Eagle-Picher Industries, Inc. v. U.S. E.P.A., EAGLE-PICHER

Citation759 F.2d 905,245 U.S.App.D.C. 179
Decision Date16 April 1985
Docket NumberNos. 83-2259,EAGLE-PICHER,s. 83-2259
Parties, 245 U.S.App.D.C. 179, 15 Envtl. L. Rep. 20,467 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. HOMESTAKE MINING COMPANY, Petitioner, v. UNITED STATES ENVIRONMENTAL PROTECTION AGENCY, Respondent, Edison Electric Institute, et al., Intervenors. COTTER CORPORATION, Petitioner, v. William D. RUCKELSHAUS, 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, 83-2266.
CourtUnited States Courts of Appeals. United States Court of Appeals (District of Columbia)

Richard A. Flye, Washington, D.C., with whom Christian Volz, Washington, D.C., was on 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, Santa Fe, N.M., with whom Michael S. Yesley, Santa Fe, N.M., and Peter J. Nickles, Washington, D.C., were on brief for petitioner, United Nuclear Corporation, in No. 83-2260 and the joint brief for petitioners on Common Issues in Nos. 83-2259, et al. Mr. Crout also entered an appearance for petitioner, Homestake Mining Company, in Nos. 83-2261 and 83-2262.

Ridgeway M. Hall, Jr., Washington, D.C., for petitioner, Homestake Mining Company, in Nos. 83-2261 and 83-2262. Ridgeway M. Hall, Jr., Washington, D.C., was also on joint brief for petitioners on Common Issues in Nos. 83-2259, et al. and brief for petitioner, Homestake Mining Company, on Issues Specific to Whitewood Creek, South Dakota.

Daniel J. Dunn, Denver, Colo., with whom Edward J. McGrath, was on joint Daniel H. Squire, Washington, D.C., with whom David B. Weinberg, Washington, D.C., was on brief for petitioner, Inmont Corporation, in No. 83-2264 and intervenors, Edison Electric Institute, et al. in Nos. 83-2259, 83-2260, 83-2261, 83-2262, 83-2263 and 83-2266.

brief on Common Issues for petitioner, Cotter Corporation, in Nos. 83-2259, et al. Daniel J. Dunn, Denver, Colo., and Edward J. McGrath, also entered appearances for petitioner, Cotter Corporation, in No. 83-2263.

William L. Rosbe, Richmond, Va., for petitioner, Virginia Electric and Power Company, in No. 83-2266.

Samuel I. Gutter, Atty., Environmental Protection Agency, Lawrence R. Liebesman and Michael W. Steinberg, Attys., Dept. of Justice, Washington, D.C., with whom Todd E. Gulick, Atty. and A. James Barnes, General Counsel, Environmental Protection Agency, Washington, D.C., were on brief, for respondents in Nos. 83-2259, et al. David T. Buente entered an appearance for respondent, Dept. of Justice, in Nos. 83-2259, et al.

James T. Kilbreth, III, Washington, D.C., was on brief for intervenors, State of Maine, et al., in No. 83-2259.

Patrick A. O'Hare, Richmond, Va., was on brief for intervenor, Commonwealth of Virginia in No. 83-2259.

Charlotte Uram, Santa Fe, N.M., was on brief for intervenors, State of New Mexico, et al., in No. 83-2259.

Everett B. Carson, Augusta, Maine, was on 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 brief for intervenor, St. Joe Minerals Corporation, in No. 83-2259.

Before ROBINSON, Chief Judge, EDWARDS, and STARR, Circuit Judges.

Opinion for the Court by HARRY T. EDWARDS, Circuit Judge.

