Anne Arundel County, Md. v. U.S. E.P.A.

Decision Date01 May 1992
Docket NumberNo. 91-1210,91-1210
Citation963 F.2d 412
Parties, 295 U.S.App.D.C. 309, 60 USLW 2715, 22 Envtl. L. Rep. 21,171 ANNE ARUNDEL COUNTY, MARYLAND, Petitioner, v. U.S. ENVIRONMENTAL PROTECTION AGENCY, Respondent.
CourtU.S. Court of Appeals — District of Columbia Circuit

Petition for Review of an Order of the United States Environmental Protection Agency.

Stephen M. LeGendre, Annapolis, Md., for petitioner.

Joshua M. Levin, Attorney, Dept. of Justice, with whom Barry M. Hartman, Acting Asst. Atty. Gen., and Raymond Ludwiszewski, Acting Gen. Counsel, Earl Salo, Asst. Gen. Counsel, and George Wyeth, Atty., U.S. Environmental Protection Agency, Washington, D.C., were on the brief, for respondent. Michael A. McCord, Atty., Dept. of Justice, Washington, D.C., also entered an appearance for respondent.

Before: WALD, WILLIAMS and D.H. GINSBURG, Circuit Judges.

Opinion for the Court filed by Circuit Judge WALD.

WALD, Circuit Judge:

Petitioner Anne Arundel County petitions for review of a rulemaking pursuant to which the Glen Burnie Sanitary Landfill ("Landfill"), which petitioner owns, was placed on the National Priorities List ("NPL") of known releases or threatened releases of hazardous substances. In particular, petitioner claims that it was arbitrary and capricious for respondent Environmental Protection Agency ("EPA") to use only unfiltered groundwater samples to measure purported releases at the Landfill and to calculate the "distance to nearest well" factor on the basis of a private drinking well the existence of which was never subjected to public comment and that has since been abandoned.

Because we believe that the EPA's reliance on data collected only from unfiltered groundwater samples was arbitrary and capricious and because the EPA was obliged to give notice of the well on which it relied, we grant the petition for review and remand the case back to the EPA for further proceedings.

I. BACKGROUND
A. Statutory/Regulatory Framework

In order to implement the Comprehensive Environmental Response, Compensation, and Liability Act, 42 U.S.C. §§ 9601-9675 (1988) ("CERCLA"), the EPA is responsible for the promulgation and revision of the National Contingency Plan ("NCP"), which sets forth guidelines and procedures to respond to releases and threatened releases of hazardous substances, pollutants, and contaminants. The NCP was required, under CERCLA, to include "criteria for determining priorities among releases or threatened releases throughout the United States for the purpose of taking remedial action and, to the extent practicable taking into account the potential urgency of such action, for the purpose of taking removal action." CERCLA § 105(a)(8)(A) (codified at 42 U.S.C. § 9605(a)(8)(A)). Based on these criteria, the EPA has created a list of national priorities representing the sites subject to CERCLA-funded remedial action.

The primary purpose of the NPL is informative,

identifying for the States and the public those facilities and sites or other releases which appear to warrant remedial actions. Inclusion of a facility or site on the list does not in itself reflect a judgment of the activities of its owner or operator, it does not require those persons to undertake any action, nor does it assign liability to any person. Subsequent government action in the form of remedial actions or enforcement action will be necessary in order to do so, and these actions will be attended by all appropriate procedural safeguards.

S.REP. NO. 848, 96th Cong., 2d Sess. 60 (1980), reprinted in 1 A LEGISLATIVE HISTORY OF THE COMPREHENSIVE ENVIRONMENTAL RESPONSE, COMPENSATION, AND LIABILITY ACT OF 1980 (SUPERFUND), PUBLIC LAW 96-510, at 308, 367 (Comm.Print 1983). The original NPL, promulgated in September 1983, contained 406 sites, see 48 Fed.Reg. 40,658, 40,660 (1983); by February 1991, the total number of NPL sites had grown to 1,189, see 56 Fed.Reg. 5598, 5598 (1991).

