Petition for Writ of Certiorari — Washington State Department of Transportation v. United States Environmental Protection Agency

90-1541 aii

Supreme Court, U.S. |

FiLED

APR 5 1991

No. OFFICE OF THE CLERK

IN THE _

SUPREME COURT

OF THE

UNITED STATES

OCTOBER TERM, 1990

WASHINGTON STATE DEPARTMENT

OF TRANSPORTATION,

Petitioner,

V.

UNITED STATES ENVIRONMENTAL

PROTECTION AGENCY,

Respondent.

PETITION FOR WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE DISTRICT OF COLUMBIA

PETITION FOR WRIT OF CERTIORARI

KENNETH O. EIKENBERRY

Attorney General

State of Washington

CHARLES F. SECREST

Assistant Attorney General

Counsel of Record

DEBORAH L. CADE

Assistant Attorney General

Hwys-Licenses Bldg. PB-52

Olympia, Washington 98504

(206) 753-6126

Counsel for Petitioner

Washington State

Department of Transportation

QUESTION PRESENTED

Section 105 of the Comprehensive Environmental Re-

sponse, Compensation, and Liability Act (CERCLA), 42

U.S.C. § 9605, requires that the Environmental Protection

Agency compile a list of releases of hazardous substances

known as the National Priorities List or NPL, and that the

NPL be adopted as a rule. Section 113 (a) requires that a

challenge to a rule adopted under CERCLA be brought

within 90 days of the promulgation of that rule.

The question presented is whether the jurisdictional

time limit for challenging an NPL listing can begin to run

even though EPA has not yet decided if a particular release

will be included as part of a previously-listed NPL site.

ag

usr

ill

TABLE OF CONTENTS

QUESTION PRESENTED. ..........ccccccsccesssessecseseneeeeess i

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a ies suhnanactnunnanossandnaseanasexsasince 2

STATUTORY PROVISIONS INVOLVED ................ 2

STATEMENT OF THE CASE ........0000..............:cees 3

Pie RMI BUOOTOUIIIG 0... sac cc cc esesccccccsscccnsccsens 3

B. The Commencement Bay Nearshore/

OMETEIG COOTTING TIED ........cc.ccsccccccsssscesscenes

ee I I Us aacnsasnnennasasssncensanseesecns

Be UN OCIS TIBI onan ncccccsccscssccccasssncsssess

REASONS FOR GRANTING THE PETITION .......

I. THE TIME PERIOD IN WHICH A

A CHALLENGE UNDER SECTION

113(a) MUST BE BROUGHT SHOULD

NOT BEGIN TO RUN UNTIL EPA

HAS DECIDED WHETHER A RELEASE

WILL BE TREATED AS PART OF A

PARTICULAR NPL SITE, OR UNTIL

THE CHALLENGE IS RIPE FOR

a Bil Lcis dcachuakaxanduxhakapankantsnsxacascaceses 9

Il. THE RULING IN THIS CASE IS

IN CONFLICT WITH THE D.C.

CIRCUIT'S RULINGS IN SIMILAR

EE Teach ash UneaCckuasnkatwawnnninensvannnnncesassces 14

Il. THE QUESTION OF WHEN A

CHALLENGE TO AN NPL LISTING

MUST BE BROUGHT IS OF GREAT

IMPORTANCE TO PROPERTY OWNERS... 18

aN DD oO

iv

TABLE OF CONTENTS—Continued

Pag

UIE AINE occassion sanccccsncchatansnscnashcsen’ 19

REN RR AOR Se a Ba Ngo RT RE ART la-7a

ORDER DENYING PETITION FOR REVIEW ...... 8a

ORDER DENYING REHEARING... o-oo 9a

MAP OF SITE AREA 0.0000..00000...sssssssssssssssssessossseveseeseve 10a

TABLE OF AUTHORITIES

Cases

Pege

Abbott Laboratories v. Gardner

I 0 8 10

ACLU v. FCC

ee eee Ue CH. GU, BOIIE ED ccsincccccececschaveccecsceces 11

American Trading Transportation

Co., Inc. v. U.S. 791 F.2d 942 (D.C. Cir. 1986) ...... 16

D'Imperio v. United States

575 F.Supp. 248 (D.N.oJ. 1983) ............ccceeceeceeeeeees 18

Eagle-Picher Industries v. EPA

759 F.2d 905 (D.C. Cir. 1985)

Lg gg, ET eM RET: 3, 12,14

822 F.2d 132 (D.C. Cir. 1987)

SII Ct Rikincessiccciahdchetenseincisectianeisseninicneianies 8

National Air Transportation Ass'n v. McArtor

BD me SE CED... Cie, BOG) on cc cncccecccccsccscccccccsscccs 17

Natural Resources Defense Council v. U.S.E.PA.

859 ee BU CES, Git, TIED ncececsecceccnecscscstsces o>: a oe

Pennsylvania v. Union Gas Co.

re Se CE ailbit taeda tence a aes 3

RCA Global Communications, Inc. v. F-C.C.

Fe Tae Cs EF, ID nccisasacenacchekakkssnscareeeane 7,16

Recreational Vehicle Indus. Ass'n v. EPA ;

653 F.2d 562 (D.C. Cir. 1981)..... dit Moa ook 7, 14, 15,17

SCA Services of Indiana, Inc. v. Thomas

634 F.Supp. 1355 (N.D. Ind. 1986)....................... s~

vi

TABLE OF AUTHORITIES—Continued

Page

Toilet Goods Association, Inc. v. Gardner

ENED, SUMED CMINIIUD -<ncesnacousebedshecnedenencseqsneneunsesines 10, 11

United States v. Monsanto Co.

Be ee BO CORE COUR, BBB) scccsereccsccrsccesasoscscescncess 4

Statutes and Regulations

IIE OE CI TO «5s cc sana nedensanabinendubananendhneasiieaasenissn 2

Clean Water Act, 33 U.S.C. § 1369(b)......................... 12

I OE OI, TD sci ancinessshannsetniahscasbanencbusaieeseeunatas 14

EE, at GE IPUIIEG ID aiincssecseesscssercnsssecssasdacezaceutbannceta

III x sna ccnccnnssnsbannctrpnsianstecbighuaniaSaemanse

TTI civic ctsagucanitennsaceenncecspicesaneunebesnenéi 5

40 C.F-.R. § 300.66(a)(4 (iii) (1987) «0... 6

Comprehensive Environmertal Response,

Compensation and Liability Act,

iy Me GE, GM, ccncecrncasesencesctnccensenneesnnennnss 3

IE CPI. ssccacensancshisnntsachenashesenscenabebeaneaeaaeabis 3

I Oe Dc asccesnconsatatsanneisancetnesensianancuennneiis 12

IRR St IID axcccsunsinsqusansennnaenbnssennouncemnbensneianih 2,13

4B U.S.C. § S]OGLAMSME) wncccccccs cccssccccccvsscscsssssnses 4

as TINIE anciisnscancnssoesneansonaansathessaseinabnaaeuinanitin 4

SG: SEITPEIED ankxncnsacerecashscesncenenstnsahaniesainatneneiiie 3

ee Was BH Ds cavccnescrcscccerscensresscccsnssccenonesasenenas 2,4

6, 12,17

Br See aires. So RA inccessnsnscanavesennsnernnenannsnnminscnenssnninn 9

Vii

TABLE OF AUTHORITIES—Continued

Other Authorities

Page

48 Fed. Reg. 40,658-73 (1983) .............cccccccccccccceccceeeeeees 4

54 Fed. Reg. 33846, 33850 (1989)............ccccccccccccccceeceeee 19

EPA's Implementation of the Superfund Program:

Hearing Before the Subcommittee on Investigations

and Oversight, House Committee on Public Works

and Transportation, 101st Cong., Ist Sess. 33 (1989).. 18

Oscar R. George, Washington State DOT Meets

the Challenge of Hazardous Waste .............0c.c0cc0ccee0000 6

Washington State Department of Transportation v.

