CTS Corp. v. Envtl. Prot. Agency & Gina Mccarthy

• Decision Date: 08 July 2014
• Docket Number: No. 12–1256.,12–1256.
• Citation: 759 F.3d 52
• Parties: CTS CORPORATION, Petitioner v. ENVIRONMENTAL PROTECTION AGENCY and Gina McCarthy, Respondents.
• Court: U.S. Court of Appeals — District of Columbia Circuit

759 F.3d 52

CTS CORPORATION, Petitioner

v.ENVIRONMENTAL PROTECTION AGENCY and Gina McCarthy, Respondents.

No. 12–1256.

United States Court of Appeals, District of Columbia Circuit.

Argued April 10, 2014.

Decided July 8, 2014.

On Petition for Review of Final Agency Action of the United States Environmental Protection Agency.

Dennis Murashko argued the cause for petitioner. With him on the briefs were Brian J. Murray and Michael F. Dolan.

Justin D. Heminger, Trial Attorney, U.S. Department of Justice, argued the cause for respondents. On the brief were Robert G. Dreher, Acting Assistant Attorney General, and T. Monique Peoples, Attorney.

Before: BROWN, MILLETT and PILLARD, Circuit Judges.

MILLETT, Circuit Judge:

Pursuant to the Comprehensive Environmental Response, Compensation, and Liability Act of 1980 (CERCLA), 42 U.S.C. §§ 9601 et seq., the Environmental Protection Agency maintains a National Priorities List that identifies those hazardous-waste sites considered to be the foremost candidates for environmental cleanup. CTS Corporation has petitioned for review of the EPA's decision to add to the National Priorities List a site centered around property formerly owned by the company. CTS argues that, in listing the site, the EPA failed to properly consider and analyze relevant data. Because each of CTS's objections is without merit, forfeited, or impermissibly based on extra-record evidence, we deny the petition for review.

I

Through CERCLA, Congress established a regulatory system (i) to identify and remediate “some of the serious public health and environmental problems * * * caused by improper disposal of hazardous wastes, pollutants and contaminants,” Eagle–Picher Indus., Inc. v. EPA (Eagle–Picher I ), 759 F.2d 905, 909 (D.C.Cir.1985), (ii) “to promote the timely cleanup of hazardous waste sites[,] and [ (iii) ] to ensure that the costs of such cleanup efforts [a]re borne by those responsible for the contamination,” CTS Corp. v. Waldburger, ––– U.S. ––––, 134 S.Ct. 2175, 2180, 189 L.Ed.2d 62 (2014) (internal quotation marks omitted).

To that end, CERCLA requires the EPA to create and revise annually the National Priorities List (List). 42 U.S.C. § 9605(a)(8). That List identifies the areas of known or threatened releases of hazardous substances throughout the United States that the EPA determines are a priority for remedial action based on the relative risk or danger they pose to the public health, public welfare, or the environment. Id.

To inform its listing decisions, the EPA created the Hazard Ranking System. See40 C.F.R. § 300.425; id. Part 300, App. A. That System “serves as a screening device to evaluate the potential for releases of uncontrolled hazardous substances to cause human health or environmental damage.” Id. Part 300, App. A, § 1.0. In evaluating the threat posed by a site, the EPA evaluates up to four separate pathways of contaminant migration: groundwater, surface water, soil exposure, or air migration. Id. § 2.1. For each pathway, the Hazard Ranking System evaluates and weighs the “likelihood of release,” the “waste characteristics” (that is, its quantity, toxicity, and ability to spread, accumulate, or persist), and the “targets” (that is, the potentially affected human population and environmental resources). Id. §§ 2.1.2, 2.4, 2.5. That methodology produces a numerical score ranging from 0 to 100. Id. § 2.1.1. Sites with scores at or above 28.50 are eligible for inclusion on the List. See77 Fed.Reg. 15,276, 15,278 (March 15, 2012).

Once a site is placed on the List, remedial action taken at the site can be financed through the EPA's Superfund program. 40 C.F.R. § 300.425(b)(1); see also Honeywell Int'l, Inc. v. EPA, 372 F.3d 441, 443 (D.C.Cir.2004). Inclusion of a site on the List, however, does not guarantee that Superfund program monies will be expended. Rather, the EPA “may also pursue other appropriate authorities to remedy the release, including enforcement actions under CERCLA and other laws.” 40 C.F.R. § 300.425(b)(2).

