Petition for Writ of Certiorari — Northside Sanitary Landfill, Inc. v. Reilly

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Text

—_—

re eran

, Supreme Court, U.S,

7 FILED

| DEC 71 1988

“JOREPH F. SPANIOL, JR.

‘ CLERK

<8 ao

No.

IN THE

Supreme Court of the United States

October Term, 1988

NoORTHSIDE SANITARY LANDFILL, INC.,

Petitioner,

Lee M. THOMAS, AS ADMINISTRATOR OF, AND THE

UNITED STATES ENVIRONMENTAL PROTECTION AGENCY.

Respondents,

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS FOR THE

DISTRICT OF COLUMBIA CIRCUIT

Warren D. Krebs

Counsel for

NORTHSIDE SANITARY LANDFILL,

INC.

PARR, RICHEY, OBREMSKEY &

MORTON

121 Monument Circle

Suite 500

Indianapolis, Indiana 46204

(317) 632-3686

QUESTIONS PRESENTED FOR REVIEW

1. Whether the Court of Appeals improperly concluded

that one subject to federal agency action must be cognizant of

“ll decisions directed at it which are both published in the

Federal Register and unpublished; and must detail by the time

for filing for reconsideration all objections later raised upon

judicial review, where the EPA did not serve its response to the

entity's written comments, the EPA’s regulation eliminated the

APA § 552(e) right of reconsideration, the statute does not limit

review to specific objections, and no adjudicatory hearing is

allowed.

2. Whether the Court of Appeals improperly concluded

that a site proposed for the National Priorities List (NPL)

under the National Oil and Hazardous Substances Con-

tingency Plan must raise all of its objections with specificity

prior to judicial review where the statute neither limits review

to objections raised with specificity nor permits an

adjudicatory hearing; where the statute and regulation provide

for only “informal comments”; and where the EPA provided no

reconsideration process under a statute requiring judicial

review within ninety days of the final rule.

3. Whether the EPA’s Final Rule promulgating its Update

to the NPL and the Court of Appeals’ prior decision upholding

EPA’s Hazard Ranking System preclude listing a site which

consists of regulated units of an unabandoned facility having

interim status under the Resource Conservation and Recovery

Act (RCRA).

4. Whether the Court of Appeals failed to apply the proper

standard of judicial review by concluding that it would have

denied Northside’s appeal on the merits where the EPA

obviously failed to comply with several requirements of its

Hazard Ranking System and where all scientific evidence con-

tradicts EPA’s crucial determinations regarding the number

and discontinuity of groundwater aquifers.

TABLE OF CONTENTS

Page

Ouinione TOGO 6. kc cna cas cacseenncea ce bene ewes l

Jutathetional Gusts i. a0 65 «Ae eee eee 2

Statutory And Regulatory Provisions Involved ........ 3

Statement OF The Gaee ioc nhl dee eee 7

Reasons For Allowing The Writ ..................05. 11

1. Congress Has Not Imposed Upon Those Selec-

tively Chosen For Agency Action The Duty To Read

Daily Notices Of Proposed Rulemaking Published

In The Federal Register, And Certainly Has Not

Imposed The Duty To Become Aware Of Agency

Responses Never Transmitted Nor Even Published

By The Agency ....«isccnanavus eee eee 13

2. Judicial Review Is Not Precluded As To Issues Not

Raised As Specific Arguments Or Summarized To

The Agency Unless The Statute Contains Such A

Preclusion Or Unless The Process Entails An

Adjudicatery Heart 6.62 gees waesaceeee ees 18

3. A Court Must Reverse An Administrative Decision

Where The Agency Has Failed To Comply With Its

Own Published Policy And Interpretation Of Con-

gressional Intent To Exclude A Particular Type Of

Facility From The National Priorities List ...... 21

4. The Circuit Court’s Opinion Constitutes The Grant-

ing Of A Degree Of Judicial Deference To An

Agency Action Equaling A Rubber Stamp Of A

Decision Which Is Contrary To The Regulatory

Requirements Of The Hazard Ranking System And

To The Record Eviddenee «6.50.5 s00-enesceaness 24

Cometusion .....acvsasskbsse tee 28

NS ee le wes vas eo te A-1

a ERPS ea a A-12

gat iG Cds vdeo sire wcke oercvk A-14

EE re eee A-15

a dois ad owe oso qc h inky, A-16

ens igs son ck nha bo A-17

OEE SER EE See ee ee ae a A-19

I eee eA a Oe | A-47

rh ct ST OE ge A-61

ee ge do cra bin ala bo akc A-62

ea a ae A a a A-63

EE TS ES ee A-65

ES SEES Rg A-73

iil

TABLE OF AUTHORITIES

Cases Page(s)

American Maritime Association v. United States, 766

ob PS Flas 2 | ere ree 17, 19

City of Seabrook, Texas v. U.S. EPA, 659 F.2d 1349

ee OS cca ak keen se chueanwe 12, 13, 14, 18, 19

Consolidated Freightways v. NLRB, 669 F.2d 790

Cea Oe SED la Ke ecs cewuadpuatepeseseasnwes 17

Dobbs v. Costle, 559 F.2d 946 (5th Cir. 1977) .......... 14

Dobbs v. Train, 409 F.Supp. 432 (N.D. Ga. 1975) ...... 14

Eagle-Picher Industries, Inc. v. U.S. EPA, 759 F.2d 905

ie pe | re ree re 8, 138, 19, 22, 24, 25

Eagle-Picher Industries, Inc. v. U.S. EPA, 822 F.2d 132

AG A ED hivn bat bee dene Kenan aensceeaeeanss 8, 19

Ethyl Corporation v. U.S. EPA, 541 F.2d 1 (D.C. Cir.),

cert. denied,426 U.S. 941 (1976) ................ 19, 24

Gage v. AEC, 479 F.2d 1214 (D.C. Cir. 1973) .......... 18

Home Bow Office, Inc. v. FCC, 567 F.2d 9 (D.C. Cir.), cert.

dented, 434 U.S. S20 (IST?) . 0.2.2 seesaw cnscnes 12, 16

Maryland People’s Council v. FERC, 761 F.2d 780 (D. C.

+ | ee pre rrr rer rrr rare 19, 24

Northside Sanitary Landfill, Inc. v. Ruckelshaus and

U.S. EPA, Cause No. 83-2258, U.S. Court of

Appeals for the District of Columbia Circuit ...... 2

Northside Sanitary Landfill, Inc. v. Thomas and U.S.

EPA, 849 F.2d 1516 (D.C. Cir. 1988) ........ 1, 11, 12, 24

Northside Sanitary Landfill, Inc. v. Thomas and U.S.

EPA, 804 F.2d 371 (7th Cir. 1986) ............. 1, 10, 23

Portland Cement Ass’n. v. Ruckelshaus, 486 F.2d 375

GPa Oe SUR acne tian euseusiicue eee 12, 18

Salt River Project v. United States, 762 F.2d 1053 (D.C.

See SU ceded nue sl ienceie eee 24

United States v. Northside Sanitary Landfill, Inc., Cause

No. IP88-172C (S.D. Ind. 1988) (App. H)...... 1,22

United States Satellite Broadcasting Company, Inc. v.

FCC, 740 F.2d 1177 (D.C. Cir. 1984) ............. 16

Vermont Yankee Nuclear Power Corp. v. Natural

Resources Defense Council, Inc., 435 U.S. 519

So Pee eer Pain es Munaicen 12, 13, 18, 19, 27

Washington Association for Television And Children v.

FCC, 712 F.2d 677 (D.C. Cir. 1983) .............. 20

Wisconsin Electric Power Co. v. Costle, 715 F.2d 323 (7th

Ce SE sh cde'cccvusnesy cchloct eee 15

Statutes

Administrative Procedure Act, 5 U.S.C. § 553

SUB: STII icosdsicivitatkesee eee

5 U.S.C. § 553(e) STILETTO

O0.S.C. SGRNOD. .o occ cccsscccevds i, 3, 14, 15, 16, 17, 20

PUA, Hea cide edes sa eesasee ee 3

DUM Ba is cdbiicerinecesvenncseee 3

Oe AL Go tks cds vended bee 2

Resource Conservation and Recovery Act of 1980,

42 U.B.C. §GOOLGBOA ooo ee cco co ccccccee. 8

eR RNR les= + | 22

Oe UE, PG ose ks od ekusuesdee ks Lee 10

SE US. SOD io isan oe snccckcueshe oe 23

Clean Air Act

42 U.S.C. $ TGOT(AMTMB) .. 0. ccc cc ccc cece ec cccens 14

Comprehensive Environmental Response, Compensation and

Liability Act,

42 U.S.C. $ 9601-9657 . 0... ccc cece ccc reece cece 2

42 U.S.C. $ GGOBMa) . 0. ccc cc ccc care ccecccccccccess 3

AZ U.S.C. $ SGC) 2... cece ccc ccc ccc cece ce ceceees 4

42 U.S.C. $ GGIBla). 0. oc cece rece cc ces esceneess 8, 11,17

EPA Regulations

AO CPR Prawt BBB. ooo occ cccesedieieivssonsnsssanas 5

40 CFR Part 260. .... 2. ccccncccccccccccccseccsccs 5

40 CFR, Part 264. .......ccccc cece cc cc cc ecccecess D

40 CFR Part 265... 2.2... ccc cece cece cece ees 5

40 CFR Part 300, Appendix A, Section 2.0........-. 6

40 CFR Part 300, Appendix A, Section 3.5........-- 6

40 CFR § 124.19... 0... ccc cece cee eee cee ee eeee 9, 10

48 Fed. Reg. 40658 (September 8, 1983) .......-----9% 23

48 Fed. Reg. 40674-40682 . 2... 6.6 ee cee eee eee eee i |

49 Fed. Reg. 37070-37090, 40 CFR Part 300 (September

Bi. BDBA). wc ccc cccccccncsecccsnwsevacteseseses 2,7

49 Fed. Reg. 37074... 0.6... cee eee eee eens 5

49 Fed. Reg. 37080-37081 ..........0. eee eee eens 4

No.

In THE

Supreme Court of the United States

October Term, 1988

NorRTHSIDE SANITARY LANDFILL, INC.,

Petitioner,

Ler M. THomas, AS ADMINISTRATOR OF, AND THE

UNITED StaTES ENVIRONMENTAL PROTECTION AGENCY,

Respondents,

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS FOR THE

DISTRICT OF COLUMBiA CIRCUIT

Northside Sanitary Landfill, Inc.,! by counsel, hereby peti-

tions for a writ of certiorari to review the judgment of the

United States Court of Appeals for the District of Columbia

Circuit in Northside Sanitary Landfill v. Thomas and EPA.

OPINIONS BELOW

The opinion of the Court of Appeals for the District of Colum-

bia in Northside Sanitary Landfill v. Thomas and EPA (Slip

Opinion .:t App. A., infra, A-1 through A-11 is reported at 849

F.2d 1516 (1988).

The related opinion of the Court of Appeals for the Seventh

Circuit in Northside Sanitary Landfill v. Thomas regarding

'NSL, Ine. is not a subsidiary of any other corporation, is an Indiana

corporation and has its business located five miles from Zionsviile, Indiana.

]

the applicability of the Resource Conservation and Recovery

Act to Northside is reported at 804 F.2d 371 (1986). (App. G,

infra, A-19 through A-46 is the Slip Opinion.)

The related Entry and Memorandum opinion issued on April

12, 1988, by the U.S. District Court for the Southern District of

Indiana in United States v. Northside Sanitary Landfill in

Cause No. IP 88-172C, (App. H, infra, A-47 through A-60)

establishes the unabandoned status of the Northside facility.

The determination finally placing Northside on the National

Priorities List is an amendment by the Environmental Protec-

tion Agency to the National Oil and Hazardous Substance

Contingency Plan (App. I, infra A-61), and it and the relevant

EPA Preamble provisions (App. L, infra, A-65 through A-72)

were originally reported at 49 Fed. Reg. 37070 through 37090

‘ Qo 2 ap QR

on September 21, 1984. oe

The related Order of the Court of Appeaté-for- the Disti ict of

Columbia in Northside Sanitary Landfill v. Rueckelsaus, -

Cause No. 83-2258, dismissed without prejudice Northside'’s

initial appeal from the EPA's proposed rule to list NSL which

was published on September 8, 1983, at 48 Fed. Reg.

40674-40682.(App. F, infra A-17)

JURISDICTIONAL SUMMARY

This Petition for Writ of Certiorari filed pursuant to jurisdic-

tion granted by 28 U.S.C. § 1254 is an appeal from a Judgment

entered on March 25, 1988, by the Circuit Court of Appeals for

the District of Columbia (App. B, infra) which dismissed an

appeal from a rulemaking decision by the Administrator of the

United States Environmental Protection Agency (“EPA”)

placing Northside Sanitary Landfill, Inc. (“NSL”) on the

National Priorities List (“NPL”) under the Comprehensive

Environmental Response, Compensation and Liability Act of

1980 (“CERCLA”), 42 U.S.C. §§ 9601-9657. The Admin-

istrator’s Final Rule was promulgated on September 21, 1984,

as 40 CFR Part 300 which amended Appendix B and the

National Oil and Hazardous Substances Contingency Plan

under Section 105 of CERCLA. (App. D,infra) It was pub-

lished at 49 Fed. Reg. 37070 et seg. NSL filed an Appeal and

Petition for:Review with the Circuit Court of Appeals for the

District of Columbia on November 30, 1984, pursuant to

exclusive jurisdiction granted by 42 U.S.C. § 9613(a). Having

granted NSL until forty-five days from issuance of its opinion

to file its petition for rehearing, the Circuit Court entered

Orders on August 31, 1988, denying Appellant’s Petition for

Rehearing and Suggestion for Rehearing En Banc. (App. G

and H, infra)

STATUTORY AND REGULATORY PROVISIONS

INVOLVED

Sections 553(b), (c) and (e) of the Administrative Procedure

Act, 5 U.S.C. § 553, regarding notice-and-comment rulemak-

ing provide:

(b) General notice of proposed rule making shall be pub-

lished in the Federal Register, unless persons subject

thereto are named and either personally served or otherwise

have actual notice thereof in accordance with law. . .

give interested persons an opportunity to participate in the

rule making through submission of written data, views, or

arguments with or without opportunity for oral presenta-

tion. After consideration of the relevant matter presented,

the agency shail incorporate in the rules adopted a concise

general statement of their basis and purpose. When rules

are required by statute to be made on the record after

opportunity for an agency hearing, sections 556 and 557 of

this title [5 USCS 8§ 556 and 597] apply instead of this

subsection.

(e) Each agency shall give an interested person the right to

petition for the issuance, amendment, or repeal of a rule.

(Sept. 6, 1966, P. L. 89-554 § 1, 80 Stat. 3&3.)

Section 105 of CERCLA, 42 U.S.C. § 9605(a), provided in its

relevant part regarding Revisions and Republications:

Within one hundred and eighty days after December 11,

1980, the President shall, after notice and opportunity for

public comments, revise and republish the national con-

tingency plan for the removal of oil and hazardous sub-

stances, originally prepared and published pursuant to

section 1321 of Title 33, to reflect and effectuate the respon-

sibilities and powers created by this chapter.

Section 105 of the Comprehensive Environmental Response,

Compensation and Liability Act of 1980 (“CERCLA”), 42

U.S.C. § 9605(¢), provides in its relevant part regarding revi-

sions to the Hazard Ranking System:

(1) REVISION—Not later than 18 months after the enact-

ment of the Superfund Amendments and Reauthorization

Act of 1986 and after publication of notice and opportunity

for submission of comments in accordance with section 553 of

title 5, United States Code, the President shall by rule

promulgate amendments to the hazard ranking system in

effect on September 1, 1984.

EPA’s Preamble to its Final Rule promulgating Update I to

the National Priorities List published at 49 Fed. Reg. 57070, at

37080 and 37081 (1984), provided in its relevant part regarding

EPA’ adopted procedure against administrative reconsidera-

tion:

EPA believes that the current approach of scoring by EPA or

the States, EPA quality assurance review, public comment

on the scoring, and EPA review of the comments provides

adequate safeguards against incorrect site scores.(App.

L,infra, A-71)

In addition to the foregoing reasons, other considerations

justify the current position not to rescore sites after final

listing. These considerations apply not only to cleanup situa-

tions but also to situations where a score might be affected

by new information about a site or by detection of an error in

the original calculations. The process established by EPA for

developing the NPL is comprehensive, involving initial scor-

ing, public proposal, consideration of public comment, re-

examination of data and scores, final score calculation, and

inclusion on the final NPL. Given this level of scrutiny, and

the time and expense involved in scoring sites, EPA finds it

necessary to rely upon the interested public to identify

factors pertinent to HRS score in a timely manner. EPA

believes that it is appropriate to consider inclusion of a site on

the final NPL to end the scoring process. (App. L, infra,

A-72)

The EPA Preamble to the Update I amending 40 CFR Part

300, Appendix B (Hazardous Priorities List) to include NSL

contains the following agency interpretation precluding the

listing of RCRA Sites, at 49 Fed. Reg. 37074 (September 21,

1984):

As stated in EPA’ previous NPL rulemaking (48 FR 40658,

September 8, 1983), both CERCLA and the Resource Con-

servation and Recovery Act (RCRA) contain authorities

applicable to hazardous waste facilities. These authorities

overlap for certain sites. Accordingly, where a site consists

only of regulated units of a RCRA facility operating pur-

suant to a permit or interim status, it will not be included on

the NPL but will instead be addressed under the authorities

of RCRA except as provided in the paragraph that follows.

The Land Disposal Regulations under RCRA (40 CFR Parts

122, 260, 264, and 265) gives EPA and the States authority to

control active sites through a broad program which includes

monitoring, compliance inspections, penalties for violations,

and requirements for postclosure plans and financial respon-

sibility. RCRA regulations require a contingency plan for

each facility. The regulations also contain ground water pro-

tection standards.

Given this alternative authority to ensure cleanup, regulated

units of RCRA facilities generally are not included on the

NPL. If the facility is abandoned or lacks sufficient

resources and the RCRA corrective action requirements

cannot be enforced, EPA will consider listing the site on the

NPL for possible response under CERCLA. This policy is

applicable not only to sites subject to EPA-administered

hazardous waste programs but also to sites in States that

administer programs approved by EPA.

