B&B Tritech, Inc. v. EPA

The court holds that the U.S. Environmental Protection Agency (EPA) properly added a chemical company site to the national priorities list (NPL) under the Comprehensive Environmental Response, Compensation, and Liability Act in 1990 using the groundwater migration route score formula in the original Hazard Ranking System (HRS), even though use of the new HRS may have resulted in different formula scores that may not have exceeded the NPL listing threshold. The new HRS was promulgated in 1991, but was required by the 1986 Superfund amendments to be finalized by 1988. The groundwater migration route score formula in the original HRS, which focused on the risk that contamination will spread to a substantial population, was based on measuring the distance from the contamination to the nearest well or population served, without counting those persons who do not use water from the aquifer of concern. Petitioner manufacturing company protested EPA's NPL listing, but the Agency refused to change its score and the site was added to the NPL, to which petitioner now seek review.

The court first notes that petitioners rightly argue that EPA's calculation of the distance to nearest well/population served subfactor was highly formulaic. However, case law endorses the HRS' preference for using formulas and emphasizes that the NPL is only a rough list of priorities, assembled quickly and inexpensively. The court finds that the presence of trace contaminants in the deep aquifer layer, together with the direct evidence of vertical permeability, was sufficient to demonstrate a connection between the two layers. Moreover, the court notes that it has previously permitted EPA imprecision in calculating the target population by using estimates rather than actual figures. Given this, the court holds that EPA properly counted the four wellfields proximate to the manufacturing plant, from which a population of 750,000 used water.

However, although EPA's decision must stand, the court urges the Agency to conduct a remedial investigation to determine whether the site poses any measurable or meaningful health risk and, if not, to delist the site.

Counsel for Petitioners
Susan E. Trench
Goldstein & Tanen
2 S. Biscayne Blvd., 1 Biscayne Tower, Miami FL 33131
(305) 374-3250

Counsel for Respondent
John C. Nagle, Barry M. Hartman
Environment and Natural Resources Division
U.S. Department of Justice, Washington DC 20530
(202) 514-2000

Raymond Ludwiszewski, Earl Salo, George Wyeth U.S. Environmental Protection Agency 401 M St. SW, Washington DC 20460 (202) 260-2090

Before: MIKVA, Chief Judge, EDWARDS and RUTH B. GINSBURG, Circuit Judges.