# Petition for Writ of Certiorari — Washington State Department of Transportation v. United States Environmental Protection Agency > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385009_1889%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition for Writ of Certiorari - **Published:** January 1, 1991 - **Citation:** 501 U.S. 1230 ## Text 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 RA 1 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 - © | ; : : 7 - , ; i : 7 >» | >. - iy: : - a ty : +, = | ; — ; | “ N i] 4 ; oa A | | & | a a ; aa = ‘ t - a | ad . ~ ed la 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 9a 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 10a een ane rag \ (jeajwayg jejuapj390) jeajwayg sayooy Bs1V jeysysnpuj syeyeplt BwoveL uUMO}JUMOG bod pO os <> Sorry --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385009_1889%3A1. Public record. Not legal advice.