Eagle-Picher Industries, Inc. v. U.S.E.P.A., EAGLE-PICHER
| Decision Date | 30 June 1987 |
| Docket Number | Nos. 83-2259,EAGLE-PICHER,s. 83-2259 |
| Citation | 822 F.2d 132 |
| Parties | , 262 U.S.App.D.C. 1, 56 USLW 2042, 17 Envtl. L. Rep. 21,108 INDUSTRIES, INC., Petitioner, v. UNITED STATES ENVIRONMENTAL PROTECTION AGENCY, et al., Respondents, State of Maine, et al., State of New Jersey, et al., Commonwealth of Virginia, State of New Mexico, et al., St. Joe Minerals Corporation, Edison Electric Institute, et al., Intervenors. UNITED NUCLEAR CORPORATION, Petitioner, v. UNITED STATES ENVIRONMENTAL PROTECTION AGENCY, Respondent, Edison Electric Institute, et al., Intervenors. HOMESTAKE MINING COMPANY, Petitioner, v. UNITED STATES ENVIRONMENTAL PROTECTION AGENCY, Respondent, Edison Electric Institute, et al., Intervenors. (Two Cases) COTTER CORPORATION, Petitioner, v. Lee M. THOMAS, et al., Respondents, Edison Electric Institute, et al., Intervenors. INMONT CORPORATION, Petitioner, v. UNITED STATES ENVIRONMENTAL PROTECTION AGENCY, et al., Respondents. VIRGINIA ELECTRIC AND POWER COMPANY, Petitioner, v. UNITED STATES ENVIRONMENTAL PROTECTION AGENCY, et al., Respondents, Edison Electric Institute, et al., Intervenors. to 83-2264, and 83-2266. |
| Court | U.S. Court of Appeals — District of Columbia Circuit |
Petitions for Review of an Order of the Environmental Protection agency.
Richard A. Flye, with whom Christian Volz, Washington, D.C., was on the brief for petitioner, Eagle-Picher Industries, Inc., in No. 83-2259 and the joint brief for petitioners on Common Issues in Nos. 83-2259, et al.
G. Stanley Crout, with whom Michael S. Yesley, Santa Fe, N.M., and Peter J. Nickles, Washington, D.C., were on the brief for petitioner, United Nuclear Corp., in No. 83-2260 and the joint brief for petitioners on Common Issues in Nos. 83-2259, et al. G. Stanley Crout, Santa Fe, N.M., also entered an appearance for petitioner, Homestake Min. Co., in Nos. 83-2261 and 83-2262.
Ridgway M. Hall, Jr., Washington, D.C., for petitioner, Homestake Mining Company, in Nos. 83-2261 and 83-2262. Ridgway M. Hall, Washington, D.C., was also on the joint brief for petitioners on Common Issues in Nos. 83-2259, et al. and brief for petitioner, Homestake Min. Co., on Issues Specific to Whitewood Creek, S.D.
Daniel J. Dunn, with whom Edward J. McGrath, Denver, Colo., was on the joint brief on Common Issues for petitioner, Cotter Corp., in Nos. 83-2259, et al. Daniel J. Dunn and Edward J. McGrath, Denver, Colo., also entered appearances for petitioner, Cotter Corp., in No. 83-2263.
Daniel H. Squire, with whom David B. Weinberg, Washington, D.C., was on the brief for petitioner, Inmont Corp., in No. 83-2264 and intervenors, Edison Elec. Institute, et al. in Nos. 83-2259, 83-2260, 83-2261, 83-2262, 83-2263 and 83-2266.
William L. Rosbe, Richmond, Va., for petitioner, Virginia Elec. and Power Co., in No. 83-2266.
Samuel I. Gutter, Atty., E.P.A., Lawrence R. Liebesman and Michael W. Steinberg, Attys., Dept. of Justice, with whom Todd E. Gulick, Atty., and A. James Barnes, General Counsel, E.P.A. were on the brief, for respondents in Nos. 83-2259, et al., Washington, D.C., David T. Buente, Washington, D.C., entered an appearance for respondent, Dept. of Justice, in Nos. 83-2259, et al.
James T. Kilbreth, III, Washington, D.C., was on the brief for intervenors, State of Maine, et al., in No. 83-2259.
Patrick A. O'Hare, Richmond, Va., was on the brief for intervenor, Commonwealth of Virginia in No. 83-2259.
Charlotte Uram, Santa Fe, N.M., was on the brief for intervenors, State of New Mexico, et al., in No. 83-2259.
Everett B. Carson, Augusta, Me., was on the brief for Natural Resources Council of Maine, amicus curiae, urging dismissal in Nos. 83-2259, et al.
Mary C. Jacobson, Trenton, N.J., entered an appearance for intervenors, State of New Jersey, et al., in No. 83-2259.
Robert A. Emmett, Washington, D.C., was on the brief for intervenor, St. Joe Minerals Corp., in No. 83-2259.
