City of Stoughton, Wis. v. U.S. E.P.A., s. 86-1492
| Decision Date | 27 September 1988 |
| Docket Number | 86-1499 and 86-1502,Nos. 86-1492,s. 86-1492 |
| Citation | 858 F.2d 747 |
| Parties | , 273 U.S.App.D.C. 152, 57 USLW 2279, 19 Envtl. L. Rep. 20,054 CITY OF STOUGHTON, WISCONSIN, Petitioner, v. U.S. ENVIRONMENTAL PROTECTION AGENCY, Respondent. INTEL CORPORATION, Petitioner, v. U.S. ENVIRONMENTAL PROTECTION AGENCY, Respondent. CITY OF ELYRIA, OHIO, Petitioner, v. U.S. ENVIRONMENTAL PROTECTION AGENCY, Respondent. |
| Court | U.S. Court of Appeals — District of Columbia Circuit |
J. Michael Skibinski, Stoughton, Wis., for petitioner, City of Stoughton, Wisconsin.
Edward L. Strohbehn, Jr., Washington, D.C., for petitioner, Intel Corp.
Paul E. Gutermann, Washington, D.C., for petitioner, City of Elyria. Jeffrey O. Cerar, Washington, D.C., also entered an appearance, for petitioner, City of Elyria.
Lawrence E. Blatnik, Atty., Dept. of Justice and Lawrence E. Starfield, Atty., E.P.A., with whom Roger J. Marzulla, Asst. Atty. Gen., Lawrence J. Jensen, Gen. Counsel, and Earl Salo, Asst. Gen. Counsel, E.P.A., Washington, D.C., were on the brief, for respondent.
Before ROBINSON, RUTH BADER GINSBURG, and SENTELLE, Circuit Judges.
Opinion for the Court filed by Circuit Judge SENTELLE.
Each petitioner owns one or more landfill sites included by the Environmental Protection Agency ("EPA" or "the Agency") on the second update of the National Priorities List ("NPL"). Each alleges that EPA's decision to include its site or sites was arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law. After reviewing each case, we find that EPA followed proper procedures in each instance, and did not act arbitrarily or capriciously. We therefore deny all three petitions.
Congress in the Comprehensive Environmental Response, Compensation and Liability Act of 1980 ("CERCLA"), Pub.L. No. 96-510, 94 Stat. 2767 (), amended by Superfund Amendments and Reauthorization Act of 1986, Pub.L. No. 99-499, 100 Stat. 1613, authorized EPA 1 to respond to actual and threatened releases of hazardous substances, pollutants, and contaminants. Under CERCLA, EPA is engaged in a continuing effort to address the growing problem of inactive hazardous waste sites throughout the country. See Eagle-Picher Indus. v. EPA, 759 F.2d 922, 925 (D.C.Cir.1985) (Eagle-Picher II ). In order to enable and ensure EPA's response to those sites most urgently in need of cleanup, CERCLA requires the Agency to compile a National Priorities List of releases or "threatened releases" of hazardous substances across the country, 42 U.S.C. Sec. 9605(8)(B); Eagle-Picher II, 759 F.2d at 926, and creates the Hazardous Substance Response Trust Fund ("Superfund"), 42 U.S.C. Sec. 9631; Eagle-Picher II, 759 F.2d at 926 n. 1. In compiling the NPL, EPA utilizes a scientific model called the "Hazardous Ranking System" ("HRS") which is applied to data from observed or potential releases of hazardous waste to derive a "score" for the purpose of determining the relative risk from various sites. Eagle-Picher Indus. v. EPA, 759 F.2d 905, 910 (D.C.Cir.1985) (Eagle-Picher I ). At present, EPA includes any site yielding a score of 28.5 or greater on the NPL. Id. at n. 17 (citing 48 Fed.Reg. 40,658, 40,660 (1983)).
Once a site is included on the NPL, it becomes eligible for remedial action financed by the Superfund. See 40 C.F.R. Sec. 300.68(a) (1987). Site owners (as well as generators and transporters of hazardous substances) are ultimately liable for response actions, and EPA has the option of requiring the injuring party to perform response actions in the first instance, or reimburse the fund after response action has been taken. 42 U.S.C. Sec. 9606-07(a).
After initial publication of the NPL on September 8, 1983, 48 Fed.Reg. 40,65 8-73 (1983), EPA, pursuant to congressional mandate, 42 U.S.C. Sec. 9605(8)(B), updates the list at least once annually. On October 15, 1984, the Agency published as a proposed rule the second update to the NPL which included among sites proposed for inclusion the four sites at issue in these petitions: a site in Stoughton, Wisconsin, owned by the city of Stoughton ("Stoughton Landfill"); two sites in Santa Clara, California, operated by Intel Corporation ("Intel Santa Clara III" and "Intel Magnetics"); and a site in Elyria, Ohio, owned by the city of Elyria ("Republic Steel Quarry"). 49 Fed.Reg. 40,320 at 40,333, 40,335. After a public comment period during which each of the interested parties commented on the proposed sites, EPA published a final rule on June 10, 1986, adding 170 new sites to the NPL including the four listed above. 51 Fed.Reg. 21,054-98 (1986). Each of the relevant site-owners petitioned us for review.