EPA, 917 F.2d 1309 (D.C. Cir. 1990) .............cccccccccces. 2,6

No.

IN THE

SUPREME COURT

OF THE

UNITED STATES

OCTOBER TERM, 1990

WASHINGTON STATE DEPARTMENT

OF TRANSPORTATION,

Petitioner,

%

UNITED STATES ENVIRONMENTAL

PROTECTION AGENCY,

Respondent.

Petition for Writ of Certiorari to the

United States Court of Appeals for the

District of Columbia Circuit

PETITION FOR WRIT OF CERTIORARI

Washington State Department of Transportation re-

spectfully petitions this Court for a writ of certiorari to re-

view the judgment of the United States Court of Appeals for

the District of Columbia Circuit in this case.

OPINION BELOW

The opinion of the United States Court of Appeals for

the District of Columbia Circuit (App., la-7a) is reported at

917 F.2d 1309. The order of the Court of Appeals denying

the petition for rehearing (App., 9a) is not reported.

JURISDICTION

The judgment of the Court of Appeals was entered on

November 2, 1990, and the petition for rehearing was de-

nied on January 11, 1991 (App., 9a). This Court's jurisdic-

tion is based on 28 U.S.C. § 1254(1).

STATUTORY PROVISIONS INVOLVED

Section 105 of the Comprehensive Environmental Re-

sponse, Compensation, and Liability Act (CERCLA), 42

U.S.C. § 9605, provides in relevant part:

the President shall, after notice and opportunity for

public comments, revise and republish the national

contingency plan for the re.aoval of oil and hazardous

substances, * * Such revision shall include a sec-

tion of the plan to be known as the national hazardous

substance response plan which shall establish proce-

dures and standards for responding to releases of haz-

ardous substances, pollutants, and contaminants,

which shall include at a minimum:

“ x *

(8B) based upon the criteria set forth in subpara-

graph (A) of this paragraph, the President shall list as

part of the plan national priorities among the known

releases or threatened releases throughout the United

States and shall revise the list no less often than annu-

ay. * * *

Section 113(a) of CERCLA, 42 U.S.C. § 9613(a), pro-

vides:

Review of any regulation promulgated under this Act

may be had upon application by any interested person

only in the Circuit Court of Appeals of the United

States for the District of Columbia. Any such applica-

tion shall be made within ninety days from the date of

promulgation of such regulations. Any matter with re-

spect toAvhich review could have been obtained under

this subsection shall not be subject to judicial review in

any civil or criminal] proceeding for enforcerent or to

obtain damages or recovery of response costs.

Section 107(a) of CERCLA, 42 U.S.C. § 9607(a), pro-

vides in relevant part:

Notwithstanding any other provision or rule of law,

and subject only to the defenses set forth in subsection

(b) of this section—

(1) the owner and operator of a vessel or a facility,

*** shall be liable for—

(A) all costs of removal or remedial action in-

curred by the United States Government or a

State or an Indian tribe not inconsistent with

the national contingency plan; * * * (C)

damages for injury to, destruction of, or loss

of natural resources, including the reason-

able costs of assessing such injury, destruc-

tion, or loss resulting from such a release

* ke

STATEMENT OF THE CASE

A. Statutory Background

Congress enacted the Comprehensive Environmental

Response, Compensation and Liability Act (CERCLA), 42

U.S.C. § 9601 et seg., to address concern about improper dis-

posal of nazardous substances. CERCLA authorizes the fed-

eral government to arrange for the removal of hazardous

substances that have been released into the environment

and to take action to remedy any harm to the environment.

The Environmental Protection Agency (EPA) may arrange

for these remedial actions itself or allow other parties to

clean up sites for which they are responsible, under EPA's

supervision. 42 U.S.C. § 9604; see also Pennsylvania v.

Union Gas Co., 491 U.S. 1, 109 S. Ct. 2273, 2277 (1989).

If EPA conducts the remedial action, the site must be

included on the National Priorities List (NPL). 40 C.F.R. §

300.425(b\( 1); Eagle-Picher Industries v. EPA, 759 F.2d 905,

911 n. 26(D.C. Cir. 1985). The NPL, or the “Superfund list,”

is a prioritized list of contaminated sites ranked according

to the threat they pose to public health or the environment.

This ranking is done by applying the Hazard Ranking Sys-

tem (HRS). 42 U.S.C. 9605(a)(8)(B); 40 C.F.R. § 300.425(c).

Challenges to the NPL are exclusively reviewable in

the D.C. Circuit Court of Appeals, and must be filed within

90 days of promulgation. Any issue that could have deen

raised in an application for review under this section may

not be raised in a later proceeding, such as an action for cost

recovery. 42 U.S.C. § 9613(a).

CERCLA authorizes EPA to recover all response costs

from responsible parties, and allows only limited defenses.

42 U.S.C. § 9607. Responsible parties are generally consid-

ered to be jointly and severally liable for the costs incurred

in cleaning up a Superfund site. United States v. Monsanto

_Co., 858 F.2d 160 (4th Cir. 1988).

B. The Commencement Bay Nearshore/Tideflats Su-

perfund Site

Commencement Bay is a large (9 square miles) deep-

water embayment of southern Puget Sound located in Taco-

ma, Washington. Commencement Bay, its shoreline, and an

industrialized area on its southeast boundary (the Tacoma

Tideflats) were designated as “Commencement Bay Near-

shore/Tideflats,” and listed on the final NPL on September

8, 1983. (App., 10a) See 48 Fed. Reg. 40, 658-73 (1983). See

also Pet. App. at 1-20.! The term “nearshore” refers to the

offshore area of the bay. The term “Tideflats” refers to a spe-

cific geographic area located southeast of Commencement

Bay known as the Tacoma Tideflats.

The NPL listing of the Commencement Bay Nearshore/

Tideflats site (Commencement Bay site) was based upon

Hazard Ranking System (HRS) scores of two sites, the

ASARCO Smelter and Hooker Chemical Company, that ex-

ceeded the minimum HRS score of 28.50. (Pet. App. at 1-20.)

