Kent County, Delaware Levy Court v. U.S. E.P.A., 90-1569
| Decision Date | 01 May 1992 |
| Docket Number | No. 90-1569,90-1569 |
| Citation | 963 F.2d 391 |
| Parties | , 295 U.S.App.D.C. 288, 60 USLW 2715, 22 Envtl. L. Rep. 21,175 KENT COUNTY, DELAWARE LEVY COURT, Petitioner, v. UNITED STATES ENVIRONMENTAL PROTECTION AGENCY, Respondent. |
| Court | U.S. Court of Appeals — District of Columbia Circuit |
Petition for Review of an Order of the United States Environmental Protection Agency.
William Roger Truitt, with whom James P. Rathvon, Washington, D.C., was on the brief, for petitioner. Gina M. Zawitoski, Baltimore, Md., also entered an appearance for petitioner.
Eileen T. McDonough, Atty., Dept. of Justice, with whom Barry M. Hartman, Acting Asst. Atty. Gen., and Raymond Ludwiszewski, Gen. Counsel, Earl Salo, Asst. Gen. Counsel, and George Wyeth, Atty., Environmental Protection Agency, Washington, D.C., were on the brief, for respondent. Lewis M. Barr, Atty., Dept. of Justice, Washington, D.C., also entered an appearance for respondent.
Robert S. Kuehl, Deputy Atty. Gen., State of Del., Dept. of Justice, for amicus curiae, State of Del.
Before: MIKVA, Chief Judge, EDWARDS and RUTH B. GINSBURG, Circuit Judges.
Opinion for the Court filed by Chief Judge MIKVA.
Petitioner, Kent County, Delaware Levy Court, challenges a decision by the EPA to add the Houston landfill, located in Kent County, Delaware, to the National Priorities List. Kent County contends that the EPA improperly calculated the landfill's "waste characteristics" score by using only an unfiltered sample in testing the groundwater at the site. Petitioner also argues that the EPA failed to consider undisputed data concerning the size of the population potentially at risk in determining the site's "distance to nearest well/population served" score. We vacate the EPA's listing decision and remand for further consideration.
The EPA based the landfill's waste characteristics score on a single unfiltered groundwater sample despite several EPA documents suggesting that both filtered and unfiltered tests are needed to evaluate the metals content of a groundwater sample accurately. The agency does not plausibly contend that performing both tests would be too burdensome, economically or otherwise. And since we find nothing in the record that could justify failing to use filtered samples as well as unfiltered samples in this case, we conclude that the EPA acted arbitrarily in failing to conduct both tests. Furthermore, although we reject Kent County's arguments concerning the distance to nearest well/population served score, we suggest that the EPA reconsider the site's score on remand by excluding irrigation wells that do not draw from the aquifer of concern.
Section 105 of the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) requires the establishment of a National Priorities List (NPL) of known or threatened releases of hazardous substances throughout the United States. See 42 U.S.C. § 9605(a)(8). Through an informal notice and comment rulemaking process, the EPA places hazardous waste sites on the NPL according to a score generated by the Hazard Ranking System (HRS). A hazardous waste site's HRS score reflects "the relative potential of uncontrolled hazardous substance facilities to cause health or safety problems, or ecological or environmental damage." Appendix A to Part 300--Uncontrolled Hazardous Waste Site Ranking System; A Users Manual, 40 C.F.R. Pt. 300, App. A § 1.0 (Hereinafter HRS Manual ) (unless otherwise noted, all references to the HRS Manual are to the prior version). Sites with an HRS score of 28.5 or higher are placed on the NPL. See Tex Tin Corp. v. EPA, 935 F.2d 1321, 1322 (D.C.Cir.1991) ().
Kent County operated its Houston Landfill between 1969 and 1980. In 1988, the EPA proposed to place the landfill on the NPL after data from tests conducted in 1984 indicated the presence of contaminants including arsenic, chromium, manganese, as well as certain organic compounds, in a monitoring well at the site. On the basis of this data, the EPA's Region III calculated the landfill's HRS score to be 38.11, well in excess of the 28.5 necessary to place the site on the NPL. The Houston Landfill was placed on the list in August of 1990.
Kent County now challenges the EPA's decision, claiming that the EPA improperly scored the Houston site. Specifically, Kent County challenges the EPA's calculation of the site's "waste characteristics" and "distance to nearest well/population served" scores. Kent County contends that the EPA improperly based the site's waste characteristics score solely on the unfiltered groundwater sample taken in 1984. The County claims that because the sample was not filtered, it may have contained soil particles with naturally occurring metals and thereby overstated the danger to groundwater posed by the site. Petitioner also argues that the EPA arbitrarily and capriciously calculated the site's "distance to nearest well/population served" score by considering wells located beyond a discontinuity in the aquifer of concern and by counting the population served by irrigation wells that did not draw from the aquifer of concern.
The EPA's decision to place a hazardous waste site on the NPL is the product of informal notice and comment rulemaking, reviewable under the arbitrary and capricious standard. Eagle-Picher Indus., Inc. v. EPA, 822 F.2d 132, 137 n. 7 (D.C.Cir.1987) (Eagle-Picher III ). We will uphold the EPA's decision if it is "consistent with the Act and the regulations promulgated thereunder, and is not arbitrary." City of Stoughton, 858 F.2d at 749 (internal quotation omitted).
As the agency consistently reminds us, listing on the NPL does not require any action by any party, and does not determine any party's liability for the cost of cleanup at the site. See Eagle-Picher I, 759 F.2d at 920 (). It is intended to be a "rough list" of prioritized hazardous waste sites; a "first step in a process--nothing more, nothing less." Eagle-Picher Indus. v. EPA, 759 F.2d 922, 932 (D.C.Cir.1985) (Eagle-Picher II ). Therefore, we have recognized the EPA's interest in reconciling "the need for certainty before action with the need for inexpensive, expeditious procedures to identify potentially hazardous sites...." Eagle-Picher I, 759 F.2d at 921.
But the agency must remain aware that placement on the NPL has serious consequences for a site's owner. See B & B Tritech, Inc. F/K/A B & B Chemical Co, Inc. v. EPA, 957 F.2d 882, 885 (D.C.Cir.1992) (); SCA Serv. of Indiana v. Thomas, 634 F.Supp. 1355, 1361-66 (N.D.Ind.1986) (). While we do not require the EPA's decisions to be perfect, or even the best, see City of Stoughton, 858 F.2d at 756, we do require that they not be arbitrary or capricious.
A facility's "waste characteristics" score reflects the toxicity, persistence, and quantity of the most hazardous substance present at a facility that could migrate to groundwater. See HRS Manual, 40 C.F.R. Pt. 300, App. A § 3.4 On the strength of a groundwater sample taken from the Houston landfill, the EPA determined that the most hazardous substance present at the site was arsenic.
In its comments, Kent County raised concerns with the methodology used by the EPA in its groundwater tests, stating that
[i]n view of the acknowledged quality control problems encountered by EPA's contract laboratory as outlined in the [groundwater expert's report], as well as the uncertainties concerning sampling protocols that were utilized in the field, it is reasonable to assume that the single round of PMW-3 data relied upon in the D.R. constitutes an aberration and should be discarded.
Kent County Comments, at 5. The County also submitted the report prepared by its groundwater expert, Geraghty & Miller, which explained:
[I]t is presently unclear whether aqueous sample preparation in the field included filtering and fixing the samples prior to shipment for analysis. This represents an important consideration for metals analyses, since far different results for non-filtered, non-preserved samples can occur. Raw samples with high suspended solids concentrations when analyzed can result in higher reported values for metals. Characterization of ground water without geologic material matrix interference requires samples to be filtered and fixed to provide a truer representation of ground-water quality conditions.
Geraghty & Miller Report, at 10. Furthermore, in supplemental comments, Kent County submitted geological data indicating that there was naturally occurring arsenic in the soil surrounding the Houston site that may have affected the agency's groundwater tests. Letter from Wm. Roger Truitt, Attorney for Kent County, to Penelope Hansen, Chief, Hazardous Assessment Branch, EPA 2-3 (July 23, 1990). The supplemental comments also referred the EPA to the agency's own 1982 "Statement of Work" apparently instructing field testers to filter samples before performing metals analysis. Id. at 2.
The State of Delaware, in its comments, agreed with Kent County's conclusions on the use of an unfiltered groundwater sample. The State explained that "[f]iltration through a .45 micron pore size filter immediately after sample capture and prior to acid fixation is the method adopted by the U.S. Geological Survey and [the state] for ...
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