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Stoughton, City of v. EPA

Citation: 19 ELR 20054
No. Nos. 86-1492 et al., 858 F.2d 747/28 ERC 1337/(D.C. Cir., 09/27/1988)

The court holds that the Environmental Protection Agency's (EPA's) decisions to include four hazardous waste sites on the National Priorities List (NPL) were not arbitrary or capricious. The court first upholds EPA's inclusion of the Stoughton Landfill site in Wisconsin on the NPL. The record does not demonstrate that the information on which EPA relied to determine that chloroform is present at the site is invalid. Although only one of two samples from the site tested positive for chloroform, EPA's regulations do not require multiple detections. The court holds that EPA did not improperly adjust the site's Hazardous Ranking System (HRS) score without providing further opportunity for public comment, since the changes were a logical outgrowth of the proposal and previous comments. The court next upholds EPA's decision to list two sites owned by Intel Corporation in California. The court holds that EPA's treatment of two aquifers as one for scoring purposes was not improper, since the aquifers are hydrologically related. EPA's consideration of new information after publication of the proposed rule without providing additional opportunity for comment did not violate the Administrative Procedure Act, since EPA's position on the interrelation of the two aquifers was apparent from the outset. The court holds that EPA properly used a substance not present in reportable quantities to compute the HRS score, because there existed no total inventory of substances at the Intel facilities. Intel's calculation back from the amount of contaminant detected in nearby groundwater did not constitute a total inventory. Finally, the court upholds EPA's decision to include the Republic Steel Quarry in Ohio on the NPL. The court holds that EPA's failure to subdivide a target population, for scoring purposes, into parts that have alternate drinking supplies and parts that do not was not arbitrary and capricious.

Counsel for Petitioner
Michael Skibinski
176 W. Main St., Stoughton WI 53589
(608) 873-8136

Counsel for Respondent
Lawrence E. Blatnik
Land and Natural Resources Division
U.S. Department of Justice, Washington DC 20530
(202) 633-2338

Lawrence E. Starfield
U.S. Environmental Protection Agency
401 M St. SW, Washington DC 20460
(202) 382-7706

Before ROBINSON, RUTH B. GINSBURG, and SENTELLE, Circuit Judges.