ASARCO and Hooker are both located on the Commence-

‘Citations to Petitioner’s Appendix refer to the record below.

ment Bay shoreline. Hooker is also located in the Tideflats

industrial area.

EPA began a remedial investigation/ feasibility study

(RI/FS) on the Commencement Bay site in 1984. See 40

C.F.R. § 300 430. The final RI/FS report was published in

February 1989.

C. The Tacoma Spur

The Tacoma Spur is the colloquial name for Interstate

705, which connects downtown Tacoma to Interstate 5, the

main north-south highway in western Washington. (App.,

10a) During construction of the Tacoma Spur in 1984, WS-

DOT discovered buried deposits of coal tar from an aban-

doned coal gasification plant. This portion of the I-705 right

of way is located near downtown Tacoma about two blocks

from the City Waterway, which is part of Commencement

Bay. This property is not located in the Tacoma Tideflats or

on the shoreline.”

When WSDOT notified EPA of its discovery, EPA as-

signed a site number (WAD 9809775460) to the contaminat-

ed right of way, but did not indicate to WSDOT that the

Tacoma Spur was already part of an identified Superfund

site.” (Pet. App. at 101-04.) EPA subsequently conducted a

preliminary assessment of the Tacoma Spur to evaluate the

site as a “potential Superfund site.” (Pet. App. at 44-49.)

However, the Tacoma Spur was never scored under the Haz-

ard Ranking System and was not individually named to the

National Priorities List.

After discovering the coal tar, WSDOT developed and

carried out an extensive cleanup plan. This response action

involved removing nearly 16,000 tons of tar and contami-

“WSDOT records describe the Tacoma Spur as being built on “reclaimed

tidelands.” There was some confusion in the proceedings below as to whether this

is synonymous with “Tideflats.” The two terms are not the same. There are “re-

claimed tidelands” all over the Puget Sound region; the “Tideflats” is a specific geo-

graphic area southeast of Commencement Bay

‘This number is different from that assigned to the Commencement Bay

site, which was WAD 980726368

nated soil to a hazardous waste disposal facility and con-

taining over 26,000 tons of less contaminated soil on site in

large concrete vaults. The total cost of this response action

to WSDOT was $6 million.4 WSDOT coordinated its efforts

with the Washington State Department of Ecology to insure

compliance with hazardous waste regulations. There was

no involvement or supervision by EPA in the cleanup effort.

The response action was completed in 1986.

In November 1988, EPA again conducted a preliminary

assessment of the Tacoma Spur, identifying it under yet an-

other number, D98038579. The purpose of both this assess-

ment and a site inspection was again to evaluate the

Tacoma Spur as a “potential” Superfund site. (Pet. App. at

50-89.) See 40 C.F.R. § 300.66(a)(4)(111)(1987).

On April 24, 1989, EPA sent WSDOT a “general notice

letter” including the Tacoma Spur in the Commencement

Bay site and naming WSDOT as a potentially responsible

party for the Commencement Bay cleanup. (Pet. App. at

105-129.)

Although the court was not persuaded that EPA's ac-

tions were misleading, EPA admitted that it did not treat

the contaminated I-705 right of way as part of the Com-

mencement Bay site until April 1989. See Opinion, 917 F.2d

at 1312 n.7. Rather, EPA “simultaneously considered

whether to treat Tacoma Spur primarily an independent

threat or as part of the CBNT [Commencement Bay site].”

Resp. Br. at 37 n. 24.

D. The Proceedings Below

WSDOT filed a petition for review July 22, 1989 in the

D.C. Circuit Court of Appeals challenging the inclusion of

its property in the Commencement Bay site. The court had

jurisdiction pursuant to 42 U.S.C. § 9613(a).

4See Washington State DOT Meets the Challenge of Hazardous Waste, by Os-

car R. George, attached to EPA’s Memorandum in Support of Respondent's Motion

to Dismiss as Exhibit 2.

The court dismissed the petition as untimely on two al-

ternative grounds. First, the court held that WSDOT was

required to file its petition within 90 days of the 1983 Com-

mencement Bay NPL listing because the Tacoma Spur site

was within the “broad compass” of the Commencement Bay

listing. Second, the court noted that even if the 1983 listing

was insufficient to put WSDOT on notice, WSDOT had ac-

tual notice that it might be included in the Commencement

Bay site when it discovered the coal tar on the 1-705 right of

way in 1984.

REASONS FOR GRANTING THE PETITION

The ruling of the D.C. Circuit in this case is contrary to

the principle of administrative law that a jurisdictional

time period in which a challenge to agency action may be

brought does not begin to run until a party is fairly put on

notice that it is affected by the agency action. See, e.g., RCA

Global Communications, Inc. v. F.C.C., 758 F.2d 722, 730

(D.C. Cir. 1985). It also goes against accepted principles of

due process and fundamental fairness, under which an

_agency may not promulgate a vague rule or take action that

is unclear in its intent and later take advantage of its ob-

scure actions to deny a party its statutory right to a hearing.

See, e.g., Recreational Vehicle Indus. Ass'n v. EPA, 653 F.2d

562, 568 (D.C. Cir. 1981).

The court's decision has created a situation in which

EPA has the best of both worlds. Had WSDOT anticipated

the possibility that the Tacoma Spur site would be consoli-

dated with the Commencement Bay site and sought review

in 1983 or in 1984, the court would likely have found that

WSDOT’'s challenge was not ripe for review. See Natural Re-

sources Defense Council v. U.S.E.P.A., 859 F.2d 156 (D.C.

Cir. 1988).

In listing a broad geographic area as a Superfund site,

EPA leaves open the question of whether certain proper-

ties—and therefore certain parties—will be affected by that

Superfund listing. Issues that must be raised in a section

113(a) action will not be ripe for review until EPA resolves

this question.°

The effect of the D.C. Circuit's ruling is that the ninety

day review period in section 113(a) will very often expire

long before a party's challenge to an NPL listing is ripe for

review. Also, since EPA controls the decision making pro-

cess with regard to an NPL site, EPA can delay decision

making until the ninety day review period has expired. This

deprives a party of the right to have issues reviewed that

can only be raised in a section 113(a) action, namely wheth-

er the inclusion of a site is consistent with CERCLA and the

regulations adopted thereunder, and is not arbitrary. See

Eagle-Picher Industries v. EPA, 822 F.2d 132, 137 (D.C. Cir.

1987) (“Eagle-Picher III”). It is doubtful that Congress in-

tended this result, as it makes section 113(a) meaningless in

a large number of NPL sites.

The right to raise the issues that can only be raised un-

der section 113(a) is of substantial importance to property

owners, considering the financial impact of being drawn

into a Superfund site.® It is also of great importance in light

of the extremely limited defenses that are available to po-

tentially responsible parties. The Court should grant this

petition to protect the rights of parties who are drawn into

Superfund sites after the ninety day review period and who

are then denied the right to raise as defenses those issues

that can only be raised under section 113(a).

°These issues include whether the property affected really merits Super-

fund-financed cleanup. This issue is of particular importance in this case, where

WSDOT conducted a $6 million cleanup at the Tacoma Spur years before being no-

tified that the Tacoma Spur was considered to be part of the Commencement Bay

site.