Since this Court has already approved EPA's use of the HRS as a means of selecting sites for inclusion on the NPL, Eagle-Picher I, supra, 759 F.2d at 919-22, our review is a site-specific one; it is to determine if EPA's inclusion of each of the four listed landfills is consistent with "the Act and the regulations promulgated thereunder, and is not arbitrary." Eagle-Picher Indus. v. EPA, 822 F.2d 132, 137 (D.C.Cir.1987) (citations omitted) (Eagle-Picher III ). We will discuss each in turn.
Petitioner city of Stoughton operated its five acre landfill from the mid-1950's until 1978. The record evidence indicates that from 1953 to 1963 the site accepted hazardous waste, including several million gallons of solvents and other liquid organic compounds, from a tire manufacturer. The soils in the area of the site are moderately to highly permeable. The landfill did not have a liner to prevent leaching of contaminants from the landfill to the environment, or a system to collect accumulated leachate. After the closing of the site in 1978, six monitoring wells were placed in and around the landfill. In 1983, sampling of the monitoring wells by the state of Wisconsin detected elevated levels of volatile organic compounds in three of the six wells.
In scoring sites for possible inclusion on the NPL, EPA "[e]valuate[s] several of the most hazardous substances at the facility independently and enter[s] only the highest score in the [toxicity/persistence] matrix." 40 C.F.R. pt. 300, app. A Sec. 3.4 (1987). In the original scoring of the Stoughton site, EPA used vinyl chloride as the basis for scoring toxicity/persistence.
After the publication of the proposed rule, the city of Stoughton filed comments including the results of its own sampling at the site. Based on tests conducted on these samples by laboratories of its own choosing, the city challenged the presence of vinyl chloride, though conceding that observed release of some contaminants to groundwater had occurred. EPA re-evaluated all available data in response to the comments and removed vinyl chloride from the scoring package. Support Document for the Revised National Priorities List (EPA's Response to Public Comments (Sept. 5, 1986), NPL-U2-10-56, reprinted in Joint Appendix ("J.A.") 193, 207-10. However, based on Attachment B-2 of the city's comments (a portion of the lab reports) EPA found chloroform to be present at the site and substituted that chemical for vinyl chloride in the toxicity/persistence matrix. This substitution resulted in a score higher than that originally presented by EPA and continued inclusion of the site on the NPL. None of the other chemicals present would have resulted in inclusion. 2
City of Stoughton attacks EPA's decision on the theory that the data showing chloroform to be present is invalid, and that the use of invalid data as a basis for administrative action is arbitrary and capricious. The city argues that the use of invalid data is, in itself, an arbitrary and capricious action. Further, it argues that EPA has arbitrarily and capriciously failed to follow its own regulations in that EPA relies only on valid data concerning observed releases. Cf. 49 Fed.Reg. 37070, 37078 (1984).
City correctly states the law. The Agency does not contend that it is entitled to rely on invalid data, nor that it may ignore its own regulations. The problem with petitioner's argument is that it is entirely conclusory. The city argues that EPA has acted arbitrarily and capriciously by relying on invalid data. Without the conclusion that the data is invalid, the city has no argument. The record does not demonstrate that the data is invalid. The data showing the presence of chloroform was in fact submitted to EPA by the city. A split of the same sample tested by another lab, using a different methodology, did not reveal chloroform. But this does not establish that the positive result is the invalid one. Of course, it may be invalid. The city's problem is that it may not. EPA's determination to accept the positive result rather than the negative was in fact consistent with its own regulations. The HRS Manual provides that
[i]f a contaminant is measured (regardless of frequency ) in groundwater or in a well in the vicinity of the facility at a significantly (in terms of demonstrating that a release has occurred, not in terms of potential effects) higher level than the background level, then quantitative evidence exists, and a release has been observed.
40 C.F.R. pt. 300, app. A Sec. 3.1 (1987) (emphasis added). Multiple detections are not required.
Furthermore, in the present case it is at least as likely that the positive results were the correct data as it is that the negative results were. In fact, on the record before us, the positive results may be the more dependable, since that lab used detection methods for concentrations of 1 ug/1 or greater, while the lab not finding chloroform to be present used detection methods revealing only concentrations of 5 ug/1 or greater. City of Stoughton Landfill Analyses of Volatile Organic Compounds in Groundwater...
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