# Petition for Writ of Certiorari — Northside Sanitary Landfill, Inc. v. Reilly > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385002_0626%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition for Writ of Certiorari - **Published:** January 1, 1989 - **Citation:** 489 U.S. 1078 ## 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, f 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agency action must be cognizant of “ll decisions directed at it which are both published in the Federal Register and unpublished; and must detail by the time for filing for reconsideration all objections later raised upon judicial review, where the EPA did not serve its response to the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 il 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 vi No. In THE Supreme Court of the United States October Term, 1988 NorRTHSIDE SANITARY LANDFILL, INC., Petitioner, V. 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. ] 2 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 3 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. . . (c) After notice required by this section, the agency shall 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: 4 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- 5 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. 6 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 7 “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 8 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 9 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 10 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- ll 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 12 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 15 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: 14 [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 15 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: 16 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: 17 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 18 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 19 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- 20 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 21 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). 23 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 24 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. 25 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) 26 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 27 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. 28 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” 3 g * 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 V. 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 V. 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 V. 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 v. 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 V. WILLIAM D. RuCKELSHAUS, ADMINISTRATOR, U.S. ENVIRONMENTAL PROTECTION AGENCY Respondent No. 83-2258 NoORTHSIDE SANITARY LANDFILL, INC. Petitioner V. 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 | A-20 I 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). A-22 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, A-23 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. A-26 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 A-28 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. II 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 t [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385002_0626%3A1. Public record. Not legal advice.