State of Ohio v. U.S. E.P.A.
| Decision Date | 20 July 1993 |
| Docket Number | 86-1116,86-1119,86-1117,Nos. 86-1096,86-1120,s. 86-1096 |
| Citation | 997 F.2d 1520 |
| Parties | , 302 U.S.App.D.C. 318, 62 USLW 2063, 23 Envtl. L. Rep. 21,157 STATE OF OHIO, et al., Petitioners, v. UNITED STATES ENVIRONMENTAL PROTECTION AGENCY, et al., Respondents. to 86-1123, 90-1276, 90-1277, 90-1280, 90-1285, 90-1286, 90-1288, 90-1289, 90-1293 to 90-1295, 90-1297, 90-1439, 90-1444, 90-1449, 90-1451 and 90-1453. |
| Court | U.S. Court of Appeals — District of Columbia Circuit |
Donald A. Brown, Victoria L. Peters, and Alan C. Williams argued the cause, for petitioners Com. of PA, Dept. of Environmental Resources, California, Colorado, Com. of KY, New Jersey, New Mexico Environment Dept., New York, and Ohio, and intervenor State of Minn. With them on the briefs were Beverly M. Conerton, Roderick E. Walson, Theodora Berger, Brian Hembacher, Charlotte Robinson, Mary Ann R. Baker, Gordon J. Johnson, Jack Van Kley, and Ellen B. Leidner. James D. Ellman, Bryon A. Thompson, Paul H. Schneider, Jacqueline H. Berardini, Charlotte Robinson, Mary C. Jacobson, and R. Brian McLaughlin also entered appearances for petitioners.
Lewis C. Green argued the cause, for petitioner Missouri Coalition for the Environment.
Edmund B. Frost, David F. Zoll, Michael W. Steinberg, and Arline M. Sheehan entered appearances, for petitioner Chemical Mfrs. Assn.
Randy M. Mott entered an appearance, for petitioners CPC Intern., and ASARCO, Inc.
Mark G. Weisshaar, David O. Ledbetter, Edward H. Commer, and Toni K. Allen entered appearances, for petitioner Edison Elec. Institute.
George C. Freeman, Jr., Alfred R. Light, and James Kimble entered appearances, for petitioner American Ins. Ass'n.
Timothy A. Vandervere, Jr. and John C. Martin entered appearances, for petitioner United Technologies Corp.
Samuel I. Gutter and Peggy L. O'Brien entered appearances, for petitioner General Elec. Co.
Mark G. Weisshaar and Jeffrey N. Martin entered appearances, for petitioners American Tel. & Tel. Co., and Bridgestone/Firestone Inc.
Scott A. Schachter and Alice L. Mattice, Attorneys, Dept. of Justice, and Lawrence E. Starfield, Counsel, E.P.A., argued the cause, for respondents. With them on the briefs was Roger Clegg, Acting Asst. Atty. Gen. Carl Strauss, Roger J. Marzulla, Edward J. Shawaker, Elizabeth Ann Peterson, Richard B. Stewart, Marilyn P. Jacobsen, Raymond Ludwiszewski, and Earl Salo also entered appearances, for respondents.
Michael W. Steinberg, Hunter L. Prillaman, David F. Zoll, Dell E. Perelman, G. William Frick, Ellen Siegler, Paul E. Shorb, III, and Barton C. Green were on the brief, for intervenors Chemical Mfrs. Ass'n, American Petroleum Institute, and American Iron & Steel Institute.
Cynthia L. Amara was on the brief, for amicus curiae of the Commonwealths of Massachusetts and Virginia, and the states of Alaska, Arizona, Florida, Maine, Maryland, Michigan, Montana, New Hampshire, Rhode Island, South Carolina, and Washington.
Victoria L. Peters entered an appearance, for intervenor State of Colo.
Paul E. Shorb, III and Barton C. Green entered appearances, for intervenor American Iron & Steel Institute.
Mark G. Weisshaar and David O. Ledbetter entered appearances, for intervenor Edison Elec. Institute.
Michael W. Steinberg, Arline M. Sheehan, and David F. Zoll entered appearances, for intervenor Chemical Mfrs. Ass'n.
Susan M. Schmedes and Ellen Siegler entered appearances, for intervenor American Petroleum Institute.
Alan C. Williams entered an appearance, for intervenor State of Minn.
Gordon J. Johnson entered an appearance, for intervenor State of N.Y.
Before MIKVA, Chief Judge, EDWARDS and RANDOLPH, Circuit Judges.
Opinion PER CURIAM.
These consolidated petitions present a multifarious challenge to Environmental Protection Agency ("EPA") regulations promulgated under the Comprehensive Environmental Response, Compensation, and Liability Act of 1980 ("CERCLA"), 42 U.S.C. §§ 9601-9675, as amended by the Superfund Amendments and Reauthorization Act of 1986 ("SARA"), Pub.L. No. 99-499, 100 Stat. 1613. The regulations under review are portions of the National Oil and Hazardous Substances Pollution Contingency Plan, 40 C.F.R. Part 300, commonly known as the "NCP."