In addition, the listing of a site “does not in itself reflect a judgment of the activities of [the site's] owner or operator, it does not require those persons to undertake any action, nor does it assign liability to any person.” Anne Arundel County v. EPA, 963 F.2d 412, 413 (D.C.Cir.1992) (quoting 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)); see also Honeywell Int'l, 372 F.3d at 443. Instead, Congress intended that the List would serve simply “as a tool for identifying quickly and inexpensively those sites meriting closer environmental scrutiny.” Honeywell Int'l, 372 F.3d at 443 (quoting Washington State Dep't of Transp. v. EPA, 917 F.2d 1309, 1310 (D.C.Cir.1990)).

The site at issue in this case centers around a property near Asheville, North Carolina, formerly owned by a CTS subsidiary. From 1959 through 1986, the property was used as a manufacturing plant engaged in, among other things, electroplating. That electroplating process employed the hazardous chemical trichloroethylene (TCE) as a cleaning agent, with TCE both stored on site and released through drains in the plant facility. For over two decades, waste produced at the plant that could not be reclaimed through the on-site, hazardous-waste treatment plant was disposed of through the city sewers. After 1980, the waste was stored in tanks or drums that were eventually transported off-site for disposal or recycling. Plant operations ceased in April 1986, and CTS sold the property to Mills Gap Road Associates the next year.

Since 1982, the CTS property has been the subject of attention from state and federal environmental agencies. Initial assessments in the late 1980s and early 1990s detected significantly elevated TCE levels in the soil around the former manufacturing plant, and TCE and other hazardous chemicals (specifically, vinyl chloride and 1, 2–dichloroethylene) in surface water samples on the property. At the time, however, a contractor for the EPA recommended no further remedial action, based on the investigation that had been conducted to that point, including an initial migration pathway analysis.

A complaint in 1999 to a state environmental agency regarding an “oily leachate” on a neighboring property sparked renewed concern about the CTS property. J.A. 223. Additional sampling conducted that year detected TCE in springs and wells near the former CTS property. At the property itself, TCE was detected in very high concentrations, both at a significant depth in the soil and in a groundwater monitoring well. In 2008, sampling conducted of fifteen wells in the residential Oaks Subdivision, which is located approximately a half-mile northeast of the CTS property, found TCE in three samples, in concentrations ranging from 8.8 µg/L to 51 µg/L. That far exceeded the maximum contaminant level of 5 µg/L for TCE in drinking water. See40 C.F.R. § 141.61(a). A series of additional investigations, including several by Lockheed Martin for the EPA, studied the groundwater conditions in the area and assessed the risk posed by the contamination in the Oaks Subdivision, as well as its relation to the contamination detected earlier at the former CTS property itself.

In March 2011, the EPA published a proposed rule that would add the site (along with fourteen others) to the National Priorities List. See76 Fed.Reg. 13, 113, 13, 113 (March 10, 2011). The site included both the contaminated soil under and around the former CTS plant and the associated releases of this contamination to the groundwater, which extended as far as the Oaks Subdivision (CTS Site). The EPA computed the site's Hazard Ranking System score by evaluating the groundwater migration pathway and seven observed releases of hazardous substances, including the contamination found in four wells in the Oaks Subdivision. The resulting score was 48.64.

After considering public comments, including several from CTS opposing the listing, the EPA recalculated the site's Hazard Ranking System score as 38.40 based on a revised count of the number of people in the area who were potentially affected by the contamination. Because that score still exceeded the 28.50 threshold for listing, the EPA's final rule added the CTS Site to the List. See77 Fed.Reg. 15,276, 15,279 (March 15, 2012).

II

Before addressing the merits of CTS's suit, a word about standing. This court, as a matter of constitutional duty, must assure itself of its jurisdiction to act in every case. See Friends of the Earth, Inc. v. Laidlaw Environmental Servs. (TOC), Inc., 528 U.S. 167, 180, 120 S.Ct. 693, 145 L.Ed.2d 610 (2000). For that reason, we require parties who petition this court for direct review of agency action to affirmatively demonstrate their standing. SeeD.C. CIR. R. 28(a)(7). CTS accordingly was obligated to identify in the agency record “evidence sufficient to support its standing to seek review or, if there is none because standing was not an issue before the agency, [to] submit additional evidence to the court of appeals.” Sierra Club v. EPA, 292 F.3d 895, 899 (D.C.Cir.2002). And because CTS seeks a final judgment on the merits invalidating a regulation, CTS was required to demonstrate “a ‘substantial probability’ that it has been injured, that the defendant caused its injury, and that the court could redress that injury.” Americans for Safe Access v. DEA, 706 F.3d 438, 443 (D.C.Cir.2013) (quoting Sierra Club, 292 F.3d at 899); see also Lujan v. Defenders of Wildlife, 504 U.S. 555, 561, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992) (“[E]ach element [of standing] must be supported in the same way as any other matter on which the plaintiff bears the burden of proof, i.e., with the manner and degree of evidence required at the successive stages of the litigation.”).

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