Section 2.0 to Appendix A to 40 CFR Part 300 entitled

“Uncontrolled Hazardeus Waste Site Ranking System: A

User's Manual” provides in its relevant part regarding man-

datory data:

Use of the HRS requires considerable information about the

facility, its surroundings, the hazardous substances present,

and the geological character of the area down to the aquifers

that may be at risk... .

Where there are no data for a factor, it should be assigned a

value of zero... .

Using the guidance provided, attempt to assign a score for

each of the three possible migration routes. Bear in mind

that if data are missing for more than one factor in connec-

tion with the evaluation of a route, then you must set that

route score at 0 (.e., there is no need to assign scores to

factors in a route that will be set at 0).

Section 3.5 of Appendix A to 40 CFR Part 300 of the Uncon-

trolled Hazardous Waste Site Ranking System provides in its

relevant part regarding assigning ground water values for

“Distance to Nearest Well/Population Served”:

Distance to nearest well is measured from the hazardous

substance (not the facility boundary) to the nearest well that

draws water from the aquifer of concern. If the actual dis-

tance to the nearest well is unknown, use the distance ies

between the hazardous substance and the nearest occupied

building not served by a public water supply (e.g., a farm-

house). If a discontinuity in the aquifer occurs between the

hazardous substance and all wells, give this factor a score of

0, except where it can be shown that the contaminant is

likely to migrate beyond the discontinuity.

Population served by ground water is an indicator of the

population at risk, which includes residents as well as others

who would regularly use the water such as workers in facto-

ries or offices and students. . . The well or wells of concern

must be within three miles of the hazardous substances,

including the area of known aquifer contamination, but the

“population served” need not be. Likewise, people within

the three miles who do not use water from the aquifer of

concern are not to be counted.

STATEMENT OF THE CASE

The EPA Administrator initially placed Northside (“NSL”)

upon the proposed Update I to the National Priorities List

(“NPL”) under CERCLA on September 8, 1983. 48 Fed. Reg.

40674. This Federal Register publication did not contain the

EPA’s scoring documents related to Northside. NSL submit-

ted to EPA on January 26, 1984, its 422 pages of Comments

consisting of scientific written data and views opposing its

proposed listing. (J.A. below aty%14) The Administrator on

September 21, 1984, issued by publication as a Final Rule an

Amendment to the National Dil and Hazardous Substances

Contingency Plan, National Priorities List, which finally

placed NSL on-the NPL. 49 Fed. Reg. 37070-37090. (App. I.

infra, A-61) Also during September, 1984, EPA issued without

publication its Support Document wherein it discussed NSL

Comments, but left unchanged the prior score for this facility

under the Hazard Ranking System (“HRS”). (J. A. below at

455) The Final Rule omitted publishing this Support Docu-

ment, and nothing in the administrative record shows it to have

been provided by EPA to Northside. (App. L, infra, A-67)

NSL had originally sought judicial review of the September

8, 1983, proposed rule by filing a petition with the Court of

Appeals on December 7, 1983. This appeal was dismissed by

the Circuit’s Order of March 28, 1984, upon the Joint Motion to

Deconsolidate and to Dismiss. (App. F, infra, A-17) In this

motion the Government agreed that the dismissal “shall be

without prejudice to Northside Sanitary Landfill, Inc. to file a

new petition for review, if and when EPA finally amends the

National Priorities List under Section 105 of [CERCLA] so as

to finally add petitioner's facility to that list.” (Record in No.

83-2247, D.C. Cir.)

On November 30, 1984, NSL did file with the Court of

Appeals a Petition for Review of the September 21, 1984, Final

Rule, pursuant to jurisdiction exclusively granted to the Dis-

trict of Columbia Circuit by 42 U.S.C. § 9613(a). Because of the

pendency of the Circuit's first review of EPA’s Hazard Ranking

System in Eagle-Picher Industries, Inc. v. EPA, 159 F.2d 905

(D.C. Cir. 1985) and 822 F.2d 132 (D.C. Cir. 1987), the Circuit

Court deferred briefing and consideration of the NSL Petition

for Review.

Northside Sanitary Landfill, Inc. (“Northside” or “NSL")

presently operates a landfill near Zionsville, Indiana, and had

provided sanitary and hazardous waste disposal services for

Indianapolis and Boone County, Indiana. It presently con-

tinues to provide sanitary disposal for nonhazardous refuse.

(App. H, ‘fra, A-48) Northside was in existence for many

vears prior to the passage of the Resource Conservation &

Recovery Act (RCRA), 42 U.S.C. 8§ 6901-6991. On November

1X, 1980, Northside submitted a Part A application to EPA fora

hazardous waste treatment and disposal permit. As part of its

application materials, Northside included a hand-drawn scale

map of its facility. This map delineated five areas within North-

side’s property boundary comprising approximately 134 acres.

On June 9. 1982. the EPA Region V Administrator at Chi-

cago acknowledged that Northside’s application qualified it for

RCRA interim status. On January 26, 1983, the Region V

Administrator requested that Northside submit a Part B

application by July 29, 1983. NSL filed a Part B application, but

on April 30, 1984, NSL informed Region V that it was “offi-

cial{ly|” withdrawing its Part B application. Nevertheless, on

July 25, 1984, the Region V Administrator issued a notice of his

tentative decision to deny Northside’s permit application on

the grounds that the application was deficient, did not ade-

quately provide for the protection of groundwater, and that

other “continuing environmental violations” had occurred.

At the subsequent informal public hearing, EPA stated that

Northside’s Part B application did not include closure informa-

tion regarding the areas of its facility for which interim status

had been granted. In response, Northside stated that the

Region V Administrator had incorrectly considered its Old

Farm Area (forty acres) as part of Northside’s permit applica-

tion. Northside maintained that it had sought a permit for a 303

acre-feet disposal capacity, that this was to be located only in

the East Farm Area (thirty acres), and that only twelve acres

had actually been used for the treatment and disposal of haz-

ardous wastes.

On October 12, 1984, the Regien V Administrator denied

Northside’s Part B application and terminated its interim sta-

tus on the ground that a final administrative disposition had

been made of Northside’s permit application. The Region V

Administrator stated that hazardous waste had been disposed

of after November 19, 1980, in the Old Farm Area as well as the

East Farm, and thus concluded that “{t|he entire hazardous

waste landfill area outlined in the November 18, 1980, Part A

application must be closed. This includes the ‘Old Farm Area.”

The order required Northside to commence immediate closure

proceedings under the applicable Indiana regulations.

On November &, 1984, pursuant to 40 CFR 124.19, Northside

petitioned the Administrator for review of the Region V order.

Northside claimed both before the Administrator and before

the Seventh Circuit that on January 4, 1985, the Region V

Administrator submitted drawings to the EPA Administrator

which inaccurately depicted the areas that Northside had

requested EPA consider for a hazardous waste management

permit.

On April 5, 1985, the Administrator issued an order denying

Northside’s petition for review of the Region V Administrator's

denial of Northside’s hazardous waste application. The Admin-

istrator did, however, state that the questions Northside raised

regarding the areas within the (1) facility that were encom-

passed by its Part A and Part B permit applications and (2) that

could properly be closed, addressed two of:

the most rudimentary pieces of information that go into a

proper permit decision. If the permit decision does not iden-

tify where the facility is located, or how big it is, the permit

decision cannot be implemented successfully regardless of

the outcome of the decision. This is particularly apparent in

the present case, for either including or excluding the Old

Farm Area will significantly alter the area of Petitioner's

landfill that is subject to the closure and postclosure require-

ments of the regulations.

The Administrator concluded that although the sort of issue

Northside raised was within the ambit of 40 CFR § 124.19,

Northside “has not sustained its burden of showing that the

permit determination is either clearly erroneous or involves an

exercise of discretion or policy which warrants (liscretionary

review.”

On April 19, 1985, Northside filed a Motion to Reconsider

with the Administrator, arguing that the issue as to whether

the Old Farm Area is a part of the Part A interim site and

subject to RCRA closure was presently being litigated before

the Indiana Environmental Management Board. On July 2,

1985 (within the ninety day review period from the Order of

April 2, 1985) Northside filed a petition for review with the

Seventh Circuit. On November 27, 1985, a few days before

EPA’s brief was to be filed with the Seventh Circuit, the

Administrator denied Northside’s motion for reconsideration.

However, the Seventh Circuit found that the “Administrator

adopted a completely different rationale ‘by holding that’ Indi-

ana had been granted authority pursuant to 42 U.S.C. § 6926 to

conduct closure proceedings for interim status permits.”

Northside Sanitary Landfill, Inc. v. Thomas, 804 F.2d 37],

375-377 (7th Cir. 1986). (App. G, infra, A-29)

The Seventh Circuit found “it is clear that the parties were

not given a full and fair opportunity to litigate the issue,”

noting EPA “allotted only five minutes to comment.” (App. G,

infra, A-38) However, the Circuit held that it was withholding

judgment on this issue raised in NSL's appeal because it

appeared that the state procedure would provide NSL the due

process hearing which EPA had denied it on issues of RCRA

closure. (App. G, infra, A-45) The Seventh Circuit also held

that Final EPA action on NSL’s RCRA application did not

occur until the issuance of the Administrator's Order on Recon-

sideration. (App. G, infra, A-30) Thus, NSL held interim sta-

tus until November 27, 1985.

Although the State of Indiana was proceeding with RCRA

enforcement, EPA continued with its activities under

CERCLA and issued a Record Of Decision in September, 1987.

This “ROD” included the future covering of the entire NSL

facility with a multilayer cap described by EPA as a “RCRA

Cap.” United States v. Northside Sanitary Landfill, Inc.,

Cause No. IP88-172C (S.D. Ind. 1988). (App. H, infra, A-48) In

March 1988, the United States obtained an immediate evidenti-

ary hearing on its motion to enjoin Northside from conducting

any further landfilling operations on its property. The U.S.

District Court in its Memorandum Opinion held that “while the

danger posed by the possible release of CERCLA substances

from Northside may be minimal, the EPA has shown that

there is a reasonable basis to believe there may be a release of

such substances from the site at some future date.” ( App. H,

infra, A-54) The District Court denied the Government's

motion and summarized that “nothing in the record illustrates

that the EPA’s current pian for closure will be delayed in any

way by defendants continued operation of a sanitary landfill.”

United States v. Northside, (S.D. Ind. 1988) (App. H, infra,

A-59)

REASONS FOR ALLOWING THE WRIT

Congress by legislating the Comprehensive Environmental

Response, Compensation and Liability Act of 1980

(“CERCLA”) mandated EPA to revise the National Con-

tingency Plan (“NCP”) to include a system to prioritize

releases or threatened releases nationally for remedial action

and to list the priority sites and update the list annually.

Congress granted the Circuit Court of Appeals for the District

of Columbia exclusive jurisdiction nationwide to review any

regulation promulgated for those purposes. 42 U.S.C. 9613(a).

Northside Sanitary Landfill v. Thomas (App. A, infra, A-1

through A-11) is one of a handful of opinions rendered by the

Court of Appeals since 1985 which involves the listing of a

facility on the National Priorities List (“NPL”) pursuant to

EPA's Hazard Ranking System (“HRS”), (App. M, iuvfra, A-73

through A-79) Because of the large number of waste disposal

sites which were and are being rated under the HRS for possi-

ble future inclusion on the NPL, the present case is extremely

important and has ramifications affecting many other potential

NPL sites.

The D. C. Cireuit’s Northside Opinion written by U.S. Dis-

trict Court Judge Kaufman (who was sitting by designation)

should be reviewed because it is directly contrary to the pre-

viously leading opinion in City of Seabrook, Texas v. U.S. EPA,

659 F.2d 1349 (1981). Therein the Fifth Circuit (1) refused to

“accept the EPA's argument that Petitioners should be barred

from raising any objection not raised during the ‘notice and

comment period,’ ” and (2) refused to accept the “rule urged by

EPA [which] would require everyone who wishes to protect

himself from arbitrary agency action not only to become a

faithful reader of the notices of proposed rulemaking published

each day in the Federal Register, but a psychic able to predict

the possible changes that could be made in the proposal when

the rule is finally promulgated.”

Secondly, the District of Columbia Circuit's opinion has

decided an important question of federal law misapplying this

Court’s decision in Vermont Yankee Nuclear Power Corp. ¢.

Natural Resources Defense Council, Ine., 435 U.S. 519 (1978),

as well as the Circuit’s own decisions in Portland Cement Ass'n

v. Ruckelshaus, 486 F.2d 375, 394 (1973) and Home Bow Office,

Inc. v. FCC, 567 F.2d 9, 35 (1977), cert. denied, 334 U.S. 829

(1977). These decisions only require detailed objections to

agency rulemaking decisions during the administrative pro-

cess where either the statutes precluded judicial review of

objections not specified or allowed an adjudicatory hearing, not

where the statute, as here, provided for only informal notice

and comment rulemaking.

Thirdly, the Circuit Court by its dismissal has in effect

decided incorrectly an important question of federal law as the

Circuit with exclusive federal jurisdiction, which question has

not been, but should be, settled by this Court. The Circuit's

dismissal has allowed EPA to place upon the National Pri-

orities List under CERCLA a “RCRA-Related Site” which is

not abandoned and which held RCRA interim status when

EPA issued the final rule for its listing. This action is contrary

to EPA’s own interpretation of the relationship between the

CERCLA and RCRA statutes as set forth in the Preamble to

the Final Rule listing Northside, and is contrary to the D.C.

Circuit’s original opinion that the NPL is for “inactive haz-

ardous waste sites.” Eagle-Picher v. EPA, 759 F.2d at 905, 922

(1985).

Fourthly, the Circuit Court by denying the appeal without

consideration on the merits has refused to require EPA to

follow its own HRS which this Circuit upheld in 1985 in Eagle-

Picher Industries v. EPA, 759 F.2d 905 at 919-922. The Circuit

has allowed the EPA to ignore its regulation requiring the

assigning of a scoring value of 0 where support data is lacking

and not documented, its regulation requiring a score of 0 where

a discontinuity in the aquifer occurs between the hazardous

substance and all wells, and its regulation precluding from

consideration people within three miles of the aquifer who do

not use water from the aquifer of concern. Because all of the

evidence in the administrative record, including EPA's ground-

water study, revealed the aquifer discontinuity, the Circuit

Court's opinion has incorrectly determined an important ques-

tion of federal law as the Circuit of exclusive national jurisdic-

tion, which has not been, but should be settled by this Court. It

has also failed to correctly apply the leading decision of this

Court in Vermont Yankee Nuclear Power Corp. v. National

Resources Defense Council, 435 U.S. 519 at 549 ( 1978), requir-

ing that a finding not sustainable on the administrative record

must be vacated and remanded.

1. Congress Has Not Imposed Upon Those Selectively

Chosen For Agency Action The Duty To Read Daily

Notices Of Proposed Rulemaking Published In The

Federal Register, And Certainly Has Not Imposed The

Duty To Become Aware Of Agency Responses Never

Transmitted Nor Even Published By The Agency.

In the leading case City of Seabrook, Texas, supra, at 1360,

the Fifth Circuit addressed the precise issue determined by

the D.C. Circuit panel, but instead concluded:

[Wle cannot accept the EPA's argument that petitioners

should be barred from raising any objection not raised dur-

ing the “notice and comment” period. The EPA made the

same argument in a case it has failed to cite to us, and the

argument was rejected by Judge Hill, then a district judge.

Dobbs v. Train, 409 F.Supp. 432, 434-35 (N.D. GA 1975), aff'd

sub nom. Dobbs v. Costle, 559 F.2d 946 (5th Cir. 1977). While

Dobbs was an action to review an agency denial of benefits

pursuant to the challenged rule, and this action is one for

direct review, we agree with Judge Hill that the courts

should not generally hold a petitioner estopped from object-

ing to an agency rule because his specific objection was not

made during the “notice and comment” period.' The rule

urged by EPA would require everyone who wishes to protect

himself from arbitrary agency action not only to become a

faithful reader of the notices of proposed rulemaking pub-

lished each day in the Federal Register, but a psychic able to

predict the possible changes that could be made in the pro-

posal when the rule is finally promulgated. This is a fate this

court will impose on no one.

In its supporting footnote 19, the Fifth Circuit concluded:

We note that Congress has attempted to impose such a fate,

albeit with some escape clauses, in § 307(d)(7)(B) of the

Clean Air Act, 42 U.S.C. § 7607(d)(7)(B). The EPA con-

cedes, however, that § 307(d) does not apply to the approval

or disapproval of implementation plans.

Completely contrary to this decision in City of Seabrook,

Texas, the D.C. Cireuit concluded that NSL had been given

sufficient notice because its name and the date upon which the

comment period closed were published in the Federal Register.

(App. A, infra, A-5) The D.C. Circuit went even further by

concluding NSL had failed to exercise its statutory right under

5 U.S.C. § 553(e) to request EPA to reconsider and amend its

final rule after NSL received EPA’s response to NSL's Com-

ments, but had instead incorrectly instituted judicial review to

attack its inclusion on the NPL. (App. A, infra, A-6) The

importance of this second conclusion is set forth at page 10 of

the Circuit's Slip Opinion where it found that NSL should have

Fos ge peor cern TR

been more specific as to why and how it thought its 422 page

submittal of “written data” and scientific “views” were relevant

to the scoring, stating (App. A, infra, A-10):

We are not suggesting that Northside should have com-

mented in great detail on every study, but we de conclude

that Northside could and should have done far more than it

did do to alert the EPA to its positions, which would have

then required and allowed the EPA fully to consider North-

side's version of the facts, and to act upon them appropri-

ately.'!\(emphasis added)

In its supporting footnote 11, the Circuit elaborated as follows:

'! At the very least, Northside itself could have pointed out

those facts which it believed that the EPA had overlooked in

the EPA’s response to Northside’s comments. Specifically,

when Northside received the EPA's response to its com-

ments, it was on notice that the EPA had not interpreted

those comments as Northside evidently expected the agency

would. At that point, pursuant to 5 U.S.C. 553(e), see note &,

supra, Northside was free to petition the EPA to reconsider

its position concerning those comments in the light of the

specific objections which Northside now raises before this

court. See Wisconsin Electric, 715 F.2d at 327-28. However,

Northside did not take advantage of that opportunity.

