Washington State Dept. of Transp. v. U.S. E.P.A., 89-1445

• Decision Date: 11 January 1991
• Docket Number: No. 89-1445,89-1445
• Citation: 917 F.2d 1309
• Parties: , 286 U.S.App.D.C. 379, 21 Envtl. L. Rep. 20,151 WASHINGTON STATE DEPARTMENT OF TRANSPORTATION, Petitioner, v. UNITED STATES ENVIRONMENTAL PROTECTION AGENCY, Respondent.
• Court: U.S. Court of Appeals — District of Columbia Circuit

Page 1309

917 F.2d 1309

32 ERC 1145, 286 U.S.App.D.C. 379, 21

Envtl. L. Rep. 20,151

WASHINGTON STATE DEPARTMENT OF TRANSPORTATION, Petitioner, v. UNITED STATES ENVIRONMENTAL PROTECTION AGENCY, Respondent.

No. 89-1445.

United States Court of Appeals, District of Columbia Circuit.

Argued Oct. 15, 1990.

Decided Nov. 2, 1990.

Rehearing Denied Jan. 11, 1991.

Deborah L. Cade, Asst. Atty. Gen., with whom Kenneth O. Eikenberry, Atty. Gen., and Charles F. Secrest, Asst. Atty. Gen., were on the brief, for petitioner.

Russell M. Young, Atty., U.S. Dept. of Justice, with whom Richard B. Stewart, Asst. Atty. Gen., E. Donald Elliot, Gen. Counsel, and Earl Salo, Asst. Gen. Counsel, E.P.A., were on the brief, for respondent.

Margaret Kane Harrigan, Atty., U.S. Dept. of Justice, also entered an appearance for respondent.

Before EDWARDS, D.H. GINSBURG and SENTELLE, Circuit Judges.

Opinion for the Court filed by Circuit Judge EDWARDS.

EDWARDS, Circuit Judge:

The petitioner in this case, Washington State Department of Transportation ("WSDOT"), challenges a decision by the Environmental Protection Agency ("EPA") to include property WSDOT owns on a list of contaminated environmental areas subject to federal cleanup under the "Superfund" program. WSDOT claims that the EPA designated its property as part of a larger, pre-existing Superfund priority site without first affording WSDOT notice and Because WSDOT had reasonable notice some years ago that its property was potentially affected by the 1983 site listing, and because it failed to seek judicial review within the 90-day limitations period imposed by statute, see 42 U.S.C. Sec. 9613(a) (1988), we deny the petition as untimely.

an opportunity to comment. It also claims that the EPA did not follow its own regulations in determining the site's geographic scope. WSDOT asks this court to require the EPA to remove its property from the Superfund list and to give it an opportunity to comment before any future attempt to redesignate the property as a Superfund site.

I. BACKGROUND

In 1983, the EPA promulgated a list of areas throughout the United States known to be contaminated by hazardous wastes. Sites included on the so-called National Priorities List ("NPL") are considered the leading candidates for cleanup financed by the Superfund program. See 42 U.S.C. Sec. 9605(a)(8)(B) (1988). "[T]he modest and limited purposes" of the NPL within the Superfund scheme have been well described in previous cases. See, e.g., Eagle-Picher Industries v. EPA, 759 F.2d 922, 932-33 (D.C.Cir.1985) ("Eagle-Picher II "); Eagle-Picher Industries v. EPA, 759 F.2d 905, 919-21 (D.C.Cir.1985) ("Eagle-Picher I"). It is sufficient to restate here that Congress intended the EPA to employ the NPL as a tool for identifying quickly and inexpensively those sites meriting closer environmental scrutiny.

Among the 400-odd locations included on the initial NPL were two portions of Commencement Bay, part of Puget Sound in Washington state. One of those sites, which concerns us here, was listed as "Commencement Bay Nearshore/Tideflats." After notice and comment, the NPL was promulgated as a final rule on September 8, 1983. See 48 Fed.Reg 40,658-73 (1983).

In keeping with agency policy, ¹ the EPA did not specify any exact geographic boundaries of the Commencement Bay Nearshore/Tideflats site. Background documents concerning the site simply described it as the "Tideflats industrial area," a stretch of Commencement Bay in Tacoma, Washington, peppered with docks, manufacturing and processing plants and other industrial facilities. ² Unable to know without further study precisely which of these industrial sources were responsible for the pollution, the EPA conducted investigations of two facilities to confirm its suspicion that shoreline industrial properties were polluting the Bay. These two facilities--a Hooker Chemical Company plant and an ASARCO copper smelter--were evaluated according to criteria embodied in the Hazard Ranking System ("HRS") ³ and produced scores sufficient to justify NPL listing. Based on these HRS data and on more generalized documentation of pollution in Commencement Bay WSDOT owns property located some 500 feet from a man-made tributary of Commencement Bay known as City Waterway and about three miles from the Hooker chemical plant. WSDOT acquired the property, which had long been used for a variety of industrial activities, in 1983 in order to construct an urban highway connecter known as the Tacoma Spur. During the course of readying the site for construction in 1984, WSDOT discovered hidden deposits of hazardous waste left from earlier industrial uses. A consultant hired by WSDOT to study contamination at the Tacoma Spur site advised WSDOT that pollution from the property was seeping into the nearby City Waterway through underground channels. ⁴ WSDOT promptly notified the EPA of its discovery and undertook its own efforts to remove the waste and eliminate the hazard. The EPA, following routine procedure, assigned the location a separate EPA site identification number and, over the next several years, undertook preliminary assessments of the property to determine whether it might qualify as a Superfund cleanup site.

the EPA listed the "Nearshore/Tideflats" site on the NPL.

In April 1989, the EPA notified WSDOT that its property was considered part of the earlier-announced Commencement Bay Nearshore/Tideflats site and that it was considered a "potentially responsible party" for the costs of cleaning up both its own property and the Bay itself. Three months later, WSDOT brought this action challenging the 1983 designation of the Commencement Bay site.

II. ANALYSIS

The designation of a hazardous waste site on the NPL is considered rulemaking subject to judicial review under 42 U.S.C. Sec. 9613(a) (1988). See Northside Sanitary Landfill, Inc. v. Thomas, 849 F.2d 1516, 1517 (D.C.Cir.1988), cert. denied, 489 U.S. 1078, 109 S.Ct. 1528, 103 L.Ed.2d 833 (1989). That statutory provision requires that "application [for judicial review] ... be made within ninety days from the date of promulgation" of the contested regulation. Since the Commencement Bay listing was promulgated on September 8, 1983, the statutory period for judicial review expired on December 7, 1983. Because WSDOT did not bring this action until July 21, 1989, its challenge is plainly time barred unless it was deprived of reasonable notice that it had an interest in the action. See Recreation Vehicle Indus. Ass'n v. EPA, 653 F.2d 562, 568 (D.C.Cir.1981) ("Before any litigant reasonably can be expected to present a petition for review of an agency rule, he first must be put on fair notice that the rule in question is applicable to him.").

Under established law, the EPA may include specific parcels of land within a NPL site so long as they are within the broad compass of the notice provided by the initial NPL listing. In Eagle-Picher Industries v. EPA, 822 F.2d 132 (D.C.Cir.1987) ("Eagle-Picher III" ) (per curiam), this court held that the EPA may alter or expand the boundaries of a NPL site if subsequent study reveals a wider-than-expected scope of contamination. ⁵ Nor is the EPA required in every instance to assign a separate HRS score to each parcel within a NPL site. See id. at 141-42. ⁶ WSDOT's Tacoma Spur property plainly...