Linemaster Switch Corp. v. U.S. E.P.A., s. 90-1253

• Citation: 938 F.2d 1299,291 U.S.App.D.C. 40
• Decision Date: 12 July 1991
• Docket Number: 90-1262 and 90-1263,Nos. 90-1253,s. 90-1253
• Parties: , 291 U.S.App.D.C. 40, 60 USLW 2097, 21 Envtl. L. Rep. 21,359 LINEMASTER SWITCH CORPORATION, Petitioner, v. UNITED STATES ENVIRONMENTAL PROTECTION AGENCY, Respondent. CLARK EQUIPMENT COMPANY, Petitioner, v. UNITED STATES ENVIRONMENTAL PROTECTION AGENCY, Respondent. SCHLUMBERGER INDUSTRIES, INC., a/k/a Sangamo Weston, Inc., Petitioner, v. UNITED STATES ENVIRONMENTAL PROTECTION AGENCY, Respondent.
• Court: United States Courts of Appeals. United States Court of Appeals (District of Columbia)

Page 1299

938 F.2d 1299

33 ERC 1589, 291 U.S.App.D.C. 40, 60

USLW 2097,

21 Envtl. L. Rep. 21,359

LINEMASTER SWITCH CORPORATION, Petitioner, v. UNITED STATES ENVIRONMENTAL PROTECTION AGENCY, Respondent.

CLARK EQUIPMENT COMPANY, Petitioner, v. UNITED STATES ENVIRONMENTAL PROTECTION AGENCY, Respondent.

SCHLUMBERGER INDUSTRIES, INC., a/k/a Sangamo Weston, Inc., Petitioner, v. UNITED STATES ENVIRONMENTAL PROTECTION AGENCY, Respondent.

Nos. 90-1253, 90-1262 and 90-1263.

United States Court of Appeals District of Columbia Circuit.

Argued May 23, 1991.

Decided July 12, 1991.

Michael M. Meloy, Bala Cynwyd, Pa., with whom Sheila D. Jones and Randi L. Breslow were on the brief, Washington, D.C., for petitioner Clark Equipment Co. in 90-1262. Christopher J. Dunsky, Washington, D.C., also entered an appearance for petitioner.

R. Bradford Fawley, Hartford, Conn., for petitioner Linemaster Switch Corp. in 90-1253. Sherry W. Gilbert, Washington, D.C., also entered an appearance for petitioner.

Robert O. King, with whom L. Gray Geddie, Jr., Greenville, S.C., and James M. Kuszaj, Raleigh, N.C., were on the brief, for petitioner Schlumberger Industries, Inc. in 90-1263. Pamela E. Savage, Atlanta, Ga., Peter G. Nash, Washington, D.C., and Brian W. Curtis, II, Nashville, Tenn., also entered appearances for petitioner.

Eileen T. McDonough, Attorney, U.S. Dept. of Justice, and George Wyeth, Attorney, E.P.A., with whom Richard B. Stewart, Asst. Atty. Gen., and Earl Salo, Asst. Gen. Counsel, E.P.A., were on the brief, Washington, D.C., for respondent.

Byron L. Gregory, Louis M. Rundio, Jr., Chicago, Ill., and Donald R. Frederico, Boston, Mass., were on the brief for amicus curiae General Signal Corp., urging that the petitions for review be granted as to the joint statutory claim.

Before MIKVA, Chief Judge, and SILBERMAN and THOMAS, Circuit Judges.

Opinion for the Court filed by Chief Judge MIKVA.

MIKVA, Chief Judge:

Petitioners in these consolidated cases own sites that the Environmental Protection Agency (EPA) added to the National Priorities List (NPL), a compilation of hazardous waste sites considered to pose the greatest risk to human health and the environment, in February 1990. Petitioners jointly claim that EPA lacked authority to add sites to the NPL after October 1988, the date by which Congress had instructed the agency to revise its Hazard Ranking System (HRS) for evaluating potential NPL sites. Each petitioner also raises site-specific challenges to EPA's listing decisions. We conclude that EPA possessed authority to add sites to the NPL between October 1988 and the effective date of the belatedly revised HRS, and that EPA's inclusion of petitioners' sites on the NPL was neither arbitrary nor capricious.

I. BACKGROUND

Section 105(a) of the Comprehensive Environmental Response, Compensation, and Liability Act of 1980 (CERCLA) requires the President, as part of a National Contingency Plan (NCP) for the removal of hazardous substances, to establish "criteria for determining priorities among releases or threatened releases" of hazardous substances, and to use those criteria to identify and list priority sites for remedial action. See 42 U.S.C. Sec. 9605(a)(8)(A), (B) (1988). Congress instructed the President to revise the list of priority waste sites "no less often than annually." See 42 U.S.C. Sec. 9605(a)(8)(B). EPA, to whom the President has delegated his statutory responsibility for the NCP, see 40 C.F.R. Sec. 300.2 (1990), developed the Hazard Ranking System, a scientific model for estimating the human health and environmental risks posed by observed or threatened releases of hazardous substances, to evaluate sites being considered for inclusion on the NPL. See 47 Fed.Reg. 31,180 (1982); 40 C.F.R. Part 300, App. A (1990) [hereinafter 1982 HRS or original HRS ]. We have discussed the functions, methodology, and application of the HRS at length in our prior opinions. See, e.g., Eagle-Picher Industries v. EPA, 759 F.2d 905 (D.C.Cir.1985) ["Eagle-Picher I "]; Eagle-Picher Industries v. EPA, 822 F.2d 132 (D.C.Cir.1987) ["Eagle-Picher III "]; Stoughton v. EPA, 858 F.2d 747 (D.C.Cir.1988).