(emphasis added)

Firstly, the applicable APA § 553(e) requires the commentor

to submit only “written data, views, or arguments,” and not to

submit specific positions.

Secondly, EPA never provided NSL with its response to

NSL'’s Comments, and it never even notified NSL that it had

developed such a response which it designated as the Support

Document for the Final Revised NPL.

Thirdly, EPA made it impossible for NSL to exercise its

right to reconsideration under § 553(e) by not providing for any

reconsideration procedure in its Final Rule and by stating such

a petition would be an effort in futility, even though this section

of the APA statute provided:

Each agency shall give an interested person the right to

petition for the issuance, amendment, or repeal of a rule.

(emphasis added)

Although the Circuit Court also concluded that “{i]t is cer-

tainly incumbent upon the EPA under 5 U.S.C. § 553(¢) to

‘respond in a reasoned manner to significant comments

received,” citing United States Satellite Broadcasting Com-

pany, Inc. v. FCC, 740 F.2d 1177, 1188 (D.C. Cir. 1984); it went

on to say that “the ‘dialogue’ between administrative agencies

and the public ‘is a two-way street,” citing Home Bow Office,

567 F.2d at 35 (D.C. Cir.), cert. denied, 434 U.S. &29 (1977).

Dialogue cannot be a two-way street (1) where EPA merely

publishes in the Federal Register a proposed rule naming NSL

on the NPL and requiring comments within 60 days; (2) where

NSL submits its comments consisting of both scientific written

data and views allowing the EPA eight months to review and

respond; but (3) where EPA fails to transmit to NSL or even to

publish its written response, which was not issued until it

promulgated its final NPL Update rule. EPA instead chose to

publish only five lines of reference to this mandatory Support

Document which it buried in its thirteen pages of Preamble to

the Final Rule of eight pages which it merely published in the

massive Federal Register. The Circuit concluded NSL broke

down the two-way street dialogue by not asking for recon-

sideration from a response never received and by not pointing

out to EPA that it had misinterpreted NSL’s Comments, when

in fact EPA never provided NSL with its response even after

issuing its Final Rule.

EPA’s actions from the beginning both eliminated the two-

way dialogue contemplated by the rulemaking process of

§ 553(b) and (c) of the APA, and eliminated NSL's right under

§ 553(e) to petition for reconsideration of the Final Rule. EPA

established a procedure where comments from an affected

party are required to be filed with EPA, but no EPA response

to those comments are returned to the affected party and

where no reconsideration will be considered. EPA’s Preamble

to this Final Rule provided:

The process established by EPA for developing the NPL is

comprehensive, involving initial scoring, public proposal,

consideration of public comment, reexamination of data and

scores, final score calculation, and inclusion on the final

NPL. Given this level of scrutiny, and the time and expense

involved in scoring sites, the EPA finds it necessary to rely

upon the interested public to identify factors pertinent to

HRS score in a timely manner. EPA believes that it is

appropriate to consider inclusion of a site on the final NPL to

end the scoring process. (App. L, infra, A-72)

The Circuit's opinion places an impossible burden upon a party

not only affected by, but individually named in an agency

decision. It fails to recognize that EPA would not change its

Final Rule once published. This Final Rule reflects that EPA

had established no process for reconsideration.

Thus, EPA’s Final Rule specifically omitted the right to

reconsideration mandated by § 553(e) of the APA. At this point

NSL‘ only remedy was to raise its objections to the D.C.

Circuit Court in a petition for review which 42 U.S.C. § 9613(a)

required to be filed within 90 days of the issuance of the Final

Rule.

Even where a statute requires the filing of objections and

precludes issues not so specifically raised with the agency,

which is not the procedure established under CERCLA and

the NCP, the D.C. Circuit itself previously has concluded: “The

critical inquiry is whether the objections made before the

Board were adequate to put the Board on notice that the issue

might be pursued on appeal,” and that “the standard requires a

close factual inquiry.” Consolidated Freightways v. NLRB, 669

F.2d 790, 794 (D.C. Cir. 1981). More recently, Judge Wald

writing for the D.C. Circuit in American Maritime Associa-

tion v. United States, 766 F.2d 545, 566, n.30 (D.C. Cir, 1985)

stated:

At least in the absence of an explicit statutory directive, the

general rule is ultimately a matter of judicial discretion and

will not be applied to perpetuate unfairness to the parties.

Under these facts, it was not only unfair, but also inconsistent

with § 553(¢) and (e) for the Court of Appeals to deny NSL's

appeal on the basis that NSL should have more specifically

pointed out and argued its objections and positions to EPA

upon the non-receipt of EPA’s response to NSL's Comments

which contained both scientific “written data” and “views”

thereon. The CERCLA statute did not specifically require the

exclusion of objections not detailed and summarized for EPA as

did the Clean Air Act, and EPA never bothered to transmit its

“dialogue” response to NSL.

2. Judicial Review Is Not Precluded As To Issues Not

Raised As Specific Arguments Or Summarized To The

Agency Unless The Statute Contains Such A Preclu-

sion Or Unless The Process Entails An Adjudicatory

Hearing.

The Supreme Court does not preclude judicial review of

issues not raised as specific objections or as detailed arguments

during an administrative rulemaking process which allows only

comments from interested parties, unless the statute requires

the exclusion of such issues or provides the party with an

adjudicatory hearing process. Portland Cement Ass'n, supra

(1973), relied upon by the Circuit Court, involved the Clean Air

Act which precluded the raising of issues not specifically raised

as objections to the EPA. The Fifth Circuit in City of Seabrook,

Tewas, supra at 1360, n.17 and 19, found in 1981 that “the EPA

has cited no authority for the proposition that an argument not

raised during the comment period may not be raised on

review,” because Seabrook did not involve the Clean Air Act as

did Portland Cement.

The Fifth Circuit found in 1981 that its own research had

uncovered only one case “lending some support to the proposi-

tion that a party may be estopped from raising an argument on

direct review if he failed to raise it during the rulemaking

proceeding.” But it noted that Gage v. AEC, 479 F.2d 1214,

1217-19 (D.C. Cir. 1973) “involved a statute which entitled inter-

ested persons to become ‘parties’ and get a ‘hearing’ on their

objections, and which granted the right of direct review only to

such ‘parties.’

The D.C. Circuit relied upon, but misapplied, this Court's

1978 decision in Vermont Yankee, supra. The Supreme Court in

Vermont Yankee precluded the raising of an alternative to

nuclear power plant fuel disposal where the intervenor had

failed to submit either specific contentions or evidence to evalu-

ate the alternative. To the contrary, NSL submitted 422 pages

of scientific “written data and views” on groundwater aquifers

and quality. In Vermont Yankee, supra, at 554, this Court

noted that the NRC “continually invited further clarification of

Saginaw’s contentions,” and “even without such clarification it

indicated a willingness to receive evidence on the matters.” To

the contrary, during the eight months between the filing of

NSL'‘ 422 pages of scientific data and views and the issuing of

EPA's Final Rule, EPA requested nothing.

Most importantly, Vermont Yankee, supra, at 526-527,

involved a licensing process where parties could raise conten-

tions during adjudicatory hearings under the Atomic Energy

Act. Northside could only participate in the EPA described

“informal notice and public-comment rulemaking” procedures.

(EPA Brief below, D.C. Circuit at p. 14) The CERCLA and

NCP sections dealing with NPL listings do not allow

adjudicatory hearings, nor do they require the exclusion of

objections and arguments not raised with specificity during the

agency comment period. Thus, the Circuit Court panel should

have adopted the Fifth Circuit’s opinion in City of Seabrook,

Tevas, supra, and the similar review standard established by

the D.C. Cireuit en banc in Ethyl Corporation v. U.S. EPA,

541 F.2d 1, 34, cert. denied, 426 U.S. 941 (1976); in Maryland

People’s Council v. FERC, 761 F.2d 780, 785 (1985); in Ameri-

can Maritime Association v. United States, 766 F.2d 545, 566

(1985) and in Eagle-Picher Industries, Inc. v. EPA, 759 F.2d

905, 921 (1985). This Circuit held en banc in Ethyl Corporation,

supra, at 34:

This is not to say, however, that we must rubber-stamp the

agency decision as correct. To do so would render the appel-

late process a superfluous (although time consuming) ritual.

In its third opinion issued in Eagle-Picher Industries v.

EPA, 822 F.2d 132 (1987), the Circuit denied review regarding

the “population using an aquifer” on the basis that the respon-

dent had never identified to EPA the data relied upon and

because the record supported EPA’s finding. To the contrary

NSL submitted 422 pages of written data and views, including

the EPA sponsored 1983 Hydrogeological Study Report.

Also, in Washington Association For Television and Chil-

dren v. FCC, 712 F.2d 677 (1983), the D.C. Circuit Court held:

“Moreover, it is not always necessary for a party to raise an

issue, so long as the Commission, in fact considered the issues.”

Although the D.C. Circuit strongly criticized Northside for not

filing its Comments with the EPA until January 31, 1984,

“despite the November 7, i983 deadline,” (App. A, infra, A-5)

EPA’s Preamble to this Final Rule states that “EPA considered

all comments received by March 30, 1984.” (App. L, infra,

A-66) Where EPA admits it considered the written comments

filed by a party and where the statute neither requires specific

objections nor allows an adjudicatory hearing, the Circuit

Court cannot dismiss an appeal which is required by statute to

be filed within ninety days of the issuance of the final rule, on

the basis that the agency was not fully apprised of the specific

issues being controverted and the arguments by the comment-

ing party.

EPA’s Final Rule of September 21, 1984, did not even include

an effective date, but stated it would publish a Federal Register

notice at the end of a congressional review period and announce

the effective date for this NPL Update. No such subsequently

published effective date has been discovered, and EPA Head-

quarters is unable to determine this date. Therefore, the D.C.

Cireuit Court of Appeals should have at least granted the

review, reversed the placement of NSL on an NPL Update

having no effective date, and remanded this matter to the EPA,

including the requiring of a process where an affected and

named party can petition for reconsideration under § 553(e) of

the APA.

Indeed, the Circuit’s previous Order preserved NSL’s right

to judicial review of its Final Rule listing. NSL originally

appealed its proposed listing upon the NPL on December 7,

1983. The D.C. Circuit dismissed that appeal by Order issued

March 28, 1984, upon the Joint Motion to Deconsolidate and to

Dismiss. (App. F, infra A-17) The Justice Department and

EPA agreed that:

The dismissal of the petition for review at No. 83-2258 shall

be without prejudice to Northside Sanitary Landfill, Inc. to

file a new petition for review, if and when EPA finally

amends the National Priorities List under §105 of

[CERCLA] so as to finally add petitioner's facility to that

List.

Nevertheless, EPA subsequently argued successfully to the

Court of Appeals panel that NSL is barred from raising any

issues whatsoever in its second petition for review timely filed

within 90 days after EPA finally added NSL to the NPL.

In summary, it would have been impossible for NSL to have

pointed out in a petition for reconsideration to EPA that it had

misinterpreted NSL’s written comments where EPA’s

response to those comments was not developed as a Support

Document for the Revised NPL until the final rule was promul-

gated. (J.A. below at 455 and 988 and Certified Index to the

Record, p. 37) If EPA did not comprehend how the scientific

written data and views submitted by NSL affected the scoring,

it should have so advised NSL during the eight months

between the filing of these comments and the promulgation of

the Final Rule, as did the Atomic Safety Board in Vermont

Yankee, supra, at 554. Instead EPA agreed to a dismissal of the

original Petition for Review and to the filing of a second petition

two months after NSL filed its data and views.

3. A Court Must Reverse An Administrative Decision

Where The Agency Has Failed To Comply With Its Own

Published Policy And Interpretation Of Congressional

Intent To Exclude A Particular Type Of Facility From

The National Priorities List.

D.. ing 1986 EPA argued to the Seventh Circuit Court of

Appeals that NSL was a RCRA-related site and should be

required to proceed through RCRA closure of its entire 134-

acre facility, but with the state of Indiana making the final

rey

determinations because of recent delegation of EPA’s author-

ity. (App. G, infra A-37; and EPA’s Brief to the Seventh Cir-

cuit, p. 64, n. 34) Nevertheless, EPA has proceeded much

farther than simply listing Northside on the NPL. In Sep-

tember 1987 it issued a Record of Decision (“ROD”) under

CERCLA which included requiring the construction of a multi-

layer cap to cover Northside and which EPA denominated as a

“RCRA cap.” United States v. Northside Sanitary Landfill,

Inc. (App. H, infra, A-48)

After the adoption of the EPA regulation on Land Disposal

Corrective Actions on July 26, 1982, and even after January 26,

1983, which EPA has argued as their effective date,” EPA

headquarters advised U.S. Senator Quayle that “active dis-

posal sites such as Northside Landfill are regulated through

RCRA” with enforcement by Indiana. (J.A. below at 345) Ina

contemporaneous letter to U.S. Senator Lugar, EPA’s Admin-

istrator stated: “It is EPA policy to use our compliance

authorities under RCRA to address such sites and conserve

superfund resources for those inactive and abandoned facilities

where no other resources can be brought to bear.”

This EPA advocated policy was evidently adopted by the

D.C. Circuit in its first opinion wherein it reviewed the Hazard

Ranking System. In Eagle-Picher v. EPA, 759 F.2d at 922, the

Court held: “CERCLA was designed to address the growing

problem of inactive hazardous waste sites throughout the

United States.” Indeed, even both the proposed rule and the

Final Rule to Update I to the NPL recognized that it was an

improper construction of the CERCLA and RCRA statutes to

place a RCRA-related facility on the NPL. (App. K, infra,

A-63 through A-64; and App. L, infra, A-69 through A-70)

2 Apparently for the purpose of making these RCRA requirements enforcea-

ble against hazardous waste facilities which had opted out of accepting

RCRA waste by January 26, 1983, as had Northside, Congress subsequently

made the Land Disposal Corrective Actions retroactive to a RCRA interim

status facility which “receives hazardous waste after July 26, 1982." 42

U.S.C. § 6925(i) as amended by the Hazardous and Solid Waste Amendments

of 1984 (Pub. L. 98-616, Nov. &, 1984).

EPA's Preamble to the Final Rule as set forth more completely

in the Statutory section and App. L, infra, provides in part:

As stated in EPA’s previous NPL rulemaking (48 FR 40658,

September 8, 1983), both CERCLA and the Resource Con-

servation and Recovery Act (RCRA) contain authorities

applicable to hazardous waste facilities. These authorities

overlap for certain sites. Accordingly, where a site consists

only of regulated units of a RCRA facility operating pur-

suant to a permit or interim status, it will not be included on

the NPL but will instead be addressed under the authorities

of RCRA except as provided in the paragraph that follows.

=? &

Given this alternative authority to ensure cleanup, regulated

units of RCRA facilities generally are not included on the

NPL. If the facility is abandoned or lacks sufficient

resources and the RCRA corrective action requirements

cannot be enforced, EPA will consider listing the site on the

NPL for possible response under CERCLA. This policy is

applicable not only to sites subject to EPA-administered

hazardous waste programs but also to sites in States that

administer programs approved by EPA. (emphasis added)

Quite simply, NSL held interim status until November 27,

1985, and RCRA Section 3008(h) provided for “interim status

corrective action orders.” 42 U.S.C. 6928 (h). The Seventh Cir-

cuit in Northside v. Thomas, 804 F.2d 371 at 378 (1986) (App. G,

infra, A-30) determined that NSL’s RCRA status was not

finally determined until November 27, 1985. Nowhere was

Northside classified as a “non-regulated unit” not subject to

such corrective actions when the NPL Update was finalized on

September 21, 1984. Indeed, in its Brief to the Seventh Circuit

in Northside v. Thomas, supra, EPA stated on January 27, 1986

that: “Since it is conceded that hazardous waste was disposed of

somewhere on the facility after November 19, 1980, as a legal

matter the entire facility became subject to RCRA coverage.”

(EPA’s Brief, Cause No. 85-2119, 7th Circuit, p. 64)

Thus, as a matter of Circuit law and of EPA policy interpret-

ing Congressional intent, the D.C. Circuit was required to

reverse the Administrator’s placement of Northside on the

NPL Update of September 21, 1984. Not only was NSL then

operating and holding RCRA interim status, but even as late as

April 12, 1988 the U.S. District Court for the Southern District

of Indiana denied the Government's attempt to create an aban-

doned facility by permanently enjoining all landfilling opera-

tions at Northside. (App. H, infra, A-59)

4. The Circuit Court’s Opinion Constitutes The

Granting Of A Degree Of Judicial Deference To An

Agency Equaling A Rubber-Stamp Of A Decision

Which Is Contrary To The Regulatory Requirements

Of The Hazard Ranking System And To The Record

Evidence.

In Ethyl Corporation v. U.S. EPA, supra, at 34, the D.C.

Circuit held en bance:

This is not to say, however, that we must rubber-stamp the

agency decision as correct. To do so would render the appel-

late process a superfluous (although time-consuming) ritual.

The Circuit's Opinion in Northside is contrary to its Ethyl

Corporation decision as well as its more recent decision in

Maryland People’s Council v. FERC, supra, at 785, wherein it

held that it should inspect the record to determine whether an

agency decision was based upon consideration of the relevant

factors and whether there has been a clear error of judgment.

In one of the few other cases interpreting the Hazard Ranking

System (“HRS”), the D.C. Circuit held that under the arbi-

trary and capricious standard it should “look to see if the

agency has examined relevant data and has articulated a

rational explanation of its action.” See Eagle-Picher Indus-

tries, Inc. v. EPA, 759 F.2d at 921. There must be a “rational

connection between the facts found and the choice made.” See

Salt River Project v. United States, 762 F.2d 1053, 1058 (D.C.

Cir. 1985). Nevertheless, the Circuit panel in Northside con-

cluded that if it had addressed the merits, there would exist

ample support in the record for this NPL listing. (App. A,

infra, A-11) It disregarded the obvious agency deficiencies.