A hazardous waste site is placed on the NPL only after rulemaking by notice and comment, see Administrative Procedure Act ("APA"), 5 U.S.C. § 553(c) (1988). The EPA makes this determination on the basis of the Hazard Ranking System ("HRS"). 1 The HRS is a set of criteria which measure the risk of harm to the environment from the migration of hazardous substances from the site by way of three routes: groundwater, surface water, and/or air. The HRS score is derived from the score for each route; these intermediate scores are calculated on the basis of factors related to actual or threatened releases of hazardous substances from the site. Once all of the factors are evaluated and combined for each of the three separate routes, a final numerical value for the HRS score is assigned. If this score is 28.5 or greater, the site is placed on the NPL. See 40 C.F.R. pt. 300, app. A (1990). 2

B. Factual Background

Until 1970, the Glen Burnie Sanitary Landfill was a privately owned, open dump site. It was uncontrolled, and no records of disposal were maintained. Between 1970 and 1982, petitioner operated a dump site at the Landfill under a Maryland state refuse permit. During this period, at least 100 tons of inorganic solids and salts were deposited there. The Landfill was closed in 1982.

In August 1983, samples taken of the groundwater from 11 monitoring wells placed around the perimeter of the Landfill detected elevated levels of both organic and inorganic contaminants. Specifically, the EPA found trichloroethylene, 1,1-dichloroethylene, boron, vanadium, and arsenic in the groundwater at the monitoring wells at significantly higher levels than those measured in the background wells. The EPA concluded that releases from the Landfill had been observed, and it performed remedial preliminary assessments and remedial site inspections to gather further information on the releases. It is undisputed that the EPA based its conclusion that a release had been observed by only testing groundwater samples that were unfiltered; no filtered samples were taken. Because arsenic was the most hazardous substance observed at the Landfill, the EPA calculated the "toxicity/persistence" factor to be "18," the highest possible under the regulations. 3

In addition, the EPA believed that, on the basis of information provided by the Maryland Geological Survey, a domestic well ("Well 32") located approximately 4,600 feet from one of the Landfill's monitoring wells was still in use. Because Well 32 was located between 2001 feet and one mile from the Landfill, the EPA assigned the value of "3" to the "distance to nearest well" factor. 4

In October 1987, after internal review within the EPA, the Landfill received a total HRS score of 37.93. Because this was in excess of the 28.5 cut-off point for inclusion on the NPL, the EPA proposed that the site be included on the list. See 53 Fed.Reg. 23,988, 23,996 (1988). During the comment period, petitioner challenged the EPA's use of only unfiltered samples, arguing that because the practice of the agency was to use both filtered and unfiltered samples, it had acted arbitrarily in relying exclusively on unfiltered samples.

Furthermore, petitioner informed the EPA that Well 32 was no longer in use. In verifying petitioner's claim, the EPA learned that another property owner (the son of the owner of Well 32) was served by a different private well. The EPA did not, however, reopen the comment period or otherwise inform petitioner. Because this second well was also located between 2001 feet and one mile of the Landfill, the EPA did not modify the "distance to nearest well" score. 5 Petitioner claims that the EPA's reliance on this second well without notice deprived petitioner of the opportunity to close it down and to comment on that fact prior to the promulgation of the final rule.

Petitioner seeks review of the EPA's rulemaking on two grounds: First, by failing to filter the samples taken from the monitoring well, the EPA acted arbitrarily by violating its own procedures; second, by failing to disclose the existence of the second well prior to promulgating the final rule, the EPA violated the APA by depriving petitioner of notice and of the opportunity to comment.

II. DISCUSSION
A. Standard of Review

The applicable standard of review is whether the EPA's actions were "arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law." 5 U.S.C. § 706(2)(A) (1988). When this court reviews the EPA's decision to include a particular site on the NPL, it must determine whether the decision is consistent with CERCLA and with the policies underlying the NCP, NPL, and HRS. See City of Stoughton, Wis. v. EPA, 858 F.2d 747, 749 (D.C.Cir.1988); Eagle-Picher Indus., Inc. v. EPA, 822 F.2d 132, 137 (D.C.Cir.1987) ("Eagle-Picher III ").

