, urges us to use this case as a vehicle for announcing a departure from what it views as an overly deferential standard of review for NPL listing decisions. Intervenor notes that listing a site virtually assures costly clean-up of the site, and that this probability in turn has significant immediate consequences for both surrounding property values and the liability of "potentially responsible parties" such as petitioners. Thus, intervenor says, listing decisions are serious matters deserving of more than a "watered-down" version of the arbitrary and capricious standard.
Intervenor's mistake lies in its belief that our application of the arbitrary and capricious standard to listing decisions is watered down. To support that belief, it points to language in Eagle-Picher Indus., Inc. v. EPA, 759 F.2d 922 (D.C.Cir.1985), where we accepted the EPA's claim that Id. at 932. But the EPA's claim there was not made in support of a relaxed standard of review; rather it was offered in response to an argument that NPL listing required a showing of "imminent and substantial danger." Id. As we have explicitly recognized, a decision to list a site may have severe consequences for affected parties. Kent County, 963 F.2d at 394. See also Tex Tin Corp. v. EPA, 992 F.2d 353 (D.C.Cir.1993) (); National Gypsum Co. v. EPA, 968 F.2d 40 (D.C.Cir.1992) (vacating a listing); Anne Arundel County v. EPA, 963 F.2d 412 (D.C.Cir.1992) (same). Thus, Eagle-Picher did not suggest that our reviews of listing decisions should be of the rubber-stamp variety, and they have not been.
Source of Hazardous Substances Found in the Tulalip Samples.
Petitioners' most substantial challenge to the listing decision is their claim that the EPA wrongly attributed to the landfill the hazardous substances found in the samples taken from the berm area. They argue that the EPA, in using "unfiltered" samples--ones containing naturally occurring metals from the surrounding soil--created an unacceptable risk of wrongly attributing to the landfill hazardous metals that are in fact unrelated. Petitioners emphasize that the use of unfiltered samples was the basis for this court's actions in Kent County and Anne Arundel County, vacating the listing decisions at issue.
The EPA explained in the course of the listing decision that the appropriateness of filtering depended on whether the sample is a ground water sample, as was the case in Kent County and Anne Arundel County, or, as here, a sample of surface liquid, such as leachate.
Ground water sampling techniques (such as well drilling) are invasive, and may taint the samples with soil particles that contain naturally occurring metals not caused by the release being evaluated. Using unfiltered samples might result in an overestimation of contamination caused by the release. ...
These problems do not apply to surface water and leachate sampling, because the sampling medium is immediately available and visible to the sampler. Surface water sampling methods do not require well drilling, disturbance of sediments, or other "invasive" sample collection techniques (typically associated with ground water sampling) that can lead to sample contamination.... This means that the samples are likely to be representative of conditions in the surface water body being sampled.
Support Document for the Revised National Priorities List Final Rule--April 1995 ("Support Document"), at 2.3-123. The cost of relying on unfiltered samples is the risk of overestimating contaminants. Id. at 2.3-122. But filtering, although it does not remove dissolved metals, which are generally the more toxic, does remove certain "suspended or colloidal solids," risking an underestimate of the site's dangers. Id. at 2.3-124. So there is a risk of error either way. With the surface water samples involved here, the concern about overestimation of contaminants from the use of unfiltered samples is reduced, thus improving the case for non-filtration, as well as providing one (but not the only) distinction from the Kent County and Anne Arundel County cases. Petitioners do not impugn the reasoning behind the EPA's selection among the concededly imperfect alternatives. Accordingly, and particularly as the decision is a technical one within the EPA's expertise, we naturally defer to the decision. See Baltimore Gas & Elec. Co. v. NRDC, 462 U.S. 87, 103, 103 S.Ct. 2246, 2255, 76 L.Ed.2d 437 (1983) ().
The distinction between surface and ground water coincides with another distinction between this case and our decisions in Kent County and Anne Arundel County. In those cases the EPA had adopted guidelines for the region stating that because of the different risks of filtered and unfiltered samples it was best to use both when conducting ground water tests. Kent County, 963 F.2d at 397; Anne Arundel County, 963 F.2d at 416. At the specific sites the agency had used unfiltered samples only, contradicting the regional policy, and it was this inconsistency that led us to find that the EPA had acted in an arbitrary and capricious fashion. Here, in contrast, the standard operating procedures for Region 10, where Tulalip is located, promulgated in September of 1988, a few months after the Tulalip samples were collected, provided that "sample filtration is NOT recommended" for inorganic surface or drinking water samples. Memorandum from John Osborn to Jeffrey Villnov (Sept. 2, 1988), at 1-2.
Petitioners seek to supplement the record on review with documents indicating that the EPA has used filtered samples at other sites within Region 10. We assume without deciding that a petitioner may use documents from other proceedings to show such discrepancies without having made them part...
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