Section 2.0 of the HRS requires for its application:

Use of the HRS requires considerable information about the

facility, its surroundings, the hazardous substances present,

and the geological character of the area down to the aquifers

that may be at risk... .

Where there are no data for a factor, it should be assigned a

value of zero. (App. M, infra A-76)

Discussing the importance of documented data to support val-

ues assigned during the HRS scoring, EPA’s Director of Emer-

gency and Remedial Response stated in his May 12, 1983

“Guidance for Update in the National Priorities List” that:

It is essential that the documentation records contain a clear

explanation of the sources of information. Please ensure that

each information item is supported by a document or other

identified source according to a specific title, date, person, or

event as appropriate. (See J.A. below at 360)

Because no data was cited in the Documentation Record for the

subfactor of Groundwater Use which was assigned the max-

imum value, the scoring for NSL violated this HRS require-

ment as approved by the D.C. Circuit in Eagle-Picher I, supra.

Secondly, due to the lack of this mandatory documentation, it

was also improper to assign the maximum score for “Distance

to Nearest Well” and a high score for “Population Served” by

groundwater wells within a 3-mile radius. The combination of

these two values alone resulted in 30 of the 39 points assigned

to NSL for Groundwater Targets.

Thirdly, the Target score was contrary to both the HRS rule

and the record data. HRS Section 3.5 provides that:

If a discontinuity in the aquifer occurs between the haz-

ardous substance and all wells, give this factor a score of 0.

except where it can be shown that the contaminant is likely

to migrate beyond the discontinuity.

ee & &

Likewise, people within three miles who do not use water

from the aquifer of concern are not to be counted. (App. M,

infra A-79)

The HRS requires a minimum score of 28.5 points to list a

site. The State scored NSL at 46 points, but this required a

mismatch of aquifers contrary to the HRS rules aiid to all

evidence. Without such a mismatch, the Targets factor would

have reduced the total Groundwater Route score to 6.12 and the

HRS site score to no more than 3.98. This mismatch involved

the “aquifer of concern” which EPA determined was located

between the depth of 40 feet and 200 feet below the surface

(J.A. below at 110) and a surficial water table aquifer which

EPA's own experts concluded was between only a depth of 5 to

15 feet below the ground surface. (J.A. below at 529) Although

the State EPA scored groundwater for an “observed release,”

the only documentary support for such a release was water

analyzed from a monitoring well within the shallow surficial

water table aquifer. (J.A. below at 394 and 151-202)

To support this inaccurate score and the aquifer mismatch,

EPA argued to the Circuit that only two aquifers exist at the

NSL site, with the first being from the ground surface to

approximately 40 feet, and the second being at a depth of 40

feet and below. Nothing in the record supports such a scientific

theory. EPA argued to the Circuit panel in its Brief below at pp.

46 and 48.

However, short of conducting a full hydrogeologic investiga-

tion — something never contemplated for the PA/SI stage of

the CERCLA review and cleanup process — it is impossible

to have 100 percent certainty as to the exact geologic condi-

tions beneath the Northside site.

3y contrast, there was no accepted assumption about a

second confining layer, and there was sufficient evidence in

the record to provide a reasonable basis for a judgment that

there was not a second confining layer between the surface

and 40 feet.

The Government did represent to the Circuit Court that “[i|fit

had been EPA’s judgment that a second confining layer did in

fact exist within the shallow aquifer zone, EPA would have

discounted wells beneath it for the purpose of population

counts.” (EPA’s Brief below at p. 48)

The record contains a site hydrogeological study by a Purdue

University geosciences engineer, a study by the State environ-

mental agency's Chief of Geology/Chemistry, a geological/

groundwater evaluation by a national environmental engineer-

ing firm, and even a Hydrogeological Study Report dated

August 22, 1983, and prepared by EPA’s own consultants. All

four study reports conclude that three rather than two aquifers

exist and that a confining layer exists between the surficial

water table aquifer and the two deeper ones. EPA’s consultants

concluded:

Three aquifers occur at different elevations and appear to be

fairly continuous under the site. These are:

(1) A Water Table Aquifer, approximately 5 to 15’ below

ground surface.

(2) A Shallow Confined Aquifer, approximately 20 to 30’

below ground surface.

(3) A Deep Confined Aquifer, approximately 150 to 165’

below ground surface. (J.A. below at 529, emphasis

added)

Thus, EPA's (1) conclusion that a release observed in the shal-

low water table aquifer can be matched to the groundwater

Target of the “aquifer of concern” below a 40-foot depth, (2)

conclusion that no confining layer exists between them, and (3)

conclusion that only two rather than three aquifers exist: are

each contrary to all the record evidence. “If the finding is not

sustainable on the administrative record made, then the Comp-

troller’s decision must be vacated and the matter remanded to

him for further consideration.” Vermont Yankee, 519 U.S. at

949 (1978). The HRS scoring of the NSL site was done on May

23, 1985, but the EPA Hydrogeologic Study was issued three

months later. NSL provided EPA with a copy of its report eight

months prior to the promulgation of the Final Rule on Sep-

tember 21, 1984.

Although the Circuit panel held that NSL in its comments to

EPA did not clearly point out its positions and arguments

against EPA's scoring, NSL identified EPA’s Hydrogeologic

Study Report in its transmittal letter. G.A. below at 575)

Although this EPA Report consisted of 138 pages, including the

boring data and attachments, its text was only seven pages and

even stated under its “CONCLUSIONS?” section:

Two confined aquifers were identified in sand and gravel

zones beneath the ECC site. The deep aquifer occurs at a

depth of about 155 to 165 feet below ground surface and just

above the top of rock surface. A shallow aquifer occurs at

about 20 to 30 feet below ground surface. A thick glacial till

sequence of hard silty clay and clayey silt separates the two.

The upper aquifer appears to be confined by a silty clay layer.

(J.A. below at 534; emphasis added)

EPA scored this factor at 30 which gave NSL three-fourths of

its score for Groundwater Targets, even though the HRS

required that “if a discontinuity in the aquifer occurs between

the hazardous substance and all wells, give this factor a score of

().” This was contrary to the record evidence and to the require-

ments of EPA’s HRS. At the time the Final Rule was issued,

four separate hydrogeologic study reports submitted by NSL

in its Comments concluded that three aquifers existed and that

the deeper two were confined and discontinuous from the shal-

low water table aquifer having an onsite observed release. This

included an EPA study prepared three months after the State's

site scoring in May, 1983.

Thus, EPA obviously issued a decision contrary to its own

HRS requirements and to all scientific evidence.

CONCLUSION

The Petition for a Writ of Certiorari should be granted.

Respectfully submitted,

Warren D. Krebs

Counsel for

Northside Sanitary Landfill, Inc.

121 Monument Circle, Suite 500

Indianapolis, Indiana 46204

A-1

APPENDIX A

Notice: This opinion is subject to formal revision before publication

in the Federal Reporter or U.S.App.D.C. Reports. Users are requested

to notify the Clerk of any formal errors in order that corrections may be

made before the bound volumes go w press.

Yuited States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued March 14, 1988 Decided June 28, 1988

No. 84-1586

NORTHSIDE SANITARY LANDFILL, INC.

Vv.

LEE M. THOMAS, ADMINISTRATOR

U.S. ENVIRONMENTAL PROTECTION AGENCY, and

U.S. ENVIRONMENTAL PROTECTION AGENCY

Petition for Review of an Order of the

Environmental Protection Agency

Warren D. Krebs for petitioner.

Lawrence E. Blatnik, Attorney, Department of Justice,

with whom Roger J. Marzulla, Acting Assistant Attorney

General, and Francis S. Blake, General Counsel, Mark

Greenwood, Assistant General Counsel, and Lawrence E.

Starfied, Attorney, Environmental Protection Agency,

were on the brief, for respondents.

Before: ROBINSON and SENTELLE, Circuit Judges and

KAUFMAN,” Senior District Judge.

Bills of costs must be filed within 14 days after entry of judgment. The

court looks with disfavor upon motions to file bills of costs out of time.

A-2

Opinion for the Court filed by Senior District Judge

KAUFMAN.

KAUFMAN, Senior District Judge: Petitioner, North-

side Sanitary Landfill, Inc. (Northside), seeks review of

an order of the Environmental Protection Agency (the

EPA or agency) which placed a hazardous waste site

owned by Northside on the National Priorities List

(NPL), and thereby made the site eligible for Super-

fund-financed remedial action pursuant to the Compre-

hensive Environmental Response, Compensation and Lia-

bility Act of 1980 (CERCLA), 42 U.S.C. 8§ 9601-57

(1982 & Supp. III 1985).' We have jurisdiction to re-

* Of the United States District Court for the District of

Maryland, sitting by designation pursuant to 28 U.S.C

§ 294(d).

1The description of CERCLA set forth in this opinion

contains those principles essential to an understanding of

this case. We have already commented extensively with re-

gard to what Judge Starr has aptly termed the “complex web

of ‘Superfund’ legislation.” Eagle-Picher Industries, Inc. v.

EPA, 759 F.2d 922, 925 (D.C. Cir. 1985) (Eagle-Picher II).

The three Eagle-Picher decisions of this court provide a use-

ful introduction to the background, interpretation, and appli-

cation of the Superfund legislation. See Eagle-Picher Indus-

tries, Inc. v. EPA, 759 F.2d 905 (D.C. Cir. 1985) (Eagle-

Picher 1); Eagle-Picher II, supra; Eagle-Picher Industries,

Inc. v. EPA, 822 F.2d 132 (D.C. Cir. 1987) (Eagle-Picher III).

After the events which are the subject of this petition

occurred, Congress amended CERCLA, enacting the Super-

fund Amendments and Reauthorization Act of 1986 (SARA),

Pub. L. No. 99-499, 100 Stat. 1613. Those amendments were

intended to “revitalize the Superfund program.” H.R. Rep.

No. 253(1), 99th Cong., 2d Sess. 54, reprinted in 1986 U.S.

CopE Conc. & ADMIN. NEWS 2835, 2836. Most of SARA went

into effect on October 17, 1986; however, some of SARA’s

provisions did not become effective until] January 1, 1987.

See 42 U.S.C. § 9601 note. As part of SARA, Congress re-

designated the “Hazardous Substance Response Trust Fund”

A-3

view that EPA order, id. § 9613(a), and, for the reasons

stated below, deny Northside’s petition for review.?

I. BACKGROUND

This case arises out of the EPA’s continuing attempts

to comply with the requirements of CERCLA, legislation

“designed [by Congress] to address the growing problem

of inactive hazardous waste sites throughout the United

States.” Eagle-Picher Industries, Inc. v. EPA, 759 F.2d

922, 925 (D.C. Cir. 1985) (Eagle-Picher II). “To enable

EPA to respond to those sites most urgently in need of

cleanup, EPA is required under . . . [CERCLA], 42

U.S.C. § 9605(8) (B), to compile the National Priorities

List (“NPL”) of releases or threatened releases” of haz-

ardous substances across the country. Id. at 926. In

order to pay for the cleanup of the sites, Congress created

a fund known as the “Hazardous Substance Response

Trust Fund,” or, as it is commonly called, the “Super-

fund.” 42 U.S.C. § 9631; Eagle-Picher II, 759 F.2d at

926 n.1.

In deciding whether a given site belongs on the NPL,

the EPA employs the “Hazardous Ranking System”

(HRS), a scientific model designed to determine the rela-

tive hazard which that site presents. The EPA “applies

the HRS to data from an observed or potential release

fof hazardous waste] to obtain a ‘score’ or estimate of

the risk from the release. The EPA then relies on HRS

as the “Hazardous Substance Superfund,” repealed 42 U.S.C.

§ 9631, and relocated the substance of that provision in the

Internal Revenue Code, 26 U.S.C. § 9507.

SARA does not affect the listing status of the hazardous

waste site owned by Northside. Except as otherwise indicated

in this opinion, we refer to the provisions of CERCLA which

were in effect at the time the Northside site was iisted on

the NPL.

2? We entered an Order granting judgment for the EPA on

March 25, 1988, and noted in that Order that this opinion

would follow.

A-4

scores to determine which [sites] should be listed on the

NPL.” Eagle-Picher I, 759 F.2d at 910 (footnote

omitted). A score of 28.5 or more leads to the inclusion

of the site on the NPL. 7d. at 910 n.17.

When the EPA orders a site to be placed on the NPL,

that site becomes eligible for remedial action financed

by the Superfund, although the mere listing of the site

on the NPL does not mean that the EPA will take such

remedial action. See 40 C.F.R. §300.68(a) (1987);

Eagle-Picher I, 759 F.2d at 911 & n.26. However, should

the EPA take remedial action against a site listed on the

NPL, past and present owners of the site become liable

for the cost of the cleanup. 42 U.S.C. § 9607(a) ; Eagle-

Picher II, 759 F.2d at 926 n.1. The initial version of the

NPL was promulgated as a final rule of the EPA on

September 8, 1983. The list, as required by Congress,

is revised to include new sites “no less often than an-

nually.” 42 U.S.C. § 9605(8) (B).

II. Facts

Northside owns and operates a 131-acre hazardous

waste site near Zionsville, Indiana (the Northside site).

The Northside site was included as part of the EPA’s

first annual revision to the NPL, which was published in

the form of a proposed rule on September 8, 1983. See

48 Fed. Reg. 40,674-82 (1983). Pursuant to 5 U.S.C.

§ 553(c),* the EPA allowed interested parties, including

348 Fed. Reg. 40,658 (1983). The NPL, including subse-

quent revisions, is codified at 40 C.F.R. Part 300, App. B

(1987). The NPL is promulgated in the form of a final rule

under informal notice-and-comment rulemaking procedures.

See 42 U.S.C. § 9605; 5 U.S.C. § 553(c).

4Section 553(c) of the Administrative Procedure Act

(APA), 5 U.S.C. §§ 551-59, 701-06 (1982 & Supp. III 1985),

provides in relevant part:

After notice required by this section, the agency shall

give interested persons an opportunity to participate in

PBA yee

A-5

Northside, to comment upon the proposed revision, and

gave them until November 7, 1983 to do so. 48 Fed. Reg.

40,674 (1983).

Despite the November 7, 1983 deadline, Northside did

not comment upon its site’s inclusion in the NPL revision

until more than two and one-half months after the com-

ment period had officially closed. On January 31, 1984,

the EPA received from Northside 420 pages of documents

consisting of various geological studies, water quality

evaluations, and correspondence pertaining to the North-

side site. The documents were accompanied by a letter

dated January 26, 1984 from Jonathan W. Bankert,

president of Northside, asking that “the Agency review

these documents even though not summited [sic] by No-

vember 7, 1983 since we were not advised of that date.”

J.A. 516.5 Although Bankert’s letter briefly described each

of the eleven separate documents Northside was submit-

ting, the letter did not in any way comment concerning the

specific relationship between any of the documents and

Northside’s objections to the way in which the EPA had

applied the HRS when scoring the Northside site. Nor

were specific statements about the relationship between

the documents and the HRS contained in the documents

submitted to the EPA along with Bankert’s letter.

Even though Northside’s comments were untimely filed,

the EPA did review those comments and prepared a four-

teen and one-half page response to them. See J.A. 469-

the rule making through submission of written data,

views, or arguments with or without opportunity for oral

presentation. After consideration of the relevant matter

presented, the agency shall incorporate in the rules

adopted a concise general statement of their basis and

purpose. . .

5 Despite this statement in Bankert’s letter, Northside had

been given notice concerning the date upon which the comment

period closed because, as is indicated in the text of this opinion,

that date was published in the Federal Register.

aaa aai aia aeielen b

A-6

83. Because Northside had not made any specific state-

ments about the purpose of its comments in Bankert’s

letter or elsewhere, the EPA was forced to make certain

assumptions about the documents which Northside had

submitted :

These documents include results of geologic sur-

veys and water quality evaluations pertaining to

ground and surface water in the area around the

[Northside] site. Northside made no further specific

comments, based on the documentation, regarding the

scoring factors on which the HRS score for this site

was based. For this reason, EPA’s response ad-

dresses only major findings or conclusions presented

in the documents which relate to the HRS score and

subsequent listing of the site on the NPL....

In general, all of the documentation which was

submitted appeared related to the linking of the con-

taminants found in samples of surface water and in

on-site wells to the landfill and to indicate contami-

nation is more likely migrating from the Envirochem

site located to the north of Northside landfill.

J.A. 470 (emphasis added).

After reviewing Northside’s comments, the EPA con-

firmed its previous conclusion that “the site has been

properly scored as proposed and is eligible for listing on

the NPL.” J.A. 483.° Accordingly, the Northside site

was included in the first annual revision of the NPL

when the latter was promulgated as a final rule on

September 21, 1984. 49 Fed. Reg. 37,070-90 (1984) .’

Northside did not request the EPA to reconsider its

6 The Northside site received a score of 46.04, J.A. 483,

well above the score of 28.5 required for inclusion on the

NPL. The Northside site is ranked 237th out of the 703

sites listed on the current version of the NPL. 40 C.F.R.

Part 300, App. B (1987).

™The Northside site is specifically listed at 49 Fed. Reg.

37,084 (1984).

A-7

ruling, although it had the right to do so. See 5 U.S.C.

§ 553(e).* Instead, Northside instituted this suit in this

court to attack its inclusion on the NPL.

III. Discussion

Northside challenges the EPA’s order on a variety of

substantive and procedural grounds. Essentially, North-

side contends that (1) the Northside site cannot be listed

on the NPL because portions of that site had already

been granted interim status under the Resource Conser-

vation and Recovery Act of 1976, 42 U.S.C. §§ 6901-911

(1982 & Supp. III 1985); (2) the documentation in the

record does not support the score which the Northside

site received under the HRS; and (3) in scoring the

Northside site, the EPA deviated from certain internal

quality control procedures. The EPA disagrees on the

merits with all of Northside’s claims. Furthermore, the

EPA contends that this court should refuse to consider

Northside’s objections because Northside failed properly

to raise them during the rulemaking proceeding. We

agree with the EPA that, by neglecting timely to put the

EPA on proper notice of its objections, Northside has

forfeited its right to have this court examine those ob-

jections on the merits.

While Northside did submit 420 pages of documents

to the EPA, it made no attempt to specify why it con-

sidered those documents or anything in them relevant

to the rulemaking procedure. Northside contends that

the notice-and-comment rulemaking provisions of 5

U.S.C. § 553(¢) do not require such specificity. North-

side apparently believes that the mere submission of

voluminous documentation to the EPA is enough to put

8 Each agency shall give an interested person the right

to petition for the issuance, amendment, or repeal of a

rule.

5 U.S.C. §553(e). For further discussion, see infra note 11.

A-8

the EPA on notice of all possible reasons why a site

should not have been included on the NPL. But common

sense and case law dictate that Northside should have

assumed at least a modicum of responsibility for flagging

the relevant issues which its documentary submissions

presented. As Judge Leventhal has noted:

(C]omments must be significant enough to step over

a threshold requirement of materiality before any

lack of agency response or consideration becomes of

concern. The comment cannot merely state that a

particular mistake was made .. .; it must show why

the mistake was of possible significance in the results

[the agency reaches}.

Portland Cement Ass’n v. Ruckelshaus, 486 F.2d 375,

394 (D.C. Cir. 1973), cert. denied sub nom. Portland

Cement Ass’n v. Administrator, EPA, 417 U.S. 921

(1974) (emphasis added).

In Vermont Yankee Nuclear Power Corp. v. Natural

Resources Defense Council, Inc., 435 U.S. 519 (1978),

then-Justice Rehnquist expressed the unanimous opinion

of seven members of the Supreme Court® that a party

such as Northside has the burden of clarifying its posi-

tion for the EPA.*° Even though the EPA has the stat-

® Neither Justice Powell nor Justice Blackmun took part

in the decision of Vermont Yankee.

10 Portland Cement and Vermont Yankee arose in somewhat

different contexts. Portland Cement involved the propriety

of proposed EPA regulations under the Clean Air Act, 42

U.S.C. §§ 7401-7642 (1982 & Supp. III 1985), regarding the

standards of performance for portland cement plants. At

issue in that case was an interested party’s right to comment

under 5 U.S.C. §553(c) concerning the methodology which

the EPA had used in establishing those standards. Justice

Rehnquist’s comments in Vermont Yankee are addressed to

the application of the National Environmental Policy Act, 42

U.S.C. §§ 4321-70a (1982 & Supp. III 1985) in a licensing

context and indicate the thoroughness with which the EPA

must consider the environmental impact of a proposed action

A-9

utory obligation to consider fully significant comments,

“it is still incumbent upon intervenors who wish to par-

ticipate [in a licensing proceeding] to structure their par-

ticipation so that it is meaningful, so that it alerts the

agency to the intervenors’ position and contentions.”

435 U.S. at 553. Justice Rehnquist then quoted with ap-

proval Judge Leventhal’s remarks in Portland Cement,

id., and concluded that

administrative proceedings should not be a game or

a forum to engage in unjustified obstructionism by

making cryptic and obscure references to matters

that “ought to be” considered and then, after failing

to do more to bring the matter to the agency’s

attention, seeking to have that agency determination

vacated on the ground that the agency failed to con-

sider matters “forcefully presented.”

Td. at 553-54.

Applying those principles to Northside’s petition for

review, it is quite clear that Northside’s comments did

not alert the EPA to any of the contentions which

Northside presses before us. President Bankert’s trans-

mittal letter did nothing more than list the titles of the

documents enclosed with it. Neither Bankert’s letter nor

any of the documents submitted with it made clear the

objections which Northside now contends that it was

making. Indeed, as the EPA’s response to Northside’s

comments reveals, Northside’s documents lend themselves

to an interpretation of Northside’s objections which, al-

though not what Northside intended, is still entirely con-

sistent with the types of objections which a party might

make when a hazardous waste site which it owns is

listed on the NPL.

It is certainly incumbent upon the EPA under 5

U.S.C. § 553(c) to “respond[] in a reasoned manner to

in the light of the comments which interested parties make

about that action.

A-10

significant comments received.” United States Satellite

Broadcasting Co., Inc. v. FCC, 740 F.2d 1177, 1188

(D.C. Cir. 1984) ; see also, e.g., Home Box Office, Inc. v.

FCC, 567 F.2d 9, 35-386 & n.58 (D.C. Cir.), cert. denied,

434 U.S. 829 (1977). But the “dialogue” between ad-

ministrative agencies and the public “is a two-way

street.” Home Box Office, 567 F.2d at 35. Just as “the

opportunity to comment is meaningless unless the agency

responds to significant points raised by the public,” id.

at 35-36 (footnote omitted), so too is the agency’s oppor-

tunity to respond to those comments meaningless unless

the interested party clearly states its position. See Wis-

consin Electric Power Co. v. Costle, 715 F.2d 323, 326

(7th Cir. 1983) (“the rules of administrative law apply

across the board, to agencies and interested parties

alike’).

We hold that when Northside submitted its comments

to the EPA, Northside should have been specific as to

why and how it thought the 420 pages of documents

were relevant to the scoring of the Northside site. We

are not suggesting that Northside should have com-

mented in great detail on every study, but we do con-

clude that Northside could and should have done far

more than it did do to alert the EPA to its positions,

which would have then required and allowed the EPA

fully to consider Northside’s version of the facts, and to -

act upon them appropriately." We therefore conclude

11 At the very least, Northside itself could have pointed

out those facts which it believed that the EPA had overlooked

in the EPA’s response to Northside’s comments. Specifically,

when Northside received the EPA’s response to its comments,

it was on notice that the EPA had not interpreted those

comments as Northside evidently expected the agency would.

At that point, pursuant to 5 U.S.C. §553(e), see note 8,

supra, Northside was free to petition the EPA to reconsider

its position concerning those comments in the light of the

specific objections which Northside now raises before this

court. See Wisconsin Electric, 715 F.2d at 327-28. However,

Northside did not take advantage of that opportunity.

A-1l

that the EPA’s failure to respond to the specific issues

which Northside asserts were presented by its comments

was neither arbitrary nor capricious. See Home Box

Office, 567 F.2d at 35-36 n.58. We agree with the EPA

that Northside never presented its objections to the

agency in a way which could reasonably have permitted

the agency to examine those contentions.

Because Northside did not properly present its ob-

jections to the EPA during the rulemaking process, we

will not address the merits of those objections. Eagle-

Picher III, 822 F.2d at 146; see also, €.g., Natural Re-

sources Defense Council, Inc. v. Thomas, 805 F.2d 410,

427-28 (D.C. Cir. 1986); Washington Ass’n for Televi-

ston and Children v. FCC, 712 F.2d 677, 680-82 (D.C.

Cir. 1983). However, we note that were we to reach

those merits, we would still deny Northside’s petition

for review because the EPA’s decision to place the

Northside site on the NPL finds ample support in the

record before us. Thus, in our view, the EPA’s decision

was in no way arbitrary or capricious. See Eagle-Picher

I, 759 F.2d at 921 (setting forth the standard of review

for decisions concerning NPL). Accordingly, we hereby

confirm our Order of March 25, 1988 affirming the

EPA’s placement of the Northside site on the NPL, and

denying Northside’s petition for review thereof. The pe-

tition is

Denied.

A-12

Received March 30, 1988 W.D.K.

United States Court of Appeals For the District of Columbia

Circuit. Filed March 25, 1988. Constance L. Dupre’, Clerk.

APPENDIX B

United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

No. 34-1586 September Term, 1987

NorTHSIDE SANITARY LANDFILL, INC.

Petitioner

Lert M. THOMAS, ADMINISTRATOR,

UNirep STATES ENVIRONMENTAL PROTECTION AGENCY,

ET. AL.

Respondents

ON PETITION FOR REVIEW OF AN ORDER OF THE

ENVIRONMENTAL PROTECTION AGENCY

Before ROBINSON, AND SENTELLE, Circuit Judges, and

KAUFMAN, Senior District Judge*.

JUDGMENT

This cause came on for consideration on a petition for review

of an order of the Environmental Protection Agency, and was

briefed and argued by counsel.

Upon consideration thereof, it is

ORDERED AND ADJUDGED by the Court that the peti-

tion for review herein be and hereby is denied. The opinion of

the Court will follow. It is

A-13

FURTHER ORDERED, by the Court, swa sponte, that

Clerk withhold issuance of the mandate herein until seven days

after disposition of any timely petition for rehearing. See D.C.

Cir. Rule 15.

Per Curiam

For the Court

/s/ Catherine L. Bateman

Constance L. Dupre

Clerk

Of the United States District Court for the District of Maryland, sitting by

designation pursuant to 28 U.S.C. § 294(d).

A-14

Received May 11, 1988 W.D.K.

United States Court of Appeals For the District of Columbia

Circuit. Filed May 9, 1988. Constance L. Dupre , Clerk.

APPENDIX C

United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

No. 84-1586 September Term, 1987

NorrHsiDE SANITARY LANDFILL, INC.

Petitioner

Let M. THOMAS AS ADMINISTRATOR OF THE

U.S. ENVIRONMENTAL ProrecTion AGENCY, AND

U.S. ENVIRONMENTAL ProrecTrion AGENCY

Re sponde nts

ORDER

Upon consideration of the Motion of Petitioners for E:xten-

sion of Time, it is

ORDERED that the motion is granted and the time within

which to file a petition for rehearing and/or suggestion for

rehearing en bane is extended for a period of 45 days from the

date of issuance of the opinion of the court.

FOR THE COURT:

CONSTANCE L. DUPRE, CLERK

BY: /s/ Robert A. Bonner

Robert A. Bonner

Deputy Clerk

A-15

Received September 2, 1988

United States Court of Appeals For the District of Columbia

Circuit. Filed August 31, 1988. Constance L. Dupre’, Clerk.

APPENDIX D

United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

No. 84-1586 September Term, 1987

NoORTHSIDE SANITARY LANDFILL, INC.

Petitioner

LEE M. THOMAS, ADMINISTRATOR,

U.S. ENVIRONMENTAL ProrecTiION AGENCY

Respondent

BEFORE: Robinson and Sentelle, Circuit Judges, and

Kaufman *, Senior District Judge

ORDER

Upon consideration of Appellant's Petition for Rehearing it is

ORDERED, by the court, that the Petition is denied.

FOR THE COURT:

CONSTANCE L. DUPRE, CLERK

BY: /s/ R. A. Bonner

Robert A. Bonner

Deputy Clerk

“of the United States District Court For The District of Maryland, sitting by

designation pursuant to 28 U.S.C. 294(d).

ec Aa sms

A-16

Received September 2, 1988.

United States Court of Appeals For the District of Columbia

Circuit. Filed August 31, 1988. Constance L. Dupre’, Clerk.

APPENDIX E

United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

No. 84-1586 September Term, 1987

NorTHSIDE SANITARY LANDFILL, INC.

Petitioner

Lee M. THOMAS, ADMINISTRATOR

U.S. ENVIRONMENTAL PROTECTION AGENCY

Respondent

BEFORE: Wald, Chief Judge; Robinson, Mikva,

Edwards, Ruth B. Ginsburg, Starr, Silber-

man, Buckley, Williams, D.H. Ginsburg and

Sentelle, Circuit Judges and Kaufman*,

Senior District Judge

ORDER

Appellant’s suggestion for rehearing en banc has been

circulated to the full court. No member of the court

requested the taking of a vote thereon. Upon consideration

of the foregoing it is

ORDERED, by the court en banc, that appellant’s sug-

gestion is denied.

FOR THE COURT:

CONSTANCE L. DUPRE’, CLERK

BY: /s/ R.A. Bonner

Robert A. Bonner

Deputy Clerk

‘of the United States District Court For The District of Maryland, sitting by

designation pursuant to 28 U.S.C. 294(d).

A-17

Received April 2, 1984

United States Court of Appeals For the District of Columbia

Circuit. Filed March 28, 1984. George A. Fisher, Clerk.

APPENDIX F

United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

No. 83-2247 September Term, 1983

SCM CorrPoRATION

Petitioner

WILLIAM D. RuCKELSHAUS, ADMINISTRATOR,

U.S. ENVIRONMENTAL PROTECTION AGENCY

Respondent

No. 83-2258

NoORTHSIDE SANITARY LANDFILL, INC.

Petitioner

WILLIAM D. RUCKELSHAUS, ef. al.

Respondent

ORDER

On consideration of the joint motion to deconsolidate and to

dismiss case No. 83-2258 from Nos. 83-2247, et al., it is

ORDERED that the aforesaid motion is granted and docket

No. 83-2258 is hereby terminated.

The foregoing docket termination applies only to No. 83-2258

and the Clerk is directed to transmit forthwith to the respon-

aoe

A-18

dent a certified copy of this order in lieu of formal mandate in

that case.

FOR THE COURT:

GEORGE A. FISHER, CLERK

BY: /s/ Dan M. Cathey

Daniel M. Cathey

First Deputy Clerk

FER eee pare 2

A-19

APPENDIX G

dn the

United States Court of Appeals

Bor the Seventh Cirrntt

No. 85-2119

NORTHSIDE SANITARY LANDFILL, INC.,

Petitioner,

VU.

LEE M. THOMAS, as the Administrator of the United

States Environmental Protection Agency, and the

United States Environmental Protection Agency,

Respondents.

Petition for Review of an Order of the

United States Environmental Protection Agency

ARGUED APRIL 4, 1986—DECIDED OCTOBER 23, 1986

Before Woop, CoFFEY, Circuit Judges, and ESCHBACH,

Senior Circuit Judge.

ESCHBACH, Senior Circuit Judge. The primary ques-

tion that we will consider in addressing this petition for

review of an order of the Administrator of the Environ-

mental Protection Agency (‘‘Administrator’’) denying the

petitioner’s hazardous waste management permit applica-

tion, is whether the petitioner has standing to challenge

remarks concerning the scope of closure of the petitioner’s

facility that were made by the Administrator during the

permit denial proceedings. For the reasons stated below,

we will dismiss the petition for review.

as |

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A. Statutory and Regulatory Provisicns

The Resource Conservation and Recovery Act of 1976

(“‘Act’’), codified as amended at 42 U.S.C. §§ 6901-6991,

governs the disposal of solid waste in the United States.

In particular, §§ 3001 through 3013 of the Act, codified

as amended at 42 U.S.C. 8§ 6921-6934, regulate hazardous

waste management and disposal. Section 3005(a) of the

Act, codified as amended at 42 U.S.C. § 6925(a), provides

that “the Administrator shall promulgate regulations re-

quiring each person owning or operating an existing [haz-

ardous waste disposal] facility . . . to have a permit issued

pursuant to this section.” Section 3004 of the Act, codified

as amended at 42 U.S.C. § 6924(a), requires that the Ad-

ministrator “promulgate regulations establishing such per-

formance standards, applicable to owners and operators

of facilities for the treatment, storage, or disposal of hazar-

dous wastes .. ., as may be necessary to protect human

health and the environment.”

Recognizing that the Environmental Protection Agen-

cy (“EPA”) could not issue permits to all hazardous waste

applicants before the effective date of the Act, Congress

provided that, under § 3005(e) of the Act, the Adminis-

trator promulgate regulations that allowed the owner or

operator of a hazardous waste management facility that

was in existence on November 19, 1980, to file a ‘Part

A application,” and to continue hazardous waste disposal

pending the final administrative action on the facility’s ap-

plication. The Part A application calls for minimal infor-

mation concerning the nature of the applicant’s business,

a description of the hazardous waste management proc-

esses it employs, a specification of the types of hazardous

wastes processed, stored, or disposed of at the facility,

as well as maps, drawings and photographs of the facili-

ty’s past, present, and future waste processing areas. Id.

§ 270.13. If the Administrator finds no reason to believe

that the Part A application does not meet the disclosure

requirements of id. § 270.18, once it has filed a Part A

A-21

application and given proper notice of hazardous waste -

activities, an existing facility “shall have interim status

and shall be treated as having been issued a permit.” 42

U.S.C. § 6925(e); 40 C.F.R. § 270.70. The operation of

a facility that has been granted interim status is limited

to the types of wastes, as well as the processing, storage,

and disposal procedures specified in the Part A applica-

tion. Under 40 C.F.R. § 270.71, the facility must comply

with the operating standards set forth at 40 C.F.R. Part

265. A facility’s interim status terminates either upon final

administrative disposition of a permit application, 40 C.F.R.

§ 270.73(a), or upon failure of the operator to furnish the

full information required by the Part B application, as

described below.!

Following the approval of a facility’s Part A applica-

tion and the grant of interim status, the facility must file

a “Part B application” with the EPA. The Part B appli-

cation calls for detailed information, including chemical and

physical analyses of the hazardous waste treated at the

facility, a description of procedures for preventing con-

tamination of water supplies, a determination of the ap-

plicable seismic standard for the facility, a determination

whether the facility is located within a flood plain, and

data relating to groundwater monitoring. Jd. § 270.14. The

applicant must also furnish information concerning its use

of hazardous waste containers, storage or disposal tanks,

surface impoundments, waste piles, incinerators, land

treatment facilities, and landfills. Jd. §§ 270.15-270.21.

Upon successful completion of both the Part A and Part

1 Under the 1984 amendments t.» the Act, a facility that had been

granted interim status before November 8, 1984, shall have that

status terminated on November 9, 1985, should the facility fail to

apply for a final determination regarding the issuance of a permit

pursuant to 42 U.S.C. § 6925(c) (Part B application) before

November 9, 1985, and to certify that it is in compliance with all

applicable groundwater monitoring and financial responsibility re-

quirements. 42 U.S.C. § 6925(eX2) (as amended by P. L. No. 98-616,

98 Stat. 3221).

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B application, an operator is issued a hazardous waste per-

mit, and is required to comply with the standards set

forth in id. §§ 264.1-264.351 (“Part 264”’).

A facility that has been approved for interim status

operation must prepare a written closure plan, a copy of

which must be kept at the facility. Jd. § 265.112. The pur-

pose of the closure plan is to “protect human health and

the environment, [to prevent] post-closure escape of hazar-

dous waste, hazardous waste constituents, leachate, con-

taminated rainfall, to [protect against the escape] of waste

decomposition products to the ground or surface waters

or to the atmosphere.” Jd. § 265.111(b). Once closure has

been ordered, the owner or operator of the facility must

terminate operations in a manner that minimizes the need

for further maintenance of the facility. Jd. § 265.111(a).