®See SCA Services of Indiana, Inc. v. Thomas, 634 F.Supp. 1355, 1361-65

(N.D. Ind. 1986) for a discussion of the economic impacts of being named to the Na-

tional Prionties List. In addition to the economic loss and loss of property value

noted in SCA, there are legal and technical costs that must be incurred in order to

make an adequate administrative record for review.

I. THE TIME PERIOD IN WHICH A CHALLENGE

UNDER SECTION 113(a) MUST BE BROUGHT

SHOULD NOT BEGIN TO RUN UNTIL FPA HAS

DECIDED WHETHER A RELEASE WILL BE

TREATED AS PART OF A PARTICULAR NPL

SITE, OR UNTIL THE CHALLENGE IS RIPE

FOR REVIEW.

In treating a newly-discovered release of hazardous

substances at the Tacoma Spur as a “potential” Superfund

site for several years, throughout the cleanup of the Tacoma

Spur and throughout the development of a cleanup plan for

Commencement Bay,’ EPA admittedly left it undecided as

to whether the Tacoma Spur would eventually be treated as

part of the larger Commencement Bay site. When chal-

lenged by WSDOT within 90 days of when WSDOT was fair-

ly put on notice that the Tacoma Spur would be considered

a part of the Commencement Bay site, EPA took advantage

of its own deliberate vagueness and indecisiveness in order

to defeat ‘VSDOT’s attempt to seek review of EPA's action.

The result of EPA's indecision is that WSDOT is precluded

from ever raising the issue of whether WSDOT's property

actually qualifies for Superfund remediation. Under section

113(a), this issue may only be raised in the D.C. Circuit, and

cannot be raised later on when EPA attempts to recover

costs from WSDOT.®

The issue that WSDOT sought to have reviewed by the

D.C. Circuit was whether the Tacoma Spur was legally eli-

gible for Superfund remediation as part of the Commence-

ment 3ay Superfund site where (1) the Tacoma Spur is not

"Because of the delay in notifying WSDOT that the Tacoma Spur was part

of the Commencement Bay site, WSDOT was also deprived of the opportunity to

participate in the development of the Commencement Bay cleanup plan. This par-

ticipation is the only way a potentially responsible party can attempt to control the

costs incurred at a Superfund site, and is its only real “defense.” WSDOT was also

deprived of the opportunity to contribute to the administrative record, and any ju-

dicial review is limited to the administrative record. 42 U.S.C. § 96134).

‘EPA argued in opposition to WSDOT’s challenge that the issues WSDOT

raised were more properly reserved for a later cost recovery action, but this ar-

gument is in direct contradiction to the language of section 113(a).

10

located on Commencement Bay, (2) the Tacoma Spur was

never scored by EPA under the Hazard Ranking System,

nor was it listed on the NPL, (3) and the Tacoma Spur site

had been thoroughly cleaned up by WSDOT several years

earlier. This issue did not arise until EPA resolved the fac-

tual question of whether the Tacoma Spur would be treated

as part of the Commencement Bay Superfund site, which

was in April 1989. The court's ruling denies WSDOT the op-

portunity to raise as a defense the fact that the site is

cleaned up.

This Court has set out the standards for ripeness for re-

view in Abbott Laboratories v. Gardner, 387 U.S. 136 (1967)

and in Toilet Goods Association, Inc. v. Gardner, 387 U.S.

158 (1967). The Court set out a two-step inquiry: “first to

determine whether the issues tendered are appropriate for

judicial resolution, and second to assess the hardship to the

parties if judicial relief is denied at that stage.” Toilet Goods

Assoc., 387 U.S. at 162. Had WSDOT raised its challenge to

the Commencement Bay listing in 1983 or in 1984, it is like-

ly that the court would have found the challenge not yet ap-

propriate for judicial resolution, and it is mnlikely that

WSDOT could have shown such hardship as to overcome a

denial of review at that time.

In 1983, WSDOT was just acquiring property for the

Tacoma Spur, including the property on which the contami-

nation was found. A challenge to the Commencement Bay

listing with regard to WSDOT's property would have been

inappropriate for judicial resolution because it would have

depended on resolution of a number of facts that EPA had

not yet addressed, including the determination of which

properties were contaminated. WSDOT would have had to

make its challenge in a very generalized manner, and could

not have cited to any specific application of the listing by

EPA to WSDOT's property. As the D.C. Circuit has itself

noted in another case, “Fitness for review is not satisfied

when ‘judicial appraisal .. . is likely to stand on a much sur-

er footing in the context of a specific application of this reg-

ulation than could be the case in the framework of this

11

generalized challenge made here.”” ACLU v. FCC, 823 F.2d

1554, 1557 (D.C. Cir. 1987) (quoting Toilet Goods Ass'n, 387

U.S. at 164). In 1983, WSDOT's claim would have had to

rest on highly speculative arguments, where the property

being acquired was not even known to be contaminated and

EPA appeared to be concerned only with the pollutants be-

ing released by shoreline and Tideflats industries. (Pet.

App. at 1-20.) In effect, WSDOT would have been asking the

court for an advisory opinion, in violation of the “case or con-

troversy” requirement of Article III. See Natural Resources

Defense Council v. U.S.E.P.A., 859 F.2d 156, 165 (D.C. Cir.

1988).

After the discovery of hazardous substances at the

Tacoma Spur in 1984, EPA has admitted that it “simulta-

neously considered” whether to treat the Tacoma Spur as a

separate Superfund site, whose NPL listing would have

triggered a new ninety day review period, or to treat it as

part of Commencement Bay, for which the ninety day re-

view period had expired. The documents that form part of

the administrative record show that as late as November

1988 EPA was evaluating the Tacoma Spur as a “potential”

Superfund site. (Pet. App. at 50-89.) EPA argued that this is

all part of its “standard administrative practice.” Res. Br. at

36. Regardless, it is clear that EPA had not yet resolved the

issue of whether the Tacoma Spur would be considered as

part of Cominencement Bay until after November 1988.

In Natural Resources Defense Council v. U.S.E.P.A.,

the D.C. Circuit found that a statute requiring review of

Clean Water Act regulations within ninety days of their pro-

mulgation did not prevent the court from finding that chal-

lenges to the regulations were not yet ripe for review. 859

F.2d 156, 167 (D.C. Cir. 1988). The court noted that che

claims raised were “not by any means so purely legal as to

12

be clearly fit for review, .. .” /d.2 The court also distin-

guished Eagle-Picher Industries, Inc. v. E.P.A., 759 F.2d 905

(D.C. Cir. 1985), in which the court had reviewed a CERCLA

regulation under 42 U.S.C. § 9613(a), by noting that the is-

sues in that case were “pure ones of law’yand that EPA's po-

sition was “final and fully crystallized.” NRDC, 859 F.2d at

166. In the present case, EPA's position on whether the

Tacoma Spur was part of the Commencement Bay Super-

fund site was not “final and fully crystallized” until 1989.

