Opposition Brief — Washington State Department of Transportation v. United States Environmental Protection Agency

Sn the Supreme Court of the Gut

OCTOBER TERM, 1990

WASHINGTON STATE

DEPARTMENT OF TRANSPORTATION, PETITIONER

Vv.

UNITED STATES

ENVIRONMENTAL PROTECTION AGENCY

ON PETITION FOR A WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS

FOR THE DISTRICT OF COLUMBIA CIRCUIT

BRIEF FOR THE RESPONDENT

IN OPPOSITION

KENNETH W. STARR

Solicitor General

GEORGE VAN CLEVE

Acting Assistant Attorney General

RUSSELL M. YOUNG

Attorney

E. DONALD ELLIOTT Department of Justice

General Counsel Washington, D.C. 20530

LISA K. FRIEDMAN (202) 514-2217

Associate General Counsel

EARL SALO

Assistant General Counsel

GEORGE V. WYETH

Attorney

Environmenial Protection Agency

Washington, D.C. 20460

QUESTION PRESENTED

Whether a petition to review the listing of a site on

the National Priorities List was within the 90-day

jurisdictional time bar of Section 113(a) of the Compre-

hensive Environmental Response, Compensation, and

Liability Act of 1980, 42 U.S.C. 9613.

(I)

TABLE OF CONTENTS

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TABLE OF AUTHORITIES

Cases:

American Trading Transp. Co. v. United States, 791 F.2d

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Eagle-Picher Industries vy. EPA:

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National Air Transp. Ass’n v. McArtor, 866 F.2d 483

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Recreation Vehicle Indus. Ass’n v. EPA, 653 F.2d 562

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Statutes and regulations:

Comprehensive Environmental Response,

Compensation and Liability Act of 1980, 42 U.S.C. 9601

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S. Rep. No. 848, 96th Cong., 2d Sess. (1980) ailneiilaseicdnieisdee 11

Jn the Supreme Court of the United States

OCTOBER TERM, 1990

No. 90-1541

WASHINGTON STATE

DEPARTMENT OF TRANSPORTATION, PETITIONER

V.

UNITED STATES

ENVIRONMENTAL PROTECTION AGENCY

ON PETITION FOR A WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS

FOR THE DISTRICT OF COLUMBIA CIRCUIT

BRiEF FOR THE RESPONDENT

IN OPPOSITION

OPINION BELOW

The opinion of the court of appeals, Pet. App. la—7a,

is reported at 917 F.2d 1309.

JURISDICTION

The judgment of the court of appeals was entered on

November 2, 1990. A petition for rehearing was denied

on January 11, 1991. Pet. App. 9a. The petition for a writ

of certiorari was filed on April 5, 1991. The jurisdiction

of this Court is invoked under 28 U.S.C. 1254(1).

STATEMENT

1. Congress enacted the Comprehensive Environ-

mental Response, Compensation, and Liability Act of

(1)

2

1980 (CERCLA), 42 U.S.C. 9601 et seq., to address the

serious public health and environmental problems

caused by improper releases of hazardous substances.

CERCLA authorizes the Environmental Protection

Agency (EPA) to respond to actual or threatened re-

leases of hazardous substances,! both through limited,

short-term removal actions,” and through remedial ac-

tions designed to provide permanent remedies. To pay

for clean-up action, the statute establishes a fund,

known as the “Superfund.”4 Moreover, Section 107 of

CERCLA, 42 U.S.C. 9607, imposes liability for response

costs on a variety of parties, including certain past and

present site owners and operators, generators of haz-

ardous wastes, and transporters of hazardous wastes

at the site. Such parties are liable for any costs of re-

moval or remedial action incurred by the United States

if the costs incurred are “not inconsistent with the na-

tional contingency plan.” 42 U.S.C. 9607(a)(4)(A). The

national contingency pian contains EPA’s regulations

implementing CERCLA, and is codified at 40 C.F.R. Pt.

300

Section 105 of CERCLA requires EPA to establish a

set of criteria for determining priorities among re-

leases or threatened releases—the Hazard Ranking

System (HRS)'—and then to list the “national priorities

Section 104, 42 U.S.C. 9604.

Section 101(23), 42 U.S.C. 9€01(23).

Section 101(24), 42 U.S.C. 9601(24).

Sections 111, 221, 42 U.S.C. 9611, 9631.

5 EPA applies the HRS to information concerning an ob-

served or potential release to obtain a numerical “score” or es-

timate of the relative risk from the release over three

“pathways” of human or environmental exposure: groundwater,

surface water, and air. The HRS score is an estimate of the

“probability and magnitude of harm to the human population or

sensitive environment from exposure to hazardous substances

as a result of contamination of ground water, surface water, or

air.” 47 Fed. Reg. 31,180, 31,187 (1982) (codified at 40 C.F.R. Pt.

300). Sites receiving an HRS score of 28.50 or greater are in-

cluded on the National Priorities List (see page 3, infra) after

> wn

3

among the known releases or threatened releases

throughout the United States,” based on those criteria.

42 U.S.C. 9605(a)(8)(B). EPA promulgated the first Na-

tional Priorities List (NPL) in 1983, 48 Fed. Reg. 40,658

(Sept. 8, 1983) (codified at 40 C.F.R. Pt. 300, App. B), and

has subsequently updated the NPL so that it now lists

more than 1200 sites. Pet. 18. Under Section 113(a) of

CERCLA, 42 U.S.C. 9613(a), regulations promulgated

under the Act, including the NPL, are reviewable ex-

clusively in the United States Court of Appeals for the

District of Columbia Circuit within 90 days of their

promulgation.

2.a. On December 30, 1982, EPA issued a proposed

NPL, designating locations which it deemed prime

candidates for cleanup financed by the Superfund pro-

gram. One of those sites was a portion of Commence-

ment Bay, part of Puget Sound in Washington State,

which EPA listed as “Commencement Bay Near

Shore/Tide Flats.” After notice and comment, EPA

promulgated the NPL as a final rule on September 8,

1983. 48 Fed. Reg. 40,658—-40,673 (codified at 40 C.F.R. Pt

300).

EPA based its listing of the site on several studies of

the Commencement Bay area. Investigation of two fa-

cilities on the site—a chemical plant and a copper

smelter—produced scores under the Hazard Ranking

System high enough to warrant NPL listing. In addi-

tion, a more general study of shoreline bay areas and

waterways convinced EPA that pollution was reaching

the Bay from a variety of other shoreline sources. Pet.

App. 4a.

EPA’s investigations prior to the NPL listing con-

firmed that the site should include shallow bay areas,

waterways, and shoreline, but without further study

the agency could not identify all sources of pollution or

notice and comment rulemaking. 48 Fed. Reg. 40,660 (1983)

(codified at 40 C.F.R. Pt. 300). The HRS is codified at 40 C.F.R.

Pt. 300, App. A.

———————— ee

4

the exact extent to which contamination had spread in

the Commencement Bay area. Accordingly, EPA did

not specify in its rulemaking the precise geographic

boundaries of the site.© Instead, the agency’s back-

ground documents described it generally as encom-

passing the “Tideflats Industrial Area in Tacoma,

Washington,” an area which

includes heavy industry such as aluminum pro-

cessing, chemical, pulp and paper, and primary

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, chemical contamination of soil

and sediment, and industrial wastes.

Hazard Ranking System Worksheet for Commence-

ment Bay. Pet. C.A. App. 1.

b. Among the various sources of pollution to the

Bay is a property owned by petitioner. The property is

located approximately 500 feet from a man-made tribu-

tary of the Bay, called City Waterway, and about three

miles from the chemical plant. The property had iong

been used for numerous industrial activities. Peti-

tioner acquired it in 1983 in order to construct a high-

way link, known as the Tacoma Spur, between down-

town Tacoma and an interstate highway. Pet. App. 4a.

In 1984, as petitioner was preparing the property for

construction, it discovered buried deposits of haz-

ardous wastes from the eariier industrial uses. Peti-

tioner conducted a soil and hydrological investigation

which confirmed the presence of soil and groundwater

contamination at Tacoma Spur, and that

6 EPA ordinarily does not describe a site’s specific geo-

graphic boundaries when listing it on the NPL. In uny event, a

site may be expanded later if further study reveals a wider scope

of contamination. “EPA contemplates that the preliminary de-

scription of facility boundaries at the time of scoring [under the

Hazardous Ranking System] will need to be refined and im-

5

“groundwater containing contamination from beneath

the [Tacoma Spur] project site flows directly to the City

Waterway.” Pet. App. 4a n.4.’ Petitioner notified EPA of

its discovery, and conducted its own operation to re-

move waste from the property. Pet. App. 5a.

In response, EPA, following its routine procedure

upon receiving notice that a potentially hazardous site

has been found, assigned the area an EPA site identifi-

cation number. EPA also made a preliminary assess-

ment of the property, to evaluate quickly the nature of

the contamination. Pet. App. 5a. Later, EPA conducted

a site inspection.? EPA reports from those evaluations

concluded that groundwater contamination at Tacoma

Spur was probable and thai the contamination could be

seeping through underground channels into the City

Waterway tributary of Commencement Bay.9 |

proved as more information is developed as to where the con-

tamination has come to be located.” 54 Fed. Reg. 13,298 (1989).

7 Report by petitioner's hydrologists, Hart Crowser and As-

sociates, Inc., entitled “Soil and Ground Water Quality Evalua-

tion SR-705 Tacoma Spur” (Nov. 15, 1984), Resp. C.A. App. 5. A

1985 follow-up report prepared for petitioner confirmed that

groundwater contamination was migrating from Tacoma Spur

to the City Waterway and that soil contamination from peti-

tioner’s property also was “likely” reaching the same part of the

site. Id. at 2-3.

8 EPA's administrative procedures for conducting prelimi-

nary assessments and site inspections are found at 40 C.F.R.

300.420 and 40 C.F.R. 300.420(c) (1990).

9 See SPA Preliminary Assessment Report, Pet. C.A. App.

44; EPA Site Inspection Report, Pet. C.A. App. 69. EPA reached

the same conclusion in “Remedial Investigation” and

“Feasibility Study” reports it issued concerning the Com-

mencement Bay Nearshore/Tideflats site. See “Summary Re-

port For the Commencement Bay-Nearshore/Tide-flats Reme-

dial Investigation,” at 67, 80; 1985 Remedial Investigation Re-

port (RI Report), vol. 2, at 7.182, 7.242, Resp. C.A. App. 18, 49

(including Tacoma Spur on maps of the Commencement Bay

site); RI Report, vol. 2, at 7.207, Resp. C.A. App. 19 (identifying

Tacoma Spur as a source of pollutants to the City Waterway por-

tion of the site).

6

On April 24, 1989, EPA issued petitioner a “general

notice” letter, stating, in effect, that its property was

part of the Commencement Bay Nearshore/Tideflats

NPL site and that the Agency considered petitioner a

“potentially responsible party” that might be liable for

the cost of cleaning up that site in the event EPA filed

an enforcement or cost recovery action under CERCLA

Section 107, 42 U.S.C. 9607. Pet. App. 5a. The letter,

which was also sent to many other potentially respon-

sible parties, did not assert that petitioner was in fact

liable for such costs, and did not require petitioner to

take any action, other than to provide EPA with infor-

mation about its property and activities. Pet. C.A. App.

105.

3. OnJuly 26, 1989, petitioner filed a petition in the

court of appeals for review of LPA’s 1983 designation of

the Commencement Bay site on the NPL. The court of

appeals denied the petition as untimely “[b]ecause

petitioner] had reasonable notice some years ago that

its property was potentially affected by the 1983 site list-

ing, and because it failed to seek judicial review within

the 90-day limitations period” specified by Section

113(a) of CERCLA, 42 U.S.C. 9613(a). Pet. App. 2a.

The court of appeals rejected petitioner’s contention

that because the 1983 NPL listing did not describe the

precise boundaries of the site, it did not provide peti-

tioner with adequate notice that its property could be a

part of the Commencement Bay site. Citing its previous

decisions regarding the NPL in Eagle-Picher Indus-

tries v. EPA, 759 F.2d 922, 932-933 (D.C. Cir. 1985)

(Eagle-Picher II) and Eagle-Picher Industries v. EPA,

759 F.2d 905, 919-921 (D.C. Cir. 1985) (Eagle-Picher J),

the court emphasized the “modest and limited pur-

poses’ of the NPL within the Superfund scheme”—that

is, “as a tool for identifying quickly and inexpensively

those sites meriting closer environmental scrutiny.”

Pet. App. 2a—3a. In keeping with the NPL’s limited

purpose, the court explained, EPA was not required to

delineate the precise boundaries of hazardous waste

7

sites when listing them on the NPL. “[T]he EPA may

include specific parcels of land within a NPL site so

long as they are within the broad compass of the notice

provided by the initial NPL listing.” Pet. App. 5a—6a.

The court explained that its conclusion was consis-

tent with its earlier decision in Eagle-Picher Indus-

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

ITT) (per curiam), where it held that “the EPA may al-

ter or expand the boundaries of a NPL site if subse-

quent study reveals a wider-than-expected scope of con-

tamination.”!° Pet. App. 6a (footnote omitted). “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

information on the scope of the contamination.” Pet.

App. 6a n.5 (quoting Eagle-Picher III, 822 F.2d at 144

n.59).1 ;

Applying those principles to petitioner’s Tacoma

Spur property, the court found that petitioner had re-

ceived adequate notice in 1983 because its property

“plainly fell within the broad compass of the 1983

Commencement Bay listing.” Pet. App. 6a. The court

noted that Tacoma Spur lies “at the core of a heavy in-

dustrial area,” just 500 feet from the City Waterway

tributary of Commencement Bay, and just three miles

from the chemical plant. Given this location, the court

concluded, petitioner “had reason to know its property

could be considered a part” of the broad region de-

scribed by the site’s name. Pet. App. 6a.

ee Eo

10 The court in Eagle-Picher III upheld EPA's authority to ex-

pand an NPL site from 15 square miles to 115 square miles

upon discovery of a larger than expected area of contamination.

822 F.2d at 144 n.59.

11 The court below also noted that its decision in this case

was consistent with its determination in Eagle-Picher III, 822

F.2d at 141-142, that EPA is not “required in every instance to

assign a separate HRS score to each parcel within a NPL site.”

Pet. App. 6a & n.6.

8

If petitioner had any doubt about the status of its

property under the 1983 listing, the court continued,

“that doubt vanished” in 1984 when petitioner received

actual notice from its own consultant that its Tacoma

Spur property was contaminating another portion of

the Commencement Bay site—the City Waterway. Pet.

App. 6a—7a. “Having reported this matter to the EPA,

[petitioner] was then—if not before—on notice that its

property might be considered part of the Commence-

ment Bay listing.” Id. at 7a (footnote omitted).!2 Since

petitioner did not file its petition for judicial review

within 90 days of this actual notice, the court reasoned,

the petition was untimely under 42 U.S.C. 9613(a). Pet.

App. 2a.

ARGUMENT

The court of appeals correctly denied the petition for

review as untimely under CERCLA Section 113(a), be-

cause the 1983 Commencement Bay listing provided

sufficient notice that petitioner’s property was part of a

Superfund site. The court’s holding does not conflict

with any decision of this Court or any other decision of

the District of Columbia Circuit, which has exclusive

jurisdiction over such petitions. The decision below is

fact-bound and does not warrant this Court’s review.

Petitioner contends that the 1983 NPL did not provide

adequate notice that the Tacoma Spur could be consid-

ered part of the Superfund site, and, therefore, that the

90—day jurisdictional time period imposed by CERCLA

Section 113(a) was tolled until 1989, when petitioner re-

2 The court also rejected petitioner's claim that it was de-

prived of notice because it was “misled” by EPA's response to pe-

titioner’s report of contamination at the Tacoma Spur property.

Notwithstanding EPA’s “standard bureaucratic response” to pe-

titioner’s report, including assigning a new EPA site identifica-

tion number to the Tacoma Spur, the court was “convinced that

[petitioner] 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.” Pet. App. 7a n.7.

9

ceived EPA’s letter identifying it as a “potentially re-

sponsible party.” Pet. 17. Petitioner filed its petition for

review within 90 days of receiving that letter. Petitioner

understates the notice it received and exaggerates the

notice to which it was entitled.

1. EPA listed the “Commencement Bay

Nearshore/Tideflats” in the final NPL on September 8,

1983. Pet. App. 3a. Petitioner concedes that the City Wa-

terway is part of Commencement Bay. Pet. 5; Pet. App.

7a. Petitioner’s property is only 500 feet from the City

Waterway, Pet. App. 6a, and hence is part of the

“Tideflats” area of Commencement Bay. Although peti-

tioner contends that “[t]he term “Tideflats’ refers to a

specific geographic area located southeast of Com-

mencement Bay known as the Tacoma Tideflats,” Pet.

4, the NPL listing did not specify the “Tacoma Tide-

flats.” As the court of appeals explained: “The nametag

assigned the NPL site did not suggest that it was lim-

ited to a particular industrial facility, but instead used

the name of a broader region, of which [petitioner] had

reason to know its property could be considered a

part.”13 Pet. App. 6a. Petitioner thus had “reasonable

notice some years ago that its property was potentially

affected by the 1983 site listing.” Id. at 2a.

Petitioner contends that the 1983 listing was am-

biguous, Pet. 17, and that the court of appeals would not

have reviewed EPA’s site designation in 1983 because

petitioner’s challenge would not have been ripe at that

time, id. at 10. But uncertainty in the face of a broad

site designation and a jurisdictional time bar should

have prompted petitioner to protect its interests rather

13 EPA’s Hazard Ranking Worksheet described the

“Tideflats industrial area” as one contaminated by industrial

activity. See pp. 3+4, supra. Petitioner concedes that its property,

located about three miles from a chemical plant, Pet. App. 6a,

was contaminated by an abandoned coal gasification plant. Pet.

5. As the court of appeals pointed out, petitioner’s property “lies at

the core of a heavy industrial area and was itself long used for

industrial purposes.” Pet. App. 6a.

10

than sleep on its rights and attempt to undo EPA’s site

designation years after the regulation promulgating it

had become law. As the court of appeals stated in Ea-

gle-Picher I:

In general, we will refuse to hypothesize whether,

in retrospect, a claim would have been deemed ripe

for review had it been brought during the statutory

period, in order to save an untimely claim. [i]f

there is any doubt about the ripeness of a claim, pe-

titioners must bring their challenge in a timely

fashion or risk being barred. Courts simply are not

well-suited to answering hypothetical questions

which involve guessing what the court might have

done in the past.

759 F.2d at 909, 914.14

Even if the issue had been unripe at the time of the

1983 NPL listing, it clearly was ripe by 1984 when peti-

tioner received actual notice from its own consultant

that Tacoma Spur was contaminating Commence-

ment Bay. Pet. App. 6a—7a. Informed of that fact, peti-

tioner had no excuse for waiting five more years to file

its petition for review.