A closure plan must “identify the steps necessary to

completely or partially close the facility at any point dur-

ing its intended operating life and to completely close the

facility at the end of its intended operating life.” Jd.

§ 265.112(a). In addition, the closure plan must provide

for post-closure care for a period of thirty years after the

facility is closed. Jd. § 265.117(a). Post-closure measures

include ground-water monitoring, muintenance of other

monitoring and waste containment systems, and periodic

reporting. Jd. § 265.117. The plan may be amended as

changes in the operation of the facility so dictate. Jd.

§ 112(4Xb).

The owner or operator of a hazardous waste manage-

ment facility must submit a closure plan to the appro-

priate EPA regional administrator at least 180 days be-

fore the date the facility is expected to begin closure. Jd.

§ 112(4Xc). However, if the EPA has terminated the facili-

ty’s interim status and has not issued a hazardous waste

permit for the facility, the closure plan must be submitted

to the EPA no later than fifteen days after interim status

is terminated. Jd. § 112(4XcX1). The public is provided an

opportunity to comment on the submitted plan. Jd. § 112

(4Xd). The regional administrator must approve, modify,

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or disapprove the closure plan within ninety days of its

receipt. The owner or operator of the facility is given six-

ty additional days to modify or prepare a new plan should

the Regional Administrator have modified or rejected the

original plan. Jd. Whatever modification or revision the

Regional Administrator then makes of the operator’s re-

vised plan shall become the approved closure plan. /d.

Section 3005(c) of the Act, codified as amended at 42

U.S.C. § 6925(c), provides that a state environmental

agency, as authorized by the Administrator pursuant to

42 U.S.C. § 6947(a), is responsible for the issuance of

hazardous waste management permits. Section 3006 of the

Act, codified as amended at 42 U.S.C. § 6926, provides

that a state may apply to the Administrator for authority

to develop and enforce a hazardous waste program ‘‘in

lieu of’ a federal program and federal enforcement. 40

C.F.R. §§ 271.1-271.137 (“Part 271’’) sets forth the re-

quirements for authorizing state programs. Under these

regulations, a state may obtain “interim authorization”

in two “phases.” Phase I tracks the regulations of 40

C.F.R. §§ 265.1-265.430 (“Part 265’’), and authorizes the

state agency to, among other things, conduct closure pro-

ceedings for interim status facilities. See id. § 271.28. Once

a state obtains Phase I authorization, its regulations and

procedures displace the federal interim status regulations.

Phase II authorization allows the state to issue permits

under standards corresponding to those found in Part 270,

and to enforce standards corresponding to those found at

Part 264.

Section 7006(b) of the Act, codified as amended at 42

U.S.C. § 6976(b), provides that “{rleview of the Adminis-

trator’s action . . . in issuing, denying, modifying, or

revoking any permit ... may be had by any interested

person in the Circuit Court of Appeals of the United

States for the Federal judicial district in which such per-

son resides or transacts such business upon application

by such person. . . . Such review shall be in accordance

with sections 701 through 706 of Title 5.” If a party has

been aggrieved by the action of an authorized state agen-

A-24

cy, review of the agency’s decision shall be had in ac-

cordance with the applicable state regulations.

B. Facts

The petitioner, Northside Sanitary Landfill, Inc., (“North-

side’’), operates a landfill near Zionsville, Indiana, and pro-

vides sanitary and hazardous waste disposal services for

Indianapolis and Boone County, Indiana. Northside was

in existence for many years prior to the passage of the

Act. On November 18, 1980, Northside submitted a Part

A application to the Administrator for a hazardous waste

treatment and disposal permit. As part of its application

materials, Northside included a hand-drawn scale map of

its facility. The map delineated five areas within North-

side’s property boundary.

The first, the ‘““Old Farm” area (also called the ‘Past

Treatment and Disposal Area’’ or the “West Farm’’), con-

sisted of forty acres. Northside claims that it had not used

the Old Farm for the disposal of hazardous wastes after

the statutory cut-off date of November 19, 1980. The Ad-

ministrator disputes this claim. The second, the “East

Farm Area’’ (also called the ‘“‘Current Treatment and

Disposal Area’’), consisted of approximately thirty acres.

Northside and the Administrator agree that hazardous

wastes were disposed of in the East Farm area after

November 19, 1980. The third area, composed of two

tracts and designated the “‘Proposed Future Treatment

and Disposal Area” (also called the “North Farm Area”),

consisted of sixty-four acres. In its brief before this court,

the Administrator acknowledged that “it appears from the

record that no wastes of any kind have been disposed of

in this area.” The fourth area was labelled the ‘‘Storage

and Treatment Tank Area.” The fifth and final tract (un-

named in the application) had upon it a storage barn, re-

pair shop, and Northside’s office.

In its Part A application, Northside requested approval

of a “303 acre-feet” disposal capacity. Northside maintains

that the disposal capacity proposed was solely for the thir-

A+25

ty acre East Farm area. On June 9, 1982, the Region V

Administrator acknowledged that Northside’s application

qualified it for interim status, and noted that a 303 acre-

feet process design capacity has been approved for North-

side’s facility. On January 26, 19838, the Region V Admin-

istrator requested that Northside submit a Part B applica-

tion by July 29, 1983. According to the Administrator, that

application was received on Augusi 5, 1983.

After the submission of Northside’s Part B application,

the Region V Administrator sent Northside three notices

that the information contained in the application was defi-

cient and, hence, the application did not comply with the

applicable regulations. Northside failed by the required

dates to correct the deficiencies. On April 30, 1984, North-

side informed the Region V Administrator by letter that

it was “official[ly]” withdrawing its Part B application.

On July 25, 1984, the Region V Administrator, however,

pursuant to 40 C.F.R. § 124.10, issued a notice of his ten-

tative decision to deny Northside’s permit application on

the grounds that the application was deficient, did not ade-

quately provide for the protection of groundwater, and

that other “continuing environmental violations’ had oc-

curred. In accordance with 42 U.S.C. § 6974(b) and 40

C.F.R. §§ 124.11-124.12, a public hearing was held on

August 28, 1984, at Zionsville, Indiana.

At the public hearing, the EPA stated that Northside’s

Part B application did not include closure information re-

garding the areas of its facility for which interim status

had been granted. In response, Northside stated that the

Region V Administrator had incorrectly considered the

Old Farm Area as part of Northside’s permit application.

Northside maintained that it had sought a permit for a

303 acre-feet disposal capacity, and that this was to be

loeated in the East Farm. Northside added that, of the

thirty acres composing this area, only twelve acres had

actually been used for the treatment and disposal of hazar-

dous wastes. Northside did not, however, contest the

denial of its Part B application.

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On October 12, 1984, the Region V Administrator denied

Northside’s Part B application on the ground that North-

side had failed to submit the necessary information. Pur-

suant to 40 C.F.R. § 270.73(a), the Region V Administra-

tor also terminated Northside’s interim status on the

ground that a final administrative disposition had been

made of Northside’s permit application. In response to

Northside’s position at the public hearing, the Region V

Administrator stated in his order that hazardous waste

had been disposed of after November 19, 1980, in the Old

Farm Area as well as the East Farm. The administrator

concluded that “(t]he entire hazardous waste landfill area

outlined in the November 18, 1980, Part A application

must be closed. This includes the ‘Old Farm Area.’ ”’ The

Region V Administrator’s order disallowed any further

hazardous waste storage, treatment, or disposal of hazar-

dous waste at the Northside facility. Moreover, the order

required Northside to commence immediate closure pro-

ceedings under the applicable Indiana regulations.

On November 8, 1984, pursuant to 40 C.F.R. § 124.19,

Northside petitioned the Administrator for review of the

Region V order that denied its permit application and or-

dered closure. Attached to Northside’s petition was a copy

of its Part A application with a drawing of the facility

and a copy of an aerial photograph taken of the facility

on September 9, 1980. Northside also included the revised

“General Facility Description” from its Part A applica-

tion, which description indicated that the forty-acre Old

Farm Area had not been used for hazardous waste treat-

ment and disposal since November 1980, and that the

sixty-four acre North Farm Area had never been used

for hazardous waste processing. Northside claimed (both

before the Administrator and before this court) that, on

January 4, 1985, the Region V Administrator submitted

drawings of Northside’s facility to the Administrator that

inaccurately depicted the areas that Northside requested

the EPA consider for a hazardous waste management

permit.

A-27

In its petition for review to the Administrator, Northside

twice reiterated its position that it was not challenging

the denial of its Part B application. It claimed, however,

that the comments made by the Region V Administrator

relating to the scope of closure were based upon inac-

curate information and were, therefore, clearly erroneous.

Although Northside, by implication, maintained that the

disputed comments addressed a matter, viz., closure, not

appropriately a subject for permit denial proceedings, it

argued that, if the Administrator nevertheless considered

the comments appropriate in the context, then Northside

should have an appeal as of right under 40 C.F.R. § 124.19.

Finally, in an effort to challenge the disputed comments,

not to challenge the denial of its Part B application per

se, Northside stated that, “{ilf necessary for administrative

appellate review, the Administrator should consider North-

side’s submittal an appeal from the permit decision.”

On April 3, 1985, the Administrator issued an order de-

nying Northside’s petition for review of the Region V Ad-

ministrator’s denial of Northside’s hazardous waste ap-

plication. The Administrator did, however, state that the

questions Northside raised regarding the areas within the

(1) facility that were encompassed by its Part A and Part

B permit applications and (2) that could properly be closed

addressed two of:

the most rudimentary pieces of information that go

into a proper permit cecision. If the permit decision

does not identify where the facility is located, or how

big it is, the permit decision cannot be implemented

successfully regardless of the outcome of the decision.

This is particularly apparent in the present case, for

either including or excluding the Old Farm Area will

significantly alter the area of Petitioner’s landfill that

is subject to the closure and post-closure requirements

of the regulations.

The Administrator concluded:

Therefore, even though . . . [Northside] has stated that

it does not object to the denial of its permit, I am

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persuaded that the matter... [Northside] is raising

is such an integral part of the permit decision that

it is the kind of matter which can be reviewed under

§ 124.19.

The Administrator also observed that “{t]here is no

review as of right from the Region’s determination.”

Rather, ‘(40 C.F.R. § 124.19] clearly provides that...

permits will not be reviewed unless the Petitioner is able

to show that the permit determination is clearly erroneous

or involves an exercise of discretion or policy which is

important and which should be reviewed as a discretion-

ary matter.’”’ The Administrator then concluded that, al-

though the sort of issue Northside raised was within the

ambit of 40 C.F.R. § 124.19, Northside “has not sustained

its burden of showing that the permit determination is

either clearly erroneous or involves an exercise of discre-

tion or policy which warrants discretionary review.”

On Apri! 19, 1980, Northside filed a motion to recon-

sider with the Administrator, in which it noted that:

[TJhe issue as to whether the Old Farm Area is a part

of the Part A interim site is presently being litigated

before a hearing officer of the Indiana Environmental

Management Board. . . . Therefore, the Region’s deci-

sion, as confirmed by the Administrator’s recent

Order, has ruled upon an issue which the U.S. En-

vironmental Protection Agency has delegated to the

State [Environmental Management Board]. . . . This

results in a denial of both procedural and substantive

due process of law and affords the Petitioner no hear-

ing at any time on the administrative determination

of this issue.

On July 2, 1985, before the Administrator had ruled on

the motion for reconsideration, Northside filed a petition

for review with this court.

On November 27, 1985, approximately two days before

briefs were to be filed with this court in support of North-

side’s petition for review, the Administrator denied North-

side’s motion for reconsideration. Although the effect of

A-29

his order was to affirm his initial order, the Administrator

adopted a completely different rationale on reconsidera-

tion by holding that, because Indiana had been granted

authority pursuant to 42 U.S.C. § 6926 to conduct closure

proceedings for interim status permits, the comments in

the Administrator’s initial order regarding the scope of

closure (and those comments made bv the EPA and the

Regional Administrator in the permit denial proceeding

itself) “are without legal effect.” In addition, the Admin-

istrator also noted that a parcel considered part of the

facility for the purposes of a permit application need not

automatically undergo closure upon a denial of the per-

mit application.

A. Timeliness of Petition for Review

Northside’s petition for review raises a number of juris-

dictional issues; some have been considered by the par-

ties, others have not. The first question we must decide

is whether this court has jurisdiction under 42 U.S.C.

§ 6976(b), the judicial review provision for the Solid Waste

Disposal Act, to entertain Northside’s petition. Section

6976(b) provides that a petition for review must be filed

with this court within ninety days from the date of the

Administrator’s action in issuing, denying, modifying, or

revoking a permit. Northside filed the instant petition for

review on July 2, 1985. This was within ninety days of

the Administrator’s order of April 2, 1985 denying North-

side review of Region V’s order, which rejected North-

side’s Part B application. Northside had, however, on

April 19, 1985, filed a motion requesting that the Admin-

istrator reconsider his order of April 2. It was not until

November 27, 1985, some five months later, that the Ad-

ministrator denied the reconsideration motion.? Northside

2 In the interim, both Northside and the Administrator had filed

a number of motions (not concerning the issues of jurisdiction and

standing) in this court in regard to Northside’s petition for review.

A-30

did not, however, amend its original petition to reflect

the Administrator’s denial of its motion for reconsidera-

tion, which became the final administrative order on its

Part B application.

On December 5, 1985, the Administrator filed a motion

with this court requesting to amend the certified list of

documents constituting the administrative record under

review to include the November 27 order. Northside ob-

jected to the motion. On December 12, 1985, we issued

an order stating that the Administrator’s motion would

be considered with the merits of Northside’s petition.

Following our order, Northside again took no action to

amend its petition for review. Oral argument on North-

side’s petition was held on April 4, 1986, well over ninety

days after the November 27, 1985, order denying recon-

sideration.

The limitation period set forth in § 2976(b) is jurisdic-

tional, see Arch Mineral Corp. v. Director, No. 84-2633,

slip op. at 2 (7th Cir. Aug. 11, 1986); Natural Resources

Defense Council v. NRC, 666 F.2d 595, 602 (D.C. Cir.

1981), and hence, we must consider the timeliness and suf-

ficiency of Northside’s petition, whether the parties have

raised the issue or not. See Bender v. Williamsport Area

School District, 106 S. Ct. 1326, 1331 (1986); Christian-

son v. Colt Industries Operating Corp., No. 86-1145, slip

op. at 8-9 (7th Cir. Aug. 19, 1986); Foster v. Center Town-

ship, LaPorte County, No. 85-1560, slip op. at 8 (7th Cir.

Aug. 13, 1986). We shall then determine whether North-

side’s petition for review was premature when filed on

July 2, 1985, and hence, insufficient to invoke our juris-

diction under § 2976(b). By the same token, if we find

that the petition was not premature when filed, we must

decide whether Northside’s failure to amend the petition

to reflect the Administrator’s final order affected our

jurisdiction.

In reviewing a petition challenging an award of benefits

under the Black Lung Benefits Act, codified as amended

at 30 U.S.C. §§ 901-960, we recently held that “a peti-

tion for review ... is timely if filed within sixty days

A-31

of the . . . [Benefits Review] Board’s denial of a timely

motion for reconsideration.”’ Arch Mineral, No. 84-2633,

slip op. at 8 (emphasis added). In Arch Mineral, we noted

that “{a] clear majority of the cases involving appellate

review of administrative decisions hold that, where the

applicable statute and administrative regulations are

silent, the filing of a motion for reconsideration suspends

the time for filing a petition for review.” Id., slip op. at 6.

Nevertheless, Arch Mineral involved a statutory scheme

of judicial review quite different than that presented in

the instant case. 42 U.S.C. § 6976(b) provides that judicial

review of the Administrator’s actions “shall be in ac-

cordance with sections 701 through 706 of Title 5,” that

is, the Administrative Procedure Act. Section 704 provides

that “{e]xcept as otherwise expressly required by statute,

agency action otherwise final is final for the purposes of

this section whether or not there has been presented or

determined an application for . . . any form of reconsidera-

tion.” Thus, by its terms, “(t]he Administrative Procedure

Act explicitly permits [a] judicial appeal and [a] request

for agency reconsideration to be pursued simultaneously.”’

American Trucking Associations, Inc. v. ICC, 697 F.2d

1146, 1148 n.* (D.C. Cir. 1983) (Scalia, J.). We hold, there-

fore, that Northside’s petition for review, which was filed

withir: ninety days of the Administrator’s initial order de-

nying review, was timely under § 6976(b) and thus suffi-

cient to invoke our jurisdiction.? See also Selco Supply

3 In Arch Mineral Corp. v. Director, No. 84-2633, slip op. at 7

(7th Cir. Aug. 11, 1986), we noted that ‘“{i}t is obviously wasteful

of the resources of the courts to burden them with objections to

adm.nistrative action which may be obviated by agency:action on

reconsideration.”’ Nevertheless, citing Selco Supply Co. v. EPA,

632 F.2d 863, 865 (10th Cir. 1980), cert. denied, 450 U.S. 1030

(1981), we noted that in the context of environmental legislation,

the need for “prompi decisionmaking procedures that could bet-

ter prevent unnecessary injury” must be taken into account. Arch

Mineral, No. 84-2633, slip op. at 7. We cannot be unmindful at

this juncture that the EPA has expressed concern about the ef-

(Footnote continued on following page)

A-32

Co. v. EPA, 632 F.2d 863, 865 (10th Cir. 1980), cert.

devried, 450 U.S. 1030 (1981) (motion to reconsider does

not toll sixty-day limit under 7 U.S.C. § 136n(b), which

governs judicial review of EPA orders under the Federal

Insecticide, Fungicide and Rodenticide Act, codified as

amended at 7 U.S.C. §§ 135-136y).