CERCLA Comprehensive Environmental Response, Compensation, and Liability Act of 1980
FS Feasibility Study
J.D.A. Joint Deferred Appendix
MCL Maximum Contaminant Level
MCLG Maximum Contaminant Level Goal
MOCO Missouri Coalition for the Environment
NCP National Contingency Plan
NIH National Institutes of Health
OMB Office of Management and Budget
O & M Operations and Maintenance
PRP Potentially Responsible Party
RI Remedial Investigation
ROD Record of Decision
SARA Superfund Amendments and Reauthorization Act of 1986
SDWA Safe Drinking Water Act
SMOA Superfund Memorandum of Agreement
Before Congress created the Environmental Protection Agency ("EPA" or "the Agency"), and long before Congress enacted the Comprehensive Environmental Response, Compensation, and Liability Act of 1980 ("CERCLA"), 42 U.S.C. §§ 9601-9675, there was a National Contingency Plan ("NCP"). In 1968, a group of federal agencies developed the first NCP, which was a multi-agency strategy for dealing with environmental disasters. See Freedman, Proposed Amendments to the National Contingency Plan: Explanation and Analysis, 19 Envtl.L.Rep. 10,103, 10,105-06 (1989). In 1970, Congress incorporated the NCP into the Federal Water Pollution Control Act, 33 U.S.C. §§ 1251-1376, and pursuant to its directive, the President issued the first published NCP. Water and Environmental Quality Improvement Act of 1970, Pub.L. No. 91-224, 84 Stat. 91, § 102 (1970); 35 Fed.Reg. 8508 (1970). The NCP, which acquired its current name--the National Oil and Hazardous Substances Pollution Contingency Plan, 36 Fed.Reg. 16,215 (1971)--in 1971, was revised a number of times throughout the 1970s. See 37 Fed.Reg. 2808 (1972); 38 Fed.Reg. 21,888 (1973); 45 Fed.Reg. 17,832 (1980). By 1980, a comprehensive NCP was in place, although it applied only to discharges into waters regulated by the Clean Water Act. Id. "It did not apply to releases to groundwater or soil, and it did not provide authority or funding for long-term federal response to chronic hazards." Freedman, supra, 19 Envtl.L.Rep. at 10107.
CERCLA came next. Enacted in 1980, CERCLA provided "for liability, compensation, cleanup, and emergency response for hazardous substances released into the environment and the cleanup of inactive waste disposal sites." Pub.L. No. 96-510, 94 Stat. 2767, 2767. We have summarized its general scheme in previous decisions. See, e.g., Ohio v. United States Dep't of Interior, 880 F.2d 432, 438-40 (D.C.Cir.), reh'g denied, 897 F.2d 1151 (1989) (en banc ); Ohio v. EPA, 838 F.2d 1325, 1327-29 (D.C.Cir.1988).
Of particular importance to this case is the prominent role of the NCP under CERCLA. Section 104(a)(1) of CERCLA authorizes the President "to act, consistent with the national contingency plan, to remove or arrange for the removal of, and provide for remedial action relating to such hazardous substance, pollutant, or contaminant at any time ..., or take any other response measure consistent with the national contingency plan which the President deems necessary to protect the public health or welfare or the environment." 42 U.S.C. § 9604(a)(1). The NCP thus "provide[s] the organizational structure and procedures" for responding to hazardous waste threats. 40 C.F.R. § 300.1. It is the means by which EPA implements CERCLA.
When Congress enacted CERCLA in 1980, it directed the President to revise and republish the NCP in light of the new law. 42 U.S.C. § 9605(a). Pursuant to section 115 of CERCLA, the President assigned EPA the responsibility of amending the NCP. See 42 U.S.C. § 9615; Exec. Order No. 12,316, 46 Fed.Reg. 42,237 (1981); Exec. Order No. 12,580, 52 Fed.Reg. 2923 (1987). In 1982, EPA issued a new version of the NCP. 47 Fed.Reg. 31,180 (1982). EPA revised the NCP again in 1985. 50 Fed.Reg. 47,912 (1985). When Congress passed the Superfund Amendments and Reauthorization Act of 1986 ("SARA"), Pub.L. No. 99-499, 100 Stat. 1613, which significantly revised the statute, Congress directed the President to revise the NCP again to reflect the changes in CERCLA. 42 U.S.C. § 9605(b). EPA issued these revisions to the NCP in 1990. 55 Fed.Reg. 8666 (1990).
The States first challenge several elements of the NCP definition of legally "applicable" or "relevant and appropriate" environmental standards, known as "ARARs." CERCLA does not define ARARs, but the statute does require that remedial actions at Superfund sites result in a level of cleanup or standard of control that at least meets the legally applicable or otherwise relevant and...
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