Specifically, this court has recognized that inclusion on the NPL is not in itself a remedial action:

Instead, the NPL is simply a rough list of priorities, assembled quickly and inexpensively to comply with Congress' mandate for the agency to take action straightaway. Utilizing the NPL, EPA will thereafter perform in-depth examinations of each site on the list to determine whether remedial action is necessary. If EPA determines at that later stage that the release of a "pollutant or contaminant" at a particular site does not present "an imminent and substantial danger," then no remedial action will be taken.

Eagle-Picher Indus., Inc. v. EPA, 759 F.2d 922, 932 (D.C.Cir.1985) ("Eagle-Picher II ") (quoting CERCLA § 104(a)(1) (codified at 42 U.S.C. § 9604(a)(1))).

B. Unfiltered Samples

The EPA concluded that a release of arsenic had occurred at the Landfill, justifying a "toxicity/persistence" score of 18. Petitioner argues that this conclusion was based solely on sampling groundwater that was unfiltered, contrary to EPA policy. 6

Our resolution of this issue is governed by the analysis of the identical question in an opinion issued today by a separate ...

To continue reading

Request your trial
14 cases
  • National Min. Ass'n v. Mine Safety and Health Admin.
    • United States
    • U.S. Court of Appeals — District of Columbia Circuit
    • 17 Junio 1997
    ...parties could not reasonably have 'anticipated the final rulemaking from the draft [rule].' " Id. at 1275 (quoting Anne Arundel County v. EPA, 963 F.2d 412, 418 (D.C.Cir.1992)). "[W]e inquire whether the notice given affords 'exposure to diverse public comment,' 'fairness to affected partie......
  • Shays v. F.E.C.
    • United States
    • U.S. District Court — District of Columbia
    • 18 Septiembre 2004
    ...interested parties reasonably could have anticipated the final rulemaking from the draft rule." Anne Arundel County, MD v. U.S. Environmental Protection Agency, 963 F.2d 412, 418 (D.C.Cir.1992) (internal quotation marks and alterations Plaintiffs claim, in conclusory fashion, that the final......
  • Schwalbach v. Comm'r of Internal Revenue
    • United States
    • U.S. Tax Court
    • 8 Septiembre 1998
    ...v. EPA, 863 F.2d 1420, 1429 (9th Cir.1988); see also American Water Works Association v. EPA, 40 F.3d at 1275; Anne Arundel County v. EPA, 963 F.2d 412, 418 (D.C.Cir.1992). Where the final rules deviate too sharply from the proposed rules, notice is inadequate. AFL–CIO v. Donovan, 757 F.2d ......
  • American Water Works Ass'n v. E.P.A.
    • United States
    • U.S. Court of Appeals — District of Columbia Circuit
    • 6 Diciembre 1994
    ...that the interested parties could not reasonably have "anticipated the final rulemaking from the draft [rule]," Anne Arundel County v. EPA, 963 F.2d 412, 418 (D.C.Cir.1992) (quoting Natural Resources Defense Council, Inc. v. EPA, 863 F.2d 1420, 1429 (9th Cir.1988)), we conclude that the EPA......
  • Request a trial to view additional results
1 books & journal articles
  • Challenges to EPA's listing of hazardous waste sites.
    • United States
    • Defense Counsel Journal Vol. 61 No. 2, April 1994
    • 1 Abril 1994
    ...1516, 1519 (D.C. Cir. 1988), cert. denied, 489 U.S. 1078 (1989). (8.) City of Stoughton v. EPA, 858 F.2d 747, 951 (D.C. Cir 1988). (9.) 963 F.2d 412 (D.C. Cir. 1992). (10.) 968 F.2d 40 (D.C. Cir. 1992). (11.) 963 F.2d 391 (D.C. Cir. 1992). (12.) 957 F.2d 882 (D.C. Cir. 1992). (13.) 972 F.2d......

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT