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Harbor Gateway Commercial Property Owners' Ass'n v. EPA

Citation: 29 ELR 20584
No. 97-1737, 167 F.3d 602/(D.C. Cir., 02/19/1999)

The court holds that the U.S. Environmental Protection Agency's (EPA's) listing of the Del Amo site in Los Angeles, California, on the national priorities list (NPL) was invalid. The court first holds that the proposal for listing the site on the NPL failed to comply with the Omnibus Consolidated Rescissions and Appropriations Act of 1996. The Act explicitly requires a written request from the governor of the state, and the court declines to treat this language as being satisfied by a letter from a deputy director of the state's environmental agency simply because the letter purports to be on behalf of the administration. The court then rejects EPA's argument that Congress was not concerned with whether the authorization came directly from the governor. Instead, the court enforces the statute according to its terms — terms that require a written authorization from the governor, which EPA failed to obtain in this case.

A dissenting judge would hold that the written request is from the governor. The written request contains an undisputed statement that it is made with the concurrence of the governor's administration. And the statute nowhere commands that the request be personally signed by him.

Counsel for Petitioners
Albert M. Cohen
Smiland & Khachigian
One Bunker Hill
601 W. 5th St., 7th Fl., Los Angeles CA 90071
(213) 891-1010

Counsel for Respondent
H. Michael Semler
Environment and Natural Resources Division
U.S. Department of Justice, Washington DC 20530
(202) 514-2000

Before Silberman, J., with Wald, J., dissenting