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National Gypsum Co. v. EPA

ELR Citation: 22 ELR 21270
Nos. No. 90-1574, 968 F.2d 40/34 ERC 1945/(D.C. Cir., 06/19/1992)

The court vacates the Environmental Protection Agency's (EPA's) decision to list a waste site in Pennsylvania on the national priorities list (NPL) pursuant to the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA), because the court finds that EPA's calculation of the site's toxicity and persistence scores is arbitrary and capricious and that a recalculation may lead to a hazardous ranking score (HRS) below the minimum score required for listing on the NPL. EPA based the site toxicity and persistence scores on unspecified, highly toxic boron compounds without any attempt to learn what the actual form of boron is in the groundwater at the site. EPA also fails to explain why it discounted a computer service indicating that boron oxide should receive a zero persistence score and why boron, as a metalloid, deserved the highest persistence score. However, the court rejects all other challenges to the HRS calculation. The court upholds EPA's finding of an observed release based on the agency's measurement of boron in groundwater from a monitoring well on the site. The court notes that the HRS allows a contaminant to be measured in the site's groundwater, and EPA shows that the well is sufficiently protected from vertical migration of wastes on the site even without a metal casing and would generate a fairly accurate measurement. Having found that the groundwater data sufficiently supports the finding of an observed release, the court declines to address the accuracy of boron detection in a nearby hot spring. The court next holds that the HRS supports EPA's calculation of the population-served score based on all wells drawing from the aquifer of concern within three miles of the site and not just the nearest well. Lastly, the court holds that the HRS intends that calculation of the quantity score may be based on boron oxide, a pollutant or contaminant. Because recalculation of toxicity and persistence scores may lower the HRS score below the minimum for NPL listing, the court remands to EPA. The court instructs that if the agency continues to refuse to perform further groundwater tests to determine which boron compounds are present at the site, it must identify which highly toxic boron compounds it assumes exist there and offer a reasonable explanation for its assumption.

Counsel for Petitioner
Stephen N. Shulman
Cadwalader, Wickersham & Taft
1333 New Hampshire Ave. NW, Washington DC 20036
(202) 862-2200

Counsel for Respondent
George B. Wyeth
U.S. Environmental Protection Agency
401 M St. SW, Washington DC 20460
(202) 260-2090

Before: MIKVA, Chief Judge, SILBERMAN and WILLIAMS, Circuit Judges.