Congress substantially revised CERCLA in the Superfund Amendments and Reauthorization Act of 1986 (SARA), PUB.L. No. 99-499, 100 Stat. 1613. SARA added a new subsection (c) to section 105 of CERCLA, requiring the President to amend the HRS to "assure, to the maximum extent feasible, that the hazard ranking system accurately assesses the relative degree of risk to human health and the environment posed by sites and facilities subject to review." 42 U.S.C. Sec. 9605(c)(1). The provision further stated that:

The President shall establish an effective date for the amended hazard ranking system which is not later than 24 months after October 17, 1986. Such amended hazard ranking system shall be applied to any site or facility to be newly listed on the National Priorities List after the effective date established by the President. Until such effective date of the regulations, the hazard ranking system in effect on September 1, 1984, shall continue in full force and effect.

Id.

EPA's revised HRS did not become effective until March 14, 1991--almost twenty-nine months after the October 17, 1988 deadline established by Congress. See 55 Fed.Reg. 51,532 (1990) (announcing promulgation of final HRS revisions). Between the October 1988 statutory deadline and the effective date of the amended HRS, however, EPA added seventy-one sites to the NPL using the criteria established in the 1982 HRS. See 55 Fed.Reg. 6154 (1990). Among those sites were facilities owned by petitioners Linemaster Switch Corp. (a manufacturing plant in Woodstock, Connecticut), Clark Equipment Co. (the "Tyler Refrigeration Pit" in Smyrna, Delaware), and Schlumberger Industries, Inc. (the "Sangamo Weston, Inc./Twelve-Mile Creek/Lake Hartwell PCB Contamination Site" in Pickens, South Carolina). See id. at 6160-61.

II. SECTION 105(c) CHALLENGE

Petitioners raise a joint statutory challenge to EPA's inclusion of their sites on the NPL. They claim that EPA lacked authority to add sites to the NPL pursuant to the 1982 HRS once the October 1988 deadline contained in section 105(c)(1) had passed. Petitioners argue that Congress' mandate was plain: EPA was to amend the HRS by October 1988 at the latest and apply the amended HRS to any site listed after the amendments' effective date. Consequently, they contend that this court must give effect to Congress' clear intent to preclude EPA from adding sites to the NPL after October 1988 except pursuant to an amended HRS.

We consider the statutory question to be significantly more complicated than petitioners suggest. Although section 105(c)(1) clearly instructs the President to revise the HRS by October 1988, it specifies no consequences for failure to comply with that deadline. Cf. 42 U.S.C. Sec. 6924(g)(6) (Resource Conservation and Recovery Act specifies consequences of EPA's failure to meet deadline). The text of section 105(c)(1) thus offers no indication of what Congress intended in the event of EPA's non-compliance with the statutory mandate. Petitioners' claim that Congress intended to prohibit additions to the NPL altogether after October 17, 1988 until the amended HRS became effective is certainly plausible. Given section 105(a)(8)(B)'s command that the NPL be revised annually, however, it is also plausible that Congress would have wanted EPA to continue using the 1982 HRS until the amended HRS became effective--whatever that date might be.

We cannot agree with EPA's suggestion that we resolve this statutory ambiguity through resort to Chevron deference. See Chevron U.S.A. Inc. v. Natural Resources Defense Council, 467 U.S. 837, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984). Before we may defer to an agency's construction of a statute, we must find either explicit or implicit evidence of congressional intent to delegate interpretive authority. See id. at 843-44, 104 S.Ct. at 2781-82; Kansas City v. Dep't of Housing and Urban Development, 923 F.2d 188, 191-92 (D.C.Cir.1991). Section 105(c)(1) contains no such explicit delegation. Moreover, given the clarity of Congress' instruction that the HRS be revised no later than October 17, 1988, it would indeed be odd to conclude that Congress implicitly entrusted a laggard agency with the authority to devise a remedy for its own untimeliness.

Our own review of the legislative history surrounding section 105(c) suggests that Congress would not have wanted to revoke EPA's authority to list sites on the NPL after expiration of the statutory deadline. The nature of legislators' dissatisfaction with the 1982 HRS is of critical importance to our resolution of the statutory ambiguity. Through SARA, Congress sought to ensure that an amended HRS would "accurately assess[ ] the relative degree of risk" posed by potential NPL sites. See CERCLA Sec. 105(c)(1); 42 U.S.C. Sec. 9605(c)(1). Congress was troubled primarily by allegations that the 1982 HRS resulted in the listing of a disproportionate number of high volume, low toxicity hazardous waste sites--notably mining sites. See, e.g., S.REP. No. 11, 99th Cong., 1st Sess. 40 (1985) (acknowledging possibility of "bias in the hazard ranking system against large quantities of waste with the presence of trace toxic metals, such as typical mining wastes"); H.R.REP. No. 962, 99th Cong., 2d Sess. 200 (1986) ("The review of the Hazard Ranking System needs to adequately consider the quantity, toxicity, and concentrations of hazardous constituents, which are present in any release...."); Superfund Improvement Act of 1985: Hearings on S. 51 and S. 494 Before the Senate Comm. on Environment and Public Works, 99th Cong., 1st Sess. 53 (1985) (comments of Sen. Simpson expressing concern about the effect of EPA's "hazardous waste ranking on mining sites"); id. at 72 (EPA's written responses to Sen. Simpson's questions, acknowledging that "it may be possible...