Before ROBINSON, EDWARDS and STARR, Circuit Judges.
Opinion for the Court PER CURIAM.
The Comprehensive Environmental Response, Compensation, and Liability Act of 1980 1 ("CERCLA" or the "Act") directed the President to compile a list identifying top priorities among the nation's known hazardous waste sites. 2 The President, in turn, delegated this responsibility to the Environmental Protection Agency ("EPA" or the "Agency"). 3 The petitioners 4 take exception to the EPA's selection of five specific sites for the list. 5 Upon careful review of the EPA's decisions, we conclude that in each instance the listing comports with both the Act and the regulations promulgated thereunder, 6 and is not arbitrary. 7
Eagle-Picher Industries assails the listing of the Picher Field, a region spanning the Oklahoma-Kansas border that was mined for lead and zinc ores from 1904 to 1958. The Picher Field owes its inclusion on the National Priorities List to contamination of both surface water--Tar Creek--and groundwater--the Roubidoux and Boone aquifers underlying the mining field. 8 The mines penetrate the Boone aquifer, and groundwater that now fills abandoned mines interacts with minerals in the mine walls, affording presumably the principal mechanism of contamination. 9 Periodically, this polluted mine water discharges through mine shafts, bore holes, and airshafts to the surface, debasing Tar Creek. 10 Additionally, because the Boone and Roubidoux aquifers are linked by bore holes and other connections, polluted mine water migrates from the Boone into the Roubidoux, which supplies water to the local residents. 11 Rainwater runoff from piles of tailings left scattered about the area by the mining operations further contaminates the surface water. 12
The EPA included the Eagle-Picher mining area--denominated simply Tar Creek, Oklahoma--on an interim priorities list 13 and later on the proposed National Priorities List. 14 The EPA divided the mining area into two sites because it spanned two Agency regions, 15 and listed these sites as Tar Creek (Ottawa County), Oklahoma, and Cherokee County, Kansas, on the National Priorities List as ultimately adopted. 16 In the interim between issuing the proposed and final lists, the EPA lowered the Hazard Ranking System scores given to these two locations, but both sites remained on the list. 17
Eagle-Picher advances three objections to the listing of the Tar Creek site. First, it contends that the EPA violated its own "aquifer of concern" rule for calculating the population served by the contaminated groundwater. Second, it asserts that the reason that the Agency assigned maximum scores for releases to groundwater and surface water at the Tar Creek location was that the Agency failed to consider the most up-to-date information. Third, Eagle-Picher claims that the EPA did not respond meaningfully to its comments. Addressing these challenges seriatim, we find each lacking in merit.
The EPA has incorporated an "aquifer of concern" principle into its regulations, 18 requiring a scorer to consider the same aquifer when scoring for the observed release or route characteristics as when calculating target characteristics such as population served. Eagle-Picher argues that in rating Tar Creek for an observed release to groundwater, 19 the EPA ignored this aquifer-of-concern concept. It asserts that the Agency measured the level of contamination in the Boone, from which drinking water is no longer drawn, but used the Roubidoux, which supplies the area with drinking water, for calculating the target population. 20 Although it measured groundwater contaminants in samples of water primarily from the Boone aquifer, not the Roubidoux, the Agency concluded that the pollution of the Boone itself constituted a release to the Roubidoux, and therefore scored for an observed release to the aquifer of concern, because of the documented existence of bore holes and the possibility of other links between the Boone and the Roubidoux. 21
Since the purpose of the Hazard Ranking System is to estimate the potential hazard from a site, 22 we think it clear that the aquifer-of-concern principle does not preclude the combination of hydrologically connected aquifers for scoring purposes. 23 If the site-contaminated aquifer spreads hazardous substances to a second aquifer from which people draw water, the site presents a threat to that population. Therefore, as the EPA explained in the Support Document for the National Priorities List, 24 given the hydrological connections between the two aquifers, 25 the Agency reasonably treated them as a unit for purposes of the Hazard Ranking System.
Eagle-Picher further argues that the EPA failed to consider all relevant factors in scoring Tar Creek for groundwater release, because allegedly it based its decision to list Tar Creek exclusively on the preliminary Hittman Report, rather than the more extensive Task Force Report, thus ignoring hard data in the latter in favor of hypothesis and speculation in the former. 26 The Agency did not, however, disregard the Task Force Report; instead, it noted in the National Priorities List Support Document that it had considered that study and found it consistent with its earlier conclusions predicated upon the Hittman Report. 27 Because the Hittman Report adequately supported the EPA's determination that the site merited listing, the Agency did not perceive any need to perform a complete reevaluation based on the confirming documentation supplied by the Task Force Report. 28
This decision was entirely reasonable, for the Agency quite rationally did not find any material contradiction between the two reports. Although data obtained in the course of the Task Force study arguably conflicted with the Hittman Report's speculations on the permeability of the formations overlying the Roubidoux, the Task Force Report acknowledged that other...
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