In addition, we grant the Administrator’s motion to

amend the certified list of documents constituting the

record on the instant petition to include the Administra-

tor’s order on reconsideration. This, however, raises the

question whether Northside should have amended its orig-

inal petition to reflect the Administrator’s order on recon-

sideration. In our opinion, it was unnecessary for North-

side to have done so. As noted above, § 704 permits the

sudicial review and administrative reconsideration of an

agency’s order to occur simultaneously. Once our jurisdic-

tion has been properly invoked by a petition for review,

it makes little sense to require an amendment to the peti-

tion to preserve that jurisdiction only because the agen-

cy has ruled on the motion for reconsideration. In North

American Telecommunications Association v. FCC, 751

F.2d 207, 209 (7th Cir. 1984) (per curiam), we noted “{tJhe

presumption in favor of judicial reviewability of agency

action . . . (on which, see, e.g., Abbott Laboratories v.

3 continued

fects of Northside’s hazardous waste disposal on the water sup-

ply of the City of Indianapolis. Thus, the need for “prompt deci-

sionmaking procedures” is especially strong in the instant case.

In addition, under the statutory provisions relevant here, unlike

those cases cited in Arch Mineral, there is no prescribed period

in which the agency must pass upon a motion for reconsideration.

See, e.g., 49 U.S.C. § 10322(gX2). In theory then, the wait for ad-

ministrative action on a motion for reconsideration could be in-

definite. Nor are we faced with a case in which a motion for recon-

sideration is the only available channel to present matters of

general importance for plenary consideration by, for example, the

entire Interstate Commerce Commission (as opposed to inferior

panels). See B.J. McAdams v. ICC, 551 F.2d 1112, 1114-15 (8th

Cir. 1977).

A-33

Gardner, 387 U.S. 136, 140, (1967)), implies to us that pro-

cedural rules should not lightly be interpreted to prevent

a party from obtaining judicial review.” We noted also

that “the action of this court in accepting the transfer

of the petition from [another federal circuit] may have

lulled NATA [the petitioning party] into thinking that it

had not filed its notice of appeal prematurely.” Jd. Our

action in ordering that the Administrator’s motion seek-

ing to amend the scope of the administrative record be

considered with the merits of Northside’s petition might

have “lulled” Northside into thinking that its petition need

not be amended to reflect that order to sustain our juris-

diction. Insofar, then, the reasoning of Citizens State Bank

is equally applicable here. Cf. Bernstein v. Lind-Waldock

& Co., 738 F.2d 179, 182-83 (7th Cir. 1984); Textor v.

Board of Regents, 711 F.2d 1387, 1390-91 (7th Cir. 1983).

B. Standing and Ripeness

Northside asks this court to “reverse .. . [the Admin-

istrator’s order denying review], . . . the Region’s per-

mit denial, {and the] interim status . . . and closure deter-

mination[s], . . . and [to} order . . . [the Administrator]

to hold a formal evidentiary hearing on said permits and

closure, utilizing the Federal Rules of Evidence and the

Administrative Procedure Act.’’4 Northside contends that

4 In the alternative, Northside requests that this court “hold that

the Northside property subject to closure and post-closure re-

quirements of 40 CFR Part 265 (Subpart G) is limited to the

twelve acres located in its East Farm utilized for the disposal of

. . . hazardous waste between November 19, 1980, and January

24, 1983.’ Even were we to conclude that the EPA has the

authority to determine the scope of closure proceedings for interim

status facilities (which we do not) and that the Region V’s find-

ing that hazardous waste had been disposed of in the Old Farm

Area as well as the East Farm after the statutory cut-off date

was unsupported by substantial evidence (about which we express

no opinion), we may not decide de novo which area within the East

Farm should be closed. Such a determination rests in the first in-

(Footnote continued on following page)

A-34

observations made by the Region V Administrator in his

order denying Northside’s Part B application incorrectly

indicated that hazardous waste had been disposed of in

areas of Northside’s facility other than the East Farm.

Northside also contends that the Region V Administrator’s

conclusion that Northside’s entire facility was subject to

closure proceedings was based on inaccurate drawings and

photographs of Northside’s facility. It is Northside’s posi-

tion that a formal evidentiary hearing before the EPA

would afford Northside an opportunity to introduce evi-

dence of the actual extent of waste disposal and of the

property within its facility properly encompassed by its

Part A permit application. This, Northside concludes,

would allow the EPA to redetermine the scope of closure

on the basis of accurate information.

The Administrator counters that because Northside did

not dispute the denial of its Part B application (nor the

termination of its interim status) before the EPA, and that

4 continued

stance with the appropriate agency and we may review that agen-

ev’s decision to determine whether it is supported by substantial

evidence on the record. As we recently held in Brock v. Dow

Chemical, U.S.A., Nos. 85-2541 & 85-2545, slip op. at 10 (7th Cir.

Sept. 16, 1986), ‘‘unless a matter crucial to . . . {an administrative]

order falls outside the permissible bounds of choice for an agen-

cy, such that we can find it proper or improper as a matter of

law, we may not uphold [or review] an order on the basis of facts

or reasoning upon which the . . . [agency itself] did not expressly

rely, even if such facts or reasoning are supported by substantial

evidence in the record.’”’ See also Bowen v. American Hospital

Assoc., 106 S. Ct. 2101, 2113 (1986); FTC v. Indiana Federation

of Dentists, 106 S. Ct. 2009, 2016 (1986); SEC v. Chenery Corp.,

318 U.S. 80, 95 (1943); NLRB v. Indianapolis Mack Sales & Ser-

vice, Inc., No. 84-3061, slip op. at 7-8 (7th Cir. Sept. 25, 1986).

Hence, we would have to remand to the appropriate agency for

a determination as to which areas of Northside’s facility must be

ciosed. Yet, because we hold that Northside has not been (yet)

injured by the disputed comments made by the EPA regarding

the closure of its facility, and hence, that the petitioner’s challenge

is not ripe for judicial resolution, we will not reach the merits of

Northside’s argument in this regard.

A-35

because the State of Indiana, pursuant to 42 U.S.C.

§ 6926, has the sole authority to conduct proceedings

relating to, and to rule on hazardous waste closure plans,

Northside does not have standing to challenge the com-

ments relating to closure that were made by the Region

V Administrator in his order. In essence, the Adminis-

trator argues that because the State of Indiana, not the

EPA, has the authority to determine the scone of closure

proceedings in Northside’s case, the disputed statements

are “‘without legal effect.”” Hence, the Administrator con-

cludes that Northside cannot demonstrate that it has suf-

fered, or that there is an immediate danger that it will

suffer, a direct personal injury as a result of the com-

ments made by the Region V Administrator in his order

denying Northside’s Part B application, even if those com-

ments are inaccurate.

Article III of the Constitution limits the power of the

federal judiciary to the resolution of ‘“‘cases’ and ‘‘con-

troversies.” Diamond v. Charles, 106 S. Ct. 1697, 1703

(1986); Bender v. Williamsport Area School District, 106

S. Ct. 1326, 1331 (1986); Valley Forge Christian College

v. Americans United for Separation of Church and State,

Inc., 454 U.S. 464, 471 (1982); Flast v. Cohen, 392 U.S.

83, 94-101 (1968); see also Foster v. Center Township of

LaPorte County, No. 85-1560, slip op. at 7 (7th Cir. Aug.

13, 1986). Although the question of standing encompasses

a number of prudential considerations, see Foster, slip op.

at 7 n.9, in its constitutional dimension it is a component

of the case-or-controversy requirement and, as such, bears

on the power of a court to entertain a party’s claim. Val-

ley Forge, 454 U.S. at 471; Village of Arlington Heights

v. Metropolitan Housing Development Corp., 429 U.S. 252,

262 n.8 (1977); Foster, slip op. at 8; Block v. Meese, 793

F.2d 1308, 1307 (D.C. Cir. 1986). The analysis of standing

under Article III focuses on the party bringing a claim,

not on the claim itself. Valley Forge, 454 U.S. at 484;

Warth v. Seldin, 422 U.S. 490, 500 (1975); Foster, slip op.

at 9.

A-36

In Valley Forge, 454 U.S. at 472, the Supreme Court

set forth three requirements as the “irreducible minimum”’

that must be present before a party is said to have stand-

ing before a federal court: (1) the party “personally has

suffered some actual or threatened injury as a result of

the putatively illegal conduct of the defendant,” (quoting

Gladstone Realtors v. Village of Bellwood, 441 U.S. 91,

99 (1979)); (2) the injury “fairly can be traced to the chal-

lenged action,” of the defendants (quoting Simon v.

Eastern Kentucky Welfare Rights Organization, 426 U.S.

26, 38 (1976)); and (3) the injury “‘is likely to be redressed

by a favorable decision,” (quoting Simon, 426 U.S. at 41).

The constitutional analysis is not altered by the fact that

this action was brought under the judicial review provi-

sions of the Solid Waste Disposal Act. See, e.g., Center

for Auto Safety v. N.H.T.S.A., 793 F.2d 1322, 1328-31

(D.C. Cir. 1986); Bethlehem Steel Corp. v. EPA, 782 F.2d

645, 651 (7th Cir. 1986). As the Supreme Court observed

in Valley Forge, 454 U.S. at 487 n.24, “{nJeither the Ad-

ministrative Procedure Act, nor any other congressional

enactment, can lower the threshold requirements of stand-

ing under Art. III.”

The argument Northside advances to establish standing

to bring the instant petition for review is somewhat frag-

merited, but nevertheless may fairly be reduced to the

following contentions: (1) the EPA’s disputed remarks

mandate the closure of Northside’s entire facility, even

for the purposes of non-hazardous waste disposal, and

have hence, caused Northside injury; (2) Northside has

standing because it is appealing from the EPA’s termina-

tion of its interim status; (3) Northside has standing

because it is appealing from the EPA’s denial of its Part

B application; and (4) because the Indiana environmental

agency has already in part accepted, and may continue

to accept the EPA’s recommendations as to the closure

of Northside’s facility without an independent exercise of

its discretion and judgment, the remarks will have the

effect of denying Northside an opportunity to litigate this

matter before the Indiana agency. We shall consider each

ieee

A-37

of these contentions in turn. As we explain below, the

first three arguments, upon analysis, fail to show that

Northside has standing, and the last argument, although

it affords Northside standing, is not ripe for judicial

resolution.

1. Closure of Entire Facility

For the purposes of our. decision, we must accept as

true all material allegations of Northside’s petition for

review, and it will suffice if these allegations show that

Northside has standing. See, e.g., Village of Arlington

Heights, 429 U.S. at 264 n.9: Block v. Meese, 793 F.2d

at 1307. Northside first maintains that as a result of the

Region V Administrator’s remarks, the entire facility, in

cluding areas in which Northside claims no hazardous

wastes were disposed after the relevant statutory cut-off

date, must undergo closure under Part 265, and that it

will be unable to dispose of non-hazardous waste on any

portion of its facility.

Northside’s argument, however, fails to account for the

fact that the State of Indiana has received authorization,

pursuant to 42 U.S.C. § 6926, to determine the closure

requirements for any facility in that state whose interim

status has been terminated by the EPA. See 40 C.F.R.

§§ 265.1(cX4); 271.121(b). Once the state agency has re-

ceived authorization for its program, it shall ‘‘carry out

such program i» lieu of the Federal program.” 42 U.S.C.

§ 6926(a). The EPA simply does not have the legal

authority to determine whether, for what purposes, or

which areas of Northside’s facility must be closed. See 40

C.F.R. § 265.1(cX4). The State of Indiana alone is respon-

sible for these determinations. Even if the EPA is dis-

satisfied with, for example, the enforcement action taken

by a state against a specific hazardous waste disposal

facility, or the settlement agreement reached between the

state and the facility, so long as the state has exercised

its judgment in a reasonable manner and within its stat-

utory authority, the EPA is without authority to com-

A-38

mence an independent enforcement action or to modify

the agreement. Cf Shell Oil Co. v. Train, 585 F.2d 408,

414 (9th Cir. 1978) (EPA recommendation that state deny

NPDES variance request constituted advice to state, and

was not reviewable in federal court). Hence, in and of

itself, ‘the fact that the EPA made comments on the scope

of closure in the course of denying Northside’s Part B

permit application does not constitute an injury to North-

side.

Nor can it be said that the disputed remarks preclude

the Indiana agency from deciding the issue of which areas

of Northside’s facility must be closed. It is only when ‘an

administrative agency is acting in a judicial capacity and

resolves disputed issues of fact properly before it which

the parties have had an adequate opportunity to litigate,”

that the findings of the agency are entitled to preclusive

effect. See University of Tennessee v. Elliott, 106 S. Ct.

3220, 3226 (1986) (quoting United States v. Utah Construc-

tion & Mining Co., 384 U.S. 394, 422 (1966) (emphasis

added)). In the instant case, the disputed remarks of the

EPA arose as responses to comments made by a represen-

tative of Northside at the public hearing held on the

denial of Northside’s Part B application. Participants at

the hearing were allotted only five minutes to comment

upon the proposed permit denial. Hence, it is clear that

the parties were not given a full and fair opportunity to

litigate the issue of which areas cf Northside’s facility

were subject to closure. More important, because, as we

noted above, the EPA did not have the authority to make

closure findings and determinations, these issues were not

properly before it. Hence, Northside cannot claim that it

has been injured by the allegedly preclusive effect of the

EPA’s statements. Brotherhood of Locomotive Engineers

v. ICC, 761 F.2d 714 (D.C. Cir. 1985).

Northside argues in its reply brief that the Indiana en-

vironmental agency is not alone responsible for develop-

ing a closure plan for Northside’s facility. Northside states

that the Indiana agency informed it “that Northside is

subject to the Phase II closure requirements set forth in

A-39

40 C.F.R. Part 264, which the state is not authorized to

administer.”’ On January 31, 1986, however, Indiana re-

ceived final authorization, and ‘“‘now has the responsibili-

ty for permitting treatment, storage and disposal facilities

within its borders and carrying out the other aspects of

the [Act].” 51 Fed. Reg. 3954 (January 21, 1986). Hence,

Indiana now has authority under Phase II.

Nevertheless, Indiana’s final authorization ‘‘is subject

to the limitations on its authority imposed by the Hazar-

dous and Solid Waste Amendments of 1984 (Pub. L. 98-616,

November 8, 1984).”’ Jd. That is, ‘new requirements im-

posed by the [1984 amendments] take effect in authorized

States .. . [and the) U.S. EPA is directed to carry out

those requirements and prohibitions . . ., including the

issuance of full or partial Federal permits, until the State

is granted authorization to do so.” Id.; see also 42 U.S.C.

§ 6926(gX1). Thus, “{aJs a result of . . . [the amendments],

there will be a dual State/Federal regulatory program

in Indiana.”’ 52 Fed. Reg. 3954; see also 42 U.S.C.

§ 6926(cX4). However, “[t]o the extent the authorized state

program is unaffected by . . . [the amendments], the State

program is authorized to operate in lieu of the Federal pro-

gram.” 51 Fed. Reg. 3954; see also 42 U.S.C. § 6926(c\4).

Northside contends that its facility, and hence, its

closure plan falls within the ambit of the 1984 amend-

ments. Indeed, Northside notes that the Indiana agency

advised it in a letter written July 11, 1985, that:

[BJecause of your delay in submitting a Closure/Post-

Closure Plan, you have become subject to the require-

ments of the Hazardous and Solid Waste Amendments

of 1984. Because EPA is implementing the require-

ments of that statute, they are the only ones who can

integrate the new requirements into your... . plan.

We note that this letter was written before the EPA

issued a clarification of the effect of the 1984 amendments

on July 15, 1985, and before the Indiana environmental

agency received Phase II authorization on January 31,

1986.

| |

A-40

In its amended form, 42 U.S.C. § 6925(i) provides:

The standards concerning groundwater monitoring, un-

saturated zone monitoring, and corrective action, which

are applicable under Section 6924 of this title to new

landfills, surface impoundments, land treatment units,

and waste-pile units required to be permitted under

subsection (c) of this section shail also apply to any

landfill, surface impoundment, land treatment unit, or

waste-pile unit qualifying for the authorization to op-

erate under subsection (e) of this section which re-

ceives hazardous waste after July 26, 1982.

(emphasis added)

In addition, 42 U.S.C. § 6926(cX4) provides:

In the case of a State permit program for any State

which is authorized under subsection (b) of this sec-

tion or under this subsection, until such program is

amended to reflect the amendments made by the Haz-

ardous and Solid Waste Amendments of 1984 and such

program amendments receive interim or final autho-

rization, the [EPA] Administrator shall have the

authority in such State to issue or deny permits or

those portions of permits affected by the requirements

and prohibitions established by the Hazardous and

Solid Waste Amendments of 1984. The Administrator

shall coordinate with States the procedures for issuing

such permits.

(emphasis added)

Thus, insofar as Northside falls within the purview of

the 1984 amendments, and hence, must satisfy the closure

standards found at Part 264, instead of at Part 265, In-

diana is authorized to administer these regulations. Yet,

insofar as portions of Northside’s property, and hence, of

Northside’s closure plan are affected by the 1984 amend-

ments, Indiana must coordinate closure with the EPA.

Pursuant to 42 U.S.C. § 6925(i), this would include stand-

ards concerning groundwater monitoring, unsaturated zone

monitoring, and the necessary corrective action relating

thereto.

A-41

Northside has not indicated, however, what other por-

tions, if any, of its closure plan are affected by the 1984

amendments. More important, Northside has not sug-

gested, nor do we find any reason on the basis of the

record before us to assume, that the determination in

areas in which hazardous waste has been disposed after

July 26, 1982, the relevant statutory cut-off date, is en-

trusted to the EPA as opposed to the Indiana agency.

We are also not unmindful that Northside is challenging

the EPA’s remarks regarding the disposal of hazardous

waste on the Old Farm Area after November 19, 1980,

and not disposal on the East Farm after July 26, 1982.

Therefore, in this regard, the 1984 amendments are not

relevant to Northside’s challenge. Northside has not claimed,

and there is no reason to assume, that the 1984 amend-

ments give the EPA authority to determine the scope of

closure. The 1984 amendments provide for coordinate

authority over specific and limited aspects of hazardous

waste disposal pending an approved state program. The

amendments do not preempt that part of an existing state

program that is relevant to the matters Northside seeks

to challenge on its petition for review. Those amendments

do not aid Northside in establishing that it has standing

to challenge the EPA’s remarks regarding the scope of

closure and the areas of its facility where hazardous waste

was disposed after November 19, 1980. Thus, on the basis

of the record before us, the 1984 amendments are not

relevant to the disposition of Northside’s petition for

review.