HARRY T. EDWARDS, Circuit Judge:

In this case, the petitioners challenge the legality of the Hazardous Ranking System ("HRS"), adopted by the Environmental Protection Agency ("EPA" or the "agency") pursuant to section 105 of the Comprehensive Environmental Response, Compensation and Liability Act of 1980 ("CERCLA"). 1 The HRS is the designated model used by the EPA to determine sites to be listed on a National Priority List ("NPL") under CERCLA. The NPL lists 400 sites that have been contaminated by harmful substances and that may warrant corrective action under CERCLA. Petitioners here claim that they should not have been included on the NPL because the ranking methodology established by the HRS is unlawful. 2

The HRS was promulgated on July 16, 1982, in a notice-and-comment rulemaking proceeding separate from that which produced the final NPL on September 8, 1983. CERCLA's statutory review provision, section 113(a), 3 stipulates that petitions for judicial review of regulations pro We emphasize first that petitioners who delay filing requests for review on their own assessment of when an issue is ripe for review do so at the risk of finding their claims time-barred. Normally, the appropriate time for a judicial determination of the ripeness of an issue is within the prescribed statutory period for review. In general, we will refuse to hypothesize whether, in retrospect, a claim would have been deemed ripe for review had it been brought during the statutory period, in order to save an untimely claim. Exceptions occasionally may be justified in the light of changed circumstances giving rise to a new cause of action beyond the statutory period for review; compelling case precedent that makes it clear beyond doubt that the claim was not ripe during the statutory period; or clear evidence that a failure to consider a petitioner's claims would work a manifest injustice. The petitioners' challenge to the HRS fall within none of these exceptions. However, because we articulate here for the first time the circumstances under which the court will engage in "retrospective ripeness analysis" after the statutory review period has expired, we proceed to evaluate the petitioners' claim on the merits.

mulgated under CERCLA must be filed with this court within ninety days of the regulations' promulgation. The petitioners failed to seek review of the HRS during the mandated statutory period. Despite their untimely request for review, the petitioners urge that their failure to file within the statutory period should be excused because they assumed that their challenge was not ripe for review until the NPL was promulgated. We reject this argument as patently untenable under the applicable terms of CERCLA.

We conclude that the challenge to the HRS was ripe during the statutory review period. Therefore, we find petitioners' claim to be barred as untimely. In the alternative, we hold on the merits that, given the narrow purpose of the HRS and the NPL--to provide an expeditious and relatively inexpensive initial determination of which sites may warrant further action under CERCLA--and in light of the agency's manifest awareness of the HRS's technical limitations, the model is reasonable and consistent with congressional intent.

I. BACKGROUND

Through CERCLA, Congress sought to establish a system for rectifying some of the serious public health and environmental problems that have been caused by improper disposal of hazardous wastes, pollutants and contaminants. Essentially, CERCLA authorizes the EPA to respond to actual or threatened releases of these harmful substances, 4 both through removal actions, which entail the actual cleanup of a release, 5 and remedial actions, which provide for remedies to prevent or minimize the release of hazardous substances. 6 The statute also establishes a fund (the "Superfund") to pay for cleanup action. 7

In section 105 8 of CERCLA, Congress instructs the EPA 9 to revise the National Contingency Plan ("NCP"), which had originally been developed under the Clean Water Act 10 to give guidance to agencies in removing oil or hazardous substances from United States waters, to "reflect and effectuate the responsibilities and powers" created by CERCLA. This revision is to in In response to this statutory mandate, the EPA adhered to the requisites of notice-and-comment rulemaking and published a proposed revision of the NCP in the Federal Register on March 12, 1982. 13 This proposal explicitly designated the HRS as the method favored by the agency for ranking hazardous substance releases, included an address where the HRS could be obtained upon request, and solicited comment on the HRS. 14 Numerous comments on the proposed HRS were received and considered by the EPA during the rulemaking process. The final versions of the revised NCP and the HRS were then promulgated on July 16, 1982, and published in the Federal Register. 15

                clude "criteria for determining priorities among releases or threatened releases throughout the United States...." 11  The EPA is also directed to include in the NCP an initial list of at least 400 sites selected on the basis of the above criteria--the NPL.  The statute requires that the NPL be revised "no less often than annually." 12
                

As the EPA explained in the preamble to the final NCP, "the HRS is designed to estimate the potential hazard presented by releases or threatened releases of hazardous substances, pollutants and contaminants." 16 The agency applies the HRS to data from an observed or potential release to obtain a "score" or estimate of the risk from the release. The EPA then relies on HRS scores to determine which releases should be listed...

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