Carus Chemical Co. v. U.S. E.P.A.

• Citation: 395 F.3d 434
• Decision Date: 11 January 2005
• Docket Number: No. 03-1455.,03-1455.
• Parties: CARUS CHEMICAL COMPANY, Petitioner v. UNITED STATES ENVIRONMENTAL PROTECTION AGENCY, Respondent
• Court: United States Courts of Appeals. United States Court of Appeals (District of Columbia)

395 F.3d 434

CARUS CHEMICAL COMPANY, Petitioner v. UNITED STATES ENVIRONMENTAL PROTECTION AGENCY, Respondent

No. 03-1455.

United States Court of Appeals, District of Columbia Circuit.

Argued October 14, 2004.

Decided January 11, 2005.

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On Petition for Review of an Order of the Environmental Protection Agency.

Thomas W. Dimond argued the cause for petitioner. With him on the brief were John C. Berghoff, Jr. and Jennifer R. Hagan.

Ammie Roseman-Orr, Attorney, U.S. Department of Justice, argued the cause for respondent. With her on the brief were John C. Cruden, Deputy Assistant Attorney General, and Sheila M. Igoe, Attorney, U.S. Environmental Protection Agency.

Before: GINSBURG, Chief Judge, and HENDERSON and ROBERTS, Circuit Judges.

GINSBURG, Chief Judge.

The Environmental Protection Agency placed a site owned in part by Carus Chemical Company on the National Priorities List (NPL) of hazardous waste sites, pursuant to the Comprehensive Environmental Response, Compensation, and Liability Act of 1980 (CERCLA), 94 Stat. 2767, 42 U.S.C. § 9601 et seq., and its implementing regulations. Carus argues the EPA's action was arbitrary and capricious because the agency misinterpreted, and hence misapplied, its Hazard Ranking System, and because it disregarded more recent data that contradicted those upon which the agency relied.

We hold that neither the EPA's interpretation nor its application of the disputed regulation was unreasonable. Further, the agency reviewed the data Carus submitted and correctly concluded they did not cast doubt upon the decision to list the site. Accordingly, we deny the petition for review.

I. Background

Carus operates a manufacturing plant east of La Salle, Illinois on a parcel of land, once part of a larger property to which the EPA refers as the Matthiessen & Hegeler Zinc Company Site, where the latter company operated a smelter and a rolling mill for more than 100 years. During that period, there accumulated at the site two large slag piles, one of which, six acres in extent, is located adjacent to (and partly in) the Little Vermilion River and partly on Carus's property. The EPA decided that hazardous substances in the slag piles posed a threat to human health and to the environment sufficient to warrant putting the entire Matthiessen & Hegeler site on the NPL.

Before recounting the specifics of the EPA's decision, an explanation of the statute and regulations underlying the NPL is in order. The CERCLA directs the President, who delegated the responsibility to the EPA, to compile a list of cleanup priorities among hazardous waste sites around the country. The EPA's listing a site on the NPL, however, does not necessarily mean it will order remedial action at that site, see Honeywell Int'l, Inc. v. EPA, 372 F.3d 441, 443 (D.C.Cir.2004); rather, it guarantees only more detailed study, see Eagle-Picher Indus., Inc. v. EPA, 759 F.2d 905, 919-20 (D.C.Cir.1985). Nonetheless, listing can have significant adverse consequences for the owner of a listed property. See Mead Corp. v. Browner, 100 F.3d 152, 155 (D.C.Cir.1996) (costs in business reputation, property value, and increased probability of remediation).

In order to identify candidates for the NPL, the EPA promulgated the Hazard Ranking System (HRS), see 40 C.F.R. pt. 300, App. A, a comprehensive methodology and mathematical model the agency uses to "evaluate[ ] the observed or potential release of hazardous substances" and to "quantif[y] the environmental risks a site poses." Tex Tin Corp. v. EPA, 992 F.2d 353, 353 (D.C.Cir.1993).

In order to evaluate a waste site using the HRS, the EPA first identifies the "sources" of contamination, the "[h]azardous substances associated with these sources," and the "[p]athways potentially threatened by these hazardous substances." HRS § 2.2. The HRS lists four possible pathways: soil exposure, air migration, ground water migration, and the one relevant to this case, surface water migration. Id. at § 2.1. For each pathway deemed potentially affected in light of conditions at the site, the agency calculates a score based upon particular "threats." The surface water migration pathway is scored based upon threats to drinking water, to the human food chain, and to the environment. See id. at § 4.0.1. With respect to each pathway and threat to be scored, the HRS calls for the EPA to measure three so-called factor categories: "likelihood of release (or likelihood of exposure)"; "waste characteristics"; and "targets," which may include an individual, a human population, resources, and sensitive environments. Id. at § 2.1.3. The agency's measurements of the first two categories are relevant to this case.