Thus, under the D.C. Circuit's application of the ripeness

doctrine set out by this Court, the issues raised by WSDOT

were not ripe for review until sometime after November

1988, when EPA decided io include the Tacoma Spur as part

of the already-listed Commencement Bay site instead of

listing it as a separate Superfund site.

There is no question that at the time contaminants

were discovered at the Tacoma Spur in 1984, the Tacoma

Spur had the potential to be listed as a Superfund site on its

own. Coal tar is a hazardous substance under CERCLA, and

vast quantities of it were found at the Tacoma Spur. Howev-

er, EPA did not name the Tacoma Spur to the NPL. EPA in-

vestigated the Tacoma Spur as a “potential” Superfund site

in 1984, and then took no further action. EPA made no ob-

jections or comments when WSDOT undertook its own

cleanup efforts. EPA provided no oversight for the response

action, as it is required to do under section 104 when a party

performs its own cleanup at a Superfund site. See 42 U.S.C.

§ 9604(a). Certainly if a state agency were undertaking a

cleanup project of the magnitude of the Tacoma Spur clean-

up «ti an identified Superfund site, EPA would be expected

to at least show some concern. The fact that EPA had no in-

terest in WSDOT’'s cleanup is evidence that the Tacoma

“The provision in the Clean Water Act, 33 U S.C. § 1369(b), is virtually iden

tical to 42 USC. § 961314), except that it allows challenges to be made after the

expiration of ninety days “on/y if such application is based so/el/y on grounds which

arose after such ninetieth day” (emphasis added) However, the court appeared to

have based its ruling not on this language, but on the common law principles of

ripeness. The court did not indicate that the same grounds for review could not be

raised at a later time when factual issue. were resolved

13

Spur was not considered by EPA to be part of the Com-

mencement Bay site at that time.

EPA completely ignored the Tacoma Spur site until

1988, long after the WSDOT cleanup was complete and the

highway constructed, when EPA undertook another investi-

gation of the Tacoma Spur as a “potential” Superfund site.

EPA admitted in the proceedings before the D.C. Circuit

that it “simultaneously considered” whether to treat the

Tacoma Spur as part of Commencement Bay or as a sepa-

rate problem. Res. Br. at 37.

The result of this common practice by EPA is that the

agency can delay identifying what areas will be included as

part of a given Superfund site until opportunities for chal-

lenging the agency's decision have expired. At the Com-

mencement Bay site, EPA delayed this decision until the

studies and cleanup plans were nearly completed, almost

eight years after the site was listed.!° EPA can include

within the “broad compass” of a Superfund site property

that may or may not pose a CERCLA problem, and by not

identifying the scope of the site until after the 90 days for

challenging the listing expires, avoid any challenge as to

whether that property really merits Superfund-financed re-

mediation. This application of a sort of “rubber boundary”

has the effect of denying affected parties the right to raise

the issue of whether their property is sufficiently contami-

nated to warrant being drawn into the Superfund process.

It is a relatively common practice for EPA to define as

an NPL site a broad geographic area rather than a discrete

release of hazardous substances, in spite of the fact that

CERCLA refers to the NPL as a list of “releases.”!! 42

U.S.C. § 9605. The NPL contains numerous ¢-her listings

Commencemert Bay was first listed on the interim priority ist in 198]

"During the comment period on the original NPL in 1983, EPA received

comments regarding the listing of a site entitled “Whitewood Creek” located in

South Dakota) The commentor noted that the site was really several sites, and

should be listed as such. Pet. App. at 21-25

14

that are geographic areas, rather than individual industrial

or landfill sites. See 40 C.F.R. § 300 App. B.'”

Il. THE RULING IN THIS CASE IS IN CONFLICT

WITH THE D.C. CIRCUIT’S RULINGS IN SIMI-

LAR CASES.

The D.C. Circuit noted in Eagle-Picher Industries v.

EPA that it has reviewed otherwise untimely claims in “a

limited number of exceptional circumstances where the pe-

titioner lacked a meaningful opportunity to challenge the

agency action during the review period due to, for example,

inadequate notice that the petitioner would be affected by

the action... .” 759 F.2d 905, 911 (D.C. Cir. 1985) (“Eagle-

Picher I”) (citing Recreational Vehicle Indus. Ass'n v. EPA,

653 F.2d 562, 567-68 (D.C. Cir. 1981)). This case is one of the

“exceptional circumstances” that the D.C. Circuit has spe-

cifically identified as justifying an otherwise untimely

claim.

In Recreational Vehicle Indus. Ass'n v. EPA (RVIA),

the D.C. Circuit allowed a petitioner to challenge EPA noise

regulations after the expiration of the 90 day review period

where the applicability of the regulations to the petitioner

was unclear. 653 F.2d 562 (D.C. Cir. 1981). The court reject-

"WSDOT itself is a potentially responsible party at another Superfund site

in Washington State where this same problem occurs, the Eagle Harbor/Wyckoft

site. WSDOT owns and operates a ferry terminal on the north shoreline of Eagle

harbor, which is located west of Seattle across part of Puget Sound. The site was

originally listed based on releases of a hazardous substance, creosote, from the

Wyckoff Company, a now-inoperative wood treatment plant located on the south

shoreline of Eagle Harbor. After expiration of the ninety day review period, EPA

designated other shoreline and upland property owners as PRPs, including WS-

DOT. After years of study, there is no evidence that WSDOT’s property itself would

have ever been shown to pose a serious enough threat to the environment to war-

rant Superfund-financed cleanup. There is no relationship whatsoever between

the Wyckoff property and the WSDOT property; they are not contiguous and are

separated by the harbor. However, inclusion of WSDOT, a state agency, gives EPA

a deep pocket from whom to recover all of the costs it incurs at Eagle Harbor, in-

cluding any that the Wyckoff Company is unable to pay. Certainly the same moti-

vation exists for including WSDOT at the Commencement Bay site, where many

shoreline and Tideflats industnes that contmbuted to the contamination of the bay

may be unable to bear their proportionate shares of the cleanup costs

15

ed EPA's contention that the petition was untimely, and ex-

plained:

Before any litigant reasonably can be expected to

present a petition for review of an agency rule, he must

first be put on fair notice that the rule in question is ap-

plicable to him. Otherwise the agency could promul-

gate a confusing regulation and, after expiration of the

time for any judicial contest, clarify it to the surprise

and prejudice of a party whose opportunity for judicial

review meanwhile has been extinguished. Here, for a

considerable period, EPA left unclear the applicability

of its truck regulations to the motor home industry. The

agency cannot now take advantage of the obscurity of

intentions in order to defeat rights statutorily con-

ferred.

653 F.2d at 568 (citation omitted).

This is just such an instance where EPA promulgated

a confusing regulation and did not clarify its application to

WSDOT until the opportunity for judicial review had long

expired. First, the description of the site was general and

vague; according to EPA's explanation, all property owners

in the general Tacoma area should have been on notice that

they were potentially affected by the listing of the Com-

mencement Bay site. While an owner of known contaminat-

ed property along the shoreline of Commencement Bay may

have been on notice, the owner of upland property that was

not known to be contaminated at the time of the listing

could not be expected to have known that it was potentially

affected by such a listing.'’ Second, when the contamina-

tion was discovered in 1984 until at least November 19838,

EPA treated the site as a potential new Superfund site, not

as if it were already part of the Commencement Bay site.

