National Gypsum Co. v. U.S. E.P.A., 90-1574

Decision Date19 June 1992
Docket NumberNo. 90-1574,90-1574
Citation968 F.2d 40
Parties, 296 U.S.App.D.C. 304, 22 Envtl. L. Rep. 21,270 NATIONAL GYPSUM COMPANY, Petitioner, v. UNITED STATES ENVIRONMENTAL PROTECTION AGENCY, Respondent.
CourtU.S. Court of Appeals — District of Columbia Circuit

Stephen N. Shulman, with whom James W. Moorman, Laurence S. Kirsch, and Susan M. Mathiascheck, Washington, D.C., were on the brief, for petitioner.

Gary I. Rubin, Atty., Dept. of Justice, and George B. Wyeth, Atty., E.P.A., with whom Barry M. Hartman, Acting Asst. Atty. Gen. and Raymond Ludwiszewski, Acting Gen. Counsel, Lawrence Starfield, Acting Asst. Gen. Counsel, E.P.A., Washington, D.C., were on the brief, for respondent. Lewis M. Barr and Eileen T. McDonough, Attys., Dept. of Justice, Washington, D.C., also entered an appearance for respondent.

Before: MIKVA, Chief Judge, SILBERMAN and WILLIAMS, Circuit Judges.

Opinion for the Court filed by Chief Judge MIKVA.

MIKVA, Chief Judge:

The EPA seems unwilling to support its decisions with the necessary scientific findings. In yet another case involving the EPA and its National Priorities List (NPL), we have before us a petition for review challenging the Agency's decision to list the Salford Quarry, a waste site located in Pennsylvania. As we have had to do in several recent cases, see e.g. Kent County, Delaware Levy Court v. EPA, 963 F.2d 391 (D.C.Cir.1992); Anne Arundel County, Maryland v. EPA, 963 F.2d 412 (D.C.Cir.1992); Tex Tin Corp. v. EPA, 935 F.2d 1321 (D.C.Cir.1991), we vacate the listing decision and remand to the EPA in light of its failure to explain adequately the scientific basis for its decision as well as its failure to offer substantial evidence in support of its decision.

I. BACKGROUND

The Comprehensive Environmental Response, Compensation, and Liability Act of 1980 (CERCLA) requires the establishment of a list of national priorities among the known releases or threatened releases of hazardous substances in the United States. See 42 U.S.C. § 9605(a) (1988). Our previous decisions have fully discussed the National Priorities List (NPL) and the Hazard Ranking System (HRS), the method used to evaluate sites proposed for listing on the NPL. See, e.g., Linemaster Switch Corp. v. EPA, 938 F.2d 1299 (D.C.Cir.1991); City of Stoughton v. EPA, 858 F.2d 747 (D.C.Cir.1988).

The Salford Quarry, located in Lower Salford Township, Montgomery County, Pennsylvania, was an abandoned stone and aggregate quarry when American Olean Tile Company, Inc., bought it in 1963. American Olean, formerly a subsidiary of National Gypsum, used the quarry to dispose of fired and unfired tiles, "tile slurry," and other production wastes until sometime in 1980. The tiles and slurry located at the site apparently contain boron in the form of boron oxide.

In 1982, after two tanks containing tile slurry and fuel oil were found buried at the site, American Olean closed the quarry and installed two monitoring wells at the site. On January 22, 1987, an investigation revealed traces of boron in one of the quarry's monitoring wells and in a spring nearby. As a result, the EPA proposed the site for NPL listing based on an HRS score of 57.80. Meanwhile, in 1988, National Gypsum sold its subsidiary American Olean and acquired full ownership of the Salford quarry. The Salford Quarry was placed on the NPL on August 30, 1990.

National Gypsum's challenges to the EPA's listing decision focus on the EPA's evaluation of the Salford Quarry under the HRS. National Gypsum argues that the EPA incorrectly calculated the site's "waste characteristics" score by using the toxicity and persistence values for elemental boron and various unspecified (and highly toxic) boron compounds instead of boron oxide, the only compound actually known to have been deposited at the quarry. National Gypsum contends that had the EPA evaluated the site's toxicity and persistence scores using only boron oxide, the HRS score for the site would have been well below the 28.5 required for listing on the NPL.

National Gypsum also challenges the EPA's determination that there was an "observed release" of boron and boron compounds at the site. The EPA based its finding of an observed release on the presence of boron found in a monitoring well at the site and in a spring nearby. National Gypsum claims that problems with the construction and location of the monitoring well render it an unreliable indicator of groundwater contamination. Furthermore, National Gypsum argues that quality control and assurance problems render the data from both the spring and the monitoring well unreliable.