The "[l]ikelihood of release is a measure of the likelihood that a waste has been or will be released to the environment." Id. at § 2.3. When, as in this case, the EPA determines there has already been a release, it assigns a fixed number for this component of the overall score of the pathway, regardless of the level of that release. Id.

With respect to waste characteristics, the HRS first requires the EPA to "select the hazardous substance potentially posing the greatest hazard for the pathway." Id. at § 2.4.1. The agency is then to evaluate persistence, bioaccumulation, and toxicity factors pertaining to that substance, id. at § 2.4 (only the last of which features in this case).

For each substance being scored, the agency uses a toxicity factor value between 0 and 10,000, reflecting the potential of that substance to cause adverse health effects. For a single substance there may be multiple toxicity factor values, each corresponding to a route of exposure (e.g., inhalation, ingestion) through which that substance may come into contact with humans. If there are, and if the agency has "usable toxicity data" for more than one such exposure route, then it should "consider all exposure routes and use the highest assigned value, regardless of exposure route, as the toxicity factor value." Id. at § 2.4.1.1.

Based upon the considerations recounted above (as well as others not relevant here), the EPA assigns each site a score from 0 to 100. A site with a score greater than 28.50 is eligible for the NPL. See 68 Fed.Reg. 55,875, 55,876 (Sept. 29, 2003).

The EPA's study of the Matthiessen & Hegeler site began with an aerial photograph of the site taken in 1988 and with data compiled by the Environmental Protection Agency of Illinois in 1991 and 1993 from sediment, groundwater, and soil samples taken around the slag piles. Upon the basis of this evidence, the EPA determined that hazardous substances were being released into the Little Vermilion River. Because the observed release was into a river, the agency scored the surface water migration pathway, and because Illinois classified that river as a fishery, the agency scored that pathway for the threat it posed to the human food chain.

Following the method set forth in the HRS, the EPA then assessed the "waste characteristics" of the hazardous substances found at the site, namely, cadmium, copper, lead, nickel, and zinc. Carus's principal dispute is over the EPA's choice, purportedly in compliance with HRS § 2.4.1.1, to use the toxicity factor value for cadmium corresponding to the inhalation route of exposure. Plugging this value into the model, the EPA calculated a score of 100 for the pathway and a total score of 50 for the Matthiessen & Hegeler site.

Because the total score exceeded 28.50, the EPA proposed to list the site on the NPL. See 66 Fed.Reg. 32,287, 32,290, 32,293 (June 14, 2001). Carus submitted comments in opposition to the listing, which comments included technical documents prepared for it by GeoSyntec Consulting. The EPA found the objections raised in those comments unpersuasive and, accordingly, published a final rule adding the Matthiessen & Hegeler site to the NPL. 68 Fed.Reg. at 55,878. Carus now petitions for review of that decision.

II. Analysis

Carus raises two separate challenges to the EPA's decision to place the Matthiessen & Hegeler site on the NPL. First, Carus argues the agency wrongly interpreted HRS § 2.4.1.1 as requiring it to use a toxicity factor value for cadmium corresponding to a route of exposure (inhalation) unlikely to occur in light of the conditions at the site. Had the agency instead applied the toxicity factor value corresponding to the ingestion route of exposure, Carus maintains, the HRS score for the site would have been below 28.50. Second, Carus contends the sampling data and the documents it submitted during the comment period rendered unreasonable the EPA's reliance solely upon data collected earlier by the Illinois EPA.

A. The EPA's Interpretation of HRS § 2.4.1.1

As the EPA understands HRS § 2.4.1.1, and as it applied that regulation in the rulemaking under review, 68 Fed.Reg. at 55,875-55,882, the agency was required to use the toxicity factor value for the inhalation of cadmium even though it was scoring the surface water migration pathway. Carus takes exception to that interpretation, arguing it is nonsensical to read the rule as mandating the use of a toxicity factor value corresponding to an exposure route (inhalation) unlikely to present a threat considering the pathway being scored.

An agency is, of course, entitled to "substantial deference" in its "interpretation of its own regulations." Thomas Jefferson Univ. v. Shalala, 512 U.S. 504, 512, 114 S.Ct. 2381, 2386, 129 L.Ed.2d 405 (1994). Carus does not quarrel with this principle but nonetheless argues deference to the EPA's interpretation of § 2.4.1.1 is not appropriate because (Carus nakedly asserts) that interpretation is simply a "litigation position." See Bowen v. Georgetown Univ. Hosp., 488 U.S. 204, 212, 109 S.Ct. 468, 474, 102 L.Ed.2d 493 (1988) (court owes no "deference to an agency counsel's interpretation of a statute where the agency itself has articulated no position on the question"). But see ...