2. Termination and Interim Status

At times Northside characterizes its petition as a chal-

lenge to the denial of its Part B application and to the

termination of its interim status, not merely a challenge

to the EPA’s remarks concerning the scope of closure.

Northside asserts that it was entitled to a formal eviden-

tiary hearing pricr to the Administrator’s action on its

application and interim status. Insofar as Northside char-

acterizes its petition as a challenge to the termination of

a iia tile A

A-42

its interim status, its argument is unavailing. Section

6976(b) grants us jurisdiction only to review certain ac-

tions of the Administrator in regard to a claimant’s “per-

mit.” Yet, although it imposes the same obligations on

a hazardous waste management facility to comply with

operational requirements as a facility actually issued a per-

mit, 42 U.S.C. § 6925(e); 40 C.F.R. § 265.1(b), interim

status is not considered a “permit” within the meaning

of the judicial review provision (§ 6976(b)), and we do not

have jurisdiction to review the termination of that status.5

Hempstead County and Nevada County Project v. EPA,

700 F.2d 459, 462 (8th Cir. 1983).

3. Denial of Part B Application

Northside’s attempt to characterize its petition as a

challenge to the denial of its Part B application for a

hazardous waste management permit is equally unpersua-

sive. First, Northside did not press this argument before

either the Region V Administrator or the Administrator.

Indeed, the record reflects that Northside, on several oc-

casions, expressly disavowed that it was seeking review

of the permit denial.* It is clear from the record that

5 Northside also argues that it has a property interest in con-

tinuing to operate under interim status, and that the termination

of that status without a formal evidentiary hearing constitutes a

deprivation of property without due process of law. This argument

is unavailing. The grant of interim status to a hazardous waste

management facility is expressly provisional and cannot be said

to create a “claim of entitlement” to the status, see, e.g., Cleveland

Board of Education v. Loudermill, 105 S. Ct. 1487, 1491 (1985);

Ruckelshaus v. Monsanto, 104 S. Ct. 2862, 2873 (1984); Campbell

v. Miller, 787 F.2d 217, 222-23 (7th Cir. 1986). Thus, Northside

does not have a protected property interest in the interim status.

$ It is true that Northside, in its petition to the Administrator

for review of the Region V administrator’s order, stated that, if

its petition must be characterized as an appeal from the permit

denial itself in order to invoke appellate administrative review,

then the Administrator should so characterize it. Yet, this arose

(Footnote continued on following page)

A-43

Northside contested only the Region V Administrator’s

comments concerning the scope of closure and the areas

of Northside’s facility where hazardous wastes had been

disposed of after November 19, 1980. Second, (and more

important for the matter of Northside’s standing before

this court), even were we to order the EPA to hold an

evidentiary hearing (a remedy that we cannot grant

Northside), it would not redress Northside’s claimed in-

jury. By asking for an evidentiary hearing in the guise

of a challenge to the permit denial, Northside in effect

is asking us to order the EPA to make findings and reach

conclusions regarding the scope of closure that the EPA

simply does not have the authority to make. It is axio-

matic, however, that a party challenging the agency ac-

tion “is required to show a substantial possibility that the

requested relief would benefit him in some perceptible,

tangible fashion.” See, e.g., Public Citizen v. Lockheed Air-

craft Corp., 565 F.2d 708, 715 (D.C. Cir. 1977). Northside

may not rely upon the “remote possibility, unsubstantiated

by allegations of fact, that . . . [its] situation might have

been better had respondents acted otherwise, and might

improve were the court te afford relief.” Warth v. Seldin,

442 U.S. at 507. Hence, the fact that Northside’s claimed

injury, viz., being subject to an overinclusive closure order

due to the EPA’s action, cannot be redressed by the relief

Northside seeks leads to the conclusion that Northside

does not have standing before this court to challenge the

8 continued

in the context of Northside’s argument that the Region V admin-

istrator did not have the authority to make the disputed comments

in its order denying the Part B application. In effect, Northside

argued that, if the comments were appropriately made in a per-

mit denial proceeding, then in fairness it should have an oppor-

tunity to challenge the statements before the EPA, for they would

have an adverse effect on Northside’s position in the state closure

proceedings. Yet, we agree with Northside that the EPA did not

have the legal authority to make these comments. What is impor-

tant is that Northside did not, before the Administrator, base its

claim to an evidentiary hearing on the argument that its Part B

application was improperly denied.

A-44

EPA’s remarks made during permit denial proceedings.

Larsen v. Valente, 456 U.S. 228, 243 n.15 (1982); Foster,

No. 85-1650, slip op. at 12; see also Center for Auto Safe-

ty, 793 F.2d at 1334.

4. Preclusion of State Agency’s Consideration

In support of its petition for review, Northside also

argues that the state agency will do nothing more than

“rubber stamp” the EPA’s recommendations on the scope

of closure for Northside’s facility. The record does reflect

that, in developing a closure plan for Northside’s facili-

ty, the state agency has in large part adopted the EPA’s

recommendations. Of course, the fact that the state agen-

cy reaches the same, or substantially the same, findings

and conclusions as the Administrator is not, in and of

itself, indicative of an injury to Northside arising out of

the EPA’s remarks made during Northside’s permit pro-

ceedings. Nor is the EPA’s conceded role in advising the

state agency and cooperating with it in formulating a

closure plan either necessarily, or even probably, im-

proper. Indiana’s authorization to conduct closure pro-

ceedings does not in any way preclude cooperation with

the EPA. It is unwise to impose an artificial barrier be-

tween the EPA and the state in these matters, because

to do so would lead to a needless duplication of efforts

at the risk of decreasing the accuracy of the state’s find-

ings and actions. When the integrity of the environment

and the health of the general public are at stake, such

a risk cannot be accepted lightly. Moreover, even if the

state’s factual findings, and hence, its closure plan for

Northside, prove to be unsupported by substantial evi-

dence in the record, this does not entail, nor even sug-

gest, that the EPA was improperly enmeshing itself in

the state proceedings.

Even accepting, for the sake of argument, that the

EPA’s role in developing a closure plan for Northside’s

facility was in excess of the EPA’s statutory authority,

(and although this would suffice to confer standing on

A-45

Northside) the effect that may have on Northside is, at

the present time, speculative at best. Our intervention at

this point would be premature and unwarranted. It is well

settled that a court should refrain, ‘through [the]

avoidance of premature adjudication, from entangling. . .

[itself] in abstract disagreements over administrative pol-

icies, and . . . [that a court should] protect . . . agencies

from judicial interference until an administrative decision

has been formalized and its effect felt in a concrete way

by the challenging part[y].” See Abbott Laboratories v.

Gardner, 387 U.S. 136, 148-49 (1967); Citizens for a Bet-

ter Environment v. Costle, 617 F.2d 851, 853-54 (D.C. Cir.

1980). In addition, under the circumstances of this case,

there is no hardship to Northside in withholding considera-

tion on this matter. Abbott Laboratories, 387 U.S. at 149.

At oral argument, Northside conceded that it would be

able to present its position before the state agency. North-

side also has not suggested that the procedural safeguards

afforded it at the state proceedings will be inadequate.

In addition, once the state has decided upon a closure

plan, review of that plan is available. Hence, by with-

holding judgment on this matter, we cannot be said to

have insulated the issues Northside raises from review.

Abbott Laboratories, 387 U.S. at 136; United States

Brewers Association v. EPA, 600 F.2d 974, 979 (D.C. Cir.

1979). In conclusion, even accepting as true Northside’s

allegations that the Indiana environmental agency will not

exercise independent judgment in developing a closure

plan for Northside’s facility, which would be sufficient to

confer standing, until a final administrative decision is

reached, Northside’s claim is not ripe for judicial reso-

lution.

Distilled to its essence, Northside’s argument asks us

to either determine the proper scope of closure or to order

the EPA to hold a formal evidentiary hearing for it to

do so. Neither is a remedy that we have the authority

to grant. We do, however, caution the Administrator

against commenting on the scope of closure in a case such

as this where a state agency has the sole authority to

A-46

decide such matters. Even though the Administrator’s

comments in these regards are not legally binding on the

state agency, they may give rise to delicate questions of

the state agency’s exercise of independent judgment. The

Administrator must bear in mind the sensitive relation-

ship existing between it and state agencies.

III

For the reasons stated above, Northside’s petition for

review is

DISMISSED.

A true Copy:

Teste:

Clerk of the United States Court o

Appeals for the Seventh Circuit

USCA 79004—Midwest Law Printing Co., Inc., Chicago—10-23-86—450

A-47

APPENDIX H

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF INDIANA

INDIANAPOLIS DIVISION

UNITED STATES OF AMERICA,

Plaintifh

CAUSE NO.

IP 88-172-C

NORTHSIDE SANITARY

LANDFILL, INC. )

JONATHAN W. BANKERT, and )

PATRICIA A. BANKERT, )

)

Defendants.

ENTRY

Plaintiff, the United States, has filed a Motion For Immedi-

ate Entry to enjoin defendants, Northside Sanitary Landfill,

Inc., Jonathan Bankert and Patricia Bankert, from conducting

any further landfilling operations at the Northside Sanitary

Landfill property. The United States claims that immediate

and permanent cessation of all landfilling operations at the

Northside Sanitary Landfill is necessary to enable the

Environmental Protection Agency (“EPA”) to effectuate a

cleanup as authorized under the Comprehensive Environmen-

tal Response, Compensation and Liability Act, 42 U.S.C.

§ 9601 et seg. Having considered the documents submitted by

the parties and the testimony presented at the hearing on the

motion, this Court finds that the landfilling operations at issue

do not currently interfere with the EPA’s cleanup activities and

accordingly DENIES the United States’ Motion.

A-48

MEMORANDUM

I. BACKGROUND

The Northside Sanitary Landfill (“Northside”) is a 168 acre!

solid waste disposal facility presently operated by defendant

Northside Sanitary Landfill, Inc. and owned by defendants

Jonathan and Patricia Bankert (Sloan dec. § 8, Vendl dec.

§ § 7, 8) (all defendants are hereinafter referred to collectively

as “defendants”). Northside currently receives only conven-

tional waste, but prior to February 1983 it received hazardous

waste (Memorandum in opposition to Motion for Immediate

Entry, Ex. 2). Due in part to chemical contamination of the soil,

groundwater, and leachate at the site, the Environmental

Protection Agency (“EPA”) in September 1984 targeted

Northside as a national priority site? for environmental

cleanup under § 9605 of the Comprehensive Environmental

Response, Compensation and liability Act (“CERCLA”, 42

U.S.C. § 9605, also known as “superfund”).

In accordance with the CERCLA statutory mandate and the

related regulations?, the EPA, after notice and comment,

issued a Record of Decision (“ROD”) describing the cleanup

remedy to be implemented at Northside® (Vendl dec. § 9). The

remedy selected in ROD involves restricting access to the site,

covering it with a multilayer cap to prevent water infiltration,

relocating adjacent creeks, and constructing leachate/ground-

water treatment systems (Vendl dec. § 10).

The EPA plans to implement the remedy in three phases: (1)

predesign, which includes geotechnical tests, contamination

tests, mapping, and a pilot study; (2) design, including prepa-

' Approximately 70 of the 168 acres have received landfill (Sloan dec. § 7).

* See Sloan dec. § 15 and Sloan dec. attachment 2.

‘ The District of Columbia Circuit Court of Appeals recently denied defen-

dant’s petition to review their inclusion on the National Priorities List.

Northside Sanitary Landfill, Ine. v. Thomas, No. 84-1586 (D.C. Cir. Mar. 25,

1988).

' See 40 C.FLR. § 300.68 (1987).

” The remedy also covers an adjacent superfund site known as Environmen-

tal Conservation and Chemical Corp. (Vendl dee. § 4).

A-49

ration of engineering plans and specifications; and (3) construc-

tion (Sloan dec. § 21). Phase one, the predesign phase, has

already begun, and is scheduled for completion in March 1989

(Sloan dec. § 28). Phase two, design, is to be completed by fall

1989. The final construction phase is expected to take two to

five years (Sloan dec. § § 29, 30).

A consulting engineering firm, CH.M Hill, Inc. (hereinafter

the “predesign contractor”), has contracted with the EPA to

perform some of the predesign work. To date, the EPA and the

predesign contractor have accomplished the predesign work

while landfill operations are ongoing. Recently, however, the

EPA began to contend that additional landfilling would inter-

fere with proper completion of the predesign tasks. Pursuant

to this contention, in November 1987 the EPA wrote to the

defendants informing them that the predesign work would

soon require permanent closure of the Northside facility (Vend]

dec. § 11). In January 1988 the parties met to discuss the need

for closure and the progress of the predesign work generally,

but could not reach an agreement on cessation of landfilling

operations (Vend] dec. § § 17, 18). Unable to negotiate a closure

at Northside, the EPA seeks an Order compelling closure,

alleging, under 42 U.S.C. § 9604(e)(5)(b), tha: the defendants’

continued operation of the landfill is an interference with the

EPA’s statutorily authorized entry at the site.

In response, defendants challenge the EPA’s authority to

seek closure under CERCLA, arguing that the Resource Con-

servation and Recovery Act (“RCRA”), 42 U.S.C. § 6926,

gives the State of Indiana exclusive jurisciction over any

closure plan applicable to Northside. To support their argu-

ment, defendants point out that the United States delegated

RCRA authority to the State, and that the State ordered

Northside to implement a RCRA closure plaa which includes

remedial systems similar to those requred under the

CERCLA plan® (Def. Ex. S). The RCRA onder is currently

‘ For a thorough discussion of Northside’s dealings wih the EPA and the

State of Indiana under RCRA, see Northside Sanitary Landfall, Inc. v.

Thomas, 804 F.2d 371 (7th Cir. 1986).

EE OOOOOeereeemLlLlLl

A-50

stayed, with resolution pending in the Indiana courts (Def. Ex.

Q).

In addition to their RCRA argument, the defendants main-

tain that the closure sought in the motion at bar constitutes an

unconstitutional taking, that the entry requested is arbitrary

and capricious, and that the EPA has failed to show that the

continued landfilling with interfere with the CERCLA cleanup

plan.

II. DISCUSSION

A. Scope of Review

To determine the proper nature of the judicial inquiry into

this alphabet soup litigation, this Court must first reconcile

two seemingly contradictory sections of CERCLA. The EPA

maintains that § 9613(h) controls the Court’s scope of review,

while the defendants claim 42 U.S.C. § 9604(e)(5) controls.

When the statutes are read together, it is clear that this Court

can obey the strictures of § 9613(h) vet fulfill the statutory

analysis required in § 9604(e)(5).

Section 9613(h) reads, in pertinent part,

“No federal court shall have jurisdiction. . . to review any

challenges to removal or remedial] action selected under

section 9604 of this title. . . in any action except one of the

following:

(1) An action under section 9607 of this title to

recover response costs...

(2) An action to enforce an order under [the abate-

ment section of CERCLA] or to recover a

penalty for violation of such order

(3) An action for reimbursement [from the super-

fund for compliance with an order]. . .

(4) [a citizen’s suit]

(5) An action under section 9606 of this title in

which the United States has moved to compel

eel

A-51

remedial action.” 42 U.S.C.A. 9613(h) (West

1986 Supp.)

The relevant part of § 9604(e)(5)(B) reads:

“The [EPA] may ask the Attorney General to commence a

civil action to compel compliance with a request or order

{for entry onto a hazardous waste facility]. Where there is

a reasonable basis to believe there may be a release or

threat of a release of a hazardous substance or pollutant or

contaminant, the court shall take the following actions:

(i) Inthe case of interference with entry or inspec-

tion, the court shall enjoin such interference or

direct compliance with orders to prohibit inter-

ference with entry or inspection unless under

the circumstances of the case the demand for

entry or inspection is arbitrary and capricious,

an abuse of discretion, or otherwise not in accor-

dance with law.” 42 U.S.C.A. § 9604(e)(5)(B)

(West 1986 Supp. ).

There is little case law to guide this Court in determining the

proper scope of review, because both of the statutory sections

quoted supra were only recently adopted. See Superfund

Amendments and Reauthorization Act of 1986 (“SARA”)

Pub.L. No. 99-499, 100 Stat. 1617. One of the few relevant

opinions is Dickerson v. Administrator of the EPA, 834 F.2d

974 (11th Cir. 1987). in Dickerson, the defendant property

owners sought relief from a district court order which granted

the EPA the authority to enter the defendant’s property to

commence a cleanup response. The appeals court found that

§ 9613(h) precluded any review of the proposed cleanup action,

noting that judicial review is available only after the cleanup,

during the cost recovery stage of the proceedings. /d. at 977;

see 42 U.S.C. § 9607.

Under § 9613(h) and Dickerson, this Court may not examine

the technical merit of a CERCLA response decision. Accord-

ingly, this Court will not consider any evidence or arguments

A-52

relating to the scientific aspects of the Northside cleanup plan’.

Notwithstanding that limitation, when the EPA seeks court-

ordered compliance with an entry request, the district court

hearing the motion is charged in § 9604(e)(5) with ensuring

that the five statutory elements for court-ordered compliance

are met.

{

First, the entry sought must be authorized under para-

graphs (2), (3) or (4) of § 9604(e). See 42 U.S.C. § 9604(e)(5)(A).

In the case at bar, the EPA’s entry at Northside to effectuate a

cleanup is authorized under paragraph 3. 42 U.S.C.

§ 9604(e)(3)(D). That authority, however, is not plenary, for the

second element of the statute requires the EPA to request the

landowner’s consent to entry before seeking court-ordered

compliance. 42 U.S.C. § 9604(e)(5)(A). Here, the EPA fulfilled

this requirement in November 1987 by a letter informing

defendants of the need for closure and in January 1988 by

discussion closure with defendants’ attorneys (see Vend] dec.

§ § 11, 17).

The third element of the statute requires the EPA to demon-

trate there is a reasonable basis to believe there may be a

release of a hazardous substance, pollutant or contaminant

from the site. 42 U.S.C. § 9604(e)(5)(B). Foruth, there must be

some interference with the entry request before the court may

* The parties presented considerable evidence o

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