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Eagle-Picher Indus. v. EPA

Citation: 17 ELR 21108
No. Nos. 83-2259 et al., 822 F.2d 132/26 ERC 1129/(D.C. Cir., 06/30/1987) Listing of sites on NPL

The court upholds as reasonable the Environmental Protection Agency's (EPA's) designation and listing on the National Priorities List (NPL) of five hazardous waste sites for priority cleanup under §105(8)(B) of the Comprehensive Environmental Response, Compensation, and Liability Act. The court holds that EPA reasonably treated two connecting aquifers, one of which was contaminated and the other used for water supply, as a single unit for purposes of the hazard ranking system (HRS), even though EPA did not follow its "aquifer of concern" principle, since the purpose of the HRS is to estimate the potential hazard from a site. The court holds that EPA adequately responded to the site owners' comments regarding apparent inconsistencies and contradictions between a preliminary and a later, more comprehensive task force report measuring contamination at the sites. The court also holds that EPA's methods of scoring sites as specified in the HRS is reasonable, and that the application of the HRS methods to the five sites was proper. The court next holds that for the purposes of the Administrative Procedure Act the EPA Administrator, and not the site scorer, is the person who decides whether a site is to be included on the NPL. Therefore, even though one site owner's comments were received only by the Administrator and not the site scorer does not matter, and the rule that "the one who decides must hear" was not violated.

[A prior opinion in the case appears at 15 ELR 20467.]

Counsel for Petitioners
Richard A. Flye, Christian Volz
McKenna, Conner & Cuneo
1575 Eye St. NW, Washington DC 20005
(202) 789-7500

Counsel for Respondent
Samuel I. Gutter
United States Environmental Protection Agency
401 M St. SW, Washington DC 20460
(202) 382-4134

Lawrence R. Liebesman, Michael W. Steinberg
Land and Natural Resources Division
Department of Justice, Washington DC 20530
(202) 633-2281

Before: ROBINSON, EDWARDS and STARR, Circuit Judges.