Where the wording of the regulation left its applicability un-

clear and EPA's actions clearly indicated that the regulation

was not applicable to WSDOT, the time period for challeng-

ing the regulation should have been tolled until WSDOT got

“No comments were received by EPA when the Commencement Bay site

was listed, despite the fact that hundreds of property Cwners are now affected

16

actual notice on April 25, 1989. The ruling in this case is

thus totally inconsistent with the court's ruling in RVJA.

In allowing an otherwise untimely petition for review

in another case, the court stated:

Although statutory time limitations on judicial review

of agency action are jurisdictional, self-evidently the

calendar does not run until the agency has decided a

question in a manner that reasonably puts aggrieved

parties on notice of the rule's content. None of the cases

in this circuit even remotely suggest the contrary.

RCA Global Communications, Inc. v. F.C.C., 758 F.2d 722,

730 (D.C. Cir. 1985\citation omitted) (emphasis added). In

this case, however, the result does suggest the contrary. The

time for filing a petition for review should have been tolled

until WSDOT was on notice of the “content” of the rule list-

ing Commeiucement Bay, or in other words, until WSDOT

was on notice that this listing included the Tacoma Spur.

In American Trading Transportation Company, Inc. v.

U.S., the court found that no time limit barred the petition-

ers from challenging Maritime Administration (“Marad”)

regulations where those regulations were applied in ways

that petitioners could not have anticipated when the regu-

lations were adopted. 791 F.2d 942, 950 (D.C. Cir. 1986). Ai-

though it did not rule on the timeliness issue, the court

noted:

|T)he language of the regulation gave appellants no no-

tice that Marad would interpret it to block full consid-

eration of their interests. Had they challenged the rule

at the time of promulgation, before the agency devel-

oped this interpretation, we would no doubt have found

the challenge unripe for review because the harm appel-

lants now claim they have in fact suffered would, at

that time, have been only speculative. No time limit

bars appellants from challenging a regulation that,

they allege, is currently being used in a particular pro-

ceeding to harm them in a way they could not have an-

ticipated at the time the rule was adopted.

17

Id. at 950 n.11 (citations omitted) (emphasis added). This

comment applies as well to WSDOT, as explained in more

detail supra.

Most recently, the court found in National Air Trans-

portation Ass'n v. McArtor that a notice published in the

Federal Reyister was inadequate in that it mislead the

reader as to a regulation's applicability. 866 F.2d 483, 485-

86 (D.C. Cir. 1989). The court held that the sixty day review

period was therefore tolled until petitioner received notice

that it was affected by the regulation, which was when pe-

titioner received an “advisory circular” from FAA outlining

the new rules. /d.

Likewise in this case, the 90 day period in which WS-

DOT had to petition for review should also have been toiled

until WSDOT received clear notice from EPA that it was po-

tentially affected by the Commencement Bay NPL listing,

which was when it received the “general notice letter” on

April 25, 1989. WSDOT could not have known from the

1983 publication in the Federal Register that it was affect-

ed, both because the description did not appear to include

WSDOT's property and because WSDOT—and EPA—did

not know that the Tacoma Spur property was contaminated.

In addition, EPA's treatment of the site as something sepa-

rate from the Commencement Bay site for several years led

WSDOT to believe that the Tacoma Spur was separate from

the Commencement Bay site.

EPA has done in this case just what it attempted and

failed to do in the RVIA case: to “take advantage of the ob-

scurity of intentions in order to defeat rights statutorily con-

ferred.” 653 F.2d at 568. As an affected property owner,

WSDOT has a statutory right under 42 U.S.C. § 9613(a) to

challenge the inclusion of its property within an NPL site.

EPA has taken advantage of not only the vagueness of its

initial listing, but also the misleading nature of its own ac-

tions in dealing with this site in order to defeat WSDOT's

right to obtain review.

Section 113(a) requires that a challenge to an EPA ad-

ministrative rule adopted under CERCLA be brought only

18

in the D.C. Circuit. Other courts have refused to review

challenges on the basis of this limitation. See, e.g., D'Impe-

rio v. United States, 575 F.Supp. 248 (D.N.J. 1983). Thus,

there will be no opportunity for law in this area to develop

in any other circuits. The D.C. Circuit has exclusive juris-

diction over the question of when a challenge te an NPL list-

ing must be brought, and has made its position on the issue

clear. The issue of when an NPL listing must be appealed is

therefore ready for determination by this Court.

Ill. THE QUESTION OF WHEN A CHALLENGE TO

AN NPL LISTING MUST BE BROUGHT IS OF

GREAT IMPORTANCE TO PROPERTY OWN-

ERS.

The issue of when a challenge to an NPL listing may be

brought presents a question of substantial importance for

all those who own property anywhere near a Superfund site

or a “potential” Superfund site. The question takes on much

more importance when considered in light of (1) the enor-

mous cost associated with the Superfund program; (2) the

fact that these costs are recoverable from the parties in-

volved, who are jointly and severally liable; and (3) the ex-

tremely narrow defenses available to parties in cost

recovery actions.

Although the NPL lists only about 1200 sites, EPA has

identified nearly 32,000 “potential” Superfund sites.!4 The

Tacoma Spur was one of these thousands of “potential” NPL

sites before it was incorporated into the already-listed Com-

" mencement Bay site. It is impossible to estimate how many

of 32,000 “potential” Superfund sites are similarly situated

to the Tacoma Spur, and how many parties will be (or have

been) similarly deprived of their opportunity to seek review

of EPA's inclusion of their property into already-listed Su-

perfund sites.

'4EPA’s Implementation of the Superfund Program: Hearing Before the Sub-

committee on Investigations and Oversight, House Committee on Public Works and

Transportation, 101st Cong., Ist Sess. 33 (1989)

19

EPA admits that the average site cleanup cost is now

around $20 million. 54 Fed. Reg. 33846, 33850 (1989). This

does not include EPA's own administrative costs, which are

also passed on to responsible parties. !° Even accepting

EPA's average, the total cost of remediating only those sites

currently on the NPL is $24 billion.

One of the policies underlying CERCLA is that those

who cause pollution, rather than innocent parties or taxpay-

ers, should pay for cleanup. However, EPA's practice of

drawing unrelated parties into larger Superfund sites runs

counter to this policy, especially in the case of a government

agency such as WSDOT. Imposing joint and several liability

on WSDOT will still require taxpayers to bear the burden of

cleanup costs that should be borne by those who caused the

contamination. Even if joint and several liability is not

eventually imposed, the public will still have to bear the

costs associated with defending a state agency at a large Su-

perfund site.

CONCLUSION

The petition for writ of certiorari should be granted. In

the alternative, the Court should summarily reverse the

ruling of the D.C. Circuit Court of Appeals in this case.