Finally, National Gypsum challenges the EPA's calculation of the site's "population served" and "quantity" scores. Petitioner argues that the EPA misconstrued the provisions of the HRS by calculating the population served score using the number of people served by wells within a three mile radius of the site, rather than only those persons served by the single well nearest the site. Furthermore, National Gypsum contends that the EPA improperly used boron compounds, which are merely "pollutants or contaminants" and not "hazardous substances" as defined by CERCLA, in assessing the Salford Quarry's quantity score.

II. ANALYSIS
A. The Salford Quarry's Waste Characteristics Score

A facility's waste characteristics score reflects the toxicity, persistence, and quantity of the most hazardous substance present at the site that could migrate to groundwater. See 40 C.F.R. Pt. 300, App. A § 3.4 (1982) (amended at 40 C.F.R. Pt. 300, App. A (1991)) (unless otherwise noted, all references are to the original HRS promulgated in 1982). In evaluating a facility's waste characteristics score, the EPA calculates the toxicity and persistence score for each contaminant at the site and combines the two highest scores in a matrix to derive a single numerical value. Id. The EPA then joins the toxicity/persistence score with the quantity score to arrive at a final waste characteristics score.

When the EPA tested groundwater in a monitoring well at the Salford Quarry, it found traces of boron. The test used by the EPA, however, did not disclose the chemical form of boron contained in the water. The Agency, therefore, based the site's toxicity and persistence scores on unspecified, highly toxic boron compounds. Relying on data from N.I. Sax's DANGEROUS PROPERTIES OF INDUSTRIAL CHEMICALS (the standard HRS reference used to determine the properties of various chemicals), the EPA assigned these boron compounds a toxicity score of 3 and a persistence score of 3, both the highest possible values for those categories.

In its comments, American Olean, and later National Gypsum, contested the EPA's decision to base the quarry's toxicity and persistence score on the highly toxic boron compounds. Referring to a report prepared by its consultant, American Olean asserted that boron oxide, a boron compound with low toxicity, was the only form of boron deposited in the Salford Quarry. See Comments on the Proposed Listing of the Salford Quarry, Lower Salford Township, Pennsylvania, on the CERCLA National Priorities List, at 2 (March 23, 1987) (Hereinafter American Olean Comments ). [J.A. 210]. In fact, American Olean pointed out, the Agency's own records acknowledged that the fired and unfired tile disposed of in the Salford Quarry contained boron in the form of boron oxide. American Olean's comments further explained that, under the HRS, boron oxide would receive a toxicity value of 1, not the 3 warranted for other, more toxic boron compounds, and a persistence score of 0. National Gypsum echoed American Olean's concerns regarding the site's toxicity and persistence scores in its comments. See Second Supplementary Comments on the Proposed Listing of the Salford Quarry Lower Salford Township, Pennsylvania on the CERCLA National Priorities List, at 3 (April 25, 1989) (Hereinafter National Gypsum Comments ).

The EPA never attempted to learn whether the boron in the groundwater at the Salford Quarry was boron oxide, other boron compounds, or boron in its elemental form. In its response comments explaining the Agency's decision to place the quarry on the NPL, the EPA stated:

Although the Agency agrees that available information indicates that boron oxide was the boron-containing contaminant deposited at the site, the form of the boron subsequently detected in the monitoring wells is unknown. Agency analyses indicated the levels of elemental boron, not of any specific boron compound. There is no evidence to identify boron oxide as the specific form of boron detected in [the monitoring well] or the contaminated spring. Indeed, because this compound is only slightly soluble in water, it is unlikely it could account for the high concentrations observed in the aqueous samples used to document an observed release. Because of these factors, the Agency maintains that it is appropriate to consider both elemental boron and boron compounds in evaluating the HRS toxocity factor at this site.

EPA's Response Comments, at 3-139. [J.A. 325]. As for the site's persistence score, the EPA explained that, under the HRS, persistence is measured solely on the basis of biodegradability. The Agency concluded that "because neither boron nor boron oxide is biodegradable, a persistence factor value of 3 was correctly assigned." Id. at 3-140. We find the Agency's explanation of both the toxicity and persistence scores woefully lacking.

With regard to the toxicity score, the EPA provides no support for its conclusion that compounds other than boron oxide are present at the site. The EPA acknowledges that the only form of boron known to have been deposited at the site is boron oxide. The Agency reasons, however, that because boron oxide is only slightly soluble in water, it is "unlikely" that the boron found in the groundwater was boron oxide. EPA's Response Comments, at 3-139. [J.A. 325]. But the...

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