2. Petitioner’s claim of entitlement to specificity of

notice rests on an exaggerated notion of the purposes of

NPL rulemaking. Pet. App. 2a. The “modest and lim-

ited purposes” of that activity-are to notify the public

that EPA proposes to list a given site because serious

contamination there presents a hazard, and to invite

public comment on the matter. Toward that end, the

NPL merely serves “to identify, quickly and inexpen-

sively, sites that may warrant further action under

144 The court of appeals in Eagle-Picher I noted that

“occasionally” exceptions may be justified in light of “changed

circumstances,” or where “compelling case precedent makes it

clear beyond a doubt that the claim would not have been ripe

during the statutory period,” or to prevent manifest injustice. 759

F.2d at 914. Contrary to petitioner’s contention, Pet. 14-18, the

court of appeals was correct not to invoke those exceptions here.

11

CERCLA.” Eagle-Picher I, 759 F.2d at 911.'5 As the

court of appeals noted, “the NPL is simply a rough list

of priorities, assembled quickly and inexpensively to

comply with Congress’ mandate to take action

straightaway.” Eagle-Picher II, 759 F.2d at 932 (footnote

omitted) (emphasis added).

Once a site is listed on the NPL, EPA may spend Su-

perfund money for remedial actions-at the site. 40

C.F.R. 300.425(b)(1). But inclusion on the NPL does not

assign liabil:ty to any person for the cost of cleaning up

the site, and requires no cleanup or any other action by

site owners. Eagle-Picher II, 759 F.2d at 920. Since in-

clusion of a site on the NPL merely permits EPA to

spend Superfund money on remedial actions at the

site, there is—contrary to petitioner's contention, Pet. 8,

18-19—no “financial impact” on property owners un-

der CERCLA. Financial responsibility attaches only if

EPA establishes that a party is liable for the cleanup

costs in an enforcement action under Section 107, 42

U.S.C. 9607, and “these [enforcement] actions will be at-

tended by all appropriate procedural safeguards,” S.

Rep. No. 848, 96th Cong., 2d Sess. 60 (1980).16 Since NPL

rulemaking by itself imposes no duty or liability upon

anyone, EPA is not required to provide notice to prop-

erty owners by specifying the precise, fixed boundaries

of a site in the initial NPL listing. As the court of ap-

peals held, EPA need only describe the “broad com-

pass” of a site on the NPL, and may “alter or expand

the boundaries” after the site is listed. Pet. App. 4a—5a.

15 See also S. Rep. 848, 96th Cong., 2d Sess. 60 (1980)

(explaining that priority lists “serve primarily informational

purposes, identifying for the States and the public those facilities

and sites or other releases which appear to warrant remedial ac-

tions.”).

16 Significantly, a property owner may be liable for clean-up

costs, even if its property is not a part of a NPL site, if its prop-

erty contributes to the contamination of the site. And if contam-

ination from a party’s property contributes to an indivisible

harm requiring cleanup, liability is joint and several. 42 U.S.C.

9607.

12

Petitioner does not argue that the decision below con-

flicts with the court of appeals’ previous interpreta-

tions of the NPL. Instead, petitioner invokes cases in-

volving challenges to final agency rules that imposed

duties on the affected parties. See National Air Transp.

Ass'n v. McArtor, 866 F.2d 483 (D.C. Cir. 1989); Recre-

ation Vehicle Indus. Ass’n v. EPA, 653 F.2d 562 (D.C.

Cir. 1981); American Trading Trunsp. Co. v. United

States, 791 F.2d 942 (D.C. Cir. 1986). Those cases are

inapplicable to the NPL, because the parties to those

cases were adversely affected by the rules at issue and

were therefore entitled to more specific notice that the

rule in question would apply to them.

CONCLUSION

The petition for a writ of certiorari should be denied.

Respectfully submitted.

KENNETH W. STARR

Solicitor General

~ GEORGE VAN CLEVE

Acting Assistant Attorney General

RUSSELL M. YOUNG

Attorney

E.. DONALD ELLIOTT

General Counsel

LISA K. FRIEDMAN

Associate General Counsel

EARL SALO

Assistant General Counsel

GEORGE V. WYETH

Attorney

JUNE 1991

U.S GOVERNMENT PRINTING OFFICE. 1991 — 282-061/20581