Respectfully submitted this 3rd day of April, 1991.

KENWETH O. EIKENBERRY

Attorney General

CHARLES F. SECREST

Assistant Attorney General

Counsel of Record

DEBORAH L. CADE

Assistant Attorney General

Attorney for Washington State

Department of Transportation

Hwys-Licenses Bldg. PB-52

Olympia, Washington 98504

(206) 753-6126

Syr- . . . .

‘Because of its size and complexity, the cleanup of Commencement Bay wi!!

undoubtedly cost many times this “average” cost.

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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 to press.

United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued October 15, 1990 Decided November 2, 1990

No. 89-1445

WASHINGTON STATE DEPARTMENT OF TRANSPORTATION,

PETITIONER,

UNITED STATES ENVIRONMENTAL PROTECTION AGENCY,

RESPONDENT,

Petition for Review of an Order of the

Environmental Protection Agency

Deborah L. Cade, with whom Kenneth O. Eikenberry and

Charles F. Secrest were on the brief, for petitioner.

Russell M. Young, Attorney, United States Department

of Justice, with whom Richard B. Stewart, Assistant

Attorney General, FE. Donald Elliot, General Counsel, and

Eari Salo, Assistant General Counsel, Environmental Pro-

tection Agency, were on the brief, for respondent.

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.

24

Margaret Kane Harrigan, Attorney, United States

Department of Justice, also entered an appearance for

respondent.

Before: Epwarps, D.H. GINsBURG and SENTELLE, Circuit

Judges.

Opinion for the Court filed by Circuit Judge Epwarbs.

Epwarpbs, Circuit Judge: The petitioner in this case,

Washington State Department of Transportation

(“WSDOT”), challenges a decision by the Environmental

Protection Agency (“EPA”) to include property WSDOT

owns on a list of contaminated environmental areas sub-

ject to federal cleanup under the “Superfund” program.

WSDOT claims that the EPA designated its property as

part of a larger, pre-existing Superfund priority site with-

out first affording WSDOT notice and an opportunity to

comment. It also claims that the EPA did not follow its

own regulations in determining the site’s geographic scope.

WSDOT asks this court to require the EPA to remove its

property from the Superfund list and to give it an oppor-

tunity to comment before any future attempt to redesig-

nate the property as a Superfund site.

Because WSDOT had reasonable notice some years ago

that its property was potentially affected by the 1983 site

listing, and because it failed to seek judicial review within

the 90-day limitations period imposed by statute, see 42

U.S.C. § 9613(a) (1988), we deny the petition as untimely.

I. BACKGROUND

In 1983, the EPA promulgated a list of areas through-

out the United States known to be contaminated by haz-

ardous wastes. Sites included on the so-called National

Priorities List (‘NPL”) are considered the leading candi-

dates for cleanup financed by the Superfund program. See

42 U.S.C. § 9605(8)(B) (1988). “[T}]he modest and limited

purposes” of the NPL within the Superfund scheme have

been well described in previous cases. See, e.g., FEagle-

Picher Industries v. EPA, 759 F.2d 922, 932-33 (D.C. Cir.

3a

1985) (“Eagle-Picher IT’); Eagle-Picher Industries v. EPA,

759 F.2d 905, 919-21 (D.C. Cir. 1985) (“Eagle-Picher I’).

It is sufficient to restate here that Congress intended the

EPA to employ the NPL as a tool for identifying quickly

and inexpensively those sites meriting closer environmen-

tal scrutiny.

Among the 400-odd locations included on the initial

NPL were two portions of Commencement Bay, part of

Puget Sound in Washington state. One of those sites,

which concerns us here, was listed as “Commencement

Bay Nearshore/Tideflats.” After notice and comment, the

NPL was promulgated as a final rule on September 8,

1983. See 48 Fed. Reg. 40,658-73 (1983).

In keeping with agency policy,’ the EPA did not specify

any exact geographic boundaries of the Commencement

Bay Nearshore/Tideflats site. Background documents

concerning the site simply described it as the “Tideflats

industrial area,” a stretch of Commencement Bay in

Tacoma, Washington, peppered with docks, manufactur-

ing and processing plants and other industrial facilities.”

'It is the policy of EPA that it need not specify precise geo-

graphic boundaries in designating a NPL site, and that if bounda-

ries are initially defined they may be enlarged later if additional

study reveals a wider scope of contamination. See, e.g., Eagle-

Picher Industries v. EPA, 822 F.2d 132, 144 n.59 (D.C. Cir. 1987)

(“Eagle Picher IIT’) (per curiam). This policy was most recently

enunciated in 54 Fed. Reg. 13,298 (1989) (“EPA contemplates that

the preliminary description of facility boundaries at the time of

scoring will need to be refined and improved as more information

is developed as to where the contamination has come to be

located”).

"The general description of the site provided in EPA documen-

tation connected with the site listing stated:

COMMENCEMENT BAY — NEARSHORE/TIDEFLATS

INDUSTRIAL AREA

Tacoma, Washington

The Commencement Bay — Nearshore/Tideflats Industrial

Area in Tacoma, Washington, includes heavy industry such

as aluminum processing, chemical, pulp and paper, and pri-

4a

Unable to know without further study precisely which of

these industrial sources were responsible for the pollution,

. the EPA conducted investigations of two facilities to con-

firm its suspicion that shoreline industrial properties were

polluting the Bay. These two facilities — a Hooker Chem-

ical Company plant and an ASARCO copper smelter —

were evaluated according to criteria embodied in the Haz-

ard Ranking System (“HRS”)* and produced scores suffi-

cient to justify NPL listing. Based on these HRS data and

on more generalized documentation of pollution in Com-

mencement Bay, the EPA listed the “Nearshore/

Tideflats” site on the NPL.

WSDOT owns property located some 500 feet from a

man-made tributary of Commencement Bay known as

City Waterway and about three miles from the Hooker

chemical plant. WSDOT acquired the property, which had

long been used for a variety of industrial activities, in

1983 in order to construct an urban highway connecter

Known as the Tacoma Spur. During the course of readying

the site for construction in 1984, WSDOT discovered hid-

den deposits of hazardous waste left from earlier indus-

trial uses. A consultant hired by WSDOT to study

contamination at the Tacoma Spur site advised WSDOT

that pollution from the property was seeping into the

nearby City Waterway through underground channels.’

mary metal smelting. Contamination is known to be in the

industrial waterways and several land areas in the Tideflats.

Problems include arsenic-laden slag and airborne dust, chemi-

cal contamination of soil and sediment, and industrial wastes.

Hazard Ranking System Worksheet for Commencement Bay

Nearshore/Tideflats Site, reprinted in Petitioner’s Appendix 1.

°’The HRS was reviewed and upheld by this court in Eagle.

Picher I, 759 F.2d 905.

4See HART-CROWSER & ASSOCIATES, SOIL AND GROUND WATER

QuaLity EvaLuaTION, SR-705 Tacoma Spur 16 (1984) (“Ground

water con «ining contamination from beneath the [Tacoma Spur]

project sit. flows directly to the City Waterway.”), reprinted in

part in Respondent’s Appendix 5.

~

Od

WSDOT promptly notified the EPA of its discovery and

undertook its own efforts to remove the waste and elimi-

nate the hazard. The EPA, following routine procedure,

assigned the location a separate EPA site identification

number and, over the next several years, undertook pre-

liminary assessments of the property to determine

whether it might qualify as a Superfund cleanup site.

In April 1989, the EPA notified WSDOT that its prop-

erty was considered part of the earlier-announced Com-

mencement Bay Nearshore/Tideflats site and that it was

considered a “potentially responsible party” for the costs

of cleaning up both its own property and the Bay itself.

Three months later, WSDOT brought this action chal-

lenging the 1983 designation of the Commencement Bay

site.

Il. ANALYSIS

The designation of a hazardous waste site on the NPL

is considered rulemaking subject to judicial review under

42 U.S.C. § 9613(a) (1988). See Northside Sanitary Land-

fill, Inc. v. Thomas, 849 F.2d 1516, 1517 (D.C. Cir. 1988),

cert. denied, 109 S. Ct. 1528 (1989). That statutory provi-

sion requires that “application [for judicial review] ... be

made within ninety days from the date of promulgation”

of the contested regulation. Since the Commencement

Bay listing was promulgated on September 8, 1983, the

statutory period for judicial review expired on December

7, 1983. Because WSDOT did not bring this action until

July 21, 1989, its challenge is plainly time barred unless

it was deprived of reasonable notice that it had an interest

in the action. See Recreation Vehicle Indus. Ass’n v. EPA,

653 F.2d 562, 568 (D.C. Cir. 1981) (“Before any litigant

reasonably can be expected to present a petition for

review of an agency rule, he first must be put on fair

notice that the rule in question is applicable to him.”).

Under established law, the EPA may include specific

parcels of land within a NPL site so long as they are

within the broad compass of the notice provided by the

64

initial NPL listing. In Eagle-Picher Industries v. EPA, 822

F.2d 132 (D.C. Cir. 1987) (“Eagle-Picher III”) (per

curiam), this court held that the EPA may alter or expand

the boundaries of a NPL site if subsequent study reveals

a wider-than-expected scope of contamination.’ Nor is the

EPA required in every instance to assign a separate HRS

score to each parcel within a NPL site. See id. at 141-42."

WSDOT’s Tacoma Spur property plainly fell within the

broad compass of the 1983 Commencement Bay listing.

The property is located 500 feet from Tacoma’s City

Waterway, a short inlet off Commencement Bay. It lies

at the core of a heavy industrial area and was itself long

used for industrial purposes. It is just three miles from

the Hooker chemical plant and five miles from the

ASARCO copper smelter whose HRS scores supported

the site’s NPL designation. The nametag assigned the

NPL site did not suggest that it was limited to a particu-

lar industrial facility, but instead used the name of a

broader region, of which WSDOT had reason to know its

property could be considered a part.

If there was any doubt about the sufficiency of the

notice provided WSDOT by the 1983 listing of the Com-

mencement Bay site, that doubt vanished in 1984 when

WSDOT’s own consultant advised it that its Tacoma

Spur property was contributing to the pollution of City

‘In Eagle-Picher III, a NPL site was expanded from 15 square

miles to 115 square miles as the EPA discovered the full extent

of contamination, “Standing alone,” the court noted, “the change

in the Agency’s description of the site’s size does nothing more

than indicate the Agency's acquisition of more accurate informa

tion on the scope of the contamination.” 822 F.2d at 144 n.59.

“Also in Eagle-Picher I/I, the affected property owner objected

to the placement of its property on the NPL based partly on infer-

ences drawn from HRS scores derived from neighboring property.

This court rejected the petitioner’s claim that its site listing “was

based on data improperly borrowed” from another site as

“exalt{ing] form over substance.” 822 F.2d at 141. It was sufficient,

the court held, that the EPA borrowed HRS data from a closely

related neighboring site and corroborated it with observations spe-

cific to the non-HRS site. See id. at 142.

7a

Waterway, which WSDOT acknowledges “is part of Com-

mencement Bay.” Brief for Petitioner at 3. Having

reported this matter to the EPA, WSDOT was then —

if not before — on notice that its property might be con-

sidered part of the Commencement Bay listing.’

Because WSDOT did not file its petition for judicial

review within 90 days of the September 1983 NPL listing

or, if we assume that WSDOT was in need of “actual

notice,” within 90 days of its discovery in 1984 that its

own property was contaminated and could be polluting

nearby Commencement Bay — its petition is untimely

under 42 U.S.C. § 9613(a) (1988) and must be denied.

III. Conectusion

The petition is denied.

So ordered.

‘We are not persuaded that WSDOT was deprived of notice

because it was “misled” by EPA’s response to its report of contam-

ination at the Tacoma Spur property. While it is true thai

WSDOT’s report to EPA set in motion a standard bureaucratic

response, including the assignment of a new EPA site identifica-

tion number to the Tacoma Spur property, we remain convinced

that WSDOT had ample warning that its property was very likely

contributing to the despoliation of Commencement Bay and that

it might therefore have an interest in the Commencement Bay

NPL site designation.

8a

UNITED STATES COURT OF APPEALS

FOR THE DISTRICT OF COLUMBIA CIRCUIT

No. 89-1445 September Term, 1990

WASHINGTON STATE DEPARTMENT

OF TRANSPORTATION

PETITIONER

V.

U.S. ENVIRONMENTAL PROTECTION AGENCY

PETITION FOR REVIEW OF AN ORDER OF THE

ENVIRONMENTAL PROTECTION AGENCY

BEFORE: EDWARDS, D.H. GINSBURG and

SENTELLE, Circuit Judges

JUDGMENT

This cause came on to be heard on the petition for re-

view of an order of the Environmental Protection Agency

and was argued by counsel. On consideration thereof, it is

ORDERED and ADJUDGED, by the Court, that the pe-

tition for review is denied, in accordance with the Opinion

of the Court filed herein this date.

Per Curiam

FOR THE COURT:

CONSTANCE L. DUPRE, CLERK

Date: November 2, 1990

Opinion for the Court filed by Circuit Judge Edwards

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UNITED STATES COURT OF APPEALS

FOR THE DISTRICT OF COLUMBIA CIRCUI

No. 89-1445 September Term, 1990

WASHINGTON STATE DEPARTMENT OF

TRANSPORTATION

PETITIONER

V.

U.S. ENVIRONMENTAL PROTECTION

AGENCY

RESPONDENT

BEFORE: EDWARDS, D. H. GINSBURG and

SENTELLE, Circuit Judges *

Upon consideration of petitioner's petition for rehear-

ing, filed December 17, 1990, it is

ORDERED, by the Court, that the petition is denied.

Per Curiam

FOR THE COURT:

CONSTANCE L. DUPRE, CLERK

BY:

ROBERT A. BONNER

DEPUTY CLERK

Filed January 11, 1991

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